In the matter of Vonex Limited (No 2)

[2025] NSWSC 1228

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of Vonex Limited (No 2) [2025] NSWSC 1228

Hearing dates:

9 October 2025

Date of orders:

9 October 2025

Decision date:

17 October 2025

Jurisdiction:

Equity - Corporations List

Before:

Black J

Decision:

Order approving scheme of arrangement made.

Catchwords:

CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement and ancillary orders

Legislation Cited:

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

Cases Cited:

- Re Altium Ltd (No 2) [2024] NSWSC 935

- Re Ansarada Group Ltd [2024] NSWSC 1121

- Re Bigtincan Holdings Limited (No 2) [2025] NSWSC 347

- Re Bionomics Ltd (No 2) [2024] NSWSC 1666

- Re Boart Longyear Ltd [2021] NSWSC 1272

- Re InvoCare Ltd (No 2) [2023] NSWSC 1350

- Re Prime Infrastructure Holdings Ltd [2010] NSWSC 1337

- Re Resapp Health Ltd [2022] NSWSC 1353

- Re Southern Cross Gold Ltd (No 2) [2025] NSWSC 2

- Re Tassal Group Ltd (No 2) [2022] NSWSC 1619

- Re Vonex Ltd [2025] NSWSC 964

- Re Walsh and Company Investments Ltd [2020] NSWSC 1746

- Re WPP AUNZ Ltd [2021] NSWSC 520

Category:

Principal judgment

Parties:

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

Representation:

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

Solicitors:
Carter Newell (Plaintiff)
Gadens (Bidder)

File Number(s):

2025/307966

Judgment

Nature of the application and background

1. By Originating Process filed on 12 August 2025, the Plaintiff, Vonex Ltd (“Vonex”) sought 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 in the Scheme Implementation Deed (“SID”)). By way of background, Vonex is listed on the Australian Securities Exchange (“ASX”) 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 the ASX that it had entered into the 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, holds 22.8% of the shares in Vonex. I made the orders sought by Vonex at the conclusion of the hearing on 21 August 2025 for the reasons set out in my judgment in Re Vonex Ltd [2025] NSWSC 964.

2. The scheme meeting was then held on 23 September 2025 and the scheme was approved by the requisite majorities of Vonex shareholders (other than the Excluded Shareholders, as defined) for the purposes of s 411(4)(a)(ii) of the Act. At this second Court hearing, Vonex seeks orders approving the scheme. These are my reasons for making those orders, and I have drawn on the helpful submissions of Ns Ng who appeared for Vonex in this judgment.

Affidavit and other evidence

3. Vonex reads the affidavit dated 7 October 2025 of Ms Jessie Yerma, who addresses the despatch of the scheme materials; voting at the scheme meeting and voter turnout.

4. Vonex also reads a further affidavit dated 7 October 2025 of Mr Stephe Wilks, a director of Vonex, who addresses the registration and lodgement of the scheme booklet and convening orders with the Australian Securities & Investments Commission (“ASIC”), Mr Wilks also addresses Vonex’s communications with shareholders, including his contact with two shareholders who voted against the scheme resolution. Mr Wilks’ evidence is that Vonex’s nominated contact person did not receive any calls or emails from Vonex shareholders in connection with the scheme (Wilks [10]). Mr Wilks’ evidence is that, on or about 5 September 2025, he called two shareholder representatives in respect of their proxy votes against the scheme resolution (Wilks [11]ff); he advised them that the purpose of his call was not to change their vote or advocate for the scheme but to understand why they were voting against the scheme, so that any issue or issues they raised could be addressed at the scheme meeting if appropriate; and each of the shareholder representatives informed him that they had voted against the scheme resolution as a “protest vote” on the basis that they believed that the price offered under the scheme was too low, having regard to the price they had paid for their respective shareholder and the length of time each respective shareholder had been a shareholder of Vonex. It may have been preferable that those calls not have been made, but there is no reason to think that they compromised either the integrity of the voting process at the scheme meeting or the adequacy of disclosure in respect of the scheme, so as to provide reason not to approve the scheme at this hearing: Re Walsh and Company Investments Ltd [2020] NSWSC 1746 at [66]–[67]; Re Resapp Health Ltd [2022] NSWSC 1353 at [33]; Re Altium Ltd (No 2) [2024] NSWSC 935 at [11]; Re Ansarada Group Ltd [2024] NSWSC 1121 at [17].

