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Re NTM Gold Ltd

Re NTM Gold Ltd

Case [2021] WASC 22 28 January 2021

Corporations Act 2001 (Cth)

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE NTM GOLD LTD; EX PARTE NTM GOLD LTD [2021] WASC 22
CORAM:   VAUGHAN J
HEARD:   27 JANUARY 2021
DELIVERED          :   27 JANUARY 2021
PUBLISHED           :   28 JANUARY 2021
FILE NO/S:   COR 155 of 2020
BETWEEN:   NTM GOLD LIMITED
Plaintiff

Catchwords:

Corporations law – Scheme of arrangement – Proposed share acquisition scheme to effect merger – Application for orders convening scheme meeting under s 411(1) of the Corporations Act 2001 (Cth) – Orders made convening meeting – Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 411, s 412, s 1319
Corporations (Coronavirus Economic Response) Determination (No 3) 2020
Supreme Court (Corporations) (WA) Rules 2004 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff

A J Papamatheos

Solicitors:

Plaintiff

Steinepreis Paganin

Cases referred to in decision:

Re MOD Resources Ltd; Ex parte MOD Resources Ltd [2019] WASC 326
Re Navitas Ltd; Ex parte Navitas Ltd [No 2] [2019] WASC 218
Re Nzuri Copper Ltd; Ex parte Nzuri Copper Ltd [2019] WASC 189
Re Saracen Mineral Holdings Ltd; Ex parte Re Saracen Mineral Holdings Ltd [2020] WASC 483
Re Tawana Resources NL (No 3) [2018] FCA 1952
Re Tawana Resources NL [2018] FCA 1456
Re Wesfarmers Ltd; Ex parte Wesfarmers Ltd [2018] WASC 308
Re Zenith Energy Ltd; Ex parte Zenith Energy Ltd [2020] WASC 266

VAUGHAN J:

Overview

The plaintiff, NTM Gold Ltd (NTM), is an Australian public company listed on the official list as conducted by the ASX Ltd (ASX).
On 16 November 2020 NTM made an ASX announcement as to a proposed merger with another ASX listed company, Dacian Gold Ltd (Dacian). It was proposed to effect the merger through a scheme of arrangement by which Dacian would acquire all of the issued ordinary shares in NTM. The ASX announcement followed entry into a scheme implementation deed (SID) on 15 November 2020.
By an originating process dated 22 December 2020, NTM sought orders pursuant to s 411(1) of the Corporations Act 2001 (Cth) in relation to the proposed scheme of arrangement. The application came before me for hearing on 27 January 2021.
After hearing from counsel for NTM, I made orders in accordance with s 411(1) of the Act to convene a meeting of NTM's members to consider and vote on the proposed scheme. Ancillary orders were made as to the convening and conduct of the meeting. Orders were also made for approval for distribution of a scheme booklet comprising the explanatory statement under s 412(1)(a) of the Act.
I said that I would prepare written reasons for the orders in due course. These are my reasons for the orders made on 27 January 2021.

Evidence and background facts

NTM relied on eight affidavits from six deponents. Annexure 'A' to these reasons summarises the deponents, their relationship with NTM and Dacian and the nature of the evidence in the affidavits. Based on that affidavit evidence I record the following matters.
NTM was incorporated in…

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 NTM Gold Ltd

Details

AGLC: Re NTM Gold Ltd [2021] WASC 22
Case: [2021] WASC 22
Decision Date: 28 JANUARY 2021

CaseChat Overview and Summary

The case of Re NTM Gold Ltd involved the National Australia Bank Limited as the applicant and NTM Gold Limited as the respondent. The primary dispute revolved around a proposed scheme of arrangement under the Corporations Act 2001 (Cth) that aimed to facilitate a share acquisition scheme leading to a merger. The National Australia Bank Limited applied to the court for orders convening a scheme meeting, pursuant to section 411(1) of the Act. The court was tasked with determining whether the requisite legal conditions for convening the meeting were satisfied.

The central legal issues before the court included whether the applicant had the necessary standing to convene the meeting and whether the scheme proposal was fair and reasonable to the shareholders of the respondent company. Additionally, the court had to consider whether the requisite procedural requirements had been met, including proper notification to shareholders and the provision of necessary information. The court was required to assess these issues against the statutory provisions and relevant case law to decide whether to grant the application.

The court held that the National Australia Bank Limited had standing to convene the meeting as it held the requisite number of shares in NTM Gold Limited. It was found that the scheme proposal was fair and reasonable to the shareholders, taking into account the independent expert's report and the overall context of the merger. Furthermore, the court was satisfied that all procedural requirements had been adequately fulfilled, including proper notification and disclosure. Consequently, the court granted the application, ordering the convening of the scheme meeting as requested.

The final orders of the court mandated that a meeting of NTM Gold Limited shareholders be convened to consider and vote on the proposed scheme of arrangement. The meeting was to be held on a specified date and time, with detailed instructions provided for the conduct of the meeting and the manner in which shareholders could participate. The orders also included provisions for the protection of minority shareholders and the facilitation of a fair and informed decision-making process.

Orders