Federal Court of Australia

Toro Energy Limited, in the matter of Toro Energy Limited (No 2) [2026] FCA 752

ORDERS

THE COURT ORDERS THAT:

1. Pursuant to section 411(4)(b) of the Corporations Act 2011 (Cth) (Act), the scheme of arrangement (Scheme) between the plaintiff and the holders of fully paid ordinary shares in the plaintiff (other than 'Excluded Shareholders', as defined in the Scheme), in the former set out at pages 537 to 553 of the affidavit of Roger Craig Hawkins affirmed 24 April 2026, is approved.

2. Pursuant to section 411(12) of the Act, the plaintiff is exempted from compliance with section 411(11) of the Act in relation to the Scheme.

3. The plaintiff is to lodge an office copy of these orders with the Australian Securities and Investments Commission as soon as practicable after the orders are issued.

THE COURT NOTES THAT:

IsoEnergy Ltd, Iso Australia Operations Pty Limited and the plaintiff intend to rely on:

A. the orders or reasons for judgment as the basis of a claim to an exemption pursuant to section 3(a)(10) of the Securities Act of 1933 (US) (as amended) (US Securities Act) from the registration requirements of the US Securities Act in connection with the issuance and exchange of all Scheme consideration pursuant to the Scheme based on the Court's approval of the Scheme;

B. the fact the Scheme is consummated under the statutory provisions of the Act;

C. the fact that the Court held a hearing to consider the fairness and reasonableness of the terms and conditions of the Scheme and the Court has determined that the Scheme is fair and reasonable in the sense that an intelligent and honest shareholder, properly informed and acting alone might approve it; and

D. the approval of the Scheme by the Court for the purpose of qualifying for the exemption from the prospectus requirements of section 2.11 of the Canadian National Instrument 45-106 - Prospectus Exemptions in connection with the implementation of, and provision of consideration under, the Scheme.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1 These reasons should be read with Toro Energy Limited, in the matter of Toro Energy Limited [2026] FCA 643 (Toro Energy) and will use the defined terms adopted in that decision.

2 In Toro Energy, the Court made orders that Toro convene and hold a meeting of the Toro Shareholders, to consider a scheme of arrangement. Pursuant to s 411(4) of the Corporations Act, a scheme of arrangement is binding on the members of a corporation, or a class of such members, if at a meeting convened in accordance with an order of the Court under s 411(1), a resolution is passed by the necessary majority provided for in s 411(4)(a)(ii) and if the arrangement is approved by an order made under s 411(4)(b).

3 The Scheme Meeting took place on 9 June 2026, and a resolution was passed in favour of the Scheme.

4 A hearing took place before me on 15 June 2026 (second hearing), at which time the Court's approval for the Scheme was sought.  After considering the evidence and written submissions filed in advance of the second hearing, the further evidence that was adduced at the hearing, and the brief submissions that were made by counsel for Toro, I made the orders under s 411(4)(b) of the Corporations Act approving the Scheme.

5 These are my reasons for making those orders.

The evidence

6 At the second hearing, Toro sought to rely on the various affidavits that were referred to in Toro Energy.  Toro also sought to rely on an affidavit affirmed on 10 June 2026 by Richard Homsany, the Executive Chairman of Toro (Second Homsany Affidavit) and a further affidavit affirmed on 12 June 2026 by Roger Craig Hawkins, a solicitor employed by Cardinals Lawyers and Consultants (Cardinals), the lawyers acting for Toro, (Fourth Hawkins Affidavit).

7 In the Second Homsany Affidavit, Mr Homsany said that after some minor amendments were made to the Scheme Booklet that was approved by the Court for distribution, copies of the orders made in Toro Energy and the amended Scheme Booklet (including a copy of the Scheme Booklet in which the amendments had been marked-up) were provided to ASIC on 1 May 2026.  According to Mr Homsany, ASIC subsequently advised that it had registered the Scheme Booklet.

