Amaero Ltd, in the matter of Amaero Ltd [2026] FCA 596

Amaero Ltd asked the Federal Court to convene meetings of its shareholders and option holders so they could vote on two schemes of arrangement forming part of a proposed move from an Australian parent company to a US holding company. Justice Owens made the convening orders on 7 May 2026 and later published reasons on 13 May 2026.

This was a first-hearing decision only. The Court did not finally approve the schemes or confirm implementation. Instead, it decided that the proposals were fit to be put to the affected security holders, that the scheme booklet could be approved as the explanatory statement, and that the meetings and dispatch process should proceed subject to the orders made.

Amaero was an Australian public company listed on the ASX, but the Court recorded that the group’s commercial centre of gravity had shifted to the United States. Its operations were conducted there, revenue was generated and received there, and its remaining Australian footprint was limited. The group had no Australian assets apart from a National Australia Bank account used for internal administrative, accounting, tax, compliance and capital raising activities, and its two Australian subsidiaries were being deregistered.

Against that background, Amaero proposed what the Court described as re-domiciliation schemes or top-hatting schemes. A new Delaware company, Amaero Inc., had been incorporated in February 2026 and was intended to become the new holding company at the apex of the group. It had no assets or liabilities other than those connected with its incorporation and the proposed schemes.

The restructure was to be implemented through two schemes. Under the share scheme, each Amaero shareholder would receive one Amaero US HoldCo CDI for each Amaero share held. Under the option scheme, each Amaero option holder would have their Amaero options cancelled and receive one Amaero US HoldCo option for each option previously held. The Court explained that the exercise of a replacement option would entitle the holder to one Amaero US HoldCo CDI representing the equivalent economic interest.

The reasons also explain the CDI mechanics. The number of shares to be issued by Amaero US HoldCo would be one-fortieth of the number of Amaero shares on issue. Each CDI would therefore represent a beneficial interest in one-fortieth of a US holding company share so that the economic position matched one Amaero share. The CDIs would be quoted on the ASX, holders would receive the same economic benefits as if they owned the underlying shares, and they would be entitled to direct the voting of those shares. Holders could also convert their CDIs into direct shares in Amaero US HoldCo on a 40:1 basis once the scheme was completed.

The legal issue was whether the Court should exercise its power under section 411(1) of the Corporations Act to order the convening of meetings for the proposed schemes and approve the explanatory material for dispatch. At this stage, the Court was not deciding whether the restructure was the best possible transaction or whether it should ultimately be implemented. The first hearing is a threshold review.

Justice Owens adopted the established first-hearing principles. The Court needed to be satisfied that Amaero was a Part 5.1 body, that each proposal was an arrangement within the meaning of section 411, that the scheme booklet would provide proper disclosure, that the schemes were bona fide and properly proposed, that ASIC had a reasonable opportunity to examine the terms and explanatory statement and had at least 14 days' notice of the hearing, and that the procedural requirements of the Federal Court (Corporations) Rules had been met.

The Court also referred to the orthodox caution that it will not ordinarily summon a meeting unless the scheme is of such a nature and in such terms that, if it receives the statutory majority and the application is unopposed, the Court would be likely to approve it later. In practical terms, that means the first hearing is where the Court checks for obvious flaws and ensures affected investors are being asked to vote on a proposal that has been properly explained.

The reasons also emphasise that the commercial choice usually belongs to the members themselves. The Court does not need to be satisfied that no better scheme could have been proposed. What matters is whether members have sufficient information and time to decide for themselves.

Justice Owens was satisfied that the necessary preconditions had been established and made the orders sought. The Court held that Amaero was a Part 5.1 body and that the proposed re-domiciliation or top-hatting schemes were arrangements within section 411. The Court was also satisfied that the scheme booklet contained the prescribed information and would provide proper disclosure to shareholders and option holders.

An important feature of the reasons is that the judge raised disclosure issues during the hearing. Amaero then produced an amended booklet, which was admitted as the revised exhibit. The Court said the amendments addressed the concerns raised. That is a useful reminder that first-hearing scrutiny is real. A company may need to revise its explanatory materials before the Court will approve them for dispatch.

The Court further found that the schemes were bona fide and properly proposed. The reasons note that Amaero had committed itself to propounding the schemes by the scheme implementation deed, which provided prima facie support for that conclusion. ASIC had been given more than 14 days' notice of the hearing and a reasonable opportunity to consider the terms of the schemes and the draft booklet. ASIC wrote to confirm that it did not propose to appear at the first hearing and that it had had the required notice and opportunity.

The Court was also satisfied that the relevant procedural requirements had been met, or that dispensation should be granted where appropriate. It granted relief in relation to the publication requirements for notice of the second hearing, allowing notice to be given by ASX announcement and publication on the company website, and it dispensed with compliance with rule 2.4(1) to the extent sought. The Court also noted that the proposed chairpersons and alternate chairpersons had confirmed the matters required by the rules.

Finally, Justice Owens said there was no apparent reason why the schemes should not, in due course, receive the Court’s approval if the necessary voting majorities were achieved. The independent expert’s conclusion that both schemes were in the best interests of the relevant holders was specifically noted. That statement is important, but it is still not final approval. It is a first-hearing assessment that the proposals were suitable to go to a vote.

The scheme booklet was central to the application. The Court described it as setting out the terms of the schemes, their advantages and disadvantages, and annexing relevant associated documents. One of those documents was an independent expert report opining that the schemes were in the best interests of shareholders and option holders.

The Chairman’s Letter in the booklet summarised the reasons advanced in support of the restructure. Those reasons included positioning the group in the larger and deeper US capital market, facilitating access to a broader US investor pool, improving access to lower-cost US debt and equity capital markets, simplifying the group’s corporate structure for a potential future US merger, positioning the group for a potential US IPO, and mitigating foreign control concerns in pursuing classified contracts with the US government.

The booklet also identified disadvantages. The Court specifically referred to potential taxation consequences, the uncertain trading value of the CDIs, exposure to increased litigation risk, and the consequences of replacing a direct equity interest in an Australian company with a CDI or option position in a foreign company. Those matters were also considered in the independent expert report.

This balanced treatment mattered. The Court repeated the established principle that members should be allowed to make the commercial decision themselves, provided they have sufficient information and time. That is why the Court focused on whether the booklet gave proper disclosure rather than trying to decide the commercial merits in place of investors.

The evidence before the Court included affidavits from Amaero’s solicitors and chief financial officer, company searches, ASIC lodgement confirmation for the draft booklet, correspondence with ASIC and the ASX, and evidence about due diligence and verification of the booklet. The reasons show a conventional but detailed evidentiary foundation for a first-hearing scheme application.

The orders are especially useful for the practical mechanics of running a court-supervised scheme process. The Court ordered separate virtual meetings for shareholders and option holders on 5 June 2026 using the specified online platform. It set the record time for determining who could participate, fixed proxy deadlines, appointed chairpersons and alternates, and required poll voting for substantive resolutions.

The dispatch orders were detailed. Different methods applied depending on whether holders had opted for email communications, hard copy communications, or had not made an election, and depending on whether their address was in Australia or overseas. The orders also dealt with bounced emails. If the registry received an automatic bounce-back notification, replacement postal dispatch steps had to be taken. These details matter because scheme processes can be vulnerable if notice and voting arrangements are mishandled.

One point deserves special emphasis. The Court ordered that dispatch of the scheme booklet was subject to the document’s registration with ASIC under section 412(6) of the Corporations Act. So even after the Court approved the booklet as the explanatory statement, Amaero still had to complete ASIC registration before sending it out. For companies and advisers, that is a critical sequencing issue. Court approval and ASIC registration are related but distinct steps.

The Court also allowed notice of the later approval hearing to be given by ASX announcement and publication on the company’s website, relieving Amaero from compliance with the usual rule and form requirements to the extent necessary. The proceedings were adjourned to 10 June 2026 for the hearing of any application to approve the schemes.

Most businesses will never run a Federal Court scheme of arrangement, but the case still has broader governance value. It shows how much process discipline is expected when a company proposes a major structural change affecting ownership rights, investor expectations and future capital strategy. If a transaction changes what security holders own, how they vote, or which entity sits at the top of the group, the explanatory materials need to be clear, balanced and technically accurate.

The case also shows that different classes of holders may need separate treatment. Amaero did not simply ask the Court to approve one generic investor process. It sought separate meetings for shareholders and option holders because the schemes affected them differently. Businesses with employee options, founder options, performance rights or other instruments should keep that class analysis in mind when planning a restructure.

Another practical point is that the Court’s first-hearing review is not a rubber stamp. Justice Owens required amendments to the booklet before approving it. That means directors should expect questions about disclosure and should have a verification process strong enough to support revisions quickly if needed.

Finally, this decision should not be overstated. It does not tell us that the schemes were finally approved, that they were implemented, or how later issues such as US securities law or other matters were ultimately resolved. It is best used as a first-hearing process example and a reminder that major restructures succeed through careful preparation as much as through commercial logic.

Those questions are not limited to listed companies. Even outside a formal scheme, they reflect the same core governance discipline: identify who is affected, explain the transaction clearly, and make sure the implementation steps line up with the legal pathway being used.

This page is based on the Federal Court reasons and orders in Amaero Ltd, in the matter of Amaero Ltd [2026] FCA 596. The reasons clearly support the first-hearing outcome, the Court’s treatment of the statutory preconditions, the approval of the scheme booklet as the explanatory statement, the meeting directions, and the requirement for ASIC registration before dispatch.

The reasons available here are truncated after the discussion turns to performance risk, funding and US law issues. Because of that, this page does not attempt to state any concluded position on those later issues or on the result of the second hearing. Any public statement about final approval or implementation should be checked separately.