FEDERAL COURT OF AUSTRALIA
Tawana Resources NL, in the matter of Tawana Resources NL (No 2) [2018] FCA 1724
File number: WAD 349 of 2018 Judge: BANKS-SMITH J Date of judgment: 8 November 2018 Date of publication of reasons: 12 November 2018 Catchwords: CORPORATIONS - scheme of arrangement - supplementary disclosure - orders to reconvene meeting and despatch supplementary booklet Legislation: Corporations Act 2001 (Cth) ss 411, 1319 Cases cited: Amcom Telecommunications Limited, in the matter of Amcom Telecommunications Limited (No 2) [2015] FCA 410
Amcom Telecommunications Limited, in the matter of Amcom Telecommunications Limited (No 3) [2015] FCA 596
Associated Advisory Practices Limited, in the matter of Associated Advisory Practices Limited (No 2) [2013] FCA 979
Coates Hire Limited No 2, in the matter of Coates Hire Limited [2007] FCA 2105
CSR Limited, in the matter of CSR Limited [2010] FCAFC 34; (2010) 183 FCR 358
In the Matter of the Trust Company Limited [2013] NSWSC 1946
Kasbah Resources Limited, in the matter of Kasbah Resources Limited (No 2) [2016] FCA 1518
Nexus Energy Ltd, in the matter of Nexus Energy Ltd [2014] FCA 558
Seven Network Limited, in the matter of Seven Network Limited (No 2) [2010] FCA 355
Tawana Resources NL, in the matter of Tawana Resources NL [2018] FCA 1456
Date of hearing: 8 November 2018 Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 43 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)
TAWANA RESOURCES NL (ACN 085 166 721)
Plaintiff
JUDGE:
BANKS-SMITH J
DATE OF ORDER:
8 NOVEMBER 2018
THE COURT ORDERS THAT:
1.As to the orders of the Court made on 17 August 2018 in this proceeding (August Orders):
(a)orders 12 and 13 are vacated; and
(b)those orders be supplemented, varied or otherwise vacated, as applicable, in accordance with paras 2 to 13 below.
2.Pursuant to s 411(1) and s 1319 of the Corporations Act 2001 (Cth) (Act), the supplementary explanatory statement in a form substantially equivalent to the form that is annexure HFL-27 (Supplementary Scheme Booklet) to the affidavit of Heath Ford Lewis sworn and filed in this proceeding on 7 November 2018 (Sixth Lewis Affidavit) (and such amendments as approved by the Court on 8 November 2018), 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 contained in annexure HFL-26 to the Sixth Lewis Affidavit (together, the Documents), are approved for despatch to the Tawana shareholders who appear on the Tawana register of members as at the close of the register on 6 November 2018, by 12 November 2018.
3.The Documents be despatched to shareholders in the manner set out in paras 10(a), 10(b)…
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- Case
- [2018] FCA 1724
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the additional disclosure required by the shareholders necessitated further adjournment of the scheme meeting or if the scheme could proceed with the supplementary information provided. The legal issues revolved around the appropriateness of proceeding with the scheme under section 411 of the Corporations Act, the necessity of the supplementary disclosure, and whether the reconvened meeting could be held within the timeframe stipulated by the court.
In its ruling, the court found that the additional disclosure did not fundamentally alter the circumstances that led to the initial decision to approve the scheme. The court was satisfied that the supplementary explanatory statement, along with other required documents, would adequately inform the shareholders. Consequently, the court concluded that the scheme should proceed, and it was appropriate to reconvene the meeting. The court then issued orders to dispatch the supplementary booklet to shareholders and reconvene the meeting, setting out the procedural details for the reconvened meeting and the voting process.
The final orders included the approval of the supplementary explanatory statement and related documents for despatch to shareholders, reconvening the scheme meeting, and specifying the voting rights and procedures. The court also detailed the notice requirements and exempted the plaintiff from certain procedural rules. The proceeding was adjourned to allow for the hearing of the application to approve the scheme.
Orders
Orders of the court
1. As to the orders of the Court made on 17 August 2018 in this proceeding (August Orders):
(a) orders 12 and 13 are vacated; and
(b) those orders be supplemented, varied or otherwise vacated, as applicable, in accordance with paras 2 to 13 below.
2. Pursuant to s 411(1) and s 1319 of the Corporations Act 2001 (Cth) (Act), the supplementary explanatory statement in a form substantially equivalent to the form that is annexure HFL-27 (Supplementary Scheme Booklet) to the affidavit of Heath Ford Lewis sworn and filed in this proceeding on 7 November 2018 (Sixth Lewis Affidavit) (and such amendments as approved by the Court on 8 November 2018), 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 contained in annexure HFL-26 to the Sixth Lewis Affidavit (together, the Documents), are approved for despatch to the Tawana shareholders who appear on the Tawana register of members as at the close of the register on 6 November 2018, by 12 November 2018.
3. The Documents be despatched to shareholders in the manner set out in paras 10(a), 10(b) and 10(c) of the August Orders.
4. Despatch of the documents referred to in para 2 of these orders in accordance with para 3 of these orders is to be taken to be sufficient notice of the scheme meeting.
5. Pursuant to s 1319 of the Act, the scheme meeting be reconvened at 10.00 am (AWST) on 27 November 2018 at the offices of King & Wood Mallesons, Level 30, QV.1 Building, 250 St Georges Terrace, Perth, Western Australia.
6. 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 10.00 am (AWST) on 25 November 2018.
7. The reconvened scheme meeting is to be convened, held and conducted in accordance with:
(a) subject to para (b) below, paras 2 to 7 of the August Orders; and
(b) the notice of meeting in the form or to the effect of the notice contained in Annexure C to the Supplementary Scheme Booklet.
8. The time by which shareholders must return their proxy forms for the reconvened scheme meeting is 10.00 am (AWST) on 25 November 2018.
9. Valid proxy forms for the scheme meeting that have been lodged by shareholders are deemed to still be valid provided that the shareholder continues to be a registered shareholder as at 10.00 am (AWST) on 25 November 2018 and unless:
(a) the proxy form has been withdrawn;
(b) the proxy form has been revoked; or
(c) a new proxy form is submitted by the same shareholder, which will be taken to revoke any previously submitted proxy form,
shareholders who voted in favour of the scheme are deemed to have voted in favour of the resolutions to be considered at the reconvened scheme meeting.
10. The plaintiff is to give notice of the hearing of the application pursuant to s 411(4) of the Act and that notice of the hearing of an application pursuant to s 411(4)(b) of the Act for orders approving the scheme be published once 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 28 November 2018 and the plaintiff be otherwise exempted from compliance with r 3.4 of the Federal Court (Corporations) Rules 2000 (Cth).
11. The proceeding be adjourned to 3 December 2018 at 2.15 pm for the hearing of an application to approve the scheme.
12. There be liberty to apply upon the giving of 48 hours notice to ASIC.
13. An office copy of these orders shall be lodged with ASIC as soon as practicable after these orders are made.
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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