Australian Co-operative Foods Ltd [2008] NSWSC 1221

New South Wales Supreme Court

CITATION : Australian Co-operative Foods Ltd [2008] NSWSC 1221

HEARING DATE(S) : 08/10/08, 18/11/08

JUDGMENT DATE : 18 November 2008

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Barrett J

EX TEMPORE JUDGMENT DATE : 18 November 2008

DECISION : Arrangement approved subject to amendment.

CATCHWORDS : CORPORATIONS - bodies corporate other than companies and associations - co-operative registered under Co-operatives Act 1992 - application under s 344 for order approving arrangement with members - arrangement agreed to by special resolution passed by special postal ballot - all shares in co-operative to be transferred to acquiring party pursuant to arrangement - inactive members' shares affected even though they have no voting rights - whether "plebiscite" of inactive members desirable - whether arrangement proposed for avoidance purpose referred to in s 353 - function of court under that section discussed - power under s 344(3) to approve subject to amendment - whether amendment should be accepted - CORPORATIONS - companies registered under Corporations Act 2001 (Cth) - proposed registration of co-operative as such a company - continuity of existence of legal entity - continuity of existence of shares and interests in shares - CORPORATIONS - regulation and control of takeovers - acquisitions beyond 20% takeover threshold - where party has "relevant interest" in 100% of shares before body becomes a Corporations Act company - whether subsequent transfer of 100% of shares to that party involves breach of 20% threshold

Companies Act 1961, s 181 Companies Act 1981 (Cth), s 318 LEGISLATION CITED : Co-operatives Act 1992, ss 29, 188, 190, 289, 298, 316, 317, 318, 321, 344, 353 Corporate Law Economic Reform Program Act 1999 (Cth) Corporations Act 2001 (Cth), Chapter 6, Division 2 Part 11, Division 1 Part 13, Division 3 Part 13, ss 9, 119, 411, 601BA, 601BC, 601BD, 601BN, 606, 608, 610