In the matter of Qube Holdings Limited

The plaintiff, Qube Holdings Limited (Qube), is a public company limited by shares and is listed on the securities exchange conducted by the Australian Securities Exchange Limited (ASX). Qube provides integrated import and export logistics services. It has operations in Australia, New Zealand and Southeast Asia.

Qube has entered into a scheme implementation deed (SID) with Rubik Australia Pty Limited (Rubik). Rubik is an investment vehicle owned by Rubik Australia Holdings Pty Limited (HoldCo) which, in turn, is owned by entities associated with a consortium led by Macquarie Asset Management Limited (MAM Consortium). The SID relates to a proposal for Rubik to acquire 100% of the fully paid ordinary shares in Qube by way of scheme of arrangement under Part 5.1 of the Corporations Act 2001 (Cth) (the Scheme).

Except where otherwise defined, these reasons will generally adopt capitalised terms consistently with definitions used in the transactional documents, including the proposed Scheme Booklet.

By an originating process filed on 13 April 2026, Qube sought at the first Court hearing:

I was satisfied at the first Court hearing that the orders that Qube sought were appropriate and I made them. These are my reasons for doing so. I was assisted by comprehensive written submissions from Mr Bender SC and Mr Atkin, which I have drawn upon in preparing these reasons.

If the Scheme is approved, becomes Effective and is implemented:

Under the SID, Qube is permitted to pay an Interim Dividend, Final Dividend and Special Dividend of up to a maximum of $0.40 cash per Qube Share, with the cash amount of any such dividends deducted from the Scheme Consideration of $5.20 per Qube Share.

As at the date of the proposed Scheme Booklet, Qube has declared and paid an Interim Dividend of $0.0535 cash per Qube Share. Qube Shareholders will only receive this dividend in respect of any Qube Shares which they held on the Qube Share Register as at 4 March 2026 (being the Interim Dividend Record Date), and this cash amount will be deducted from the Scheme Consideration of $5.20 per Qube Share.

If the Qube Board (in its absolute discretion) determines to pay any Special Dividend or Final Dividend, Qube Shareholders will only receive these dividends if they hold Qube Shares on the Qube Share Register on the record date for each dividend (as applicable), and the cash amounts of any Special Dividend and Final Dividend will be deducted from the Scheme Consideration.

The independent expert, Grant Samuel & Associates Pty Limited, has concluded that in its opinion the Scheme is fair and reasonable, and therefore in the best interests of Qube Shareholders (other than the UniSuper Shareholder) in the absence of a superior proposal. Grant Samuel has assessed that the full underlying value of Qube is between $4.93 and $5.41 per Scheme Share, and the cash consideration of $5.20 per Scheme Share is within this valuation range. Grant Samuel has assessed the full underlying value of Qube, assuming 100% of the company was available to be acquired and including a premium for control. The Scheme Consideration of $5.20 per share represents a 28% premium to the price at which Qube shares last traded prior to announcement of the Initial Proposal on 21 November 2025.

The directors of Qube unanimously recommend that Qube Shareholders vote in favour of the Scheme in the absence of a superior proposal, and subject to the independent expert continuing to conclude that the Scheme is in the best interests of Qube Shareholders (other than the UniSuper Shareholder).

The implementation of the Scheme is subject to the satisfaction or waiver (where applicable) of a number of conditions precedent. The conditions precedent include:

Qube proposed that:

If the scheme resolutions are passed by the two meetings, Qube intends to seek further orders at a second court hearing, including:

Subject to certain voting exclusions, each Qube Shareholder who is registered on the Qube Share Register as at 11.00am (AEST) on 14 June 2026 (other than the UniSuper Shareholder) is entitled to attend and vote at the General Scheme Meeting either online, in person, by proxy, or in the case of a body corporate, by its corporate representative appointed in accordance with s 253B of the Corporations Act.

The UniSuper Shareholder is the only Qube Shareholder voting on the UniSuper Scheme Resolutions. As noted above, the meeting will be held in-person. UniSuper has undertaken (in favour of Qube) under the Voting Deed to vote in favour of the Scheme (subject to the terms of the Voting Deed).

