CANNPAL ANIMAL THERAPEUTICS LTD [2021] WASC 37 (17 February 2021)

1. CannPal is an animal health company focused on developing innovative and naturally derived plant‑based therapeutic products for pets targeting the endocannabinoid system. It is focused on the development of pharmaceutical and nutraceutical products for dogs, for commercialisation in various markets around the world, using compounds derived from the hemp and cannabis plant.[3]
2. As at 28 January 2021, CannPal had 93,125,000 fully paid ordinary shares (Shares) on issue. At this time, there were also 1,875,000 performance rights (Performance Rights), and 8,000,000 unlisted options (Options) on issue with varying expiry dates.[4]

1. AusCann is an Australian-based pharmaceutical company listed on the ASX.[5] It is focused on the development, production and distribution of cannabinoid‑based medicines, both domestically and internationally.[6]
2. If the proposed Scheme is implemented, all of CannPal's Shares will be acquired by AusCann and CannPal will become a wholly owned subsidiary of AusCann and delisted from the ASX.[7]

1. The purpose of the proposed Scheme between CannPal and AusCann is to create a combined entity with the financial resources and technical expertise to expand the commercialisation of both human and animal health products.[8]
2. If the Scheme is implemented, CannPal's shareholders will receive 1.3 fully paid ordinary AusCann shares for each CannPal Share as consideration for the acquisition of their Shares under the Scheme (Scheme Consideration).[9]
3. The Performance Rights and Options will be dealt with outside of the Scheme. In relation to the Performance Rights, prior to the Implementation Date, each Performance Right will automatically vest and convert into a new CannPal Share on a one for one basis and be included in the Scheme.[10]
4. In relation to the Options, the SID proposes that each optionholder enter into a deed to cancel their Options in return for the receipt of options in AusCann at a ratio of 1.3 AusCann options for every CannPal Option held,[11] consistent with the Scheme Consideration.

1. CannPal and AusCann relied on seven affidavits that were filed prior to the first hearing. These were:

(a) an affidavit of Matthew Adam Ireland filed 14 January 2021. Mr Ireland is a solicitor employed by Steinepreis Paganin, the Australian solicitors for CannPal. His affidavit gave an overview of the proposed Scheme and a brief outline of CannPal. Mr Ireland's affidavit annexed copies of the SID, the ASX announcement of the Scheme, the proposed Scheme, the draft Scheme booklet, the proposed Deed Poll, CannPal's Annual Report, and information about CannPal obtained from the Australian Securities and Investments Commission (ASIC).

(b) an affidavit of Layton Patrick Mills filed 28 January 2021. Mr Mills is the managing director of CannPal. Mr Mills confirmed a number of formal matters, outlined the proposed Scheme and attested to the verification process undertaken by CannPal in relation to the draft Scheme booklet. His affidavit annexed copies of, among other things, the presentation at the annual general meeting of CannPal on 20 November 2020, the ASX announcement of 8 January 2021, CannPal's Constitution, certificates of CannPal's registration, shareholder registers, and the letter sent to ASIC lodging the Scheme booklet.

(c) an affidavit of Geoff Starr filed 28 January 2021. Mr Starr is the Chairman of CannPal and is the proposed chairperson of the Scheme meeting. By his affidavit, Mr Starr consented to act as Chairperson of the Scheme meeting, and provided the necessary disclosures required by r 3.2 of the Supreme Court (Corporations) (WA) Rules 2004 (WA) (Corporations Rules).

(d) an affidavit of Robert Clifford filed 28 January 2021. Mr Clifford is a Non‑Executive Director of CannPal and is the proposed alternate chairperson for the Scheme meeting. By his affidavit, he consented to act as chairperson in the event that Mr Starr was unable to act and provided the necessary disclosures pursuant to r 3.2 of the Corporations Rules.

