In the Matter Of Aston Minerals Limited; Ex Parte
[2025] WASC 182
•16 MAY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: IN THE MATTER OF ASTON MINERALS LIMITED; EX PARTE ASTON MINERALS LIMITED [2025] WASC 182
CORAM: HILL J
HEARD: 16 & 17 APRIL 2025
DELIVERED : 17 APRIL 2025
PUBLISHED : 16 MAY 2025
FILE NO/S: COR 21 of 2025
MATTER: IN THE MATTER OF ASTON MINERALS LIMITED
EX PARTE
ASTON MINERALS LIMITED
Plaintiff
Catchwords:
Corporations - Inter-related schemes of arrangement - Application for orders convening scheme meetings under s 411(1) of Corporations Act 2001 (Cth) - Independent expert of opinion that proposed share scheme is not fair but reasonable and proposed option scheme is fair and reasonable - Adequacy of disclosure of directors’ interests - Loan facility from target to bidder - Whether requirements to order scheme meetings are satisfied - Orders made convening scheme meetings
Legislation:
Corporations Act 2001 (Cth) s 411, s 412, s 1319
Corporations Regulations 2001 (Cth) sch 8
Supreme Court (Corporations) (WA) Rules 2004 (WA) r 3.2
Result:
Orders made convening meetings for both schemes
Category: B
Representation:
Counsel:
| Plaintiff | : |
Solicitors:
| Plaintiff | : |
Case(s) referred to in decision(s):
Re Amcom Telecommunications Ltd [2015] FCA 341
Re APN News & Media Ltd [2007] FCA 770; (2007) 62 ACSR 400
Re Beadell Resources Ltd [2018] WASC 410; (2018) 133 ACSR 600
Re CSR Ltd [2010] FCAFC 34; (2010) 183 FCR 358
Re Kangaroo Resources Ltd [2018] WASC 327
Re Nzuri Copper Ltd [2019] WASC 189
Re Pacific Energy Ltd [2019] WASC 443
Re SRG Ltd [2018] FCA 1092
Re Wesfarmers Ltd [2018] WASC 308
HILL J:
Aston Minerals Ltd (Aston) is an Australian public company listed on the Australian Securities Exchange (ASX).[1] On 28 January 2025, Aston announced it had entered into a scheme implementation deed (SID) with Torque Metals Ltd (Torque) in respect of two proposed schemes of arrangement (Schemes): one in relation to Aston's shares (Share Scheme), and the other in respect of certain unlisted options (Option Scheme).[2] The Option Scheme is conditional on the Share Scheme becoming effective. There is no similar condition in relation to the Share Scheme.[3]
[1] Affidavit of James Patrick McAuliffe filed 14 February 2025 [9] - [10].
[2] Affidavit of James Patrick McAuliffe filed 14 February 2025 [6] - [7], 'JM-1' (SID). The SID was varied on 29 January 2025 (Affidavit of James Patrick McAuliffe filed 14 February 2025 [8] - [9], 'JM-2') and 4 March 2025 (Second affidavit of James Patrick McAuliffe filed 9 April 2025 [6], 'JM-6'). These amendments to the SID are not material for the purposes of these reasons.
[3] SID cls 1.6, 1.7.
The originating process dated 7 February 2025 came before me for the first court hearing on 16 April 2025. On that date, Aston sought orders pursuant to s 411 and s 1319 of the Corporations Act 2001 (Cth) (Act) for the convening of a meeting of its members to consider the proposed Schemes. At the hearing on 16 April 2025, I raised a number of concerns with counsel as to the sufficiency of the disclosures made in the proposed Scheme booklet, particularly in relation to those concerning the directors' interests. As a result, the originating process was adjourned until 17 April 2025 to enable Aston to consider these issues, amend the Scheme booklet, adduce further evidence, and liaise with the Australian Securities and Investments Commission (ASIC) in relation to the amendments required by the court.
