• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Legislation Cited: - Corporations Act 2001 (Cth), s 9, Ch 2L, ss 260A, 411, 1319
- Supreme Court (Corporations) Rules 1999 (NSW)

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
- Handevel Pty Ltd v Comptroller of Stamps (Vic) (1985) 157 CLR 177; [1985] HCA 73
- Re A2 Australia Ltd [2024] NSWSC 185
- Re Absolute Equity Performance Fund Ltd [2022] FCA 933
- Re Allkem Ltd [2023] FCA 1397
- Re Apiam Animal Health Limited [2025] NSWSC 1563
- Re Arthur Yates & Co Ltd (2001) 36 ACSR 758; [2001] NSWSC 40
- Re Asaleo Care Ltd [2021] FCA 406
- Re Aston Resources Ltd [2012] FCA 229
- Re Aveo Group Limited and Aveo Funds Management Limited [2019] NSWSC 1348
- Re Bigair Group Ltd [2016] FCA 1296
- Re BINGO Industries Ltd [2021] NSWSC 798
- Re Blue Ocean Monitoring Limited [2026] NSWSC 207
- Re Cashcard Australia Ltd (2004) 48 ACSR 738; [2004] FCA 223
- Re Citadel Group Ltd (2020) 148 ACSR 598; [2020] FCA 1580
- Re Crestone Holdings Ltd [2022] NSWSC 433
- Re CSR Ltd (2010) 183 FCR 358; [2010] FCAFC 34
- Re Damstra Holdings Ltd [2024] NSWSC 284
- Re David Jones (No 3) [2014] FCA 753
- Re DUET Finance Ltd [2017] NSWSC 415
- Re DWS Ltd (2020) 148 ACSR 616; [2020] FCA 1590
- Re Ebooks Corporation Ltd [2013] FCA 305
- Re Ellerston Global Investments Ltd [2020] NSWSC 879
- Re ERM Power Ltd [2019] NSWSC 1502
- Re Foundation Healthcare Ltd (2002) 42 ACSR 252; [2002] FCA 742
- Re Grant Thornton Australia Ltd [2026] NSWSC 898
- Re InvoCare Ltd [2023] NSWSC 1180
- Re Isentia Group Ltd [2021] NSWSC 910
- Re Kidman Resources Ltd (2019) 375 ALR 760; [2019] FCA 1226
- Re Legend Corporation Ltd [2019] FCA 1249
- Re Link Administration Holdings Ltd [2022] NSWSC 650
- Re Origin Energy Ltd [2023] NSWSC 1246
- Re Orion Telecommunications Ltd [2007] FCA 1389
- Re Patersons Securities Ltd [2019] FCA 1438
- Re Peak Rare Earths Limited [2025] NSWSC 916
- Re Pendal Group Ltd (No 2) [2022] NSWSC 1648
- Re Probiotic Ltd [2024] FCA 298
- Re Ruleburst Holdings Ltd [2008] FCA 1901
- Re Ruleburst Holdings Limited (No 2) [2008] FCA 2010
- Re Seymour Whyte Ltd [2017] FCA 1009
- Re Signature Gold Ltd [2017] FCA 766
- Re Sinclair Knight Merz Management Pty Ltd [2013] FCA 1211
- Re Spark Infrastructure RE Ltd (2021) 156 ACSR 257; [2021] NSWSC 1385
- Re Spicers Ltd [2019] FCA 731
- Re Staging Connections Group Ltd [2015] FCA 1012
- Re Sunland Group Ltd [2024] NSWSC 1591
- Re Tawana Resources NL (No 3) [2018] FCA 1952
- Re Templeton Global Growth Fund Ltd [2021] NSWSC 1169
- Re The Reject Shop Ltd [2025] FCA 522
- Re TPG Telecom Ltd [2020] NSWSC 772
- Re Villa World Ltd (2019) 139 ACSR 550; [2019] NSWSC 1207
- Re Vocus Group Ltd [2021] NSWSC 630
- Re Wridgways Australia Ltd [2010] FCA 1187
- Sovereign Life Assurance Company v Dodd [1892] 2 QB 573

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”) applies 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 scheme is more complex than most member schemes involving listed public companies and was adjourned on several occasions to allow the parties to refine elements of its structure, before reaching the first Court hearing on 6 August 2026.

2. By way of background, WGAGH is an Australian proprietary company limited by shares and is not listed on the Australian Securities Exchange. It is a boutique employee-owned engineering solutions and project management consultancy firm based in Australia and New Zealand and provides consulting, design and advisory services across several sectors. Its fully paid ordinary shares are held by 87 shareholders, of which 86 are employees of WGAGH or companies, trusts or superannuation funds that are controlled by those employees. The remaining shareholder is WGA Share Warehouse Ltd (“Warehouse Seller”), which is a special purpose entity incorporated by WGAGH prior to implementation of the scheme to “warehouse” shares in WGAGH to facilitate the sale and purchase of shares in WGAGH between outgoing and incoming WGAGH shareholders from time to time.

