FEDERAL COURT OF AUSTRALIA

In the Matter of Foundation Healthcare Limited

ACN 002 611 501  [2002] FCA 742

CORPORATIONS – arrangements – application for leave to convene meetings of Shareholders and Optionholders to approve Schemes – Schemes involving transfer of shares and options to another company – effective merger – criteria for approval – function of Court – Explanatory Statement requirements – Independent Expert Report – not mandated – including forecast of earnings – whether ASIC consent necessary – other statutory requirements – interaction between Ch 5 and Ch 6 – application approved.

Corporations Act 2001 (Cth) s 411, s 413

Corporations Regulations Reg 5.1.01

Re Parmelia Resources NL (1994) 15 ACSR 392 cited

Re Bond Corporation Holdings Ltd (1991) 5 ACSR 304 cited

Re Stockbridge Ltd (1993) 11 ACLC 201 cited

Re ACM Gold Ltd (1992) 10 ACLC 573 cited

Re Jax Marine Pty Ltd (1967) 1 NSWR 145 cited

Re NRMA Ltd (2000) 3 ACSR 595 cited

Re Theatre Freeholds Ltd (1996) 14 ACLC 1150 cited

IN THE MATTER OF FOUNDATION HEALTHCARE LIMITED

ACN: 002 611 501

W3008 OF 2002

FRENCH J

11 JUNE 2002

PERTH

THE COURT ORDERS THAT:

1.         The Applicant be at liberty to convene the following meetings of holders of shares (Shareholders) and options to acquire shares in the capital of the Applicant (Optionholders) for the purpose of considering and if thought fit, approving with or without modifications, schemes of arrangement proposed between the Applicant and its Shareholders and between the Applicant and its Optionholders:

            (a)        a meeting of Shareholders of the Applicant who are holders of fully paid ordinary shares in the capital of the Applicant to be held at the Radisson Plaza Hotel, 27 O’Connell Street, Sydney, New South Wales at 10.30am (EST) on 16 July 2002 (Shareholders Meeting); and

            (b)        a meeting of Optionholders of the Applicant who are holders of the options to acquire shares in the capital of the Applicant exercisable on or before 31 December 2003 at an exercise price of 50 cents each to be held at the Radisson Plaza Hotel, 27 O’Connell Street, Sydney, New South Wales at 11.00am (EST) on 16 July 2002 (or as soon as possible after the meeting referred to in (a) has concluded) (Optionholders Meeting),

            (together the Meetings).  The relevant scheme documents are set out in Appendix 2 to the explanatory statement referred to in paragraph 4 below.

2.         Each of the Meetings shall be convened, held and conducted:

            (a)        in accordance with the provisions of Part 2G.2 of the Corporations Act (Act) that apply to members of a company and the provisions of the Applicant’s constitution that are not inconsistent therewith and that apply to meetings of members;

            (b)        on the basis that a quorum for the purpose of the Optionholders’ Meeting shall be 2 Optionholders, present in person or by proxy or attorney, and otherwise as if such Optionholders were a separate class of creditors; and

            (c)        on the basis that Corporations Regulations 5.6.12 to 5.6.36A do not apply to the meetings.

3.         Michael Denis Boyd or, failing him, Roger Christian Steinepreis, shall act as chairperson of the Meetings and report the results of those Meetings to this Court.

4.         The draft explanatory statement which is made up of:

            (a)        Annexure “PJM-7” to the affidavit of Phillip James MacLeod sworn on 31 May 2002 (excluding Appendix 5 – the Independent Expert’s Report); and

            (b)        the Independent Expert’s Report which is annexed as “PCW-1” to the affidavit of Peter Christopher Wall sworn on 4 June 2002,

            being the schemes booklet and explanatory statement required by s 412(1)(a) of the Act (Schemes Booklet), be and is approved (subject to any minor amendments required or approved by the Australian Securities and Investments Commission (ASIC) for the purposes of registration thereof under Section 412(6) of the Act).

5.         The Applicant shall (subject to the registration of the explanatory statement by ASIC pursuant to s 412(6) of the Act) dispatch documents in the form of the Schemes Booklet by ordinary pre-paid post (or by airmail to overseas holders) to the Shareholders and Optionholders at their addresses last known to the Applicant on or before 15 June 2002.

6.         Leave be given to make application for orders under ss 411(4) and (6) and 413 of the Act following the Meetings, as soon as practicable thereafter (such date to be arranged with the Registrar of the Court) for approval of the Schemes.

7.         There be liberty to apply upon the giving of 24 hours’ notice to ASIC and, where relevant, the Applicant.

8.         An office copy of this order shall be lodged with ASIC as soon as practicable after the order is made.

9.         The Explanatory Statement is to contain a statement to the effect that the forecast of earnings in the Independent Expert Report has not been included with the consent of ASIC as the Expert Report was not mandated by Item 8303 of Schedule 8 to the Corporations Regulations.

