RE HARTSHEAD RESOURCES NL; EX PARTE HARTSHEAD RESOURCES NL [2026] WASC 236

[2026] WASC 236 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : RE HARTSHEAD RESOURCES NL; EX PARTE HARTSHEAD RESOURCES NL [No 2] [2026] WASC 236 CORAM : HILL J HEARD : 11 JUNE 2026 DELIVERED : 11 JUNE 2026 FILE NO/S : COR 40 of 2026 MATTER : IN THE MATTER OF HARTSHEAD RESOURCES NL EX PARTE HARTSHEAD RESOURCES NL Plaintiff ACAM GP LTD 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 236 Page 2 Result: Orders made approving scheme Category: B Representation: Counsel: Plaintiff : J D Malone Interested Party : T P O'Leary Solicitors: Plaintiff : Blackwall Legal LLP Interested Party : Gilbert + Tobin Cases referred to in decision: Re Hartshead Resources NL; Ex Parte Hartshead Resources NL [2026] WASC 177 Re International Goldfields Ltd [2004] WASC 112 Re MAC Services Group Ltd [2010] NSWSC 1474 Re National Australia Bank Ltd [2016] VSC 62 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 236 HILL J Page 3 HILL J: 1 At the final hearing of the originating process, Hartshead Resources NL (Hartshead) sought orders for the approval of a scheme of arrangement with ACAM GP Limited, as a general partner of ACAM LP (ACAM), for the acquisition of all ordinary and partly paid shares in Hartshead.1 2 The background to this matter is set out in the judgment I delivered following the first court hearing on 29 April 2026.2 At the conclusion of this hearing, I made orders for the Scheme Meeting to be convened on 8 June 2026 (Orders). Scheme Meeting 3 The Scheme Meeting was held on 8 June 2026. At this meeting, the resolution was passed by the requisite statutory majorities.3 4 317 shareholders were present at the Scheme Meeting in person and by proxy. 81.33% of Shareholders who voted at the meeting were in favour of the resolution to approve the Scheme, with 97.33% of the total number of the votes cast in favour of the resolution.4 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 schemes 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:5 (a) to ensure that all statutory and procedural requirements have been satisfied. This includes confirming that:6 (i) the meetings were convened and held in accordance with the court's earlier orders; 1 The scheme is 'WEM13' of the affidavit of William Edward Moncrieff filed 29 April 2026. 2 Re Hartshead Resources NL; Ex Parte Hartshead Resources NL [2026] WASC 177 (First Reasons). I have adopted the same defined terms used in the First Reasons in these reasons. 3 Affidavit of Bevan Nigel Hugh Tarratt filed 10 June 2026 [40]. 4 Affidavit of Bevan Nigel Hugh Tarratt filed 10 June 2026 [39]. One Shareholder abstained from voting on the resolution. 5 Re Wesfarmers Ltd [No 2] [2018] WASC 357 [12]. 6 Re International Goldfields Ltd [2004] WASC 112 [7]. -- 3 of 11 -- [2026] WASC 236 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.7 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.8 8 The factors that inform the court's discretion whether or not to approve a scheme are:9 (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. 7 Re Wesfarmers Ltd [No 2] [13]; Re Seven Network Ltd [No 3] [2010] FCA 400; (2010) 267 ALR 583 [31]. 8 Re Wesfarmers Ltd [No 2] [13]; Re Seven Network Ltd [No 3] [32] - [33]. 9 Re Seven Network Ltd [No 3] [35] - [40], [50], [52]. -- 4 of 11 -- [2026] WASC 236 HILL J Page 5 9 In addition to the affidavits relied upon at the first court hearing, Hartshead relied on eight additional affidavits, namely: (a) an affidavit of Fraser Lewis Doling Dudfield, a legal practitioner employed by the plaintiff's solicitors, filed 2 June 2026; (b) an affidavit of Cameron Thomas Nelson, an account director employed by Georgeson Shareholder Communications Australia Pty Ltd (Georgson), sworn 9 June 2026;10 (c) an affidavit of Danielle Maree Janette Petch, the Project Coordinator employed by