Sinclair Knight Merz Pty Limited, in the matter of Sinclair Knight Merz Pty Limited [2012] FCA 1391

FEDERAL COURT OF AUSTRALIA

Sinclair Knight Merz Pty Limited, in the matter of Sinclair Knight Merz Pty Limited [2012] FCA 1391 Citation: Sinclair Knight Merz Pty Limited, in the matter of Sinclair Knight Merz Pty Limited [2012] FCA 1391

Parties: SINCLAIR KNIGHT MERZ PTY LIMITED (ACN 001 024 095)

File number: NSD 1836 of 2012

Judge: YATES J

Date of judgment: 29 November 2012

Catchwords: CORPORATIONS – scheme of arrangement – application for order that company convene meetings of creditors

Legislation: Corporations Act 2001 (Cth) Corporations Regulations 2001 (Cth) Federal Court (Corporations) Rules 2000

Cases cited: Fowler v Lindholm (2009) 178 FCR 563 Re MIA Group Ltd (2004) 50 ACSR 29 Re Opes Prime Stockbroking Ltd (No 2) (2009) 179 FCR 20 Re Sino Gold Mining Ltd (2009) 74 ACSR 647

Date of hearing: 29 November 2012

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 41

Counsel for the Plaintiff: Mr F Gleeson SC and Mr A d'Arville

Solicitor for the Plaintiff: Jones Day

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1836 of 2012

IN THE MATTER OF SINCLAIR KNIGHT MERZ PTY LIMITED (ACN 001 024 095) SINCLAIR KNIGHT MERZ PTY LIMITED

(ACN 001 024 095)

Plaintiff

JUDGE: YATES J DATE OF ORDER: 29 NOVEMBER 2012 WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (Act), the Plaintiff convene a meeting of each of the following classes of its creditors: (a) Employee Scheme Creditors of the Plaintiff; and (b) Former Employee Scheme Creditors of the Plaintiff (as those terms are respectively defined in Schedule 1 of the Originating Process) (collectively, the Scheme Creditors), for the purpose of considering and, if thought fit, agreeing (with or without modification) to a scheme of arrangement to be made between the Plaintiff and the Scheme Creditors, a copy of which appears at Part 1 of Appendix A of Exhibit 1 in the proceeding. 2. The meeting of the Employee Scheme Creditors and the meeting of the Former Employee Scheme Creditors (Scheme Meetings) be held at Level 10, 100 Christie Street, St Leonards, NSW 2065 commencing at 11:00 am on 21 December 2012 in the following manner: (a) the Scheme Meetings be held concurrently for the purposes of the Chairman providing an introduction to and overview of the Scheme and for the purposes of a joint question and answer session; and (b) the Scheme Meetings be held separately for all purposes other than as set out in paragraph 8(a) of this Order provided nothing in this Order prevents persons other than those persons entitled to vote at the Scheme Meeting to be present at that Scheme Meeting. 3. Mr Paul Joseph Casamento, or failing him, Mr David Holmes Mathlin, be appointed chairman of the Scheme Meetings. 4. The chairman of the Scheme Meetings have power to adjourn the Scheme Meetings in his absolute discretion. 5. The draft explanatory statement that is substantially in the form of Exhibit 1 in the proceeding (Explanatory Statement) be approved for distribution to the Scheme Creditors. 6. The Plaintiff dispatch by pre-paid post to each Scheme Creditor: (a) a document substantially in the form of the Explanatory Statement; (b) a proxy form, substantially in the form that appears behind Part A of Appendix H of the Explanatory Statement; and (c) an address verification form, substantially in the form that appears behind Appendix J of the Explanatory Statement. 7. The Plaintiff dispatch the documents referred to in paragraphs (a) to (c) of Order 6 above on or before 3 December 2012 to each Scheme Creditor. 8. The time by which Scheme Creditors (or their attorneys) must return their proxy forms for the Scheme Meetings to be 11:00 am on 19 December 2012. 9. Voting at the Scheme Meetings be on a poll, except for procedural motions. 10. Regulations 5.6.12 to 5.6.36A of the Corporations Regulations 2001 shall not apply to the Scheme Meetings, with the exception of regulations 5.6.13, 5.6.16 (other than 5.6.16(1)(a) and (b), (6) and (7)), 5.6.20(1), 5.6.27(1)-(6), 5.6.28, 5.6.30, 5.6.31 and 5.6.31A. 11. Regulation 5.6.27(7) of the Corporations Regulations 2001 shall apply to the Scheme Meetings as modified to read: "For sub-regulations (1) and (3), the specified period is 10 business days after the end of the meeting". 12. Regulation 5.6.29 of the Corporations Regulations 2001 shall apply to the Scheme Meetings as modified to read all references to "Form 532" as a reference to "a proxy form, substantially in the form that appears behind Part A of Appendix H of the Explanatory Statement". 13. Notice of the Scheme Meetings be published once in the The Australian newspaper, by a notice substantially in the form of Annexure A to these orders, such notice to be published no later than 3 December 2012. 14. The contents of the Confidential Fifth Affidavit of Paul Joseph Casamento sworn 23 November 2012 be treated as confidential and may only be used for the purposes of this proceeding. Access to this affidavit be limited to the following persons: (a) any legal representatives for the Plaintiff; (b) any Judge, employee or other personnel of this Court; and (c) any person associated with the recording of transcript at any hearing of this proceeding. 15. The proceeding be stood over to 30 January 2013 at 9:00 am before Justice Yates for the hearing of any application to approve the scheme of arrangement. 16. There be liberty to apply on one day's notice. 17. These Orders be entered forthwith. Note: Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.