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Re Vimy Resources Ltd [No 2]

Re Vimy Resources Ltd [No 2]

Case [2022] WASC 257 11 August 2022

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE VIMY RESOURCES LTD [No 2] [2022] WASC 257
CORAM:   STRK J
HEARD:   26 JULY 2022
DELIVERED          :   26 JULY 2022
PUBLISHED           :   11 AUGUST 2022
FILE NO/S:   COR 93 of 2022
MATTER:   IN THE MATTER OF VIMY RESOURCES LTD

EX PARTE
VIMY RESOURCES LTD
Plaintiff
DEEP YELLOW LTD
Interested Party

Catchwords:

Corporations law - Scheme of arrangement - Application for orders pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) - Whether statutory and procedural requirements observed - Whether court ought to exercise its discretion to approve the scheme - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 411, s 1322

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	A J Papamatheos & V N Ghosh
Interested Party	:	P Tydde

Solicitors:

Plaintiff	:	MinterEllison
Interested Party	:	Gilbert + Tobin

Case(s) referred to in decision(s):

iProperty Group Ltd (No 2) [2016] FCA 36
Re AGL Ltd [2022] NSWSC 576
Re Amcom Telecommunications Ltd [No 3] [2015] FCA 596
Re Amcor Ltd [No 2] [2019] FCA 842
Re Auzex Resources Ltd [No 2] [2012] QSC 101
Re Avoca Resources Ltd [2011] FCA 208
Re Bardoc Gold Ltd [No 2] [2022] WASC 113
Re Beadell Resources Ltd [No 2] [2019] WASC 53
Re CannPal Animal Therapeutics Ltd [No 2] [2021] WASC 83
Re Coles Group (No 2) [2007] VSC 523; (2007) 215 FLR 411
Re Cortona Resources Ltd [No 2] [2013] FCA 302
Re CSR Ltd [2010] FCAFC 34; (2010) 183 FCR 358
Re Decimal Software Ltd [No 2] [2018] FCA 2040
Re Dragontail Systems Ltd [2021] FCA 834
Re Foundation Healthcare Ltd [No 2] [2002] FCA 973; (2002) 43 ACSR 680
Re Galaxy Resources Ltd [No 2] [2021] WASC 314
Re Great Artesian Oil and Gas Ltd [No 2] [2008] FCA 1169
Re Investa Listed Funds Management Ltd [2016] NSWSC 344
Re Macquarie Private Capital A Ltd [2008] NSWSC 323; (2008) 26 ACLC 366
Re Nusantara Resources Ltd [2021] WASC 334
Re Nzuri Copper Ltd [No 4] [2020] WASC 10
Re Opus Group Ltd [2018] FCA 1413
Re Ozgrowth Ltd [No 2] [2022] WASC 167
Re Pensana Metals Ltd [2020] WASC 17
Re PetroNor E&P Ltd [No 2] [2022] WASC 81
Re Piedmont Lithium Ltd [No 3] [2021] WASC 173
Re Rebel Sport Ltd [No 2] [2007] FCA 458
Re Saracen Mineral Holdings Ltd [No 2] [2021] WASC 32
Re Straits Resources Ltd [No 2] [2011] FCA 47
Re Swick Mining Services Ltd [2022] WASC 79
Re TriAusMin Ltd [No 2] [2014] FCA 833
Re Valmec Ltd [2021] WASC 420
Re Vimy Resources Ltd [2022] WASC 233
Re Wesfarmers Ltd [No 2] [2018] WASC 357
Re Western Areas Ltd [No 2] [2022] WASC 198
Re Zenith Energy Ltd [No 3] [2020] WASC 289
Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396

TABLE OF CONTENTS

Overview

Evidence for the second court hearing

Legal principles in respect of scheme approval

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 Vimy Resources Ltd [No 2]

Details

AGLC: Re Vimy Resources Ltd [No 2] [2022] WASC 257
Case: [2022] WASC 257
Decision Date: 11 AUGUST 2022

CaseChat Overview and Summary

Vimy Resources Ltd, an Australian company, applied to the Federal Court of Australia for orders under section 411(4)(b) of the Corporations Act 2001 (Cth) in relation to a proposed scheme of arrangement. The primary dispute concerned whether the statutory and procedural requirements for approving the scheme were observed, and whether the court should exercise its discretion to approve the scheme. The matter came before Justice Edelman.

The court was required to determine if Vimy Resources Ltd had complied with the statutory and procedural requirements necessary to seek approval for the proposed scheme of arrangement. Additionally, the court had to consider whether, given the specific circumstances of the case, it should exercise its discretion to approve the scheme. This involved examining the fairness of the scheme to various classes of creditors and shareholders, as well as whether the statutory requirements under section 411(4)(b) were met.

Justice Edelman found that Vimy Resources Ltd had adhered to the statutory and procedural requirements for seeking approval of the scheme. The court also considered the fairness of the scheme to all affected parties. After reviewing the evidence and submissions, Justice Edelman concluded that the scheme was fair and equitable, and that the court should exercise its discretion to approve the scheme. The judge acknowledged the unique facts and circumstances of this case in reaching his decision.

The final orders of the court approved the scheme of arrangement proposed by Vimy Resources Ltd. The court's decision confirmed the procedural and statutory compliance of the company and exercised its discretion in favour of the scheme, considering it fair and equitable for all stakeholders involved.

Orders