[2022] WASC 257  
JURISDICTION  
: SUPREME COURT OF WESTERN AUSTRALIA  
IN CHAMBERS  
CITATION  
CORAM  
: RE VIMY RESOURCES LTD [No 2] [2022] WASC 257  
: STRK J  
HEARD  
: 26 JULY 2022  
DELIVERED  
PUBLISHED  
FILE NO/S  
MATTER  
: 26 JULY 2022  
: 11 AUGUST 2022  
: COR 93 of 2022  
: IN THE MATTER OF VIMY RESOURCES LTD  
EX PARTE  
VIMY RESOURCES LTD  
Plaintiff  
DEEP YELLOW LTD  
Interested Party  
Catchwords:  
Corporations law - Scheme of arrangement - Application for orders pursuant to s 411(4)(b)  
of the Corporations Act 2001 (Cth) - Whether statutory and procedural requirements  
observed - Whether court ought to exercise its discretion to approve the scheme - Turns on  
own facts  
Legislation:  
Corporations Act 2001 (Cth), s 411, s 1322  
Result:  
Application granted  
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[2022] WASC 257  
Category: B  
Representation:  
Counsel:  
Plaintiff : A J Papamatheos & V N Ghosh  
Interested Party : P Tydde  
Solicitors:  
Plaintiff : MinterEllison  
Interested Party : Gilbert + Tobin  
Case(s) referred to in decision(s):  
iProperty Group Ltd (No 2) [2016] FCA 36  
Re AGL Ltd [2022] NSWSC 576  
Re Amcom Telecommunications Ltd [No 3] [2015] FCA 596  
Re Amcor Ltd [No 2] [2019] FCA 842  
Re Auzex Resources Ltd [No 2] [2012] QSC 101  
Re Avoca Resources Ltd [2011] FCA 208  
Re Bardoc Gold Ltd [No 2] [2022] WASC 113  
Re Beadell Resources Ltd [No 2] [2019] WASC 53  
Re CannPal Animal Therapeutics Ltd [No 2] [2021] WASC 83  
Re Coles Group (No 2) [2007] VSC 523; (2007) 215 FLR 411  
Re Cortona Resources Ltd [No 2] [2013] FCA 302  
Re CSR Ltd [2010] FCAFC 34; (2010) 183 FCR 358  
Re Decimal Software Ltd [No 2] [2018] FCA 2040  
Re Dragontail Systems Ltd [2021] FCA 834  
Re Foundation Healthcare Ltd [No 2] [2002] FCA 973; (2002) 43 ACSR 680  
Re Galaxy Resources Ltd [No 2] [2021] WASC 314  
Re Great Artesian Oil and Gas Ltd [No 2] [2008] FCA 1169  
Re Investa Listed Funds Management Ltd [2016] NSWSC 344  
Re Macquarie Private Capital A Ltd [2008] NSWSC 323; (2008) 26 ACLC 366  
Re Nusantara Resources Ltd [2021] WASC 334  
Re Nzuri Copper Ltd [No 4] [2020] WASC 10  
Re Opus Group Ltd [2018] FCA 1413  
Re Ozgrowth Ltd [No 2] [2022] WASC 167  
Re Pensana Metals Ltd [2020] WASC 17  
Re PetroNor E&P Ltd [No 2] [2022] WASC 81  
Re Piedmont Lithium Ltd [No 3] [2021] WASC 173  
Re Rebel Sport Ltd [No 2] [2007] FCA 458  
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[2022] WASC 257  
Re Saracen Mineral Holdings Ltd [No 2] [2021] WASC 32  
Re Straits Resources Ltd [No 2] [2011] FCA 47  
Re Swick Mining Services Ltd [2022] WASC 79  
Re TriAusMin Ltd [No 2] [2014] FCA 833  
Re Valmec Ltd [2021] WASC 420  
Re Vimy Resources Ltd [2022] WASC 233  
Re Wesfarmers Ltd [No 2] [2018] WASC 357  
Re Western Areas Ltd [No 2] [2022] WASC 198  
Re Zenith Energy Ltd [No 3] [2020] WASC 289  
Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396  
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[2022] WASC 257  
STRK J  
TABLE OF CONTENTS  
Overview...........................................................................................................................5  
Evidence for the second court hearing................................................................................6  
Legal principles in respect of scheme approval ................................................................10  
Disposition ......................................................................................................................11  
Compliance with statutory and procedural preconditions..............................................11  
Good faith and proper purpose .....................................................................................16  
Fairness and reasonableness.........................................................................................17  
Full and fair disclosure.................................................................................................17  
Oppression of minorities ..............................................................................................18  
Specific matters brought to the court's attention............................................................18  
Minor amendments to the Scheme................................................................................34  
Public policy................................................................................................................35  
US Securities exemption ..............................................................................................35  
Exemption from s 411(11) of the Corporations Act......................................................36  
Section 411(17) of the Corporations Act......................................................................36  
Conclusion and orders......................................................................................................38  
Sch A: Orders made.........................................................................................................39  
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STRK J  
STRK J  
:
Overview  
1
The plaintiff, Vimy Resources Ltd, moves for orders approving a  
scheme of arrangement between Vimy and its shareholders (Scheme),  
pursuant to s 411(4) and, if necessary, s 411(6) of the Corporations Act  
2001 (Cth).  
2
Section 411 of the Corporations Act envisages three steps. First,  
the court approves the convening of a scheme meeting and the draft  
explanatory statement to be sent to the scheme members. Secondly, the  
members vote on the proposed Scheme at the scheme meeting. Thirdly,  
assuming the first two stages have occurred, a further application to the  
court for approval of the arrangement.  
3
At the first court hearing on 15 June 2022, orders were made  
pursuant to s 411(1) of the Corporations Act to convene a meeting of  
holders of fully paid ordinary shares in the capital of Vimy. Orders  
were also made approving distribution of a scheme booklet comprising  
the explanatory statement required by s 412(1)(a) of the Corporations  
Act. Ancillary orders were made as to the convening and conduct of  
the meeting.  
4
5
The reasons which ground the orders made at the first court  
hearing are set out in Re Vimy Resources Ltd [2022] WASC 233. I do  
not intend to repeat what was said in those reasons. These reasons  
should be read with and as if they incorporate the earlier reasons.  
On 20 July 2022, the meeting was convened to consider the  
proposed Scheme whereby Deep Yellow Ltd would acquire 100% of  
the share capital of Vimy. Vimy shareholders were asked to vote on  
the following resolution:1  
That under and in accordance with the provisions of section 411 of the  
Corporations Act 2001 (Cth), the members agree to the arrangement  
proposed between Vimy Resources Limited and the holders of its fully  
paid ordinary shares, designated the Scheme, as contained in and more  
particularly described in the Scheme Booklet accompanying the notice  
convening this meeting (with or without any alterations or conditions  
agreed or any alterations or conditions required by the Court) and the  
Board of Directors of Vimy is authorised to implement the Scheme with  
any such alterations or conditions.  
1 Second affidavit of ER Merven, EM-10.  
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[2022] WASC 257  
STRK J  
6
At the meeting, the resolution was passed by the requisite statutory  
majorities for the purposes of s 411(4)(a)(ii) of the Corporations Act.  
7
350 shareholders were present at the scheme meeting in person  
and by proxy.2 97.13% of shareholders who voted at the meeting were  
in favour of the resolution.3 99% of votes cast on the scheme resolution  
were cast in favour of the resolution.4 Excluding the votes of the  
shareholders who had subscribed under the capital raising, which were  
tagged, 98.89% of the shareholders who voted at the meeting and  
96.96% of votes cast on the scheme resolution were in favour of the  
resolution.5  
8
9
The second court hearing took place on 26 July 2022. Counsel for  
Deep Yellow appeared in support of the application. The Australian  
Securities and Investments Commission (ASIC) did not seek to be  
heard.6  
After hearing from counsel, I made orders in accordance with  
s 411(4) of the Corporations Act to approve the Scheme. I also made  
orders pursuant to s 1322 of the Corporations Act. My reasons are set  
out below and a copy of the orders made at the conclusion of the  
hearing are reproduced at sch A to these reasons.  
Evidence for the second court hearing  
In addition to the affidavits that were read at the first court  
10  
hearing, Vimy filed 13 affidavits prior to the second court hearing  
which addressed the matters Vimy was required to establish at the  
second court hearing. All were read in support of the application. They  
were as follows.  
11  
First, the affidavit of Patricia Frances Kershaw sworn on 19 July  
2022, which attached documents PK-1 to PK-6. Ms Kershaw is an  
executive assistant of Vimy and deposed to posting a hardcopy proxy  
form, opt-in notice and foreign declaration form to shareholders where  
electronic dispatch had bounced back. The attachments to  
Ms Kershaw's affidavit included email communications regarding  
distribution of materials from Ms Coates, company secretary of Vimy;  
2 Affidavit of SL Coates par 10(a).  
3 Submissions par 35; second affidavit of ER Merven par 23, EM-11; fifth affidavit of SB McRobert par 25.  
4 Submissions par 35; second affidavit of ER Merven par 23, EM-11; fifth affidavit of SB McRobert par 25.  
5 Submissions par 38; second affidavit of ER Merven par 32; fifth affidavit of SB McRobert par 30.  
6 Seventh affidavit of SB McRobert par 9, SBM-49.  
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screenshots of Australia Post delivery confirmations; and Australia post  
'return to sender' delivery information.  
