Dominion Mining Limited, in the matter of Dominion Mining Limited [2010] FCA 1504

FEDERAL COURT OF AUSTRALIA

Dominion Mining Limited, in the matter of Dominion Mining Limited [2010] FCA 1504 Citation: Dominion Mining Limited, in the matter of Dominion Mining Limited [2010] FCA 1504

Parties: DOMINION MINING LIMITED

File number(s): NSD 1651 of 2010

Judge: EMMETT J

Date of judgment: 16 December 2010

Legislation: Corporations Act 2001 (Cth) s 411

Date of hearing: 16 December 2010

Place: Sydney

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 24

Counsel for the Plaintiff: T.F. Bathurst QC and K.H.Barrett

Solicitor for the Plaintiff: Johnson Winter & Slattery

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1651 of 2010

IN THE MATTER OF DOMINION MINING LIMITED DOMINION MINING LIMITED

JUDGE: EMMETT J DATE OF ORDER: 16 DECEMBER 2010 WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (Act) there be convened a meeting (Share Scheme Meeting) of holders of fully paid ordinary shares of the Plaintiff (Dominion Shareholders), for the purpose of considering and, if thought fit, approving (with or without modification) the scheme of arrangement between them and the Plaintiff, substantially in the form of the draft Share Scheme of Arrangement (Share Scheme) a copy of which is at Appendix 4 to the scheme booklet which is Exhibit A (Scheme Booklet). 2. Pursuant to section 411(1) of the Act there be convened a meeting (Option Scheme Meeting) of holders of options to acquire fully paid ordinary shares of the Plaintiff (Dominion Optionholders), for the purpose of considering and, if thought fit, approving (with or without modification) the scheme of arrangement between them and the Plaintiff, substantially in the form of the draft Option Scheme of Arrangement (Option Scheme) a copy of which is at Appendix 6 to the Scheme Booklet. 3. The Share Scheme Meeting be held at 10:00am Australian Eastern Daylight Savings Time (AEDT) on 2 February 2011 at the Metcalfe Auditorium, State Library of NSW, Macquarie Street, Sydney, New South Wales. 4. The Option Scheme Meeting be held at 11:15am AEDT (or immediately following the conclusion of the Share Scheme Meeting, whichever time is later) on 2 February 2011 at the Metcalfe Auditorium, State Library of NSW, Macquarie Street, Sydney, New South Wales. 5. The draft: (a) Scheme Booklet comprising the explanatory statements for the Share Scheme and the Option Scheme; (b) letter from the Chairman of the Plaintiff to Dominion Shareholders a copy of which is at Annexure 'JSK17', page 474 of the affidavit of John Storrie Keeves sworn on 15 December 2010 (Keeves Affidavit); (c) letter from the Chairman of the Plaintiff to Dominion Optionholders a copy of which is at Annexure 'JSK18', page 481 of the Keeves Affidavit; (d) notice of meeting for the Share Scheme Meeting a copy of which is at Annexure 'JSK17', page 475 of the Keeves Affidavit; (e) notice of meeting for the Option Scheme Meeting a copy of which is at Annexure 'JSK18', page 482 of the Keeves Affidavit; (f) proxy form for the resolution to be passed at the Share Scheme Meeting, a copy of which is at Annexure 'JSK17', page 479 of the Keeves Affidavit; (g) proxy form for the resolution to be passed at the Option Scheme Meeting a copy of which is at Annexure 'JSK18', page 486 of the Keeves Affidavit; be and are hereby approved. 6. On or before 5pm on 22 December 2010 there be despatched by prepaid ordinary post (or in the case of overseas members, by airmail), to each Dominion Mining Shareholder appearing in the register of the Plaintiff's shareholders at 5pm on 16 December 2010, a document substantially in the form or to the effect of the Scheme Booklet together with the Chairman's letter to Dominion Shareholders, Notice of Share Scheme Meeting, relevant proxy form, reply paid envelope and fly sheet. 7. On or before 5pm on 22 December 2010 there be despatched by prepaid ordinary post (or in the case of overseas members, by airmail), to each Dominion Mining Optionholder appearing in the register of the Plaintiff's optionholders at 5pm on 16 December 2010, a document substantially in the form or to the effect of the Scheme Booklet together with the Chairman's letter to Dominion Optionholders, Notice of Option Scheme Meeting, relevant proxy form, reply paid envelope and fly sheet. 