United Minerals Corporation NL (ACN 107 061 343), in the matter of United Minerals Corporation NL (ACN 107 061 343) (No 2) [2010] FCA 47

REASONS FOR JUDGMENT 1 On 17 December 2009, I made orders pursuant to s 411 of the Corporations Act 2001 (Cth) (CA) permitting the summoning of a scheme meeting and granting further leave to make an application for orders under that section following the meeting for approval of a proposed scheme of arrangement (United Minerals Corporation NL (ACN 107 061 343), In the matter of United Minerals Corporation NL (ACN 107 061 343) [2010] FCA 7). 2 The plaintiff (United Minerals) now applies for orders that the proposed scheme of arrangement between the plaintiff and its shareholders (the Scheme) agreed to by a resolution of shareholders of United Minerals at a shareholders' meeting be approved, and for consequential orders. 3 United Mineral's application was supported by affidavits confirming the details of the results of the Scheme meeting and confirming compliance with the provisions of Div 3 of the Federal Court (Corporations) Rules 2000 (the Rules) including the provisions relating to the advertising of notice of the final court hearing and service of documents on the Australian Securities and Investments Commission (ASIC). 4 It has been observed and I agree that ASIC has a significant role in schemes in the interest of investor and creditor protection. ASIC, having been requested to do so, has given a s 411(17)(b) CA statement of no objection in respect of the Scheme. 5 I am satisfied that the evidence discloses that the special statutory majority, that is, the numerical or headcount majority as well as the voting majority required pursuant to s 411(4)(a)(ii) CA were achieved at the Scheme meeting. 6 I am also satisfied that the Scheme complies with Pt 5.1 CA and applicable regulations; has had all necessary approval on the basis of full and fair disclosure and adequate information to members of United Minerals; and is fair and reasonable. It is unconditional and binding on all members subject only to the Court's approval. 7 I am also satisfied that the proposed Scheme was advanced in good faith and that on its face it is sufficiently fair and reasonable so that an intelligent and honest person able to vote for it, might approve it (see Re Scarborough Equities Ltd (No 2) [2009] FCA 484 per Siopis J). 8 The Court is required by s 411(17) CA to not approve any scheme unless para (a) or para (b) of the section is satisfied. The subsection reads as follows: 411 Administration of compromises etc. … (17) The Court must not approve a compromise or arrangement under this section unless: (a) it is satisfied that the compromise or arrangement has not been proposed for the purpose of enabling any person to avoid the operation of any of the provisions of Chapter 6; or (b) there is produced to the Court a statement in writing by ASIC stating that ASIC has no objection to the compromise or arrangement; but the Court need not approve a compromise or arrangement merely because a statement by ASIC stating that ASIC has no objection to the compromise or arrangement has been produced to the Court as mentioned in paragraph (b). 9 Those paragraphs are in the alternative. The written statement of no objection by ASIC, while not binding the Court, may remove the requirement that the Court be satisfied that the arrangement has not been proposed for the proscribed purpose. I do rely on the statement but also observe there is no evidence of any indication that the purpose of the Scheme is to enable any person to avoid the operation of the provisions of Ch 6 CA setting out the takeover regime by which compulsory acquisition would otherwise be effected. On the face of the materials considered in both the first application and the second application, in the absence of objection from ASIC, and in the approval by the majority of the members who have had adequate time and adequate information to consider the Scheme, I am satisfied that this Scheme is not being proposed for the purpose of enabling any person to avoid the operation of any of the provisions of Ch 6 CA. 10 It appears to me that there has been statutory compliance in all necessary respects, that the Scheme is not promoted in pursuit of any illegitimate purpose and that the proposal advanced is fair and reasonable. 11 Accordingly I make the following orders: