FEDERAL COURT OF AUSTRALIA Colonial First State Private Capital Limited, in the matter of Colonial First State Private Capital Limited (No 2) [2007] FCA 1986 COLONIAL FIRST STATE PRIVATE CAPITAL LIMITED (ACN 002 785 739) NSD 2021 OF 2007 LINDGREN J 13 DECEMBER 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2021 OF 2007 IN THE MATTER OF COLONIAL FIRST STATE PRIVATE CAPITAL LIMITED (ACN 002 785 739) BETWEEN: COLONIAL FIRST STATE PRIVATE CAPITAL LIMITED (ACN 002 785 739) Plaintiff JUDGE: LINDGREN J DATE OF ORDER: 7 december 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth), the scheme of arrangement between the Plaintiff and its ordinary shareholders a copy of which is annexed to this document and marked "A" (CFI Scheme) is approved. 2. Pursuant to s 411(12) of the Corporations Act 2001 (Cth), the Plaintiff be exempted from compliance with s 411(11) of the Corporations Act 2001 (Cth) in relation to the CFI Scheme. 3. These Orders be entered forthwith. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. ANNEXURE "A" Scheme of Arrangement Pursuant to s 411 of the Corporations Act Between Name Colonial First State Private Capital Limited Name The holders of fully paid ordinary shares in CFI 1. Definitions and interpretation 1.1 Defined terms The following definitions apply unless the context requires otherwise. Aggregate Scheme Consideration means $116,320,000: (a) plus (if the Vinyls Net Consideration is greater than $15,200,000) an amount equal to 70% of the difference between $15,200,000 and the Vinyls Net Consideration; or (b) minus (if the Vinyls Net Consideration is less than $15,200,000) an amount equal to 70% of the difference between $15,200,000 and the Vinyls Net Consideration; (c) plus or minus any excess or shortfall between the net assets (excluding the Infrastructure Assets and the Private Equity Assets) of CFI as shown in its audited accounts for the year ended 30 June 2007 and $28,400,000 being the net assets (excluding the Infrastructure Assets and the Private Equity Assets) of CFI as shown in its unaudited accounts as at 30 June 2007; (d) less the aggregate amount of any dividend and/or any return of capital declared or made by CFI after the date of this agreement and payable on or before the Scheme Record Date. ASIC means the Australian Securities and Investments Commission. ASX means Australian Stock Exchange Limited ABN 98 008 624 691 or, as the context requires, the financial market conducted by it. ASX Listing Rules means the official listing rules of ASX. Business Day has the meaning given in the ASX Listing Rules. CFI means Colonial First State Private Capital Limited ABN 76 002 785 739. CFI Share means a fully paid ordinary share in the capital of CFI. CFI Shareholder means a person registered in the CFI Share Register as the holder of CFI Shares. CFI Share Register means the register of members of CFI maintained in accordance with the Corporations Act. CFI Share Registry means Link Market Services Limited as registrar of the CFI Share Register. CHESS means the Clearing House Electronic Subregister System for the electronic transfer of securities and other financial products operated by ASX Settlement and Transfer Corporation Pty Ltd ABN 49 008 504 532. Corporations Act means the Corporations Act 2001 (Cth). Court means the Federal Court of Australia or any other court of competent jurisdiction under the Corporations Act determined by CFI. Court Order means the order of the Court approving this Scheme under section 411(4)(b) of the Corporations Act. Court Order Time means 8:00am on the first day on which the Court hears the application for an order pursuant to section 411(4)(b) of the Corporations Act to approve this Scheme or, if the application is adjourned or subject to appeal for any reason, the day on which the adjourned or appealed application is heard. Deed Poll means the Deed Poll dated 16 August 2007 executed by Sunsuper pursuant to which Sunsuper covenants to perform its obligations contemplated under this Scheme. Effective means, when used in relation to this Scheme, the coming into effect, pursuant to section 411(10) of the Corporations Act, of the Court Order. Effective Date means the date on which this Scheme becomes Effective. End Date means 31 December 2007 or such later date as Sunsuper and CFI agree in writing. Implementation Date means, in relation to this Scheme, the third Business Day after the Scheme Record Date or such other date as Sunsuper and CFI agree in writing. Infrastructure Assets means CFI's investments (directly or indirectly) in Brisbane Airport, Perth Airport (including PAPT Holdings Pty Limited), C M Somerton Pty Ltd, Inexus Group Ltd and Country Pipelines Pty Ltd. Merger Implementation Agreement means the agreement of that name between Sunsuper and CFI dated 16 August 2007. Nominee means an entity nominated by Sunsuper or Sunsuper Bidco as its custodian of the Scheme Shares, the name, ACN and address of which are advised to CFI in writing not later than seven Business Days before the Implementation Date. Private Equity Assets means CFI's investments (directly or indirectly) in Data Impact, Inc., Endeavour Healthcare Limited, Entigen Corporation and Stanilite Limited. Registered Address in relation to a CFI Shareholder means the address of the CFI Shareholder as recorded in the CFI Share Register. Second Court Date means the first day on which an application made to the Court for an order approving the Scheme pursuant to section 411(4)(b) of the Corporations Act is heard or, if the application is adjourned for any reason, the first day on which the adjourned application is heard. Scheme means this scheme of arrangement, subject to any alterations or conditions made or required by the Court under section 411(6) of the Corporations Act and approved in writing by CFI and Sunsuper. Scheme Booklet means the document despatched to CFI Shareholders comprising: (a) the terms of this Scheme; (b) a notice convening the Scheme Meeting (together with proxy forms for that meeting); (c) an explanatory statement in relation to this Scheme issued by CFI under section 412 of the Corporations Act; (d) an independent expert's report in relation to this Scheme; and (e) a copy or extract of the Merger Implementation Agreement and a copy of the Deed Poll. Scheme Conditions means the conditions in clause 3.1 of the Merger Implementation Agreement. Scheme Consideration means the cash consideration per Scheme Share to be provided by Sunsuper for each CFI Share being the Aggregate Scheme Consideration divided by the total number of CFI Shares held by the Scheme Shareholders. Scheme Meeting means the meeting or meetings of CFI Shareholders ordered by the Court to be convened pursuant to section 411(1) of the Corporations Act in respect of this Scheme, and includes any separate meeting of any group of CFI Shareholders that the Court may require. Scheme Record Date means, in relation to this Scheme, 5.00 pm on the fifth Business Day after the Effective Date or such other date as Sunsuper and CFI agree in writing. Scheme Shareholder means a person registered in the CFI Share Register as the holder of Scheme Shares as at the Scheme Record Date. Scheme Shares means all of the CFI Shares held by the Scheme Shareholder on the Scheme Record Date. Scheme Share Transfer means, for each Scheme Shareholder, a proper instrument of transfer of their Scheme Shares for the purpose of section 1071B of the Corporations Act, which may be a master transfer of all Scheme Shares. Sunsuper means Sunsuper Pty Ltd as trustee for the Sunsuper Superannuation Fund (ABN 88 010 720 840). Sunsuper Bidco means Sunsuper Investments A Pty Ltd, an indirectly wholly owned subsidiary of Sunsuper (ACN 127 390 489). Third Party Documents means all of the information (including financial information) and documents provided to Sunsuper (or their legal advisers) which has been prepared by a third party and/or is contained in a document to which CFI is a party, including documents relating to the Infrastructure Assets, the Private Equity Assets or any other entity in which CFI has a legal or equitable interest. Vinyls Net Consideration means either: (a) the gross sale proceeds that CFI has received or is entitled to receive under the Vinyls Sale Agreement for the disposal of its interests in Australian Vinyls Corporation Pty Limited (through shares held in Manacol Pty Limited), less, to the extent that the following are not already taken into account in determining the amounts paid or payable to CFI under the Vinyls Sale Agreement (for example, in Net Debt, as defined in the Vinyls Sale Agreement), any expenses, warranty insurance and other costs relating to that transaction; or (b) if the Vinyls Sale Agreement is not completed in accordance with its terms by 30 September 2007 and the net asset adjustment amount is not finally agreed and determined in accordance with the terms of the Vinyls Sale Agreement by 31 October 2007, then an amount equal to the mid point of the range of values ascribed to CFI's interests in Australian Vinyls Corporation Pty Limited (through shares held in Manacol Pty Limited) by the independent expert appointed pursuant to clause 4.4 of the Merger Implementation Agreement. Vinyls Sale Agreement means the put and call option deed and share sale agreement both dated 1 August 2007 between, inter alia, CFI and CSBP Limited relating to the purchase of Manacol Pty Limited by CSBP Limited. 