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

REASONS FOR JUDGMENT

Introduction

1                     Foundation Healthcare Limited (Foundation) provides premises, equipment and comprehensive practice management services to over 750 general practitioners in Australia.  It charges a fee to practitioners who conduct their practices at medical centres which it operates, such fee generally being calculated as a percentage of revenue received by the practitioners.  It operates ninety-nine medical centres throughout Australia and two public hospitals in Melbourne.  It  is presently operating at a loss.

2                     LifeCare Health Limited (LifeCare) is a substantial provider of physiotherapy services in Australia.  Some sixty practices operate under its name.  Of these, it owns twenty-three, the remaining thirty-seven being conducted under franchise arrangements.  It also undertakes other business activities relating to the provision of dental, occupational health, sports medicine and hospital services.  It also operates swimming classes for babies and Pilates studios in Queensland, New South Wales and Western Australia.

3                     On 10 May 2002, the companies announced their proposed merger for the stated purpose of creating an entity capable of delivering a broad range of community-based health care services under one management team.  It is proposed to effect the merger by way of schemes of arrangement under which:

(a)        Foundation Shareholders will be entitled to receive 3.8 new shares in LifeCare for each Foundation share held (“Share Scheme”); and

(b)        Foundation Optionholders with an exercise price of fifty cents on or before 31 December 2003, will be entitled to receive 3.8 new options in LifeCare for each Foundation option held (“Option Scheme”).

Foundation has applied to the Court under ss 411 and 413 of the Corporations Act 2001 (Cth) for leave to convene meetings of its Shareholders and Optionholders to consider the proposed schemes of arrangement. 

Nature of the Companies

4                     Foundation is a publicly listed company incorporated on 27 May 1993 under the Companies Act 1981 (NSW).  It has an issued share capital represented by 161,408,271 fully paid ordinary shares.  There is only one class of share.  The twenty largest shareholders hold approximately 69.3% of the issued fully paid ordinary shares in the company.  It has the following options on issue:

Number of                    Exercise Price               Expiry Date                  Scheme Status

Options                        Cents

8,000,000                    50                                31/12/03                      Scheme Options

3,000,000                    50                                07/10/05                      Non Scheme Options

8,459,173                    WAMP                        23/08/10                      Non Scheme Options

   410,000                    200                              03/05/05                      Non Scheme Options

   100,000                    145                              15/06/05                      Non Scheme Options

   150,000                    50                                15/07/03                      Non Scheme Options

   250,000                    50                                15/07/03                      Non Scheme Options

3,000,000                    40                                31/12/03                      Non Scheme Options

WAMP refers to the weighted average closing market price of Foundation shares on the 5 trading days prior to exercise.

The 8 million options, the subject of the proposed Scheme, are held by four Optionholders.  They are:

            Michael Boyd                                       2,500,000

            Cryspur Pty Ltd                                    4,500,000

            Genteel Nominees Pty Ltd                       500,000

            Jacqueline Hogan                                     500,000

5                     The directors of the company are Roger Steinepreis, Michael Denis Boyd, Anthony Edward Le Messurier, Colin Stephen Goldschmidt and Ralph Edward Shreeve.  The secretary of the company is Philip James MacLeod.  Mr Boyd, a chartered accountant, who was appointed to the Board on 22 January 2000, has a relevant interest in 18.9 million Foundation shares which he holds personally and through Covenant Nominees Pty Ltd, a company which he controls.  This represents 11.7% of Foundation’s issued capital.

6                     Foundation’s consolidated performance figures for the years ended 30 June 2000, 30 June 2001 and the six months ended 31 December 2001 show significant after tax losses, $6,216,000 in the year ended 30 June 2000, $28,336,000 in the year ended 30 June 2001 and $14,547,000 in the six months ended 31 December 2001.  These losses are considered, in an Independent Expert’s Report which is to go to Shareholders and Optionholders prior to the meetings, to be significantly attributable to poor integration of the businesses acquired, excessive overhead costs and high levels of debt.  However, it is said that the company achieved significantly improved operating earnings before interest, taxation, depreciation and amortisation margins  (EBITDA) in February and March 2002.  These have been primarily the result of cost reduction initiatives.  As at 31 December 2001, according to the Report, the company had total financial debt of about $66.4 million, intangible assets of $145.6 million and net tangible assets of approximately $1.67 million.

7                     LifeCare presently has on issue 98.6 million fully paid ordinary shares.  The twenty largest shareholders hold approximately 67% of the issued fully paid ordinary shares.  The top six shareholders of LifeCare who hold approximately 55% of the issued capital as at 26 March 2002, include Michael Boyd, the Chairman of Foundation.  His interests in 18.6 million LifeCare shares represents 18.82% of its issued capital.  LifeCare also has unlisted options on issue. 

8                     LifeCare made a net loss after tax of $291,000 in the year ended 30 June 2000, $516,000 in the year ended 30 June 2001 and $275,000 in the six months ended 31 December 2001.  In that six-month period net revenue increased by 36.7% and EBITDA increased by 166.7% to $487,370.  The company achieved a small positive operating cashflow of $7,000 for the year ended 30 June 2001, which increased for the six month period ended 31 December 2001 to $183,000.  Its total assets at 31 December 2001 were said to be $17,400.  Its total liabilities at that date were said to be $3,137,000.  This left it with a net asset position of $14,263,000.  This sum reflects the total equity. 