3. On 21 April 2026, WGAGH and AR entered into a Scheme Implementation Deed (“SID”) which provides for the proposed acquisition of all of the issued capital of WGAGH by an entity associated with AR, which was to be implemented by a scheme of arrangement; and also entered into a Side Deed in connection with the SID. On 27 June 2026, WGAGH and AR entered into a Deed of Amendment which, inter alia, nominated AR Sub to acquire the relevant shares under the proposed scheme. These documents have subsequently been amended. The proposed scheme also has a link with a sale transaction and, under cl 3.2(2) of the proposed scheme, WGAGH must execute the “Sale Deed”, as agent and attorney for each of the scheme shareholders. Under the Sale Deed, the scheme shareholders irrevocably appoint the Warehouse Seller as their agent and attorney to enter into the Sale Deed on their behalf.

4. If the proposed scheme is implemented, scheme shareholders will receive specified consideration for each ordinary share in WGAGH that they hold on the scheme record date. The structure of that consideration is somewhat complex, reflecting the nature of the underlying transaction, and comprises the Base Consideration (as defined) which is paid to all scheme shareholders on the Implementation Date (as defined); the Adjustment Amount (as defined) (if payable); and the Retained Amount (as defined) which may be paid to the scheme shareholders after the Implementation Date, subject to deductions for any Deduction Claims (as defined); and Continuing Sellers (as defined below) may also receive further consideration in the form of the Deferred Amount (as defined), which is payable in two tranches, 24 months and 36 months after the Implementation Date, subject to deductions for any Deduction Claims and to there being no Disqualifying Conduct (as defined) attributable to a Continuing Seller.

5. The Base Consideration is an amount that is paid to all scheme shareholders on the Implementation Date; will be calculated 10 days prior to the scheme meetings; and is not subject to adjustments or deductions, including in respect of any Deduction Claims, Warranty Claims (as defined) or any Disqualifying Conduct. The Base Consideration is therefore certain, so far as scheme shareholders are concerned. The amount of the Base Consideration that a scheme shareholder is to be paid will differ depending on whether that scheme shareholder is a “Continuing Seller”, a “Retiring Seller” or the Warehouse Seller. Continuing Sellers refers to 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. Retiring Sellers refers to 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. Second, after the Implementation Date, scheme shareholders (or AR Sub) may be paid an amount equal to the difference between the Actual Completion Amount (as defined) and the Estimated Completion Amount (as defined) that was used to calculate the Base Consideration (“Adjustment Amount”). This reflects an adjustment mechanism often seen in respect of business sale agreements. If the Actual Completion Amount exceeds the Estimated Completion Amount, then the Adjustment Amount will be paid to scheme shareholders. If the Actual Completion Amount is less than the Estimated Completion Amount, then the Adjustment Amount will be paid to AR Sub from the Retained Amount (as defined) and no Adjustment Amount will be paid to scheme shareholders; and the balance of the Retained Amount will then be paid to scheme shareholders. In order to support the payment of the Adjustment Amount, AR Sub will deposit the amount of AU$7,500,000 into an escrow account that is controlled by an independent escrow agent on the Implementation Date. The treatment of the Adjustment Amount does not change the Base Consideration payable to scheme shareholders.

6. After the Base Consideration is paid on the Implementation Date, scheme shareholders who are Continuing Sellers may be entitled to also receive the Deferred Amount, but Retiring Sellers and the Warehouse Seller are not entitled to that amount. The Deferred Amount is equal to 30% of the total scheme consideration that would have been payable to the Continuing Sellers on the Implementation Date and, as I noted above, is payable to a Continuing Seller in two tranches, 24 and 36 months after the Implementation Date. An amount to support the Deferred Amount will be held in an escrow account until the relevant amount falls due for payment to the Continuing Sellers. As I also noted above, payment of each of the First Deferred Amount and the Second Deferred Amount to a Continuing Seller is subject to deductions for any Deduction Claims and to there being no Disqualifying Conduct attributable to that Continuing Seller.

7. The scheme provides for a deemed warranty by scheme shareholders in common form that their WGAGH shares are fully paid, will be free from encumbrances and that they have full power to sell and transfer them (cl 3.7 of the scheme). The Warehouse Seller and WGAGH, but not other scheme shareholders, give further warranties about the WGAGH Group and its business in favour of AR Sub, which are supported by a W&I (warranty and indemnity) Insurance Policy obtained by AR Sub. AR Sub’s sole recourse in respect of any Warranty Claim or Tax Claim (as defined) is against the W&I Insurance Policy, and AR Sub is not permitted to make any claim against an Excluded Person (as defined to include individual scheme shareholders) for any shortfall. An individual scheme shareholder may be liable in respect of a Warranty Claim or a Tax Claim in respect of a Fraud Claim (as defined), and that matter is properly disclosed in the scheme booklet.

