TriAusMin Limited, in the matter of TriAusMin Limited (No 2) [2014] FCA 833

REASONS FOR JUDGMENT 1 This is an application by the plaintiff (TRO) for orders under s 411(4)(b) of the Corporations Act 2001 (Cth) (Corporations Act) approving a scheme of arrangement between TRO and its members pursuant to which TRO shareholders will receive one share in Heron Resources Limited (Heron) for every 2.33 TRO shares held (Scheme). TRO also seeks an order under s 411 (12) that s 411(11) not apply. 2 On 6 June 2014, I made orders for despatch of a Scheme Booklet and to convene a Scheme Meeting on 28 July 2014: see Re TriAusMin Limited [2014] FCA 611 (TriAusMin). Words defined in those reasons and in the Scheme Booklet bear the same meaning in these reasons unless otherwise indicated. All references to section numbers refer to the Corporations Act unless otherwise specified. 3 Dr James Gill, Chairman of TRO, gave evidence that: a. He acted as Chairman of the Scheme Meeting, which was held at the time and place specified in my orders of 6 June 2014; b. He advised the meeting that the no Superior Proposal had been received; c. The results of the poll were that the resolution approving the Scheme was passed by a majority of 99.93% comprising 132,932,936 votes for and 93,500 votes against the Scheme (1500 abstaining). Of the shareholders who attended and voted at the meeting in person or by proxy, 158 voted for and two voted against the resolution. 4 The Australian Securities & Investments Commission (ASIC) provided its "usual letter" under s 411(17)(b) on 4 August 2014. Certificates dated 4 August 2014 executed on behalf of TRO and Heron were tendered. The Certificates are to the effect that the conditions of the Scheme (other than Court approval and lodgement of orders under s 411(4)(b) with ASIC) have been satisfied or waived. 5 I am satisfied, subject to the three matters which were drawn to my attention and discussed below, that the Scheme Booklets were despatched and the Scheme Meeting was held in accordance with my orders dated 6 June 2014. I am satisfied TRO is a Part 5.1 body and that the resolution was passed by the majority of shareholders attending and voting at the Scheme Meeting required to satisfy s 411(4)(a)(ii). The following affidavits were read in support of these conclusions: a. Dr James Gill, Chairman of TRO, affirmed on 29 July 2014. The affidavit related to the conduct of the Scheme Meeting; b. Ms Mary Huang, a solicitor employed by Addisons, the Australian lawyers for TRO, affirmed on 30 July 2014. The affidavit related to lodgement of documents with ASIC; c. Mr Dennis Peterson, a principal of Peterson Law Professional Corporation, the Canadian legal advisors to TRO, sworn on 31 July 2014. The affidavit related to Canadian practice with respect to communications with shareholders; d. Mr David Gardos, a solicitor employed by Peterson Law Professional Corporation, sworn on 31 July 2014. The affidavit related to communications with the Toronto Stock Exchange (TSX); e. Mr David Parkinson, an employee of Boardroom Pty Limited, affirmed on 31 July 2014. Boardroom Pty Limited provides share registry services to TRO in Australia and was responsible for proxy collation and vote tallying services at the Scheme Meeting. Mr Parkinson was returning officer at the Scheme Meeting; f. Mr Steven Hoy of Budget Mailing Services Pty Ltd sworn on 1 August 2014. This affidavit relates to mailing of the Scheme Booklet to Australian and foreign shareholders outside North America; g. Mr Simon Smith, company secretary and chief financial officer of TRO, affirmed on 1 August 2014. The affidavit relates to despatch of the Scheme Booklets and related material, notice to the auditor, appointment of Boardroom Pty Ltd, shareholder turnout, the execution of option cancellation deeds to satisfy a condition precedent to the Scheme, publication of notice of the second court hearing in the Australian on 11 July 2014 in accordance with the orders made on 6 June 2014 and the fact that he has not received notice of anyone's intention to appear at the second court hearing in relation to the Scheme. This affidavit annexed copies of affidavits sworn on 30 June 2014 and 21 July 2014 by Ms Lori Winchester of Equity Financial Trust Company, which performed mailing services to Canadian shareholders and collated proxies. It also annexed a copy of an affidavit sworn on 11 July 2014 by Mr Rasheed Mohammed in relation to mailing of material to shareholders. Mr Peterson gave evidence that the affidavits of Ms Winchester and Mr Mohammed are in a form which would be acceptable to a Canadian court; and h. Ms Li-Jean Chew, of Addisons, affirmed on 4 August 2014. Ms Chew gave evidence about her communications with ASIC. 6 Three matters were drawn to my attention: (1) irregularities in relation to despatch of the Scheme Booklet to five Canadian shareholders; (2) the relatively low voter turnout at the Scheme Meeting; and (3) amendments made to the Notice of Meeting (required by TSX) after the first court hearing and circulation to shareholders of other formal documents which were not approved by the Court.