Re Strategic Energy Resources Ltd (No. 3)
[2012] VSC 164
•17 April 2012 (delivered ex tempore, revised 26 April 2012)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
CORPORATIONS LIST
No. 06011 of 2011
IN THE MATTER OF STRATEGIC ENERGY RESOURCES LIMITED (ACN 051 212 429)
| STRATEGIC ENERGY RESOURCES LIMITED | Plaintiff |
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JUDGE: | DAVIES J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 April 2012 | |
DATE OF RULING: | 17 April 2012 (delivered ex tempore, revised 26 April 2012) | |
CASE MAY BE CITED AS: | Re Strategic Energy Resources Ltd (No. 3) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 164 | |
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CORPORATIONS – Schemes of arrangement – Approval of scheme – Discretion – Supreme Court (Corporations) Rules 2003 (Vic), rule 16.6 – Corporations Act 2001 (Cth), ss 411(11), 411(12) and 411(17)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | TRO Boston | Rigby Cooke Lawyers |
HER HONOUR:
The plaintiff, Strategic Energy Resources Limited (“SER”) seeks an order approving the scheme of arrangement that it proposes to make with its shareholders. A scheme meeting was held on 22 March 2012, and on 11 April 2012 Associate Justice Efthim made orders pursuant to rule 16.6 of the Supreme Court (Corporations) Rules 2003 (Vic) that the meeting was duly convened and that the resolutions considered at the meeting were duly passed.
The role of the Court in approving the scheme is supervisory in nature. When deciding whether to approve the scheme the Court must consider whether there has been compliance with the Corporations Act 2001 (Cth) (“the Act”), whether the majority of the shareholders are acting in good faith in voting in favour of the scheme, and whether the scheme is one that is capable of being accepted by shareholders looking to their own commercial advantage.[1]
[1]Re NRMA Ltd; Re NRMA Insurance Ltd (2000) 33 ACSR 595 at [41] (Santow J)
I am satisfied that the orders should be made for the reasons that:
(a)no creditor or shareholder of SER has indicated that they wish to oppose the scheme;
(b)the scheme is overwhelmingly supported by shareholders;
(c)the opinion of the independent expert is that the scheme is in the best interests of shareholders;
(d)the scheme has the unanimous recommendation of SER’s board of directors;
(e)the Australian Securities and Investments Commission has not opposed the making of the order and has provided a statement in writing under s 411(17)(b) to that effect; and
(f)I am satisfied that the conditions precedent to the scheme have been or will be satisfied.
SER also seeks an order under s 411(12) of the Act for exemption from compliance with s 411(11) of the Act. In my view such an order is also appropriate as the scheme does not involve any modification of the rights of the shareholders.
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