Equigold NL, In the matter of Equigold NL (No 2) [2008] FCA 826 - FCA 2008 case summary — Zoe

Equigold NL, In the matter of Equigold NL (No 2) [2008] FCA 826 - FCA 2008 case summary — Zoe

(b) the provisions of the plaintiff's constitution that apply in relation to meetings of members and are not inconsistent with Part 2G.2 of [the Act]. The effect of that provision is that the order required that each Equigold shareholder be given 28 days notice of the meeting. Clause 30.8 of the Constitution of Equigold has the effect that, where a notice of a meeting is given by post, the notice is to be treated as given on the second business day after it was posted. 3 The proposed meeting is to be held on 30 May 2008 in Perth. It was intended that the relevant documents would be dispatched to the members of Equigold today. However, unforeseen circumstances have prevented Equigold from doing so. The reasons are that unforeseen capacity constraints at the premises of the printer retained to prepare the material have resulted in delays in completion of the relevant documents. In addition, further time was required to bind the documents as a result of a printing error that was identified after printing had been completed. 4 The share registrar and mailing house responsible for the dispatch of the documents expects to be in a position to have the documents ready for mailing by no later than 5 pm on 1 May 2008. However, at this stage no guarantee can be given that the documents will be ready for dispatch at that time. 5 In the circumstances, Equigold has applied to the Court for a variation of the orders made on 30 April 2008. Section 1319 of the Act provides: Where, under this Act, the Court orders a meeting to be convened, the Court may, subject to this Act, give such directions with respect to the convening, holding or conduct of the meeting, and such ancillary or consequential directions in relation to the meeting, as it thinks fit. Clearly enough, the Court has jurisdiction to vary the orders made on 23 April 2008. 6 The rationale for the requirement in the Act for 28 days notice to be given is that the period of 21 days that was previously provided in earlier legislation could be inadequate for non-resident shareholders. A copy of the proposed documents containing the notice of the meeting was lodged with ASX today. The number of non-resident shareholders does not constitute a substantial proportion either of the number of shareholders or number of shares held. On the other hand, it is not an insignificant number. 7 I consider that the appropriate course is to accede to the application by Equigold. That, of course, would not necessarily be an end of the matter. Assuming the members pass the resolution at the meeting with the requisite majority, it will be a matter, for the Court to decide whether to approve the Scheme. If there were opposition to the Scheme at the second hearing, the fact that less than the statutory period of notice had been given may be a matter that could be taken into account by the Court. However, that is a matter for another day. 8 I propose to make an order, the effect of which is that the notice of the meeting must be dispatched on or before 2 May 2008. That will allow an extra day's grace against the possibility that the mailing house is unable to dispatch the relevant documents by tomorrow. That would result in notice to shareholders four days less than the period of notice required by the Act. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.