Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Arc Energy Limited, In the matter of Arc Energy Limited [2008] FCA 1396
CORPORATIONS – approval of scheme of arrangement – Intervener – Supreme Court writ of summons with endorsement alleging breach of obligations relating to a confidentiality and non- circumvention agreement served by Intervener on plaintiff – writ served two working days before meeting of plaintiff's shareholders to approve the scheme – members who attended meeting informed of writ – proxy voters not so informed directly – ASX informed of writ before meeting – allegations in writ denied by plaintiff – scheme approved by overwhelming majority of members – whether notice of writ to proxy voters may have altered their decision whether to vote in favour of the scheme – appropriate that matter of writ was brought to the attention of the Court – writ did disclose triable issues – plaintiff willing to consent to orders to preserve Intervener's legitimate interests – Intervener pressed for adjournment and for orders that a further meeting of members be convened to enable proxy voters to consider terms of writ – no explanation as to why adjournment being sought when Intervener had no obvious interest – ulterior purpose inferred.
Corporations Act 2001 (Cth) ss ss 411(4)(b), 411(12), 411(6), 413(1)(c) and (g)
IN THE MATTER OF ARC ENERGY LIMITED ARC ENERGY LIMITED and BURU ENERGY LTD
WAD 130 of 2008
GILMOUR J
8 AUGUST 2008
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY WAD 130 of 2008
IN THE MATTER OF ARC ENERGY LIMITED ARC ENERGY LIMITED and BURU ENERGY LTD
Plaintiffs
JUDGE: GILMOUR J
DATE OF ORDER: 8 AUGUST 2008
WHERE MADE: PERTH
THE COURT ORDERS THAT:
In respect of the Plaintiff's originating process dated 13 June 2008: 1 Buru Energy Limited (ABN 71 130 651 437) be joined as a party. 2 Pursuant to ss 411(4)(b) and 411(6) of the Corporations Act 2001 (Cth), the scheme which is set out in Section 16 of annexure "DDK7" to the third affidavit of Daniel David Kirk sworn 2 July 2008 be approved (Scheme). 3 Pursuant to s 411(12) of the Corporations Act 2001 (Cth), the Plaintiff is exempted from compliance with section 411(11) of the Corporations Act 2001 (Cth) in relation to the Scheme. In respect of the Intervener's interlocutory process dated 7 August 2008: 4 The time for service of the interlocutory process be abridged. 5 Oil Basins Limited (ABN 56 006 024 764) (Oil Basins) have leave to intervene in these proceedings. 6 Pursuant to s 413(1)(c) and (g) of the Corporations Act 2001 (Cth): (a) Oil Basins has the right to commence or continue proceedings against Buru Energy Limited (ABN 71 130 651 437) (Buru Energy) in respect of all causes of action which Oil Basins has, or which it may, but for the Scheme, have had, against the Plaintiff; and (b) Buru Energy be restricted in its defence of any such proceedings to those defences which could have been raised by the Plaintiff, ignoring the operation of the Scheme. 7 Order 5 is not intended to affect the ability of Oil Basins to commence or continue proceedings against the Plaintiff. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA
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