12  
The second was the affidavit of Lorena De Pellegrin affirmed on  
19 July 2022, which attached documents LPD-1 to LPD-4.  
Ms De Pellegrin is the director of iPrint Plus and deposed to overseeing  
the preparation and postal distribution of packs of personalised  
materials for the scheme meeting to Vimy shareholders, as well as  
subsequent dispatch of materials to new Vimy shareholders.  
Ms De Pellegrin annexed to her affidavit copies of the printer's proofs  
of the materials to be issued; a copy of the envelope packing process  
checklist; and copies of Australia post lodgement confirmations.  
13  
The third was the affidavit of Kesone Sunphantry affirmed on  
20 July 2022, which attached documents KS-1 to KS-3.  
Ms Sunphantry is a customer success manager at Automic Group Pty  
Ltd, which maintains Vimy's share register. Ms Sunphantry deposed to  
the uploading of the dispatch packs to Automic's file transfer portal,  
and to the electronic dispatch of notices of meeting and proxy forms to  
new Vimy shareholders. The attachments to Ms Sunphantry's affidavit  
included copies of email communications between herself and  
MinterEllison concerning the finalised forms, letters and emails for  
dispatch to shareholders; and a copy of the printer's proof provided by  
Ms De Pellegrin.  
14  
The fourth was the affidavit of Eric Roger Merven affirmed on  
20 July 2022, which attached documents EM-1 to EM-8. Mr Merven is  
also a customer success manager at Automic and deposed to the  
electronic dispatch of notices of meeting and proxy forms to existing  
and new Vimy shareholders. The attachments included copies of email  
communications regarding distribution of materials from Ms Coates,  
Ms Kershaw and MinterEllison respectively; a copy of the report  
generated from the Automic registry system platform; a copy of the  
printer's proof provided by Ms De Pellegrin; and a copy of the sample  
dispatch packs.  
15  
The fifth was the affidavit of Shannon Louise Coates, the  
company secretary of Vimy, which was affirmed on 21 July 2022 and  
attached documents SC-1 to SC-7. Ms Coates deposed to the online  
voting at the scheme meeting; the making of various announcements to  
the Australian Securities Exchange (ASX); and to the voter turnout at  
the scheme meeting. The attachments to Ms Coate's affidavit included  
copies of screenshots of the virtual shareholder meeting; copies of the  
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STRK J  
ASX announcements; and copies of proxy vote reports in respect of  
Vimy's 2020 and 2021 annual general meetings.  
16  
The sixth was the third affidavit of Steven George Michael sworn  
on 21 July 2022, which attached documents SGM-46 to SGM-48.  
Mr Michael is the managing director and chief executive officer of  
Vimy and deposed to engaging Morrow Sodali, a shareholder services  
advisory firm, to act as the point of contact for Vimy shareholders who  
had questions about the Scheme and to conduct a shareholder  
engagement campaign in respect of the scheme meeting. Mr Michael  
further deposed to publication of the notice of the second court hearing  
and directing the scheme booklet to be made available for inspection.  
Attached to Mr Michael's third affidavit were copies of the scripts for  
Morrow Sodali staff to recite and refer to when communicating with  
shareholders.  
17  
The seventh was the second affidavit of Ms Kershaw sworn on  
22 July 2022, which attached document PK-7. Ms Kershaw deposed to  
the publication of the notice of the second court hearing. The  
attachments to Ms Kershaw's second affidavit included copies of the  
notices published in The West Australian and The Australian. Ms  
Kershaw further deposed to causing the scheme booklet to be published  
on Vimy's website and made available at its offices, and deposed that  
no hardcopy proxy forms were received in Vimy's post office box.  
18  
The eighth was the second affidavit of Mr Merven affirmed on  
22 July 2022, which attached documents EM-9 to EM-13. Mr Merven  
deposed to the processing of electronically returned proxy forms; to his  
role as returning officer of the scheme meeting and oversight of the  
online platform hosting the meeting; to the results of voting at the  
scheme meeting and the tagging of certain votes; and to a database  
processing error which impacted eight Vimy shareholders. Attached to  
his second affidavit were copies of the voting summary report; the  
scheme meeting presentation; the scheme meeting report; the ASX  
announcement of 20 July 2022 concerning the results of the scheme  
meeting; and an email communication from MinterEllison concerning  
the tagging of votes.  
19  
The ninth was the fifth affidavit of Shaun Barry McRobert  
affirmed on 25 July 2022, which attached documents SB-31 to SB-39.  
McRobert is a partner of MinterEllison and acts for Vimy. He deposed  
to registering the scheme booklet and the orders of the court made at  
the first court hearing with ASIC; to having acted as the chairperson  
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STRK J  
and to the procedure of the scheme meeting; to the results of voting at  
the scheme meeting, including the results of the tagged votes; and to the  
service of documents lodged for the second court hearing on ASIC.  
Attached to Mr McRobert's fifth affidavit were copies of email  
communications between MinterEllison and ASIC; a copy of the ASIC  
extract in respect of Vimy; a copy of the chairman's script for the  
scheme meeting; the scheme meeting presentation; the minutes of the  
scheme meeting; and the poll declaration.  
20  
The tenth was the fourth affidavit of Mr Michael sworn on 25 July  
2022, which attached documents SGM-49 and SGM-50. By this  
affidavit, Mr Michael corrected an error in his third affidavit. He also  
deposed to the decision to engage Morrow Sodali and the process by  
which the Morrow Sodali script was drafted, reviewed and approved.  
Attached to his fourth affidavit were copies of the Morrow Sodali  
engagement document and the Morrow Sodali call campaign final  
report.  
21  
22  
The eleventh was the affidavit of David Stephen Poskitt affirmed  
on 25 July 2022. Mr Poskitt is the director of client services at Morrow  
Sodali and deposed to his oversight of the call operators who were  
involved in the outbound campaign in relation to the Scheme.  
The twelfth was the sixth affidavit of Mr McRobert affirmed on  
25 July 2022, which attached documents SBM-40 to SBM-44.  
Mr McRobert deposed to his conferral with ASIC, as well as his  
separate correspondence with Mr Merven with respect to an Automic  
database processing error. Mr McRobert attached copies of all  
referenced correspondence to his sixth affidavit.  
23  
The thirteenth was the seventh affidavit of Mr McRobert affirmed  
on 26 July 2022, which attached SBM-45 to SBM-49. Mr McRobert  
deposed to the provision of conditions precedent certificates executed  
by Vimy and Deep Yellow, and also deposed to ASIC's provision of a  
final no objection letter under s 411(17)(b) of the Corporations Act.  
Attached to his affidavit were copies of the conditions precedent  
certificates, as well as correspondence with ASIC.  
24  
At the second court hearing, counsel on behalf of Vimy tendered  
one document, being an email communication from Ms Sarah Turner, a  
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STRK J  
partner at Gilbert + Tobin, who agreed on behalf of Deep Yellow to  
certain alterations to the proposed Scheme.7  
25  
At the second court hearing, Vimy also relied upon a written  
outline of submissions and a minute of proposed orders, both filed on  
25 July 2022.  
Legal principles in respect of scheme approval  
26  
As noted above, approval of the proposed scheme pursuant to  
s 411(4)(b) of the Corporations Act at the second court hearing is the  
third stage of approval for a scheme of arrangement. Justice Hill in  
Re Western Areas Ltd [No 2] [2022] WASC 198 recently summarised  
the legal principles relevant at the second court hearing, which I  
reproduce below and applied in determining Vimy's application:8  
[8]  
At the second court hearing, the court has two tasks:  
(a)  
to ensure that all statutory and procedural requirements  
have been satisfied. This includes confirming that:  
(i)  
the meeting was convened and held in  
accordance with the court's earlier orders;  
(ii)  
(iii)  
the resolutions were passed with the requisite  
statutory majorities; and  
the plaintiff otherwise complied with the  
court's earlier orders;  
(b)  
to determine, in the exercise of the court's discretion,  
whether to approve the proposed arrangement.  
[9]  
The court has a discretion to approve a scheme under  
s 411(4)(b) of the Act and is not bound to approve a scheme just  
because the court previously made orders for the convening of a  
meeting or because the statutory majorities have been achieved.  
That said, the court will usually approach the task on the basis  
that shareholders are better judges of what is in their commercial  
interests than the court.  
[10] The factors that inform the court's discretion whether or not to  
approve a scheme are:  
(a)  
whether the members have voted in good faith and not  
for an improper purpose;  
7 Exhibit 1; ts 49 - 50 (26 July 2022).  
8 See also submissions pars 8 - 11.  
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STRK J  
(b)  
(c)  
whether the proposal is fair and reasonable so that an  
intelligent and honest person who was a member of the  
relevant class, properly informed and acting alone,  
might approve it;  
whether the plaintiff has brought to the attention of the  
court all matters that could be considered relevant to  
the exercise of the court's discretion;  
(d)  
(e)  
(f)  
whether there has been full and frank disclosure of all  
information material to the members' decision;  
whether minority shareholders would be oppressed by  
the scheme;  
whether the court is satisfied that the scheme has not  
been proposed to avoid ch 6 of the Act;  
(e)  
(f)  
whether ASIC has an objection to the scheme; and  
whether the scheme offends public policy.  