1.2 Interpretation In this Scheme, except where the context otherwise requires: (a) the singular includes the plural and vice versa, and a gender includes other genders; (b) another grammatical form of a defined word or expression has a corresponding meaning; (c) a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this Scheme, and a reference to this Scheme includes any schedule or annexure; (d) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time; (e) a reference to A$, $A, dollar or $ is to Australian currency; (f) a reference to time is to Sydney, Australia time; (g) a reference to a party is to a party to this Scheme, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes; (h) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; (i) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; (j) a word or expression defined in the Corporations Act has the meaning given to it in the Corporations Act; (k) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; (l) any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally; (m) any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally; (n) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and (o) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day. 1.3 Headings Headings are for ease of reference only and do not affect interpretation. 2. Preliminary 2.1 CFI (a) CFI is a public company limited by shares, incorporated in Australia and registered in New South Wales. Its registered office is at Level 6, 52 Martin Place, Sydney NSW 2000. (b) CFI is admitted to the official list of ASX and CFI Shares are officially quoted on the financial market conducted by ASX. (c) As at the date of the Scheme Booklet, 135,573,456 CFI Shares were on issue. There is no other class of shares in the capital of CFI. 2.2 Sunsuper Sunsuper is the sole trustee of the Sunsuper Superannuation Fund established by trust deed dated 1 October 1987 (as subsequently amended). Sunsuper Bidco is an indirectly wholly owned subsidiary of Sunsuper, incorporated as a special purpose vehicle as the acquirer and transferee of the CFI Shares. 2.3 Supporting documents (a) CFI and Sunsuper have agreed, by executing the Merger Implementation Agreement, to implement the terms of and to perform their respective obligations under this Scheme. Under a supplementary deed to the Merger Implementation Agreement, dated 4 October 2007, CFI, Sunsuper and Sunsuper Bidco agreed that Sunsuper Bidco, rather than Sunsuper, would be the acquirer and transferee of the CFI Shares. Sunsuper will retain all its obligations under the Merger Implementation Agreement, including to pay the Aggregate Scheme Consideration to the Scheme Shareholders, although it may procure Sunsuper Bidco to do so. (b) Sunsuper has executed a Deed Poll in favour of Scheme Shareholders pursuant to which Sunsuper has covenanted to carry out the obligations to be performed by it under this Scheme. (c) If this Scheme becomes Effective, CFI undertakes in favour of each Scheme Shareholder that it will enforce the Deed Poll against Sunsuper on behalf of and as agent and attorney for Scheme Shareholders. 3. Conditions precedent (a) This Scheme is conditional on: (i) all of the Scheme Conditions having been satisfied or waived in accordance with the terms of the Merger Implementation Agreement; (ii) the Merger Implementation Agreement having not been terminated as at the Court Order Time; and (iii) such other conditions imposed by the Court under section 411(6) of the Corporations Act as are acceptable to Sunsuper and CFI. (b) The fulfilment of each condition in clause 3(a) is a condition precedent to the binding effect of this Scheme. (c) On the Second Court Date, CFI must provide to the Court a certificate confirming whether or not all the conditions precedent to this Scheme have been satisfied or waived, other than the condition in clause 3.1(a) of the Merger Implementation Agreement. (d) This Scheme will lapse and be of no further force or effect if the Effective Date has not occurred on or before the End Date or such later date as the Court, with the consent of CFI and Sunsuper, may order. 