FEDERAL COURT OF AUSTRALIA

Amaero Ltd, in the matter of Amaero Ltd (No 2) [2026] FCA 736

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 411(4)(b) of the Corporations Act 2001 (Cth), the scheme of arrangement between the Plaintiff and its shareholders in the form set out in Annexure C to the Plaintiff’s Scheme Booklet, a copy of which is Exhibit 2 in these proceedings, be approved.

2.    Pursuant to section 411(4)(b) of the Corporations Act, the scheme of arrangement between the Plaintiff and its option holders in the form set out in Annexure D to the Plaintiff’s Scheme Booklet, a copy of which is Exhibit 2 in these proceedings, be approved.

3.    Pursuant to section 411(12) of the Corporations Act, the Plaintiff be exempted from compliance with section 411(11) of the Corporations Act in relation to the schemes approved in Orders 1 and 2 above.

4.    These orders be entered forthwith.

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

REASONS FOR JUDGMENT

OWENS J:

1 On 7 May 2026 I made orders for the convening of a meeting of Amaero Ltd’s shareholders, and a meeting of its option holders, for the purpose of considering proposed schemes of arrangement: Amaero Ltd, in the matter of Amaero Ltd [2026] FCA 596.

2 The scheme meetings were held on 5 June 2026 and the shareholders and option holders voted in favour of their respective schemes. At the second Court hearing in this matter on 10 June 2026, Amaero sought, and I made, orders pursuant to section 411(4)(b) of the Corporations Act 2001 (Cth) approving the schemes. These are my reasons for doing so.

THE SCHEMES

3 A description of the schemes and relevant background is set out in Amaero Ltd at [1]-[12].

4 In summary, the schemes provide for the re-domiciliation of the Amaero corporate group to the United States of America, by the superimposition of a new ultimate holding company incorporated in the State of Delaware (Amaero US HoldCo). Under the schemes, all issued shares and options in Amaero will be transferred to Amaero US HoldCo. In return, Amaero shareholders will receive one Amaero US HoldCo CDI, representing a beneficial interest in 1/40th of an Amaero US HoldCo share. Amaero option holders will receive one Amaero US HoldCo option, the exercise of which entitles the holder to one Amaero US HoldCo CDI. Because the number of shares to be issued by Amaero US HoldCo will be 1/40th of the number of shares presently on issue by Amaero, the economic interest of Amaero shareholders and option holders in relation to the Amaero corporate group will not change.

THE EVIDENCE

5 In addition to the evidence relied upon at the first Court hearing, Amaero read and relied upon:

(a)    A second affidavit of Brett Allen Paduch, affirmed 8 June 2026, including Exhibit BAP-2.

(b)    A third affidavit of Sarah Louise Roper, affirmed 9 June 2026, including Exhibit SLR-3.

(c)    A certificate executed as a deed poll by Amaero and Amaero US HoldCo dated 10 June 2026 certifying that each of the conditions precedent in clause 3.1 and 3.2 of the Scheme Implementation Deed, clause 3.1 of the Share Scheme of Arrangement and clause 3.1 of the Option Scheme of Arrangement (other than those relating to Court approvals) has been satisfied or waived in accordance with the relevant terms. I admitted this as Exhibit 3 in the proceedings.

6 Mr Paduch gave evidence:

(a)    confirming that the orders made on 7 May 2026, a completed ASIC Form No. 105 and the scheme booklet were lodged with ASIC on 7 May 2026;

(b)    confirming that the scheme booklet lodged with ASIC was the same version referred to in the orders made on 7 May 2026;

(c)    confirming the dispatch of the scheme booklet to shareholders and option holders in accordance with the orders made on 7 May 2026;

(d)    describing the receipt of proxy votes;

(e)    describing communications with shareholders and option holders, including a proxy solicitation campaign that was conducted on 2 June 2026 in advance of the proxy voting deadline of 10:00am on 3 June 2026;

(f)    describing Amaero’s announcements to the market relating to the schemes, including publication of notice of the second court hearing;

(g)    confirming the conduct, attendance and outcome of the scheme meetings (including the percentage of turnout and votes cast in comparison to annual general meetings and an extraordinary general meeting in 2024 and 2025);

(h)    providing an update in relation to the composition of Amaero’s board of directors; and

(i)    confirming that no complaints or objections to the schemes have been received.

