Goodman Fielder Limited, in the matter of Goodman Fielder Limited (No 2) [2015] FCA 259

REASONS FOR JUDGMENT 1 On 12 December 2014, I made orders providing for the plaintiff to convene and hold a meeting of certain shareholders to consider and, if thought fit, agree to a scheme of arrangement: Goodman Fielder Limited, in the matter of Goodman Fielder Limited [2014] FCA 1449 (my first reasons). 2 On 2 March 2015, I made orders pursuant to s 411(4)(b) and s 411(6) of the Corporations Act 2001 (Cth) (the Act) that the scheme of arrangement be approved with an amendment. These are my reasons for granting that approval. They should be read with my first reasons. I will use the same expressions and abbreviations. Capitalised terms have the meanings defined in the scheme of arrangement. 3 The scheme of arrangement is sufficiently described at [2]-[7] of my first reasons. 4 The following affidavits were read on the application for approval: Steven Gregg affirmed 26 February 2015. Mr Gregg was the chairperson of the scheme meeting. He gave evidence concerning the holding of the scheme meeting and the voting thereat. Mark Trevor McPhee sworn 27 February 2015. Mr McPhee is a Client Relationship Manager with Link Market Services Limited, which maintains the plaintiff's share register. He gave evidence concerning the dispatch of the scheme booklet and proxy form; the receipt and recording of proxies; the preparation of a proxy summary report; the registration of attendees at the scheme meeting; and voting at the scheme meeting, including the preparation of a poll report. Antony Robert Damian affirmed 2 March 2015. Mr Damian is a Partner of Herbert Smith Freehills, which acts for the plaintiff in this proceeding. He gave evidence concerning the registration of the scheme booklet with ASIC (see s 412(6) of the Act); the identity of Excluded Shareholders for the purposes of the scheme of arrangement (a matter to which I will return); the announcement to the ASX and NZX with respect to the plaintiff's half year results, including notification of the independent expert's continuing opinion, following the announcement of the results, that the scheme is fair and reasonable and in the best interests of scheme shareholders (see Order 1(i) made on 12 December 2014); the satisfaction of one of the conditions precedent (MOFCOM approval); the delivery of the executed deed poll given by Wilmar, First Pacific and FPW dated 16 February 2015 (the implementation deed poll) (see [11]-[12] of my first reasons); the advertising of the second court hearing; and the fact that no notice of intention to appear at the second court hearing was received. Stephen Ho Kiam Kong sworn 24 February 2015. Mr Kong is the Chief Financial Officer of Wilmar. He gave evidence concerning the granting of MOFCOM approval and the execution of the implementation deed poll by Wilmar. Kenneth Lim Tao Chung sworn 27 February 2015. Mr Chung is an advocate and solicitor practising as a partner at the law firm Allen & Gledhill LLP. He acts as legal counsel for Wilmar. He gave evidence concerning the validity of the execution by Wilmar of the implementation deed poll and its enforceability against Wilmar in Singapore. Teo La-Mei sworn 2 March 2015. Ms La-Mei is the Company Secretary for Wilmar. She produced the current memorandum and articles of association of Wilmar. Robert Charles Nicholson sworn 24 February 2015. Mr Nicholson is the Executive Director of First Pacific. He gave evidence concerning MOFCOM approval and the execution of the implementation deed poll by First Pacific. Richard Hall affirmed 23 February 2015. Mr Hall is a lawyer practising as a Partner at the law firm Conyers Dill & Pearman in Hong Kong. He gave evidence concerning the validity of the execution by First Pacific of the implementation deed poll and its enforceability against First Pacific in Bermuda. 5 The plaintiff also tendered a certificate, executed as a deed by the plaintiff, FPW, Wilmar, First Pacific and FP BidCo Australia Pty Limited, that all conditions precedent to the scheme of arrangement (see [8] of my first reasons), other than relating to Court approval, have been either satisfied or waived: Exhibit B. 6 I am satisfied that the scheme meeting was convened and held in accordance with the orders made on 12 December 2014. I am satisfied that the requisite majorities stipulated by s 411(4)(a)(ii) of the Act were attained. The evidence shows that a total of 1,159,155,645 votes (99.61% of all votes cast) representing 1,835 shareholders (80.24% of all shareholders present and voting), either in person or by proxy, were in favour of a resolution to approve the scheme of arrangement. 7 I am satisfied that all conditions precedent to the scheme of arrangement, other than relating to Court approval, have been either satisfied or waived. 8 I am satisfied that the scheme is fair and reasonable. In reaching this conclusion, I have taken into account the following matters: the large majorities in favour of the scheme of arrangement at the scheme meeting; the recommendation of directors (see [13] of my first reasons); the opinions expressed by Deloitte, in the independent expert's report (see [14] of my first reasons); the information provided in the scheme booklet; and the fact that no person has come forward to oppose the scheme of arrangement. 9 ASIC has provided a letter in which it has advised that it has no objection to the scheme: Exhibit C; see s 411(17)(b) of the Act. 10 There is one matter to which special reference should be made. As approved at the scheme meeting, the scheme of arrangement identifies the relevant scheme shareholders as, in effect, the plaintiff's ordinary shareholders at the Scheme Record Date other than Excluded Shareholders. Excluded Shareholders are defined as any of the plaintiff's ordinary shareholders who is: (a) FPW or holds a Goodman Fielder Share on behalf of or for the benefit or FPW; (b) a First Pacific Group Member or holds a Goodman Fielder Share on behalf of or for the benefit of First Pacific; or (c) a Wilmar Group Member or holds a Goodman Fielder Share on behalf of or for the benefit of Wilmar. There were only three shareholders who were Excluded Shareholders as at the date of the scheme meeting, namely, Wilmar, Oceanica Developments Limited and FPW Singapore Holdings Pte. Ltd. These three shareholders were ineligible to vote, and did not vote, at the scheme meeting. Mr Damian has given evidence that certain transfers of shares will occur prior to the Scheme Record Date, which will have the effect that only FPW and FPW Singapore Holdings Pte. Ltd will be Excluded Shareholders as at the Scheme Record Date. For this reason, the plaintiff has applied to alter the definition of Excluded Shareholder in the scheme of arrangement to mean FPW and FPW Singapore Holdings Pte. Ltd to reflect this reality and to identify with greater precision the Excluded Shareholders: Prime Infrastructure Holdings Ltd [2010] NSWSC 1337 at [4]-[11]; Talent 2 International Ltd (No 2) [2012] FCA 926 at [16]-[17]; cf Tower Australia Group Limited, in the matter of Tower Australia Group Limited (No 2) [2011] FCA 432. In Prime Infrastructure Holdings, Barrett J observed (at [11]): 11 Section 411, as it relates to an arrangement between a Part 5.1 body and "its members or any class of them", contemplates that, where some group other than the totality of the members is to be bound, the precise constitution of that group must be certain on the face of the arrangement itself or, at least, by reference to the terms of the arrangement read together with readily available and accessible records of an official kind (such as a register of members maintained under the Corporations Act). 11 In the particular circumstances of this case, I am satisfied that the scheme should be approved under s 411(4)(b) of the Act, subject to the alteration to which I have just referred: s 411(6). 12 The plaintiff seeks exemption from s 411(11) of the Act. I am satisfied that this exemption is justified in the present case. 13 Orders as sought by the plaintiff should be made. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

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