On 17 April 2025, Aston filed an amended Scheme booklet (Scheme Booklet),[4] as well as an additional affidavit of Robert Jewson, one of its non-executive directors, which addressed the issues raised by the court. As a consequence, at the hearing on 17 April 2025, I made orders to convene two meetings to consider and vote on the proposed Schemes. Orders were also made approving the distribution of the Scheme Booklet to Aston's securityholders, as well as ancillary orders for the convening and conduct of these meetings under s 1319 of the Act.
[4] Sixth affidavit of James Patrick McAuliffe filed 17 April 2025, 'JM-33'.
In making these orders, I stated that I would subsequently publish written reasons for my orders. These are my reasons for decision.
Nature of proposed Schemes
Aston is a publicly listed company that is focused on nickel‑cobalt and gold exploration and development at the Edleston Project in Ontario, Canada.[5] As at the date of entry into the SID, Aston had the following securities on issue: 1,295,064,269 fully paid ordinary shares (Shares); 90,166,686 unlisted options expiring 16 October 2025 (Options); 92,000,000 unlisted options expiring on 28 March 2025 (March 2025 Options); and 110,000,000 unlisted options expiring 4 April 2026 (Non-Scheme Options).[6]
[5] Scheme Booklet [6.1] - [6.2].
[6] SID, sch 6.
Torque is an ASX listed mineral exploration company focused on the exploration and development of gold, lithium, and nickel projects in the Goldfields-Esperance region of Western Australia.[7]
[7] Scheme Booklet [7.1] - [7.3].
If the Share Scheme is implemented, Torque will acquire all Shares on issue, and Shareholders will receive one new Torque share for every 5.2 Shares held (Share Scheme Consideration).[8] In relation to Aston's unlisted options:
(a)if the Option Scheme is implemented, all Options will be cancelled, and Optionholders will receive one new Torque share for every 2,500 Options held (Option Scheme Consideration);[9]
(b)Torque was required to make offers to holders of the Non-Scheme Options on or before 21 February 2025 to cancel the Non-Scheme Options, on the basis that the holders would receive one new Torque share for every 1,219 Non-Scheme Options held (Non-Scheme Options Consideration);[10] and
(c)Torque was not required to make any offer to holders of the March 2025 Options,[11] which expired prior to the first court hearing.
[8] SID, cl 4.1, cl 17.1 (definitions of 'Share Scheme Consideration', 'Transaction Ratio').
[9] SID, cl 4.2, cl 17.1 (definitions of 'Option Scheme Consideration', 'Transaction Ratio').
[10] SID, cl 3.5(a) - (b), cl 17.1 ('Non-Scheme Options Consideration', 'Non-Scheme Options').
[11] SID, cl 3.5(c).
Australian and New Zealand securityholders whose entitlement to the Share Scheme Consideration and/or Option Scheme Consideration would be 5,000 new Torque shares or less may elect to have their Share Scheme Consideration and/or Option Scheme Consideration issued to a sale agent and sold on their behalf (Small Scheme Participants).[12]
[12] SID, cl 4.5, cl 17.1 ('Small Scheme Participant', 'Scheme Participants').
Securityholders whose address is in a place which Torque reasonably determines is one which it is unlawful, unduly onerous, or impracticable to issue shares under the Schemes (Ineligible Foreign Holders) and electing Small Scheme Participants will have the Torque shares they would otherwise be entitled to under the Schemes issued to a sale agent and sold on-market. They will then receive an amount equivalent to the average price per new Torque share obtained, less any applicable brokerage and other selling costs, taxes, and charges.[13]
[13] SID, cl 4.5, cl 17.1; Affidavit of Robert Andrew Jewson filed 11 April 2025 [43] - [44], 'RJ-8' - 'RJ-9'.
Aston's directors have unanimously recommended that Scheme Participants vote in favour of the Schemes, in the absence of a superior proposal.
