AMP Capital Property Nominees Ltd v Westfield Management Ltd

AMP Capital Property Nominees Ltd and others (the appellants) appealed to the New South Wales Court of Appeal against an injunction granted by Ward J. The injunction restrained a unitholder in a registered managed investment scheme from voting on an extraordinary resolution to wind up the scheme, pursuant to section 601NB of the *Corporations Act 2001* (Cth). The dispute concerned the construction of provisions within the trust deed constituting the scheme and a unitholders' agreement, specifically whether a unitholder could contractually fetter or forgo their right to vote at a meeting convened under section 601NB.

The central legal issues before the Court of Appeal were whether a provision in a trust deed or unitholders' agreement could validly prevent a unitholder from exercising their statutory right to vote for the winding up of a managed investment scheme under section 601NB of the *Corporations Act 2001* (Cth). The court also considered whether, if such a provision existed, it would be unenforceable as being contrary to the Act or public policy, given the "intent and effect" of the relevant contractual provisions.

The Court of Appeal allowed the appeal, finding that the provisions of the trust deed and unitholders' agreement did not operate to fetter the unitholder's statutory right to vote for the winding up of the scheme. The court reasoned that the right conferred by section 601NB was a statutory right that could not be contracted away in a manner that would defeat its purpose. Consequently, the injunction granted by the primary judge was set aside, the summons dismissed, and the respondent was ordered to pay the appellants' costs of both the summons and the appeal.