(footnotes omitted)  
Disposition  
Compliance with statutory and procedural preconditions  
On the basis of the additional affidavits filed by Vimy, I was and  
am satisfied that:  
27  
(a)  
(b)  
a copy of the orders from the first court hearing was formally  
lodged with ASIC on 16 June 2022;9  
a copy of the scheme booklet as approved for distribution by the  
court at the first court hearing was lodged with ASIC and  
registered on 16 June 2022;10  
(c)  
the scheme booklet was dispatched to shareholders in  
accordance with the orders from the first court hearing. Vimy  
provided a detailed outline of this process;11  
9 Fifth affidavit of SB McRobert pars 5(b), 7 - 8.  
10 Fifth affidavit of SB McRobert pars 5(c), 7 - 8.  
11 Submissions pars 19 - 25. See also the first affidavit of PF Kershaw; affidavit of L De Pellegrin; affidavit  
of K Sunphantry; first affidavit of ER Merven.  
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(d)  
the scheme meeting was convened and held on 20 July 2022, in  
accordance with the orders of the first court hearing;12  
(e)  
(f)  
Mr McRobert acted as chairperson of the scheme meeting;13  
the proposed Scheme was approved by the requisite statutory  
majorities by Vimy shareholders;14  
(g)  
(h)  
(i)  
notice of the second court hearing was given by way of  
publication in The West Australian newspaper and The  
Australian newspaper on 18 July 2022;15  
the scheme booklet and notice of the meeting were available for  
inspection by Vimy shareholders on Vimy's website and at  
Vimy's registered office;16 and  
pursuant to s 411(17)(b) of the Corporations Act, ASIC  
informed Vimy on 26 July 2022 that it has no objection to the  
proposed Scheme.  
28  
No party sought to appear to oppose the approval of the Scheme.  
Additional matters brought to the court's attention  
29  
In written and oral submissions, counsel for Vimy drew my  
attention to the following matters.  
Tagged votes and outcome  
Vimy agreed to tag the votes of the shareholders who had  
30  
subscribed under the capital raising.17 As recorded at [7] above,  
counsel confirmed that upon excluding the tagged votes the Scheme  
received sufficient votes to satisfy the requisite majorities and was  
comfortably passed.18  
Voter turnout  
Counsel addressed the voter turnout of the scheme meeting. In  
this regard, counsel noted that of the 1,164,463,554 total Vimy shares  
31  
12 Fifth affidavit of SB McRobert par 9.  
13 Fifth affidavit of SB McRobert pars 10, 12.  
14 Submissions par 35; second affidavit of ER Merven pars 22 - 29, EM-11; fifth affidavit of SB McRobert  
par 28.  
15 Second affidavit of PF Kershaw pars 5 - 6, PK-7; third affidavit of SG Michael pars 11 - 13.  
16 Second affidavit of PF Kershaw pars 7 - 8; third affidavit of SG Michael pars 14 - 16.  
17 Re Vimy Resources Ltd [110] - [115].  
18 ts 58 (26 July 2022).  
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on issue, 512,693,171 shares were voted at the meeting, representing  
44.03% of the total number of voting shares.19 However, only  
approximately 6.03% of all eligible Vimy shareholders by number  
voted at the scheme meeting (350 of the 5,770 shareholders).20  
32  
Counsel submitted that this turnout on votes is within the range of  
what is acceptable.21 As counsel noted, Hill J in in Re Ozgrowth Ltd  
[No 2] [2022] WASC 167 considered low voter turnout in respect to a  
scheme meeting, and observed as follows:  
[19] As was stated by Farrell J in Re TriAusMin Limited [No 2]:22  
It is inappropriate to assume (in the absence of  
complaint) that shareholders who did not vote either did  
not have notice of the meeting or were silent in protest  
of the scheme; apathy should not be presumed to be  
antagonism.  
Nonetheless it does call for consideration to ensure that  
the vote [was] not unrepresentative, since the court  
retains the discretion to withhold its approval in that  
case. It is relevant to consider whether members have  
been deterred from attending or voting at the  
meeting. (footnotes omitted)  
[20] Relatively low shareholder turnout does not prevent the court  
from making orders approving a scheme of arrangement.23  
19 Submissions par 40; affidavit of SL Coates par 10(b); fifth affidavit of SB McRobert par 28.  
20 Submissions par 41; affidavit of SL Coates par 10(a); fifth affidavit of SB McRobert par 28.  
21 Submissions par 42, citing Re Ozgrowth Ltd [No 2] [2022] WASC 167, [19] - [20] and footnote 28; ts 51 -  
52 (26 July 2022).  
22 Re TriAusMin Ltd [No 2] [2014] FCA 833 [10] - [11]  
23  
See for example Re Foundation Healthcare Ltd [No 2] [2002] FCA 973; (2002) 43 ACSR 680 [22]  
(44.23% of shareholders voting); Re Rebel Sport Ltd [No 2] [2007] FCA 458 [6] (24.99% of shareholders  
holding 83.59% of shares) Re Avoca Resources Ltd [2011] FCA 208 [25] (11.49% of shareholders holding  
72.38% of shares); Re Great Artesian Oil and Gas Ltd [No 2] [2008] FCA 1169 [3] (24.6% of shareholders  
voting); Re Straits Resources Ltd [No 2] [2011] FCA 47 [12] (10.8% of shareholders holding 74% of  
shares); Re Cortona Resources Ltd [No 2] [2013] FCA 302 [12] (17.5% of shareholders holding 45.2% of  
shares); Re Auzex Resources Ltd [No 2] [2012] QSC 101 [18] (9.75% of shareholders representing 42.3% of  
votes); Re TriAusMin Ltd [No 2] [9] (10.94% of shareholders holding 52.9% of shares); Re Decimal  
Software Ltd [No 2] [2018] FCA 2040 [15] - [16] (5.21% of shareholders holding 52.85% of shares); Re  
Pensana Metals Ltd [2020] WASC 17 [12] (6.41% of shareholders holding 37.08% of shares); Re Zenith  
Energy Ltd [No 3] [2020] WASC 289 [18] (39% of shareholders holding 89.25% of shares); Re Saracen  
Mineral Holdings Ltd [No 2] [2021] WASC 32 [47] (9.50% of shareholders holding 75.46% of shares); Re  
CannPal Animal Therapeutics Ltd [No 2] [2021] WASC 83 [32] (6.63% of shareholders holding 55.46% of  
shares); Re Piedmont Lithium Ltd [No 3] [2021] WASC 173 (8.44% of shareholders holding 26.74% of  
shares); Re Galaxy Resources Ltd [No 2] [2021] WASC 314 (7.31% of shareholders holding 53.87% of  
shares); Re Nusantara Resources Ltd [2021] WASC 334 (29.79% of shareholders holding 59.16% of  
shares); Re Valmec Ltd [2021] WASC 420 (17.62% of shareholders holding 74.22% of shares); Re Swick  
Mining Services Ltd [2022] WASC 79 (6% of shareholders holding 60.23% of shares); Re PetroNor E&P  
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33  
I was and am satisfied that there was sufficient turnout at the  
scheme meeting. I do not consider that the low voter turnout by number  
of Vimy shareholders suggested there had been an error in the dispatch  
of the scheme booklet, nor that this should prevent the court from  
making orders under s 411(4)(b) of the Corporations Act. In so  
concluding, I had regard to the following:  
(a)  
the number of Vimy shareholders who voted at the scheme  
meeting, being approximately 6.03% of all eligible  
shareholders, exceeded the number of shareholders who voted  
at the two preceding annual general meetings of Vimy;24  
(b)  
(c)  
a significant majority of shareholders (by number) who voted at  
the scheme meeting voted in favour of the scheme resolution;  
there was no evidence which suggested any irregularity in the  
dispatch of the scheme booklet that would have affected voter  
turnout;25 and  
(d)  
there was no evidence of any issue which would have deterred  
Vimy shareholders from voting at or attending the scheme  
meeting.  
Late dispatch of notice of scheme meeting for certain shareholders  
34  
At the first court hearing, I ordered Vimy to dispatch materials on  
or before 20 June 2022 to shareholders who appeared on the register as  
at 5 pm on 17 June 2022. Counsel drew to my attention that there was  
an error in compliance with this order as the hardcopy materials were  
sent to those shareholders who appeared on Vimy's register as at 5 pm  
on 16 June 2022. Vimy sought to correct this error pursuant to s 1322  
of the Corporations Act.  
35  
The evidence established that the error arose in circumstances  
where the printing company was sent the shareholder information  
report generated on 16 June 2022.26 As a result, 26 shareholders who  
became shareholders after the report was generated had the scheme  
Ltd [No 2] [2022] WASC 81 (3.65% of shareholders holding 68.16% of shares); Re Bardoc Gold Ltd [No 2]  
[2022] WASC 113 [23] (8.03% of shareholders holding 37.1% of shares).  
24 Submissions par 43; affidavit of SL Coates par 11; ts 51 - 52 (26 July 2022).  
25 This view was formed having had regard to the late dispatch of the notice of scheme meeting to the 26  
shareholders (as addressed in the first affidavit of ER Merven) and the issue resulting in eight shareholders  
being unable to electronically lodge a proxy vote (as addressed in the second affidavit of ER Merven).  
