Equatorial Mining Pty Limited v Antofagasta Investment Company Limited (No 2) [2014] FCA 61

FEDERAL COURT OF AUSTRALIA

Equatorial Mining Pty Limited v Antofagasta Investment Company Limited (No 2) [2014] FCA 61 Citation: Equatorial Mining Pty Limited v Antofagasta Investment Company Limited (No 2) [2014] FCA 61

Parties: EQUATORIAL MINING PTY LIMITED ACN 009 199 482 and SIERRA GORDA COPPER PTY LIMITED ACN 121 018 219 v ANTOFAGASTA INVESTMENT COMPANY LIMITED ARBN 165 600 091

File number(s): NSD 2453 of 2013

Judge(s): YATES J

Date of judgment: 7 February 2014

Catchwords: CORPORATIONS - scheme for reconstruction involving compromises or arrangements - second hearing - approval

Legislation: Corporations Act 2001 (Cth) ss 411, 413

Cases cited: Equatorial Mining Pty Limited v Antofagasta Investment Company Limited [2013] FCA 1452

Date of hearing: 7 February 2014

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 15

Counsel for the Plaintiffs: Mr M Oakes SC

Solicitor for the Plaintiffs: Minter Ellison

Solicitor for the Defendant: The Defendant did not appear

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2453 OF 2013

BETWEEN: EQUATORIAL MINING PTY LIMITED ACN 009 199 482

First Plaintiff

SIERRA GORDA COPPER PTY LIMITED ACN 121 018 219

Second Plaintiff

AND: ANTOFAGASTA INVESTMENT COMPANY LIMITED ARBN 165 600 091

Defendant

JUDGE: YATES J DATE OF ORDER: 7 FEBRUARY 2014 WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) (Act), the compromises and arrangements between each plaintiff and its respective member, in the form set out in Exhibit C in the proceeding (each an Arrangement and together the Scheme), be approved. 2. Each plaintiff lodge with the Australian Securities and Investment Commission (ASIC) a copy of the approved Scheme at the time of lodging a copy of these orders. 3. Pursuant to s 411(12) of the Act, each plaintiff be exempted from compliance with the requirements of s 411(11) of the Act in respect of order 1 above. 4. Pursuant to s 411(10) of the Act, these orders take effect, upon lodgement of an office copy thereof with ASIC, on and from 31 December 2013, with the intent that this date be the Merger Implementation Date for the purposes of the Scheme. 5. Pursuant to s 413(1) of the Act, the Scheme be implemented, on the Merger Implementation Date, commencing at 15.00 (Sydney time) (the Implementation Time), by the following steps taken in the following order, using the definitions in the Scheme and speaking as at that time: (a) first, all the Assets of EQM be transferred to and become the Assets of SGC; (b) second, all the Liabilities of EQM be transferred to and become the Liabilities of SGC; (c) third, all the Assets of SGC (including the Assets transferred to SGC under paragraph (a) above) be transferred to and become the Assets of AIC and the market value (determined as at the date of transfer) of the Assets, so transferred be applied to repay the loan as a reduction of the loan owing by SGC to AIC; (d) fourth, all the remaining Liabilities of SGC (including the Liabilities transferred to SGC under paragraph (b) above) be transferred to and become the Liabilities of AIC; and (e) fifth, thereafter, each of EQM and SGC be deregistered by ASIC without winding up. 6. Pursuant to s 413(1)(g) of the Act, in contracts to which the first plaintiff or the second plaintiff is a party, any reference to the first plaintiff or the second plaintiff be read as a reference to the defendant. 7. Pursuant to s 413(1)(g) of the Act, from the Implementation Time, the defendant may use, disclose and otherwise handle all information transferred and vested in it by each plaintiff provided always that the defendant shall receive the information upon the same terms as each plaintiff held the information and subject to the Liabilities of each plaintiff in respect of that information. 8. Pursuant to s 413(1)(g) of the Act, from the Implementation Time, the defendant or any director of the defendant from time to time may, in the name of each plaintiff, sign and deliver all documents and do all things required to be done by that plaintiff to complete or perfect the transfer of the Assets and Liabilities of that plaintiff provided for in these orders, whether by lodgement, registration, notification or otherwise. 9. Liberty be reserved to any party to apply for any further orders as may be considered necessary or desirable under s 413 of the Act. 10. These orders be entered forthwith. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.