mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Revlon Inc v MacAndrews &amp; Forbes Holdings Inc 506 A2d 173 (Del 1986)
Outcome: cited
In the United States (US), there is no r&eacute;gime comparable to that of the United Kingdom or Australia. In the US questions of the legitimacy of break fees arise in litigated contests, notably in the Delaware Court of Chancery and, on appeal from it, the Supreme Court of Delaware. Consequently, break fees have been considered in Delaware in the factually rich matrix of (often disputed) evidence. In those cases, the plaintiff is often a competing bidder or an aggrieved stockholder who assumes the task of proving a breach of the target company's directors' fiduciary duty to obtain the highest price for the target's shareholders, and not to allow any conflict of interest or other factor to interfere with their doing so, as recognised in Revlon Inc v MacAndrews &amp; Forbes Holdings Inc 506 A2d 173 (Del Supr 1986). 20 This is a very different situation from that which prevails in applications under s 411 of the Act, even after allowance is made for performance of the plaintiff's duty to draw the Australian Court's attention to matters that might point against approval. 21 The Delaware cases have recognised the tension that potentially exists between "the business judgment rule" and the fiduciary duty of the directors. The business judgment rule cautions against the courts' substituting their opinion as to where the commercial interests of the corporation and its shareholders lie for the opinion of the directors.
Case: Ball v Pearsall (1987) 10 NSWLR 700
Outcome: cited
At a meeting convened under s 411 all members are entitled to vote, even if some of them would not be entitled to do so at a general meeting of a company. Without more, the quorum for the meeting would be that required at common law for the meeting of the members of an unincorporated voluntary association of individuals in the absence of a consensual arrangement to the contrary, all of the members: see, for example, Green v The Queen (1891) 17 VLR 329; Municipality of St Leonards v Williams [1966] Tas SR 166; and Ball v Pearsall (1987) 10 NSWLR 700. Obviously, there is no question here of the members having consented to fewer members than all being the quorum for a scheme meeting.
Case: Green v The Queen (1891) 17 VLR 329
Outcome: cited
At a meeting convened under s 411 all members are entitled to vote, even if some of them would not be entitled to do so at a general meeting of a company. Without more, the quorum for the meeting would be that required at common law for the meeting of the members of an unincorporated voluntary association of individuals in the absence of a consensual arrangement to the contrary, all of the members: see, for example, Green v The Queen (1891) 17 VLR 329; Municipality of St Leonards v Williams [1966] Tas SR 166; and Ball v Pearsall (1987) 10 NSWLR 700. Obviously, there is no question here of the members having consented to fewer members than all being the quorum for a scheme meeting.
Case: In the Application of United Medical Protection [2007] FCA 631
Outcome: referred to
Recent cases in this Court in which transfer orders under s 413 have been made in connection with the approval of compromises or arrangements under Pt 5.1 of the Act include Royal Victorian Institute for the Blind Ltd v RBS.RVIB.VAF (2004) 206 ALR 581; SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 470; Re Stork ICM Australia Pty Ltd (2007) 25 ACLC 208 and In the Application of United Medical Protection [2007] FCA 631 ( United Medical Protection ). 44 Finally, in United Medical Protection [2007] FCA 631 , Finkelstein J considered that while there might be different categories of membership of the medical defence organisations that were before him (both were companies limited by guarantee, whose members were medical practitioners) there was for each organisation but one "class" for the purposes of s 411 of the Act, because the categories of members were not "so dissimilar as to make it impossible for them to consult together with a view to their common interest" (at [15]). 45 It was my opinion that the different categories of members of PGA and PGA Tour have so much in common that it was not necessary or indeed appropriate that there be separate meetings of the various classes of them. The differences between their rights pale into insignificance when compared with their community of interest in the question whether their association's activities, assets and liabilities should be combined with those of the other association, and whether they should all become members of the new merged entity, in less numerous and simplified classes closely resembling, albeit not identical to, the existing classes. It should not go unremarked that if separate meetings were held, it would be possible, for example, for any of the 27 classes, with only, say, two members, to veto the proposal, even though all of the 1,446 Full Members of PGA and all of the 157 Full Members of PGA Tour agreed to it. 46 I did not think that separate class meetings were called for.
