Millennium CHPP Pty Ltd v Millennium Coal Pty Ltd

Federal Court of Australia|2009-12-21|Before: Stone J

Pursuant to section 411(4)(b) Corporations Act 2001 (Act), the schemes of arrangement between each of the First to Eleventh, and Thirteenth to Twentieth Plaintiffs and its respective members, in the form set out in Annexure 'A' to these orders (each a Scheme and together the Schemes), be approved.

Pursuant to section 411(12) of the Act, the First to Eleventh, and Thirteenth to Twentieth Plaintiffs be exempted from compliance with the requirements of section 411(11) of the Act.

Pursuant to section 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:

(i) first, all of the Assets of the First Plaintiff, Millennium CHPP, will be transferred to and become the Assets of the First Defendant, Millennium Coal;

(ii) second, all of the Liabilities of Millennium CHPP will be transferred to and become the Liabilities of Millennium Coal; and

(iii) third, Millennium CHPP will be deregistered by ASIC without winding up pursuant to section 413(1)(d) of the Act;

(i) first, all of the Assets of the Second Plaintiff, Huntercoal, will be transferred to and become the Assets of the Second Defendant, Peabody Australia Mining;

(ii) second, all of the Liabilities of Huntercoal will be transferred to and become the Liabilities of Peabody Australia Mining; and

(iii) third, Huntercoal will be deregistered by ASIC without winding up pursuant to section 413(1)(d) of the Act;

(i) first, all of the Helensburgh Scheme Assets will be transferred from the Third Plaintiff, Helensburgh Coal, to and become the Assets of the Ninth Defendant, Metropolitan Collieries; and

(ii) second, all of the Helensburgh Scheme Liabilities will be transferred to and become the Liabilities of Metropolitan Collieries;

(i) first, all of the shares in Helensburgh Coal, held by the Fourth Plaintiff, Southcoal, will be transferred to the Third Defendant, Metropolitan Collieries;

(ii) second, all of the Assets of Southcoal will be transferred to and become the Assets of the Second Defendant, Peabody Australia Mining;

(iii) third, all of the Liabilities of Southcoal will be transferred to and become the Liabilities of Peabody Australia Mining; and

(iv) fourth, Southcoal will be deregistered by ASIC without winding up pursuant to section 413(1)(d) of the Act;

(i) first, all of the Assets of the Fifth Plaintiff, Excel Equities, will be transferred to and become the Assets of the Second Defendant, Peabody Australia Mining;

(ii) second, all of the Liabilities of Excel Equities will be transferred to and become the Liabilities of Peabody Australia Mining; and

(iii) third, Excel Equities will be deregistered by ASIC without winding up pursuant to section 413(1)(d) of the Act;

(i) first, all of the Assets of the Sixth Plaintiff, Cumbo Land, will be transferred to and become the Assets of the Fourth Defendant, Wilpinjong Coal;

(ii) second, all of the Liabilities of Cumbo Land will be transferred to and become the Liabilities of Wilpinjong Coal; and

(iii) third, Cumbo Land will be deregistered by ASIC without winding up pursuant to section 413(1)(d) of the Act.

(i) first, all of the Assets of the Seventh Plaintiff, Excel Resources, will be transferred to and become the Assets of the Second Defendant, Peabody Australia Mining;

(ii) second, all of the Liabilities of Excel Resources will be transferred to and become the Liabilities of Peabody Australia Mining; and

(iii) third, Excel Resources will be deregistered by ASIC without winding up pursuant to section 413(1)(d) of the Act;

(i) first, all of the Assets of the Eighth Plaintiff, Excel Holdings, will be transferred to and become the Assets of the Second Defendant, Peabody Australia Mining;

(ii) second, all of the Liabilities of Excel Holdings will be transferred to and become the Liabilities of Peabody Australia Mining; and

(iii) third, Excel Holdings will be deregistered by ASIC without winding up pursuant to section 413(1)(d) of the Act;

(i) first, all of the Assets of the Ninth Plaintiff, RFC Royalty Investments, will be transferred to and become the Assets of the Second Defendant, Peabody Australia Mining;

(ii) second, all of the Liabilities of RFC Royalty Investments will be transferred to and become the Liabilities of Peabody Australia Mining; and

(iii) third, RFC Royalty Investments will be deregistered by ASIC without winding up pursuant to section 413(1)(d) of the Act;