(e) an affidavit of Nicholas Leslie Woolf filed 28 January 2021. Mr Woolf is the chief executive officer of AusCann. His affidavit detailed the verification process undertaken by AusCann in relation to the information about AusCann in the Scheme booklet and confirmed the execution of a Deed Poll by AusCann. Annexed to the affidavit were the verification certificates, the executed Deed Poll, and a signed waiver of one of the conditions precedent.

(f) an affidavit of Kate Patricia Blechynden filed 28 January 2021. Ms Blechynden is a solicitor employed by Steinepreis Paganin. Ms Blechynden confirmed that the draft Scheme booklet was lodged with ASIC and that ASIC had been given notice of the first court hearing. The affidavit annexed correspondence between ASIC and Steinepreis Paganin, the amended Independent Expert Report and Scheme booklet, as well as the draft letter to be sent to CannPal shareholders for those who have not elected to receive communications electronically.

(g) a second affidavit of Ms Blechynden filed 29 January 2021. The affidavit annexed a letter from ASIC confirming that ASIC did not propose to appear at the first court hearing.

(h) a second affidavit of Mr Ireland filed 1 February 2021. Mr Ireland's affidavit annexed emails confirming the directors of CannPal had approved the amendments made to the Scheme booklet and the Independent Expert's Report.

1. CannPal and AusCann, through the execution of the SID, have committed to propose the Scheme.[12] The proposed Scheme contemplates that AusCann will acquire all of the fully paid ordinary Shares of CannPal and that shareholders will receive 1.3 AusCann shares for every CannPal Share held.[13] That is, the effect of the proposed Scheme is to make CannPal a wholly owned subsidiary of AusCann. CannPal will be subsequently delisted from the ASX.
2. Shareholders of CannPal who reside outside of Australia and New Zealand are considered to be Foreign Scheme Shareholders and will not receive the Scheme Consideration. The AusCann shares that would have been issued to the Foreign Scheme Shareholders will instead be issued to a sale agent and sold as soon as practicable, and in any event, not more than 15 business days after the implementation date of the Scheme. The net proceeds will be paid by CannPal to the Foreign Scheme Shareholders on a pro rata basis.[14]
3. As at 22 January 2021, there were four Foreign Scheme Shareholders holding 15,486 Shares, comprising less than 0.02% of the Shares on issue.
4. Both the Options and the Performance Rights are being dealt with outside the Scheme. The optionholders have entered into agreements with CannPal and AusCann to cancel their existing Options in exchange for the issue of 1.3 options to acquire an AusCann share for each CannPal Option held.[15] The terms of the Performance Rights provide that, subject to the court approving the Scheme at the second court hearing, each Performance Right will automatically vest and convert into a CannPal Share on a one for one basis[16] and will then become subject to the Scheme.
5. If the Scheme is implemented, CannPal will become a wholly owned subsidiary of AusCann and will be delisted from the ASX. The Scheme will not be effective unless and until a number of conditions precedent are satisfied or waived. The conditions precedent which are required to be satisfied are disclosed in the Scheme booklet.[17]
6. If the Scheme is approved by CannPal's shareholders and by the court at the second court hearing, on the implementation date, all existing Shares will be transferred to AusCann and AusCann will be entered in the share register as the holder of all CannPal Shares.[18] AusCann will provide the Scheme Consideration to shareholders in return for their Shares in CannPal.[19]
7. AusCann is obliged to provide the Scheme Consideration prior to the transfer of the Shares.[20] The obligations of AusCann under the Scheme are supported by a Deed Poll dated 21 January 2021 which has been executed by AusCann.[21]
8. The directors of CannPal unanimously recommend that shareholders vote in favour of the Scheme.[22]
9. An independent expert report (IER) has been prepared by KPMG Financial Advisory Services (Australia) Pty Ltd. The IER expresses the opinion that, in the absence of a superior proposal, the Scheme is fair and reasonable and in the best interests of the shareholders.[23] In reaching this conclusion, the IER determined that the range of the value of a Share was between $0.143 (low) and $0.176 (high) and the value of the Scheme Consideration was between $0.171 (low) and $0.175 (high). The basis for the valuation and the methodology used are set out in the IER. In reaching their conclusion, the IER determined that the Scheme Consideration is at the higher end of the range of values of Shares. Consideration of the advantages, disadvantages and other factors that are likely to impact shareholders are also set out in the IER.
10. I was provided with the draft Scheme booklet which was lodged with ASIC on 13 January 2021[24] and the various amendments that have been made to the document since then.[25]
11. The Scheme booklet contains the following sections:

(a) important information, including information about the directors' recommendation and the interests of Mr Mills (which I address below) and advice to shareholders to obtain independent advice;

(b) a listing of all important dates and times for the Scheme;

(c) an outline of the Scheme highlights, giving an overview of the Scheme and reasons to vote for or against the Scheme;

(d) a letter from the Chairman of CannPal, Geoff Starr, to shareholders;

(e) details of the Scheme meeting and information on how shareholders can vote;

(f) a table of 'frequently asked questions', which addresses all essential matters;

(g) key considerations for shareholders in relation to the Scheme and their vote;

(h) information on CannPal, AusCann and the combined group;

(j) a section on the Australian taxation implications for CannPal shareholders;

(l) a section on Scheme Consideration, including information relating to Foreign Scheme Shareholders;

(m) additional information, which included details of the relevant interests of CannPal's directors and the benefits they will obtain if the Scheme is approved.

1. The draft Scheme booklet included a number of important annexures which will form part of the final Scheme booklet. These include the IER, the proposed Scheme, the Deed Poll and the relevant notice of meeting.

1. Pursuant to s 411 of the Act, a scheme of arrangement can be used to re-organise a company in a manner which will be binding on its members, provided that:

(a) the arrangement is agreed by the requisite majorities as prescribed by s 411(4)(a) of the Act, namely 75% of shareholders by value and 50% by number; and

(b) the court approves the arrangement pursuant to s 411(4)(b) of the Act.

1. There are three stages to an application under s 411 of the Act. First, the court approves the convening of a scheme meeting and the draft explanatory statement to be sent to the scheme members. Second, the members vote on the proposed scheme at the scheme meeting. Third, assuming the first two stages have occurred, the court approves the proposed scheme.[26]
2. There are well‑established principles which apply to the first stage of proceedings. The court will order the convening of the scheme meeting and approve the dispatch of the scheme booklet if is satisfied that:[27]

(b) there is a compromise or arrangement within the meaning of s 411 of the Act;

(c) the proposed scheme booklet contains the prescribed information[28] and provides proper disclosure;[29]

(e) ASIC has had at least 14 days' notice of the proposed hearing date and a reasonable opportunity to examine the terms of the scheme and the scheme booklet and make submissions;[30]

(f) the procedural requirements of the Act and the Corporations Rules have been met;

(g) the scheme is of such a nature that, if it receives the necessary statutory majority at the scheme meeting, the court will be likely to approve it.

1. Any issue about classes of members is usually determined at the first hearing.[31] This is so that costs and court time are not wasted which would otherwise occur if this issue was left to the second hearing.[32]
2. The standard of review that is undertaken by the court at the first hearing is whether the proposed scheme is not inappropriate and is one that sensible business people might consider is of benefit to its members.[33] If the proposed arrangement is one that appears fit for consideration by a meeting of members and is a commercial proposition likely to gain the court's approval if passed by the necessary majority, leave should be given to convene the meeting.[34]

