FEDERAL COURT OF AUSTRALIA RP Data Limited, in the matter of RP Data Limited (No 2) [2011] FCA 468 Citation: RP Data Limited, in the matter of RP Data Limited (No 2) [2011] FCA 468 Parties: RP DATA LIMITED ACN 087 759 171 File number: NSD 223 of 2011 Judge: STONE J Date of judgment: 5 May 2011 Catchwords: CORPORATIONS – Corporations Act 2001 (Cth) – s 411(4)(b) – scheme of arrangement – application for orders approving scheme – whether scheme has been fairly and fully presented to members to enable members to make an informed decision – Court satisfied – scheme approved CORPORATIONS – Corporations Act 2001 (Cth) – s 411(6) – application for orders approving amendment to scheme – proposed amendment to clarify identify of acquiring entity – does not affect any other aspect of the scheme or its implementation – amendment approved CORPORATIONS – Corporations Act 2001 (Cth) – s 254T – special dividend proposed to be declared – whether requirements of s 254T satisfied – company's assets ample for payment of dividend and shareholders' approval given – sufficient to show s 254T will be satisfied Legislation: Corporations Act 2001 (Cth) ss 249K, 254T, 411(1), 411(4)(b), 411(6), 411(17)(b), 412 Cases cited: Re Investorinfo Limited [2005] FCA 1848 Date of hearing: 28 April 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 13 Counsel for the Plaintiff: M Oakes SC Solicitor for the Plaintiff: Allen & Overy Solicitor for CoreLogic Inc R Shankland, Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 223 of 2011 IN THE MATTER OF RP DATA LIMITED ACN 087 759 171 RP DATA LIMITED ACN 087 759 171 Plaintiff JUDGE: STONE J DATE OF ORDER: 28 April 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1 Pursuant to section 411(4)(b) and 411(6) of the Corporations Act 2001 (Cth) (Corporations Act), the scheme of arrangement between the plaintiff and the holders of ordinary shares in the plaintiff (other than ordinary shares held by or for the benefit of CoreLogic Inc. and/or its subsidiaries) (Scheme Shareholders) having been duly agreed at a meeting of Scheme Shareholders of the plaintiff pursuant to section 411(4)(a)(ii) of the Corporations Act, be approved, subject to the following alteration, replacing the definition of "Bidco" in clause 1.1 with "Bidco means CoreLogic Australia Pty Ltd", so that the scheme of arrangement so approved and altered is in the form of Annexure "A" to these Orders. 2 Pursuant to section 411(12) of the Corporations Act, the plaintiff be exempted from compliance with section 411(11) of the Corporations Act in relation to Order 1. 3 These orders to be entered forthwith. Date that entry is stamped: Deputy District Registrar 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. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 223 of 2011 IN THE MATTER OF RP DATA LIMITED ACN 087 759 171 RP DATA LIMITED ACN 087 759 171 Plaintiff JUDGE: STONE J DATE: 5 may 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 17 March 2011, pursuant to an application made by the plaintiff, RP Data Limited (RP Data), I made orders for the convening of a meeting of the holders of the plaintiff's ordinary shares, other than those held by or for the benefit of CoreLogic, Inc (CoreLogic) or its subsidiaries (Scheme Shareholders). The purpose of the meeting was for the Scheme Shareholders to consider and, if thought fit, approve the Scheme (with or without modification). The details of the Scheme and my reasons for making those orders (earlier reasons) are to be found at [2011] FCA 228. 2 On 28 April 2011 at the second Court hearing I made orders pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) approving the Scheme. These are my reasons for those orders. These reasons should be read in conjunction with my earlier reasons. Acronyms and abbreviations in the earlier reasons have the same meaning in these reasons. Evidence 3 Evidence in support of the application for approval includes evidence adduced at the first hearing as well as the following additional affidavits which were read in support of the application: second affidavit of Ian Harley Fraser affirmed on 20 April 2011. Mr Fraser acted as chairman of the Scheme Meeting; third affidavit of Michael James Field Parshall affirmed 28 April 2011. Mr Parshall is a partner of Allen & Overy, the solicitors acting on behalf of the plaintiff in this proceeding; affidavit of Jonathan Claude Kenny affirmed 28 April 2011. Mr Kenny is the company secretary of the plaintiff; affidavit of Stergios Theologides sworn on 19 April 2011. Mr Theologides is the Senior Vice President, General Counsel and Secretary of CoreLogic Inc, the parent company of the CoreLogic group; affidavit of Joy Lam affirmed on 21 April 2011. Ms Lam is a solicitor employed by Allen & Overy, the solicitors for the plaintiff; affidavit of Alison Mary Vella affirmed on 21 April 2011. Ms Vella is an account manager employed by CMR Direct which provides mail services including collation, processing and dispatch of documents to its clients; affidavit of Calliopi Lorena affirmed on 20 April 2011. Ms Lorena is a Relationship Manager with Computershare Investor Services Pty Ltd. She is responsible for overseeing the maintenance and conduct of share registers for clients of Computershare; and affidavit of Stuart Charles Jury affirmed on 27 April 2011. Mr Jury is the Queensland State Manager for Computershare and is also responsible for overseeing the maintenance and conduct of share registers for its clients. 4 Mr Kenny gave evidence as to a copy of the Explanatory Memorandum being provided to the plaintiff's auditor, in accordance with s 249K of the Corporations Act and as to the dispatch of the Scheme Meeting documents to RP Data Shareholders. The Scheme Documents consisted of the Explanatory Memorandum including the Notice of the Scheme Meeting, a personalised proxy form for the Scheme Meeting and a reply paid envelope addressed to Computershare. Electronic notices were sent to those shareholders who had elected to receive notices in this form and hyperlinks to the Explanatory Memorandum and other documents were made available. Ms Lam deposed to the Memorandum as posted being in the same form as that tendered at the first court hearing and registered with ASIC on 15 March 2011. 