Excel Coal Limited, In the matter of Excel Coal Limited [2006] FCA 1383

Excel Coal Limited, In the matter of Excel Coal Limited [2006] FCA 1383

It was appropriate to make the 22 September 2006 orders so that Excel shareholders could consider the proposed amendments to the Scheme after Peabody Energy increased the consideration and agreed to acquire 19.99 percent of Excel's issued ordinary shares. After the Scheme Meeting was duly convened, the required majorities passed resolutions amending and agreeing to the Scheme as amended, and ASIC provided a statement under s 411(17)(b). It was therefore appropriate to approve the Scheme as amended under ss 411(4)(b) and 411(6), with a further minor amendment that did not mark a significant departure from the shareholder-approved amended Scheme.

Jurisdiction
Australia
Judgment Date
23 October 2006
Procedural Posture
Proceeding for Approval of a Scheme of Arrangement Under Pt 5.1 of the Corporations Act 2001 (cth) / Reasons for Orders Made at the Second and Third Court Hearings on 22 September 2006 and 10 October 2006
Outcome
Orders made approving the Supplementary Scheme Booklet and revised Scheme Meeting arrangements on 22 September 2006; Scheme of arrangement approved as amended on 10 October 2006.
Legal Topics
['scheme of Arrangement' 'share Acquisition Scheme' 'court Approval of Scheme' 'supplementary Scheme Booklet' 'shareholder Meeting']
['corporations Law'] ['scheme of Arrangement' 'share Acquisition Scheme' 'court Approval of Scheme' 'supplementary Scheme Booklet' 'shareholder Meeting']

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Procedural Posture

Proceeding for Approval of a Scheme of Arrangement Under Pt 5.1 of the Corporations Act 2001 (cth) / Reasons for Orders Made at the Second and Third Court Hearings on 22 September 2006 and 10 October 2006

Legal Issues

  1. 1 ["Whether orders should be made to amend the earlier meeting order, approve distribution of a Supplementary Scheme Booklet and convene the Scheme Meeting in accordance with a revised notice after Peabody Energy increased the scheme consideration and acquired 19.99 percent of Excel's issued ordinary shares." 'Whether the scheme of arrangement, as amended and agreed to by the required shareholder majorities, should be approved under s 411(4)(b) and s 411(6) of the Corporations Act 2001 (Cth).']

Ratio Decidendi

It was appropriate to make the 22 September 2006 orders so that Excel shareholders could consider the proposed amendments to the Scheme after Peabody Energy increased the consideration and agreed to acquire 19.99 percent of Excel's issued ordinary shares. After the Scheme Meeting was duly convened, the required majorities passed resolutions amending and agreeing to the Scheme as amended, and ASIC provided a statement under s 411(17)(b). It was therefore appropriate to approve the Scheme as amended under ss 411(4)(b) and 411(6), with a further minor amendment that did not mark a significant departure from the shareholder-approved amended Scheme.

Court Disposition

Orders made approving the Supplementary Scheme Booklet and revised Scheme Meeting arrangements on 22 September 2006; Scheme of arrangement approved as amended on 10 October 2006.

Orders

  • ['The plaintiff was granted leave to file the affidavit of Stephen John Smith sworn 21 September 2006 and the second affidavit of Anthony James Haggarty sworn 21 September 2006.' "Order 1(a) made on 30 August 2006 was amended by inserting after 'shareholders' the words 'other than Peabody Energy Corporation, Peabody...