8 Mr Homsany also gave evidence about the dispatch of the Scheme Booklet and related materials that occurred in accordance with the Court's orders.  Further, Mr Homsany gave details about the operation of a shareholder information line, Toro's use of an outbound call campaign, and the communications that Toro had with Toro Shareholders, to remind them of the Scheme Meeting and to answer their queries about the Scheme.

9 Mr Homsany chaired the Scheme Meeting that took place on 9 June 2026.  Mr Homsany said that he was satisfied that the Scheme Meeting and the voting processes for that meeting were properly completed in accordance with the orders made in Toro Energy, and there is no evidence to suggest otherwise.  According to Mr Homsany, the results of the poll on the resolution to approve the Scheme were as follows:

10 At the relevant time there were 8,600 Toro Shareholders appearing on Toro's register of members.  Those shareholders held an aggregate of 114,281,848 shares.  At the Scheme Meeting, 360 shareholders, representing an aggregate of 59,899,496 shares voted on the resolution to approve the Scheme.  This represented a voting participation rate of 52.41% by number of Toro Shares and 4.19% by number of Toro Shareholders. According to Mr Homsany, at Toro's most recent annual general meeting held on 25 November 2025, the voting participation rate was between 32.261% and 33.40% by number of Toro Shares and 2.12% by number of Toro Shareholders.  Further, at Toro's annual general meeting held on 29 November 2024, the voting participation rate was between 15.88% and 23.30% by number of Toro Shares and 1.94% by number of Toro Shareholders.

11 Mr Homsany also gave evidence that:

(1) Toro had published an announcement via the ASX that contained the substance of the matters set out in Form 6 of the Rules, as required by the orders made in Toro Energy;

(2) as at the date of his affidavit, IsoEnergy was the only 'Excluded Shareholder' for the purpose of the Scheme;

(3) he was not aware of any fact, matter or circumstance which might result in the failure or non-satisfaction of any of the conditions precedent to implementation of the Scheme;

(4) as at the date of his affidavit, he was not aware of any alternative proposal to the Scheme which was proposed to Toro prior to the Scheme Meeting or since the conclusion of the Scheme Meeting;

(5) as at the date of his affidavit, Toro had drawn down $2,000,000 under the bridging loan that was referred to at [57] to [59] of Toro Energy; and

(6) as at the date of his affidavit:

(a) he had not received notice of any person intending to object to the Scheme and, other than a specific communication that was disclosed in his affidavit, he had not received any complaint or objection relating to the Scheme; and

(b) he was not aware of any other representative of Toro having received any such notice, complaint or objection.

12 The Fourth Hawkins Affidavit established that a copy of the Second Homsany Affidavit, which was filed in this Court on 10 June 2026, was provided to ASIC on 10 June 2026. Additionally, copies of Toro's written submissions and a minute of proposed orders that were both filed in this Court on 11 June 2026, were provided to ASIC on 11 June 2026.  Mr Hawkins also gave evidence in the Fourth Hawkins Affidavit that:

(a) he had not received notice of any person intending to object to the Scheme and, other than a communication that was disclosed in the Second Homsany Affidavit, he had not received any complaint or objection relating to the Scheme; and

(b) he was not aware of any other representative of Toro or Cardinals having received any such notice, complaint or objection.

The relevant principles

13 I gratefully adopt Moshinsky J's summary of the relevant principles in Envirosuite Limited, in the matter of Envirosuite Limited (No 2) [2025] FCA 941 at [10] to [11]:

In approving a scheme of arrangement, the role of the Court is supervisory, requiring the Court to be satisfied that there has been no oppression and that the compromise or arrangement is one that is capable of being accepted by shareholders looking to their own commercial advantage.  In Re NRMA Ltd (No 1) [2000] NSWSC 82; 156 FLR 349 (Re NRMA Ltd) at [41], Santow J quoted with approval the following passage from Renard IA and Santamaria JG, Takeovers and Reconstructions in Australia (Butterworths, Sydney, 1990, loose-leaf), at 15,061:

