FEDERAL COURT OF AUSTRALIA
OPUS Group Limited, in the matter of OPUS Group Limited [2018] FCA 959
File number(s): WAD 310 of 2018 Judge(s): BANKS-SMITH J Date of judgment: 26 July 2018 Date of publication: 27 July 2018 Catchwords: CORPORATIONS – scheme of arrangement – application under s 411(1) of the Corporations Act 2001 (Cth) to convene a meeting to consider a proposed scheme of arrangement – proposed redomiciliation from Australia to Bermuda – orders made Legislation: Corporations Act 2001 (Cth) ss 411
Corporations Regulations 2001 (Cth)
Cases cited: Amcom Telecommunications Ltd, in the matter of Amcom Telecommunications Ltd [2015] FCA 341
Brambles Industries Ltd, in the matter of Brambles Industries [2006] FCA 1273; (2006) 59 ACSR 501
Brambles Industries Ltd, in the matter of Brambles Industries (No 2) [2006] FCA 1719
EcoBiotics Limited, in the matter of EcoBiotics Limited [2017] FCA 643
MDA National Ltd v Medical Defence Australia Ltd (2014) FCA 954
Programmed Maintenance Services Ltd, in the matter of Programmed Maintenance Services Ltd [2017] FCA 1265
Re APN News & Media [2007] FCA 770; (2007) 62 ACSR 400
Re CSR Limited [2003] FCA 82; (2003) 45 ACSR 34
Re Heartware Limited [2008] FCA 1997
Re Hostworks Group Ltd [2008] FCA 64; (2008) 26 ACLC 137
Re Marengo Mining Ltd (No 2) [2012] FCA 1498
Re Westfield Holdings Ltd [2004] NSWSC 458; (2004) 49 ACSR 734, 736
Signature Gold Ltd, in the matter of Signature Gold Ltd [2017] FCA 1481
Date of hearing: 26 July 2018 Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 40 Counsel for the Plaintiff: Mr SK Dharmananda SC with Mr JY Wang Solicitor for the Plaintiff: King and Wood Mallesons ORDERS
WAD 310 of 2018 IN THE MATTER OF OPUS GROUP LIMITED (ACN 006 162 876)
OPUS GROUP LIMITED (ACN 006 162 876)
PlaintiffJUDGE:
BANKS-SMITH J
DATE OF ORDER:
26 JULY 2018
THE COURT ORDERS THAT:
1.The plaintiff convene a meeting of holders of fully paid ordinary shares (Shares) in the capital of the plaintiff (Shareholders) as at 7pm AEST on 4 September 2018 for the purpose of considering and, if thought fit, approving (with or without amendment) the proposed scheme of arrangement (Scheme) which is Annexure C to the typeset version of the draft scheme booklet and explanatory statement, being Annexure ABVM-10 to the affidavit of Ana Brenda Valdez Martinez sworn and filed on 26 July 2018 (Scheme Booklet), and such meeting to be held at 11am AEST at Club Rivers, 32 Littleton Street, Riverwood, New South Wales on 6 September 2018 or such other date as the Court may approve (Scheme Meeting).
2.Subject to these orders, the Scheme Meeting is to be convened, held and conducted in accordance with:
(a)the provisions of Part 2G.2 of the Corporations Act 2001 (Cth) that apply to members of a company and the provisions of the plaintiff’s constitution that are not inconsistent therewith,…
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- AGLC
- Re Opus Group Limited [2018] FCA 959
- Case
- [2018] FCA 959
- Decision Date
CaseChat Overview and Summary
The Court considered the scheme to be bona fide as it had the primary purpose of benefiting the company's shareholders and was not being used as a device to circumvent legal obligations. The Court also found that all relevant matters had been addressed, including the requirement for ASIC to have a reasonable opportunity to examine the terms of the proposed scheme. The Court was satisfied that the scheme was fair and reasonable to the shareholders, and that the notice and other procedural requirements had been met. Accordingly, the Court made the orders sought by Opus Group Limited, including convening the meeting, approving the scheme booklet for distribution, and allowing the conduct of the scheme meeting in accordance with the Corporations Act and the company's constitution. The Court also made orders regarding the notice of the meeting, the appointment of a chairperson, the conduct of voting, and the dispatch of the scheme booklet to shareholders.
Orders
Orders of the court
1. The plaintiff convene a meeting of holders of fully paid ordinary shares (Shares) in the capital of the plaintiff (Shareholders) as at 7pm AEST on 4 September 2018 for the purpose of considering and, if thought fit, approving (with or without amendment) the proposed scheme of arrangement (Scheme) which is Annexure C to the typeset version of the draft scheme booklet and explanatory statement, being Annexure ABVM-10 to the affidavit of Ana Brenda Valdez Martinez sworn and filed on 26 July 2018 (Scheme Booklet), and such meeting to be held at 11am AEST at Club Rivers, 32 Littleton Street, Riverwood, New South Wales on 6 September 2018 or such other date as the Court may approve (Scheme Meeting).
2. Subject to these orders, the Scheme Meeting is to be convened, held and conducted in accordance with:
(a) the provisions of Part 2G.2 of the Corporations Act 2001 (Cth) that apply to members of a company and the provisions of the plaintiff’s constitution that are not inconsistent therewith, and that apply to meetings of members; and
(b) the notice of meeting in the form or to the effect of the notice contained in Annexure E of the Scheme Booklet.
3. Pursuant to section 1319 of the Corporations Act Rule 2.15 of the Federal Court (Corporations) Rules 2000 (Cth) shall not apply to the Scheme Meeting.
4. Mr Richard Francis Celarc or, failing him, Mr Paul Antony Young is to be appointed to act as chairperson of the Scheme Meeting (Chairperson) and report the result of the Scheme Meeting to this Court.
5. The Chairperson can adjourn the Scheme Meeting in his absolute discretion for such time that the Chairperson thinks appropriate, to a time and place to be advised by the Chairperson.
6. Two shareholders present in person or by proxy, corporate representative or attorney under power and entitled to vote shall constitute a quorum for the Scheme Meeting.
7. Voting on the resolution to approve the Scheme is to be conducted by way of poll.
8. At the Scheme Meeting each Shareholder present and entitled to vote, will be entitled to one vote for each fully paid ordinary share in the capital of the plaintiff that the Shareholder is registered as holding at 7pm AEST on 4 September 2018.
9. The Scheme Booklet, which contains an explanatory statement required by Section 412(1)(a) of the Corporations Act, be and is hereby approved subject to:
(a) correcting any minor typographical errors;
(b) any minor amendments required or approved by the Australian Securities and Investments Commission (ASIC) for registration under section 412(6) of the Corporations Act; and
(c) adopting any amendments approved by the Court.
10. Subject to registration of the Scheme Booklet with the ASIC pursuant to section 412(6) of the Corporations Act, the plaintiff is to dispatch the Scheme Booklet by no later than 6 August 2018, substantially in the form approved under order 9 above, together with a Proxy Form in respect of the Scheme Meeting, being substantially in the form of Annexure RFC-4 to the affidavit of Mr Richard Francis Celarc to the Shareholders who appear on the register of members on 6 August 2018:
(a) subject to paragraph (c) below, in the case of each Shareholder who has a registered address in Australia, by dispatching by pre-paid post, parcel post or courier;
(b) subject to paragraph (c) below, in the case of each Shareholder who has a registered address outside Australia, by dispatching by pre-paid airmail or air courier; and
(c) in the case of each Shareholder who has nominated an electronic address for the purpose of receiving notifications of notices of any meetings from Boardroom Pty Ltd, by sending an email containing a URL link to the Scheme Booklet and Proxy Form to the email address nominated by that Shareholder.
11. Dispatch of the documents referred to in paragraph 10 of these orders in accordance with their terms is to be taken to be sufficient notice of the Scheme Meeting.
12. The time by which Shareholders must return their proxy forms for the Scheme Meeting is 11:00am (AEST) on 4 September 2018.
13. Leave be given to the plaintiff to make application for orders under sections 411(4) and 411(6) of the Corporations Act following the Scheme Meeting for approval of the Scheme to be heard at 10:15am on Thursday, 13 September 2018 or such other date as the Court sees fit to set for such purpose.
14. The plaintiff is to give notice of the hearing of the application pursuant to section 411(4)(b) of the Corporations Act for orders approving the Scheme by publishing an advertisement in the public notices column of 'The Australian' and 'The Sydney Morning Herald' newspapers substantially in the form of Annexure A to these orders, such advertisement to be published on or before 4 September 2018 and the plaintiff otherwise be exempted from compliance with rule 3.4 of the Federal Court (Corporations) Rules.
15. There be liberty to apply upon the giving of 48 hours notice to ASIC.
16. An office copy of these orders shall be lodged with 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.
Annexure A
OPUS GROUP LIMITED ACN 006 162 876
Notice of hearing to approve Scheme of Arrangement pursuant to section 411 of the Corporations Act 2001 (Cth)
TO all the members of OPUS Group Limited (OPUS)
TAKE NOTICE that at 10:15am on 13 September 2018 the Federal Court of Australia at the Peter Durack Commonwealth Law Courts Building, 1 Victoria Avenue, PERTH WA will hear an application by OPUS seeking the approval of a scheme of arrangement between OPUS and its ordinary shareholders to be proposed by resolution at the meeting of its members to be held at 11:00am (AEST) on 6 September 2018 at Club Rivers, 32 Littleton Street, Riverwood, New South Wales.
If you wish to oppose the approval of the proposed scheme of arrangement, you must file and serve on OPUS a notice of appearance, in the prescribed form, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served on OPUS at its address for service at least 1 day before the date fixed for the hearing of the application.
The address for service of OPUS is c/- King & Wood Mallesons, Level 30, QV.1 Building, 250 St Georges Terrace, PERTH WA 6000.
King & Wood Mallesons, solicitors for OPUS, the plaintiff.
A copy of the scheme booklet is available from OPUS’s website at http://opusgroup.com.au/InvestorCentre/.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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