Re Oklo Resources Ltd; [No 2] - [2022] WASC 313

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE OKLO RESOURCES LTD; EX PARTE OKLO RESOURCES LTD [No 2] [2022] WASC 313
CORAM:   HILL J
HEARD:   7 SEPTEMBER 2022
DELIVERED          :   7 SEPTEMBER 2022
PUBLISHED           :   14 SEPTEMBER 2022
FILE NO/S:   COR 131 of 2022

EX PARTE
OKLO RESOURCES LTD
Plaintiff
B2GOLD CORP
Interested Party

Catchwords:

Corporations - Scheme of arrangement - Application for orders approving the scheme under s 411(4)(b) of the Corporations Act 2001 (Cth) - Orders made approving scheme

Legislation:

Corporations Act 2001 (Cth), s 411(4)(b), s 411(6), s 411(11), s 411(17)

Result:

Orders made approving scheme

Category: B

Representation:

Counsel:

Plaintiff	:	A J Papamatheos & C E McKay
Interested Party	:	J Y Wang

Solicitors:

Plaintiff	:	Thomson Geer - Perth
Interested Party	:	King & Wood Mallesons

Case(s) referred to in decision(s):

Re Amcor Ltd [No 2] [2019] FCA 842
Re Beadell Resources Ltd [No 2] [2019] WASC 53
Re International Goldfields Ltd [2004] WASC 112
Re Oklo Resources Ltd [2022] WASC 289
Re Ozgrowth Ltd [No 2] [2022] WASC 167
Re Seven Network Ltd [No 3] [2010] FCA 400; (2010) 267 ALR 583
Re TriAusMin Limited [No 2] [2014] FCA 833
Re Vimy Resources Ltd [No 2] [2022] WASC 257
Re Wesfarmers Ltd [No 2] [2018] WASC 357
Re Western Areas Ltd [No 2] [2022] WASC 198

HILL J:

The plaintiff, Oklo Resources Limited (Oklo), applies for orders approving a proposed scheme of arrangement (Scheme). The background to the matter is set out in the judgment I delivered following the first court hearing.[1] At the first court hearing on 28 July 2022, I made orders for the Scheme meeting to be convened on 1 September 2022 (Orders).
[1] Re Oklo Resources Ltd [2022] WASC 289.

Scheme meeting

The Scheme meeting was convened and held on 1 September 2022. At the meeting, the resolution was passed by the requisite statutory majorities.
75 shareholders were present at the Scheme meeting in person and by proxy, comprising approximately 6.68% of shareholders by number.[2] 92% of shareholders who voted at the meeting were in favour of the resolution.[3] 99.78% of votes cast on the Scheme resolution were cast in favour of the resolution.[4]
[2] Affidavit of Vanessa McAuley filed 2 September 2022 [17], 'VM-01'.
[3] Affidavit of Vanessa McAuley filed 2 September 2022 [31.1].
[4] Affidavit of Vanessa McAuley filed 2 September 2022 [30.1].

Approval of Scheme

This matter came back before me for the second court hearing on 7 September 2022.
In addition to the affidavits that were relied upon at the first court hearing, Oklo relied on an additional 14 affidavits filed prior to the second court hearing. These were:
(a)an affidavit of Ravi Kiran Singh Tedewala filed 2 September 2022, a senior operator employed by Computershare Communication Services Pty Limited (Computershare), in relation to the printing of a shareholder letter, proxy form, and election form (collectively, the Scheme documents);
(b)an affidavit of Danielle Maree Janette Petch filed 2 September…

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 Oklo Resources Ltd; [No 2]

Details

AGLC: Re Oklo Resources Ltd; [No 2] [2022] WASC 313
Case: [2022] WASC 313
Decision Date

CaseChat Overview and Summary

In this case, Oklo Resources Limited (Oklo) sought orders approving a proposed scheme of arrangement (Scheme). The matter was heard in the Supreme Court of Western Australia and involved the approval of the Scheme by the requisite statutory majorities, which occurred at the Scheme meeting. At the second court hearing, the court had to determine whether to approve the proposed arrangement. The court considered various factors, including whether the members voted in good faith and not for an improper purpose, whether the proposal was fair and reasonable, and whether there was full and frank disclosure of all information material to the members' decision.

The court was satisfied that all statutory and procedural requirements had been satisfied, including the convening and holding of the Scheme meeting in accordance with the court's earlier orders, the passing of resolutions with the requisite statutory majorities, and the compliance of Oklo with the court's earlier orders. Additionally, ASIC had no objection to the proposed Scheme under s 411(17) of the Corporations Act 2001 (Cth) (Act).

Regarding the discretionary considerations, the court found that there was no evidence that the Oklo shareholders voted for an improper purpose, and the proposed Scheme was fair and reasonable. The court was also satisfied that the plaintiff had brought to its attention all matters that could be considered relevant to the exercise of the court's discretion. The court concluded that the proposed Scheme was of such a nature that there was no apparent reason it should not receive approval if the requisite voting majorities were achieved at the Scheme meeting.

Based on these findings, the court made orders approving the proposed Scheme. The orders were made in terms of 'Annexure A' of the judgment.

Orders