FEDERAL COURT OF AUSTRALIA
SRG Limited, in the matter of SRG Limited [2018] FCA 1092
File number: WAD 302 of 2018 Judge: BANKS-SMITH J Date of judgment: 23 July 2018 Catchwords: CORPORATIONS – scheme of arrangement – application under s 411(1) of the Corporations Act 2001 (Cth) to convene a meeting to consider a proposed scheme of arrangement – orders made Legislation: Corporations Act 2001 (Cth) ss 411(1), 412(1)
Corporations Regulations 2001 (Cth) Schedule 8
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Re APN News and Media Limited [2007] FCA 770; (2007) 62 ACSR 400
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Re Hills Motorway Limited [2002] NSWSC 897; (2002) 43 ASCR 101
Re NRMA Insurance Ltd (No 1) [2000] NSWSC 82; (2000) 156 FLR 349
Programmed Maintenance Services Ltd, in the matter of Programmed Maintenance Services Ltd [2017] FCA 1265
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Date of hearing: 20 July 2018 Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 54 Counsel for the Applicant: Mr AJ Papamatheos Solicitors for the Applicant: Herbert Smith Freehills Counsel for the Interested Party: Ms CL Pedler Solicitors for the Interested Party: Ashurst ORDERS
WAD 302 of 2018 IN THE MATTER OF SRG LIMITED ABN 57 006 413 574
SRG LIMITED ABN 57 006 413 574
Applicant
GLOBAL CONSTRUCTION SERVICES LIMITED ACN 104 662 259
Interested Party
JUDGE:
BANKS-SMITH J
DATE OF ORDER:
20 JULY 2018
THE COURT ORDERS THAT:
1.Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (Corporations Act), the plaintiff convene a meeting of holders of fully paid ordinary shares in the capital of the plaintiff (shareholders) to be held on 22 August 2018 at the River Room, Royal Perth Yacht Club Australia II Drive, Crawley, 6009, Western Australia to commence at 10.30 am AWST or on such other date and such other time and place as the Court may approve (scheme meeting) for the purpose of considering and if thought fit, approving with or without modifications, the scheme of arrangement proposed to be entered into between the plaintiff and its shareholders (scheme), a copy of which is contained in Annexure SPG6 to the affidavit of Sevan Philip Gore affirmed 19 July 2018 and filed herein.
2.The scheme booklet contained in Annexure SPG8 to the affidavit of Sevan Phillip Gore affirmed 19 July 2018 which contains the explanatory statement required by s 412(1)(a) of the Corporations Act be and is approved, subject to:
(a)correction of any minor typographical or grammatical errors and final typesetting and formatting;
(b)any minor amendments required or approved by ASIC for registration…
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- AGLC
- Re SRG Ltd [2018] FCA 1092
- Case
- [2018] FCA 1092
- Decision Date
CaseChat Overview and Summary
The court found that the plaintiff had fulfilled all the requisite statutory conditions for convening a scheme meeting. The scheme booklet, which included the explanatory statement and other necessary documents, was approved subject to minor corrections and updates. The court was satisfied that the scheme met the legal criteria for approval and that the meeting would be conducted in accordance with the Corporations Act and the company's constitution. The court also noted that GCS, an interested party, supported the application.
The court made several orders to facilitate the convening and conduct of the scheme meeting. These orders included setting the date, time, and location of the meeting, approving the scheme booklet subject to minor amendments, and specifying the notice to be sent to shareholders. The court further directed the manner in which the meeting would be conducted, including voting procedures and the requirement for a quorum. Finally, the court set a date for the hearing of any application to approve the scheme and directed that a copy of the orders be lodged with the Australian Securities and Investments Commission.
The orders made by the court ensure that the scheme meeting will proceed in a manner compliant with the Corporations Act, allowing the shareholders to consider and vote on the proposed scheme of arrangement.
Orders
Orders of the court
1. Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (Corporations Act), the plaintiff convene a meeting of holders of fully paid ordinary shares in the capital of the plaintiff (shareholders) to be held on 22 August 2018 at the River Room, Royal Perth Yacht Club Australia II Drive, Crawley, 6009, Western Australia to commence at 10.30 am AWST or on such other date and such other time and place as the Court may approve (scheme meeting) for the purpose of considering and if thought fit, approving with or without modifications, the scheme of arrangement proposed to be entered into between the plaintiff and its shareholders (scheme), a copy of which is contained in Annexure SPG6 to the affidavit of Sevan Philip Gore affirmed 19 July 2018 and filed herein.
