FEDERAL COURT OF AUSTRALIA

BlueFreeway Limited, in the matter of BlueFreeway Limited (No 2)

[2009] FCA 708

IN THE MATTER OF BLUEFREEWAY LIMITED (ACN 122 262 819)

BLUEFREEWAY LIMITED (ACN 122 262 819)

NSD 392 of 2009

LINDGREN J

30 June 2009

SYDNEY

IN THE MATTER OF BLUEFREEWAY LIMITED (ACN 122 262 819)

THE COURT ORDERS THAT:

1                         The scheme of arrangement between the plaintiff and its ordinary shareholders (other than IPMG Administration Pty Limited), which is annexed hereto and marked “A”, is approved pursuant to s 411(4) of the Corporations Act 2001 (Cth). 

2                         The plaintiff is exempted from compliance with s 411(11) of the Corporations Act 2001 (Cth)in respect of the scheme of arrangement referred to in order 1.

3                         These Orders be entered forthwith.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE MATTER OF BLUEFREEWAY LIMITED (ACN 122 262 819)

REASONS FOR JUDGMENT (No 2)

1                     On 24 June 2009 I made the orders that appear at the front of these reasons for judgment.  These are the reasons why I made those orders.

2                     On 19 May 2009 I ordered that the plaintiff (BlueFreeway) convene a meeting (Scheme Meeting) of its ordinary shareholders (other than IPMG Administration Pty Limited (IPMG)) (Scheme Shareholders) for the purpose of their considering and, if thought fit, agreeing (with or without modification) to a scheme of arrangement proposed to be made between BlueFreeway and the Scheme Shareholders: see BlueFreeway Limited, in the matter of BlueFreeway Limited [2009] FCA 535.

3                     After the making of the orders on 19 May 2009, BlueFreeway announced to the Australian Securities Exchange (ASX) that it had revised downwards its earnings expectations for itself and its subsidiaries for the financial year ending 30 June 2009.  Accordingly, on 5 June 2009 BlueFreeway sought the Court’s approval for distribution to the Scheme Shareholders of documents directed to informing them of this revision.  The independent expert to whom I had referred at [8] of the earlier reasons and who had provided an affidavit attaching an independent expert’s report, provided jointly with a colleague a further report to the effect that, taking into account the effect of BlueFreeway’s announcement to the ASX, they remained of the view that the Scheme was fair and reasonable and therefore in the best interests of the Scheme Shareholders.

4                     On 5 June 2009 I granted the approval sought.

5                     The Scheme Meeting was duly convened and held on 23 June 2009.  Of the total votes cast, 98.78% were in favour of agreeing to the Scheme and 1.22% were against doing so.  In terms of the number of shareholders, 242 shareholders representing 89.96% of the Scheme Shareholders present and voting (either in person or by proxy) voted in favour of agreeing to the Scheme whereas 10.04% of them voted against doing so.

6                     Accordingly, the resolution was carried by both of the majorities referred to in s 411(4)(a)(ii)(A) and (B) of the Corporations Act 2001 (Cth).

7                     The hearing on 24 June 2009 had been duly advertised.  No person appeared to oppose the Court’s approving the Scheme.

8                     There was before the Court evidence in a familiar form from the Australian Securities and Investments Commission to the effect that it did not wish to be heard in opposition to the approval of the Scheme.

9                     For the above reasons, for those that were given in my earlier reasons for judgment and for those that appear in the outline of BlueFreeway’s submissions (which I will cause to be placed on the Court file where they will be available for inspection) I made the orders on 24 June 2009 to which I referred.

Associate:

Dated:              30 June 2009