iSelect Limited, in the matter of iSelect Limited (No 2) [2022] FCA 1528

Federal Court of Australia|2022-12-16|Before: Anderson J

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Date of hearing: 14 December 2022

Solicitor for the Interested Party: King & Wood Mallesons

ORDERS VID 573 of 2022 IN THE MATTER OF ISELECT LIMITED

BETWEEN: ISELECT LIMITED (ACN 124 302 932)

AND: INNOVATION HOLDINGS AUSTRALIA PTY LTD

order made by: ANDERSON J DATE OF ORDER: 14 December 2022

A. There has been produced to the Court a statement in writing by the Australian Securities and Investments Commission (ASIC) in accordance with section 411(17)(b) of the Corporations Act 2001 (Cth) (Act) that ASIC has no objection to the Scheme of Arrangement between the plaintiff (iSelect) and its shareholders (other than the Excluded Shareholders as defined in the Scheme of Arrangement) (Eligible Shareholders) agreed to by the Eligible Shareholders at the meeting held on 9 December 2022, the terms of which were set out in Annexure A to the Orders of the Court made on 7 November 2022 (Scheme).

Pursuant to section 411(4)(b) of the Act, the Scheme be and is hereby approved.
Pursuant to section 411(12) of the Act, iSelect be exempted from compliance with section 411(11) of the Act in respect of the Scheme.
Pursuant to rule 39.34 of the Federal Court Rules 2011 (Cth), these orders be entered forthwith. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

introduction 1 On 2 November 2022, the Court made orders (Convening Orders) requiring the plaintiff (iSelect) to convene and hold a meeting of its shareholders (Scheme Meeting) to consider a proposed Scheme of Arrangement (Scheme): In the matter of iSelect Ltd [2022] FCA 1329 (FCH Reasons). 2 The Scheme Meeting was held on 9 December 2022, and the resolution to agree to the Scheme was passed by 99.96% of the votes cast and by 95.41% of shareholders present and voting (in each case, in person or by proxy). 3 iSelect now seeks orders approving the Scheme pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) (Act).

the scheme 4 The commercial purpose of the Scheme is to effect the acquisition by Innovation Holdings Australia Pty Ltd (IHA) of all of the shares in iSelect that IHA does not already hold. IHA currently holds 26% of the total issued share capital of iSelect. IHA and any member of the IHA Group who holds iSelect shares (Excluded Shareholders) will not participate in the Scheme and were not eligible to vote at the Scheme Meeting. 5 If the Scheme is implemented, all of the iSelect shares on issue as at the Record Date (expected to be 7.00 p.m. on 19 December 2022) other than those iSelect shares held by an Excluded Shareholder (Scheme Shares) will be transferred to IHA and, in consideration for that transfer, each holder of Scheme Shares (Scheme Participant) will receive a cash payment of $0.30 per Scheme Share (Scheme Consideration).

