FEDERAL COURT OF AUSTRALIA

Lendlease RL (Rowville) Pty Ltd v Lendlease Capital Services Pty Ltd [2018] FCA 1534

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 411(1) of the Corporations Act 2001 (Cth) (Corporations Act), there be convened by each of the plaintiffs named in the attached Schedule a separate meeting of the holder or holders of fully paid ordinary shares in the capital of each plaintiff (Members) to be held at Level 14, Tower Three, International Towers Sydney Exchange Place, 300 Barangaroo Avenue, Barangaroo, NSW 2000, on 16 October 2018 commencing at 12:30 pm (AEDT), for the purpose of considering and, if thought fit, approving with or without modifications, the scheme of arrangement or compromise proposed between such shareholder or shareholders and the relevant plaintiff (each a Scheme, and collectively, the Schemes), (together, the Scheme Meetings).

2.    Pursuant to s 411(1) of the Corporations Act, the explanatory memorandum in respect of the Schemes, substantially in the form of the document at Tab 2 of Annexure 'NDC-1' to the affidavit of Mr Nathan Dean Cockerill dated 4 October 2018 read in this application (Explanatory Statement), be approved for distribution to the Members, including:

(a)    correction of any minor typographical or grammatical errors; and

(b)    any minor amendments required or approved by the Australian Securities and Investments Commission (ASIC).

3.    Pursuant to s 1319 of the Corporations Act:

(a)    subject to lodgement of the Explanatory Statement with ASIC for registration pursuant to s 412(6) of the Corporations Act, service of the Explanatory Statement and notices of the Scheme Meetings may be effected by electronic means (including by email) or by hand delivery to a person who is a director, company secretary, proxy, corporate representative appointed under s 250D of the Corporations Act (Corporate Representative), or attorney under power, of each of the Members, at any time before the Scheme Meetings commence;

(b)    dispatch of the documents referred to in paragraph (a) above in general accordance with its terms is to be taken to be sufficient notice of the Scheme Meetings;

(c)    each Scheme Meeting is to proceed following the conclusion or adjournment of the Scheme Meeting that immediately preceded it;

(d)    the Scheme Meetings are to be chaired by Mr Tony Randello, or failing him, Mr Nathan Dean Cockerill (Chairman);

(e)    the Chairman of the Scheme Meetings has the power to adjourn the meetings in his absolute discretion;

(f)    each Member may appoint the Chairman as its proxy, Corporate Representative or attorney under a power, for the purposes of attending and voting at the relevant Scheme Meeting;

(g)    each Member, present by proxy, Corporate Representative or attorney under a power, shall constitute a quorum for the purposes of each Scheme Meeting in respect of each Scheme;

(h)    a proxy (substantially in accordance with Form 532), appointment of a Corporate Representative or power of attorney may be delivered to the Chairman of the Scheme Meetings at any time before the commencement of the Scheme Meetings;

(i)    a resolution put to the vote at each Scheme Meeting to approve each Scheme, or any modification to the relevant Scheme, may be decided by each Member or its representative (including its proxy, Corporate Representative or attorney under a power) signing a record of the resolution;

(j)    Rule 2.15 of the Federal Court (Corporations) Rules 2000 (Cth) (Rules) shall not apply to the Scheme Meetings, except for r 75-15(2) of the Insolvency Practice Rules (Corporations) 2016 (Cth).

4.    On or before 18 October 2018, the plaintiffs publish a Notice of Hearing substantially in the form of Annexure A to these orders once in The Australian newspaper. The plaintiffs are otherwise exempted from compliance with r 3.4 of the Rules.

5.    An office copy of these orders be lodged with ASIC before 5.00 pm (AEDT) on 10 October 2018.

6.    The proceedings be stood over to 10.15 am (AEDT) on 23 October 2018 before Yates J for the hearing of any application to approve the Schemes.

7.    There be liberty to apply.

8.    These orders be entered forthwith.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

Introduction

1    The plaintiffs seek orders providing for the convening of meetings in relation to proposed schemes of arrangement. The schemes of arrangement have been proposed for the purposes of, or in connection with, the reconstruction or amalgamation of companies within the Lendlease Capital Services Group. Most of the plaintiffs have participated in the Lendlease Retirement Living business (the LRL business).

2    There are 114 plaintiffs. A separate scheme is proposed between each plaintiff and its sole member. In the following paragraphs of these reasons, it is convenient to refer to each plaintiff as a scheme company and to the plaintiffs collectively as the scheme companies.

3    The scheme companies have either ceased to carry on business by December 2017 or have never traded at all. Subject to one exception, the scheme companies which have traded have transferred all their assets to third parties. The exception is Lendlease Primelife Limited (LLPL), which holds a net receivable of approximately $307,000 that relates to the sale of a resident loan portfolio in New Zealand. Each other scheme company had nil assets as at 30 June 2018.

4    Further, each scheme company’s external liabilities were either nil or the subject of a provision reflected in the balance sheet extracted from the audited financial statements of the defendant, Lendlease Capital Services Pty Ltd (LCS). Each scheme company is now entirely funded by LCS. LCS is a wholly-owned subsidiary of Lendlease Corporation Limited (LLC), which is the ultimate holding company of each scheme company.

