Federal Court of Australia

VGW Holdings Limited, in the matter of VGW Holdings Limited (No 2) [2025] FCA 929

ORDERS

THE COURT ORDERS THAT:

1.    For the purposes of today's hearing, and pursuant to s 47B of the Federal Court of Australia Act 1976 (Cth), Mr Hobson is permitted to deliver oral submissions by way of video link.

2.    The interlocutory application filed on 25 July 2025 is dismissed.

3.    Pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth), the scheme of arrangement between the plaintiff and the holders of the fully paid ordinary shares in the capital of the plaintiff (Scheme), in the form contained at pages 15 - 39 of the affidavit of Carl Edward Della-Bosca affirmed on 1 August 2025, is approved.

4.    Pursuant to s 411(12) of the Corporations Act 2001 (Cth), the plaintiff is exempted from compliance with s 411(11) in respect of the Scheme.

5.    The plaintiff must lodge an office copy of these orders with the Australian Securities and Investments Commission by 4.00 pm AWST on 6 August 2025.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKSON J:

1    The plaintiff, VGW Holdings Limited, sought the Court's approval of a scheme of arrangement with its shareholders. One of those shareholders, Belleco Pty Ltd, sought leave to be heard in opposition to that approval. The application for approval was heard on 5 August 2025 together with Belleco's application for leave to be heard.

2    These reasons follow from VGW Holdings Limited, in the matter of VGW Holdings Limited [2025] FCA 715 (VGW Holdings (No 1)), which are my reasons for having made orders on 27 June 2025 convening the meeting of shareholders to consider the Scheme (Scheme Meeting Orders). Defined terms used in those reasons will also be used in these reasons.

3    On that day, after hearing submissions advanced by a director of Belleco, John Hobson, I dismissed that company's application for leave to be heard. After receiving further submissions from VGW, I made orders approving the Scheme. These are my reasons for both of those decisions.

Belleco's application for leave to be heard

4    By its interlocutory application, Belleco sought two things. The first was leave to be heard in this proceeding without becoming a party, pursuant to r 2.13 of the Federal Court (Corporations) Rules 2000 (Cth). The second was dispensation, pursuant to r 1.34 of the Federal Court Rules 2011 (Cth), from the requirement in r 4.01(2) that a corporation may only proceed in the Court by a lawyer. That dispensation was necessary because Mr Hobson, who is not a lawyer, proposed to speak on behalf of Belleco, and had prepared and sought to file a written submission purportedly on the company's behalf (Belleco Submission).

5    These two aspects of Belleco's application were inextricably linked, in that I would not give it leave to be heard if I was not also prepared to give it dispensation to proceed other than by a lawyer.

6    Both VGW and Ocean BidCo indicated that they neither consented to nor opposed the interlocutory application.

The evidentiary basis of Belleco's application

7    Belleco relied on two affidavits affirmed by Mr Hobson on 25 July 2025 and 1 August 2025 respectively. The first of these affidavits was filed in unsworn form, but it was in evidence (duly affirmed by Mr Hobson) in an annexure to an affidavit of Michael John Symons affirmed on 1 August 2025, on which VGW relied.

8    Mr Hobson's first affidavit contained evidence to the following effect:

(a)    he is a director of Belleco;

(b)    Belleco is trustee for Andromeda Partners Superannuation Fund;

(c)    Mr Hobson is authorised to make the affidavit on the Fund's behalf;

(d)    the Fund is a registered holder of 128,692 ordinary shares in VGW; and

(e)    Belleco did not have the financial resources to engage legal representation in these proceedings.

9    That last point was an assertion by Mr Hobson which, with one exception, was unsupported by any other evidence. The exception was that the affidavit annexed an internet banking screen shot showing a bank balance for Belleco as trustee of the Fund. This was of a modest amount which, by itself, would not be sufficient to engage legal representation.

10    VGW did not challenge the factual accuracy of any of this evidence, although it did submit that it did not establish incapacity on the part of Belleco to afford legal representation. Ocean BidCo added to that, by submitting that the evidence did not say anything about the financial capacity of those who might stand behind Belleco. I took these as submissions, in effect, that I should not accept as accurate the blanket assertion that Belleco does not have the financial resources to engage legal representation. Subject to that point, I accept the factual accuracy of the matters set out above.

11    As to that point, it did appear to me that the evidence Belleco adduced did not provide a satisfactory picture of its financial situation. A low bank balance is one thing, but it says nothing about what other assets Belleco might have, and how readily they could be realised.

