Re NTM Gold Ltd; [No 2] - [2021] WASC 58

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE NTM GOLD LTD; EX PARTE NTM GOLD LTD [No 2] [2021] WASC 58
CORAM:   VAUGHAN J
HEARD:   5 MARCH 2021
DELIVERED          :   5 MARCH 2021
PUBLISHED           :   5 MARCH 2021
FILE NO/S:   COR 155 of 2020
BETWEEN:   NTM GOLD LIMITED
Plaintiff

Catchwords:

Corporations law – Scheme of arrangement – Application for orders pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) – Whether statutory and procedural requirements observed – Whether court ought to exercise its discretion to approve the scheme – Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 411(1), s 411(4)(b), s 411(17)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff

A J Papamatheos & S P Tomasich

Solicitors:

Plaintiff

Steinepreis Paganin

Cases referred to in decision:

Re NTM Gold Ltd; Ex parte NTM Gold Ltd [2021] WASC 22
Re Wesfarmers Ltd; Ex parte Wesfarmers Ltd [No 2] [2018] WASC 357

VAUGHAN J:

Overview

On 27 January 2021 I made orders pursuant to s 411(1) of the Corporations Act 2001 (Cth) (Act) to convene a meeting of the holders of fully paid ordinary shares in NTM Gold Ltd (NTM). The meeting was convened to consider a proposed scheme of arrangement whereby Dacian Gold Ltd (Dacian) would acquire 100% of the share capital of NTM by way of a merger scheme of arrangement. I also made orders approving distribution of a scheme booklet.
The scheme meeting was held on 3 March 2021. A resolution to approve the proposed scheme of arrangement was passed by the requisite majorities. The NTM members approved the scheme of arrangement by 99.9% of votes cast and 96.11% of members present in person or by proxy.
This morning application was made pursuant to s 411(4)(b) of the Act for orders approving the scheme. I made orders approving the proposed scheme of arrangement. These are my reasons for those orders.

Background and additional evidence

I gave reasons for my 27 January 2021 orders in Re NTM Gold Ltd: Ex parte NTM Gold Ltd.[1]
[1] Re NTM Gold Ltd: Ex parte NTM Gold Ltd [2021] WASC 22.
I do not intend to repeat what was said in those reasons. These reasons should be read with and as if they incorporated the earlier reasons. In particular, I rely on what was stated in the earlier reasons as to:
1.The relevant entities, NTM and Dacian ([1] ‑ [2], [7] ‑ [10]).
2.The announcement of the merger acquisition proposal ([2], [10] ‑ [12]).
3.The nature of the proposed scheme of arrangement ([2], [10] ‑ [12], [17] ‑ [30], [41] ‑ [44], [54] ‑ [63]).
4.The description of the scheme booklet ([31] ‑ [33]) and the disclosure provided in the scheme booklet – including as to director benefits ([46] ‑ [52], [61], [69](3), [83]).
5.The opinion expressed in the independent expert report (IER) ([24] ‑ [30], [50]).
6.The recommendation of NTM's directors and the director benefits that may accrue to the directors ([16],…

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; [No 2]

Details

AGLC: Re NTM Gold Ltd; [No 2] [2021] WASC 58
Case: [2021] WASC 58
Decision Date

CaseChat Overview and Summary

NTM Gold Limited, a Western Australian-based gold mining company, sought orders to approve a scheme of arrangement whereby Dacian Gold Ltd, another gold mining company, would acquire 100% of NTM's share capital through a merger scheme. The scheme was approved by NTM's shareholders at a meeting held on 3 March 2021. The court was required to decide whether to exercise its discretion to approve the proposed scheme of arrangement, having regard to the statutory and procedural requirements under s 411(4)(b) of the Corporations Act 2001 (Cth), and other relevant considerations. The court found that all statutory and procedural requirements had been satisfied, including the receipt of a 'no objection' letter from the Australian Securities and Investments Commission. The court was also satisfied that the scheme was fair and reasonable, and that there was no oppression of minority shareholders or any breach of public policy. Given the overwhelming support for the scheme by NTM's shareholders, the court exercised its discretion to approve the scheme. The court also made an order exempting NTM from the requirement to annex the orders approving the scheme to its constitution under s 411(11) of the Act.

The court approved the proposed scheme of arrangement between NTM Gold Limited and its shareholders, as well as making an order exempting NTM from the requirement to annex the orders approving the scheme to its constitution. The orders were to be lodged with the Australian Securities and Investments Commission by 8 March 2021.

Orders