Global Uranium and Enrichment Limited, in the matter of Global Uranium and Enrichment Limited (No 2) [2026] FCA 84

This was a second-hearing application in the Federal Court concerning two linked schemes of arrangement proposed by Global Uranium and Enrichment Limited, or GUE. The interested party was Snow Lake Resources Ltd. The transaction was structured so that Snow Lake would acquire all GUE ordinary shares it did not already own, while certain GUE option holders would have their options cancelled in exchange for new Snow Lake warrants.

The consideration was not cash. GUE shareholders were to receive new Snow Lake shares, and relevant option holders were to receive new Snow Lake warrants. That meant the transaction depended on more than just securityholder approval. It also depended on the practical mechanics of issuing and, in the case of the new Snow Lake shares, listing or quoting those securities through an overseas market process.

The Court had already made convening orders on 19 December 2025 in an earlier decision. Those orders required meetings of GUE shareholders and relevant option holders to consider the schemes. The meetings were held on 27 January 2026. Both schemes were approved on a poll by the required majorities. The share scheme was supported by 93.02% of shareholders present and voting, representing 99.19% of votes cast. The option scheme was supported unanimously by option holders present and voting, representing 100% of votes cast.

So the commercial deal had securityholder support. The difficulty arose later, during implementation. One of the conditions in the transaction documents assumed that Nasdaq would approve the new Snow Lake shares for listing and trading before 8.00 am on the date of the second hearing. Evidence filed after the meetings showed that this assumption did not match how Nasdaq’s process actually worked for these additional shares.

The Court’s task at a second hearing is supervisory. It is not enough that members have voted in favour. The Court still has to decide whether the statutory requirements have been met and whether it should exercise its discretion to approve the schemes.

The reasons set out the familiar matters the Court will usually want to be satisfied about. These include whether the convening orders were complied with, whether the meetings approved the schemes by the required majorities, whether all statutory requirements were met, whether the majority acted in good faith and not for an illegitimate purpose, whether there is any oppression of a minority, whether the scheme is fair and reasonable, whether there was full and fair disclosure of material information, and whether the company has brought all relevant matters to the Court’s attention.

In this case, the Court also had a more specific question to answer. Because the Nasdaq-related condition could not be satisfied in the form originally drafted, GUE asked the Court to approve the schemes subject to alterations under s 411(6) of the Corporations Act. That meant the Court had to decide not only whether the schemes should be approved under s 411(4)(b), but also whether the proposed amendments were of a kind the Court could properly allow after the vote had already occurred.

The statutory provisions specifically referred to in the orders and reasons were important. The Court approved the share scheme and option scheme under ss 411(4)(b) and 411(6). It exempted GUE from compliance with s 411(11) under s 411(12). The reasons also record that the scheme booklet had been registered with ASIC under s 412(6), and that ASIC later provided a no-objection letter for the purposes of s 411(17)(b).

The evidence mattered because the issue was not abstract. GUE had to show the Court exactly what had happened, why the original drafting no longer worked, and why the proposed fix was still consistent with the transaction securityholders had approved.

GUE relied on affidavits from the first hearing as well as six further affidavits. Mr Andrew James Ferrier, GUE’s Managing Director, gave evidence about registration of the scheme booklet with ASIC, dispatch of the booklet, further communications with shareholders and option holders before the meetings, ASX announcements, and the scheme meetings themselves. He also gave evidence that GUE had drawn down $2.5 million under a standby facility on 19 January 2026 and issued Summit a further $2.5 million of unsecured convertible notes, and said he was not aware of any alternative proposal to the schemes before the meetings or between the meetings and the date of his affidavit.

Ms Sanushka Seomangal, a partner at Thomson Geer and chairperson of the scheme meetings, gave evidence about how the meetings were conducted. The Court relied on that evidence in being satisfied that the meetings were conducted in accordance with the earlier orders and that the voting results met the statutory majorities.

The most important evidence on the implementation issue came from Snow Lake’s Canadian legal advisers. Ms Shelene Antoinette Watson, a law clerk at Nauth LPC, gave evidence about the steps taken to comply with the Nasdaq-related condition precedent and why that condition could not be satisfied as drafted. She said that on 27 January 2026 she submitted a Listing of Additional Shares notification form, or LAS Form, to Nasdaq in connection with the proposed issue of new Snow Lake shares. She did not submit it earlier because, based on her experience, Nasdaq generally requires the form to be submitted only when the share issue is imminent.

Ms Watson then contacted Nasdaq on 29 January 2026 to check the status of the LAS Form and to determine what form of approval or confirmation Nasdaq would provide. She learned that the LAS Form was only a notification mechanism. There was no approval or denial of the notification. Nasdaq would review the transaction only if it completed, and would contact Snow Lake only if it identified discrepancies between the information in the LAS Form and the final transaction.

Mr Daniel Devindra Nauth, a partner at Nauth LPC, confirmed the accuracy of Ms Watson’s affidavit so far as it related to him and added his own evidence based on experience with Nasdaq. He said he believed quotation and trading of the new Snow Lake shares would occur after the schemes became effective, meaning after the Court orders were lodged with ASIC, but before the implementation date when the new shares were actually issued to GUE shareholders. He also said Snow Lake would need to provide Nasdaq with confirmation that the transaction had closed and the final transaction documents, including the Court orders, and that Nasdaq’s post-completion review process typically took seven to ten business days. Because the implementation date was the seventh business day after the effective date, he believed there would be sufficient time for Nasdaq to complete its review before the new shares were listed for quotation and issued. He further said he was not aware of, did not believe, and had no reason to believe that the new Snow Lake shares would not be issued and listed for quotation on Nasdaq before the implementation date.

Mr Hendrik van Aswegen of Thomson Geer gave evidence about the steps taken to address the Nasdaq timing issue. His 2 February 2026 affidavit annexed a signed letter deed under which GUE and Snow Lake agreed to amend the share scheme and option scheme. He also gave evidence about communications with ASIC from 30 January 2026 onward, including communications about the proposed amendments. His 3 February 2026 affidavit annexed a second letter deed dated 2 February 2026 incorporating some minor amendments requested by ASIC, ASIC’s no-objection letter under s 411(17)(b), and condition precedent certificates executed by GUE and Snow Lake certifying that certain other conditions precedent had been satisfied.

The Court dealt first with the formal and procedural matters. It was satisfied that GUE’s solicitors had registered the scheme booklet with ASIC in substantially the approved form, that the December orders had been lodged with ASIC as soon as possible, that the scheme booklets had been dispatched in accordance with the orders, that the second hearing had been advertised by ASX announcement, and that the meetings were conducted in accordance with the earlier orders.

The Court then considered the voting outcomes. The share scheme and option scheme both passed by the required majorities. The share scheme turnout was low, with only 28.45% of voting shares on issue voted by 4.79% of eligible shareholders. The Court accepted that this was very low, but noted authority that low turnout does not itself prevent approval. What mattered was whether the low turnout suggested some problem with notice, dispatch, disclosure or another factor that had improperly deterred participation. Mr Ferrier’s evidence showed that GUE had similarly low attendance at its annual general meetings in November 2024 and November 2025. On that basis, and with no sign of any process defect, the Court held that low turnout was not a reason to refuse approval. There was no similar turnout concern for the option scheme.

The real issue was the Nasdaq condition. With one exception, the Court was satisfied that all conditions precedent to implementation had been satisfied or waived. The exception was cl 3.1(f) of the scheme implementation deed, picked up by cl 2.1(a) of the share scheme. The combined effect of those clauses was that the share scheme approved by GUE shareholders was conditional on the new Snow Lake shares being approved for listing and trading on Nasdaq before 8.00 am on the date of the second hearing.

The evidence of Ms Watson and Mr Nauth established that after the share scheme meeting it became apparent that formal approval of that kind would not be forthcoming because Nasdaq did not operate that way. The process was a notification process only. Nasdaq would not formally approve the issue of the new shares under the transaction before the hearing. Instead, it would review the transaction after it had closed but before the new shares were issued.

GUE submitted, and the Court accepted, that this meant the original condition could not be satisfied in the form drafted even though the evidence suggested the intended listing and quotation outcome was still expected to occur. To resolve the issue, GUE and Snow Lake proposed amendments that effectively removed the original Nasdaq requirement as a condition precedent and replaced it with a condition subsequent.

The Court summarised the effect of the new condition subsequent. First, Snow Lake had to have provided Nasdaq with all necessary information required by its notification process. Second, as at 8.00 am on the date GUE shares were otherwise due to be transferred to Snow Lake and share scheme shareholders were due to receive the new Snow Lake shares, there had to be nothing from Nasdaq indicating that the new shares would not be listed and quoted. A further amendment provided that if this condition subsequent was not satisfied within the specified period after the scheme became effective, the scheme would not be implemented and would terminate. The reasons record that ASIC feedback led to the period being extended from 10 business days to 15 business days. Similar consequential amendments were made to the option scheme because of its interconnectedness with the share scheme.

The Court’s power to approve a scheme subject to alterations or conditions comes from s 411(6). The reasons adopt the principles summarised in Carbon Revolution. In broad terms, the Court may exercise that power where the alteration is minor or technical, does not really affect the details of or recast the scheme, improves the smooth working of the scheme or does not affect its substantive operation, and where the Court is satisfied the scheme as altered would still have been agreed to by the requisite majorities if members had voted on it in that form. The alteration must also not affect the spirit and intendment of the scheme as a whole.

The Court accepted that those principles were met here. It also accepted that a scheme can be approved subject to a condition subsequent, provided the condition does not make the scheme unclear or uncertain and does not introduce a new decision-making process after court approval. The reasons refer to Carbon Revolution, Atlassian, iProperty and Afterpay on that point.

On the facts, the Court held that the new condition subsequent did not make either scheme unclear or uncertain. It required Snow Lake to have provided Nasdaq with the necessary information under the notification process and required that, by the relevant time before implementation, there be nothing from Nasdaq indicating that the new shares would not be listed and quoted. Importantly, if the condition subsequent was not satisfied, implementation would not occur. So the amendment did not remove protection around the listing outcome. It changed the legal mechanism so that the documents matched the actual external process.

The Court was conscious that securityholders had not voted with knowledge of the later amendments. But the Court also noted that the resolutions passed at the meetings authorised the GUE board to agree to such alterations or conditions as were thought fit by the Court and consented to in writing by GUE and Snow Lake. That mattered because it supported the conclusion that the amendments were within the kind of court-directed adjustment contemplated by the voting resolutions.

The Court’s reasoning on substance was straightforward. The purpose of the original condition was to ensure that when the new Snow Lake shares were issued to GUE shareholders they would be listed and quoted on Nasdaq. The parties had entered into the scheme implementation deed on the understanding that some form of approval would be required before that could happen. The evidence showed that understanding was inaccurate. Even so, the Court was satisfied that the proposed alterations would bring about the outcome originally intended under the schemes. In other words, the amendments were not a new bargain. They were a practical fix to preserve the same commercial objective.

ASIC’s role also mattered. The Court noted that ASIC provided its no-objection statement under s 411(17)(b) with knowledge of, and having had input into the wording of, the proposed alterations to both schemes. That did not compel approval, but it was an important statutory and discretionary consideration in favour of making the orders sought.

The Court approved both the share scheme and the option scheme under ss 411(4)(b) and 411(6) of the Corporations Act, in each case as amended in the annexures to the orders. It also exempted GUE from compliance with s 411(11) under s 411(12) and ordered GUE to lodge an office copy of the orders with ASIC as soon as practicable.

In reaching that result, the Court was satisfied that the formal procedural steps had been completed, the meetings were properly conducted, the requisite majorities had approved the schemes, the low shareholder turnout did not indicate any process defect, the schemes were fair and reasonable, there had been full and fair disclosure, there was no evidence of oppression or public policy concern, and ASIC had no objection. The Court also accepted the proposed amendments as proper alterations under s 411(6).

The orders also note an important cross-border securities law context. GUE and Snow Lake intended to rely on the Court’s approval and the statutory scheme process as the basis of a claim to an exemption under s 3(a)(10) of the US Securities Act of 1933 from registration requirements in connection with the implementation of the schemes and the provision of consideration. The orders also note an intended reliance on the Canadian prospectus exemption in s 2.11 of National Instrument 45-106. For businesses, that is a reminder that a scheme can sit inside a broader international securities law framework, and that court process, disclosure and transaction structure may be designed with those overseas exemptions in mind.

Most businesses will never run a court-approved scheme of arrangement. But the practical reading of this case is broader than public M&A. If your company is issuing shares as deal consideration, restructuring investor rights, or coordinating approvals across Australia and another jurisdiction, you need to verify exactly what each regulator, exchange or market operator does. Is it an approval, a consent, a waiver, a filing, a notification, or a post-completion review? Those distinctions can change whether a condition should be drafted as a condition precedent, a condition subsequent, or something capable of waiver.

This case also shows the value of a disciplined evidence trail. GUE was able to explain when the issue was discovered, what Nasdaq had said, what the revised mechanism would require, why the revised mechanism still protected the intended outcome, and how ASIC had been involved in settling the wording. That kind of record can be decisive when a court is asked to approve a late change.

The convening orders were made on 19 December 2025. The scheme meetings took place on 27 January 2026. The second hearing occurred on 3 February 2026, when the Court made the approval orders. The judgment is dated 3 February 2026 and the reasons were published on 12 February 2026.

Because the reasons refer back to the earlier first-hearing decision and the annexures to the orders contain the final amended scheme wording, those materials should be checked together if you need the complete implementation detail.