//
[2016] VSC 38
General information, not legal advice.
Supreme Court of Victoria
2016-02-12
CROFT J
Original judgment source is linked above.
CORPORATIONS - Scheme of Arrangement - Approval of Scheme - Discretion - Corporations Act 2001 (Cth) s 411.
1 This proceeding was commenced for the purpose of obtaining orders under s 411(1) of the Corporations Act 2001 (Cth) ('Act') for approval of a proposed scheme of arrangement ('Scheme') between the First Plaintiff ('GSMAL') and certain of its creditors ('Scheme Creditors').
2 In support, GSMAL relies upon the following evidence and for the purposes indicated:
Proof of lodgement of first court hearing order with ASIC
Third Affidavit of David Brian Shaw of 5 February 2016
Proof of service of the scheme booklet on creditors
Affidavit of Rodney Rex Soames of 2 February 2016, [17]-[23]
Affidavit of Rodney Rex Soames of 2 February 2016, [7]
Identification of changes to the explanatory statement since the first court hearing
Second Affidavit of David Brian Shaw of 2 February 2016, [4]
Proof of receipt of proxy forms and collation of proxies
Affidavit of Rodney Rex Soames of 2 February 2016, [24]-[25]
Third Affidavit of Martin Bruce Jones of 2 February 2016, [20]-[21]
Proof of holding of the scheme meetings and obtaining of necessary majorities
Third Affidavit of Martin Bruce Jones of 2 February 2016, [23]-[46]
Affidavit of Rodney Rex Soames of 2 February 2016, [26]-[34]
Proof of advertising of the schemes approval application before Justice Croft
Third Affidavit of Martin Bruce Jones of 2 February 2016, [47]-[48]
Proof of no notice of intention to appear at the approval hearing before Justice Croft
Third Affidavit of David Brian Shaw of 5 February 2016
Proof of ASIC's position in relation to the approval hearing
Letter from Mr Mark Pangbourne, a delegate of the Australia Securities and Investment Commission ('ASIC'), dated 8 February 2016
Proof of executed Deed Poll by Scheme Administrators
Affidavit of Darren Gordon Weaver of 25 August 2015, [17], Ex DGW-4 - proved at first court hearing on 15 December 2015 ('the First Weaver Affidavit')
Reference is also made to, and reliance placed upon, the affidavit of Brett Kent Orzel sworn 25 August 2015 ('Orzel Affidavit').
3 GSMAL submits that the evidence is such that it is appropriate to make:
(a) the r 16.6(3) of the Supreme Court (Corporations) Rules 2013 declaration that the meetings were duly convened and held and the resolutions duly passed;
(b) the s 411(4)(b) of the Act order approving the schemes of arrangement between GSMAL and certain of its creditors; and
(c) the order pursuant to s 411(12) of the Act exempting GSMAL from compliance with s 411(11) of the Act.
4 GSMAL proposed the Scheme pursuant to cl 3.1 of a deed of settlement entered into on 23 July 2014 ('Deed of Settlement') (Exhibit 'DGW-5' to the First Weaver Affidavit), following the trial before Croft J of a number of actions in this Court which became known as the Great Southern Proceedings. Those proceedings comprised the 'Group Proceedings', as defined in the Deed of Settlement, and the 'M+K Counterclaim Proceedings' (otherwise known as the 'Individual Proceedings'), as defined in the Deed of Settlement.
5 Insofar as the Deed of Settlement concerned settlement of the Group Proceedings, on 11 December 2014 orders were made pursuant to s 33V of the Supreme Court Act 1986 approving the settlement on the terms and conditions set out in the Deed of Settlement.[1]
7 Pursuant to the Deed of Settlement, the Second Plaintiffs ('Liquidators') agreed to propose the Scheme in order to allow Scheme Creditors the opportunity to vote as to whether or not they are prepared to compromise their respective rights on the terms set out in the Scheme.
8 The Scheme Booklet is Exhibit 'DGW-2' to the First Weaver Affidavit. It comprises:
(a) the proposed explanatory statement ('Explanatory Statement'), which includes:
(i) as Schedule 1 to the Explanatory Statement, the proposed notice of Scheme Meeting[3] ('Notice of Scheme Meeting'); and
(ii) as Schedule 3 to the Explanatory Statement, the Scheme; and
(iii) an example of a personalised proxy form ('Proxy Form').
9 Scheme Creditors are those persons who invested in any managed investment scheme in or post 1998 of which GSMAL is or was the responsible entity ('Investments'), including former scheme members, and who may have a 'PDS Claim' (as defined in the Scheme and the Explanatory Statement) ('PDS Claim').