(i) first, all of the Assets of the Tenth Plaintiff, Excel Investments (NSW), will be transferred to and become the Assets of the Second Defendant, Peabody Australia Mining;

(ii) second, all of the Liabilities of Excel Investments (NSW) will be transferred to and become the Liabilities of Peabody Australia Mining; and

(iii) third, Excel Investments (NSW) will be deregistered by ASIC without winding up pursuant to section 413(1)(d) of the Act;

(i) first, all of the Assets of the Eleventh Plaintiff, Conexcel 2, will be transferred to and become the Assets of the Second Defendant, Peabody Australia Mining;

(ii) second, all of the Liabilities of Conexcel 2 will be transferred to and become the Liabilities of Peabody Australia Mining; and

(iii) third, Conexcel 2 will be deregistered by ASIC without winding up pursuant to section 413(1)(d) of the Act;

(i) all of the shares in Peabody (Burton Coal) held by the Thirteenth Plaintiff, Burton Coal, will be transferred to the Sixth Defendant, PEA;

(i) first, all of the shares in Burton Coal and the Burton Joint Venture Assets held by the Fourteenth Plaintiff/Eighth Defendant, Peabody Energy Australia Coal, will be transferred to the Fifth Defendant, Peabody (Burton Coal);

(ii) second, all the Burton Joint Venture Liabilities of Peabody Energy Australia Coal will be transferred to and become the Liabilities of Peabody (Burton Coal);

(iii) third, all the North Goonyella Joint Venture Assets held by Peabody Energy Australia Coal will be transferred to the Seventh Defendant, Peabody (Bowen);

(iv) fourth, all the North Goonyella Joint Venture Liabilities of Peabody Energy Australia Coal will be transferred to and become the Liabilities of Peabody (Bowen); and

(v) fifth, all of the shares in Peabody (Bowen) held by Peabody Energy Australia Coal will be transferred to and become the Assets of the Sixth Defendant, PEA;

(i) first, all of the Assets of the Fifteenth Plaintiff, Mitterb, will be transferred to and become the Assets of the Seventh Defendant, Peabody (Bowen);

(ii) second, all of the Liabilities of Mitterb will be transferred to and become the Liabilities of Peabody (Bowen); and

(iii) third, Mitterb will be deregistered by ASIC without winding up pursuant to section 413(1)(d) of the Act;

(i) first, all of the Assets of the Sixteenth Plaintiff, Ellensfield Pastoral, will be transferred to and become the Assets of the Seventh Defendant, Peabody (Bowen);

(ii) second, all of the Liabilities of Ellensfield Pastoral will be transferred to and become the Liabilities of Peabody (Bowen); and

(iii) third, Ellensfield Pastoral will be deregistered by ASIC without winding up pursuant to section 413(1)(d) of the Act;

(i) first, all of the Assets of the Seventeenth Plaintiff, Peabody Surat, will be transferred to and become the Assets of the Sixth Defendant, PEA;

(ii) second, all of the Liabilities of Peabody Surat will be transferred to and become the Liabilities of PEA; and

(iii) third, Peabody Surat will be deregistered by ASIC without winding up pursuant to section 413(1)(d) of the Act;

(i) first, all of the Assets of the Eighteenth Plaintiff, Peabody Fuels, will be transferred to and become the Assets of the Sixth Defendant, PEA;

(ii) second, all of the Liabilities of Peabody Fuels will be transferred to and become the Liabilities of PEA; and

(iii) third, Peabody Fuels will be deregistered by ASIC without winding up pursuant to section 413(1)(d) of the Act;

(i) first, all of the Assets of the Nineteenth Plaintiff, Peabody Australia Management Services, will be transferred to and become the Assets of the Fourteenth Plaintiff/Eighth Defendant, Peabody Energy Australia Coal;

(ii) second, all of the Liabilities of Peabody Australia Management Services will be transferred to and become the Liabilities of Peabody Energy Australia Coal; and

(iii) third, Peabody Australia Management Services will be deregistered by ASIC without winding up pursuant to section 413(1)(d) of the Act;

(i) first, all of the Assets of the Twentieth Plaintiff, Coal Developments German Creek, will be transferred to and become the Assets of the Fourteenth Plaintiff/Eighth Defendant, Peabody Energy Australia Coal;