2. The scheme booklet contained in Annexure SPG8 to the affidavit of Sevan Phillip Gore affirmed 19 July 2018 which contains the explanatory statement required by s 412(1)(a) of the Corporations Act be and is approved, subject to:
(a) correction of any minor typographical or grammatical errors and final typesetting and formatting;
(b) any minor amendments required or approved by ASIC for registration under section 412(6) of the Corporations Act;
(c) correction or update of any relevant date reference or last trading prices;
(d) adopting as Annexure A the Lonergan Edwards Report contained in Annexure PMH1 to the affidavit of Philip Martin Holt sworn 18 July 2018, with any necessary changes contemplated by (a), (b) or (c) above;
(e) adopting as Annexure B the scheme referred to in paragraph 1 of these orders;
(f) adopting as Annexure C the Deed Poll contained in Annexure SPG12 of the affidavit of Sevan Phillip Gore affirmed 19 July 2018; and
(g) adopting the proxy form, as suitably amended to reflect the matters raised during the hearing and personalised, contained in Annexure PJM1 of the affidavit of Peter John McMorrow affirmed 16 July 2018.
3. Subject to these orders, and pursuant to s 1319 of the Corporations Act, the scheme meeting is to be:
(a) convened, held and conducted in accordance with the provisions of Part 2G.2 of the Corporations Act that apply to members of a company and the provisions of SRG's constitution that are not inconsistent therewith and that apply to meetings of members;
(b) convened, held and conducted as if rule 2.15 of the Federal Court (Corporations) Rules 2000 (Cth) does not apply; and
(c) convened using the notice of meeting substantially in the form or to the general effect of the notice contained in Annexure D of the scheme booklet.
4. Subject to registration of the scheme booklet pursuant to s 412(6) of the Corporations Act, the plaintiff is to dispatch on or before 23 July 2018 or such other date as directed by the Court, a document substantially in the form of the scheme booklet (approved above) and any applicable proxy form (or a link to a website for any electronic proxy lodgement) to the shareholders who appear on the register of members as at 5.00pm (AWST) on 20 July 2018 as follows:
(a) to each shareholder who has nominated an electronic address for the purposes of receiving notices of meeting from the plaintiff, an email to such address substantially in the form of Annexure PJM3 to the affidavit of Peter John McMorrow affirmed 16 July 2018; and
(b) to each other shareholder, by pre-paid or ordinary post, mail or courier to the address as set out in the register of the plaintiff's members.
5. Dispatch in accordance with order 4 (above) on or before 23 July 2018 is taken to be sufficient notice of the scheme meeting.
6. Peter John McMorrow or, failing him, Michael William Atkins, be chairperson of the scheme meeting.
7. The chairperson of the scheme meeting can adjourn the scheme meeting in his absolute discretion to such time, date and place as he considers appropriate.
8. Three shareholders present in person or by proxy, corporate representative or attorney under power shall constitute a quorum for the scheme meeting.
9. Each shareholder, present and entitled to vote, will be entitled to one vote for each fully paid ordinary share in the capital of the plaintiff that the shareholder is registered as holding at 5.00pm (AWST) on 20 August 2018.
10. Voting on the resolution to approve the scheme at the scheme meeting is to be conducted by way of poll.
11. The time by which proxy forms must be returned or lodged online in accordance with any instructions given on the proxy form is on 20 August 2018 at 10.30am (AWST).
12. If the matter is to be relisted, then on or before 24 August 2018 the plaintiff is to publish a completed notice of hearing substantially in the form of Annexure 'A' to these orders once in The Australian newspaper and SRG be relieved from compliance with Rule 3.4 of the Federal Court (Corporations) Rules 2000 (Cth) to the extent necessary.
13. The proceedings be stood over to 9.15am on 27 August 2018 before Justice Banks-Smith for the hearing of any application to approve the proposed scheme.
14. A copy of these orders be lodged with the Australian Securities and Investments Commission before 5.00pm on 20 July 2018.
15. Liberty to apply.
16. These orders be entered forthwith.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ANNEXURE ‘A’
SRG LIMITED ABN 57 006 413 574
Notice of hearing to approve compromise or arrangement
TO all the creditors and members of SRG LIMITED ABN 57 006 413 574 (SRG).
TAKE NOTICE that on 27 August 2018 at 9:15am the Federal Court of Australia at Perth will hear an application by SRG seeking the approval of an arrangement between SRG and its members, if agreed to by resolution to be considered by the members of SRG at a meeting of such members held on 22 August 2018 at the River Room, Royal Perth Yacht Club Australia II Drive, Crawley, 6009 at 10:30am (Perth time).
If you wish to oppose the approval of the arrangement, you must file and serve on SRG a notice of appearance, in the prescribed form, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served on SRG at its address for service at least 1 day before the date fixed for the hearing of the application.
The address for service on SRG is: c/o Herbert Smith Freehills, Level 36, 250 St Georges Terrace, Perth WA 6000 (Attention: Elizabeth Macknay / Paul Branston).
Roger Lee
Company Secretary
SRG Limited
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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