C CONSIDERATION
5 First, the evidence read on the application at today's hearing makes it plain that there has been compliance with the Court's orders in relation to the dispatch and publication of Scheme documents. Furthermore, as addressed in the initial judgment (at [11]), the requirements of s 412(1) of the Act have been satisfied.
6 Section 411(4) of the Act renders an arrangement binding on members or creditors (as the case may be) if and only if the arrangement is approved by more than 50% by number and 75% or more by votes or debts, of members or creditors present and voting, and by the Court. As stated above, the arrangement was approved by the statutory majorities required in s 411(4)(a)(ii) of the Act.
7 The evidence provided that the Scheme Booklet was registered with ASIC on 5 August 2021 in accordance with s 412(6) of the Act and that a signed copy of a statement in writing was received from ASIC on 20 September 2021, stating that ASIC has no objection to the compromise or arrangement. The effect of the receipt of such a letter is that s 411(17)(b) of the Act is operative so as to preclude the need for the Court to make a finding that it is satisfied that a compromise or arrangement has not been proposed for the purpose of enabling any person to avoid the operation of the provisions of Ch 6 of the Act.
8 It is evident that all statutory preconditions to the Court's approval have been satisfied.
9 Secondly, I accept the Scheme is fair and reasonable in the sense that an intelligent and honest person in the position of a Milton shareholder, properly informed and acting alone might approve the Scheme. In its written submissions, Milton sets out in some detail why it submits the Scheme is fair and reasonable, each of which I accept:
(1) the Scheme was supported by a significant majority of shareholders present and voting, as seen above, and a comfortable majority of votes cast in favour of the Scheme;
(2) as at the date of the Scheme Meeting, no superior proposal had been received and the independent directors of Milton continued to consider the Scheme to be in the best interests of Milton shareholders and recommended that Milton shareholders vote in favour of the Scheme: (see J [8]);
(3) the Milton shareholders were provided with a full and fair disclosure of the advantages and disadvantages of the Scheme by way of the Scheme Booklet;
(4) the independent expert concluded that the Scheme was fair and reasonable, and that conclusion remained unchanged as of 10 September 2021 (see J [9]);
(5) there was no suggestion the Scheme was proposed other than bona fide or that any shareholder was oppressed (see J [11]);
(6) at today's hearing, there was no opposition to the approval of the Scheme; further, the evidence disclosed that, although some requests and concerns were raised by some shareholders at the meeting, those requests and concerns were the subject of a response and no shareholders have proposed to intervene at today's hearing;
(7) the Scheme contains measures to protect Milton shareholders against performance risk, including by WHSP having provided a Deed Poll binding WHSP to comply with its obligations under the Scheme, and that the transfer of Milton shares is conditional upon payment of the Scheme Consideration; and
(8) ASIC has stated that it has no objection.
10 Finally, at the hearing, two matters were brought to the Court's attention, which have arisen since the first hearing. The first matter is an agreement to make three amendments to the scheme implementation agreement, which are set out in detail in the written submissions. I agree that these amendments are inconsequential and do not require further elaboration (as they do not impact in any material way upon the Court's discretion to approve the Scheme).
11 The second matter is that there was a minor typographical error identified in the Scheme Booklet that has been drawn to the attention of ASIC. Again, this is immaterial.