Re Sirtex Medical Ltd

The case before the court was an application by Sirtex Medical Limited (the plaintiff) to convene a meeting of its shareholders to consider and vote on a proposed scheme of arrangement. The defendants in the case were the Bidders and Bidco, who were seeking to acquire Sirtex through the proposed scheme. The case was heard in the Federal Court of Australia. The legal issues before the court were whether the proposed scheme was an arrangement within the meaning of s 411(1) of the Corporations Act 2001 (Cth) and whether the Australian Securities and Investments Commission (ASIC) had had a reasonable opportunity to examine the terms of the proposed scheme and make submissions to the court. The court found that the proposed scheme was an arrangement within the meaning of the Act and that ASIC had had a reasonable opportunity to examine the scheme and make submissions to the court. The court also found that the scheme booklet provided adequate disclosure and contained the prescribed information required by s 412(1)(a) of the Act. The court therefore made the orders sought by Sirtex, including convening a meeting of its shareholders to consider and vote on the proposed scheme. The court held that, at the first hearing, it should order the convening of the scheme meeting and approve the scheme booklet if it was satisfied that the proposed scheme was an arrangement in respect of which the court may order a meeting of the members, ASIC had had a reasonable opportunity to examine the terms of the scheme and the scheme booklet and make submissions to the court in relation to those matters, the scheme booklet provided adequate disclosure and contained the prescribed information, the procedural requirements of the Federal Court (Corporations) Rules 2000 (Cth) had been met, and there was no apparent reason why the scheme should not, in due course, receive the court’s approval if the necessary majority of votes were achieved. The court also noted that the scheme was bona fide and properly proposed, as evidenced by the unanimous recommendation of the directors, the inclusion of the independent expert report in the scheme booklet, and the deposit of $220 million with an Australian bank to be held as escrow agent for Sirtex and the Bidders. The court therefore made the orders sought by Sirtex, including convening a meeting of its shareholders to consider and vote on the proposed scheme.