10 In essence, a PDS Claim includes any claim, whether presently known or unknown, arising out of, or in connection with, the contents of or the facts giving rise to, the PDSs, the Loan Agreements and/or the allegations made in or the facts giving rise to each of the Proceedings (as each of those terms are defined in the Scheme and the Explanatory Statement).
11 It is important to note that the Scheme has no effect on Scheme Creditors' obligations to the BEN Parties or Javelin (as defined in the Scheme and Explanatory Statement). PDS Claims brought by a number of Scheme Creditors against the BEN Parties (which include Bendigo Bank) and Javelin were settled as against those parties on the terms set out at clauses 4 and 5 of the Deed of Settlement. This is because the Scheme Creditors whose Investments are the subject of claims determined in the Group Proceedings are bound by the Deed of Settlement as a result of the s 33V Approval Decision. To the extent that those Scheme Creditors owe any obligations to the BEN Parties or Javelin (including as to principal and interest), those obligations are unaffected by the Scheme, and are effective regardless of whether or not the Scheme is approved.
12 As a result of Scheme approval - by the requisite majorities of each class of Scheme Creditors, and by the Court - the Scheme Creditors will each:
(a) on the Liquidators' present estimate, receive from the 'Scheme Creditors' Pool' (as defined in the Scheme, being the sum of $3,550,000, to be distributed pursuant to the Scheme) ('Scheme Creditors' Pool') approximately $16.52 per $10,000 invested in the relevant managed investment schemes managed by GSMAL as responsible entity;
(b) give up any rights to prove in, and receive a dividend from, the liquidations of GSMAL and, where relevant, Great Southern Finance Pty Ltd (In Liquidation) ACN 052 046 536 ('GSF') or any of the Great Southern Companies (as defined in the Scheme), in respect of PDS Claims; and
(c) release all PDS Claims against GSMAL and other parties, as set out in clause 5.1 of the Scheme.
In this respect, reference should be made to the First Weaver Affidavit, at [45], and cl 5 of the Scheme.
13 The other parties released as a result of Scheme approval are (as defined in the Scheme and the Explanatory Statement):
(a) Related Entities of GSMAL (including GSF, Great Southern Securities Pty Ltd (in Liquidation) ACN 009 283 621 ('GSS') and current and former directors of GSMAL and GSMAL's Related Bodies Corporate);
(d) Non-Executive Directors and their Related Persons; and
(those persons, together with GSMAL, being the 'Released Parties').
14 Under the terms of the Scheme (see cll 5.3 and 5.5), the Released Parties may plead the Scheme in bar to any PDS Claim (including for costs) brought by any Scheme Creditor or any person who claims through the Scheme Creditor, and may take any steps necessary to obtain, orders of the Court discontinuing, staying, dismissing or otherwise disposing of the Proceedings.
15 As a result of approval by the requisite majorities of each class of Scheme Creditors and by the Court:
(a) the Liquidators will, inter alia, take the necessary steps for the dismissal of the Group Proceedings and the M+K Counterclaim Proceedings, and any other proceedings commenced in any other court which constitute a PDS Claim; and
(b) any other claims contemplated by any Scheme Creditor, which constitute a PDS Claim, will be released and barred.
16 For the purpose of voting on the Scheme, each Scheme Creditor had one vote, the value of which was the total face value of the amounts invested by that Scheme Creditor in the relevant GSMAL managed investment schemes (which amounts do not include GST or borrowing costs) as recorded in the relevant scheme registers as at 16 May 2009. In that respect, the Scheme Creditors Register is exhibited (as 'BOR-1') to, and the process by which it was created explained in, the Orzel Affidavit.
17 The Liquidators identified four classes of Scheme Creditors for purposes of voting on the Scheme:
(a) Class 1 Scheme Creditors, being Scheme Creditors who are M+K Clients.
(b) Class 2 Scheme Creditors, being Scheme Creditors:
(ii) all of whose Investments are the subject of claims determined in the Group Proceedings.
(c) Class 3 Scheme Creditors, being Scheme Creditors who:
(i) are not Class 1 Scheme Creditors or Class 2 Scheme Creditors;
(ii) have one or more Investments which are not the subject of claims determined in any of the Group Proceedings; and
(iii) financed one or more of their Investments which are not the subject of claims determined in any of the Group Proceedings, with a loan from GSF.
