Federal Court of Australia
Federal Court of Australia
GetSwift Limited, in the matter of GetSwift Limited (No 2) [2020] FCA 1733 File number: NSD 1057 of 2020
Judgment of: FARRELL J
Date of publication of reasons: 1 December 2020
Date of judgment: 27 November 2020
Catchwords: CORPORATIONS – members' scheme of arrangement – application under s 411(4)(b) of the Corporations Act 2001 (Cth) – application to approve members' scheme of arrangement proposed for the purpose of re-domiciling a listed public company to a place outside Australia – where approval under Foreign Acquisitions and Takeovers Act 1975 (Cth) has not yet been obtained – where the Australian Securities and Investments Commission intervenes to oppose application on the basis that the Commonwealth is a contingent creditor in relation to a pecuniary penalty in respect of claimed contraventions of continuous disclosure laws during the currency of litigation – consideration of whether there is a 'real or practical risk, as opposed to a theoretical risk' that implementation of scheme will materially prejudice contingent creditors
Legislation: Corporations Act 2001 (Cth) ss 411, 553B Court Order Enforcement Act, RSBC 1996, c 78 Foreign Acquisitions and Takeovers Act 1975 (Cth)
Cases cited: Amcor Limited, in the matter of Amcor Limited (No 2) [2019] FCA 842 Atlassian Corporation Pty Limited, in the matter of Atlassian Corporation Pty Limited [2013] FCA 1451; [2014] FCA 60 Attorney-General for the Commonwealth of Australia v Alinta Limited [2008] HCA 2; (2008) 233 CLR 542 Australian Securities and Investments Commission v AGM Markets Pty Ltd (in liquidation) (No 4) [2020] FCA 1499 Australian Securities and Investments Commission v National Australia Bank Limited [2020] FCA 149 Australian Securities and Investments Commission v Westpac Banking Corporation (No 3) [2018] FCA 1701 Capilano Honey Limited, in the matter of Capilano Honey Limited [2018] FCA 1568; (2018) 131 ACSR 9 Commonwealth of Australia in the matter of Leahy Petroleum – Retail Pty Ltd (subject to a deed of company arrangement v Leahy Petroleum – Retail Pty Ltd (subject to a deed of company arrangement) [2005] FCA 1422; (2005) 55 ACSR 353 CSR Limited, in the matter of CSR Limited [2010] FCAFC 34; (2010) 183 FCR 358 GetSwift Limited, in the matter of GetSwift Limited [2020] FCA 1382 Heartware Limited, in the matter of Heartware Limited [2008] FCA 1997 In the matter of Stork ICM Australia Pty Ltd [2006] FCA 1849; (2007) 25 ACLC 208 Marengo Mining Ltd, in the matter of Marengo Mining Ltd [2012] FCA 1220 News Corporation Ltd [2004] FCA 1480 Peplin Limited [2007] FCA 1387; [2007] FCA 1558 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 In the matter of Centro Properties Limited and CPT Manager Limited in its capacity as responsible entity of Centro Property Trust [2011] NSWSC 1465; (2011) 86 ACSR 584 Re Matine Limited (1998) 28 ACSR 268 Re Sylvania Resources Ltd [2009] FCA 955; (2009) 179 FCR 306 Sundance Energy Australia Limited, in the matter of Sundance Energy Australia Limited [2019] FCA 1944 Unilife Medical Solutions Limited, in the matter of Unilife Medical Solutions Limited (No 2) [2010] FCA 12 Webb v GetSwift Limited (No 6) [2020] FCA 1292
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