8. I made the orders sought by WGAGH at the conclusion of the hearing on 6 August 2026. These are my reasons for doing so. I have drawn on the helpful submissions of Mr Foreman, with whom Ms Scott appeared for WGAGH, in this judgment.

Affidavit and other evidence

9. WGAGH reads an affidavit dated 23 June 2026 of its solicitor, Mr Timothy Webster, lodged at the same time as the Originating Process was filed, which annexed a company search for WGAGH which proved, as a formal matter, that WGAGH was an Australian proprietary company. WGAGH also reads an affidavit dated 29 June 2026 of Ms Karin Lee, also a solicitor acting for WGAGH, who provided further information as to the manner in which the company search for WGAGH was derived.

10. WGAGH reads an affidavit dated 27 June 2026 of Mr Milorad Gajic, a solicitor acting for the Bidder, AR and AR Sub, who provided information as to AR Sub and AR and referred to the SID between AR and WGAGH and the Deed of Amendment to the SID dated 27 June 2026. Mr Gajic also referred to a Side Deed dated 21 April 2026 addressing certain matters; the then conditions precedent to the SID; a Deed Poll dated 27 June 2026 delivered by AR to WGAGH; and the break fee payable under the SID.

11. WGAGH reads an affidavit dated 29 June 2026 of Mr Benjamin Stapleton, one of the two joint managing directors and an executive director of WGAGH. Mr Stapleton there described the nature of WGAGH’s business, to which I referred above. He outlined the consideration which would be payable to, relevantly, Continuing Sellers, Retiring Sellers and the Warehouse Seller under the proposed scheme, which it is proposed will vote in separate classes. He also set out arrangements as to the first and second deferred amounts payable under the proposed scheme, which have since been varied by further steps taken to refine the scheme. Mr Stapleton also addressed proposed arrangements for the Warehouse Seller, as representative of the scheme shareholders; aspects of the implementation of the scheme; and also addressed arrangements by which WGA SCLF SB Pty Ltd (“WGA SCLF”) had previously lent funds to employees of the WGAGH Group to enable them to acquire shares in WGAGH. The proposed scheme contemplates that the amount lent to several Continuing Sellers by WGA SCLF will be repaid from scheme consideration payable in respect of those shareholders.

12. Mr Stapleton also addressed the conditions precedent to the proposed scheme, exclusivity provisions in respect of the scheme, a break fee payable in respect of the scheme, directors’ interests in respect of the scheme and additional fees payable to two current non-executive directors of WGAGH for additional work done in respect of the scheme. He also referred to a Call Option and Undertaking Deed entered into between an entity associated with AR, an entity controlled by directors of WGAGH and the Warehouse Seller. Mr Stapleton also addressed a permitted dividend contemplated by the proposed scheme, the then draft scheme booklet (which has since been superseded), shareholder intention statements given by a large number of shareholders in WGAGH and proposed arrangements for the conduct of scheme meetings.

13. By a second affidavit dated 30 June 2026, Mr Stapleton referred to a proposed communication with WGAGH shareholders to provide further information and an update to the scheme process, and noted that a permitted dividend in the amount of AUD$1 million was declared on 22 June 2026 and paid on 29 June 2026.

14. WGAGH also reads a second affidavit dated 4 August 2026 of Mr Gajic which referred to an amended scheme booklet, which superseded the scheme booklet exhibited to Mr Gajic’s first affidavit. He referred to lodgement of the amended draft scheme booklet with the Australian Securities and Investments Commission (“ASIC”) and noted no further verification of information concerning AR was required in respect of that scheme booklet, because it did not contain material amendments to the information concerning that entity. He addressed a third deed of amendment of the SID executed by AR and WGAGH on 3 August 2026 and provided an update as to the position in respect of conditions precedent to the proposed scheme. He also confirmed the execution of a Deed Poll by AR on 3 August 2026; referred to a Deed of Amendment Restatement and Novation in respect of a Warranty Deed executed by AR on 3 August 2026; and referred to the W&I Insurance Policy that had been obtained by AR Sub in connection with aspects of the transaction, to which I have referred above.

15. By a third affidavit dated 4 August 2026, Mr Stapleton referred to the revision of the scheme documents since the first listing of the proceedings, including a revised scheme booklet, a Second Deed of Amendment to the Sale Deed executed on 2 July 2026, a Third Deed of Amendment to the Sale Deed executed on 3 August 2026, and the Deed of Amendment, Restatement and Novation also executed on 3 August 2026. Mr Stapleton exhibited a revised independent expert’s report prepared by BDO Corporate Finance Ltd (“BDO”) which took account of the amendments to the scheme documents and also provided an update as to the structure of the scheme consideration, reflecting the amendments to the structure of the proposed scheme. Mr Stapleton also noted that the majority of the scheme shareholders were highly qualified engineers, most with extensive experience, and other scheme shareholders were senior management of WGAGH or other professionals and leaders of the business with experience in other professional disciplines. I have regard to the relative sophistication of the scheme shareholders in dealing with this application.

