Re Village Roadshow Limited [2003] VSC 440 (14 November 2003)

2 VRL is a public company limited by shares which was incorporated in 1986 and its current Constitution was adopted on or about 21 June 1996. The issued capital of VRL, so far as relevant, is constituted by (using round numbers) 235 million fully-paid 50 cent ordinary shares and 250 million fully-paid 50 cent A Class preference shares. Clause 2.4(a)(i) of the Constitution of VRL sets out the rights of a holder of A Class preference shares, and, inter alia, provides that

"...an A Class preference share shall confer no right to vote at any general meeting except in one or more of the following circumstances:

(A) on a proposal that affects rights attaching to the A Class preference share;

(C) on a proposal to reduce the share capital of the Company..."

3 The proposed Scheme by VRL may in essence be described as follows. VRL was to be authorised in general meeting to make a buy-back offer in relation to A Class preference shares and the effect of the proposed scheme, if approved, would be to make the acceptance of the terms of the buy-back offer compulsory upon all holders of the A Class preference shares. The terms of the buy-back offer are that VRL is to pay for each A Class preference share the sum of $1.25, of which 25c is to be paid in cash and the balance is to be used for the purchase of an unsecured interest-bearing note, repayable over a period of time, and having specified rights attached to it, with the result that each preference share so bought back would be cancelled.

4 On 26 September 2003, VRL applied to the Court for an order for a class meeting of the preference shareholders and for an order approving an explanatory statement to accompany the notice of the meeting, pursuant to s.411(1) of the Act. It was said in written submissions provided to the Court at that time that "...pursuant to s.257D [of the Act], the proposed Buy Back must be approved by a special resolution passed at a general meeting of the Company with no votes being cast in favour of the resolution by any person whose shares are proposed to be bought back or by their associates. In compliance with this requirement, immediately prior to the Scheme Meeting the Company will convene a general meeting at which this resolution will be proposed as a special resolution." The written submissions went on to say, inter alia, that "...ordinary shareholders will not be adversely affected by the Scheme. It is a condition of the Scheme proceeding that ordinary shareholders effectively approve the Scheme by approving the proposed Buy Back in accordance with s.257 of the Act by special resolution. Ordinary shareholders will receive the same information (comprising the Scheme Booklet) as the preference shareholders."

5 On 26 September 2003, the Court (Hansen J) ordered that VRL convene a meeting of the holders of A Class preference shares to consider, and if thought fit, approve a scheme of arrangement between the company and the preference shareholders. The order went on to provide for other details in relation to the meeting and the order approved the scheme booklet set forth in Schedule "A" to the order.

6 The scheme booklet is a substantial document and it is necessary to mention only a few features of it.

7 The scheme booklet stated that the buy-back must be approved at a general meeting by a special resolution of ordinary shareholders who were not also preference shareholders (or associates) and that the scheme itself had to be approved at the Scheme meeting (in accordance with the Act) by a majority by number and 75% by value of the preference shareholders. The booklet contained a notice of general meeting in Appendix E which gave notice of a proposed special resolution "that the Buy-Back and terms of any Buy-Back Agreements entered into under the Buy-Back are approved in accordance with s.257D(1) of the Act". The notice of meeting also stated that "No Ordinary Shareholder who is a Preference Shareholder or an Associate of a Preference Shareholder may vote on the [approval of Buy-Back] resolution... VRL will disregard any votes cast on the [Buy-Back] resolution...by a Preference Shareholder..." The terminology adopted in the proposed special resolution was defined in the notice of meeting by reference to the scheme booklet, which in turn contained the Scheme set out in Appendix B.

