RE ASTON MINERALS LIMITED; EX PARTE ASTON MINERALS LIMITED [No 2] [2025] WASC 210 (29 May 2025)

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 Scheme meetings.
2. At the second court hearing, the court has two tasks:[4]

(a) to ensure that all statutory and procedural requirements have been satisfied. This includes confirming that:[5]

(i) the meeting was 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 arrangement.

1. The court has a discretion and is not bound to approve a scheme just because the court made orders for the convening of the scheme meeting or because the statutory majorities were achieved at the scheme meeting.[6] That said, the court will usually approach the task on the basis that shareholders are better judges of what is in their commercial interests than the court.[7]
2. The factors that inform the court's discretion are:[8]

(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 an objection to the scheme; and

(h) whether the scheme offends public policy.

1. In addition to the affidavits relied upon at the first court hearing, Aston relied on an additional five affidavits namely:

(a) a second affidavit of Pia Melanie Drummond, filed 22 May 2025;

(b) an affidavit of Emma Marie Collins, a senior customer success manager at Automic Pty Ltd (Automic), a company which provides share registry services to Aston, filed 23 May 2025;

(c) an affidavit of Lachlan Hunter Wiley Strong, a manager of investor engagement at Automic, filed 26 May 2025; and

(d) two affidavits of James Patrick McAuliffe, filed 26 May 2025 and 28 May 2025.

Compliance with statutory and procedural requirements

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

(a) a copy of the Orders was lodged with ASIC;[9]

(b) a copy of the Scheme Booklet that was approved for distribution by the court was lodged with ASIC and registered on 17 April 2025;[10]

(c) the Scheme Booklet was despatched to Aston's securityholders in accordance with the Orders;[11]

(d) the Scheme meetings were convened and held on 22 May 2025 in accordance with the Orders;[12]

(e) the Schemes were approved by the requisite statutory majorities;[13]

(f) notice of the second court hearing was given by way of announcement via the ASX on 22 May 2025;[14] and

(g) ASIC informed Aston on 28 May 2025, pursuant to s 411(17)(b) of the Act, that it had no objection to the proposed Schemes.[15]

1. Counsel for Aston drew my attention to the fact that at each Scheme meeting, Ms Drummond, the chair of each Scheme meeting, advised attendees that the results of the poll would be announced to the ASX shortly after the meetings and then declared the meetings closed.[16] The poll results were the subject of an ASX announcement after each of the Scheme meetings was closed.[17]
2. The approach of a chairperson advising the 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.[18] No issue arises in the present case concerning the manner in which the polls were conducted or announced.

1. At the first court hearing, based on the evidence before the court, I was satisfied the proposed Schemes were 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 Scheme meetings.
2. Nothing has occurred since the date of the first hearing to change this view. The securityholders who voted at the Scheme meetings overwhelmingly supported the proposed Schemes, as well as a clear majority of securityholders by number.
3. No securityholder appeared to oppose the orders sought at the second court hearing. I was and am satisfied that the proposed Schemes are fair and reasonable and 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 first court hearing, counsel for Aston drew my attention to a number of matters. These are summarised in the First Reasons at [55] ‑ [60].
2. Three further matters were drawn to my attention by counsel in submissions at the second court hearing.
3. First, the satisfaction of the conditions precedent to the implementation of the Schemes. The remaining conditions precedent (apart from court approval at the second court hearing) were satisfied or waived as evidenced by the certificates put before me.[19]
4. Second, the opt-in notices, which were initially sent to the Small Scheme Participants, incorrectly directed these participants to opt‑in if they wished to receive consideration under the Schemes as new Torque shares as opposed to cash. The error was identified on 28 April 2025 and rectified on 30 April 2025, by the sending of amended opt‑in notices and letters to all Small Scheme Participants. As at 29 April 2025, 21 shareholders had returned completed opt‑in notices which were affected by the error. By 30 April 2025, all of these shareholders had been notified of the error and their positions reset. On the basis of the evidence before me, I am satisfied that all Small Scheme Participants who were, or may have been, affected by this error have been properly notified and that no prejudice has been suffered by any Small Scheme Participant as a result of this error.[20]
5. Third, Aston confirmed that it had undertaken both inbound and outbound communications with shareholders. The scripts that were used were in evidence before me and are consistent with the information in the Scheme Booklet.[21] In these circumstances, I am satisfied that there is no evidence before the court which would support any inference being drawn that these campaigns compromised the integrity of the voting process.