Aston retained an independent expert, BDO Corporate Finance Australia Pty Ltd (BDO), to provide an opinion on the proposed Schemes. BDO concluded that, in the absence of a superior proposal:[14]
(a)the Share Scheme is not fair but is reasonable and in the best interests of Shareholders;[15] and
(b)the Option Scheme is fair and reasonable and in the best interests of Optionholders.
[14] Fourth affidavit of James Patrick McAuliffe filed 15 April 2025, 'JM-30', p 25 - 26.
[15] The draft report by BDO dated 27 March 2025 concluded that the Share Scheme was fair and reasonable and in the best interests of shareholders (Second affidavit of James Patrick McAuliffe filed 9 April 2025, 'JM-11'). This opinion changed as a consequence of the recent tariffs announced by the United States of America.
The Schemes will not be implemented unless and until a number of conditions precedent are satisfied or waived. The conditions precedent which are required to be satisfied or waived are contained in the SID,[16] and summarised in the Scheme Booklet.[17]
[16] SID, cl 1.1 - 1.7.
[17] Scheme Booklet [12.2].
Torque's obligations under the Schemes are supported by two deed polls: a Share Scheme Deed Poll and an Option Scheme Deed Poll (Deed Polls).[18]
[18] Fourth affidavit of James Patrick McAuliffe filed 15 April 2025, 'JM-30', p 761 - 768, 788 - 795.
Legal principles in respect of the Schemes
Pursuant to s 411 of the Act, a scheme of arrangement can be used to re-organise a company in a manner which will be binding on its members, provided that:
(a)the arrangement is agreed by the requisite majorities as prescribed by s 411(4)(a) of the Act, namely 75% of shareholders by value and 50% by number; and
(b)the court approves the arrangement pursuant to s 411(4)(b) of the Act.
There are three stages to an application under s 411 of the Act. First, the court approves the convening of a scheme meeting and the draft explanatory statement to be sent to the scheme members. Second, the members vote on the proposed scheme at the scheme meeting. Third, assuming the first two stages have occurred, the court approves the proposed scheme.[19]
[19] Re CSR Ltd [2010] FCAFC 34; (2010) 183 FCR 358 [7].
There are well‑established principles which apply to the first stage of proceedings. The court will order the convening of the scheme meeting and approve the dispatch of the scheme booklet if it is satisfied that:[20]
(a)there is a pt 5.1 body;
(b)there is a compromise or arrangement within the meaning of s 411 of the Act;
(c)the proposed scheme booklet contains the prescribed information[21] and provides proper disclosure;[22]
(d)the scheme is bona fide and properly proposed;
(e)ASIC has had at least 14 days' notice of the proposed hearing date and a reasonable opportunity to examine the terms of the scheme and the scheme booklet and make submissions;[23]
(f)the procedural requirements of the Act and the Supreme Court (Corporations) (WA) Rules 2004 (Corporations Rules) have been met; and
(g)the scheme is of such a nature that, if it receives the necessary statutory majority at the scheme meeting, the court will be likely to approve it.
[20] Re SRG Ltd [2018] FCA 1092 [11]; Re Wesfarmers Ltd [2018] WASC 308 [60].
[21] Corporations Act 2001 (Cth) s 412(1)(a)(ii); Corporations Regulations 2001 (Cth) reg 5.1.01, sch 8 cl 8301 ‑ 8310.
[22] Corporations Act 2001 (Cth) s 412(1)(a)(i).
[23] Corporations Act 2001 (Cth) s 411(2)(b).
The standard of review that is undertaken by the court at the first court hearing is whether the proposed scheme is not inappropriate and is one that sensible businesspeople might consider is of benefit to its members.[24] If the proposed arrangement is one that appears fit for consideration by a meeting of members and is a commercial proposition likely to gain the court's approval if passed by the necessary majority, leave should be given to convene the meeting.[25]
[24] Re Amcom Telecommunications Ltd [2015] FCA 341 [10].
[25] Re SRG Ltd [12]; Re Wesfarmers Ltd [72] - [76].
Should orders be made for the convening of the meeting to consider the proposed Schemes?