(d) Class 4 Scheme Creditors, being Scheme Creditors who:
(i) are not Class 1 Scheme Creditors or Class 2 Scheme Creditors or Class 3 Scheme Creditors;
(ii) have one or more Investments which are not the subject of claims determined in any of the Group Proceedings; and
(iii) did not finance any of their Investments which are not the subject of claims determined in any of the Group Proceedings, with a loan from GSF.
18 The Scheme Creditors were divided into four classes because the rights and entitlements of each class, viewed in the totality of the Scheme's context, are so dissimilar that it would make it impossible for them to consult together with a view to their common interest. In that respect:
(a) The entitlements conferred on Scheme Creditors by the Scheme are created pursuant to the Deed of Settlement.
(b) Class 1 Scheme Creditors, in respect of any Investments they have which are the subject of claims determined in any of the Group Proceedings, would be bound by any judgments entered in the Group Proceedings. However, they would not be bound in respect of any Investments they have which are not the subject of claims determined in any of the Group Proceedings.
(c) Under the Scheme, Class 1 Scheme Creditors have the same entitlements as other Scheme Creditors in respect of the Scheme Creditors' Pool. However, Class 1 Scheme Creditors have an additional right, also created under the Deed of Settlement, to receive a pro rata share of the sum of $19,976,474.61, to be paid by Insurers of GSMAL on behalf of GSMAL to M+K Lawyers, in reimbursement of Class 1 Scheme Creditors' legal costs previously paid (First Weaver Affidavit at [36.2.1]). Pursuant to the Deed of Settlement, that right is conditional upon the Scheme being approved. If the Scheme were not approved, Class 1 Scheme Creditors would not receive any part of the sum of $19,976,474.61.
(d) In contrast, Scheme Creditors other than Class 1 Scheme Creditors have no rights under the Deed of Settlement to have reimbursed to them any legal costs they may have incurred. These Scheme Creditors would only receive their pro rata entitlements to the Scheme Creditors' Pool.
(e) In those circumstances, it is appropriate for Class 1 Scheme Creditors to form a separate class.
(f) If the Scheme were not approved, the Court would formally publish the Great Southern Reasons, and judgments would be entered in each of the Group Proceedings and the M+K Counterclaim Proceedings. In those circumstances, Class 2 Scheme Creditors would be bound by those judgments and all of their claims in those proceedings would be dismissed. Accordingly, the relevant rights that Class 2 Scheme Creditors would be giving up would be their contingent rights of appeal against any judgments entered in the Group Proceedings and the M+K Counterclaim Proceedings.
(g) In that respect, the rights of Class 2 Scheme Creditors against GSMAL differ from the rights of Class 3 Scheme Creditors and Class 4 Scheme Creditors, who have one or more Investments which are not the subject of claims determined in any of the Group Proceedings, and therefore would not, in respect of those investments, be bound by any judgments entered in the Group Proceedings and the M+K Counterclaim Proceedings.
(h) In those circumstances, it is appropriate for Class 2 Scheme Creditors to form a separate class.
(i) Class 3 Scheme Creditors, in respect of any Investments they have which are the subject of claims determined in any of the Group Proceedings, would be bound by any judgments entered in the Group Proceedings. However, they would not be bound in respect of any Investments they have which are not the subject of claims determined in any of the Group Proceedings.
(j) Class 3 Scheme Creditors may have a PDS Claim against GSF (which would be compromised and released on Scheme approval) which Class 4 Scheme Creditors do not have, because Class 4 Scheme Creditors did not finance any of their Investments which are not the subject of claims determined in any of the Group Proceedings, with a loan from GSF.
(k) In those circumstances, it is appropriate for Class 3 Scheme Creditors to form a separate class.
(l) Class 4 Scheme Creditors are in a similar position to Class 3 Scheme Creditors, in that, Class 4 Scheme Creditors, in respect of any Investments they have which are the subject of claims determined in any of the Group Proceedings, would be bound by any judgments entered in the Group Proceedings. They would not be bound in respect of any Investments they have which are not the subject of claims determined in any of the Group Proceedings.
(m) However, as Class 4 Scheme Creditors did not finance any of their Investments which are not the subject of claims determined in any of the Group Proceedings, with a loan from GSF, they have no discernible rights against GSF which they would compromise and release on Scheme approval.
(n) In those circumstances, it is appropriate for Class 4 Scheme Creditors to form a separate class.
