RE EMMERSON RESOURCES LTD; EX PARTE EMMERSON RESOURCES LTD [2026] WASC 250

[2026] WASC 250 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : RE EMMERSON RESOURCES LTD; EX PARTE EMMERSON RESOURCES LTD [No 2] [2026] WASC 250 CORAM : HILL J HEARD : 19 JUNE 2026 DELIVERED : 19 JUNE 2026 FILE NO/S : COR 44 of 2026 MATTER : IN THE MATTER OF EMMERSON RESOURCES LTD EX PARTE EMMERSON RESOURCES LTD Plaintiff TENNANT CONSOLIDATED MINING GROUP PTY LTD (ACN 645 263 547) Interested Party Catchwords: Corporations - Scheme of arrangement - Application for orders approving scheme under s 411(4)(b) of the Corporations Act 2001 (Cth) - Orders made approving scheme Legislation: Corporations Act 2001 (Cth) s 411 -- 1 of 11 -- [2026] WASC 250 Page 2 Result: Orders made approving scheme Category: B Representation: Counsel: Plaintiff : J R C Sippe Interested Party : K Sleiman Solicitors: Plaintiff : Thomson Geer Interested Party : Corrs Chambers Westgarth Cases referred to in decision: Re Emmerson Resources Ltd; Ex Parte Emmerson Resources Ltd [2026] WASC 223 Re International Goldfields Ltd [2004] WASC 112 Re Pensana Metals Ltd [No 2] [2020] WASC 17 Re Seven Network Ltd [No 3] [2010] FCA 400; (2010) 267 ALR 583 Re Wesfarmers Ltd [No 2] [2018] WASC 357 -- 2 of 11 -- [2026] WASC 250 HILL J Page 3 HILL J: 1 At the final hearing of the originating process, Emmerson Resources Limited (Emmerson) sought orders for the approval of a scheme of arrangement with Pan African Resources Plc (Pan African), whose wholly owned subsidiary, Tennant Consolidated Mining Group Pty Ltd, is the proposed acquirer of the shares in Emmerson. 2 The background to this matter is set out in the judgment I delivered following the first court hearing on 8 May 2026.1 At the conclusion of the hearing, I made orders for the Scheme Meeting to be convened on 15 June 2026 (Orders). Scheme Meeting 3 The Scheme Meeting was held on 15 June 2026. At this meeting, the resolution was passed by the requisite statutory majorities.2 4 168 shareholders were present at the Scheme Meeting in person and by proxy. 78.70% of shareholders who voted at the meeting were in favour of the resolution to approve the Scheme, with 90.81% of the votes cast in favour of the resolution.3 Should the court exercise its discretion to approve the Scheme? 5 The approval of the proposed Scheme pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) (Act), or the second court hearing, 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. 6 At the second court 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 meetings were convened and held in accordance with the court's earlier orders; 1 Re Emmerson Resources Ltd; Ex Parte Emmerson Resources Ltd [2026] WASC 223 (First Reasons). I have adopted the same defined terms used in the First Reasons in these reasons. 2 Affidavit of Scott Douglas Gibson filed 17 June 2026 [19]. 3 Affidavit of Scott Douglas Gibson filed 17 June 2026 [19]. 4 Re Wesfarmers Ltd [No 2] [2018] WASC 357 [12]. 5 Re International Goldfields Ltd [2004] WASC 112 [7]. -- 3 of 11 -- [2026] WASC 250 HILL J Page 4 (ii) the resolutions were 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. 7 The court has a discretion 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 8 The factors that inform the court's discretion whether or not to approve a scheme 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. 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]. -- 4 of 11 -- [2026] WASC 250 HILL J Page 5 9 In addition to the affidavits relied upon at the first court hearing, Emmerson relied on three additional affidavits, namely: (a) an affidavit of Michael John Dunbar, the managing director of Emmerson, filed 17 June 2026; (b) an affidavit of Scott Douglas Gibson, a partner of Emmerson's solicitors and the chairperson of the Scheme Meeting, filed 17 June 2026; and (c) an affidavit of Hendrik Christoffel van Aswegen, a partner of Emmerson's solicitors, filed 19 June 2026. Compliance with statutory and procedural requirements 10 I was and am satisfied, on the basis of the additional affidavits that were filed by Emmerson, 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 8 May 2026;10 (c) the Scheme materials were dispatched to Shareholders in accordance with the Orders;11 (d) the Scheme Meeting was convened and held on 15 June 2026 in accordance with the Orders;12 (e) the Scheme has been approved by the requisite statutory majorities;13 (f) notice of the second court hearing was given by way of an ASX announcement dated 12 June 2026;14 and (g) ASIC informed Emmerson, pursuant to s 411(17)(b) of the Act, that it has no objection to the proposed Scheme.15 9 Affidavit of Michael John Dunbar filed 17 June 2026 [8(a)]. 10 Affidavit of Michael John Dunbar filed 17 June 2026 [8(a)-(b)], 'MJD-13'. 11 Affidavit of Michael John Dunbar filed 17 June 2026 [9] - [17], 'MJD-15' - 'MJD-18'. 12 Affidavit of Scott Douglas Gibson filed 17 June 2026 [6] - [18]. 13 Affidavit of Scott Douglas Gibson filed 17 June 2026 [19]. 14 Affidavit of Michael John Dunbar filed 17 June 2026 [27], 'MJD-21'. 