RE AFRICAN GOLD LTD; EX PARTE AFRICAN GOLD LTD [No 2] [2026] WASC 141 (21 April 2026)

1. The approval of the proposed Schemes pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) (Act), or the second court hearing, is the third stage of approval for schemes of arrangement. The second stage is the approval of the Schemes by the requisite statutory majorities, which occurred at the Meetings.
2. At the second court hearing, the court has two tasks:[5]

(a) to ensure that all statutory and procedural requirements have been satisfied. This includes confirming that:[6]

(i) the meetings were convened and held in accordance with the court's earlier orders;

(ii) the resolutions were passed with the requisite statutory majorities;

(iii) the plaintiff otherwise complied with the court's earlier orders; and

(b) to determine, in the exercise of the court's discretion, whether to approve the proposed arrangements.

1. The court has a discretion whether to approve schemes under s 411(4)(b) of the Act and is not bound to approve schemes just because the court made orders for the convening of scheme meetings or because the statutory majorities were achieved at the scheme meetings.[7] That said, the court will usually approach the task on the basis that securityholders are better judges of what is in their commercial interests than the court.[8]
2. The factors that inform the court's discretion are:[9]

(a) whether the members have voted in good faith and not for an improper purpose;

(b) whether the proposal 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;

(c) whether 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;

(d) whether there has been full and frank disclosure of all information material to the members' decision;

(e) whether minority shareholders would be oppressed by the scheme;

(f) whether the court is satisfied that the scheme has not been proposed to avoid ch 6 of the Act;

(g) whether ASIC has any objection to the scheme; and

(h) whether the schemes offend public policy.

1. In addition to the affidavits relied upon at the first court hearing, African Gold relied on an additional four affidavits, namely:

(a) an affidavit of Mathew James O'Hara, affirmed 13 April 2026;

(b) an affidavit of James Anthony Edward Nicholls filed 15 April 2026; and

(c) two affidavits of Jeremy Isidro O'Hara filed 6 March 2026 and 17 April 2026.

Compliance with statutory and procedural requirements

1. I was and am satisfied on the basis of the additional affidavits that were filed by African Gold, that:

(a) a copy of the Orders was lodged with ASIC;[10]

(b) a copy of the Scheme booklet substantially in the form that was approved for distribution by the court at the first hearing was lodged with ASIC and registered on 6 March 2026;[11]

(c) the Scheme booklet was dispatched to Securityholders in accordance with the orders of this court;[12]

(d) the Meetings were convened and held on 13 April 2026 in accordance with the Orders;[13]

(e) notice of the second court hearing was given by way of an announcement published on the ASX;[14] and

(f) ASIC has informed African Gold, pursuant to s 411(17)(b) of the Act, that it has no objection to the proposed Schemes.[15]

1. Counsel for African Gold drew my attention to the voter turnout at the Scheme Meeting. The voter turnout was approximately 43.73% of Shares but only 6.00% of Shareholders by number.[16] On the evidence before me, I accept the voter turnout at the Scheme Meeting was materially higher than the voter turnout in African Gold's two previous annual general meetings.[17]
2. Relatively low voter turnout does not prevent the court from making orders approving a scheme of arrangement.[18]
3. On the evidence before me, I am satisfied there was a sufficient turnout at the Meetings. I do not consider that the low voter turnout by number of Shareholders, in itself, suggested there had been an error in the dispatch of the Scheme booklet, nor that this should prevent the court from making orders under s 411(4)(b) of the Act.
4. Counsel for African Gold also drew my attention to the fact that at each of the Meetings, Mr Nicholls, the chair of the Meetings, advised attendees that the results of the poll would be announced to the ASX shortly after the Meetings and then declared each Meeting closed.[19] The poll results were the subject of an ASX announcement after the Meetings were closed.[20]
5. The approach of a chairperson, in advising a meeting that results will be the subject of an announcement pursuant to s 251AA of the Act following the votes being counted and after the meeting has been formally closed, has been approved by the courts on numerous occasions. No issue arises in the present case concerning the manner in which the polls were conducted or announced.
6. I was and am satisfied that all statutory pre-conditions have been met and turn to the discretionary considerations.

1. I am satisfied on the evidence before me filed by African Gold that Securityholders voted in good faith and for a proper purpose. The proposed Schemes do not involve any novel treatment of rights.

1. At the first court hearing, based on the evidence before the court, I was satisfied that the Schemes were fit for consideration by Securityholders and that the proposed Schemes was of such a nature that there was no apparent reason that they should not receive approval if the requisite voting majorities were achieved at the Meetings.
2. Nothing has occurred since the date of the first court hearing to change these views. The Securityholders who voted at the Meetings overwhelmingly supported the proposed Schemes.
3. No Securityholder appeared at the second court hearing to oppose the orders sought by African Gold. I was and am satisfied that the proposed Schemes are schemes that sensible businesspeople might consider to be of benefit to Securityholders.