role of the court 6 Section 411(4) of the Act provides that a scheme of arrangement is binding if, at a meeting of members, it is passed by a majority of members present and voting (in person or by proxy) and by 75% of votes cast, and it is subsequently approved by order of the Court. 7 On an application to approve a scheme, the Court must ensure that all statutory and procedural requirements in relation to the convening and conduct of the meeting have been observed. This requires the Court to conclude that the meeting was properly convened and held in accordance with the convening orders, that the resolution to agree to the scheme was duly passed, and that all relevant requirements of the Act and the Federal Court (Corporations) Rules 2000 (Cth) (Rules) have been complied with. Once satisfied of these matters, the Court has a discretion to approve the Scheme pursuant to s 411(4)(b). In approving a scheme of arrangement, the Court is exercising its supervisory jurisdiction: Re ResApp Health Ltd [2022] NSWSC 1353 (Black J) (Re ResApp Health) at [23]; Re AusNet Services Ltd (No 2) [2022] NSWSC 79 (Black J) at [9]; Re Tabcorp Holdings Ltd (No 2) [2022] NSWSC 725 (Black J) (Re Tabcorp) at [3]; Re Crown Resorts Limited (No 2) [2022] FCA 710 (Anderson J) (Re Crown Resorts) at [11]. See also Re Afterpay Limited [2021] NSWSC 1709 (Black J) (Re Afterpay) at [14] and Re Isentia Group Limited [2021] NSWSC 1069 (Black J) (Re Isentia) at [9]. 8 The considerations relevant to the exercise of the Court's discretion are well established, and they have been considered in a number of decisions: Re Healthscope Ltd (2019) 136 ACSR 259 (Beach J) at [6]-[14] (Re Healthscope); Re Amcor (No 2) [2019] FCA 842 (Beach J) (Re Amcor) at [7] to [11]; Re Japara Healthcare Limited [2021] FCA 1150 (Moshinsky J) (Re Japara) at [11]-[13]; Re ResApp Health at [23] - [24]; Re Afterpay at [14]-[18]; Re Isentia at [8]-[15]; Re Vocus Group Limited [2021] NSWSC 843 at [9] (Black J); Re Verdant Minerals Ltd (No 2) [2019] FCA 841 (Moshinsky J) at [6] and Re Sienna Cancer Diagnostics Limited (No 2) [2020] FCA 1088 (Re Sienna Cancer Diagnostics) (Moshinsky J) at [10]-[11]. By way of example, in Re Amcor at [7] -[11], Beach J stated that: 7. In essence, my role at the second court hearing is to assess the Scheme taking into account whether the Scheme is sufficiently fair and reasonable such that an intelligent and honest shareholder properly informed and acting alone might approve it. Of course, I can only approve a scheme of arrangement if the requisite majority of shareholders vote in favour of it, but I am not bound to approve the Scheme simply because I previously made orders for the convening of a Scheme meeting and subsequently the requisite majority agreed to it. But I accept that shareholders voting collectively at the Scheme meeting are better judges than I of what is to their commercial advantage and in their interests and accordingly, absent good reason, I should give effect to their intentions. … 11. Now as I have said, my task is to consider whether the Scheme is fair and reasonable with the test of fairness and reasonableness including a consideration of whether "an intelligent and honest [shareholder], properly informed, acting alone, might approve [the scheme]" (Fowler v Lindholm (2009) 178 FCR 563 at [79] per Emmett, Gordon and Jagot JJ). But the Scheme shareholders' vote in favour of the Scheme is evidence of its inherent fairness. Put another way, if a majority of the Scheme shareholders have approved the Scheme, it is unlikely that the Scheme would be unreasonable. Further, I do not have to be satisfied that no better Scheme could have been devised. 9 In summary, the Court's role is to assess the scheme taking into account whether it is sufficiently fair and reasonable such that an intelligent and honest shareholder properly informed and acting alone might approve it: Re Amcor at [7]-[11]. 10 Although the Court is not bound to approve a scheme simply because it has previously made orders for the convening of a scheme meeting and the statutory majorities have been achieved, the Court will recognise that shareholders are generally the best judges of whether an arrangement is to their commercial advantage, and accordingly, absent good reason, will give effect to their intentions as manifested in the voting at the scheme meeting: Re Crown Resorts at [11] and [12]; Re ResApp Health at [23]; Re Tabcorp at [3]; Re Vocus at [9]; Re Amcor at [7]-[11]; Re Seven Network Ltd (No 3) (2010) 267 ALR 583 (Re Seven Network) at 588; Re Coca-Cola Amatil Ltd [2021] NSWSC 489 (Black J) (Re Coca-Cola) at [7]. 11 In this respect, the Court accepts that the shareholders' vote in favour of a scheme is evidence of its inherent fairness. Put another way, if a majority of the shareholders approve a scheme, it is unlikely that the scheme would be considered unreasonable: Re Crown Resorts at [11] and [12]; Re Amcor at [11]. 12 In deciding whether to give final approval to a scheme of arrangement, the Court will typically wish to be satisfied that: (a) all relevant procedural requirements in relation to the convening and conduct of the meeting have been satisfied; (b) the scheme was approved by shareholders in the requisite majorities, acting in good faith and for proper purposes, and there is no suggestion of oppression of any minority; (c) there was full and fair disclosure to members of all information material to the decision whether to vote for or against the scheme; (d) the scheme is fair and reasonable so that an intelligent and honest shareholder, properly informed and acting alone, might approve it; (e) all matters that could be considered relevant to the exercise of the Court's discretion have been drawn to the Court's attention, and that ASIC has been given the opportunity to draw the Court's attention to any relevant matter; (f) the conditions precedent to the scheme have been satisfied or waived, save for Court approval; and (g) under s 411(17), the scheme has not been proposed to avoid Chapter 6 of the Act, or there is a statement from ASIC that it has no objection to the scheme. See Re Crown Resorts at [13]-[14]; Re Amcor at [8] and [9]; Re Japara at [13]; Re Isentia at [9]; Re Afterpay at [14]; Re ResApp Health at [24]; Re Coca-Cola at [8]-[9]; Re Opticomm Limited [2020] FCA 1679 at [14]; Re Sienna Cancer Diagnostics at [12] and the authorities cited therein; Re Wesfarmers (No 2) [2018] WASC 357 at [14]; Re Seven Network Ltd (No 3) (2010) 267 ALR 583 at [35]-[40]; Re Tatts Group Limited (No 2) [2017] VSC 770 at [32]; Re Westfield Corporation Limited (No 2) [2018] NSWSC 921 at [7]. 13 These matters are grouped under two headings: (a) first, the satisfaction of all statutory and procedural requirements; and (b) secondly, the exercise of the Court's discretion to approve the Scheme. 14 iSelect submits, and I agree that it has satisfied all relevant statutory and procedural requirements, and that it is appropriate for the Court to exercise its discretion to approve the Scheme.