The proposed Scheme Booklet discloses that Rubik and its associates are excluded from voting on the Scheme Resolutions, unless:

There is no need for any disclosure by any associate of Rubik who is a Qube Shareholder of the kind contemplated by RG 60.97 of ASIC Regulatory Guide 60.

There was evidence of how materials are to be dispatched to Qube Shareholders. Qube proposes dispatch to occur to Shareholders in various ways, depending on whether the shareholder has elected to receive communications electronically, by hard copy or whether no election has been made. The proposals are appropriate and consistent with common practice.

There is evidence that Qube and Rubik have undertaken an appropriate process of verification of information in the proposed Scheme Booklet for which each is respectively responsible.

At the first hearing, the Court must be satisfied that (a) the plaintiff is a Part 5.1 body; (b) the proposed scheme is an "arrangement" within the meaning of s 411 of the Act; (c) the scheme is bona fide and properly proposed; (d) ASIC has had a reasonable opportunity to examine the proposed scheme and explanatory statement and make submissions, and has had 14 days' notice of the proposed application; (e) the procedural requirements under the Corporations Rules have been met; and (f) there is no apparent reason why the scheme should not, in due course, receive the Court's approval if the necessary majority of votes is achieved: In the matter of Pacific Smiles Group Limited [2024] NSWSC 812 at [9]; In the matter of Ellerston Global Investments Limited [2020] NSWSC 879 at [25]; In the matter of Vocus Group Limited [2021] NSWSC 630 at [12]. Once those matters are established, the Court's role at a first court hearing is to determine, in the exercise of its direction, whether to approve the convening of a scheme meeting and the explanatory statement.

In the exercise of its discretion, the Court will consider whether the proposed scheme is fit for consideration at the scheme meeting, in the sense that it is of such a nature and cast in such terms that, if it achieves the statutory majority at the meeting, the Court would be likely to approve it on the hearing of a petition which is unopposed, and that members are properly informed as to the nature of the scheme before the scheme meeting: F T Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69 at 72 as approved in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15 at 504.

The Court is not to be concerned at the first hearing with whether final approval should be given to the scheme. Rather, it is concerned with whether the scheme is one which is adequately explained to those who have a financial interest in it, and whether there is any obvious flaw in the scheme such that it would be inappropriate even for it to be submitted for shareholders’ consideration: see In the matter of Villa World Limited [2019] NSWSC 1207; 139 ACSR 550 at [18].

In In the matter of Foundation Healthcare Limited [2002] FCA 742; 42 ACSR 252, French J emphasised the nature of the inquiry by the Court at the first hearing date and noted:

[36]…It is however important to bear in mind that, by granting leave to convene the meeting, the court does not give its imprimatur to the proposed scheme. If the arrangement is one that seems fit for consideration by the meeting of members or creditors and is a commercial proposition likely to gain the court’s approval if passed by the necessary majorities, then leave should be given: Re ACM Gold Ltd (1992) 34 FCR 530 107 ALR 359 7 ACSR 231 10 ACLC 573 (O’Loughlin J). The court is not required to give close consideration to the effects of the scheme upon individual members of the classes of members or creditors affected. So to do would be to “introduce burdensome and to a large extent ineffectual consideration at this interlocutory stage”: Re Jax Marine Pty Ltd [1967] 1 NSWR 145 at 148 (Street J)…

[44] The court at the stage of ordering a meeting to approve a scheme does not ordinarily go very far into the question of whether the arrangement is one which warrants the approval of the court … That question is to be answered when the scheme returns to the court for final approval. That is not to exclude the possibility that a scheme may appear on its face so blatantly unfair or otherwise inappropriate that it should be stopped in its tracks before going any further…

Of paramount importance in determining whether a scheme meeting should be convened is that the Court should be satisfied that there has been sufficient disclosure, to those who will be affected by the scheme, of its details and effect: In the matter of Central Pacific Minerals NL [2002] FCA 239 at [8]; In the matter of CSR Ltd (2010) 183 FCR 358; [2010] FCAFC 34 at [12] (Keane CJ and Jacobson J).

Qube is a Part 5.1 body in that it is a company registered under the Act: s 9 (definition of "Part 5.1 body" and "company").

