RE AURUMIN LTD; EX PARTE AURUMIN LTD [No 2] [2025] WASC 558 (7 January 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, Aurumin relied on an additional two affidavits, namely:

(a) an affidavit of Mark James Rowbottam filed 17 November 2025; and

(b) an affidavit of Emily Jane May filed 19 November 2025.

Compliance with statutory and procedural requirements

1. I was and am satisfied, on the basis of the additional affidavits that were filed by Aurumin, 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 court hearing was lodged with ASIC and registered on 9 October 2025;[11]

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

(d) the Meetings were convened and held on 14 November 2025 in accordance with the Orders;[13]

(e) the Schemes were approved by the requisite statutory majorities;[14]

(f) notice of the second court hearing was given by way of an announcement published on the ASX;[15] and

(g) ASIC informed Aurumin, pursuant to s 411(17)(b) of the Act, that it has no objection to the proposed Schemes.[16]

1. Counsel for Aurumin drew to my attention the voter turnout at the Meetings. The voter turnout was approximately 62.54% of Shares (but only 8.04% of Shareholders by number), and 69.90% of Options (but only 33.33% of Optionholders by number).[17]
2. On the evidence before me, I accept that the voter turnout at the Meetings was materially higher than the voter turnout at Aurumin's two previous annual general meetings.[18]
3. Relatively low voter turnout does not prevent the court from making orders approving a scheme of arrangement.[19]
4. In this case, I was and am satisfied that there was a sufficient turnout at the Meetings. I do not consider that the low voter turnout by number of Securityholders, 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.
5. Counsel for Aurumin also drew my attention to the fact that at the Meetings, Mr Goh, 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 the meetings closed. The poll results were the subject of an ASX announcement after the Meetings were closed.[20]
6. This 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.[21] No issue arises in the present case concerning the manner in which the polls were conducted or announced.
7. 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 filed by Aurumin that Securityholders voted in good faith and for a proper purpose. The proposed Schemes do not involve any novel treatment of rights. No‑one appeared at the second court hearing to object to the approval of the proposed Schemes.

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 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 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 Aurumin. 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, senior counsel for Aurumin drew two 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.[22]
3. Second, Aurumin confirmed that it had undertaken only 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.[23] In these circumstances, I am satisfied that there is no evidence before the court which would support any inference being drawn that these campaigns and communications compromised the integrity of the voting process.

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 Aurumin 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.[24] This satisfies the requirements of s 411(17). Having regard to the nature of the proposed transactions, 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 could not be sensibly suggested that the Schemes offend public policy.

Should Aurumin be exempt from compliance with s 411(11) of the Act?

1. Aurumin 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 be annexed to Aurumin's constitution as the orders do not affect any change to the constitution. I considered it was and is appropriate in the circumstances of this case to make the orders sought under s 411(11) of the Act.[25]

1. For these reasons, at the conclusion of the hearing on 19 November 2025, 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 in terms of Annexure 'A'.

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

[1] Re Aurumin Ltd; ex parte Aurumin Ltd [2025] WASC 440 (First Reasons). I have adopted the same defined terms used in the First Reasons in these reasons.

[2] Affidavit of Mark James Rowbottam filed 17 November 2025 [56], [58].

[3] Affidavit of Mark James Rowbottam filed 17 November 2025 [54] - [56], 'MJR-39'.

[4] Affidavit of Mark James Rowbottam filed 17 November 2025 [58] - [61], 'MJR-40'.

[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 Mark James Rowbottam filed 17 November 2025 [8].

[11] Affidavit of Mark James Rowbottam filed 17 November 2025 [8].

[12] Affidavit of Mark James Rowbottam filed 17 November 2025 [11] - [25], 'MJR-31' - 'MJR-34'.

[13] Affidavit of Mark James Rowbottam filed 17 November 2025 [34] - [54], 'MJR-36' - 'MJR-39'.

[14] Affidavit of Mark James Rowbottam filed 17 November 2025 [55] - [62], 'MJR-39' - 'MJR-40'.

[15] Affidavit of Mark James Rowbottam filed 17 November 2025 [64].

[16] Affidavit of Emily Jane May filed 19 November 2025, 'EJM-9'.

[17] Affidavit of Mark James Rowbottam filed 17 November 2025 [57], [60].

[18] Affidavit of Mark James Rowbottam filed 17 November 2025 [62].

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

[20] Affidavit of Mark James Rowbottam filed 17 November 2025 [54], 'MJR-39'; Plaintiffs' submissions filed 17 November 2025 [12] - [15].

[21] 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.

[22] Affidavit of Emily Jane May filed 19 November 2025 [5] - [9], 'EJM-8'.

[23] Affidavit of Mark James Rowbottam filed 3 October 2025, 'MJR-25'; Affidavit of Mark James Rowbottam filed 17 November 2025 [27] - [28]; Plaintiffs' submissions filed 17 November 2025 [34].

[24] Affidavit of Emily Jane May filed 19 November 2025, 'EJM-9'.

[25] Plaintiffs' submissions filed 17 November 2025 [31].