statutory and procedural requirements 15 iSelect submits that the Convening Orders have been complied with, as well as the satisfaction of the requirements of ss 411 - 412 of the Act, and divisions 2 and 3 of the Rules.

Dispatch of Scheme materials 16 The Convening Orders required iSelect to convene the Scheme Meeting by providing various documents to Eligible Shareholders on or before 9 November 2022. 17 The principal document to be provided to Eligible Shareholders was the scheme booklet, which was required to annex the Notice of Scheme Meeting (amongst other annexures). In relation to the scheme booklet: (a) the Convening Orders required that the scheme booklet to be provided to Eligible Shareholders be substantially in the form of the document which appears in Annexure "LDB-3" to the affidavit of Leonard David Bryant sworn on 28 October 2022 (First Bryant Affidavit); (b) s 412(6) of the Act requires that the scheme booklet be registered by ASIC prior to being sent to shareholders; (c) the scheme booklet was registered by ASIC on 3 November 2022 (Registered Scheme Booklet): Affidavit of Leonard David Bryant sworn on 12 December 2022 (Third Bryant Affidavit) at [6]; (d) the Registered Scheme Booklet was in the same form as the scheme booklet at Annexure LDB-3 to the First Bryant Affidavit, subject to the minor changes noted in the Third Bryant Affidavit; (e) a copy of the Registered Scheme Booklet was provided to Eligible Shareholders (as set out below). 18 The tables below set out the requirements of the Convening Orders in relation to the dispatch of the scheme booklet and associated materials. I am satisfied on the evidence that those requirements of the Convening Orders have been met. 19 Consistent with the Convening Orders, three categories of shareholder are referred to: (a) Email Shareholders, being Eligible Shareholders who had elected to be sent documents in electronic form, or who had supplied an email address to iSelect; (b) Hardcopy Shareholders, being Eligible Shareholders who had elected to receive documents from iSelect in physical form; and (c) Postcard Shareholders, being Eligible Shareholders who are not Email Shareholders or Hardcopy Shareholders. Email Shareholders Convening Order Evidence of compliance iSelect must send an email to all Email Shareholders on or before 9 November 2022 which is substantially in the form which appears in Annexure "WJH-6" to the affidavit of Warren James Hebard affirmed on 27 October 2022 (Hebard Affidavit): Order 2(a). Affidavit of Leonard Peter Renda affirmed on 12 December 2022 (Renda Affidavit) at [10]-[11]. The email must contain a hyperlink to an electronic copy of a document substantially in the form of the document which appears in in Annexure "LDB-3" to the First Bryant Affidavit (Scheme Booklet): Order 2(a)(i). Third Bryant Affidavit at [8]-[10]; Renda Affidavit at [10(b) and (c)]. The email must also contain hyperlinks to: (i) an online portal or website that enables the Email Shareholder to lodge proxy voting instructions online; and (ii) an online portal or website that enables the Email Shareholder to view, listen to and participate in the Scheme Meeting online: Orders 2(a)(ii) and (iii). Renda Affidavit at [10(e) and (f)].

