American Pacific Borates Limited, in the matter of American Pacific Borates Limited (No 2) [2022] FCA 472

American Pacific Borates Limited, in the matter of American Pacific Borates Limited (No 2) [2022] FCA 472

The Scheme was approved because the Court was satisfied that the applicable statutory and procedural requirements were met, the requisite shareholder majorities had approved the Scheme following full and fair disclosure, ASIC had no objection, the Scheme was fair and reasonable, no discretionary matter warranted refusal, and the conditions precedent had been satisfied or waived save for court approval. The exemption from s 411(11) was granted because the Scheme did not involve any modification of rights of shareholders, creditors or persons dealing with the company.

Jurisdiction
Australia
Judgment Date
25 February 2022
Procedural Posture
Corporations Scheme of Arrangement / Second Court Hearing; Application for Approval of Scheme Under S 411(4)(b) of the Corporations Act 2001 (cth) and Exemption Under S 411(12)
Outcome
Scheme approved and exemption from compliance with s 411(11) granted.
Legal Topics
['scheme of Arrangement' 'court Approval of Scheme' 'procedural Requirements' 'court Discretion' 'exemption From S 411(11) Compliance']
['corporations Law'] ['scheme of Arrangement' 'court Approval of Scheme' 'procedural Requirements' 'court Discretion' 'exemption From S 411(11) Compliance']

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Procedural Posture

Corporations Scheme of Arrangement / Second Court Hearing; Application for Approval of Scheme Under S 411(4)(b) of the Corporations Act 2001 (cth) and Exemption Under S 411(12)

Legal Issues

  1. 1 ['Whether the procedural requirements for approval of the scheme of arrangement had been complied with.' 'Whether the Court should exercise its discretion to approve the scheme under s 411(4)(b) of the Corporations Act 2001 (Cth).' 'Whether ABR should be exempted under s 411(12) of the Corporations Act 2001 (Cth) from compliance with s 411(11) in respect of the Scheme.']

Ratio Decidendi

The Scheme was approved because the Court was satisfied that the applicable statutory and procedural requirements were met, the requisite shareholder majorities had approved the Scheme following full and fair disclosure, ASIC had no objection, the Scheme was fair and reasonable, no discretionary matter warranted refusal, and the conditions precedent had been satisfied or waived save for court approval. The exemption from s 411(11) was granted because the Scheme did not involve any modification of rights of shareholders, creditors or persons dealing with the company.

Court Disposition

Scheme approved and exemption from compliance with s 411(11) granted.

Orders

  • ['s 411(4)(b) of the Act, the Scheme be and is hereby approved.' 'Pursuant to section 411(12) of the Act, ABR be exempted from compliance with section 411(11) of the Act in respect of the Scheme.' 'Pursuant to rule 39.34 of the Federal Court Rules 2011 (Cth), these orders be entered forthwith.']