(ii) second, all of the Liabilities of Coal Developments German Creek will be transferred to and become the Liabilities of Peabody Energy Australia Coal; and

(iii) third, Coal Developments German Creek will be deregistered by ASIC without winding up pursuant to section 413(1)(d) of the Act.; and

Pursuant to section 413(1)(c) of the Act, as and from the Effective Time (as defined in the Schemes), any legal proceedings pending by or against:

(a) the First Plaintiff, Millennium CHPP, will be deemed continued by or against (as the case may be) the First Defendant, Millennium Coal;

(b) the Second Plaintiff, Huntercoal, the Fourth Plaintiff, Southcoal, the Fifth Plaintiff, Excel Equities, the Seventh Plaintiff, Excel Resources, the Eighth Plaintiff, Excel Holdings, the Ninth Plaintiff, RFC Royalty Investments, the Tenth Plaintiff, Excel Investments (NSW), or the Eleventh Plaintiff, Conexcel 2, will be deemed continued by or against (as the case may be) the Second Defendant, Peabody Australia Mining;

(c) the Sixth Plaintiff, Cumbo Land, will be deemed continued by or against (as the case may be) the Fourth Defendant, Wilpinjong Coal;

(d) the Seventeeth Plaintiff, Peabody Surat, or the Eighteenth Plaintiff, Peabody Fuels, will be deemed continued by or against (as the case may be) the Sixth Defendant, PEA;

(e) the Fifteenth Plaintiff, Mitterb, or the Sixteenth Plaintiff, Ellensfield Pastoral, will be deemed continued by or against (as the case may be) the Seventh Defendant, Peabody (Bowen); and

(f) the Nineteeth Plaintiff, Peabody Australia Management Services, or the Twentieth Plaintiff, Coal Developments German Creek, will be deemed continued by or against (as the case may be) the Fourteenth Plaintiff/Eighth Defendant, Peabody Energy Australia Coal,

without the need for any further act or deed, other than appropriate amendment of the record of the relevant court or tribunal.

Pursuant to section 413(1)(g) of the Act, as from the Effective Time (as defined in the Schemes), the defendant to whom the relevant Assets or Liabilities of a plaintiff are transferred under a Scheme, or any director of that defendant from time to time, may sign all documents and do all things required to be done by the relevant plaintiff to complete or perfect the transfer of the Assets and Liabilities of that plaintiff provided for in these orders, whether by lodgement, registration, notification or otherwise.

Liberty be reserved to any party to apply for any further orders as may be considered necessary or desirable under section 413 of the Act.

Without prejudice to the generality of Order 6, liberty to either the Twelfth Plaintiff or the Twenty-First Plaintiff, or both of them, to apply at any time for orders under sections 411 and 413 of the Act.

These orders be entered forthwith. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

General Division NSD 1379 of 2009

BETWEEN: MILLENNIUM CHPP PTY LTD (ACN 117 688 696)

First Plaintiff HUNTERCOAL PTY LTD (ACN 087 413 152)

Second Plaintiff HELENSBURGH COAL PTY LTD (ACN 086 463 452)

Third Plaintiff SOUTHCOAL PTY LTD (ACN 078 236 816)

Fourth Plaintiff EXCEL EQUITIES PTY LTD (ACN 071 707 956)

Fifth Plaintiff CUMBO LAND PTY LTD (ACN 077 362 746)

Sixth Plaintiff EXCEL RESOURCES PTY LTD (ACN 071 905 774)

Seventh Plaintiff EXCEL HOLDINGS PTY LTD (ACN 071 905 738)

Eighth Plaintiff RFC ROYALTY INVESTMENTS PTY LTD (ACN 077 752 099)

Ninth Plaintiff EXCEL INVESTMENTS (NSW) PTY LTD (ACN 107 987 897)

Tenth Plaintiff CONEXCEL 2 PTY LTD (ACN 121 412 208)

Eleventh Plaintiff EXCEL EMPLOYMENT SERVICES PTY LTD (ACN 104 594 489)

Twelfth Plaintiff BURTON COAL PTY LTD (ACN 064 159 977)

Thirteenth Plaintiff PEABODY ENERGY AUSTRALIA COAL PTY LTD (ACN 001 401 663)

Fourteenth Plaintiff MITTERB PTY LIMITED (ACN 094 234 278)

Fifteenth Plaintiff ELLENSFIELD PASTORAL PTY LTD (ACN 010 758 746)