1. At the first court hearing, based on the evidence before the court, I was satisfied the draft Scheme booklet would provide full and fair disclosure to securityholders.
2. The additional affidavit evidence filed by Aston establishes the Scheme Booklet despatched to securityholders was in the form approved for distribution by the court. Other than the error with the initial opt-in notices which was promptly addressed after being identified, nothing has arisen to suggest there has not been full and fair disclosure of all material information prior to securityholders voting on the Schemes.

1. There was no evidence that any minority has been oppressed.

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.[22] As a result, the requirements of s 411(17) have been satisfied. In any event, having regard to the nature of the proposed transaction, it cannot be said 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 is my view that it could not be sensibly suggested that the Schemes offend public policy.

Exemption from s 411(11) of the Act

1. At the second court hearing, Aston sought an exemption from s 411(11) of the Act. In my view, there is no utility in requiring the court's orders approving the Schemes to be annexed to Aston's constitution as the orders do not effect any change to the constitution. This exemption has become ordinary practice for transactions of this kind.

1. For these reasons, at the conclusion of the hearing on 28 May 2025, I was satisfied the substantive and procedural requirements under s 411(4) of the Act had been satisfied and that I should exercise my discretion to make orders approving the proposed Schemes in terms of Annexure 'A' to this judgment.

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

[1] Re Aston Minerals Ltd [2025] WASC 182 (First Reasons). I have adopted the same defined terms used in the First Reasons in these reasons.

[2] Second affidavit of Pia Melanie Drummond filed 22 May 2025 [26], [29].

[3] Second affidavit of Pia Melanie Drummond filed 22 May 2025 [26], [30].

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

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

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

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

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

[9] Seventh affidavit of James Patrick McAuliffe filed 26 May 2025 [6], 'JM-35'.

[10] Seventh affidavit of James Patrick McAuliffe filed 26 May 2025 [6] - [8], 'JM-35' - 'JM-36'.

[11] Affidavit of Emma Marie Collins filed 23 May 2025 [20] - [35].

[12] Second affidavit of Pia Melanie Drummond filed 22 May 2025 [5] - [33]; Affidavit of Emma Marie Collins filed 23 May 2025 [22], [46], [55] - [59], 'EC-25'.

[13] Second affidavit of Pia Melanie Drummond filed 22 May 2025 [31] - [32].

[14] Seventh affidavit of James Patrick McAuliffe filed 26 May 2025 [15], 'JM-41'.

[15] Eighth affidavit of James Patrick McAuliffe filed 28 May 2025, 'JM-46'.

[16] Second affidavit of Pia Melanie Drummond filed 22 May 2025 [19] - [23], 'PD-3' - 'PD-4'.

[17] Seventh affidavit of James Patrick McAuliffe filed 26 May 2025, 'JM-41' pages 443 ‑ 449.

[18] Re Kingwest Resources Ltd [2023] WASC 190 [117] ‑ [118] citing with approval Re National Australia Bank Ltd [2016] VSC 62 [56] and Re MAC Services Group Ltd [2010] NSWSC 1474.

[19] Eighth affidavit of James Patrick McAuliffe filed 28 May 2025 [5], 'JM-42'.

[20] Affidavit of Lachlan Hunter Wiley Strong filed 26 May 2025 [24] - [37], 'LS-4' - 'LS-5'; Affidavit of Emma Marie Collins filed 23 May 2025 [27] - [35].

[21] Affidavit of Lachlan Hunter Wiley Strong filed 26 May 2025, 'LS-1' - 'LS-2'.

[22] Eighth affidavit of James Patrick McAuliffe filed 28 May 2025, 'JM-46'.