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Category: Principal judgment

Parties: Blue Ocean Monitoring Limited (Plaintiff)
Helsing Australia Pty Ltd (Bidder)

Representation: Counsel:
Ms S Scott (Plaintiff)
Mr H Atkin (Bidder)
Solicitors:
Kardos Scanlan (Plaintiff)
Mallesons (Bidder)

File Number(s): 2026/39569

Judgment

1. By Originating Process filed on 29 January 2026, the Plaintiff, Blue Ocean Monitoring Limited (“BLM”) applied for orders under ss 411 and 1319 of the Corporations Act 2001 (Cth) (“Act”) relating to a proposed scheme of arrangement and associated orders. BLM is an unlisted Australian public company limited by shares, which designs, develops, and operates autonomous underwater vehicles and software solutions to enhance defence maritime surveillance, environmental monitoring, and subsea operations. The proposed scheme involves the acquisition of all the issued ordinary shares in BLM by Helsing Australia Pty Ltd (“Helsing”), a subsidiary of Helsing GmbH which is in turn wholly owned by Helsing SE, a German registered company, for initial cash payments and potential earn out payments.

2. I made the orders sought by BLM at the conclusion of the hearing on 3 March 2026, for the reasons set out in my judgment in Re Blue Ocean Monitoring Ltd [2026] NSWSC 207. At the scheme meeting held on 26 March 2026, the scheme was then approved by the requisite majorities of BLM shareholders for the purposes of s 411(4)(a)(ii) of the Act. BLM now seeks orders approving the scheme. No BLM shareholder or other person indicated an intention to appear at this hearing or appeared to oppose the approval of the scheme, and I made the orders sought by BLM at the conclusion of this hearing. These are my reasons for making those orders, and I have drawn on the helpful submissions of Ms Scott who appeared for BLM in this judgment.

Affidavit evidence

3. BLM reads the affidavit dated 18 May 2026 of Mr Michael Deeks, its group managing director, who gives evidence of the registration of the scheme booklet with the Australian Securities and Investments Commission (“ASIC”); the despatch of materials to BLM shareholders; BLM’s communications with shareholders; an uncontroversial amendment made to the Scheme Implementation Agreement and scheme of arrangement to conform the arrangements for payment of the scheme consideration to those disclosed in the scheme booklet, as had been foreshadowed at the first Court hearing; and the conduct of the scheme meeting and the passage of the scheme resolution and voting participation rate at that meeting. Mr Deeks also refers to the publication of the notice of this hearing.

4. BLM also tenders two conditions precedent certificates in respect of the satisfaction or waiver of the conditions precedent to the scheme and a letter dated 18 May 2026 from ASIC stating that ASIC has no objection to the scheme pursuant to s 411(17)(1)(b) of the Act.

Applicable principles

5. Ms Scott draws attention to the well-established principles as to the Court’s role at a second Court hearing in respect of a scheme, which I summarised in Re InvoCare Ltd (No 2) [2023] NSWSC 1350 at [8]–[9] and again in Re Southern Cross Gold Ltd (No 2) [2025] NSWSC 2 at [8], to which Ms Scott refers. I there observed that:

“The Court must be satisfied of several matters in order to approve a scheme of arrangement at the second Court hearing, namely that the plaintiff has complied with the orders of the Court convening the meeting of members; the meeting of members so convened has approved the scheme with the requisite majorities; all other statutory requirements have been satisfied; the scheme 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; 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; and there was full and fair disclosure to members of all information material to the decision whether to vote for or against the applicable scheme: Re Permanent Trustee Co Ltd (2002) 43 ACSR 601; [2002] NSWSC 1177 at [8]–[10]; Re Central Pacific Minerals NL [2002] FCA 239 (“Central Pacific Minerals”) at [8]–[14]; Re Seven Network (No 3) (2010) 267 ALR 583; [2010] FCA 400 … at [35]–[39]; Re Solution 6 Holdings Ltd (2004) 50 ACSR 113; [2004] FCA 1049 at [18]–[24]; Re Redcape Property Fund Ltd and the Trust Company (RE Services) Ltd (as the responsible entity for the Redcape Property Trust) [2012] NSWSC 486 at [7]; Re Amcor Ltd (No 2) [2019] FCA 842 at [7]–[11]; Re Ellerston Global Investments Ltd [2020] NSWSC 1108 (“Ellerston”) at [10]–[12]; Re Coca-Cola Amatil Ltd [2021] NSWSC 489 at [9]; Re Pendal Group Ltd (No 3) [2023] NSWSC 14 at [9]. The Court will also have regard to shareholders’ assessment of their interests as manifested in the voting results on the scheme resolution in recognising that shareholders are ‘the best judges of whether an arrangement is to their commercial advantage’: Central Pacific Minerals at [13]; Ellerston at [10].”

Submissions and determination

6. Ms Scott refers, by reference to Mr Deeks’ evidence, to the despatch of the scheme booklet and conduct of the scheme meeting in accordance with the Court’s orders made at the first Court hearing, to the passage of the scheme resolution at the scheme meeting by substantial majorities, and to the satisfaction of the other statutory requirements in respect of the scheme and the conditions precedent to the scheme. She draws attention to the amendment to the Scheme Implementation Agreement and scheme of arrangement, which I noted above, which addressed a matter that had been identified by BLM at the first Court hearing and gave effect to the position disclosed in the scheme booklet. That amendment was well within the Court’s power, under s 411(6) of the Act, to approve a scheme subject to such alterations or conditions as it thinks fit: Re Boart Longyear Ltd (No 2) (2017) 122 ACSR 437; [2017] NSWSC 1105 at [91]ff; Snowside Pty Ltd (as trustee for the Snowside Trust) v Boart Longyear Ltd (2017) 122 ACSR 291; [2017] NSWCA 215 at [26]; Re Billabong International Ltd (No 2) [2018] FCA 496 at [13]–[16]; Re Wiggins Island Coal Export Terminal Pty Ltd (No 2) [2025] NSWSC 682 at [12].

7. I am satisfied that BLM complied with the Court’s orders in respect of the distribution of scheme documents to its shareholders. The scheme booklet and convening orders were lodged with ASIC; the despatch of the scheme materials to BLM shareholders and the conduct of the scheme meeting is addressed in the evidence; and the scheme resolution was passed by the statutory majorities. BLM shareholders voted in favour of the scheme by the requisite statutory majorities, the voting participation rate at the scheme meeting was higher than that seen at BLM’s recent annual general meetings and there is no reason to think there was any defect in the notice of the scheme given to BLM shareholders. The other statutory requirements for the scheme have been satisfied. There is no reason to doubt that the scheme is fair and reasonable so that an intelligent and honest BLM shareholder, properly informed and acting alone, might approve it. There is otherwise no reason to doubt that BLM has brought to the Court’s attention all matters that could be considered relevant to the exercise of the Court’s discretion or that there was full and fair disclosure to shareholders of all information material to the decision whether to vote for or against the scheme. I am therefore satisfied that the scheme is appropriate for the Court’s approval.

8. BLM also seeks an order exempting it from compliance with s 411(11) of the Act. There is here no utility in having the Court order annexed to BLM’s constitution, where the scheme will not involve any modification of any rights of BLM’s shareholders, or of creditors or persons dealing with BLM, and there is therefore no need to require compliance with s 411(11) of the Ac**t.

Determination and orders

9. For these reasons, I made the orders sought by BLM at the conclusion of the second Court hearing on 19 May 2026.

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