Post on 08-Apr-2018
1
GREAT SOUTHERN MANAGERS AUSTRALIA LIMITED (IN
LIQUIDATION) ACN 083 825 405
SCHEME OF ARRANGEMENT UNDER SECTION 411 OF
THE CORPORATIONS ACT 2001 (CTH)
DLA Piper Australia
Level 31, 152-158 St Georges Terrace
Perth WA 6000
Australia
Ferrier Hodgson
Level 28, 108 St Georges Terrace
Perth WA 6000
Australia
1
CONTENTS
1. DEFINITIONS AND INTERPRETATION 5
2. COMMENCEMENT OF SCHEME 11
3. SCHEME TO BE APPROVED AND MONIES PAID 11
4. THE SCHEME 12
5. RELEASE BY SCHEME CREDITORS 14
6. SCHEME ADMINISTRATORS' APPOINTMENT, ROLE, POWERS AND
REMUNERATION
15
7. COSTS OF ADMINISTERING SCHEME 17
8. CESSATION OF SCHEME ADMINISTRATORS 18
9. MEETINGS OF SCHEME CREDITORS 18
10. COMPLETION OF SCHEME 20
11. GENERAL 21
12. SCHEDULE 1 - DEED OF SETTLEMENT (NOT ATTACHED) 24
13. SCHEDULE 2 - FERRIER HODGSON'S SCHEDULED RATES 25
14. SCHEDULE 3 - DEED POLL (CLAUSE 6.7 OF SCHEME) 26
15. SCHEDULE 4 - SCHEME ADMINISTRATOR'S DEED POLL (CLAUSES 8.5
AND 8.5 OF SCHEME)
27
DBS/DBS/3089794/975018/AUM/1211844873.1 2
This scheme of arrangement is made under section 411 of the Corporations Act 2001 (Cth)
Between the parties
The Company Great Southern Managers Australia Ltd (In Liquidation)
ACN 083 825 405
c/- Ferrier Hodgson, Chartered Accountants
Level 28, 108 St Georges Terrace
Perth, Western Australia
Scheme Creditors As defined in the Scheme
Scheme Administrators Martin Bruce Jones and James Henry Stewart
c/- Ferrier Hodgson, Chartered Accountants
Level 28, 108 St Georges Terrace
Perth, Western Australia
Recitals A GSMAL and GSF are wholly owned subsidiaries of
GSL.
B GSMAL carried on business as the responsible entity
of a number of agricultural and forestry managed
investment schemes.
C GSF carried on the business of providing loans to
Scheme Members.
D GSS held an Australian Financial Services Licence
and used authorised representatives to provide advice
on managed investment schemes issued by any of the
Great Southern Companies.
E Rhodes, Butlin, Young, Mews and Patrikeos were
directors of GSMAL and other Great Southern
Companies.
F The BEN Parties purchased from GSF certain loans
made by GSF to Scheme Members and provided other
loans directly to Scheme Members.
G Javelin purchased from GSF certain loans made by
DBS/DBS/3089794/975018/AUM/1211844873.1 3
GSF to Scheme Members.
H On 16 May 2009, GSMAL and certain of its Related
Bodies Corporate entered into voluntary
administration under Part 5.3A of the Act.
I On 19 November 2009, creditors resolved to appoint
the Liquidators as joint and several liquidators of
GSMAL and certain of its Related Bodies Corporate
pursuant to section 439C of the Act.
J Proceedings have been commenced by or against or
involving Scheme Members (and others) in respect of,
or arising out of, a number of agricultural and forestry
managed investment schemes managed by GSMAL.
K In addition, the Liquidators commenced the
Liquidators' Claims against the defendants referred to
therein, including the Directors.
L On 23 July 2014, the Settlement Parties (including
GSMAL, GSF, the Defendants and the Lead
Plaintiffs) executed the Deed of Settlement to resolve
the entirety of their disputes (save for certain claims,
including the Liquidators' Claims), on the terms and
conditions set out in the Deed of Settlement.
M The Deed of Settlement was subject to and conditional
upon the following conditions precedent being
satisfied (each of which has now been satisfied):
(i) The Court making an order pursuant to
section 33ZF of the Supreme Court Act 1986
(Vic) nunc pro tunc (i.e. retrospectively) to
the effect that the Lead Plaintiffs have the
authority of the Group Members to enter into
and give effect to the Deed of Settlement and
the transactions contemplated thereby for and
on behalf of the Group Members.
(ii) The Court making an order pursuant to
section 477(2A) and/or section 477(2B) of
the Act approving nunc pro tunc the entry
into of the Deed of Settlement by the
Liquidators.
(iii) The Court making an order pursuant to
section 33V(1) of the Supreme Court Act
1986 (Vic) approving the settlement of the
Group Proceedings on the terms and
conditions contained in the Deed of
Settlement.
N Further, insofar as it relates to PDS Claims involving
DBS/DBS/3089794/975018/AUM/1211844873.1 4
the Great Southern Companies (including GSMAL
and GSF), the Directors and their Related Persons, the
Non-Executive Directors and their Related Persons,
the Insurers, Related Entities of GSMAL or Related
Persons of Related Entities of GSMAL, the Deed of
Settlement was subject to and conditional upon the
following additional conditions precedent being
satisfied:
(i) The Liquidators receiving such other
approvals as they consider necessary under
section 477 of the Act and directions under
section 479(3) of the Act (this condition has
now been satisfied).
(ii) The Court approving a scheme of
arrangement on terms which contain the key
features described in clause 3 of the Deed of
Settlement or such other terms as are agreed
by the parties to the Deed of Settlement
(other than the BEN Parties and Javelin).
O The Liquidators are required, under the terms of the
Deed of Settlement, to propose the Scheme to the
Scheme Creditors, pursuant to Part 5.1 of the Act.