At the first court hearing, Aston relied on eleven affidavits being:
(a)six affidavits of James Patrick McAuliffe, a solicitor employed by Steinepreis Paganin, the solicitors for Aston, filed 14 February 2025, 9 April 2025, 14 April 2025, 16 April 2025, and 17 April 2025;
(b)an affidavit of Pia Melanie Drummond, a partner of Steinepreis Paganin and the proposed chairperson of the two Scheme meetings, filed 9 April 2025;
(c)an affidavit of Phillip Michael Greaney, a partner of Steinepreis Paganin and the proposed alternate chairperson of the two Scheme meetings, filed 9 April 2025;
(d)an affidavit of Cristian Camilo Moreno Gomez, the managing director of Torque, filed 11 April 2025; and
(e)two affidavits of Robert Andrew Jewson, a non-executive director of Aston, filed 11 April 2025 and 16 April 2025.
These affidavits prove the formal matters Aston is required to establish.
On the materials before me on 17 April 2025, there was nothing to suggest the Schemes were not properly proposed.
There are a number of conditions precedent to the Schemes.[26] Representatives of Aston and Torque are not aware of any reason that any of these will not be satisfied or waived prior to the Implementation Date.[27]
Disclosure and Scheme Booklet
[26] SID, cl 1.1 - 1.7.
[27] Affidavit of Cristian Camilo Moreno Gomez filed 11 April 2025 [15]; Affidavit of Robert Andrew Jewson filed 11 April 2025 [32].
Prior to the first court hearing, I was provided with a copy of the draft Scheme booklet, correspondence between ASIC and Aston's solicitors,[28] various drafts of the Scheme booklet which were provided to ASIC as a result of this correspondence,[29] and the updated Scheme Booklet.[30]
[28] Second affidavit of James Patrick McAuliffe filed 9 April 2025, 'JM-12' - 'JM-16'; Third affidavit of James Patrick McAuliffe filed 14 April 2025, 'JM-17' - 'JM-24'; Fourth affidavit of James Patrick McAuliffe filed 15 April 2025, 'JM-28' - 'JM-29'; Fifth affidavit of James Patrick McAuliffe filed 16 April 2025, 'JM‑31' ‑ ''JM-32'; Sixth affidavit of James Patrick McAuliffe filed 17 April 2025, 'JM-34'.
[29] Third affidavit of James Patrick McAuliffe filed 14 April 2025, 'JM-19', 'JM-25'; Fourth affidavit of James Patrick McAuliffe filed 15 April 2025 'JM-28'.
[30] Sixth affidavit of James Patrick McAuliffe filed 17 April 2025, 'JM-33' - 'JM-34'.
Ultimately, I was and am satisfied that there will be proper disclosure as to the effect of the proposed Schemes and the material considerations for securityholders of Aston in the updated Scheme Booklet.
There was evidence before me as to the due diligence and verification process undertaken by both Aston and Torque.[31] On the basis of this evidence, I accept that Aston and Torque have undertaken processes to verify the accuracy of statements attributable to each of them in the Scheme Booklet and to ensure that the Scheme Booklet does not omit any material information.
[31] Affidavit of Cristian Camilo Moreno Gomez filed 11 April 2025 [21] - [34]; Affidavit of Robert Andrew Jewson filed 11 April 2025 [82] - [95].
Based on the checklist provided by counsel for Aston,[32] I was and am satisfied the Scheme Booklet contained the prescribed information in accordance with s 412(1)(a)(ii) of the Act and sch 8 of the Corporations Regulations 2001 (Cth).
[32] Plaintiff's submissions filed 14 April 2025, 'Appendix B', p 24.
In written and oral submissions, as well as in discussions with the court, counsel for Aston addressed some specific matters in relation to the Schemes, as set out below.
Independent expert's opinion on the Schemes
BDO concluded that the Share Scheme is not fair but is reasonable, and that the Option Scheme is fair and reasonable. In the absence of a superior proposal, BDO concluded that both proposed Schemes are in the best interests of Aston's relevant securityholders.