Case: Municipality of St Leonards v Williams [1966] Tas SR 166
Outcome: cited
At a meeting convened under s 411 all members are entitled to vote, even if some of them would not be entitled to do so at a general meeting of a company. Without more, the quorum for the meeting would be that required at common law for the meeting of the members of an unincorporated voluntary association of individuals in the absence of a consensual arrangement to the contrary, all of the members: see, for example, Green v The Queen (1891) 17 VLR 329; Municipality of St Leonards v Williams [1966] Tas SR 166; and Ball v Pearsall (1987) 10 NSWLR 700. Obviously, there is no question here of the members having consented to fewer members than all being the quorum for a scheme meeting.
Case: Nordic Bank plc v International Harvester Australia Ltd [1983] 2 VR 298
Outcome: referred to
In Nordic Bank plc v International Harvester Australia Ltd [1983] 2 VR 298, the Full Court of the Supreme Court of Victoria said (at 301): It is appropriate that creditors who share an interest via-&agrave;-vis the company which places them in a position distinct from that of other creditors and so dissimilar as to make it impossible to consult together with a view to their common interest should be allowed to make a separate decision. To break creditors up into classes, however, will give each class an opportunity to veto the scheme, a process which undermines the basic approach of decision by a large majority, and one which should only be permitted if there are dissimilar interests related to the company and its scheme to be protected.
Case: Re Australian Consolidated Press Ltd (1994) 14 ACSR 639
Outcome: referred to
The Court's power to make an order with respect to the holding and conduct of scheme meetings was considered by McLelland CJ in Eq in Re Australian Consolidated Press Ltd (1994) 14 ACSR 639. His Honour stated (at 640): The power of the court under s 411 is limited by the terms of that section, and the constitutional source of the power of any meeting convened under that section is the section itself, activated by the order of the court. Such a meeting is not a general meeting of the company, even if it happens that all the persons and the only persons entitled to attend it are the members of the company. It is a meeting which is convened for a specific statutory purpose and which is subject to provisions different from those to which a general meeting of the company convened under its articles of association is subject. The court can, pursuant to s 1319 of the Corporations Law, give procedural directions in relation to such a meeting which may not correspond with the procedural requirements of a general meeting of the company convened under its articles of association. 32 The statutory power to which his Honour referred is now found in s 1319 of the Act, which provides: Where, under this Act, the Court orders a meeting to be convened, the Court may, subject to this Act, give such directions with respect to the convening, holding or conduct of the meeting, and such ancillary or consequential directions in relation to the meeting, as it thinks fit. 33 I was of the view that the Court should, for the purpose of r 3.3(2) of the Rules, "otherwise order". Accordingly, I ordered, having regard to the provisions in the articles in the two constitutions, that the quorum at the two Scheme meetings be simply 20 PGA Members present in person or by proxy, or 20 PGA Tour Members present in person or by proxy, as the case may be. 34 A particular matter addressed in the Scheme Book, to which Mr Oakes drew my attention, is the question of classes of members. PGA has 21 classes of members. However, this statement does not adequately reflect the position. For example, one class, "International Member", comprises only two members, as does the class "Student Member", whereas the class "Full Member" accounts for 1,446 of the total of 2,344 PGA Members. There are several classes that have no members and several others are considered redundant and are no longer used. 35 PGA Tour has six classes of members. Of the total membership of 178 PGA Tour Members, 157 belong to the "Full Member" class. The next largest class is that of "Life Member" which has only 11 members. There are, in addition, six "Honorary Members", four "Affiliate Members" and no "Restricted Members" or "Temporary Members".