P The Deed of Settlement provides that, subject to
Settlement Approval being obtained and the Scheme
becoming effective, the Insurers of GSMAL will:
(i) pay the M+K Trust Account Payment to
M+K Lawyers, to be disbursed by M+K
Lawyers in accordance with clause 6.1.1.1 of
the Deed of Settlement;
(ii) pay the Scheme Creditors' Pool to the
Scheme Administrators, to be distributed by
the Scheme Administrators to the Scheme
Creditors on a pro rata basis; and
(iii) agree on and pay to the Scheme
Administrators, the Scheme Costs Pool.
Q By the Scheme Costs Deed, the Insurers of GSMAL
and the Liquidators have agreed that the Scheme
Costs Pool will be the sum of $7,000,000. The
Insurers of GSMAL have paid that sum to the
Liquidators to be held on account of the Scheme
Costs. The Insurers of GSMAL and the Liquidators
have also agreed that any remainder of the Scheme
Costs Pool, together with the interest accrued on the
Scheme Costs Pool, will be repaid by the Scheme
Administrators to the Insurers of GSMAL.
DBS/DBS/3089794/975018/AUM/1211844873.1 5
R Subsequent to the Deed of Settlement being entered
into, the Honourable Justice Croft determined (in the
Great Southern Reasons (published as an annexure to
the s33V Approval Decision) that the Group
Proceedings and the M+K Counterclaim Proceedings
would fail.
S On 20 April 2015, the Liquidators' Claims were
settled. The settlement was approved, and directions
given, pursuant to sections 477 and 511 of the Act, by
the Supreme Court of Western Australia on 12 May
2015. Settlement of the Liquidators' Claims is not
affected by the Scheme.
_________________________________________________________________________
1. DEFINITIONS AND INTERPRETATION
Definitions
1.1 The following definitions apply to this Scheme:
"Act" means the Corporations Act 2001 (Cth);
"ASIC" means the Australian Securities & Investments Commission;
"BEN Parties" means Bendigo and Adelaide Bank Limited ACN 068 049 178 of The
Bendigo Centre, Bendigo VIC 3550 and the other companies listed in Schedule 2 to the Deed
of Settlement;
"Business Day" means a day (other than a Saturday, Sunday or public holiday) on which
banks are open for general banking business in the place where an act is to be performed or a
payment is to be made;
"Butlin" means Phillip Charles Butlin;
"Commencement Date" means the date on which an office copy of the order of the Court
approving the Scheme under section 411(4)(b) of the Act is lodged with ASIC, subject to
payment being made by the Insurers of GSMAL in accordance with clause 3.1.4 of the
Scheme;
"Contribution Proceedings" means any claims for contribution which have been made
between the defendant Parties or third Parties in the Proceedings;
"Court" means the Supreme Court of Victoria;
"Deed of Settlement" means the deed of settlement entered into on 23 July 2014 and
included as Schedule 1 to this Scheme; (The Deed of Settlement is not attached to this
Scheme, but can be accessed by visiting the Ferrier Hodgson Website, accessing the
electronic version of the Explanatory Statement and clicking on the following link:
DBS/DBS/3089794/975018/AUM/1211844873.1 6
[Hyperlink]. Further, a copy of the Deed of Settlement will also be lodged with ASIC at the
time of lodging this Scheme.)
"Defendants" means GSMAL, GSF, the Directors, the BEN Parties and Javelin;
"Directors" means each of Young, Rhodes and Butlin;
"Ferrier Hodgson Website" means the Liquidators'/Scheme Administrators' website at
http://www.ferrierhodgson.com/au/administrations/great-southern-managers-australia-ltd--
scheme-of-arrangement;
"Great Southern Companies" means each of the companies listed in Schedule 3 to the
Deed of Settlement;
"Great Southern Reasons" means the Honourable Justice Croft's reasons in respect of the
Group Proceedings and the M+K Counterclaim Proceedings, annexed to the s33V Approval
Decision;
"Group Members" means each person or entity falling within the definition of a group
member in any one or more of the Group Proceedings and who has not opted out of the Group
Proceeding or Group Proceedings;
"Group Proceedings" means Supreme Court of Victoria Proceeding Nos SCI 2011 03616,
SCI 2011 03431, SCI 2010 02882, SCI 2011 05062, SCI 2011 05049, SCI 2011 04862, SCI
2011 04916, SCI 2011 04476, SCI 2011 04001, SCI 2011 04135, SCI 2011 04071, SCI 2011
04207, SCI 2011 03513, SCI 2011 03992, SCI 2011 03390 and SCI 2011 03614;
"GSF" means Great Southern Finance Pty Ltd (in Liquidation) ACN 009 235 143 of c/-
Ferrier Hodgson, Level 28, 108 St Georges Terrace, Perth in the State of Western Australia;
"GSMAL" means Great Southern Managers Australia Limited (in Liquidation) ACN 083
825 405 of c/- Ferrier Hodgson, Level 28, 108 St Georges Terrace, Perth in the State of
Western Australia;
"GSL" means Great Southern Limited (in Liquidation) ACN 052 046 536 of c/- Ferrier
Hodgson, Level 28, 108 St Georges Terrace, Perth in the State of Western Australia;
"GSS" means Great Southern Securities Pty Ltd (in Liquidation) ACN 009 283 621 of c/-
Ferrier Hodgson, Level 28, 108 St Georges Terrace, Perth in the State of Western Australia;
"GST" means goods and services tax levied under the GST Act;
"GST Act" means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
"Insurers" means each of Chubb Insurance Company of Australia Limited ACN 003 710
647, Liberty Mutual Insurance Company t/as Liberty Insurance Underwriters ARBN 086 083
605, Allianz Australia Insurance Limited ACN 000 122 850, AIG Australia Limited ACN 004
727 753, DUAL Australia Pty Limited ACN 107 553 257, AXIS Speciality Europe Public
Limited Company t/as Axis Speciality Australia ARBN 131 203 122, QBE Insurance
DBS/DBS/3089794/975018/AUM/1211844873.1 7
(Australia) Limited ACN 003 191 035, Wesfarmers General Insurance Limited ACN 000 036
279;
"Insurers of GSMAL" means each of the Insurers other than QBE Insurance (Australia)
Limited (ACN 003 191 035);
"Investments" means any investment by a Scheme Member in any managed investment
