FEDERAL COURT OF AUSTRALIA Biosceptre International Limited, in the matter of Biosceptre International Limited (No 2) [2014] FCA 59 Citation: Biosceptre International Limited, in the matter of Biosceptre International Limited (No 2) [2014] FCA 59 Parties: BIOSCEPTRE INTERNATIONAL LIMITED ACN 104 060 166 File number(s): NSD 2367 of 2013 Judge(s): YATES J Date of judgment: 6 February 2014 Catchwords: CORPORATIONS – scheme of arrangement – second hearing - approval Legislation: Corporations Act 2001 (Cth) s 411 Cases cited: Biosceptre International Limited, in the matter of Biosceptre International Limited [2013] FCA 1429 Date of hearing: 6 February 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 16 Counsel for the Plaintiff: Mr M Oakes SC Solicitor for the Plaintiff: K&L Gates IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2367 of 2013 IN THE MATTER OF BIOSCEPTRE INTERNATIONAL LIMITED BIOSCEPTRE INTERNATIONAL LIMITED ACN 104 060 166 Plaintiff JUDGE: YATES J DATE OF ORDER: 6 FEBRUARY 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) (Corporations Act), the scheme of arrangement between the plaintiff and its members in the form of Exhibit C in the proceeding be approved. 2. The plaintiff lodge with the Australian Securities and Investments Commission a copy of the approved scheme of arrangement at the time of lodging a copy of these orders. 3. Pursuant to s 411(12) of the Corporations Act, the plaintiff be exempted from compliance with s 411(11) of the Corporations Act in relation to the order in paragraph 1. 4. 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 2367 of 2013 IN THE MATTER OF BIOSCEPTRE INTERNATIONAL LIMITED BIOSCEPTRE INTERNATIONAL LIMITED ACN 104 060 166 Plaintiff JUDGE: YATES J DATE: 14 FEBRUARY 2014 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The plaintiff (Biosceptre Australia) seeks an order pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) (the Act) approving a members' scheme of arrangement. 2 On 18 December 2013, I made orders pursuant to s 411(1) of the Act providing for the convening of a meeting of Biosceptre Australia's members holding ordinary shares in its capital for the purpose of considering and, if thought fit, approving a scheme of arrangement between Biosceptre Australia and those members. The scheme is directed to a redomiciliation of the corporate group of which Biosceptre Australia is currently the holding company. 3 My reasons for making those orders are given in Biosceptre International Limited, in the matter of Biosceptre International Limited [2013] FCA 1429 (my earlier reasons). My earlier reasons provide the background to the proposal of the scheme as well as an overview of the scheme. My earlier reasons should be read with these reasons. Where appropriate, I will use the same abbreviations in these reasons. 4 The scheme meeting has been held. It received the requisite approval of members. All conditions precedent to the scheme coming into effect (other than Court approval) have been satisfied. No person has come forward to oppose approval being granted by the Court. Additional evidence 5 The following additional evidence was read or tendered: The affidavit of Peter Gavin Currie made 31 January 2014. Mr Currie is the Chief Executive Officer and Executive Director of Biosceptre Australia. Mr Currie was Chairman of the scheme meeting. His affidavit deals with, amongst other things, the holding of the scheme meeting; the voting at that meeting; and the arrangements now in place to buy back the subscriber shares issued by Biosceptre UK: see [23] of my earlier reasons. The affidavit of Nicholas John Victor Geddes made 31 January 2014. Mr Geddes is the Company Secretary of Biosceptre Australia. His affidavit deals with, amongst other things, the receipt and processing of proxy forms, including the preparation of a proxy report which was used for the purpose of the scheme meeting. No invalid or late proxy forms were received. Mr Geddes' affidavit also deals with the registration of attendees at the scheme meeting; voting at the scheme meeting; and the preparation of a poll report detailing the outcome of voting at the meeting. The affidavits of Bradley James Miller made 5 February 2014 and 6 February 2014. As noted in my earlier reasons at [25], Mr Miller is the Senior Manager – Legal and Compliance of Biosceptre Australia. One of Mr Miller's tasks is to oversee the