RHS Limited, in the matter of RHS Limited (No 2)

[2018] FCA 935

FEDERAL COURT OF AUSTRALIA

RHS Limited, in the matter of RHS Limited (No 2) [2018] FCA 935

File number:

SAD 76 of 2018

Judge:

WHITE J

Date of judgment:

29 May 2018

Catchwords:

CORPORATIONS – scheme of arrangement – application for approval of scheme pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth).

Legislation:

Corporations Act 2001 (Cth) s 411

Cases cited:

CSR Ltd, re CSR Ltd [2010] FCAFC 34; (2010) 183 FCR 358

Fowler v Lindholm; Re Opes Prime Stockbroking Ltd (No 2) [2009] FCAFC 125; (2009) 178 FCR 563

Re Foundation Healthcare Ltd (No 2) [2002] FCA 973; (2002) 43 ACSR 680

Re NRMA Ltd (No 2) [2000] NSWSC 408; (2000) 156 FLR 412

Re Permanent Trustee Co Ltd [2002] NSWSC 1177; (2002) 43 ACSR 601

Re Ranger Minerals Ltd; Ex parte Ranger Minerals Ltd [2002] WASC 207; (2002) 42 ACSR 582

RHS Limited; in the matter of RHS Limited [2018] FCA 562

Seven Network Ltd; re Seven Network Ltd (No 3) [2010] FCA 400; (2010) 267 ALR 583

Date of hearing:

29 May 2018

Registry:

South Australia

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Category:

Catchwords

Number of paragraphs:

13

Counsel for the Plaintiff:

Mr J Redwood

Solicitor for the Plaintiff:

Johnson Winter & Slattery

Counsel for Perkin Elmer Inc:

Mr M Izzo

ORDERS

SAD 76 of 2018

IN THE MATTER OF RHS LIMITED ACN 010 126 708

BETWEEN:

RHS LIMITED ACN 010 126 708

Plaintiff

JUDGE:	WHITE J
DATE OF ORDER:	29 MAY 2018

THE COURT ORDERS THAT:

1.Pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) (the Act), the scheme of arrangement between RHS Limited (ACN 010 126 708) (RHS) and the holders of fully paid ordinary shares of RHS, in the form annexed hereto and marked “Annexure A”, be approved.

2.Pursuant to s 411(12) of the Act, RHS be exempted from compliance with s 411(11) of the Act in respect of the scheme of arrangement referred to in Order 1.

3.These Orders to be entered forthwith.

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

EX TEMPORE REASONS FOR JUDGMENT

WHITE J:

1. The judgment concerns an application by RHS Limited (RHS) for approval, pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth), of a scheme of arrangement.

2. On 17 April 2018, the Court made orders for the convening of a meeting of RHS’s shareholders for the purpose of considering a scheme of arrangement: RHS Limited; in the matter of RHS Limited [2018] FCA 562. Under the proposed scheme, PerkinElmer Holdings Pty Ltd (PKI Holdings) is to acquire all the ordinary shares in RHS in consideration of payment of $0.28 in cash for each share. RHS will then become a wholly‑owned subsidiary of PKI Holdings. That company is a wholly‑owned Australian subsidiary of PerkinElmer Inc (PKI), a company incorporated under the laws of Massachusetts in the United States of America.

3. The meeting which was the subject of the Court’s orders on 17 April 2018 was held on 22 May 2018. 

4. In support of the application, RHS relies on affidavits from the following:

   ·Jarrod Luke Wilksch, a solicitor within the firm of legal practitioners acting for RHS made on 25 May 2018;

   ·David Lionel Brookes, a Director and the Non‑executive Chairman of RHS who acted as the Chairperson at the meeting on 22 May 2018, made on 25 May 2018;

   ·Raymond Robert Ridge, the Company Secretary of RHS, made on 25 May 2018;

   ·Anthony Stuart Pannell, a Client Relationship Manager for Link Market Services Limited, made on 25 May 2018;

   ·Prahlad Singh, the Executive Vice President of PKI, made on 25 May 2018;

   ·Brian Moore, a member of the firm of Nelson Mullins in Massachusetts the firm of lawyers acting for PKI, made on 25 May 2018;

   ·Michelle Louise Fraser, Managing Director and CEO of RHS, made on 29 May 2018; and

   ·John Storrie Keeves, a solicitor within the firm of legal practitioners acting for RHS, made on 25 May 2018.