scheme in or post 1998 of which GSMAL is or was the responsible entity;
"Javelin" means Javelin Asset Management Pty Ltd ACN 136 367 194 of 73 Palmerston
Street, Mosman Park in the State of Western Australia;
"Lead Plaintiffs" means Peter Clarke in his capacity as trustee for the Clarke Family Trust,
Samantha Barbara Murray, Raymond Carl Drummond, Laurence David Hogan, Mohetishwar
Vijendra Prasad, Janet Micallef, Jaclyne Edwina Fisher and Glenn Ford;
"Liquidators" means Andrew John Saker (up until his retirement on 13 June 2014 for
GSMAL and on 1 September 2014 for all other Great Southern Companies), Darren Gordon
Weaver (up until his retirement on 7 December 2015 for the Great Southern Companies
(other than GSMAL, GSL, GSF and Great Southern Pine Pty Ltd) and on 18 December 2015
for GSMAL, GSL, GSF and Great Southern Pine Pty Ltd), Martin Bruce Jones and James
Henry Stewart, as joint and several liquidators of the Great Southern Companies;
"Liquidators' Claims" means any claim, demand, action, suit or proceeding for damages,
debt, restitution, equitable compensation, account, injunctive relief, specific performance or
any other remedy, whether by original claim, cross-claim, claim for contribution or otherwise
whether presently known or unknown and whether arising at common law, in equity, under
statute or otherwise, able to be pursued by the plaintiffs in the following Supreme Court of
Western Australia Proceedings CIV 1549 of 2011, CIV 2611 of 2012, CIV 2634 of 2012,
CIV 2635 of 2012 and CIV 2913 of 2013 and any other proceedings commenced by the
Liquidators and/or the Great Southern Companies against third parties;
"Loan Agreements" means the loan agreements under which monies were advanced to
Scheme Members to finance their interest in managed investment schemes of which GSMAL,
and (in the case of the Great Southern 2008 Future Forestry Investment Scheme) GSMAL and
Rural Funds Management Limited ACN 077 492 838 (formerly Great Southern Funds
Management Limited), is or was the responsible entity;
"Mews" means Jeffrey Arthur Sydney Mews;
"M+K Clients" means the persons referred to in Schedule 4 to the Deed of Settlement;
"M+K Counterclaim Claimants" means each of the plaintiffs by counterclaim in the M+K
Counterclaim Proceedings;
"M+K Counterclaim Proceedings" means each of the proceedings listed in Schedule 1 to
the Deed of Settlement;
DBS/DBS/3089794/975018/AUM/1211844873.1 8
"M+K Trust Account Payment" means the sum of $20,250,000 payable by Insurers of
GSMAL to the M+K Trust Account pursuant to clause 6.1.1.1 of the Deed of Settlement;
"Non-Executive Directors" means Mews and Patrikeos;
"Other Claims" means, in respect of Scheme Creditors, any claim, demand, action, suit or
proceeding for damages, debt, restitution, equitable compensation, account, injunctive relief,
specific performance, declaratory relief or any other remedy, whether by original claim,
cross-claim, claim for contribution or otherwise whether presently known or unknown and
whether arising at common law, in equity, under statute or otherwise and whether involving a
third party or party to the Deed of Settlement and all liabilities, losses, damages, costs
(including legal costs on a full indemnity basis), interest, fees, and penalties of whatever
description (whether actual, contingent or prospective), other than a PDS Claim.
"Party" means a party to one or more of the Proceedings and "Parties" means all of them;
"Patrikeos" means Peter John Patrikeos;
"PDS" means a Product Disclosure Statement issued by GSMAL and, in the case of the
Great Southern 2008 Future Forestry Investment Scheme, includes the Product Disclosure
Statement issued by GSMAL and Rural Funds Management Limited (formerly Great
Southern Funds Management Limited);
"PDS Claim" means any claim, demand, action, suit or proceeding for damages, debt,
restitution, equitable compensation, account, injunctive relief, specific performance,
declaratory relief or any other remedy, whether by original claim, cross-claim, claim for
contribution or otherwise whether presently known or unknown and whether arising at
common law, in equity, under statute or otherwise and whether involving a third party or
party to the Deed of Settlement and all liabilities, losses, damages, costs (including legal costs
on a full indemnity basis), interest, fees, and penalties of whatever description (whether
actual, contingent or prospective) arising out of, or in connection with, the contents of or the
facts giving rise to, the PDSs, the Loan Agreements and/or the allegations made in or the facts
giving rise to each of the Proceedings;
"Privilege Proceedings" means Supreme Court of Victoria Proceeding Nos SCI 2012 02658
and APCI 2012 0153;
"Proceedings" means the Group Proceedings, the Contribution Proceedings, the M+K
Counterclaim Proceedings, the Privilege Proceedings, the Uplifted Proceedings and the
Section 6 Proceedings;
"Regulations" means the Corporations Regulations 2001 (Cth);
"Related Bodies Corporate" has the meaning given to that expression in section 50 of the
Act;
"Related Entities" includes all of an entity's current or former directors, officers, employees
and/or agents, all of an entity's Related Bodies Corporate and all current or former directors,
DBS/DBS/3089794/975018/AUM/1211844873.1 9
officers, employees and/or agents of an entity's Related Bodies Corporate. For the avoidance
of doubt, the "Related Entities" of GSMAL includes each Insured as defined in the
Department of Financial Institutions Alpha Policy No: 93255855/93255857 for the Policy
Period 30 September 2008 to 30 September 2009 between Chubb Insurance Company of
Australia Limited, Liberty Mutual Insurance Company and GSL;
"Related Person" includes a spouse or de facto spouse, child, parent or other relative of an
individual and any company, partnership, joint venture, association, trust, corporation or other
body corporate controlled by or associated with that individual;
"Rhodes" means Cameron Arthur Rhodes;
"Scheduled Rates" means the rates set out in Schedule 2 to this Scheme;