Computershare Investor Services Pty Limited (Computershare), which provides share registry and related services to Hartshead, filed 9 June 2026; (d) an affidavit of Lisa Nicole Ahwan, the Senior Relationship Manager employed by Computershare, filed 9 June 2026; (e) two affidavits of Gabrielle Louise Davey, a legal practitioner employed by the plaintiff's solicitors, filed 9 and 10 June 2026; (f) an affidavit of Bevan Nigel Hugh Tarratt, the executive chairperson of the plaintiff, filed 10 June 2026; and (g) an affidavit of William Edward Moncrieff, a consultant employed by the plaintiff's solicitors, filed 11 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 Hartshead, that: (a) copies of the Orders were lodged with ASIC;11 (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 29 April 2026;12 10 Mr Nelson's affidavit was annexed to Ms Davey's affidavit filed on 9 June 2026. Ms Davey undertook to file Mr Nelson's original affidavit as soon as it was received by the plaintiff's solicitors. 11 Affidavit of Gabrielle Louise Davey filed 9 June 2026 [4], 'GLD1'. 12 Affidavit of Gabrielle Louise Davey filed 9 June 2026 [6], 'GLD2'. -- 5 of 11 -- [2026] WASC 236 HILL J Page 6 (c) the Scheme materials were dispatched to Shareholders in accordance with the orders of the court;13 (d) the Scheme Meeting was convened and held on 8 June 2026 in accordance with the First Orders;14 (e) the Scheme was approved by the requisite statutory majorities;15 (f) notice of the second court hearing was given by way of an ASX announcement dated 4 June 2026;16 and (g) ASIC has informed Hartshead, pursuant to s 411(17)(b) of the Act, that it has no objection to the proposed Scheme.17 11 Hartshead drew my attention to the relatively low voter turnout at the Scheme Meeting, which was 61.26% by Shares but only 18.06% of Shareholders by number. On the evidence before me, I accept that the voter turnout at the Scheme Meeting was materially higher than the voter turnouts at Hartshead's previous three annual general meetings.18 12 Relatively low voter turnout, of itself, does not prevent the court from making orders approving a scheme of arrangement.19 13 On the evidence before me, I am satisfied there was a sufficient turnout at the Scheme Meeting. I do 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. 14 At the Scheme Meeting, Mr Tarratt, the chair of the Scheme Meeting, advised attendees that the results of the poll would be announced shortly after the meeting and then declared the meetings closed. The poll results were released on Hartshead's website and were the subject of an ASX announcement after the Scheme Meeting was closed.20 13 Affidavit of Danielle Maree Janette Petch filed 9 June 2026 [5] - [19], 'DP1' - 'DP7'. 14 Affidavit of Danielle Maree Janette Petch filed 9 June 2026 [28] - [32]; affidavit of Bevan Nigel Hugh Tarratt filed 10 June 2026. 15 Affidavit of Bevan Nigel Hugh Tarratt filed 10 June 2026 [39]. 16 Affidavit of Bevan Nigel Hugh Tarratt filed 10 June 2026, 'BT4'. 17 Affidavit of Gabrielle Louise Davey filed 10 June 2026, 'GLD8'. 18 Affidavit of Bevan Nigel Hugh Tarratt filed 10 June 2026 [47] - [49], 'BT10' - 'BT12'. 19 Re Pensana Metals Ltd [No 2] [2020] WASC 17 [12] - [15] and the cases referred to. 20 Affidavit of Bevan Nigel Hugh Tarratt filed 10 June 2026 [35] - [36], [45], 'BT9'. -- 6 of 11 -- [2026] WASC 236 HILL J Page 7 15 The approach of a chairperson advising the meeting that results will be the subject of an announcement pursuant to s 251AA of the Act, following the votes being counted and after the meeting has been formally closed, has been approved by the courts on numerous occasions.21 16 In my view, no issue arises from the manner in which the polls were conducted or announced by Hartshead. 