In the matter of ClearView Wealth Ltd [2026] NSWSC 870 | Case summary

In the matter of ClearView Wealth Ltd [2026] NSWSC 870 | Case summary | Zoe

Cases Cited: - Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15
- F T Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69
- Re Absolute Equity Performance Fund Ltd [2022] FCA 933
- Re Adelaide Bank Ltd [2007] FCA 1582
- Re Allkem Ltd [2023] FCA 1397
- Re Altium Ltd [2024] NSWSC 736
- Re APN News and Media Ltd (2007) 62 ACSR 400; [2007] FCA 770
- Re Ardent Leisure Ltd [2018] NSWSC 1665
- Re Arthur Yates & Co Ltd (2001) 36 ACSR 758; [2001] NSWSC 40
- Re Asaleo Care Ltd [2021] FCA 406
- Re Aveo Group Limited and Aveo Funds Management Limited [2019] NSWSC 1348
- Re Bigair Group Ltd [2016] FCA 1296
- Re Blue Ocean Monitoring Ltd [2026] NSWSC 207
- Re Bolnisi Gold NL (No 2) (2007) 65 ACSR 510; [2007] FCA 2078
- Re Citadel Group Ltd (2020) 148 ACSR 598; [2020] FCA 1580
- Re CSR Ltd (2010) 183 FCR 358; [2010] FCAFC 34
- Re DUET Finance Ltd [2017] NSWSC 415
- Re DWS Ltd (2020) 148 ACSR 616; [2020] FCA 1590
- Re Ellerston Global Investments Ltd [2020] NSWSC 879
- Re ELMO Software Pty Ltd [2023] NSWSC 12
- Re ERM Power Ltd [2019] NSWSC 1502
- Re Foundation Healthcare Ltd (2002) 42 ACSR 252; [2002] FCA 742
- Re Insignia Financial Ltd [2026] FCA 160
- Re InvoCare Ltd [2023] NSWSC 1180
- Re Isentia Group Ltd [2021] NSWSC 910
- Re Kidman Resources Ltd (2019) 139 ACSR 112; [2019] FCA 1226
- Re McGrath Ltd [2024] NSWSC 555
- Re Nzuri Copper Ltd [2019] WASC 189
- Re Origin Energy Ltd [2023] NSWSC 1246
- Re Orion Telecommunications Limited [2007] FCA 1389
- Re Oz Minerals Ltd [2023] FCA 197
- Re Qube Holdings Ltd [2026] NSWSC 453
- Re Spark Infrastructure RE Ltd (2021) 156 ACSR 257; [2021] NSWSC 1385
- Re Staging Connections Group Ltd [2015] FCA 1012
- Re Tawana Resources NL (No 3) [2018] FCA 1952
- Re The Reject Shop Ltd [2025] FCA 522
- Re TPG Telecom Ltd [2020] NSWSC 772
- Re Uniti Group Ltd (2022) 160 ACSR 602; [2022] FCA 671
- Re Villa World Ltd (2019) 139 ACSR 550; [2019] NSWSC 1207
- Re Village Roadshow Ltd [2020] FCA 1669
- Re Vocus Group Ltd [2021] NSWSC 630
- Re Webster Ltd [2019] NSWSC 1907
- Re Wridgways Australia Ltd [2010] FCA 1187

