Ecosave Holdings Limited, in the matter of Ecosave Holdings Limited [2015] FCA 1121

FEDERAL COURT OF AUSTRALIA

Ecosave Holdings Limited, in the matter of Ecosave Holdings Limited [2015] FCA 1121 Citation: Ecosave Holdings Limited, in the matter of Ecosave Holdings Limited [2015] FCA 1121

Parties: ECOSAVE HOLDINGS LIMITED ACN 160 875 016

File number(s): NSD 1100 of 2015

Judge(s): YATES J

Date of judgment: 2 October 2015

Catchwords: CORPORATIONS – schemes of arrangement – application for order that company convene meetings of members and optionholders

Legislation: Corporations Act 2001 (Cth) Pt 5.1, ss 411, 412 Corporations Regulations 2001 (Cth) reg 5.1.01

Cases cited: Re APN News & Media Ltd (2007) 62 ACSR 400 Re Sino Gold Mining Ltd (2009) 74 ACSR 647 Simavita Holdings Limited, in the matter of Simavita Holdings Limited [2013] FCA 1274

Date of hearing: 28 September 2015, 1-2 October 2015

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 20

Counsel for the Plaintiff: Mr P Cutler

Solicitor for the Plaintiff: HWL Ebsworth Lawyers

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1100 of 2015

IN THE MATTER OF ECOSAVE HOLDINGS LIMITED ACN 160 875 016 ECOSAVE HOLDINGS LIMITED ACN 160 875 016

Plaintiff

JUDGE: YATES J DATE OF ORDER: 2 OCTOBER 2015 WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Pursuant to s 411(1) of the Corporations Act 2001 (Cth) (the Act), the explanatory statement contained in the scheme booklet, which is Exhibit C in the proceeding, as amended by inclusion of the substituted pages identified in the affidavit of Tracy Jill Rafferty made 2 October 2015 (the Scheme Booklet), be approved for distribution to the members and optionholders of the plaintiff. 2. Pursuant to s 411(1) of the Act: (a) The plaintiff convene a meeting of its members (the share scheme meeting) for the purpose of considering, and if thought fit, agreeing to, with or without any amendment or any alterations or conditions, the scheme of arrangement in Annexure B to the Scheme Booklet (the share scheme). (b) The plaintiff convene a meeting of its optionholders (the option scheme meeting) for the purpose of considering, and if thought fit, agreeing to, with or without any amendment or any alterations or conditions, the scheme of arrangement in Annexure C to the Scheme Booklet (the option scheme). (c) The share scheme meeting and the option scheme meeting be held at Unit 4/42 Carrington Road, Castle Hill, New South Wales, on 6 November 2011, with the share scheme meeting commencing at 10.30 am and the option scheme meeting commencing at 11.00 am. (d) Robin Archibald, or failing him, Marcelo Javier Rouco, be the chairperson of the share scheme meeting and the option scheme meeting, with power to adjourn each or either meeting in his absolute discretion for such time as he considers appropriate. 3. Pursuant to s 1319 of the Act, r 2.15 of the Federal Court (Corporations) Rules 2000 (Cth) shall not apply to the share scheme meeting or the option scheme meeting, except in so far as that rule applies reg 5.6.13 (without the form 530 stipulated therein) of the Corporations Regulations 2001 (Cth). 4. Subject to these orders and pursuant to s 1319 of the Act, the share scheme meeting be: (a) convened using the notice of meeting in the form or substantially in the form of the notice in Annexure F of the Scheme Booklet; and (b) conducted in accordance with the provisions of Part 2G.2 of the Act that apply to members of a company and the provisions of the plaintiff's constitution that are not inconsistent therewith. 5. Subject to these orders and pursuant to s 1319 of the Act, the option scheme meeting be: (a) convened using the notice of meeting in the form or substantially in the form of the notice in Annexure G of the Scheme Booklet; and (b) convened on the basis that two optionholders present in person or by proxy, corporate representative or attorney under power and entitled to vote shall constitute a quorum. 6. All voting at the share scheme meeting and the option scheme meeting be by poll declared by the chairperson. 7. Subject to registration of the Scheme Booklet with the Australian Securities and Investments Commission pursuant to s 412(6) of the Act, the plaintiff despatch, on or before 2 October 2015, the Scheme Booklet, a proxy form, a roll-over election form and a reply-paid envelope addressed to Security Transfer Registrars Pty Limited to each member on the plaintiff's register of members and each optionholder on the plaintiff's register of optionholders to the relevant address set out in the relevant register by: (a) in the case of each member or optionholder who has a registered address in Australia, prepaid post; and (b) in the case of each member or optionholder who has a registered address outside Australia, prepaid airmail or air courier. 8. Despatch of the documents referred to in Order 7 of these orders in accordance with its terms be taken to be sufficient notice of the share scheme meeting or option scheme meeting (as the case might be). 9. The time by which the members and optionholders must return their proxy forms for the share scheme meeting and the option scheme meeting is 10.00 am on 4 November 2015. 10. If the matter is to be relisted for orders approving the share scheme and the option scheme, the plaintiff give notice of the hearing by advertisement published in The Australian newspaper, such advertisement to be substantially in the form set out in Annexure A to these orders, and to be published on or before 20 November 2015. 11. The proceeding be adjourned to 27 November 2015 at 2.15 pm before Yates J for the hearing of any application to approve the share scheme and the option scheme. 12. These orders be entered forthwith. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ANNEXURE A Form 6 Notice of hearing to approve compromise or arrangement (rule 3.4) TO all the creditors and members of Ecosave Holdings Limited ACN 160 875 016 (Ecosave Holdings). TAKE NOTICE that at 2.15 pm on 27 November 2015, the Federal Court of Australia at Level 17, Law Courts Building, Queens Square, Sydney, New South Wales, 2000 will hear an application by Ecosave Holdings seeking the approval of a compromise or arrangement between the company and its members as proposed by a resolution passed by a meeting of the members of the company held on 6 November 2015 and a compromise or arrangement between the company and its optionholders as proposed by a resolution passed by a meeting of the optionholders of the company held on the same day. If you wish to oppose the approval of either compromise or arrangement, you must file and serve on the plaintiff a notice of appearance, in the prescribed form, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served on the plaintiff at its address for service at least 1 day before the date fixed for the hearing of the application. The address for service of the plaintiff is: HWL Ebsworth Lawyers Level 14, Australia Square 264-278 George Street Sydney NSW 2000. Name of person giving notice or of person's legal practitioner is: Mark James Webeck HWLE Ebsworth Lawyers