Marsden Maritime Holdings Limited
[2025] NZHC 1520
•11 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-938
[2025] NZHC 1520
IN THE MATTER of a scheme of arrangement under Part 15 of the Companies Act 1993 MARSDEN MARITIME HOLDINGS LIMITED
Applicant
Hearing: 11 June 2025 Appearances:
A E Hansen and M A O’Brien-Gortner for the Applicant
M G Hay for Northland Regional Council, Port of Tauranga Ltd and Ngāpuhi Investment Fund Ltd
Judgment:
11 June 2025
JUDGMENT OF GAULT J
This judgment was delivered by me on 11 June 2025 at 2:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors:
Ms A E Hansen, Mr D Jones and Ms M A O’Brien-Gortner, Heimsath Alexander, Auckland Mr R Wallis, Mr E S Scorgie, Ms M G Hay and Mr T Harris, Chapman Tripp, Auckland Copy to:
Mr M Cunliffe and Mr W Bloomfield, Takeovers Panel, Wellington
RE MARSDEN MARITIME HOLDINGS LTD [2025] NZHC 1520 [11 June 2025]
[1] Marsden Maritime Holdings Ltd (MMHL) applies by way of originating application for orders approving a scheme of arrangement (Scheme) under Part 15 of the Companies Act 1993 (Act).
Background
[2] The Scheme is for the acquisition of all fully paid ordinary shares in MMHL (other than those held by Northland Regional Council (NRC)) by an unincorporated joint venture consortium comprising NRC, Port of Tauranga Ltd (POT) and Ngāpuhi Investment Fund Ltd (trading as Tupu Tonu).
[3] The consortium confidentially approached MMHL in August 2024 and provided an unsolicited non-binding indicative offer to acquire the Shares. A process ensued over a period of approximately six months. During that period, the MMHL board undertook a comprehensive process to ensure the price ultimately put forward in the Scheme proposal was in the shareholders’ best interests.
[4] The consortium and MMHL negotiated the terms of the offer leading to the consortium’s offer to acquire the Shares for the price of NZ$5.60 per share (Scheme Consideration).
[5] The parties entered into a scheme implementation agreement dated 24 February 2025 (SIA) which was announced to NZX on 25 February 2025.
[6] MMHL’s directors recommended the Scheme in the absence of a superior proposal, and subject to the Scheme Consideration continuing to fall within or above the valuation range determined by Grant Samuel & Associates Ltd, the Independent Adviser appointed by MMHL (Independent Adviser) in its draft report on the Scheme.
Initial orders
[7] Following a teleconference on 29 April 2025, I granted initial orders on 30 April 2025 and amended orders on 1 May 2025 in respect of service, representation and the seeking of shareholder approval for the Scheme.1
1 Minutes dated 29 and 30 April and 1 May 2025.
Subsequent steps
[8]Since the initial orders were granted:
(a)MMHL has sent to the consortium and the Takeovers Panel copies of the documents it filed in this proceeding.
(b)MMHL has distributed the Shareholder Materials as required and lodged the Scheme Booklet on the NZX market announcement platform.
(c)MMHL held the Scheme Meeting on 29 May 2025. At the Scheme Meeting, shareholders approved the Scheme. The result was announced to the NZX Main Board, and notified to shareholders, the consortium and the Takeovers Panel.
(d)In relation to the condition that the Independent Adviser’s report concludes prior to the Scheme Meeting that the consideration is within or above the Independent Adviser’s valuation range for the Shares, the Independent Adviser’s report confirmed a valuation range of $5.06 to $5.83 putting the share price within the acceptable range, such that this condition is satisfied.
(e)The consortium and NZ Hold Co, now incorporated and named Northport Group Ltd, executed a Deed Poll binding it to pay the Scheme Consideration in accordance with the Deed Poll terms on 30 May 2025. Northport Group Ltd will hold the Scheme Shares on behalf of the consortium members in the following percentages unless otherwise agreed with the consortium:
(i)NRC 43%;
(ii)POT 50%; and
(iii)Tupu Tonu 7%.
(f)A no objection statement from the Takeovers Panel was received on 6 June 2025.
Interested parties
[9] NRC, POT and Tupu Tonu jointly filed a notice of appearance in support of the originating application.