5 Mr Fraser's evidence established that the statutory majorities in favour of the Scheme were achieved at the Scheme meeting on 20 April 2011. 96.23% of Non-Corelogic Shareholders at the meeting voted in favour of the Scheme which was also supported by 99.95% of votes cast. Shares voted at the meeting were 85.4% of those eligible to be voted and 28.42% of shareholders were represented at the meeting. These results were confirmed by a copy of Mr Fraser's address to the Scheme Meeting which was exhibited to his second affidavit, a Poll Report for the Meeting compiled by Mr Jury, who was appointed as returning officer, and the minutes of the Scheme Meeting. 6 Mr Jury described the processing of proxy forms received prior to the closing time for their receipt, the registration of shareholders at the meeting and the procedures for taking the poll in relation to the resolution for approval of the Scheme put to the meeting and the counting and recording of votes. Mr Jury's affidavit concludes: As a result of my observations of the procedures set out above, I am satisfied that the receipt and recording of proxies, registration, meeting and voting processes were properly completed in relation to the Scheme Meeting. 7 The Scheme is not opposed by ASIC nor has there been any indication that any other party seeks to be heard in relation to the matter. In accordance with orders made on 14 March 2011, an advertisement was published in The Australian newspaper on 19 April 2011 giving notice of the present application. Mr Parshall was named in the advertisement as the plaintiff's legal practitioner on whom any notice of appearance in relation to the second court hearing might be heard. Mr Parshall deposed that, as late as 9 am on the date of the hearing he had not received any such notification or indication of any intention to appear. The proceeding was called outside the court without response. 8 The Explanatory Memorandum was registered with ASIC after the first court hearing. In a letter dated 27 April 2011 addressed to Mr Parshall, ASIC advised under s 411(17)(b) of the Corporations Act that it has no objection to the Scheme. A copy of ASIC's letter was exhibited to Mr Parshall's third affidavit. Also exhibited to Mr Parshall's third affidavit were two certificates signed respectively by the plaintiff and Corelogic stating that all the relevant conditions precedent to implementation of the Scheme have been met other than the requirement for Court approval. The Special Dividend 9 At [13] of the earlier reasons I discussed a Special Dividend of $0.05 per share that the plaintiff was proposing to declare in conjunction with the Scheme, although the Dividend was not intended to be part of the Scheme Consideration. A resolution approving the Special Dividend "to be franked to the maximum extent possible" was passed on 28 April 2011. Mr Kenny's evidence as to the plaintiff's profits, total assets and liabilities as at 31 March 2011 shows that the company has ample assets for payment of the Special Dividend. That information, coupled with the shareholders' approval of the Scheme and the consent of the Commonwealth Bank of Australia, RP Data's major creditor, is sufficient to show that s 254T of the Corporations Act will be satisfied. Given that consent, the fact that the Special Dividend is to be paid out of the plaintiff's Commonwealth Bank account and reimbursed by CoreLogic rather than being paid directly by CoreLogic as initially proposed does not create a problem. 10 The proposal that the Special Dividend was "to be franked to the maximum extent possible" has necessitated the Scheme Record Date being extended to 12.01 am on Tuesday 10 May 2011. This extension allows the RP Data Shareholders to satisfy the 45 day holding rule so as to entitle them to franking credits. This extension which was agreed between RP Data, CoreLogic, CoreLogic Australia and CoreLogic ISH does not require an amendment to the Scheme or the SIA as the definition of the Record Date in the Scheme provides for such a variation. Apart from enabling Shareholders to qualify for franking credits the change will have no practical effect and will not prejudice the rights of any RP Data Shareholder. The acquiring entity 11 As discussed in my earlier reasons, the Scheme provided for the Scheme Shares to be acquired by "Bidco" which was defined as either Corelogic ISH or CoreLogic Australia. The reasons for this were explained in [5] of the earlier reasons. By letter dated 16 March 2011, the Foreign Investment Review Board has advised that "There are no objections to this proposal in terms of the Government's foreign investment policy" to CoreLogic Australia acquiring the plaintiff's shares. That being so RP Data, CoreLogic, CoreLogic Australia and CoreLogic ISH have agreed in writing that CoreLogic Australia should be the acquiring entity. They have therefore requested the Court, pursuant to s 411(6) of the Corporations Act, to approve an amendment to the definition of Bidco in clause 1.1 of the Scheme to reflect that agreement. 12 This identification of CoreLogic Australia as the acquiring entity is consistent with the Scheme as disclosed in the Scheme Booklet. Shareholders were advised that it would be one or other of the nominated companies. The proposed amendment merely clarifies the point by identifying the acquiring entity with precision. It affects no other aspect of the Scheme or its implementation. As such it falls within 1 and 5 of the propositions which, in Re Investorinfo Limited [2005] FCA 1848, Gyles J held emerged from the cases on s 411(6) and its predecessors. For these reasons I approved the amendment. Conclusion 13 I am satisfied on the evidence that the members voted in good faith on a proposal that was properly disclosed and was fair and reasonable. The details given in the earlier reasons, the opinion of the Independent Expert, the unanimous support of the Independent Directors of RP Data, and the attention to all the procedural aspects are such that it can be said that the Shareholders voting on the Scheme were in a position to make an informed decision. For all of these reasons I am satisfied that the orders sought by the plaintiff should be made. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 5 May 2011