Postcard Shareholders Convening Order Evidence of compliance iSelect must send to all Postcard Shareholders on or before 9 November 2022 a hardcopy postcard substantially in the form of the document which is Annexure "WJH-8" to the Hebard Affidavit (Postcard) (Order 2(c)(i)). Renda Affidavit at [19]-[27]. The Postcard must set out URL addresses from which the Postal Shareholders (Order 2(c)(i)): Third Bryant Affidavit at [8]-[10]; Renda Affidavit at [10(c)] and [19]. (i) can download an electronic copy of the Scheme Booklet; and Third Bryant Affidavit at [8]-[10]; Renda Affidavit at [10(c)] and [19]; Renda Affidavit at [22]. (ii) be directed to an online portal to listen to and participate in the Scheme Meeting online and which enables the Postcard Shareholder to lodge online prior to the Scheme Meeting any proxy or direct voting instructions for the Scheme Meeting. iSelect must also send to all Postcard Shareholders on or before 9 November 2022 a hardcopy proxy/voting form substantially in the form of the document which is Annexure "WJH-7" to the Hebard Affidavit (Proxy Form) and a reply-paid envelope for the return of completed Proxy Forms (Order 2(c)(ii)). Renda Affidavit at [23]-[24]. The Postcard, Proxy Form and envelope must be sent (Order 3): Renda Affidavit at [27]. (i) for Postal Shareholders whose registered address is within Australia, by prepaid ordinary post addressed to the relevant addresses recorded in iSelect's register; and (ii) for Postal Shareholders whose registered address is outside Australia, by airmail or international courier service addressed to the relevant addresses recorded in iSelect's register.

Postcard Shareholders Convening Order Evidence of compliance iSelect must send to all Hardcopy Shareholders on or before 9 November 2022 (Order 2(b)): Renda Affidavit at [10(b)], [16]-[18]; (i) a hardcopy of the Scheme Booklet. Renda Affidavit at [14] - [15]. (ii) a hardcopy Proxy Form and a reply-paid envelope for the return of the Proxy Form. The Scheme Booklet, Proxy Form and envelope must be sent (Order 3): Renda Affidavit at [18]. (i) for Hardcopy Shareholders whose registered address is within Australia, by prepaid ordinary post addressed to the relevant addresses recorded in iSelect's register; and (ii) for Hardcopy Shareholders whose registered address is outside Australia, by airmail or international courier service addressed to the relevant addresses recorded in iSelect's register.

20 As required by r 3.5(b) of the Rules, an office copy of the Convening Orders was lodged with ASIC on 2 November 2022: Third Bryant Affidavit at [7].

Full and fair disclosure to members 21 On the basis of the evidence relied upon at the First Court Hearing, the Court accepted that the Scheme Booklet satisfied the disclosure obligations imposed by s 412 of the Act: FCH Reasons at [37]-[38] and [110]-[112]. The Court also accepted that, if the Scheme Booklet was registered by ASIC (which it now has been), then this will provide further assurance as to the satisfaction of the relevant disclosure requirements: FCH Reasons at [39]. 22 The information in the Scheme Booklet has been subject to thorough verification processes, and I am satisfied that it is accurate, that no material facts or considerations have been omitted, and that it is not misleading or deceptive: FCH Reasons at [38]. 23 I am satisfied that, through the Scheme Booklet and further consideration given to the Scheme at the Scheme Meeting, there has been full and fair disclosure to members of all material information.