Case: Re HIH Casualty and General Insurance Ltd [2006] NSWSC 485 ; (2006) 57 ACSR 791
Outcome: cited
In UDL Argos Engineering &amp; Heavy Industries Co Ltd v Li Oi Lin [2001] 3 HKLRD 634, Lord Millett NPJ (with whom Li CJ, Bokhary, Chan and Ribeiro PJJ agreed) set out, inter alia, the following principles (at [27]): (2) Persons whose rights are so dissimilar that they cannot sensibly consult together with a view to their common interest must be given separate meetings. Persons whose rights are sufficiently similar that they can consult together with a view to their common interest should be summoned to a single meeting. (3) The test is based on similarity or dissimilarity of legal rights against the company, not on similarity or dissimilarity of interests not derived from such legal rights. The fact that individuals may hold divergent views based on their private interests not derived from their legal rights against the company is not a ground for calling separate meetings. (4) The question is whether the rights which are to be released or varied under the Scheme or the new rights which the Scheme gives in their place are so different that the Scheme must be treated as a compromise or arrangement with more than one class. Barrett J quoted this and other passages from Lord Millett's judgment with apparent approval in Re HIH Casualty and General Insurance Ltd [2006] NSWSC 485 ; (2006) 57 ACSR 791 at [69] .
Case: Re Stork ICM Australia Pty (2007) 25 ACLC 208
Outcome: cited
Recent cases in this Court in which transfer orders under s 413 have been made in connection with the approval of compromises or arrangements under Pt 5.1 of the Act include Royal Victorian Institute for the Blind Ltd v RBS.RVIB.VAF (2004) 206 ALR 581; SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 470; Re Stork ICM Australia Pty Ltd (2007) 25 ACLC 208 and In the Application of United Medical Protection [2007] FCA 631 ( United Medical Protection ).
Case: Royal Victorian Institute for the Blind Ltd v RBS.RVIB.VAF (2004) 206 ALR 581
Outcome: cited
Recent cases in this Court in which transfer orders under s 413 have been made in connection with the approval of compromises or arrangements under Pt 5.1 of the Act include Royal Victorian Institute for the Blind Ltd v RBS.RVIB.VAF (2004) 206 ALR 581; SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 470; Re Stork ICM Australia Pty Ltd (2007) 25 ACLC 208 and In the Application of United Medical Protection [2007] FCA 631 ( United Medical Protection ).
Case: SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 470
Outcome: cited
Recent cases in this Court in which transfer orders under s 413 have been made in connection with the approval of compromises or arrangements under Pt 5.1 of the Act include Royal Victorian Institute for the Blind Ltd v RBS.RVIB.VAF (2004) 206 ALR 581; SGIC Insurance Ltd v Insurance Australia Ltd (2004) 51 ACSR 470; Re Stork ICM Australia Pty Ltd (2007) 25 ACLC 208 and In the Application of United Medical Protection [2007] FCA 631 ( United Medical Protection ).
Case: Sovereign Life Assurance Co v Dodd [1892] 2 QB 573
Outcome: referred to
In the leading authority on the question of classes, Sovereign Life Assurance Co v Dodd [1892] 2 QB 573, there was a question whether a life assurance company's creditors, who were policy holders, should be required to consider a scheme in one meeting of all creditors or in two meetings: one meeting of the holders of policies that had matured and the other of the holders of policies that were yet to mature. In the former case but not the latter, the holder would have become absolutely entitled to be paid a specific amount. The Court of Appeal agreed with the primary Judge that separate meetings should have been held. Bowen LJ stated (at 583): If we are to construe the section as it is suggested on behalf of the plaintiffs it ought to be construed, we should be holding that a class of policy-holders whose interests are uncertain may be a mere majority in value override the interests of those who have nothing to do with futurity, and whose rights have been already ascertained. It is obvious that these two sets of interests are inconsistent, and that those whose policies are still current are deeply interested in sacrificing the interests of those whose policies have matured. They are bound by no community of interest, and their claims are not capable of being ascertained by any common system of valuation. Are we, then, justified in so construing the Act of Parliament as to include these persons in one class? The word "class" is vague, and to find out what is meant by it we must look at the scope of the section, which is a section enabling the Court to order a meeting of a class of creditors to be called. It seems plain that we must give such a meaning to the term "class" as will prevent the section being so worked as to result in confiscation and injustice, and that it must be confined to those persons whose rights are not so dissimilar as to make it impossible for them to consult together with a view to their common interest. If that be so, in considering the deed of arrangement made with the company which took over the business of the Sovereign, we must so construe it as not to include in one class those whose policies had already ripened into debts, and those whose policies might not ripen into debts for years to come; for the position of a person like the defendant, who had an ascertained sum of 2000 l . due to him from the company, was entirely different from that of those policy-holders whose future was entirely uncertain. It was, therefore, not right to summon as members of one and the same class those who had an absolute bar against any claim of the company and those who had not.
Case: UDL Argos Engineering &amp; Heavy Industries Co Ltd v Li Oi Lin [2001] 3 HKLRD 634
Outcome: referred to
In UDL Argos Engineering &amp; Heavy Industries Co Ltd v Li Oi Lin [2001] 3 HKLRD 634, Lord Millett NPJ (with whom Li CJ, Bokhary, Chan and Ribeiro PJJ agreed) set out, inter alia, the following principles (at [27]): (2) Persons whose rights are so dissimilar that they cannot sensibly consult together with a view to their common interest must be given separate meetings. Persons whose rights are sufficiently similar that they can consult together with a view to their common interest should be summoned to a single meeting. (3) The test is based on similarity or dissimilarity of legal rights against the company, not on similarity or dissimilarity of interests not derived from such legal rights. The fact that individuals may hold divergent views based on their private interests not derived from their legal rights against the company is not a ground for calling separate meetings. (4) The question is whether the rights which are to be released or varied under the Scheme or the new rights which the Scheme gives in their place are so different that the Scheme must be treated as a compromise or arrangement with more than one class. Barrett J quoted this and other passages from Lord Millett's judgment with apparent approval in Re HIH Casualty and General Insurance Ltd [2006] NSWSC 485 ; (2006) 57 ACSR 791 at [69] .
Case: A Goninan &amp; Co Ltd v Atlas Steel (Aust) Pty Ltd [2003] NSWSC 956
Outcome: cited
It is clear from a review of these provisions, the rules as they are to be applied by the Supreme Court express the court's discretion to order the consolidation or case management of proceedings more broadly than the counterpart rules in this Court. As r 28.5(a) and (b) combine to make clear, there is no specific principle requiring consolidation, nor any specific limitation against ordering it: A Goninan &amp; Co Ltd v Atlas Steel (Aust) Pty Ltd [2003] NSWSC 956. 101 If any of the conditions in r 28.5(a), (b) or (c) are met, proceedings may be consolidated (or dealt with in any way outlined in the rules) despite the fact that they have completely different parties.
Case: AMP Financial Planning v Green [2004] NSWSC 1099 ; (2004) 51 ACSR 693
Outcome: cited
The requirement of s 5(4) of the Cross-vesting Act is the existence of 'related proceedings' between the court in which the application is made and the court to which the matters are being sought to be transferred. The authorities on this issue establish that there do not need to be identical parties to the two, or more, proceedings before they can be considered to be 'related' for the purposes of enlivening the cross-vesting power of the court. It is enough that the proceedings have one common party and involves common issues and common questions: Watson v CGU Insurance Limited [2006] FCA 1630 ; AMP Financial Planning Pty Ltd v Green [2004] NSWSC 1099 ; (2004) 51 ACSR 693. Related Proceedings - Identical Parties, Common Facts and Common Issues
Case: Bank of Queensland Limited (ACN 009 656 540) v Industrial Court of New South Wales (2008) 170 IR 427
Outcome: referred to
On 11 December 2007, Greenwood J heard two motions in the Bank's Federal Court proceeding. By the first, the OMB parties sought an order pursuant to s 5(4) of the Cross-vesting Act that the proceeding be transferred to the Supreme Court. By the second, the Bank parties sought an order that particular paragraphs of the defence of the OMB parties be struck out, although, in submissions, the order sought was more confined. On 7 March 2008, his Honour re-opened the hearing to hear further evidence on the transfer motion and on 12 March 2008, he dismissed the transfer motion and ordered that a number of paragraphs of the defence of the OMB parties be struck out: Bank of Queensland Limited (ACN 009 656 540) v Industrial Court of New South Wales (2008) 170 IR 427.
