FEDERAL COURT OF AUSTRALIA Bathurst Resources Limited, in the matter of Bathurst Resources Limited [2013] FCA 517 Citation: Bathurst Resources Limited, in the matter of Bathurst Resources Limited [2013] FCA 517 Party: BATHURST RESOURCES LIMITED (ABN 93 125 679 469) File number: WAD 122 of 2013 Judge: BARKER J Date of judgment: 10 May 2013 Catchwords: CORPORATIONS – scheme of arrangement – application for order that company convene meeting Legislation: Corporations Act 2001 s 411(1), s 411(2), s 1319 Corporations Regulations 2001 (Cth) reg 5.6.11-5.6.36A Federal Court (Corporations) Rules 2000 R 2.15, R 3.4 Date of hearing: 10 May 2013 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 21 Counsel for the Plaintiff: Mr G Donaldson SC Solicitor for the Plaintiff: PricewaterhouseCoopers IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 122 of 2013 IN THE MATTER OF BATHURST RESOURCES LIMITED BATHURST RESOURCES LIMITED (ABN 93 125 679 469) Plaintiff JUDGE: BARKER J DATE OF ORDER: 10 MAY 2013 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (Act), the plaintiff convenes a meeting (Scheme Meeting) of its members holding ordinary shares (Shareholders) for the purpose of considering and, if thought fit, approving (with or without modification) the scheme of arrangement (Scheme) referred to in paragraph 9 of the supporting affidavit of Craig Rennie Munro sworn 29 April 2013. 2. Pursuant to section 411(1) of the Act, the scheme booklet in Annexure BHR 3 to the supplementary affidavit of Benjamin Howard Ringrose sworn 9 May 2013 (containing the explanatory statement required by section 412(1) of the Act) (Scheme Booklet) be approved for distribution to Shareholders. 3. The Scheme Meeting take place at Meeting Room 12, Perth Convention & Exhibition Centre, 21 Mounts Bay Road, Perth, Western Australia, 6000, on 13 June 2013 at 10:00am (WST). 4. The notice of meeting and proxy appointment form in Annexure 4 to the Scheme Booklet be approved as the notice of meeting and proxy appointment form for the Scheme Meeting. 5. On or before 14 May 2013, there be dispatched a document substantially in the form, or to the effect of, the Scheme Booklet by prepaid ordinary post (or in the case of Shareholders resident outside of Australia, by airmail) to the registered address of each Shareholder appearing in the register of Shareholders. 6. In addition, on or by 14 May 2013, there be dispatched by prepaid or ordinary post (or in the case of Shareholders resident outside of Australia, by airmail) to the registered address of each Shareholder appearing in the register of Shareholders: (a) a proxy form in respect of the Scheme Meeting substantially in the form, or to the effect of, the proxy form at Annexure 4 to the Scheme Booklet, including in it the name and address of the relevant Shareholder or Shareholders, as well as a unique barcode and security holder reference number; and (b) a pre-addressed reply paid envelope for return of the proxy form. 7. Craig Rennie Munro be appointed and act as Chairman of the Scheme Meeting. 8. The Chairman appointed to the Scheme Meeting has the power to adjourn the Scheme Meeting in his absolute discretion. 9. A person's entitlement to vote at the Scheme Meeting be determined by reference to the register of Shareholders as at 5:00pm (WST) on 11 June 2013. 10. Shareholders be required to lodge any proxy or corporate representative forms to appoint a proxy or corporate representative to vote at the Scheme Meeting on their behalf (including, if applicable, any power of attorney under which such forms are signed) or, if voting by attorney, a copy of the instrument effecting the appointment of such attorney, in the manner set out in the proxy form and the notice of meeting by no later than 10:00am (WST) on 11 June 2013. 11. All voting at the Scheme Meeting be by poll, and clause 11.14 of the constitution of the plaintiff be dispensed with for the purposes of the Scheme Meeting. 12. The plaintiff publish in "The Australian" and "The West Australian" newspapers notice of its application on or by 14 June 2013, and the plaintiff shall otherwise be exempted from compliance with the requirement to publish a notice at least 5 days before the date fixed for the application pursuant to rule 3.4 of the Federal Court (Corporations) Rules 2000 (Rules). 13. Pursuant to section 1319 of the Act, the plaintiff be exempted from compliance with the requirements of rule 2.15 of the Rules. 14. The proceedings be stood over to 10:15am (WST) on 19 June 2013 for the hearing of any application to approve the Scheme. 15. 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 WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 122 of 2013 IN THE MATTER OF BATHURST RESOURCES LIMITED BATHURST RESOURCES LIMITED (ABN 93 125 679 469) Plaintiff JUDGE: BARKER J DATE: 10 MAY 2013 PLACE: PERTH REASONS FOR JUDGMENT overview 1 On 10 May 2013, the Court made an order under s 411(1) of the Corporations Act 2001 (Cth) (Act) convening a first meeting of shareholders of the plaintiff, Bathurst Resources Limited (Bathurst), for the purpose of considering a proposed scheme of arrangement between Bathurst and the holders of ordinary shares issued in Bathurst in relation to the transfer of all of the shares of the Bathurst shareholders to Bathurst Resources (New Zealand) Limited (Bathurst NZ), as well as ancillary orders. 2 These are short reasons for the making of the orders. background 3 Craig Rennie Munro, chairman and non-executive director of Bathurst, by affidavit provided background to the proposed scheme. 