Sixteenth Plaintiff PEABODY SURAT PTY LTD (ACN 010 178 551)

Seventeeth Plaintiff PEABODY FUELS PTY LTD (ACN 103 091 096)

Eighteenth Plaintiff PEABODY AUSTRALIA MANAGEMENT SERVICES PTY LTD (ACN 003 181 217)

Nineteenth Plaintiff COAL DEVELOPMENTS (GERMAN CREEK) PTY LTD (ACN 009 974 896)

Twentieth Plaintiff NORTH GOONYELLA COAL MINE MANAGEMENT PTY LTD (ACN 103 803 354) Twenty-First Plaintiff AND: MILLENNIUM COAL PTY LTD (ACN 089 566 021)

First Defendant PEABODY AUSTRALIA MINING LIMITED (ACN 002 818 699)

Second Defendant METROPOLITAN COLLIERIES PTY LTD (ACN 003 135 635)

Third Defendant WILPINJONG COAL PTY LTD (ACN 104 594 694)

Fourth Defendant PEABODY (BURTON COAL) PTY LTD (ACN 077 679 513)

Fifth Defendant PEABODY ENERGY AUSTRALIA PTY LTD (ACN 096 909 410)

Sixth Defendant PEABODY (BOWEN) PTY LTD (ACN 010 879 526)

Seventh Defendant PEABODY ENERGY AUSTRALIA COAL PTY LIMITED (ACN 001 401 663) Eighth Defendant

