Elders New Zealand Ltd v PGG Wrightson Ltd HC Auckland CIV 2006-404-1974

[2006] NZHC 1484

For a Court ready (fee required) version please follow this link

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2006-404-1974

BETWEEN  ELDERS NEW ZEALAND LIMITED Plaintiff

AND  PGG WRIGHTSON LIMITED Defendant

Hearing:         25 August 2006

Appearances: K J Crossland for plaintiff

P Jagose for defendant

Judgment:      1 December 2006

JUDGMENT OF ALLAN J

Solicitors:

Stace Hammond, PO Box 19101, Hamilton, [email protected]

Chapman Tripp, PO Box 993, Wellington  Pheroze[email protected]

ELDERS NEW ZEALAND LIMITED V PGG WRIGHTSON LIMITED HC AK CIV 2006-404-1974  1

December 2006

[1]      Part 13 of the Companies Act 1993 (the Act), provides for the amalgamation of two or more companies, and for the amalgamating companies to continue as one company.  In Carter Holt Harvey Ltd v McKernan [1998] 3 NZLR 403 at 415 (CA) the Court of Appeal held that:

... the intention of the legislature is that for all purposes an amalgamated company is  to stand in  the same position  as  each  of  the amalgamating companies in respect of all their rights and obligations.

[2]      Part 15 of the Act provides for applications to the Court for approval of an arrangement or amalgamation or compromise which:

... shall be binding on the company and on such other persons or classes of persons as the Court may specify ...

upon the giving of such approval.

[3]      The question arising in this proceeding is whether an amalgamation approved by the Court under Part 15 gives rise to the same legal consequences as an amalgamation effected under Part 13.

Background

[4]      Wrightson  Ltd  (Wrightson)  as  to  an  undivided  share,  and  Elders  New Zealand Ltd (Elders) (or one of its subsidiaries), as to another undivided share, are co-owners (in some cases with other co-owners) of certain stock saleyards either in their own names or through a co-owned company.

[5]      In each case, the rights and obligations inter se of the co-owners are regulated by agreements recording the rights and obligations of the parties in respect of the saleyards, or by the constitutions of the co-owned companies.  The agreements and constitutions respectively confer on the other co-owner a right of pre-emption in respect of the interest of any co-owner or shareholder (as the case may be) wishing to dispose of its interest in the saleyards.

[6]      For the most part, the interests of the parties in the saleyards are governed by one of a number of agreements, each of which contains the following clause:

No party will partition, transfer, sell, lease or otherwise dispose of the whole or part of its interest in the Saleyards, except as provided in this Agreement.

[7]      Pre-emptive rights arise under the agreements where a party:

… transfer(s) … or otherwise dispose(s) of the whole or part of its interest in the Saleyards …

[8]      Two saleyards are owned by companies in which Wrightson and Elders are the shareholders.  The constitution of each company creates rights of pre-emption in favour of a non-transferring shareholder where the other party proposes to transfer its shares.

[9]      Wrightson  and  Pyne  Gould  Guinness  Ltd  (PGG)  agreed  to  amalgamate. They entered into a document described as a “merger plan”.  For present purposes the relevant provisions of that document are paragraphs 2.1(i), 4.1 and 4.2.

[10]     Paragraph 2.1 provides:

PGG and Wrightson will amalgamate, with PGG continuing as the surviving company under the Act with the name ‘PGG Wrightson Ltd’ and with the effect that:

(i)  PGG Wrightson will succeed to all the property, rights, powers and privileges of Wrightson;

(ii) PGG Wrightson will succeed to all the liabilities and obligations of Wrightson;

(iii) proceedings   pending   by,   or   against,   Wrightson   may   be continued by, or against, PGG Wrightson;

(iv) a conviction, ruling, order or judgment in favour of, or against, Wrightson, may be enforced by, or against, PGG Wrightson;

(v)  Wrightson shares held by PGG Wrightson will be deemed to be cancelled  without  payment  or  other  consideration  and Wrightson will be removed from the New Zealand register;

(vi) The constitution of PGG Wrightson will be the same as  the constitution   of   PGG   Wrightson   immediately   before   the Effective Date;  and

(vii)     The directors of PGG Wrightson from the Effective Time will be Bill Baylis, Keith Smith, Sam Maling, Brian Jolliffe, Richard Elworthy, Baird McConnon, Craig Norgate, Murray Flett, Sir Selwyn Cushing, Gerald Weenink, Susie Staley, and Bill Thomas.