12    For example, there is evidence before the Court that VGW has recently paid two dividends totalling $0.45 per share. Subject to the tax treatment of those dividends in Belleco's hands, which is unknown, that would have yielded cash for Belleco of $57,911.40. What has happened to that cash and why it could not have been used to fund legal representation is not apparent on the evidence. There may have been a good explanation as to why those funds were not available, but Belleco has not given any explanation.

13    Further, for all the Court knows, Belleco's VGW shares are but one of its assets. There is simply no way of knowing what other resources it might have, based on Mr Hobson's evidence. Also, counsel for Ocean BidCo was correct to say that there was no evidence as to the financial capacity of those who might stand behind Belleco.

14    I do not suggest that every applicant for dispensation from r 4.01(2) must always provide full disclosure of all its finances. But mere assertions that the company is unable to fund legal representation are insufficient: see Oakley, Inc v Franchise China Pty Ltd [2002] FCA 404 at [5] (Drumond J). And the discussion above shows that even on a cursory consideration of the evidence provided here, questions arise.

15    One further fact emerged during Mr Hobson's oral submissions, namely he confirmed that he was not the sole director of Belleco (no ASIC search of the company was in evidence). He said that there was one other director but did not seek to explain who that person was (Mr Hobson properly refrained from giving evidence from the bar table). Mr Hobson also candidly acknowledged that, given that there is another director, he could not give the Court an assurance that the position he was seeking to put on behalf of Belleco was authorised by the company as a whole.

16    The only other point that Mr Hobson added in oral submissions was to say that Belleco held its assets as trustee of a regulated superannuation fund, so that those assets were not available for the purpose of securing legal representation. But this was not supported by evidence, say, of the contents of the trust deed for the Fund, and nor was it obviously correct. If acting to oppose the approval of the scheme was a step properly taken by Belleco in the exercise of its powers and performance of its duties as trustee of the Fund, then on the face of things, it would be entitled to an indemnity out of the assets of the Fund for the legal costs of that opposition.

17    Mr Hobson's second affidavit annexed the Belleco Submission with its annexures, and said that Mr Hobson had prepared it and that he believed it to be true based on his knowledge, information and inquiries. VGW gave notice that it objected to certain parts of the Belleco Submission being admitted into evidence on the basis of that affidavit, and also that it would contend that much of the balance of the Belleco Submission should only be received as submissions.

The approach taken to whether Belleco should have had leave to be heard

18    In relation to the exercise of the related discretions to give leave to appear and to dispense from the need for legal representation, I gave significant weight in favour of Belleco's application to its position as a shareholder of a company seeking to resist court approval of a scheme of arrangement between the company and its shareholders. For this was not a case where a person who was indirectly affected by the outcome of a proceeding sought leave to be heard. Approval of the Scheme would directly affect Belleco's rights as a shareholder.

19    But that could not, of itself, justify dispensing with the need for Belleco to have legal representation. After all, r 4.01(2) must have been drafted on the assumption that many companies who wish to proceed in the Court were doing so as respondents, who were in that position because their rights would be directly affected by the outcome. So the fact that here Belleco was in a similar position, while important, was not enough by itself to justify dispensing with the rule: see Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; (2020) 280 FCR 479 (Markovic, Derrington and Anastassiou JJ) at [116(f)] (last bullet point).

20    As to the approach to be followed in deciding whether to dispense with r 4.01(2), it is not necessary to summarise all the well-established principles, which are conveniently collected in authorities such as Flightdeck at [116]-[117] and Francis (Trustee) v Oculus Accounting Pty Ltd [2021] FCA 448 at [35]-[47] (Derrington J). In general it is a discretion that is unconstrained, save by the need to exercise it judicially in the interests of the administration of justice by reference to the particular circumstances of each case. Special or exceptional circumstances are not required, but it is incumbent on the person seeking dispensation to show sufficient reason as to why the general prohibition should not apply to them.

21    In the present context it is, however, worth identifying the rationale behind that general prohibition. In Flightdeck at [116(a)] the Full Court said:

The starting position is that r 4.01 prohibits a corporation from appearing in this Court otherwise than by a qualified legal practitioner. The foundation for the rule is that persons ought not to be represented before the superior courts other than by legally qualified representatives who possess the skill to conduct litigation and whom are bound by strict obligations to the court itself: see, eg, Tritonia Ltd v Equity and Law Life Assurance Society [1943] AC 584. The importance of the practitioner's obligations ought not to be underestimated. The operation of the court system is dependent upon the assumed performance of the duties of candour and honesty imposed upon members of the legal profession: Mulhern's Properties Inc v Bank of Queensland Ltd [2013] FCA 401 [33] citing Damjanovic v Maley (2002) 55 NSWLR 149, 163 [76]-[77].