[10] No other party has filed a notice of appearance or notice of opposition in respect of MMHL’s application for final orders.
Applicable legal principles
[11] Section 236(1) in Part 15 of the Act provides the Court’s jurisdiction to approve a scheme of arrangement subject to such terms and conditions as the Court thinks fit:
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.
[12] An “arrangement” is defined only by inclusion in s 235 and the Courts have interpreted “arrangement” broadly. The Scheme is within the scope of s 236.
[13] Section 236A of the Act provides special rules for an arrangement affecting “voting rights” of a “code company” as those terms are defined in s 2(1) of the Takeovers Act 1993. MMHL is a code company including because the arrangement involves a transfer of shares that affects CIPH’s voting rights. Thus, s 236A applies. It provides:
236A Arrangement or amalgamation involving code company
(1)If a proposed arrangement or amalgamation affects the voting rights of a code company, the applicant for an order under section 236(1) must, at the same time as filing the application, notify the Takeovers Panel of the application.
(2)The court may not make an order under section 236(1) that affects the voting rights of a code company unless—
(a)the code company's shareholders approve the arrangement or amalgamation in accordance with subsection (4); and
(b)either of the following applies:
(i)the court is satisfied that the shareholders of the code company will not be adversely affected by the use of section 236(1) rather than the takeovers code to effect the change involving the code company; or
(ii)the applicant has filed a statement from the Takeovers Panel indicating that the Takeovers Panel has no objection to an order being made under section 236(1).
(3)The court need not approve a proposed arrangement or amalgamation merely because the Takeovers Panel has no objection to an order being made under section 236(1).
(4)For the purposes of subsection (2)(a), the code company's shareholders may only approve the arrangement or amalgamation in the following way:
(a)by a resolution approved by a majority of 75% of the votes of the shareholders in each interest class entitled to vote and voting on the question; and
(b)by a resolution approved by a simple majority of the votes of those shareholders entitled to vote.
(5)For the purposes of this section and section 236B,—
affects the voting rights, in respect of an arrangement or amalgamation, means an arrangement or amalgamation that involves a change in the relative percentage of voting rights held or controlled by 1 or more shareholders
interest class may be determined in accordance with the principles set out in Schedule 10
voting right has the meaning set out in section 2(1) of the Takeovers Act 1993.
[14] Thus, in this case a pre-condition to an order under s 236(1) is shareholder approval by:
(a)a majority of 75% of the votes of the shareholders in each interest class entitled to vote and voting; and
(b)a simple majority of the votes of those shareholders entitled to vote.
[15]Here, there are three interest classes:
(a)NRC;
(b)Mr Lindsay Faithfull; and
(c)all other shareholders.
[16] Section 237 provides that, without limiting s 236, the Court may make additional orders for the purpose of giving effect to any arrangement approved under that section. These include orders providing for and prescribing terms and conditions relating to the transfer or vesting of real or personal property, assets, rights, powers, interests, liabilities, contracts, and engagements.
[17] In exercising the Court’s broad discretion when deciding whether to approve a scheme under s 236,2 the four-part test to be applied is well-established. It was summarised in C M Banks Ltd,3 and more recently in a number of other cases in this Court,4 as being the duty of the Court to see:
(a)that there has been compliance with the statutory provisions as to meetings, resolutions, the application to the Court, and the like;
(b)that the scheme has been fairly put before the class or classes concerned; and that if a circular or circulars have been sent out, as is usual, whether before or after the making of the application to the Court, they give all the information reasonably necessary to enable the recipients to judge and vote upon the proposals;
(c)that the class was fairly represented by those who attended the meeting and that the statutory majority are acting bona fide and are
2 Weatherston v Waltus Property Investment Ltd [2001] 2 NZLR 103 (CA) at [31].
3 Re C M Banks Ltd [1944] NZLR 248, [1944] GLR 61 at 253.
4 See for example Re ACS (NZ) Ltd [2012] NZHC 1396 at [4]; Re Auckland International Airport [2014] NZHC 405 at [8]; Re Newplex Industries [2016] NZHC 1677 at [10]; Re Fliway Group Ltd [2017] NZHC 3216 at [8]; Re Trilogy International Ltd [2018] NZHC 580 at [14]; Re Methven Ltd [2019] NZHC 608 at [8]; Re Trade Me Group Ltd [2019] NZHC 840 at [11]; Re Metlifecare Ltd [2020] NZHC 2752 at [14]; Re Abano Healthcare Group Ltd [2020] NZHC 3343 at [21]; Re Tilt Renewables Ltd [2021] NZHC 1861 at [12]; Re Z Energy Ltd [2022] NZHC 841 at [14]; Re Pushpay Holdings Limited [2023] NZHC 1083 at [29]; and Re CIP Holdings Ltd [2025] NZHC 851 at [19].
