Australia and New Zealand Banking Group Limited, in the matter of Australia and New Zealand Banking Group Limited (No 2) [2022] FCA 1547

Australia and New Zealand Banking Group Limited, in the matter of Australia and New Zealand Banking Group Limited (No 2) [2022] FCA 1547 - FCA 2022 case summary — Zoe

[6]

Dispatch of Scheme materials 11 An office copy of the convening orders was lodged with ASIC on 26 October 2022, as required by r 3.5(b) of the Rules. 12 The convening orders required ANZBGL to convene the Scheme Meeting by providing various documents to its shareholders on or before 16 November 2022. The principal document to be provided to Scheme Shareholders was the Scheme Booklet, defined in the convening orders as a document substantially in the form of the document which is Annexure "BCF-8" to the affidavit of Baden Charles Furphy affirmed on 25 October 2022 (Third Furphy Affidavit). The Scheme Booklet was required to annex the Notice of Scheme Meeting (amongst other annexures). 13 The Scheme Booklet was registered by ASIC on 27 October 2022 prior to being sent to Scheme Shareholders in accordance with s 412(6) of the Act. The registered Scheme Booklet was in the same form as the scheme booklet at Annexure BCF-8 to the Third Furphy Affidavit, save for minor corrections. 14 A copy of the registered Scheme Booklet, as amended, was subsequently dispatched to Scheme Shareholders. In terms of method of dispatch, the convening orders required that: (a) each ANZBGL shareholder who had elected to be sent documents by ANZBGL in electronic form (Email Shareholder) must be sent an email which includes hyperlinks to an electronic copy of the Scheme Booklet, a personalised electronic proxy form and an online portal or website to view, listen to and participate in the Scheme Meeting online; (b) each ANZBGL shareholder who had elected to receive documents from ANZBGL in physical form (Hardcopy Shareholder) must be sent (i) a physical hard copy of the Scheme Booklet, (ii) a hard copy proxy form and a reply-paid envelope; and (iii) a letter setting out URL addresses for access to an electronic copy of the Scheme Booklet, a personalised electronic proxy form and an online portal or website to view, listen to and participate in the Scheme Meeting online; and (c) each ANZBGL shareholder who was not an Email Shareholder or Hardcopy Shareholder (Postal Shareholder) must be sent a hard-copy letter setting out URL addresses from which the Postal Shareholder could download an electronic copy of the Scheme Booklet, access an online portal or website to view, listen to and participate in the Scheme Meeting online and to lodge online any proxy or direct voting instructions, and a proxy form and reply-paid envelope. 15 Based on the evidence adduced at the approval hearing, I am satisfied that those requirements were complied with.

[9]

