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Category: Principal judgment

Parties: WGA Group Holdings Pty Ltd (Plaintiff)
AtkinsRéalis Group Inc and AtkinsRéalis Australia Holdings Pty Ltd (Bidder)

Representation: Counsel:
Mr R M Foreman SC / Ms S Scott (Plaintiff)
Mr J Giles SC (Bidder)
Solicitors:
K&L Gates (Plaintiff)
Norton Rose Fulbright (Bidder)

File Number(s): 2026/259001

Judgment

1. By Originating Process filed on 23 June 2026, the Plaintiff, WGA Group Holdings Pty Ltd (“WGAGH”) applied for orders under ss 411 and 1319 of the Corporations Act 2001 (Cth) (“Act”) to convene meetings of three classes of its shareholders in respect of a proposed scheme of arrangement by which AtkinsRéalis Australia Holdings Pty Ltd (“AR Sub”), a wholly owned subsidiary of AtkinsRéalis Group Inc (“AR”) will acquire all of the issued ordinary shares in WGAGH. The proposed three class meetings comprise a meeting of the holders of fully paid ordinary shares in WGAGH who are either no longer employed in a permanent capacity by WGAGH or its subsidiaries or are employees that will retire or cease to be employed in a permanent capacity by WGAGH or its subsidiaries (or are entities associated with such employees) upon implementation of the scheme; a meeting of the holders of fully paid ordinary shares in WGAGH who are employees that will continue their employment with WGAGH or its subsidiaries (or are entities associated with such employees) after implementation of the scheme; and a meeting of WGA Share Warehouse Ltd (“Warehouse Seller”).

2. I made the orders sought by WGAGH at the conclusion of the hearing on 6 August 2026, for the reasons set out in my judgment in Re WGA Group Holdings Pty Ltd [2026] NSWSC 1014. The scheme was then approved by the requisite majorities of WGAGH shareholders in each class for the purposes of s 411(4)(a)(ii) of the Act at the three scheme meetings.

3. At this second Court hearing, WGAGH seeks orders approving the scheme. No WGAGH 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 WGAGH at the conclusion of this hearing. These are my reasons for making those orders, and I have drawn on the helpful submissions of Mr Foreman and Ms Scott who appeared for WGAGH in this judgment.

Affidavit and other evidence

4. WGAGH reads the affidavit dated 2 September 2026 of Mr Benjamin Stapleton, who is one of the two Joint Managing Directors and an executive director of WGAGH. Mr Stapleton there addressed the registration of the scheme booklet with the Australian Securities and Investments Commission (“ASIC”); the distribution of the scheme booklet to WGAGH shareholders; and a non-compliance with order 3(b) of the convening orders, when WGAGH did not issue an updating announcement to WGAGH shareholders by error, which was explained in further affidavit evidence which I address below. Mr Stapelton also addressed the payment of a further permitted dividend on 10 August 2026; the distribution of an Estimated Adjustments Statement; and shareholder communications. He also referred to the identification and correction of errors in a schedule to the Warranty Deed annexed to the scheme and the consequential amendment of that Warranty Deed. That amendment likely constitutes an amendment to the scheme, and I address that matter below. Mr Stapleton also referred to the conduct of the three scheme meetings, in respect of retiring sellers, continuing sellers and the Warehouse Seller, where the scheme resolutions were comfortably passed by the relevant statutory majorities; the status of the conditions precedent to the scheme; notice of this hearing; and the fact that there has been no notice of any appearances at the second Court hearing.

5. WGAGH also reads the affidavit dated 2 September 2026 of Mr Iain Kemp, who is a partner at Grant Thornton Australia Ltd and acted as independent scrutineer at the three scheme meetings. Mr Kemp addressed the conduct of the scheme meetings and the result of those meetings. WGAGH also reads an affidavit dated 2 September 2026 of Mr Richard Penfold, its Group Governance Manager, which outlined the circumstances of the non-compliance with order 3(b) of the convening orders made by the Court and the identification of the errors in the schedule to the Warranty Deed noted above.