[11]     Paragraphs 4.1 and 4.2 of the merger plan respectively provide:

4         Conditions

4.1       The  Scheme  is  conditional  upon  the  Final  Court  Orders  being granted by the Court in accordance with sections 236(1) and 237(1) of the Act on terms acceptable to the boards of PGG and Wrightson.

4.2       If  the condition  contained  in  section  4.1  is  not  satisfied  by  the Effective Time, then the Scheme will not proceed and this Merger Plan will be of no effect.

[12]     On 17 August 2005, PGG and Wrightson made a joint application to this

Court for orders approving the merger plan under Part 15 of the Act.  On 7 October

2005 the Court made a final order approving the merger plan and directing that it be binding on the applicants and their shareholders from the “Effective Date” which is defined in the plan as meaning 30 September 2005, or such later date as PGG and Wrightson may decide.

[13]     The merger plan was duly carried into effect.

This proceeding

[14]     Elders formed the view that the effect of the merger plan was to transfer Wrightson’s interests in the saleyards to PGG Wrightson, thereby triggering the pre- emptive rights contained in the various agreements and constitutions.  It issued this proceeding for the purpose of obtaining a declaration to that effect.

[15]   Counsel subsequently agreed that the proceeding could conveniently be determined  by  the  formulation  of an  agreed  question,  pursuant  to  r  418.    The question is posed in these terms:

Whether  the Court’s  order  of 7  October  2005  approving  the scheme  of arrangement sought by PGG Ltd and Wrightson Ltd had the effect of transferring,  selling  or  otherwise  disposing  of  Wrightson  Ltd’s  saleyard

interests to PGG Wrightson Ltd in terms of the prohibition on such transfer, sale or disposal set out in the saleyard agreements and constitutions.

[16]     It is that question which is now before the Court for determination.

The plaintiff’s argument

[17]     Mr Crossland, for Elders, submits that the merger plan to which Wrightson was a party involved a voluntary disposition by Wrightson of its assets, that the approval of the Court was simply a condition precedent to the effectiveness of the plan, and that the Court order was binding only on the parties to the merger plan and not on third parties such as Elders.  It follows, he submits, that Elders’ rights of pre- emption have been triggered.

[18]     He accepts that, had the amalgamation been effected under Part 13 of the Act, then no qualifying transfer or disposition would have occurred, but he contends that the legal consequences of Court approved amalgamation under Part 15 are not the same as those effected under Part 13.  It is therefore necessary to consider both Parts of the Act, in order to determine whether the distinction Mr Crossland seeks to draw is valid.

The scheme of the Act

[19]     Part  13  is  the  equivalent  of  Part  VA  of  the  Companies  Act  1955.    It commences at s 219 which provides:

219     Amalgamations

Two or more companies may amalgamate, and continue as one company, which may be one of the amalgamating companies, or may be a new company.

[20]     Section 220 provides for an “Amalgamation Proposal” which is a proposal for two or more companies to join together as a single entity, as permitted by s 219. Section 220 provides:

(1)           An  amalgamation  proposal  must  set  out  the  terms  of  the amalgamation, and in particular—

(a)       The name of the amalgamated company, if it is the same as the name of one of the amalgamating companies:

(b)      The registered office of the amalgamated company:

(c)       The full name or names and residential address or addresses of the director or directors of the amalgamated company:

(d)      The address for service of the amalgamated company:

(e)       The   share   structure   of    the   amalgamated    company, specifying—

(i)       The number of shares of the company:

(ii)      The rights, privileges, limitations, and conditions attached to each share of the company, if different from those set out in section 36 of this Act:

(f)       The  manner  in  which  the  shares  of  each  amalgamating company are to be converted into shares of the amalgamated company:

(g)      If  shares  of  an  amalgamating  company  are  not  to  be converted into shares of the amalgamated company, the consideration that the holders of those shares are to receive instead of shares of the amalgamated company:

(h)       Any payment to be made to a shareholder or director of an amalgamating company, other than a payment of the kind described in paragraph (g) of this subsection:

(i)      Details of any arrangement necessary to complete the amalgamation  and  to  provide  for  the  subsequent management and operation of the amalgamated company.

(2)      An amalgamation proposal may specify the date on which the amalgamation is intended to become effective.

