Barrick (Lawlers) Pty Ltd v Barrick Mining Company

Judgment (3 paragraphs)

[1]

Pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) (Act), the schemes of arrangement between each plaintiff and the defendant (the Schemes), in the form set out in Annexure DDK to the affidavit of Daniel David Kirk sworn 2 February 2016, be approved.
Pursuant to s 411(12) of the Act, each plaintiff be exempted from compliance with the requirements of s 411(11) of the Act.
Pursuant to s 413(1) of the Act (and using the definitions in the Schemes), as from the Effective Time, each of the following transactions will occur, in relation to each Scheme, in the order set out below: (a) Lawlers Scheme (i) first, all Assets of the first plaintiff (Barrick (Lawlers) Pty Ltd) will be transferred to and vested in the Transferee Company without the need for any further act or deed; (ii) secondly, all Liabilities of the first plaintiff will be transferred to and become Liabilities of the Transferee Company without the need for any further act or deed; (iii) thirdly, any legal proceedings pending by or against the first plaintiff will be continued by or against the Transferee Company without the need for any further act or deed, other than an amendment of the record of the relevant court or tribunal; (iv) fourthly, the first plaintiff will be deregistered by ASIC without winding up pursuant to s 413(1)(d) of the Act; (b) Plutonic Scheme (i) first, all Assets of the second plaintiff (Barrick (Plutonic) Pty Ltd) other than the Barrick (Plutonic) Excluded Assets will be transferred to and vested in the Transferee Company without the need for any further act or deed; (ii) secondly, all Liabilities of the second plaintiff other than the Barrick (Plutonic) Excluded Liabilities will be transferred to and become Liabilities of the Transferee Company without the need for any further act or deed; (iii) thirdly, any legal proceedings pending by or against the second plaintiff will be continued by or against the Transferee Company without the need for any further act or deed, other than an amendment of the record of the relevant court or tribunal; (c) MS Scheme (i) first, all Assets of the third plaintiff (Barrick Mining Services Pty Ltd) will be transferred to and vested in the Transferee Company without the need for any further act or deed; (ii) secondly, all Liabilities of the third plaintiff will be transferred to and become Liabilities of the Transferee Company without the need for any further act or deed; (iii) thirdly, any legal proceedings pending by or against the third plaintiff will be continued by or against the Transferee Company without the need for any further act or deed, other than an amendment of the record of the relevant court or tribunal; (iv) fourthly, the third plaintiff will be deregistered by ASIC without winding up pursuant to s 413(1)(d) of the Act; (d) Darlot Scheme (i) first, all Assets of the fourth plaintiff (Barrick (Darlot) Pty Ltd) other than the Barrick (Darlot) Excluded Assets will be transferred to and vested in the Transferee Company without the need for any further act or deed; (ii) secondly, all Liabilities of the fourth plaintiff other than the Barrick (Darlot) Excluded Liabilities will be transferred to and become Liabilities of the Transferee Company without the need for any further act or deed; (iii) thirdly, any legal proceedings pending by or against the fourth plaintiff will be continued by or against the Transferee Company without the need for any further act or deed, other than an amendment of the record of the relevant court or tribunal.

BARKER J: 1 On 5 February 2016, the Court made orders approving schemes of arrangement (Schemes) between each of the plaintiffs and its member under s 411(4)(b) of the Corporations Act 2001 (Cth), exempting compliance with the requirements of s 411(11), and consequential and related orders under s 413. 2 These are, briefly stated, the reasons for the making of those orders. 3 The Court made the orders primarily on the basis of the plaintiffs' outline of submissions dated 4 February 2016, signed by counsel for the plaintiffs, which were received at the hearing and marked "MF1". 4 Having regard to those submissions, the affidavit material upon which the Court relied in making orders at the first hearing on 24 December 2015 (as to which, see: Barrick (Lawlers) Pty Ltd v Barrick Mining Company (Australia) Pty Ltd, in the matter of Barrick (Lawlers) Pty Ltd [2015] FCA 1510), and the further affidavit material of Daniel David Kirk, Teressa Estelle Trezise, Eliza Jane Egan and Alison Jane Robertson, the Court was satisfied that there had been compliance with the procedural requirements governing the appeal of the Schemes under the Act. 5 In doing so, the Court noted evidence that the Australian Securities and Investments Commission (ASIC) had provided a "no objection" letter on 5 February 2016. 6 The Court was further satisfied that there was full and frank disclosure of matters that should be brought to the Court's attention. This included submissions concerning the potential for so-called "long-tail liabilities" and their interaction with the schemes of arrangement in this case. In that regard, counsel brought to the attention of the Court, in addition to those authorities cited in his submissions, the authority of Centro Properties Ltd and Another v PriceWaterhouseCoopers (2011) 86 ACSR 584 at [105]-[106]; [2011] NSWSC 1465. 7 In this case, any liability that the plaintiffs might have in respect of six workers' compensation claims that have been notified to the third plaintiff will be assumed by the transferee company. In those circumstances, the Court considered that no issue of concern regarding "long-tail liabilities" arose. 8 Whether the Schemes involved a "reconstruction" or an "amalgamation" or both was addressed in the submissions of counsel. The Court was satisfied that, regardless of whether they involved reconstructions or amalgamations or both, they may be approved. The Court accepted the particular submission made by counsel that while perhaps not substantial, there were nonetheless relevant undertakings in the case of each plaintiff company being transferred. 9 It is further noted that the second and fourth plaintiffs will be deregistered under the Act at a later date, whereas the other two plaintiff companies will be subject to orders that result in their deregistration. 10 In summary, the Court accepted the plaintiffs' submissions that: (1) the Court's directions of 24 December 2015 and the statutory requirements had been complied with, including the absence of an objection from ASIC; (2) the Schemes were fair in a general sense, and there was no reason for the Court to exercise its discretion against approval of the Schemes; (3) no creditors appeared to raise any issues unforeseen in the terms of the Schemes proposed and the orders under s 413, which were intended to involve a transfer of assets and liabilities (other than excluded assets and excluded liabilities) that did not adversely affect creditors' rights. 11 For those reasons, the Court was satisfied that it should exercise its discretion to approve the Schemes and make the other consequential orders proposed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

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