5. Mr Wilks also refers to the announcement of Vonex’s FY2025 results, and the independent expert has confirmed that Vonex’s audited FY2025 financial results did not affect its opinion in relation to the scheme and the independent directors affirmed their recommendation in relation to the scheme (Wilks [15]). He also addresses an announcement made by Vonex to ASX on 15 September 2025, to the effect that MaxoTel had advised Vonex that MaxoTel had signed a business finance agreement with Westpac for a facility to finance the scheme consideration, a possibility that had been foreshadowed in the scheme booklet (Wilks [16]). Mr Wilks also addresses the advertisement of the second Court hearing, the conduct of the scheme meeting, and the announcement of the poll result on ASX. As I noted above, the scheme resolution was passed by the necessary statutory majorities at the scheme meeting. Some 180,118,979 votes were cast at the scheme meeting (in person or by proxy) by 38 Vonex shareholders (other than Excluded Shareholders) represents approximately 23.93% of all votes able to be cast and approximately 2.42% of the total number of Vonex shareholders eligible to vote (that is, other than Excluded Shareholders). Plainly, that is not a large voter turnout, and it is broadly in line with the voting participation rates in Vonex’s 2023 and 2024 annual general meetings (by votes) and less than the number of voters at the 2023 and 2024 annual general meetings (AGMs) (Yerma [22]). I also note that reply paid and return addressed envelopes were not provided to shareholders for proxy forms, but that reflected the online process adopted for proxy voting. There is no reason to think that relatively low turnout indicated a failure in then convening process, as distinct from a degree of shareholder apathy, and a relatively low turnout number does not prevent the Court from making orders approving a scheme of arrangement: Re WPP AUNZ Ltd [2021] NSWSC 520 at [9]; Re Boart Longyear Ltd [2021] NSWSC 1272 at [7]; Re Bigtincan Holdings Limited (No 2) [2025] NSWSC 347 at [32]. Finally, Mr Wilks addresses the identity of the Excluded Shareholders; the position as to the conditions precedent; and ASIC’s confirmation that it has no objection to the Scheme, satisfying the requirements of s 411(17) of the Act.

Applicable principles and determination

6. It is well-established that the Court must be satisfied of several matters in order to approve a scheme of arrangement at the second court hearing, namely that the plaintiff has complied with the orders of the Court convening the meeting of members; the meeting of members so convened has approved the scheme with the requisite majorities; all other statutory requirements have been satisfied; the scheme 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; 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; and there was full and fair disclosure to members of all information material to the decision whether to vote for or against the applicable scheme: Re InvoCare Ltd (No 2) [2023] NSWSC 1350 at [8]–[9]; Re Bionomics Ltd (No 2) [2024] NSWSC 1666 at [6]; Re Southern Cross Gold Ltd (No 2) [2025] NSWSC 2 at [8]. In exercising its power of approval, the Court has a residual discretion whether to approve a scheme and is not bound to approve it merely because it has made orders for the convening of meetings or because the statutory majorities have been achieved. In exercising that residual discretion, the matters the Court will take into account include whether the scheme is fair and reasonable so that an intelligent and honest member of the relevant class, properly informed and acting alone, might approve it; whether there was full and fair disclosure to members of all information material to the decision whether to vote for or against the scheme; and 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.

7. It appears that Vonex’s shareholders were provided with full and fair disclosure in the scheme booklet and there is no suggestion that the scheme was proposed other than in good faith and for a proper purpose. The scheme was recommended by Vonex’s independent directors; the independent expert whose report was included in the scheme booklet has expressed the view that the scheme was in the best interests of Vonex shareholders in the absence of a superior proposal; and these views were confirmed after Vonex published its FY25 results. There is no reason to doubt that the scheme is fair and reasonable so that an intelligent and honest Vonex shareholder, properly informed and acting alone, might approve it, and the resolution to approve the scheme was here passed at the scheme meeting by the requisite statutory majorities.

8. The other statutory requirements for the scheme have been satisfied. There is otherwise no reason to doubt that Vonex has brought to the Court’s attention all matters that could be considered relevant to the exercise of the Court’s discretion or that there was full and fair disclosure to shareholders of all information material to the decision whether to vote for or against the scheme. Vonex did not receive notice from any person stating that they intend to object to the approval of the scheme or appear at the second court hearing and no shareholder appeared at the second Court hearing to contest the approval of the scheme. For all these reasons, I was satisfied that the scheme was appropriate for the Court’s approval.

Amendment of the scheme under s 411(6) of the Act

9. Mr Wilks’ evidence (Wilks [26]) is that the only Excluded Shareholders are MaxoTel and its associate 12223 Pty Ltd ACN 643 965 477 and Vonex seeks an order under s 411(6) of the Act to amend the Scheme to identify those Excluded Shareholders by name. I will make that order, consistent with the approach taken in Re Prime Infrastructure Holdings Ltd [2010] NSWSC 1337 at [6]–[7] and Re Tassal Group Ltd (No 2) [2022] NSWSC 1619 at [12].

Orders

10. For these reasons, I made the orders sought by Vonex at the conclusion of the second Court hearing on 9 October 2025.

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Decision last updated: 20 October 2025