FEDERAL COURT OF AUSTRALIA
Tawana Resources NL, in the matter of Tawana Resources NL [2018] FCA 1456
File number: WAD 349 of 2018 Judge: BANKS-SMITH J Date of judgment: 17 August 2018 Date of publication of reasons: 21 September 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 - where foreign shareholders - where voting intention statements - orders made Legislation: Corporations Act 2001 (Cth) ss 411, 412, 606, 1319
Corporation Regulations 2001 (Cth) Pt 3, sch 8
Cases cited: Amcom Telecommunications Limited, in the matter of Amcom Telecommunications Limited [2015] FCA 341
APN News & Media Limited, in the matter of APN News & Media Limited [2007] FCA 770; (2007) 62 ACSR 400
Brambles Industries Ltd, in the matter of Brambles Industries Ltd and the Corporations Act 2001 (Cth) [2006] FCA 1273
CSR Limited [2003] FCA 82; (2003) 45 ACSR 34
EcoBiotics Limited, in the matter of EcoBiotics Limited [2017] FCA 643
First Pacific Advisors LLC v Boart Longyear Ltd [2017] NSWCA 116; (2017) 320 FLR 78
Hostworks Group Limited, in the matter of Hostworks Group Limited [2008] FCA 64; (2008) 26 ACLC 137
Ludowici Limited, in the matter of Ludowici Limited [2012] FCA 489
MDA National Limited v Medical Defence Australia Limited [2014] FCA 954
OPUS Group Limited, in the matter of OPUS Group Limited [2018] FCA 959
People Telecom Limited, in the matter of People Telecom Limited [2009] FCA 180
Programmed Maintenance Services Limited, in the matter of Programmed Maintenance Services Limited [2017] FCA 1265
Re Arthur Yates & Co Ltd [2001] NSWSC 40; (2001) 36 ACSR 758
Re Dyno Nobel Ltd [2008] VSC 154
Re Pulse Health Ltd [2017] NSWSC 651
Re Tatts Group Ltd [2017] VSC 552
Re Unity Mining Ltd(No 3) [2016] VSC 831
Rusina Mining NL, in the matter of Rusina Mining [2010] FCA 517
Signature Gold Ltd, in the matter of Signature Gold Ltd [2017] FCA 1481
Date of hearing: 17 August 2018 Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 66 Counsel for the Plaintiff: Mr AJ Papamatheos Solicitor for the Plaintiff: King & Wood Mallesons ORDERS
WAD 349 of 2018 IN THE MATTER OF TAWANA RESOURCES NL (ACN 085 166 721)
BETWEEN: TAWANA RESOURCES NL (ACN 085 166 721)
Plaintiff
JUDGE:
BANKS-SMITH J
DATE OF ORDER:
17 AUGUST 2018
THE COURT ORDERS THAT:
1.The plaintiff convene a meeting of holders of fully paid ordinary shares (Shares) in the capital of the plaintiff (Shareholders) as at 5:00pm (AWST) on 24 September 2018 for the purpose of considering and, if thought fit, approving (with or without amendment) the proposed scheme of arrangement (Scheme) which is Annexure D to the draft scheme booklet and explanatory statement (Scheme Booklet), being Annexure HFL-20 to the fourth affidavit of Heath Ford Lewis sworn 17 August 2018 (Fourth Lewis…
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- AGLC
- Re Tawana Resources NL [2018] FCA 1456
- Case
- [2018] FCA 1456
- Decision Date
CaseChat Overview and Summary
The Court was satisfied, based on the evidence provided, that proper notice had been given to the shareholders and that the Australian Securities and Investments Commission (ASIC) had been actively involved in discussions regarding the scheme. ASIC had chosen not to make submissions to the Court. The Court found that Tawana had addressed all the matters relevant to an order convening a scheme meeting under section 411 and that it was appropriate to make the orders sought by Tawana. This included convening the meeting, approving the scheme booklet for distribution, and setting out the procedures for the conduct of the meeting.
Accordingly, the Court made several orders to facilitate the convening of the meeting and the approval process. These orders included specific directions on the convening, holding, and conducting of the meeting, the form and content of the notice to be given to shareholders, the appointment of a chairperson for the meeting, and the voting process. Additionally, the Court approved the scheme booklet subject to certain amendments and conditions, and directed the procedures for its distribution to the shareholders. The Court also set a date for the hearing of the application to approve the scheme and outlined the notice requirements for that hearing.
Orders
Orders of the court
1. The plaintiff convene a meeting of holders of fully paid ordinary shares (Shares) in the capital of the plaintiff (Shareholders) as at 5:00pm (AWST) on 24 September 2018 for the purpose of considering and, if thought fit, approving (with or without amendment) the proposed scheme of arrangement (Scheme) which is Annexure D to the draft scheme booklet and explanatory statement (Scheme Booklet), being Annexure HFL-20 to the fourth affidavit of Heath Ford Lewis sworn 17 August 2018 (Fourth Lewis Affidavit), and such meeting to be held at 1:00pm (AWST) at the offices of BDO Australia, 38 Station Street, Subiaco, Western Australia on 26 September 2018 or such other date as the Court may approve (Scheme Meeting).
