Symbio Holdings Limited, in the matter of Symbio Holdings Limited [2023] FCA 1676

Federal Court of Australia

Symbio Holdings Limited, in the matter of Symbio Holdings Limited [2023] FCA 1676 File number: NSD 1331 of 2023

Judgment of: YATES J

Date of judgment: 22 December 2023

Date of publication of reasons: 1 February 2024

Catchwords: CORPORATIONS – scheme of arrangement – first court hearing – application for order under s 411(1) of the Corporations Act 2001 (Cth) to convene meeting of members

Legislation: Corporations Act 2001 (Cth) ss 411, 412

Cases cited: Symbio Holdings Limited, in the matter of Symbio Holdings Limited (No 2) [2024] FCA 40

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Number of paragraphs: 43

Date of hearing: 22 December 2023

Counsel for the Plaintiff: Mr I Ahmed SC

Solicitor for the Plaintiff: King & Wood Mallesons

Counsel for Aussie Broadband Limited: Mr T O'Brien

Solicitor for Aussie Broadband Limited: Gadens Lawyers

ORDERS NSD 1331 of 2023 IN THE MATTER OF SYMBIO HOLDINGS LIMITED (ACN 118 699 853) SYMBIO HOLDINGS LIMITED (ACN 118 699 853) Plaintiff

order made by: YATES J DATE OF ORDER: 22 DECEMBER 2023

THE COURT ORDERS THAT: Scheme meeting 1. Pursuant to s 411(1) of the Corporations Act 2001 (Cth) (Act), Symbio Holdings Limited (Symbio) convene a meeting (Scheme Meeting) of the holders of fully paid ordinary shares in the capital of Symbio (Symbio Shareholders) for the purpose of considering and if thought fit approving (with or without modification) a scheme of arrangement proposed to be made between Symbio and Symbio Shareholders (Scheme), the terms of which are set out in Annexure B of the "Scheme Booklet" which is Exhibit 1 in this proceeding. 2. The Scheme Meeting be held as a virtual meeting on Wednesday, 7 February 2024 commencing at 11 am (Sydney time) through the online meeting platform at https://meetings.linkgroup.com/SYMScheme24 (Online Meeting Platform) (the meeting to be accessed substantially in accordance with the instructions contained in the Notice of Scheme Meeting set out in Annexure E of the Scheme Booklet). 3. The Scheme Meeting be convened, held and conducted in accordance with the provisions of Pt 2G.2 of the Act that apply to members of a company and the provisions of Symbio's constitution that are not inconsistent therewith and that apply to meetings of members. 4. Pursuant to s 411(1) and s 1319 of the Act, the Scheme Meeting be convened by sending on or before 28 December 2023 to each Symbio Shareholder whose name is recorded on Symbio's register of members as being Symbio Shareholders as at the date of the Scheme Booklet: (a) in the case of each Symbio Shareholder who has made an election to receive shareholder communications electronically (Electronic Preferred Shareholder), a personalised email substantially in the form of the pro forma version at Tab 28 of Exhibit HMF-1 of the Affidavit of Helen Mary Fraser sworn on 20 December 2023 containing links which allow the recipient to: (i) view and download a copy of the Scheme Booklet substantially in the form of Exhibit 1 in the proceedings; (ii) lodge a proxy vote for the Scheme Meeting online; and (iii) access the Online Meeting Platform to view, listen to and participate in the Scheme Meeting online; (b) in the case of each Symbio Shareholder who has made an election to receive certain shareholder communications in hard copy (Non-Electronic Preferred Shareholder), the following documents to be sent by prepaid post: (i) a copy of the Scheme Booklet substantially in the form of Exhibit 1 in the proceedings; (ii) a personalised proxy form substantially in the form of the pro forma version at Annexure G of the Scheme Booklet; (iii) a personalised election form substantially in the form of the pro forma version at Annexure H of the Scheme Booklet; (iv) a personalised question form substantially in the form of the pro forma version at Tab 29 of Exhibit HMF-1; and (v) a reply-paid envelope addressed to Link Market Services; (c) in the case of each Symbio Shareholder who has not made an election as to how to receive shareholder communications (Non-Election Shareholder), the following documents to be sent by prepaid post: (i) a personalised letter substantially in the form of the pro forma version at Tab 30 of Exhibit HMF-1 containing links which allow the recipient to do the things referred to in Orders 4(a)(i) and 4(a)(iii) above; (ii) a personalised proxy form substantially in the form of the pro forma version at Annexure G of the Scheme Booklet; (iii) a personalised election form substantially in the form of the pro forma version at Annexure H of the Scheme Booklet; (iv) a personalised question form substantially in the form of the pro forma version at Tab 29 of Exhibit HMF-1; and (v) a reply-paid envelope addressed to Link Market Services. 5. If Symbio receives (through its share register provider, Link Market Services) a "bounce back" notification that the email sent to the Electronic Preferred Recipient (as referred to in Order 4(a) above) was not delivered to the nominated email address of the Electronic Preferred Recipient, Symbio send to those Electronic Preferred Recipients the documents referred to in Order 4(c)(i) to Order 4(c)(v) above by prepaid post. 6. Pursuant to s 1319 of the Act: (a) Symbio may determine that, for the purposes of the Scheme Meeting, all the shares in Symbio be taken to be held by the person, persons or bodies corporate who held them as at 7 pm on Monday, 5 February 2024 (Sydney time) as recorded in the Register; (b) Symbio may determine that only the proxy forms in relation to the Scheme Meeting that are received by Symbio by no later than 11 am on Monday, 5 February 2024 (Sydney time) are valid; (c) the Chairperson of the Scheme Meeting be Anne Ward or, failing her, Leanne Heywood OAM; (d) the Chairperson of the Scheme Meeting shall have the power to adjourn the meeting in their absolute discretion to such time, date and place as they consider appropriate; and (e) a poll must be taken to decide the resolutions put to the vote at the Scheme Meeting, except for procedural motions. Dispensation from Federal Court (Corporations) Rules 2000 (Cth) 7. Pursuant to r 1.3 of the Federal Court (Corporations) Rules 2000 (Cth) (FCR), compliance with r 2.4(1) of the FCR be dispensed with to the extent that the rule requires the affidavit filed with the Originating Process, being the Affidavit of Alexander Basil Morris sworn 10 November 2023, to state all the facts in support of the Originating Process. 8. Pursuant to r 1.3 of the FCR, r 2.15 of the FCR not apply to the Scheme Meeting save in respect of the application of r 75-15(2) of the Insolvency Practice Rules (Corporations) 2016 (Cth). 9. Pursuant to r 3.4(2) of the FCR, Symbio be relieved from compliance with r 3.4 of the FCR, conditional on Symbio publishing on or before Thursday, 8 February 2024 an announcement via the ASX Market Announcements Platform substantially in the form of Tab 27 of Exhibit PS-1 to the Affidavit of Paul Schroder sworn on 20 December 2023. Second Court Hearing 10. The proceeding be stood over until 10.15 am on Friday, 16 February 2024 before Yates J for the hearing of any application to approve the Scheme. Other 11. Symbio be granted liberty to apply. 12. These orders be entered forthwith. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.