FEDERAL COURT OF AUSTRALIA Australian Energy Limited v AGL Southern Hydro (NSW) Pty Limited (No 2) [2011] FCA 753 Citation: Australian Energy Limited v AGL Southern Hydro (NSW) Pty Limited (No 2) [2011] FCA 753 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: NSD 802 of 2011 Judge: EMMETT J Date of judgment: 28 June 2011 Legislation: Corporations Act 2001 (Cth) ss 411, 413 Cases cited: Australian Energy Limited v AGL Southern Hydro (NSW) Pty Limited [2011] FCA 738 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 3 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: 28 JUNE 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1 Pursuant to section 411(4)(b) of the Corporations Act 2001 (the Act), the schemes of arrangement between each of the First to Twelfth Plaintiffs and its respective members, in the form set out in Annexure 'A' to these orders as shown to the Court (each a Scheme and together the Schemes), be approved. 2 Pursuant to section 411(12) of the Act, the First to Twelfth Plaintiffs be exempted from compliance with the requirements of section 411(11) of the Act. 3 Pursuant to section 413(1) of the Act (and, except as otherwise defined in this Order, using the definitions in the Schemes), as from the Effective Time, each of the following steps will occur in the order set out below: (a) first, all of the Assets of the First Plaintiff, Australian Energy Limited (ACN 083 183 028) (AEL), will be transferred to and become the Assets of the Defendant, AGL Southern Hydro (NSW) Pty Limited (ACN 056 452 601) (the Transferee Company); (b) second, all of the Liabilities of AEL will be transferred to and become the Liabilities of the Transferee Company; (c) third, all legal proceedings pending by or against AEL be deemed to be continued by or against the Transferee Company without the need for any further act or deed, other than an amendment of the record of the relevant court or tribunal; and (d) fourth, AEL will be deregistered by ASIC without winding up pursuant to s 413(1)(d) of the Act. 4 Pursuant to section 413(1) of the Act (and, except as otherwise defined in this Order, using the definitions in the Schemes), as from the Effective Time, each of the following steps will occur in the order set out below: (a) first, all of the Assets of the Second Plaintiff, AGL Southern Hydro Pty Limited (ACN 088 976 327) (ASH), will be transferred to and become the Assets of the Transferee Company; (b) second, all of the Liabilities of ASH will be transferred to and become the Liabilities of the Transferee Company; (c) third, all legal proceedings pending by or against ASH be deemed to be continued by or against the Transferee Company without the need for any further act or deed, other than an amendment of the record of the relevant court or tribunal; and (d) fourth, ASH will be deregistered by ASIC without winding up pursuant to s 413(1)(d) of the Act. 5 Pursuant to section 413(1) of the Act (and, except as otherwise defined in this Order, using the definitions in the Schemes), as from immediately after the deregistration of ASH by ASIC without winding up, each of the following steps will occur in the order set out below: (a) first, all of the Assets of the Fourth Plaintiff, AGL Southern Hydro Investments Pty Limited (ACN 104 071 829) (ASHI), will be transferred to and become the Assets of the Transferee Company; (b) second, all of the Liabilities of ASHI will be transferred to and become the Liabilities of the Transferee Company; (c) third, all legal proceedings pending by or against ASHI be deemed to be continued by or against the Transferee Company without the need for any further act or deed, other than an amendment of the record of the relevant court or tribunal; and (d) fourth, ASHI will be deregistered by ASIC without winding up pursuant to s 413(1)(d) of the Act. 6 Pursuant to section 413(1) of the Act (and, except as otherwise defined in this Order, using the definitions in the Schemes), as from immediately after the deregistration of ASHI by ASIC without winding up, each of the following steps will occur in the order set out below: (a) first, all of the Assets of the Third Plaintiff, AGL Southern Hydro Holdings Pty Limited (ACN 104 646 424) (ASHH), will be transferred to and become the Assets of the Transferee Company; (b) second, all of the Liabilities of ASHH will be transferred to and become the Liabilities of the Transferee Company; (c) third, all legal proceedings pending by or against ASHH be deemed to be continued by or against the Transferee Company without the need for any further act or deed, other than an amendment of the record of the relevant court or tribunal; and (d) fourth, ASHH will be deregistered by ASIC without winding up pursuant to s 413(1)(d) of the Act. 7 Pursuant to section 413(1) of the Act (and, except as otherwise defined in this Order, using the definitions in the Schemes), as from immediately after the deregistration of ASHH by ASIC without winding up, each of the following steps will occur in the order set out below: (a) first, all of the Assets of the Fifth Plaintiff, AGL (SHL) Pty Limited (ACN 116 830 285) (ASHL), will be transferred to and become the Assets of the Transferee