6. WGAGH also tenders a conditions precedent certificate signed by each of WGAGH and AR evidencing satisfaction of the conditions precedent to the scheme (other than the condition relating to Court approval of the scheme and lodgement of office copies of the Court order approving the scheme under s 411(4)(b) of the Act with ASIC) and a letter dated 3 September 2026 from ASIC confirming that it has no objection to the scheme under s 411(17) of the Act.

Applicable principles

7. Mr Foreman and Ms Scott submit that:

“The general principles which guide the Court’s discretion to approve a scheme at the second court hearing are well established. The Court will determine whether the procedural requirements in respect of the scheme have been satisfied and has a discretion to approve a scheme but 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] FCA 400; (2010) 267 ALR 583 at [31] (Jacobsen J); Re Staging Connections Group Ltd (No 2) [2015] FCA 1102 at [12] (Gleeson J); Re Ellerston Global Investments Limited [2020] NSWSC 1108 at [10]; Re InvoCare Ltd (No 2) [2023] NSWSC 1350 at [8]-[9] and Re Southern Cross Gold Ltd (No 2) [2025] NSWSC 2 at [8].”

8. I summarised the matters which will be considered by the Court at a second Court hearing of a scheme 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] where I 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

9. I am satisfied that WGAGH complied with the Court’s orders in respect of the distribution of scheme documents to its shareholders, other than in respect of its inadvertent failure to make its proposed communication to shareholders after the first Court hearing. I am satisfied that that error had no significant impact upon the conduct of the scheme and, where that communication was not a statutory requirement, the failure to make it does not give rise to any procedural irregularity for the purposes of the Act. There is otherwise no reason to think there was any defect in the notice of the scheme given to WGAGH shareholders. The scheme booklet and convening orders were lodged with ASIC; the despatch of the scheme materials to WGAGH shareholders and the conduct of the scheme meetings is addressed in the evidence; and the scheme resolutions were passed by the statutory majorities at each of the three class meetings.

10. Mr Foreman and Ms Scott point out that, as I noted above in summarising Mr Stapleton’s evidence, a shareholder query caused WGAGH to conduct a further review of the details set out in Schedule 1 to the Warranty Deed against WGAGH's register of members which identified several errors in the description of the interests of shareholders. On 2 September 2026, WGAGH and AR Sub entered into a Second Deed of Amendment which amended and restated Schedule 1 to the Warranty Deed dated 21 April 2026 (and amended on 3 August 2026 by the Deed of Amendment, Restatement and Novation) to correct those errors. Mr Foreman and Ms Scott accept that this amendment should be treated as an amendment to the scheme, to which the Warranty Deed is an annexure. The Court has power to approve the scheme with the relevant amendments under s 411(6) of the Act, which provides that the Court may grant its approval to a compromise or arrangement subject to such alterations or conditions as it thinks just. That power is not limited to alterations which are immaterial, insubstantial or insignificant, and is only circumscribed by the requirement that the Court thinks the alteration is one that is just: 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]. These amendments do not alter the substance of the scheme or prejudice WGAGH shareholders, and I am satisfied that the Court should exercise its power under s 411(6) of the Act to approve the scheme with these amendments to the Warranty Deed.

11. Mr Foreman and Ms Scott also note that, prior to the scheme meetings, WGAGH received six emails and one message by Microsoft Teams from shareholders with queries. They submit, and I accept, that representatives of WGAGH answered these questions in a balanced and fair way. I am satisfied that these communications did not compromise the integrity of the voting process at the scheme meeting or the adequacy of the disclosure in respect of the scheme.

12. 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 WGAGH shareholder, properly informed and acting alone, might approve the scheme. There is otherwise no reason to doubt that WGAGH 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 WGAGH 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.

13. WGAGH 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 WGAGH’s constitution, where the scheme will not involve any modification of any rights of its shareholders or of creditors or persons dealing with it, and there is no need to require compliance with s 411(11) of the Act.

Determination and orders

14. For these reasons, I made the orders sought by WGAGH at the conclusion of the second Court hearing on 3 September 2026.

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