In the matter of InvoCare Limited (No 2) [2023] NSWSC 1350

Supreme Court New South Wales

Medium Neutral Citation: In the matter of InvoCare Limited (No 2) [2023] NSWSC 1350 Hearing dates: 3 November 2023 Date of orders: 3 November 2023 Decision date: 08 November 2023 Jurisdiction: Equity - Corporations List Before: Black J Decision: Orders made approving a scheme of arrangement. Catchwords: CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved. Legislation Cited: - Corporations Act 2001 (Cth), ss 411, 1319 Cases Cited: - Re ELMO Software Ltd (No 2) [2023] NSWSC 81 - Re InvoCare Ltd [2023] NSWSC 1180 - Re Pendal Group Ltd (No 3) [2023] NSWSC 14 - Re Permanent Trustee Co Ltd (2002) 43 ACSR 601 - Re Seven Network Ltd (No 3) (2010) 267 ALR 583 - Re Staging Connections Group Ltd (No 2) [2015] FCA 1102 Category: Principal judgment Parties: InvoCare Ltd (Plaintiff) Eternal Aus BidCo Pty Ltd (Bidder) Representation: Counsel: D Thomas SC (Plaintiff) J Sheahan KC/R Jameson (Bidder)

Solicitors: Clayton Utz (Plaintiff) Gilbert & Tobin (Bidder) File Number(s): 2023/268572

Judgment 1. By Originating Process filed on 23 August 2023, the Plaintiff, InvoCare Ltd ("InvoCare"), sought orders under ss 411 and 1319 of the Corporations Act 2001 (Cth) ("Act") that it convene and hold a meeting of holders of its fully-paid ordinary shares to consider and, if thought fit, agree to a scheme of arrangement and associated orders. The scheme provides for the transfer of all InvoCare shares to Eternal Aus BidCo Pty Ltd ("Bidder") by InvoCare shareholders in consideration for cash, Class B shares in Eternal Aus HoldCo Ltd ("HoldCo"), the Bidder's holding company, or a combination of the two, at the shareholder's election and subject to specified limits. I made the orders sought by InvoCare at the end of the first Court hearing on 22 September 2023, for the reason set out in my judgment delivered on 29 September 2023 ([2023] NSWSC 1180). 2. A meeting of InvoCare shareholders was held on 31 October 2023 and the resolution to approve the scheme was passed by 81.01% of votes cast and by 85.39% of InvoCare shareholders present and voting. On 31 October 2023, InvoCare announced that it would declare a special dividend of $0.60 per InvoCare share, which is conditional upon, among other things, the scheme becoming effective. The cash consideration per InvoCare share that the Bidder must pay to InvoCare shareholders will be reduced by the amount of that special dividend so that the total amount received by an InvoCare shareholder remains $12.70 per InvoCare share. 3. InvoCare now seeks orders at the second Court hearing that the scheme be approved pursuant to s 411(4)(b) of the Act. I made the orders sought at the end of the second Court hearing on 3 November 2023 and these are my reasons for doing so. I have drawn on the helpful submissions of Mr Thomas, who appeared for InvoCare in this application, in this judgment.