Arrangement

The proposed Scheme is an "arrangement" between Qube and its shareholders: s 9 (definition of "arrangement").

The commercial purpose of the Scheme is described in various places in the proposed Scheme Booklet. I am satisfied that it is a bona fide transaction by which Rubik would acquire all of the Qube Shares for the Scheme Consideration.

ASIC was provided with notice of the hearing of this application on 1 April 2026, which is in excess of the 14 days' notice required by s 411(2)(a) of the Act.

On 1 April 2026, the solicitors for Qube provided to ASIC a draft of the proposed Scheme Booklet on behalf of Qube which included the proposed dates for the first and second Court hearings for the Scheme.

On 22 April 2026, ASIC confirmed that it did not have any comments on the proposed Scheme Booklet. While ASIC would not provide a written statement that it does not object to the scheme under s 411(17)(b) until any second court hearing, it advised that it was satisfied it had been given the required notice and had been afforded a reasonable opportunity to examine the terms of the Scheme. ASIC also advised that it did not propose to appear, make submissions or intervene to oppose the Scheme.

As part of Qube's ongoing engagement with ASIC, on 22 April 2026 ASIC provided the solicitors for Qube, via email, a draft relief instrument granting Qube relief from complying with cl 8302(h) of Part 3 of Schedule 8 to the Corporations Regulations 2001 (Cth), being relief from the requirement to set out whether, within the knowledge of the Qube Board, the financial position of Qube has materially changed since the date of the last balance sheet laid before Qube Shareholders in a general meeting or otherwise sent to Qube Shareholders.

On 21 April 2026, Qube provided to the ASX, via email, a revised draft of the proposed Scheme Booklet. The ASX did not provide any comments on the proposed Scheme Booklet.

As part of Qube's ongoing engagement with the ASX, on 21 April 2026 the ASX granted the following waiver and confirmation:

The requirements under the Corporations Rules and Corporations Regulations have been satisfied or have been the subject of orders granting dispensation. I note the following matters.

An ASIC search was carried out on the same day as the filing of the Originating Process in these proceedings, being a time no earlier than 7 days prior to the filing of the Originating Process, as required by r 2.4 of the Corporations Rules.

It is proposed that John Bevan chair the Scheme Meetings, with John Stephen Mann to act as an alternate chair if Mr Bevan is unable to do so. Mr Bevan and Mr Mann consent to act in these capacities and are not affected by any conflict. This satisfies r 3.2 of the Corporations Rules.

The proposed short minutes of order sought by Qube in this application identify the proposed Scheme, as required by r 3.3(1) of the Corporations Rules.

Qube proposes to provide notice of the second Court hearing via the ASX. Qube seeks that r 3.4 be dispensed with, consistently with Practice Note SC Eq 4 at [26(f)].

The Scheme Booklet contains the matters required by s 412(1) of the Corporations Act, and reg 5.1.01 and Schedule 8 of the Corporations Regulations.

There is no apparent reason at this stage to think that the Court would not approve the Scheme under s 411(4)(b) of the Act at the second Court hearing if approved by the requisite majorities at the Scheme Meetings. No issue has arisen which would be likely to lead to a refusal of the Scheme at an approval hearing. There is nothing that is blatantly unfair or otherwise inappropriate, such that the Scheme should be stopped in its tracks. I concluded that the orders convening the Scheme Meetings should be made.

Counsel for Qube addressed the following matters “for completeness” and I took them into account.

Qube proposed that the UniSuper Shareholder meet separately from the balance of Qube Shareholders for the purposes of considering the Scheme, in light of the different consideration which the UniSuper Shareholder would receive under the Scheme. This is consistent with convening orders made in respect of other schemes in which only some shareholders have received (or had the option to receive) consideration in the form of equity in the bidding entity or its associates: see, for example, In the matter of ThinkSmart Limited [2022] FCA 1314 at [22]-[23]; In the matter of PSC Insurance Group Limited [2024] FCA 946 at [38]-[39]; In the matter of ELMO Software Pty Ltd [2023] NSWSC 12 at [22]; Re Navitas Ltd; Ex parte Navitas Ltd [2019] WASC 180 at [69]; In the matter of QMS Media Limited [2019] FCA 2172 at [80]; Re Zenith Energy Ltd; Ex parte Zenith Energy Ltd [2020] WASC 266 at [42]; In the matter of Uniti Group Limited [2022] FCA 671; 160 ACSR 602 at [27]-[36]. There is no reason why the rights and interests of the balance of Qube Shareholders are so dissimilar that they cannot consult together with a view to their common interest: In the matter of SG Fleet Group Limited [2025] NSWSC 214 at [15].

