Background
Blue Ocean Monitoring Limited (BLM) is an unlisted Australian public company that designs, develops, and operates autonomous underwater vehicles and software solutions for defence maritime surveillance, environmental monitoring, and subsea operations. In January 2026, BLM applied to the Supreme Court of New South Wales under ss 411 and 1319 of the Corporations Act 2001 (Cth) for orders to convene a scheme meeting and approve a proposed scheme of arrangement involving the acquisition of all BLM’s issued ordinary shares by Helsing Australia Pty Ltd, a subsidiary of the German company Helsing SE, in exchange for initial cash payments and potential earn-out payments.
At the first court hearing on 3 March 2026, Black J made orders convening the scheme meeting (see Re Blue Ocean Monitoring Ltd [2026] NSWSC 207). The scheme meeting was held on 26 March 2026, at which BLM shareholders approved the scheme by the requisite statutory majorities under s 411(4)(a)(ii) of the Act. Voting participation at the scheme meeting exceeded that seen at BLM’s recent annual general meetings. BLM then applied for court approval of the scheme at the second court hearing on 19 May 2026. No shareholder or other person appeared to oppose approval.
An uncontroversial amendment to the Scheme Implementation Agreement and scheme of arrangement — foreshadowed at the first court hearing and consistent with the scheme booklet — was made to align the payment arrangements for scheme consideration with the disclosure already provided to shareholders. ASIC confirmed it had no objection to the scheme pursuant to s 411(17)(1)(b) of the Act, and conditions precedent certificates confirming satisfaction or waiver of conditions precedent were tendered.
The Court’s Holding
Black J approved the scheme of arrangement at the conclusion of the second court hearing on 19 May 2026, with written reasons published on 10 June 2026. The Court was satisfied that all requirements for approval had been met: BLM had complied with the court’s convening orders; the scheme booklet was lodged with ASIC and despatched to shareholders; the scheme resolution passed by the statutory majorities; all other statutory requirements were satisfied; and there was full and fair disclosure to shareholders of all material information. The Court found no reason to doubt that the scheme was fair and reasonable such that an intelligent and honest BLM shareholder, properly informed and acting alone, might approve it.
The Court also accepted the minor amendment to the Scheme Implementation Agreement, noting that s 411(6) of the Act empowers the court to approve a scheme subject to such alterations or conditions as it thinks fit, consistent with Re Boart Longyear Ltd (No 2) [2017] NSWSC 1105 and related authorities. Additionally, the Court exempted BLM from compliance with s 411(11) of the Act — the requirement to annex the court order to BLM’s constitution — on the basis that the scheme did not involve any modification of the rights of BLM’s shareholders, creditors, or persons dealing with BLM, rendering compliance with that provision unnecessary.
Key Takeaways
- The court approved the scheme of arrangement enabling Helsing Australia Pty Ltd (a subsidiary of German company Helsing SE) to acquire all issued ordinary shares in Blue Ocean Monitoring Limited for initial cash consideration plus potential earn-out payments.
- At the second court hearing, the court applies well-established principles requiring satisfaction that convening orders were complied with, statutory majorities were achieved, statutory requirements were met, the scheme is fair and reasonable, all relevant matters were disclosed, and there was full and fair disclosure to members — as summarised in prior decisions including Re InvoCare Ltd (No 2) [2023] NSWSC 1350.
- The court exercised its power under s 411(6) to accommodate a minor amendment to the scheme documents that was foreshadowed at the first hearing and consistent with the scheme booklet, confirming the court’s flexibility to approve schemes subject to alterations that do not prejudice shareholders.
- An exemption from s 411(11) (annexing the court order to the company’s constitution) was granted where the scheme did not affect existing rights of shareholders, creditors, or persons dealing with the company.
Why It Matters
This decision is a routine but instructive application of the Australian scheme of arrangement approval process under s 411 of the Corporations Act 2001 (Cth), confirming the procedural steps and substantive criteria courts apply at the second hearing. It illustrates how the court evaluates shareholder voting outcomes — treating high participation and strong majorities as evidence that shareholders regard the arrangement as commercially advantageous — while retaining an independent supervisory role to ensure procedural compliance and fair disclosure.
The case is also of practical interest for transactions involving unlisted technology and defence-adjacent companies, and for cross-border acquisitions by foreign-owned entities. It reinforces the court’s willingness to accommodate minor, disclosed amendments to scheme documents without derailing approval, and confirms the circumstances in which exemption from s 411(11) compliance is appropriate.