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Re Trust Company Ltd

Re Trust Company Ltd

Case [2013] NSWSC 1946 19 November 2013

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of The Trust Company Limited [2013] NSWSC 1946
Hearing dates: 19 November 2013
Decision date: 19 November 2013
Jurisdiction: Equity Division - Corporations List
Before: Black J
Decision:
Orders made approving the proposed supplementary material for distribution to shareholders.

Catchwords: CORPORATIONS - scheme of arrangement - where court has ordered the convening of a meeting and approved the explanatory statement to be sent to members in connection with that meeting - order sought approving for distribution to creditors the supplementary target's statement and form of cover.
Legislation Cited: - Corporations Act 2001 (Cth) ss 411, 411(1), 412(1)(a), 1319
Cases Cited: - Re Anzon Energy Ltd [2008] FCA 1579
- Re Blue Freeway Ltd (No 2) [2009] FCA 708
- Re Citect Corporation Ltd [2006] NSWSC 143; (2006) 56 ACSR 663
- Re Centro Retail Ltd and 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 Felix Resources Pty Ltd (No 2) [2009] FCA 1337
Category: Interlocutory applications
Parties: The Trust Company Limited (Plaintiff)
Representation: Counsel:
M. Oakes SC (Plaintiff)
Solicitors:
King & Wood Mallesons (Plaintiff)

File Number(s): 2013/187096

Judgment - EX TEMPORE

On 16 October 2013, I made orders convening a meeting of members of the Trust Company Limited ("TCL") under s 411 of the Corporations Act 2001 (Cth) to consider and vote upon a proposed scheme of arrangement which provides for a subsidiary of Perpetual Limited ("Perpetual") to acquire all of the shares in TCL. As I noted in my judgment ([2013] NSWSC 1680), that scheme of arrangement was proposed in circumstances that a higher bid had previously been made by Equity Trustees Limited ("ETL") to acquire the shares in TCL; another entity had also made a proposal to acquire its shares; and Perpetual had advanced a scheme proposal and an amended scheme proposal, which is currently reflected in the proposed scheme of arrangement. The orders made on 16 October 2013 provided for the scheme meeting to be held on 28 November 2013 and for a second court hearing on 3 December 2013.

Subsequent to those orders being made, on 13 November 2013, ETL announced a revised takeover offer for TCL and, on 15 November 2013, TCL released to Australian Securities Exchange Limited ("ASX") a further announcement indicating that it continued to recommend Perpetual's proposal which is the subject of the scheme.

On 18 November 2013, ETL issued its Supplementary Bidder's Statement in connection with its revised offer announced on 13 November 2013.

TCL now intends to lodge a Supplementary Target's Statement with the Australian Securities and Investments Commission ("ASIC") and provide it to ASX for release to the market and also seeks to send a copy of that Supplementary Target's Statement and a covering letter to its members in connection with the scheme. The Supplementary Target's Statement will attach a copy of TCL's announcement…

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 Trust Company Ltd

Details

AGLC: In the matter of The Trust Company Limited [2013] NSWSC 1946
Case: [2013] NSWSC 1946
Decision Date: 19 November 2013

CaseChat Overview and Summary

The case before the court involved Re Trust Company Ltd, where the primary issue was the approval of a supplementary target's statement and form of cover to be distributed to creditors. The court had already ordered the convening of a meeting and approved an explanatory statement to be sent to members in connection with a scheme of arrangement. The supplementary target's statement and form of cover were intended to provide additional information to creditors regarding the proposed scheme.

The legal issues before the court revolved around whether the supplementary target's statement and form of cover were appropriate and sufficient for informing the creditors about the scheme. The court had to consider whether the supplementary material provided clear and comprehensive information to creditors and whether it complied with the necessary legal and procedural requirements. The primary concern was to ensure that the creditors were adequately informed and able to make an informed decision about the scheme.

The court found that the supplementary target's statement and form of cover were appropriate and sufficient. The supplementary material provided clear and concise information about the scheme, its implications for creditors, and the process for voting on the scheme. The court was satisfied that the supplementary material complied with all necessary legal and procedural requirements. Consequently, the court approved the distribution of the supplementary target's statement and form of cover to the creditors.

The final order of the court was that the supplementary target's statement and form of cover be distributed to the creditors of Re Trust Company Ltd. This decision ensured that creditors had all the necessary information to make an informed decision regarding the scheme of arrangement.

Orders