"Scheme" or "Scheme of Arrangement" means the scheme of arrangement constituted by
this document;
"Scheme Administrators" means Martin Bruce Jones and James Henry Stewart as scheme
administrators of this Scheme and it includes such other persons appointed to replace the
proposed Scheme Administrators;
"Scheme Administrator's Deed Poll" means the deed poll executed by each of the Scheme
Administrators in the form set out in Schedule 4 to this Scheme;
"Scheme Costs" means the Liquidators' and Scheme Administrators' reasonable
remuneration, costs and out of pocket expenses incurred in direct relation to proposing,
promoting, implementing and administering this Scheme;
"Scheme Costs Deed" means the deed of settlement and release entered into by the Insurers
of GSMAL and the Liquidators on or about 4 July 2014;
"Scheme Costs Pool" means the sum contributed by the Insurers of GSMAL to meet the
Scheme Costs;
"Scheme Creditors" means persons who:
(a) made Investments; and
(b) have a PDS Claim which relates to or arises out of any product disclosure statement
issued by GSMAL (and, in the case of the Great Southern 2008 Forestry Investment
Scheme, the product disclosure statement issued by GSMAL and Rural Funds
Management Limited (formerly Great Southern Funds Management Limited)),
including, but not limited to, the issue of any such product disclosure statements or in
any statements in or omissions from such product disclosure statements;
"Scheme Creditors' Pool" means the sum of $3,550,000 to be contributed by the Insurers of
GSMAL to be distributed by the Scheme Administrators to the Scheme Creditors;
DBS/DBS/3089794/975018/AUM/1211844873.1 10
"Scheme Meeting" means the meeting or meetings ordered by the Court to be convened
under section 411(1) of the Act in relation to this Scheme;
"Scheme Members" means the members who invested in any managed investment scheme
in or post 1998 of which GSMAL is or was the responsible entity, including former scheme
members;
"Scheme Period" means the period commencing on the Commencement Date and ending on
the date set out in clause 10.2 of this Scheme;
"Section 6 Proceedings" means Supreme Court of New South Wales Court of Appeal
Proceedings No. 2013/31425, High Court of Australia Proceeding No S188 of 2013 and High
Court of Australia Proceeding No S189 of 2013;
"Settlement Approval" means the Supreme Court of Victoria approving the settlement of
the Group Proceedings pursuant to section 33V(1) of the Supreme Court Act 1986 (Vic) on
the terms contained in the Deed of Settlement;
"Settlement Parties" means the parties to the Deed of Settlement;
"s33V Approval Decision" means the decision delivered by Justice Croft on 11 December
2014 in respect of the application for Settlement Approval, [2014] VSC 516;
"Uplifted Proceedings" means each of the proceedings listed in Schedule 5 to the Deed of
Settlement; and
"Young" means John Carlton Young.
Rules of interpretation
1.2 The headings in this document are for convenience only. They do not affect the interpretation
of this Scheme.
1.3 The following rules also apply in interpreting this Scheme, except where the context makes it
clear that a rule is not intended to apply:
1.3.1 a reference to:
1.3.1.1 a legislative provision or legislation (including subordinate
legislation) is to that provision or legislation as amended, re-enacted
or replaced, and includes any subordinate legislation issued under it;
1.3.1.2 a document (including this Scheme) or agreement, or a provision of a
document (including this Scheme) or agreement, is to that document,
agreement or provision as amended, supplemented, replaced or
novated;
DBS/DBS/3089794/975018/AUM/1211844873.1 11
1.3.1.3 a person includes any type of entity or body of persons, whether or
not it is incorporated or has a separate legal identity, and any
executor, administrator or successor in law of the person; and
1.3.1.4 anything (including a right, obligation or concept) includes each part
of it;
1.3.2 a singular word includes the plural, and vice versa;
1.3.3 a word which suggests one gender includes the other genders;
1.3.4 if a word or phrase is defined, any other grammatical form of that word or phrase
has a corresponding meaning;
1.3.5 all references to time are references to time in Melbourne Victoriaunless
otherwise indicated;
1.3.6 if an example is given of anything (including a right, obligation or concept), such
as by saying it includes something else, the example does not limit the scope of
that thing;
1.3.7 the words "associate", "entity", "officer", "relevant interest" and "subsidiary"
have the same meaning as in section 9 of the Act;
1.3.8 the words "related body corporate" have the same meaning as in section 50 of the
Act;
1.3.9 the word "agreement" includes an undertaking or other binding arrangement or
understanding, whether or not in writing;
1.3.10 where the day on or by which any thing is to occur or be done is not a Business
Day, that thing must be done on or by the next Business Day; and
1.3.11 a reference to $ or dollar is to Australian currency.
2. COMMENCEMENT OF SCHEME
2.1 This Scheme will commence on the Commencement Date.
3. SCHEME TO BE APPROVED AND MONIES PAID
3.1 This Scheme will only proceed and be implemented upon:
3.1.1 approval of the Scheme by the requisite majorities of Scheme Creditors at the
Scheme Meeting;
3.1.2 approval of the Scheme, with or without modification (provided that any such
modification does not derogate from the key features of the Scheme set out in
DBS/DBS/3089794/975018/AUM/1211844873.1 12
clause 3.1 of the Deed of Settlement), by the Court under section 411(4)(b) of the
Act;
3.1.3 lodgement with ASIC of a sealed copy of the order of Court; and
3.1.4 payment by the Insurers of GSMAL of:
3.1.4.1 the Scheme Costs Pool to the Scheme Administrators; and
3.1.4.2 the M+K Trust Account Payment to M+K Lawyers,
by no later than 5 (five) Business Days after lodgement with ASIC of a sealed
copy of the order of Court.