REASONS FOR JUDGMENT 1 This proceeding is an application for Court approval of 21 transfer schemes (individually and collectively, the Scheme) involving the internal reorganisation of the Peabody Energy Australia corporate group. The object of the Scheme is to transfer some or all of the assets and liabilities of each plaintiff company (the Scheme companies) to another company within the Peabody corporate group. The intent is to reorganise assets and liabilities of particular projects and operations into a logical component structure. Following the transfer, the Scheme companies, with three exceptions, will be deregistered by the Australian Securities and Investments Commission (ASIC) without winding up. 2 On 16 December 2009 I made orders approving the Scheme and undertook to give reasons at a later date. These are my reasons. 3 On 7 December 2009 I made orders for the calling of meetings under s 411(1) of the Corporations Act 2001 (Cth) (the Act). The meetings are a necessary precondition to evoking the jurisdiction of the Court under s 413 of the Act. Because most of the Scheme companies are single member intra-group entities the meetings are more of a formality than would otherwise be the case. For this reason also, the interval between the first hearing on 7 December and this second hearing on 16 December in respect of approval under s 413 has been unusually short. This is not inappropriate where the meetings involve members of the same corporate group; SGIC Insurance Limited v Insurance Australia Limited [2004] FCA 1492; 51 ACSR 470. 4 The Schemes are appropriately put forward as member schemes although the transfer of the assets and liabilities of the Scheme companies affect creditors. This issue has been discussed in a number of cases and for reasons given in those authorities I am satisfied that a meeting of creditors is unnecessary: SGIC Insurance at [7] - [11]. 5 As Mr Oakes, senior counsel for the plaintiffs, submitted, it is nevertheless relevant for the Court to take into account the position of creditors. In this case the evidence shows that nine of the 21 Scheme companies have no balance sheet liabilities and seven of the 16 scheme companies only have liabilities which are inter-company loans. In relation to the remaining five companies, the balance sheets of the transferee companies show that following implementation of the Scheme they will have a substantial net asset position. 6 The majority of the Schemes (17 companies) which are the subject of the present application involve the transfer of all the assets and liabilities of the transferor to another company in the Peabody group and the subsequent deregistration of the transferor. In the remaining cases the transfer will relate only to certain assets and/or liabilities of the transferor which will remain registered. There is nothing novel in any of these arrangements being recognised as schemes under Pt 5.2 of the Actnor is there anything unprecedented in any of the arrangements; see generally SCIG Insurance Ltd v Insurance Australia Ltd [2004] FCA 1492, 51 ASCR 470 and Stork ICM Australia Pty Ltd v Stork Food Systems Pty Ltd [2006] FCA 1849. 7 In the case of a scheme such as this it is not necessary to describe the evidence in detail. It is sufficient to say that on the evidence I am satisfied that each Scheme is bona fide and properly proposed, each plaintiff is a "Part 5.1 body", there has been a proper disclosure to members and that ASIC has been given notice in accordance with s 411(2)(a) and has had a reasonable opportunity to examine the Scheme pursuant to s 411(2)(b). I note also that in this case ASIC has waived the requirement for an independent expert opinion. 8 At the conclusion of the hearing on 7 December I was satisfied that there had been compliance with s 411 and I therefore made orders for the calling of meetings. Those orders are set out in Sch 1 to these reasons. 9 Following those meetings, the matter came before the court for approval of the Scheme on 16 December 2009. Evidence was adduced to show that, with the exception of two companies, meetings of the transferor companies were held. The exceptions were in respect of the twelfth plaintiff, Excel Employment Services Pty Ltd and the twenty-first plaintiff, North Goonyella Coal Mine Management Pty Ltd. The reason in each case is that additional employees of these companies had been identified and it is proposed that these employees be transferred before the Scheme proceeds in relation to the twelfth and twenty-first plaintiffs. At the hearing I gave the plaintiffs leave to stand these two applications over to a date to be fixed. 10 At the second hearing I gave leave for the plaintiffs to file an amended originating process deleting the ninth defendant, Southcoal Pty Ltd. This was done on 18 December 2009. The reason for the reason removing Southcoal was explained in the affidavit of Peter William Stokes, sworn on 16 December 2009. Mr Stokes is a solicitor employed by the solicitors of the first to twenty-first Plaintiffs, McCullough Robertson Lawyers. He explained that when the draft copies of the explanatory statement were sent to ASIC and when the originating process in this proceeding was initially filed it had been intended for one of the Schemes to transfer certain assets and liabilities of the third plaintiff, Helensburgh Coal Pty Ltd, to Southcoal. Later the proposal was amended so there are now no transfers to Southcoal under the Schemes. 11 At the first hearing it was contemplated that an overall meeting of all classes of shareholders would be held in respect of each company and the orders made following that hearing reflected this. However, the notices of meeting which were annexed to the explanatory statement actually provided for class meetings where there were different classes of shareholders. Mr Julian Thornton, who chaired each meeting, deposed that the plaintiffs resolved the inconsistency by holding class meetings as well as an overall meeting for the three companies (Southcoal Pty Ltd, Peabody Energy Australia Coal Pty Ltd and Coal Developments (German Creek) Pty Ltd) which have more than one class of shareholder. The evidence of Ms Hewson also demonstrated that there were no constitutional impediments to any special class of shareholders consulting with ordinary shareholders as to the future of the company. I am satisfied that the meetings were appropriately held and the approval of shareholders legitimately obtained. 12 The factual information in the Explanatory Statement concerning the Scheme has been verified by the process described in the affidavit sworn on 5 December 2009 by Janette Hewson who is the General Manager, Legal, of the sixth defendant, Peabody Energy Australia Pty Ltd and its subsidiaries. I am satisfied that the Scheme Booklet corresponding with that tendered at the hearing on 7 December was served on shareholders of the Scheme companies and, was registered with ASIC after the first Court hearing. 13 At the Scheme meetings the necessary majorities voted in favour of the Scheme and on 9 December 2009 a Notice of Hearing to approve Compromise or Arrangement was published in The Australian newspaper. The advertisement gave the name of the plaintiffs' solicitors as the name of the person giving notice but, presumably in error, gave as the plaintiff's address for service the plaintiffs' registered office not that of the solicitor. Accordingly both Mr Stokes the solicitor and Ms Hewson, the secretary of the plaintiff companies, gave evidence that no notice of any intention to attend the second Court hearing by a creditor or shareholder had been received. At the commencement of the hearing of the application for approval the matter was called outside the Court without response. 14 Section 411(17)(b) of the Actprovides that the Court must not approve an arrangement such as the present unless a written statement made by ASIC is produced to the Court stating that ASIC has no objection to the Compromise or Arrangement. At the hearing the plaintiffs tendered a letter from ASIC dated 16 December 2009 which stated that ASIC had no objection to the Scheme and did not propose to appear at the hearing on 16 December. 15 On the evidence put before me at the second Court hearing I was satisfied that the matters that were required to be proved in connection with the s 411(4)(b) application had been proved and that the orders sought pursuant to s 413 of the Corporations Act should be made. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 21 December 2009 Counsel for the Plaintiffs: M Oakes SC

Solicitor for the Plaintiffs: McCullough Robertson Lawyers

Schedule 1 ORDER JUDGE: Justice Stone DATE OF ORDER: 7 December 2009 WHERE MADE: Sydney

Pursuant to section 411(1) Corporations Act 2001 (Cth) (Act), there be convened by the First Plaintiff a meeting of its member, Millennium Coal Pty Ltd, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm, for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in the document entitled 'Explanatory Statement', which is Exhibit 1), between the First Plaintiff and its member.

