Re Vita Group Ltd (No 2)

[2023] FCA 623

FEDERAL COURT OF AUSTRALIA

Vita Group Ltd, in the matter of Vita Group Ltd (No 2) [2023] FCA 623

File number(s):

NSD 252 of 2023

Judgment of:

JACKMAN J

Date of judgment:

9 June 2023

Catchwords:

CORPORATIONS – scheme of arrangement – second Court hearing – unnecessary to provide evidence that the explanatory statement and accompanying material has been dispatched in accordance with the Court’s orders – unnecessary to provide evidence of shareholder turnout – unnecessary for the chairperson to prove what was said at the meeting

Legislation:

Corporations Act 2001 (Cth) ss 411, 1322

Evidence Act 1995 (Cth) s 55

Federal Court of Australia Act 1976 (Cth) s 37M

Cases cited:

Re Matine Ltd (1998) 28 ACSR 268

Re Professional Investment Holdings Ltd (No 2) [2010] FCA 1336

Re Seven Network Ltd (No 3) [2010] FCA 400

Re Vita Group Ltd [2023] FCA 400

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Number of paragraphs:

8

Date of hearing:

8 June 2023

Counsel for the Plaintiff:

Mr D F C Thomas SC

Solicitor for the Plaintiff: 

Minter Ellison

Counsel for the Bidder:

Mr T E O’Brien

Solicitor for the Bidder: 

Gilbert + Tobin

ORDERS

NSD 252 of 2023

IN THE MATTER OF VITA GROUP LTD

VITA GROUP LTD ACN 113 178 519

Plaintiff

ORDER MADE BY:

JACKMAN J

DATE OF ORDER:

8 JUNE 2023

THE COURT ORDERS THAT:

1.Pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) (Act), the scheme of arrangement between the Plaintiff and its shareholders, the terms of which are set out in the document at Appendix 3 of the document comprising Exhibit P1 in the proceeding, is approved.

2.The Plaintiff lodge with the Australian Securities and Investments Commission a copy of the approved scheme of arrangement at the time of lodging a copy of these Orders.

3.Pursuant to s 411(12) of the Act, the Plaintiff is exempted from compliance with s 411(11) of the Act in relation to Order 1.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKMAN J

1. These are my reasons for the orders which I made at the second Court hearing, approving the scheme of arrangement (Scheme) which was the subject of my reasons for judgment in Re Vita Group Ltd [2023] FCA 400. In that judgment, I outlined the way in which scheme applications should be approached at the first Court hearing, bearing in mind the overarching purpose of the civil practice and procedure provisions of facilitating the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible. As I said in that judgment, although scheme of arrangement applications are usually conducted on an ex parte basis, without a contradictor, and thus may not be regarded as “disputes”, I regard the overarching purpose identified in s 37M of the Federal Court of Australia Act 1976 (Cth) as equally…