FEDERAL COURT OF AUSTRALIA BigAir Group Limited, in the matter of BigAir Group Limited (No 2) [2016] FCA 1513 File number: NSD 1772 of 2016 Judge: YATES J Date of judgment: 9 December 2016 Catchwords: CORPORATIONS – scheme of arrangement – second court hearing – application for approval Legislation: Corporations Act 2001 (Cth) s 411 Cases cited: BigAir Group Limited, in the matter of BigAir Group Limited [2016] FCA 1296 Centro Retail Limited and Centro MCS Manager Limited in its capacity as Responsible Entity of Centro Retail Trust [2011] NSWSC 1321 Coates Hire Limited, in the matter of Coates Hire Limited (No 2) [2007] FCA 2105 Prime Infrastructure Holdings Ltd [2010] NSWSC 1337 Re Equinox Resources Ltd (2004) 49 ACSR 692; [2004] WASC 143 Talent2 International Limited, in the matter of Talent2 International Limited (No 2) [2012] FCA 926 Date of hearing: 9 December 2016 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 14 Counsel for the Plaintiff: Mr IM Jackman SC with Mr D Sulan Solicitor for the Plaintiff: Baker & McKenzie Counsel for Superloop Limited: Dr R Austin Solicitor for Superloop Limited: Gilbert + Tobin Lawyers ORDERS NSD 1772 of 2016 IN THE MATTER OF BIGAIR GROUP LIMITED ACN 098 527 626 BIGAIR GROUP LIMITED ACN 098 527 626 Plaintiff JUDGE: YATES J DATE OF ORDER: 9 DECEMBER 2016 THE COURT ORDERS THAT: 1. Pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) (the Act) the scheme of arrangement (the Scheme) made between the plaintiff and the holders of ordinary shares in the plaintiff other than A.C.N. 614 507 247 Pty Ltd in the form of Annexure C of the document which has been tendered and marked Exhibit 1 (subject to the alteration in Order 2 below) be approved. 2. Pursuant to s 411(6) of the Act, the Scheme be altered so that the definition of Excluded Shareholder in Schedule 1 reads "Excluded Shareholder means A.C.N. 614 507 247 Pty Ltd". 3. The plaintiff lodge with the Australian Securities and Investments Commission a copy of the approved Scheme at the time of lodging a copy of these orders. 4. Pursuant to s 411(12) of the Act, the plaintiff be exempted from compliance with s 411(11) of the Act in relation to the Scheme. THE COURT NOTES THAT: 5. The plaintiff and Superloop Limited will rely on the Court's approval of the Scheme for the purpose of qualifying for exemption from the registration requirements of the US Securities Act of 1933, provided for by section 3(a)(10) of that Act, in connection with the implementation of, and provision of consideration under, the Scheme. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT YATES J: 1 The plaintiff, BigAir Group Limited, seeks an order pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) (the Act) approving a scheme of arrangement, the terms of which are, subject to one amendment to be made (discussed below at [11]), in the form of Annexure C of Exhibit 1 in the proceeding (the scheme). 2 On 28 October 2016, I made orders pursuant to ss 411(1) and 1319 of the Act providing for the convening of a meeting of members to consider the scheme and, if thought fit, agree to it (the scheme meeting): BigAir Group Limited, in the matter of BigAir Group Limited [2016] FCA 1296 (my earlier reasons). 3 On 7 December 2016, the meeting was held and the scheme was agreed to by the majorities required under s 411(4)(a)(ii) of the Act. 4 The following affidavits have been read in support of the orders now sought: Vivian Stewart, sworn 7 December 2016; David John Parkinson, affirmed 8 December 2016; Guy James Villers Sanderson, affirmed 8 December 2016; and Maria Coffill O'Brien, affirmed 9 December 2016. 5 The plaintiff has also tendered: a form 530 statement regarding the sending of the explanatory statement and the notice of meeting by prepaid post to each member of the plaintiff who had not elected to receive notices of meetings by email; to those members who had elected to receive notices by email but in respect of whom "hard" bounce-backs had been received when electronic despatch was attempted; and to various persons who had become members of the plaintiff since 27 October 2016: Exhibit 5; a deed dated 9 December 2016 executed by the plaintiff and Superloop Limited (Superloop) confirming and certifying that the conditions precedent in clause 3.1 of the Scheme Implementation Deed referred to at [4] of my earlier reasons (other than the condition relating to court approval) had been satisfied or waived in accordance with the terms of that deed: Exhibit 6; and a copy of a letter dated 8 December 2016 from the Australian Securities and Investments Commission (ASIC) to the directors of the plaintiff advising that, under s 411(17)(b) of the Act, ASIC had no objection to the scheme: Exhibit 7. 