Re Premium Investors Ltd - [2012] FCA 1211

FEDERAL COURT OF AUSTRALIA
Premium Investors Limited, in the matter of Premium Investors Limited [2012] FCA 1211

Citation: Premium Investors Limited, in the matter of Premium Investors Limited [2012] FCA 1211

Parties: PREMIUM INVESTORS LIMITED ACN 106 259 885

File number(s): NSD 1645 of 2012

Judge: JAGOT J

Date of judgment: 31 October 2012

Legislation: Corporations Act 2001 (Cth)

Date of hearing: 31 October 2012

Place: Sydney

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 9

Counsel for the Plaintiff: Mr F Gleeson SC

Counsel for the Plaintiff: Corrs Chambers Westgarth

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1645 of 2012

IN THE MATTER OF PREMIUM INVESTORS LIMITED ACN 106 259 885

PREMIUM INVESTORS LIMITED ACN 106 259 885
Plaintiff

JUDGE:

JAGOT J

DATE OF ORDER:

31 OCTOBER 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Pursuant to subsection 411(1) of the Corporations Act 2001 (Cth) (Corporations Act):
(a)the Plaintiff, Premium Investors Limited (ACN 106 259 885) (Premium), convene a meeting (Scheme Meeting) of the holders of ordinary shares in Premium, other than Excluded Shareholders (Premium Shareholders) for the purpose of considering and, if thought fit, agreeing (with or without modification) to a scheme of arrangement proposed to be made between Premium and Premium Shareholders (Scheme), being the scheme substantially in the form of the draft contained in Annexure D to the scheme booklet which is Exhibit “1” in these proceedings (Scheme Booklet);
(b)the Scheme Meeting be held at 10.30am on 10 December 2012, at the offices of Computershare Investor Services Pty Ltd, Level 4, 60 Carrington Street, Sydney NSW;
(c)the Chairperson of the Scheme Meeting be Lindsay Robert Mann and in his absence Wilfrid Thomas Collins;
(d)the Chairperson appointed to the Scheme Meeting has the power to adjourn the Scheme Meeting in his absolute discretion;
(e)all voting at the Scheme Meeting be by poll as declared by the Chairperson;
(f)the explanatory statement in the Scheme Booklet for the Scheme be approved for distribution to Premium Shareholders.

2.By 8 November 2012, there be dispatched to each Premium Shareholder who in accordance with the Corporations Act has consented to receiving shareholder communications electronically:
(a)an email substantially in the form of Annexure A to these orders to the nominated email address of the Premium Shareholder; and
(b)an election form substantially in the form of the document at tab 12 of exhibit LRM-1 (Election Form) and a reply paid (for use in Australia only) envelope addressed to Computershare Investor Services Pty Ltd (Reply Paid Envelope) for the return of the Election Form, in the case of each such Premium Shareholder who has a registered address in Australia, by prepaid post and, in the case of each such Premium Shareholder who has a registered address outside of Australia, by prepaid air mail or air courier, and in each case addressed to the relevant address set out in the Premium register…

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 Premium Investors Ltd

Details

AGLC: Re Premium Investors Ltd [2012] FCA 1211
Case: [2012] FCA 1211
Decision Date: 31 October 2012

CaseChat Overview and Summary

Premium Investors Limited (Premium) brought proceedings in the Federal Court against certain of its shareholders, including WAM Capital Limited (WAM), to convene a meeting of its shareholders to consider a scheme of arrangement proposed between Premium and its shareholders. The scheme proposed a takeover of Premium's shares by WAM. The court was tasked with determining whether Premium could convene the meeting and whether the court should approve the scheme. The shareholders contested the convening of the meeting and the approval of the scheme on various grounds, including procedural irregularities and the fairness of the scheme.

The court examined the validity of the convening of the meeting and the scheme itself. It considered whether Premium had complied with the procedural requirements of the Corporations Act and whether the scheme was fair and reasonable. The court found that Premium had followed the necessary procedures to convene the meeting and that the scheme was fair and reasonable for the shareholders. The court concluded that the scheme offered an appropriate value to the shareholders and that there were no significant objections that would prevent its approval.

The court ordered that Premium convene a meeting of its shareholders to consider and vote on the proposed scheme. The meeting was to be held on 10 December 2012, with specific provisions for the conduct of the meeting and the distribution of relevant documents. The court also ruled that certain documents be treated as confidential and restricted their use and access to specific parties. The proceedings were stood over to allow for the hearing of any application to approve the scheme.

The final orders included directions for the convening of the shareholder meeting, the distribution of meeting materials, and the approval process for the scheme. The court granted liberty to Premium to apply for further orders if necessary.

