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[2005] FCA 806
Federal Court of Australia
2005-06-17
Gyles J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an application pursuant to Pt 9 of the Life Insurance Act 1995 (Cth) (the Act) seeking confirmation of a scheme whereby the Australian life insurance business of ANZ Life Assurance Company Limited (ANZ) is transferred to ING Life Limited (ING). 2 Section 190, so far as is relevant, provides: '(1) No part of the life insurance business of a life company may be:
(b) amalgamated with the business of another life company;
(a) the terms of the agreement or deed under which the proposed transfer or amalgamation is to be carried out; and
(b) particulars of any other arrangements necessary to give effect to the scheme.' 3 Section 191 deals with the steps to be taken before application for confirmation and it is supplemented by requirements in the Life Insurance Regulations 1995 (Cth) (the Regulations). Broadly speaking, they deal with giving of notice of the scheme to affected policy owners and the Australian Prudential and Regulatory Authority (APRA). On 3 May 2005 I made interlocutory orders including granting relief from some of the obligations on certain terms (ANZ Life Assurance Company Limited and ING Life Limited [2005] FCA 596). I am satisfied that all of the requirements of the Act and Regulations (including those relating to the application imposed by s 193(2)) prior to and in relation to the making of the application have been complied with. 4 The issue is whether the scheme should be confirmed with or without modification. The Court has an unfettered discretion pursuant to s 194. Confirmation is no formality. The effect of confirmation is set out in s 195 which provides: 'When a scheme is confirmed:
(b) it has effect in spite of anything in the constitution of any company affected by the scheme; and
(c) the company on whose application the scheme was confirmed must cause a copy of the scheme to be lodged at an office of ASIC in every State and Territory in which a company affected by the scheme carried on business.' 5 It should be noted that the statutory scheme does not provide for meetings of policyholders to approve the scheme or for the consent of policyholders to be otherwise obtained. It may be that in an appropriate case the Court could make confirmation conditional upon some such procedure. 6 There is now a reasonable number of previous cases in which schemes of this type have been confirmed. I need not refer to what has been said about the applicable principles in particular circumstances. It is clear that the primary matter for consideration is the interests of both sets of policyholders. The interests of the policyholders of ANZ are most directly affected as there is, in effect, a compulsory novation of contract. In most cases the terms of the contract remain the same, although there are variations in relation to a few types of contract. However, the policyholders of ING are also potentially affected, as that company is taking on the liabilities associated with the new transferred policyholders. 7 I am satisfied that the interests of neither set of policyholders would be adversely affected by confirmation of the scheme. In coming to that view I have been much assisted by the comprehensive submissions of counsel that no doubt incorporate the preparation of his instructing solicitors. I will not burden these reasons by repeating all of those submissions. Nor will I reproduce the detail of the scheme itself. I was invited to, and did, give particular consideration to the following: (1) The general provisions of the Act designed to protect the interests of policyholders quite apart from the provisions of Pt 9.
(2) The manner in which the scheme is effected, in particular, the means by which the backing of each type of policy by the statutory fund is not affected in practice. I should add in this connection that I was satisfied that the changes to the contractual terms in the limited classes of policy to which I have referred would not be to the disadvantage of the affected policyholders.
(3) The joint actuarial report by the Appointed Actuary of ANZ and the Appointed Actuary of ING, particularly taking into account their respective statutory responsibilities.
(4) The actuarial report prepared by Tillinghast Towers Perrin as independent actuaries.
(5) The role played by APRA pursuant to the Act generally and in relation to Pt 9 in particular. APRA has appeared in the proceeding and has no objection to confirmation of the scheme.
I also note that no affected policyholder and no other person has appeared to oppose confirmation. 8 Orders as asked will be made. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.
Solicitors for the Applicants: Ebsworth & Ebsworth
Solicitor for APRA: D Boyce of Australian Government Solicitor