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Re The Trust Company Ltd

Re The Trust Company Ltd

Case [2013] NSWSC 1947 3 December 2013

Scheme of Arrangement

Court Approval

Amendment of Orders

Corporate Law & Governance

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of The Trust Company Limited [2013] NSWSC 1947
Hearing dates: 3 December 2013
Decision date: 03 December 2013
Jurisdiction: Equity Division - Corporations List
Before: Black J
Decision:
Orders made approving scheme of arrangement.

Catchwords: CORPORATIONS - scheme of arrangement - application for orders approving entry into scheme of arrangement - where correspondence to be sent to members between the first and second Court hearing was approved by the Court and subsequently amended.
Legislation Cited: - Corporations Act 2001 (Cth) ss 411, 411(11), 411(17), 411(17)(a), 411(17)(b)
- Corporations Regulations 2001 (Cth) reg 5.6.13
- Supreme Court (Corporations) Rules 1999 (NSW)
Cases Cited: - Devereaux Holdings Pty Ltd v Pelsart Resources NL (No 2) (1985) 9 ACLR 956
- ENT Pty Ltd v Sunraysia Television Ltd [2007] NSWSC 270; (2007) 61 ACSR 626
- Re ACM Gold Ltd & Mt Leyshon Gold Mines Ltd (1992) 7 ACSR 231; (1992) 34 FCR 530
- Re Centro Properties Ltd [2011] NSWSC 1465; (2011) 86 ACSR 584
- Re Centro Retail Ltd & Centro MCS Manager Ltd (in its capacity as responsible entity of Centro Retail Trust) [2011] NSWSC 1321
- Re Coates Hire Ltd (No 2) [2007] FCA 2105
- Re Coles Group Ltd (No 2) [2007] VSC 523; (2007) 65 ACSR 494
- Re Equinox Resources Ltd [2004] WASC 143; (2004) 49 ACSR 692
- Re Macquarie Communications Infrastructure Group [2009] NSWSC 487
- Re Professional Investment Holdings Ltd (No 2) [2010] FCA 1336
- Re Seven Network (No 3) [2010] FCA 400; (2010) 77 ACSR 701
- Re Stockbridge Ltd (1993) 9 ACSR 637; (1993) 11 ACLC 201
Category: Interlocutory applications
Parties: The Trust Company Limited (Plaintiff)
Representation: Counsel:
M. Oakes SC/D.F.C. Thomas (Plaintiff)
R. McHugh SC (Perpetual Limited)
Solicitors:
King & Wood Mallesons (Plaintiff)
Herbert Smith Freehills (Perpetual Limited)

File Number(s): 2013/187096

Judgment - EX TEMPORE

By my judgment delivered on 16 October 2013 ([2013] NSWSC 1680) I made orders for the plaintiff, The Trust Company Limited, ("TCL"), to convene a meeting of members to consider and vote on a proposed scheme of arrangement for the purposes of s 411 of the Corporations Act 2001 (Cth). In a further judgment delivered on 19 October 2013, I made orders approving the dispatch of supplementary material to TCL's shareholders, in circumstances that a competing takeover bidder, Equity Trustees, had increased the price offered by a takeover bid for shares in TCL and TCL proposed to release a Fourth Supplementary Target's Statement to Australian Securities Exchange Limited and to send it to its shareholders prior to the scheme meeting. TCL now seeks orders that the scheme of arrangement between TCL and its shareholders be approved.

TCL relies, first, on the affidavit of Mr Robert Bruce Corlett, an independent non-executive director of TCL and the chairman of its board, who was also the chairman of the scheme meeting and gives evidence of the conduct…

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 The Trust Company Ltd

Details

AGLC: In the matter of The Trust Company Limited [2013] NSWSC 1947
Case: [2013] NSWSC 1947
Decision Date: 03 December 2013

CaseChat Overview and Summary

The case involved The Trust Company Limited, where the issue was an application for orders approving the entry into a scheme of arrangement. The matter was heard in the court, which was required to decide on the legality and procedural correctness of the communication process to the company's members. The application for approval of the scheme hinged on the court's satisfaction that proper notice and information had been provided to the members of the company, in line with the relevant statutory provisions and court rules.

The primary legal issue before the court was whether the correspondence sent to the members of the company, which had been approved by the court and subsequently amended, complied with the necessary legal standards. The court had to consider whether the initial approval and the subsequent amendments to the correspondence met the procedural requirements set out in the Corporations Act and the court's own rules. The court also needed to ensure that the members had been adequately informed about the scheme and its implications, particularly given the amendments to the correspondence.

In addressing these issues, the court examined the procedural history of the case, noting that the correspondence had initially been approved and then subsequently amended. The court assessed whether these changes were within the bounds of procedural fairness and whether the members were still adequately informed. The court concluded that the amendments did not materially alter the information provided to the members and that the overall process remained compliant with legal standards. Therefore, the court found that the correspondence, as amended, was sufficient to meet the requirements for approval of the scheme of arrangement. The court's decision was that the application should proceed, affirming the adequacy of the communication process to the members.

Orders