FEDERAL COURT OF AUSTRALIA

Uranium King Limited, in the matter of Uranium King Limited (ABN 34 119 187 816) [2008] FCA 704

IN THE MATTER OF URANIUM KING LIMITED (ABN 34 119 187 816)

URANIUM KING LIMITED

WAD 75 of 2008

SIOPIS J

8 MAY 2008

PERTH

IN THE MATTER OF URANIUM KING LIMITED (ABN 34 119 187 816)

THE COURT ORDERS THAT:

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

a.          the Plaintiff convene a meeting (Scheme Meeting) of its Shareholders for the purpose of considering and, if thought fit, approving (with or without modification), a scheme of arrangement (Scheme) being the scheme substantially in the form of the draft scheme contained in Appendix D of the draft scheme booklet (Scheme Booklet) that is Annexure “JM‑7” to the affidavit of James Lewis Michael Malone sworn on 21 April 2008 (Malone First Affidavit);

b.         the Scheme Meeting be held on 12 June 2008 at 103 Abernethy Road, Belmont in the State of Western Australia at 10.00am;

c.          Mr Kevin Dundo or, failing him, Mr James Lewis Michael Malone, be chairperson of the Scheme Meeting;

d.         the chairperson appointed to the Scheme Meeting has the power to adjourn the meeting in his absolute discretion;

e.          the Revised Scheme Booklet that is Annexure “JM15” of the second supplementary affidavit of James Lewis Michael Malone sworn on 8 May 2008 (Revised Scheme Booklet) be approved;

f.          the Plaintiff shall convene the Scheme Meeting by sending:

i.           the Revised Scheme Booklet;

ii.          notice of the Scheme Meeting substantially in the form of Appendix E to Annexure “JM7” of the Malone First Affidavit; and

iii.         the proxy form substantially in the form of Annexure “JM10” to the Malone First Affidavit; and

iv.         a reply paid pre‑addressed envelope,

            on or before 12 May 2008 to all Shareholders who are recorded in the Plaintiff’s register of members (and to each shareholder at the address recorded in respect of that shareholder in the register of members) as at 10.00 pm on 8 May 2008 by:

v.          in the case of each shareholder who has a registered address in Australia, prepaid post addressed to the relevant address set out in the Plaintiff’s register of members; or

vi.         in the case of each shareholder who has a registered address outside Australia, prepaid airmail or air courier addressed to the relevant address as recorded in the Plaintiff’s register of members;

g.          the Plaintiff cause to be published a Notice of Scheme Meeting in The West Australian and The Australian newspapers by advertisement in the form of Attachment “JM‑9” to the Malone First Affidavit no later than 29 May 2008;

h.          Rule 2.15 of the Federal Court (Corporations) Rules 2000 (Rules) shall not apply to the Scheme Meeting except insofar as that rule applies reg 5.6.13 of the Corporations Regulations 2001 to the Scheme Meeting;

i.           all voting at the Scheme Meeting shall be conducted by poll as declared by the chairperson to that meeting;

j.          a Shareholder’s entitlement to vote at the Scheme Meeting shall be the entitlement of that person as recorded in the Plaintiff’s share register at 10.00pm on 10 June 2008;

k.         the chairperson of the Scheme Meeting shall report the results of that meeting to this Honourable Court; and

l.           subject to these orders, the Scheme Meeting otherwise be conducted as far as practicable in accordance with the Plaintiff’s constitution.

2.                  The application be otherwise adjourned to 2.15 pm on 16 June 2008 for hearing of the application to approve the Scheme.

3.                  There be liberty to apply upon giving 2 days notice to the Australian Securities and Investments Commission and, where relevant, the Plaintiff.

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

IN THE MATTER OF URANIUM KING LIMITED (ABN 34 119 187 816)

REASONS FOR JUDGMENT

1                     This is an application brought under s 411 of the Corporations Act 2001 (Cth) (the Act) for orders for the convening of meetings of the members of the plaintiff, Uranium King Limited (UKL), to consider and vote upon a proposed scheme of arrangement (the Scheme) between the plaintiff and its members.

2                     The Scheme seeks to effect a merger between UKL and a company, Monaro Mining NL (Monaro).  Pursuant to the Scheme, Monaro will acquire the shares held by the ordinary shareholders in UKL and Monaro will then issue five shares in the merged entity for each seven shares acquired from the members of UKL.  This will mean that the existing UKL shareholders will, after the merger, hold about 61% of the issued capital of the merged company.  UKL will then become a wholly owned subsidiary of Monaro.

3                     Mr Pendlebury, counsel for the plaintiff, has filed detailed submissions.  He has referred specifically to the observations by Santow J in Re NRMA Insurance Ltd (No 1) (2000) 33 ACSR 595 at 601 (NRMA) and by Barrett J in Re Hills Motorway Ltd (2002) 43 ACSR 101 at 103 as to the role of the Court at this hearing.

4                     I accept that the role of the Court at this stage is to examine the proposed Scheme to ascertain whether there is any aspect of the Scheme which, so far as can be foreseen, would prevent the Court from making orders at the approval stage if the necessary majority of the votes is achieved.

5                     Counsel for the plaintiff has also identified each of the issues referred to by Santow J in NRMA (at 601) as the “threshold requirements” and counsel has addressed each of those issues in his submissions.  I accept counsel’s submissions.  I have, accordingly, come to the view that this is not an occasion where the Court would intervene to prevent the Scheme from going forward for consideration by the members.  I will have the submissions of the plaintiff marked as an exhibit so they will be available to any member of the public who wishes to peruse the Court file.

6                     There are some other matters which Mr Pendlebury has brought to my attention.

7                     The first matter relates to the existence of a non‑encumbrances clause in the proposed Scheme.  Counsel has foreshadowed that he will deal with that issue, as has been done in other cases, at the approval stage.

8                     A second matter which was also brought to my attention, is the fact that there are some shareholders who are resident in the United States of America, who will be affected by the implementation of the Scheme.  That raises issues with respect to s 3(a) of the Securities Act 1933 (United States and Federal) and the exemption which is available under that Act.  The question has been dealt with by Jacobson J in the case of Solution 6 Holdings Limited [2004] FCA 1049.  Counsel said that he will address this question further at the approval stage.

9                     The third matter was the fact that there is in existence litigation in the United States of America which affects the plaintiff.  That issue is referred to in the affidavit of Mr Malone, a director of UKL.  He said that the board of Monaro has reserved its rights to regard the existence of that litigation as a matter which qualifies as a material adverse change.  I am satisfied, however, that there is sufficient disclosure of that possible impediment to the scheme proceeding in the scheme documentation.  Further, the Monaro board is obliged to make its decision on this question before the date of the meeting of members for the approval of the Scheme.

10                  I will, therefore, make the orders in terms of the minute.

Associate:

Dated:         19 May 2008