Nexus Energy Ltd, in the matter of Nexus Energy Ltd [2014] FCA 558

Basis for the relief sought 5 Section 1319 of the Corporations Act provides that: 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. 6 Under this section the Court can give ancillary or consequential directions in relation to court-ordered meetings, including, for example, to vacate or vary orders made under s 411 in relation to meetings in respect of a scheme of arrangement, adjourn a meeting convened under that section or authorise the dispatch of further explanatory material in respect of such a meeting: Re Australian Gas Light Company (2006) 57 ACSR 67; In the matter of Lend Lease Primelife Ltd; In the matter of Lend Lease Villages Responsible Entity Ltd (2009) 27 ACLC 1,831; Re Cellestis Limited (No 2) [2011] VSC 329.

Announcement of SGH's intentions 7 The relevant background is set out in the affidavits of Meredith Nancy Campion affirmed 23 May 2014 (Campion affidavit) and Lucio Della Martina affirmed 23 May 2014 (Della Martina affidavit) and can be summarised as follows. 8 On 8 May 2014, Seven Group Holdings Limited (SGH) made an announcement to the Australian Stock Exchange that it did not intend to increase the scheme consideration from 2 cents per share and acknowledged it would be bound to this statement in accordance with ASIC's "truth in takeovers" policy (SGH Intentions Announcement). 9 On 15 May 2014, a representative of ASIC indicated to solicitors for the plaintiff that the SGH Intentions Statement should be provided to all shareholders of the plaintiff with an explanation of the implications of it from the board of the plaintiff (together, the Supplementary Disclosure). 10 On 23 May 2014, ASIC confirmed it was content that the Supplementary Disclosure, provided to it, be sent to Nexus' shareholders. The board of Nexus resolved that, subject to the approval of the Court, the proposed supplementary disclosure should be sent to the Nexus shareholders.

The ASIC truth in takeovers policy 11 ASIC Regulatory Guide 25 titled "Takeovers: false and misleading statements" provides in Part A guidance as to "Last and final statements". 12 ASIC states at RG 25.4: A market participant that makes a last and final statement and then seeks to depart from it risks: (a) regulatory action by us for contravention of misleading or deceptive conduct provisions, particularly s670A and 1041H; or (b) an application by us or another party to the Takeovers Panel for a declaration of unacceptable circumstances. A "last and final statement" is a statement made by a market participant that it will or will not do something in the course of the bid. One example is a statement by a bidder that it will not improve the consideration offered under its bid ("no increase statement"): for other examples see RG 25.21-RG 25.34.

Nexus will bring the matter to the attention of members 13 Nexus intends to bring to shareholders' attention the Supplementary Disclosure by: (a) release of the Supplementary Disclosure as an announcement to the Australian Stock Exchange; (b) sending the Supplementary Disclosure by post and other electronic means as ordered by the Court; (c) ensuring that the Supplementary Disclosure is distributed to attendees at the Scheme Meeting.

Orders 14 I am satisfied that there should be orders in terms of the minute of proposed orders. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.