5. The principles which guide the Court on applications of the present kind are well established.  The Court has a discretion as to whether to approve a scheme.  It is not bound to approve a scheme merely because it previously made orders for the convening of the meeting at which the scheme was voted upon, or because the statutory majorities were achieved: Seven Network Ltd; re Seven Network Ltd (No 3) [2010] FCA 400; (2010) 267 ALR 583 at [31]. The Court’s jurisdiction is supervisory; it is concerned to be satisfied that there has been an absence of oppression; and that the compromise or arrangement is one which is capable of being accepted: ibid.  The Court will usually approach the task from the perspective that it is the members of the company who are the better judges of what is in their commercial interests than is the Court: ibid at [32].

6. The principal matters to which the Court has regard in informing the discretion under s 411(4)(b) are:

   (1)whether the shareholders have voted in good faith and not for an improper purpose: s 411(17) and Re Foundation Healthcare Ltd (No 2) [2002] FCA 973; (2002) 43 ACSR 680 at [29];

   (2)whether the proposal is fair and reasonable so that an intelligent and honest person who is a member of the relevant class, properly informed and acting alone, may approve it: Fowler v Lindholm; Re Opes Prime Stockbroking Ltd (No 2) [2009] FCAFC 125; (2009) 178 FCR 563 at [79];

   (3)whether the Plaintiff has brought to the attention of the Court all matters that could be considered relevant to the exercise of the Court’s discretion: Re Permanent Trustee Co Ltd [2002] NSWSC 1177; (2002) 43 ACSR 601 at [7];

   (4)whether there has been full and fair disclosure of all information material to the decision: Re NRMA Ltd (No 2) [2000] NSWSC 408; (2000) 156 FLR 412 at [30];

   (5)whether minority shareholders would be oppressed by the scheme: Re Ranger Minerals Ltd; Ex parte Ranger Minerals Ltd [2002] WASC 207; (2002) 42 ACSR 582; and

   (6)whether the scheme offends public policy: CSR Ltd, re CSR Ltd [2010] FCAFC 34; (2010) 183 FCR 358 at [51]‑[56].

7. I commence the consideration in the present case by recording my satisfaction that RHS has complied with orders made by the Court on 17 April 2018.  In particular, RHS caused copies of the Explanatory Memorandum to be distributed to its members on 20 April 2018; notice of today’s hearing, substantially in the form of the document which was Attachment A to the Court’s orders of 17 April 2018, was published in The Australian and The Advertiser newspapers on 11 May 2018; the scheme meeting was held on 22 May 2018 as required by Order 2 made on 17 April 2018; and 174 of the 511 shareholders of RHS participated in the voting, either by attending in person or by proxy, attorney or representative.  One hundred and sixty nine shareholders (representing 97.13% by number of all RHS shareholders present in person or by proxy, attorney or representative) voted in favour of the scheme resolution.  There were 25,316 votes cast by five members against the scheme resolution.  These represented 0.03% of the votes cast on the scheme resolution.  The 174 shareholders who voted at the meeting comprised 34% of the total number of RHS shareholders by number.  The total votes case constituted some 81.25% of RHS shares.

8. It is obvious that the majorities required by s 411(4)(a)(ii) were achieved. It is also apparent that the voter turnout was substantial.

9. There were no counter proposals at the meeting.  There is nothing to suggest that the members voted other than in good faith, or that they cast their votes for an improper purpose, or that any member was treated in a way which may be suggestive of oppression. 

10. The Court can be satisfied that the scheme proposals are fair and reasonable, having regard to the following matters:

    (1)the opinion of the independent expert to whom I referred in my judgment on 17 April 2018: RHS Limited; in the matter of RHS Limited [2018] FCA 562 at [11];

    (2)the independent directors of RHS support the scheme;

    (3)ASIC has not raised an objection to the scheme.  On the contrary, RHS has produced a written statement from ASIC stating that it has no objection to the arrangement;

    (4)an overwhelming majority of those voting on the scheme (comprising about one‑third of the total number of RHS shareholders) voted in favour of the scheme (both by number and by shareholding);

    (5)the Explanatory Memorandum was verified on oath; and

    (6)no person has attended at today’s hearing to raise concerns about the fairness and reasonableness of the scheme, or to voice opposition to the Court approving it.

11. There is no reason to suppose that RHS and its solicitors have not brought to the Court’s attention all matters which could be considered relevant to the exercise of the Court’s discretion.  Nor is there any reason to think that the information provided to RHS shareholders for the purposes of their decision was inadequate.  In particular, there is no apparent matter suggesting that minority shareholders are being oppressed by the adoption of the scheme. 

12. The performance of the obligations by PKI and PKI Holdings under the scheme is supported by the Deed Poll executed by each.  The due execution of the Deed Poll by PKI has been verified by the affidavit of Mr Moore, a Massachusetts attorney.

13. Finally, there is nothing in the evidence which suggests that the implementation of the scheme may offend public policy.  For these reasons, I am satisfied that the scheme should be approved and will make the orders sought by RHS. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

Associate:

Dated:       20 June 2018