Federal Court of Australia

Platinum Asia Investments Limited, in the matter of Platinum Asia Investments Limited (No 2) [2025] FCA 974

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to ss 411(4)(b) and 411(6) of the Corporations Act 2001 (Cth), the scheme of arrangement between the plaintiff and its members which was agreed to by the members at a meeting held on 12 August 2025, the terms of which are set out in Tab 33 of Exhibit 1 on this application (Scheme), is approved.

2.    The plaintiff lodge with ASIC a copy of the approved Scheme at the time of lodging a copy of these Orders.

3.    Pursuant to s 411(12) of the Act, the plaintiff be exempted from compliance with s 411(11) of the Act in relation to order 1.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

1    The second Court hearing in relation to a proposed scheme of arrangement involving the acquisition of all of the shares in the plaintiff, Platinum Asia Investments Limited (PAI) took place earlier today (Second Hearing). The first Court hearing was held on 7 July 2025 (First Hearing). I made orders convening a meeting of PAI’s shareholders (PAI Scheme Meeting) for the purpose of considering, and, if thought fit, approving a scheme of arrangement proposed to be made between PAI and its shareholders (PAI Scheme) and ancillary orders: Platinum Asia Investments Limited, in the matter of Platinum Asia Investments Limited [2025] FCA 746. In these reasons, I assume familiarity with my reasons in Platinum Asia. I will use the terms defined therein.

2    At the conclusion of the hearing today I made orders pursuant to ss 411(4)(b) and 411(6) of the Corporations Act 2001 (Cth) approving the PAI Scheme with certain alterations which I will come to below. These are my reasons for doing so.

3    The proceeding was called outside the courtroom at the commencement of the hearing. There were no appearances by any interested party or by Australian Securities and Investments Commission (ASIC) and none were expected. Notice was given of the Second Hearing and no notices of intention to appear were received by PAI in advance of the hearing.

4    A summary of the PAI Scheme and the Independent Expert’s Report as to the fairness and reasonableness of the PAI Scheme is set out in Platinum Asia at [44] to [61]. It is unnecessary to add to that exposition of the PAI Scheme in these reasons.

5    The PAI Scheme Meeting was held on 12 August 2025. It was chaired by Margaret Towers, the chair of PAI, and the resolution to approve the PAI Scheme was passed by the requisite statutory majorities: s 411(4)(a) of the Act. The PAI Scheme resolution was approved by 98.49% of the total votes cast and by 94.96% of shareholders present and voting (including by proxy).

6    The principles to be applied in the exercise of the Court’s discretion to approve a scheme are well established and need not be rehearsed in these reasons. A very recent statement of the applicable principles is found in Envirosuite Limited, in the matter of Envirosuite Limited (No 2) [2025] FCA 941 at [9]-[11] (Moshinsky J). An illustration of the application of the principles at the second Court hearing of a scheme that is conceptually similar to the PAI Scheme is found in WCM Global Long Short Limited, in the matter of WCM Global Long Short Limited (No 2) [2022] FCA 1552 at [6]-[10] (Markovic J). I adopt and apply those principles.

7    PAI relied on the following evidence:

(1)    an affidavit of Ms Towers, chair of PAI, affirmed on 14 August 2025, together with voluminous annexures which were received as Exhibit 1 on this application;

(2)    an affidavit of Regi Harbron, the Client Relationship Manager employed by MUFG Corporate Markets, affirmed on 14 August 2025; and

(3)    an affidavit of Ms Saxon Naulls-Johnstone, solicitor for PAI, affirmed on 15 August 2025.

8    The evidence relied on by PAI established that all formal and procedural matters had been satisfied, and each such matter was cross-referenced into the evidence in the outline of written submissions relied on by PAI, a copy of which is on the Court file. The Court thus has a discretion to approve the PAI Scheme pursuant to s 411(4)(b) of the Act.

9    The evidence included a written confirmation in the usual form that ASIC has no objection to the PAI Scheme and there is therefore no impediment to the Court approving the PAI Scheme which arises under s 411(17)(b) of the Act.

10    Also in evidence before me were the two conditions precedent certificates required by the terms of the PAI Scheme and the PAI Scheme Implementation Deed. The first conditions precedent certificate is executed by PAI. The second is executed by PIM in its respective capacities as the responsible entity of the PA Fund and the PA Underlying Fund and in its personal capacity.

11    On an application for approval such as this, the Court is entitled to assume that its orders have been complied with, except to the extent that evidence is given as to any areas of non-compliance. Similarly, the Court is entitled to assume, in the absence of evidence to the contrary, that the explanatory statement was registered with ASIC after the first Court hearing and before dispatch to members, and that the orders made at the first Court hearing have been lodged with ASIC: see Vita Group Ltd, in the matter of Vita Group Ltd (No 2) [2023] FCA 623 at [4] (Jackman J). On this application, those matters were specifically addressed in the evidence relied upon.

12    Having regard to the ex parte nature of the application (as to which see Re Permanent Trustee Company Limited [2002] NSWSC 1177 at [7] (Barrett J (as his Honour then was)), PAI raised the following matters for the Court’s attention, which I will address briefly.