'... the court will determine: (1) whether all the conditions required by s 411 have been complied with; (2) whether the majority of members or creditors, though acting regularly, have acted in good faith and not in pursuit of some illegitimate purpose; and (3) whether the proposal was "at least so far fair and reasonable, as that an intelligent and honest man, who is a member of that class, and acting alone in respect of his interest as such member, might approve it".*  Fundamentally, 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 which is capable of being accepted:  see Re Dorman Long & Co Ltd [[1934] Ch 635]; Scottish Insurance Corp Ltd v Wilsons and Clyde Coal Co Ltd [1949] AC 462 at 486.

* Per Fry LJ in Re Alabama, New Orleans, Texas and Pacific Junction Railway Co [1891] 1 Ch 213 at 247.'

In deciding whether to give final approval to a scheme of arrangement, the Court will typically wish to be satisfied of the following matters:

(a)     that the orders of the Court convening a meeting of members were complied with;

(b)     that the meeting of members so convened has approved the scheme with the requisite majority;

(c)     that all the statutory requirements have been complied with;

(d)     that the majority of members have acted in good faith and not for any illegitimate purpose;

(e)     that there is no suggestion of oppression of any minority;

(f)     that the scheme is fair and reasonable so that an intelligent and honest person, who is a member and acting alone in respect of his or her interest as a member, might approve it;

(g)     that there was full and fair disclosure to members of all information material to the decision whether to vote for or against the scheme; and

(h)     that 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.

(citations omitted)

Formal requirements

Lodgment of orders and registration of the Scheme Booklet

14 The Second Homsany Affidavit established that on 1 May 2026, Toro's solicitors registered the Scheme Booklet with ASIC in substantially the form that had been approved by the Court and provided ASIC with a sealed copy of the orders that were made in Toro Energy.

Dispatch of the Scheme Booklet

15 I accept the evidence in the Second Homsany Affidavit that the Scheme Booklet was dispatched in accordance with the orders that were made in Toro Energy.

Advertising of hearing

16 I also accept Mr Homsany's evidence that Toro published an announcement via the ASX containing the substance of the matters set out in Form 6 of the Rules, as required by the orders that were made in Toro Energy.

Conduct of Scheme Meeting

17 Based on the Second Homsany Affidavit, I am satisfied that the Scheme Meeting was conducted in accordance with the orders that were made in Toro Energy.

Scheme approved by the requisite majorities

18 The Scheme was passed by the requisite majorities provided for in s 411(4)(a)(ii) of the Corporations Act.  Based on the table that appears in the Second Homsany Affidavit, which I have reproduced at [9] of these reasons, the resolution to approve the Scheme was passed:

(1) by a majority in number of participating Toro Shareholders present and voting on the resolution (in person, or by proxy, attorney or corporate representative); and

(2) by more than 75% of the votes cast on the resolution.

19 These results were announced to the market via the ASX on 9 June 2026.

20 There was a low shareholder turnout at the Scheme Meeting.  According to the Second Homsany Affidavit, only 52.41% of the total number of Toro shares on issue (other than the shares held by 'Excluded Shareholders') were voted at the meeting by 4.19% of shareholders eligible to vote.  However, 'low shareholder turnout does not prevent the Court from making orders approving a scheme of arrangement':  Allkem Limited, in the matter of Allkem Limited (No 2) [2023] FCA 1657 at [20].  As I have already noted, the Second Homsany Affidavit establishes that the voting participation rate at the Scheme Meeting is broadly comparable to the participation rates that were experienced at Toro's annual general meetings in 2024 and 2025.  There is, in any event, no evidence to suggest that the shareholder turnout at the Scheme Meeting was due to any issue with the dispatch of the Scheme Booklet or that Toro Shareholders were improperly deterred from attending or voting at the Scheme Meeting.

