RE WINSOME RESOURCES LTD; EX PARTE WINSOME RESOURCES LTD [2026] WASC 199

[2026] WASC 199 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : RE WINSOME RESOURCES LTD; EX PARTE WINSOME RESOURCES LTD [No 2] [2026] WASC 199 CORAM : HILL J HEARD : 11 MAY 2026 DELIVERED : 11 MAY 2026 PUBLISHED : 26 MAY 2026 FILE NO/S : COR 25 of 2026 MATTER : IN THE MATTER OF WINSOME RESOURCES LTD EX PARTE WINSOME RESOURCES LTD Plaintiff LI-FT POWER LTD Interested Party Catchwords: Corporations - Two schemes of arrangement - Application for orders approving schemes under s 411(4)(b) of the Corporations Act 2001 (Cth) - Where statutory majorities met - Orders made approving schemes -- 1 of 12 -- [2026] WASC 199 Page 2 Corporations - Application for declaration of validity under s 1322(4) of the Corporations Act 2001 (Cth) - Option scheme meeting commenced prior to court ordered start time - No substantial injustice - Declaration made Legislation: Corporations Act 2001 (Cth) s 411, s 1322 Result: Orders made approving schemes Declaration made Category: B Representation: Counsel: Plaintiff : A J Papamatheos SC & A S King Interested Party : S Tomasich Solicitors: Plaintiff : DLA Piper Australia Interested Party : Allion Partners Pty Ltd Cases referred to in decision: Re International Goldfields Ltd [2004] WASC 112 Re Pensana Metals Ltd [No 2] [2020] WASC 17 Re Piedmont Lithium Ltd [No 3] [2021] WASC 173 Re Seven Network Ltd [No 3] [2010] FCA 400; (2010) 267 ALR 583 Re Wesfarmers Ltd [No 2] [2018] WASC 357 Re Winsome Resources Ltd; Ex parte Winsome Resources Ltd [2026] WASC 140 -- 2 of 12 -- [2026] WASC 199 HILL J Page 3 HILL J: 1 At the final hearing of the originating process, Winsome Resources Limited (Winsome) sought orders approving two schemes of arrangement with Li-FT Power Ltd (Li-FT). 2 The background to this matter is set out in the judgment I delivered following the first court hearing on 25 March 2026.1 At the conclusion of that hearing, I made orders for the Meetings to be convened on 5 May 2026 (Orders). Meetings 3 The Meetings were held on 5 May 2026.2 At the Meetings, the resolutions were passed by the requisite statutory majorities.3 4 181 Shareholders attended the Scheme Meeting either in person or by proxy. 96.87% of Shareholders who voted at the Scheme Meeting were in favour of the resolution to approve the Share Scheme, with 93.99% of the total number of votes cast in favour of the resolution.4 5 10 option holders attended the Option Scheme Meeting in person or by proxy. 100% of the Optionholders who voted at the Option Scheme Meeting were in favour of the resolution to approve the Option Scheme, with 100% of votes vast in favour of the resolution.5 Should the court exercise its discretion to approve the Schemes? 6 The approval of the proposed Schemes 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 Schemes by the requisite statutory majorities, which occurred at the Meetings. 1 Re Winsome Resources Ltd; Ex parte Winsome Resources Ltd [2026] WASC 140 (First Reasons). In these reasons, I have adopted the same defined terms as used in the First Reasons. 2 Affidavit of Stephen Richard Biggins filed 8 May 2026 [12]. 3 Affidavit of Stephen Richard Biggins filed 8 May 2026 [19], [25]. 4 Affidavit of Stephen Richard Biggins filed 8 May 2026 [25]. 5 Affidavit of Stephen Richard Biggins filed 8 May 2026 [19]. -- 3 of 12 -- [2026] WASC 199 HILL J Page 4 7 At the second court hearing, the court has two tasks:6 (a) to ensure that all statutory and procedural requirements have been satisfied. This includes confirming that:7 (i) the meetings were convened and held in accordance with the court's earlier orders; (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 arrangements. 8 The court has a discretion whether to approve schemes under s 411(4)(b) of the Act and is not bound to approve schemes just because the court made orders for the convening of scheme meetings or because the statutory majorities were achieved at the scheme meetings.8 That said, the court will usually approach the task on the basis that securityholders are better judges of what is in their commercial interests than the court.9 9 The factors that inform the court's discretion are:10 (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; 6 Re Wesfarmers Ltd [No 2] [2018] WASC 357 [12]. 7 Re International Goldfields Ltd [2004] WASC 112 [7]. 8 Re Wesfarmers Ltd [No 2] [13]; Re Seven Network Ltd [No 3] [2010] FCA 400; (2010) 267 ALR 583 [31]. 9 Re Wesfarmers Ltd [No 2] [13]; Re Seven Network Ltd [No 3] [32] - [33]. 10 Re Seven Network Ltd [No 3] [35] - [40], [50], [52]. -- 4 of 12 -- [2026] WASC 199 HILL J Page 5 (e) whether minority securityholders 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 schemes offend public policy. 