Case: Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886 ; (2000) 106 FCR 51
Outcome: cited
There is no attempt in the OMB parties' material to identify with precision the evidence which falls into this category. There are merely general assertions. For evidence to be admissible under s 97(l) of the Evidence Act , it must have significant probative value. In determining whether evidence has significant probative value, the Court would take into account the differences in the representations alleged to have been made as well as the timing of the representations (cf. Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886 ; (2000) 106 FCR 51 at 69 71). 69 To the extent that an assumption can be made that the evidence of various of the OMB parties will reflect the allegations in their statements of claim, then it is apparent that there are substantial differences with respect to representations said to have been made to the OMB parties in the respective proceedings. 70 From the Traderight statement of claim, it is apparent that the Traderight proceedings concern events occurring between 28 January 2004 and 30 August 2006. There are 26 meetings pleaded and in 23 of them, representations are said to have been made. Those claimed to have made representations are Mr Allsop, Ms Quinn, an unnamed branch manager from New Farm, Mr McCarthy, Mr Liddy, Mr Teitzel, Mr McEvoy, Mr O'Brien, Mr Edwards, Ms Smith and Mr Ferguson.
Case: Rossmick No. 1 Pty Ltd v Bank of Queensland Limited [2008] FCAFC 81
Outcome: referred to
On 8 April 2008, Spender J granted leave to the OMB parties to appeal against Greenwood J's judgment. The Full Court that heard this appeal rightly construed it as being restricted to challenging the orders of the primary judge made on the strike-out application; indeed, it was common ground that no appeal could be brought against an order dismissing an application to cross-vest proceedings to another court under the Cross-vesting Act: s 13 of that Act. On 23 May 2008, the appeal was allowed in part; a number of paragraphs of the defence of the OMB parties were struck out with the OMB parties being granted leave to re-plead generally: Rossmick No. 1 Pty Ltd v Bank of Queensland Limited [2008] FCAFC 81. 15 On 19 June 2008, Greenwood J set the Bank's Federal Court proceeding down for hearing on 13 October 2008. On 7 July 2008, the OMB parties filed and served an amended defence and on 14 July 2008, the Bank parties filed a motion seeking to strike out a number of paragraphs of the amended defence. This motion was heard by Logan J on 18 and 22 July 2008 when his Honour reserved. 16 This was the state of play in the Bank's Federal Court proceeding when the transfer motions in the Rossmick Federal Court proceeding and the Jude Federal Court proceeding referred to in [1] above came before me on 7 August 2008.
Case: Watson v CGU Insurance Limited [2006] FCA 1630
Outcome: cited
The requirement of s 5(4) of the Cross-vesting Act is the existence of 'related proceedings' between the court in which the application is made and the court to which the matters are being sought to be transferred. The authorities on this issue establish that there do not need to be identical parties to the two, or more, proceedings before they can be considered to be 'related' for the purposes of enlivening the cross-vesting power of the court. It is enough that the proceedings have one common party and involves common issues and common questions: Watson v CGU Insurance Limited [2006] FCA 1630 ; AMP Financial Planning Pty Ltd v Green [2004] NSWSC 1099 ; (2004) 51 ACSR 693. Related Proceedings - Identical Parties, Common Facts and Common Issues
Case: Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380
Outcome: cited
the Federal Court has power to grant an order in the nature of a Mareva order is established by cases such as Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380. The Court being one established by the Parliament pursuant to the Constitution and the Federal Court of Australia Act 1982 (Cth) (Federal Court of Australia Act), the source of power is to be found in s 23 of the Federal Court of Australia Act. It may be described aptly as part of the Court's incidental jurisdiction.