6 On the evidence before me, I am satisfied that the explanatory statement, represented by the scheme booklet, was registered with ASIC on 28 October 2016. The scheme meeting was convened and held under s 411 of the Act in accordance with the orders made on 28 October 2016. At the meeting held on 7 December 2016, 97.07% of the members present and voting (either in person or by proxy) voted in favour of the scheme. Further, 99.45% of the votes were cast in favour of the scheme resolution. A notice of the second court hearing was published in The Australian newspaper on 1 December 2016, also in accordance with the orders made on 28 October 2016. As I have noted, ASIC has provided a statement in writing that it has no objection to the scheme. Accordingly, there is no impediment under s 411(17) of the Act to the Court giving the approval that is sought. All conditions precedent to the scheme coming into effect (other than the Court's approval) have been satisfied or waived. 7 I am satisfied that the scheme is fair and reasonable. As I noted at [5] of my earlier reasons, the scheme consideration comprises scrip consideration (shares issued by Superloop) or, at the election of a scheme shareholder, mixed consideration (comprising shares issued by Superloop and a cash component). In reaching satisfaction that the scheme is fair and reasonable, I take into account the directors' recommendation (referred to at [10] of my earlier reasons); the independent expert's opinion (referred to at [11]-[14] of my earlier reasons); the fact that no superior proposal has been forthcoming; the fact that the members have agreed to the scheme by the significant majorities I have recorded; and the fact that no person has come forward to oppose the scheme. 8 I record the following additional matters. 9 First, as noted at [6] of my earlier reasons, the mixed consideration is subject to a cash cap and scale-back mechanism. As events have transpired, the cash cap was not reached and, for that reason, no scale-back is required. 10 Secondly, after orders were made on 28 October 2016, and after the scheme booklet had been despatched, it came to the plaintiff's attention that there were two errors in the scheme booklet which required correction. The plaintiff's solicitors approached my Chambers promptly on 7 November 2016 to seek an order providing for the despatch of a letter from the plaintiff to its members bringing to their attention the corrections that needed to be made. This course was appropriate in light of the observations made in Coates Hire Limited, in the matter of Coates Hire Limited (No 2) [2007] FCA 2105 at [6]; see also Centro Retail Limited and Centro MCS Manager Limited in its capacity as Responsible Entity of Centro Retail Trust [2011] NSWSC 1321 at [10]-[11]. On 8 November 2016 I made orders providing for the despatch of the letter to the plaintiff's members. I am satisfied on the evidence that this letter was sent to members as required by the orders made on 8 November 2016. There is also evidence before me that the letter was also released by the plaintiff to the Australian Securities Exchange on 8 November 2016. 11 Thirdly, the scheme, as proposed at the meeting on 7 December 2016, was between the plaintiff and the holders of ordinary shares other than those shares held by an Excluded Shareholder (defined as any BigAir shareholder who is Superloop or a subsidiary of Superloop). It has now been confirmed that Superloop does not hold any shares in the plaintiff and that the only Superloop subsidiary that does hold shares is the company called A.C.N. 614 507 247 Pty Ltd (ACN). Given that it is known with certainty that ACN is the only Excluded Shareholder, the appropriate course is to alter the scheme pursuant to s 411(6) of the Act by redefining Excluded Shareholder to mean ACN: Prime Infrastructure Holdings Ltd [2010] NSWSC 1337 at [4]-[11]; Talent2 International Limited, in the matter of Talent2 International Limited (No 2) [2012] FCA 926 at [16]-[17]. 12 Fourthly, it is appropriate that, pursuant to s 411(12) of the Act, the plaintiff be exempted from compliance with s 411(11) of the Act in relation to the scheme: Re Equinox Resources Ltd (2004) 49 ACSR 692; [2004] WASC 143 at 696. I am satisfied that there is no utility in having the Court's orders annexed to the plaintiff's constitution as those orders do not effect any changes to the constitution. 13 All necessary procedural requirements have been satisfied for the approval that is now sought from the Court. There is no discretionary reason why approval should not be given. I therefore propose to order that the scheme be approved in accordance with the draft orders that have been provided. 14 Finally, I specifically note that the plaintiff and Superloop will rely on the Court's approval of the scheme for the purpose of qualifying for exemption from the registration requirements of the US Securities Act of 1933, provided for by s 3(a)(10) of that Act, in connection with the implementation of, and provision of consideration under, the scheme. For the avoidance of doubt, I record in addition to the matters I have noted at [7] above the fact that this reliance was communicated to the Court at the time of the first Court hearing on 28 October 2016 as well as now, and that both hearings were conducted in open Court with the plaintiff's shareholders having standing to appear in opposition had they chosen to do so. As I have already recorded, no person has come forward to oppose the scheme. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate: Dated: 16 December 2016