5    The only shares on issue in each scheme company are ordinary shares, other than in respect of Lakeside Gardens Management Pty Ltd and PLT Management Pty Ltd, where the only shares on issue are Class A shares. None of the shares of the scheme companies are quoted on the official list of the Australian Securities Exchange or any other financial market.

6    None of the scheme companies is, presently, a party to litigation.

The schemeS

7    It is proposed that:

    the property of each scheme company will, simultaneously with the property of every other scheme company, be transferred to and vested in LCS, without the need for any further act or deed;

    all liabilities of each scheme company will, simultaneously with the liabilities of every other scheme company, be transferred to and become liabilities of LCS, without the need for any further act or deed;

    all legal proceedings pending by or against any scheme company will be continued by or against LCS without the need for any further act or deed, other than an amendment of the record of the relevant court or tribunal;

    each scheme company will attend to such incidental, consequential and supplemental matters as are necessary to ensure that the scheme to which it is a party is fully and effectively carried out; and

    each scheme company will be deregistered by the Australian Securities and Investments Commission (ASIC), without winding up.

8    The objectives of the proposed reconstruction or amalgamation are to:

    materially reduce the administrative, accounting, audit, compliance and reporting costs of the Lendlease Capital Services Group by approximately $205,200 per annum;

    consolidate the ownership of any undertaking or business of a scheme company into LCS; and

    rationalise the number of companies in the Lendlease Capital Services Group, and eliminate the duplication of functions across the companies in that group.

9    These proposals will, in respect of each scheme company, affect the rights which its sole member has against the company as a shareholder, and diminish the value of the member’s property represented by its shareholding in the company. The sole member of each scheme company will consent to the steps noted above notwithstanding any diminution in the value of that member’s shareholding and the rights at law it may have in connection with the scheme. Further, each member waives any rights that it may otherwise have in connection with the scheme or the reconstruction or amalgamation effected by the scheme. In the circumstances, each scheme is a “compromise or arrangement” for the purposes of s 411(1) of the Act: AGL Energy Services (Queensland) Pty Ltd v AGL Energy Services Pty Ltd (No 2) [2010] FCA 453; Warrnambool Cheese and Butter Factory Limited v Warrnambool Cheese and Butter Factory Company Holdings Limited, in the matter of Warrnambool Cheese and Butter Factory Company Limited [2017] FCA 302 at [10] and the cases there cited.

10    LCS has been added as a defendant in the proceeding because it is the proposed transferee of the assets and liabilities of the scheme companies, and orders under s 413 of the Corporations Act 2001 (Cth) (the Act) will be sought: Royal Victorian Institute for the Blind Ltd v RBS.RVIS.VAF Ltd [2004] FCA 735; (2004) 206 ALR 581; see also SGIC Insurance Ltd v Insurance Australia Ltd [2004] FCA 1638 at [6] and Equatorial Mining Pty Ltd v Antofagasta Investment Company Ltd [2013] FCA 1452 at [29]. The evidence is that LCS is aware of this proceeding, waives formal service of the originating process and supporting affidavits, supports the application, and does not wish to appear.

Explanatory statement

11    A draft explanatory statement, intended to fulfil the requirements of s 412(1) of the Act in relation to each scheme, has been prepared. The scheme companies and LCS have undertaken a verification process in relation to the contents of the statement. This is explained in an affidavit made by Mr Cockerill, the Executive General Manager Finance of the LRL business. On 31 August 2018, the directors of the scheme companies reviewed a draft of the explanatory statement (as at 27 August 2018) and resolved, amongst other things, to approve it and to authorise minor changes made after that date. Further, Mr Cockerill has responsibility for all financial decisions, structuring, business planning, management and statutory reporting for the companies and trusts that undertake the LRL business, including the scheme companies. He has been involved in the verification process and deposed that, to the best of his knowledge, information and belief, all statements of fact made in the explanatory statement are true and correct and that there is no other information material to the making of a decision in relation to any scheme which has not previously been disclosed to the relevant member of a scheme company.

Directors’ opinion

12    The directors of the scheme companies unanimously support the scheme and believe that it is fair and reasonable and in the best interests of each scheme company member. Further they believe that the scheme will not adversely affect the interests of the scheme companies’ creditors. This is because all obligations of each scheme company to its creditors will be assumed by LCS, whose financial position is superior to the position of all the scheme companies.

13    In this connection, the evidence is that the net assets of LCS, following implementation of the schemes, will exceed $561,405,000. Also, following implementation of the schemes, LCS will have the benefit of contractual rights, undertakings and indemnities currently possessed by the scheme companies which have traded and sold their assets to third parties.

14    Relatedly, any remaining business or undertaking of each scheme company will be carried on by LCS in the same manner as it is currently carried on, and there will be no major changes to any such business or any redeployment of any fixed assets of any scheme company. No scheme company has employees.

15    Further, on 31 August 2018, the directors of LCS resolved that, in their opinion, LCS will be able to pay its debts as and when they become due and payable, and is a going concern on the basis that LLC had provided a letter dated 1 August 2018 confirming financial support for LCS.