Pursuant to section 411(1) of the Act, there be convened by the Second Plaintiff a meeting of its members, Peabody Australia Mining Limited and Excel Equities Pty Ltd, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm (or as soon after the conclusion of the meeting in Order 1 above as may be practicable), for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in Exhibit 1), between the Second Plaintiff and its members.

Pursuant to section 411(1) of the Act, there be convened by the Third Plaintiff a meeting of its member, Southcoal Pty Ltd, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm (or as soon after the conclusion of the meeting in Order 1 above as may be practicable), for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in Exhibit 1), between the Third Plaintiff and its member.

Pursuant to section 411(1) of the Act, there be convened by the Fourth Plaintiff a meeting of its members, Peabody Australia Mining Limited and Excel Equities Pty Ltd, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm (or as soon after the conclusion of the meeting in Order 1 above as may be practicable), for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in Exhibit 1), between the Fourth Plaintiff and its members.

Pursuant to section 411(1) of the Act, there be convened by the Fifth Plaintiff a meeting of its member, Excel Holdings Pty Ltd, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm (or as soon after the conclusion of the meeting in Order 1 above as may be practicable), for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in Exhibit 1), between the Fifth Plaintiff and its member.

Pursuant to section 411(1) of the Act, there be convened by the Sixth Plaintiff a meeting of its member, Excel Resources Pty Ltd, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm (or as soon after the conclusion of the meeting in Order 1 above as may be practicable), for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in Exhibit 1), between the Sixth Plaintiff and its member.

Pursuant to section 411(1) of the Act, there be convened by the Seventh Plaintiff a meeting of its member, Excel Holdings Pty Ltd, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm (or as soon after the conclusion of the meeting in Order 1 above as may be practicable), for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in Exhibit 1), between the Seventh Plaintiff and its member.

Pursuant to section 411(1) of the Act, there be convened by the Eighth Plaintiff a meeting of its member, Peabody Australia Mining Limited, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm (or as soon after the conclusion of the meeting in Order 1 above as may be practicable), for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in Exhibit 1), between the Eighth Plaintiff and its member.

Pursuant to section 411(1) of the Act, there be convened by the Ninth Plaintiff a meeting of its member, Peabody Australia Mining Limited, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm (or as soon after the conclusion of the meeting in Order 1 above as may be practicable), for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in Exhibit 1), between the Ninth Plaintiff and its member.

Pursuant to section 411(1) of the Act, there be convened by the Tenth Plaintiff a meeting of its member, Peabody Australia Mining Limited, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm (or as soon after the conclusion of the meeting in Order 1 above as may be practicable), for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in Exhibit 1), between the Tenth Plaintiff and its member.

Pursuant to section 411(1) of the Act, there be convened by the Eleventh Plaintiff a meeting of its member, Peabody Australia Mining Limited, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm (or as soon after the conclusion of the meeting in Order 1 above as may be practicable), for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in Exhibit 1), between the Eleventh Plaintiff and its member.

Pursuant to section 411(1) of the Act, there be convened by the Twelfth Plaintiff a meeting of its member, Peabody Australia Mining Limited, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm (or as soon after the conclusion of the meeting in Order 1 above as may be practicable), for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in Exhibit 1), between the Twelfth Plaintiff and its member.

Pursuant to section 411(1) of the Act, there be convened by the Thirteenth Plaintiff a meeting of its member, Peabody Energy Australia Coal Pty Ltd, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm (or as soon after the conclusion of the meeting in Order 1 above as may be practicable), for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in Exhibit 1), between the Thirteenth Plaintiff and its member.

Pursuant to section 411(1) of the Act, there be convened by the Fourteenth Plaintiff a meeting of its member, Peabody Energy Australia Pty Ltd, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm (or as soon after the conclusion of the meeting in Order 1 above as may be practicable), for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in Exhibit 1), between the Fourteenth Plaintiff and its member.

