Cobalt One Limited, in the matter of Cobalt One Limited [2017] FCA 1228

FEDERAL COURT OF AUSTRALIA

Cobalt One Limited, in the matter of Cobalt One Limited [2017] FCA 1228 File number(s): WAD 468 of 2017

Judge(s): SIOPIS J

Date of judgment: 12 October 2017

Catchwords: CORPORATIONS – application for orders for the convening of a meeting to approve a scheme of arrangement under s 411(1) of the Corporations Act 2001 (Cth) – expert opinion was that the scheme of arrangement was not fair but was reasonable.

Legislation: Corporations Act 2001 (Cth) s 411(1)

Cases cited: Re Foundation Healthcare (2002) 42 ACSR 252 In the matter of CIC Australia Limited [2015] NSWSC 557 Blackgold International Holdings Limited, in the matter of Blackgold International Holdings Limited [2017] FCA 601

Date of hearing: 12 October 2017

Registry: Western Australia

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Category: Catchwords

Number of paragraphs: 26

Counsel for the Plaintiff: Mr T O'Leary

Solicitor for the Plaintiff: Gilbert + Tobin

ORDERS WAD 468 of 2017 IN THE MATTER OF COBALT ONE LIMITED (ACN 127 411 796) COBALT ONE LIMITED (ACN 127 411 796) Plaintiff

JUDGE: SIOPIS J DATE OF ORDER: 12 OCTOBER 2017

THE COURT ORDERS THAT:

1. Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (the Act): (a) the Plaintiff, Cobalt One Limited (Cobalt), convene a meeting (Scheme Meeting) of the holders of fully paid ordinary shares in Cobalt for the purpose of considering and, if thought fit, approving a scheme of arrangement (with or without modification) proposed to be made between Cobalt and its shareholders (Scheme), the terms of which are contained in Attachment F to the scheme booklet containing the explanatory statement in relation to the Scheme, which is annexure STT-12 to the third affidavit of Sarah Terase Turner affirmed 11 October 2017 and filed in these proceedings (the Scheme Booklet); (b) the Scheme Meeting be held at the office of Cobalt One Limited at Level 1, 35 Richardson Street, West Perth, Western Australia at 10:00am (WST) on Friday, 17th November 2017; (c) Jason Anthony Bontempo or, failing him, Nicholas James Rowley, act as Chairperson of the Meeting and report the results of the Scheme Meeting to this Court; and (d) the Chairperson appointed for the Scheme Meeting have the power to adjourn the meeting or not in their absolute discretion for such time that the Chairperson considers appropriate. 2. Pursuant to section 1319 of the Act, but subject to such orders as the Court makes, the Scheme Meeting be convened, held and conducted in accordance with the provisions of: (a) Part 2G.2 of the Act that apply to the members of a company, and have not been displaced or modified by Cobalt's constitution; and (b) Cobalt's constitution that are not inconsistent with that Part and that apply to a meeting of members, save that all voting at the Scheme Meeting be by poll demanded by the Chairperson. 3. Pursuant to section 1319 of the Act and for the purposes of regulation 7.11.37(3)(b) of the Corporations Regulations 2001 (Cth) (the Corporations Regulations), the specified time for the purposes of identification of securities holdings for the Scheme Meeting, shall be 7:00pm (WST) on Wednesday, 15th November 2017 (Snap-Shot Date), with power to the Chairperson of the Scheme Meeting in his absolute discretion to allow late proxies up to the commencement of the meeting. 4. Cobalt be exempted from compliance with the requirements of Rule 2.15 of the Federal Court (Corporations) Rules 2000 (Cth) (Rules). 5. The proposed Scheme Booklet, which comprises the Explanatory Statement as required by section 412(1)(a) of the Act and its annexures and the proposed proxy forms for the Scheme Meeting which are Annexures STT-12 to the third affidavit of Sarah Terase Turner affirmed 11 October 2017 and STT-4 to the first affidavit of Sarah Terase Turner affirmed 22 September 2017, be and are approved for distribution to Cobalt's shareholders (subject to any amendments required or approved by the Australian Securities and Investments Commission (ASIC) for purposes of registration thereof under section 412(6) of the Act). 6. Subject to registration of the Scheme Booklet with the ASIC pursuant to section 412(6) of the Act, Cobalt is to despatch to each Cobalt Shareholder with an address on the Cobalt register of members maintained by Advanced Share Registry Ltd ACN 127 175 946 (Advanced Share Registry): (a) a document substantially in the form of the Scheme Booklet; (b) a proxy form; and (c) a reply paid envelope addressed to Advanced Share Registry, by: (d) ordinary pre-paid post to each Cobalt shareholder with a registered address in Australia; or (e) pre-paid airmail or air courier to each Cobalt shareholder with a registered address outside Australia; or (f) the nominated notification means in accordance with section 249J of the Act. 7. Despatch of the documents referred to in paragraphs 6 of these Orders in accordance with the stated delivery methods on or before 16th October 2017 is to be taken to be sufficient notice of the Scheme Meeting. 8. The time by which Cobalt shareholders must return their proxy forms for the Scheme Meeting be 10:00am (WST) on Wednesday, 15th November 2017. 9. Leave be given to Cobalt to make application for orders under sections 411(4) and 411(6) of the Act following the Scheme Meeting for approval of the Scheme to be heard at 11:15 am on Monday, 27th November 2017, or such other date as the Court sees fit to set for such purpose. 10. Cobalt publish notice of the hearing of that application in the form or to the effect of the advertisement (scheduled below for convenience) in Annexure STT-7 to the first affidavit of Sarah Terase Turner affirmed 22 September 2017 once in The West Australian newspaper at least 5 days before the date fixed for the hearing of that application, and Cobalt shall otherwise be exempted from compliance with Rule 3.4 of the Rules. 11. Cobalt, ASIC and any interested party has liberty to list the matter on 18 hours' written notice. 12. An office copy of these orders shall be lodged with ASIC as soon as practicable after these orders are made. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. SCHEDULE 1 NOTICE OF HEARING TO APPROVE COMPROMISE OR ARRANGEMENT Take notice that at 11:15am (WST) on Monday, 27 November 2017 the Federal Court of Australia at Level 6 of the Peter Durack Commonwealth Law Building, 1 Victoria Avenue Perth, will hear an application by Cobalt One Limited (Cobalt) seeking the approval of a Scheme of Arrangement proposed between Cobalt and its members, if such Scheme of Arrangement is approved by those members at the Court ordered meeting convened to be held on Friday, 17 November 2017. If you wish to oppose the approval of the Scheme of Arrangement, you must file and serve on Cobalt 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 Cobalt at its address for service at least one day before the day fixed for the hearing of the application. The address for service on Cobalt is c/- Gilbert + Tobin, Level 16, Brookfield Place Tower 2, 123 St Georges Terrace, Perth WA 6000 (Attention: Sarah Turner). Email: STurner@gtlaw.com.au A copy of the Scheme Booklet is available at www.cobaltonelimited.com Gilbert + Tobin Level 16, Brookfield Place Tower 2 123 St Georges Terrace Perth WA 6000