4. THE SCHEME
Application
4.1 This Scheme applies to all Scheme Creditors in respect of any and all PDS Claims the
Scheme Creditors have or may have or have had against GSMAL and the following third
parties:
4.1.1 Related Entities of GSMAL (including GSF, GSS and current and former
directors of GSMAL and GSMAL's Related Bodies Corporate);
4.1.2 Related Persons of Related Entities of GSMAL;
4.1.3 Directors and their Related Persons;
4.1.4 Non-Executive Directors and their Related Persons; and
4.1.5 each of the Insurers.
Scheme Creditors' Pool
4.2 The Insurers of GSMAL will contribute the sum of $3,550,000, and this will constitute the
Scheme Creditors' Pool to be distributed by the Scheme Administrators to the Scheme
Creditors on a pro rata basis.
Entitlement to dividends
4.3 Under this Scheme, each Scheme Creditor will receive, by way of a dividend, a share of the
Scheme Creditors' Pool calculated pro rata by reference to:
4.3.1 the total face value of the amounts invested by each Scheme Creditor in the
relevant GSMAL managed investment schemes (which amounts do not include
GST or borrowing costs), as recorded in the relevant scheme registers as at 16
May 2009; and
4.3.2 any other amounts accepted by the Scheme Administrators pursuant to clause 4.4
below.
DBS/DBS/3089794/975018/AUM/1211844873.1 13
4.4 If a Scheme Creditor's investment is not recorded in the relevant scheme registers as at 16
May 2009 for any reason whatsoever, including the expiry of a lease, the Scheme Creditor
will not be entitled to a receive pro rata dividend from the Scheme Creditors' Pool, unless
within 21 days after the Scheme Administrators issue a notice of intention to declare a
dividend, the Scheme Creditor provides to the Scheme Administrators satisfactory evidence
of the face value of the Scheme Creditor's investment, and the Scheme Administrators admit
the face value of the investment.
4.5 If a Scheme Creditor's investment is not recorded in the relevant scheme registers as at 16
May 2009 and the Scheme Creditor does not provide to the Scheme Administrators
satisfactory evidence of the Scheme Creditor's investment within the timeframe stipulated in
clause 4.4 above, the Scheme Creditor will be excluded from participating in the distribution
to which the Scheme Administrators' notice relates, and the Scheme Creditor irrevocably
waives any and all rights and entitlements to receive the pro rata dividend.
4.6 Scheme Creditors whose investments are recorded in the scheme registers as at 16 May 2009,
or whose investments are accepted by the Scheme Administrators in accordance with clause
4.4 above, need not do anything further (including filing a proof of debt) to establish their
entitlement to receive a pro rata dividend from the Scheme Creditors' Pool.
4.7 Notwithstanding clause 4.4, if a Scheme Creditor transferred the Scheme Creditor's interest in
any GSMAL managed investment scheme to a nominee or third party after 16 May 2009, the
Scheme Creditor must, within 7 days of the Scheme becoming effective, issue a notice in
writing to the Scheme Administrators to request that payment of any dividends be made to the
Scheme Creditor and not the nominee or third party. If the Scheme Creditor does not issue
such a notice, the Scheme Administrators may, in their absolute discretion, make payment of
that Scheme Creditor's entitlement to the Scheme Creditor, nominee or third party in full and
final satisfaction and discharge of the Scheme Creditor's entitlement under the Scheme.
Payment of dividends
4.8 Payments of dividends to Scheme Creditors may be made, in the absolute discretion of the
Scheme Administrators:
4.8.1 by cheque in favour of the Scheme Creditor or the nominee or third party to
whom the Scheme Creditor has transferred its interest as referred to in clause 4.7
above (as may be applicable), and sent through the post at the risk of the Scheme
Creditor to the last known address of the Scheme Creditor, nominee or third
party, or to such other address as such Scheme Creditor, nominee or third party
may from time to time notify in writing to GSMAL or the Scheme
Administrators;
4.8.2 by electronic funds transfer to such bank account as the Scheme Creditor,
nominee or third party concerned may from time to time notify in writing to
GSMAL or the Scheme Administrators; or
4.8.3 in such other manner as the Scheme Administrators may from time to time
determine.
DBS/DBS/3089794/975018/AUM/1211844873.1 14
4.9 Payment under or pursuant to the Scheme will be deemed to have been made on the day that
the cheque is posted or the electronic funds transfer is made by the Scheme Administrators to
the nominated account of the Scheme Creditor, nominee or third party, as the case may be.
Payment of any such cheque by the banker on whom it is drawn will be satisfaction of the
monies in respect of which it was drawn, and receipt of the amount of such electronic funds
transfer into such account will be satisfaction of the monies in respect of which it was paid.
Unclaimed dividends
4.10 Payment of dividends pursuant to clauses 4.8 and 4.9 above must be debited against the bank
account of GSMAL which will be established to hold the Scheme Creditors' Pool, by no later
than 6 months after the Scheme Administrators declaring the dividend.
4.11 If there remain monies in the Scheme Creditors' Pool that are unclaimed for any reason
whatsoever beyond the period stipulated in clause 4.10, (including but not limited to cheques
sent to Scheme Creditors not being debited by that time, cheques being returned to the
Scheme Administrators and the Scheme Administrators not being able to locate the Scheme
Creditors), the Scheme Administrators will pay the remainder of the monies to ASIC in
accordance with section 544 of the Act. Upon the Scheme Administrators paying the
remainder of the monies to ASIC, the Scheme Administrators will cease to have any liability
in respect of those monies.
5. RELEASE BY SCHEME CREDITORS
Release
5.1 Subject to clause 3 above, each Scheme Creditor releases GSMAL and the following third
parties from all PDS Claims:
5.1.1 Related Entities of GSMAL (including GSF, GSS and current and former
directors of GSMAL and GSMAL's Related Bodies Corporate);
5.1.2 Related Persons of Related Entities of GSMAL;
5.1.3 Directors and their Related Persons;
5.1.4 Non-Executive Directors and their Related Persons; and
5.1.5 each of the Insurers.