Nature of the Schemes

9                     The schemes of arrangement are outlined in the Explanatory Statement which it is proposed will be sent to Shareholders and Optionholders in Foundation.  It is proposed under the schemes that:

(a)        Foundation shares held by Foundation Shareholders will be transferred to LifeCare and, in exchange, Foundation Shareholders will be issued 3.8 LifeCare New Shares for each Foundation share transferred;

(b)        Foundation options held by Foundation Optionholders will be transferred to LifeCare and, in exchange, Foundation Optionholders will be issued 3.8 LifeCare New Options for each Foundation option transferred; and

(c)        Certain “Property” will be transferred by Foundation to LifeCare and the Court may, by later order, make orders under s 413 of the Corporations Act.

10                  The term “Property” is defined in the Schedule to the schemes of arrangement as:

“One (1) fully paid ordinary share in the capital of Foundation Ophthalmology (ABN 20 097 206 794), being 100% of the issued capital of that company owned legally and beneficially by Foundation.”

11                  If implemented, the proposed Schemes will result in Foundation becoming a wholly owned subsidiary of LifeCare.  It will no longer be listed on the Australian Stock Exchange.  According to the Explanatory Statement, the benefits of structuring the merger so that LifeCare acquires Foundation are that:

.           the Merged Group will have a fresh corporate structure from which it can commence its growth phase;

.           the amortisation expense for the Merged Group will be $4.6 million lower than Foundation’s amortisation expense;

.           the lower amortisation expense will significantly enhance the profitability of the Merged Group;

.           the enhanced profitability may cause the market to re-evaluate its sentiment towards the Merged Group.

The LifeCare New Shares issued to Foundation Shareholders will represent about 86% of LifeCare’s fully diluted issued capital.

12                  The effect of the Share Scheme as explained in the Explanatory Statement is  to compel each Foundation Shareholder (including those who do not vote on the Share Scheme or who vote against it) to:

(a)        Appoint Foundation to transfer all of the Foundation Shares held by them to LifeCare free from all encumbrances in exchange for their receiving the relevant Scheme Consideration, being 3.8 LifeCare New Shares for each Foundation Share held.

(b)        Agree to cease to be a holder of and to have any interest in, their Foundation Shares in return for receiving the relevant Scheme Consideration.

(c)        Agree to any variation, cancellation or modification of the rights attached to their Foundation Shares constituted by or resulting from the Share Scheme.

(d)        Agree to accept the issue to them of LifeCare New Shares; and

(e)        Agree to become a registered LifeCare Shareholder for the purpose of s 231 of the Corporations Act and to be bound by the Constitution of LifeCare as in force from time to time in respect of the LifeCare New Shares.

The Option Scheme will have a similar effect to the Share Scheme, save that it will apply to Foundation Options and the relevant Scheme Consideration will be LifeCare New Options.  The procedure being adopted with regard to the proposed Schemes allows for the characterisation of the Optionholders as contingent creditors of Foundation.  That is a characterisation which has been made in a number of cases, albeit it is attended with some doubt – Re Parmelia Resources NL (1994) 15 ACSR 392 (Steytler J).  Foundation has also entered into agreements with non-Scheme Optionholders under which it has covenanted to procure LifeCare to allot and issue to each such Optionholder a number of options to acquire LifeCare shares under a formula by which each non-Scheme Option should attract an entitlement to 3.8 LifeCare Options.  

13                  Conditions precedent to the Share Scheme are:

(a)        The approval of the Share Scheme by the requisite majority at a meeting convened by the Court pursuant to s 411 of the Corporations Act;

(b)        The making of an order by the Court approving the Share Scheme under s 411(4)(b) of the Corporations Act;

(c)        Lodgment with the ASIC of an office copy of the order of the Court approving the Share Scheme;

(d)        Such other conditions approved by the Court under s 411(4) of the Corporations Act as are acceptable to Foundation;

(e)        The making of orders by the Court pursuant to s 413 of the Corporations Act including, in accordance with the terms set out in the Schedule or in terms with a similar effect;

(f)         Neither Foundation or LifeCare having terminated the Implementation Agreement in accordance with its terms.

The conditions precedent of the Option Scheme are effectively identical save that the first condition is approval of “both Schemes” by the requisite majority.  The Optionholder Scheme is thus conditional upon the approval of the Shareholder Scheme.  The reverse is not the case.  Subject to the satisfaction of the conditions precedent, the Foundation Shares will be transferred by Foundation (on behalf of the Scheme Participants) to LifeCare and the Property will be transferred by Foundation to LifeCare.  In addition, on satisfaction of the conditions precedent set out in cl 3.2 the Foundation Options will be transferred by Foundation (on behalf of the Scheme Participants) to LifeCare.

14                  If the Share Scheme is approved and the Option Scheme not approved it is intended that the Share Scheme will continue to be implemented.  The Explanatory Statement foreshadows the need for application to be made to the Court under s 413 of the Act for orders to ensure that the merger is fully and effectively carried out.