7 Ms Roper’s evidence confirms that the orders were lodged and the scheme booklet was registered with ASIC on 7 May 2026. Exhibit SLR-3 also contains various ASIC and ASX approvals that were sought and granted.

GOVERNING PRINCIPLES

8 Section 411(4) of the Corporations Act provides that a scheme of arrangement is binding on members or creditors and the plaintiff company if:

(a)    at a meeting of members or creditors, it is passed by the specified majorities; and

(b)    it is approved by order of the Court.

9 On an application to approve a scheme, the Court must ensure that all statutory and procedural requirements in relation to the convening and conduct of the meeting have been observed: Quickstep Holdings Limited, in the matter of Quickstep Holdings Limited (No 2) [2025] FCA 397 at [17] (O’Callaghan J). This requires the Court to conclude that the meeting was properly convened and held in accordance with the convening orders, that the resolution to agree to the scheme was duly passed, and that all relevant requirements of the Corporations Act and the Federal Court (Corporations) Rules 2000 (Cth) have been complied with. Once these matters have been established, the Court has a discretion to approve the scheme pursuant to section 411(4)(b) of the Corporations Act.

10 In approving a scheme of arrangement, the Court is exercising a supervisory jurisdiction. The Court is not bound to approve the proposed scheme merely because it previously made orders for the convening of a meeting or because the statutory majorities were achieved: Crown Resorts Limited, in the matter of Crown Resorts Limited (No 2) [2022] FCA 710 at [11] (Anderson J). That said, as Beach J stated in Amcor Limited, in the matter of Amcor Limited (No 2) [2019] FCA 842 at [7]:

… shareholders voting collectively at the Scheme meeting are better judges than [the Court] of what is to their commercial advantage and in their interests and accordingly, absent good reason, [the Court] should give effect to their intentions.

11 The matters the Court takes into account on an application for approval under section 411(4)(b) are well known and understood. They include the following (see Quickstep Holdings at [20]):

(a)    whether the orders of the Court convening the scheme meeting were complied with;

(b)    whether the resolution to approve the scheme was passed by the requisite majorities, and whether other statutory requirements have been satisfied;

(c)    whether all conditions to which the scheme is subject (other than Court approval and lodgement of the Court’s orders with ASIC) have been met or waived;

(d)    whether the scheme is fair and reasonable so that an intelligent and honest shareholder or creditor, properly informed and acting alone, might approve it;

(e)    whether there was full and fair disclosure to shareholders or creditors of all information material to the decision whether to vote for or against the scheme;

(f)    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; and

(g)    whether, under section 411(17) of the Corporations Act, the Court is satisfied that the scheme has not been proposed to avoid Chapter 6 of the Corporations Act or the plaintiff has a statement from ASIC that it has no objection to the scheme.

12 The following matters may also be added to the above list:

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

(b)    minority shareholders would not be oppressed by the scheme; and

(c) the scheme does not offend public policy.

See Envirosuite Limited, in the matter of Envirosuite Limited (No 2) [2025] FCA 941 at [11] (Moshinsky J); QV Equities Limited, in the matter of QV Equities Limited (No 2) [2024] FCA 727 at [12]-[14] (Halley J); and Crown Resorts at [13]-[14] (Anderson J).

13 Having regard to those principles, I am satisfied that it is appropriate to approve the schemes in the present case.

14 Mr Jones SC provided helpful written and oral submissions. I address the relevant matters arising from his submissions below.

