In the matter of RBS Group (Australia) Pty Ltd – RBS Group [2012] NSWSC 43

Supreme Court New South Wales

Medium Neutral Citation: In the matter of RBS Group (Australia) Pty Ltd – RBS Group [2012] NSWSC 43 Hearing dates: 2 February 2012 Date of orders: 2 February 2012 Decision date: 02 February 2012 Jurisdiction: Equity Before: Ward J Decision: 1. Pursuant to section 411(4)(b) and section 411(6) of the Corporations Act 2001 (Cth) ("Act"), the scheme of arrangement between RBS Group (Australia) Pty Ltd ("RBSGA") and its member, having been duly agreed to in accordance with subsection 411(4)(a)(ii) of the Act at the meeting of the member of RBSGA in the form set out in the explanatory statement sent to the member of RBSGA, be approved, subject to the following alterations, namely: (a) in the definition of "RBSGA Existing Funding" the deletion of the words "the advance of $240 million from RBS Equities (Australia) Limited ("RBSGA Equities") to RBSGA" and the addition in lieu thereof of the words "all loans advanced to RBSGA by related bodies corporate of RBSGA"; and (b) in the definition of "RBSGA Hedging Arrangements", the addition of the words "(Australia) Limited ("RBS Equities") after the first occurrence of the words "RBS Equities", so that the schemE of arrangement is in the form set out in Annexure A to these orders ("Scheme"). 2. Pursuant to section 411(12) of the Act, RBSGA be exempted from the requirements of section 411(11) of the Act. 3. Pursuant to section 413(1) of the Act, as from the Implementation Date (as defined in the Scheme): (a) that part of the undertaking and property of RBSGA identified in Part 1 of Annexure "B" to these orders be transferred to, and vested in, RBS Alternative Investments (Australia) Pty Ltd without further act or deed of any party; (b) that part of the liabilities of RBSGA identified in Part 2 of Annexure "B" to these orders be transferred to, and become the liabilities of, RBS Alternative Investments (Australia) Pty Ltd without further act or deed of any party; (c) all legal proceedings pending by or against RBSGA which pertain to the RBSGA's Warrants Business (as defined in Annexure "B" to these orders) be continued by or against RBS Alternative Investments (Australia) Pty Ltd (as the case may be) without any further act or deed, other than an amendment of the record of the relevant court or tribunal for which RBS Alternative Investments (Australia) Pty Ltd will be responsible; and (d) all rights of holders of the financial products issued by RBSGA and described to Annexure C to these orders pursuant to the deeds poll executed by The Royal Bank of Scotland N.V. ("RBS N.V.") identified in Annexure D to these orders ("RBS N.V. Guarantees") be extinguished and the RBS N.V. Guarantees cease to have effect, without further act or deed of any party. 4. Liberty be reserved to any party to apply for any consequential orders as may be considered necessary or desirable under section 413 of the Act in connection with the transaction to be effected pursuant to the orders above. Legislation Cited: Companies Act 1985 (UK), s 425 Corporations Act 2001 (Cth), ss 411, 413, Pt 5.1 Financial Services and Markets Act (UK), ss 111, 112 Supreme Court (Corporations) Rules 1999 Uniform Civil Procedure Rules 2005, r 7.6 Cases Cited: ASC v Marlborough Gold Mines Ltd (1993) 177 CLR 485 Basis Capital Funds Management Ltd v BT Portfolio Services [2008] NSWSC 555 Brooklands Selangor Holdings Ltd v Inland Revenue Commissioner [1970] 2 All ER 76 Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 FT Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Ply Ltd (1977) 3 ACLR 69 In Re AGL Gas Networks Ltd (2001) 37 ACSR 441 In Re NRMA Ltd (2000) 156 FLR 349 ING Funds Management Ltd v JP Morgan Nominees Australia Ltd [2009] NSWSC 59 John Alexander's Clubs Pty Limited v White City Tennis Club Limited (2010) 241 CLR 1 Permanent Trustee Co Ltd (2002) 43 ACSR 601 Re Adelaide Air Conditioning and Domestic Engineers Ltd (In Liq) [1972] 6 SASR 603 Re AGL Sydney Limited (1994) 13 ACSR 597 Re Crusader Ltd [1996] 1 Qd R 117 Re Investorinfo Ltd [2005] FCA 1848 Re Kalgoorlie Lake View Pty Ltd (2005) 56 ACSR 144 Re La Seda de Barcelona SA [2010] EWHC 1364 (Ch) Re Matine Ltd (1998) 28 ACSR 268 Re Norwich Union Linked Life Assurance Ltd [2004] EWHC 2802 (Ch) Re Professional Investment Holdings Limited (No 2) [2010] FCA 1336 Re Sonodyne International Ltd (1994) 15 ACSR 494 Re South Africa Supply and Coal Storage Co [1904] 2 Ch 268 Re T & N Ltd [2006] EWHC 1447 (Ch) Re: Hill Samuel Life Assurance (Unreported, 10 July 1995) SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 470 Stork ICM Australia Pty Ltd v Stork Food Systems Australia Pty Ltd (2007) 25 ACLC 208 Texts Cited: Goode, Principles of Corporate Insolvency Law (4th ed) Category: Principal judgment Parties: RBS Group (Australia) Pty Ltd (Plaintiff) RBS Alternative Investments (Australia) Pty Ltd (First Defendant) The Royal Bank of Scotland N.V. (Second Defendant) The Royal Bank of Scotland PLC (Third Defendant) Graeme Brant (Fourth Defendant) File Number(s): 2011/375890 Publication restriction: Nil