Court orders meeting for Diversified United Investment scheme of arrangement

Original Word Document (110.9 KB) Federal Court of Australia

Diversified United Investment Limited, in the matter of Diversified United Investment Limited [2026] FCA 371

| File number: | VID 170 of 2026 |
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| Judgment of: | SARAH C DERRINGTON J |
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| Date of judgment: | 30 March 2026 |
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| Catchwords: | CORPORATIONS – scheme of arrangement – first court hearing – order sought under s 411(1) of the Corporations Act 2001 (Cth) – whether statutory prerequisites satisfied – whether Court’s discretion to order convening of scheme meeting should be exercised – orders made convening meeting |
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| Legislation: | Corporations Act 2001 (Cth) ss 9, 411, 412, 1319

Corporations Regulations 2001 (Cth) reg 5.1.01, Sch 8

Federal Court (Corporations) Rules 2000 (Cth) rr 1.3, 2.4, 2.13, 3.2, 3.3, 3.4 |
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| Cases cited: | Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485

FT Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69

Re 5G Networks Limited [2021] FCA 1189

Re Amcor Limited [2019] FCA 346

Re Aston Resources Limited [2012] FCA 229

Re BG&E Group Limited [2025] FCA 1232

Re Capitol Health Limited [2024] FCA 1120

Re Centrebet International Limited [2011] FCA 870

Re CW Group Holdings Limited [2024] FCA 1471

Re Damstra Holdings Limited [2024] NSWSC 284

Re DuluxGroup Limited [2019] FCA 961; 136 ACSR 546

Re ELMO Software Pty Ltd [2023] NSWSC 12

Re ERM Power Limited [2019] NSWSC 1502

Re Foundation Healthcare Ltd [2002] FCA 742; 42 ACSR 252

Re Healthscope Limited [2019] FCA 542; 139 ACSR 608

Re Hills Motorway Limited [2002] NSWSC 897; 43 ACSR 101

Re Insignia Financial Limited [2026] FCA 160

Re iSelect Limited [2022] FCA 1329; 164 ACSR 310

Re Japara Healthcare Limited [2021] FCA 1150; 156 ACSR 695

Re Lonsdale Financial Group Limited [2007] VSC 394

Re MAC Services Group Limited [2010] NSWSC 1316; 80 ACSR 390

Re Macquarie Private Capital A Limited [2008] NSWSC 323; 26 ACLC 366

Re Mitchell Communication Group [2010] VSC 423

Re NRMA Insurance Ltd (No 1) [2000] NSWSC 82; 156 FLR 349

Re Ozgrowth Limited [2022] WASC 107

Re Patersons Securities Limited [2019] FCA 1438

Re PointsBet Holdings Limited [2025] FCA 463

Re Rex Minerals Limited [2024] FCA 1051

Re RPMGlobal Holdings Limited [2025] FCA 1434

Re RXP Services Limited [2021] FCA 38

Re Selfwealth Limited [2025] FCA 214

Re The Reject Shop Limited [2025] FCA 522

Re Vocus Group Limited [2021] NSWSC 630 |
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| Division: | General Division |
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| Registry: | Victoria |
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| National Practice Area: | Commercial and Corporations |
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| Sub-area: | Corporations and Corporate Insolvency |
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| Number of paragraphs: | 69 |
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| Date of hearing: | 12 March 2026 |
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| Counsel for the Plaintiff: | B K Holmes |
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| Solicitors for the Plaintiff: | Ashurst |
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| Counsel for Australian United Investment Ltd | J Rudd |
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| Solicitors for Australian United Investment Ltd | Herbert Smith Freehills Kramer |
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ORDERS

| | | VID 170 of 2026 |
| IN THE MATTER OF DIVERSIFIED UNITED INVESTMENT LTD (ACN 006 713 177) | | |
| | DIVERSIFIED UNITED INVESTMENT LIMITED ACN 006 713 177

Plaintiff

AUSTRALIAN UNITED INVESTMENT COMPANY LIMITED ACN 004 268 679

Interested Person | |

| order made by: | SARAH C DERRINGTON J |
| DATE OF ORDER: | 12 March 2026 |
OTHER MATTERS:

A. The Court notes that the Australian Securities and Investments Commission (ASIC) was provided with at least 14 days’ notice of the hearing of this application.

B. The Court is satisfied that ASIC has had a reasonable opportunity to:

(a) examine the terms of the proposed scheme of arrangement to which the application relates (Scheme) and a draft explanatory statement relating to that Scheme; and

(b) make submissions to the Court in relation to the Scheme and the draft explanatory statement.

C. The Court notes the letter from ASIC to the directors of the plaintiff (DUI) dated 11 March 2026 produced at the hearing.

THE COURT ORDERS THAT:

1. Pursuant to rule 2.13(1) of the Federal Court (Corporations) Rules 2000 (Cth) (Rules), Australian United Investment Company Limited ACN 004 268 679 (AUI) has leave to be heard in this proceeding without becoming a party to it.

2. Pursuant to subsection 411(1) and section 1319 of the Corporations Act 2001 (Cth) (Act), DUI convene and hold a meeting of its shareholders (other than the Excluded Shareholder as defined in the Scheme) (DUI Shareholders):

(a) for the purpose of considering and, if thought fit, agreeing (with or without modification) to the Scheme proposed to be made between DUI and DUI Shareholders, the terms of which are set out in Annexure A to these orders; and

(b) to be held on Thursday, 16 April 2026 commencing at 12.00pm (Melbourne time) and to be conducted simultaneously in person at the offices of Ashurst Australia, Level 16, 80 Collins Street, South Tower, Melbourne VIC 3000, and virtually via an online platform (Scheme Meeting).