22    Another reason for the rule is 'the importance of ensuring that those who speak for it (the corporation not being a natural person able to speak for itself), have authority to do so and may thereby be subjected to orders of the court, including as to the costs of litigation': Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104 at 105-106 (Kirby P); see also Samuels JA at 110. This can be important in relation to small companies where 'there is not always unanimity of viewpoint': Re GJ Mannix Ltd [1984] 1 NZLR 309 at 315 (McMullin J, although here the Court does not even know whether Belleco is a small company). This is not a mere technicality; it is a matter of substance: Bay Marine at 113 (Mahoney JA).

23    So, save in relation to matters of procedure or practice or not of great complexity, the rule requiring corporations to be represented by a lawyer has been 'consistently and strictly applied': Bay Marine at 110 (Samuels JA). At 111 Samuels JA said that the power to dispense with it should be exercised 'only with the most meticulous care'.

24    It would be a mistake to think that this somehow discriminates against corporations as compared to natural persons. As explained in Hubbard Association of Scientologists International v Anderson [1971] VR 788 at 792 (overturned on appeal, but not on this point), the underlying rule is while an individual may appear in person as of right, if they seek to appear by an agent, the agent must be in a class of persons who have a right of audience. In the case of superior courts, that is generally confined to legal practitioners.

25    So as for a natural person, generally speaking where a corporation wishes to appear by an agent, that agent must be a lawyer. The difference, of course, is that a corporation cannot speak for itself and so must appoint an agent. But that is a disability which those who choose to carry on business through corporate structures inevitably acquire, at the same time as they enjoy advantages from those structures: see Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 at [14] (French J).

Why Belleco's application was refused

26    In light of the above facts and principles, I exercised the discretion to refuse Belleco leave to be heard, and to refuse dispensation from the need to be represented by a lawyer, based on the following considerations:

(1)    As already explained, were it not for the lack of legal representation, I would have been disposed to grant leave to be heard to Belleco as a shareholder in VGW whose rights will be directly affected by approval of the Scheme.

(2)    But that by itself was not enough. Belleco's decision not to be represented by a lawyer was a significant obstacle in the way. It could only be surmounted if dispensation from r 4.01(2) were granted.

(3)    Belleco had failed to establish two important threshold matters in that regard: that it, or those who stand behind it, could not afford legal representation; and that Mr Hobson was properly authorised to speak for the company.

(4)    In relation to the first of these, for reasons set out above I was not satisfied that Belleco was unable to afford a lawyer, as distinct from Belleco having decided that incurring the likely legal costs was not justified by the likely benefits. They are not the same thing.

(5)    In relation to the second of these, Mr Hobson's candid acknowledgement of the position speaks for itself.

(6)    Another matter weighing against the grant of leave was that, having read the Belleco Submission, I took the view that large parts of it reflected a misapprehension of the role of the Court in deciding whether to approve a Scheme. It is not necessary to go into detail. One example was that much of the Belleco Submission sought to raise questions about the correctness of the valuation of VGW shares on which Kroll's independent expert opinion was based so that it was said that 'One possibility the Court may consider is whether the valuation cross-check process lacked sufficient rigour'. With respect, it is unlikely that the Court's supervisory role in considering approval of a scheme of arrangement (see below at [33]) encompasses a detailed inquiry into the validity of the valuation methodology used by the independent expert. And even if it did, it could only proceed within the framework set by our adversarial system whereby, inevitably, properly qualified expert evidence would need to be adduced and submissions advanced, leading to findings of fact. Many of the arguments contained in the Belleco Submission were unsupported by evidence, and so unlikely to assist the Court.

(7)    The Belleco Submission also, with respect, reflected a misapprehension of the proper role of a party seeking to be heard. Again, one example will suffice: the submission raised concerns about potential conflicts of interest associated with the transaction. But serious allegations of that kind should only be made if admissible evidence provides a proper basis for them. And it is not appropriate for a party or person wishing to be heard to merely raise questions about such serious matters: either they are advocating (on a proper evidentiary basis) that the Court should make findings that conflicts of interest have tainted the process, or they are not.