10 In addition to the affidavits relied upon at the first court hearing, Winsome relied on an additional six affidavits, namely: (a) two affidavits of Eric Roger Merven, a senior customer success manager employed by Automic, both filed 7 May 2026; (b) two affidavits of Matthew James Nowotny-Walsh filed 7 and 11 May 2026; (c) an affidavit of Victoria Anne Geddes, an executive director of First Advisers, filed 7 May 2026; and (d) an affidavit of Stephen Richard Biggins, the non-executive chairperson of Winsome, filed 8 May 2026. Compliance with statutory and procedural requirements 11 I was and am satisfied on the additional affidavits that were filed by Winsome, that: (a) a copy of the Orders was 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 hearing was lodged with ASIC and registered on 26 March 2026;12 (c) the Scheme booklet was dispatched to Securityholders in accordance with the Orders;13 (d) notice of the second court hearing was given by way of an announcement published on Winsome's website and Winsome's announcement platform;14 and 11 Affidavit of Matthew James Nowotny-Walsh filed 7 May 2026 [11]. 12 Affidavit of Matthew James Nowotny-Walsh filed 7 May 2026 [12]. 13 First Affidavit of Eric Roger Merven filed 7 May 2026 [22], [29]. -- 5 of 12 -- [2026] WASC 199 HILL J Page 6 (e) ASIC has informed Winsome, pursuant to s 411(17)(b) of the Act, that it has no objection to the proposed Schemes.15 12 In written and oral submissions, Winsome drew my attention to four matters which are relevant to whether the statutory and procedural requirements have been met. 13 First, although the Meetings were convened and held on 5 May 2026 in accordance with the Orders, Winsome did not comply with order 1(b) of the Orders as the Option Scheme Meeting commenced at 3.15 pm at the conclusion of the Scheme Meeting, rather than 3.30 pm as required by the Orders. 14 The evidence before the court is that after the Option Scheme Meeting was opened, the initial business of the meeting was attended to. At approximately 3.25 pm, it was brought to the attention of Mr Biggins, the chairperson of the Scheme Meetings, that he had opened the Option Scheme Meeting earlier than the ordered time. After consulting with Mr Nowotny-Walsh, Mr Biggins adjourned the meeting until 3.30 pm. At 3.30 pm, Mr Biggins reconvened the Option Scheme Meeting, read the resolution, formally put the resolution to Optionholders, and conducted the poll. 15 No Optionholder entered the Option Scheme Meeting at or after 3.30 pm or raised any complaint about the matter.16 16 Given the Option Scheme Meeting was adjourned until 3.30 pm and the resolution was not read nor voted on until after the court- ordered commencement time of this meeting, I am satisfied there has been substantial compliance with the procedural requirements of the Option Scheme Meeting set out in the Orders. 17 Second, the original poll declarations for the Option Scheme Meeting included the votes of Mr Biggins for 2,000,000 options which expired on 24 April 2026, after Mr Biggins submitted his proxy. These votes were included as a result of an incorrect voting entitlement date being recorded in Automic's platform. This error was discovered on 6 May 2026, after which the necessary amendment was made, amended poll declarations were produced, and a corrective announcement was 14 Affidavit of Matthew James Nowotny-Walsh filed 7 May 2026 [17] - [18], 'MJNW-28'. 15 Affidavit of Matthew James Nowotny-Walsh filed 11 May 2026, 'MJNW-32'. 16 Affidavit of Matthew James Nowotny Walsh filed 7 May 2026 [20]; Affidavit of Eric Roger Merven filed 7 May 2026 [16] - [18]. -- 6 of 12 -- [2026] WASC 199 HILL J Page 7 made to the ASX on 7 May 2026.17 The inclusion and subsequent exclusion of these votes had no impact on whether the statutory pre- requisites were met. In both cases, 100% of Optionholders voted in favour of the resolution. 18 Third, my attention was drawn to the voter turnout at the Share Scheme Meeting of approximately 48.82% of Shares but only 5.25% of Shareholders by number.18 The voter turnout at the Scheme Meeting was materially higher than the voter turnout in Winsome's two previous annual general meetings.19 19 Relatively low voter turnout does not prevent the court from making orders approving a scheme of arrangement.20 On the evidence before me, I am satisfied there was a sufficient turnout at the Meetings and that the low voter turnout by number of Shareholders, in itself, did not suggest there had been an error in the dispatch of the Scheme booklet, nor that this should prevent the court from making orders under s 411(4)(b) of the Act. 20 Fourth, Winsome also drew my attention to the fact that at each of the Meetings, Mr Biggins, the chair of the Meetings, advised attendees that the results of the poll would be announced to the ASX shortly after the Meetings and then declared each Meeting closed.21 The poll results were the subject of an ASX announcement after each of the Meetings was closed.22 21 The approach of a chairperson, in advising a 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. No issue arises in the present case concerning the manner in which the polls were conducted or announced. 22 I was and am satisfied that all statutory and procedural requirements have been substantially complied with and turn to the discretionary considerations. 