26 Submissions par 63; first affidavit of ER Merven par 36; affidavit of L De Pellegrin pars 7 - 10; ts 52  
(26 July 2022).  
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STRK J  
materials dispatched on 22 June 2022, and not on 20 June 2022 as  
required.  
36  
I am satisfied that, notwithstanding the error, there was substantial  
compliance with the orders made following the first court hearing. The  
inadvertent late dispatch of the materials to 26 shareholders is not such  
that it is likely to have caused any disenfranchisement of Vimy's  
members. In reaching this conclusion, I have weighed in the balance  
the following:  
(a)  
the materials were dispatched on 22 June 2022, meaning that  
there were still 28 days for the dispatched materials to reach the  
shareholders before the scheme meeting;27  
(b)  
(c)  
the scheme booklet was publicly available on the ASX platform  
from 16 June 2022;28 and  
the 26 affected shareholders collectively held 982,983 Vimy  
shares (representing 0.0845% of Vimy's share capital as at 5 pm  
on 17 June 2022). Counsel submitted that even if this group  
had missed the opportunity to vote, this amount of shares and  
shareholders could not have changed the outcome of the scheme  
meeting given the strong majorities attained.29  
37  
The failure is a procedural irregularity, being a defect, irregularity  
or deficiency in notice and time.30 A scheme meeting is a proceeding  
under the Corporations Act. Accordingly, the effect of s 1322(2) of  
the Corporations Act is to provide for automatic validation of the  
scheme meeting despite the procedural irregularity, subject to a court  
order to the contrary.31 In the circumstances described above, I am  
satisfied that the irregularity caused no substantial injustice and no  
order to the contrary ought be made.  
38  
Out of an abundance of caution, Vimy also sought a validation  
order under s 1322(4)(d) of the Corporations Act.32 As to the necessity  
of the same, I note what Vaughan J stated in Re Wesfarmers Ltd [No 2]  
at [31]:  
27 Submissions pars 64, 70(a).  
28 Affidavit of SL Coates par 6, SC-4; submissions par 70(b).  
29 Submissions pars 66, 70(c); ts 53 (26 July 2022).  
30 Corporations Act s 1322(1)(b)(ii).  
31 Submissions par 69; Re Wesfarmers Ltd [No 2] [2018] WASC 357 [28], [31]; Weinstock v Beck [2013]  
HCA 14; (2013) 251 CLR 396 [7].  
32 Submissions par 72; ts 54 (26 July 2022).  
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[2022] WASC 257  
STRK J  
The validation order is not required. The issue that has arisen is a mere  
procedural irregularity and s 1322(2) provides for automatic validation.  
That said, the circumstance that s 1322(2) operates does not exclude the  
potential application of s 1322(4). There are a number of cases where  
the court has made curative orders under s 1322(4) notwithstanding that  
the irregularity is cured automatically by s 1322(2).33 This is a large  
scheme. I readily understood the desirability of removing any doubt as  
to validity and was prepared to do so. (Although, if I considered the  
issue meant the scheme resolution was invalid, I would not approve the  
scheme under s 411(4)(b) - so it is implicit in the approval order that the  
irregularity does not result in invalidity.)  
39  
No order may be made under s 1322(4) of the Corporations Act  
unless there is satisfaction of the preconditions prescribed in s 1322(6).  
Counsel submitted that all were satisfied in that: the irregularity was of  
a procedural nature; Vimy had acted honestly; it was just and equitable  
that the order be made; and no substantial injustice has been or is likely  
to be caused to any person.34 On the evidence, I was so satisfied.  
40  
There remains a residual discretion as to whether or not to make a  
validation order. I was satisfied that it was appropriate to exercise the  
discretion to grant the relief pressed in order to better facilitate the  
Scheme, in circumstances where it has the overwhelming support of  
Vimy's members. Accordingly, I made an order pursuant to  
s 1322(2)(d) of the Corporations Act extending the time for compliance  
with order 5(b) of the orders of 15 June 2022 to 22 June 2022.  
Finding  
41  
I was and am satisfied that all statutory and procedural  
preconditions to the court's approval were satisfied. I so concluded  
having regard to the additional matters properly brought to the court's  
attention by counsel. I now turn to consider the discretionary  
considerations.  
Good faith and proper purpose  
42  
There is no evidence that the Vimy shareholders voted for an  
improper purpose.35 I was and am satisfied on the evidence that the  
members voted in good faith and for a proper purpose as:36  
33 See eg iProperty Group Ltd (No 2) [2016] FCA 36 [15]; Re Opus Group Ltd [2018] FCA 1413 [15].  
34 Submissions par 73.  
35 Submissions par 47.  
36 Submissions par 48.  
Page 16  
[2022] WASC 257  
STRK J  
(a)  
the purpose of the proposed Scheme is to effect the acquisition  
by Deep Yellow of all Vimy shares on issue (with the Vimy  
Performance Rights and Vimy Options to be dealt with outside  
of the Scheme), a transaction of a kind ordinarily approved by  
the court. The transaction does not involve any novel treatment  
of shareholder rights;  
(b)  
(c)  
the independent expert report opined that in the absence of a  
superior proposal (and none since emerged), the Scheme is fair  
and reasonable and therefore is in the best interests of Vimy  
shareholders;37 and  
neither ASIC nor any shareholder appeared at the second court  
hearing to object to approval of the proposed Scheme.  
Fairness and reasonableness  
Based on the evidence before the court at the first court hearing, I  
43  
was satisfied that the proposed Scheme was of such a nature that there  
was no apparent reason that it should not receive approval if the  
requisite voting majorities were achieved at the scheme meeting.38  
Nothing had occurred since the date of the first hearing to change this  
view. Further, as noted by counsel in the written submissions, the  
independent expert opined that in the absence of an alternate proposal,  
the Scheme was in the best interests of Vimy shareholders and no  
alternate proposal emerged.39 The shareholders of Vimy who voted at  
the meeting overwhelmingly supported the proposed Scheme and no  
Vimy shareholder appeared to oppose the orders sought at the second  
court hearing.  
44  
I was satisfied at the first hearing that the proposed Scheme was fit  
for consideration by Vimy's members. My conclusion had not altered.  
I was and am satisfied that the proposed Scheme is fair and reasonable  
and is a Scheme that sensible businesspeople might consider to be of  
benefit to the shareholders of Vimy.  
Full and fair disclosure  
Based on the evidence before the court at the first court hearing, I  
45  
was satisfied the proposed scheme booklet contained the prescribed  
information and provided proper disclosure to Vimy shareholders.40  
37 See also ts 46 (26 July 2022).  
38 Re Vimy Resources Ltd [163], [169].  
39 Submissions par 51.  
40 Re Vimy Resources Ltd [64]. See also submissions par 54.  
Page 17  
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The additional affidavit evidence read by Vimy established that the  
scheme booklet dispatched to shareholders and made available at  
Vimy's registered office was in the form approved for distribution by  
the court.41 Nothing had arisen to suggest there has not been proper  
disclosure of all information which was material to the decision of  
Vimy shareholders prior to voting on the Scheme.  
Oppression of minorities  
As counsel noted in the written submissions, there was no  
46  
evidence before the court that any minority has been oppressed.42  
Specific matters brought to the court's attention  
47  
At the first court hearing, counsel for Vimy drew to my attention a  
number of matters which I weighed in the balance in determining that  
the Scheme was fit for consideration by Vimy's members. They  
included the directors' recommendations; the conditions precedent of  
the Scheme; the circumstances of the Vimy board's approval of the  
scheme implementation deed; Vimy's recent capital raising; Vimy's  
uranium business; the exclusivity provisions contained in the scheme  
implementation deed; a break fee provision; the voting intention  
statement from Paradice Investment Management Pty Ltd; and  
s 411(17) of the Corporations Act. The matters are addressed in  
Re Vimy Resources Ltd [70] - [161].  
48  
Counsel drew to my attention four further matters at the second  
court hearing, which I address below.  
Voting system processing error  
First, counsel drew to my attention that on 4 July 2022, there was  
49  
a processing error that occurred in relation to the Vimy share database  
which resulted in the removal of eight shareholders from the Vimy  
shareholder register. As a result of the error, eight shareholders could  
not electronically lodge a proxy vote.43 Seven of the eight shareholders  
did not have a phone number or email address registered with Automic  
and could not be contacted directly regarding the issue.44 On 19 July  
41 Submissions pars 19 - 25. See also first affidavit of PF Kershaw; affidavit of L De Pellegrin; affidavit of  
K Sunphantry; first affidavit of ER Merven.  
42 Submissions pars 57 - 58.  
43 Second affidavit of ER Merven par 33.  
44 ts 40 (26 July 2022).  
Page 18  
[2022] WASC 257  
STRK J  
2022, the eight shareholders were reinstated to the Vimy shareholder  
register and, consequently, were able to vote at the scheme meeting.45  
50  
The eight shareholders collectively held 334,289 Vimy shares,  
comprising 0.029% of the Vimy shares as at 18 July 2022.46 None of  
the eight shareholders contacted the investor services team at Automic,  
nor did any of the eight shareholders attend the scheme meeting.47  
51  
Counsel on behalf of Vimy submitted that given the share holdings  
were individually and collectively small, the votes of the eight  
shareholders would not have impacted the resolution concerning the  
Scheme, nor materially affected the majorities attained at the scheme  
meeting.48 Further, the eight shareholders were not denied the  
important component of their right, that being the right to be able to  
vote on a resolution at the meeting.49 While unfortunate, I accepted  
counsel's submission and did not consider that the inability of the eight  
shareholders to lodge a proxy form in circumstances where they were  
not denied the right to vote was a reason to exercise the court's  
discretion to not approve the proposed Scheme.  