1. Pursuant to subsection 411(1) and section 1319 of the Act, the Scheme Meeting be convened by sending on or before 17 March 2026:

(a) to each DUI Shareholder, who has elected to receive communications electronically from DUI and for whom DUI's share registry has an email address (Email Shareholders), an email substantially in the form of either pages 8-9 or pages 10-11 of Annexure JS-1 of the affidavit of Julie Stokes affirmed on 6 March 2026 (Stokes Affidavit) containing:

(i) a hyperlink to an online portal (Scheme Booklet Website) at which the Email Shareholder can view and download an electronic copy of a document substantially in the form of the document which is pages 162-378 of Annexure PGS-2 to the affidavit of Peter Sise affirmed on 10 March 2026 (including its annexures) (Scheme Booklet);

(ii) hyperlink(s) through which the Email Shareholder can electronically direct their vote or appoint a proxy in relation to their shareholding(s); and

(iii) a hyperlink to an online meeting platform (Online Meeting Platform) which enables the Email Shareholder to view, listen to and participate in the Scheme Meeting online;

(b) to each DUI Shareholder, who has elected to receive communications in hardcopy and for whom DUI's share registry has a mailing address (Hard Copy Shareholders), and whose registered address is in Australia, the following documents in hard copy by ordinary post:

(i) depending on the election of the DUI Shareholder:

A. a notice of access letter substantially in the form of pages 12-13 of Annexure JS-1 of the Stokes Affidavit containing hyperlinks to the Scheme Booklet Website and the Online Meeting Platform and hyperlink(s) through which the Hard Copy Shareholder can electronically direct their vote or appoint a proxy in relation to their shareholding(s) (Shareholder Letter); or

B. the Scheme Booklet;

(ii) a personalised proxy form substantially in the form of pages 14-15 of Annexure JS-1 of the Stokes Affidavit (Proxy Form); and

(iii) either a reply-paid envelope or return envelope for the return of the proxy form; and

(c) to each Hard Copy Shareholder whose registered address is outside Australia, a hardcopy of the documents referred to in subparagraph (b) above by airmail; and

(d) to each DUI Shareholder who is not an Email Shareholder or a Hard Copy Shareholder (Non Electing Shareholders):

(i) the Shareholder Letter;

(ii) Proxy Form; and

(iii) either a reply-paid envelope or return envelope,

by ordinary post (in the case of Non Electing Shareholders with a registered address in Australia) or by airmail or air courier (for Non Electing Shareholders with a registered address outside Australia).

1. Voting on the resolution to agree to the Scheme is to be conducted by way of a poll.

2. DUI Shareholders whose name is recorded in the register of members of DUI at 7.00pm (Melbourne time) on 14 April 2026 will be eligible to vote at the Scheme Meeting.

3. A proxy or voting direction in respect of the Scheme Meeting will be valid and effective if, and only if, it is completed and delivered in accordance with its terms or a proxy or voting direction is lodged online in accordance with its instructions and received by DUI by 12.00pm (Melbourne time) on 14 April 2026.

4. Mr Stephen Hiscock or, failing him, Mr Andrew Larke be Chairperson of the Scheme Meeting.

5. The Chairperson of the Scheme Meeting has the power to adjourn the meeting to such time, date and place as he considers appropriate and, in that event:

(a) only DUI Shareholders whose names are recorded in the register of members of DUI at 7.00pm (Melbourne time) on the date that is two calendar days before the date that the adjourned meeting resumes will be eligible to vote at the Scheme Meeting;

(b) a proxy or voting direction in respect of the adjourned Scheme Meeting will be valid and effective if, and only if, it is completed and delivered in accordance with its terms or a proxy or voting direction is lodged online in accordance with its instructions and received by DUI at least 48 hours before the time scheduled for the resumption of the adjourned meeting; and

(c) a reference in these orders to the Scheme Meeting is taken to include a reference to the adjourned meeting.

1. DUI shall have power to postpone the Scheme Meeting to such time, date and place as it considers appropriate and, in that event, notwithstanding any other part of these orders:

(a) only DUI Shareholders whose names are recorded in the register of members of DUI at 7.00pm (Melbourne time) on the date that is two calendar days before the date that of the postponed meeting will be eligible to vote at the Scheme Meeting;

(b) a proxy or voting direction in respect of the Scheme Meeting will be valid and effective if, and only if, it is completed and delivered in accordance with its terms or a proxy or voting direction is lodged online in accordance with its instructions and received by DUI at least 48 hours before the time scheduled for the commencement of the postponed meeting; and

(c) a reference in these orders to the Scheme Meeting is taken to include a reference to the adjourned meeting.

1. DUI must cause an announcement to be published on the ASX announcements platform by no later than 17 April 2026 setting out the details for the second Court hearing and the process for any person wishing to appear at that hearing to oppose the approval of the Scheme, together with an address for service of DUI.

2. Pursuant to r 1.3 of the Rules, compliance with the following provisions of the Rules be dispensed with:

(a) rule 2.4(1) to the extent that the rule requires the affidavit filed with the Originating Process to state all the facts in support of the Originating Process;

(b) rule 2.15; and

(c) rule 3.4 and Form 6.

1. The further hearing of the Originating Process is adjourned to the Honourable Justice Sarah C Derrington at 10.15am (Melbourne time) on 20 April 2026 or as soon thereafter as the business of the Court allows.

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

ANNEXURE A

Scheme of Arrangement

[The Order entered is available on the Commonwealth Courts Portal, which attaches the Scheme.]

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

Introduction

1 By originating process filed on 18 February 2026, the Plaintiff, Diversified United Investment Limited (DUI), applied for orders and directions pursuant to ss 411(1) and 1319 of the Corporations Act 2001 (Cth) (the Act) to convene and hold a meeting of its members, other than the Excluded Shareholder as defined in the Scheme (Scheme Meeting). The purpose of the Scheme meeting is to consider and, if thought fit, agree to the proposed Scheme (with or without modification), the commercial purpose of which is to effect the acquisition of shares in DUI by Australian United Investment Company Limited (AUI).

2 On 12 March 2026, at the conclusion of the first hearing, I made Orders in the terms sought by DUI convening the Scheme Meeting. These are my reasons for making those Orders.

bACKGROUND

3 DUI and AUI are both public companies listed on the Australian Securities Exchange (ASX) that deal in investments. In particular, DUI invests in Australian equities, listed property trusts, and international equities, while AUI invests in Australian-listed equities.

4 AUI currently holds 6.83% of the total issued share capital of DUI. AUI is the only “Excluded Shareholder” as defined in the Scheme and, in accordance with the terms of the Scheme, will not participate in the Scheme nor vote in the Scheme Meeting. All four of DUI’s directors hold shares in DUI, and two of DUI’s directors also hold shares in AUI.

5 My attention was also drawn to The Ian Potter Foundation (IPF), which is a “substantial 10%+ shareholder” in AUI and whose shares in DUI constitute a “substantial asset” for the purpose of ASX Listing Rule 10.1. As such, approval is required for AUI to acquire IPF’s shares in DUI under the Scheme. AUI is required to convene a general meeting of its shareholders to seek this approval and it is a condition precedent to the Scheme that AUI shareholders give such approval.

