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Legislation Cited: - Corporations Act 2001 (Cth), ss 411, 1319
- Supreme Court (Corporations) Rules 1999 (NSW), r 3.4

Cases Cited: - Re Odyssey Finance Holdings Pty Ltd [2026] NSWSC 241
- Re One Funds Management Ltd (No 2) [2025] FCA 602

Category: Principal judgment

Parties: Odyssey Finance Holdings Pty Ltd (Plaintiff)
Global Loan Agency Services Australia Pty Ltd as agent for several financiers (Interested Party)

Representation: Counsel:
M Izzo / B Ng (Plaintiff) (25 June 2026)
B Ng (Plaintiff) (10 July 2026)
N Derrington (Interested Party)
Solicitors:
MinterEllison (Plaintiff)
HSF Kramer (Interested Party)

File Number(s): 2026/258063

JUDGMENT

Background

1. On 9 March 2026, I made orders under ss 411 and 1319 of the Corporations Act 2001 (Cth) (“Act”) that Odyssey Finance Holdings Pty Ltd (“Odyssey FinCo”) convene and hold a meeting of the lenders (“Financiers”) under a Syndicated Facility Agreement (“SFA”) in respect of a property (“Property”) at Chatswood, New South Wales, to consider and vote upon a proposed scheme of arrangement (“Initial Scheme”) made between Odyssey FinCo and the Creditors, for the reasons set out in my judgment in Re Odyssey Finance Holdings Pty Ltd [2026] NSWSC 241 (“Initial Judgment”). The scheme meeting in relation to the Initial Scheme was then held and the scheme resolution was passed by the requisite statutory majorities. However, the second Court hearing for the Initial Scheme did not proceed after it became apparent that an injection of equity funding could not be made, which was a condition of the arrangements which underpinned the Initial Scheme.

2. By an Originating Process subsequently filed on 22 June 2026, Odyssey FinCo now applies for an order convening a scheme meeting of a similar character, in respect of a revised scheme (“Revised Scheme”). I here adopt, without repeating, my summary of the background to the Initial Scheme in the Initial Judgment, which is also applicable to the Revised Scheme. In particular, I noted that Odyssey FinCo is a special purpose vehicle which was established to borrow funds for the purchase and management of the Property. I also there noted the two entities that are registered proprietors of the Property, the structure of the SFA and the circumstances which gave rise to the Initial Scheme and now the Revised Scheme.

Affidavit evidence at the first Court hearing

3. At the first Court hearing in respect of the Revised Scheme, Odyssey FinCo read an affidavit dated 22 June 2026 of Mr Alan Retford, a director of Odyssey FinCo, in support of the application to convene the scheme meeting. Mr Retford outlined the role of Odyssey FinCo in relation to the Property, the relevant financing arrangements and the background to the scheme, to which I had referred in the Initial Judgment. Mr Retford also outlined the circumstances in which the Initial Scheme did not proceed; and referred to subsequent negotiations between Odyssey FinCo and the Financiers between April and June 2026, with a view to restructuring the terms of the SFA, and to an agreement subsequently reached with at least the majority of the Financiers as to revised commercial terms, which would permit the equity injection which is necessary for the Revised Scheme to proceed.

4. Mr Retford also referred to a further Restructuring Support Agreement, entered into between Odyssey FinCo, another party with an interest in the Property (“Cromwell Borrower”) and several of the Financiers, of the same character as that which had been executed in respect of the Initial Scheme. Mr Retford also summarised the terms of the Revised Scheme and the differences between the Initial Scheme and the Revised Scheme, including changes in interest margins and an extension of a forbearance expiry date under an amended SFA. Mr Retford also addressed the commercial reasons for the Revised Scheme, which are consistent with those that existed in respect of the Initial Scheme, and the conditions to the Revised Scheme. Mr Retford also noted an independent report prepared by Mr Morgan Kelly of Ernst & Young in respect of the Revised Scheme, which expressed the opinion that Odyssey FinCo would be solvent following implementation of the Revised Scheme; calculated an estimated dividend to creditors on a winding up of Odyssey FinCo within six months of the first Court hearing, if the Revised Scheme did not proceed; and indicated that Odyssey FinCo will be insolvent if the Revised Scheme is not implemented for several reasons.

5. Mr Retford also outlined his involvement in verification of the explanatory statement for the Revised Scheme; and other aspects of verification are addressed by Ms Stephanie Hannah’s affidavit, which I address below. He also confirmed the consent of the proposed chair and alternate chair for the proposed scheme meeting, and addressed the appointment of Mr Kelly as proposed scheme administrator and other aspects of the scheme. The proposed explanatory statement and the expert report in respect of the Revised Scheme were exhibited to Mr Retford’s affidavit and Mr Izzo, with whom Ms Ng appeared for Odyssey FinCo at the first Court hearing, took me through those documents at that hearing.

6. At the first Court hearing in respect of the Revised Scheme, Odyssey FinCo also read the affidavit dated 22 June 2026 of Ms Hannah, a solicitor acting for Odyssey FinCo in respect of the scheme, which outlined the verification process of the explanatory statement. By an affidavit dated 22 June 2026, Mr Cameron Mew, a solicitor acting for Cromwell Borrower, led evidence as to the financial position of Cromwell Borrower.