15                  It is to be noted that there is pending litigation brought by Foundation and its subsidiary, Foundation Medical Centres Pty Ltd, against Clift (BVI) Limited, Trounce (BVI) and Doctor John Lawrence Clift.  Shares in Foundation are sought under a counterclaim by the defendants.  Post-merger Foundation may seek orders from the Court under s 413(1)(c) for the continuation, by and against LifeCare, of the legal proceedings pending by and against Foundation.  In the event that the counterclaim is successful, LifeCare shares could be issued pursuant to a court order. 

ASIC Consideration 

16                  Between 10 May 2002 and 4 June 2002 Mr Wall, a solicitor acting for Foundation, prepared final drafts of the documents to comprise the scheme booklet including the schemes, explanatory statement and notices of meeting.  He sent copies of the documents to the Australian Securities and Investments Commission (ASIC).  On 4 June 2002, ASIC wrote to Mr Wall advising that it has no objection to the proposed scheme.  It reserved the right to change its view should further material information come to its notice prior to the confirmation hearing. The letter concluded:

“Please note that this letter is not the ‘statement in writing’ referred to in section 411(17) of the Corporations Act 2001.”

17                  A further letter, dated 4 June 2002, and handed up on the day of the hearing (Exhibit 1) stated:

“Under subregulation 5.1.01(1) of the Corporations Regulations, the Australian Securities and Investments Commission (Commission) allows Foundation Healthcare Limited, to send an explanatory statement under s 412(1) of the Corporations Act 2001, which does not:

.           state the matters set out in paragraphs 8201(a), 8201(b), 8201(d) and 8201(e); nor

.           contain or have annexed to the explanatory statement the reports and copies of documents referred to in paragraphs 8203(a) and 8203(b);

of Part 2 of Schedule 8 to the Corporations Regulations.”

ASIC made that allowance on the basis that the Explanatory Statement sent will be substantially in the form given to the Commission on or about 4 June 2002.  The requirements waived are relevant to an Explanatory Statement for a meeting of creditors pursuant to s 411.  This waiver is presumably given on the assumption that the proposed Optionholders’ meeting falls within that category.  Having regard to the limited nature of the class and the small size (four in all), it is not surprising that the particular notice requirements mentioned in the letter were waived.

Statutory Framework

18                  The application is made under Pt 5.1, “Arrangements and Reconstructions” appearing in Ch 5 of the Corporations Act headed “External Administration”.  The relevant parts of s 411 are in the following terms:

“411(1)  Where a compromise or arrangement is proposed between a Part 5.1 body and its creditors or any class of them or between a Part 5.1 body and its members or any class of them, the Court may, on the application in a summary way of the body or of any creditor or member of the body, or, in the case of a body being wound up, of the liquidator,  order a meeting or meetings of the creditors or class of creditors or of the members of the body or class of members to be convened in such manner, and to be held in such place or places (in this jurisdiction or elsewhere), as the Court directs and, where the Court makes such an order, the Court may approve the explanatory statement required by paragraph 412(1)(a) to accompany notices of the meeting or meetings.

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411(2)  The Court must not make an order pursuant to an application under subsection (1) … unless:

(a)       14 days notice of the hearing of the application, or such lesser period of notice as the Court or ASIC permits, has been given to ASIC; and

(b)       the Court is satisfied that ASIC has had a reasonable opportunity:

            (i)         to examine the terms of the proposed compromise or arrangement to which the application relates and a draft explanatory statement relating to the proposed compromise or arrangement; and

            (ii)        to make submissions to the Court in relation to the proposed compromise or arrangement and the draft explanatory statement.”

Subsection (3) explains the term “draft explanatory statement”.  That is a statement:

“(a)     explaining the effect of the proposed compromise or arrangement and, in particular, stating any material interests of the directors of the body, whether as directors, as members or creditors of the body or otherwise, and the effect on those interests of the proposed compromise or arrangement in so far as that effect is different from the effect on the like interests of other persons; and

(b)       setting out such information as is prescribed and any other information that is material to the making of a decision by a creditor or member of the body whether or not to agree to the proposed compromise or arrangement, being information that is within the knowledge of the directors of the body and has not previously been disclosed to the creditors or members of the body.

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411(4)  A compromise or arrangement is binding on the creditors, or on a class of creditors, or on the members, or on a class of members, as the case may be, of the body and on the body or, if the body is in the course of being wound up, on the liquidator and contributories of the body, if, and only if:

(a)       at a meeting convened in accordance with an order of the Court under subsection (1) or (1A):

            (i)         in the case of a compromise or arrangement between a body and its creditors or a class of creditors – the compromise or arrangement is agreed to by a majority in number of the creditors, or of the creditors included in that class of creditors, present and voting, either in person or by proxy, being a majority whose debts or claims against the company amount in the aggregate to at least 75% of the total amount of the debts and claims of the creditors present and voting in person or by proxy, or of the creditors included in that class present and voting in person or by proxy, as the case may be; and

            (ii)        in the case of a compromise or arrangement between a body and its members or a class of members – a resolution in favour of the compromise or arrangement is:

                       (A)        passed by a majority in number of the members, or members in that class, present and voting (either in person or by proxy); and

                       (B)        if the body has a share capital – passed by 75% of the votes cast on the resolution; and

(b)       it is approved by order of the Court.”