6 There are various overlaps in the governance structures of DUI, AUI, and IPF, relevantly (affidavit of Stephen Grenville Hiscock sworn on 5 March 2026 (Hiscock Affidavit) at [29]):

(a) the Chairman and director of DUI is also the Chairman and director of AUI, and was elected to act in that capacity in relation to the Scheme; and

(b) a director of DUI is Governor of IPF.

7 DUI provided the following evidence in support of its application:

(1) the affidavit of Peter Gage Sise affirmed on 18 February 2026 (First Sise Affidavit). Mr Sise is a solicitor at Ashurst Australia, the solicitors for DUI. This affidavit describes the proposed Scheme in general terms and annexes:

(a) a copy of a company extract for DUI obtained from the Australian Securities Investment Commission (ASIC) on 18 February 2026;

(b) a copy of the ASX announcement of the proposed Scheme made by DUI on 30 January 2026; and

(c) a copy of the Merger Implementation Deed between DUI and AUI dated 30 January 2026 (MID), which annexes the Scheme and the draft Deed Poll;

(2) the Hiscock Affidavit. Mr Hiscock is a non-executive director and lead independent director of DUI and member of the independent board committee established by DUI to consider AUI’s proposal and the Scheme. The Hiscock Affidavit addresses the business of DUI and provides an overview of the main features of the proposed Scheme and the MID (including exclusivity provisions and the break fee). Mr Hiscock also addresses various matters in relation to the Scheme Booklet (including verification of the DUI information in the Scheme Booklet) and the proposed Scheme Meeting (including the prescribed matters in relation to the proposed chairperson and alternate chairperson of the Scheme Meeting). Finally, the Hiscock Affidavit addresses a proxy solicitation campaign and the proposal to publish notice of the second court hearing on the ASX announcements platform;

(3) the affidavit of Julie Christine Stokes affirmed on 6 March 2026 (Stokes Affidavit). Ms Stokes is the Senior Client Relationship Manager at MUFG Corporate Markets. The Stokes Affidavit addresses the process to convene the Scheme Meeting and documents to be sent to DUI shareholders; and

(4) the affidavit of Mr Sise affirmed on 10 March 2026 (Second Sise Affidavit). The Second Sise Affidavit addresses the most updated version of the Scheme Booklet, communications between ASIC and DUI’s solicitors, amendments to the Scheme and the scripts for the proxy solicitation campaign.

8 By notice of appearance filed on 23 February 2026, AUI sought leave to appear as an interested person in this proceeding, which I granted at the first hearing. AUI filed the following material:

(1) the affidavit of Wayne Graham Kent affirmed on 10 March 2026 (Kent Affidavit). Mr Kent is a director of AUI. The Kent Affidavit describes the verification of the AUI information in the Scheme Booklet, an amendment to the IPF Option Agreement (detailed below) and annexes a copy of the Deed Poll executed on 10 March 2026 by AUI in favour of DUI shareholders (a copy of which is annexed to the proposed Scheme Booklet).

The Scheme

9 DUI has prepared a draft Scheme Booklet which sets out a detailed description of the Scheme and its advantages and disadvantages, and contains a number of annexures. A copy of the proposed Scheme appears at Annexure B of the draft Scheme Booklet and is annexed to the Orders which I made on 12 March 2026. An overview of the Scheme can be found at section 7 of the draft Scheme Booklet.

10 On 30 January 2026, DUI entered into the MID with AUI. The MID sets out the obligations of both DUI and AUI in relation to the Scheme and attaches a copy of the proposed Scheme as well as the draft Deed Poll to be executed by AUI. By the Deed Poll, AUI covenants to perform all obligations and actions attributed to it under the proposed Scheme. An executed copy of the Deed Poll is provided at Annexure C of the draft Scheme Booklet.

11 Due to the overlaps in governance structure between DUI, AUI and IPF, DUI established as independent board committee (which consisted of the directors of DUI which were not involved in the governance structures of AUI and IPF) to consider AUI’s proposal and whether to proceed with the Scheme. The Scheme Booklet records at section 1 that the independent board committee unanimously recommended that DUI shareholders vote in favour of the Scheme, subject to there being no superior proposal and subject to the Independent Expert continuing to conclude that the Scheme is in the best interests of DUI shareholders. Consistently with this recommendation, all DUI directors have indicated that they also intend to vote any DUI shares held or controlled by them in favour of the Scheme.

12 The independent board committee appointed Kroll Australia Pty Ltd as the Independent Expert to prepare an Independent Expert Report in relation to the Scheme. In this Report, the Independent Expert expresses the opinion that the Scheme is fair and reasonable and in the best interests of DUI members, in the absence of a superior proposal. A copy of the Independent Expert Report is found at Annexure A of the draft Scheme Booklet.

13 If the Scheme is implemented:

(a) DUI will apply to ASX for suspension of trading. The last day for trading DUI Shares on the ASX will be the date on which the Scheme comes into effect under s 411(10) of the Act;

(b) on the Implementation Date (as defined in the Scheme):

(i) each person who is a DUI shareholder on the Scheme Record Date (other than the “Excluded Shareholder”, being AUI) (Scheme Shareholder) will transfer all of the DUI shares they hold on that date (Scheme Shares) to AUI;

(ii) in consideration for that transfer, Scheme Shareholders will receive newly issued shares in AUI (Scheme Consideration). As detailed below, certain ineligible shareholders will receive cash instead of Scheme Consideration; and

(iii) AUI must procure that the names of Scheme Shareholders are entered in the register of AUI shareholders;

(c) DUI will become a wholly owned subsidiary of AUI; and

(d) DUI will be removed from the Official List of the ASX.

14 The Scheme Consideration is calculated according to a market-based variable mechanism using a formula set out in the Scheme at section 1.1 on page 4. The number of AUI shares issued to a Scheme Shareholder for each Scheme Share will be calculated by reference to the relative pre-tax net tangible assets per share (NTA) of each of DUI and AUI as at the calculation date (which is five business days prior to the Scheme Meeting), adjusted for estimated transaction costs associated with the proposed Scheme. This calculation is to produce an exchange ratio which will represent the number of AUI shares that will be issued for each Scheme Share.

