Andean Resources Limited, in the matter of Andean Resources Limited [2011] FCA 903

FEDERAL COURT OF AUSTRALIA

Andean Resources Limited, in the matter of Andean Resources Limited [2011] FCA 903 Citation: Andean Resources Limited, in the matter of Andean Resources Limited [2011] FCA 903

Parties: ANDEAN RESOURCES LIMITED (ABN 66 064 494 319) v ACN 148 066 139 PTY LTD (ACN 148 066 139)

File number: WAD 9 of 2011

Judge: BARKER J

Date of judgment: 9 August 2011

Catchwords: CORPORATIONS - scheme of arrangement - application for court approval under s 411(4) of the Corporations Act 2001 (Cth) - factors relevant to the exercise of the Court's discretion to approve scheme - non-compliance with section 412(6) of the Corporations Act 2001 (Cth)

Legislation: Corporations Act 2001 (Cth) s 411, s 412, s 1322

Cases cited: Re Hostworks Group Limited (No 2) [2008] FCA 248 Re NRMA Ltd (No 2) [2000] NSWSC 408; (2000) 34 ACSR 261

Date of hearing: 9 February 2011

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 17

Counsel for the Plaintiff: Mr MG Lundberg

Solicitor for the Plaintiff: Mallesons Stephen Jaques

Counsel for the Defendant: The Defendant did not appear

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 9 of 2011

IN THE MATTER OF ANDEAN RESOURCES LIMITED (ABN 66 064 494 319) BETWEEN: ANDEAN RESOURCES LIMITED (ABN 66 064 494 319)

Plaintiff

AND: ACN 148 066 139 PTY LTD (ACN 148 066 139)

Defendant

JUDGE: BARKER J DATE OF ORDER: 9 AUGUST 2011 WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. Pursuant to s 411(4)(b) and s 411(6) of the Corporations Act 2001 (Cth), the scheme of arrangement attached to the orders of the Court made 9 February 2011 be approved (Scheme). 2. Pursuant to s 411(12) of the Corporations Act 2001 (Cth), the plaintiff be exempted from compliance with s 411(11) of the Corporations Act 2001 (Cth) in relation to the Scheme. 3. Pursuant to s 413(1) of the Corporations Act 2001 (Cth) (and using the definitions in the Scheme), each of the following will occur in the order set out below: (a) immediately before the Completion Time: (i) all of the Assets of the plaintiff will be transferred to and vested in the defendant, without any further act or deed; (ii) all of the Liabilities of the plaintiff will be transferred to and become Liabilities of the defendant, without any further act or deed; and (iii) all legal proceedings pending by or against the plaintiff will be continued by or against the defendant (as the case may be), without any further act or deed, other than an amendment of the record of the relevant court or tribunal; (b) and the plaintiff will be deregistered by ASIC without winding up. 4. Pursuant to s 413(1)(g) of the Corporations Act 2001 (Cth) (and using the definitions in the Scheme), as from the Completion Time the defendant and each of its directors may sign all documents and do all things required to be done by the plaintiff to complete, perfect or record the transfer of Assets and Liabilities of the plaintiff provided in these orders. 5. Liberty be reserved to any party to apply for any further orders as may be considered necessary or desirable under s 413 of the Corporations Act 2001 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.