19                  It is also necessary to have regard to s 411(17) which provides:

411(17)  The Court must not approve a compromise or arrangement under this section unless:

(a)       it is satisfied that the compromise or arrangement has not been proposed for the purpose of enabling any person to avoid the operation of any of the provisions of Chapter 6; or

(b)       there is produced to the Court a statement in writing by ASIC stating that ASIC has no objection to the compromise or arrangement;

but the Court need not approve a compromise or arrangement merely because a statement by ASIC stating that ASIC has no objection to the compromise or arrangement has been produced to the Court as mentioned in paragraph (b).”

20                  Section 412 requires that an Explanatory Statement be sent with the notice convening a meeting under s 411.  The Explanatory Statement must explain the effect of the arrangement and, in particular, any material interests of the directors whether as directors or members or creditors of the body or otherwise and the effect on those interests of the arrangement in so far as that effect is different from its effect on the like interests of other persons.  It must also set out prescribed information and any other information that is material to the making of a decision by a member whether or not to agree to the arrangement. 

21                  Under s 413 the Court may make orders providing, inter alia, for the transfer to the transferee company of the whole or a part of the undertaking and of the property or liabilities of the transferor company.  Section 414 provides for compulsory acquisition by the transferee under a Scheme of dissenting Shareholders.  It is a condition of that power that the Scheme being one which involves a transfer of shares to the transferee has, within four months of the making of the offer relating to the Scheme by the transferee, been approved by members holding shares in the relevant class carrying at least 90% of the votes attached to shares in that class, other than excluded shares.  It is not necessary for present purposes to refer to this section in any detail.

22                  Regulation 5.1.01 of the Corporations Regulations imposes, by reference to Schedule 8, specific content requirements for the Explanatory Statement required by ss 411 and 412 as follows:

“5.1.01(1)  For paragraph 411(3)(b) and subparagraph 412(1)(a)(ii) of the Act, unless ASIC otherwise allows, the explanatory statement must:

(a)       for a proposed arrangement between a Part 5.1 body and its creditors, or a class of its creditors:

            (i)         state the matters set out; and

            (ii)        have annexed to it the reports and copies of documents mentioned;

            in Part 2 of Schedule 8; and

(b)       for a proposed arrangement between a Part 5.1 body and its members, or a class of its members, other than a proposed arrangement mentioned in paragraph (c):

            (i)         state the matters set out; and

            (ii)        have annexed to it the reports and copies of documents mentioned;

            in Part 3 of Schedule 8;

…”

The requirements are not exhaustive as the Statement must comply with s 412. 

23                  Part 2 of Schedule 8 is entitled “Prescribed Information Relating to Proposed Compromise or Arrangement with Creditors or Class of Creditors” and contains three items, 8201 to 8203, which it is not necessary to set out in full here.  Part 3 is entitled “PRESCRIBED INFORMATION RELATING TO PROPOSED COMPROMISE OR ARRANGEMENT WITH MEMBERS OR A CLASS OF MEMBERS” and contains ten items, 8301 to 8310 inclusive.  These items are referred to in parentheses against those aspects of the Explanatory Statement to which they relate.

24                  Regulations 5.6.12 to 5.6.36 prescribe procedures in relation to the convening and conduct of, and voting at meetings of members and creditors of a company under Pts 5.3A, 5.4, 5.4B, 5.5 and 5.6 of the Act.  In terms they do not apply to meetings convened under Pt 5.1.  However, Rule 2.15 of the Corporations Law Rules of the Federal Court provide that:

“Subject to the Law, these Rules and any direction of the Court to the contrary, regulations 5.6.12 to 5.36A of the Corporations Regulations apply to meetings ordered by the Court.”

Scheme Documentation

25                  The Explanatory Statement appears in a Scheme Booklet prepared for circulation to Shareholders and Optionholders.  It is preceded by a number of paragraphs under the heading “IMPORTANT NOTICES”, including the necessary notice that an order of the Court under   s 411(1) and s 411(1A) is not an endorsement of, or any other expression of opinion on, the Schemes (Item 8202). After a letter from the chairman, the Explanatory Statement itself is set out.  It contains the following statement, at p 7:

“Your Directors believe that the Merger is in the best interests of Scheme Participants.  The Directors unanimously recommend, in the absence of a higher offer, you vote in favour of the Schemes.  Your Directors intend to do so for the Foundation Shares and Foundation Options which they control.

The key reasons why your Directors recommend that you vote in favour of the Merger are outlined in Section 3.3 of this Explanatory Statement.”

26                  Section 2 of the Explanatory Statement sets out a “Summary of the Schemes”.  Section 3 sets out “Reasons for the Schemes” and in 3.3 what is said to be a “Summary of Merger Benefits, Synergies and Savings”.  That section commences with the statement:

“The directors of Foundation and LifeCare believe that a number of significant benefits will flow from the Merger.”