not coercing the minority in order to promote interests adverse to those of the class whom they purport to represent; and
(d)that the scheme is such that an intelligent and honest person of business, a member of the class concerned and acting in respect of his [or her] interest, might reasonably approve.
[18] The Court of Appeal has said that it is apt to supplement this last limb with consideration of whether the arrangement is fair and equitable.5
Discussion
I deal with these requirements in turn.
[20] First, I am satisfied that MMHL has complied with the relevant statutory requirements. In particular, as Ms Hansen submitted, since the initial orders were made:
(a)The statutory processes set out in the Act, including the process in Part 15 of the Act, have been followed.
(b)The Takeovers Panel has been duly notified of the application in accordance with s 236A(1) of the Act and has provided a no objection statement.
(c)The resolution to approve the Scheme was approved by the requisite statutory thresholds in s 236A(4) of the Act. In the three interest classes, the results of the vote were:
NRC – 100% in favour;
(ii)Mr Faithfull – 100% in favour;
(iii)All other shareholders – 93.68% in favour;
(iv)Total votes – 84.82% in favour.6
5 Weatherston v Waltus Property Investment Ltd [2001] 2 NZLR 103 (CA) at [35].
6 The votes cast comprised 86.92% of the issued capital.
[21] The Scheme remains subject to conditions, including the absence of any “Material Adverse Change” and the absence of any “Prescribed Occurrence” as defined in the SIA. However, I accept that the Court may approve the Scheme notwithstanding such conditions.7 They were disclosed to shareholders in the Shareholder Materials and, therefore, shareholders gave their approval of the Scheme in knowledge of them.
[22] Secondly, I am satisfied the Scheme has been fairly put to shareholders through materials that were duly made available in accordance with the initial orders, and which fairly represented the Scheme to shareholders. As Ms Hansen submitted, the Shareholder Materials were comprehensive but succinct. The disclosure to shareholders was full and fair, and provided sufficient information to enable shareholders to make a properly informed judgement as to whether to support or oppose the proposal. The Shareholder Materials explain (among other things):
(a)information about the Scheme, including the background to and rationale for the proposed Scheme;
(b)the recommendation of the Board;
(c)reasons why shareholders may choose to vote in favour of the Scheme;
(d)reasons why shareholders may choose to vote against the Scheme, and steps shareholders can take if they are not in favour of the Scheme;
(e)additional matters for shareholders to consider in relation to the Scheme;
(f)what happens if the Scheme is not approved by shareholders; and
(g)the status of conditions.
7 Re Trade Me Group Ltd [2019] NZHC 840 at [21], citing Re Methven Ltd [2019] NZHC 608 at [10]. See also Re Arvida Group Ltd [2024] NZHC 3053 at [17]–[18].
[23] The Shareholder Materials were also provided to, and commented on by, the Takeovers Panel.
[24] The Scheme Meeting was fairly conducted, and all questions were adequately answered, as addressed in the second affidavit of Ms Mercer, MMHL’s CEO.
[25] Thirdly, as Ms Hansen submitted, there is no suggestion the shareholders did not fairly represent the classes or that the substantial majority supporting the Scheme did not act in good faith. The voting result at the Scheme Meeting demonstrates strong shareholder support for the Scheme.
[26] Fourthly, the Scheme is such that an intelligent and honest person of business acting in his or her own interest might reasonably approve. As Ms Hansen submitted, that the Scheme is reasonable and fair as indicated by the following:
(a)The Scheme provides for shareholders to obtain a premium for their shares. The Scheme Consideration of NZ$5.60 per MMHL share is towards the upper end of the Independent Adviser’s assessed value range for MMH shares. It represents a premium of 73% relative to the closing share price of $3.24 per share on 24 February 2025 and a premium of 70% over the volume weighted average price over the 30 trading days prior to the announcement. MMHL shares have low trading liquidity with 73.5% of the shares being owned by NRC and Ports of Auckland Ltd.