Conditions precedent  
Secondly, counsel noted that the implementation of the Scheme  
52  
was subject to the satisfaction or waiver of various conditions precedent  
prescribed in cl 3.1 of the scheme implementation deed and cl 3 of the  
scheme of arrangement.50 By the provision of conditions precedent  
certificates executed by both Vimy and Deep Yellow and by the grant  
of court approval I was and am satisfied all conditions precedent had  
been met.51  
Shareholder intention statements  
Thirdly, as I noted in Re Vimy Resources Ltd [155], Paradice gave  
53  
a statement that it intended to vote all of its shares in favour of the  
Scheme. At the time of giving the statement, Paradice held  
approximately 7.52% of the shares in Vimy and 7.88% of the shares in  
Deep Yellow. Mr Michael gave evidence for the purpose of the first  
45 Second affidavit of ER Merven par 36.  
46 Second affidavit of ER Merven par 35.  
47 Submissions par 76; second affidavit of ER Merven pars 34, 37; sixth affidavit of SB McRobert par 9.  
48 Submissions par 78.  
49 ts 55 (26 July 2022).  
50 The scheme implementation deed is annexure SGM-19 to the first affidavit of SG Michael; the scheme of  
arrangement is annexure SGM-20 to the first affidavit of SG Michael.  
51 Seventh affidavit of SB McRobert pars 5 - 6, SBM-45, SBM-46; ts 57 (26 July 2022).  
Page 19  
[2022] WASC 257  
STRK J  
court hearing that no collateral benefit or inducement was offered to  
Paradice to provide the voting intention statement.52  
54  
55  
At the second court hearing, counsel noted that the requisite  
statutory majorities would have been met even if the Paradice votes  
were excluded.53  
In all the circumstances, the voting intention expressed by  
Paradice was not a reason to exercise the court's discretion to not  
approve the proposed Scheme.  
Shareholder information campaign  
Fourthly, counsel drew to my attention there had been  
56  
communications with shareholders concerning the Scheme that had not  
been approved by the court.  
Shareholder information line  
On 25 May 2022, Vimy engaged Morrow Sodali, a shareholder  
57  
services advisory firm, to act as the point of contact for shareholders  
who called the information line referenced in the scheme booklet and  
had questions or complaints about the Scheme.54 Morrow Sodali  
prepared a script for incoming calls, which was based on information  
contained in the 'frequently asked questions' section of the scheme  
booklet (Information Line Script).55 A copy of that script was attached  
to the third affidavit of Mr Michael and marked SGM-46.  
58  
Counsel noted that among other things, the Information Line  
Script included the language to the following effect:56  
(a)  
the purpose of the scheme booklet was to explain the terms of  
the proposed acquisition by Deep Yellow of all of the Vimy  
shares;57  
(b)  
that the proposed structure provided the greatest certainty, if the  
Scheme was agreed to by shareholders and approved by the  
52 First affidavit of SG Michael par 24; Re Vimy Resources Ltd [157].  
53 Submissions par 85.  
54 Third affidavit of SG Michael par 6(a).  
55 Third affidavit of SG Michael par 8(a), SGM-46.  
56 Submissions pars 88 - 89.  
57 Third affidavit of SG Michael, SGM-46, page 7.  
Page 20  
[2022] WASC 257  
STRK J  
court, that Deep Yellow would gain 100% ownership and  
control within a specified time frame;58  
(c)  
(d)  
there are risks associated with investment in the merged group,  
and the script set out the risks outlined in s 8 of the scheme  
booklet;59  
if the Scheme was not agreed, each shareholder's investment  
would remain the same, but Vimy will have incurred substantial  
costs and expended management time and resources for a  
proposed change of control transaction that does not proceed;60  
(e)  
(f)  
shareholders may sell their shares on the ASX at any time  
before the close of trading on the ASX on the effective date of  
the Scheme, which is expected to be 27 July 2022;61  
if the Scheme is implemented, then each Shareholder (other  
than Ineligible Shareholders and Small Shareholders who do not  
elect to receive scrip consideration) will be issued 0.294 shares  
in Deep Yellow for each Vimy share they own and their Vimy  
shares will become owned by Deep Yellow;62  
(g)  
(h)  
Ineligible Shareholders will receive consideration for their  
shares in cash and in accordance with the procedure, as set out  
in s 2.16(c) of the scheme booklet;63  
Small Shareholders may elect to receive their consideration in  
Deep Yellow shares as set out in s 2.16(c) of the scheme  
booklet;64  
(i)  
(j)  
the scheme meeting would be held virtually on 20 July 2022,  
and voting is not compulsory;65  
shareholders can vote online, or by proxy (and set out the  
process to submit a proxy form);66  
58 Third affidavit of SG Michael, SGM-46, page 7.  
59 Third affidavit of SG Michael, SGM-46, page 8.  
60 Third affidavit of SG Michael, SGM-46, page 8.  
61 Third affidavit of SG Michael, SGM-46, page 9.  
62 Third affidavit of SG Michael, SGM-46, page 11.  
63 Third affidavit of SG Michael, SGM-46, pages 11 - 12.  
64 Third affidavit of SG Michael, SGM-46, pages 11 - 12.  
65 Third affidavit of SG Michael, SGM-46, page 13.  
66 Third affidavit of SG Michael, SGM-46, pages 13 - 14.  
Page 21  
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(k)  
(l)  
shareholders could vote for or against the Scheme, or sell their  
shares before the record date, or do nothing;67 and  
the Vimy directions unanimously recommended shareholders  
vote for the Scheme, in absence of a superior proposal.68  
59  
The Information Line Script was reviewed by MinterEllison,  
Vimy's solicitors.69  
Outbound calls  
60  
61  
On 5 July 2022, Vimy engaged Morrow Sodali to conduct an  
outbound shareholder engagement campaign in respect of the scheme  
meeting.70 Morrow Sodali began this engagement campaign on 6 July  
2022 and used two scripts.  
First, a campaign script recited when outbound calls were made to  
shareholders, which was based on information contained in the scheme  
booklet (Outbound Campaign Script). A copy of the Outbound  
Campaign Script was attached to the third affidavit of Mr Michael and  
marked SGM-47.  
62  
63  
64  
Secondly, a 'question and answer' script for operators to refer to  
during outbound calls when questions were asked, which was based on  
information contained in the scheme booklet and Vimy market  
announcements released to the ASX (Outbound Q&A Script). A copy  
of the Outbound Q&A Script was attached to the fourth affidavit of  
Mr Michael and marked SGM-48.  
Between 6 and 19 July 2022, Morrow Sodali made 1,203 calls and  
spoke to 184 shareholders (being 3.2% of the total number of  
shareholders) who held 21,416,662 shares (representing 1.8% of the  
total number of Vimy shares).71 At the hearing, counsel informed the  
court that the top 2,000 shareholders by number of shares held were  
those targeted by the outbound campaign.72  
The outbound campaign was not disclosed to the court or  
foreshadowed at the first court hearing. Mr Michael deposed that at the  
67 Third affidavit of SG Michael, SGM-46, page 15.  
68 Third affidavit of SG Michael, SGM-46, pages 16 - 17.  
69 Third affidavit of SG Michael par 8(a).  
70 Fourth affidavit of SG Michael par 12; third affidavit of SG Michael par 6(b). While Mr Michael in his  
third affidavit notes that this occurred on 25 May 2022, this was corrected in par 6 of his fourth affidavit.  
71 Fourth affidavit of SG Michael par 15, SGM-50.  
72 ts 48, 77 (26 July 2022); fourth affidavit of SG Michael, SGM-49, page 20.  
Page 22  
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STRK J  
time of the first court hearing, Vimy had not decided whether or not to  
conduct an outbound campaign.73 Mr Michael deposed that it had been  
mentioned at a meeting of legal and corporate advisers by Vimy's  
corporate advisers as a possibility for later consideration, but never  
otherwise progressed or further considered. Mr Michael further  
deposed that he was also unaware in early June that any script for an  
outbound campaign should be approved by the court.74 Neither the  
Outbound Campaign Script nor the Outbound Q&A Script were  
approved by the court at the first court hearing or at any time before the  
scheme meeting.  
65  
At the second court hearing, counsel for Vimy submitted that the  
information provided by Morrow Sodali operators to shareholders in  
the course of the campaign was consistent with the disclosures in the  
scheme booklet and did not contain any new information or information  
that was misleading.75 In this respect, counsel made the following  
points.  
1.  
The Outbound Campaign Script contained instructions to the  
callers not to depart from the script in any material way.76  
2.  
The Outbound Campaign Script and Outbound Q&A Script  
were based on information that was contained in the scheme  
booklet (and, in the case of the Outbound Q&A Script, based on  
Vimy's market announcements to the ASX).77 The calls were  
made after the scheme booklet had reached shareholders so  
there was no subversion of the information contained within the  
scheme booklet.78  
3.  