There follows a statement of the benefits said to flow from the merger.

27                  Section 5 is entitled “CONSIDERATIONS FOR SCHEME PARTICIPANTS”.  Subsection 5.1 is entitled “Why the Merger Proposal should be implemented”.  It restates the unanimous recommendation of the directors that the Scheme Participants approve the Scheme and pass the resolutions required to give effect to the merger proposal.  It states that the directors have given careful consideration to the merger proposal and set out some of the more relevant matters which were considered.  Those considerations follow.  In s 5.2 “perceived disadvantages” of the merger proposal are set out, albeit with a statement that the directors believe the advantages outlined in ss 3.3 and 5.1 outweigh any disadvantages that may arise from the merger proposal.  The statement that the directors unanimously recommend the acceptance of the Scheme coupled with their joint reasons for so doing satisfies the requirements of Pt 3 of Schedule 8 that the Explanatory Statement set out, in relation to each director of the company, whether or not the director recommends the acceptance of the Scheme and his or her reasons (Item 8301).

28                  Section 10.7 of the Explanatory Statement comprises a list of the directors of Foundation and the marketable securities in Foundation held by or on behalf of them (Item 8302(a)).  There is a separate statement in s 1.2 at p 7, that the directors intend to vote in favour of the Schemes both for the Foundation Shares and the Foundation Options which they control (Item 8302(b)).  The Explanatory Statement discloses that as at 26 March 2002, Michael Boyd, the chairman of directors of Foundation, has a relevant interest in 18.6 million LifeCare shares, representing 18.82% of its issued share capital.  Section 10.8 states that, other than Boyd, no director of Foundation has any relevant interest in LifeCare (Item 8302(c)).  Section 10.9 sets out payments and other benefits to directors, secretaries and executive officers of Foundation and states that with the exception of Michael Boyd and Ralph Shreeve, no directors, secretaries or executive officers of Foundation will receive any payment or other benefit through the Schemes other than an allocation of Scheme Consideration on equivalent terms to all Scheme Participants.  As Chairman of the Merged Group, Boyd will be remunerated as a non-executive director of LifeCare.  Shreeve will be offered the position of Managing Director of the Merged Group (Items 8302(d) and (e)).  Section 10.10 dealing with directors’ interests indicates that, other than as disclosed elsewhere in the Explanatory Statement or previously to the ASX, no director of Foundation has, or during the previous two years, has had any interest in the Schemes other than as a holder of, or of a relevant interest in, Foundation Shares and Foundation Options, nor any interest in any contract entered into by LifeCare, nor any interest as a creditor of Foundation (Item 8302(f)).  It is also stated in s 10.11 that there have been no material changes to the financial position of Foundation since the half year report for the six months ended 31 December 2001 (Item 8302(h)).  And in s 10.13 it is said that there is no other information material to the making of a decision in relation to the Schemes or a decision by Scheme Participants whether or not to agree to the Schemes being information within the knowledge of any director of Foundation or LifeCare or of a related company of either that has not previously been disclosed to Foundation Shareholders other than as set out in the Explanatory Statement or its appendices (Item 8302(i)). 

29                  According to s 10.14, as at the date of the Scheme Booklet, LifeCare had no interest in any Foundation Shares or Foundation Options.  There is therefore no requirement by reason of Item 8303(a) for the provision of an independent expert report.  The second condition which may give rise to that requirement is that of common directorship between the two companies (Item 8303(b)).  It appears from s 10.10 that Michael Boyd was previously but is no longer a director of LifeCare.  On that basis no independent expert report would appear to be required.  However, as set out in the Explanatory Statement such a report has been commissioned and circulated.  Indeed, having regard to the common shareholding, Boyd’s former office as a director and his proposed assumption of office in the merged entity, it may be that the preparation of an independent expert report would have been a condition of approval of the meeting in any event. Only one report has been commissioned, albeit it was amended in one respect following discussions with ASIC.  (Item 8304 does not apply.) 

30                  The Independent Expert Report does contain a statement of forecast earnings for Foundation for the year ended 30 June 2003 prepared by the management of Foundation.  The firm preparing the report, Hall Chadwick Corporate Finance (WA) Pty Ltd, states that it has undertaken a review of the forecasts and that based on its review nothing has come to its attention which causes it to believe the key assumptions used do not provide a reasonable basis.  It would seem therefore that the Report can be said to contain “a forecast of the profits or profitability of the company” which would, in the case of a report prepared pursuant to Item 8303, attract the requirement that it must not accompany the Explanatory Statement except with the consent in writing of ASIC and in accordance with such conditions (if any) as are stated by ASIC (Item 8305).  Although it appears from the affidavit material that the report has been submitted to ASIC and, in effect, approved by it, there is no express written consent which would suggest that ASIC has addressed that question.   Enquiries from the solicitor for the applicant yielded the advice that, as the Report was not commissioned pursuant to Item 8303, consent was not required under Item 8305.  I am not persuaded that that is an answer to the requirement in Item 8305 which would seem to have a protective function to play in respect of forecast profits, not solely dependent upon it being mandatory pursuant to Item 8303.  In this case, however, the forecasts are identified as management figures and are not in terms adopted by the Independent Expert Report.  It will suffice that  a statement be included in the Explanatory Statement to the effect that the forecast earnings in the Expert Report have not been included with the consent of ASIC because the Report was not mandated by Item 8303 of the Schedule. 

