Alexander v Burne

In *Alexander v Burne*, the Court of Appeal of New South Wales considered a dispute concerning the validity of a resolution to approve a merger. The core of the disagreement lay in the interpretation of the voting requirements for a "Special Majority vote of the Unitholders" as stipulated in the relevant documents. The appellants challenged the decision of Young AJA, who had previously answered a separate question regarding the voting threshold.

The central legal issue before the Court of Appeal was whether the requirement for a "Special Majority vote" meant that two-thirds of the unitholders present and entitled to vote at the meeting had to approve the resolution, or whether it required two-thirds of all unitholders eligible to vote. This distinction was critical to determining whether the resolution to approve the merger had been validly passed.

The Court of Appeal reasoned that the phrase "persons eligible to vote in respect of a resolution" referred to those unitholders who were present at the meeting and entitled to vote. The court found that the lower court's interpretation, which required a two-thirds majority of all eligible unitholders, was not supported by the plain language of the provision. Consequently, the appeal was allowed, the previous affirmative answer to the separate question was set aside, and the separate question was answered in the negative. The proceedings were remitted to the Supreme Court for further directions.