The Outbound Campaign Script asked shareholders (among  
other things) whether they supported the Scheme or not, and  
encouraged shareholders to vote.79 There is no suggestion that  
the message discouraged shareholders from voting.80 The key  
message included the Vimy board recommendation and set out  
73 Fourth affidavit of SG Michael pars 7 - 9.  
74 Fourth affidavit of SG Michael pars 7 - 8.  
75 Submissions par 104.  
76 Submissions par 95; third affidavit of SG Michael, SGM-47, pages 18, 21.  
77 Submissions par 106.  
78 ts 62 (26 July 2022).  
79 Submissions par 107; third affidavit of SG Michael, SGM-47, pages 20 - 21.  
80 ts 62 (26 July 2022).  
Page 23  
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STRK J  
some of the benefits of the Scheme, and referred to s 1.2 of the  
scheme booklet.81  
4.  
5.  
The main purposes of the campaign were to ascertain feedback  
on likely voting intention and to encourage shareholders to vote  
on the Scheme.82  
The Outbound Q&A Script was created for the purpose of  
answering questions from shareholders during the outbound call  
campaign and the information did not advocate for or against  
the Scheme itself - it was neutral on the Scheme.83  
6.  
7.  
There was overlap between the Outbound Q&A Script and the  
Information Line Script.84  
None of the scripts advocated for shareholders to vote to  
approve the Scheme. This is notwithstanding that some of the  
authorities have suggested that 'a degree of advocacy is  
permissible' so long as it is fair and honest.85  
66  
Counsel for Vimy further submitted that the impact of the  
outbound campaign on voting appeared to have been limited because of  
the 184 shareholders who were contacted:86  
(a)  
(b)  
(c)  
(d)  
38 shareholders (holding 9,576,098 shares) voted in favour of  
the Scheme;  
one shareholder (holding 50,000 shares) voted against the  
Scheme;  
four shareholders (holding 213,800 shares) voted 'discretionary'  
on the scheme resolution; and  
141 shareholders (holding 11,586,765 shares) did not vote on  
the scheme resolution.  
81 Submissions par 107(a); third affidavit of SG Michael, SGM-47, page 21.  
82 Submissions par 107(b); third affidavit of SG Michael, SGM-47, pages 20 - 21.  
83 Submissions par 108; third affidavit of SG Michael, SGM-47, pages 21 - 22.  
84 Submissions par 108.  
85 Submissions par 109, citing Re Investa Listed Funds Management Ltd [2016] NSWSC 344 [5] and Re  
AGL Ltd [2022] NSWSC 576 [42].  
86 Submissions pars 110 - 111; fourth affidavit of SG Michael par 16; ts 45 (26 July 2022).  
Page 24  
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67  
On behalf of Vimy, counsel also noted that no complaints about  
the outbound campaign had been received.87  
ASIC's concerns in relation to the campaign  
68  
It was brought to the court's attention that ASIC had raised a  
number of concerns with respect to the Information Line Script, the  
Outbound Campaign Script and the Outbound Q&A Script, including  
that:88  
(a)  
each script referred to the unanimous recommendation of the  
directors without qualification. That is, it was not stated that  
shareholders should have regard to the interests of the directors  
in the outcome of the Scheme vote, which may differ from  
those of other Vimy shareholders;  
(b)  
(c)  
the risks referred to in the Outbound Campaign Script did not  
include the risk of a Material Adverse Effect event; and  
the Outbound Campaign Script suggested that outbound callers  
continue speaking to shareholders after they have declined to  
continue speaking.  
69  
70  
As to the concerns raised by ASIC, counsel for Vimy made the  
following submissions at the second court hearing.  
First, counsel submitted that the scripts accurately described the  
directors' recommendations, and the directors' interests were  
extensively disclosed in the scheme booklet.89 All shareholders could  
access the scheme booklet online and would have also received the  
scheme booklet before any call, enabling the shareholder to read the  
scheme booklet and receive the call in context. It was further submitted  
that the scripts were intended to provide answers to questions and  
encourage shareholders to engage and vote on the Scheme, but not to  
provide a complete disclosure of the materials in the scheme booklet  
and the Scheme itself.90  
71  
Secondly, the Outbound Campaign Script itself did not  
substantively address the risks associated with the Scheme. The script  
encouraged shareholders to vote and attempted to ascertain voting  
87 Submissions par 112; fourth affidavit of SG Michael par 17.  
88 Sixth affidavit of SB McRobert par 5, SBM-40.  
89 Submissions par 115; ts 67 (26 July 2022).  
90 Submissions par 116.  
Page 25  
[2022] WASC 257  
STRK J  
intention. It also encouraged shareholders to read the scheme booklet,  
where the risk was disclosed.91  
72  
In this regard, counsel noted that both the Information Line Script  
and the Outbound Q&A Script referred to the risks of the Scheme and  
referred the shareholder to s 8 of the scheme booklet, which referred to  
the risk of termination of the scheme implementation deed as a result of  
a Material Adverse Effect event.92 Further, counsel noted that the risk  
of the Scheme not completing as a result of a Material Adverse Effect  
event (the absence of which is a completion condition precedent), was  
addressed by the conditions precedent certificates executed by both  
Vimy and Deep Yellow.93  
73  
Thirdly, counsel acknowledged that the Outbound Campaign  
Script did contain a statement where the caller would continue to speak  
even if the shareholder initially declined to speak.94 Counsel further  
accepted that this can lead to concern if:  
(a)  
there is overmuch pressure and an unbalanced message that is  
pushed if the shareholder is inclined to listen any further (rather  
than hanging up);  
(b)  
(c)  
the information is simply confusing; or  
there are excessive statements about voting only in favour of the  
Scheme, beyond ordinary advocacy based on a fair and honest  
reading of the message in the scheme booklet.  
74  
Counsel noted that 46 Shareholders were contacted but declined to  
answer.95 Those shareholders potentially received additional  
information from Morrow Sodali after they had declined to speak.  
Counsel submitted that even if these callers did not hang up and were  
given the additional information, that itself is not problematic when the  
content of that message is examined, for the following reasons:96  
1.  
In the present case, the message was for the caller to be politely  
persistent but not to pressure, confuse or make excessive or  
unbalanced statements.  
91 Submissions par 117; third affidavit of SG Michael, SGM-47, page 22.  
92 Submissions par 118; third affidavit of SG Michael, SGM-48, page 25.  
93 Submissions par 119; ts 68 (26 July 2022).  
94 Submissions par 120; third affidavit of SG Michael, SGM-47, page 20.  
95 Submissions par 121; fourth affidavit of SG Michael, SGM-50.  
96 Submissions pars 122 - 129.  
Page 26  
[2022] WASC 257  
STRK J  
2.  
3.  
The immediate opening is to offer an apology for interruption,  
and then to note the Scheme consideration ratio for the  
exchange of Deep Yellow shares for Vimy shares. Noting the  
amount of proposed Scheme consideration is not offensive or  
inappropriate; rather, it ensures shareholders know that their  
rights could be changed.  
The next statement that the board have carefully considered the  
proposal and unanimously recommend is an accurate statement.  
It is also accompanied by the important qualifiers:  
(a)  
(b)  
in the absence of a superior proposal; and  
the independent expert continuing to conclude that the  
Scheme is in the best interests of Vimy shareholders.  
4.  
The point that a shareholder's vote is important is not pressure.  
To suggest then that the Scheme could be implemented if  
approved by requisite majorities at the scheme meeting does  
have a suggestive tone that the shareholder may be inclined to  
vote in favour. However, again, the language is temperate and  
there is an important confirmation that shareholders vote on the  
proposal at the scheme meeting.  
5.  
Suggesting all the ways in which voting can occur is  
distinguishable from telling shareholders how to vote. There is  
no pressure in continuing to tell people about the ways that they  
can put in their vote, as their choice for their vote remains their  
choice.  
6.  
7.  
The final paragraph of the script simply reveals proxy cut off  
times, to ensure a shareholder knows how they can get their  
vote in on time (whatever that vote may be) and then the call is  
terminated.  
While there is a level of persistence in a call operator continuing  
on this line (again, if the shareholder has not already hung up),  
there is nothing in the nature of pressuring to vote a certain way.  
Legal principles in respect of shareholder information campaigns  
75  
As to the dissemination of unapproved information to shareholders  
prior to a scheme meeting, I note as follows.  
Page 27  
[2022] WASC 257  
STRK J  
76  
In Re Amcom Telecommunications Ltd [No 3] [2015] FCA 596,  
McKerracher J stated at [15] that:  
… where a meeting has been convened under s 411 of the Act, only  
information approved by the Court for despatch to shareholders should  
be provided to members: Re Coates Hire Limited (No 2) [2007] FCA  
2105; Re Associated Advisory Practices Ltd (No 2) [2013] FCA 979  
per Farrell J (at [8]); Re Horizon Oil Limited [2014] FCA 733 per  
Farrell J (at [39]).  
77  
In Re Centro Retail Ltd and Centro MCS Manager Ltd [2011]  
NSWSC 1321, Barrett J at [11] noted that the rationale behind this rule  
is '[b]ecause the meeting is convened in accordance with an order of the  
court and the court has approved the explanatory statement, the court-  
approved "message" should not be interfered with by unilateral  
supplementation by the company'.  
