FEDERAL COURT OF AUSTRALIA
Tower Australia Group Limited, in the matter of Tower Australia Group Limited [2011] FCA 224
Citation: Tower Australia Group Limited, in the matter of Tower Australia Group Limited [2011] FCA 224 Parties: TOWER AUSTRALIA GROUP LIMITED (ABN 79 003 401 698) File number: NSD 234 of 2011 Judge: STONE J Date of judgment: 16 March 2011 Catchwords: CORPORATIONS – Corporations Act 2001 (Cth) – s 411(1) – scheme of arrangement – application for orders approving company convening meeting of shareholders to consider proposed scheme of arrangement and directions as to conduct of meeting Legislation: Corporations Act 2001 (Cth) ss 411, 412
Corporations Regulations 2001 reg 5.6.13
Cases cited: APN News & Media Limited (2007) 62 ACSR 400
Re Adelaide Bank Limited [2007] FCA 1582
Re Arthur Yates & Co Ltd (2001) 36 ACSR 758
Re Investa Properties Limited [2007] FCA 1104
RePermanent Trustee Co Ltd (2003) 43 ACSR 601
Re Provet Holdings Limited [2010] FCA 1388
Re Sylvastate Limited [2011] FCA 211Date of hearing: 11 March 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 29 Counsel for the Plaintiff: R McHugh SC Solicitor for the Plaintiff: Blake Dawson
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 234 of 2011
IN THE MATTER OF TOWER AUSTRALIA GROUP LIMITED (ABN 79 003 401 698)
TOWER AUSTRALIA GROUP LIMITED (ABN 79 003 401 698)
Plaintiff
JUDGE:
STONE J
DATE OF ORDER:
11 MARCH 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. Pursuant to subsection 411(1) of the Corporations Act 2001 (Cth) (the Act):
(a)the plaintiff convene a meeting (Scheme Meeting) of the holders of ordinary shares in the plaintiff (other than The Dai-ichi Life Insurance Company, Limited or any of its associates) (Shareholders) for the purpose of considering and, if thought fit, agreeing to a scheme of arrangement (with or without modification) between the plaintiff and its Shareholders (Scheme of Arrangement), the terms of which are set out in Annexure A of the document which is Exhibit 1 in these proceedings (Scheme Booklet);
(b)the Scheme Meeting be held on 18 April 2011 at the Barnet Long Room, Custom House, Level 1, 31 Alfred Street, Circular Quay, Sydney at 2.30 pm;
(c)Robert Thomas or, failing him, Ralph Pliner, act as Chairman of the Scheme Meeting;
(d)the Chairman have the power to adjourn the Scheme Meeting for such time as the Chairman considers appropriate; and
(e)the Scheme Booklet with the addition of “and may even be adverse” after “optimal” in paragraph 1.2(d) be, and hereby is, approved for distribution to Shareholders.
2.Other than Regulation 5.6.13 of the Corporations Regulations 2001, rule 2.15 of the Federal Court (Corporations) Rules 2000 (Cth) shall not apply to the Scheme Meeting.
3.Notice of the hearing of an application pursuant to subsection 411(4) of the Act for an order approving the Scheme of Arrangement be published once in “The Australian” newspaper by an advertisement substantially…
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- Re Tower Australia Group Ltd [2011] FCA 224
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CaseChat Overview and Summary
The Court found that the scheme was bona fide and properly proposed, and that ASIC had been given an opportunity to examine the proposal and adequate notice of the first court hearing date. The plaintiff had also tendered a letter from ASIC stating that it did not propose to appear at the first Court hearing or to oppose the Scheme at that time. The Court was satisfied that the requirements necessary to be proved at a first court hearing in relation to an application under section 411(1) of the Corporations Act 2001 (Cth) had been met. The Court approved the scheme with one amendment as discussed above at [10].
The Court made orders pursuant to section 411(1) of the Corporations Act 2001 (Cth) for the plaintiff to convene a meeting of the holders of ordinary shares in the plaintiff for the purpose of considering and, if thought fit, agreeing to a scheme of arrangement. The Court also made orders for the notice of the hearing of an application for an order approving the scheme of arrangement to be published in "The Australian" newspaper and for the proceedings to be stood over to 10.15 am on 21 April 2011. The Court granted the plaintiff liberty to apply and ordered that these orders be entered forthwith.
Orders
Orders of the court
1. Pursuant to subsection 411(1) of the Corporations Act 2001 (Cth) (the Act):
(a) the plaintiff convene a meeting (Scheme Meeting) of the holders of ordinary shares in the plaintiff (other than The Dai-ichi Life Insurance Company, Limited or any of its associates) (Shareholders) for the purpose of considering and, if thought fit, agreeing to a scheme of arrangement (with or without modification) between the plaintiff and its Shareholders (Scheme of Arrangement), the terms of which are set out in Annexure A of the document which is Exhibit 1 in these proceedings (Scheme Booklet);
(b) the Scheme Meeting be held on 18 April 2011 at the Barnet Long Room, Custom House, Level 1, 31 Alfred Street, Circular Quay, Sydney at 2.30 pm;
(c) Robert Thomas or, failing him, Ralph Pliner, act as Chairman of the Scheme Meeting;
(d) the Chairman have the power to adjourn the Scheme Meeting for such time as the Chairman considers appropriate; and
(e) the Scheme Booklet with the addition of “and may even be adverse” after “optimal” in paragraph 1.2(d) be, and hereby is, approved for distribution to Shareholders.
2. Other than Regulation 5.6.13 of the Corporations Regulations 2001, rule 2.15 of the Federal Court (Corporations) Rules 2000 (Cth) shall not apply to the Scheme Meeting.
3. Notice of the hearing of an application pursuant to subsection 411(4) of the Act for an order approving the Scheme of Arrangement be published once in “The Australian” newspaper by an advertisement substantially in the form of Annexure A to these orders, such advertisement to be published on or before 15 April 2011, and the plaintiff be otherwise exempted from compliance with rule 3.4 of the Federal Court (Corporations) Rules 2000 (Cth).
4. The proceedings be stood over to 10.15 am on 21 April 2011.
5. The plaintiff be granted liberty to apply.
6. These orders be entered forthwith.
Date that entry is stamped:
Deputy District Registrar
Annexure A
NOTICE OF HEARING TO APPROVE ARRANGEMENT
TO all the creditors and members of Tower Australia Group Limited (TOWER Australia) ABN 79 003 401 698
TAKE NOTICE THAT at 10.15 am on 21 April 2011 the Federal Court of Australia at Commonwealth Law Courts Building, Queens Square, Sydney, New South Wales will hear an application by TOWER Australia seeking the approval of an arrangement between TOWER Australia and its members as proposed by a resolution to be considered and, if thought fit, passed at a meeting of members of the company to be held at Barnet Long Room, Custom House, Level 1, 31 Alfred Street, Circular Quay, Sydney at 2.30 pm (Sydney time) on 18 April 2011.
If you wish to oppose the approval of the arrangement, you must file and serve on TOWER Australia 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 TOWER Australia at least 1 day before the date fixed for the hearing of the application.
The address for service of TOWER Australia is c/o Blake Dawson, Level 35, Grosvenor Place, 225 George Street, Sydney, NSW 2000 (Attention: Andrew Carter), Facsimile: (02) 9258 6999, Email: andrew.carter@blakedawson.com.
Philippa Ellis
Company Secretary
TOWER Australia Group Limited
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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