1. The formal matters that CannPal had to prove are satisfied.
2. CannPal is a company and, accordingly, is a pt 5.1 body. The proposed Scheme constitutes an 'arrangement'. This type of share acquisition scheme has been approved by courts as an arrangement on numerous occasions.
3. CannPal filed the affidavits required by r 3.2 of the Corporations Rules regarding the persons who have been nominated to be the chairperson and alternate chairperson for the Scheme meeting.[35]
4. By letter dated 29 January 2021, ASIC confirmed that it had been given 14 days' notice of the hearing and a reasonable opportunity to examine the terms of the Scheme and the draft explanatory statement or Scheme booklet.[36] ASIC also gave notice that it did not propose to appear at the first hearing to make submissions or intervene to oppose the Scheme.[37]
5. On the materials before me, there was nothing to suggest that the Scheme was not properly proposed. The constitution of CannPal does not prevent the Scheme.[38]
6. No class issue arose in relation to the Scheme. The treatment of the Foreign Scheme Shareholders is commonplace and is not class creating.[39] All CannPal shareholders are being treated equally and, as a result, constitute a single class.
7. There are a number of conditions precedent to the Scheme.[40] Both Mr Mills and Mr Woolf have deposed that they are not aware of any basis to believe that any condition precedent will not be satisfied or waived by the necessary time.[41]

1. I have read through the initial draft of the Scheme booklet (as provided to ASIC). I have also been provided with the correspondence between ASIC and CannPal's solicitors relating to ASIC's review of the draft Scheme booklet.[42] Clarification was sought by ASIC on the valuation of AusCann, which was addressed by the amendments made to the IER.
2. I was and am satisfied that there will be proper disclosure as to the effect of the proposed Scheme and the material considerations for shareholders of CannPal.
3. There is evidence before me as to the due diligence and verification process that was undertaken by both CannPal and AusCann.[43] On the basis of this evidence, I accept that:

(a) CannPal undertook a process of due diligence and verification to verify the accuracy of statements attributable to CannPal in the Scheme booklet;

(b) AusCann undertook a similar process to verify the statements attributable to it;

(c) appropriate steps have been taken to satisfy CannPal and AusCann that the Scheme booklet does not omit any material information.

1. The directors of CannPal have resolved to approve the Scheme booklet in its final form.[44]
2. Based on the checklist provided by counsel for CannPal,[45] I was satisfied that the Scheme booklet contained the prescribed information in accordance with s 412(1)(a)(ii) of the Act and sch 8 of the Corporations Regulations 2001 (Cth).
3. In written and oral submissions, CannPal's counsel drew my attention to some specific matters. I address each of these below.

1. The terms of the SID require CannPal to state that each director recommends that shareholders vote in favour of the Scheme resolution, in the absence of a Superior Proposal and provided that the Independent Expert's Report continued to confirm the Scheme is in the best interests of shareholders.[46]
2. Counsel drew my attention to the fact that Mr Mills, the managing director of CannPal, holds 7,765,179 Shares (or 8.34% of the total Shares on issue).[47] He also holds all of the Performance Rights.[48] If the Scheme is approved at the second court hearing, the Performance Rights will vest and he will be issued with 1,875,000 Shares for nil consideration.[49] In addition, if the Scheme is approved, Mr Mills will be appointed chief executive officer of AusCann and receive increased remuneration for this role.[50] These matters are prominently displayed in the Scheme booklet on the front page, at pages iii and iv, [2.4], the letter to shareholders and [6.2].
3. Mr Starr holds 200,000 Shares[51] and Mr Clifford holds 480,293 Shares.[52] If the Scheme is approved, each of the non‑executive directors of CannPal will be appointed as non-executive directors of AusCann. The fees proposed to be paid to the three non-executive directors are consistent with AusCann's existing policy.[53]
4. As I noted in Re Dreamscape Networks Ltd; Ex parte Dreamscape Networks Ltd, in a number of recent decisions, courts have considered the appropriateness of a director, who is to receive an additional financial benefit if the scheme is approved, making a recommendation to shareholders about voting in favour of the scheme.[54] It is not necessary for me to repeat what I said there. Those reasons for decision reflect my views on this matter.
5. For the following reasons, it was and is my view that it was not inappropriate for each of the directors to make a recommendation in respect of the Scheme.
6. First, in relation to the remuneration proposed to be paid by AusCann to each of the directors, if the Scheme is implemented the amounts are not out of the ordinary and are commercially not unreasonable. In relation to Mr Mills' Performance Rights, these rights arise as a result of the cancellation of performance rights which were granted before the SID was entered into. I accept that they were issued for a genuine and ordinary commercial rationale of incentivising his performance, and not to incentivise any recommendation in respect of the Scheme. Under the Scheme, Mr Mills will receive no benefit or special consideration for his Performance Rights. They will vest under the terms on which they were granted and will be treated equally with the other CannPal shareholders in the Scheme.
7. Second, prior to entry into the SID, Mr Mills gave notice to the other directors of his material personal interest in the proposed Scheme by reason of his Performance Rights.[55] The board of CannPal (in the absence of Mr Mills) considered the matter and resolved that Mr Mills' interests should not disqualify him from being present while the matter was being considered by directors or prevent him from voting on the matter.[56] Mr Mills and the other directors considered whether it was appropriate for him to give a recommendation in relation to the Scheme, were informed by their solicitors as to the competing views of the courts on this issue, and each formed a view that it was appropriate for them to give a recommendation.[57] As set out above at [49] ‑ [50], it is my view that Mr Mills' material personal interest, which arises because of his Performance Rights, should not prevent him from making a recommendation in relation to the Scheme.
8. Finally, and importantly, each of these matters are fully and prominently disclosed in the Scheme booklet.[58]

