New South Wales Supreme Court CITATION : Macquarie Private Capital A Limited [2008] NSWSC 535 HEARING DATE(S) : 08/04/08, 09/04/08, 27/05/08 JUDGMENT DATE : 27 May 2008 JURISDICTION : Equity Division Corporations List JUDGMENT OF : Barrett J EX TEMPORE JUDGMENT DATE : 27 May 2008 DECISION : Schemes approved and judicial advice given CATCHWORDS : CORPORATIONS - schemes of arrangement - application for court's approval - where statement by ASIC under s 411(17) produced - where price set by formula - final price fixed and notified almost one month before meetings LEGISLATION CITED : Corporations Act 2001 (Cth). ss 253E, 411(4)(a)(ii) and (b), 411(17)(a) and (b) Trustee Act 1925, s 63 CATEGORY : Principal judgment CASES CITED : Macquarie Private Capital A Ltd [2008] NSWSC 323 Macquarie Private Capital A Limited - First Plaintiff PARTIES : Macquarie Private Capital B Limited - Second Plaintiff Macquarie Private Capital Management Limited - Third Plaintiff FILE NUMBER(S) : SC 2201/08 COUNSEL : Mr M B Oakes SC - Plaintiffs Mr F Gleeson SC - BSPEL Australia Ltd and Bear Stearns Private Equity Ltd by leave SOLICITORS : Minter Ellison - Plaintiffs Jones Day - BSPEL Australia Ltd and Bear Stearns Private Equity Ltd by leave IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST BARRETT J TUESDAY 27 MAY 2008 2201/08 - MACQUARIE PRIVATE CAPITAL A LIMITED & 2 ORS JUDGMENT 1 Before the court are applications by two companies for approval of members' schemes of arrangement under s 411(4)(b) of the Corporations Act 2001 (Cth) and an application by the responsible entity of a managed investment scheme for further judicial advice under s 63 of the Trustee Act 1925. 2 As described in my judgment of 9 April 2008 (Macquarie Private Capital A Ltd [2008] NSWSC 323), shares in the two companies and units of the managed investment scheme together make up a single tradable commodity in the form of a stapled security. Aspects of the overall proposal were referred to in that earlier judgment. 3 Upon the application for approval of the scheme and further judicial advice, all relevant matters have been proved to the satisfaction of the court. In particular, it has been shown that the voting majorities in respect of the schemes required by s 411(4)(a)(ii) were very comfortably achieved, as was the passing of the special resolution of the members of the managed investment scheme. 4 It may be noted, in the latter connection, that the holder of the securities mentioned at paragraphs [7] to [11] of the earlier judgment did not implement its stated intention of voting, with the result that the foreshadowed question under s 253E did not arise. 5 There has been produced in respect of the schemes a statement in writing by Australian Securities and Investments Commission under s 411(17)(b). Production of that statement to the court means that the court is relieved of the task of forming an opinion in terms of s 411(17)(a) on whether the scheme has been proposed for the purpose of enabling any person to avoid the operation of any of the provisions of Chapter 6. 6 The only matter to which I wish to make specific reference is that foreshadowed by paragraph [12] of the earlier judgment. Reference was made there to the circumstances that, in terms of the scheme documents, the consideration was variable, in that it was a stated cash sum, subject to adjustment in accordance with a fixed formula. 7 In the events that happened, the adjusted sum became crystallised within quite a short time after the notices of meeting and related documents, including the scheme documents, had been despatched to security holders. Ms Bailey's affidavit establishes that the notices of meeting and other documents to which I have referred were despatched on 17 April 2008. Ms Bailey also deposes to having arranged and supervised preparation and despatch of a supplementary letter notifying the final fixing of the cash sum. She deposes that those letters were despatched on 21 April 2008, that is, only four days after the notices of meeting had been sent. The meetings were convened and proceeded to business on 19 May 2008. 8 It is thus clear that there was a period of just a few days short of a month between the posting to members of information about the fixing of the price and the time at which they voted. That time must be considered sufficient to have enabled adequately informed and unpressured decision making to take place by reference to the finally quantified sum. This aspect does not represent any reason why the court should withhold the approval now sought. Orders approving the schemes of arrangement will be made and the further judicial advice will be given. 9 I make the orders in the short minutes of order which I initial and date. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.