Sinclair Knight Merz Management Pty Limited, in the matter of Sinclair Knight Merz Management Pty Limited (No 2)

[2013] FCA 1366

FEDERAL COURT OF AUSTRALIA

Sinclair Knight Merz Management Pty Limited, in the matter of Sinclair Knight Merz Management Pty Limited (No 2) [2013] FCA 1366

Citation:	Sinclair Knight Merz Management Pty Limited, in the matter of Sinclair Knight Merz Management Pty Limited (No 2) [2013] FCA 1366
Parties:	SINCLAIR KNIGHT MERZ MANAGEMENT PTY LIMITED ACN 087 978 970 and SINCLAIR KNIGHT MERZ HOLDINGS LIMITED ACN 001 024 102
File number:	NSD 2193 of 2013
Judge:	FARRELL J
Date of judgment:	10 December 2013
Catchwords:	CORPORATIONS – scheme of arrangement – approval of scheme of arrangement
Legislation:	Corporations Act 2001 (Cth) ss 411(4), 411(11), 411(12), 411(17)(b)
Cases cited:	Sinclair Knight Merz Management Pty Limited, in the matter of Sinclair Knight Merz Management Pty Limited [2013] FCA 1211
Date of hearing:	10 December 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	7
Counsel for the Plaintiffs:	Mr R Dick SC and Mr D Barnett
Solicitor for the Plaintiffs:	Jones Day
Counsel for Jacobs Engineering Inc:	Mr I Jackman SC

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2193 of 2013

IN THE MATTER OF SINCLAIR KNIGHT MERZ MANAGEMENT PTY LIMITED

SINCLAIR KNIGHT MERZ MANAGEMENT PTY LIMITED ACN 087 978 970
First Plaintiff

SINCLAIR KNIGHT MERZ HOLDINGS LIMITED ACN 001 024 102
Second Plaintiff

JUDGE:	FARRELL J
DATE OF ORDER:	10 DECEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to section 411(4)(b) of the Corporations Act (2001) (Cth) (the Act), the:

a.scheme of arrangement between Sinclair Knight Merz Management Pty Limited (SKMM) and the holders of Voting Shares issued by it, in the form of Exhibit 3 in this proceeding; and

b.scheme of arrangement between Sinclair Knight Merz Holdings Limited (SKMH) and the holders of Equity Shares issued by it, in the form of Exhibit 4 in this proceeding,

are approved.

2.Pursuant to section 411(12) of the Act, SKMM and SKMH are exempted from compliance with section 411(11) of the Act in relation to the schemes of arrangement referred to in order 1.

3.SKMM and SKMH are to lodge an office copy of these orders with the Australian Securities and Investments Commission as soon as practicable.

4.These Orders be entered forthwith.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2193 of 2013

IN THE MATTER OF SINCLAIR KNIGHT MERZ MANAGEMENT PTY LIMITED

SINCLAIR KNIGHT MERZ MANAGEMENT PTY LIMITED ACN 087 978 970
First Plaintiff

SINCLAIR KNIGHT MERZ HOLDINGS LIMITED ACN 001 024 102
Second Plaintiff

JUDGE:

FARRELL J

DATE:

10 DECEMBER 2013

PLACE:

SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application by the plaintiffs for orders under s 411(4)(b) of the Corporations Act 2001 (Cth) (Corporations Act) approving two inter-conditional schemes of arrangement. The first is between Sinclair Knight Merz Holdings Limited (SKM Holdings) and the holders of its ordinary shares (Equity Shares).  The second is between Sinclair Knight Merz Management Pty Limited (SKM Management) and its redeemable voting preference shareholders (Voting Shares). The plaintiffs also seek an order under s 411(12).

2. Terms used in these reasons bear the same meaning as in my reasons for making orders on 5 November 2013: see Sinclair Knight Merz Management Pty Limited, in the matter of Sinclair Knight Merz Management Pty Limited [2013] FCA 1211.

3. I will make the orders sought by SKM Management and SKM Holdings.

4. My reasons for making the orders are generally as set out in the submissions of Mr R Dick SC with Mr D Barnett dated 9 December 2013, which together with a schedule showing compliance with formal requirements, is marked MFI-4.  I have marked as MFI-5 the index to the Court Book for both hearings, which sets out the affidavits read and exhibits tendered at the hearings.

5. In particular, I am satisfied that:

   ·The procedural requirements of s 411 have been satisfied.  I note the matters addressed at the first court hearing set out in my reasons for granting the orders on 5 November 2013 and the written submissions provided to me by Senior Counsel for SKM Group for the first court hearing which (together with the schedule showing compliance with formal requirements) I marked as MFI-1. 

   ·The requisite statutory majorities under s 411(4)(a)(ii) have been achieved.  The SKM Management Scheme was approved by approximately 99.08% of the number of votes cast on the resolution to approve the SKM Management Scheme and 94.93% of shareholders attending and voting on the resolution.  Turn out in person or by proxy was 98.71% of Voting Shareholders.  The SKM Holdings Scheme was approved by approximately 99.11% of the number of votes cast on the resolution to approve the SKM Holdings Scheme and 94.93% of shareholders attending and voting on the resolution.  Turn out in person or by proxy was 99.36% of Equity Shareholders.

   ·An Extraordinary General Meeting of the Voting Shareholders was held immediately before the Scheme Meetings.  A resolution was passed to amend the SKM Share Plan to permit Jacobs Australia to acquire the Voting Shares and to terminate the Plan thereafter.  The resolution was passed by a majority of 99.09% of all votes cast.

6. For the reasons outlined in Senior Counsel’s submissions marked MFI-4 I am satisfied of:

   ·The manner of production and dispatch of the Scheme Booklets;

   ·The fact that Mr Peter Scott acted as Chairman of the Scheme Meetings and the conduct of the polls for the Scheme Meetings and the Extraordinary General Meeting of SKM Management held on 6 December 2013;

   ·The date and place of the second court hearing was published in the Australian newspaper on 29 November 2013;

   ·That no notice of intention of any person to appear at the hearing has been received. The matter was called and no person appeared to object to the Schemes being approved;

   ·The conditions precedent to the Schemes (other than the Court approval of the Schemes and lodgement of orders with ASIC) have been satisfied or waived;

   ·ASIC has issued a “no objection” letter in relation to the Schemes under s 411(17)(b), and it is Exhibit 5 in these proceedings;

   ·No fact or circumstance has been drawn to my attention which would indicate that Court approval to the Schemes should be denied.

7. Accordingly, I will make the orders sought by the plaintiffs approving the Schemes.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate:

Dated:       16 December 2013