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[2026] NSWSC 1061
Supreme Court of NSW
2026-09-03
Black J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: In the matter of Commercial Credit Holdings Limited (No 2) [2026] NSWSC 1061
Hearing dates: 24 August 2026
Date of orders: 3 September 2026
Decision date: 03 September 2026
Jurisdiction: Equity - Corporations List
Before: Black J
Decision: Orders approving scheme of arrangement made
Catchwords: CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement and ancillary orders
Legislation Cited: - Corporations Act 2001 (Cth), ss 411, 1319
Cases Cited: - Re Commercial Credit Holdings Limited [2026] NSWSC 910 - Re InvoCare Ltd (No 2) [2023] NSWSC 1350 - Re Southern Cross Gold Ltd (No 2) [2025] NSWSC 2
Category: Principal judgment
Parties: Commercial Credit Holdings Ltd (Plaintiff)
Currawong BidCo Pty Ltd (Bidder)
Representation: Counsel:
Mr J Giles SC (Plaintiff)
Mr I Ahmed SC (Bidder)
Solicitors:
Clayton Utz (Plaintiff)
Corrs Chambers Westgarth (Bidder)
File Number(s): 2026/264581
By Originating Process filed on 26 June 2026, the Plaintiff, Commercial Credit Holdings Ltd (“CreditorWatch”) applied for orders under ss 411 and 1319 of the Corporations Act 2001 (Cth) (“Act”) convening a scheme meeting and associated orders. I made the orders sought by CreditorWatch at the conclusion of the hearing on 14 July 2026 for the reasons set out in my judgment in Re Commercial Credit Holdings Limited [2026] NSWSC 910. The scheme was then approved by the requisite majorities of CreditorWatch shareholders for the purposes of s 411(4)(a)(ii) of the Act at the scheme meeting.
At this second Court hearing, CreditorWatch seeks orders approving the scheme. No CreditorWatch 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 CreditorWatch at the conclusion of this hearing. These are my reasons for making those orders, and I have drawn on the helpful submissions of Mr Giles who appeared for CreditorWatch in this judgment.
CreditorWatch reads the affidavit dated 21 August 2026 of Ms Christina Seppelt, its General Counsel and Company Secretary. She addresses the registration of the scheme booklet with the Australian Securities and Investments Commission (“ASIC”), the distribution of scheme materials to CreditorWatch shareholders, communications with CreditorWatch shareholders, the process in respect of election and proxy forms, the conduct of the scheme meeting and voter turnout at that meeting, notification of this second Court hearing to CreditorWatch shareholders and the position as to conditions precedent for the scheme.
CreditorWatch also reads an affidavit dated 21 August 2026 of Mr Stephen Wood, its Chair and a non-executive director, addressing the conduct of the scheme meeting and the substantial majorities achieved in support of the scheme resolution.
CreditorWatch also tenders a letter dated 21 August 2026 from ASIC indicating that it had no objection to the proposed scheme under s 411(17)(b) of the Act and a conditions precedent certificate indicating satisfaction of relevant conditions precedent to the scheme.
“The general principles which guide the Court’s discretion to approve the [s]cheme at the second Court hearing are well established.
The matters which the Court must be satisfied in approving the [s]cheme are:
a. whether there was compliance with the orders of the Court as to convening of the [s]cheme [m]eeting;
b. whether the resolution to approve the [s]cheme was passed by the requisite majority and whether other statutory requirements have been satisfied; and
c. whether all conditions to which the [s]cheme is subject (other than Court approval and lodgement of the court’s orders with ASIC) have been met or waived,
(Re Sierra Mining Ltd [2014] FCA 694 at [31] (Gilmour J)).
In addition to the matters noted above, the Court has, in exercising its power of approval, a residual discretion to approve the [s]cheme and is not bound to approve it merely because it has made orders for the convening of meetings or because the statutory majorities have been achieved: Re Seven Network Ltd (No 3) (2010) 267 ALR 583 at [31] (Jacobson J); Re Staging Connections Group Ltd (No 2) [2015] FCA 1102 at [12] (Gleeson J). In exercising that residual discretion, the (non-exhaustive) matters the Court will consider include:
a. whether the [s]cheme is fair and reasonable so that an intelligent and honest member, properly informed and acting alone, might approve it;
b. whether there was full and fair disclosure to members of all information material to the decision whether to vote for or against the scheme; and
c. whether the Plaintiffs have brought to the attention of the Court all matters that could be considered relevant to the exercise of the Court’s discretion,
Re Permanent Trustee Co Ltd (2002) 43 ACSR 601 at [8] (Barrett J); Re Seven Network at [35]-[40]; Re Centro Properties Ltd (2011) 86 ACSR 584; [2011] NSWSC 1465 at [32]-[33] (Barrett J); Re Texon Petroleum Ltd (No 2) [2013] FCA 147 at [6]-[17] (Farrell J); Re David Jones Ltd (No 3) [2014] FCA 753 at [3] (Farrell J); Re GBST Holdings Ltd [2019] NSWSC 1503 at [11] (Black J); Re Aveo Group Ltd [2019] NSWSC 1679 at [15] (Black J); Re Pendal Group Limited (No 3) [2023] NSWSC 14 at [10] (Black J).”
“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]. … ”
Mr Giles addresses the procedural steps taken in respect of the scheme and the result of the scheme resolution. I am satisfied that CreditorWatch 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 CreditorWatch shareholders and the conduct of the scheme meeting is addressed in the evidence; and the scheme resolution was passed by the statutory majorities. The voting participation rate at the scheme meeting was high and there is no reason to think there was any defect in the notice of the scheme given to CreditorWatch shareholders.
Mr Giles also submits that:
“The following considerations support the conclusion that the [s]cheme is fair and reasonable:
a. the [s]cheme [r]esolution received the support of 100% of votes cast;
b. the independent expert report of Deloitte Corporate Finance Pty Limited indicates that, in the absence of any other information or a superior proposal, the [s]cheme is fair and reasonable and therefore in the best interests of CreditorWatch [s]hareholders. …; and
c. at the time of these submissions, CreditorWatch has not received notification that any person will come forward to oppose the [s]cheme.”
I am satisfied that the other statutory requirements for the scheme have been satisfied. The scheme was here recommended by CreditorWatch’s board and the independent expert expressed the view that the scheme was in the best interests of CreditorWatch shareholders in the absence of a superior proposal. There is no reason to doubt that the scheme is fair and reasonable so that an intelligent and honest CreditorWatch shareholder, properly informed and acting alone, might approve the scheme. There is otherwise no reason to doubt that CreditorWatch has brought all matters that could be considered relevant to the exercise of the Court’s discretion to the Court’s attention or to doubt 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.
CreditorWatch 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 CreditorWatch’s constitution, where the scheme will not involve any modification of any rights of CreditorWatch shareholders or of creditors or persons dealing with CreditorWatch, and there is no need to require compliance with s 411(11) of the Act.
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[2026] NSWSC 910
(2010) 267 ALR 583