16. Mr Stapleton also addressed the proposed role of the Warehouse Seller as the sellers’ representative in matters arising after the implementation of the scheme, the warranties and indemnities that would be given by the Warehouse Seller and the fact that scheme shareholders would have no personal liability to AR Sub in respect of warranties (other than the deemed warranty) and other than in circumstances involving fraud. Mr Stapleton also confirmed the willingness of the Warehouse Seller to enter into the proposed Sale Deed, addressed the further verification of the scheme booklet, and updated the position in respect of communications with WGAGH shareholders.

17. WGAGH also tenders a letter dated 5 August 2026 from ASIC which, in common form, indicated that ASIC has had sufficient notice of the application, and does not currently propose to appear to make submissions or intervene to oppose the scheme at the first Court hearing, and reserved its position as to s 411(17)(b) of the Act to the second Court hearing.

Applicable principles

18. At the first Court hearing in respect of a scheme, the Court will determine whether 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; and that the procedural requirements under the Supreme Court (Corporations) Rules 1999 (NSW) (“Rules”) have been met.

19. 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. WGAGH 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 WGAGH in return for consideration being paid to relevant shareholders. There is no reason to suggest that the scheme is not bona fide or properly proposed. 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 WGAGH will provide internal notice to staff shareholders of relevant matters.

20. Where these requirements are satisfied, the Court will exercise a judicial discretion whether to approve the convening of a scheme meeting and the explanatory statement; and will generally do so if 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 L**td [2007] FCA 1389 at [5]; Re Staging Connections Group Ltd [2015] FCA 1012 at [19] (“Staging Connections”); 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].

21. 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]; Re Absolute Equity Performance Fund Ltd [2022] FCA 933 at [18]–[22].

22. Turning now to the exercise of the Court’s discretion whether to convene the scheme meetings, WGAGH’s board of directors has unanimously recommended that scheme shareholders vote in favour of the scheme in the absence of a Superior Proposal (as defined) and each WGAGH director intends to vote for the scheme in respect of the WGAGH shares which they hold or control and any proxies placed at their discretion, in the absence of a Superior Proposal. (For completeness, several of the directors, Messrs Stapleton, Campbell and Byrne, have also executed Call Option and Undertaking Deeds under which they have undertaken to vote the WGAGH shares they hold or control (including any proxies) in favour of the scheme, and this is disclosed in the scheme booklet). An independent expert’s report prepared by BDO expressed the view that the consideration payable to Continuing Sellers and Retiring Sellers was fair and that the scheme was in the best interests of scheme shareholders, in the absence of a Superior Proposal. No apparent difficulty arises with the disclosure in the scheme booklet and the verification process adopted in respect of the scheme booklet. Subject to the specific issues addressed below, I am satisfied that there is nothing in the terms of the scheme, or in its effect on WGAGH’s shareholders, that would otherwise warrant the Court declining to approve the scheme at the second Court hearing, if it receives the statutory majorities required by s 411(4)(a)(ii) of the Act at the scheme meetings.

Particular matters

23. Mr Foreman also addresses several further matters. First, Mr Foreman addresses the structure of the scheme, and I have outlined aspects of the somewhat complex structure of the transaction above. Second, he outlines the role of the Warehouse Seller, generally and in respect of the proposed transaction. While I have noted the complexity of the transaction above, these matters do not provide any reason not to convene the scheme meetings.

24. Third, Mr Foreman notes that scheme shareholders (other than the Warehouse Seller) will not provide any warranties or indemnities in favour of AR under the scheme other than the deemed warranties as set out in cl 3.7 of the scheme which are in common form. Mr Foreman submits, and I accept, that as revised in the course of the hearing, the scheme does not give rise to any novel issues in relation to warranties. It is therefore not necessary to address several earlier decisions in which warranties beyond a deemed warranty appear to have been accepted: Re Cashcard Australia Ltd (2004) 48 ACSR 738; [2004] FCA 223 (“Cashcard”); Re Ruleburst Holdings Ltd [2008] FCA 1901, Re Ruleburst Holdings Ltd (No 2) [2008] FCA 2010 (together, “Ruleburst decisions”); Re Ebooks Corporation Ltd [2013] FCA 305 (“Ebooks”); Re Sinclair Knight Merz Management Pty Ltd [2013] FCA 1211 (“Sinclair Knight”).

25. I recognise that in Cashcard at [7], Jacobson J briefly referred to the amount of the scheme consideration “plus or minus the adjustments provided for in the scheme”. That case does not seem to me to be authority that a scheme may impose substantive warranties on dissenting shareholders and his Honour does not there address any issues that would arise from such warranties. In the Ruleburst decisions, again in respect of a scheme concerning a closely held company, the transaction appears to have included the usual deemed warranty and a price adjustment mechanism using an escrow account, rather than requiring individual shareholders to give substantive warranties beyond the deemed warranty. In Ebooks at [17], in relation to a scheme concerning a closely held company, Barker J noted that:

“The scheme consideration is subject to a working capital adjustment and a portion of the purchase price being placed into an escrow account for a period of 15 months to satisfy certain claims that PQA may have against Ebooks shareholders. As a result Ebooks shareholders may not receive all of the possible cash payments forming part of their consideration on the implementation date, with some of the consideration held back to satisfy working capital shortfall and claims.”