In Re Beadell Resources Ltd, Vaughan J (as his Honour then was) summarised the approach that the court should take where the independent expert reaches a conclusion that a scheme is not fair but reasonable.[33] In essence, provided that securityholders are adequately informed of the independent expert's conclusion and the basis for it, it is ultimately a decision for securityholders, and not the court, whether the proposed scheme is in their best interests.
[33] Re Beadell Resources Ltd [2018] WASC 410; (2018) 133 ACSR 600 [60] - [64].
In this case, in reaching their conclusion on the proposed Share Scheme, BDO considered the value of a Share prior to the implementation of the proposed Scheme (on a minority interest basis) compared to the Share Scheme Consideration. BDO's assessment was that the value of a Share was between $0.010 (low) and $0.019 (high), with a preferred value of $0.014. This was higher than their assessment of the value of the Share Scheme Consideration of between $0.009 (low) and $0.017 (high), with a preferred value of $0.013.[34] On this basis, BDO concluded the proposed Share Scheme was not fair.
[34] Scheme Booklet, Annexure 'A', [2.4].
BDO concluded the proposed Share Scheme was reasonable because the strength and quantum of the advantages of approving the Share Scheme outweigh its disadvantages. These advantages include gaining exposure to Torque's portfolio while retaining exposure to Aston's asset, greater market presence which may result in greater liquidity and ability to raise capital, and their opinion that the Option Scheme is fair to Optionholders.
I have carefully considered the explanation contained in the IER and was and am satisfied that the matters referred to in the IER justify the conclusion that the Share Scheme is reasonable. In my view, there is appropriate disclosure of the basis for the opinion of the independent expert. Sufficient information is provided to Shareholders to enable them to assess for themselves the basis of BDO's opinion and make an informed decision whether or not to approve the proposed Share Scheme.
In my view, BDO's opinion was not a basis to refuse to convene the Scheme Meetings.
Director benefits and recommendations
The directors of Aston have unanimously recommended that, in the absence of a superior proposal, securityholders vote in favour of the Schemes.
Each of the Aston directors has interests in the Shares, Options, and Non-Scheme Options. In addition, Mr Tolga Kumova, one of the non-executive directors of Aston, holds 10,000,000 shares in Torque as well as 10,000,000 Torque options. These securities were acquired under the placement by Torque that was announced at the same time as execution of the SID.
If the Schemes are implemented, it is proposed that Mr Kumova will be appointed to the combined group board. On his appointment, it is proposed that he will receive 15,000,000 incentive options in Torque with an exercise price of $0.15 and expiry date of 31 January 2030, and director's fees of $50,000 per annum (exclusive of superannuation).
Each Aston director (including Mr Kumova) considers it is appropriate for them to make a recommendation in relation to the Schemes.[35]
[35] Scheme Booklet, p iii.
At the hearing on 16 April 2025, I raised a number of concerns about the then disclosure of Mr Kumova's interests in the draft Scheme booklet and queried whether it was appropriate for Mr Kumova to make a recommendation in relation to the Schemes. This was because the draft Scheme booklet grouped the interests of all Aston directors together and did not, in my view, sufficiently distinguish Mr Kumova's interests and benefits. Specifically, the Scheme booklet did not make it clear that Mr Kumova presently owned shares and options in Torque which were acquired in a placement agreed at the same time as the SID, as well as the basis for the statement that Mr Kumova considered himself to be independent of Torque. In addition, it was not clear on the evidence whether any class issues or concerns about collateral benefits arose as a consequence of these matters.
Following this hearing, Aston addressed these issues by filing the updated Scheme Booklet and a further affidavit of Mr Jewson. The Scheme Booklet specially sets out Mr Kumova's current interest in Torque, his proposed appointment to the board of Torque and the basis for his view that he is independent of Torque. Mr Jewson's evidence is that Mr Kumova was not involved in the negotiation of the SID (which was done by Mr Jewson), and that Mr Kumova participated in the proposed Torque placement as a consequence of a suggestion from Mr Jewson.