Receipt and processing of proxy voting instructions 24 Order 6 of the Convening Orders provided that a proxy in respect of the Scheme Meeting will be valid and effective if, and only if, it was completed and delivered in accordance with its terms, or a proxy was lodged online in accordance with the instructions on the online portal or website, and in each case received by iSelect by 10:00 a.m. (Sydney time) on 7 December 2022 (Proxy Cut-off Time). 25 I am satisfied that all proxies received prior to the Proxy Cut-off Time were duly processed and audited, with the voting instructions recorded against the relevant iSelect shareholder's details in Computershare's software, and a report recording all proxy votes received prior to the Proxy Cut-off Time was prepared for the purposes of the Scheme Meeting: Renda Affidavit at [30]-[51].

Conduct of Scheme Meeting and voting results 26 The following table sets out the requirements of the Convening Orders in relation to the conduct of the Scheme Meeting and refers to the evidence which establishes that those requirements were met. Convening Order Evidence of compliance The Scheme Meeting is to be held at 10:00am (Melbourne time) on 9 December 2022 (Order 1(b)). Affidavit of Broderick Ernst George Arnhold affirmed on 12 December 2022 (Second Arnhold Affidavit) at [7]; Renda Affidavit at [56] and [64]. The Scheme Meeting is to be conducted in-person at Collins Square, 727 Collins Street, Melbourne VIC 3000 and through an online platform at https://meetnow.global/MZMAQ75 (Order 1(b)). Second Arnhold Affidavit at [7]; Renda Affidavit at [56]-[67]. The Scheme Meeting is to be chaired by Mr Broderick Ernst George Arnhold (Order 7). Second Arnhold Affidavit at [6]; Renda Affidavit at [55]. Voting on the Scheme Resolution at the Scheme Meeting is to be conducted by way of poll (Order 5). Second Arnhold Affidavit at [29]; Renda Affidavit at [65]-[67].

