FEDERAL COURT OF AUSTRALIA
Choiseul Investments Limited, in the matter of Choiseul Investments Limited (No 2) [2010] FCA 1351
IN THE FEDERAL COURT OF AUSTRALIA | |
IN THE MATTER OF CHOISEUL INVESTMENTS LIMITED (ABN 36 000 005 041)
CHOISEUL INVESTMENTS LIMITED (ABN 36 000 005 041) Plaintiff |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. Pursuant to section 411(4)(b) of the Corporations Act 2001 (Cth) (“the Act”), the scheme of arrangement between Choiseul Investments Limited (“Choiseul”) and its members (other than the holders of Excluded Shares as defined therein), a copy of which is Annexure “A” (“the Scheme”), be approved.
2. Pursuant to section 411(12) of the Act, Choiseul be exempted from compliance with section 411(11) of the Act in respect to the Scheme.
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 Federal Law Search on the Court’s website.
Annexure A
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | NSD 1143 of 2010 |
IN THE MATTER OF CHOISEUL INVESTMENTS LIMITED (ABN 36 000 005 041)
CHOISEUL INVESTMENTS LIMITED (ABN 36 000 005 041) Plaintiff
|
JUDGE: | JACOBSON J |
DATE: | 1 DECEMBER 2010 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
1 This is the second court hearing of an application for orders approving a scheme of arrangement between Choiseul Investments Limited and its members (“Scheme”). I described the Scheme in my reasons for judgment dated 21 October 2010 when I made orders convening the scheme meeting; see Choiseul Investments Limited, in the matter of Choiseul Investments Limited [2010] FCA 1189.
2 Mr Oakes SC, who appears for the plaintiffs, has provided me with written submissions which cover in detail all of the matters which needed to be addressed at the second court hearing. I will mark the submissions as MFI 2.
3 It is sufficient to say that I propose to make the orders that were handed to me by Mr Oakes, generally for the reasons set out in the written submissions.
4 The only issue which perhaps calls for comment is the question referred to by Mr Oakes in [27]ff of his written submissions. The issue to which he referred arises from the fact that Mr Richard England, who was Chairman of the Scheme meeting, moved the Scheme resolution.
5 Mr Oakes referred me to an authority of Young J in the Supreme Court of New South Wales in Re Vector Capital Limited (1997) 23 ACSR 182 (“Re Vector Capital”), in which his Honour said that it is not appropriate for an impartial chairman to move a motion at a meeting. His Honour, therefore, appeared either upon the basis that the chairman of that meeting moved the motion in his capacity as chairman, or alternatively because he was not a shareholder of the company and therefore had no standing, to hold that the resolution was invalid. His Honour, nonetheless, regarded the matter as a technicality and made an appropriate validating order under s 1322 of the Corporations Law, which was then in force.
6 However, in Re HIH Casualty Limited and General Insurance Limited (2006) 57 ACSR 791 (“Re HIH Casualty”) at [22]ff, Barrett J carefully and fully analysed the relevant authorities. His Honour referred to Young J’s decision in Re Vector Capital and to a subsequent decision of Young J in National Australia Bank Limited v Market Holdings Pty Limited (In Liq) (2001) 37 ACSR 629.
7 It may be that the observations made by Young J at [85] – [86] of his decision in the National Australia Bank case constituted a revision of his view stated in Re Vector Capital. Whether or not that is so, it seems to me, with respect, that the position is now accurately and clearly stated by Barrett J in Re HIH Casualty.
8 Barrett J observed at [25] that there can be no doubt that a chairman must act impartially. His Honour went on to express what seems to me to be the principle at [26] of his reasons for judgment as follows:
How, in a technical and procedural sense, a question comes to be put before a meeting for debate and decision is, to my mind, relatively unimportant. What is important is that the meeting should, under the facilitating yet impartial guidance of the chairman, have adequate opportunity for debate and for decision-making and be seen to have expressed its will on the matter at hand.
9 In my view that is sufficient to dispose of any issue as to the validity of the motion moved by Mr England at the meeting. I should add that there was no suggestion that Mr England acted otherwise than as an impartial chairman.
10 As I have said above, for these reasons and for the reasons set out in Mr Oakes’ written submissions, I will make orders in accordance with the short minutes of order handed to me this morning, which I will sign and date.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. |
Associate:
