Australian Energy Limited v AGL Southern Hydro (NSW) Pty Limited [2011] FCA 738

FEDERAL COURT OF AUSTRALIA

Australian Energy Limited v AGL Southern Hydro (NSW) Pty Limited [2011] FCA 738 Citation: Australian Energy Limited v AGL Southern Hydro (NSW) Pty Limited [2011] FCA 738

Parties: AUSTRALIAN ENERGY LIMITED ACN 083 183 028 and PARTIES IN ATTACHED SCHEDULE A v AGL SOUTHERN HYDRO (NSW) PTY LIMITED ACN 056 452 601

File number(s): NSD 802 of 2011

Judge: EMMETT J

Date of judgment: 22 June 2011

Legislation: Corporations Act 2001 (Cth) ss 411, 413

Date of hearing: 22 June 2011

Place: Sydney

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 9

Counsel for the plaintiffs: F Gleeson SC

Solicitor for the plaintiffs: Gilbert + Tobin

Counsel for the defendant: The defendant did not appear

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 802 of 2011

BETWEEN: AUSTRALIAN ENERGY LIMITED ACN 083 183 028

First Plaintiff

PARTIES IN ATTACHED SCHEDULE A

Second to Twelfth Plaintiffs

AND: AGL SOUTHERN HYDRO (NSW) PTY LIMITED ACN 056 452 601

Defendant

JUDGE: EMMETT J DATE OF ORDER: 22 JUNE 2011 WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Pursuant to s 411(1) of the Corporations Act 2001 (Cth) (the Act): a) the First Plaintiff convene a meeting of its member, AGL HP1 Pty Limited, to be held on 27 June 2011, commencing at 9am at Level 22, 101 Miller Street, North Sydney, New South Wales, for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (in a form substantially equivalent to the form of the applicable scheme of arrangement that appears at Attachment A of Exhibit "DC-3"), between the First Plaintiff and its member (First Scheme Meeting); b) the Second Plaintiff convene a meeting of its member, AGL Southern Hydro Investments Pty Limited, to be held on 27 June 2011, commencing at 9am (or as soon after the conclusion of the First Scheme Meeting as may be practicable), at Level 22, 101 Miller Street, North Sydney, New South Wales, for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (in a form substantially equivalent to the form of the applicable scheme of arrangement that appears at Attachment A of Exhibit "DC-3"), between the Second Plaintiff and its member; c) the Third Plaintiff convene a meeting of its member, AGL (SHL) Pty Limited, to be held on 27 June 2011, commencing at 9am (or as soon after the conclusion of the First Scheme Meeting as may be practicable), at Level 22, 101 Miller Street, North Sydney, New South Wales, for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (in a form substantially equivalent to the form of the applicable scheme of arrangement that appears at Attachment A of Exhibit "DC-3"), between the Third Plaintiff and its member; d) the Fourth Plaintiff convene a meeting of its member, AGL Southern Hydro Investments Pty Limited, to be held on 27 June 2011, commencing at 9am (or as soon after the conclusion of the First Scheme Meeting as may be practicable), at Level 22, 101 Miller Street, North Sydney, New South Wales, for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (in a form substantially equivalent to the form of the applicable scheme of arrangement that appears at Attachment A of Exhibit "DC-3"), between the Fourth Plaintiff and its member; e) the Fifth Plaintiff convene a meeting of its member, AGL Energy Limited, to be held on 27 June 2011, commencing at 9am (or as soon after the conclusion of the First Scheme Meeting as may be practicable), at Level 22, 101 Miller Street, North Sydney, New South Wales, for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (in a form substantially equivalent to the form of the applicable scheme of arrangement that appears at Attachment A of Exhibit "DC-3"), between the Fifth Plaintiff and its member; f) the Sixth Plaintiff convene a meeting of its member, AGL Energy Limited, to be held on 27 June 2011, commencing at 9am (or as soon after the conclusion of the First Scheme Meeting as may be practicable), at Level 22, 101 Miller Street, North Sydney, New South Wales, for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (in a form substantially equivalent to the form of the applicable scheme of arrangement that appears at Attachment A of Exhibit "DC-3"), between the Sixth Plaintiff and its member; g) the Seventh Plaintiff convene a meeting of its member, AGL Energy Limited, to be held on 27 June 2011, commencing at 9am (or as soon after the conclusion of the First Scheme Meeting as may be practicable), at Level 22, 101 Miller Street, North Sydney, New South Wales, for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (in a form substantially equivalent to the form of the applicable scheme of arrangement that appears at Attachment A of Exhibit "DC-3"), between the Seventh Plaintiff and its