In the matter of Online Media Holdings Limited (No 2)

1. [1]

   By Originating Process filed on 21 March 2025, Online Media Holdings Ltd (“OMHL”) applied under s 411 of the Corporations Act 2001 (Cth) (“Act”) for orders relating to a proposed scheme of arrangement and associated orders. By way of background, OMHL provides contact centre as a service and voice solutions to retail, financial services and other market sectors. I made the orders sought by OMHL to convene the scheme meeting at the conclusion of the hearing on 8 April 2025 for the reasons set out in my judgment in Re Online Media Holdings Limited [2025] NSWSC 378. The scheme meeting was held on 5 May 2025 and the scheme was then approved by the requisite majorities of OMHL shareholders for the purposes of s 411(4)(a)(ii) of the Act.

2. [2]

   At this second Court hearing, OMHL seeks orders approving the scheme. No OMHL shareholder or other person indicated an intention to appear at this hearing or appeared to oppose the approval of the scheme and I made the orders sought by OMHL at the conclusion of this hearing. These are my reasons for making those orders, and I have drawn on the helpful submissions of Dr Austin who appears for OMHL in this judgment.

Affidavit evidence

1. [3]

   OMHL reads the affidavits dated 8 May 2025 of Ms Samantha Soundara, who is a Customer Success Manager at Automic Group, which was engaged by the Company to provide share registry services, and the affidavit dated 8 May 2025 of Mr Kim Jacobs, who chaired the relevant meetings. OMHL also tenders conditions precedent certificates dated 12 May 2025 executed by OMHL and Zendesk Pty Ltd in respect of the satisfaction or waiver of the conditions precedent to the scheme; a letter dated 9 May 2025 from the Australian Securities and Investments Commission (“ASIC”) stating that ASIC has no objection to the scheme pursuant to s 411(17)(1)(b) of the Act; and a scheme meeting proxy voting form.

Applicable principles and submissions

1. [4]

   Dr Austin, wo appears for OMHL, summarises the applicable principles as follows, with reference to the case law:

2. [5]

   I accept that the Court will have regard to the several matters to which Dr Austin refers in determining whether to approve a scheme: Re Permanent Trustee Co Ltd (2002) 43 ACSR 601; [2002] NSWSC 1177 at [8]-[10]; Re Central Pacific Minerals NL [2002] FCA 239 at [8]-[14] (“Central Pacific Minerals”); Re Seven Network (No 3) (2010) 267 ALR 583; [2010] FCA 400 at [35]-[39]; Re Solution 6 Holdings Ltd (2004) 50 ACSR 113; [2004] FCA 1049 at [18]-[24]; Re Redcape Property Fund Ltd and the Trust Company (RE Services) Ltd (as the responsible entity for the Redcape Property Trust) [2012] NSWSC 486 at [7]; Re Amcor Ltd (No 2) [2019] FCA 842 at [7]-[11]; Re Ellerston Global Investments Ltd [2020] NSWSC 1108 at [10]-[12] (“Ellerston”); Re Coca-Cola Amatil Ltd [2021] NSWSC 489 at [9]; Re Pendal Group Ltd (No 3) [2023] NSWSC 14 at [9]. I also accept that, as Dr Austin points out, the Court will also have regard to shareholders’ assessment of their interests as manifested in the voting results on the scheme resolution in recognising that shareholders are “the best judges of whether an arrangement is to their commercial advantage”: Central Pacific Minerals at [13]; Ellerston at [10].

Submissions and determination

1. [6]

   There is evidence that OMHL complied with the Court’s orders in respect of the distribution of scheme documents to its shareholders. The scheme meeting and a subsequent extraordinary general meeting were held on 5 May 2025 and OMHL shareholders voted in favour of the scheme by the requisite statutory majorities. All shareholders who voted were in favour of the scheme resolution and the EGM resolution, and, where some shareholders submitted proxy forms which were undirected, Mr Jacobs used his power as chair to vote in favour of the respective resolutions. There was a high voting participation rate at the scheme meeting, with a turnout of 90.3% of OMHL shareholders eligible to vote and 98.53% of the votes capable of being cast. There is no suggestion of any defect in the notice of the scheme given to OMHL shareholders. The other statutory requirements for the scheme have been satisfied.

2. [7]

   The scheme was recommended by OMHL’s directors and the independent expert whose report was included in the scheme booklet had expressed the view that the scheme was in the best interests of OMHL shareholders in the absence of a superior proposal. There is no reason to doubt that the scheme is fair and reasonable so that an intelligent and honest OMHL shareholder, properly informed and acting alone, might approve it. There is otherwise no reason to doubt that OMHL has brought to the Court’s attention all matters that could be considered relevant to the exercise of the Court’s discretion or that there was full and fair disclosure to shareholders of all information material to the decision whether to vote for or against the scheme. I am therefore satisfied that the scheme is appropriate for the Court’s approval.

Determination and orders

1. [8]

   For these reasons, I made the orders sought by OMHL at the conclusion of the second Court hearing on 12 May 2025.