(8)    I do not mean to be critical of Mr Hobson, who had clearly put a lot of work into a detailed submission which forcefully articulated sincerely-held views. But the above misapprehensions which the Belleco Submission revealed suggested that, on balance, the Court was unlikely to be assisted if Belleco were given leave to be heard without legal representation. That conclusion can be a weighty factor in refusing to exercise the discretion: Flightdeck at [116(f)] (third bullet point) and the cases cited there. It also points back to the importance of the rationale for r 4.01(2) that is discussed above.

27    For those reasons, most importantly the ones at (3)-(5) above, I was not prepared to dispense from compliance with r 4.01(2), and so dismissed Belleco's application for leave to be heard. That did not mean, however, that Belleco was without a voice in the process. It was able to express its concerns to ASIC, and was also free to raise them with its fellow shareholders at the meeting that was held on 1 August 2025 pursuant to the Scheme Meeting Orders (Scheme Meeting). ASIC was notified of Belleco’s objections through VGW’s solicitors, but there was no evidence that either Belleco or ASIC engaged with each other directly. As for the Scheme Meeting, the evidence of Mr Symons, who chaired it, was that no one present raised any comments or questions when he invited them to do so.

Why the Scheme was approved

28    VGW applies for the approval of the Scheme following a favourable vote by members at the Scheme Meeting.

29    If implemented, the Scheme will have the effect that VGW will become a wholly owned subsidiary of Ocean BidCo, which is incorporated in Guernsey. Shareholders in VGW will receive cash consideration for their shares, subject to any election they make to receive scrip consideration. The scrip consideration will be in the form of one share in Ocean BidCo for every one share in VGW (subject to a minimum of 2,000 shares).

30    Most of the shares in VGW are owned or controlled by Laurence Escalante and persons associated with him. These LEO Shareholders will elect to take scrip consideration. The outcome will be that Ocean Bidco, and through it VGW, will be controlled by the LEO Shareholders. They will be joined on Ocean BidCo's share register by such other VGW shareholders as elect to take the scrip consideration.

31    The balance of the current shareholders in VGW will be bought out with cash. Some of that cash will be provided by loan from VGW to a wholly owned subsidiary of Ocean BidCo. This meant that a general meeting of shareholders in VGW to approve financial assistance was required. That meeting was held immediately before the Scheme Meeting, and the shareholder resolutions for that approval were passed.

Materials relied on

32    In addition to the evidence adduced at the first hearing, VGW relied on the following affidavits:

(a)    affidavit of Carl Edward Della-Bosca affirmed on 1 August 2025;

(b)    affidavit of Michael John Symons affirmed on 1 August 2025;

(c)    affidavit of Toby Michael Newnes sworn on 1 August 2025;

(d)    affidavit of Michael John Symons affirmed on 4 August 2025; and

(e)    affidavit of Carl Edward Della-Bosca affirmed on 4 August 2025.

Requirements for approval of a scheme of arrangement

33    It is convenient to repeat the summary of principles given in Essential Metals Limited, in the matter of Essential Metals Limited (No 2) [2023] FCA 1306 at [6]-[11]:

[6]    A court's power to approve a scheme is derived from s 411(4)(b) of the Corporations Act: Re Hibernian Friendly Society (NSW) Limited [2002] FCA 1139 at [8] (Conti J). Section 411(4) of the Act provides for a scheme of arrangement to be binding on, relevantly, members of a company with share capital if, at a meeting convened in accordance with an order of the Court, a resolution in favour of the scheme is passed by a majority in number of members present and voting (unless the Court otherwise orders), and by 75% of the votes cast on the resolution, and the scheme is approved by the Court.

[7]    The Court has a discretion whether to approve a scheme, and it is not bound to approve it merely because it has previously made orders convening a meeting to approve the scheme: Re Seven Network Limited (No 3) [2010] FCA 400 at [31] (Jacobson J). The fundamental issue informing the exercise of the discretion is whether the proposal is fair and reasonable, in the sense that an intelligent and honest shareholder, who is a member of the relevant class, and acting alone in respect of their interests as shareholder, might approve it. The jurisdiction is supervisory; the Court is concerned to be satisfied that there has been an absence of oppression and that the compromise or arrangement is one that is capable of being accepted: see Re NRMA Limited (No 2) [2000] NSWSC 408 at [22] (Santow J) approved in Fowler v Lindholm [2009] FCAFC 125; (2009) 178 FCR 563 at [79] (Emmett, Gordon and Jagot JJ).