Mr Izzo addressed the well-established principles as to the Court’s role at the first Court hearing in respect of a scheme in submissions. The Court will determine, in the exercise of its discretion, whether to approve the convening of a scheme meeting and the explanatory statement if it is satisfied of several matters, namely that the plaintiff is a Pt 5.1 body; the proposed scheme is an “arrangement” within the meaning of s 411 of the Act; the scheme is bona fide and properly proposed; ASIC has had a reasonable opportunity to examine the proposed scheme and explanatory statement, to make submissions and has had 14 days’ notice of the proposed hearing date of the first Court hearing; the procedural requirements under the Supreme Court (Corporations) Rules 1999 (NSW) (“Rules”) have been met; and there is no apparent reason why the scheme should not, in due course, receive the Court’s approval if the necessary majority of votes is achieved: Re Orion Telecommunications Limited [2007] FCA 1389 at [5]; Re Staging Connections Group Ltd [2015] FCA 1012 at [19]; Re Wridgways Australia Ltd [2010] FCA 1187 at [30]; Re Ellerston Global Investments Ltd [2020] NSWSC 879 at [25]; Re Vocus Group Ltd [2021] NSWSC 630 at [12]; Re Absolute Equity Performance Fund Ltd [2022] FCA 933 at [18]–[22].
The Court will not ordinarily summon a scheme meeting unless the scheme is of such a nature and cast in such terms that, if it achieves the statutory majority at the meeting, the Court would be likely to approve it. The Court will consider whether the proposed scheme is fit for consideration at the proposed scheme meeting, in the sense that it is of such a nature and cast in such terms that, if it achieves the statutory majority at the meeting, the Court would be likely to approve it on the hearing of a petition which is unopposed; and members are to be properly informed as to the nature of the scheme before the scheme meeting: F T Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69 at 72, approved in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 504; [1993] HCA 15; Re Foundation Healthcare Ltd (2002) 42 ACSR 252; [2002] FCA 742 at [36] and [44], cited with apparent approval in Re CSR Ltd (2010) 183 FCR 358; [2010] FCAFC 34 at [58]; Re InvoCare Ltd [2023] NSWSC 1180 at [16]–[17].

I am satisfied that each of the preconditions to the exercise of the Court’s discretion in s 411 of the Act is satisfied in this case. ClearView is a company registered under the Act and a Pt 5.1 body. The proposed scheme is an “arrangement” within the scope of s 411 of the Act where it involves the acquisition of the shares in ClearView in return for consideration being paid to its shareholders.
There is no reason to suggest that scheme is not bona fide or properly proposed. ClearView’s directors have unanimously recommended that members vote in favour of the scheme, in the absence of a superior proposal and subject to the independent expert continuing to conclude that the scheme is in the best interests of ClearView’s shareholders. Grant Thornton Corporate Finance Pty Ltd (“Grant Thornton”) has prepared an independent expert’s report in respect of the proposed scheme and has concluded that the scheme is fair and reasonable, and hence in the best interests of ClearView’s shareholders in the absence of a superior alternative proposal. Grant Thornton there assessed the fair market value of ClearView using price to earnings and price to book multiples methodologies and formed the view that the scheme consideration of $0.65 per ClearView share falls within a reasonable range of fair market value on a control basis (assessed as ranging from $0.625 to $0.764), although it is at the low end of that range. Grant Thornton also concluded that, if the scheme consideration was to be assessed as falling marginally below the fair market value range, the scheme would nevertheless be reasonable and in the best interests of ClearView’s shareholders having regard to several matters.
ASIC has here had a reasonable opportunity to examine the proposed scheme and scheme booklet, to make submissions and has had the necessary notice of this hearing and, as I noted above, has indicated that it does not currently propose to appear to make submissions or intervene to oppose the scheme at this hearing. The procedural requirements under the Rules have been met, where I will dispense with the requirement for compliance with r 3.4 of the Rules to publish a notice of the second Court hearing in a national newspaper, where ClearView will publish that notice on the ASX in accordance with current scheme practice.

