Newcrest Mining Limited, in the matter of Newcrest Mining Limited (No 2) [2023] FCA 1251

Newcrest Mining Limited, in the matter of Newcrest Mining Limited (No 2) [2023] FCA 1251

The scheme, as amended, was approved because the scheme meeting was properly convened and held, the statutory majorities were obtained, all relevant requirements of the Corporations Act 2001 (Cth) and the Federal Court (Corporations) Rules 2000 (Cth) were complied with, ASIC provided a no objection letter, the amendments were just and known to shareholders when they voted, the s 3(a)(10) exemption conditions were satisfied upon approval, and the scheme was fair and reasonable having regard to overwhelming shareholder support, directors' recommendation, the independent expert's opinion, scheme booklet disclosures, and protections against performance risk.

Jurisdiction
Australia
Judgment Date
17 October 2023
Procedural Posture
Corporations Scheme of Arrangement Concerning Shares / Second Court Hearing for Approval of Scheme of Arrangement
Outcome
Scheme of arrangement approved as modified; orders sought were made.
Legal Topics
['scheme of Arrangement' 'court Approval Under S 411(4)(b) of the Corporations Act 2001 (cth)' 'alteration of Scheme Under S 411(6) of the Corporations Act 2001 (cth)' 'exemption From S 411(11) Under S 411(12) of the Corporations Act 2001 (cth)' 'asic No Objection Under S 411(17)(b) of the Corporations Act 2001 (cth)' 'u.s. Securities Act of 1933 S 3(a)(10) Exemption' 'conditions Precedent' 'shareholder Approval']
['corporations Law' 'securities Regulation'] ['scheme of Arrangement' 'court Approval Under S 411(4)(b) of the Corporations Act 2001 (cth)' 'alteration of Scheme Under S 411(6) of the Corporations Act 2001 (cth)' 'exemption From S 411(11) Under S 411(12) of the Corporations Act 2001 (cth)' 'asic No Objection Under S 411(17)(b) of the Corporations Act 2001 (cth)' 'u.s. Securities Act of 1933 S 3(a)(10) Exemption' 'conditions Precedent' 'shareholder Approval']

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Procedural Posture

Corporations Scheme of Arrangement Concerning Shares / Second Court Hearing for Approval of Scheme of Arrangement

Legal Issues

  1. 1 ['Whether the statutory and procedural requirements for convening and conducting the scheme meeting had been observed.' 'Whether the Court should exercise its discretion under s 411(4)(b) of the Corporations Act 2001 (Cth) to approve the scheme.' 'Whether the amendments to the scheme should be approved under s 411(6) of the Corporations Act 2001 (Cth).' 'Whether the scheme approval could qualify for the exemption in s 3(a)(10) of the Securities Act of 1933 (US).' 'Whether the condition precedent concerning the Securities Act exemption prevented approval of the scheme.' 'Whether s 411(17) of the Corporations Act 2001 (Cth) impeded approval of the scheme.']

Ratio Decidendi

The scheme, as amended, was approved because the scheme meeting was properly convened and held, the statutory majorities were obtained, all relevant requirements of the Corporations Act 2001 (Cth) and the Federal Court (Corporations) Rules 2000 (Cth) were complied with, ASIC provided a no objection letter, the amendments were just and known to shareholders when they voted, the s 3(a)(10) exemption conditions were satisfied upon approval, and the scheme was fair and reasonable having regard to overwhelming shareholder support, directors' recommendation, the independent expert's opinion, scheme booklet disclosures, and protections against performance risk.

Court Disposition

Scheme of arrangement approved as modified; orders sought were made.

Orders

  • ['Pursuant to s 411(6) of the Corporations Act, the Scheme of Arrangement between Newcrest and its members was altered as shown in tracked changes in Annexure A, such that the Scheme of Arrangement as altered is set out in Annexure B.' 'Pursuant to ss 411(4)(b) and 411(6) of the Corporations Act, the Scheme was...