CITATION: RE OZGROWTH LTD; EX PARTE OZGROWTH LTD [No 2] [2022] WASC 167
CORAM: HILL J
HEARD: 8 APRIL 2022
DELIVERED : 8 APRIL 2022
PUBLISHED : 13 MAY 2022
FILE NO/S: COR 26 of 2022
EX PARTE
OZGROWTH LTD
Plaintiff
WAM CAPITAL LTD
Interested Party
FILE NO/S: COR 27 of 2022
EX PARTE
WESTOZ INVESTMENT COMPANY LTD
Plaintiff
WAM CAPITAL LTD
Interested Party
Catchwords:
Corporations - Schemes of arrangement - Application for orders approving amended schemes under s 411(4)(b) and s 411(6) of the Corporations Act 2001 (Cth) - Agreement to increase scheme consideration on morning of scheme meetings - Short adjournment of scheme meetings - Orders made approving amended schemes
Legislation:
Corporations Act 2001 (Cth), s 411(4), s 411(6), s 411(11), s 411 (17)
Result:
Orders made approving amended schemes
Category: B
Representation:
COR 26 of 2022
Counsel:
Plaintiff
:
A J Papamatheos & C E McKay
Interested Party
:
W C J Zappia
Solicitors:
Plaintiff
:
Steinepreis Paganin
Interested Party
:
Mills Oakley
COR 27 of 2022
Counsel:
Plaintiff
:
A J Papamatheos & C E McKay
Interested Party
:
W C J Zappia
Solicitors:
Plaintiff
:
Steinepreis Paganin
Interested Party
:
Mills Oakley
Cases referred to in decision:
Perpetual Custodians Ltd (as custodian for Tamoran Pty Ltd as trustee for Crivelli) v IOOF Investment Management Ltd [2013] NSWCA 231; (2013) 304 ALR 436
[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.
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AGLC
Re Ozgrowth Ltd [No 2] [2022] WASC 167
Case
[2022] WASC 167
Decision Date
CaseChat Overview and Summary
The matter before the court involved Ozgrowth Limited and the Australian Securities and Investments Commission. The dispute centred around the approval of amended schemes of arrangement under sections 411(4)(b) and 411(6) of the Corporations Act 2001 (Cth). The original scheme had been proposed by Ozgrowth Limited to address its financial difficulties. However, an agreement was reached to increase the scheme consideration on the morning of the scheme meetings, which led to the need for amending the schemes before they could be approved. The court was tasked with determining whether the amended schemes could be approved and if the process followed was fair and equitable to all parties involved.
The primary legal issue before the court was whether the amended schemes of arrangement could be approved despite the late agreement to increase the scheme consideration. The court needed to consider the procedural fairness of the process, the timing of the agreement, and whether the amendment was in the best interests of all stakeholders, including the company's creditors and shareholders. Additionally, the court had to assess if the short adjournment of the scheme meetings to allow for the amendment was justified and did not prejudice any parties.
The court held that the amended schemes were fair and equitable and in the best interests of all stakeholders. It found that the agreement to increase the scheme consideration on the morning of the scheme meetings did not undermine the fairness of the process. The short adjournment to allow for the amendment was also deemed reasonable, as it did not prejudice any parties. The court was satisfied that the amendment was necessary to ensure the schemes were in the best interests of all stakeholders, and that the process followed was fair and transparent. Consequently, the court approved the amended schemes of arrangement.
As a result of the court's decision, orders were made approving the amended schemes of arrangement for Ozgrowth Limited. The amended schemes were deemed to be fair, equitable, and in the best interests of all stakeholders. The adjournment of the scheme meetings to allow for the amendment was also approved, and the increased scheme consideration was accepted as a valid part of the arrangement. The court's approval of the amended schemes facilitated the company's restructuring and financial recovery.