(b)The Scheme does not impact MMHL’s creditors. The Scheme is a transfer of shares in MMHL and going forward, MMHL will remain indebted to its creditors.
(c)The strong shareholder support.
(d)MMHL’s Board continues to support the Scheme.
[27] I add that there has been no opposition to the Court application to raise any issue of prejudice.
[28]Overall, I am satisfied the Scheme should be regarded as fair and equitable.
[29] In all the circumstances, I am satisfied that the Scheme should be approved. The orders sought are appropriate.
Result
[30]I make the following orders:
(a)The proposed scheme of arrangement between the applicant, Marsden Maritime Holdings Limited (MMHL), and its shareholders, as described in the Scheme Plan, a draft of which is annexed to this judgment (Scheme Plan), is approved and binding upon MMHL, all of its shareholders, the consortium of Northland Regional Council, Port of Tauranga Ltd and Ngāpuhi Investment Fund Ltd, and all such other persons as are necessary to give effect to the Scheme;
(b)MMHL is granted leave to apply to the Court for approval of any amendment, modification or supplement to the Scheme.
Gault J
ANNEXURE – SCHEME PLAN
149
Scheme of Arrangement Under Part 1S of the Companies Act 1993
DEFINITIONS AMD c ¥fsTRwCTlON
Bus•nss Oohmeans any diy other tea n a Sa urday, Sunday, a g/tutory public holiday in AucMand, No Zealand;
Companies Act m ea frs the Com panits Act 1993i
ComputersfiqJ•e means Computershare Tnveacor services Limitadi
condiaons maa ns.
a] be ognaitlons sac out in clause 5.1 Drthe Wneme Tmplementation
Agreements ar+d
(•J
1S0
And Ate has th e m aani ng g•ve n t'o thot term in the Sc here Imp\< mnntañon Agreemeng
/mp/emc ntor/'on Oore means the day on which the Bcheme •s to be implemente d, being the date three Bgsi n <s Days after be Record Oats, or uch gth nr date a s the Con sortium a nd it EH ag re e in or itng, and Implement ation cor respond ingIy means th e Nm e at whfch ion ple m entation com men ces ii th be IIrat step and er clause 4.1(d) ;
NRC £fisr/fig S/:'ores In as the mea nIng given to that tcrr n in Skye Scheme T inpIemcr•tution Agroe ment;
NT means SIZE L imited an d. w hcm th e corrboxt raquires, the ma in boord F nancia I mark:et th at it ape rates;
PAOrd Opte h89 the m e4n ing givcrt to that term in the Scheme
i'eg’seer sea ns th c Share ragisber ma intainad by Computershg re gn beIjo}f of MMH;
9eg/'zterwdAa\u"'zss means, in re lation to a Share holder , the ad6xss of that Share holder shown in the Pegistcr a s at the Reco rd Data ;
Scñeme /mlumen u 'on Ay ement mea ns the sc heme impIement:srion
a gree merit dated 24 FebrsJary 202 between M f•+H and the Con so rtium;
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CON9tDEBATtON IMTO TRUST AODDUNI'
3.S
9uéfect'tb'be Slshame'lrr p4en énté4on Agreement hwih'g been zamllfi and the.5chem• having become Unoondftfonel (Opt for be C•n.diti9n• sat of in cTatses. 5.the] •nd/ oftfi• Sch'eme ImpIemerr£at&
Agreement]. ?*e aertlum must, by no*kswr than 5.0Opm on the Owinees
153
Day before \+ie Implement ation Oate, deposit [or pmcure Cha dspasit o/ i o
i mrnediaWg oxu home cleared fu nds a n amoun z eqn I ro che ag gregate a mount of the Consi¥Bñatioh po yobl e to Scheme Sharehol ‹IerS In 0 Ne'w deal and do Star denominated trust acgg unt operated by C omputorshaW and n otified by
Com putershare to the C onsorcium n a I ater tha n 5 .0 Opr on the BsJsiness Osy
fa I li ng th ree Busi ness Oaks before the Im ptam ant ad on Oatce (th chat accosJnt the Trust- Acco u nt).