(3)       If shares of one of the amalgamating companies are held by or on behalf of another of the amalgamating companies, the amalgamation proposal—

(a)       Must provide for the cancellation of those shares without payment or the provision of other consideration when the amalgamation becomes effective:

(b)       Must not provide for  the conversion of those shares  into shares of the amalgamated company.

[21]     Section 221 makes detailed provision for the steps which must be taken by the Board of each amalgamating company to obtain consent to the proposed amalgamation by shareholders.   There is also provision for the giving of notice to each secured creditor of each company, and for the giving of public notice of the proposed amalgamation.   The amalgamation proposal must be approved by the shareholders in each amalgamating company in accordance with s 106.

[22]     Section 223 provides for registration of an amalgamation proposal and directs that following approval by shareholders, the approved proposal be delivered to the Registrar, along with a number of certificates required to be completed by the Board of each company.

[23]     Section 224 provides that, upon receipt of the documents submitted under s 223, the Registrar is to issue a certificate of amalgamation.   Amalgamation takes effect  as from the date specified  in the proposal,  or  alternatively,  if  no  date  is specified, upon the date of registration.

[24]     Section 225 sets out the effect of the issue of a certificate of amalgamation. It provides:

225     Effect of certificate of amalgamation

On the date shown in a certificate of amalgamation,— (a)         The amalgamation is effective; and

(b)       If it is the same as a name of one of the amalgamating companies, the amalgamated  company  has  the  name  specified  in  the  amalgamation proposal; and

(c)       The Registrar must remove the amalgamating companies, other than the amalgamated company, from the New Zealand register; and

(d)       The  amalgamated  company  succeeds  to  all  the  property,  rights, powers, and privileges of each of the amalgamating companies; and

(e)       The  amalgamated  company  succeeds  to  all  the  liabilities  and obligations of each of the amalgamating companies; and

(f)       Proceedings pending by, or against, an amalgamating company may be continued by, or against, the amalgamated company; and

(g)       A conviction, ruling, order, or judgment in favour of, or against, an amalgamating company may be enforced by, or against, the amalgamated company; and

(h)       Any provisions of the amalgamation proposal that provide for the conversion  of  shares  or   rights  of  shareholders  in  the  amalgamating companies have effect according to their tenor.

[25]    Part 15 of the Act is wider in scope.   It provides for Court approved arrangements, amalgamations and compromises.   Section 235 is an interpretation section which contains definitions of the terms “arrangement”, “company” and “creditor” for the purposes of Part 15, but there is no definition of the expression “amalgamation”.

[26]     Section 236(1) provides:

236     Approval of arrangements, amalgamations, and compromises

(1)      Notwithstanding the provisions of this Act or the constitution of a company,  the  Court  may,  on  the  application  of  a  company  or  any shareholder or creditor of a company, order that an arrangement or amalgamation or compromise shall be binding on the company and on such other persons or classes of persons as the Court may specify and any such order may be made on such terms and conditions as the Court thinks fit.

[27]     There is provision in s 236(2) for the giving of directions by the Court before making an order under s 236(1), requiring that notice of the application be given to such person or class of persons as the Court may specify, directing the holding of a meeting or meetings of shareholders or any class of shareholders or creditors or any class of creditors of a company as the Court thinks fit, requiring that a report on the proposed arrangement or amalgamation or compromise be prepared for the Court, and specifying the persons who shall be entitled to appear and be heard on the application.

[28]     In the present case, the Court made initial ex parte orders:

a)       dispensing with service;

b)       giving directions as to the calling of meetings and prescribing the resolution to be put to the shareholders of each applicant;

c)        giving directions as to the notices and information to be supplied to shareholders.

[29]     Following  the  meetings,  the  final  order  of  7  October  2005  was  made approving the merger plan.  There was no opposition to the making of those orders.

[30]     Section 237(1) empowers the Court to make additional or ancillary orders consequential upon an order approving the arrangement or amalgamation or compromise.  That sub-section provides:

237     Court may make additional orders

(1)        Without limiting section 236 of this Act, the Court may, for the purpose of giving effect to any arrangement or amalgamation or compromise approved under that section, either by the order approving the arrangement or amalgamation or compromise, or by any subsequent order, provide for, and prescribe terms and conditions relating to,—

(a)       The transfer or vesting of real or personal property, assets, rights, powers, interests, liabilities, contracts, and engagements:

(b)      The issue of shares, securities, or policies of any kind: (c) The continuation of legal proceedings:

(d)      The liquidation of any company:

(e)       The provisions to be made for persons who voted against the arrangement or amalgamation or compromise at any meeting called in accordance with any order made under subsection (2)(b) of that section or who appeared before the Court in opposition to the application to approve the arrangement or amalgamation or compromise:

(f)       Such other matters that are necessary or desirable to give effect to the arrangement or amalgamation or compromise.

