FEDERAL COURT OF AUSTRALIA Coal & Allied Industries Limited, in the matter of Coal & Allied Industries Limited [2011] FCA 1379 Citation: Coal & Allied Industries Limited, in the matter of Coal & Allied Industries Limited [2011] FCA 1379 Parties: COAL & ALLIED INDUSTRIES LIMITED ACN 008 416 760 File number: NSD 1744 of 2011 Judge: EDMONDS J Date of judgment: 30 November 2011 Legislation: Corporations Act 2001 (Cth) ss 411, 1322 Date of hearing: 30 November 2011 Place: Sydney Division: GENERAL DIVISION Number of paragraphs: 3 Counsel for the Plaintiff: Mr IM Jackman SC Solicitor for the Plaintiff: Gilbert & Tobin Counsel for Hunter Valley Resources Pty Ltd: Mr JRJ Lockhart SC IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1744 of 2011 IN THE MATTER OF COAL & ALLIED INDUSTRIES LIMITED ACN 008 416 760 COAL & ALLIED INDUSTRIES LIMITED ACN 008 416 760 Plaintiff JUDGE: EDMONDS J DATE OF ORDER: 30 NOVEMBER 2011 WHERE MADE: SYDNEY THE COURT DECLARES THAT: 1. Pursuant to s 1322(4)(a) of the Corporations Act 2001 (Cth) (the Act), the resolution passed by the holders of fully-paid ordinary shares in Coal & Allied Industries Limited ACN 008 416 760 (CNA) at the general meeting held on 28 November 2011 was not invalid by reason of CNA's having given nineteen of its shareholders 27 days' notice of the general meeting. 2. Pursuant to 1322(4)(a) of the Act, the resolution passed by the holders of fully-paid ordinary shares in CNA excluding the Excluded Shareholders (as defined in Order 3) at the scheme meeting held on 28 November 2011 was not invalid by reason of CNA's having given nineteen of its shareholders 27 days' notice of the scheme meeting. THE COURT ORDERS THAT: 3. Pursuant to s 411(4)(b) of the Act, the scheme of arrangement between CNA and the holders of fully-paid ordinary shares in CNA (excluding Australian Coal Holdings Pty Limited ACN 000 066 491, Mitsubishi Development Pty Ltd ACN 009 779 873, Hunter Valley Resources Pty Ltd ACN 151 471 242 and their Related Bodies Corporate (together the Excluded Shareholders)) as at 7 pm on the seventh business day following the date on which the proposed scheme becomes effective, in the form set out in annexure 'A' to these orders, be approved. 4. Pursuant to s 411(12) of the Act, the requirements of s 411(11) of the Act be dispensed with. 5. These Orders be entered forthwith. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1744 of 2011 IN THE MATTER OF COAL & ALLIED INDUSTRIES LIMITED ACN 008 416 760 COAL & ALLIED INDUSTRIES LIMITED ACN 008 416 760 Plaintiff JUDGE: EDMONDS J DATE: 30 NOVEMBER 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is the second hearing in relation to a scheme of arrangement in respect of which an application was filed on 11 October 2011. On 21 October 2011, at the conclusion of the first hearing, I made orders for the convening of a meeting of shareholders of the plaintiff ('scheme meeting'), excluding those nominated as 'Excluded Shareholders', for the purpose of considering and, if thought fit, agreeing, with or without modification, to the scheme as identified in those orders, such meeting to be held immediately following the conclusion of the general meeting convened for 10:00 a.m. on 28 November 2011. By those same orders, the explanatory statement for the scheme in the form identified in the orders (and subsequently embodied in the scheme materials) was also approved. 2 In this second hearing, the application is supported by the following evidence: (1) An affidavit of Gonzalo Diego Valencia sworn 25 November 2011: Mr Valencia gives evidence going to the dispatch of the scheme materials to the plaintiff's shareholders and deposes to the difficulty that was confronted as a result of the short printing of those materials, in that there were 2,114 shareholders and Computershare Investor Services Pty Limited ('Computershare'), which was engaged with responsibility for the dispatch of scheme materials, only received 2,095 copies of such materials from the printers. There were, thus, 19 shareholders of the plaintiff to whom Computershare was unable to dispatch the scheme materials on 28 October 2011. The end result was that 19 shareholders only received 27 days' notice of the general meeting and scheme meeting rather than the 28 days' notice required by s 249HA of the Corporations Act 2001 (Cth) ('the Act'). (2) A second affidavit of Christopher John Stewart Renwick sworn 28 November 2011: Mr Renwick deposes to the fact that he acted as chairman of both the general meeting and the scheme meeting that were held on 28 November 2011. His affidavit and the exhibits to that affidavit prove the following matters: (a) that there was a quorum in attendance at both the general meeting and the scheme meeting; (b) that at the general meeting the joint bidding arrangements were approved pursuant to s 611, item 7 of the Act; and (c) that at the scheme meeting the required statutory majority of the plaintiff's shareholders, excluding the Excluded Shareholders, passed a resolution approving the scheme. (3) A second affidavit of David Clee sworn 29 November 2011: In that affidavit, Mr Clee, a solicitor employed by Gilbert & Tobin, deposes to the registration of the final scheme booklet, which had its origins as the explanatory statement approved at the first hearing, with the Australian Securities and Investment Commission ('ASIC'). He also deposes to the publication of the advertisement in The Australian on 21 November last in connection with these proceedings and to the announcements that were made to the Australian Securities Exchange concerning the scheme between 24 October and 28 November 2011. He further attaches relevant correspondence between Gilbert & Tobin and ASIC. (4) A third affidavit of David Clee sworn 30 November 2011: There is annexed to this affidavit a certificate executed for and on behalf of the plaintiff, being a certificate pursuant to cl 4.2(o) of the Scheme Implementation Agreement. (5) An affidavit of Deanna Maree Constable sworn 30 November 2011: Ms Constable is the general counsel of Mitsubishi Development Pty Ltd. Annexed to the affidavit is a Conditions Precedent Certificate – satisfaction of Waiver of Conditions certifying satisfaction of a number of conditions precedent under the Scheme Implementation Agreement and signed for and on behalf of Hunter Valley Resources Pty Ltd. 3 Having reviewed all the material that has been put to me, I am satisfied that I can and should make the declaratory orders which are sought pursuant to s 1322(4)(a) of the Act. I am also satisfied that there is sufficient evidence to establish compliance with all the procedural and substantive requirements of the relevant legislation in respect of the scheme, and there is no reason that would preclude the making of the orders sought. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 30 November 2011