STATUTORY AND PROCEDURAL REQUIREMENTS

Registration of Scheme Booklet and lodgement of orders with ASIC

15 On 7 May 2026, the scheme booklet was registered with ASIC in accordance with section 412(6) of the Corporations Act (and order 6 of the orders made on 7 May 2026), and a copy of the orders dated 7 May 2026 was lodged with ASIC as required by rule 3.5(b) of the Corporations Rules.

Despatch of material to shareholders and option holders

16 Mr Paduch’s evidence established that the scheme booklet and other necessary material was despatched to shareholders and option holders in accordance with orders 4 and 5 of the orders made on 7 May 2026.

17 Mr Paduch’s evidence also described the process that was followed when six ‘bounce back’ notifications were received in response to the email broadcast to shareholders, one ‘bounce back’ was received in relation to the email broadcast to option holders, and typographical errors were identified in the email addresses for two option holders. In the case of the ‘bounce back’ notifications, hardcopy scheme material packs were sent via ordinary post, and with respect to the typographical errors, the email broadcast was re-sent to corrected email addresses.

18 An email reminder was sent to all shareholders and option holders. The only changes to the emails and letters already sent was adding the word “Reminder” and including the following: “This is a reminder email. If you have already voted for the Share/Option Scheme/Extraordinary General Meeting, please disregard this email”.

19 Mr Paduch’s evidence also noted that, in response to the information that less than 2.5% of Amaero’s shareholders had submitted proxy votes as at 28 May 2026, on 1 June 2026, Amaero instructed its solicitors to arrange an outbound proxy solicitation campaign to be conducted on 2 June 2026, ahead of the proxy voting deadline of 10:00am on 3 June 2026. A notification that this campaign was to occur (without seeking the Court’s approval of it) was provided to my chambers on 1 June 2026.

20 The campaign involved telephoning Amaero’s top 500 shareholders who had not yet voted to encourage them to submit a proxy vote. Mr Paduch’s evidence establishes that 798 calls were made, successfully reaching 108 shareholders (representing 69,970,470 shares). Counsel at the hearing noted that the information provided during this campaign was consistent with the scheme booklet, and I am satisfied that that is so. Counsel also clarified that while the aspiration had been to call 500 shareholders, only 324 separate members were called.

Scheme meetings

21 Mr Paduch confirmed that the share scheme meeting took place at 10:00am on 5 June 2026 and the option scheme meeting took place at 10:30am on 5 June 2026. The shareholders and option holders voted in favour of the schemes, which were passed by the requisite majorities. Exhibit BAP-2 contained the results of the scheme meetings, as published to the ASX on 5 June 2026, as follows:

(a)    99.94% of the votes cast by Amaero’s shareholders were in favour of the share scheme (94% of Amaero’s shareholders present and voting at the share scheme meeting (either in person or by proxy, attorney or corporate representative) voted in favour). More precisely:

(i)    658,038,192 votes were cast in favour of the scheme by 188 shareholders;

(ii)    371,305 votes were cast against the scheme by 10 shareholders; and

(iii)    2 shareholders, with a combined 20,000 votes, abstained;

(b)    100% of the votes cast by Amaero’s option holders were in favour of the option scheme (100% of Amaero’s option holders present and voting at the option scheme meeting (either in person or by proxy, attorney or corporate representative) voted in favour). More precisely:

(i)    70,127,589 votes were cast in favour of the scheme by 43 option holders; and

(ii)    No option holders voted against the scheme, or abstained from voting.

Voter turnout

22 The evidence showed that the number of shareholders who attended the share scheme meeting was 200 and the number of shares that were voted was 658,409,497, meaning that the shareholder turnout figure was 4.87% and the proportion of shares on issue that were voted was 69.06%. The number of option holders who attended the option scheme meeting was 43 and the number of options that were voted was 70,127,589, meaning that the option holder turnout figure was 29.45% and the proportion of options on issue that were voted was 65.63%.