15 The Scheme Booklet provides details of this approach and an indicative exchange ratio of 0.4705, calculated as at 9 March 2026 (section 7.4(b) of the Scheme Booklet). It also provides a series of illustrative example calculations of new AUI shares to which eligible DUI shareholders would be entitled using a range of possible pre-tax NTA amounts for each of DUI and AUI, and demonstrates how Scheme Consideration may change depending on two percent changes in DUI’s and AUI’s pre-tax NTA per share.

16 A copy of the draft Scheme Booklet was first lodged with ASIC on 23 February 2026. This draft was updated following receipt of comments from ASIC and an updated draft was provided to ASIC on 5 March 2026. ASIC subsequently confirmed on 6 March 2026 that it had no further comments on the updated draft. Further minor amendments were made to the draft Scheme Booklet, which are detailed in the Second Sise Affidavit, and this further updated draft was provided to ASIC on 10 March 2026. On 11 March 2026, ASIC provided DUI’s solicitors with a letter in the usual form, known as a “preliminary no objection letter”. This letter was handed up to me during the first court hearing. It stated that ASIC had examined the terms of the Scheme and the draft explanatory statement and, accordingly, did not propose to appear to make submissions or to intervene to oppose the Scheme at the first court hearing. Consistently with this statement, ASIC did not appear at the first court hearing.

17 DUI submitted that it was appropriate for the first court hearing to proceed and for the Court to make the orders sought.

Relevant Principles

18 The principles that apply upon an application to convene a scheme meeting are well-known and have been summarised in a number of recent decisions in this Court: see eg, Re Insignia Financial L imite d [2026] FCA 160 at [24]–[34]; Re RPMGlobal Holdings Limited [2025] FCA 1434 at [25]–[26]; Re Selfwealth Limited [2025] FCA 214 at [20]–[26]; Re PointsBet Holdings Limited [2025] FCA 463 at [15]; Re CW Group Holdings Limited [2024] FCA 1471 at [24]. The principles were conveniently summarised by O’Bryan J in Re Rex Minerals Limited [2024] FCA 1051 at [27], which were extracted by me in Re The Reject Shop Limited [2025] FCA 522 at [14] and by Neskovcin J in Re RPMGlobal at [25], and repeated in identical terms in Re Selfwealth at [20]–[26]:

[21]    Part 5.1 of the Act provides a procedure whereby an arrangement between a company and its members can be made binding on all members. Section 411 is the principal provision. The procedure involves three main steps:

(a)    an application to the Court for an order to convene a scheme meeting (s 411(1));

(b)    if such an order is made, the convening of such a meeting at which a resolution to agree to the scheme is considered (s 411(4)(a)); and

(c)    if the resolution is passed by the necessary majorities, an application to the Court for an order approving the scheme (ss 411(4)(b) and 411(6)).

[22]    The present application concerns the first stage, being an application to the Court for an order to convene the Scheme Meeting. Section 411 of the Act confers a discretion on the Court to make an order convening the Scheme Meeting if certain statutory conditions are met, namely:

(a)    an arrangement is proposed between a Pt 5.1 body and its members (or any class of them (s 411(1));

(b)    an application for the order is made in a summary way by that body (s 411(1));

(c)    14 days’ notice of the hearing of the application has been given to ASIC (or such lesser period as the Court or ASIC permits) (s 411(2)(a)); and

(d)    the Court is satisfied that ASIC has had a reasonable opportunity to:

(i)    examine the terms of the proposed arrangement to which the application relates and a draft explanatory statement relating to the proposed arrangement; and

(ii)    make submissions to the Court in relation to the proposed arrangement and the draft explanatory statement required by s 412 (ss 411(2)(b) and 411(3)).

[23]    In addition to these requirements of s 411, the procedure is regulated by s 412 of the Act and reg 5.1.01 and Sch 8 to the Corporations Regulations 2001 (Cth) (Regulations), and by the Federal Court (Corporations) Rules 2000 (Cth) (Rules). The Regulations and the Rules prescribe certain information which is required to be sent to the members about the Scheme.

[24]     The principles which apply to the exercise of the Court’s discretion at this first stage are well-known. In Re Amcor Ltd [2019] FCA 346 (Amcor), Beach J described the Court’s role at the first court hearing as follows (at [47], emphasis in original):

My function on an application to order the convening of a meeting is supervisory. At this stage I should generally confine myself to ensuring that certain procedural and substantive requirements have been met including dealing with adequate disclosure, with limited consideration of issues of fairness. But having said that, it is appropriate to consider the merits or fairness of a proposed scheme at the convening hearing if the issue is such as would unquestionably lead to a refusal to approve a proposed scheme at the approval hearing, that is, the proposed scheme appears now to be on its face “so blatantly unfair or otherwise inappropriate that it should be stopped in its tracks before going any further” (Re Foundation Healthcare Ltd (2002) 42 ACSR 252 at [44] per French J).

[25]     It is not the Court’s role to usurp the shareholders’ decision whether to agree to a scheme. The question whether or not to accept particular consideration for shares is quintessentially a commercial matter for the members to assess, and they ought not be prevented from having the opportunity to do so, provided that the Court can be satisfied that they are acting on sufficient information and with time to consider what they are voting on: Crown Resorts Ltd, Re Crown Resorts Ltd [2022] FCA 367 (Crown Resorts) at [27], citing Amcor at [50] and Re ACM Gold Ltd (1992) 34 FCR 530 at 534.

[26]    Therefore, if the arrangement is one that seems fit for consideration by the meeting of members, and is a commercial proposition likely to gain the Court’s approval if passed by the necessary majorities, then orders should be made to convene the meeting: Re Foundation Healthcare Ltd [2002] FCA 742; 42 ACSR 252 (Foundation Healthcare) at [36].

[27]     In summary, the Court’s task at the first court hearing is to assess first, whether the statutory prerequisites to the making of orders convening a meeting have been met and second, whether it is appropriate for the Court to exercise its discretion in favour of making those orders. Each of those matters is considered in turn.

The Statutory Prerequisites

19 DUI submitted, and I am satisfied, that all relevant statutory prerequisites have been satisfied.

20 First, s 411(1) of the Act requires that the plaintiff has made an application in relation to a compromise or arrangement that is proposed between a Part 5.1 body and its members. DUI has satisfied these requirements in this case where:

(a) DUI’s application was made by originating process filed on 18 February 2026;

(b) DUI is a “Part 5.1 body”, which is defined in s 9 of the Act to include a company registered under the Act. The ASIC company extract for DUI, found at page 5 of Annexure PGS-1 to the First Sise Affidavit, demonstrates DUI’s registration; and

(c) the proposed Scheme is an “arrangement” between DUI and its members within the meaning of s 411(1).