7. Odyssey FinCo also tendered a letter dated 24 June 2026 from the Australian Securities and Investments Commission (“ASIC”) in conventional form, confirming it had had reasonable opportunity to examine the terms of the Revised Scheme and did not intend to appear at the first Court hearing, and reserving its position under s 411(17) of the Act as to the second Court hearing.

Determination at the first Court hearing

8. I summarised the applicable principles in respect of a scheme of this character in the Initial Judgment, and I adopt that summary without repeating it. I there identified (at Initial Judgment [12]) the preconditions to the exercise of the Court’s power under s 411(1) of the Act. I am satisfied that, for the reasons identified by Mr Izzo, each of the preconditions to the exercise of power in s 411(1) of the Act is satisfied in respect of the Revised Scheme.

9. I also there identified (at Initial Judgment [13]) matters relevant to the exercise of the Court’s discretion to convene a scheme meeting, including whether the proposed 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 on the hearing of a petition which is unopposed; and whether, in a creditors’ scheme, creditors are properly informed as to the nature of the scheme before the scheme meeting. I am here satisfied that the Court should exercise its discretion to convene the scheme meeting in respect of the Revised Scheme, where the directors of Odyssey FinCo have considered the proposed debt restructuring, and have authorised this application and the Revised Scheme; several Financiers support the proposed Revised Scheme, although it appears that one does not or may not; and Mr Kelly’s independent expert report expresses the views which I have noted above. Subject to the matters noted below, there is here no apparent reason why the Revised Scheme would not, in due course, receive the Court’s approval if the necessary majority of votes is achieved, and the expert’s report indicates that its implementation should achieve Odyssey FinCo’s solvency.

10. In submissions in respect of the Revised Scheme, Mr Izzo addressed several particular matters, including an invitation to each Financier to participate in a new Facility C in the same proportion in which that Financier participated in the existing facilities; the intention that Mr Kelly, who prepared the independent expert’s report, would also be the scheme administrator; matters relating to the despatch of the explanatory statement and the conduct of the scheme meeting; and an order sought by Odyssey FinCo dispensing with advertising under r 3.4 of the Supreme Court (Corporations) Rules 1999 (NSW) , where the Financiers have or will be given notice of the Revised Scheme. I had regard to the corresponding matters in respect of the Initial Scheme, and they provide no reason not to convene the scheme meeting in respect of the Revised Scheme.

11. For these reasons, I made the orders sought by Odyssey FinCo at the first Court hearing in respect of the Revised Scheme on 25 June 2026.

Affidavit evidence at the second Court hearing

12. The scheme meeting was subsequently held in respect of the Revised Scheme on 6 July 2026 and the Financiers approved the Revised Scheme with the requisite majorities, with four of the Financiers holding 87.63% of the debt voting in favour of the Revised Scheme and one Financier holding 12.37% of the debt voting against the Revised Scheme.

13. At the second Court hearing held on 10 July 2026, Odyssey FinCo read the affidavit dated 8 July 2026 of Ms Caitlin Murray, also a solicitor acting for it in respect of the Revised Scheme, which addressed, inter alia, the lodgement of the convening orders with ASIC, the conduct of the scheme meeting and correspondence with ASIC. Odyssey FinCo also read the second affidavit dated 8 July 2026 of Mr Retford, which addressed the despatch of the scheme documents to the Financiers, the giving of notice of the second Court hearing and the satisfaction of the conditions precedent to the Revised Scheme. Odyssey FinCo also tendered a conditions precedent certificate confirming satisfaction of those conditions precedent and a letter dated 9 July 2026 from ASIC indicating that it did not consider that the scheme raised issues of avoidance of Ch 6 or s 411(17) of the Act and that it did not consider it necessary to provide a certificate of no objection under s 411(17)(b) of the Act, but that it nonetheless confirmed that it had no objection to the scheme under that paragraph.

Determination at the second Court hearing

14. At the second Court hearing on 10 July 2026, Ms Ng referred to well-established principles in respect of the approval of a scheme of arrangement at the second Court hearing and to the summary of those principles in Re One Funds Management Ltd (No 2) [2025] FCA 602 at [5]ff. No novel issue in respect of those principles arises in this scheme. Ms Ng referred to the evidence of the despatch of the scheme documents; the conduct of the scheme meeting, which raised no controversial issues; and noted one issue relating to a slight delay in serving the proposed orders on Mr Kelly as administrator of the Revised Scheme, which was not material in the circumstances.

15. I recognise that the Financiers who voted on the Revised Scheme are sophisticated creditors of Odyssey FinCo and this scheme does not raise any novel issues; the Revised Scheme was approved by the requisite majorities of the Financiers at the scheme meeting; and, on the evidence, it should restore Odyssey FinCo to solvency, allow it to achieve positive cashflow from November 2027 and allow the opportunity for repayment of the debt owed to the Financiers. No Financier or other creditor of Odyssey FinCo appeared at the second Court hearing to oppose the approval of the scheme. For the reasons set out above, I am satisfied that there is no reason why the Court should not approve the Revised Scheme. Ms Ng also submitted, and I accept, that there would be no utility in annexing the Court order in respect of the Revised Scheme to Odyssey FinCo’s constitution in the circumstances of this scheme, and I will make an order dispensing with the need for Odyssey FinCo to comply with s 411(11) of the Act on that basis.

16. For these reasons, I made the orders sought by Odyssey FinCo at the second Court hearing on 10 July 2026.

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