[8]    It has been said that the shareholders' vote in favour of a scheme is evidence of its inherent fairness; if a majority of the shareholders have approved the scheme, it is unlikely that the scheme would be unreasonable: Re Amcor Limited (No 2) [2019] FCA 842 at [11] (Beach J). In Re Seven Network at [32], Jacobson J said:

It has been said on many occasions that the court will usually approach the task upon the basis that the members are better judges of what is in their commercial interests than the court. Santow J said in Re NRMA Ltd (No 2) at [23], citing earlier authority:

After all, it is their (the members') money which is at stake.

[9]    The following additional matters have been held to be relevant to the exercise of the statutory discretion (Re Seven Network at [35]-[40]):

(a)    whether the shareholders have voted in good faith and not for an improper purpose;

(b)    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;

(c)    whether there has been full and fair disclosure of all information material to the shareholders' decision;

(d)    whether minority shareholders would be oppressed by the scheme; and

(e)    whether the scheme offends public policy.

[10]    Other matters of which the Court must be satisfied when deciding whether to approve a scheme include whether:

(a)    there has been compliance with the orders of the Court convening the scheme meeting;

(b)    the resolution to approve the scheme has been passed by the requisite majorities;

(c)    all conditions to which the scheme is subject (other than court approval and lodgement of the Court's orders with the Australian Securities and Investments Commission (ASIC)) have been met or waived;

(d)    all other statutory requirements have been satisfied; and

(e)    the Court is satisfied under s 411(17) that the scheme has not been proposed to avoid Chapter 6 of the Corporations Act (regarding takeovers), or that the company has a statement from ASIC that it has no objection to the scheme.

See Re APN Outdoor Group Limited (No 2) [2018] FCA 1633 at [5] (Markovic J); Chevron (TAPL) Pty Ltd v Chevron Australia Pty Ltd, in the matter of Chevron (TAPL) Pty Ltd (No 2) [2022] FCA 381 at [9] (Banks-Smith J).

[11]    In general, it is not the court's function to override the views of the shareholders, but the court is not a mere rubber stamp and will look at the arrangement to ensure that it is a reasonable one: Re Wesfarmers (No 2) [2018] WASC 357 at [15] (Vaughan J). The court is heavily reliant on counsel to bring to its attention those features of the scheme that require attention: Re Seven Network at [42].

Matters of procedure and statutory compliance

34    I turn first to the matters of procedure and statutory compliance listed in Essential Metals at [10].

35    There was evidence before the Court in the affidavits set out above which satisfied me that, in accordance with the Scheme Meeting Orders:

(a)    VGW's solicitors provided ASIC with a copy of the Scheme Booklet substantially in the form approved by the Court, and a sealed copy of the Scheme Meeting Orders, and the Scheme Booklet was registered with ASIC;

(b)    notice of the Scheme Meeting, the Scheme Booklet and other materials required to be distributed to shareholders by the Scheme Meeting Orders were dispatched no later than 2 July 2025, that being the time required for dispatch by the orders (problems with delivery to a very small number of shareholders where emails bounced back were rectified by delivery of hard copies no later than 7 July 2025); and

(c)    notice of the second scheme hearing was published on VGW's website on 29 July 2025.

36    VGW drew my attention to one matter concerning shareholder communications in the period leading up to the Scheme Meeting. As broadly foreshadowed in VGW Holdings (No 1) (at [60]), VGW established a shareholder information line, with scripts for inbound and outbound calls which were approved by VGW's solicitors for consistency with the Scheme Booklet. Mr Symons' evidence is that the shareholder communications were conducted accordingly and that no matter arose in the course of them which called for further consideration.

37    There was, however, one occasion where a shareholder asked some questions directly by email to Mr Escalante, who referred him to Elliott Schutte, Commercial Director of LEO, for an answer. The questions concerned 'drag rights' under the proposed shareholders' deed for Ocean BidCo. Mr Schutte gave a detailed reply to the shareholder. The email chain was in evidence and I was satisfied that Mr Schutte's reply did not materially depart from information on the topic that could be found in the Scheme Booklet.

38    The Scheme Meeting took place on 1 August 2025. As has been mentioned, the general meeting to approve the provision of the financial assistance (and of the related party transaction involved) was held immediately beforehand. The approval of shareholders present in person or by proxy was obtained, with over 91% of the votes cast being in favour of each resolution. The LEO Shareholders did not vote on the resolutions. This approval was a condition precedent of the Scheme.

