Marengo Mining Ltd, in the matter of Marengo Mining Ltd (No 2) [2012] FCA 1498

FEDERAL COURT OF AUSTRALIA

Marengo Mining Ltd, in the matter of Marengo Mining Ltd (No 2) [2012] FCA 1498 Citation: Marengo Mining Ltd, in the matter of Marengo Mining Ltd (No 2) [2012] FCA 1498

Parties: MARENGO MINING LTD (ACN 099 496 474)

File number: WAD 287 of 2012

Judge: BARKER J

Date of judgment: 18 December 2012

Catchwords: CORPORATIONS – application pursuant to s 411 Corporations Act 2001 (Cth) – application to approve scheme of arrangement

Legislation: Corporations Act 2001 (Cth) s 249J, s 249J(3A), s 411(4), s 411(4)(a), s 411(4)(a)(ii), s 411(4)(b), s 411(17)(a), s 411(17)(b), s 412(1)(a), s 412(6) Securities Act of 1933 (US) s 3(a)(10) Federal Court (Corporations) Rules 2000 (Cth) R 2.6, R 2.11, R 2.12, R 3.4, Div 3

Cases cited: Marengo Mining Ltd, in the matter of Marengo Mining Ltd [2012] FCA 1220 Re Spark Infrastructure Holdings No 1 Ltd [2010] NSWSC 1497; (2010) 79 NSWLR 756

Date of hearing: 18 December 2012

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 28

Counsel for the Plaintiff: Mr PI Jooste QC

Solicitor for the Plaintiff: Gilbert + Tobin

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 287 of 2012

IN THE MATTER OF MARENGO MINING LTD MARENGO MINING LTD (ACN 099 496 474)

Plaintiff

JUDGE: BARKER J DATE OF ORDER: 18 DECEMBER 2012 WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. Order 8 of the orders of this Court of 29 October 2012 is varied pursuant to Rules 1.32 and 39.05(c) of the Federal Court Rules 2011 (Cth) by inserting in order 8 the following words (in bold): "No later than 6pm (WST) on Tuesday, 6th November 2012, the Plaintiff (subject to the registration of the Scheme Booklet by ASIC pursuant to section 412(6) of the Act) dispatch documents comprising the: (a) Scheme Booklet; and (b) Notice of Court ordered Scheme Meeting and Proxy Form, which are Annexures MAC-9 and MAC-11 to the Churchward Affidavit to all the Shareholders of the Plaintiff by ordinary pre paid post (or, in the case of overseas members, by airmail) at their addresses appearing on the Plaintiff's register of members or by the nominated notification means in accordance with section 249J of the Act on the closest practicable business day before the dispatch of documents." 2. The scheme of arrangement between the plaintiff and the holders of fully-paid ordinary shares in the plaintiff being annexure 2 to the scheme booklet (comprising the explanatory statement) ("Scheme") which was dispatched in accordance with the orders of this Court of 29 October 2012 and which Scheme was agreed to by a resolution of the members of the plaintiff passed in accordance with section 411(4)(a)(ii) of the Corporations Act 2001 (Cth) (the "Act") at a meeting on 6 December 2012, be approved pursuant to section 411(4)(b) of the Act with the alteration pursuant to section 411(6) of the Act, that clause 7.2 of the Scheme be replaced with the following new clause 7.2: "Marengo must, unless the Court otherwise previously orders, lodge with ASIC an office copy of the Scheme order by 5pm on 4 January 2013." 3. Pursuant to section 411(12) of the Act, the plaintiff is exempt from compliance with the requirements of section 411(11) of the Act. 4. An office copy of these orders be lodged with the Australian Securities and Investments Commission in accordance with order 2. 5. There be liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011