1. I was and am satisfied that the nature and terms of the proposed Scheme are such that the shareholders are adequately protected against the risk that they will not receive the Scheme consideration and have no capacity to sue AusCann to recover their shares or damages.
2. In that respect, I have had regard to the terms of the Scheme and the Deed Poll. Pursuant to these documents:

(a) AusCann must allot and issue to each eligible shareholder the Scheme Consideration by 12 midday on the Implementation Date;

(b) the transfer of CannPal Shares is subject to AusCann providing the Scheme Consideration for CannPal Shares;[59]

(c) beneficial title in CannPal Shares does not pass unless the Scheme Consideration has been issued in accordance with the Scheme;[60] and

(d) CannPal and each Scheme participant will have individual rights against AusCann in the event that AusCann fails to provide the Scheme Consideration.[61]

1. The arrangements under the terms of the proposed Scheme are supported by the Deed Poll. By the Deed Poll, AusCann covenants in favour of each CannPal shareholder that it will perform all actions attributed to it under the Scheme. There is also an acknowledgement that the Deed Poll may be relied on and enforced by any Scheme shareholder in accordance with its terms.[62] In my view, the shareholders are sufficiently identified within the Deed Poll to enable them to enforce the Deed Poll as against AusCann.

1. The SID contains the customary lock up devices in the form of 'no shop', 'no talk', 'no due diligence', 'notification obligations' and 'matching right' provisions.[63] The 'no talk' and 'no due diligence' provisions are subject to a fiduciary carve out.[64] In certain circumstances, a break fee of $150,000 is payable by CannPal to AusCann[65] and by AusCann to CannPal.[66]
2. In considering whether the exclusivity provisions impact on completion of the transaction and the duties of directors, the court has regard to:[67]

(a) the period of the exclusivity, which should be no more than a reasonable period and capable of precise ascertainment;

(b) whether the provisions are subject to an overriding obligation that the directors not breach their fiduciary duties or are otherwise unlawful; and

(c) whether there is adequate prominence given to these provisions in the Scheme booklet.

1. In this case, the exclusivity period in the SID is defined and, at most, is a period of approximately 4.5 months. The no‑talk and no due diligence provisions contain appropriate fiduciary carve‑outs.[68] The exclusivity arrangements are prominently disclosed in the Scheme booklet at [14.2].[69]
2. The affidavit of Mr Mills sets out the commercial justification for the exclusivity provisions and the Break Fee.[70] I accept his evidence that the exclusivity provisions are reasonable and appropriate for a transaction of this nature. The inclusion of these provisions in the SID followed arm's‑length commercial negotiations in which both parties were separately advised and represented by external legal advisers.[71]
3. The amount of the Break Fee is $150,000 which is less than 1% of the value of CannPal having regard to the value of the Scheme Consideration on 14 November 2020, being the date the SID was executed.[72] As such, it is within generally accepted commercial parameters for break fees. The Break Fee is intended to compensate the party for the costs (both costs incurred and opportunity costs) if the Scheme does not proceed. The Break Fee is not payable if shareholders do not vote in favour of the Scheme[73] and accordingly is unlikely to influence shareholders in their decision to vote on the Scheme.