39    There was also evidence establishing that the Scheme Meeting was conducted in accordance with the Scheme Meeting Orders. The resolution to approve the Scheme was passed. Once again, the LEO Shareholders did not vote on it. The resolution was approved by 91.31% of eligible votes cast, with the balance of 8.69% voting against it. The requirement in s 411(4)(a)(ii)(B) of the Corporations Act 2001 (Cth) that the resolution be passed by 75% or more of votes cast was thus met.

40    By head count, those voting in favour of the resolution to approve the Scheme were 85.04% of shareholders present and voting (in person or by proxy). This was approximately 82% of the shares that were eligible to vote and approximately 54% of eligible VGW shareholders. These numbers are comfortably above any threshold of shareholder participation that might call for consideration of the level of turnout at the Scheme Meeting: see e.g. Re Bardoc Gold Ltd; Ex Parte Bardoc Gold Ltd (No 2) [2022] WASC 113 at [25] (fn 16) (Strk J).

41    As already mentioned, the evidence in Mr Symons' affidavit affirmed on 4 August 2025 is that during both the general meeting of shareholders to approve financial assistance and the meeting of shareholders to approve the scheme, he asked those present whether they had any comments on the resolutions that were to be put to shareholders. No person made any comment or asked any questions (the evidence does not reveal whether a representative of Belleco was present).

42    At the second hearing, VGW tendered certificates establishing that all conditions precedent to the Scheme, other than Court approval, had been satisfied or waived.

43    A letter from ASIC indicating that it had no objection to the Scheme, which is effectively required by s 411(17) of the Corporations Act, was in evidence at the second hearing.

The exercise of the discretion

44    On the principles set out above, it weighed heavily in favour of Court approval of the Scheme that the necessary resolution was passed by a vote of non-LEO shareholders, substantially above the 75% majority of votes required by the Corporations Act, and on the basis of a healthy turnout.

45    The main issue in relation to the basis of that vote was the independent expert's opinion. It will be recalled that Kroll's view was that, on the basis of one form of consideration, cash, the Scheme was fair and reasonable, but on the basis of another form, scrip, it was unlikely to be fair and reasonable. These matters were canvassed in VGW Holdings (No 1) at [11]-[12] and [43]-[53].

46    As explained there, I consider that this issue had been adequately disclosed to shareholders and that, since the 'fair and reasonable' consideration was the default consideration, the proposal was one that an intelligent and honest shareholder (not being a LEO Shareholder) might approve. Even on the Scheme becoming binding, each shareholder will need to actively elect to take the scrip consideration, and will be doing so with the benefit of adequate disclosure of the risks involved, as found in the Scheme Booklet.

47    More broadly, the Scheme was proposed for intelligible commercial purposes, which included to give non-LEO shareholders the opportunity to exit their shareholdings in return for cash, while retaining for them the option to continue to hold equity in VGW's business via the Guernsey vehicle, Ocean BidCo. The different regulatory regime in Guernsey, and the likelihood that lesser disclosure will be the outcome of the move, were also disclosed.

48    In effect, then, minority shareholders were made aware that the Scheme would present them with the choice of remaining a shareholder via Ocean BidCo on that basis, or cashing out at $5.05 per share (less dividends). That choice was presented against a background of a rapidly changing regulatory environment for VGW's gaming business in the United States. The minority shareholders decided by a substantial margin to approve the Scheme, and so to approve being presented with that choice.

49    There is nothing in the evidence to suggest that this vote was made other than in good faith and for a proper purpose. The evidence did not present anything in the way of inadequate disclosure, or oppression, that would provide good reason to overrule that decision, by withholding Court approval. I accept the summary of what has occurred which is found at paragraph 35 of VGW's written submissions for the second hearing (footnoted to Re Edge Minerals Ltd; Ex Parte Edge Minerals Ltd [No 2] [2022] WASC 440 at [76] (Strk J)):

there is no oppression in circumstances where VGW Shareholders received full and fair disclosure; where they had sufficient time to consider the Scheme Booklet and make an informed decision (and a high number of them turned out to vote); where they were afforded ordinary procedural rights in respect of the Scheme Meeting; where they are offered cash consideration which an independent expert has determined was fair and reasonable and provided with the expert's views on the alternative offer of scrip consideration; and where the transaction they have approved is a commonly undertaken form of control transaction.

50    I did not consider that the Scheme offended public policy. VGW Holdings (No 1) at [36]-[38] effectively explains why the apparent intention of the proponents of the Scheme to move the domicile of the group to a jurisdiction that may have lesser disclosure requirements than Australia does not so offend.

Orders made

51    It was for the reasons above that the orders of 5 August 2025 were made.

Associate:

Dated:    8 August 2025