Pursuant to section 411(1) of the Act, there be convened by the Fifteenth Plaintiff a meeting of its member, Coal Developments (German Creek) Pty Ltd, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm (or as soon after the conclusion of the meeting in Order 1 above as may be practicable), for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in Exhibit 1), between the Fifteenth Plaintiff and its member.

Pursuant to section 411(1) of the Act, there be convened by the Sixteenth Plaintiff a meeting of its member, Peabody Energy Australia Coal Pty Ltd, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm (or as soon after the conclusion of the meeting in Order 1 above as may be practicable), for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in Exhibit 1), between the Sixteenth Plaintiff and its member.

Pursuant to section 411(1) of the Act, there be convened by the Seventeenth Plaintiff a meeting of its member, Peabody Fuels Pty Ltd, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm (or as soon after the conclusion of the meeting in Order 1 above as may be practicable), for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in Exhibit 1), between the Seventeenth Plaintiff and its member.

Pursuant to section 411(1) of the Act, there be convened by the Eighteenth Plaintiff a meeting of its member, Peabody Energy Australia Pty Ltd, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm (or as soon after the conclusion of the meeting in Order 1 above as may be practicable), for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in Exhibit 1), between the Eighteenth Plaintiff and its member.

Pursuant to section 411(1) of the Act, there be convened by the Nineteenth Plaintiff a meeting of its member, Peabody Energy Australia Coal Pty Ltd, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm (or as soon after the conclusion of the meeting in Order 1 above as may be practicable), for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in Exhibit 1), between the Nineteenth Plaintiff and its member.

Pursuant to section 411(1) of the Act, there be convened by the Twentieth Plaintiff a meeting of its member, Peabody Energy Australia Coal Pty Ltd, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm (or as soon after the conclusion of the meeting in Order 1 above as may be practicable), for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in Exhibit 1), between the Twentieth Plaintiff and its member.

Pursuant to section 411(1) of the Act, there be convened by the Twenty-First Plaintiff a meeting of its member, Peabody Energy Australia Coal Pty Ltd, to be held on Tuesday, 8 December 2009, at Level 13, 259 Queen Street, Brisbane, commencing at 2.30pm (or as soon after the conclusion of the meeting in Order 1 above as may be practicable), for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed scheme of arrangement (being the applicable scheme of arrangement set forth in Exhibit 1), between the Twenty-First Plaintiff and its member.

The explanatory statement for the schemes of arrangement, a copy of which forms part of Exhibit 1, be approved for distribution to the members of each of the Plaintiffs.

Each scheme meeting shall be convened by a notice of meeting, a copy of which forms part of Exhibit 1, accompanied by a copy of the explanatory statement.

Service of each notice of meeting and accompanying explanatory statement may be effected by electronic means or by hand delivery to a person who is a proxy, corporate representative appointed under section 250D of the Act, or attorney under power, of each member of the applicable plaintiff at any time before a relevant meeting commences.

Julian Thornton, or in his absence, Janette Hewson, act as Chairperson of each of the said meetings, unless any meeting shall otherwise resolve.

The scheme meetings shall be held consecutively.

In the case of each meeting, one member present by proxy, corporate representative appointed under section 250D of the Act, or attorney under power, shall constitute a quorum.

Notwithstanding Orders 1 to 21 above, and without limiting the operation of section 249S of the Act, each scheme meeting may with the consent of the chairperson and member(s) be conducted by telephone without any of them being present at the address stipulated in those orders.

A proxy, appointment of a corporate representative under section 250D of the Act, or power of attorney to act on behalf of a member of any of the First to Twenty-First Plaintiffs (Plaintiffs) may be delivered to the Chairperson of a meeting at any time up until the vote is cast on a resolution at that meeting.

A resolution put to the vote at any of the scheme meetings to approve the proposed schemes of arrangement, or any modification to the proposed schemes of arrangement, must be decided by the Member or its representative signing a record of the resolution.

The Chairperson of each meeting has the power to adjourn such meeting in his absolute discretion.

Regulations 5.6.12 to 5.6.36A Corporations Regulations 2001 shall not apply to any scheme meeting.

The proceedings be stood over to 2.15 pm on Wednesday, 16 December 2009 before Stone J for the hearing of any application to approve the schemes of arrangement.

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Judgment (138 paragraphs)

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