member; h) the Eighth Plaintiff convene a meeting of its member, AGL Energy Limited, to be held on 27 June 2011, commencing at 9am (or as soon after the conclusion of the First Scheme Meeting as may be practicable), at Level 22, 101 Miller Street, North Sydney, New South Wales, for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (in a form substantially equivalent to the form of the applicable scheme of arrangement that appears at Attachment A of Exhibit "DC-3"), between the Eighth Plaintiff and its member; i) the Ninth Plaintiff convene a meeting of its member, AGL Energy Limited, to be held on 27 June 2011, commencing at 9am (or as soon after the conclusion of the First Scheme Meeting as may be practicable), at Level 22, 101 Miller Street, North Sydney, New South Wales, for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (in a form substantially equivalent to the form of the applicable scheme of arrangement that appears at Attachment A of Exhibit "DC-3"), between the Ninth Plaintiff and its member; j) the Tenth Plaintiff convene a meeting of its member, AGL Energy Limited, to be held on 27 June 2011, commencing at 9am (or as soon after the conclusion of the First Scheme Meeting as may be practicable), at Level 22, 101 Miller Street, North Sydney, New South Wales, for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (in a form substantially equivalent to the form of the applicable scheme of arrangement that appears at Attachment A of Exhibit "DC-3"), between the Tenth Plaintiff and its member; k) the Eleventh Plaintiff convene a meeting of its member, AGL Energy Limited, to be held on 27 June 2011, commencing at 9am (or as soon after the conclusion of the First Scheme Meeting as may be practicable), at Level 22, 101 Miller Street, North Sydney, New South Wales, for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (in a form substantially equivalent to the form of the applicable scheme of arrangement that appears at Attachment A of Exhibit "DC-3"), between the Eleventh Plaintiff and its member; l) the Twelfth Plaintiff convene a meeting of its member, AGL (SG) Pty Limited, to be held on 27 June 2011, commencing at 9am (or as soon after the conclusion of the First Scheme Meeting as may be practicable), at Level 22, 101 Miller Street, North Sydney, New South Wales, for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (in a form substantially equivalent to the form of the applicable scheme of arrangement that appears at Attachment A of Exhibit "DC-3"), between the Twelfth Plaintiff and its member; and m) The explanatory statement for the schemes of arrangement, in the form of Exhibit "DC-3", be approved for distribution to the members of each of the Plaintiffs, accompanied by the notices convening the Scheme Meetings. 2. Pursuant to s 1319 of the Act: a) Service of the explanatory statement and notice of the Scheme Meetings may be effected by electronic means, or by hand delivery to a person who is a director, company secretary, proxy, corporate representative appointed under s 250D of the Act (Corporate Representative), or attorney under power, of the members of the Plaintiffs, at any time before the meetings referred to in Order 1 commence; b) The Scheme Meetings be chaired by Mr Michael Paul McWilliams, or failing him, Mr Michael Patrick Moraza (for any or all of the meetings for the members of the Sixth Plaintiff, Seventh Plaintiff, Tenth Plaintiff, Eleventh Plaintiff or Twelfth Plaintiff) or Mr Stephen John Mikkelsen (for any or all of the meetings for the members of the First to Tenth Plaintiffs); c) In respect of each meeting referred to in Order 1: i) The relevant Sole Member, being a body corporate, may appoint an individual as its representative to exercise the powers it may exercise at the Scheme Meeting; ii) A proxy, appointment of a Corporate Representative, or power of attorney to act on behalf of the relevant Sole Member may be delivered to the Chairman of the Scheme Meeting at any time before the time of the Scheme Meeting; iii) A resolution put to the vote at the Scheme Meeting to approve the relevant Scheme, or any modification to the Scheme, may be decided by the relevant Sole Member or its representative signing a record of the resolution; and iv) Regulations 5.6.11 to 5.6.36A of the Corporations Regulations 2001 not apply to the Scheme Meeting. 3. The Plaintiff place an advertisement in The Australian newspaper, in a form substantially equivalent to the form of Annexure A to these orders (as shown to the Court), no later than Thursday, 23 June 2011. 4. The proceeding be stood over to 9:30am on 28 June 2011 for the hearing of any application to approve the Schemes. 5. There be liberty to apply. 6. These Orders 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.