FEDERAL COURT OF AUSTRALIA
Veda Group Limited, in the matter of Veda Group Limited [2015] FCA 1506
Citation: Veda Group Limited, in the matter of Veda Group Limited [2015] FCA 1506 Parties: VEDA GROUP LIMITED ABN 26 124 306 958 File number(s): NSD 1500 of 2015 Judge(s): YATES J Date of judgment: 11 December 2015 Catchwords: CORPORATIONS – scheme of arrangement – application for order for meeting of members Legislation: Corporations Act 2001 (Cth) ss 411, 412
Federal Court (Corporations) Rules 2000 r 3.2Takeovers Panel, Lock-up devices, GN 7, 11 February 2010
Cases cited: Adelaide Bank Limited, in the matter of Adelaide Bank Limited ACN 061 461 550 [2007] FCA 1582
Atlassian Corporation Pty Limited, in the matter of Atlassian Corporation Pty Limited [2013] FCA 1451
Centrebet International Limited, in the matter of Centrebet International Limited [2011] FCA 870
F T Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69
Investa Properties Limited, in the matter of Investa Properties Limited (2007) 25 ACLC 1,186; [2007] FCA 1104
Mosaic Oil NL, in the matter of Mosaic Oil NL [2010] FCA 985
Re Arthur Yates & Co Ltd (2001) 36 ACSR 758; [2001] NSWSC 40
Re Permanent Trustee Co Ltd (2002) 43 ACSR 601; [2002] NSWSC 1177
Simavita Holdings Limited, in the matter of Simavita Holding Limited [2013] FCA 1274
Talent2 International Limited, in the matter of Talent2 International Limited [2012] FCA 771Date of hearing: 11 December 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 42 Counsel for the Plaintiff: Mr IM Jackman SC Solicitor for the Plaintiff: Herbert Smith Freehills Counsel for Equifax Inc: Mr J Williams Solicitor for Equifax Inc: Allens
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1500 of 2015
IN THE MATTER OF VEDA GROUP LIMITED ABN 26 124 306 958
VEDA GROUP LIMITED ABN 26 124 306 958
Plaintiff
JUDGE:
YATES J
DATE OF ORDER:
11 DECEMBER 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Pursuant to ss 411(1) and 1319 of the Corporations Act 2001 (Cth) (Act):
(a)the Plaintiff, Veda Group Limited, convene and hold a meeting (the Scheme Meeting) of its members holding fully paid ordinary shares in the Plaintiff (Shareholders) for the purpose of considering and, if thought fit, agreeing to (with or without modification) a scheme of arrangement proposed to be made between the Plaintiff and the Shareholders (Share Scheme), the terms of which are contained in Annexure D of the scheme booklet, a copy of which is Exhibit A (Scheme Booklet);
(b)the Scheme Meeting be held at 10.30 am on 8 February 2015 at the Museum of Sydney, located at the Corner of Phillip and Bridge Streets, Sydney, New South Wales; and
(c)the Scheme Booklet be approved for distribution to Shareholders (for the purposes only of s 411(1) of the Act).
2.Pursuant to s 1319 of the Act:
(a)Dr Helen Nugent…
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- Re Veda Group Ltd [2015] FCA 1506
- Case
- [2015] FCA 1506
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CaseChat Overview and Summary
Orders
Orders of the court
1. Pursuant to ss 411(1) and 1319 of the Corporations Act 2001 (Cth) (Act):
(a) the Plaintiff, Veda Group Limited, convene and hold a meeting (the Scheme Meeting) of its members holding fully paid ordinary shares in the Plaintiff (Shareholders) for the purpose of considering and, if thought fit, agreeing to (with or without modification) a scheme of arrangement proposed to be made between the Plaintiff and the Shareholders (Share Scheme), the terms of which are contained in Annexure D of the scheme booklet, a copy of which is Exhibit A (Scheme Booklet);
(b) the Scheme Meeting be held at 10.30 am on 8 February 2015 at the Museum of Sydney, located at the Corner of Phillip and Bridge Streets, Sydney, New South Wales; and
(c) the Scheme Booklet be approved for distribution to Shareholders (for the purposes only of s 411(1) of the Act).