No collateral benefit which should prevent approval of the Scheme

1. The court must examine whether a benefit exists for one shareholder in particular, so as to bring into question the overall fairness of the Scheme.[74] To determine whether there is a collateral benefit, the court considers the 'net benefits' test, to ensure that there is no overall disparity in favour of the party to the non-Scheme transaction.[75] If no net benefit is present, then, prima facie, the equality principle under s 602(c) of the Act is satisfied.
2. On the evidence before me, no issue of collateral benefit arises in this Scheme application.

1. Counsel drew my attention to the presentation at the annual general meeting (AGM) of shareholders held on 20 November 2020.[76] The presentation gave an overview of the transaction, outlined the transaction rationale and value, and provided details regarding the expected expanded product portfolio and synergies. This presentation occurred four days after the announcement of the SID and prior to the first court hearing.
2. Counsel for CannPal submitted that a number of the matters covered in the presentation are substantially addressed in and have been overtaken by the Scheme booklet and that, on their face, these matters should not prevent orders being made for the convening of the Scheme meeting.[77]
3. Courts have previously emphasised the importance that any information regarding a proposed scheme of arrangement be controlled by the court. This is to ensure that there is proper disclosure of the proposed scheme, including both the advantages and disadvantages, and that the information is not misleading or deceptive in any material sense.[78]
4. On the evidence before me, I do not consider the presentation is likely to confuse shareholders, is misleading or deceptive or should prevent orders being made for the convening of the Scheme Meeting.

Electronic dispatch of the Scheme booklet and proxy form

1. CannPal sought orders pursuant to s 1319 of the Act for electronic dispatch of the Scheme booklet and proxy form to those CannPal shareholders who have nominated an electronic address for the purpose of receiving notices of meeting and proxy forms from CannPal. I note that these orders are now common.[79] Details were provided as to the terms of the proposed electronic notification, namely that email notices would be sent to CannPal shareholders containing links to the Scheme booklet and proxy form.[80]
2. I was and am satisfied, having read the terms of the proposed email communication to security holders, that an order for electronic dispatch of the Scheme booklet was appropriate.
3. In addition, CannPal sought orders pursuant to s 1319 of the Act for the dispatch a letter to shareholders who had not elected to receive electronic communications which contained the address of a website which enables shareholders to access the Scheme booklet and lodge a proxy form. Counsel submitted that this order adopted the mechanism proposed by reg 5(1)(f) of the Corporations (Coronavirus Economic Response) Determination (No 3) 2020 (Cth).
4. In Re NTM Gold Ltd, Vaughan J commented that in his view:[81]

[I]t was unsatisfactory that those shareholders who had not opted to receive electronic notification had to access the materials electronically. Such shareholders ought to be provided with hard copy materials if they wish to have such documentation.

1. For that reason, in that case, the proposed arrangements were amended so that the letter sent to shareholders would inform them that hard copy materials could be provided on request and provide a number for shareholders to contact.
2. Counsel for CannPal proposed that a similar approach be adopted in this case. Subject to the following comment, I consider that this is appropriate.
3. The approach of the State and Commonwealth governments to the COVID‑19 pandemic in Australia has been, where possible, to limit personal interactions in order to prevent the uncontrolled spread of the virus within Australia. If a company proposed to produce hard copy documents in a region that, at the time, was a high risk or medium risk area for COVID‑19, it is my view that the production and delivery of hard copy documents within this area to a shareholder, particularly a shareholder outside this area, would not be consistent with this approach.
4. At the time this matter came before me for the first court hearing, a hard lock down had been imposed in the Perth metropolitan area.[82] Accordingly, I considered that it was important that any production of hard copy documents not occur in Western Australia. Counsel for CannPal informed me that production of documents would occur in Queensland. On this basis, I agreed that a similar approach as that proposed in Re NTM Gold should be adopted.