27 I am satisfied that in accordance with s 411(4)(a)(ii) of the Act, the Scheme Resolution was passed by a majority in number of members present and voting (either in person or by proxy) at the Scheme Meeting, and by 75% of the votes cast on the Scheme Resolution. 28 I am satisfied that the evidence establishes that the Scheme Resolution was passed by 99.96% of the votes cast and by 95.41% of shareholders present and voting (in each case, in person or by proxy): Second Arnhold Affidavit at [32]; Renda Affidavit at [70]. 29 The number of shares voted at the Scheme Meeting as a percentage of iSelect's total issued share capital was approximately 53.7%, and the number of shareholders who voted as a percentage of the total number of iSelect's shareholders was approximately 11.8%. The total number of iSelect shares on issue was 240,086,753 (Hebard Affidavit at [9]) and the total number of votes cast on the Scheme Resolution was 128,918,511 (Renda Affidavit at [70]). The total number of iSelect shareholders was 937 (Renda Affidavit at [9]) and the total number of shareholders who voted on the Scheme Resolution was 111 (Renda Affidavit at [70]). 30 Whilst the level of shareholder turnout was not high, in the circumstances of this case, this does not give rise to any concern that shareholders were deterred from attending the Scheme Meeting or did not have notice of it. 31 In Re TriAusMin Ltd (No 2) [2014] FCA 833 at [10]-[12], where 10.94% of shareholders had voted 52.9% of the shares, Farrell J observed that: Although the statutory requirement under s 411(4)(a)(ii) has been satisfied, it is the usual practice of the court at the second court hearing to consider the number of shareholders who attended the Scheme Meeting in person or by proxy. Low shareholder turnout may be an indication that some procedural irregularity occurred. It is inappropriate to assume (in the absence of complaint) that shareholders who did not vote either did not have notice of the meeting or were silent in protest of the scheme: Re Professional Investment Holdings Ltd (No 2) [2010] FCA 1336 at [7] and Re Seven Network Ltd (No 3) (2010) 267 ALR 583 at [61] per Jacobson J; apathy should not be presumed to be antagonism: Re Matine Ltd (1998) 28 ACSR 268 at 295 per Santow J. 32 In Re Amcor at [18]-[20], Beach J approached the issue of low voter turnout as follows: 18. Now I would note that shareholder turnout was relatively low, although the number of shares voted as a percentage of Amcor's total issued share capital was high. In particular: (a) 6.70% of Amcor's shareholders voted on the resolution; and (b) 72.20% of shares were voted on the resolution. 19. But the low voter turnout at the Scheme meeting does not give rise to any concern that shareholders were deterred or did not have notice of the Scheme meeting. In this respect: (a) except for minor procedural irregularities, there is nothing to suggest that there was any irregularity in the manner of dispatch of material to the shareholders; (b) shareholders were provided with notice of the Scheme meeting; (c) there is no evidence of any issue that would have deterred shareholders from voting at or from attending the Scheme meeting; and (d) those shareholders who did vote voted overwhelmingly in favour of the Scheme. 20 Moreover, the comments of Santow J in Re Matine Ltd (1998) 28 ACSR 268 at 295 that "[t]he apathetic shareholder who chooses not to vote upon a scheme should not be presumed to be antagonistic to the scheme or to warrant paternalistic protection" are entirely apposite to the present context. 33 I accept that the approach taken in Re Amcor and in Re TriAusMin Ltd (No 2) has been applied in a number of other cases when approving a scheme with a low voter turnout: Re Wameja Limited (No 2) [2021] FCA 1130 at [16] (6.55% of shareholders); Re Decimal Software Limited (No 2) [2018] FCA 2040 (5.21% of shareholders); Re Vocus Group Limited [2021] NSWSC 843 at [11] (11.4% of shareholders); Re BINGO Industries Limited [2021] NSWSC 911 at [11] (11.3% of shareholders); Re Japara at [25]-[30] (12.3% of shareholders); Re Avita Medical Limited (No 3) [2020] FCA 896 at [10]-[11] (9.8% of shareholders); Re Beadell Resources Limited (No 2) [2019] WASC 53 (8.3% of shareholders). 34 I am satisfied that applying this approach in the present circumstances, that the low voter turnout at the Scheme Meeting does not give rise to any concern that shareholders were deterred from attending or did not have notice of the Scheme Meeting. In particular, I am satisfied that: (a) there is nothing to suggest that there was any irregularity in the manner of dispatch of material to the shareholders; (b) shareholders were provided with notice of the Scheme Meeting; (c) there is no evidence of any issue that would have deterred shareholders from voting at or from attending the Scheme Meeting; and (d) shareholders who did vote demonstrated overwhelming support for the Scheme.

Advertisement of Second Court Hearing 35 In accordance with rule 3.4 of the Rules, iSelect published a notice of the hearing to approve the Scheme in The Australian newspaper not later than 5 days prior to the date fixed for the hearing of the application, and the notice was in accordance with Form 6: Third Bryant Affidavit at [11] and [12] and Annexure LDB-8. 36 There is evidence that iSelect has not received any notice from any party indicating an intention to oppose the approval of the Scheme or indicating an intention to appear at the Second Court Hearing: Third Bryant Affidavit at [15].

Conditions Precedent 37 There are a number of conditions precedent to the Scheme Implementation Deed entered into by iSelect and IHA on 10 August 2022 (SIA) and to the Scheme of Arrangement, including the Australian Competition and Consumer Commission (ACCC) advising that it does not oppose the Scheme: FCH Reasons at [18]; Third Bryant Affidavit at [27] and [31]. 38 Before approving a scheme, the Court will ordinarily require that all conditions precedent to the scheme (other than the Court's approval of the scheme and the scheme coming into effect) have been satisfied or waived The concern of the Court in this respect is to remove any future doubt as to the binding nature of the scheme: see, for example, Re Glendale Land Development Ltd (In Liq) (1982) 7 ACLR 171 at 178-179 and Re United Medical Protection Ltd [2007] FCA 631 at [19]. 39 Evidence in relation to the conditions precedent is contained in the Third Bryant Affidavit at [25]-[32], including satisfaction of the ACCC condition on 2 December 2022: Third Bryant Affidavit at [27]. 40 In addition, both the SIA and the Scheme include provisions requiring iSelect and IHA to provide a certificate to the Court at the Second Court Hearing confirming whether or not all of the conditions precedent have been satisfied or waived (other than the conditions relating to Court approval of the Scheme): Third Bryant Affidavit at [28], [29] and [31]. I am satisfied that the certificates constitute sufficient evidence that all conditions precedent (other than the conditions relating to Court approval of the Scheme) have been satisfied or waived.