17 I was and am satisfied that all statutory pre-conditions have been met and turn to the discretionary considerations. Good faith and proper purpose 18 I am satisfied on the evidence filed by Hartshead 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 19 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. 20 Nothing has occurred since the date of the first court hearing to change these views. A significant majority of shareholders of Hartshead who voted at the meeting supported the proposed Scheme. 21 No Shareholder appeared at the second court hearing to oppose the orders sought by Hartshead. 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 22 At the second court hearing, Hartshead drew my attention to three matters. 21 See, for example, Re National Australia Bank Ltd [2016] VSC 62 [56] and Re MAC Services Group Ltd [2010] NSWSC 1474. -- 7 of 11 -- [2026] WASC 236 HILL J Page 8 23 The first was in relation to the question of whether Tim Leslie, an associate of ACAM who held 86,369,508 Shares indirectly (via two nominee entities), had voted at the Scheme Meeting. ASIC had requested that Mr Leslie's votes be tagged.22 24 Mr Leslie's interests in Hartshead Shares are held via:23 (a) Citicorp Nominees Pty Limited (Citicorp), being the registered holder of 62,369,508 Scheme Shares in which Mr Leslie has a relevant interest; and (b) BNP Paribas Nominees Pty Ltd (BNP Paribas), being the registered holder of 24,000,000 Scheme Shares in which Mr Leslie has a relevant interest. 25 At the Scheme Meeting, Citicorp and BNP Paribas voted some but not all of the Shares registered in their name. For this reason, it was not possible for Hartshead to determine whether any of the Shares voted related to the Shares beneficially owned by Mr Leslie.24 As a result, Hartshead's solicitors sought confirmation that Mr Leslie had not voted his Shares, which Mr Leslie confirmed was the case.25 26 Second, Hartshead conducted both an inbound and outbound communications campaign with Shareholders. The process by which the scripts used for this communications campaign were prepared, reviewed and amended was in evidence before me.26 These communications were consistent with the information in the Scheme booklet. 27 Third, all remaining conditions precedent (apart from court approval at the second court hearing) have been satisfied or waived.27 Full and fair disclosure 28 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. 22 Affidavit of Bevan Nigel Hugh Tarratt filed 10 June 2026 [14]. 23 Affidavit of Bevan Nigel Hugh Tarratt filed 10 June 2026 [13]. 24 Affidavit of Bevan Nigel Hugh Tarratt filed 10 June 2026 [15] - [17], 'BT6'. 25 Affidavit of William Edward Moncrieff filed 11 June 2026, 'WEM14'. 26 Affidavit of Cameron Thomas Nelson sworn 11 June 2026. 27 Affidavit of Bevan Nigel Hugh Tarratt filed 10 June 2026 [52] - [58], 'BT13', 'BT14'. -- 8 of 11 -- [2026] WASC 236 HILL J Page 9 29 The additional affidavit evidence filed by Hartshead established that the Scheme booklet was dispatched in the form approved for distribution by the court. 30 Nothing has arisen to suggest that there was not full and fair disclosure of all the 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 31 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.28 32 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 the oppression of minorities 33 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? 34 Hartshead 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 Hartshead'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 35 For these reasons, at the conclusion of the hearing on 11 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 discretion to make orders approving the proposed Scheme in terms of Annexure 'A' to this judgment. 28 Affidavit of Gabrielle Louise Davey filed 10 June 2026, 'GLD8'. -- 9 of 11 -- [2026] WASC 236 HILL J Page 10 Annexure 'A' -- 10 of 11 -- [2026] WASC 236 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 11 JUNE 2026 -- 11 of 11 --