No expert report

16    LCS is, directly or indirectly, a holding company for every scheme company. Clause 8303 of Pt 3 of Sch 8 of the Corporations Regulations 2001 (Cth) (the Regulations) requires the explanatory statement be accompanied by a report made by an expert who is not associated with the sole member of the company, stating whether or not, in his or her opinion, the scheme is in the best interests of the member of the relevant company and setting out reasons for that opinion. ASIC has waived compliance with this requirement.

Potential liabilities

17    Those scheme companies that have traded were involved in owning, operating and managing retirement villages and associated facilities. As such, they entered into contracts with residents at the retirement villages (concerning such matters as the residents’ rights to reside in particular residential units and to receive services while in occupation) and various business contracts relating to the conduct of the villages. The scheme companies have also assumed legal obligations under State legislation providing for the operation of such villages. Therefore, the scheme companies concerned have ongoing potential liability arising from their previous activities. These potential liabilities are not reflected in the balance sheet extracted from the audited financial statements of LCS as at 30 June 2018 because they are not “liabilities” or “potential liabilities” under the relevant accounting standards that applied in respect of the preparation of the statements. The directors of the scheme companies are not aware of any particular, actual liability in this regard and, as I have noted, no scheme company is presently involved in litigation.

18    However, one scheme company, PLT New Zealand Pty Ltd (PLTNZ), has been notified that it may be subject to a warranty claim by a purchaser under an agreement styled “Agreement for Sale and Purchase of New Zealand Lendlease Retirement Living Portfolio” dated 31 January 2016, under which LLPL is also PLTNZ’s guarantor. While notification of the potential warranty claim has been received, no formal dispute process or litigation has been commenced by the purchaser against PLTNZ or LLPL and any amount that might be sought from PLTNZ or LLPL has not been particularised. PLTNZ and LLPL have stated that there are multiple bases on which the potential warranty claim could be denied and that any claim, if brought, would be defended.

Exit from tax consolidated group

19    LLC is the head entity of a tax consolidated group which includes the scheme companies and LCS. The group is treated as a single entity for income tax purposes and its members are parties to a tax sharing agreement dated 18 August 2003. A group member can leave the consolidated group on paying an exiting contribution amount. LLC, LCS and the scheme companies have entered into legally binding arrangements under which LCS will advance funds to each scheme company that will enable it to pay its exiting contribution to LLC before the scheme company is deregistered. On implementation of the schemes, the debts will be transferred to LCS and merge with LCS’s right to repayment of the advanced funds. The net diminution in the net assets of LCS that will occur as a consequence of the transactions contemplated has been provided for in the balance sheet extracted from the audited financial statements as at 30 June 2018. After allowing for this provision, the net asset position of LCS following implementation of the schemes will still be more than $561,405,000.

The scheme meetingS

20     It is proposed that the scheme meetings will be held successively on 16 October 2018, with the first scheme meeting commencing at 12.30 pm and each subsequent meeting commencing immediately after the conclusion or adjournment of the meeting immediately preceding it.

21    Mr Randello is a director of each scheme company and the managing director of the LRL business. He has consented to act as chairperson of each scheme meeting. He has made an affidavit in fulfilment of the requirements of r 3.2 of the Federal Court (Corporations) Rules 2000 (Cth). Mr Cockerill has consented to act as alternative chairperson. He has also made an affidavit in fulfilment of r 3.2.

ASIC’s position

22    ASIC has confirmed that 14 days’ notice of the hearing of this application has been given to it: s 411(2)(a). It has also confirmed that it has had a reasonable opportunity to examine the terms of the proposed schemes and the draft explanatory statement, and to make submission to the Court in relation thereto: s 411(2)(b). ASIC did not seek to appear at the hearing of the present application or to make submissions in respect of the proposed schemes. As I have noted, ASIC has waived compliance with cl 8303 of Pt 3 of Sch 8 of the Regulations.

The evidence

23    The following affidavits were read in support of the present application:

    Melinda Lee Smith, sworn 5 September 2018;

    Matthew Alan Mears, sworn 3 October 2018;

    Tony Randello, sworn 3 October 2018;

    Steven John Knight, sworn 8 October 2018; and

    Nathan Dean Cockerill, sworn 4 October 2018.

24    Mr Cockerill’s affidavit exhibits a folder of documents by the designation “NDC-2”. A claim of confidentiality is made in respect of them. It has not been necessary for me to determine that claim at the present time. These documents remain with the plaintiffs’ solicitors.

Generally

25    I am satisfied that each scheme company is a Pt 5.1 body for the purposes of the Act. As I have recorded, I am satisfied that each scheme is in respect of a “compromise or arrangement” for the purposes of s 411(1) of the Act. I am satisfied that the statutory requirements for convening each scheme meeting have been satisfied or that compliance has been waived. I am satisfied that each proposed scheme is of such a nature and cast in such terms that, if it receives the requisite statutory majority (as is obviously highly likely), the Court is likely to approve it on an unopposed application.

Disposition

26    Orders as sought should be made.

Associate:

Dated:    11 October 2017

Schedule