Mr Izzo also addressed several further matters. First, he addressed the position in respect of ClearView incentive securities. He pointed out that ClearView operates employee incentive plans under which short-term variable remuneration and long-term variable remuneration awards are made to members of ClearView’s Executive Leadership Team, including ClearView Performance Rights and ClearView Restricted Rights which are subject to the ClearView Rights Plan. He also pointed out that the nature of these ClearView Incentive Rights and their proposed treatment is addressed in sections 11.4 and 11.5 of the scheme booklet and in Ms Gooderick’s affidavit. If the scheme becomes effective, exercise restrictions that apply to all ClearView Restricted Rights will cease to apply; certain ClearView Performance Rights will vest and become exercisable; and others (being the FY26 Interim ClearView Performance Rights) will lapse and be cancelled for no consideration.
Mr Izzo pointed to the complexity that certain of the ClearView Performance Rights in respect of FY26 are subject to regulation under the Financial Accountability Regime Act 2023 (Cth) (“FAR Act”), which is described at section 11.4(d) of the scheme booklet and requires minimum deferral periods for the variable remuneration of “accountable persons” of specified bodies . ClearView has applied to the Australian Prudential Regulation Authority (“APRA”) for a written notice under s 28(5) of the FAR Act which would have the effect of setting the end of the minimum deferral period in respect of the applicable proportion of each Participant’s FY26 ClearView Performance Rights at the time the scheme becomes effective or is implemented. The treatment of those ClearView Performance Rights in connection with the scheme will depend upon whether such a notice is given and is set out in section 11.4(e)(ii) of the scheme booklet. I am satisfied that this matter is sufficiently disclosed in the scheme booklet and provides no reason not to convene the scheme meeting. I also accept that the fact that holders of ClearView Performance Rights and ClearView Restricted Rights will receive a benefit in relation to the scheme which other shareholders will not, which they would (or were likely or able to) have received whether or not the scheme proceeded, does not require that they vote in a separate class at the scheme meeting: Re Webster Ltd [2019] NSWSC 1907 at [33]; Re Nzuri Copper Ltd [2019] WASC 189 at [37]; Re McGrath Ltd [2024] NSWSC 555 at [25] (“McGrath”).
Mr Izzo also pointed out that the vesting and exercise of the ClearView Performance Rights will have the effect that Ms Gooderick will receive a maximum aggregate amount of $2,873,672, and that the scheme is also expected to affect Ms Gooderick’s short and long term variable remuneration for FY26 and FY27. These matters are disclosed in the Chairman’s letter and in sections 11.4(b), 11.4(c) and 11.7(b) of the scheme booklet. I accept that, where such disclosure is made, it is not inappropriate that Ms Gooderick make a recommendation as a director concerning the scheme: see Re Kidman Resources Ltd (2019) 139 ACSR 112; [2019] FCA 1226 at [115]; Re DWS Ltd (2020) 148 ACSR 616; [2020] FCA 1590 at [41]–[49]; McGrath at [25].
Mr Izzo also referred to the treatment of shares issued under an employee share scheme which is addressed in section 11.4(f) of the scheme booklet. He pointed out that the scheme consideration payable in respect of loans will be paid first in discharge of those loans, with the effect that holders of ESP shares that are “out of the money” will receive no consideration other than discharge of the loan. I accept that that matter also does not give rise to any reason not to convene the scheme meeting: Re Village Roadshow Ltd [2020] FCA 1669 at [11]–[15], [112]; Re Blue Ocean Monitoring Ltd [2026] NSWSC 207 at [21].
Second, Mr Izzo addressed the break fee payable under the scheme. The Break Fee payable by ClearView (in the circumstances set out in cl 9 of the SID) is defined as an “amount equal to 1% of the Aggregate Scheme Consideration Payable by [Zurich] for all the Scheme Shares under the Scheme”. This is consistent with the Takeovers Panel’s guidance which provides that a break fee not exceeding 1% of the equity value of the target is generally not unacceptable. The break fee is not payable merely because ClearView’s shareholders or the Court do not approve the scheme and is not an inappropriate disincentive to ClearView’s shareholders in their consideration of the scheme: Re Bolnisi Gold NL (No 2) (2007) 65 ACSR 510 at 513 [12]. This matter also provides no reason not to convene the scheme meeting.
