GetSwift Limited, in the matter of GetSwift Limited (No 2)

In the Federal Court of Australia, GetSwift Limited sought approval for a members' scheme of arrangement that would re-domicile the company from Australia to a location outside the country. The Australian Securities and Investments Commission (ASIC) opposed the application on the basis that the Commonwealth might be prejudiced as a contingent creditor, due to a pecuniary penalty that could be imposed on GetSwift for alleged breaches of continuous disclosure laws. The Court was required to determine whether there was a real or practical risk that the implementation of the scheme would materially prejudice the Commonwealth's contingent creditors.

The Court considered the matters relevant to the exercise of its discretion under section 411(1) of the Corporations Act 2001, including whether the scheme complied with the law, whether it was approved by shareholders acting in good faith and for proper purposes, and whether there had been an accurate disclosure of the scheme's details to those voting on it. The Court also considered whether there was evidence that any third parties would be disproportionately adversely affected by the operation of the scheme, whether the scheme offended against any aspect of public policy, and whether all conditions precedent to the scheme had been satisfied or waived.

The Court found that ASIC would not be disproportionately prejudiced by the implementation of the scheme and that there was no real or practical risk that the Commonwealth's contingent creditors would be materially prejudiced. The Court was satisfied that it would be appropriate to make orders approving the scheme, subject to the satisfaction of certain conditions precedent and the absence of any other material matters that were not before the Court. The Court reserved the question of whether any order as to costs should be made.

The Court made orders to adjourn the further hearing of the application for orders under section 411(4)(b) of the Corporations Act until 7 December 2020, subject to GetSwift advising the Court of any decision made by the Treasurer with respect to Foreign Investment Review Board approval. The Court also granted liberty to apply on 24 hours' notice.