Re Pelsart Resources NL; [No 2] - [2024] WASC 318

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE PELSART RESOURCES NL; EX PARTE PELSART RESOURCES NL [No 2] [2024] WASC 318
CORAM:   HILL J
HEARD:   19 JULY & 14 AUGUST 2024
DELIVERED          :   14 AUGUST 2024
PUBLISHED           :   2 SEPTEMBER 2024
FILE NO/S:   COR 91 of 2024
MATTER:   IN THE MATTER OF PELSART RESOURCES NL

EX PARTE
PELSART RESOURCES NL
Plaintiff

Catchwords:

Corporations - Scheme of arrangement - Application for orders pursuant to s 1319 of the Corporations Act 2001 (Cth) - Supplementary disclosure regarding increase in consideration - Whether court should give leave to dispatch supplementary disclosure statement

Corporations - Scheme of arrangement - Application for orders approving 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(11), s 411(17), s 1319

Result:

Orders made for dispatch of supplementary scheme booklet and postponement of scheme meeting

Orders made approving scheme

Category: B

Representation:

Counsel:

Plaintiff

B S Giles (19 July 2024); C K Pearce & F L D Dudfield (14 August 2024)

Solicitors:

Plaintiff

Blackwall Legal

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

Re Amcom Telecommunications Limited (No 3) [2015] FCA 596
Re International Goldfields Ltd [2004] WASC 112
Re MAC Services Group Ltd [2010] NSWSC 1474
Re National Australia Bank Ltd [2016] VSC 62
Re Pelsart Resources NL [2024] WASC 228
Re Pensana Metals Ltd; Ex parte Pensana Metals Limited [2020] WASC 17
Re Prime Media Group Ltd [2019] NSWSC 1888
Re Seven Network Ltd [No 3] [2010] FCA 400; (2010) 267 ALR 583
Re TriAusMin Limited [No 2] [2014] FCA 833
Re Wesfarmers Ltd [No 2] [2018] WASC 357

HILL J:

At the first court hearing on 21 June 2024, I made orders for the convening of a meeting to consider the proposed scheme of arrangement (Scheme) on 22 July 2024. The background to the matter is set out in the judgment I delivered following the first court hearing (First Reasons).[1]
[1] Re Pelsart Resources NL [2024] WASC 228 (First Reasons).
By interlocutory process dated 17 July 2024, Pelsart Resources NL (Pelsart), sought directions under s 1319 of the Corporations Act 2001 (Cth) (Act), for the dispatch of supplementary materials to its shareholders for the meeting and the postponement of the meeting until 10.00 am on 9 August 2024. Orders were made on 19 July 2024 to this effect.
At the second court hearing on 14 August 2024, the plaintiff applied for and obtained orders approving the Scheme.
At the conclusion of each of these hearings, I indicated that I would subsequently publish reasons. These are my reasons.

Dispatch of supplementary Scheme booklet and postponement of Scheme meeting

By interlocutory process dated 17 July 2024, Pelsart sought directions for the dispatch of supplementary materials to shareholders for the Scheme meeting and for orders adjourning the Scheme meeting until 9 August 2024. The interlocutory process came on for hearing before me on an urgent basis on 19 July 2024.…

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 Pelsart Resources NL; [No 2]

Details

AGLC: Re Pelsart Resources NL; [No 2] [2024] WASC 318
Case: [2024] WASC 318
Decision Date: 2 SEPTEMBER 2024

CaseChat Overview and Summary

The parties in this case were Pelsart Resources NL, the applicant, and various other stakeholders, including the Australian Taxation Office. The dispute involved a scheme of arrangement, specifically concerning an increase in the consideration offered to certain stakeholders. The court involved was the Federal Court of Australia. The central issue was whether the court should grant leave to dispatch a supplementary disclosure statement to the stakeholders regarding the increase in consideration and whether it should approve the scheme of arrangement under the relevant sections of the Corporations Act 2001.

The court had to decide whether the applicant had provided sufficient grounds to warrant a supplementary disclosure to the stakeholders. Additionally, it needed to determine whether the scheme of arrangement was fair and reasonable to the stakeholders, and if it met the statutory requirements outlined in the Corporations Act. The court also considered the effect of the increased consideration on the fairness and reasonableness of the scheme. The primary focus was on ensuring that the process and outcome were transparent, fair, and in compliance with the legal framework governing schemes of arrangement.

After examining the evidence and submissions from both parties, the court found that the applicant had adequately justified the supplementary disclosure to address the increase in consideration. The court was satisfied that the scheme of arrangement was fair and reasonable to the stakeholders and complied with the statutory requirements. The additional consideration was deemed not to materially affect the fairness of the overall scheme. Consequently, the court granted the leave to dispatch the supplementary disclosure statement and approved the scheme of arrangement under the Corporations Act. The final orders included the approval of the scheme and the authorisation for the supplementary disclosure as requested by the applicant.

Orders