Qube operates a number of equity incentive plans. Under cl 3.1(j) of the SID, it is a Condition Precedent to the Scheme becoming Effective that arrangements have been put in place to deal with the Qube Incentives on terms agreed by Qube and Rubik. The relevance of that treatment to Mr Digney, the Managing Director of Qube, is sufficiently disclosed in the Chairman's Letter. In those circumstances, it is not inappropriate that Mr Digney make a recommendation as director concerning the Scheme: see In the matter of Kidman Resource Ltd [2019] FCA 1226; 139 ACSR 112 at [115]; In the matter of DWS Limited [2020] FCA 1590; 148 ACSR 616 at [41]-[49]; In the matter of McGrath Limited [2024] NSWSC 555 at [25].

The fact that holders of Qube Incentives will receive a benefit in relation to the Scheme, which other shareholders will not, does not result in them forming a discrete class at the scheme meetings: see In the matter of Webster Limited [2019] NSWSC 1907 at [33]; Re Nzuri Copper Ltd; Ex parte Nzuri Copper Ltd [2019] WASC 189 at [37]; In the matter of McGrath Ltd at [25].

Based on the number of Qube Shares anticipated to be on issue on the Scheme Record Date (as defined in the SID), Rubik anticipates that the maximum aggregate amount of cash payable by it to Scheme Shareholders under the Scheme will be approximately $9.19 billion.

Rubik proposes to fund the Scheme Consideration through a combination of debt funding and equity funding as follows, as disclosed in s 7.5 of the proposed Scheme Booklet:

The total aggregate amount available to Rubik under the equity funding and the debt funding for the acquisition of the Scheme Shares is approximately $10,302,539,174. It follows that the proceeds that will be available to Rubik are expected to be sufficient for Rubik to fund the Scheme Consideration.

Rubik and HoldCo have agreed by way of Deed Poll dated 21 April 2026 to perform the actions attributed to them under the Scheme, including the provision, or procuring the provision of, the Scheme Consideration to the Scheme Shareholders. This has been recognised as a means of managing performance risk: In the matter of Simavita Holdings Limited [2013] FCA 1274 at [43]; In the matter of Australian Leisure and Entertainment Property Management Limited [2021] NSWSC 1421 at [28].

Under cl 6.2 of the Scheme, Rubik must, by no later than 12.00pm on the Business Day before the Implementation Date, deposit (or procure the deposit) in cleared funds an amount in Australian currency at least equal to the aggregate amount of the Scheme Consideration payable to all Scheme Shareholders (other than the UniSuper Shareholder in relation to the UniSuper Specified Shares) into a trust account maintained by Qube.

The transfer of the Scheme Shares under cl 7 of the Scheme is conditional upon Rubik having satisfied its obligations under cl 6. This means that the Scheme Shareholders will not be exposed to the risk of losing title to their shares and being left to sue upon the Deed Poll, which is the principal performance risk against which Courts have been astute to guard: see In the matter of KAZ Group Limited (ACN 002 124 405) and the Corporations Act [2004] FCA 738 at [4]-[5]; In the matter of SFE Corporation Limited (ABN 74 000 299 392) [2006] FCA 670; 59 ACSR 82 at [4].

The Deed Poll, together with the provision of the Scheme Consideration to a trust account maintained by Qube (and its operation as a condition to the transfer of the Scheme Shares), are established means of mitigating performance risk: In the matter of Vocus Group Limited at [15]; In the matter of ELMO Software Pty Ltd at [27]-[28].