8. Documents despatched in accordance with paragraph 6 or 7 will be deemed to be received in accordance with clause 13 of the Constitution of the Plaintiff as if the documents were notices of a general meeting. 9. The meetings convened pursuant to paragraphs 1 and 2 (the Option Scheme Meeting to be treated as if it were a meeting of the members of the Plaintiff) will be conducted in accordance with the Constitution of the Plaintiff and Part 2G.2 of the Act (excluding for the avoidance of doubt any replaceable rules in Part 2G.2 of the Act), except to the extent provided otherwise by these orders. 10. Dominion Mining Shareholders who are recorded in the share register of the Plaintiff at 7:00pm on 31 January 2011 shall be eligible to vote at the Share Scheme Meeting. 11. Dominion Mining Optionholders who are recorded in the option register of the Plaintiff at 7:00pm on 31 January 2011 shall be eligible to vote at the Option Scheme Meeting. 12. A form of proxy in respect of the Share Scheme Meeting or the Option Scheme Meeting will be valid and effective if: (a) delivered to the Plaintiff care of Registries Limited by use of the reply paid envelope; (b) delivered to the Plaintiff at the Plaintiff's registered office at 15 Outram Street, West Perth, Western Australia, 6005, Australia; or (c) received by mail at: (i) the Plaintiff's registered office at 15 Outram Street, West Perth, Western Australia, 6005, Australia; or (ii) the Plaintiff care of Registries Limited, GPO Box 3993, Sydney, New South Wales, 2001, Australia; or (d) successfully transmitted by facsimile to: (i) the Plaintiff's registered office; or (ii) the Plaintiff at care of Registries Limited on 02 9290 9655 (from within Australia) or +61 2 9290 9655 (from outside Australia); (e) in the case of the Share Scheme Meeting only, submitted online at www.registries.com.au/vote/dominionscheme, in each case provided the proxy is received not later than 10:00am on 31 January 2011. 13. The Chairperson of each of the Share Scheme Meeting and the Option Scheme Meeting be Peter Charles Joseph and, in his absence, John Gaskell. 14. The Chairperson appointed to the Share Scheme Meeting and the Option Scheme Meeting, and in his absence the alternative Chairperson, has the power to adjourn the meetings in his absolute discretion. 15. All voting at the Share Scheme Meeting and the Option Scheme Meeting (other than voting on any procedural motion) be by poll as declared by the Chairperson. 16. The Plaintiff advertise the Share Scheme Meeting and the Option Scheme Meeting once, substantially in the form of the document attached and marked 'Attachment A', in The Australian newspaper, The Western Australian newspaper and The Sydney Morning Herald newspaper, no later than 14 days before the date appointed for the Share Scheme Meeting and Option Scheme Meeting. 17. The Plaintiff publish once substantially in the form of the document attached and marked 'Attachment B', in The Australian newspaper, The Western Australian newspaper and The Sydney Morning Herald newspaper a notice of hearing of any application to approve the Share Scheme and the Option Scheme under section 411(4) of the Act on or before 3 February 2011, and the Plaintiff shall otherwise be exempted from compliance with the requirement to publish such notices at least 5 days before the date fixed for the hearing of the application pursuant to Rule 3.4(3)(b) of the Federal Court (Corporations) Rules 2000 (Cth) (Rules). 18. The Plaintiff be excused from complying with Rule 2.15 of the Rules, except in so far as that rule applies Regulation 5.6.13 of the Corporations Regulations 2001 to the meetings. 19. The proceedings be stood over to 4 February 2011 at 10:15am before Justice Emmett for the hearing of any application to approve the Scheme. 20. The Plaintiff has liberty to apply. 21. These Orders to 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.