discretion 41 I now turn to consider the applicable discretionary matters, namely whether: (a) the Scheme is fair and reasonable such that an intelligent and honest shareholder, properly informed and acting alone, might approve it; (b) shareholders were acting in good faith and for proper purposes when they agreed to the Scheme, and whether there is any suggestion of oppression of any minority; and (c) all matters that could be considered relevant to the exercise of the Court's discretion have been drawn to the Court's attention, and whether ASIC has been given the opportunity to draw the Court's attention any relevant matter.

The Scheme is fair and reasonable 42 iSelect submits that the Scheme is fair and reasonable, in the sense that an intelligent and honest shareholder, properly informed and acting alone, might approve the Scheme. 43 The following matters are relied upon in support of this submission: (a) the support of the iSelect shareholders as reflected in the voting results of the Scheme Meeting. It is submitted that proof of the relevant statutory majorities establishes that prima facie the Scheme is fair. In particular, courts generally take the view that shareholders are in the best position to judge whether an arrangement is in their commercial interests, and the Court should be reluctant to make a decision contrary to the views expressed by the shareholders at the meeting: Re Crown Resorts at [11] and [12]; Re ResApp Health at [23]; Re Tabcorp at [3]; Re Vocus at [9]; Re Amcor at [7]-[11]; Re Seven Network at 588; Re Coca-Cola at [7]; (b) the recommendation from the iSelect directors that iSelect shareholders vote in favour of the Scheme, for the reasons given in the Scheme Booklet, and the fact that each iSelect director stated their intention to vote the iSelect shares held or controlled by them in favour of the Scheme: FCH Reasons at [4] and [43]; (c) the opinion of the Independent Expert that the Scheme is in the best interests of iSelect shareholders: FCH Reasons at [5] and [43]; (d) the disclosures in the Scheme Booklet which set out a detailed description of the proposed Scheme, including the potential benefits and disadvantages of the Scheme: FCH Reasons at [6] and [37]; (e) there is no application to oppose the orders approving the Scheme, and no evidence suggesting any oppression in the conduct of the Scheme Meeting; and (f) the Scheme contains measures to protect shareholders against performance risk: FCH Reasons at [46] - [48]. I accept these submissions.

Good faith and no oppression 44 iSelect submits that: (a) there is nothing to suggest that the Scheme has been proposed other than in good faith, or that the iSelect shareholders voted other than in good faith and for proper purposes; and (b) there is no suggestion of oppression of any minority, and no evidence that any third party will be disproportionately adversely affected by the operation of the Scheme. I accept these submissions

All necessary matters have been brought to the attention of the Court 45 At the First Court Hearing, iSelect notified the Court of several matters warranting the Court's attention, which were the customary matters for schemes of this nature: FCH Reasons at [44]-[104]. It is submitted that none of those matters presents an impediment to the orders sought approving the Scheme. 46 iSelect submits that it has otherwise brought all necessary matters to the attention of the Court. I accept these submissions.

