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Re Spark Infrastructure RE Ltd

Re Spark Infrastructure RE Ltd

Case [2021] NSWSC 1385 28 October 2021

Schemes of Arrangement

Judicial Review

Constitutional Validity

Corporate Law & Governance

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Spark Infrastructure RE Limited [2021] NSWSC 1385
Hearing dates: 19 October 2021
Date of orders: 19 October 2021
Decision date: 28 October 2021
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
Order made convening scheme meetings and approving the scheme booklet for distribution to shareholders. Judicial advice given that Spark RE is justified in propounding resolutions to implement the proposed trust scheme and proceeding on the basis that constitutional amendments to implement the trust scheme is within the constitutional powers of alteration conferred and s 601GC of the Corporations Act 2001 (Cth).

Catchwords:
CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meetings are satisfied.
CORPORATIONS – Managed investments – Application for judicial advice by responsible entity under s 63 of the Trustee Act 1925 (NSW) – Whether responsible entity would be justified in propounding resolutions to implement the proposed trust scheme – Whether proposed amendments are within the constitutional powers of alteration and s 601GC of the Corporations Act.

Legislation Cited:
- Corporations Act 2001 (Cth), Ch 5C; Pt 5.1; ss 411
- Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic), s 4(3)
- Trustee Act 1925 (NSW), s 63

Cases Cited:
- Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; (1993) 112 ALR 627; (1993) 10 ACSR 230; [1993] HCA 15
- Ballard v Ballard (No 2) [2020] NSWSC 1687
- F T Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69
- Permanent Trustee Co Ltd v National Australia Managers Ltd (Supreme Court of New South Wales, McLelland CJ in Eq, 8 August 1994
- Re Abacus Funds Management Ltd (2006) 24 ACLC 211; [2005] NSWSC 1309
- Re APN News & Media Ltd (2007) 62 ACSR 400; [2007] FCA 770
- Re Ardent Leisure Ltd [2018] NSWSC 1665
- Re Arthur Yates & Co Ltd (2001) 36 ACSR 758; [2001] NSWSC 40
- Re Atlas Iron Ltd (2016) 112 ACSR 554; [2015] FCA 366
- Re BINGO Industries Ltd [2021] NSWSC 798
- Re BIS Finance Pty Ltd [2017] NSWSC 1713
- Re Bolnisi Gold NL (No 2) (2007) 65 ACSR 510; [2007] FCA 2078
- Re Centrebet International Ltd [2011] FCA 870
- Re Citadel Group Ltd [2020] FCA 1580
- Re Coca-Cola Amatil Ltd [2021] NSWSC 270
- Re Cromwell Property Securities Ltd [2006] NSWSC 1449
- Re CSR Ltd (2010) 183 FCR 358; (2010) 265 ALR 703; (2010) 77 ACSR 592; [2010] FCAFC 34
- Re DUET Finance Ltd [2017] NSWSC 415
- Re DUET Management Company 1 Ltd (2013) 95 ACSR 34; [2013] NSWSC 817
- Re Ellerston…

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 Spark Infrastructure RE Ltd

Details

AGLC: Re Spark Infrastructure RE Ltd [2021] NSWSC 1385
Case: [2021] NSWSC 1385
Decision Date: 28 October 2021

CaseChat Overview and Summary

Re Spark Infrastructure RE Ltd involved the applicant, Spark Infrastructure RE Ltd, seeking judicial approval for convening meetings to consider a proposed scheme of arrangement under the Corporations Act 2001. The scheme related to the restructuring of the company's managed investments. The primary legal issues revolved around whether the statutory requirements for ordering scheme meetings were satisfied and whether the proposed trust scheme amendments fell within the constitutional powers of alteration and the Corporations Act.

The court examined the necessity and appropriateness of the proposed scheme and whether it met the legal standards for convening meetings of members. It also assessed whether the responsible entity would be justified in propounding resolutions to implement the proposed trust scheme, considering the constitutional powers of alteration and relevant sections of the Corporations Act.

In reaching its decision, the court considered the legal frameworks and the implications of the proposed scheme on the members' interests. It found that the statutory requirements for convening meetings were met and that the proposed amendments were within the constitutional powers of alteration. The court concluded that the responsible entity would be justified in propounding the resolutions, thereby approving the convening of meetings to consider the scheme.

As a result, the court ordered the convening of meetings for members to consider and, if thought fit, agree to the proposed scheme of arrangement.

Orders