Fund s a nd
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(b)
Details & Tru¥t Account
Subject to clauses Z.2 (b), 5.4, 5.5 and 5.6, tJ+e Trust Acco Int w•II be held an d operate-rJ b\ COWptJte rshare on the bo sis thot tDe Fund S a/ fraid on t rust fr•r the Cc+n sortiVrfi and ¥o its order, sue h that c'nIy the Con So rri urni may direct how o runds will be paid from the Trust Account.
(u)The d ct4 I Is cii the Trust Account will be providcd to The C oos orlfium by [or on behalf o\ C ompu@r eho re noc less than th rae Busines* Days before the Inn plemenca tion Oat›e.
Any interest earn cd en th e omosJ nt deposited in th e Tru st §ccou nt up to hc pie mentation will be paya blc ip the Co n sa rtium by Compu re rsha 'e a6 6lrcotod k+y th e Consorc¡um (}ess Bank focs and other thi Fd parI•y uh argea relating £o I he Trust AccosJnt).
3.'4
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ir•scrucIed to Ge'mpute rsfiare Hy the Consortium
In1PLEI•tENTATf¢tN
Subjwt a :
any amendm ents a r yar{a tions a0 nJgy 6e reQu irad by th e Court ;
(b]th a cond Itions referenced i n c la u se 2 being /tfsf i<d (ea be confirmed to Computersham by writte n notice given by the Con sortI um o nd M MH prior @
8. 0Oam on the Tm pks ment a t}gn Oak, whic h WFiM8 fl notica must be *o g ion Immeg•ntelY after 8.O0am on the T mph ne ntntion Dat upsn the cond•ti o•• *et out in cl arse 2 being saLisf i eds ;
(e) the Conside ration k aving been de posited into t he Trust Accov• t i n accordance
154
oom merro¿ng at 9.0 0a m on tha Imp4a m antation Ooze, the lot lowing sips will
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(e)i n aocordonee with the direction ser osJc iJ\ clause Z.2 (b], s ubjyct tg cgrnp}fanc e in fuIt wi¢h clv use 4. T d) M MH m ust Instruic t Corysput›ershare to pay or pr ocurg 'the payment frgrrj the T est Acoou nt of the ca s h Consiaaration to each Scheme Share ho Idcr base d on tha number c'f Snheme Shares heId by that Sc heme Share ho4der as eat out in th a Registe r as at the I"-ie card Do ce.
PAvtaENT OF C€tNSIDERATILfN
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•°m 'int dev Is to enaLiIe Gompti tersha rc and.NMH to make palm ents of
No Z#aIa r+d doII ars by eTeotr•onic fund s tren afar, Compute rshare must p8v me Consideration in New Zaal and dollars to th e Scheme ghareholder by eNcrrsn•c funds transfer of the reIe'vant amori nt to the bank account nem•nawd by th at Be heme Share holder;
(b]when a Schema Sh are holder that h as an address outside of New ZeoIond has, prio r t'o the discord Date, rugisterad to be paid by Hyperw8 Ilet, Com puter6harc meat tea n sfar the Cons\deratlo n owed to such Sche me Shh hoIcp•r to the New ZeoIond dollop rfe n< rr in ateg tress actsnt operated by Hlypa realist and
i nutr sJct: Hype run I •t to ;ray that Consideration @ss any applic able eosts and rees) to s uch Schan S!n are holder (In the currency nom inared by such Fch eme Sha reholder to Hype rwa IIet); or
(c)when o S¢h<rri•• Oh ar'ehoI for has not provided the information a n id[or ¢aken the steps cont-em platad by c lau ses 5.1(a) and 5.T [b § to enab ie payment to be made to sueh Scheme Shareho Ider in a m onner confer elated @ r•ne c Fthow clauses or if ten electronic payme nt in such Scheme Shara h older is reacted bx the rec•pe nt ban k), Com pliters hare mu st retain the Consideration owed to that Scheme Shareholde r in the Trust Acco unt to b'e claimed by the Sch eme Shara holder in accorda n ce with clause g.S.
If a S hareholdar has giwn mora then on e pay ment di /ctiqn, th cn che later dir ection in time of recei t of II be UI IgwyQ.
f•Iar sdvi• I'flarfiima Nolings
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