8 The Scheme defines "Buy-Back" as the "buy-back by VRL of the Preference Shares pursuant to this Scheme" and "Buy-Back Agreement" as "an agreement between VRL and the Preference Shareholder under which VRL agrees to buy back all of the Preference Shareholder's Preference Shares for the Buy-Back Consideration" (in turn defined as $1.25 cash per preference share), and "Buy-Back Offer" is also defined accordingly. The operative provisions of the Scheme are:

(a) Subject to the Conditions [ie, passing of resolutions, making of Court Order etc.] having been satisfied, VRL will on the Record Date and without the need for any further act, be taken by force of this clause to have made a Buy-Back Offer to each Preference Shareholder at the Record Time.

(b) Effective immediately on VRL making the Buy-Back Offer to a Preference Shareholder, without the need for any further act, the Preference Shareholder will be taken by force of this clause:

(ii) to have entered into a Buy-Back Agreement with VRL; and

(iii) to have [agreed to the mechanism for application of the Buy-Back consideration and issue of unsecured notes etc.]"

9 The scheme booklet contained a report by an independent expert (Grant Samuel & Associates Pty Ltd) which assessed in detail the advantages and disadvantages of the Scheme as affecting preference shareholders. Among other things, the independent expert noted that the consideration of $1.25 per share represented a significant premium to the recent trading price of preference shares. On the other hand, the expert said that that the consideration represented a discount to the estimated underlying value of the preference shares, which was in the range of $2.17 to $2.75, and that, accordingly, there would be "a significant value transfer from holders of Preference Shares to holders of ordinary shares". The expert went on to say that the estimate of underlying value was of only limited relevance because holders of preference shares had no way of accessing underlying value other than in the context of a successful takeover offer for VRL ordinary shares, and that given the controlling shareholding in VRL, held by Village Roadshow Corporation Limited, a company associated with the Kirby family and Mr Graham Burke, shareholders' prospects of realising full underlying value through a takeover offer appeared remote. Accordingly, the expert went on to say that the Scheme would deliver a disproportionate share of market value to holders of preference shares, whereas it was likely, in the absence of the Scheme, that preference shares would trade well below the consideration of $1.25 offered.

10 After discussing the foregoing and a number of other factors, the independent expert concluded that holders of preference shares were likely to be better off if the Scheme was approved than if it was not, and that the Scheme was in the best interests of holders of preference shares.

11 After the scheme booklets were sent out together with the notices of meetings to be held on 3 November 2003, ASIC drew to the attention of VRL a problem arising from what ASIC saw as the proper interpretation of s.257D of the Act. Section 257D(1), which applies to selective buy-backs, provides that:

"...the terms of the buy-back agreement must be approved before it is entered into by either:

(a) a special resolution passed at a general meeting of the company, with no votes being cast in favour of the resolution by any person whose shares are proposed to be bought back or by their associates; or

(b) a resolution agreed to, at a general meeting, by all ordinary shareholders;

12 In substance, ASIC contended that s.257D(1) of the Act prevented ordinary shareholders who held preference shares from voting in favour of the buy-back resolution, but did not prevent such shareholders ("combined shareholders") from voting against the buy-back resolution, and that therefore the scheme booklet was inaccurate when it stated, in effect, that combined shareholders would not be able to vote on the buy-back resolution. After communications between ASIC and VRL, VRL made an announcement to the ASX and published, on 30 October 2003, prominent advertisements in the business section of a number of daily newspapers, stating, in relation to combined shareholders (referred to as "Excluded Holders"), that it had been suggested that they were entitled to vote against but not in favour of the buy-back resolution (referred to as "resolution 1") and that:

"To remove any doubt, VRL will record and report to the Supreme Court of Victoria all votes cast by Excluded Holders against resolution 1 and count those votes should the Court so determine. Shareholders wishing to vote at the General Meeting [ie, on 3 November 2003] can do so in person or by proxy, attorney or corporate representative. Proxy forms must be delivered prior to 7pm Melbourne time on 1 November 2003, including proxy forms of those Excluded Holders wishing to vote against resolution 1."