The Court may there have accepted warranties given by selling shareholders as to substantive matters, without a detailed consideration of the issue.

26. In Sinclair Knight, the scheme again provided for claims to be made against monies in an escrow account. Farrell J there observed (at [9]–[10]) that:

…The effect of the Sale Agreement is to establish Bidco’s right to make claims out of the Escrow Account (being claims to which insurance policies which have been put in place do not respond) and to pay for the deductibles on the insurance. One matter which is not covered by insurance is compliance by SKM Group with corruption and anti-bribery laws in connection with an improper payment which SKM Group self-reported to the World Bank. This mechanism has the effect of limiting Bidco’s recourse to $120 million in the Escrow Account. The exception to this limitation of liability (and accordingly recourse to the Escrow Account) is for breach of the warranty that the SKM Group shareholders are entitled to transfer their shares free of encumbrances or the fraud or wilful misconduct of the shareholders. This is, in essence, a warranty which it has become customary for scheme shareholders to give following the decisions of Lindgren J in Re APN News & Media Ltd (2007) 62 ACSR 400 at [57]-[63]; Re WebCentral Group Ltd (No 2) (2006) 58 ACSR 742 at [14]-[22] and Investa Properties Limited, in the matter of Investa Properties Ltd [2007] FCA 1104 at [29]-[30], adapted to the circumstances where the vendor shareholders are management of the scheme company.

Counsel has drawn attention to EBooks Corporation Limited; in the matter of EBooks Corporation Limited [2013] FCA 305 at [17]; Re Cashcard Australia Ltd (2004) 48 ACSR 738; RuleBurst Holdings Limited, in the matter of RuleBurst Holdings Limited [2008] FCA 1901 and Ruleburst Holdings Ltd, in the matter of Ruleburst Holdings Limited (No 2) [2008] FCA 2010 in which similar arrangements were used but not judicially commented upon. I am satisfied that the arrangements for the creation and operation of the Escrow Account provide a clear and appropriate mechanism for dealing with claims which may be made by Bidco and that they are disclosed in the Scheme Booklet. SKM Holdings and SKM Management are not publicly listed and it would be usual for a purchaser of such companies to have the benefit of a warranty claims regime; it is likely that the Scheme Consideration would have been less if such claims could not be made. The Initial Scheme Consideration will be paid on the Implementation Date and it is the preponderant part of the consideration; the amount “at risk” is limited. The insurance regime adopted may minimise the extent to which claims are paid from the Escrow Account. The Seller’s Representatives have resumes which indicate that they would be qualified to deal with the claims mechanism proposed.

27. That mechanism has significant similarities with that adopted in this case and does not appear to have required individual shareholders to give substantive warranties beyond the deemed warranty. As Mr Foreman points out, these cases are considered by Messrs Damian and Rich in their text, Schemes, Takeovers and Himalayan Peaks, 4th ed, 2021 at 512.

28. It is preferable that I do not determine any question as to the legitimacy of a requirement for individual shareholders to give substantive warranties beyond the deemed warranty in the abstract, where it is now not squarely in issue, beyond noting that I have real concerns as to whether a scheme can properly impose a substantive warranty (as distinct from the common deemed warranties) as to a business on a shareholder who does not wish to give it, particularly if that shareholder votes against the approval of the scheme. The structure adopted in this scheme sensibly avoids any difficulty as to that question, where the Warehouse Seller voluntarily gives the substantive warranties; and individual shareholders are not required to do so and are not exposed to any claim for breach of a substantive warranty, whether or not they voted in favour of or against the scheme, although a claim may be brought against an individual shareholder in respect of any fraud on his, her or its own part. This structure provides no reason not to convene the scheme meetings.

29. Fourth, Mr Foreman notes that, under cl 11 of the Sale Deed, the W&I Provider’s right of subrogation, contribution and rights acquired by assignment against each Excluded Person (including an individual scheme shareholder) are waived, other than as to fraud in respect of which the W&I Provider’s rights are unlimited. The relevant policy is also in evidence. Mr Foreman also addresses the preservation of AR Sub’s rights in respect of fraud and aspects of the terms on which deferred consideration is payable. I would have been concerned had the insurer’s right of subrogation and other claims against individual scheme shareholders not been excluded, subject to fraud, but the structure that has been adopted does not seem to me to raise any issue which would prevent an order convening the scheme meetings.

30. Fifth, Mr Foreman recognises that Continuing Sellers receive more consideration than Retiring Sellers if they continue employment with WGAGH for at least 24 months after implementation of the scheme and the Warehouse Seller receives the full payment for its shares upfront. He submits, and I accept, that the case law has permitted differential consideration to shareholders in a scheme: Re David Jones (No 3) [2014] FCA 753 at [12]–[13]; Re Grant Thornton Australia Ltd [2026] NSWSC 898 at [12].

