United Malt Group Limited, in the matter of United Malt Group Limited [2023] FCA 1071

Federal Court of Australia

United Malt Group Limited, in the matter of United Malt Group Limited [2023] FCA 1071 File number: NSD 787 of 2023

Judgment of: YATES J

Date of judgment: 7 September 2023

Date of publication of reasons: 11 September 2023

Catchwords: CORPORATIONS – scheme of arrangement – first court hearing – application for order under s 411(1) of the Corporations Act 2001 (Cth) to convene meeting of members

Legislation: Corporations Act 2001 (Cth) ss 411, 412 Federal Court (Corporations) Rules 2000 (Cth) r 3.2(b)

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Number of paragraphs: 34

Date of hearing: 7 September 2023

Counsel for the Plaintiff: Mr J Williams SC and Ms B Ng

Solicitor for the Plaintiff: Gilbert + Tobin

Counsel for Malteries Soufflet SAS: Ms T Wong SC

Solicitor for Malteries Soufflet SAS: Allens

ORDERS NSD 787 of 2023 IN THE MATTER OF UNITED MALT GROUP LIMITED BETWEEN: UNITED MALT GROUP LIMITED (ACN 140 174 189) Plaintiff

order made by: YATES J DATE OF ORDER: 7 SEPTEMBER 2023

THE COURT ORDERS THAT:

1. Pursuant to s 411(1) of the Corporations Act 2001 (Cth) (Act), the plaintiff convene and hold a meeting of the ordinary shareholders of the plaintiff (UMG Shareholders) (Scheme Meeting) to consider and, if thought fit, to approve (with or without modification) the scheme of arrangement (Scheme) proposed to be made between the plaintiff and UMG Shareholders, the terms of which are set out in the document at Attachment B to the document comprising Exhibit 1 in the proceeding (Scheme Booklet). 2. The Scheme Booklet substantially in the form set out in Exhibit 1 be approved for distribution to UMG Shareholders, with distribution to occur in accordance with Order 3. 3. The plaintiff provide the Scheme Booklet to UMG Shareholders by sending on or before 12 September 2023: (a) in the case of UMG Shareholders who have elected to receive shareholder communications electronically (Email Recipients), an email which includes access by an embedded link to the following: (i) an electronic copy of the Scheme Booklet; and (ii) an online portal or website that is accessible by Email Recipients and which enables Email Recipients to lodge their proxy (including voting instructions, where applicable) for the Scheme Meeting; and (b) in the case of UMG Shareholders who have elected to receive hard copy shareholder communications (Electing Postal Recipients) and whose registered address is in Australia, the following documents by pre-paid ordinary post addressed to the relevant addresses recorded in the plaintiff's register: (i) a printed copy of the Scheme Booklet; (ii) a personalised Proxy Form; and (iii) a reply paid envelope for the return of the Proxy Form; (c) in the case of UMG Shareholders who have not specifically elected to receive electronic or hard copy communications (Non-Electing Postal Recipients) and whose registered address is in Australia, the following documents by pre-paid post addressed to the relevant addresses recorded in the plaintiff's register: (i) a letter in respect of the Scheme Meeting, which contains the address of a website which enables Non-Electing Postal Recipients to access a copy of the Scheme Booklet (Non-Electing Postal Shareholder Letter); (ii) a personalised Proxy Form; and (iii) a reply paid envelope for the return of the Proxy Form; (d) in the case of Electing Postal Recipients whose registered address is outside Australia, the following documents by pre-paid airmail post addressed to the relevant addresses recorded in the plaintiff's register: (i) a printed copy of the Scheme Booklet; (ii) a personalised Proxy Form; and (iii) a self-addressed envelope for the return of the Proxy Form; and (e) in the case of Non-Electing Postal Recipients whose registered address is outside Australia, the following documents by pre-paid airmail post addressed to the relevant addresses recorded in the plaintiff's register: (i) a Non-Electing Postal Shareholder Letter; (ii) a personalised Proxy Form; and (iii) a self-addressed envelope for the return of the Proxy Form. 4. If the plaintiff receives (through its share register provider, Link Market Services Limited) a "bounce back" notification in relation to the notification to an Email Recipient that the email was not delivered to the nominated email address of the Email Recipient, the plaintiff send to those Email Recipients the documents despatched to the Non-Electing Postal Recipients as described at Order 3(c) or Order 3(e) (as applicable) above. 5. The plaintiff cause a copy of the Scheme Booklet to be provided to any UMG Shareholder upon request before the date of the Scheme Meeting. 6. Subject to these orders, the Scheme Meeting be convened, held and conducted in accordance with the provisions of: (a) Part 2G.2 of the Act (save for any applicable replaceable rule) that apply to a meeting of the plaintiff's members; and (b) the plaintiff's Constitution that apply in relation to meetings of members and that are not inconsistent with Part 2G.2 of the Act. 7. The Scheme Meeting be held as a hybrid meeting and conducted simultaneously on Thursday, 12 October 2023 commencing at 10:00am (Sydney time) with the physical venue of the Scheme Meeting at Warrane Theatre, Level 1, Museum of Sydney, Corner of Phillip Street and Bridge Streets, Sydney NSW 2000 and via an online platform that allows for remote participation as set out in the Notice of Scheme Meeting which is Attachment D to the Scheme Booklet. 8. The UMG Shareholders who are entitled to attend, take part in, and vote at the Scheme Meeting are those UMG Shareholders who are registered in the plaintiff's share register as ordinary shareholders of the plaintiff as at 10.00 am (Sydney time) on 10 October 2023. 9. Subject to Order 8, UMG Shareholders may vote at the Scheme Meeting by attending in person or by proxy, attorney or corporate representative (if applicable). 10. Graham Bradley, or failing him, Mark Palmquist, be the chairperson of the Scheme Meeting. 11. The chairperson of the Scheme Meeting shall have the power to adjourn the Scheme Meeting to such time, date and place as he considers appropriate. 12. The plaintiff may provide access to the Scheme Meeting for such other persons as it thinks fit. 13. Voting on the resolution to approve the Scheme be conducted by way of a poll. 14. A Proxy Form in respect of the Scheme Meeting be valid and effective if, and only if, it is completed and received in accordance with the instructions set out in the Scheme Booklet by 10.00 am (Sydney time) on Tuesday, 10 October 2023. 15. Pursuant to r 1.3 of the Federal Court (Corporations) Rules 2000 (Cth) (Rules), compliance with the following requirements of the Rules be dispensed with: (a) r 2.4(1), to the extent that rule requires the affidavit filed with the Originating Process to state the facts in support of the process; and (b) r 2.15. 16. The plaintiff publish in The Australian newspaper once on or before 6 October 2023 an advertisement substantially in the form of Annexure A to these Orders, and the plaintiff otherwise be relieved from compliance with r 3.4 and Form 6 of the Rules to the extent necessary. 17. The further hearing of the Originating Process in respect of the plaintiff's application pursuant to s 411(4), and if necessary s 411(6), of the Act for approval of the Scheme, be adjourned to 10.15 am (Sydney time) on 16 October 2023. 18. The plaintiff be granted liberty to apply. 19. These orders be entered forthwith. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.