Company; (b) second, all of the Liabilities of ASHL will be transferred to and become the Liabilities of the Transferee Company; (c) third, all legal proceedings pending by or against ASHL be deemed to be continued by or against the Transferee Company without the need for any further act or deed, other than an amendment of the record of the relevant court or tribunal; and (d) fourth, ASHL will be deregistered by ASIC without winding up pursuant to s 413(1)(d) of the Act. 8 Pursuant to section 413(1) of the Act (and, except as otherwise defined in this Order, using the definitions in the Schemes), as from the Effective Time, each of the following steps will occur in the order set out below: (a) first, all of the Assets of the Sixth Plaintiff, Geogen Australia Pty Limited (ACN 134 542 082) (Geogen Australia), will be transferred to and become the Assets of the Transferee Company; (b) second, all of the Liabilities of Geogen Australia will be transferred to and become the Liabilities of the Transferee Company; (c) third, all legal proceedings pending by or against Geogen Australia be deemed to be continued by or against the Transferee Company without the need for any further act or deed, other than an amendment of the record of the relevant court or tribunal; and (d) fourth, Geogen Australia will be deregistered by ASIC without winding up pursuant to s 413(1)(d) of the Act. 9 Pursuant to section 413(1) of the Act (and, except as otherwise defined in this Order, using the definitions in the Schemes), as from the Effective Time, each of the following steps will occur in the order set out below: (a) first, all of the Assets of the Seventh Plaintiff, Geogen Pty Limited (ACN 113 102 686) (Geogen), will be transferred to and become the Assets of the Transferee Company; (b) second, all of the Liabilities of Geogen will be transferred to and become the Liabilities of the Transferee Company; (c) third, all legal proceedings pending by or against Geogen be deemed to be continued by or against the Transferee Company without the need for any further act or deed, other than an amendment of the record of the relevant court or tribunal; and (d) fourth, Geogen will be deregistered by ASIC without winding up pursuant to s 413(1)(d) of the Act. 10 Pursuant to section 413(1) of the Act (and, except as otherwise defined in this Order, using the definitions in the Schemes), as from the Effective Time, each of the following steps will occur in the order set out below: (a) first, all of the Assets of the Eighth Plaintiff, AGL Power Generation (NSW) Pty Limited (ACN 118 099 451) (APG NSW), will be transferred to and become the Assets of the Transferee Company; (b) second, all of the Liabilities of APG NSW will be transferred to and become the Liabilities of the Transferee Company; (c) third, all legal proceedings pending by or against APG NSW be deemed to be continued by or against the Transferee Company without the need for any further act or deed, other than an amendment of the record of the relevant court or tribunal; and (d) fourth, APG NSW will be deregistered by ASIC without winding up pursuant to s 413(1)(d) of the Act. 11 Pursuant to section 413(1) of the Act (and, except as otherwise defined in this Order, using the definitions in the Schemes), as from the Effective Time, each of the following steps will occur in the order set out below: (a) first, all of the Assets of the Ninth Plaintiff, AGL Power Generation (QLD) Pty Limited (ACN 119 438 756) (APG Qld), will be transferred to and become the Assets of the Transferee Company; (b) second, all of the Liabilities of APG Qld will be transferred to and become the Liabilities of the Transferee Company; (c) third, all legal proceedings pending by or against APG Qld be deemed to be continued by or against the Transferee Company without the need for any further act or deed, other than an amendment of the record of the relevant court or tribunal; and (d) fourth, APG Qld will be deregistered by ASIC without winding up pursuant to s 413(1)(d) of the Act. 12 Pursuant to section 413(1) of the Act (and, except as otherwise defined in this Order, using the definitions in the Schemes), as from the Effective Time, each of the following steps will occur in the order set out below: (a) first, all of the Assets of the Tenth Plaintiff, AGL Pipelines Investments (Qld) Pty Limited (ACN 091 258 472) (AGLPIQ), will be transferred to and become the Assets of the Transferee Company; (b) second, all of the Liabilities of AGLPIQ will be transferred to and become the Liabilities of the Transferee Company; (c) third, all legal proceedings pending by or against AGLPIQ be deemed to be continued by or against the Transferee Company without the need for any further act or deed, other than an amendment of the record of the relevant court or tribunal; and (d) fourth, AGLPIQ will be deregistered by ASIC without winding up pursuant to s 413(1)(d) of the Act. 13 Pursuant to section 413(1) of the Act (and, except as otherwise defined in this Order, using the definitions in the Schemes), as from the Effective Time, each of the following steps will occur in the order set out below: (a) first, all of the Assets of the Twelfth