DDH1 Limited, in the matter of DDH1 Limited (No 2) [2023] FCA 1046

Federal Court of Australia

DDH1 Limited, in the matter of DDH1 Limited (No 2) [2023] FCA 1046 File number: WAD 175 of 2023

Judgment of: COLVIN J

Date of judgment: 5 September 2023

Legislation: Corporations Act 2001 (Cth) s 411

Cases cited: Amcom Telecommunications Limited, in the matter of Amcom Telecommunications Limited (No 2) [2015] FCA 410 DDH1 Limited, in the matter of DDH1 Limited [2023] FCA 982

Division: General Division

Registry: Western Australia

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Number of paragraphs: 11

Date of hearing: 4 September 2023

Counsel for the Plaintiff: Mr AJ Papamatheos with Ms CN Bloch

Solicitor for the Plaintiff: Clayton Utz

Counsel for the Interested Party: Mr JRC Sippe

Solicitor for the Interested Party: Johnson Winter & Slattery

ORDERS WAD 175 of 2023 IN THE MATTER OF DDH1 LIMITED (ACN 636 677 088) DDH1 LIMITED (ACN 636 677 088) Plaintiff

PERENTI LIMITED (ACN 009 211 474) Interested Party

order made by: COLVIN J DATE OF ORDER: 5 September 2023

THE COURT ORDERS THAT:

1. The orders of the Court made on 16 August 2023 in this proceeding (August Orders) be supplemented or varied, as applicable, in accordance with these orders. 2. Pursuant to s 411(1) and s 1319 of the Corporations Act 2001 (Cth), the supplementary explanatory statement in a form substantially equivalent to the form that is annexure GD-35 to the sixth affidavit of Georgia Kaye Jennifer Denny (sworn and filed in this proceeding on 5 September 2023) is approved for distribution to holders of fully paid ordinary shares (Shares) in the capital of the plaintiff (Shareholders), subject to: (a) the correction of any minor typographical errors or grammatical errors and final typesetting and formatting; (b) any minor amendments required or approved by the Australian Securities and Investments Commission (ASIC) for registration under s 412(6) of the Corporations Act; (c) correction or update of any relevant date references; and (d) any other amendments approved by the Court, (Supplementary Scheme Booklet) 3. Pursuant to s 1319 of the Corporations Act, subject to registration of the Supplementary Scheme Booklet with ASIC pursuant to s 412(6), the plaintiff dispatch on or before 7 September 2023 a document substantially in the form of the Supplementary Scheme Booklet to those Shareholders who appear on the register of members of the plaintiff as at 5.00 pm (AWST) on 4 September 2023 by sending: (a) in the case of each Shareholder who has nominated an email address for the purpose of receiving shareholder communications (Email Shareholder): (i) an email, substantially in the form of Annexure A, to the nominated email address, with such email to contain website links accessible by the Email Shareholder which enables the Email Shareholder to access and download the Supplementary Scheme Booklet; (b) in the case of each other Shareholder who has expressly elected to receive shareholder communications by post (Postal Shareholder), using the methods of service set out at order 4 below: (i) a copy of the Supplementary Scheme Booklet; (c) in the case of each other Shareholder who is not an Email Shareholder or Postal Shareholder, using the methods of service set out in order 4 below: (i) a letter, substantially in the form of Annexure A, with such letter to contain the address of a website which enables those Shareholders to access and download the Supplementary Scheme Booklet, and a phone number by which those Shareholders may request to be sent print copies of the Supplementary Scheme Booklet. 4. The plaintiff shall dispatch the documents identified in orders 3(b) and 3(c) above: (a) to each Shareholder who has a registered address in Australia, by pre-paid post; and (b) to each other Shareholder who has a registered address outside Australia, by pre-paid international airmail or air courier. 5. If it comes to the attention of the plaintiff that any email dispatched in accordance with order 3(a) results in the return of a receipt or notice that the email was undeliverable, then, in respect of that Shareholder, the plaintiff will forthwith thereafter dispatch the documents identified in order 3(c) using the method of service set out in order 4. 6. Dispatch of the documents referred to above, in accordance with the terms of the orders above, together with dispatch of the documents outlined at orders 5 and 7 of the August Orders, in the manner outlined in order 6 of the August Orders, shall be taken to be sufficient notice of the Scheme Meeting. 7. Pursuant to s 1319 of the Corporations Act, the plaintiff make available a copy of the Supplementary Scheme Booklet on the plaintiff's ASX announcements platform and on its website. 8. Valid proxy appointments for the Scheme Meeting that have already been lodged by Shareholders remain valid provided that the Shareholder continues to be a registered Shareholder as at 1.00 pm (AWST) on 16 September 2023 and unless, by 1.00 pm (AWST) on Saturday, 16 September 2023: (a) the proxy appointment has been withdrawn; (b) the proxy appointment has been revoked; or (c) a new proxy appointment is submitted by the same Shareholder, which will be taken to revoke any previously submitted proxy appointment. 9. The proceeding be adjourned to 10.15 am AWST on 26 September 2023, for the hearing of an application to approve the Scheme. 10. Pursuant to r 5.04(1) and (3) (Item 23(a)) of the Federal Court Rules 2011 (Cth), evidence of the dispatch of the Scheme Booklet and the Supplementary Scheme Booklet in accordance with the August Orders and these orders respectively, be given by way of statement on oath on information and belief, at the 26 September 2023 approval hearing. 11. The plaintiff have liberty to apply upon giving 24 hours' notice to ASIC.