maintenance of Biosceptre Australia's register of members. Mr Miller assisted with the printing and dispatch of the scheme documents to Biosceptre Australia's members. He also supervised the receipt of proxy forms lodged with Biosceptre Australia. His affidavit deals with, amongst other things, the printing of the scheme booklet; the dispatch of the scheme documents to members; and his supervision of the receipt and forwarding of completed proxy forms for processing. The affidavit of Glenn Anthony Hughes made 6 February 2014. Mr Hughes is a partner of K&L Gates, the solicitors for Biosceptre Australia in this proceeding. Mr Hughes' affidavit deals with, amongst other things, the identification of minor amendments to the scheme booklet following the first court hearing; the registration of the scheme booklet with ASIC; the advertising of this hearing; the non-receipt of any notice of intention to appear at this hearing; and correspondence from ASIC providing a written statement for the purpose of s 411(17)(b) of the Act. A certificate executed by Biosceptre Australia and Biosceptre UK certifying that all conditions precedent to the scheme coming into effect (other than Court approval) have been satisfied: Exhibit B. Consideration 6 I have been provided with written submissions. These have been marked for identification: MFI 2. 7 I am satisfied that there has been compliance with the orders made on 18 December 2013 with respect to the convening and holding of the scheme meeting. 8 The evidence establishes that, at the meeting, 96.78% of the members present and voting (either in person or by proxy) voted in favour of the scheme and that 99.996% of the votes cast on the resolution voted in favour of the scheme. I am satisfied, therefore, that the scheme was approved by the requisite statutory majorities: see s 411(4)(a) of the Act. 9 As I have noted, all conditions precedent to the scheme coming into effect (other than Court approval) have been satisfied. 10 I note ASIC's written statement that it has no objection to the scheme. The requirement of s 411(17) of the Act has therefore been satisfied. 11 I note that this hearing has been advertised, as ordered on 18 December 2013. No notice of appearance (as identified in the advertisement) has been received from any person seeking to oppose approval being granted to the scheme. 12 I am satisfied that the scheme is fair and reasonable. In reaching this conclusion, I have taken into account the following matters: The scheme was agreed to by an overwhelming majority of members. The directors of Biosceptre Australia have unanimously recommended the scheme: see [17] of my earlier reasons. The independent expert, Hall Chadwick, has concluded that the scheme is fair and reasonable and in the best interests of members: see [18] of my earlier reasons. All material information has been provided to Biosceptre Australia's members. No person has come forward to oppose the scheme. 13 One particular matter has been brought to my attention. The scheme booklet, as approved by the Court at the first court hearing, was not registered with ASIC before dispatch to members as required by s 411(6) of the Act. I am satisfied that this was through inadvertence. The matter was explained in Mr Hughes' affidavit to which I have referred. The scheme booklet was subsequently registered with ASIC on 17 January 2014, well before the holding of the scheme meeting. I am satisfied that the failure to register the scheme booklet as required is a procedural irregularity covered by s 1322(2) of the Act. 14 There is a second matter to note. In my earlier reasons at [23] I referred to the fact that, for the second court hearing, a mechanism was to be put in place for the implementation of the buyback of subscriber shares in Biosceptre UK. On the basis of information given in Mr Currie's affidavit referred to above, I am satisfied that binding arrangements have been made to effect the buyback. 15 In all the circumstances, I am satisfied that an order should be made pursuant to s 411(4)(b) of the Act approving the scheme. 16 Biosceptre Australia seeks exemption from compliance with s 411(11) of the Act. I am satisfied that exemption should be granted under s 411(12). Disposition Orders, as sought in the draft orders provided at the hearing, should be made. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate: Dated: 6 February 2014