17 Second Affidavit of Eric Roger Merven filed 7 May 2026 [23] - [27]; Affidavit of Stephen Richard Biggins filed 8 May 2026 [24], 'SRB-7'. 18 Second Affidavit of Eric Roger Merven filed 7 May 2026 [14(a)]. 19 Second Affidavit of Eric Roger Merven filed 7 May 2026 [30]. 20 Re Pensana Metals Ltd [No 2] [2020] WASC 17 [12] - [15] and the cases referred to. 21 Affidavit of Stephen Richard Biggins filed 8 May 2026 [19]. 22 Affidavit of Stephen Richard Biggins filed 8 May 2026 [24], 'SRB-4'. -- 7 of 12 -- [2026] WASC 199 HILL J Page 8 Good faith and proper purpose 23 I am satisfied on the evidence filed by Winsome that Securityholders voted in good faith and for a proper purpose. The proposed Schemes do not involve any novel treatment of rights. Fairness and reasonableness 24 At the first court hearing, based on the evidence before the court, I was satisfied that the Schemes were fit for consideration by Securityholders and that the proposed Schemes was of such a nature that there was no apparent reason that they should not receive approval if the requisite voting majorities were achieved at the Meetings. 25 Nothing has occurred since the date of the first court hearing to change these views. The Securityholders who voted at the Meetings overwhelmingly supported the proposed Schemes. 26 No Securityholder appeared at the second court hearing to oppose the orders sought by Winsome. I was and am satisfied that the proposed Schemes are schemes that sensible businesspeople might consider to be of benefit to Securityholders. All relevant matters brought to the court's attention 27 At the second court hearing, in addition to the matters set out above, senior counsel for Winsome drew the following matters to my attention. 28 The first was that all remaining conditions precedent (apart from court approval at the second court hearing) had been satisfied or waived.23 29 Second, Winsome confirmed that it had undertaken both inbound and outbound communications with Securityholders. The scripts that were used for these communications were in evidence before me. Both Automic and First Advisers confirmed they had systems in place to ensure there was no departure from these scripts and that no departure had occurred.24 I was and am satisfied that these communications were consistent with the information in the Scheme booklet and that there is no evidence before the court which would support any inference being 23 Affidavit of Matthew James Nowotny-Walsh filed 11 May 2026, 'MJNW-30'. 24 Affidavit of Victoria Anne Geddes filed 7 May 2026 [8]; Second Affidavit of Eric Roger Merven filed 7 May 2026 [31] - [32]. -- 8 of 12 -- [2026] WASC 199 HILL J Page 9 drawn that these outbound communications compromised the integrity of the voting process. Full and fair disclosure 30 At the first court hearing, based on the evidence before the court, I was satisfied the Scheme booklet would provide full and fair disclosure to Securityholders. 31 The additional affidavit evidence filed by Winsome establishes that the Scheme booklet was dispatched in the form approved for distribution by the court. Nothing has arisen to suggest that there was not full and fair disclosure of all information that was material to the decision of Securityholders prior to them voting on the Schemes. Satisfaction of s 411(17) of the Act and ASIC's view 32 ASIC has provided a written statement to the effect that it does not object to the Schemes pursuant to s 411(17)(b) of the Act.25 This satisfies the requirements of s 411(17). Having regard to the nature of the proposed transactions, it cannot be said that the Schemes were proposed to avoid the operation of ch 6 of the Act. Public policy and oppression of minorities 33 There is no evidence before the court that the proposed Schemes (or the price spike issue referred to at [57] - [59] of the First Reasons) offend any aspect of public policy. Given the nature of the proposed Schemes, it could not be sensibly suggested that the Schemes offend public policy. Securities Act 1933 (USA) 34 At the first court hearing, senior counsel for Winsome drew my attention to the fact that if the Schemes were approved, Winsome and Li-FT intended to rely on that approval to qualify for exemption under s 3(a)(10) of the Securities Act 1933 (USA).26 This was necessary as one of the requirements for the operation of s 3(a)(10) in practice is that the proposed issuer of the securities must inform the court, whose order is to be relied on, that the issuer will rely on the court's approval in seeking the exemption. 25 Affidavit of Matthew James Nowotny-Walsh filed 11 May 2026, 'MJNW-32'. 