23 The evidence demonstrated that these turnout figures were higher than the voting participation rates in Amaero’s three previous annual general and extraordinary general meetings, which were as follows:

(a)    At the 2024 AGM, shareholder turnout was 2.95% and the proportion of shares voted was 56.29%.

(b)    At the 2025 AGM, shareholder turnout was 3.58% and the proportion of shares voted was 68.75%.

(c)    At the 2025 EGM, shareholder turnout was 2.61% and the proportion of shares voted was 56.02%.

24 Counsel submitted that, in light of that history, the voter turnout should not be regarded as low, but even if it was, it did not indicate the existence of any procedural or other irregularity that might call into question the legitimacy of the vote (cf. Re Alloggio Group Ltd (No 2) [2023] FCA 1053 at [15] (Kennett J)). I agree. The level of voter turnout here does not give rise to any concern that shareholders or option holders were deterred from attending the scheme meetings or did not have notice of it because:

(a)    there is nothing to suggest that there was any irregularity in the manner of despatch of material to the Amaero shareholders and option holders;

(b)    eligible Amaero shareholders and option holders were provided with notice of the scheme meetings;

(c)    there is no evidence of any issue that would have deterred Amaero shareholders and option holders from voting at, or from attending, the scheme meetings;

(d)    the percentage of Amaero shareholders and option holders who voted at the scheme meetings is greater than the percentage of Amaero shareholders who voted at each of Amaero’s three previous annual and extraordinary general meetings; and

(e)    those Amaero shareholders and option holders who did vote voted overwhelmingly in favour of the share scheme and entirely in favour of the option scheme.

25 It is well established that low voter turnout is not in and of itself a reason to refuse to exercise the section 411(4)(b) discretion to approve a scheme. As Santow J observed in Re Matine Ltd (1998) 28 ACSR 268 at 295:

The apathetic shareholder who chooses not to vote upon a scheme should not be presumed to be antagonistic to the scheme or to warrant paternalistic protection.

Satisfaction of conditions precedent

26 Pursuant to clause 3.1 and 3.2 of the Scheme Implementation Deed, clause 3.1 of the Share Scheme of Arrangement and clause 3.1 of the Option Scheme of Arrangement, the proposed schemes are subject to the satisfaction (or waiver) of a number of conditions precedent for which Amaero and Amaero US HoldCo were variously responsible (in addition to shareholder and option holder approval of the schemes by the requisite majorities under the Corporations Act and Court approval).

27 At the hearing on 10 June 2026, Amaero tendered a certificate executed as a deed poll by Amaero and Amaero US HoldCo dated 10 June 2026 certifying that each of the conditions precedent to the schemes becoming effective had been satisfied or waived. Amaero accepted that the use of such a certificate may not be appropriate in all cases (see, e.g., Re Legend Corporation Limited (No 2) [2019] FCA 1444 at [28] (O’Bryan J)), but considerations of that kind were not relevant to the present circumstances.

Notice of the second Court hearing

28 In accordance with order 8 of the orders made on 7 May 2026, Mr Paduch’s evidence further confirmed that on 3 June 2026, Amaero published an announcement to the ASX and Amaero’s website investor centre announcements webpage as to the second Court hearing. The announcement contained the details of the second Court hearing on 10 June 2026 and how a shareholder could object to the schemes being approved.

29 At the commencement of the hearing on 10 June 2026, I confirmed with counsel that there had been no indication of any objection to the schemes being approved. At that point, I also arranged for the matter to be called outside the Courtroom, with no response.

ASIC’s position

30 The Court’s power to approve a scheme is restricted by section 411(17) of the Corporations Act. At the approval stage, the Court must be satisfied the scheme is not being proposed for the purpose of avoiding the operation of any of the provisions of Chapter 6 (section 411(17)(a)), or there must be provided to the Court a statement in writing by ASIC that it has no objection to the arrangement (section 411(17)(b)).

31 Amaero tendered a letter from ASIC to the directors of Amaero dated 9 June 2026 that satisfied the requirements of section 411(17)(b), and consequently, the bar under section 411(17) to approval of the schemes was removed.

CONSIDERATION

32 For the following reasons, I was satisfied that it was appropriate to approve the schemes pursuant to section 411(4)(b) of the Corporations Act:

(a)    I was satisfied that the evidence relied upon by Amaero established all of the procedural matters that were necessary to permit me to approve the schemes.

(b)    The majorities required by section 411 of the Corporations Act had been obtained in respect of the schemes.

(c)    As certified by Amaero and Amaero US HoldCo, all conditions precedent to which the proposed schemes are subject (excluding Court approval) had been satisfied or waived.

(d)    I was satisfied that the proposed schemes were fair and reasonable in the relevant sense, having regard to:

(i)    the report of the independent expert included in the scheme booklet, as addressed in the first Court hearing, which opined that the schemes are in the best interests of the shareholders and option holders in the absence of an alternative proposal;

(ii)    the absence of any change in that opinion, or any competing proposal;

(iii)    the Amaero board unanimously recommended voting in favour of the schemes in the absence of a superior proposal and subject to the independent expert continuing to conclude that the schemes are in the best interests of Amaero shareholders and option holders; and

(iv)    the attitude taken to the schemes by the shareholders and option holders, who had voted in favour of the schemes by a considerable majority.

(e)    There has been full and fair disclosure to Amaero shareholders and option holders of all information that is material to their decision about whether to vote for or against the proposed schemes, and they were given adequate time to consider properly the materials regarding the proposed schemes prior to the scheme meetings held on 5 June 2026.

(f)    Amaero did not receive any notification that any person intended to oppose the application for approval of the schemes at the second Court hearing.

(g)    ASIC has provided a statement pursuant to section 411(17)(b) of the Corporations Act stating that it has no objections to the schemes.

(h)    All matters of potential relevance to the approval of the proposed schemes have been disclosed to the Court.

(i)    There is nothing before me to suggest that the shareholders and option holders voted other than in good faith, that they cast their votes for an improper purpose or that any member had been treated in a way that may be characterised as oppressive. Nor is there anything that casts doubt on the procedural integrity of the processes followed for the scheme meetings.

(j)    No public policy concerns have been raised and there is nothing before me to suggest that there should be any such concern.

US SECURITIES ACT OF 1933 EXEMPTION

33 In Amaero Ltd I explained that Amaero US HoldCo proposed to rely on the exemption in section 3(a)(10) of the US Securities Act of 1933 in order to issue the CDIs and options comprising the scheme consideration (see at [27]-[30]). Consistently with that indication, Amaero requested that I note certain matters in my reasons that would then be relied upon in order to establish the applicability of the exemption.

34 At the outset, it is important to emphasise the observation of Emmett J in Re Central Pacific Minerals NL [2002] FCA 239 at [31]:

It is not for this Court to express any view as to whether the procedures or processes of the Court are sufficient to satisfy the requirements of the exemption in s 3(a)(10). …

35 To a similar effect, in Re Simeon Wines Ltd [2002] SASC 204 at [26], Lander J said:

It is not for this Court to determine whether the matters to which I have referred to will satisfy the appropriate regulators in relation to the exemption sought under the Securities Act (supra), but these reasons will be available to any regulator who might wish to rely upon them if any application is made.

36 Against that background, I make the following comments regarding the process followed in relation to the approval of these schemes.

37 As summarised above, the share scheme contemplates the issue of Amaero US HoldCo CDIs as consideration for shares in Amaero. The option scheme similarly contemplates the issue of Amaero US HoldCo options to Amaero option holders. As indicated at [28] of Amaero Ltd, this Court was informed, prior to the commencement of the hearing, that Amaero US HoldCo proposed to rely on the Court’s approval of the schemes to fall within the exemption in section 3(a)(10) of the Securities Act.