13 On 31 October 2003, Boswell Filmgesellschaft mbH ("Boswell"), a corporation which had recently acquired small parcels of ordinary and preference shares in VRL, applied to the Court for an order adjourning the two meetings, alternatively for injunctions and other relief. That application was made by interlocutory process in this proceeding and was also launched by originating process and interlocutory process in a new proceeding, No. 8666 of 2003, in which Boswell is plaintiff and VRL is defendant. Boswell's interlocutory process was dismissed by Nettle J for reasons based upon the balance of convenience.

14 On 3 November 2003, the general meeting and the Scheme meeting were both held, all notified business conducted and the votes were counted. Having regard to the questions raised by ASIC about entitlement to vote on the buy-back resolution at the general meeting, the general meeting was adjourned to a time after the anticipated hearing by the Court of the application for approval of the Scheme.

15 I will summarise the evidence as to the results of the voting at the meetings.

16 Dealing first with the general meeting, there being about 140 million ordinary shares in total held by persons who held no preference shares, about 124.4 million of such ordinary shares were in fact voted, in person or by proxy, on the buy-back resolution, as follows:

There were 95 million ordinary shares in total held by combined shareholders (in fact, holding a total of some 200 million preference shares). Of those 95 million ordinary shares, the holders of 15,747,348 ordinary shares cast votes against the buy-back resolution. The potential total vote against the buy-back resolution is therefore 15,930,146. A number of combined shareholders (holding a total of 10,258,292 ordinary shares) voted in favour of the buy-back resolution, despite having being informed that they were not entitled to do so. In addition, there were about 42 million ordinary shares purportedly voted in favour of the buy-back resolution by one member ("Granada") who was at the relevant date still registered as the holder of a number of preference shares but who had recently sold them. There is a separate issue as to whether Granada was entitled to cast votes in favour of the buy-back resolution.

17 Turning to the Scheme meeting, the voting by preference shareholders resulted in an 81% majority by number and an over 97% majority by value, the latter numbers being:

Of the preference shares voted in favour of the Scheme, 137,572,682 preference shares were held by combined shareholders (holding a total of about 46 million ordinary shares). Of the preference shares voted against the Scheme, 3,541,362 preference shares were held by combined shareholders (holding a total of about 10 million ordinary shares). It appears that the holders of about 83 million preference shares did not vote. Of these, the holders of about 24 million preference shares who held no ordinary shares did not vote, constituting about half of the total of preference shares held by persons having no ordinary shares.

18 Subject to arguments as to validity, a special resolution approving the buy-back was thus obtained at the general meeting, even if the votes cast against it by combined shareholders are to be counted. In addition, the requisite majorities in number and value were easily obtained at the Scheme meeting and, on 6 November 2003, Master Evans so certified.

19 By interlocutory process dated 6 November 2003, VRL sought an order that the passing of the buy-back resolution at the general meeting was not invalid solely by reason of the notice of general meeting and accompanying documents containing statements to the effect that combined shareholders were not entitled to vote on the buy-back resolution, on condition that the votes of combined shareholders in fact cast against the buy-back resolution were counted for the purpose of establishing whether the buy-back resolution was passed as a special resolution.

20 On 7 November 2003, VRL appeared on the application for approval of the Scheme pursuant to s.411 of the Act and Boswell appeared to oppose that application. There was also representation on behalf of ASIC for the purpose of assisting the Court.

21 The submissions made on behalf of Boswell may be summarised as follows.

1. Preference shareholders were entitled to vote on the buy-back resolution at the general meeting (subject to s.257D(1)), but were denied that entitlement.

2. Ordinary shareholders who held preference shares were entitled to vote against the buy-back resolution, but were not reasonably informed of their entitlement to do so.

3. VRL had failed to properly identify the relevant classes for the purpose of the order as to meetings, in that there should have been two class meetings: one meeting of preference shareholders who held ordinary shares and one meeting of preference shareholders who did not hold ordinary shares.

4. It was not possible, alternatively not appropriate, for the Court to remedy or disregard any of the above matters and the Scheme could not or should not be approved by the Court.