[31]     Finally, s 238 empowers the Court to approve an amalgamation under s 236, even though the amalgamation could be effected under Part 13.

Discussion

[32]     Part VA of the former Act was extensively reviewed by the Court of Appeal in Carter Holt Harvey Ltd v McKernan.  Part VA has become Part 13 of the 1993

Act, without material variation.  The Court of Appeal was not required to consider Part 15, but its analysis of the predecessor to Part 13 is helpful to a proper understanding of the scheme of that part of the Act.

[33]     The Court’s discussion commences with a consideration of s 209A of the

1955 Act, the equivalent of s 219 of the Act. The Court said (at 410):

Part VA commences with a general conceptual statement in s 209A. Two or more companies are to be permitted under the Part to amalgamate. But they will “continue” as one company. It can be one of the continuing companies. Or it may be a new company incorporated under the Companies Act 1993; in that case all are to continue in that new company.

The Court continued (at 411):

Continuance  is  of  the  corporate  entities,  not  of  the  undertakings  and operations of those entities. They merge into one corporation which is to be regarded as their equivalent or, more loosely, their successor. Section 209G speaks of the amalgamated company succeeding to all the property, rights, etc and all the liabilities and obligations of each of the amalgamating companies.  In  a  short  form  amalgamation  involving  a  parent  (under  s

209D(1)), the entity “succeeds” to property and liabilities which have been its property and liabilities beforehand, as well as succeeding to those of the other entities. But, as the parent continues and is not deemed to be dissolved, it is clear that “succeeds”, a word used in Canadian case law though not in the legislation in that country to which we have been referred, is not to be read as requiring that there be a predecessor and a successor. The merged entity succeeds to the assets and liabilities because that is where they are to be recognised as being or remaining as a result of the continuance of all parties to the amalgamation.

Section 209G also states that the amalgamating companies other than the amalgamated company are deemed to be dissolved. They are not said to have actually dissolved, which might have been considered inconsistent with the continuance which is directed by ss 209A and 209D. They are merely treated as  if  dissolved.  The  deeming  process  enables  the  Registrar  to  take  the sensible administrative action of removing their discarded carapaces from the register. (The current Companies Act in s 225(c) directs the Registrar to remove them from the register.)

The issue of the certificate of amalgamation under s 209F is merely the mechanical step whereby the process of amalgamation (including deemed dissolution) becomes effective but it does not affect or impinge upon the continuance of all corporate identities in the amalgamated company.

Lastly in our consideration of the language used in Part VA, we find nothing which requires the drawing of any distinction between pre and post- amalgamation rights or liabilities.

[34]     The Court drew on Canadian authority which, in the context of materially similar legislation, also emphasised the continuance of the corporate parties to the amalgamation, whether under the umbrella of one of those existing entities, or as a new entity:  see for example Stanward Corp v Denison Mines Ltd (1966) 57 DLR (2d) 674, and R v Black & Decker Manufacturing Co Ltd (1974) 43 DLR (3d) 393.

[35]     The Court of Appeal referred expressly (at 413) to the use of the expression “succeeds” (in s 225(d) and (e)), and observed that a literal interpretation of that expression was to be avoided, since it suggested a vesting by operation of law in a new entity – a result inconsistent with the notion that companies participating in an amalgamation continue in existence as part of the new amalgamated entity.

[36]     It is to be noted that recent Canadian authority reaffirms the earlier decisions in that jurisdiction:   North Fraser Harbour Commission and Anor v AG of British Columbia and Ors (2005) 247 DLR (4d) 404 (SCC).

[37]     The first point taken by Elders is that, while a Part 13 amalgamation occurs by operation of law, that under Part 15 is the result of a consensual agreement.  The parties reserved the right to withdraw their application for approval if the Court imposed conditions that were unacceptable to them.  Moreover, the decision to seek an order was that of the parties themselves, not of the Court or as a necessary result of the scheme of the Act.

