Trustpower Limited - [2016] NZHC 1838

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-1768 [2016] NZHC 1838

UNDER Part 15 of the Companies Act 1993

IN THE MATTER OF

an appliction for orders approving a scheme of arrangement under s 236 of the companies Act 1993

BETWEEN

TRUSTPOWER LIMITED First Applicant

BAY ENERGY LIMITED Second Applicant

AUSTRALASIAN RENEWABLES LIMITED

Third Applicant

TARARUA WIND POWER LIMITED Fourth Applicant

Hearing: 8 August 2016

Appearances:

S A Armstrong and A J Nelder for Applicants

Judgment:

9 August 2016

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty on
9 August 2016 at 1.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Russell McVeagh, Auckland

TRUSTPOWER LIMITED [2016] NZHC 1838 [9 August 2016]

[1] This is an ex parte interlocutory application for initial orders under Part 15 of the Companies Act 1993 made by Trustpower Ltd, Bay Energy Ltd, Australasian Renewables Ltd and Tararua Wind Power Ltd.

[2] It is public knowledge that Trustpower Ltd and the other applicants are proposing entering into a scheme of arrangement under Part 15 of the Companies Act. Trustpower Ltd is a listed company and as a result it is important that details about its affairs are released on an orderly basis. The scheme of arrangement will require approval of the shareholders. The whole process is required by law to be overseen by the High Court.

[3] The High Court sat in Chambers on Monday 8 August 2016 to examine the merits of a without notice application for initial orders. These being orders approving and fixing the process towards applying for, all going well, a final order of this Court. The Court was provided with considerable information by way of affidavit and exhibits from Mr Paul Morton Ridley-Smith the chairman of the Board of Directors of Trustpower, Mr K J Palmer the Acting Chief Financial Officer of Trustpower, Mr A J Grenfell a chartered accountant of Auckland and Mr G A Anderson a specialist advisor to publicly listed companies. The application for interim orders was supported by detailed submissions from Ms Armstrong taking the Court through the steps planned to take place towards obtaining shareholder approval to the scheme of arrangement, before applying to the Court for final orders.

[4] The bulk of the hearing was taken with my following up on the issue of a minute on 4 August where I raised some questions, and receipt of a memorandum of counsel from Ms Armstrong in reply on 8 August 2016. The outcome is that I am satisfied that this application has been carefully prepared. It takes into account the interests of all persons and businesses affected by the proposal, so far as I can tell at this interim stage.

[5] The result is that I agree with the draft interlocutory orders formally intituled

“Interlocutory Orders Giving Initial Orders Under Part 15 of the Companies Act

1993, 8 August 2016”, a copy of which is attached to this judgment. These orders are made.

ORDERS

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Trustpower Limited

Details

AGLC: Trustpower Limited [2016] NZHC 1838
Case: [2016] NZHC 1838
Decision Date: 9 August 2016

CaseChat Overview and Summary

Trustpower Limited, along with Bay Energy Limited, Australasian Renewables Limited, and Tararua Wind Power Limited, applied for initial orders under Part 15 of the Companies Act 1993 to approve a proposed scheme of arrangement. The scheme aimed to effect a demerger of Trustpower into two separate companies. The applicants sought approval from the shareholders and subsequent oversight by the High Court. The legal issues before the Court were whether the application was adequately prepared, took into account the interests of all affected parties, and whether the proposed scheme of arrangement was fair and reasonable.

The Court was satisfied that the application had been meticulously prepared, considering the interests of all stakeholders to the best of its ability at the interlocutory stage. Justice Fogarty approved the draft interlocutory orders, which outlined the timetable and procedures for the upcoming application for final orders. The key components of the interlocutory orders included the timetable for the final order application, service and representation requirements, confidentiality of certain documents, details of the shareholder meeting, distribution of shareholder materials, and the rights of opposition and minority buy-out. Justice Fogarty granted leave to the applicants to apply for further interlocutory orders as necessary.

In summary, the Court granted the interlocutory orders, setting the stage for the final order application in October 2016. The orders provided a clear framework for the demerger process, ensuring proper communication and consideration of the proposal by Trustpower's shareholders and other affected parties.

Orders