Re Zinifex Limited (No 2) - [2008] VSC 632

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE COMMERCIAL AND EQUITY DIVISION

CORPORATIONS LIST

No. 5736 of 2008

IN THE MATTER OF

ZINIFEX LIMITED (ABN 29 101 657 309)

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 June 2008
DATE OF JUDGMENT:	20 June 2008
CASE MAY BE CITED AS:	Re Zinifex Limited (No 2)
MEDIUM NEUTRAL CITATION:	[2008] VSC 632

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CORPORATIONS – scheme of arrangement – scheme meeting held pursuant to order made – resolution passed to approve scheme – application to approve scheme pursuant to s 411(4)(b) of the Corporations Act 2001 – application for exemption from requirement of s 411(11) of the Corporations Act 2001 pursuant to s 411(12) of Corporations Act 2001 – whether s 411(17) tests have been satisfied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J G Santamaria QC	Allens Arthur Robinson
For Oxiana Limited	Mr P Crutchfield	Clayton Utz

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Re Hostworks Group Limited (No 2) [2008] FCA 248
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Re NRMA Insurance Ltd (No 1) (2000) 33 ACSR 595
RE Zenyth Therapeutics Ltd v Smith (2006) 60 ACSR 548
Re Zinifex Limited (No 1) [2008] VSC 631
HIS HONOUR:

INTRODUCTION

This application was commenced on 17 April 2008 by way of originating process, in which Zinifex Limited (“Zinifex”) sought orders:

(a) that Zinifex convene a meeting of the holders of ordinary shares issued by
Zinifex to be held on 16 June 2008 at 2:00pm at The Function Centre,
Melbourne & Olympic Park, Batman Avenue, Melbourne in the State of
Victoria (“the Scheme Meeting”);
(b) that the Scheme Booklet (which was annexed as Schedule A to the proposed
Court order), including a notice of the Scheme Meeting, be sent to Zinifex
shareholders; and
(c) that further orders be made relating to the proposed Scheme.

On 9 May 2008, the court made the orders sought by Zinifex and gave directions as to the manner in which the Scheme Meeting was to be conducted, the place at which it was to be held, and the materials that were to be distributed to shareholders (“the Order”).[1]
[1] Re Zinifex Limited (No 1) [2008[ VSC 631.
MASTER’S HEARING
On 18 June 2008, Master Efthim made orders declaring that in accordance with r 16.6 of the Supreme Court (Corporations) Rules 2003 (“the Corporations Rules”):

(a) the Scheme Meeting was duly convened and held in accordance with the
Order; and
(b) at the Scheme Meeting, the resolution to approve the Scheme was duly
passed.

THIS HEARING

Zinifex seeks orders:

(a) approving the Scheme pursuant to s 411(4)(b) of the Corporations Act 2001
(“the Act”); and
(b) exempting Zinifex from compliance with s 411(11) of the Act, pursuant to s
411(12) of the Act.

NOTICE OF THE HEARING

Order 13 of the Order provides that:
Zinifex publish once, on or before 14 June 2008, in The Australian newspaper, an advertisement in substantially the form…

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 Zinifex Limited (No 2)

Details

AGLC: Re Zinifex Limited (No 2) [2008] VSC 632
Case: [2008] VSC 632
Decision Date: 20 June 2008

CaseChat Overview and Summary

In Re Zinifex Limited (No 2), the Federal Court was called upon to determine the validity of a scheme of arrangement concerning the company Zinifex Limited. The primary dispute arose from the manner in which a scheme meeting was conducted and the subsequent approval of the scheme by the company's members. The case centred on the compliance with statutory provisions of the Corporations Act 2001, particularly those concerning the convening, conduct, and outcomes of the scheme meeting.

The central legal issues the court needed to address were whether the scheme meeting was held in accordance with the order made by the court and whether the resolution passed to approve the scheme was valid. Further, the court had to consider whether the statutory requirements under sections 411(11) and 411(12) of the Corporations Act were met, particularly focusing on the tests outlined in section 411(17). This included determining if the scheme met the fairness and equity requirements for members of the company.

The court examined the procedural aspects of the scheme meeting, including the notification process, the timing of the meeting, and the voting procedures. It concluded that the scheme meeting was properly conducted and that the resolution to approve the scheme was valid. The court also found that the statutory requirements under section 411(11) were satisfied, and granted the application for exemption from those requirements under section 411(12). The court further held that all the tests under section 411(17) were met, affirming the fairness and equity of the scheme to the members.

Orders