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

1. The Court made orders on 7 May 2014 at the first court hearing of this matter to convene a meeting of the shareholders of the plaintiff in Melbourne on 12 June 2014 to consider a proposed scheme of arrangement. 

2. Since the first court hearing on 7 May 2014, there has been a development about the acquirer's intentions not to increase the scheme consideration which the Australian Securities and Investments Commission (ASIC) has requested that the plaintiff bring to the attention of its shareholders.

3. ASIC has requested that this be by dispatch of information additional to the Scheme Booklet already approved by the Court.

4. Pursuant to s 1319 of the Corporations Act 2001 (Cth), Nexus seeks orders concerning supplementary disclosure. These are set out in a minute of proposed orders lodged by Nexus.

   Basis for the relief sought

5. Section 1319 of the Corporations Act provides that:

   Where, under this Act, the Court orders a meeting to be convened, the Court may, subject to this Act, give such directions with respect to the convening, holding or conduct of the meeting, and such ancillary or consequential directions in relation to the meeting, as it thinks fit.

6. Under this section the Court can give ancillary or consequential directions in relation to court-ordered meetings, including, for example, to vacate or vary orders made under s 411 in relation to meetings in respect of a scheme of arrangement, adjourn a meeting convened under that section or authorise the dispatch of further explanatory material in respect of such a meeting: 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; Re Cellestis Limited (No 2) [2011] VSC 329.

   Announcement of SGH's intentions

7. The relevant background is set out in the affidavits of Meredith Nancy Campion affirmed 23 May 2014 (Campion affidavit) and Lucio Della Martina affirmed 23 May 2014 (Della Martina affidavit) and can be summarised as follows.

8. On 8 May 2014, Seven Group Holdings Limited (SGH) made an announcement to the Australian Stock Exchange that it did not intend to increase the scheme consideration from 2 cents per share and acknowledged it would be bound to this statement in accordance with ASIC's "truth in takeovers" policy (SGH Intentions Announcement).

9. On 15 May 2014, a representative of ASIC indicated to solicitors for the plaintiff that the SGH Intentions Statement should be provided to all shareholders of the plaintiff with an explanation of the implications of it from the board of the plaintiff (together, the Supplementary Disclosure).

10. On 23 May 2014, ASIC confirmed it was content that the Supplementary Disclosure, provided to it, be sent to Nexus' shareholders.  The board of Nexus resolved that, subject to the approval of the Court, the proposed supplementary disclosure should be sent to the Nexus shareholders.

    The ASIC truth in takeovers policy

11. ASIC Regulatory Guide 25 titled "Takeovers: false and misleading statements" provides in Part A guidance as to "Last and final statements".

12. ASIC states at RG 25.4:

    A market participant that makes a last and final statement and then seeks to depart from it risks:

    (a)regulatory action by us for contravention of misleading or deceptive conduct provisions, particularly s670A and 1041H; or

    (b)an application by us or another party to the Takeovers Panel for a declaration of unacceptable circumstances.

    A "last and final statement" is a statement made by a market participant that it will or will not do something in the course of the bid. One example is a statement by a bidder that it will not improve the consideration offered under its bid ("no increase statement"): for other examples see RG 25.21-RG 25.34.

    Nexus will bring the matter to the attention of members

13. Nexus intends to bring to shareholders' attention the Supplementary Disclosure by:

    (a)release of the Supplementary Disclosure as an announcement to the Australian Stock Exchange;

    (b)sending the Supplementary Disclosure by post and other electronic means as ordered by the Court;

    (c)ensuring that the Supplementary Disclosure is distributed to attendees at the Scheme Meeting.

    Orders

14. I am satisfied that there should be orders in terms of the minute of proposed orders.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:       28 May 2014