26 Re Saracen Mineral Holdings Ltd [77] - [78]. -- 9 of 12 -- [2026] WASC 199 HILL J Page 10 35 This has become common practice in schemes of arrangement.27 36 In these circumstances, it is appropriate that I record the following: (a) I was informed of the shares which are to be offered as Scheme consideration and an independent expert report has concluded that each of the Schemes is in the best interests of securityholders. (b) The court has held a hearing to determine whether the terms of the proposed Schemes are fair to Winsome's Securityholders so as to determine whether to approve the Schemes. In this regard, as stated earlier, on an application for approval under s 411(4)(b), it is necessary for the court to consider the fairness and reasonableness of the proposed Schemes. As set out above, I have determined that each of the proposed Schemes is fair and reasonable. (c) The hearing for approval of the proposed Schemes was heard in open court. It was open to all Securityholders of Winsome to attend. Notice of the hearing was provided to all securityholders in accordance with the Orders. The date of the hearing was referred to in the Scheme booklet and the subject of an announcement by Winsome lodged with the ASX. (d) No Securityholder of Winsome gave notice of any intention to appear at the second court hearing or sought leave to appear at the second court hearing to oppose the approval of the Schemes. (e) A notation was included on the Orders that Winsome and Li-FT would rely on this court's approval of the Schemes for the purpose of qualifying for exemption from the registration requirements under s 3(a)(10) of the Securities Act 1933 (USA). The notation was included to facilitate Winsome to qualify for exemption prior to the publication of these written reasons. Should a declaration be made under s 1322(4)(a) of the Act in relation to the validity of the Option Scheme Meeting? 37 At the second court hearing, because of the irregularities associated with the starting time of the Option Scheme Meeting, Winsome sought an declaration pursuant to s 1322(4)(a) of the Act that 27 See for example Re Piedmont Lithium Ltd [No 3] [2021] WASC 173. -- 10 of 12 -- [2026] WASC 199 HILL J Page 11 neither the Option Scheme Meeting held on 5 May 2026 nor the resolution passed at the Option Scheme Meeting were invalid by reason of the plaintiff's non-compliance with the commencement time of the meeting as set out in Order 1(b) of the Orders, compliance with which was required by s 411(1)(a) of the Act. 38 Both in their written submissions and in oral submissions, Winsome contended that this error was a procedural irregularity which was automatically validated under s 1322(2) of the Act. However, out of an abundance of caution, an order was sought under s 1322(4)(a) of the Act. 39 Section 1322(2) of the Act automatically validates or cures procedural irregularity in a proceeding under the Act unless the court is of the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied by any order of the court. Pursuant to s 1322(1)(b)(ii) of the Act, a procedural irregularity specifically includes defects in notice or time. 40 In my view, the opening of the Option Scheme Meeting earlier than the time ordered by the court was a defect in or irregularity of time. 41 In this case, for two primary reasons, I accept that no substantial injustice was caused by commencement of the Option Scheme Meeting 15 minutes before the ordered time. First, when the error was drawn to the attention of the chairperson, the meeting was adjourned until 3.30 pm. The formal business of the Option Scheme Meeting was not conducted prior to this time. In these circumstances, no Optionholder lost the opportunity to participate in or vote at the Option Scheme Meeting. Second, the evidence before the court is that no Optionholder (or any other person) attended the Option Scheme Meeting at or after the time of 3.30 pm who was not already present at the meeting.28 42 Given these conclusions, I accept that the irregularity in Mr Biggins opening the Option Scheme Meeting at a time earlier than the court-ordered time was a defect that was automatically cured under s 1322(2) of the Act. 43 In any event, I was and am satisfied that it would be appropriate to make the declaration sought under s 1322(4)(a) of the Act. I accept the 28 Affidavit of Matthew James Nowotny Walsh filed 7 May 2026 [20]; Second Affidavit of Eric Roger Merven filed 7 May 2026 [16] - [18]. -- 11 of 12 -- [2026] WASC 199 HILL J Page 12 prescriptive requirements of s 1322(4)(a) were met as the proposed order was framed as a declaration which identified both the act, matter or thing which was sought to be cured as well as the contravention, each of the preconditions under s 1322(6)(a) were satisfied and no substantial injustice would be caused by the making of the declaration. Conclusion and orders 44 For these reasons, at the conclusion of the hearing on 11 May 2026, I found that the substantive and procedural requirements under s 411(4) of the Act had been satisfied and that it was appropriate to exercise my discretion to make orders approving the proposed Schemes. I also made the declaration sought under s 1322(4)(a) of the Act in relation to the Option Scheme Meeting and the resolution passed at this meeting. 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 26 MAY 2026 -- 12 of 12 --