Satisfaction of conditions precedent

21 At the second hearing, counsel for Toro tendered a 'Conditions Precedent Certificate' signed by a director of IsoEnergy on 15 June 2026.  That certificate evidenced that Toro, in respect of the conditions which it is responsible for satisfying, and IsoEnergy, in respect of the conditions which it is responsible for satisfying, had confirmed that relevant conditions precedent in the SID and in the Scheme had been satisfied or waived, other than a condition in the SID relating to this Court's approval.

Discretionary considerations

Good faith and proper purpose

22 There was no evidence that the Toro Shareholders voted at the Scheme Meeting otherwise than in good faith and for a proper purpose.  Further, an independent expert concluded that the Scheme was fair and reasonable and in the best interests of Toro Shareholders, in the absence of a superior proposal.  I also note that no shareholder, or indeed any other interested party, sought to appear at the second hearing to object to the Court granting its approval to the Scheme.

Fair and reasonable scheme

23 I was satisfied that the Scheme is fair and reasonable such that an intelligent and honest securityholder, properly informed and acting alone, might approve it:  Seven Network Limited (ACN 052 816 789), in the matter of Seven Network Limited (No 3) [2010] FCA 400 at [36].  In that regard, I accepted that the fact that the requisite majorities approved the Scheme amounted to prima facie evidence that it is fair.  I was also fortified in reaching that conclusion because of the opinion expressed in the independent expert report that was attached to the Scheme Booklet, namely, that the terms of the Scheme are fair and reasonable and, in the absence of a superior proposal, the Scheme is in the best interests of Toro Shareholders.  Further, the Scheme was unanimously recommended by the independent directors of Toro, in the absence of a superior proposal and while the independent expert maintained its opinion.  In that regard, there is no evidence of a superior proposal or that the independent expert had changed its opinion.

Full and fair disclosure

24 I was satisfied that there had been full and fair disclosure to Toro Shareholders.  On the evidence before the Court in Toro Energy, I was satisfied that the dispatch of the Scheme Booklet would provide full and fair disclosure to Toro Shareholders regarding the Scheme.  There was no evidence before the Court at the second hearing that altered that view.  I note, in particular, that the Second Homsany Affidavit established that nothing had occurred in Toro's communications with its shareholders that could have affected the integrity of the disclosure made by the Scheme Booklet or the process that was adopted in the lead up to, and in the conduct of the Scheme Meeting.

Satisfaction of s 411(17) of the Corporations Act

25 At the second hearing, counsel for Toro tendered a letter from ASIC addressed to the directors of Toro dated 15 June 2026.  In that letter ASIC advised that for the purposes of s 411(17)(b) of the Corporations Act, it had no objection to the Scheme, having regard to its criteria for providing a statement in writing that it has no objection as set out in ASIC Regulatory Guide 60 - Schemes of arrangement.

Public policy and oppression of minorities

26 There was no evidence that any minority Toro Shareholders were oppressed or that the Scheme offended public policy.

Other matters

27 At the second hearing, and in circumstances in which the Court did not have the benefit of any submissions from a contradictor, counsel for Toro drew three issues to the Court's attention.

28 Firstly, counsel for Toro drew the Court's attention to the evidence that was adduced at the first hearing concerning the proposed communications with Toro Shareholders through telephone information lines.  As I have already said, I was satisfied that those communications were consistent with the information in the Scheme Booklet.  There was also no evidence to suggest that those communications in any way compromised the integrity of the information in the Scheme Booklet or the voting process that took place at the Scheme Meeting.

29 In the Second Homsany Affidavit there was evidence of one communication from a Toro Shareholder that Toro treated as a complaint.  I considered that evidence but concluded that the complaint did not give rise to any concerns about the disclosures that were made to Toro Shareholders or about the integrity of the process that led up to and included the Scheme Meeting.

30 Secondly, counsel for Toro drew the Court's attention to various authorities that suggest that where a scheme of arrangement is proposed to be made between a company and its shareholders, other than a category of excluded shareholders, then the scheme should be amended at the second hearing to ensure that any excluded shareholders are clearly identified:  see, for example, In the matter of Brickworks Limited; In the matter of Washington H. Soul Pattinson and Company Limited (No 2) [2025] NSWSC 1068 at [16].  However, as the only Excluded Shareholder under the Scheme is IsoEnergy, a fact that is clearly identified in the Scheme Booklet, I formed the view that there was no need to formally amend the Scheme.

31 Thirdly, Toro wishes to rely on the Court's approval of the Scheme to qualify for:

(1) the exemption under section 3(a)(10) of the Securities Act of 1933 (USA) (as amended) from the registration requirements under that Act in connection with the issue and exchange of the consideration under the Scheme; and

(2) an exemption from the prospectus requirements of section 2.11 of the harmonised Canadian National Instrument 45-106 - Prospectus Exemptions in connection with the implementation of, and provision of consideration under, the Scheme.

32 As Banks-Smith J noted in Allkem at [36], there are many examples of second court hearings for schemes where an issue about an exemption under section 3(a)(10) of the Securities Act has arisen.  Her Honour observed that the courts have proceeded on the basis that the exemption would be available if the court holds a hearing to determine whether the proposed terms and conditions of a scheme of arrangement are fair to those who receive securities. Her Honour also said that it is not for the Court to express any view as to whether its procedures or processes are sufficient to satisfy the requirements of the exemption, and that the Court does not act as the valuer of shares but is assisted by expert opinion on that matter.

33 A standard approach has been adopted by the courts in relation to the exemptions, by noting particular matters:  Allkem at [37]. Therefore, I note the following matters:

(1) Before the second hearing Toro advised this Court that reliance would be placed on the exemption provided for by section 3(a)(10) of the Securities Act and the exemption that is the subject of section 2.11 of the harmonised Canadian National Instrument 45-106 - Prospectus Exemptions on the basis of the Court's approval of the Scheme.

(2) Toro also advised this Court that IsoEnergy shares will be offered as consideration, and that an independent expert concluded that the proposal is in the best interests of Toro Shareholders;

(3) This Court held a hearing in open court to consider the fairness and reasonableness of the Scheme, and it was open to any member of the public, including any Toro Shareholder, to attend.

(4) Notice of the date of the hearing to approve the Scheme:

(a) was included in the Scheme Booklet prior to the proposal being considered at the Scheme Meeting; and

(b) was advertised on the ASX,

so that those to whom the IsoEnergy shares are to be issued had the opportunity to oppose or otherwise raise any objection to the Scheme.

(5) No Toro Shareholder had given notice of any intention to appear at the second hearing to oppose the approval of the Scheme, and the Court had regard to whether any Toro Shareholder in fact opposed the approval of the Scheme at the hearing.

34 I also made certain notations in the Court's orders approving the Scheme to the effect that IsoEnergy, IsoEnergy Bidco and Toro intend to rely on:

(1) the orders or reasons for judgment as the basis of a claim to an exemption pursuant to section 3(a)(10) of the Securities Act from the registration requirements of that Act in connection with the issuance and exchange of all Scheme consideration pursuant to the Scheme based on the Court's approval of the Scheme;

(2) the fact the Scheme is consummated under the statutory provisions of the Corporations Act;

(3) the fact that the Court held a hearing to consider the fairness and reasonableness of the terms and conditions of the Scheme and the Court has determined that the Scheme is fair and reasonable in the sense that an intelligent and honest shareholder, properly informed and acting alone might approve it; and

(4) the approval of the Scheme by the Court for the purpose of qualifying for the exemption from the prospectus requirements of section 2.11 of the Canadian National Instrument 45-106 - Prospectus Exemptions in connection with the implementation of, and provision of consideration under, the Scheme.

Conclusion

35 Having regard to all of the matters to which I have referred, I exercised my discretion at the second hearing to approve the Scheme.

Associate:

Dated:    16 June 2026