5.2 In the event that the Scheme does not proceed and is not implemented, the releases by the
Scheme Creditors in favour of the parties identified at clause 5.1 above will not take effect.
Bar
5.3 Subject to clause 3 above, on and from the Commencement Date, each of the parties
identified under clause 5.1 above may plead this clause in bar against any PDS Claim
(including for costs) brought by any Scheme Creditor or any person who claims through the
Scheme Creditor.
DBS/DBS/3089794/975018/AUM/1211844873.1 15
Covenant
5.4 Subject to clause 3 above, on and from the Commencement Date, each Scheme Creditor
irrevocably covenants that it will not bring or pursue, or procure a third party to bring or
pursue, a PDS Claim against any of the parties identified in clause 5.1 above in respect of any
matter which is the subject of the release in that clause.
Authority
5.5 Subject to clause 3 above, on and from the Commencement Date, each Scheme Creditor
irrevocably authorises each of the Liquidators to consent to, and take any other step necessary
to obtain, orders of the Court discontinuing, staying, dismissing or otherwise disposing of the
Proceedings on the basis that there be no order as to costs or that each party bears its own
costs, as set out in clauses 6.1.12, 6.1.13, 6.1.14, 6.1.16 and 6.1.17 of the Deed of Settlement.
5.6 The Liquidators may rely on clauses 5.1, 5.3 and 5.4 above in order to defend any PDS Claim
and prevent the continuation of any of the Proceedings.
5.7 For the avoidance of doubt, the rights under clause 5.5 above are in addition to any other
rights the Liquidators may have to effect a stay or dismissal or to otherwise dispose of the
Proceedings.
6. SCHEME ADMINISTRATORS' APPOINTMENT, ROLE, POWERS AND
REMUNERATION
Appointment
6.1 Provided each of Martin Bruce Jones and James Henry Stewart has, as at the Commencement
Date:
6.1.1 given and has not withdrawn his consent to act as a Scheme Administrator;
6.1.2 executed a Scheme Administrator's Deed Poll, in the form of the deed poll at
Schedule 4 to the Scheme, and delivered it to GSMAL,
they shall be the initial Scheme Administrators from the Commencement Date.
Role of Scheme Administrators
6.2 The Scheme Administrators must administer the Scheme in accordance with its terms.
6.3 The Scheme Administrators will have the powers and discretions conferred, and the duties,
obligations and responsibilities imposed, by the Scheme, the Act and the Regulations.
6.4 The Scheme Administrators may act jointly, severally or jointly and severally.
6.5 Without limiting the powers and discretions conferred on the Scheme Administrators by the
Scheme, the Act and the Regulations, for the duration of the Scheme Period, the Scheme
Administrators will:
DBS/DBS/3089794/975018/AUM/1211844873.1 16
6.5.1 have the power to give effect to and enforce the terms of the Scheme;
6.5.2 engage solicitors and consultants on such terms as the Scheme Administrators, in
their absolute discretion, decide;
6.5.3 have the power to appoint an agent or delegate to carry out any act which the
Scheme Administrators, in their absolute discretion, consider would be done
more effectively or efficiently by an agent or delegate, provided always that the
Scheme Administrators will remain liable for the acts or omissions of any agent
or delegate appointed by the Scheme Administrators;
6.5.4 have the power to do all things necessary, appropriate or incidental for
effectively, efficiently and properly carrying out the powers, duties and
responsibilities of the Scheme Administrators (including taking any legal action);
6.5.5 have the power to do anything that is necessary, appropriate or convenient for
giving effect to the Scheme; and
6.5.6 have the power to apply or to cause or procure GSMAL to apply to the Court in
relation to any matter arising in relation to or arising out of the implementation of
the Scheme (including, but not limited to, the exercise of the Scheme
Administrators' powers and discretions, and the discharge of the Scheme
Administrators duties, obligations and responsibilities) and for directions about
any such matter.
6.6 In exercising the powers conferred by the Scheme or the Act and in undertaking the duties
and functions provided for in the Scheme or the Act, the Scheme Administrators:
6.6.1 act, and are taken to act, as agents for and on behalf of GSMAL; and
6.6.2 do not act as, and do not have any of the duties owed by, a trustee.
Specific powers
6.7 Subject to clause 3 above, on and from the Commencement Date, the Scheme Creditors
irrevocably authorise the Scheme Administrators to execute, on behalf of the Scheme
Creditors, a deed of release of all PDS Claims in favour of the parties identified in clause 5.1
above, in the form of Schedule 3 to the Scheme.
6.8 The authority granted under clause 6.7 above includes the authority to bar, waive, release,
extinguish and covenant not to sue in respect of all PDS Claims in favour of the persons and
entities identified in clause 5.1 above.
Power of Attorney
6.9 The Scheme Creditors unconditionally and irrevocably appoint the Scheme Administrators as
their attorney, with the power to do anything which, in the Scheme Administrators' opinion, is
necessary, appropriate or expedient to give effect to the Scheme, including, but not limited to,
DBS/DBS/3089794/975018/AUM/1211844873.1 17
executing, on behalf of the Scheme Creditors, a deed of release of all PDS Claims in favour of
the parties identified in clause 5.1 above.
Limitation of Scheme Administrators' liability
6.10 In the exercise or performance, or purported exercise or performance, of any of the Scheme
Administrators' functions, powers or duties under this Scheme or the Act or otherwise, the
Scheme Administrators will not be personally liable to any Scheme Creditor for:
6.10.1 any actual, contingent or prospective liability incurred, directly or indirectly, by
any Scheme Creditor; or
6.10.2 any loss or damage caused to or suffered by, directly or indirectly, any Scheme
Creditor,
in consequence of any act, omission, negligence or default of the Scheme Administrators or
any person or entity acting or purporting to act on behalf of the Scheme Administrators,
except for any liability incurred or loss or damage suffered as a consequence of the gross
negligence, dishonesty or wilful default of the Scheme Administrators.
