RE GOLD ROAD RESOURCES LTD; EX PARTE GOLD ROAD RESOURCES LTD [No 2] [2025] WASC 329 (26 September 2025)

1. The approval of the proposed Scheme pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) (Act) is the third stage of approval for a scheme of arrangement. The second stage is the approval of the Scheme by the requisite statutory majorities, which occurred at the Scheme Meeting.
2. At this 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 resolution was 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 whether to approve a scheme under s 411(4)(b) of the Act 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 any 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, Gold Road relied on an additional five affidavits, namely:

(a) an affidavit of Julie Jones, Gold Road's general counsel and joint company secretary, filed 24 September 2025;

(b) an affidavit of Danielle Maree Janette Perch, a project coordinator employed by Gold Road's share registry service provider, filed 24 September 2025;

(c) an affidavit of Tim Carl Netscher, Gold Road's independent non-executive chairman, filed 24 September 2025;

(d) an affidavit of Katrina Anne Sleiman, a partner of Corrs Chambers Westgarth, the solicitors for Gold Road, filed 25 September 2025; and

(e) an affidavit of Cornell Calitz-Havemann, a senior associate at Corrs Chambers Westgarth, filed 25 September 2025.

Compliance with statutory and procedural requirements

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

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

(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 15 August 2025;[10]

(c) the Scheme booklet was dispatched to Shareholders in accordance with the orders of the court;[11]

(d) the Scheme Meeting was convened and held on 22 September 2025 in accordance with the Orders;[12]

(e) the Scheme was approved by the requisite statutory majorities;[13]

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

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

1. Senior counsel for Gold Road drew my attention to two matters in relation to the conduct of the Scheme Meeting. The first was the relatively low voter turnout. Approximately 6.71% of Shareholders holding 635,879,524 Shares (or approximately 58.53% of all Shares on issue) voted at the meeting in person or by proxy. This turnout is greater than the voter turnout at each of its 2023 ‑ 2025 annual general meetings.[16] There is nothing on the evidence before me which would support an inference being drawn that the lower vote turnout (by number of shareholders) was because of any error in the despatch of the Scheme booklet or an issue which deterred Shareholders from voting at or attending the Scheme Meeting. In my view, the low voter turnout should not prevent the court from making orders approving the Scheme.
2. The second was that at the Scheme Meeting, Mr Netscher, the chair of the Scheme Meeting, advised attendees that the results of the poll would be announced shortly after the meeting and then declared the meetings closed. The poll results were released on Gold Road's website and were the subject of an ASX announcement after the Scheme Meeting was closed.[17]
3. This approach has been approved by the courts on numerous occasions.[18] There is no issue that arises from the manner in which the polls were conducted or announced by Gold Road.
4. 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 Gold Road that Shareholders voted in good faith and for a proper purpose. The proposed Scheme does not involve any novel treatment of rights. No one appeared at the second court hearing to object to the approval of the proposed Scheme.

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

All relevant matters brought to the court's attention

1. In submissions filed prior to the second court hearing, senior counsel for Gold Road drew three matters to my attention.
2. The first was confirmation that all remaining conditions precedent (apart from court approval at the second court hearing) have been satisfied or waived.[19]
3. Second, Gold Road confirmed that it had engaged a third‑party shareholder engagement firm to communicate with both Shareholders and proxy advisers. The communications between this firm and representatives of Gold Road were in evidence before me, which described the extent of the communications that occurred and the queries received.[20] I am satisfied that these communications were consistent with the information in the Scheme booklet. There is no evidence before the court which would support any inference being drawn that these communications compromised the integrity of the voting process.
4. Third, on 16 September 2025, prior to the Scheme Meeting, Gold Road announced that it had resolved to pay a Special Dividend to Shareholders if the Scheme became effective.[21] Shareholders were referred to the Scheme Booklet in respect of the impact, including the taxation implications, of this announcement.

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 Shareholders.
2. The additional affidavit evidence filed by Gold Road 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 Shareholders prior to them voting on the Scheme.

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 Scheme pursuant to s 411(17)(b) of the Act.[22] This satisfies the requirements of s 411(17). Having regard to the nature of the proposed transaction, it cannot be said the Scheme was proposed to avoid the operation of ch 6 of the Act.

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

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

1. The final matter was that Gold Road 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 Scheme to be annexed to Gold Road'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.[23]

1. For these reasons, at the conclusion of the hearing on 25 September 2025, I found that the substantive and procedural requirements under s 411(4) of the Act had been satisfied and I should exercise my discretion to make orders approving the proposed Scheme 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 Gold Road Resources Ltd [2025] WASC 327 (First Reasons). In these reasons, I have adopted the defined terms used in the First Reasons.

[2] Affidavit of Tim Carl Netscher filed 24 September 2025 [15].

[3] Affidavit of Tim Carl Netscher filed 24 September 2025 [15].

[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] Affidavit of Julie Jones filed 24 September 2025, 'JJ-20'.

[10] Affidavit of Julie Jones filed 24 September 2025, 'JJ-21'.

[11] Affidavit of Danielle Maree Janette Perch filed 24 September 2025 [21] - [26].

[12] Affidavit of Tim Carl Netscher filed 24 September 2025 [5].

[13] Affidavit of Tim Carl Netscher filed 24 September 2025 [15].

[14] Affidavit of Julie Jones filed 24 September 2025 [20], 'JJ-24'.

[15] Affidavit of Katrina Anne Sleiman filed 25 September 2025, 'KAS-16'.

[16] Affidavit of Tim Carl Netscher filed 24 September 2025 [15].

[17] Affidavit of Tim Carl Netscher filed 24 September 2025 [8].

[18] See, for example, Re National Australia Bank Ltd [2016] VSC 62 [56] and Re MAC Services Group Ltd [2010] NSWSC 1474.

[19] Affidavit of Katrina Anne Sleiman filed 25 September 2025, 'KAS-17'.

[20] Affidavit of Julie Jones filed 7 August 2025 [86] - [89], 'JJ-12'; Affidavit of Katrina Anne Sleiman filed 13 August 2025 [6] - [9], 'KAS-5'.

[21] Affidavit of Julie Jones filed 24 September 2025, 'JJ-23'.

[22] Affidavit of Katrina Anne Sleiman filed 25 September 2025, 'KAS-16'.

[23] Plaintiff's submissions filed 24 September 2025 [58] - [59].