Third, Mr Izzo addressed the position as to exclusivity provisions in respect of the scheme. The SID provides for an “Exclusivity Period”, which commenced on the execution of the SID and ends on the earliest of the End Date (meaning the later of 24 February 2027 or such other date and time agreed in writing between ClearView and Zurich and subject to any extension under cl 3.8 of the SID); the Effective Date (as defined); and the date on which the SID is terminated. Mr Izzo rightly pointed out that, in assessing exclusivity terms, the Court is concerned to ensure that any exclusivity period should be for no more than a reasonable period capable of precise ascertainment; an exclusivity clause directed at dealing with an unsolicited alternative merger proposal should be subject to a fiduciary carve out; and the provision must be clearly disclosed in the explanatory statement sent to shareholders: Re Arthur Yates & Co Ltd (2001) 36 ACSR 758; [2001] NSWSC 40 at [9]; Re TPG Telecom Ltd [2020] NSWSC 772 at [22]; Re Isentia Group Ltd [2021] NSWSC 910 at [23]; Re Asaleo Care Ltd [2021] FCA 406 at [55].
I accept that the exclusivity period is here of reasonable length where the conditions precedent to the transaction, under the SID, includes approval from APRA (under the Financial Sector (Shareholdings) Act 1998 (Cth)) which has not yet been obtained: Re Origin Energy Ltd [2023] NSWSC 1246 at [32]–[33]; Re Altium Ltd [2024] NSWSC 736 at [20]–[23]; Re Insignia Financial Ltd [2026] FCA 160 at [53]. For completeness, I note that regulatory clearance or approval from the Australian Competition & Consumer Commission under the Competition and Consumer Act 2010 (Cth) has already been obtained. The exclusivity provisions are otherwise in common form with common exclusions; they are summarised at section 11.10(e) of the scheme booklet; and they give rise to no reason not to convene the scheme meeting: Re DUET Finance Ltd [2017] NSWSC 415 at [24]; Re Bigair Group Ltd [2016] FCA 1296 at [21]; Re Aveo Group Limited and Aveo Funds Management Limited [2019] NSWSC 1348 at [44].
Fourth, Mr Izzo noted that the scheme provides for a deemed warranty by ClearView’s shareholders that their shares will be free from encumbrances. That deemed warranty is disclosed in the scheme booklet and also provides no reason not to convene the scheme meeting: Re APN News and Media Ltd (2007) 62 ACSR 400; [2007] FCA 770 at [57]-[63]; Re Ardent Leisure Ltd [2018] NSWSC 1665 at [26]. Fifth, Mr Izzo addressed the verification process as to the scheme booklet which was in common form.
Sixth, Mr Izzo addressed the question of performance risk and the funding of the scheme consideration. The scheme and the Deed Poll require Zurich to deposit, or procure the deposit, of the Aggregate Scheme Consideration (as defined) into a trust account by no later than one business day before the Implementation Date (as defined), and the transfer of scheme shares is conditional upon that having occurred and the scheme consideration having been paid to scheme shareholders as required by the scheme. I accept that is a common and adequate mechanism to address performance risk: Re Qube Holdings Ltd [2026] NSWSC 453 at [54]–[55]. There is no reason to doubt that Zurich has the capacity to pay the scheme consideration where Zurich and its subsidiaries have substantial consolidated net assets (including substantial cash and cash equivalents) and Zurich has the benefit of an intra-group funding undertaking from the main operating entity of the Zurich Group that is not subject to any conditions or third party consents.
Seventh, Mr Izzo noted that ClearView proposes to establish an inbound shareholder information line and to conduct an outbound call campaign. ClearView draws this matter to the Court’s attention, but no orders are sought approving the scripts. No issue arose from those scripts that required further attention.
For completeness, I should add that ClearView’s largest shareholder group, Crescent Capital Partners, which holds or has the power to control the exercise of the voting rights attached to 53% of the ClearView shares, has informed the ClearView board that it intends to vote, or cause to be voted, all of its shares in favour of the scheme, if the ClearView board continues to unanimously recommend that ClearView’s shareholders vote in favour of the scheme and the independent expert continues to conclude that the scheme is in the best interests of ClearView’s shareholders, and subject to there being no superior proposal. For completeness, I accept that a voting intention statement of this kind is not ordinarily class-creating: Re ERM Power Ltd [2019] NSWSC 1502 at [21]; Re Tawana Resources NL (No 3) [2018] FCA 1952 at [23]–[32]; Re Allkem Ltd [2023] FCA 1397 at [58]; Re The Reject Shop Ltd [2025] FCA 522 at [44]. I also referred above to ClearView’s intention to pay a Permitted Dividend if the scheme proceeds. Such a dividend would ordinarily not involve financial assistance for the purpose of s 260A of the Act: Re Citadel Group Ltd (2020) 148 ACSR 598; [2020] FCA 1580 at [47]–[53]; Re Uniti Group Ltd (2022) 160 ACSR 602; [2022] FCA 671 at [50]–[61]; Re Oz Minerals Ltd [2023] FCA 197 at [7], [18]. This matter also provides no reason not to convene the scheme meeting.
These matters, separately and together, give rise to no reason not to convene the scheme meeting.

In the matter of ClearView Wealth Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

Judgment

Affidavit and other evidence

Applicable principles

Matters relevant to whether to convene the scheme meeting

Particular matters

Exercise of the Court’s discretion whether to convene the scheme meeting

Orders

Legislation Cited (5)

Cases Cited (44)