FEDERAL COURT OF AUSTRALIA Aurora Oil & Gas Ltd, in the matter of Aurora Oil & Gas Ltd [2014] FCA 612 Citation: Aurora Oil & Gas Ltd, in the matter of Aurora Oil & Gas Ltd [2014] FCA 612 Parties: AURORA OIL & GAS LIMITED (ACN 008 787 988) File number: WAD 71 of 2014 Judge: GILMOUR J Date of judgment: 14 May 2014 Catchwords: CORPORATIONS – scheme of arrangement – increase in scheme consideration – plaintiff seeks orders pursuant to s 1319 of the Corporations Act 2001 (Cth) – meeting to proceed – proxy forms still valid unless revoked Legislation: Corporations Act 2001 (Cth) ss 411(1), 1319 Cases cited: Re Cellestis Limited (No 3) [2011] VSC 493 Date of hearing: 14 May 2014 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 7 Counsel for the Plaintiff: Mr SK Dharmananda SC with Mr TP O'Leary Solicitor for the Plaintiff: Gilbert + Tobin IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 71 of 2014 IN THE MATTER OF AURORA OIL & GAS LIMITED (ACN 008 787 988) AURORA OIL & GAS LIMITED (ACN 008 787 988) Plaintiff JUDGE: GILMOUR J DATE OF ORDER: 14 MAY 2014 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The meeting of Aurora's shareholders at 9:30 am (WST) on Wednesday, 21 May 2014 (Scheme Meeting) to consider the scheme of arrangement (with or without modification) proposed to be made between Aurora and its shareholders (Scheme), which on 14 April 2014 the Court ordered to be convened, proceed in accordance with those orders, these orders and the Revised Notice of Scheme Meeting dated 14 May 2014. 2. Valid proxy forms for the Scheme Meeting that have been lodged by any Aurora shareholder are deemed still to be valid unless revoked, and members who vote or who have voted in favour of the Scheme are deemed to have voted in favour of the two resolutions in the Revised Notice of Scheme Meeting dated 14 May 2014 to be considered at the Scheme Meeting. 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 71 of 2014 IN THE MATTER OF AURORA OIL & GAS LIMITED (ACN 008 787 988) AURORA OIL & GAS LIMITED (ACN 008 787 988) Plaintiff JUDGE: GILMOUR J DATE: 14 MAY 2014 PLACE: PERTH REASONS FOR JUDGMENT 1 I made orders in this matter on 14 May 2014, at which time I delivered ex tempore reasons. These are those reasons, edited, but not so as to alter the substance of the reasons. 2 The Court, on 14 April 2014, made orders pursuant to s 411(1) of the Corporations Act 2001 (Cth) for the convening of a scheme meeting of the plaintiff to consider and, if thought fit, approve a scheme for arrangement proposed to be made between Aurora and its shareholders. Since that time, there has been an increase in the consideration offered in relation to the scheme from $4.10 to $4.20. The plaintiff has approached the Court seeking further orders arising from that alteration in the consideration. 3 Section 1319 of the Corporations Act enables the Court, it having ordered a meeting of the kind that I have mentioned, to give ancillary or consequential directions in relation to the meeting, as it thinks fit. This can include, for example, orders to vary orders made under s 411 in relation to such a meeting. The plaintiff, as it was required to, has informed ASIC of the increased scheme consideration together with drafts of the following documents: a letter to Aurora shareholders regarding the increased scheme consideration; a revised notice of scheme meeting; a second deed of variation; and an amending deed poll. Each of these documents is annexed to the supporting affidavit filed by the plaintiff, affirmed by Sarah Terase Turner on 14 May 2014. 4 It is proposed that the plaintiff will bring these matters to the attention of its members and, prior to the meeting, by various means, will bring the documents to which I have referred to their attention. The present application really concerns the position of shareholders who have lodged proxy forms either for or against. I have been informed from the bar table, and I am prepared to accept, that more than 75% of the proxies lodged are votes in favour of the proposed scheme. It is unlikely that those shareholders will seek to withdraw their proxies in order to change their vote to oppose the scheme. So far as those shareholders who have voted against the scheme, there is the possibility at least that, were they able to vote again, they might vote in favour of it. 5 The question is as to what is the appropriate approach to be taken in relation to the shareholders who have lodged proxy forms. Cellestis Limited, which was the scheme target in the scheme that was approved in Re Cellestis Limited (No 3) [2011] VSC 493, noted in its supplementary scheme booklet that if a member had voted in favour of the scheme using the proxy form which accompanied the original scheme booklet and did not lodge a revised proxy, it would be taken to have directed its proxy vote in favour of both resolutions to be proposed at the scheme meeting, that is to say, first, a resolution to approve the amendment to the scheme and, second, a resolution to approve the amended scheme. 6 That has not always been the approach taken but I am satisfied in this case that it is the appropriate approach. 7 I will make the orders sought by the plaintiff. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 12 June 2014