[38]     I am quite unable to appreciate the distinction which Mr Crossland seeks to make in this respect between Parts 13 and 15.  While there are obvious differences in the prescribed procedure, each procedure depends ultimately on a step taken by or on behalf of the amalgamating parties.  In Part 13 it is the filing of the documents which must precede the issue of a certificate of amalgamation.  In Part 15 it is the filing of documents in this Court, for the purpose of seeking a final order of the Court.   In either case, the parties are able to take that final step, or not, as the case may be. Counsel placed significant emphasis on the issue of the certificate of amalgamation under s 224 and submitted that because the certificate automatically gave rise to the consequences set out in s 225, a Part 13 amalgamation could not be said to effect a transfer or disposition.   But that argument overlooks the role of the amalgamating

parties in putting the amalgamation in train.   Moreover, the certificate is only a mechanical step whereby the amalgamation becomes effective:  Carter Holt at 411. The different machinery prescribed cannot, in my view, of itself give rise to the conceptual distinction which Mr Crossland seeks to make.

[39]     Second, he argues that the final order made by the Court is expressed to be binding only upon the applicants, Wrightson and PGG, and is not therefore binding upon Elders.    Accordingly,  he says,  the order  can have  no  effect  upon  Elders’ entitlement to invoke its pre-emptive rights.

[40]     The answer  to  that  proposition,  as Mr  Jagose  submits,  is  that  the  direct participants  in  the  amalgamation,  and  their  shareholders,  are  the  only  persons directly affected by the amalgamation, and accordingly, are the only parties who need to be expressly bound.   Other parties, those dealing with the amalgamating companies, are unaffected because the amalgamating parties continue as part of the amalgamated entity.

[41]     Moreover, there is an inherent dissonance in this argument.  If Mr Crossland is right, no-one other than the applicants and their shareholders would be bound by the  Court  approved  amalgamation.     It  would  follow  that  the  amalgamation participants would be obliged to order their affairs, and to  carry on their  future business, in terms of the Court order and of the merger plan, but all other persons dealing with them would be entitled to act without regard to the amalgamation.  For example, proceedings could be commenced against Wrightson, even though in terms of the merger plan the old Wrightson entity had been struck off the register of companies.   A successful plaintiff might seek to enforce its judgment by levying execution against assets formerly owned by Wrightson, even though in terms of the merger plan, PGG Wrightson had become the owner of those assets.

[42]     Outcomes   such  as   those   are   untenable   and   could   never   have   been contemplated by the Legislature.

[43]     Mr Crossland’s next argument tended to assume what it set out to prove.  He submitted that PGG (being the same incorporated entity as that which became PGG

Wrightson) could only acquire Wrightson’s property by way of transfer from Wrightson, and that, in effecting that transfer, Wrightson must inevitably have triggered Elders’ pre-emptive rights.

[44]     In support of that submission, Mr Crossland referred to Re Skinner [1958] 3

All ER 273 at 276, in which it was held that a party could transfer only such rights, powers, duties, and property pursuant to the English amalgamation legislation as were capable of being lawfully transferred by a party to a scheme if no such sections of  the  Act  existed.    Re  Skinner  is  based  on  Nokes  v  Doncaster  Amalgamated Collieries Ltd [1940] 3 All ER 549, a decision criticised in Carter Holt as involving a misapprehension of the elements of a statutory amalgamation.   Re Skinner binds neither the Court of Appeal nor this Court.

[45]     Rather more fundamentally, Mr Crossland’s argument assumes that there has been a transfer from Wrightson to PGG.  The concept of amalgamation as discussed in Carter Holt involves no such transfer.   Mr Crossland’s argument  involves an assumption that Wrightson parted with its assets upon the completion of its Part 15 amalgamation.  In my view it did not.  The assets and liabilities of Wrightson, and Wrightson itself, are to be found within, and as part of, PGG Wrightson.   Elders’ pre-emptive rights remain and may be invoked against PGG Wrightson in the future, but the pre-emptive rights are not triggered by an amalgamation which involves no transfer or disposition.

[46]     Mr Crossland’s next point relied upon the absence in s 237(1)(a) of a power for  the  Court  to  direct  that  one  party  was  entitled  to  “succeed”  to  property, consequent on the making of an order.   He contrasted that with s 225(d) and (e), which provide that, as an automatic consequence of the issue of a certificate of amalgamation,  the  amalgamated  company  succeeds  to  all  the  property,  rights, powers  and  privileges  of  each  of  the  amalgamating  companies,  and  to  all  the liabilities and obligations of those companies.