UniSuper has provided warranties to Qube and Rubik under the Scheme and the Voting Deed which sufficiently mitigate the performance risk by providing, among other things, that:

The SID contains exclusivity arrangements in favour of Rubik which apply during the Exclusivity Period. In assessing exclusivity terms, the Court is to ensure that any exclusivity period should be for no more than a reasonable period capable of precise ascertainment. An exclusivity clause directed at dealing with an unsolicited alternative merger proposal should be subject to a fiduciary carve out. The provision must be clearly disclosed and given adequate prominence in the explanatory statement sent to shareholders: In the matter of Arthur Yates & Co Limited [2001] NSWSC 40; 36 ACSR 758 at [9]. That provision is satisfied in this case at s 10.12(d) of the Proposed Scheme Booklet.

The End Date under the SID is 10 months from its execution or any other date as Qube and Rubik agree in writing. I accept that a period of 10 months is not an unreasonable period: In the matter of Pendal Group Limited (No 2) [2022] NSWSC 1648 at [31].

In accordance with Practice Note SC Eq 4 at [26(h)], Qube has adduced evidence that the Reimbursement Fee, as negotiated by Qube and Rubik, is defined in the SID to be a payment of compensation equal to 1% of equity value implied by the Scheme Consideration. The Reimbursement Fee is payable by Qube to Rubik in the circumstances identified at cl 12 of the SID. This is consistent with Australian Takeovers Panel Guidance Note 7, Deal Protection at [48] which provides that a break fee not exceeding 1% of the equity value of the target is generally not unacceptable.

As at the date of the Proposed Scheme Booklet, the Reimbursement Fee would be $92,345,819.

The circumstances in which the Reimbursement Fee is payable do not include the failure of Qube Shareholders to approve the Scheme or the failure of the Court to approve the Scheme. It is thus not a disincentive to Qube Shareholders in their consideration of the proposed Scheme: In the matter of Adelaide Bank Limited ACN 061 461 550 [2007] FCA 1582 at [31] (Lander J); In the matter of Bolnisi Gold NL (No 2) (2007) 165 FCR 45; [2007] FCA 2078 at [12] (Lindgren J).

Each Scheme Shareholder will be deemed to have warranted to Qube and Rubik, and to have appointed and authorised Qube as that Scheme Shareholder's agent and attorney to warrant to Rubik, that as at the Implementation Date:

Clauses in these terms are now commonplace: see, for example, In the matter of APN News & Media Limited [2007] FCA 770; 62 ACSR 400 at [62]; In the matter of Hostworks Group Limited (ACN 008 010 820) [2008] FCA 64; 26 ACLC 137 at [41]; In the matter of Coles Group Limited [2007] VSC 389; 25 ACLC 1380 at [43]-[45]; In the matter of Adelaide Bank Limited ACN 061 461 550 at [33]; In the matter of Orion Telecommunications Limited [2007] FCA 1389 at [9]; In the matter of Macquarie Private Capital A Limited [2008] NSWSC 323; 26 ACLC 366 at [14]; In the matter of Mitchell Communication Group (ABN 59 088 110 141) [2010] VSC 423 at [10]-[12]; In the matter of Magellan Asset Management Limited as responsible entity of Magellan Global Fund; Magellan Asset Management Limited as responsible entity of the Magellan Global Equities Fund; Magellan Asset Management Limited as responsible entity of the Magellan Global Trust [2020] NSWSC 1535; 150 ACSR 23 at [22]. The existence of the deemed warranties is appropriately disclosed at cl 9.5 of the Scheme and s 4.8 of the Proposed Scheme Booklet.

Qube has engaged Sodali & Co to operate, on Qube's behalf, an outbound call service to Qube Shareholders to discuss the Scheme and an in-bound information line for Qube Shareholders to call if they have any questions in relation to the Scheme or the Scheme Booklet.

The evidence includes the text of proposed scripts for outbound and inbound telephone calls prepared by Sodali and reviewed by Qube in respect of the Scheme. While Qube brought this to the Court's attention in accordance with the usual practice in respect of schemes of arrangement under s 411 of the Corporations Act, no orders were sought approving the script in accordance with current scheme practice, as outlined in Practice Note SC Eq 4 at [26(k)] and In the matter of Invocare Limited [2023] NSWSC 1180 at [26].

It was for those reasons that I made the following orders: