In the matter of Vonex Limited

[2025] NSWSC 964

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of Vonex Limited [2025] NSWSC 964

Hearing dates:

21 August 2025

Date of orders:

21 August 2025

Decision date:

25 August 2025

Jurisdiction:

Equity - Corporations List

Before:

Black J

Decision:

Order convening scheme meeting and associated orders made.

Catchwords:

CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement — whether requirements to order scheme meeting are satisfied

Legislation Cited:

- Corporations Act 2001 (Cth), ss 411 and 1319

- Supreme Court (Corporations) Rules 1999 (NSW), r 3.4

Cases Cited:

- Re APM Human Services International Ltd [2024] NSWSC 1095

- Re Ansarada Group Ltd [2024] NSWSC 411

- Re Coca-Cola Amatil Ltd [2021] NSWSC 270

- Re Ellerston Global Investments Ltd [2020] NSWSC 879

- Re ELMO Software Pty Ltd [2023] NSWSC 12

- Re Invocare Ltd [2023] NSWSC 1180

- Re MyDeal.com.au Ltd [2022] NSWSC 1317

- Re Pacific Smiles Group Ltd [2024] NSWSC 812

- Re Vocus Group Ltd [2021] NSWSC 630

- Re Webcentral Group Ltd [2020] NSWSC 1279

Category:

Principal judgment

Parties:

Vonex Limited (Plaintiff)
Maxo Telecommunications Pty Ltd (Bidder)

Representation:

Counsel:
B Ng (Plaintiff)
O Jones (Bidder)

Solicitors:
Stefan Luke Lawyer (Plaintiff)
Gadens (Bidder)

File Number(s):

2025/307966

JUDGMENT

1. By Originating Process filed on 12 August 2025, the Plaintiff, Vonex Ltd (“Vonex”) seeks orders under ss 411 and 1319 of the Corporations Act 2001 (Cth) (“Act”) in respect of a proposed scheme of arrangement between Vonex and its shareholders, other than Excluded Shareholders (as defined). By way of background, Vonex is listed on the Australian Securities Exchange and conducts a telecommunications business which provides mobile, internet and other services, predominantly to the small to medium enterprise market and also services retail and wholesale customers. On 4 July 2025, Vonex announced to ASX that it had entered into a Scheme Implementation Deed (“SID”) with Maxo Telecommunications Pty Ltd (“MaxoTel”) which contemplated MaxoTel’s acquisition of all of the issued shares in Vonex, other than those that MaxoTel and an associated company already own, for 3.6 cents per Vonex share. MaxoTel and an associated entity together hold 69.4% of the issued ordinary shares in Vonex and another company, Swoop Telecommunications Pty Ltd (“Swoop”), holds 22.8% of the shares in Vonex.

2. I made the orders sought by Vonex at the conclusion of the hearing on 21 August 2025. These are my reasons for doing so. I have drawn on the helpful submissions of Ms Ng, who appeared for Vonex, in this judgment.

Affidavit and other evidence

3. Vonex reads the affidavit dated 12 August 2025 of its solicitor, Mr Stefan Luke which exhibits a company search for Vonex and refers to Vonex’s announcement of the proposed scheme.

4. Vonex also reads the affidavit dated 19 August 2025 of Mr Stephe Wilks, who is a director and non-executive chair of the board of Vonex. He describes the nature of Vonex’s business. Mr Wilks also addressed Vonex’s communications with the Australian Securities and Investments Commission (“ASIC”) in respect of the proposed scheme and refers to an announcement made by Swoop on 4 July 2025 to Australian Securities Exchange (“ASX”) announcement confirming its intention to vote all its shareholding in support of the scheme in the absence of a superior proposal. Mr Wilks also addresses the process for despatch of the scheme materials to Vonex shareholders, which is in conventional form; the conditions precedent to the proposed scheme; and the recommendation made by Vonex directors (other than its chief executive officer, Mr Blake, who does not make a recommendation due to a previous role with MaxoTel) that Vonex shareholders vote in favour of the scheme, in the absence of a superior proposal and subject to Swoop maintaining its commitment to vote all of its Vonex shares in favour of the scheme and the independent expert continuing to conclude that the scheme is in the bests interest of Vonex shareholders. Mr Wilks also refers to exclusivity provisions under the SID, which I note below, and expresses his view that the relevant provisions were reasonable and appropriate. He refers to the manner in which the proposed scheme meeting would be conducted as a physical meeting and addresses consents as chair of the scheme meeting.

5. Mr Wilks also notes that Vonex’s company secretary was nominated in the scheme booklet to receive shareholder queries relating to the scheme. Mr Wilks also refers to a short script in respect of incoming calls and Vonex’s intention to maintain a register of inbound calls relating to the scheme, including details of responses provided by the company secretary to Vonex shareholders. Mr Wilks also addresses the verification process undertaken in respect of the scheme booklet, which was in conventional form, and refers to Vonex’s intention to publish its audited financial statements for the year ended 30 June 2025 to ASX on or about 26 August 2025 and to what would be said about the scheme in the ASX announcement relating to those results.

6. By a second affidavit dated 20 August 2025, Mr Wilks annexed a letter dated 20 August 2025 received from ASIC which consents to an abridgement of the 14 day notice period to ASIC under s 411(2) of the Act, notes that ASIC had had a reasonable opportunity to examine the terms of the scheme and the draft explanatory statement and indicates that ASIC did not currently propose to appear to make submissions or intervene to oppose the scheme at the first Court hearing. Mr Wilks also exhibited a proposed proxy form and access letter in respect of the scheme and also made a correction to one matter addressed in his first affidavit.

7. By an affidavit dated 20 August 2025, Mr Alexander Rich, who is the sole director of MaxoTel, refers to MaxoTel’s entry into the SID in respect of the proposed scheme; the verification process adopted by MaxoTel in respect of bidder information contained in the scheme booklet; MaxoTel’s execution of a Deed Poll in favour of Vonex shareholders; and the manner in which MaxoTel proposed to fund payment of the scheme resources, from existing cash reserves which exceed the amount of the scheme consideration, or alternatively from a debt facility which it is presently negotiating with an Australian bank.

8. Ms Ng in turn took me through the scheme booklet in the course of the hearing.

Role of the Court at the first Court hearing

9. The Court’s role at a first Court hearing in respect of a scheme is primarily to determine, in the exercise of its discretion, whether to convene a scheme meeting and approve the explanatory statement if it is satisfied of several matters, namely that the plaintiff is a “Part 5.1 body”; the proposed scheme is an “arrangement” within the meaning of s 411 of the Act; there has been proper disclosure to members (or creditors if a creditors’ scheme); the scheme is bona fide and properly proposed; ASIC has had reasonable opportunity to examine the proposed scheme and explanatory statement, to make submissions and has had 14 days’ notice of the proposed hearing date of the first Court hearing; the procedural requirements of the Supreme Court (Corporations) Rules 1999 (NSW) (“Rules”) have been met; and there is no apparent reason why the scheme should not, in due course, receive the Court’s approval if the necessary majority of votes is achieved: Re Ellerston Global Investments Ltd [2020] NSWSC 879 at [25]–[26]; Re Vocus Group Ltd [2021] NSWSC 630 at [12]; Re Invocare Ltd [2023] NSWSC 1180 at [14]; Re Pacific Smiles Group Ltd [2024] NSWSC 812 at [9]; Re APM Human Services International Ltd [2024] NSWSC 1095 at [11].

10. Each of the preconditions to the exercise of s 411(1) of the Act is met here. Vonex is registered under the Act and is a Part 5.1 body and the proposed scheme is an “arrangement” between Vonex and its shareholders other than the Excluded Shareholders. I have referred to Vonex’s tender of ASIC’s customary letter above. There is evidence that the draft scheme booklet has been the subject of a verification process. The procedural requirements under the Rules have been met, on the basis that I will dispense with r 3.4 where Vonex proposes to give notice of the second Court hearing by way of ASX announcement in accordance with common practice.

11. Where the preconditions to the exercise of power under s 411(1) of the Act are satisfied, then it is necessary for the Court to consider whether the Court should, in its discretion, exercise its power under s 411(1) of the Act. The Court will then consider whether the proposed scheme is fit for consideration at the proposed scheme meeting, in the sense that it is of such a nature and cast in such terms that, if it achieves the statutory majority at the meeting, the Court would be likely to approve it on the hearing of a petition which is unopposed and that members (or creditors) are to be properly informed as to the nature of the scheme before the scheme meeting. As I noted above, Vonex’s directors (other than Mr Blake) recommend that Vonex’s shareholders vote in favour of the scheme at the scheme meeting, subject to the matters noted above. The independent expert has expressed the opinion that the scheme is “fair” and “reasonable” and, on that basis in the absence of any other information or a superior proposal, the scheme is in the best interests of Vonex shareholders.

Particular matters

12. Ms Ng also draws several other matters to the Court’s attention. First, Ms Ng notes that the Scheme Booklet discloses Vonex’s financial position up to the half year ended 31 December 2024 (Ex 1, scheme booklet, section 4.8) and that Vonex anticipates releasing its financial report for the full year ended 30 June 2025 to the ASX on 26 August 2025. That information will be available well in advance of the proposed scheme meeting on 23 September 2025. Ms Ng draws attention to the fact that the Vonex Board proposes to include with that announcement the statements identified in Mr Wilks affidavit, including a statement from the independent expert as to whether that information affects the expert’s opinion in relation to the scheme (Ex 1, scheme booklet, section 4.9). If the independent expert changes his opinion, Vonex will relist the matter before the Court prior to the scheme meeting and seek approval of any supplementary disclosure. I accept that this approach is sufficiently disclosed in the scheme booklet and consistent with that taken in previous schemes: Re Webcentral Group Ltd [2020] NSWSC 1279 at [34]; Re MyDeal.com.au Ltd [2022] NSWSC 1317 at [17].

13. Second, Ms Ng addresses MaxoTel’s funding of the scheme consideration and performance risk. She points out that, if the Scheme becomes Effective (as defined), the maximum amount of cash which MaxoTel is required to pay under the Scheme will be approximately $8.29 million (Ex 1, scheme booklet, section 5.3). I have referred above to the evidence that MaxoTel presently intends to fund the scheme consideration from its existing cash reserves, which are in excess of that amount, but is also seeking to negotiate a debt facility with an Australian bank as an alternative means of funding MaxoTel’s obligations to pay the scheme consideration. MaxoTel has executed a deed poll undertaking in favour of scheme participants that, subject to the scheme becoming Effective, it will perform the obligations attributed to them under the scheme It seems to me that the evidence sufficiently addresses the funding for the scheme and that the deed poll and payment of the scheme consideration by MaxoTel to a trust account maintained by Vonex are well-established means of managing performance risk: Re ELMO Software Pty Ltd [2023] NSWSC 12 at [27]–[28]. These matters also do not give rise to any reason not to convene the scheme meeting.

14. Third, Ms Ng notes MaxoTel’s interests in Vonex, which I have noted above. Fourth, Ms Ng notes that cl 10 of the SID imposes a number of restrictions and obligations on Vonex and the Vonex Board in relation to negotiations with third parties such as “no shop” (cl 10.2), “no talk” and “no due diligence” (cl 10.3) restrictions, a “notice of competing transaction” obligation (cl 10.4) and a “matching right” (cl 10.5). The “no talk” and “no due diligence” restrictions are each subject to the Vonex board’s fiduciary and statutory obligations (cl 10.6). The “End Date” for the “Exclusivity Period” under the SID is four months after the date of the SID (being 5 November 2025) or another date as agreed between Vonex and MaxoTel (Wilks [47]). Ms Ng points to Mr Wilks evidence that the exclusivity provisions followed commercial arms’ length negotiations between Vonex and MaxoTel with their respective legal advisers (Wilks [48], [50]–[53]). I accept that the exclusivity period is not an unreasonable period and that the exclusivity provisions are consistent with market practice and sufficiently disclosed in the scheme booklet and this does not provide any reason not to convene the scheme meeting: Re Coca-Cola Amatil Ltd [2021] NSWSC 270 at [22]; Re Ansarada Group Ltd [2024] NSWSC 411 at [23]. No break dees are payable by either Vonex or MaxoTel under the SID in the event that the scheme does not complete (Wilks [54]).

15. Fifth, as I noted above, the scheme booklet invites Vonex shareholders with any questions in relation to the scheme to call or email Vonex’s company secretary (Wilks [62]), on the basis that he will respond to any email queries by reference only to the scheme booklet and to respond to any telephone queries by reference to a call script adopted by Vonex for that purpose and Vonex will maintain a register of all inbound calls relating to the scheme, including details on the responses provided to the Vonex shareholders (Wilks [63]–[64]). The Vonex board does not currently intend to conduct any outgoing call campaign or email or text campaign to Vonex shareholders. My attention was drawn to the scripts for those communications although, consistent with current scheme practice, I was not asked to approve them. This approach does not give rise to any reason not to convene the scheme meeting, although the content of communications between the company secretary and shareholders will need to be reviewed at the second Court hearing.

16. Turning now to the wider issues relevant to the exercise of the Court’s discretion whether to convene the scheme meeting, as I noted above, the independent expert expresses the opinion that the scheme is fair and reasonable and therefore in the best interests of scheme shareholders, in the absence of a superior proposal, and the directors (other than Mr Blake) recommend that shareholders vote in favour of the scheme, subject to the matters noted above. No apparent difficulty arises with the disclosure in the scheme booklet and the verification process adopted in respect of the scheme booklet. I am satisfied that there is nothing in the terms of the scheme or in its effect on scheme shareholders that would otherwise warrant the Court declining to approve the scheme at the second Court hearing, if it receives the statutory majorities required by s 411(4)(a)(ii) of the Act at the scheme meeting.

Orders

17. For these reasons, I made the orders sought by Vonex at the conclusion of the first Court hearing on 21 August 2025.

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Decision last updated: 26 August 2025