FEDERAL COURT OF AUSTRALIA

In the matter of McConnell Dowell Corporation Ltd

[2003] FCA 646

CORPORATIONS LAW – scheme of company arrangement – convening meeting pursuant to s 411(1) of the Corporations Act

Corporations Act 2001 (Cth) subs 411(1)

In re Guardian Assurance Company [1917] 1 Ch 431

Singer Manufacturing Company v Robinow [1971] SC 11

Re Savoy Hotel [1981] Ch 351

Re National Bank Ltd [1966]1 WLR 819

IN THE MATTER OF McCONNELL DOWELL CORPORATION LIMITED

N 3028 OF 2003

GYLES J

SYDNEY

13 JUNE 2003

THE COURT ORDERS THAT:

1.         Pursuant to s 411(1) of the Corporations Act 2001 (Cth) the plaintiff convene:

            (a)        a meeting of Shareholders of the plaintiff (“MacDow”);  and

            (b)        a meeting of the Optionholders of MacDow;

            for the purpose of considering and if thought fit, agreeing (with or without modification) to a scheme of arrangement proposed to be made between MacDow and its:

            (c)        Shareholders;  and

            (d)        Optionholders,

            a copy of which forms part of a document tendered in the proceedings as Exhibit DR6, being the Explanatory Statement (“MacDow Schemes”).

2.         The meeting referred to in subpar 1(a) (“Meeting of Shareholders”) be convened on 25 July 2003 at Clarion Hotel on Canterbury, 326 Canterbury Road, Forest Hill, Victoria, Australia at 10.00am.

3.         The meeting referred to in subpar 1(b) (“Meeting of Optionholders”) be convened on 25 July 2003 at Clarion Hotel on Canterbury, 326 Canterbury Road, Forest Hill, Victoria, Australia at 11.00am.

4.         James Dowell or failing him, Arthur Young, be chairperson of:

            (a)        the Meeting of Shareholders;  and

                        (b)        the Meeting of Optionholders

            convened pursuant to Order 1.

5.         On or before 24 June 2003 there be:

            (a)        personally served on;  or

            (b)        despatched by pre-paid ordinary post (or in the case of overseas members, by airmail) to

            each Shareholder of MacDow whose names appear in the MacDow register of Shareholders as at 5.00pm Sydney time on 16 June 2003 (“Register Time”):

            (c)        a document substantially in the form of the Explanatory Statement and Notices of Meetings, copies of which form part of a document tendered in these proceedings as Exhibit DR6;  and

            (d)        proxy form, an unpersonalised copy of which forms part of a document tendered in these proceedings as Exhibit DR7, being the Notice of Shareholders Meeting.

6.         On or before 24 June 2003 there be:

            (a)        personally served on;  or

            (b)        despatched by pre-paid ordinary post (oar in the case of overseas members, by airmail) to

            each Optionholder of MacDow whose names appear in the MacDow register of Optionholders as at 5.00pm Sydney time on 16 June 2003 (“Register Time”):

            (c)        a document substantially in the form of the Explanatory Statement and Notices of Meetings, copies of which form part of a document tendered in these proceedings as Exhibit DR6;  and

            (d)        proxy form, an unpersonalised copy of which forms part of a document tendered in these proceedings as Exhibit DR7, being the Notice of Optionholders Meeting.

7.         Proxy forms for the Meeting of Shareholders and Optionholders must be lodged:

            (a)        at the offices of McConnell Dowell Corporation Limited:

                        (i)         c/o Registries Limited, Level 2, 28 Margaret Street, Sydney 1223;  or

                        (ii)        c/o BK Registries Limited, 138 Tancred Street, Ashburton, New Zealand;

            (b)        by post at McConnell Dowell Corporation Limited:

                        (i)         c/o Registries Limited, Level 2, 28 Margaret Street, Sydney 1223;  or

                        (ii)        c/o BK Registries Limited, 138 Tancred Street or PO Box 384, Ashburton New Zealand;  or

            (c)        by facsimile to c/0 Registries Limited +61 2 9279 0664,

            at least 48 hours before the time specified for holding the relevant meeting but may be delivered at any address specified in par (a) or (b) above, or sent by facsimile to any number specified in par (c) above, prior to the time specified for holding the meeting.

8.         The plaintiff will advertise the notice of the Meeting of Members in the form of the attached document marked Annexure A in a national Australian newspaper.

9.         The application be stood over to 1 August 2003 before Justice Gyles with the liberty to restore on three days’ notice.

AND THE COURT NOTES THAT:

10.       A Deed Poll dated 3 June 2003 executed by Aveng Australia Pty Limited and Aveng Limited in favour of the Shareholders and Optionholders of MacDow has been given to MacDow.

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

REASONS FOR JUDGMENT

1                     This is an application for orders pursuant to subs 411(1) of the Corporations Act 2001 (Cth) (“the Act”) convening separate meetings of shareholders and optionholders of McConnell Dowell Corporation Limited, the plaintiff.  The very helpful submissions of counsel have satisfied me that the evidence establishes the pre-conditions necessary to be met before orders can be made and there is no need to recite those pre-conditions nor the evidence which satisfies them. 

2                     I should mention one aspect of the matter.  The essence of the shareholders scheme in practical terms is a transfer of shares by the minority shareholders in the plaintiff to the present major shareholder of the plaintiff in return for stated consideration.  If approved, the result will be that the plaintiff will become a wholly owned subsidiary of the present major shareholder.  The plaintiff is to facilitate the transaction in various ways.  There is a question as to whether such a transaction can properly be described as an arrangement between the plaintiff and its members within the meaning of s 411(1) of the Act. 

3                     I have given consideration to that question, because if I had concluded that the transaction would clearly not be such an arrangement then it would not be appropriate to convene a meeting to consider a resolution which could not properly be confirmed.  Counsel has referred to authorities which support the proposition that the scheme is an arrangement within s 411(1) of the Act.  It is only necessary to refer to In re Guardian Assurance Company [1917] 1 Ch 431, Singer Manufacturing Company v Robinow [1971] SC 11, Re Savoy Hotel [1981] Ch 351 and Re National Bank Ltd [1966]1 WLR 819.  It also appears that similar schemes have been approved in recent years in Australia without particular discussion of the point.  Counsel has also taken me through a history of both the United Kingdom and Australian provisions which support his submission. 

4                     It is neither necessary nor appropriate that I come to a final view on the issue at this stage of the proceeding.  I am satisfied that the orders should be made.  Orders are made in accordance with the short minutes of order.

Associate:

Dated:              26 June 2003