22 It is convenient in the first place to consider Boswell's submission that preference shareholders were entitled to vote on the buy-back resolution (albeit only against it, as a result of the prohibition in s.257D(1)). This submission was based upon Clause 2.4(a)(i) of VRL's Constitution, an extract of which I have set out in paragraph 2 above. It was submitted that the buy-back resolution was "a proposal that affects rights attaching to the A Class preference share" and "a proposal to reduce the share capital of the company" within the meaning of Clause 2.4(a)(i).

23 On the question whether the buy-back resolution was a proposal affecting rights attaching to the preference shares, it was submitted on behalf of VRL that the resolution did not affect the rights attaching to the shares because the shares were the same both before and after the passing of the resolution, and further that the buy-back resolution did not of itself result in the buy-back or cancellation of any shares the subject of the resolution, because it was only by virtue of the Scheme (if approved) that preference shareholders were deemed to accept the buy-back offer for their shares.

24 In In the matter of Fowlers Vacola Manufacturing Co Limited [1966] VicRp 15; [1966] VR 97, a company sought confirmation of a reduction in its ordinary capital. Holders of preference shares objected in circumstances where preference shareholders had priority to a return of capital on a winding up, but had no such priority on a repayment of capital which was in excess of the company's needs. The Court refused to confirm the reduction of capital on the ground that it was not fair and equitable, but not before holding that it nevertheless had power to confirm the reduction without any sanction by the preference shareholders. Little J said at 103 that the rights attached to the preference shares were not, within the meaning of the company's Articles, "...modified, commuted, affected, abrogated or dealt with" by the reduction of capital because the right to a return of capital on a winding up was not impaired even if the value of that right was affected by the reduction of ordinary capital. The provision in the Articles was concerned with legal rights as such and not with the value in a business sense of those rights. The nature of those rights was not altered.

25 In House of Fraser plc v A.C.G.E. Investments Limited [1987] 1 AC 387, the House of Lords was concerned with a reduction of capital by means of the paying off and cancelling of the company's preference shares. No meeting of preference shareholders had been held to approve the reduction, despite an article which called for such a meeting if the rights attached to the preference shares were "modified, commuted, affected or dealt with". It was held that the proposed cancellation of preference shares did not attract the protection of that article, because the cancellation of the shares was in accordance with the rights originally attached to those shares, specifically, the right to a return of capital in priority to other shareholders where any capital was in excess of the company's needs. The cancellation of the shares did not constitute a modification, commutation, affecting or dealing with rights attached to them. In addition, Lord Keith of Kinkel stated, at 393, in approving a decision of Buckley J in a similar case (In re Saltdean Estate Co Limited [1968] 1 WLR 1844), "[t]hat right was not being affected, modified, dealt with or abrogated, but was being given effect to".

26 In Re Allgas Energy Limited (1998) 27 ACSR 729 (Supreme Court of Queensland), a company sought approval of a capital reduction by cancellation of its preference shares. Thomas J at 734 considered that the cancellation of the preference shares constituted an abrogation of the rights attached to those shares and distinguished the House of Fraser case on the basis that the words applicable in that case did not include the word "abrogation".

27 In my opinion, the decisions in Fowlers Vacola and House of Fraser are both distinguishable on the facts of the present case. In Fowlers Vacola, the legal rights attaching to the preference shares were not affected in any way; if anything, it was the value of those shares alone that was affected by the return of moneys to ordinary shareholders. The case bears no similarity to the present case. In House of Fraser, the repayment of moneys and the cancellation of preference shares was held to be in accordance with the original conditions of their issuance and thus no rights attaching to the shares were affected. In the present case, the proposal for a buy-back of the preference shares is not contemplated by the conditions attaching to the shares.

