Dalrymple Resources NL [2003] FCA 1273

FEDERAL COURT OF AUSTRALIA

Dalrymple Resources NL [2003] FCA 1273

CORPORATIONS – approval of scheme of arrangement Corporations Act 2001 (Cth), ss 411, 412

IN THE MATTER OF DALRYMPLE RESOURCES NL W3019 of 2003 CARR J 29 OCTOBER 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W3019 OF 2003

IN THE MATTER OF DALRYMPLE RESOURCES NL

(ACN 009 423 689)

APPLICANT

JUDGE: CARR J

DATE OF ORDER: 29 OCTOBER 2003

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The Scheme of Arrangement between the applicant and its members, being Appendix 2 to the Explanatory Statement dispatched in accordance with the Orders of this Court of 15 September 2003 and agreed to by resolution of the members of the applicant at a meeting of its members on 20 October 2003, be approved. 2. In accordance with s 411(12) of the Act, the applicant is exempt from compliance with s 411(11) of the Act. 3. An office copy of these Orders be lodged with the Australian Securities and Investments Commission within 14 days. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W3019 OF 2003

IN THE MATTER OF DALRYMPLE RESOURCES NL

(ACN 009 423 689)

Applicant

JUDGE: CARR J

DATE: 29 OCTOBER 2003

PLACE: PERTH

REASONS FOR JUDGMENT

introduction 1 On 15 September 2003 I made orders convening meetings of the shareholders of the applicant for the purpose of considering and, if thought fit, approving with or without modifications, a scheme of arrangement proposed between the applicant and its members. I also made an order approving an Explanatory Statement required by s 412(1)(a) of the Corporations Act 2001 (Cth) ("the Act") to accompany notices of the proposed meeting. I made other procedural orders for reasons which I gave on that date – see In the matter of Dalrymple Resources NL [2003] FCA 1096. The applicant now seeks an order under s 411(6) of the Act approving that scheme of arrangement. 2 The applicant has since filed five further affidavits deposing to compliance with the orders made on 15 September 2003 and the statutory and regulatory requirements. The Australian Securities and Investments Commission ("ASIC") has provided a statement in writing to the effect that it has no objection to the arrangements – see s 411(17) of the Act. The applicant has produced that statement to the Court as an annexure to the fifth of the affidavits which I have just mentioned. Section 411(17) of the Act relevantly provides that the Court must not approve an arrangement unless it is satisfied that the arrangement has not been proposed for the purpose of enabling any person to avoid the operation of any of the provisions of Chapter 6, or such a statement from ASIC is produced to the Court, but it need not do so merely because ASIC has made such a statement. 3 I am satisfied on the evidence of Mr Neil Tomkinson, referred to briefly at paragraph 5 of my earlier judgment, that the arrangement has not been proposed for the purpose of enabling any person to avoid the operation of any of the provisions of Chapter 6 of the Act. 4 On the basis of the further evidence filed I am satisfied that: (a) An office copy of the orders made on 15 September 2003 was lodged with ASIC as soon as practicable after those orders were made. (b) The Explanatory Statement was duly registered in accordance with the provisions of s 412(6) and (8) before it was sent to the members and other persons entitled to receive it. (c) A meeting of the holders of ordinary shares in the applicant was duly convened in accordance with the orders made on 15 September 2003 and in accordance with the relevant statutory and regulatory requirements applicable to the convening of that meeting, and in particular that the documents referred to in paragraph 6 of the orders then made were in fact duly dispatched to the persons described in that paragraph. (d) The applicant advertised that meeting in accordance with paragraph 3 of the abovementioned orders, in the "West Australian" newspaper and "The Australian" newspaper respectively in accordance with the requirements of that paragraph. (e) Those advertisements included a notification of the place at which and the manner in which the members entitled to vote at the meeting might obtain copies of the Explanatory Statement – see s 412(1)(b). (f) In accordance with the abovementioned orders, Mr Neil Tomkinson acted as chairman of the meeting. He has reported the results of the meeting to the Court. (g) At the meeting, which I find to have been duly convened in accordance with the orders made on 15 September 2003, a resolution in favour of the arrangement was passed by a majority in number of the members present and voting either in person or by proxy and by not less than 75% of the votes cast on the resolution – see s 411(4)(a)(ii). In fact the evidence shows that all of the members present and voting either in person or by proxy voted in favour of the resolution with the result that all of the votes cast were in favour of the resolution. (h) All of the other orders made on 15 September 2003 have been complied with. (i) Notice of today's application has been duly given in accordance with the regulations. No notice of any intention to appear at today's hearing has been filed and nobody has appeared today to oppose the application for approval of the arrangement. 5 I have reviewed the scheme of arrangement. At the stage when I gave my earlier reasons I assessed it as being a commercial arrangement which reasonable persons (being members) might well approve – citing two of the relevant authorities. Today I confirm that assessment and say further that, in my view, the scheme is fair and reasonable in the sense that an intelligent and honest man, being the holder of ordinary shares in the applicant, might approve it – see the authorities cited in Re NRMA (2000) 33 ACSR 595 at [41]. 6 I am satisfied that the shareholders were, prior to the passing of the abovementioned resolution, put into a position where they were well able to judge the fairness of the scheme so far as they were concerned. The fact that the resolution was passed unanimously, together with the fact that there is no person here today to oppose the scheme, indicates to me that the applicant's shareholders accept that this arrangement is fair. There is no suggestion of prejudice to the applicant's creditors. I note also the absence of any objection from ASIC. 7 I am satisfied that all of the requirements of the Act and the regulations have been complied with. In all the circumstances, I consider that the Court should make an order of the type referred to in s 411(4)(b) and (6) granting its approval to the arrangement. 8 I consider that it is appropriate to make orders in accordance with the short minutes of order which I have signed and placed with the papers. The primary order so made is one which approves the arrangement. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.