Conduct of the Scheme Meeting and voting results 24 In accordance with order 1(b) of the convening orders, the Scheme Meeting commenced at approximately 3:05 pm Melbourne time / 2:35 pm Adelaide time on 15 December 2022 after the conclusion of ANZBGL's Annual General Meeting (AGM). In accordance with order 1(c), it was conducted in-person at the Adelaide Convention Centre, North Terrace, Adelaide and electronically via an online platform. 25 In accordance with order 9 of the convening orders, the Scheme Meeting was chaired by Paul O'Sullivan. 26 In accordance with order 7 of the convening orders, voting on the resolution to agree to the Scheme was conducted by way of a poll. 27 In accordance with s 411(4)(a)(ii) of the Act, the Scheme Resolution was passed by a majority in number of members present and voting (either in person or by proxy) at the Scheme Meeting, and by 75% of the votes cast on the Scheme Resolution. Specifically, the evidence establishes that the Scheme Resolution was passed by 99.17% of the votes cast and by 90.62% of shareholders present and voting (in each case, in person or by proxy). 28 The number of shares voted at the Scheme Meeting as a percentage of ANZBGL's total issued share capital was approximately 51.11%, and the number of shareholders who voted as a percentage of the total number of ANZBGL's shareholders was approximately 1.50%. ANZBGL submitted, and I accept, that although the level of shareholder turnout was low, this does not give rise to any concern that shareholders were deterred from attending the Scheme Meeting or did not have notice of it. Relevantly, ANZBGL gave evidence that the number of ANZBGL shareholders who voted at the four most recent AGMs of ANZBGL as a percentage of the total number of ANZBGL's shareholders was as follows: (a) 2019 AGM - approximately 3.25%; (b) 2020 AGM - approximately 1.07%; (c) 2021 AGM - approximately 1.21%; and (d) 2022 AGM - approximately 1.94%. 29 I accept that the low voter turnout at the Scheme Meeting does not give rise to any concern that shareholders were deterred from attending or did not have notice of the Scheme Meeting. As Farrell J observed in Re TriAusMin Ltd (No 2) [2014] FCA 833, while "[l]ow shareholder turnout may be an indication that some procedural irregularity occurred", it is "inappropriate to assume (in the absence of complaint) that shareholders who did not vote either did not have notice of the meeting or were silent in protest of the scheme" (at [10]). In particular, I accept that the matters considered relevant to the matter of low voter turnout in Re Amcor (No 2) [2019] FCA 842 at [19] are apposite to the present circumstances: (a) there is nothing to suggest that there was any irregularity in the manner of dispatch of material to the shareholders; (b) shareholders were provided with notice of the Scheme Meeting; (c) there is no evidence of any issue that would have deterred shareholders from voting at or from attending the Scheme Meeting; and (d) shareholders who did vote demonstrated overwhelming support for the Scheme.

[17]

US Securities Law exemption 44 ANZBGL Shareholders with a registered address in the United States will be able to participate in the Scheme and, if the Scheme becomes effective, ANZ NOHC will be required to issue ANZ NOHC Shares (as defined in the Scheme) to those shareholders. 45 Pursuant to the United States Securities Act of 1933 (US Securities Act), unless an exemption applies, all securities offered in the United States must satisfy the registration requirements of the US Securities Act and be registered with the US Securities Exchange Commission. This includes securities issued as consideration in an internal corporate re-organisation. 46 As I addressed at [81] to [86] of ANZBGL (No 1), ANZBGL and ANZ NOHC will not seek registration under the US Securities Act of the ANZ NOHC Shares that are to be issued pursuant to the Scheme, but intend to rely upon the exemption to registration contained in s 3(a)(10) of that Act if the Scheme is approved. That exemption provides as follows: Except as hereinafter expressly provided, the provisions of this title shall not apply to any of the following classes of securities: [….]….. any security which is issued in exchange for one or more bona fide outstanding securities, claims or property interests, or partly in such exchange and partly for cash, where the terms and conditions of such issuance and exchange are approved, after a hearing upon the fairness of such terms and conditions at which all persons to whom it is proposed to issue securities in such exchange shall have the right to appear, by any court or by any official or agency of the United States, or by any State or Territorial banking or insurance commission or other governmental authority expressly authorized by law to grant such approval. 47 At the convening hearing, I was informed by ANZBGL that before an issuer can rely on the s 3(a)(1) exemption in the US Securities Act, a number of conditions must be satisfied. One of those conditions is that the relevant court must be advised, before any hearing at which the scheme is approved, that the issuer will rely on the s 3(a)(10) exemption based on that court's approval in the event that the scheme is in fact approved. That was done at the first hearing. 48 In its submissions filed in advance of the approval hearing, ANZBGL also requested that I record the following matters for the purposes of the exemption, which I do: (a) the Court has been informed of the securities to be offered as scheme consideration, and an independent expert report has concluded that the proposal is in the best interests of shareholders (see ANZBGL (No 1) at [32]); (b) at both the convening hearing and the approval hearing, the Court has considered the fairness of the terms of the proposed Scheme; and (c) both the convening hearing and the approval hearing were open to the public to attend, any person to whom ANZ NOHC Shares are to be issued had standing to appear, and notice of the time and date of the approval hearing was advertised in a daily newspaper circulating throughout the country.

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