31                  Item 8306 is inapplicable.  Item 8307 is complied with by reference to the formula of 3.8 LifeCare New Shares for each Foundation Share transferred and 3.8 LifeCare New Options for each Foundation Option transferred.

32                  The LifeCare New Shares are not yet quoted on a Securities Exchange and it is intended, as noted in s 10.5 of the Explanatory Statement, that application will be made for the quotation of those shares on the Australian Stock Exchange within seven days of the Effective Date under the Scheme.  Information in relation to trading in LifeCare shares required by Item 8309(2) is set out in s 10.15 of the Explanatory Statement.  There is a statement as to the further intentions of the directors set out in s 10.19 which appears to comply with the requirements of Item 8310.

33                  Having regard to the preceding matters, it appears that the Explanatory Statement complies with the requirements of the Act and the regulations subject to the absence of a written consent from ASIC in relation to the forecast of profitability in the Independent Expert Report. 

34                  Appendix 1 to the Explanatory Statement is a copy of the Implementation Agreement between Foundation and LifeCare.  It contains covenants under which each agrees to give effect to the Schemes.  Appendix 2 sets out the schemes of arrangement proposed.  Appendix 3 is a Deed Poll by LifeCare “…for the purposes of covenanting in favour of each Scheme Participant to perform certain obligations”.  Appendix 4 sets out notices of the proposed meetings and other papers including proxy forms.  Appendix 5 is the Independent Expert Report.  There is a modification of that report required by ASIC which is not relevant for present purposes.  The modified report was exhibited to an affidavit of Mr Wall which was read in Court on the hearing of the application. 

Whether the Application Should Be Granted

35                  On the face of it the proposed Schemes have the potential to yield benefits to the Shareholders and Optionholders in the two companies.  These are indicated in the Independent Expert Report as are perceived disadvantages.  There is no class of Shareholder or Optionholder who at this stage appears to be materially disadvantaged by the Scheme proposals.  That is not to say that different participants may not take different views depending upon particular factors, including taxation considerations relevant to their own circumstances.  The Schemes if approved, will involve an exchange of listed shares and options on a 3.8:1 basis.  Foundation will become a fully owned subsidiary of LifeCare.  Orders necessary to give effect to the merger and in particular the transfer of liabilities to the Merged Group may be sought and made by the Court under s 413. 

36                  An application for leave to convene a scheme meeting is part of a three stage process, the Court’s approval of the meeting, the members’ or creditors’ approval of the scheme and the Court’s approval of the scheme.  Owen J has observed that the practice has developed that the Court, on a first stage application, closely scrutinises the scheme documents.  If it be of the view that the scheme would be unlikely to receive approval, then the Court should not give leave to convene the meeting – Re Bond Corporation Holdings Ltd (1991) 5 ACSR 304 at 316 and see Re Stockbridge Ltd (1993) 11 ACLC 201 (Murray J).  It is however important to bear in mind that, by granting leave to convene the meeting, the Court does not give its imprimatur to the proposed scheme.  If the arrangement is one that seems fit for consideration by the meeting of members or creditors and is a commercial proposition likely to gain the Court’s approval if passed by the necessary majorities, then leave should be given – Re ACM Gold Ltd (1992) 10 ACLC 573 (O’Loughlin J).  The Court is not required to give close consideration to the effects of the scheme upon individual members of the classes of members or creditors affected.  So to do would be to “introduce burdensome and to a large extent ineffectual consideration at this interlocutory stage” – Re Jax Marine Pty Ltd (1967) 1 NSWR 145 at 148 (Street J). 

37                  The role of the Court in approving a meeting was discussed by Santow J in Re NRMA Ltd (2000) 33 ACSR 595.  His Honour described the process under s 411 generally as supervisory and therefore “to a degree inquisitorial” as well as “potentially adversarial” in the event of opposition to the scheme.  A distinction was to be drawn between the role of the Court prior to approving the scheme meeting and the role of the Court in considering whether to approve the scheme of arrangement after the members have voted in favour of the scheme.  At the latter stage the Court has a discretion to make orders approving the scheme (at 601). 

38                  A threshold requirement is the Court’s satisfaction that the Explanatory Statement provides proper disclosure as required in s 411(3).  It must set out “all the main facts as will enable shareholders to exercise their judgment on the proposed scheme”.  Having regard to the requirement that such applications are to be made in a summary way, I am satisfied that the Explanatory Statement in this case does make adequate disclosure subject to the requirement I have foreshadowed in relation to the advice that ASIC has not given its consent to the forecast of earnings referred to in the Independent Expert Report.  The Statement also, in my opinion, complies with the specific requirements of Pt 3 of Schedule 8 to the Corporations Regulations. 