28 I would respectfully agree with what was said by Thomas J in Allgas Energy that a cancellation of shares may constitute an abrogation of the rights attaching to them, but the word "abrogate" does not appear in VRL's Constitution. The question in the present case is whether the buy-back resolution is a proposal affecting rights attaching to the preference shares. In my opinion, it is. It is true that the buy-back resolution has no legal effect upon rights of itself, but the buy-back offer has no operative existence independently of the Scheme and the buy-back resolution is meaningless without reference to the Scheme and inseverable from it. The Scheme, if approved, will automatically entitle VRL to buy back all of the preference shares, a right not contemplated by the conditions attached to the preference shares. It seems to me to be entirely artificial to suggest that the rights attached to the preference shares are not affected by a proposal constituted by the buy-back resolution and Scheme which proposal is intended to result in the compulsory acquisition and cancellation of the preference shares.

29 I am further of the opinion that the buy-back resolution also constitutes a proposal to reduce the share capital of the company within the meaning of Clause 2.4(a)(i) of VRL's constitution. The purchase of the preference shares and their cancellation as such constitutes a reduction of VRL's capital and the contrary was not suggested. It seems to me, again, to be artificial to say that there is no reduction of capital proposed by the buy-back resolution because that resolution has no effect of itself without approval of the Scheme. Section 258E of the Act recognises that a reduction in share capital is involved in a company's buying back of its own shares if the shares are paid for out of share capital. It was submitted on behalf of VRL that the reference in VRL's Constitution to a proposal to reduce the share capital of the company was a reference to a proposal within Division 1 of Part 2J.1 of the Act (dealing with reductions in share capital) and not to a proposal within Division 2 of that Part (dealing with share buy-backs). This was said to be more so the case because in 1996, the Corporations Law then in force had an entirely different regime in relation to share buy-backs. A number of other textual and contextual arguments were put, but it seems to me that the plain language and intendment of Clause 2.4(a)(i) of VRL's Constitution as to proposed reductions of capital is apt to cover and does extend to the proposal here constituted by the inter-related buy-back resolution and Scheme.

30 Although I have concluded that VRL's Constitution entitles the preference shareholders to vote on the buy-back resolution, the question whether they are lawfully entitled to do so also depends upon the proper interpretation of s.257D(1) of the Act. It was common ground that combined shareholders were not entitled to vote in favour of the buy-back resolution by virtue of s.257D(1), and it is clear that preference shareholders would likewise not be entitled to vote in favour of the buy-back resolution. The principal question debated was whether combined shareholders were entitled to vote against the buy-back resolution by virtue of s.257D(1), and the question also arises whether preference shareholders (if otherwise entitled to vote under VRL's Constitution) are entitled to vote against the buy-back resolution by virtue of s.257D(1).

31 It was submitted on behalf of Boswell, supported by ASIC, that the plain meaning of s.257D(1)(a), "with no votes being cast in favour of the resolution by any person whose shares are proposed to be bought back", showed that Parliament intended to exclude only votes cast in favour of the resolution by such persons and not votes cast against the resolution. It was submitted on behalf of VRL that the section should not be treated as having effected any change in the law from the time, prior to the First Corporate Law Simplification Act 1995, when s.206JA of the then Corporations Law expressed the voting exclusion in the case of a selective buy-back in the following terms "...no votes cast in relation to the resolution". I was referred to some extraneous materials which I do not think assist in resolving the problem and to some passing judicial comments, which I also find to be of no assistance.[1]

32 In my opinion, the words mean what they say, and it is only votes in favour of the buy-back resolution which may not be cast (or may not be counted). A special resolution is defined by s.9 of the Act to mean "...a resolution...that has been passed by at least 75% of the votes cast by members entitled to vote on the resolution". I do not think that the language of s.257D(1)(a) can legitimately be read as removing the right of members otherwise so entitled to vote. If it had been intended to exclude votes cast against the resolution as well as votes cast in favour, it would have been easy to say so explicitly or to retain the language used prior to the First Corporate Law Simplification Act 1995. I conclude that combined shareholders were entitled to vote against the buy-back resolution and that preference shareholders were also entitled to vote against the buy-back resolution. Of course, combined shareholders were not so informed except by a very late series of advertisements, and preference shareholders were not so informed at all. It will be necessary to consider whether these "irregularities" can or should be cured or rectified.