31. Sixth, Mr Foreman points out that the structure of this scheme has the consequence that, once the Base Consideration is calculated prior to the date of the scheme meetings, it is certain and will not be subject to any adjustments or deductions including in respect of any Deduction Claims, Warranty Claims or any Disqualifying Conduct, although scheme shareholders may receive additional amounts including the Adjustment Amount and the Retained Amount in whole or in part. I accept that the Court may more readily convene a scheme meeting, despite uncertainty as to additional consideration payable, where the Base Consideration that is payable is certain and shareholders can exercise their votes on that basis: Re Templeton Global Growth Fund Ltd [2021] NSWSC 1169 at [19]–[20]. Mr Foreman also submits, and I also accept, that the Retained Amount, Adjustment Amount and Deferred Amount in this scheme are in the nature of deferred consideration that is contingent on the outcome of future events. The case law has accepted that if the nature of the consideration is sufficiently disclosed, the fact that some of the consideration is deferred is not a reason to decline approval of the scheme: Re Signature Gold Ltd [2017] FCA 766 at [14], [47]–[53]; Re Spicers Ltd [2019] FCA 731 at [26]; Re Patersons Securities Ltd [2019] FCA 1438 at [8]; Re BINGO Industries Ltd [2021] NSWSC 798; Re Crestone Holdings Ltd [2022] NSWSC 433 at [24]; Re Blue Ocean Monitoring Limited [2026] NSWSC 207 at [14] (“Blue Ocean”). In Re Link Administration Holding**s Ltd [2022] NSWSC 650 at [25], I also observed that the case for approval of a scheme involving a feature such as this is stronger where the independent expert has expressed the view, as here, that the initial consideration (disregarding the contingent or deferred consideration) is fair and reasonable and therefore in the best interests of shareholders; and I took the same approach in Blue Ocean at [14]. Mr Foreman also submits, and I accept, that the structure of the scheme and the Deed Poll sufficiently address any performance risk arising in respect of the Retained Amount, Adjustment Amount and Deferred Amount. This matter also provides no reason not to convene the scheme meetings.

32. Seventh, Mr Foreman submits that none of the Retained Amount or Deferred Amount should be regarded as a debenture within the meaning of s 9 of the Act, and that the requirements in Ch 2L of the Act do not apply to any of the Retained Amount or Deferred Amount. I recognise that a debt that does not presently exist (but which may exist in the future) does not give rise to a debenture: Handevel Pty Ltd v Comptroller of Stamps (Vic) (1985) 157 CLR 177 at 196; [1985] HCA 73. I do not consider it necessary or appropriate to express a concluded view as to that matter in the absence of a contradictor, and I took the same approach in Blue Ocean. It is sufficient that I note that this does not give rise to a reason not to convene the scheme meetings.

33. Eighth, Mr Foreman addresses the funding of the scheme consideration, the Deed Poll and the question of performance risk. I recognise that, pursuant to cl 5.1 of the Sale Deed, AR Sub must deposit the Aggregate Base Consideration (as defined) into a trust account maintained by the Sellers' Representative (as defined), two business days before the Implementation Date. Pursuant to cl 7.1 of the Sale Deed, AR Sub must also deposit a sum equal to the Retained Amount into the escrow account maintained by the escrow agent, two business days before the Implementation Date. Pursuant to cl 7.2 of the Sale Deed, if the Actual Completion Amount is more than the Estimated Completion Amount, AR Sub must deposit a sum equal to the Adjustment Amount into the escrow account, by no later than five business days after the date on which the Actual Completion Amount is determined. The Adjustment Amount deposited into the escrow account will increase the Retained Amount. Pursuant to cl 8.4 of the Sale Deed, on or before the Implementation Date, AR Sub must pay an amount equal to the Deferred Amount in cleared funds into the escrow account or provide to the escrow agent the First Bank Support Instrument and the Second Bank Support Instrument (as defined). These provisions are also supported by cl 3.3 of the scheme. Under cl 3.4 of the scheme, no transfer of WGAGH shares occurs unless and until the Aggregate Base Consideration to which scheme shareholders are immediately entitled, and the Retained Amount and Deferred Amount to which scheme shareholders may become entitled to receive, have been paid into a trust account or escrow account (or otherwise secured) for the benefit of those shareholders.

34. By cl 15.1 of the Sale Deed, AR irrevocably and unconditionally guarantees the payment to WGAGH of any amount payable by AR Sub, including the Aggregate Base Consideration, the Deferred Amount, the Retained Amount, the Adjustment Amount and any other amount payable by AR Sub. On 3 August 2026, AR and AR Sub executed a Deed Poll in favour of the scheme shareholders covenanting in favour of them that, subject to the scheme becoming effective, AR and AR Sub will perform the obligations attributed to them under the scheme. AR Sub there undertook in favour of each scheme shareholder to provide the scheme consideration in accordance with the scheme and AR undertook in favour of each scheme shareholder to comply with its obligations under the Sale Deed to guarantee the due and punctual payment and provision of any amount payable by AR Sub in accordance with the Sale Deed. Mr Foreman submits, and I accept, that these provisions are sufficient to address performance risk in respect of the scheme.