15 Affidavit of Hendrik Christoffel van Aswegen filed 19 June 2026, 'HVA-09'. -- 5 of 11 -- [2026] WASC 250 HILL J Page 6 11 Emmerson drew my attention to the low voter turnout at the Scheme Meeting, which was 61.12% of Shares, but only 9.43% of Shareholders by number.16 As the courts have previously noted, relatively low voter turnout, of itself, does not prevent the court from making orders approving a scheme of arrangement.17 It is, however, relevant to consider whether the low turnout is an indication there has been a procedural irregularity or that shareholders have been deterred from attending or voting at the Scheme Meeting. 12 The evidence before me is that the voter turnout at the Scheme Meeting was materially higher than the voter turnout in Emmerson's two previous annual general meetings.18 On the evidence before me, I did not consider that the low voter turnout by number of Shareholders, in itself, suggested there had been an error in the dispatch of the Scheme booklet, nor that this should prevent the court from making the orders sought under s 411(4)(b) of the Act. 13 I was and am satisfied that all statutory pre-conditions have been met and turn to the discretionary considerations. Good faith and proper purpose 14 I am satisfied on the evidence filed by Emmerson that its 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. Fairness and reasonableness 15 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. 16 Nothing has occurred since the date of the first court hearing to change these views. The shareholders of Emmerson who voted at the meeting overwhelmingly supported the proposed Scheme. 16 Affidavit of Michael John Dunbar filed 17 June 2026 [29]; Affidavit of Scott Douglas Gibson filed 17 June 2026 [19]. 17 Re Pensana Metals Ltd [No 2] [2020] WASC 17 [12] - [15] and the cases referred to. 18 Affidavit of Michael John Dunbar filed 17 June 2026 [30]. -- 6 of 11 -- [2026] WASC 250 HILL J Page 7 17 No Shareholder appeared at the second court hearing to oppose the orders sought by Emmerson. 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 18 In written submissions and at the second court hearing, counsel drew two additional matters to my attention. 19 The first matter was the confirmation that Emmerson had undertaken both an inbound and outbound communications campaign with Shareholders. The process by which the scripts used for this communications campaign were prepared was in evidence before me.19 These communications were consistent with the information in the Scheme booklet, and there were no deviations or other issues with these communications.20 20 I am satisfied that there is no evidence before the court which would support any inference being drawn that these communications compromised the integrity of the voting process. 21 The second matter was confirmation that all remaining conditions precedent (apart from court approval at the second court hearing) have been satisfied or waived.21 Counsel for Emmerson drew the court's attention to condition precedent 12,22 which required the ASX to have given conditional approval of the admission of Pan African to the official list of the ASX, and for there to have been no indication to Pan African that the ASX would not grant approval for the official quotation of the new PAR CDIs by today's hearing. The evidence before the court is that Pan African has received a letter from the ASX advising that Pan African will be admitted to the official list of the ASX and that official quotation for the CDI's will be granted, subject to the satisfaction of certain conditions precedent,23 and that Pan African has certified that all remaining conditions precedent have been satisfied or waived. 19 Affidavit of Michael John Dunbar filed 17 June 2026 [18] - [23]. 20 Affidavit of Michael John Dunbar filed 17 June 2026 [24]. 21 Affidavit of Michael John Dunbar filed 17 June 2026 [31] - [32]. 22 Affidavit of Michael John Dunbar filed 29 April 2026, 'MJD-02', p 195. 23 Affidavit of Michael John Dunbar filed 17 June 2026, 'MJD-20'. -- 7 of 11 -- [2026] WASC 250 HILL J Page 8 Full and fair disclosure 22 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. 23 The additional affidavit evidence filed by Emmerson established that the Scheme booklet was dispatched in the form approved for distribution by the court. 24 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 25 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.24 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. Public policy and oppression of minorities 26 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 an exemption be granted from compliance with s 411(11) of the Act? 27 Emmerson sought an order which would exempt it from compliance with 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 Emmerson's constitution as the orders do not affect any change to the constitution. In my view, it was and is appropriate in the circumstances of this case to make the orders sought under s 411(12) of the Act. Conclusion and orders 28 For these reasons, at the conclusion of the hearing on 19 June 2026, I found that the substantive and procedural requirements under s 411(4) of the Act had been satisfied and that I should exercise my 24 Affidavit of Hendrik Christoffel Aswegen filed 19 June 2026, 'HVA-10' - 'HVA-11'. -- 8 of 11 -- [2026] WASC 250 HILL J Page 9 discretion to make orders approving the proposed Scheme in terms of Annexure 'A' to this judgment. -- 9 of 11 -- [2026] WASC 250 HILL J Page 10 Annexure 'A' -- 10 of 11 -- [2026] WASC 250 HILL J Page 11 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. VA Associate to the Hon Justice Hill 22 JUNE 2026 -- 11 of 11 --