All relevant matters brought to the court's attention

1. At the second court hearing, counsel for African Gold drew several matters to my attention.
2. The first was that all remaining conditions precedent (apart from court approval at the second court hearing) had been satisfied or waived.[21]
3. Second, African Gold confirmed that it had undertaken inbound communications with Securityholders. The scripts that were used for this communication campaign were in evidence before me. I am satisfied that these communications were consistent with the information in the Scheme booklet. Due to administrative error, Automic did not conduct any outbound telephone calls to African Gold Securityholders regarding the Schemes. I am satisfied that there is no evidence before the court which would support any inference being drawn that the inbound communications compromised the integrity of the voting process.
4. Third, where a scheme of arrangement is proposed to be made between a company and its shareholders other than a category of excluded shareholders, on some occasions, the court has amended the scheme to clearly identify the excluded shareholders. In this case, counsel for African Gold submitted that the only excluded shareholder is Montage which was clearly identified in the Scheme Booklet and that it was not necessary to formally amend the Share Scheme. I accept this submission which is consistent with the more recent practice of the courts.[22]

1. At the first court hearing, based on the evidence before the court, I was satisfied that the Scheme booklet would provide full and fair disclosure to Securityholders.
2. The additional affidavit evidence filed by African Gold establishes that the Scheme booklet was dispatched in the form approved for distribution by the court. Nothing has arisen to suggest that there was not full and fair disclosure of all information that was material to the decision of Securityholders prior to them voting on the Schemes.

Satisfaction of s 411(17) of the Act and ASIC's view

1. ASIC has provided a written statement to the effect that it does not object to the Schemes pursuant to s 411(17)(b) of the Act.[23] This satisfies the requirements of s 411(17). Having regard to the nature of the proposed transactions, it cannot be said that the Schemes were proposed to avoid the operation of ch 6 of the Act.

1. There is no evidence before the court that the proposed Schemes offend any aspect of public policy. Given the nature of the proposed Schemes, it could not be sensibly suggested that the Schemes offend public policy.

1. At the first court hearing, counsel for African Gold drew my attention to the fact that, if the Schemes were approved, Montage intended to rely on that approval to qualify for exemption under s 2.11 of the harmonised Canadian National Instrument 45‑106 in connection with the implementation of, and provision of consideration, under the Schemes.
2. Given this, it is appropriate that I record the following:

(a) I was informed of the shares and options which are to be offered as consideration for the Schemes and an independent expert report has concluded that the Schemes are in the best interests of Securityholders.

(b) The court has held a hearing to determine whether the terms of the proposed Schemes are fair to African Gold's Securityholders so as to determine whether to approve the terms of the Schemes. In this regard, as I have stated earlier, in an application for approval under s 411(4)(b), it is necessary for the court to consider the fairness and reasonableness of the proposed Schemes. As set out above, I have determined that the proposed Schemes are fair and reasonable.

(c) The hearing for approval of the proposed Schemes was heard in open court. It was open to all securityholders of African Gold to attend. Notice of the hearing was provided to all shareholders in accordance with the orders of the court made on 5 March 2026. The date of the hearing was included in the Scheme booklet, as well as in an ASX announcement dated 9 April 2026.

(d) No securityholder of African Gold gave notice of any intention to appear at the second court hearing and no securityholder sought leave to appear at the second court hearing to oppose the approval of the Schemes.

(e) A notation was included on the orders I made on 17 April 2026 noting that African Gold and Montage would rely on this court's approval of the Scheme for the purpose of qualifying for the s 2.11 exemption.

1. For these reasons, at the conclusion of the hearing on 17 April 2026, I found that the substantive and procedural requirements under s 411(4) of the Act had been satisfied and that it was appropriate to exercise my discretion to make orders approving the proposed Schemes.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Re African Gold Ltd; Ex Parte African Gold Ltd [2026] WASC 61.

[2] Affidavit of James Anthony Edward Nicholls filed 15 April 2026 [35] -[36], 'JAN-8'.

[3] Affidavit of James Anthony Edward Nicholls filed 15 April 2026 [36].

[4] Affidavit of James Anthony Edward Nicholls filed 15 April 2026 [39].

[5] Re Wesfarmers Ltd [No 2] [2018] WASC 357 [12].

[6] Re International Goldfields Ltd [2004] WASC 112 [7].

[7] Re Wesfarmers Ltd [No 2] [13]; Re Seven Network Ltd [No 3] [2010] FCA 400; (2010) 267 ALR 583 [31].

[8] Re Wesfarmers Ltd [No 2] [13]; Re Seven Network Ltd [No 3] [32] - [33].

[9] Re Seven Network Ltd [No 3] [35] - [40], [50], [52].

[10] Affidavit of Matthew James O'Hara filed 13 April 2026 [9(b)].

[11] Affidavit of Matthew James O'Hara filed 13 April 2026 [9(a)], 'MJO-14'.

[12] Affidavit of Matthew James O'Hara filed 13 April 2026 [12] -[21].

[13] Affidavit of James Anthony Edward Nicholls filed 15 April 2026.

[14] Affidavit of Matthew James O'Hara filed 13 April 2026 [32], 'MJO-20'.

[15] Affidavit of Jeremy Isidro O'Hara filed 17 April 2026 'JIO-6'.

[16] Affidavit of James Anthony Edward Nicholls filed 15 April 2026 [37] - [38].

[17] Affidavit of James Anthony Edward Nicholls filed 15 April 2026 [44].

[18] Re Pensana Metals Ltd [No 2] [2020] WASC 17 [12] ‑ [15] and the cases referred to.

[19] Affidavit of James Anthony Edward Nicholls filed 15 April 2026 [16], [30].

[20] Affidavit of James Anthony Edward Nicholls filed 15 April 2026 [34], 'JAN-10'.

[21] Affidavit of Jeremy Isidro O'Hara filed 17 April 2026 'JIO-8', 'JIO-9'.

[22] See for example Re Selfwealth Ltd [No 2] [2025] FCA 416.

[23] Affidavit of Jeremy Isidro O'Hara filed 17 April 2025 'JIO-6'.