[2022] WASC 257
STRK J
Re Investa Listed Funds Management Ltd [2016] NSWSC 344
at [4]; Re Investa Listed Funds Management Ltd [2016]
NSWSC 369 at [1]; Re Billabong International Ltd (No 2)
[2018] FCA 496; Re Tawana Resources NL (No 2) [2018] FCA
1724 at [18]; Re Prime Media Group Ltd [2019] NSWSC 1888;
and Re Walsh and Co Investments Ltd [2020] NSWSC 1746 at
[66]. In Re Walsh and Co Ltd above at [66], I also dealt with
the question where, by inadvertence in that case, there had been
communications with shareholders which had not been approved
by the Court, and observed that the ultimate question was
whether the manner in which those communications had
occurred had compromised the integrity of the voting process at
the scheme meeting. That question will also arise here and will
be a matter to be addressed at the second Court hearing.
[17] The need for the Court's approval of reminder to vote emails and
investor presentations has also been noted in subsequent cases,
including those to which I referred in Re Tabcorp Holdings Ltd
[2022] NSWSC 448 at [22]. In that case, I accepted a
submission of Senior Counsel that approval would generally be
given to such communications, where the content of a proposed
presentation 'largely mirrors that contained, in more detail, in the
[scheme] booklet and it prominently directs recipients to read
the [scheme] booklet before making any voting decision in
respect of the proposed [scheme].' Plainly, however, that
proposition depends upon the fairness of the applicable
summary and the fact that it does not, for example, highlight
advantages rather than disadvantages of the proposed scheme.
[18] Finally, although this principle ought to be too well-known to
require repetition, applications in respect of schemes are often
conducted on an ex parte basis, where there is no real
contradictor. That position does not change where, as here, leave
is granted to a potential acquirer to appear under rule 2.13 of the
Supreme Court (Corporations) Rules 1999 (NSW), because the
potential acquirer will generally be in the same interest as the
company which is the proponent of the scheme. The obligations
upon the parties, and their legal representatives, in an ex parte
application are well-established, and were summarised by
Gageler J in Aristocrat Technologies Australia Pty Ltd [2016]
HCA 3 at [15] as follows:
It is an elementary principle of our ordinarily
adversarial system of justice that full and fair disclosure
must be made by any person who seeks an order from a
Court ex parte, with the result that failure to make such
disclosure is ordinarily sufficient to warrant discharge
of such order as might be made. The principle is not
confined to particular types of interlocutory orders. Its
rationale lies in the importance to the administration of
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