[47]     In a sense the reference in s 225 to succession is misleading, because the amalgamated company does not in truth succeed to the rights and obligations of the amalgamating  participants.    Rather,  it  becomes  those  participants.  There  is  no

predecessor and no successor:  Carter Holt at 411. Be that as it may, the omission of s 237(1)(a) to provide for orders relating to “succession” is not in my opinion, of relevance because:

a)        Section 219, a declaratory provision, is not on its face confined to Part

13 amalgamations.   In principle there is no reason so to restrict it. That being so Wrightson, and all of its rights and interests, continue as part of PGG Wrightson.   There is no need for any provision empowering the Court to make an order with respect to succession.

b)       Section 225 merely declares, as a matter of machinery, the legal effect of the issue of a certificate of amalgamation.  There is no need for a parallel provision in s 237 because a  merely declaratory provision does not fit within the scheme of a section aimed at empowering the Court to make orders “for the purpose of giving effect to any arrangement or amalgamation …”.   Succession is an automatic consequence  of  amalgamation.    Section  237  has  as  its  principal purpose the conferment on the Court of ancillary or machinery powers “for the purpose of giving effect to” an arrangement, amalgamation or compromise  which has  been  approved  under  s  236.    The  powers available under s 237 depend on there being a prior order under s 236: Greymouth Petroleum Mining Co Ltd v Fletcher Challenge Ltd [2001]

2 NZLR 786 at 798 (CA). An order as to succession is not ancillary at all. Rather, it lies at the very heart of the amalgamation.

[48]     Elders further argues that the explicit provision made in s 237 for the Court to make ancillary orders directing the transfer of property, suggests that the “amalgamation” contemplated by Part 15 is not conceptually the same as that for which provision is made in Part 13. The short answer to that, in my view, is that Part

15 deals not only with amalgamations but with arrangements and compromises.  The range of ancillary orders mandated by s 237 must be considered in the light of the wide jurisdiction which Part 15 confers.

[49]     Finally,  Mr  Crossland  argued  that  s  238  was  of  no  assistance  to  PGG Wrightson.   I disagree.   That section contemplates amalgamations which might be accomplished either under Part 13 or Part 15.  In other words, a Part 15 application to the Court may involve a merger plan which could have been carried into effect under Part 13. It is not difficult to imagine circumstances that would lead to a Board decision to invoke the Part 15 procedure, rather than that set out in Part 13.  Indeed, in this case, counsel for the amalgamating parties explained to the Court, in the course of their  s 236  application,  that the  Part  15 jurisdiction  had  been chosen because:

a)       If the merger plan was approved by the requisite majorities at the prescribed  meetings,  the  Part  15  procedure  provided  the  most available certainty of outcomes for all stakeholders (shareholders, management, creditors, and market participants).

b)       The Part 15 procedure enabled the steps comprised in the merger plan to take effect in a prescribed order.   By contrast, the Part 13 amalgamation provisions simply provided for an amalgamation proposal to become effective on a particular day.  The sequence of the steps   involved   in  the   merger   plan  was   important,   because   it determined the tax effect of the scheme for the amalgamating parties and their shareholders.

c)       There  were  issues  as  to  the  classification  of  shareholders  for  the purposes of convening separate meetings,  which were  more easily resolved with the assistance of the Court.

Summary

[50]     I am satisfied that Wrightson and PGG sought and obtained approval to an amalgamation to which s 219 applies.  In particular, and at the heart of the merger plan, the provisions of paragraph 2.1(i)(i-iv) inclusive are materially identical to the provisions of s 225(d)-(g) inclusive of the Act.

[51]     As  is  explained  in  Carter  Holt  Wrightson  continues  as  part  of  PGG Wrightson, although the former Wrightson entity has been struck off the register of companies. Consequently, the assets and liabilities of Wrightson continue in PGG Wrightson.  Wrightson has not transferred or disposed of anything.   It remains the owner of its saleyard interests because it is, for present purposes, PGG Wrightson. Elders’ pre-emptive rights have therefore not been triggered.

Result

[52]     The agreed question formulated pursuant to r 418 is for the foregoing reasons answered “No”.

[53]     The defendant is entitled to costs.  Counsel may file memoranda if they are unable to agree.

C J Allan J