Re: White Horses Pty Ltd - [2016] QSC 93

SUPREME COURT OF QUEENSLAND

CITATION:

Re: White Horses Pty Ltd [2016] QSC 93

PARTIES:

WHITE HORSES PTY LTD ACN 009 696 637

(applicant)

FILE NO/S:

BS3047/16

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

28 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

22 and 28 April 2016

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1.   Pursuant to s 411(1) of the Corporations Act 2001 (Cth) (“the Act”), the applicant shall summon and convene a meeting (“the scheme meeting”) of its shareholders (“the shareholders”) for the purpose of considering and, if thought fit, resolving (with or without modification) to approve the scheme of arrangement between them and the applicant substantially in the form set out in the share scheme booklet (“the scheme booklet”) included in exhibit SJG1 to the affidavit of Steven John Grant filed on 21 April 2016.

2.   The scheme meeting shall be held on 28 May 2016 at the Burleigh Gold Club cnr Albion and Bardon Avenues, Miami, Queensland, 4220 at 10:00am (Brisbane time), or as soon thereafter as is convenient.

3.   The scheme meeting shall be convened by sending to the shareholders by ordinary pre-paid post on or before 5 May 2016:

(a)   the scheme booklet;

(b)   the notice of scheme meeting, substantially in the form contained in exhibit DW10 of the affidavit of Daniel Hamilton Weule filed on 22 March 2016; and

(c)    a proxy form, substantially in the form contained in exhibit DW11 of the affidavit of Daniel Hamilton Weule filed on 22 March 2016.

4.   The documents identified in paragraph 3 of this order:

(a)   shall be sent to those shareholders who are recorded in the applicant’s register of shareholders, and to each shareholder at the address recorded in respect of that shareholder in the register of shareholders, as at 10:00am (Brisbane time) on 3 May 2016; and

(b)   shall be deemed to be received in accordance with clause 46.5 of the Constitution of the applicant dated October 2007.

5.   All voting at the scheme meeting, other than voting on any procedural motion, shall be conducted by poll.

6.   A proxy may not vote at the scheme meeting unless the instrument appointing the proxy is received by 10:00am (Brisbane time) on 23 May 2016 sent to the applicant at an address nominated by it in the scheme booklet.

7. Pursuant to sub-section 411(1) of the Act, further or alternatively sub-section 411(4)(a)(ii)(A) of the Act, the shareholders (and all of them) shall jointly form one class for the purposes of the scheme meeting.

8.   Except as otherwise provided for in this order, the Constitution of the applicant dated October 2007 shall govern the convening and proceedings of the scheme meeting as if it was a general meeting of the applicant, except that:

(a)   clauses 24 to 30 (inclusive) of the Constitution of the applicant dated October 2007 shall not apply; and

(b)   the poll (referred to in paragraph 5 of this order) shall be taken irrespective of whether a majority demands it.

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: White Horses Pty Ltd

Details

AGLC: Re: White Horses Pty Ltd [2016] QSC 93
Case: [2016] QSC 93
Decision Date: 28 April 2016

CaseChat Overview and Summary

The case before the court involved White Horses Pty Ltd, a home unit company, which applied for an order under section 411(1) of the Corporations Act 2001 (Cth) to convene a meeting of its shareholders to consider and vote on a proposed scheme of arrangement. The scheme involved the sale of the company’s land and building to a developer, with the purchase price being allocated among the shareholders proportionately, followed by the winding up of the company. The building was nearing the end of its serviceable life, and the proposed scheme aimed to resolve the future of the property.

The primary legal issue was whether the court should order a meeting of the members to consider and vote on the proposed scheme. This involved determining whether all the shareholders could properly be treated as a single class for the purposes of voting on the scheme, despite their differing interests in the units and the varying value of their respective rights of occupation. The court also had to consider whether the scheme complied with the requirements of the Corporations Act and the company’s constitution.

The court determined that all shareholders could indeed be treated as a single class for the purposes of the meeting. The differing interests and values of the units did not prevent the shareholders from meeting and voting on the resolution as a single class, as the rights of occupation were provided for under the company's constitution and supported by a lease between the company and each relevant member. The court found that the scheme complied with the legislative and constitutional requirements and ordered the meeting to proceed as proposed. The explanatory statement accompanying the scheme was approved with a minor amendment to clarify the directors' voting intentions and their lack of interests in the proposed buyer.

The orders made by the court required the applicant company to convene the meeting on a specified date and location, to send out the necessary documents to the shareholders, and to follow specific procedural guidelines during the meeting. The court also set out detailed provisions for the conduct of the meeting, including the rules for voting by poll and the appointment of a chairman. The explanatory statement provided to the shareholders was to be amended to reflect the directors’ intentions and their lack of any marketable securities in the proposed buyer.

Orders

Orders of the court

The order of the court is that:

1. Pursuant to s 411(1) of the Corporations Act 2001 (Cth) (“the Act”), the applicant shall summon and convene a meeting (“the scheme meeting”) of its shareholders (“the shareholders”) for the purpose of considering and, if thought fit, resolving (with or without modification) to approve the scheme of arrangement between them and the applicant substantially in the form set out in the share scheme booklet (“the scheme booklet”) included in exhibit SJG1 to the affidavit of Steven John Grant filed on 21 April 2016.

2. The scheme meeting shall be held on 28 May 2016 at the Burleigh Gold Club cnr Albion and Bardon Avenues, Miami, Queensland, 4220 at 10:00am (Brisbane time), or as soon thereafter as is convenient.

