FEDERAL COURT OF AUSTRALIA Macquarie Equipment Finance Pty Limited v Macquarie Bank Limited (No 2) [2012] FCA 1288 Citation: Macquarie Equipment Finance Pty Limited v Macquarie Bank Limited (No 2) [2012] FCA 1288 Parties: MACQUARIE EQUIPMENT FINANCE PTY LIMITED ACN 124 335 593 v MACQUARIE BANK LIMITED ACN 008 583 542 File number(s): NSD 1583 of 2012 Judge: JAGOT J Date of judgment: 15 November 2012 Legislation: Corporations Act 2001 (Cth) Date of hearing: 15 November 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 6 Counsel for the Plaintiff: Mr M Oakes SC Solicitor for the Plaintiff: Norton Rose Australia Counsel for the Defendant: The defendant did not appear IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1583 of 2012 BETWEEN: MACQUARIE EQUIPMENT FINANCE PTY LIMITED ACN 124 335 593 Plaintiff AND: MACQUARIE BANK LIMITED ACN 008 583 542 Defendant JUDGE: JAGOT J DATE OF ORDER: 15 NOVEMBER 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Pursuant to subsection 411(4)(b) of the Corporations Act 2001 (Cth) (Act), the Scheme of Arrangement between Macquarie Equipment Finance Pty Limited ACN 124 335 593 (MEF) and MTF Holdings Pty Limited, being in the form of Exhibit 2 in the proceeding (the Scheme), be approved. 2. MEF lodge with the Australian Securities and Investments Commission (ASIC) a copy of the approved Scheme at the time of lodging a copy of these orders. 3. Pursuant to subsection 411(12) of the Act, MEF be exempted from complying with subsection 411(11) of the Act in respect of the Scheme. 4. Pursuant to section 413(1) of the Act (and using the definitions in the Scheme), as from the Implementation Time, each of the following transactions will occur, in relation to the Scheme, in the order set out below: (a) first, all of the Assets of MEF will be transferred to and become the Assets of Macquarie Bank Limited ACN 008 583 542 (MBL) without the need for any further act or deed; (b) second, all of the Liabilities of MEF will be transferred to and become the Liabilities of MBL without the need for any further act or deed; (c) third, any legal proceedings pending by or against MEF will be continued by or against (as the case may be) MBL 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, MEF will be deregistered by ASIC without winding up. 5. Pursuant to section 413(1)(g) of the Act, as from the Implementation Time (as defined in the Scheme), MBL, each of its directors and duly authorised signatories from time to time, may sign all documents and do all things required to be done by MEF to complete or perfect the transfer of the Assets and Liabilities of MEF provided for in these Orders, whether by lodgement, registration, notification or otherwise. 6. Liberty be preserved to any party to apply for any further orders as may be considered necessary or desirable under section 413 of the Act. 7. 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 1583 of 2012 BETWEEN: MACQUARIE EQUIPMENT FINANCE PTY LIMITED ACN 124 335 593 Plaintiff AND: MACQUARIE BANK LIMITED ACN 008 583 542 Defendant JUDGE: JAGOT J DATE: 15 NOVEMBER 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is the second court hearing in relation to a proposed scheme of arrangement and reconstruction of Macquarie Equipment Finance Pty Limited, invoking the powers in ss 411 and 413 of the Corporations Act 2001 (Cth). The plaintiff has submitted, and I accept, that the evidence supports the making of these orders. 2 As set out in the earlier reasons (Macquarie Equipment Finance Pty Limited v Macquarie Bank Limited [2012] FCA 1212), both the plaintiff and the proposed defendant transferee, Macquarie Bank Limited, are Part 5.1 bodies. The factual information and the explanatory statement have been verified and that explanatory statement registered with the Australian Securities and Investments Commission (ASIC) after the first court hearing. The orders made by the Court at the first court hearing were also lodged with ASIC. 3 There is evidence of all of the required procedural matters. This includes service of the explanatory statement on the sole shareholder of the scheme company and the fact that that explanatory statement, as served, corresponds with the document which was tendered as the explanatory statement at the first court hearing. There is also evidence of consent to the short notice of the scheme meeting. In relation to the holding of the scheme meeting and obtaining of the necessary majority, in the circumstances of the shareholding of the scheme company unsurprisingly the sole shareholder voted and accordingly 100% of the shareholders voted in favour of the scheme. 4 The consent of the transferee defendant company to accept the transfer of all of the assets and liabilities of the scheme company is in evidence and the position of creditors of the plaintiff and defendant companies is satisfactory on the evidence. In this regard my attention has been drawn to the different number and amount of full recourse creditors of the scheme company but it is apparent that this is part of the ordinary trading position of that company and, as set out in the earlier reasons, the scheme provides for the transfer of all liabilities to the defendant company and accordingly the position of the known and contingent creditors is protected. 5 The scheme approval application has been advertised as required and on the evidence there has been no notice of any intention by any person to appear at the second court hearing. Indeed, the matter was called this morning and there was no appearance. A letter in the usual form from ASIC, in circumstances where it has no objection to the proposed scheme of arrangement, has been received, that letter being dated 14 November 2012. 6 The orders sought are appropriate and accordingly I make orders 1 through to 7 in the short minutes of order. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 20 November 2012