4. The Scheme 4.1 Effect of Scheme (a) If this Scheme becomes Effective, it will: (i) bind CFI and all Scheme Shareholders, including those who do not attend the Scheme Meeting, those who do not vote at that meeting and those who vote against this Scheme at that meeting; and (ii) override the constitution of CFI, to the extent of any inconsistency. 4.2 Procedural matters (a) If the Court makes the Court Order, CFI will lodge with ASIC office copies of that order as soon as practicable and by no later than 5.00pm on the first Business Day after the date on which that order is made. (b) This Scheme will come into effect on the Effective Date. 4.3 Transfer of Scheme Shares On the Implementation Date: (a) subject to payment of the Aggregate Scheme Consideration in the manner contemplated by clause 4.4 and Sunsuper having provided CFI with written confirmation of that payment: (i) all of the Scheme Shares will be transferred to Sunsuper Bidco or its Nominee without the need for any further act by any Scheme Shareholder (other than acts performed by CFI as attorney and agent of the Scheme Shareholders under clause 7.2); (ii) CFI will deliver to Sunsuper Bidco or its Nominee duly completed and executed Scheme Share Transfers to transfer all of the Scheme Shares to Sunsuper Bidco or its Nominee; and (iii) the Scheme Shares together with all rights and entitlements attaching to the Scheme Shares as at that time will be transferred to Sunsuper Bidco or its Nominee. (b) Sunsuper Bidco or its Nominee will immediately execute the Scheme Share Transfers referred to in clause 4.2(a)(ii) as transferee and deliver the Scheme Share Transfers to CFI for registration. (c) CFI will, immediately following receipt of the Scheme Share Transfers in respect of the Scheme Shares, enter the name and address of Sunsuper Bidco or its Nominee in the CFI Share Register in respect of all the Scheme Shares. (d) With effect from the time immediately after the payment of the Scheme Consideration to Scheme Shareholders, the CFI Board will be reconstituted by: (i) the appointment of the Sunsuper nominees to the CFI board of directors; and (ii) the resignation from the CFI board of directors of all persons who are not nominees of Sunsuper. 4.4 Scheme Consideration (a) The obligations of Sunsuper to pay the Scheme Consideration to each Scheme Shareholder will be satisfied by Sunsuper, on the Implementation Date, depositing (or procuring that Sunsuper Bidco deposits) into an account in the name of CFI, an amount equal to the Aggregate Scheme Consideration payable, subject to clause 4.4(c) below, to all Scheme Shareholders, such amount to be held by CFI on trust for the Scheme Shareholders (except that any interest on the amount will be for the account of Sunsuper or Sunsuper Bidco as the case may be) and for the purpose of sending the Aggregate Scheme Consideration to the Scheme Shareholders by dispatching or procuring the dispatch within five Business Days of the Implementation Date to each Scheme Shareholder by pre-paid post to their Registered Address a cheque in Australian currency drawn on an Australian bank in the name of that Scheme Shareholder for an amount equal to the number of Scheme Shares held by that Scheme Shareholder multiplied by the Scheme Consideration. (b) In the case of joint holders of Scheme Shares, a cheque shall be payable and forwarded in the names of those joint holders. (c) In the case of notice having been given to CFI (or CFI's share registry) of an order made by a court of competent jurisdiction (Court Order): (i) which requires payment to a third party of a sum in respect of Scheme Shares held by a particular Scheme Shareholder, which would otherwise be payable to the particular Scheme Shareholder in accordance with sub-clause 4.4(a) above, then CFI shall make payment in accordance with the Court Order; (ii) which would prevent CFI from dispatching payment to any particular Scheme Shareholder in accordance with sub-clause 4.4(a) above, CFI shall retain an amount, in Australian dollars, equal to the number of Scheme Shares held by that Scheme Shareholder multiplied by the Scheme Consideration until such time as payment in accordance with sub-clause 4.4(a) is permitted by law. 5. Dealings in Shares (a) For the purpose of establishing the persons who are Scheme Shareholders, dealings in CFI Shares will only be recognised if: (i) in the case of dealings of the type to be effected using CHESS, the transferee is registered in the CFI Share Register as the