Matters identified at the hearing before Randall AsJ
19 At the hearing pursuant to r 16.6 of the Supreme Court (Corporations) Rules 2013, Randall AsJ declared that the separate class meetings of Scheme Creditors, which were required to be convened by the Order of the Court made 22 December 2016, were duly convened and held and the respective resolutions considered at each of those meetings were duly passed, save as specifically identified in the orders of Randall AsJ made on 5 February 2016.
20 The reservation in the order of Randall AsJ to which reference has been made is set out in paragraph A of 'Other Matters' in those orders, as follows:
As indicated in the orders of Randall AsJ in the materials set out in Paragraph A of 'Other Matters', the extent of non-compliance with respect to the meetings is not significant in terms of the present Application. Moreover, this position is very clear when regard is had to the statutory majorities in favour of the schemes which were obtained at those meetings:
Approval of the Scheme of Arrangement - Exercise of discretion
21 At the First Court Hearing, as submitted, the Court needed to have formed the view in F T Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd that:[4]
[T]he scheme is of such a nature and cast in such terms that, if it receives a statutory majority at the creditors' meeting the court would be likely to approve it on the hearing of a petition which is unopposed.
22 With an uncontested scheme, on proof of procedural fairness and obtaining the statutory majorities, an approval order ordinarily follows at the Approval Hearing.
23 As at the date of the Approval Hearing, no creditor or any other person has indicated that they wish to appear to object to the Scheme of Arrangement.
24 The approach to be adopted by the Court at the Approval Hearing was helpfully summarised in Re Seven Network Ltd No. 3, as follows:[5]
(a) The Court has a discretion whether to approve a scheme and is not bound to approve it simply because it made orders for the scheme meeting to be convened or because the statutory majorities were obtained. The High Court has made it clear that it is at the Second Court Hearing that the Court's discretion to approve is relevantly exercised. It is at the Second Court Hearing that 'final determination' is made on the scheme.[6]
(b) The Court will usually approach the task of deciding whether to approve a scheme on the basis that the company's creditors are better judges of what is in their commercial interests than the Court.
(c) Matters noted by the Corporations and Markets Advisory Committee ('CAMAC')[7] which the Courts have considered in relation to members' schemes are:
(i) Whether those sought to be bound by the scheme have voted in good faith and not for an improper purpose;
(ii) whether the proposal is at least fair and reasonable so that an intelligent and honest man or woman who was a member of the relevant class, properly informed and acting alone might approve it;
(iii) whether the plaintiff has brought to the Court's attention under the ex parte disclosure principle all information relevant to the exercise of the Court's discretion;
(iv) whether there has been full and frank disclosure of all information material to the creditors' decision; and
(v) whether minority shareholders would be oppressed by the scheme.
(d) A further consideration is whether the scheme offends public policy.
25 As to fairness, the Court has given consideration to that in the context of the s 33V Approval Decision. The Deed of Settlement considered there set out the essential terms of the Scheme of Arrangement.
26 Reasonableness of the scheme was prima facie established at the First Court Hearing under the Eastment[8] principle; subject always to new matters being brought to the attention of the Court at the Approval Hearing.
27 The Court has before it the actual Scheme Booklet plus the verification of the factual information therein (see the First Weaver Affidavit, at [18], read at the First Court Hearing).
28 There is no criticism of the substance of the disclosure by any creditor or regulatory body. From this, the Court properly infers full and adequate disclosure.
29 There is nothing to suggest that creditors voted other than in good faith, or that they cast their votes for an improper purpose, or that any creditor has been treated in a way that might be characterised as oppressive.
30 There is nothing which materially casts doubt on the procedural integrity of the meeting process.
31 ASIC did not appear in these proceedings. ASIC has not raised any "public policy" concern and there is nothing on the face of the proposal which would suggest that there should be such a concern. GSMAL filed in evidence an email dated 8 February 2016, from Mr Mark Pangbourne as a delegate of ASIC, advising that ASIC 'has no objection to the proposed scheme of arrangement'.
32 On the basis of the disclosure evidence, and the evidence of the due holding of the scheme meetings, the Court has sufficient evidence to permit an overall finding of fairness in the absence of any other matter which might need to be considered on the exercise of discretion. Put another way, fairness can be inferred from a number of evidentiary sources, including the obtaining of the statutory majorities in the scheme meetings, in a context where there is apparently adequate and verified disclosure, and that those voting are the best judges of their own interest.
33 Because most scheme matters proceed ex parte, Barrett J, observed in Re Permanent Trustee Company Limited as follows:[9]
The fact that the application was ex parte is not without some significance. The absence of any defendant that will contradict sharpens the duty of the applicant. While a case such as the present is distinguishable from one where an interlocutory injunction is sought in the absence of a defendant (in that there is here no defendant as such) I think it is fair to say that the applicant in this kind of situation, like an applicant ex parte for an injunction, carries the same responsibility of bringing to the court's attention all matters that could be considered relevant in the exercise of discretion.