On the basis of this additional material, for the following reasons, I was and am satisfied that it was appropriate for each of the Aston directors, including Mr Kumova, to make a recommendation in respect of the Schemes.
First, the consideration each of the Aston directors will receive for their Shares, Scheme Options, and Non-Scheme Options is the same consideration that every other shareholder of Aston will receive.
Second, on the basis of Mr Jewson's evidence, I accept that Mr Kumova was not involved in the negotiation of the SID and that the SID was negotiated on arm's length commercial terms.[36] Given this, I accept that no class issues or concerns about collateral benefits arise, and that there is a proper basis for Mr Kumova's view that he remains an independent director.
[36] Second affidavit of Robert Andrew Jewson filed 16 April 2025.
Third, and importantly, the Scheme Booklet now gives full disclosure of Mr Kumova's interests in Torque, as well as each of the directors' interest in the Schemes.[37]
Performance risk
[37] Sixth affidavit of James Patrick McAuliffe filed 17 April 2025, 'JM-34'.
On the evidence before the court, I was and am satisfied that securityholders are adequately protected against the risk they will not receive the Share Scheme Consideration or Option Scheme Consideration, or have the capacity to sue Torque to recover their securities or damages.
Under the terms of the Schemes:[38]
(a)Torque is required to issue and allot the Share Scheme Consideration and/or Option Scheme Consideration to each Scheme Participant and enter each securityholder's name and registered address into Torque's register on the Implementation Date;
(b)transfer of the Shares to Torque and cancellation of the Options is subject to the provision of the Share Scheme Consideration and Option Scheme Consideration;
(c)beneficial title does not pass unless the Share Scheme Consideration and Option Scheme Consideration has been issued; and
(d)Aston has undertaken to enforce its securityholders' rights against Torque in the event Torque fails to provide the Share Scheme Consideration and/or Option Scheme Consideration.
[38] Share Scheme cl 5; Option Scheme cl 5.
These arrangements are supported by the Deed Polls. By the Deed Polls, Torque covenants in favour of each Aston securityholder that it will perform all actions attributed to it under the Schemes and acknowledges the Deed Polls may be relied on and enforced by any Shareholder or Optionholder in accordance with its terms.
Exclusivity provisions and break fees
The SID contains the customary lock up devices (including, where usual, the fiduciary carve-out).[39] In certain circumstances, Aston and Torque may be liable to pay a break fee of $100,000 (Break Fee).[40]
[39] SID, cl 11.1 - 11.4, cl 11.7.
[40] Scheme Booklet [13.6].
In considering whether the exclusivity provisions impact on completion of the transaction and the duties of Aston's directors, the court has regard to:[41]
(a)the period of the exclusivity, which should be no more than a reasonable period and capable of precise ascertainment;
(b)whether the provisions are subject to an overriding obligation that the directors do not breach their fiduciary duties or are otherwise unlawful; and
(c)whether there is adequate prominence given to these provisions in the scheme booklet.
[41] Re APN News & Media Ltd [2007] FCA 770; (2007) 62 ACSR 400 [29] - [35]; Re Kangaroo Resources Ltd [2018] WASC 327 [57] - [61]; Re Pacific Energy Ltd [2019] WASC 443 [58].
In this case, the exclusivity period is, at most, a period of approximately six months.[42]
[42] SID cl 11, cl 17.1 ('Exclusivity Period'.
Mr Jewson and Mr Gomez have explained the commercial justification for the exclusivity provisions and the Break Fee.[43] I accept their evidence that the inclusion of these provisions in the SID followed arm's‑length commercial negotiations in which all parties were separately advised and represented by external legal and financial advisers.
[43] Affidavit of Robert Andrew Jewson filed 11 April 2025 [102] - [118]; Affidavit of Cristian Camilo Moreno Gomez filed 11 April 2025 [35] - [40].
