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the Panel's application to be heard and opposed the
amended orders the Panel was seeking.
The parties obtained an urgent Court fixture because
Dominion Group's documentation was about to be posted
to shareholders. The matter was heard in the High Court in
Auckland on 17 and 18 October 2006 before Stevens J.
HIGH COURT DECISION
Stevens J issued an oral judgment on the afternoon of 18
October 2006. This was followed by his written reasons on
20 October 2006.1
The first order made was that the Panel was granted leave to
be heard on the application, being a person “interested” in
the proposed amalgamation.
His Honour observed [para 53] that the approach of the
Courts to questions of standing has tended over the years
to follow a liberalising trend. Stevens J noted that the Court
would be infl uenced by the nature of the issues for decision
and the type of assistance available from the party seeking
to be heard. The characteristics of that party, including its
own objects, purposes, functions and expertise, would also
be relevant. Each case would be considered on its merits
and in the light of all the circumstances of the case. His
Honour said:
“A reasonable touchstone seems to me to turn on the
ability of the party seeking to be heard to provide
relevant and meaningful assistance to the Court on
the issues for decision. In other words, can it genuinely
assist the Court on the matter for decision?”
Stevens J cited with approval a passage from Professor
Joseph's text on Constitutional and Administrative Law in
New Zealand (2 ed, 2001) at 1008 which concluded with a
quotation from Cooke J:
“Any tendency to consider the issue of standing in
insolation [sic] from the nature of the complaint is
resisted.” Standing was to be decided “on the totality of
the facts.”
His Honour said [56]:
“In the context of an amalgamation under Part 15
of the Act, where the Court has a supervisory role, I
consider that a similarly broad view should be taken
to the question of standing. If one looks at the issues
which the Court must consider under s236 of the Act,
there may well be circumstances where it would be
entirely appropriate for the Court to be assisted in how
it might exercise the wide discretionary powers which
arise with a body with the expertise of the Panel.”
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He concluded [59]:
“In this case, the Court determining issues under s236
of the Act has a broad supervisory jurisdiction, and
must consider a range of discretionary factors. I have
been assisted by hearing from the Panel about matters
within its area of expertise. I have had an opportunity
to consider the additional factual material placed
before me and the submissions and arguments of
counsel, particularly where, as here, it is limited
to a procedural issue. I also consider that, had this
information and arguments (from both sides) been
available to the Judge [Asher J] who considered the
ex parte application and made the initial orders, it
would have materially assisted him in the exercise of
the Court's supervisory jurisdiction. ... Accordingly,
I consider that the Panel should be granted leave to
address matters of relevance to the principles which
apply to an amalgamation under Part 15 of the Act.”
The second order made set aside one of the Court's original
orders relating to the quorum of voters required to vote on
the amalgamation resolution. A new order was substituted
requiring the amalgamation resolutions in each company to
be approved by voters representing a majority of the total
voting rights in each of the applicant companies. A third
order set out arrangements to notify the Panel of the result
of the voters' poll.
His Honour addressed several issues in deciding that the
Court could make new orders and set aside some of the
Court's original orders under s236 of the Act.
The first issue concerned the scope of the Court's powers
under Part 15 of the Act. Asher J made the initial orders on
21 September 2006 under s236 of the Act. The principles
applied by Asher J in making the initial orders were as set
out in Re C M Banks Ltd [1944] NZLR 248 and endorsed
by the Court of Appeal in Weatherston v Waltus Property
Investment Limited [2001] 2 NZLR 103.
The principles set out in Re C M Banks Ltd are that:
“The duty of the Court is to see (1) that there has
been compliance with the statutory provisions as to
meetings, resolutions, the application to the Court,
and the like; (2) that the scheme has been fairly put
before the class or classes concerned; and that if a
circular or circulars have been sent out, as is usual,
whether before or after the making of the application
to the Court, they give all the information reasonably
necessary to enable the recipients to judge and
vote upon the proposals; (3) that the class is fairly
represented by those who attended the meeting and
that the statutory majority are acting bona fide and
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