2. Pursuant to s 1319 of the Act:
(a) Dr Helen Nugent AO or, failing her, Dr Peter Shergold AC, be authorised to act as Chairman of the Scheme Meeting;
(b) the Chairman of the Scheme Meeting shall have the power to adjourn each such meeting in her absolute discretion to such time, date and place as she considers appropriate;
(c) at the Scheme Meeting, a Shareholder, present and entitled to vote, in person or by proxy or by an attorney under power, shall constitute a quorum;
(d) 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 7.00 pm on 6 February 2016;
(e) a poll must be taken to decide the resolutions put to the vote at the Scheme Meeting, except for procedural motions;
(f) on or before 18 December 2015, there be dispatched to:
(i) each Shareholder who has nominated an electronic address for the purposes of receiving notices of meeting and proxy forms from the Plaintiff, at such address, an email substantially in the form of the document behind tab 5 in Exhibit TJW1, including URL links to documents substantially in the form of the Scheme Booklet and the proxy form in respect of the Scheme Meeting, a copy of which is behind tab 3 in Exhibit TJW1 (Proxy Form); and
(ii) each other Shareholder, by hand or by pre-paid post or courier, to the address of that Shareholder as set out in the register of members of the Plaintiff, a document in substantially the form of the Scheme Booklet, a Proxy Form in respect of the Scheme Meeting, and a reply paid envelope addressed to Link Market Services Limited; and
(g) the time by which proxy forms for the Scheme Meeting must be returned or lodged online in accordance with the instructions given on the proxy form is 10.30 am on 6 February 2016.
3. On or before 5 February 2016, the Plaintiff publish a Notice of Hearing substantially in the form of Annexure ‘A’ hereto once in The Australian newspaper and the Plaintiff be relieved from compliance with r 3.4 of the Federal Court (Corporations) Rules 2000 (Cth) (Rules) to the extent necessary.
4. Rule 2.15 of the Rules shall not apply to the Scheme Meeting, except in so far as that rule applies reg 5.6.13 of the Corporations Regulations 2001 (Cth).
5. An office copy of these orders be lodged with the Australian Securities and Investments Commission before 5.00 pm on 14 December 2015.
6. The proceeding be stood over to 10.15 am on 10 February 2016 before Justice Yates for the hearing of any application to approve the Scheme.
7. Liberty to apply.
8. These orders be entered forthwith.
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
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Ratio Decidendi
Legal Principle Established
Helen Marion Nugent, a director and Chairman of the plaintiff, has consented to act as chairperson at the meeting. Peter Shergold, a director of the plaintiff, has agreed to act as chairperson of the meeting if Dr Nugent is unable to do so. Dr Nugent and Dr Shergold have each made affidavits as required by r 3.2 of the Federal Court (Corporations) Rules 2000 (the Corporations Rules).DEED POLL The obligations of Equifax and Equifax Australia under the scheme are supported by a deed poll given in favour of the scheme shareholders. The deed poll has been executed by each company. An opinion has been obtained from King & Spalding LLP (King & Spalding), a firm of attorneys practising in Atlanta, Georgia, as to the execution of the deed poll under Georgia law by Equifax and the enforceability of the deed poll against Equifax under Georgia law. King & Spalding have expressed the opinion that Equifax has the corporate power and authority to execute, deliver and perform its obligations under the deed poll, and that it has been duly executed and delivered by the company. This opinion has been sought in light of certain observations made by Farrell J in Simavita Holdings Limited, in the matter of Simavita Holding Limited [2013] FCA 1274 at [43]-[44]. Although the opinion from King & Spalding also addresses the question of whether proceedings arising out of or in connection with the deed poll can be brought against Equifax in Georgia, Senior Counsel questioned the need for such an opinion in circumstances where, as here, the parties bound by the relevant covenants have, by the deed poll, expressed their agreement to irrevocably submit to the exclusive jurisdiction of courts exercising jurisdiction in New South Wales and courts of appeal from them; have irrevocably waived any objection to venue on the basis of a plea of forum non conveniens; and have agreed that the deed poll will be governed by the law in force in New South Wales. In my view, where the parties have agreed to submit to the exclusive jurisdiction of an Australian court or courts and have agreed that domestic law will apply as the proper law of the contract in proceedings arising out of, or in connection with, the deed poll, it is not necessary for the plaintiff to separately address the question of whether similar proceedings can be brought in another forum. VERIFICATION There is evidence before me that the statements of fact made in the scheme booklet have undergone a comprehensive verification process.DISPATCH OF THE SCHEME BOOKLET It is proposed that the scheme booklet, which includes the explanatory statement for the scheme required by s 412(1) of the Act, will be sent by email to those members of the plaintiff who have nominated that they wish to receive shareholder communications, including notices of meeting and proxy forms, electronically by email. As at 3 December 2015, approximately 56% of the plaintiff’s members had nominated that they wished to receive shareholder communications by that means.