AMP Life Ltd v AMP Capital Funds Management Ltd

AMP Life Ltd (the appellant) and AMP Capital Funds Management Ltd (the first respondent) were parties to a dispute concerning the voting rights of a responsible entity at a meeting of members of a registered managed investment scheme. The matter came before the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was the proper construction of section 253E of the *Corporations Act 2001* (Cth). Specifically, the Court had to determine whether an entity that is part of the group described as "the responsible entity and its associates" is precluded from voting on a resolution before a meeting of members only if that specific entity, rather than another member of that group, holds a non-member interest in the matter. A secondary issue concerned the application of the "testator's fault" analogy to the award of costs on appeal, a question of statutory construction.

The Court of Appeal dismissed the appeal. It reasoned that the prohibition in section 253E(2) on voting by "the responsible entity and its associates" applies to any member of that group if any member of that group has a non-member interest in the matter. The Court found that the analogy to "testator's fault" in probate proceedings was not applicable to the award of costs on appeal in this instance.

Consequently, the Court ordered that the first respondent be indemnified for its costs of the appeal from the assets of the AMP Capital China Growth Fund, and that the appellant pay the second respondent's costs of the appeal.