Re Nexus Energy Ltd - [2014] FCA 558

FEDERAL COURT OF AUSTRALIA
Nexus Energy Ltd, in the matter of Nexus Energy Ltd [2014] FCA 558

Citation: Nexus Energy Ltd, in the matter of Nexus Energy Ltd [2014] FCA 558

Parties: NEXUS ENERGY LIMITED (ACN 058 818 278)

File number: WAD 89 of 2014

Judge GILMOUR J

Date of judgment: 28 May 2014

Catchwords: CORPORATIONS – scheme of arrangement – plaintiff seeks orders pursuant to s 1319 of the Corporations Act 2001 (Cth) – orders for dispatch of additional material to shareholders

Legislation: Corporations Act 2001 (Cth) s 1319

Cases cited: Re Cellestis Limited (No 2) [2011] VSC 329
Re Australian Gas Light Company (2006) 57 ACSR 67
In the matter of Lend Lease Primelife Ltd; In the matter of Lend Lease Villages Responsible Entity Ltd (2009) 27 ACLC 1,831

Date of hearing: Determined on the papers

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 14

Counsel for the Plaintiff: Mr SK Dharmananda SC with Mr AJ Papamatheos

Solicitor for the Plaintiff: Allen & Overy

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 89 of 2014

IN THE MATTER OF NEXUS ENERGY LIMITED ACN 058 818 278

NEXUS ENERGY LIMITED (ACN 058 818 278)
Plaintiff

JUDGE:

GILMOUR J

DATE OF ORDER:

28 MAY 2014

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The supplementary disclosure being the document marked “LDM2” to the affidavit of Lucio Della Martina affirmed on 23 May 2014 (Supplementary Disclosure), be and is approved for distribution to the plaintiff’s shareholders.
2.Nexus Energy Limited (Nexus) is to dispatch to each Nexus shareholder a copy of the Supplementary Disclosure by:
(a)ordinary pre-paid post to the address on the Nexus register of members maintained by Computershare Investor Services Pty Limited; or
(b)the nominated notification means in accordance with section 249J of the Corporations Act 2001 (Cth).

3.Dispatch of the documents referred to in paragraph 2 of these Orders in accordance with the stated delivery methods on or before 29 May 2014 is to be taken to be sufficient notice for the meeting convened by the Court for the purposes of considering the scheme of arrangement between Nexus and its shareholders to be held on 12 June 2014 at 11.00am (Melbourne time) in Promenade Rooms 2 & 3 of the Crown Promenade Hotel at Level 1, 8 Whiteman Street, Southbank, Victoria.
4.The plaintiff is to lodge an office copy of these Orders with the Australian Securities and Investments Commission (ASIC) as soon as practicable after these orders are made.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 89 of 2014

IN THE MATTER OF NEXUS ENERGY LIMITED ACN 058 818 278

NEXUS ENERGY LIMITED (ACN 058 818 278)
Plaintiff

JUDGE:

GILMOUR J

DATE:

28 MAY 2014

PLACE:

PERTH

REASONS FOR JUDGMENT

The Court made orders on 7 May 2014 at the first court hearing of this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Nexus Energy Ltd

Details

AGLC: Re Nexus Energy Ltd [2014] FCA 558
Case: [2014] FCA 558
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Nexus Energy Limited sought orders under section 1319 of the Corporations Act 2001 (Cth) for additional disclosures to be made to its shareholders regarding the intentions of Seven Group Holdings Limited (SGH) not to increase the scheme consideration. This request was made in the context of a proposed scheme of arrangement between Nexus and its shareholders. The central issue before the Court was whether the Court should approve and order the distribution of supplementary disclosure material to Nexus shareholders, given that SGH had announced it would not increase the offer price.

The Court considered the authority under section 1319 of the Corporations Act, which allows the Court to give directions concerning the convening, holding, and conduct of meetings ordered by the Court, including the authorisation of additional disclosures. The Court noted the importance of the Australian Securities and Investments Commission's (ASIC) request that Nexus bring to the attention of its shareholders SGH's announcement that it would not increase the scheme consideration, as per the ASIC "truth in takeovers" policy. The Court also reviewed the affidavits submitted by representatives of Nexus and ASIC, which detailed the relevant background and the proposed supplementary disclosure. Justice Gilmour concluded that the supplementary disclosure should be approved for distribution to the shareholders. This was deemed necessary to ensure that shareholders were fully informed of SGH's intentions and the implications thereof.

The Court ordered that the supplementary disclosure, referred to as "LDM2," be distributed to Nexus shareholders by ordinary pre-paid post or through the nominated notification means. The dispatch was to be completed by 29 May 2014, ensuring that it would be sufficient notice for the meeting convened by the Court on 12 June 2014. Furthermore, Nexus was directed to lodge an office copy of these orders with ASIC as soon as practicable after the orders were made.

Orders