Tempo Services Limited (ABN 87 001 827 041), in the matter of Tempo Services Limited (ABN 87 001 827 041)

[2005] FCA 411

FEDERAL COURT OF AUSTRALIA

Tempo Services Limited (ABN 87 001 827 041), in the matter of Tempo Services Limited (ABN 87 001 827 041) [2005] FCA 411

CORPORATIONS – schemes of arrangement – approved

IN THE MATTER OF TEMPO SERVICES LIMITED (ABN 87 001 827 041)

TEMPO SERVICES LIMITED (ABN 87 001 827 041)
NSD 125 OF 2005

GYLES J
4 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	125 OF 2005

IN THE MATTER OF TEMPO SERVICES LIMITED (ABN 87 001 827 041)

TEMPO SERVICES LIMITED (ABN 87 001 827 041) PLAINTIFF
JUDGE:	GYLES J
DATE OF ORDER:	4 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The schemes of arrangement proposed to be made between the Plaintiff and its:

(a)Shareholders;

(b)Optionholders; and

(c)Noteholders,

a copy of which is annexed to this document and marked 'SH1', 'SH2' and 'SH3' (collectively the Tempo Schemes) respectively are approved pursuant to section 411(4) of the Corporations Act 2001 (Cth).  (annexures omitted)

2.The Plaintiff be exempted from compliance with section 411(11) of the Corporations Act 2001 (Cth) in relation to the Tempo Schemes.

3.A copy of these orders be lodged with the Australian Securities and Investments Commission within 7 days of being entered.

4.These Orders be entered forthwith.

THE COURT DIRECTS THAT:

1.The Plaintiff must not lodge these orders with ASIC until the trust account referred to in paragraph 6(b) of the affidavit of Mr Mewing dated 1 April 2005 is opened with ANZ Bank.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	125 OF 2005

IN THE MATTER OF TEMPO SERVICES LIMITED (ABN 87 001 827 041)

TEMPO SERVICES LIMITED (ABN 87 001 827 041)
PLAINTIFF

JUDGE:	GYLES J
DATE:	4 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The plaintiff seeks orders pursuant to Pt 5.1 of the Corporations Act 2001 (Cth) (the Act) for approval of three separate but interdependent schemes of arrangement between Tempo Services Limited (Tempo), on the one hand, and the shareholders, optionholders and noteholders of Tempo on the other.

2. On 18 February last I made orders pursuant to s 411(1) of the Act that there be separate meetings convened of the shareholders, optionholders and noteholders.  Those meetings now have been convened and the requisite resolutions were passed in each case by all requisite majorities, indeed, either 100 per cent or in the case of the shareholders with a small proportion voting against.

3. I am satisfied from the evidence and the schedule with which I have been provided that what might be called the formal requirements of the statute have been satisfied.  I refer to the method by which the meeting is convened, the holding of the meeting, the receipt of proxies, the advertising of the application and so on.  I also note the certificates of compliance required pursuant to the deed and the letter from ASIC which satisfies s 411(17) of the Act.

4. I was satisfied on the last occasion that the schemes they had been propounded, subject to one aspect, were appropriate to be put forward to the separate meetings of the security-holders of Tempo in order that they should give their commercial judgment as to whether the schemes are appropriate.  That has been overwhelmingly answered in the affirmative and I can see no reason why I should take a different view.

5. The matter which I had adverted to on the last occasion, namely the credit risk, was met with undertakings given on that occasion and the incorporation of provisions into the schemes.  Due to circumstances I need not trouble with, one of the undertakings still requires to be complied with, but that will be dealt with by a direction on my part. 

6. The only other issue out of the ordinary is that there has been a take-over offer made for one of the upstream parents of the bidding company.  That matter has been considered by the independent expert who sees no reason to alter the recommendation in favour of these schemes.  I have also looked at that issue and can find no reason to think it has any relevance for the implementation of the schemes.  I have been satisfied with the evidence on the part of the bidding company and the explanation of that which has been provided by its counsel as to implementation. 

7. I therefore make the orders and give the direction in the draft short minutes of order which I have initialled and placed with the papers.  That includes the order that the orders be entered forthwith.

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

Associate:

Dated:             12 April 2005

Counsel for the Plaintiff:	TF Bathurst QC, RA Dick
Solicitor for the Plaintiff:	Minter Ellison
Counsel for Pacific Services Solutions Pty Limited	F Gleeson
Solicitor for Pacific Services Solutions Pty Limited	Freehills
Date of Hearing:	18 February 2005, 4 April 2005
Date of Judgment:	4 April 2005