35. The Court will give particular attention to the availability of funding where, as here, the bidder in a scheme is a special purpose vehicle which does not have capacity to perform its obligations without financial support from a holding company: Re Spark Infrastructure RE Ltd (2021) 156 ACSR 257; [2021] NSWSC 1385 at [31]–[32]. I accept that the evidence establishes AR Sub’s capacity, with AR’s support, to fund the payments due by it under the scheme

36. Ninth, Mr Foreman addresses the question of class meetings in respect of the scheme. WGAGH proposes that three meetings of its shareholders be convened, namely a meeting (“Share Scheme Meeting 1”) of the Retiring Sellers; a second meeting (“Share Scheme Meeting 2”) of the Continuing Sellers; and a third meeting (“Share Scheme Meeting 3”) of the Warehouse Seller.

37. Tenth, Mr Foreman rightly points out that the test for identifying a class for scheme of arrangement purposes was described by Bowen LJ in Sovereign Life Assurance Company v Dodd [1892] 2 QB 573 at 583 as follows:

"It seems plain that we must give such a meaning to the term ‘class’ as will prevent the section being so worked as to result in confiscation and injustice, and that it must be confined to those persons whose rights are not so dissimilar as to make it impossible for them to consult together with a view to their common interest."

38. Mr Foreman also points out that a single shareholder, such as the Warehouse Seller here, may vote as a class: Staging Connections at [30]. I accept that it is appropriate here that the Continuing Sellers, Retiring Sellers and Warehouse Seller be placed in three different classes in view of their differing rights.

39. Eleventh, Mr Foremann notes that, as disclosed in the scheme booklet, AR has a relevant interest and voting power in approximately 19.9% of WGAGH’s shares on issue, arising from call options held by an associated company over shares in WGAGH owned by several entities controlled by certain directors and shareholders of WGAGH. The call options include qualified commitments to vote these shares in favour of the scheme and are exercisable in specified circumstances. The call option does not provide for the shares to be acquired at a higher price than would be available to Continuing Sellers if the option is exercised, and I accept that this does not give rise to any different interest requiring the relevant shareholder who granted the options to vote in a different class: Re Aston Resources Ltd [2012] FCA 229 at [43]–[48]; Re Damstra Holdings Ltd [2024] NSWSC 284 at [15] (“Damstra”); Re Apiam Animal Health Limited [2025] NSWSC 1563 at [26]. The existence of these call options is otherwise addressed by disclosure: Damstra at [15].

40. Twelfth, Mr Foreman notes that a number of WGAGH shareholders purchased WGAGH shares using funds loaned to them by WGA SCLF under the WGAGH Master Shareholder Loan Facility Deed. Amounts owing under the Participating Shareholder Loan Agreement to WGA SCLF will be repaid from the consideration due to the relevant scheme shareholder, and WGA SCLF will use those amounts to repay its corresponding borrowings. This matter is disclosed in the scheme booklet. Mr Foreman submits, and I accept, that the repayment of a loan which was made to acquire shares in a scheme company from the scheme consideration does not raise any question of fairness, nor does that term create a further class: Re Seymour Whyte Ltd [2017] FCA 1009 at [26]; Re Probiotic Ltd [2024] FCA 298 at [62]–[66]; Re Peak Rare Earths Limited [2025] NSWSC 916 at [21].

41. Thirteenth, Mr Foreman addresses the position of two “Original Shareholders” under WGAGH’s Constitution and notes that, in April 2026, WGAGH entered into settlement deeds with two Original Shareholders under which those shareholders agreed to release WGAGH from all claims and entitlements they may have under its Constitution. These matters are disclosed in the scheme booklet. Mr Foreman submits, and I accept, that the fact that certain shareholders may receive monetary payments to compensate them for the loss of benefits which may otherwise have arisen does not mean that their rights are so dissimilar that they could not consult together with other members of the company, such that they need to be in a different class. WGAGH proposes to tag the votes of a Retiring Seller as to which this issue arises. This matter also gives rise to no reason not to convene the scheme meetings.

42. Fourteenth, Mr Foreman notes that WGAGH has agreed to pay additional fees to two non-executive directors specified in section 9.4 of the scheme booklet to compensate them for the additional hours and extra services beyond their customary duties as non-executive directors with respect to the scheme. Those directors are not shareholders in WGAGH; the additional fees are not being paid in connection with the non-executive directors' retirement from office and are not being calculated by reference to a percentage of the proceeds of the scheme; and this matter is disclosed in the scheme booklet. This matter also gives rise to no reason not to convene the scheme meetings.