34 The matters identified by Barrett J in Re Permanent Trustee Company Limited have been addressed by:
(a) isolating the standard matters necessary to be proved in the Table which appears as paragraph 3 of these submissions, which indicates where such standard matters are proved in the evidence;
(b) the matters disclosed to in the Rule 16.6 hearing submissions; and
(c) other matters disclosed, to which reference is made in the reasons which follow.
None of these matters, however, are matters of concern having regard to the matters to which reference is made in these reasons with respect to this proceeding.
35 The issue of voter turnout has no statutory basis, but as a matter of practice it is not uncommon for courts to request the evidence in a members' scheme context as a type of 'litmus test' for the integrity of the process. The approach generally adopted is to add members participating - whether for or against the proposed resolutions - and votes participating - whether for or against - and express them as a percentage of the total electorate in each case. In my view this is a desirable practice in that it not only gives full factual content with respect to a scheme approval process but is also likely to instil confidence in the process in the minds of those whose interests may be affected by the process.
36 In the present matter, voter turnout percentages for the scheme meetings are as follows:
These figures are a combination of votes for, against and any abstentions with respect to the proposed resolutions as a percentage of the total electorate in each class.
37 In Lion Nathan Ltd No 2,[10] Emmett J noted that 64 per cent of eligible shares had been represented and voted at the scheme meeting. In Re MB Group plc,[11] Harman J described a turnout of 52 per cent of scheme shares as 'a high turnout'. Since Lion Nathan, the Federal Court in members' schemes has expressed an interest in knowing the turnout percentage of eligible shares - both for and against proposed resolutions - and more recently of shareholders. A low turnout percentage might suggest a flaw in the convening procedure which warrants further consideration. In Avoca Resources Ltd,[12] a members' scheme, Gilmour J noted voter turnout percentages of 72.38 per cent by votes participating and 11.49 per cent by persons participating. In Re Auzex Resources Limited (No 2),[13] a members' scheme, the Court noted voter turnout was 42.3 per cent of votes and 9.75 per cent by headcount.
38 Having regard to the evidence as to mailout with respect to the present Scheme, there is nothing to suggest a flaw in the convening procedure which should be of any concern to the Court.
39 For these reasons, I approved the Scheme of Arrangement and made the orders sought at the conclusion of the hearing of the application for approval. As I indicated at the conclusion of that hearing and the making of the orders, these reasons would be published in due course.
40 The proposed form of order identifies the scheme document by Exhibit reference - rather than annexure - and orders the Plaintiffs to lodge a copy of the Scheme of Arrangement so approved with the order when lodging the approval order with ASIC. This follows the formal order first made by Jacobson J in August 2011 in Ventura Investment Management Ltd (No 3)[14] and subsequently made by his Honour in later applications. The approach has also been followed by other courts - for example by Applegarth J in Re Auzex Resources Ltd (No 2)[15] and Jackson J in Wotif.com Holdings Limited.[16] Moreover, the order for exemption from compliance with s 411(11) of the Act is orthodox where, as here, the rights of shareholders are not modified in any way.[17]
[1] Clarke (as trustee of the Clarke Family Trust) & Ors v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liquidation) & Ors [2014] VSC 516 ('s 33V Approval Decision').
[2] [2014] VSC 334 ('Great Southern Reasons').
[3] Although there are four separate meetings of creditors, the term 'Scheme Meeting' was used in the submissions to embrace all four meetings.
[4] (1977) 3 ACLR 69 ('Eastment'), [72].
[6] Australian Securities Commission v Marlborough Goldmines Limited [1993] HCA 15; (1993) 177 CLR 485 at 505.
[7] Members' Schemes of Arrangement (December 2009) http://www.camac.gov.au/camac/camac.nsf/byHeadline/PDFFinal+Reports+2009/$file/Members\_Schemes\_Report\_Dec09.pdf.
[8] F T Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69.
[9] [2002] NSWSC 117, [7].
[10] [2009] FCA 1261, [9].
[11] [1989] BCLC 672 at 675.
[13] [2012] QSC 101, [18].
[16] (QSC No 7829 of 2014) [Orders only].
[17] See, for example, Re Equinox Resources Limited [2004] WASC 143; (2004) 49 ACSR 692, [22].
(1993) 177 CLR 485