21 Secondly, s 411(2) of the Act requires: (a) that ASIC be given at least 14 days’ notice of the hearing of an application for orders to convene a scheme meeting, and (b) that ASIC be given a reasonable opportunity to examine the terms of the proposed Scheme and the draft explanatory statement, and to make submissions to the Court. Both requirements have been complied with in this case.

22 ASIC was provided with the originating process and First Sise Affidavit on 18 February 2026 (Second Sise Affidavit at [5]). ASIC’s letter of 11 March 2026 also acknowledges compliance with the requirements in s 411(2) of the Act and states that ASIC is of the view that it has had a “reasonable opportunity”. In this letter, ASIC also states that it has examined the terms of the Scheme and the draft explanatory statement in accordance with its policy in Regulatory Guide 60, and that it did not propose to appear at the first court hearing to make submissions or intervene. In the circumstances, I am satisfied that the requirements in s 411(2) have been satisfied.

23 Thirdly, r 2.4(1) of the Federal Court (Corporations) Rules 2000 (Cth) (Rules) requires that, unless the Court otherwise directs, an originating process must be supported by an affidavit stating the facts in support of the process. Paragraph 3(b) of this Court’s Schemes of Arrangement Practice Note (GPN-SOA) (Practice Note) provides:

The Court will generally be prepared to dispense with the requirement under rule 2.4(1) of the [Rules] for the initial affidavit filed in support of the application to state the facts in support of the Originating Process, where that will be addressed by later evidence. It is ordinarily sufficient for that affidavit to identify, in brief terms, the nature of the scheme and key dates, and annex a company search.

24 The First Sise Affidavit (which was filed with the originating process) has been prepared in accordance with the Practice Note. My Orders of 12 March 2026 therefore included an order dispensing with the additional requirements of r 2.4(1) of the Rules.

25 Fourthly, as required by r 2.4(2) of the Rules, the First Sise Affidavit annexes an ASIC company extract (dated 18 February 2025) carried out no earlier than seven days before the originating process was filed.

26 Fifthly, as required by r 3.2(a) and (b) of the Rules, the necessary evidence about the willingness of the proposed chairperson and alternate chairperson to chair the Scheme Meeting has been provided, including evidence of prior dealings of those persons with DUI and any conflicts of interest (Hiscock Affidavit at [55]–[60]).

27 Sixthly, as required by r 3.3(1) of the Rules, my Orders dated 12 March 2026 annexed a copy of the Scheme.

28 Seventhly, s 412 of the Act and reg 5.1.01 and Schedule 8 (Part 3) of the Corporations Regulations 2001 (Cth) (the Regulations) set out the disclosure requirements in relation to the explanatory statement included within the Scheme Booklet. There are three aspects to the requirements of s 412(1) (see eg, Re The Reject Shop at [26]; Re Points B et at [25]; Re Amcor Limited [2019] FCA 346 at [91]):

(a) first, the explanatory statement must explain the effect of the compromise or arrangement, and in particular state any material interest of the directors, and the effect on those interests of the compromise or arrangement so far as it is different from the effect on the like interests of other persons. The effect of the Scheme is addressed in, among other places, the letter from the Chairperson commencing at page 11 of the Scheme Booklet, and is also addressed in section 7 of the Scheme Booklet. The required information in relation to the material interests of directors is addressed in sections 13.1 and 13.2 of the Scheme Booklet;

(b) secondly, the explanatory statement must set out the prescribed information, being the information set out in reg 5.1.01 and Schedule 8 of the Regulations. This requirement has been fulfilled in relation to both DUI (Hiscock Affidavit at [47]–[53]) and AUI (Kent Affidavit at [8]–[19]); and

(c) thirdly, the explanatory statement must set out any other information that is material to the making of a decision whether or not to agree to the compromise or arrangement. In this respect, it is submitted by DUI, and I accept, that the Scheme Booklet is clear and comprehensive, and (along with the Independent Expert Report annexed to the Scheme Booklet at Annexure A) contains a detailed evaluation of the Scheme, presented in a way that enables a DUI shareholder to form his or her own view of the merits of the Scheme.

29 I note that it is necessary for the Scheme Booklet to be registered by ASIC before being sent to DUI shareholders: s 412(6) of the Act. Before registering the Scheme Booklet, ASIC must conclude that it appears to comply with the requirements of the Act, and must form the opinion that the Scheme Booklet does not contain any matter that is false in a material particular or materially misleading in the form and context where it appears: s 412(7) and (8) of the Act. Assuming the Scheme Booklet is registered, I accept that this provides further assurance as to the satisfaction of the relevant disclosure requirements: see eg, Re CW Group at [25]; Re 5G Networks Limited [2021] FCA 1189 at [55].

30 Finally, as required by paragraph 6 of the Practice Note, a notice is included in the “Important notices” section on page 2 of the Scheme Booklet. Consistently with the requirements in the Practice Note, the notice states that the fact the Court has made the convening orders and approved the explanatory statement does not mean that the Court has formed any view as to the merits of the scheme or how members should vote, or has prepared, or is responsible for, the explanatory statement.

31 In light of the procedural requirements having been met, the Court’s discretion to make the convening orders is enlivened.

Exercise of Discretion

32 The relevant discretionary considerations involve two main questions (see eg, Re Rex Minerals at [35]; Re PointsBet at [30]):

(1) first, whether the Scheme is fit for consideration by the members (see FT Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69 at 72 (Street CJ); Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 at 504 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ)); and

(2) secondly, whether the members are to be properly informed as to the nature of the Scheme (see Re NRMA Insurance Ltd (No 1) [2000] NSWSC 82; 156 FLR 349 at 30; Re Foundation Healthcare Ltd [2002] FCA 742; 42 ACSR 252 at 38).

Is the Scheme fit for consideration by the members?

Terms of the Scheme and MID

33 In considering whether a scheme is fit for consideration by the members, the Court will scrutinise the terms of a scheme to satisfy itself that there is no unfairness that would be likely to preclude the approval of the scheme: Re Rex Minerals at [36]; Re Amcor Limited [2019] FCA 346 at [50]; Re Japara Healthcare Limited [2021] FCA 1150; 156 ACSR 695 at [41].

