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[2026] NSWSC 799
Supreme Court of NSW
2026-07-10
Brereton 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 Qube Holdings Limited [2026] NSWSC 799
Hearing dates: 07 July 2026
Date of orders: 07 July 2026
Decision date: 10 July 2026
Jurisdiction: Equity - Corporations List
Before: Brereton J
Decision: Orders made approving scheme of arrangement
Catchwords: CORPORATIONS – arrangements and reconstructions – scheme of arrangement – where requisite majorities for scheme achieved – where scheme is fair and reasonable – where time between scheme meetings and second Court hearing did not render scheme resolutions stale – orders made approving scheme of arrangement
Legislation Cited: Corporations Act 2001 (Cth) Supreme Court (Corporations Rules) 1999 (NSW)
Cases Cited: Humm Group Limited, in the matter of Humm Group Limited [2022] FCA 614
In the matter of GBST Holdings Limited [2019] NSWSC 1503
In the matter of InvoCare Limited (No 2) [2023] NSWSC 1350
In the matter of Tassal Group Limited (No 2) [2022] NSWSC 1619
In the matter of Qube Holdings Limited [2026] NSWSC 453
Texts Cited: N.A.
Category: Principal judgment
Parties: Qube Holdings Limited (plaintiff)
Rubik Australia Pty Limited (bidder)
Representation: Counsel:
N M Bender SC / H M Atkin (plaintiff)
B Ng (bidder)
Solicitors:
Allens (plaintiff)
Gilbert + Tobin (bidder)
File Number(s): 2026/130881
Publication restriction: N.A.
On 23 April 2026, the Court ordered that Qube Holdings Limited (Qube) convene meetings in relation to a proposed scheme of arrangement (the Scheme Meetings). The first scheme meeting was between Qube and all shareholders other than the UniSuper Shareholder (General Scheme Meeting). The second scheme meeting was between Qube and the UniSuper Shareholder (UniSuper Scheme Meeting).
The key features of the scheme and its effect on Qube’s shareholders and other persons is set out in In the matter of Qube Holdings Limited [2026] NSWSC 453. At a high-level, the scheme involves Rubik Australia Pty Limited (Rubik) acquiring 100% of the fully paid ordinary shares in Qube. Rubik is an investment vehicle that is owned by Rubik Australia Holdings Pty Limited which, in turn, is owned by entities related to a consortium led by Macquarie Asset Management Limited.
Qube sought approval of the scheme pursuant to s 411 of the Corporations Act 2001 (Cth). On 7 July 2026, I made orders approving the scheme, together with relevant ancillary orders. These are my reasons.
Qube complied with the Court’s orders concerning despatch.
On 1 May 2026 at 4:18pm, the scheme materials were initially despatched to Qube shareholders with the assistance of Computershare Pty Limited (Computershare).
Computershare received 50 'hard bounce-back' notifications and 36 'soft bounce-back' notifications (Undelivered Email Recipients). Of the Undelivered Email Recipients, 85 had registered addresses in Australia (Australian Recipients) and 1 had a registered address in New Zealand (New Zealand Recipient).
On 6 May 2026, Computershare caused the following documents to be sent to the Australian Recipients by pre-paid post and to the New Zealand Recipient by pre-paid airmail:
a letter containing a link to, and instructions as to how to view or download a copy of, the scheme booklet (including the notices of meetings). The provided link also allowed Qube shareholders to directly vote, or lodge their proxy instructions online in relation to voting;
a physical copy of the chairman's letter; and
a personalised voting form.
Qube also complied with the Court’s orders concerning the convening of the Scheme Meetings.
The Scheme Meetings were held on 16 June 2026.
In accordance with the Court’s earlier orders, the General Scheme Meeting was conducted as a hybrid meeting, providing both an in-person and online option, and the UniSuper Scheme Meeting was held in-person immediately following the conclusion of the General Scheme Meeting.
Mr John Bevan, the chairman of Qube, chaired both Scheme Meetings, as required by order 9(b) of the orders made at the first Court hearing.
Voting on the resolutions to approve the scheme at the General Scheme Meeting was conducted by way of poll in accordance with order 9(d) of the Court’s earlier orders.
Mr Bevan declared the UniSuper Scheme Meeting open following the conclusion of the General Scheme Meeting. He declared the poll for the UniSuper scheme resolution, UniSuper having voted in favour of the scheme by proxy.
Of Qube’s shareholders, 20,773 were entitled to vote on the relevant scheme resolution. The voter turnout at this meeting represented approximately 11.18% of shareholders, representing 69.45% of the shares capable of being voted at the General Scheme Meeting.
At the General Scheme Meeting, votes were cast as follows:
| | For | Against | Abstain | | Number of votes cast | 1,020,803,434 | 19,651,249 | 3,817,194 | | Percentage of votes cast | 98.11% | 1.89% | - | | Number of shareholders voting | 1,985 | 304 | 34 | | Percentage of shareholders voting | 86.72% | 13.28% | - |
Rubik and its Associates (as defined in the Corporations Act) did not cast votes at the General Scheme Meeting (including as proxy for a Qube shareholder otherwise entitled to vote).