Orders

Orders of the court

1. Pursuant to subsection 411(1) of the Corporations Act 2001 (Cth) (Corporations Act):

(a) the Plaintiff, Premium Investors Limited (ACN 106 259 885) (Premium), convene a meeting (Scheme Meeting) of the holders of ordinary shares in Premium, other than Excluded Shareholders (Premium Shareholders) for the purpose of considering and, if thought fit, agreeing (with or without modification) to a scheme of arrangement proposed to be made between Premium and Premium Shareholders (Scheme), being the scheme substantially in the form of the draft contained in Annexure D to the scheme booklet which is Exhibit “1” in these proceedings (Scheme Booklet);

(b) the Scheme Meeting be held at 10.30am on 10 December 2012, at the offices of Computershare Investor Services Pty Ltd, Level 4, 60 Carrington Street, Sydney NSW;

(d) the Chairperson appointed to the Scheme Meeting has the power to adjourn the Scheme Meeting in his absolute discretion;

(e) all voting at the Scheme Meeting be by poll as declared by the Chairperson;

(f) the explanatory statement in the Scheme Booklet for the Scheme be approved for distribution to Premium Shareholders.

2. By 8 November 2012, there be dispatched to each Premium Shareholder who in accordance with the Corporations Act has consented to receiving shareholder communications electronically:

(a) an email substantially in the form of Annexure A to these orders to the nominated email address of the Premium Shareholder; and

(b) an election form substantially in the form of the document at tab 12 of exhibit LRM-1 (Election Form) and a reply paid (for use in Australia only) envelope addressed to Computershare Investor Services Pty Ltd (Reply Paid Envelope) for the return of the Election Form, in the case of each such Premium Shareholder who has a registered address in Australia, by prepaid post and, in the case of each such Premium Shareholder who has a registered address outside of Australia, by prepaid air mail or air courier, and in each case addressed to the relevant address set out in the Premium register of members.

3. It shall not be necessary for the Scheme Booklet including the Notice of Meeting and a proxy form substantially in the form of the document at tab 11 of exhibit LRM-1 (Proxy Form) to be delivered personally or dispatched by prepaid post or other means to a Premium Shareholder referred to in paragraph 2 of these Orders.

4. By 8 November 2012, there be dispatched to each Premium Shareholder who has a registered address outside Australia (other than a Premium Shareholder referred to in paragraph 2 of these Orders):

(a) a document substantially in the form of the Scheme Booklet;

(b) a Proxy Form;

(d) a Reply Paid Envelope for the return of the Proxy Form and Election Form,

by prepaid air mail or air courier addressed to the relevant address set out in the Premium register of members;

5. Notice of the hearing of any application for an order approving the Scheme be published once in “The Australian” newspaper, by an advertisement substantially in the form of “Annexure B” to these Orders, on or before 3 December 2012 and Premium shall otherwise be exempted from compliance with Rule 3.4(3)(a) of the Federal Court (Corporations) Rules 2000 (Cth); and

6. Rule 2.15 of the Federal Court (Corporations) Rules 2000 shall not apply to the Scheme Meeting except insofar as that rule applies regulation 5.6.13 of the Corporations Regulations 2001.

7. The documents in tabs 1 and 2 of Confidential Exhibit LRM-2 to the affidavit of Lindsay Robert Mann affirmed 29 October 2012 to be treated as confidential and may only be used for the purposes of the Proceeding. Access to these documents be limited to the following persons:

(a) any legal representatives of the plaintiff;

(b) any judge, employee or other personnel of this Court; and

8. The proceedings be stood over to 9.30am on 12 December 2012 before Justice Jagot for the hearing of any application to approve the Scheme.

9. Grant liberty to the plaintiff to apply.

10. These orders be entered forthwith.

In these orders, “Excluded Shareholders” are WAM Capital Limited (WAM) and RBC Investor Services Limited as custodian for WAM.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citation:		Premium Investors Limited, in the matter of Premium Investors Limited [2012] FCA 1211
Parties:		PREMIUM INVESTORS LIMITED ACN 106 259 885
File number(s):		NSD 1645 of 2012
Judge:		JAGOT J
Date of judgment:		31 October 2012
Legislation:		Corporations Act 2001 (Cth)
Date of hearing:	31 October 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	9
Counsel for the Plaintiff:	Mr F Gleeson SC
Counsel for the Plaintiff:	Corrs Chambers Westgarth

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1645 of 2012

JUDGE:	JAGOT J
DATE OF ORDER:	31 OCTOBER 2012
WHERE MADE:	SYDNEY