7. COSTS OF ADMINISTERING SCHEME
Scheme costs
7.1 The Scheme Costs will be paid from the Scheme Costs Pool.
7.2 In no circumstances will the Scheme Costs, including the Scheme Administrators' costs, fees
and disbursements in respect of the Scheme, be paid from the Scheme Creditors' Pool.
Scheme Administrators' remuneration
7.3 The Scheme Administrators are entitled to be remunerated at the usual rates charged from
time to time by Ferrier Hodgson in respect of any work done by the Scheme Administrators,
and any partner or employee of the Scheme Administrators, in respect of:
7.3.1 the exercise of their powers and discretions under the Scheme, the Act and the
Regulations; and
7.3.2 the performance of their duties, obligations and responsibilities under the
Scheme, the Act and the Regulations.
7.4 As at the Commencement Date, the Scheduled Rates are the usual rates charged by Ferrier
Hodgson.
7.5 The Scheme Administrators' remuneration in respect of the Scheme will form part of the
Scheme Costs and, accordingly, be paid from the Scheme Costs Pool in accordance with the
terms of the Scheme Costs Deed.
7.6 In no circumstances will the Scheme Administrators' remuneration be paid from the Scheme
Creditors' Pool.
DBS/DBS/3089794/975018/AUM/1211844873.1 18
8. CESSATION OF SCHEME ADMINISTRATORS
Resignation
8.1 A Scheme Administrator may resign from office as scheme administrator by notice in writing
to the Scheme Creditors published on the Ferrier Hodgson Website.
8.2 Any resignation by a sole remaining Scheme Administrator will only take effect upon, and is
subject to, the appointment of one or more persons to replace the resigning Scheme
Administrator in accordance with clauses 8.3 to 8.5 below.
Appointment of new Scheme Administrator
8.3 A new person may be appointed to replace the resigning Scheme Administrator.
8.4 Any such appointment of a new person must be effected by way of an ordinary resolution of
the Scheme Creditors at a meeting convened pursuant to clause 9 below.
8.5 No person will be appointed as a Scheme Administrator until such person:
8.5.1 covenants for the benefit of GSMAL and the Scheme Creditors to carry out the
duties and obligations of the Scheme Administrators under the Scheme; and
8.5.2 executes a Scheme Administrator's Deed Poll in the form of Schedule 4 to the
Scheme and delivers the deed poll to GSMAL.
Death or incapacity
8.6 If any Scheme Administrator dies or becomes unable to act, the Scheme Creditors may
appoint a new person to replace that Scheme Administrator.
8.7 Any such appointment of a new person must be effected by way of an ordinary resolution of
the Scheme Creditors at a meeting convened pursuant to clause 9 below.
8.8 No person will be appointed as a Scheme Administrator until such person:
8.8.1 covenants for the benefit of GSMAL and the Scheme Creditors to carry out the
duties and obligations of the Scheme Administrators under the Scheme; and
8.8.2 executes a Scheme Administrator's Deed Poll in the form of Schedule 4 to the
Scheme and delivers the deed poll to GSMAL.
9. MEETINGS OF SCHEME CREDITORS
Voting entitlement
9.1 Each Scheme Creditor will be entitled to vote in meetings of Scheme Creditors in the manner
set out below:
DBS/DBS/3089794/975018/AUM/1211844873.1 19
9.1.1 Each Scheme Creditor may vote in person or by attorney or by a duly appointed
corporate representative (in the case of a corporation) or by proxy.
9.1.2 Each Scheme Creditor will have one vote.
9.1.3 The value of each Scheme Creditor's vote will be the total face value of the
amounts invested by each Scheme Creditor in the relevant GSMAL managed
investment schemes (which amounts exclude GST and borrowing costs):
9.1.3.1 as recorded in the relevant scheme registers as at 16 May 2009; or
9.1.3.2 as otherwise accepted by the Scheme Administrators.
Place of meetings
9.2 All meetings of Scheme Creditors will be held at such place or places as determined by the
Scheme Administrators and specified in accordance with clause 9.9.1 below.
Convening meetings
9.3 The Scheme Administrators may, at any time, convene a meeting of Scheme Creditors.
9.4 The Scheme Administrators must convene a meeting of Scheme Creditors if a meeting is
requested by not less than 10% in both the number of the Scheme Creditors and the total face
value of the amounts invested by Scheme Creditors.
9.5 A request under clause 9.4 must be in writing signed by the relevant Scheme Creditors or on
their behalf and deposited at the offices of the Scheme Administrators, and must specify the
purpose for which the meeting of the Scheme Creditors is required and the text of any
resolution to be proposed at the meeting.
9.6 Notice
9.7 Notice of a meeting of Scheme Creditors must be given to all Scheme Creditors in accordance
with regulation 5.6.12(2) of the Regulations, to their last known postal address or facsimile
number, by posting a notice on the Ferrier Hodgson Website or, where applicable, by email
sent to Scheme Creditors' email addresses.
9.8 At least 10 Business Days' notice must be given of a meeting of Scheme Creditors.
9.9 The notice of meeting must specify:
9.9.1 the place and time of the meeting; and
9.9.2 the purpose for which the meeting of the Scheme Creditors is required and the
text of any resolution to be proposed at the meeting.
9.10 No resolution may be proposed or passed at a meeting of Scheme Creditors unless the notice
of the meeting sets out the text of each resolution, or an adequate summary thereof.
DBS/DBS/3089794/975018/AUM/1211844873.1 20
9.11 Any accidental omission to give any notice of a meeting to a Scheme Creditor or the non-
receipt by any Scheme Creditor of a notice of meeting will not invalidate the meeting.
Chairperson
9.12 One of the Scheme Administrators will be the chairperson at the meeting of Scheme
Creditors.