3. The scheme meeting shall be convened by sending to the shareholders by ordinary pre-paid post on or before 5 May 2016:

(a) the scheme booklet;

(b) the notice of scheme meeting, substantially in the form contained in exhibit DW10 of the affidavit of Daniel Hamilton Weule filed on 22 March 2016; and

(c) a proxy form, substantially in the form contained in exhibit DW11 of the affidavit of Daniel Hamilton Weule filed on 22 March 2016.

4. The documents identified in paragraph 3 of this order:

(a) shall be sent to those shareholders who are recorded in the applicant’s register of shareholders, and to each shareholder at the address recorded in respect of that shareholder in the register of shareholders, as at 10:00am (Brisbane time) on 3 May 2016; and

(b) shall be deemed to be received in accordance with clause 46.5 of the Constitution of the applicant dated October 2007.

5. All voting at the scheme meeting, other than voting on any procedural motion, shall be conducted by poll.

6. A proxy may not vote at the scheme meeting unless the instrument appointing the proxy is received by 10:00am (Brisbane time) on 23 May 2016 sent to the applicant at an address nominated by it in the scheme booklet.

7. Pursuant to sub-section 411(1) of the Act, further or alternatively sub-section 411(4)(a)(ii)(A) of the Act, the shareholders (and all of them) shall jointly form one class for the purposes of the scheme meeting.

8. Except as otherwise provided for in this order, the Constitution of the applicant dated October 2007 shall govern the convening and proceedings of the scheme meeting as if it was a general meeting of the applicant, except that:

(a) clauses 24 to 30 (inclusive) of the Constitution of the applicant dated October 2007 shall not apply; and

(b) the poll (referred to in paragraph 5 of this order) shall be taken irrespective of whether a majority demands it.

9. With the exception of regulation 5.6.13, regulations 5.6.12 to 5.6.36A of the Corporations Regulations 2001 (Cth) shall not apply to the scheme meeting.

10. Daniel Hamilton Weule, or in his absence, Dale Leslie Streten, shall act as chairman of the scheme meeting and, in the absence of either, the scheme meeting shall elect some other person as chairman.

11. The explanatory statement contained in the scheme booklet, substantially in the form contained in exhibit SJG1 to the affidavit of Steven John Grant filed on 21 April 2016, is approved subject to the explanatory statement or information provided with it being amended to state that the directors propose to vote in favour of the scheme and that no director holds any marketable securities in the proposed buyer.

12. The applicant has liberty to apply.

13. The balance of the originating application filed 22 March 2016 is adjourned to 1 June 2016.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Re: White Horses Pty Ltd [2016] QSC 93
PARTIES:	WHITE HORSES PTY LTD ACN 009 696 637 (applicant)
FILE NO/S:	BS3047/16
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	28 April 2016
DELIVERED AT:	Brisbane
HEARING DATE:	22 and 28 April 2016
JUDGE:	Jackson J
ORDER:	The order of the court is that: 1. Pursuant to s 411(1) of the Corporations Act 2001 (Cth) (“the Act”), the applicant shall summon and convene a meeting (“the scheme meeting”) of its shareholders (“the shareholders”) for the purpose of considering and, if thought fit, resolving (with or without modification) to approve the scheme of arrangement between them and the applicant substantially in the form set out in the share scheme booklet (“the scheme booklet”) included in exhibit SJG1 to the affidavit of Steven John Grant filed on 21 April 2016. 2. The scheme meeting shall be held on 28 May 2016 at the Burleigh Gold Club cnr Albion and Bardon Avenues, Miami, Queensland, 4220 at 10:00am (Brisbane time), or as soon thereafter as is convenient. 3. The scheme meeting shall be convened by sending to the shareholders by ordinary pre-paid post on or before 5 May 2016: (a) the scheme booklet; (b) the notice of scheme meeting, substantially in the form contained in exhibit DW10 of the affidavit of Daniel Hamilton Weule filed on 22 March 2016; and (c) a proxy form, substantially in the form contained in exhibit DW11 of the affidavit of Daniel Hamilton Weule filed on 22 March 2016. 4. The documents identified in paragraph 3 of this order: (a) shall be sent to those shareholders who are recorded in the applicant’s register of shareholders, and to each shareholder at the address recorded in respect of that shareholder in the register of shareholders, as at 10:00am (Brisbane time) on 3 May 2016; and (b) shall be deemed to be received in accordance with clause 46.5 of the Constitution of the applicant dated October 2007. 5. All voting at the scheme meeting, other than voting on any procedural motion, shall be conducted by poll. 6. A proxy may not vote at the scheme meeting unless the instrument appointing the proxy is received by 10:00am (Brisbane time) on 23 May 2016 sent to the applicant at an address nominated by it in the scheme booklet. 7. Pursuant to sub-section 411(1) of the Act, further or alternatively sub-section 411(4)(a)(ii)(A) of the Act, the shareholders (and all of them) shall jointly form one class for the purposes of the scheme meeting. 8. Except as otherwise provided for in this order, the Constitution of the applicant dated October 2007 shall govern the convening and proceedings of the scheme meeting as if it was a general meeting of the applicant, except that: (a) clauses 24 to 30 (inclusive) of the Constitution of the applicant dated October 2007 shall not apply; and (b) the poll (referred to in paragraph 5 of this order) shall be taken irrespective of whether a majority demands it.