The level of voter turnout was higher than the number of votes cast at Qube’s previous two annual general meetings. There was no reason to think that the voting outcome did not reflect a democratic outcome from shareholders who had adequate notice of the meeting.
In the absence of any concerns about notice or deterrence, I was satisfied that the level of voter turnout at the General Scheme Meeting did not provide any reason for the Court to withhold its approval of the scheme.
As outlined above, the sole UniSuper shareholder cast its vote in favour of the scheme. The UniSuper Shareholder was not entitled to, and did not, cast any votes in the General Scheme Meeting.
The UniSuper scheme resolution had votes cast as follows:
| | For | Against | Abstain | | Number of votes cast | 266,762,672 | - | - | | Percentage of votes cast | 100% | - | - | | Number of shareholders voting | 1 | - | - | | Percentage of shareholders voting | 100% | - | - |
On 28 June 2026, Qube’s legal representatives provided the Court with an updated notification of the second Court hearing. The notification was updated to reflect the fact that the Scheme Meetings had occurred and that the second Court hearing had been relisted (Updated Notice). The Court made an order approving the Updated Notice on 29 June 2026.
The Updated Notice was published by Qube on the ASX on 30 June 2026.
The Updated Notice contained an error. It included the following statements:
98.11% of Qube shareholders present and voting (in person or by proxy) were in favour of the Scheme Resolution at the General Scheme Meeting; and
86.72% of the votes cast by Qube shareholders were in favour of the Scheme Resolution at the General Scheme Meeting…
As is clear from what is set out above, the statements should have read:
86.72% of Qube shareholders present and voting (in person or by proxy) were in favour of the Scheme Resolution at the General Scheme Meeting; and
98.11% of the votes cast by Qube shareholders were in favour of the Scheme Resolution at the General Scheme Meeting…
The Updated Notice included a detailed report that disclosed the true position.
The scheme’s implementation was subject to the satisfaction or waiver (where applicable) of various conditions precedent. These conditions precedent were outlined in the Scheme Implementation Deed (at cl 3.1).
A certificate confirming the satisfaction or waiver of all conditions precedent (other than the Court's approval of the scheme) from each of Qube and Rubik was tendered at the second Court hearing.
On 12 June 2026, Qube’s legal representatives requested to adjourn the second Court hearing from 18 June 2026 to 7 July 2026 to allow further time for regulatory approvals to be obtained. On that same day, the Court made orders adjourning the second Court Hearing to 7 July 2026.
Counsel for Qube submitted that, in the context of this scheme, the time that had passed between the date of the Scheme Meetings and the second Court hearing ought not to raise any concern that the scheme resolutions had become stale.
I was satisfied that this passage of time, in the circumstances, and given the nature of the proposed scheme, was not a significant delay and did not undermine the validity of the scheme resolutions. Courts have accepted that similar time spans are not significant: see, for example, Humm Group Limited, in the matter of Humm Group Limited [2022] FCA 614 at [66]-[68] (O’Bryan J).
On 23 April 2026, the scheme booklet was registered with ASIC as required by s 412(6) of the Corporations Act. On that same day, a copy of the orders made at the first Court hearing was lodged with ASIC, as required by r 3.5 of the Supreme Court (Corporations Rules) 1999 (NSW).
Qube tendered a letter from ASIC dated 6 July 2026 which indicated that it had no objection to the scheme, satisfying s 411(17) of the Corporations Act.
I addressed the fairness and reasonableness of the scheme at the first Court hearing. I was satisfied that the scheme was fair and reasonable in that an intelligent and honest person who was a member of the relevant class, properly informed and acting alone, might approve it.
I was also satisfied that there was full and fair disclosure to Qube’s shareholders of all information that was material to the decision of whether to vote for or against the scheme.
There was no indication that Qube had failed to bring the Court’s attention to all matters that could be considered relevant to the exercise of discretion.
Qube sought an exemption pursuant to s 411(12) of the Corporations Act from compliance with s 411(11) of the Corporations Act, such that a copy of the Court order approving the scheme did not need to be annexed to any copy of Qube's constitution that may be issued in the future.
I was satisfied that there was no utility in having the Court order annexed to Qube’s constitution in circumstances where the scheme did not effect any change to the constitution and Qube will be a wholly-owned subsidiary of Rubik after the scheme is implemented: see Black J’s observations in In the matter of Tassal Group Limited (No 2) [2022] NSWSC 1619 at [14] and In the matter of GBST Holdings Limited [2019] NSWSC 1503 at [15].
I made the following orders:
Pursuant to section 411(4)(b) of the Corporations Act 2001 (Cth) (Corporations Act), the scheme of arrangement between the plaintiff and the holders of one or more fully paid ordinary shares in the plaintiff, the terms of which are contained in Annexure B of Exhibit WH-2 (Scheme) be approved.
Pursuant to section 411(12) of the Corporations Act, the plaintiff is exempt from compliance with section 411(11) of the Corporations Act in relation to the Scheme.
The plaintiff lodge with the Australian Securities and Investments Commission a copy of the approved Scheme at the time of lodging a copy of these orders.
These orders be entered forthwith.
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