2. Subject to these orders, the Scheme Meeting is to be convened, held and conducted in accordance with:
(a) the provisions of Part 2G.2 of the Corporations Act 2001 (Cth) (Act) that apply to members of a company and the provisions of the plaintiff's constitution that are not inconsistent therewith and that apply to meetings of members; and
(b) the notice of meeting in the form or to the effect of the notice contained in Annexure F of the Scheme Booklet.
3. Pursuant to section 1319 of the Act, Rule 2.15 of the Federal Court (Corporations) Rules 2000 (Cth) shall not apply to the Scheme Meeting.
4. Mr Robert John Benussi or, failing him, Mr Mark Calderwood is to be appointed to act as chairperson of the Scheme Meeting (Chairperson) and report the result of the Scheme Meeting to this Court.
5. The Chairperson can adjourn the Scheme Meeting in his absolute discretion for such time that the Chairperson thinks appropriate, to a time and place to be advised by the Chairperson.
6. Three shareholders present in person or by proxy, corporate representative or attorney under power and entitled to vote shall constitute a quorum for the Scheme Meeting.
7. Voting on the resolution to approve the Scheme is to be conducted by way of poll.
8. At the Scheme Meeting 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 24 September 2018.
9. The Scheme Booklet, which contains an explanatory statement required by Section 412(1)(a) of the Act, be and is hereby approved subject to:
(a) correction of any typographical or grammatical errors and final typesetting and formatting;
(b) any minor amendments required or approved by the Australian Securities and Investments Commission (ASIC) for registration under section 412(6) of the Act;
(c) correction or update of any relevant date references or last trading prices;
(d) the amendments contemplated in Annexure 'HFL-23' to the fifth affidavit of Heath Ford Lewis sworn 17 August 2018; and
(e) adopting any other amendments approved by the Court.
10. Subject to registration of the Scheme Booklet (as amended) with ASIC pursuant to Section 412(6) of the Act, the plaintiff is to provide the Scheme Booklet (as amended), substantially in the form approved under Order 9 above, together with (as applicable) a proxy form or a South African-specific proxy form, and a foreign resident declaration form in respect of the Scheme Meeting, being substantially in the form of Annexure HFL‑8 to the Second Lewis Affidavit, (together, the Documents) to the Shareholders who appear on the register of members on 17 August 2018:
(a) subject to subparagraph (c) below, in the case of each Shareholder who has a registered address in Australia, by dispatching the Documents by pre-paid post, parcel post or courier;
(b) subject to subparagraph (c) below, in the case of each Shareholder who has a registered address outside Australia, by dispatching the Documents by pre-paid airmail or air courier; and
(c) in the case of each Shareholder who has nominated an electronic address for the purpose of receiving notifications of notices of any meetings from Computershare Investor Services Pty Limited, by sending an email containing a URL link to the Documents to the email address nominated by that Shareholder.
11. Dispatch of the documents referred to in paragraph 10 of these Orders in accordance with their terms is to be taken to be sufficient notice of the Scheme Meeting.
12. Leave be given to the plaintiff to make application for orders under Sections 411(4) and 411(6) of the Act following the Scheme Meeting for approval of the Scheme to be heard at 9:00am on 2 October 2018, or such other date as the Court sees fit to set for such purpose.
13. The plaintiff is to give notice of the hearing of the application pursuant to section 411(4)(b) of the Act for orders approving the Scheme by publishing an advertisement in the public notices column of 'The Australian' and 'The West Australian' newspapers substantially in the form of Annexure A to these orders, such advertisement to be published on or before 24 September 2018 and the Plaintiff otherwise be exempted from compliance with rule 3.4 of the Federal Court (Corporations) Rules 2000.
14. There be liberty to apply upon the giving of 48 hours' notice to ASIC.
15. An office copy of these orders shall be lodged with ASIC as soon as practicable after these orders are made.
Annexure A
TAWANA RESOURCES NL ACN 085 166 721
Notice of hearing to approve Scheme of Arrangement pursuant to section 411 of the Corporations Act 2001 (Cth)
TO all the members of TAWANA RESOURCES NL (Tawana)
TAKE NOTICE that at 9:00am on 2 October 2018 the Federal Court of Australia at the Peter Durack Commonwealth Law Courts Building, 1 Victoria Avenue, PERTH WA will hear an application by Tawana seeking the approval of a scheme of arrangement between Tawana and its ordinary shareholders to be proposed by resolution at the meeting of its members to be held at 1:00pm (AWST) on 26 September 2018 at the offices of BDO Australia, 38 Station Street, Subiaco, Western Australia.
If you wish to oppose the approval of the proposed scheme of arrangement, you must file and serve on Tawana 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 Tawana at its address for service at least 1 day before the date fixed for the hearing of the application.
The address for service of Tawana is c/- King & Wood Mallesons, Level 30, QV.1 Building, 250 St Georges Terrace, PERTH WA 6000.
King & Wood Mallesons, solicitors for Tawana, the plaintiff.
A copy of the scheme booklet is available from Tawana website at https://tawana.com.au/investor-centre/
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
Ratio Decidendi
Legal Principle Established
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