34 Additionally, in the context of a scheme for transfer of all shares in a company to an acquirer, the Court will also scrutinise the terms of the agreement between the scheme company and the acquirer to implement the scheme (which in this case are recorded in the MID): Re Rex Minerals at [37]. These are commercial terms, the appropriateness of which is a matter for the business judgment of the directors of the company. The Court’s role is to seek to ensure that the terms do not have the potential to cause prejudice or unfairness to the company’s shareholders.

35 In the present case, the terms of the Scheme are in standard form commonly found in acquisition schemes of this kind and I am satisfied that the Scheme does not give rise to the potential to cause prejudice or unfairness to DUI’s shareholders. In reaching this conclusion, I have also had regard to several other factors as outlined below.

Performance risk

36 AUI is not a party to the Scheme and is not directly bound by it. As such, it is important to ensure that AUI is bound to perform the actions attributed to it under the Scheme and that its obligations are able to be enforced (often referred to as “performance risk”): Re Japara at [42]; Re Amcor at [53]; Re DuluxGroup Limited [2019] FCA 961; 136 ACSR 546 at [25].

37 DUI submits, and I accept, that the Scheme effectively eliminates any performance risk by adopting the following safeguards:

(a) first, the terms of the Scheme require that the transfer of the Scheme Shares to AUI is subject to the Scheme Consideration having been issued by AUI to the Scheme Shareholders in accordance with the Scheme. This effectively eliminates any performance risk in so far as the transfer of the Scheme Shares is concerned; and

(b) secondly, consistently with the usual practice, AUI has executed a Deed Poll in favour of Scheme Shareholders binding AUI to perform the actions attributed to them under the Scheme, including the issue of the Scheme Consideration.

Scheme Consideration

38 Where the nature of consideration under a proposed scheme is sufficiently disclosed, it is well established that consideration for scheme shares being contingent on future events is not a reason to decline approval of the scheme: Re BG&E Group Limited [2025] FCA 1232 at [36], citing Re Centrebet International Limited [2011] FCA 870 at [17]–26 and Re Patersons Securities Limited [2019] FCA 1438 at 8.

39 At the first hearing, Counsel drew my attention to the decision of Hill J in Re Ozgrowth Limited [2022] WASC 107. In this case, the Court considered a scheme involving listed investments companies where the scheme consideration would be calculated two business days prior to the scheme meeting, but would not be finalised and announced until two days after the scheme meeting. The number of shares that each shareholder was to receive in this case was to be calculated using a formula based on the ratio of the volume weighted average price of shares in the acquirer and a 7.5% premium to the NTA of the target companies on the calculation date.

40 In dealing with the Scheme Consideration, Hill J held at [60]–[61]:

…at all stages, the shareholders will be aware of the basis on which the Scheme Consideration is calculated. Each of the Scheme booklets includes an explanation of the formula used to calculate the Scheme Consideration. The draft Scheme booklets that were provided to me included worked examples as to the Scheme Consideration shareholders would receive on the assumption of a fixed NTA for [the target companies] and a variation in the share price or VWAP of [the acquiring company].

…courts have previously accepted that the quantum of consideration for a scheme may be determined by reference to a formula. In previous schemes involving listed investment companies, a market based variable consideration mechanism has been adopted without concern being expressed by the court at the first court hearing. The rationale for the use of a formula is that for listed investment companies, whose assets comprise securities traded on the ASX or other stock exchanges, their NTA will vary each day with the listed prices of the various securities held by the company. For this reason, transactions involving listed investment companies tend to set the valuation and calculation of the consideration by reference to an agreed premium on NTA shortly prior to the implementation of the transaction. (emphasis added)

41 DUI submits, and I accept, that there is nothing inherently unfair in the Scheme Consideration being determined on the basis of the most up-to-date financial position of the parties. In fact, it is commonplace in transactions of this type involving listed companies. I am satisfied that the details of the calculation of Scheme Consideration are adequately disclosed in the Scheme Booklet, such that no prejudice or unfairness would be suffered by DUI’s shareholders.

Potential class issues

42 The test for when a separate class is required is well established. The relevant question to ask is (Re Hills Motorway Limited [2002] NSWSC 897; 43 ACSR 101 at 12):

…whether the rights and entitlements of the different groups, viewed in the totality of the scheme's context, are so dissimilar as to make it impossible for them to consult together with a view to their common interest. The focus is not on the fact of differentiation but on its effects. The extent and nature of the differentiation must be measured in terms of the effect on the ability to consult together in a common interest, or, in other words, the ability to come together in a single meeting and to debate the question of what is good or bad for the constituency as a whole and where the common good lies. Only if the differentiation destroys that ability – the word used by Bowen LJ is "impossible" – does class distinction come to prevail. (emphasis added)

43 The application of this general test to any particular case requires making a commercial evaluative judgment of the transactions, circumstances and consequences said to justify the delineation, in the context of the particular scheme and its effect overall: Re Healthscope Limited [2019] FCA 542; 139 ACSR 608 at [118].

44 Courts have consistently expressed the need for causation in separating classes, except in a clear case. As explained by Beach J in Re Healthscope at [118]:

… one should be cautious about stipulating separate classes. It can easily and wrongly empower a minority view…If the minority view against a scheme has been put into a separate class, you may have unnecessarily created a power of veto if for the particular scheme all classes need to achieve the requisite statutory majorities for the thing to work. Further, if the minority view against a scheme has been left with the general body but you have put in a separate class a shareholder who would have voted in favour, then you have relatively increased the voting power of the minority in the general body making it easier to defeat the scheme. As I say, all of this suggests that one should be cautious in separating classes except in a clear case. … A "practical business-like approach" must be adopted. Otherwise you are locking in unnecessary downside, particularly when you do not need to given the second stage approval security that can take place.

45 There are three features of the Scheme which may give rise to a potential class issue. I will address each in turn.

Voting intention of IPF

46 As addressed above, IPF is a significant shareholder of both DUI and AUI. IPF has confirmed that it intends to vote, or cause to be voted, all of its shares in favour of the Scheme, in the absence of a superior proposal: Hiscock Affidavit at [34(a)]. DUI submits, and I accept, that a voting intention statement will not ordinarily be class-creating: Re ERM Power Limited [2019] NSWSC 1502 at [21]. Nothing in this case justifies departure from this position.