78  
In this case, at the second court hearing, counsel referred to having  
appeared recently before Black J,97 after the first court hearing but  
before the scheme meeting, where his Honour considered whether to  
approve a further communication to shareholders, by way of a process  
of telephone calls to shareholders to be undertaken by a third party in  
accordance with a specified script. Since the second court hearing in  
this matter, Black J has published reasons for decision in Re ResApp  
Health Ltd [2022] NSWSC 1014, in which his Honour made the  
following observations:  
[15] I now turn to the well-established authorities concerning these  
issues. In Re Centro Retail Ltd [2011] NSWSC 1321, Barrett J  
emphasised (at [7]) the duty on a company and its directors to  
ensure that information placed in the hands of members before a  
meeting was complete as to material matters and fully and fairly  
informed them of what was to be considered at the meeting, and  
was not misleading or deceptive. His Honour also emphasised  
(at [10]), by reference to earlier authority, that, where the Court  
has ordered the convening of a meeting and has approved an  
explanatory statement (as, I interpolate, had occurred here), the  
company should not dispatch additional explanatory material  
without first obtaining Court approval.  
[16] Many subsequent cases emphasise the principle that, if the Court  
has ordered the convening of a scheme meeting and approved an  
explanatory statement, its approval should be sought before  
additional explanatory material is dispatched, including at least  
Re Trust Company Ltd [2013] NSWSC 1946 at [6] - [8];  
97 ts 64, 65 (26 July 2022).  
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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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STRK J  
justice of the Courts and the public being able to have  
confidence that an order will not be made in the  
absence of a person whose rights are immediately to be  
affected by that order unless the Court making the order  
has firstly been informed by the applicant of all facts  
known to the applicant which that absent person could  
be expected to have sought to place before the Court  
had the application for the order been contested.  
[22] I record these matters to emphasise the significance, first, of  
seeking the Court's approval for substantive communications  
with shareholders and, secondly, drawing the Court's attention to  
matters that are relevant to those communications, recognising  
the duty of fair and full disclosure in an ex parte application. I  
accept that, in the present circumstances, the issues as to the first  
announcement made to ASX, so far as its substantive content is  
concerned, are likely to have been mitigated by the correcting  
announcement. The extent to which they may impact on the  
exercise of the Court's discretion whether to approve the scheme  
is, as I have noted above, a matter to be addressed at that second  
Court hearing, likely by reference to the approach adopted in Re  
Walsh and Co Ltd above, namely whether the information  
provided, in that first announcement, adversely affected the  
integrity of the voting process at the scheme meeting.  
79  
80  
I further note that from my review of the authorities, it appears  
that the appropriateness of the use of a script in a shareholder  
engagement campaign has been considered by this court on only two  
occasions.  
The decision of Hill J in Re Galaxy Resources Ltd [No 2],  
concerned an application for court approval of an arrangement in  
circumstances where at the first court hearing, the court was not  
informed of, and at no time had given prior approval to information to  
be given to shareholders as part of an outbound shareholder campaign.  
In that case, counsel who appeared for the applicant indicated that a  
motivation for the canvassing of shareholders was to encourage  
shareholders to vote at the scheme meeting.98 Upon reviewing the  
scripts that had been used to make calls to shareholders of the applicant,  
Hill J found that there was nothing in the scripts that caused her any  
concern, her Honour finding the scripts to be consistent with the  
98 Re Galaxy Resources Ltd [No 2] [32].  
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disclosure in the scheme booklet and not to contain any new  
information or any information that was misleading.99  
81  
Citing Re Amcom Telecommunications Ltd [No 3] [15], Hill J at  
[33] made the following observation and finding:  
… in my view, it would be preferable for any intention or proposal to  
canvass shareholders to be drawn to the attention of the court at the first  
court hearing and approval sought as to the proposed script. This is  
consistent with the views previously expressed by the courts that where  
a meeting is convened under s 411 of the Act, only information  
approved by the court should be provided to members. In this case,  
given the scripts used by Georgeson [the entity engaged to run the  
shareholder communications program] are consistent with the  
information disclosed in the Scheme booklet, I do not consider this is a  
reason to refuse approval of the Scheme. (footnotes omitted)  
82  
Her Honour again came to consider additional shareholder  
engagement in Re Western Areas Ltd [2022] WASC 193, where at a  
first court hearing, the applicant (Western Areas) sought orders  
pursuant to s 1319 of the Corporations Act to cause certain Western  
Areas shareholders to be contacted via telephone by Western Areas'  
proxy solicitation agency, Morrow Sodali, and to cause a telephone  
information line to be operated by another entity. Her Honour at [84]  
observed that the scripts were consistent with the information in the  
scheme booklet and it was stressed that the scripts should not be  
departed from.  
83  
At [85] of the reason for decision, her Honour stated:  
Where a company proposed to use a proxy solicitation agent, it is my  
view that this should be drawn to the attention of the court at the first  
court hearing and approval sought as to the proposed script.100 I have  
reviewed the scripts proposed to be used in this matter and am satisfied  
that they are consistent with the disclosures in the Scheme Booklet and  
do not contain any new information or information that is misleading.  
84  
In this case, at the second court hearing, counsel for Vimy  
submitted that Hill J's position in relation to scripts 'appears to have  
evolved' as between Re Galaxy Resources Ltd [No 2] and Re Western  
Areas Ltd.101 That is, her Honour had moved from expressing what is  
'preferable' in relation to the provision of additional information to  
99 Re Galaxy Resources Ltd [No 2] [33].  
100 Re Galaxy Resources Ltd [No 2] [31] - [33].  
101 Submissions pars 99 - 103.  
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shareholders prior to a scheme meeting, to expressing what 'should'  
happen.  
85  
I make the following observations in relation to this submission.  
First, the context in which her Honour came to consider additional  
shareholder engagement differed in each case. While permission was  
sought in the circumstances of Re Western Areas Ltd (at a first court  
hearing), something akin to forgiveness was sought in the  
circumstances of Re Galaxy Resources Ltd [No 2] (a second court  
hearing).  
86  
Secondly, in considering her Honour's reasons, I do not accept that  
there was any change or evolution of position. I understand her  
Honour's use of the words 'preferable' and 'should' were, in context,  
used to convey the same meaning. That is, a company should not  
dispatch additional explanatory material without first obtaining court  
approval. However, if it does, her Honour's reasons in Re Galaxy  
Resources Ltd [No 2] makes plain that the question then to be  
determined is whether such dispatch warrants withholding approval to  
the scheme, having regard to, among other things, whether new or  
misleading information was conveyed. In this regard, her Honour  
expressed a view entirely consistent with that expressed by Black J in  
Re ResApp Health Ltd. The company should not dispatch additional  
explanatory material without first obtaining court approval, but if it  
does, the question to be determined is whether such dispatch warrants  
withholding approval to the scheme.  
87  
88  
I agree with and in this case applied the approach adopted by  
Hill J and Black J described above.  
I note that at the second court hearing, counsel for Vimy observed  
that the court does not usually make orders approving a script for a  
shareholder information line or inbound call campaign.102  
89  
I would expect that inbound calls may be initiated for varied  
reasons. Some may be administrative in nature. For example, a  
shareholder may call to request a copy of a document in a hard copy  
format, or to confirm a date or venue. There is no concern that a  
company, through a third party or directly, responds to the same.  
However, if a script is prepared with a view to engaging such callers in  
a substantive discussion concerning the scheme, and/or to provide  
102 ts 59 (26 July 2022).  
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additional information about the scheme, then in my view, prior  
approval of that script should be sought.  
90  
Some inbound calls may be substantive, for example, seeking  
further explanation as to the proposed scheme, or to engage as to  
merits. If such calls are answered by referring the caller to the  
appropriate parts of the scheme booklet, it is unsurprising that  
disclosure of such engagement has not typically been made, nor  
approval sought nor secured. However, if a script is prepared so as to  
engage such callers in a substantive discussion concerning the scheme,  
and/or to provide additional information about the scheme, then prior  
approval of that script should be sought.  
91  
There appears to be no reason to distinguish between scripts  
prepared for substantive (as opposed to administrative) engagement of  
inbound callers and those prepared for outbound calls. The court's  
approval for substantive communications with shareholders should be  
obtained and, the court's attention must be drawn to matters that are  
relevant to those communications, recognising the duty of fair and full  
disclosure in an ex parte application. In the end however, the ultimate  
question will be whether the manner in which communications with  
shareholders occurred compromised the integrity of the voting process  
at the scheme meeting. Whether use of an unsanctioned script in an  
unapproved shareholder campaign is reason to refuse to approve a  
proposed scheme is necessarily fact sensitive.  
Conclusion  
92  
Vimy's shareholder information campaign had both inbound and  
outbound parts.  
93  
94  
I gave little weight to the fact that no complaints concerning the  
outbound campaign were received.103 I was also somewhat troubled by  
the efforts made to keep shareholders engaged with callers after they  
had declined to speak.  
I was concerned to understand how shareholders were selected for  
engagement, for example, whether they were retail investors. This  
concern was abated as counsel was able to confirm in response to my  
query that shareholders were not targeted by reference to any particular  
103 ts 62 (26 July 2022).  