holder of the relevant CFI Shares by the Scheme Record Date; and (ii) in all other cases, registrable transfers or transmission applications in respect of those dealings are received at the CFI Share Registry by the Scheme Record Date. (b) CFI will register registrable transfers or transmission applications of the kind referred to in clause 5(a)(ii) by, or as soon as practicable after, the Scheme Record Date. (c) CFI will not accept for registration, nor recognise for any purpose, any transfer or transmission application in respect of Scheme Shares received after the Scheme Record Date. (d) CFI will maintain or procure the maintenance of the CFI Share Register in accordance with this clause 5. The CFI Share Register in this form will solely determine the persons who are Scheme Shareholders and their entitlements to the Scheme Consideration. (e) From the Scheme Record Date, all holding statements for CFI Shares will cease to have effect as documents of title, and each entry on the CFI Share Register at the Scheme Record Date will cease to have any effect other than as evidence of the entitlements of Scheme Shareholders to the Scheme Consideration. (f) On or before 9.00 am on the day that is second Business Day before the Implementation Date, CFI will give to Sunsuper details of the names and addresses shown in the CFI Share Register of all Scheme Shareholders and of the number of Scheme Shares held by each of them on the Scheme Record Date. 6. Quotation of CFI Shares (a) It is expected that the suspension of trading in CFI Shares on ASX will occur from the close of trading on the day on which CFI notifies ASX that the Court has approved this Scheme under section 411(4)(b) of the Corporations Act. (b) On a date after the Implementation Date to be determined by Sunsuper, CFI will apply for termination of the official quotation on ASX of CFI Shares and will apply to have itself removed from the official list of ASX. 7. General 7.1 Alterations and conditions If the Court proposes to approve this Scheme subject to any alterations or conditions, CFI may, by its counsel or solicitors but subject to the prior written approval of Sunsuper, consent on behalf of all Scheme Shareholders to those alterations or conditions. 7.2 Covenants by Scheme Shareholders (a) Each Scheme Shareholder: (i) agrees to the transfer of all of their Scheme Shares to Sunsuper Bidco or its Nominee in accordance with this Scheme; (ii) agrees to the modification or variation (if any) of the rights attaching to their Scheme Shares arising from this Scheme; (iii) without the need for any further act, irrevocably appoints CFI and each of its directors and officers, jointly and severally, as that Scheme Shareholder's attorney and agent for the purpose of executing any document or doing any other act necessary to give full effect to this Scheme and the transactions contemplated by it; and (iv) consents to CFI doing all things and executing all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to this Scheme and the transactions contemplated by it, including (without limitation) a proper instrument of transfer of its Scheme Shares for the purposes of section 1071B of the Corporations Act which may be a master transfer of all Scheme Shares. (b) From the Effective Date until CFI registers Sunsuper Bidco or its Nominee as the holder of all Scheme Shares in the CFI Share Register, each Scheme Shareholder is deemed to have appointed CFI as its attorney and agent (and directed CFI in such capacity) to appoint the Chairman of Sunsuper as its sole proxy and, where applicable, corporate representative to attend shareholder meetings of CFI, exercise the votes attaching to the Scheme Shares of which they are the registered holder and sign any CFI Shareholders' resolution, and no Scheme Shareholder may attend or vote at any of those meetings or sign or vote on any resolutions (whether in person, by proxy or by corporate representative) other than pursuant to this clause 7.2(b). CFI undertakes in favour of each Scheme Shareholder that it will appoint the Chairman of Sunsuper as the Scheme Shareholder's proxy or, where applicable, corporate representative in accordance with this clause 7.2(b). 