IPF Option Agreement

47 IPF has also entered into a call option agreement with AUI under which AUI has the right to acquire up to 27,977,060 DUI shares (representing approximately 13% of all DUI shares) held by IPF in exchange for newly issued shares in AUI (IPF Option Agreement). The terms of the IPF Option Agreement are summarised in section 13.3 of the Scheme Booklet. If the call option is exercised, IPF will receive for each share in DUI acquired under the IPF Option Agreement a number of newly issued shares in AUI. The number of newly issued shares will be calculated using the same method as under the Scheme with two differences:

(a) first, the calculation date under the IPF Option Agreement is the date on which the option is exercised, whereas Scheme Consideration will be calculated five business days prior to the Scheme Meeting. These two dates may not necessarily align; and

(b) secondly, when calculating the Scheme Consideration, each of AUI and DUI must treat as a liability its estimated costs in relation to the transaction contemplated by the Scheme to be incurred up to implementation of the Scheme. This is not done is respect of the IPF Option Agreement.

48 The call option is exercisable by AUI only if a Competing Proposal (as defined in clause 10 of the IPF Option Agreement) is made (Hiscock Affidavit at [35]).

49 If AUI validly exercises the options under the IPF Option Agreement, the DUI shares it acquires as a consequence will be excluded from voting at the Scheme Meeting (Hiscock Affidavit at [26]).

50 DUI submits, and I accept, that options to acquire shares at a price equivalent to the Scheme Consideration, which are triggered by the emergence of a competing proposal, do not give rise to different interests that require the person who grant those options (here, IPF) to vote in a separate class at the scheme meeting: see eg, Re Damstra Holdings Limited [2024] NSWSC 284 at [15], citing Re Mitchell Communication Group [2010] VSC 423 at [35]–[38], Re MAC Services Group Limited [2010] NSWSC 1316; 80 ACSR 390 at [16] and Re Aston Resources Limited [2012] FCA 229 at [47].

Ineligible shareholders

51 There are two categories of DUI shareholders that will be ineligible to receive the Scheme Consideration:

(a) Those in the first category are referred to in the Scheme as an “Ineligible Foreign Shareholder”, being a DUI shareholder that, on the Scheme Record Date, has an address outside of Australia and its external territories, unless determined by AUI that it is lawful and not unduly onerous or impracticable to issue new AUI share to these shareholders.

(b) Those in the second category are referred to in the Scheme as an “Unmarketable Parcel Shareholder”, being a DUI shareholder that, based on their holding of Scheme shares, would be entitled to receive less than a marketable parcel (as defined in the ASX Listing Rules) of new AUI shares.

52 Under sections 5.3 and 5.4 of the Scheme, if there are any Ineligible Foreign Shareholders, then new AUI shares which both Ineligible Foreign Shareholders and Unmarketable Parcel Shareholders would otherwise have been entitled to receive under the Scheme will be issued to the sale agent and sold. The net proceeds of the sale will be paid to the relevant shareholder. If there are no Ineligible Foreign Shareholders, Unmarketable Parcel Shareholders will receive a cash amount from AUI equal to the “Market Value” of the new AUI shares that would have otherwise been issued to them. Additionally, any Unmarketable Parcel Shareholder who is not an Ineligible Foreign Shareholder has the option to elect to receive new AUI shares directly by validly completing and returning an election form before the effective date.

53 These arrangements are materially identical to those considered by Beach J in Re Capitol Health Limited [2024] FCA 1120. In this case, his Honour held as follows:

Ineligible foreign shareholders

[92]    Further, the treatment of ineligible foreign shareholders in the context of a scrip scheme, where the relevant shares are issued to a sale agent with the relevant proceeds remitted to the relevant shareholder, does not require separate classes. See my observations in Re Amcor Limited [2019] FCA 346 at [39] to [44] and the rationale referred to in those paragraphs, and see also Re Newcrest Mining Limited at [27].

Unmarketable parcel shareholders

[93]     Further, the treatment of unmarketable parcel shareholders whereby they receive cash rather than scrip does not require separate classes. The treatment of unmarketable parcel shareholders can arise in different scheme contexts, including in an all scrip scheme where the scrip consideration to which they would otherwise have been entitled are issued to and sold by a sale agent (like the position with ineligible foreign shareholders) and a scheme involving a choice between cash consideration or scrip consideration (or a combination of both) and where the unmarketable parcel shareholder only has the option of receiving the cash consideration.

[94]     The proposed treatment of unmarketable parcel shareholders is now common and there is a proper justification for not burdening registers of public companies with small holdings whilst also enabling a small shareholder to efficiently exit the register. Unmarketable parcel shareholders could nevertheless make an election to opt-in to receive the scrip consideration, and having the ability to opt-in clearly mitigates against any class question arising.

[95]     In the present case, the proposed treatment of the unmarketable parcel shareholders is the same as that which is to apply to any ineligible foreign shareholder. In the event that there are no ineligible foreign shareholders, then the alternative cash payment mechanism set out in the scheme will apply…

[96]     Whether an unmarketable parcel shareholder receives the relevant proceeds of sale from the sale agent process or a cash amount from IDX under the scheme, in both cases the relevant amount reflects the market price of the IDX shares at the relevant time. Accordingly, this aspect of the proposed treatment of the unmarketable parcel shareholders does not require separate classes.

[97]     In any event, an unmarketable parcel shareholder, who is not an ineligible foreign shareholder, can under the scheme elect that the relevant provisions not be applied to them by validly completing and returning before the effective date an election form available on request from the Capitol’s share registry, in which case they will receive the new IDX shares directly on implementation, subject to the terms of the scheme. This ability to receive, through a positive election, new IDX shares mitigates further against any element of differentiation that may otherwise arise for consideration in the context of class composition.

[98]     Now differing approaches have been adopted regarding the question of elections by unmarketable parcel shareholders, including the approach of no provision for such an election to the approach of the provision by the scheme company of an opt-in notice. But in the present case, under the scheme, an election form is available upon request from the Capitol registry. The ability for an unmarketable parcel shareholder to make such a request is set out in the scheme booklet. Given the relatively small number of unmarketable parcel shareholders on the Capitol register, being some 10.6% of Capitol shareholders by number holding 0.021% of Capitol shares on issue, and the fact that the composition of this group could readily change due to off market sales or transfers of these shares and taking account of the express notice given to such shareholders about the ability to make an election, the approach proposed to be adopted by Capitol is reasonable.

54 These observations apply equally to the present Scheme, and I see no reason to depart from them. Accordingly, no separate class is required for either of the Ineligible Foreign Shareholders or Unmarketable Parcel Shareholders.