13    The first matter raised was in relation to voter turnout. Justice Jackman has observed that provided the statutory majorities required by s 411(4) of the Act are satisfied, it is irrelevant whether the voter turnout was high, low or middling: Vita Group at [6]. An aberrantly low voter turnout may be relevant if it indicates that something has or may have gone awry in the dispatch of the notice of the scheme meeting and the explanatory statement: Re Saracen Mineral Holdings Ltd (No 2) [2021] WASC 32 at [44]-[47] (Hill J). Here, the evidence was that voter turnout was about 9.7% as a percentage of total members and about 45% of total voting shares. In relative terms, the percentage of total members represents about twice the turnout at the PAI’s last two annual general meetings. The notification process is exhaustively addressed in the evidence. There was nothing to suggest that the procedure used to convene the PAI Scheme Meeting had miscarried in a way that adversely impacted voter turnout.

14    The second matter raised was that the PAI Scheme Booklet, in the form of Exhibit 2 which was tendered and approved at the First Hearing, changed in form between the date of the First Hearing and the date it was registered by ASIC. The approved form of the PAI Scheme Booklet identified a change of control risk in respect of the investment manager, PIM, stating that “at the date of the Scheme Booklet, no formal documentation had been signed”. After the First Hearing and before 11 July 2025 (being the date of dispatch of the revised PAI Scheme Booklet), formal documentation was signed. ASIC agreed to register the revised PAI Scheme Booklet on 11 July 2025 on the basis the amendments were minor and immaterial and having regard to the terms of the orders made at the First Hearing. Dispatch of the revised PAI Scheme Booklet in the form registered with ASIC occurred on 11 July 2025. The orders made at the First Hearing specifically provided for the registered form of the PAI Scheme Booklet to be substantially in the form of Exhibit 2. On the same day as the PAI Scheme Booklet was dispatched, PAI announced to the Australian Securities Exchange (ASX) that PIM’s holding company had signed transaction documents in respect of a potential merger in an ASX announcement also dated 11 July 2025. I was satisfied that the revised version of the PAI Scheme Booklet that was distributed was sufficiently and substantially in the form of Exhibit 2. I further note that the announcement to the ASX on 11 July 2025 contextualised and updated the position in relation to change in control risk from that which was described as at 7 July 2025 in the revised PAI Scheme Booklet.

15    The third matter raised was in relation to communications with shareholders. After the First Hearing, PAI decided to engage MUFG Corporate Markets IR Pty Ltd to provide proxy solicitation services. A copy of the outbound call script that MUFG’s representatives used to undertake the proxy solicitation campaign is in evidence. Before the campaign commenced, the call script was reviewed by ASIC and the amendments suggested by ASIC were incorporated. Notwithstanding the terms of the Schemes of Arrangement Practice Note (GPN-SOA) at [3(k)], PAI did not communicate with the Court in relation to its decision to implement a proxy solicitation campaign. There is, as the Practice Note recognises, a risk in the approach taken by PAI, in that difficulties may arise at the second Court hearing. Fortunately for PAI, that risk did not manifest.

16    Ms Towers deposed that based on her enquiries, she believes there were no material deviations from the outgoing call script during the conduct of the campaign. She similarly deposes in relation to the incoming call script which was before the Court at the First Hearing. Having reviewed the outgoing call script, I was satisfied that the content of shareholder communications that have been undertaken have not undermined the integrity of the scheme process: OreCorp Limited, in the matter of OreCorp Limited [2023] FCA 1359 at [19]-[22] (Colvin J) citing In the matter of InvoCare Limited [2023] NSWSC 1180 at [25]-[26] (Black J).

17    The fourth matter raised was that PAI seeks to make a number of amendments to the PAI Scheme that will be the subject of the Court’s approval. In doing so, PAI relies on s 411(6) of the Act. The principles in relation to exercise of the power under s 411(6) of the Act are identified by Gyles J in Re Investorinfo Limited [2005] FCA 1848; (2006) 24 ACLC 44 at 45-46 [6]-[7].

18    I have reviewed the amendments. They fit the description of being minor or technical, and in the main, address matters that should have been picked up and corrected before the First Hearing. The amendments do not recast the critical elements of the PAI Scheme and do not really affect the details of the PAI Scheme. It was clear from the evidence that the PAI shareholders who voted on the PAI Scheme Resolution support the PAI Scheme proposal, and there is no reason why the PAI Scheme should not be amended in the confined way identified to address technicalities which have been identified in the drafting of the PAI Scheme. I have made the order as sought under s 411(6) of the Act.

19    I was satisfied that the Court should exercise its discretion to approve the PAI Scheme on the basis that it is fair and reasonable so that an intelligent and honest shareholder, properly informed and acting alone, might approve it. There was overwhelming support for the PAI Scheme reflected in the voting results. Proof of the relevant statutory majorities establishes that prima facie the PAI Scheme is fair. The conclusion as to fairness was reinforced by: the recommendation from PAI’s independent directors that members vote in favour; the fact that each of the PAI Independent Directors stated their intention to vote the shares held or controlled by them in favour of the PAI Scheme; and the opinions expressed in the Independent Expert’s Report. There was no application to oppose the orders approving the PAI Scheme, and no evidence suggesting any oppression in the conduct of the PAI Scheme Meeting.

20    For these reasons, I made orders substantially in accordance with the orders proposed by PAI.

Associate:

Dated:    15 August 2025