CITATION: RE WESTERN AREAS LTD; EX PARTE WESTERN AREAS LTD [2022] WASC 193
CORAM: HILL J
HEARD: 27 APRIL 2022
DELIVERED : 27 APRIL 2022
PUBLISHED : 2 JUNE 2022
FILE NO/S: COR 33 of 2022
MATTER: IN THE MATTER OF WESTERN AREAS LTD
EX PARTE
WESTERN AREAS LTD
Plaintiff
IGO NICKEL HOLDINGS PTY LTD
Third Party
Catchwords:
Corporations law - Scheme of arrangement - Application for orders convening scheme meeting under s 411(1) of the Corporations Act 2001 (Cth) - Whether requirements to order scheme meeting are satisfied - Orders made convening scheme meeting
The plaintiff, Western Areas Limited (Western Areas), is an Australian public company listed on the Australian Securities Exchange (ASX). On 16 December 2021, Western Areas entered into a Scheme Implementation Deed (SID) with IGO Nickel Holdings Pty Ltd (IGO Nickel), a wholly owned subsidiary of IGO Limited (IGO), which was announced to the ASX on the same date.[1]…
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.
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Details
AGLC
Re Western Areas Ltd [2022] WASC 193
Case
[2022] WASC 193
Decision Date
CaseChat Overview and Summary
Western Areas Limited, an Australian public company listed on the Australian Securities Exchange, sought orders under s 411 of the Corporations Act 2001 (Cth) (Act) to convene a meeting of its members to consider and vote on a proposed scheme of arrangement (the Scheme) to reorganise its capital structure. The proposed Scheme involved the acquisition of all issued capital in Western Areas by IGO Nickel Holdings Pty Ltd, a wholly owned subsidiary of IGO Limited, with Western Areas' shareholders receiving $3.87 cash for each share held. The court had to determine whether the proposed Scheme was appropriate for consideration by Western Areas' members and whether it was fit for approval by the court. The court found that the proposed Scheme met all the necessary requirements. The Scheme was bona fide, properly proposed, and adequately disclosed. There were no class issues, and all shareholders were treated equally. The independent expert's opinion, while concluding that the Scheme was not fair, found it reasonable and in the best interests of shareholders, which was properly disclosed in the Scheme booklet. The court was satisfied that the Scheme provided adequate protection against the risk that shareholders would not receive the proposed consideration. The court also approved orders for electronic despatch of the Scheme booklet and proxy form, as well as the use of proxy solicitation agents, provided the scripts were consistent with the Scheme booklet. The court concluded that the Scheme was fit for consideration by Western Areas' members and made the requested orders convening the scheme meeting and approving the distribution of the Scheme booklet.
The court's orders included convening the scheme meeting, approving the distribution of the Scheme booklet, and allowing for electronic despatch of the Scheme booklet and proxy form. The court also approved the use of proxy solicitation agents, provided the scripts were consistent with the Scheme booklet. These orders facilitated the process for Western Areas' shareholders to consider and vote on the proposed Scheme.