38 As I have indicated in my summary of the principles in accordance with which the approval of schemes is considered (in particular, those set out at [11] above), one consideration that is relevant to the exercise of the Court’s discretion is whether the scheme is fair and reasonable. The authorities explain precisely what is meant by that.

39 In Re Central Pacific Minerals NL, Emmett J said (at [14]):

The Court must be satisfied that the proposal is at least so fair and reasonable that an intelligent and honest person, who is a member of the class of security holders bound by the arrangement acting alone in respect of his or her interests, as such security holder, might approve it.

40 Similarly, in Re Permanent Trustee Company Limited [2002] NSWSC 1177, Barrett J said:

10    … A modern expression of the relevant principle will be found in the judgment of R D Nicholson J in Re Challenge Bank Ltd (1995) 19 ACSR 421:

“The court is required to consider and to be satisfied whether the proposals in the schemes are at least fair and reasonable from the viewpoint of an intelligent and honest person, that is a person who might approve of it.”

It is, of course, the scheme as a whole - the totality of the give and take that is the compromise or arrangement between the company and its members - that falls to be assessed in this way.

11    I mention this implicit effect of the court’s approval under s.411(4)(b) because this court’s order effecting such approval is, I am told, likely to be relied upon for the purposes of s.3(a)(10) of the Securities Act 1933 of the United States. …

41 In the context of discussing Lander J’s comments in Re Simeon Wines Ltd at [22], Barrett J in Re Permanent Trustee Company Limited went on to say this (at [14]):

… when his Honour refers at item 4 to a court exercising the s.411 approval jurisdiction having an obligation to consider the fairness and reasonableness of the proposed scheme of arrangement, he is not, I think, in any sense suggesting that the court in some way actively enters into matters of valuation or embarks upon an examination of the question whether a particular price or consideration is or is not a fair and reasonable quid pro quo. The court does not act as a valuer.

42 This Court has been informed that the economic interest represented by Amaero US HoldCo CDIs and options will be the same as the previously held Amaero shares and options. I am satisfied that all information relevant to the relative value of those different securities has been placed before the Court. The equivalence of the economic interest represented by the different securities is supported by the reasoning and conclusions of the independent expert report, contained in the scheme booklet. That report, of course, concluded that the schemes are in the best interests of the shareholders and option holders.

43 It follows that, in the sense I have described, the Court has held a hearing to consider the fairness and reasonableness of the schemes, and I am satisfied that they are, in that sense, fair and reasonable.

44 Finally, the hearing was open to the public, and any person to whom Amaero US HoldCo CDIs or options are to be issued had standing to appear. Notice of the time and date of the approval hearing was included in the scheme booklet sent to all Amaero shareholders and option holders prior to the proposals being considered by the meetings of those shareholders and option holders. As indicated above, there was also an announcement made to the ASX and Amaero’s website investor centre announcements webpage as to the second Court hearing. The hearing was listed on the Court’s publicly available Court List. There was no appearance by any shareholder or option holder at the hearing, including after I arranged for the matter to be called outside the Courtroom.

EXEMPTION FROM SECTION 411(11)

45 Amaero sought an exemption pursuant to section 411(12) of the Corporations Act from compliance with section 411(11) so that a copy of the Court order approving the schemes does not need to be annexed to any copy of Amaero’s constitution that may be issued in the future. Amaero submitted that an order of this kind is orthodox in re-domiciliation schemes where, as here, Amaero’s constitution has not been altered: Re Tronox Limited (No 2) [2019] FCA 681 at [55] (O’Callaghan J).

46 I am satisfied that the exemption is appropriate in circumstances where the schemes do not modify any constitutional rights, nor affect the interests of shareholders, option holders, creditors or other persons in a way that necessitates the annexure of the orders to the constitution. The current shareholders and option holders are fully informed of the proposed schemes and will be informed of the Court’s approval of the proposed schemes.

CONCLUSION

47 For the foregoing reasons, I made the orders set out above.

Associate:

Dated:    12 June 2026