39                  The question then to be addressed is whether what is proposed is an arrangement.  The word “arrangement” is of wide import.  As was said in Re NRMA Ltd, at 603:

“Generally speaking, unless the arrangement is ultra vires the company or seeks to deal with a matter for which a special procedure is laid down by the Corporations Law or to evade a restriction imposed by the Corporations Law, almost any arrangement otherwise legal which touches or concerns the rights and obligations of the company or its members or creditors, and which is properly proposed, may come under s 411…”

I accept that the proposed Schemes fall into the class of arrangements for the purposes of s 411(1) of the Act.

40                  Foundation, which proposes the Scheme, is a Pt 5.1 body.  A Pt 5.1 body is defined in s 9 of the Act as:

“(a)     a company; or

(b)       a registrable body that is registered under Division 1 or 2 of Part 5B.2.”

Plainly Foundation is a company.

41                  It has been suggested that s 411 gives jurisdiction to order scheme meetings only where the schemes are properly proposed – Re NRMA Ltd.  This involves reading the word “proposed” in s 411 as importing the requirement that the proposal is within the power of the relevant Pt 5.1 body to make.  While ultra vires corporate action is hardly a concern given the wide-ranging powers conferred on companies today, there may be a question whether a proposal is made in bad faith.  Such a case may arise “… where the majority are endeavouring to prefer their own interests over those of the minority” – Re Theatre Freeholds Ltd  (1996) 14 ACLC 1150 at 1157.  In the present case there does not appear to be anything on the material before me to suggest that the application is made in bad faith or for an improper purpose.

42                  Section 411(2) conditions the power of the Court to make an order for a scheme meeting upon its satisfaction that ASIC has had a reasonable opportunity to examine the terms of the proposed arrangement and the draft explanatory statement relating to it and to make submissions to the Court.  In this case it is apparent that ASIC has had that opportunity.  Its letter of 4 June 2002 indicates that it has no objection to the proposed Scheme albeit the letter is not a statement of the kind referred to in s 411(17). 

43                  Section 411(17) conditions the Court’s ultimate approval of a scheme upon fulfilment of one of two conditions.  The first is the Court’s satisfaction that the arrangement has not been proposed for the purpose of enabling any person to avoid the operation of any of the provisions of Ch 6.  The second is that there is produced to the Court a statement in writing by ASIC stating that ASIC has no objection to the compromise or arrangement.  The production of such a statement does not mandate approval, it is simply one of two alternative necessary conditions for approval.  Strictly speaking, these conditions do not fall for consideration at this first stage which is concerned with approval of the proposed scheme meeting rather than of the Scheme itself.  However, if it were already apparent that the proposed arrangement would serve the purpose of enabling a person to avoid the operation of the provisions of Ch 6, then approval for the meeting would not be ordered.  On the materials before me there is no such indication.  In so saying, I have regard to the observations of O’Loughlin J in Re ACM Gold at 580 that “Chapter 6 does not … dominate and take automatic precedence over the provisions of Chapter 5 and, in particular s 411”.  His Honour denied the broadly based proposition advanced in that case that an arrangement must be struck down if it or any part of it could have been implemented as a takeover scheme or by means of a takeover announcement.  Such a proposition, his Honour regarded as “far too rigid” going on to say:

“The mixture of strong control in Chapter 6 on the one hand … coupled with the legislature’s willingness to make exceptions and grant exemptions from the provisions of Chapter 6 call for a liberal and practical interpretation of subs 411(17).”

In this case, and for the purposes only of this application, I take some comfort from the fact that ASIC having had time to consider the Explanatory Statement and proposal has indicated, albeit informally, by letter that it has no objection to the proposed Schemes. 

44                  The Court at the stage of ordering a meeting to approve a scheme does not ordinarily go very far into the question of whether the arrangement is one which warrants the approval of the Court – Re NRMA Ltd at 605.  That question is to be answered when the scheme returns to the Court for final approval.  That is not to exclude the possibility that a scheme may appear on its face so blatantly unfair or otherwise inappropriate that it should be stopped in its tracks before going any further.  The Court is not required to be satisfied either at the convening or approval stage that no better scheme could have been devised.  The Scheme, on the face of it, is not obviously unfair or otherwise inappropriate.  If there are interests adversely and unfairly affected then the probability is that the question will arise at either or both the Scheme meetings or the final approval stage. 

Conclusion

45                  I am prepared to order that Foundation be at liberty to convene the Scheme meetings for Shareholders and Optionholders in terms of the minute of proposed orders.  In so doing, it has been drawn to my attention that Rule 2.15 of the Corporations Rules would apply the procedural requirements of the Corporations Regulations 5.6.12 to 5.6.36A to a meeting ordered under Pt 5.1 unless otherwise directed by the Court.  Having regard to the directions made as to notice, the small defined class of affected creditors, ie the Optionholders, and the defined class of Shareholders, I do not consider it necessary to impose the requirements of these Regulations which would not apply of their own force to meetings under that Part.  There will be orders accordingly.

Acting Associate:

Dated:              12 June 2002

Date of Publication of Reasons:   12 June 2002