SECTION 411(17) 47 The Court's power to approve a s 411 scheme is restricted by section 411(17): Re Crown Resorts at [47]. At the approval stage, the Court must be satisfied there is no proscribed purpose as described in s 411(17)(a), or there must be provided to the Court a statement in writing by ASIC that it has no objection to the arrangement (see s 411(17)(b)): Re Coles Group Ltd (No 2) (2007) 65 ACSR 494 at 497 and Re Crown Resorts at [47]. 48 On the morning of the hearing on 14 December 2022, iSelect provided a 'no objection' statement from ASIC dated 13 December 2022 which was annexed to the Third Bryant Affidavit at LDB-12. The letter advised the Court that ASIC had no objection to the arrangement. A letter such as that provided by ASIC will satisfy the requirements of s 411(17)(b). 49 I am therefore satisfied this letter satisfies the requirements of s 411(17)(b), and consequently the bar under s 411(17) to approval of the Scheme will be removed: Re Crown Resorts at [48]; Re Sienna Cancer Diagnostics at [38]. See also Re Tatts Group Limited (No 2) [2017] VSC 770 at [75]; Re Toll Holdings Limited (No 2) [2015] VSC 236; Re Coles (No 2) (2007) 65 ACSR 494 at [19]-[24]. 50 It is otherwise well established that the Court should not refuse approval of a scheme of arrangement merely because it could have been effected under Chapter 6: Re Sienna Cancer Diagnostics at [37]; Re ACM Gold Ltd & Mt Leyshon Gold Mines Ltd (1992) 34 FCR 530 at 543; Re Stockbridge Ltd (1993) 9 ACSR 637 at 652-653; Re Foundation Healthcare Ltd (2002) 42 ACSR 252 at 265; Re Lion Selection Ltd [2009] VSC 546 at [21]. In this case, I am satisfied that, putting the 'no objection' letter to one side, a full and fair process has been followed in accordance with s 411 of the Act and there is nothing at all to suggest that the scheme was proposed to avoid the operation of Chapter 6.

EXEMPTION FROM SECTION 411(11) 51 Section 411(11) of the Act requires, subject to s 411(12), that a copy of the Court's order approving a scheme of arrangement be annexed to every copy of the company's constitution issued after the order is made. Section 411(12) allows the Court to exempt a body from compliance with this provision or to determine the period during which it shall comply. 52 In Re Equinox Resources Ltd (2004) 49 ACSR 692 at [22]. the Court indicated that the purpose of s 411(11) of the Act was: ... to ensure that any modification of the rights of shareholders of the company which is the subject of the scheme or any other provision in the scheme which may affect the interests of persons dealing with the company, such as prospective creditors or purchasers of shares, will be sure to have the opportunity of seeing what the exact rights of shareholders in the company or of its creditors are, as modified, if at all, by the scheme which has been approved. 53 The above passage has been quoted with approval in a number of subsequent decisions: Re Crown Resorts at [72]; Re Isentia at [15]; Re 86 400 Holdings Ltd (No 2) [2021] FCA 524 at [80]; Re APN Property Group Limited (No 3) [2021] VSC 490 at [66]; Re AusNet Services Limited (No 2) [2022] NSWSC 79 at [16]; Re Avita Medical Limited [2020] FCA 896 at [18]; Re Amcor at [40]; Re Toll Holdings Ltd (No 2) [2015] VSC 236 at [18]-[19]; Re AXA Asia Pacific Holdings Ltd (No 2) [2011] VSC 102 at [36]; Re Hostworks Group Ltd (No 2) [2008] FCA 248 at [36]. 54 I am satisfied that exemption from compliance with s 411(11) is appropriate in the present circumstances given that: (a) the Scheme will not alter the constitution of iSelect or the rights of iSelect shareholders, creditors or other persons dealing with the company; (b) no ongoing purpose will be served by requiring the orders approving the Scheme to be annexed to iSelect's constitution; (c) current shareholders of iSelect are fully informed of the Scheme and will be informed in the event that the Court approves the Scheme; and (d) an order under s 411(12) is regularly made on the above basis: Re Crown Resorts at [71]-[75]; Re Amcor at [41]; Re Healthscope at [41]; Re APN Property Group Limited (No 3) [2021] VSC 490 at [68] - [69]; Re Sienna Cancer Diagnostics at [57]; Re Lion Selection Ltd [2009] VSC 456 at [24]; Re Tatts Group Limited (No 2) [2017] VSC 770 at [57]; Re Transcomm Credit Co-Operative Ltd [2016] VSC 835 at [33]; Re Skilled Group Limited (No 2) [2015] VSC 805.

disposition 55 For the above reasons, I am satisfied that all applicable statutory and procedural requirements for approval of the Scheme have been met, and that it is appropriate that the Court exercise its discretion in favour of approving the Scheme. I will accordingly make the orders sought. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.

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