1. Counsel for CannPal drew my attention to the 'deemed warranty' provision in the proposed Scheme.[83] The warranty provision is disclosed in the Scheme booklet.[84] Deemed warranty clauses are not unusual and are acceptable provided there is adequate disclosure that it is a condition.[85]
2. In addition, the Scheme provides that, to the extent permitted by law, the Scheme shares will transfer free from encumbrances and restrictions on transfer of any kind.[86] The terms of this clause is in standard terms and includes the opening words 'to the extent permitted by law'. The inclusion of these words address the concern that has previously been expressed as to whether third parties may otherwise gain the impression that their rights have been extinguished.[87]
3. Taking into account all of these matters, I considered that there was no apparent reason why the Scheme should not, if the necessary special resolution of shareholders is passed, receive the Court's approval.

1. At the first hearing before me, I was satisfied that the substantive and procedural requirements under s 411(1) and s 1319 of the Act had been satisfied and that the proposed Scheme was fit for consideration by CannPal's members.
2. For these reasons, at the conclusion of the hearing on 1 February 2021, I made orders in terms of 'Annexure A' to this judgment in respect of the Scheme.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] First Affidavit of Matthew Adam Ireland filed 14 January 2021, 'MAI-2'.

[2] Scheme, cls 1.1, 7; Scheme booklet, [2.1].

[5] Affidavit of Nicholas Leslie Woolf filed 28 January 2021 [7] - [9].

[8] First Affidavit of Matthew Adam Ireland filed 14 January 2021, 'MAI-2' (p 97).

[9] Scheme, cls 1.1, 7; Scheme booklet, [2.1]

[11] Scheme booklet, [5], [12.14]; SID, cl 5.

[13] Scheme, cl 1.1, cl 7; Scheme booklet, [2.1].

[15] Affidavit of Layton Patrick Mills filed 28 January 2021, 'LPM-8', 'LPM-9', 'LPM-10'.

[16] SID, cl 5(a); Scheme booklet, [5].

[21] Affidavit of Nicholas Leslie Woolf filed 28 January 2021, 'NW-4'.

[23] First Affidavit of Kate Patricia Blechynden filed 28 January 2021 'KPB-3', p 115 ‑ 209.

[24] First Affidavit of Matthew Adam Ireland filed 14 January 2021 [9], 'MAI-5'.

[25] First Affidavit of Kate Patricia Blechynden filed 28 January 2021, 'KPB-6', 'KPB-7'.

[26] Re CSR Ltd [2010] FCAFC 34; (2010) 183 FCR 358 [7].

[27] Re SRG Ltd [2018] FCA 1092 [11]; Re Wesfarmers Ltd; Ex parte Wesfarmers Ltd [2018] WASC 308 [60].

[28] Corporations Act, s 412(1)(a)(ii); Corporations Regulations 2001 (Cth), reg 5.1.01 and Sch 8 cl 8301 ‑ 8310.

[29] Corporations Act, s 412(1)(a)(i).

[30] Corporations Act, s 411(2)(b).

[32] Re Opes Prime Stockbroking Ltd [2009] FCA 813; (2009) 179 FCR 20 [20].

[33] Re Amcom Telecommunications Ltd [2015] FCA 341 [10].

[34] Re SRG Ltd [12]; Re Wesfarmers Ltd; Ex parte Wesfarmers Ltd [72] - [76].

[35] Affidavit of Geoff Starr filed 28 January 2021; Affidavit of Robert Clifford filed 28 January 2021.

[36] Second Affidavit of Kate Patricia Blechynden filed 29 January 2021, 'KPB-1'.

[37] Second Affidavit of Kate Patricia Blechynden filed 29 January 2021, 'KPB-1'.

[38] Affidavit of Layton Patrick Mills filed 28 January 2021, 'LPM-3'.