33 In relation to the Granada shares, I am of the firm view that they could not be cast or counted in favour of the buy-back resolution because Granada was a person "whose shares were proposed to be bought back" within the meaning of s.257D(1)(a) of the Act. I accept Boswell's submission that the section can only look to the registered holder of such shares.

34 Turning next to the question whether the appropriate class meetings were ordered, it was submitted by Boswell that, because there was a substantial transfer of underlying value from preference shareholders to ordinary shareholders, there was such a dissimilarity of interest between combined shareholders on the one hand and preference shareholders who did not hold ordinary shares on the other hand as would preclude their consulting together with a view to their common interest. Therefore these two groups of preference shareholders should have been treated as separate "classes". It was submitted that the failure to call separate meetings of these two classes of preference shareholders went to "jurisdiction" and that the Scheme must fail. A calculation was produced on behalf of Boswell, purporting to show that, on the basis that the underlying value of the preference shares was $2.75, the transfer of value from preference shareholders without ordinary shares to combined shareholders totalled $151M. On the other hand, a calculation prepared in answer on behalf of VRL purported to show that, adopting for the sake of the argument an underlying value of $2.75, the calculation produced by Boswell was incorrect because it did not take into account a further factor: the capital amount to be attributed as being applied at the cost of ordinary shareholders and used in purchasing the preference shares at the price of $1.25 per share. The calculation produced by VRL showed that combined shareholders would arguably suffer a notional loss of approximately $221M (excluding the Granada shares). Even if that calculation be incorrect, I do not in any event accept Boswell's submission based upon "value shift" because, as the independent expert's report makes clear, the underlying value is only one of many factors worthy of consideration, and an equally relevant consideration is that preference shareholders are to receive a substantial premium to market value, thereby causing an immediate detriment to all holders of ordinary shares. Having heard the oral submissions, and having read the written submissions provided after the hearing (by leave) by both VRL and Boswell, I am of the view, on the whole of the material before the Court, that the interests of the combined shareholders are not dissimilar, or not sufficiently dissimilar, to the interests of preference shareholders who hold no ordinary shares, as would justify separate class meetings.

35 VRL advanced a further basis for rejecting the argument that there should have been meetings of two classes of preference shareholders. VRL submitted that the better view of the authorities was, putting it shortly, that differing economic interests within a class, as opposed to differing legal rights, were an insufficient basis for separate meetings. Such matters might more appropriately be taken into account in the discretion of the Court in deciding whether or not to approve a scheme.[2] However, it is unnecessary to canvass the authorities, because I am satisfied that dissimilar class interests among the preference shareholders have not been demonstrated.

36 I am therefore satisfied that the Court has jurisdiction to exercise its discretion to approve (or disapprove) the Scheme, but it is necessary to consider the effect of the "irregularities" in the voting at the general meeting.

37 It was submitted on behalf of VRL that if the combined shareholders were entitled to vote against the buy-back resolution, then those votes should be counted and that there remained, after counting them, the requisite majority for a special resolution. VRL next submitted that the failure to inform combined shareholders of their entitlement to vote against the buy-back resolution was a procedural irregularity within the meaning of s.1322(2) of the Act and thus the buy-back resolution was not invalidated unless the Court was of the opinion that the irregularity "has caused, or may cause, substantial injustice that cannot be remedied by any order of the Court" and that no such injustice had been or might have been caused. Alternatively, VRL applied for an order under s.1322(4) of the Act declaring that the buy-back resolution was not invalid by reason of any contravention of a provision of the Act or of a provision of VRL's Constitution.