Plaintiff, AGL (SG) (Wyong) Operations Pty Limited (ACN 106 591 119) (AGL SG Wyong), will be transferred to and become the Assets of the Transferee Company; (b) second, all of the Liabilities of AGL SG Wyong will be transferred to and become the Liabilities of the Transferee Company; (c) third, all legal proceedings pending by or against AGL SG Wyong be deemed to be continued by or against the Transferee Company without the need for any further act or deed, other than an amendment of the record of the relevant court or tribunal; and (d) fourth, AGL SG Wyong will be deregistered by ASIC without winding up pursuant to s 413(1)(d) of the Act. 14 Pursuant to section 413(1) of the Act (and, except as otherwise defined in this Order, using the definitions in the Schemes), as from immediately after the deregistration of AGL SG Wyong by ASIC without winding up, each of the following steps will occur in the order set out below: (a) first, all of the Assets of the Eleventh Plaintiff, AGL (SG) Pty Limited (ACN 003 324 310) (AGL SG), will be transferred to and become the Assets of the Transferee Company; (b) second, all of the Liabilities of AGL SG will be transferred to and become the Liabilities of the Transferee Company; (c) third, all legal proceedings pending by or against AGL SG be deemed to be continued by or against the Transferee Company without the need for any further act or deed, other than an amendment of the record of the relevant court or tribunal; and (d) fourth, AGL SG will be deregistered by ASIC without winding up pursuant to s 413(1)(d) of the Act. 15 Pursuant to section 413(1)(g) of the Act, as from the Effective Time (as defined in the Schemes) the Defendant or any director of the Defendant from time to time may sign all documents and do all things required to be done by each of the Plaintiffs to complete or perfect the transfer of the Assets and Liabilities (as each is defined in the Schemes) of each of the Plaintiffs provided for in these Orders. 16 Liberty be reserved to any party to apply for any further orders as may be considered necessary or desirable under section 413 of the Act. 17 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. 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: 28 JUNE 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 22 June 2011, the Court ordered, pursuant to s 411 of the Corporations Act 2001 (Cth) (the Corporations Act), that each of the 12 plaintiffs convene a meeting with its member for the purpose of considering, if thought fit, agreeing to, a proposed scheme of arrangement (see Australian Energy Limited v AGL Southern Hydro (NSW) Pty Limited [2011] FCA 738). The meetings were to be held on 27 June 2011. The meeting have now been held in accordance with the orders made on 22 June 2011, and the plaintiffs have now applied for approval of the schemes under s 411 of the Corporations Act and for orders under s 413 of the Corporations Act. The schemes were advertised in accordance with the orders that were made on 22 June 2011, and when the matter was called for hearing this morning there was no appearance other than that of the plaintiffs. 2 The Australian Securities and Investments Commission (the Commission), by a letter of 27 June 2011, has indicated that it has no objection to the schemes of arrangement between each of the plaintiffs and its sole member. In giving that indication, the Commission has had regard to its criteria for providing a statement in writing that it has no objection, as set out in its Regulatory Guide 60, which deals with schemes of arrangement. 3 In all of the circumstances, I am satisfied that it is appropriate to approve each of the schemes and to make orders under s 413 of the Corporations Act that all of the assets of the respective plaintiffs be transferred to and become assets of AGL Southern Hydro (NSW) Pty Limited (the Transferee), that all of the liabilities of each plaintiff be transferred to and become liabilities of the Transferee, that all legal proceedings by or against each plaintiff be deemed to be continued by or against the Transferee without the need for any further act or deed other than an amendment of the record of the relevant court or tribunal, and, pursuant to s 413(1)(d) of the Corporations Act, that each of the plaintiffs be deregistered by the Commission without winding up. I propose to make orders accordingly. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 5 July 2011 SCHEDULE A AGL SOUTHERN HYDRO PTY LIMITED (ACN 088 976 327) Second Plaintiff AGL SOUTHERN HYDRO HOLDINGS PTY LIMITED (ACN 104 646 424) Third Plaintiff AGL SOUTHERN HYDRO INVESTMENTS PTY LIMITED (ACN 104 071 829) Fourth Plaintiff AGL (SHL) PTY LIMITED (ACN 116 830 285) Fifth Plaintiff GEOGEN AUSTRALIA PTY LIMITED (ACN 134 542 082) Sixth Plaintiff GEOGEN PTY LIMITED (ACN 113 102 686) Seventh Plaintiff AGL POWER GENERATION (NSW) PTY LIMITED (ACN 118 099 451) Eighth Plaintiff AGL POWER GENERATION (QLD) PTY LIMITED (ACN 119 438 756) Ninth Plaintiff AGL PIPELINES INVESTMENTS (QLD) PTY LIMITED (ACN 091 258 472) Tenth Plaintiff AGL (SG) PTY LIMITED (ACN 003 324 310) Eleventh Plaintiff AGL (SG) (WYONG) OPERATIONS PTY LIMITED (ACN 106 591 119) Twelfth Plaintiff