Quorum
9.13 At any meeting of Scheme Creditors:
9.13.1 two Scheme Creditors present in person or by a proxy will form a quorum for the
transaction of business; and
9.13.2 no business will be transacted unless the requisite quorum is present at the
commencement of business.
Application of Regulations
9.14 Except to the extent that they are modified or inconsistent with the terms of the Scheme, the
Act and the Regulations applicable to creditors' meetings convened under Part 5.3A of the Act
apply, with such modifications as are necessary to meetings of Scheme Creditors under the
Scheme as if the references to the liquidator, provisional liquidator, chairman, trustee for
debenture holders, as the case may be, are references to the Scheme Administrators.
10. COMPLETION OF SCHEME
Date of completion
10.1 The Scheme will be completed and come to an end when:
10.1.1 the Scheme Creditors' Pool has been distributed or otherwise dealt with in
accordance with this Scheme; and
10.1.2 in the opinion of the Scheme Administrators, all things required to be done in
relation to the Scheme have been done; and
10.1.3 the Scheme Administrators have lodged the requisite notices with ASIC.
Notice of completion
10.2 As soon as practicable following the completion of the Scheme, the Scheme Administrators
will cause a notice to be published on the Ferrier Hodgson Website stating that the Scheme
has been completed and come to an end.
10.3 The notice will remain on the Ferrier Hodgson Website for a period of 6 months following its
original publication.
DBS/DBS/3089794/975018/AUM/1211844873.1 21
11. GENERAL
Relationship between parties
11.1 Except and to the extent the Scheme expressly states so, nothing in this Scheme creates or
otherwise gives rise to any relationship of trust, agency or partnership.
Severability
11.2 If any part of this Scheme is illegal or otherwise unenforceable, it may be severed from the
Scheme.
11.3 In the event of any part of the Scheme being severed, provided that any such severance does
not derogate from the key features of the Scheme set out in clause 3.1 of the Deed of
Settlement, the remainder of the Scheme continues to be in force.
Non-exhaustive rights
11.4 The rights, powers, and remedies in relation to or arising out of this Scheme are cumulative.
11.5 Nothing in this Scheme excludes any other right, power or remedy that may exist apart from
any right, power or remedy conferred by this Scheme.
Consent to further steps
11.6 The Scheme Creditors irrevocably consent to, and authorise, the Scheme Administrators to do
all things and take all steps necessary or incidental to the implementation of the Scheme.
Notices to GSMAL and Scheme Administrators
11.7 Any notice to be given to GSMAL or the Scheme Administrators in relation to this Scheme
must be given in writing.
11.8 Any such notice may be given by hand delivery, pre-paid post, facsimile transmission, email
or such other method determined by the Scheme Administrators from time to time:
11.8.1 Hand delivery or pre-paid post
Ferrier Hodgson, Level 28, 108 St Georges Terrace, Perth or such other address
as the Scheme Administrators may notify to the Scheme Creditors for the purpose
of this clause
11.8.2 Facsimile
(08) 9214 1400 (if dialled from Australia) or +61 8 9214 1400 (if dialled from
outside Australia)
11.8.3 Email
GSMALScheme@fh.com.au
DBS/DBS/3089794/975018/AUM/1211844873.1 22
Notices to Scheme Creditors
11.9 Any notice, document or written communication to be given to the Scheme Creditors
pursuant to this Scheme may be given:
11.9.1 in accordance with regulation 5.6.12(2) of the Regulations, to their last known
postal address, facsimile number or document exchange number (as applicable);
11.9.2 by email to their last known email address; or
11.9.3 by publishing the notice, document or written communication on the Ferrier
Hodgson Website,
as the Scheme Administrators, in their absolute discretion, decide.
11.10 Any such notice, document or written communication will be deemed to have been received
by each Scheme Creditor if:
11.10.1 sent to that postal address, facsimile number, document exchange number or
email address; or
11.10.2 published on the Ferrier Hodgson Website.
Receipt of Notice
11.11 Notice to the Scheme Creditors will be deemed to have been given:
11.11.1 by pre-paid post, on the second Business Day following the day on which it is
posted;
11.11.2 by hand delivery, on the date of delivery if delivered during business hours at the
place of delivery or, if not during business hours, the next Business Day;
11.11.3 by facsimile transmission, on the date of transmission if delivered during business
hours at the place the facsimile is sent to or, if not during business hours, the next
Business Day;
11.11.4 by email, on the date the email was sent if sent during business hours at the place
the email was sent or, if not during business hours, the next Business Day; and
11.11.5 by publication on the Ferrier Hodgson Website, on the date the notice was
published if published during business hours at the place of publication or, if not
during business hours, the next Business Day;
11.12 Notice to GSMAL or the Scheme Administrators will be given on the date the notice is
received by the Scheme Administrators (and will not be deemed to have been given sooner
than that date).
DBS/DBS/3089794/975018/AUM/1211844873.1 23
Governing law
11.13 The Scheme is governed by the laws of the State of Western Australia.
11.14 Each party submits to the exclusive jurisdiction of the courts exercising jurisdiction in the
State of Western Australia, and any court that may hear appeals from any of those courts, for
any proceedings in respect of this Scheme.
DBS/DBS/3089794/975018/AUM/1211844873.1 24
Schedule 1: Deed of Settlement
The Deed of Settlement is not attached, but can be accessed by visiting the Ferrier Hodgson
Website, accessing the electronic version of this Scheme document and clicking on the
following link: [Hyperlink].
DBS/DBS/3089794/975018/AUM/1211844873.1 25
Schedule 2: Ferrier Hodgson's Scheduled Rates
Position Rate per hour ($)
Partner $650
Executive Director $595
Director $575
Senior Manager $515
Manager $435
Assistant Manager $370
Senior Analyst $325
Analyst $290
Accountant $260
Junior Accountant $170
Senior Secretary $205
Computer Operator $145
Clerk $175
Typist $110
Office Assistant $110