38 I will assume, without deciding, that, pursuant to s.1322(2), the late notification by advertisement that combined shareholders were entitled to vote against the resolution was a procedural irregularity and that therefore the buy-back resolution is not necessarily invalidated thereby. I will further assume, without deciding, that, pursuant to s.1322(2), the failure to notify preference shareholders that they were entitled to vote against the resolution was also a procedural irregularity and that therefore the buy-back resolution is not necessarily invalidated by this irregularity either. Even making those assumptions, I am not satisfied that these irregularities may not have caused substantial injustice, given that many combined shareholders did not vote in person or by proxy and the notification to them of their possible right to vote against the buy-back resolution was given only by advertisement and then only a very short time before the proxy deadline and the general meeting itself. Further, I am not satisfied that the failure to notify preference shareholders of their right to vote against the buy-back resolution may not have caused substantial injustice. It is possible, of course, to hypothesise, having regard to the actual voting figures, that if these irregularities had not occurred, it would not have made any significant difference to the result. However that is speculation and it is clearly possible that many shareholders in both categories have been deprived of a right to vote against the buy-back resolution, of which they were or may have been unaware, and which they may have exercised had the irregularities not occurred. Of course, if the "irregularities" are substantive rather than procedural, the position for VRL is not advanced; rather, it is worse.

39 In those circumstances, I do not think that it is properly open to the Court to disregard these irregularities and to move on to consider whether the Court should, in its discretion, approve the Scheme or not on "the merits". If nothing more is to occur, the application for approval must be dismissed. However, it may be possible to reconvene a general meeting, upon appropriate notice to all ordinary and all preference shareholders, and to put the buy-back resolution and any other appropriate resolutions to them afresh, and the present application for approval of the Scheme might be adjourned until that has been done. I have not heard, but am prepared to hear, submissions as to whether such a course is logistically possible, permissible as a matter of law, and in conformity with the proposed Scheme.

40 I will hear submissions from the parties as to what orders (if any) should be made in the light of the foregoing reasons.

I certify that this and the 15 preceding pages are a true copy of the reasons for Judgment of Mandie J of the Supreme Court of Victoria delivered on 14 November 2003.

[1] Westchester Financial Services Pty Ltd v Acclaim Exploration NL (1999) 32 ACSR 499 at [13]; Tiger Investment Company Limited [1999] NSWSC 1290; (1999) 33 ACSR 438; McMillan Properties Pty Ltd v WC Penfold Limited [2001] NSWSC 1173; (2001) 40 ACSR 319.

[2] See In re Alabama, New Orleans, Texas and Pacific Junction Railway Company [1891] 1 Ch 213, 239-240 per Lindley LJ; Sovereign Life Assurance Co v Dodd [1891-4] All ER 246; In re United Provident Assurance Company Limited [1910] 2 Ch 477; In re AW Allen Limited [1930] VicLawRp 38; [1930] VLR 251; In the matter of Chevron (Sydney) Limited [1963] VicRp 39; [1963] VR 249, especially at 255-256 per Adam J; Re Jax Marine Pty Ltd [1967] 1 NSWR 145, 148 per Street J; Re Landmark Corporation Limited [1968] 1 NSWR 759; In re Waymouth Guarantee and Discount Co Limited (1974) 10 SASR 407, 425-425, 457; Re Stewart and Sullivan Farms Limited [1981] 1 NZLR 712; Nordic Bank plc v International Harvester Australia Limited [1983] VicRp 89; [1983] 2 VR 298, 301-303 (Full Court: Lush, Murphy and Fullagar JJ); Re Gazelle Constructions Pty Ltd (1984) 2 ACLC 680. A number of other authorities were also referred to, including Re Hellenic and General Trust Limited [1975] 3 All ER 382, in which latter case it might be thought that Templeman J took a wider or more liberal approach - likewise a wider approach might be exemplified by Re National Dairy Association of New Zealand Limited [1987] NZHC 360; [1987] 2 NZLR 607, 609.