[39] See Re Wesfarmers Ltd; Ex Parte Wesfarmers Ltd [96].

[41] Affidavit of Layton Patrick Mills filed 28 January 2021 [29]; Affidavit of Nicholas Leslie Woolf filed 28 January 2021 [35].

[42] First Affidavit of Kate Patricia Blechynden filed 28 January 2021, 'KPB-1', 'KPB-2', 'KPB-3', 'KPB-4', 'KPB-5'.

[43] Affidavit of Layton Patrick Mills filed 28 January 2021 [60] - [75]; Affidavit of Nicholas Leslie Woolf filed 28 January 2021 [15] - [19].

[44] Second Affidavit of Matthew Adam Ireland filed 1 February 2021 [7].

[45] CannPal's submissions filed 28 January 2021, Appendix A.

[47] Affidavit of Layton Patrick Mills filed 28 January 2021 [107].

[48] Affidavit of Layton Patrick Mills filed 28 January 2021 [43].

[49] Affidavit of Layton Patrick Mills filed 28 January 2021 [44].

[50] Affidavit of Layton Patrick Mills filed 28 January 2021 [109].

[51] Affidavit of Geoff Starr filed 28 January 2021 [10].

[52] Affidavit of Robert Clifford filed 28 January 2021 [10].

[54] Re Dreamscape Networks Ltd; Ex parte Dreamscape Networks Ltd [2019] WASC 412 [78] ‑ [80].

[55] Affidavit of Layton Patrick Mills filed 28 January 2021 [98].

[56] Affidavit of Layton Patrick Mills filed 28 January 2021 [99] - [100].

[57] Affidavit of Layton Patrick Mills filed 28 January 2021 [111] - [112].

[58] Scheme booklet, front page, pp iii and iv, [2.4], the letter to shareholders, [6.2] and [15.4].

[67] Re APN News & Media Ltd [2007] FCA 770; (2007) 62 ACSR 400 [29] - [35]; Re Kangaroo Resources Ltd [2018] WASC 327 [57] - [61]; Pacific Energy Limited [2019] WASC 443 [58].

[70] Affidavit of Layton Patrick Mills filed 28 January 2021 [96] - [97].

[71] Affidavit of Layton Patrick Mills filed 28 January 2021 [94].

[72] Affidavit of Layton Patrick Mills filed 28 January 2021 [96(d)].

[74] Re David Jones Ltd [No 2] [2014] FCA 720; (2014) 101 ACSR 381 [16] - [21] (Farrell J).

[75] Takeovers Panel, Guidance Note 21: Collateral Benefits [15].

[76] Affidavit of Layton Patrick Mills filed 28 January 2021, 'LPM-1'.

[78] See for example Re NRMA Ltd: Re NRMA Insurance Ltd [2000] NSWSC 82; (2000) 156 FLR 349 [122].

[79] See, for example, Re SRG Ltd [48]; Re Doray Minerals Ltd; Ex parte Doray Minerals [2019] WASC 57 [72].

[80] CannPal's submissions filed 28 January 2021 [111].

[81] Re NTM Gold Ltd; Ex parte NTM Gold Ltd [2021] WASC 22 [81].

[82] Stay at Home and Closure (Perth, Peel and the South West Regions) Directions (No 3), Emergency Management Act 2005 (WA) s 61, s 67, s 71 and s 72A.

[85] Re APN News and Media Ltd [57] - [63]; Re DUET Management Company 1 Ltd [2013] NSWSC 817; (2013) 95 ACSR 34 [23]; Re Nzuri Copper Ltd [2019] WASC 189 [90]; Re Macquarie Private Capital A Ltd [2008] NSWSC 323 [13] - [14]; Re Doray Minerals Ltd; Ex Parte Doray Minerals [71].

[87] Re Investa Properties Ltd [2007] FCA 1104 [25] - [30]; Re Scarborough Equities Ltd [No 2] [2009] FCA 484 [9] ‑ [10].