Director interests and benefits

55 As outlined above, all directors of DUI hold shares in DUI. These amount in aggregate to less than 5% of the total number of DUI shares on issue (Scheme Booklet at section 13.1). In addition, two directors of DUI director hold shares in AUI which amount to 1.66% of the total number of AUI shares on issue (Scheme Booklet at sections 9.4(a), 9.9 and 13.2). Other than their entitlement to receive Scheme Consideration as DUI shareholders, the DUI directors will not receive any payment or other benefit in connection with the Scheme (Scheme Booklet at section 13.2(c)).

56 As I have already addressed, to address potential conflicts of interest in relation to the Scheme, an independent board committee was established (comprising of those DUI directors who had no interest in AUI) to consider the merger proposal and whether to proceed with the Scheme. The only interest held by the members of the independent board committee in the Scheme is the holding of DUI shares, which will be treated under the Scheme in the same way as all other DUI shares: Hiscock Affidavit at [56]–[60]. This interest is disclosed in the Scheme Booklet at section 13.1.

57 In the circumstances, I am satisfied with the approach taken with respect to the interests of DUI directors in the Scheme.

Break fee and exclusivity provisions

58 The break fee and exclusivity provisions can be dealt with briefly:

(a) The MID includes the “common feature” of a break fee which I do not consider to be excessive or coercive in nature, and is in terms which are consistent with the requirements of relevant authorities: see eg, Re Japara at [50].

(b) The break fee, consistently with the guideline in [48] of the Takeovers Panel Guidance Note No. 7 Deal Protection (August 2023), represents 1% of the implied equity value of DUI as at the date of the MID: Hiscock Affidavit at [42].

(c) The break fee is not framed so as to coerce shareholders into agreeing to the Scheme. Specifically, the break fee is not payable by reason of the DUI shareholders failing to approve the Scheme: Re Rex Minerals at [54].

(d) The exclusivity provisions are in standard form, and contain the usual fiduciary carve-outs, which I consider to be appropriate. The period for their application is a maximum of nine months from the date of the MID, a period which has previously been accepted in comparable transactions: see eg, Re ELMO Software Pty Ltd [2023] NSWSC 12 at [29]; Re Vocus Group Limited [2021] NSWSC 630 at [17]; Re iSelect Limited [2022] FCA 1329; 164 ACSR 310 at [58]. This period is similarly appropriate here.

Are the members to be properly informed?

59 The second principal matter relevant to the exercise of the Court’s discretion to convene a scheme meeting is the adequacy of the information to be provided to shareholders. If the Court is satisfied that the statutory disclosure requirements are met, it will ordinarily be satisfied that the information to be provided to shareholders is adequate for the purposes of the exercise of the Court’s discretion to convene a Scheme meeting: Re Rex Minerals at [55]; Re Japara at [74]–[75].

60 As explained above, I am satisfied that the statutory disclosure requirements are met. In addition, as stated previously, DUI has obtained an Independent Expert Report despite not being required to do so under reg 5.1.01 and Sch 8, reg 8303 of the Regulations. For these reasons, I am satisfied that the members of DUI are to be properly informed.

Section 411(17) of the Act

61 The Court’s power to approve a scheme is restricted by section 411(17) of the Act. As correctly submitted by DUI, this is a matter which affects the second court hearing, rather than the making of an order to convene a scheme meeting: R e R ex Minerals at [72], citing Re Macquarie Private Capital A Limited [2008] NSWSC 323; 26 ACLC 366 at [27].

62 Section 411(17) does not present a bar to a meeting being convened at the first court hearing if it seems likely that ASIC will produce the relevant statement referred to in s 411(17)(b) at the second court hearing: Re Rex Minerals at [74], citing Re Lonsdale Financial Group Limited [2007] VSC 394 at [40]. In the present case, where ASIC does not oppose the application to convene the Scheme Meeting, it is appropriate to proceed on the basis that ASIC will provide a statement for the purpose of s 411(17)(b).

Conclusion on the exercise of discretion

63 I am satisfied that the Scheme is of such a nature and cast in such terms that, if it achieves the statutory majorities at the Scheme Meeting, the Court would be likely to approve it, and that the Scheme Booklet will properly inform members as to the nature of the Scheme. Accordingly, it is appropriate to make the orders sought convening the Scheme Meeting.

The Explanatory Statement

64 Pursuant to s 411(1) of the Act, if the Court has made an order convening a meeting of members or creditors, the Court “may approve the explanatory statement required by paragraph 412(1)(a) to accompany notices of the meeting” (which in this case is in the form of the Scheme Booklet).

65 The practice of courts varies in this respect, however recent practice in this Court is that such an order is not made, and DUI did not seek such an order: Re RXP Services Limited [2021] FCA 38 at [70]; Re Rex Minerals at [76]. Accordingly, I have not made such an order.

66 DUI has filed evidence as to the manner in which the Scheme Booklet is proposed to be sent to DUI shareholders: Stokes Affidavit at [12]–[18]. The proposal is to adopt a mixture of electronic and hard-copy dispatch that has been commonplace in schemes of arrangement for some time: see eg, Re PointsBet at [45]; Re Rex Minerals at [77]–[78]. I am satisfied that these methods comply with the requirements of Div 2 of Pt 1.2AA of the Act.

67 In accordance with paragraph 3(k) of the Practice Note, the nature of DUI’s intended communications with shareholders has been disclosed in [19]–[21] of the Stokes Affidavit.

Notice of Second Court Hearing

68 Rule 3.4 of the Rules provides that, unless the Court otherwise orders, the plaintiff must publish a notice of the second court hearing, in accordance with Form 6, in a newspaper at least five days before the date of the hearing. However, paragraph 3(f) of the Practice Note states that the Court will be prepared to dispense with this requirement if notice can be given by an announcement made on the ASX. DUI proposes to adopt this course and accordingly sought an order dispensing with compliance with r 3.4 of the Rules. This approach has been adopted in a number of recent cases before the Court including Re PointsBet and Re Insignia Financial. I am satisfied it is appropriate that I make such an order here.

Disposition

69 I am satisfied that this is a suitable case for the Court to exercise its discretion to make orders convening a Scheme Meeting to enable the Scheme to be considered. Accordingly, with minor amendments, I make the orders sought by the Plaintiff at the conclusion of the hearing on 12 March 2026.

| I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington. |
Associate:

Dated: 30 March 2026

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