4 Bathurst was incorporated in the State of Western Australia and was registered as a public company on 30 May 2007. Bathurst's principal assets comprise coal development and exploration projects in New Zealand. 5 Bathurst is admitted to the official list of the Australian Securities Exchange (ASX) and the NZX Main Board (the New Zealand stock exchange) (NZX) and its ordinary shares are quoted and traded on the ASX and NZX. As at 29 April 2013, the issued capital of Bathurst comprised 697,247,997 ordinary shares, 60,710,776 options and 1,719,575 performance rights. 6 The board of directors of Bathurst comprises four directors: Hamish Bohannan (managing director), Rob Lord, Malcolm Macpherson and Mr Munro. 7 Bathurst NZ is a company incorporated under the laws of New Zealand for the purpose of ultimately succeeding Bathurst as the parent entity of the subsidiary entities currently wholly-owned by Bathurst. Bathurst NZ does not currently own any assets and any assets to be inherited by Bathurst NZ will be the assets currently held by Bathurst. proposed scheme 8 The scheme of arrangement now proposed results from Bathurst entering into a scheme implementation agreement with Bathurst NZ on 2 April 2013 (which was subsequently varied by a deed of variation executed on 19 April 2013). 9 The scheme, if implemented, will result in all of the ordinary shares in Bathurst being transferred to Bathurst NZ. In exchange, each Bathurst shareholder (other than certain overseas shareholders) will receive one ordinary share in Bathurst NZ for every Bathurst share that they hold (scheme consideration). 10 Under the proposed scheme, shareholders with a registered address other than Australia or New Zealand (or their external territories) will not be eligible to receive shares in Bathurst NZ if Bathurst and Bathurst NZ determine that the offer and issue of Bathurst NZ shares in such jurisdictions would be prohibited by the laws of the jurisdictions or would be unduly onerous (ineligible foreign holders). Ineligible foreign holders, who hold approximately 1.25% of the shares in Bathurst, will still be entitled to participate in the scheme but will not receive the scheme consideration. Instead, the Bathurst NZ shares that would have been issued to the ineligible foreign holders will be issued to RBC Capital Markets (ARBN 147 716 229) (RBC) as sale nominee. RBC will sell the Bathurst NZ shares as soon as reasonably practicable after the implementation date of the scheme implementation agreement and each ineligible foreign holder will receive the average net proceeds of the sale. 11 The scheme is conditional on binding agreements being entered into with all of the holders of Bathurst options and Bathurst performance rights for their options and performance rights (respectively) outstanding as at the date on which the scheme becomes binding to be acquired by Bathurst NZ. In exchange, holders of Bathurst options and Bathurst performance rights will receive options and performance rights in Bathurst NZ on a one-for-one basis and substantially similar terms. 12 If the scheme is approved, Bathurst NZ will make applications to be listed on the official lists of the ASX and NZX, and Bathurst will make applications to be delisted from the ASX and NZX. If these applications are successful, Bathurst NZ will effectively replace Bathurst as the listed entity on the ASX and NZX. consideration 13 The Court is satisfied that the scheme is one that may be approved under s 411(1) of the Act. 14 The level of disclosure to be provided by the draft scheme booklet is satisfactory. 15 An independent expert has provided a report, to be included with the scheme booklet to be given to shareholders, that states the scheme is, on balance, in the best interests of Bathurst shareholders. 16 It is not for the Court at this point to exercise commercial judgment in respect of the proposed scheme, but to leave the shareholders to exercise that judgment. 17 All necessary procedural matters required under the Act concerning the calling and conduct of the meeting have been met. 18 The first meeting will be chaired by Mr Munro. Mr Munro has disclosed the extent of his commitments and obligations to Bathurst, none of which disqualifies him as an appropriate chairperson at the meeting. 19 Pursuant to s 411(2) of the Act, the Australian Securities and Investments Commission has been given the required notice of the hearing of the application and a copy of the draft scheme booklet and has provided a letter indicating that it does not, at this point, propose making any submission in relation to the proposed scheme. 20 Finally, the Court is satisfied that: Pursuant to R 3.4 of the Federal Court (Corporations) Rules 2000 (Rules), Bathurst should publish in "The Australian" and "The West Australian" newspapers notice of its application on or by 14 June 2013, but should otherwise be exempted from compliance with the requirement to publish a notice at least five days before the date fixed for the second hearing of the application (19 June 2013); Pursuant to s 1319 of the Act, Bathurst should be exempted from compliance with the requirements of R 2.15 of the Rules (which applies reg 5.6.11-5.6.36A of the Corporations Regulations 2001 (Cth) to meetings ordered by the Court). orders 21 In all of these circumstances, appropriate disclosure of any relevant matters having been made on behalf of Bathurst, the Court is satisfied that the orders proposed should be made. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate: Dated: 28 May 2013