RE: What should be written to the judge now?27 May 2021 13:36
spike - were you at the hearing? that is my memory of very roughly what he said during it. if you heard something different I would be interested on your take
I disagree on this
The only thing the Judge has ruled at this stage is that the conditions for proceeding to the sanctions hearing have been met. They will be met when the shareholders have had a chance to meet
"I do not accept this While it is true, for example, that pre-emption rights are removed by section 566A, that is only if there is an allotment of shares pursuant to a Part 26A Plan An allotment of shares can only take place pursuant to Part 26A Plan if the procedure under Part 26A is followed, including the provisions of section 901C Put another way, section 566A only potentially disapplies section 561(1); they are actually disapplied if a Part 26A Plan (pursuant to which an allotment is to be made) is sanctioned by the Court; accordingly the pre-emption rights of shareholders are "affected by" a Plan which dilutes their shareholding, because it is the Plan which triggers the disapplication of their pre-emption rights under section 566A"
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In this context, I consider the better view to be that the rights of shareholders (who are taken to have an economic interest in the company) to participate in the capital and profits of a company are "affected by" a Plan that would dilute such participation. This construction ensures that the views of shareholders whose economic interest in the company is directly and potentially significantly affected by the Plan are taken into account in the process mandated by Part 26A.