7.3 Status of Scheme Shares (a) The Scheme Shareholders are deemed to have warranted to Sunsuper that all their Scheme Shares (including any rights and entitlements attaching to those shares) which are transferred to Sunsuper Bidco or its Nominee under this Scheme will, at the date of the transfer of them to Sunsuper Bidco or its Nominee, be fully paid and free from all mortgages, charges, liens, encumbrances and interests of third parties of any kind, whether legal or otherwise, and restrictions on transfer of any kind, that they have full power and capacity to sell and to transfer their Scheme Shares (including any rights and entitlements attaching to those shares). (b) Sunsuper Bidco will be beneficially entitled either directly or via its Nominee to the Scheme Shares transferred to it under this Scheme pending registration by CFI of the name and address of Sunsuper Bidco or its Nominee in the CFI Share Register as the holder of the Scheme Shares. 7.4 Notices Where a notice, transfer, transmission application, direction or other communication referred to in this Scheme is sent by post to CFI, it will not be deemed to be received in the ordinary course of post or on a date other than the date (if any) on which it is actually received at CFI's registered office. 7.5 Further assurances CFI will do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to this Scheme and the transactions contemplated it. 7.6 Costs CFI will pay the costs of this Scheme, except that Sunsuper will pay any stamp duty payable on the transfer by Scheme Shareholders of the Scheme Shares to Sunsuper. 7.7 Governing law The governing law of this Scheme is the law of New South Wales. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2021 OF 2007 IN THE MATTER OF COLONIAL FIRST STATE PRIVATE CAPITAL LIMITED (ACN 002 785 739) BETWEEN: COLONIAL FIRST STATE PRIVATE CAPITAL LIMITED (ACN 002 785 739) Plaintiff JUDGE: LINDGREN J DATE: 13 DECEMBER 2007 PLACE: SYDNEY REASONS FOR JUDGMENT (second court hearing) INTRODUCTION 1 I have previously published reasons for judgment for orders that I made in this proceeding on 17 October 2007 (Colonial First State Private Capital Limited, in the matter of Colonial First State Private Capital Limited [2007] FCA 1619). I will use the abbreviations that I used in those reasons for judgment in these reasons for judgment. On that date, I ordered that CFI convene a meeting of its members to consider and if thought fit, agree (with or without modification) to a scheme of arrangement between CFI and its members. I also made an order pursuant to s 411(1) of the Act approving the Scheme Booklet as the explanatory statement required by s 412(1)(a) of the Act to accompany the notice convening the meeting. 2 It was subsequently discovered that there were some minor errors in the Scheme Booklet, including in relation to the proxy form and references to the proxy. At a short hearing on 26 October 2007, I made orders substituting an amended scheme booklet (the Substitute Scheme Booklet) for the Scheme Booklet which I had approved on 17 October 2007. 3 The evidence given on the second court hearing incorporated that given on the first court hearing. The additional evidence showed that: · the Substitute Scheme Booklet was printed and sent to all shareholders of CFI; · the convening of the meeting of the members of CFI was duly advertised; · at the Scheme Meeting held on 30 November 2007, the resolution in favour of the scheme was passed by 95.4% in number of the members present and voting (either in person or by proxy) and by 99.2% of the votes cast (either in person or by proxy) on the resolution (see s 411(4)(a)(ii) of the Act); · no notice of intention of any member or creditor to appear at the second court hearing was received; · ASIC has provided a letter stating that it has no objection to the arrangement (see s 411(17)(b) of the Act); · conditions precedent were satisfied (this was proved by certificates provided to the Court at the second court hearing pursuant to cl 3 of the Scheme); and · Sunsuper has the means of funding the acquisition and will, shortly before the implementation date for the Scheme, being 20 December 2007, transfer to the acquisition vehicle, Sunsuper Investments A Pty Ltd, an amount sufficient to enable it to pay the consideration monies to the CFI shareholders on the implementation date. 4 In light of the evidence, I was of the view that the Court should approve the scheme and made orders accordingly. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 13 December 2007 Counsel for the Plaintiff: Mr M B Oakes SC Solicitors for the Plaintiff Minter Ellison Counsel for Sunsuper Pty Ltd: Mr F Gleeson SC Solicitors for Sunsuper Pty Ltd: Jones Day Date of Hearing: 7 December 2007 Date of Judgment: 7 December 2007 Date of Publication of Reasons: 13 December 2007