The amount of the Break Fee is less than 1% of the equity value of Aston based on the implied value of the Share Scheme Consideration and Option Scheme Consideration at the date that the SID was entered into, which is within generally accepted commercial parameters. The Break Fee is intended to compensate the parties for their costs if the Schemes do not proceed. The Break Fee is payable by both parties in certain circumstances and is not payable if securityholders of Aston do not vote in favour of the Schemes (or either of them). In my view, the amount of the Break Fee is unlikely to influence Aston's securityholders in their decision to vote on the Schemes.
Importantly, the exclusivity arrangements and Break Fee are prominently disclosed in the Scheme Booklet.[44]
Loan agreement
[44] Scheme Booklet [13].
Aston has provided Torque with a loan facility of up to $1.7 million to assist Torque with working capital until the implementation of the Scheme (Loan Agreement). The terms of the Loan Agreement are disclosed in the Scheme Booklet.[45]
[45] Scheme Booklet [5.14], [6.12].
Previous decisions of this court have considered agreements where a bidder has provided a loan to the target.[46] Counsel for Aston was not aware of any case that had considered an agreement where the target provides a loan to the bidder. In my view, similar considerations apply where the loan is provided by the target; namely, the relevant issue is whether the loan agreement operates as a break fee or lock up device that might prevent securityholders from freely considering the proposed scheme or schemes on merit.
[46] Re Nzuri Copper Ltd [2019] WASC 189 [67] - [68] (Vaughan J).
In this case, I was and am satisfied that the Loan Agreement is not a break fee or lock‑up device that would have a coercive effect on Aston securityholders which would prevent them from considering the merits of the proposed Schemes. This is primarily because there is a commercial rationale for the Loan Agreement, the interest rates are on arm's‑length terms, and the repayment dates provide Torque with time to seek alternative financing arrangements in the event the Schemes are not implemented, while requiring relatively swift repayment. In my view, the Loan Agreement is a matter Shareholders and Optionholders can take into account in deciding whether or not to approve the proposed Schemes.
Deemed warranties
Aston also drew my attention to the deemed warranty provisions in the proposed Schemes. Deemed warranty clauses are not unusual and are accepted provided there is adequate disclosure that they are conditions.
These provisions are also drawn to the attention of securityholders in the Scheme Booklet.[47] I was and am satisfied that adequate disclosure has been given of these clauses.
Dispatch of the Scheme Booklet
[47] Scheme Booklet [5.13].
Aston sought orders pursuant to s 1319 of the Act for electronic dispatch of the Scheme Booklet and applicable proxy forms by email to securityholders who have nominated to receive communications electronically (Email securityholders). In respect of its securityholders who have nominated to receive communications in hardcopy, hardcopy documents will be dispatched by post.
Securityholders who have not made any election, as well as those Email securityholders in respect of whom notice is received that electronic delivery was ineffective, will be sent a letter with details of the website from which the Scheme Booklet can be accessed, together with a copy of the applicable proxy form.
I was and am satisfied that the proposed orders for dispatch of the Scheme Booklet are appropriate.
Outbound communications
Aston drew my attention to the steps it proposes to take in relation to securityholder communications, including an outbound communications campaign with major securityholders. I was provided with a draft script of these communications.[48] These communications are consistent with the disclosure in the Scheme Booklet in respect of which approval is sought.
[48] Second affidavit of James Patrick McAuliffe filed 9 April 2025 'JM-16'.
Conclusion and orders
At the first hearing, I was satisfied that the substantive and procedural requirements under s 411(1) and s 1319 of the Act had been satisfied and that the proposed Schemes were fit for consideration by Aston's members.
For these reasons, at the conclusion of the hearing on 17 April 2025, I made orders in terms of Annexure 'A' of this judgment in respect of the Schemes.
ANNEXURE A
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KS
Associate to the Hon Justice Hill
16 MAY 2025
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