43. Fifteenth, Mr Foreman notes that a condition precedent to the scheme, which has been satisfied, is that each of the six executive directors of WGAGH, and other additional senior managers and leaders within the WGAGH Group as determined and agreed with AR, have executed an Employment Agreement with WGAGH. This is also disclosed in the scheme booklet. The scheme booklet also discloses that, after the Implementation Date, AR intends to develop new employee retention structures. I accept that these matter do not prevent these directors making a recommendation to shareholders, where they are sufficiently disclosed in the scheme booklet: Re Kidman Resources Ltd (2019) 375 ALR 760; [2019] FCA 1226 at [115]; Re DWS Ltd (2020) 148 ACSR 616; [2020] FCA 1590 at [41]–[49]; Re Pendal Group Ltd (No 2) [2022] NSWSC 1648 at [25]; Re A2 Australia Ltd [2024] NSWSC 185 at [14].

44. Sixteenth, Mr Foreman notes that WGAGH shareholders who collectively hold or control 98.44% of the shares in WGAGH have provided voting intention statements to indicate that they would vote in favour of the scheme. This is also disclosed in the scheme booklet. 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 accept that this matter provides no reason not to convene the proposed scheme meetings.

45. Seventeenth, Mr Foreman notes that two Permitted Dividends (as defined) have been paid on 29 April and 29 June 2026, consistent with WGAGH’s historical practice of paying dividends on a quarterly basis, and it is possible that WGAGH may, at its discretion, declare further Permitted Dividends before the implementation of the scheme. I accept that the payment of a Permitted Dividend does not constitute financial assistance for the purposes of s260A of the Act, where it reduces the scheme consideration in a manner which is commensurate with WGAGH’s net assets*: Re Legend Corporation Ltd* [2019] FCA 1249 at [74]–[75]; Re Citadel Group Ltd (2020) 148 ACSR 598; [2020] FCA 1580 at [47]–[53]; Re Origin Energy Ltd [2023] NSWSC 1246 at [38]. I also accept that such a dividend would here likely be permitted by s 260A of the Act where it does not materially prejudice the interests of the company or its shareholders, or the company’s ability to pay its creditors: Re Sunland Group Ltd [2024] NSWSC 1591 at [15].

46. Eighteenth, Mr Foreman addresses exclusivity provisions in respect of the scheme. 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 proposal should be subject to a fiduciary carve-out; and the provisions should 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].

47. Clause 8 of the SID includes “no shop”, “no talk” and “no due diligence” restrictions, and a “notification” and “matching right” obligation. These exclusivity provisions are disclosed in the scheme booklet. I accept that exclusivity provisions in this form are now commonplace in schemes of arrangement and are not inconsistent with the Takeovers Panel’s guidance as to “deal protection”: Re Villa World Ltd (2019) 139 ACSR 550; [2019] NSWSC 1207 at [23]. The “no shop” restriction here is not subject to a fiduciary carve-out, but that approach has been accepted in the case law: Re Bigair Group Ltd [2016] FCA 1296 at [21]; Re Aveo Group Limited and Aveo Funds Management Limited [2019] NSWSC 1348 at [44]. The “matching right” is also not subject to a fiduciary carveout, but I accept that is unlikely to be anti-competitive because a prospective bidder or merger proponent would expect WGAGH to seek a competing bid from AR, even without such a provision, in order to obtain the best possible offer if competing bidders emerged: Re DUET Finance Ltd [2017] NSWSC 415 at [24]. The “Exclusivity Period” here lasts from the date of the SID (21 April 2026) until the earlier of its termination, the Implementation Date and the “End Date” (which is 21 January 2027), or such other date and time agreed between AR Sub and WGAGH; and I accept that is a reasonable period.

48. Nineteenth, Mr Foreman notes that cl 9.3 of the SID provides for the payment of a break fee, payable in three specified circumstances of an amount equal to the lower of AR’s actual invoiced third-party costs incurred in connection with this transaction and AU$1,900,000; and that break fee is disclosed in the scheme booklet. The maximum break fee payable represents 1% of the enterprise value of WGAGH as implied by the scheme consideration (based on 1,143,229 WGAGH shares on issue) and approximately 1.1% of the equity value of WGAGH as implied by the scheme consideration, which is broadly consistent with the Takeover Panel’s guidance. This matter also provides no reason not to convene the scheme meetings.

49. Finally, Mr Foreman addresses proposed communications with WGAGH shareholders, which reflect the fact that WGAGH is not a listed company and its shareholders are largely its continuing employees. He also notes that, since the execution of the SID, WGAGH has sent various communications to its shareholders regarding the proposed scheme, which were in evidence. Consistent with current scheme practice, I was not asked to approve these communications, and no issue arises from them which would provide reason not to convene the scheme meetings.

50. These matters, separately and together, give rise to no reason not to convene the scheme meetings.

Orders

51. For these reasons, I made the orders sought by WGAGH at the conclusion of the first Court hearing on 6 August 2026.

**********

Amendments

02 September 2026

Amendment made to paragraph 10.