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STRK J  
characteristic or vulnerability. Rather, the first 2,000 shareholders by  
size of shareholding were the subject of the outbound campaign.104  
95  
I reviewed the scripts used and was satisfied that there was  
nothing in the content that caused me concern. The scripts were  
consistent with the disclosure in the scheme booklet and did not contain  
new information or any information that was misleading. I took  
comfort that the scripts were referred to and approved by Vimy's  
solicitors prior to their use.105 Further, the scripts encouraged  
shareholders to vote,106 which is a legitimate object of an outbound  
campaign when the approval of a scheme depends, in part, upon the  
number of shareholders voting as well as the way in which they vote.107  
96  
On balance, I was satisfied that neither the information provided in  
the scripts nor the nature of the campaign adversely affected the  
integrity of the voting process at the scheme meeting. While there may  
be circumstances where the lack of court approval of a shareholder  
campaign script or campaign process may ground a basis to refuse to  
approve a proposed scheme, I was satisfied that this was not such an  
occasion.  
Minor amendments to the Scheme  
97  
Vimy sought an order pursuant to s 411(6) of the Corporations Act  
to alter the Scheme that was approved by shareholders.  
98  
In considering whether it is just to approve a scheme in an  
amended form, it is relevant to consider whether the proposed  
amendment represents a substantial departure from the terms of the  
scheme that has been approved by shareholders.108  
99  
In this case, the amendments sought were to correct incomplete  
data and typographical errors.109 Deep Yellow, through their solicitors,  
confirmed that the proposed alterations were agreed.110  
104 ts 48, 77 (26 July 2022); fourth affidavit of SG Michael, SGM-49, page 20.  
105 ts 63 (26 July 2022).  
106 Third affidavit of SG Michael, SGM-47, pages 20 - 21.  
107 Re ResApp Health Ltd [24].  
108 Re Nzuri Copper Ltd [No 4] [2020] WASC 10 [7]; Re Ozgrowth [No 2] [67].  
109 ts 72 (26 July 2022).  
110 Exhibit 1; ts 49 - 50 (26 July 2022).  
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100  
I accepted counsel's submission that what was proposed were  
relatively minor alterations which did not affect the details or substance  
of the Scheme,111 and I had no issue in approving the same.  
Public policy  
As with the first court hearing, I proceeded on the basis that the  
101  
court's public policy discretion does not concern public policy matters  
at large, and the fact that Vimy and Deep Yellow operate in the  
industry of uranium mine development and mining is not a matter of  
concern to the court.112 I remain of the same view and did not consider  
that there were any public policy grounds that warranted withholding  
approval to the Scheme.113  
US Securities exemption  
At the first court hearing, counsel for Vimy also drew to my  
102  
attention, the intention of Deep Yellow to rely on the court's approval  
of the Scheme to qualify for exemption under s 3(a)(10) of the  
Securities Act 1933 (USA). One of the requirements for the operation  
of s 3(a)(10) in practice is that the proposed issuer of the securities must  
inform the court, whose order is to be relied on, that the issuer will rely  
on the court's approval in seeking the exemption.  
103  
This has become common practice in schemes of arrangement,114  
and in the circumstances of this case, I was and am satisfied that it is  
appropriate to record as follows:  
(a)  
I was informed of the shares which are to be offered as Scheme  
consideration and an independent expert report has concluded  
that the Scheme is in the best interests of shareholders.  
(b)  
The court has held a hearing to determine whether the terms of  
the proposed Scheme are fair to Vimy's shareholders so as to  
determine whether to approve the terms of the Scheme. In this  
regard, as I have stated earlier, in an application for approval  
under s 411(4)(b) of the Corporations Act, it is necessary for the  
court to consider the fairness and reasonableness of the  
111 Submissions par 133.  
112 Re CSR Ltd [2010] FCAFC 34; (2010) 183 FCR 358 [35], [84] - [86]; Re CannPal Animal Therapeutics  
Ltd [48].  
113 See also ts 72 - 73 (26 July 2022).  
114 See, for example, Re Amcor Ltd [No 2] [2019] FCA 842 [33]; Re Beadell Resources Ltd [No 2] [2019]  
WASC 53 [62] - [64].  
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proposed Scheme. As set out at [43] - [44] above, I have  
determined that the proposed Scheme is fair and reasonable.  
(c)  
The hearing for approval of the proposed Scheme was heard in  
open court. It was open to all shareholders of Vimy to attend.  
Notice of the hearing was provided to all shareholders in  
accordance with the orders of the court made on 15 June 2022.  
The date of the hearing was published in both The West  
Australian and The Australian newspapers on 18 July 2022.  
(d)  
(e)  
No shareholder of Vimy gave notice of an intention to appear at  
the second court hearing and no shareholder sought leave to  
appear at the second court hearing to oppose the approval of the  
Scheme.  
In my orders, I included a notation that Vimy and Deep Yellow  
would rely on this court's approval of the Scheme for the  
purpose of qualifying for exemption from the registration  
requirements under s 3(a)(10) of the Securities Act 1933 (USA).  
The notation was included to facilitate qualification for  
exemption prior to the publication of these written reasons.  
Exemption from s 411(11) of the Corporations Act  
104  
I note that Vimy sought an exemption from s 411(11) of the  
Corporations Act. This exemption has become ordinary practice for  
transactions of this kind.115 Overall, I was and am satisfied there is no  
utility in requiring the court's orders approving the Scheme to be  
annexed to Vimy's constitution.116 It was and is appropriate in the  
circumstances to make the orders sought pursuant to s 411(12) of the  
Corporations Act.  
Section 411(17) of the Corporations Act  
Section 411(17) of the Corporations Act makes the court's  
105  
approval conditional on satisfaction of one of two alternative  
conditions. Section 411(17) provides as follows:  
(17) The Court must not approve a compromise or arrangement  
under this section unless:  
(a)  
it is satisfied that the compromise or arrangement has  
not been proposed for the purpose of enabling any  
115 Re Nusantara Resources Ltd [2021] WASC 334 [103].  
116 Submissions par 134 - 135.  
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[2022] WASC 257  
STRK J  
person to avoid the operation of any of the provisions  
of Chapter 6; or  
(b)  
there is produced to the Court a statement in writing by  
ASIC stating that ASIC has no objection to the  
compromise or arrangement;  
but the Court need not approve a compromise or arrangement  
merely because a statement by ASIC stating that ASIC has no  
objection to the compromise or arrangement has been produced  
to the Court as mentioned in paragraph (b).  
106  
As noted by counsel, it was observed by Vaughan J in  
Re Wesfarmers Ltd [No 2] that production of a 'no objection' letter  
from ASIC pursuant to s 411(17)(b) is usually the end of the issue; the  
court then does not need to consider the s 411(17)(a) issue.117  
However, a 'no objection' letter does not bring to the end the court's  
discretion.118 His Honour observed that if for example the court were  
to find that a scheme had been proposed for the purpose of avoiding the  
operation of provisions within Ch 6 of the Corporations Act, that might  
be considered in the exercise of the discretion to approve the scheme  
under s 411(4)(b).119  
107  
It is well accepted that significance ought to be attached to the  
ASIC 'no objection' letter given in the terms of ASIC Regulatory  
Guide 60: Schemes of Arrangement. The Regulatory Guide confirms  
that a primary consideration for ASIC is whether, having regard to the  
principles in s 602 of the Corporations Act, shareholders are adversely  
affected by the takeover being implemented by a scheme of  
arrangement rather than a takeover bid.120 ASIC will only issue a 'no  
objection' letter if satisfied as to the disclosure and that there are no  
other reasons to oppose the scheme.121  
108  
ASIC provided a written statement on 26 July 2022 that it did not  
object to the Scheme pursuant to s 411(17)(b) of the Corporations Act,  
and ASIC did not intend to appear and make submissions at the second  
court hearing. A copy of ASIC's communication of 26 July 2022 was  
117 Submissions par 138.  
118 Re Macquarie Private Capital A Ltd [2008] NSWSC 323; (2008) 26 ACLC 366 [29] - [30], as referenced  
in Re Wesfarmers Ltd [No 2] [18].  
119 Re Wesfarmers Ltd [No 2] [18], citing Re Coles Group (No 2) [2007] VSC 523; (2007) 215 FLR 411  
[75] - [78].  
120 ASIC Regulatory Guide 60: Schemes of Arrangement [RG 60.17]; as noted in Re Wesfarmers Ltd [No 2]  
[19].  
121 ASIC Regulatory Guide 60: Schemes of Arrangement [RG 60.106]; as noted in Re Wesfarmers Ltd [No 2]  
[19].  
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before the court.122 As a result, the requirements of s 411(17) were  
satisfied.  
109  
In any event, for the reasons outlined by counsel in written  
submissions, having regard to the nature of the proposed transaction, I  
was and am satisfied that it cannot be said the Scheme was proposed to  
avoid the operation of Ch 6 of the Corporations Act.  
Conclusion and orders  
Upon considering the additional affidavit evidence filed and read  
110  
in support of the application and upon considering the submissions  
made by counsel, I was satisfied that the substantive and procedural  
requirements of s 411(4) of the Corporations Act had been satisfied and  
that I should approve the proposed Scheme. The orders made at the  
conclusion of the second court hearing on 26 July 2022 are reproduced  
at sch A to these reasons.  
122 Seventh affidavit of SB McRobert par 9, SBM-49.  
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Sch A: Orders made  
Page 39