Macquarie Retail Pty Ltd v Dexus Capital Funds Management Ltd

[2024] NSWSC 1413

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Macquarie Retail Pty Ltd v Dexus Capital Funds Management Ltd [2024] NSWSC 1413

Hearing dates:

21, 22 October 2024

Date of orders:

8 November 2024

Decision date:

08 November 2024

Jurisdiction:

Equity - Commercial List

Before:

Hammerschlag CJ in Eq

Decision:

Order for specific performance of the contract of sale issued by the plaintiff to the first defendant on 21 July 2023

Catchwords:

CONTRACTS — Construction — Two commercial agreements govern the relationship between co-owners of a large suburban shopping centre – They contain pre-emptive rights clauses and provisions affecting certain disposals of shareholdings or voting rights in a co-owner – Breaches of various terms constitute a default which enlivens machinery for the valuation of the defaulting party’s interest in the property and an entitlement in the non-defaulting co-owners to purchase the defaulter’s interest – One such breach is a prohibited disposal, which occurs when a co-owner ceases to be a member of a co-owner’s group – Whether such a prohibited disposal took place – Whether non-defaulting party has entitlement to acquire whole of defaulting party’s interest in the property – Whether notice requirements for the acquisition by the non-defaulting party were complied with – HELD – A prohibited disposal took place, notice requirements were complied with and non-defaulting party is entitled to acquire whole of defaulting party’s interest in the property

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 90

Corporations Act 2001 (Cth) ss 50, 601FS

Cases Cited:

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99

Australian Securities and Investments Commission v Bank LeumiLe-Israel (1995) 134 ALR 101

Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520

Electricity Generation Corporation Ltd v Woodside Energy Ltd (2014) 251 CLR 640

McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579

Mohamed v Farah [2004] NSWSC 482

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451

Singer v Trustee of the Property of Munro [1981] 3 All ER 215

Taylor v Raglan Developments Pty Ltd [1981] 2 NSWLR 117

Uber Australia Pty Ltd v Chief Commissioner of State Revenue [2024] NSWSC 1124

Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522

Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530

Category:

Principal judgment

Parties:

Macquarie Retail Pty Ltd as trustee for the Macquarie Retail Trust (Plaintiff)
Dexus Capital Funds Management Ltd (formerly AMP Capital Funds Management Ltd) as responsible entity for the Dexus Wholesale Shopping Centre Fund I (formerly AMP Capital Shopping Centre Fund 1) (First Defendant)
Dexus Falcon Pty Ltd (Second Defendant)

Representation:

Counsel:
JA Arnott SC with C Winnett (Plaintiff)
DL Williams SC and AE Munro SC (First and Second Defendants)

Solicitors:
Norton Rose Fulbright (Plaintiff)
Herbert Smith Freehills (First and Second Defendants)

File Number(s):

2023/00432602

Publication restriction:

Nil

JUDGMENT

INTRODUCTION

1. This dispute concerns the construction and operation of two commercial contracts which govern the relationship between co-owners of the Macquarie Shopping Centre (the Property), Sydney’s largest suburban shopping centre. It is situated in the city of North Ryde, which lies to the northwest of the Sydney CBD.

2. As at 25 October 2012, the Property was co-owned by the following three entities within the Australian Mutual Provident Society (AMP) group, as tenants-in-common:

1. AMP Macquarie Pty Ltd as trustee of the AMP Macquarie Trust (the plaintiff or Macquarie Retail) – 50%;

2. ACPP Retail Pty Ltd as trustee of the ACPP Retail Trust (ACPP) – 25%; and

3. AMP Capital Investors Pty Ltd as responsible entity^[1] of the AMP Capital Shopping Centre Fund (ASCF) – 25%.

   1. Chapter 5C of the Corporations Act 2001 (Cth) (the Act) contains provisions governing the registration and management of managed investment schemes. Such schemes must have a responsible entity which operates the scheme and performs the functions conferred on it by the scheme’s constitution and the Act.

3. The ultimate holding company of the AMP group was AMP Ltd, an Australian Securities Exchange (ASX) listed company.

4. On 25 October 2012, the three co-owner entities, together with a number of other entities in the AMP group, entered into, by way of deed, a written Co-owners’ Agreement (the Agreement). Simultaneously with the Agreement, the parties entered into a Development Agreement and a Management Agreement, all intended to work congruently. The other agreements play no role in the resolution of this dispute.

5. The Agreement contains pre-emptive rights clauses and provisions affecting certain disposals of shareholdings or voting rights in a Co-Owner. Breaches of various terms of the Agreement constitute a Default which enlivens machinery for the valuation of the defaulting party’s interest in the Property and an entitlement in the non-defaulting Co-Owners to purchase the defaulter’s interest.

6. It is no doubt a matter of significant, even vital, interest to a co-owner of real property who is or is to become their co-owners. In a commercial context such as this, where the co-ownership is of a major commercial enterprise, that interest is acute. Arrangements which govern the relationship between Co-Owners in this case, must be seen in that light. It is also a relevant feature of these arrangements that a compulsory acquisition is at full market value.

SYNOPSIS

7. On 31 May 2013, ASCF retired as responsible entity of the AMP Capital Shopping Centre Fund and was replaced by AMP Capital Funds Management Ltd (AMPCFM), a wholly-owned subsidiary of AMP Ltd. The Property was then held as tenants-in-common, by:

1. Macquarie Retail – 50%;

2. ACPP – 25%; and

3. AMPCFM – 25%.

8. On 22 October 2014, the parties to the Agreement and AMPCFM entered into an Accession Deed (the Accession Deed) by means of which ACPP (or the Outgoing Party) was replaced by AMPCFM (as responsible entity of the AMP Capital Diversity Property Fund), as a party to the Co-Owner contractual arrangements. The Property was then held as tenants-in-common, by:

1. Macquarie Retail – 50%; and

2. AMPCFM – 50%.

9. On 27 April 2022, AMP Ltd announced the sale of its real estate and domestic infrastructure equity business to the Dexus group, a large real estate group which manages a significant property portfolio. The ultimate holding company of the group is Dexus Funds Management Ltd, an ASX-listed entity.

10. On 24 March 2023, AMP Ltd transferred all of its shares in AMPCFM to a company within the Dexus group, whereupon AMPCFM ceased to be part of the AMP group and a Related Corporation of the companies in the AMP group. AMPCFM was renamed Dexus Capital Funds Management Ltd. I shall, however, refer to it as AMPCFM.

11. Macquarie Retail contends that the transfer constituted a Default, was prohibited, and triggered Macquarie Retail’s entitlement to buy AMPCFM’s interest in the Property.

12. The Agreement is a document of considerable length, and its provisions are complex. The Accession Deed is a brief document but how, juridically, it interacts with the Agreement involves a degree of complexity. As will be seen, each instrument is not without its imperfections and infelicities.

GENERAL OPERATION

13. For the convenience of the reader, I will endeavour to give a brief summary of how the central and presently pertinent clauses of the Agreement operate. The full text of those clauses is in Schedule A to this judgment. All relevant parts of the Accession Deed are in Schedule B. This summary is not a substitute for an examination of the provisions themselves.

14. Clause 2.1 provides that the Agreement commences on its date and will terminate, relevantly, on the date a new deed is entered into, with the consent of the parties, in lieu of it. Clause 2.2 provides that the termination of the Agreement for any reason whatsoever will not affect the accrued rights and obligations of the parties at the time of termination.

15. Clause 6 provides that no Dealing (a widely defined term) with respect to a Co-Owner’s Interest, may occur except by way of: a Permitted Transfer in accordance with cl 8; compliance with the pre-emptive rights procedures in cl 9; a Dealing in accordance with cl 11 which provides for deadlocks; a Default Buyout (which Macquarie Retail says is this case); or with the prior written consent of the other Co-Owners.

16. Clause 8.1(a) contains provisions giving a priority first right to a Minority Co-Owner (ACCP, ASCF and certain permitted transferees) to acquire the whole of the interest in the Property of another Minority Co-Owner who wishes to deal with it. Except where the transferee is a specified (effectively in-house) acquirer (see cl 8.1(a)(i)), the Minority Co-Owner wishing to deal with their interest must offer it to the other Minority Co-Owner. If the offeree does not take up the offer, the Minority Co-Owner wishing to sell must offer the interest to the other Co-Owners.

17. Clause 8.1(b)(i) permits any Co-Owner (subject to the priority right of a Minority Co-Owner under cl 8.1(a)) to deal with the whole or any portion of its interest in the Property without complying with cl 9 where the other party to the dealing is a member of that Co-Owner’s Co-Owner’s Group (defined as Relevant Co-Owner’s Group) (that is, effectively, Related Corporations^[2] ).

    2. Clause 1 defines Related Corporation as “a body corporate which is related body corporate under section 50 of the Act”. The effect of s 50 of the Act is that a Related Corporation is a holding company, subsidiary or fellow subsidiary of another company.

18. Clause 8.2 provides that, if a Co-Owner which acquired an interest in the Property under cl 8.1 ceases to have the characteristics which qualify it as a member of that Relevant Co-Owner’s Group, it will be deemed to have carried out a Prohibited Disposal and be in Default, unless the other Co-Owners agree in writing, or before its status changes, it transfers its interest to another member of the Relevant Co-Owner’s Group.

19. Because of their centrality to this dispute (although set out in Schedule A) and for ease of understanding, I will set out the relevant parts of these clauses here:

8.1   Dealing with Co-Owner’s Group

(a)   If a Minority Co-Owner wishes to Deal with the whole of its interest in the Property, then:

(i)   unless the transferee to that Dealing is:

A.   an entity wholly owned by the Beneficial Party relevant to that Minority Co-Owner or a sub trust, all of the units in which are held by that Beneficial Party; or

B.   a person referred to in paragraph (d) of the definition of “AMP Fund” in clause 1.1; or

C.   the new or replacement trustee or responsible entity of the trust (including an unregistered trust, a trust having an approved deed or registered managed investment scheme) in respect of which:

1)   that Co-Owner holds an interest in the Property in its capacity as trustee or responsible entity; or

2)   the Beneficial Party of that Co-Owner holds an equitable interest in the Property in its capacity as trustee or responsible entity,

then the other Minority Co-Owner shall have a priority first right to acquire the interest on the terms set out in clause 9.2 to 9.7 (inclusive); and

(ii)   if that Minority Co-Owner does not accept the offer under clause 8.1(a)(i), subject to clause 8.1(b), the provisions of clauses 9.2 to 9.16 (inclusive) will apply in relation to the sale of that interest in the Property.

(b)   Subject to clause 8.1(a), a Co-Owner is permitted at any time and from time to time to Deal with the whole or any portion of its interest in the Property (without complying with clause 9) where the other party to the Dealing:

(i)   is a member of that Co-Owner’s Co-Owner’s Group (Relevant Co-Owner’s Group); or

(ii)   is any person referred to in clause 8.1(a)(i).

(c)   Any such Dealing must be promptly notified in writing to the other Co-Owners by the Co-Owner Dealing with its interest.

8.2   Ceasing to be a member of Co-Owner’s Group

If a Co-owner which acquired an interest in the Property under clause 8.1 will cease to have the characteristics which qualify it as a member of that Relevant Co-Owner’s Group then, the Permitted Transferee will be deemed to have carried out a Prohibited Disposal and thereby be in Default, it will be deemed a Defaulting Co-Owner unless:

(a)   the other Co-Owners otherwise agree in writing; or

(b)   that Co-Owner prior to it ceasing to be a member of the Relevant Co-Owner’s Group Deals with all its Interest;

(i)   to a person which then qualifies as a member of the Relevant Co-Owner’s Group, and clause 9 does not apply to such Dealing; or

(ii)   otherwise in accordance with clause 9.

20. Under cl 12, if a Default occurs, each Co-Owner must give written notice of it to the other Co-Owners, and within three months of the Default or notice of it, any other Co-Owner (Acquiring Co-Owner) may give notice to the Defaulting Co-Owner that it desires to exercise its rights under cl 12, nominating an independent valuer. It must require the Defaulting Co-Owner to nominate another independent valuer. Within one month, they must jointly request the valuers to determine the Net Proceeds of Sale, meaning the amount the Property would be expected to realise on the open market, and the Default Interest Value, meaning a value equivalent to that proportion of the Net Proceeds of Sale which the interest in the Property held by the Defaulting Co-Owner bears to the whole of the Property (ie the market value of the interest). If the Defaulting Co-Owner does not appoint a valuer, the valuer nominated by the Acquiring Co-Owner can proceed unilaterally. Within ten business days after the delivery of the valuer’s determination, a Co-Owner may give notice to the Defaulting Co-Owner that it wishes to purchase all or part of the Default Interest. If no such notice is given, the right to purchase lapses.

21. Once again, for ease of understanding, I will set out cl 12.11 here:

12.11   Notice of purchase to Defaulting Party

Within 10 business days after the delivery to it of the determination of the Valuers or the Umpire, as the case may be, a Co-Owner may give notice to the Defaulting Co-Owner that that Co-Owner or:

(a)   if there are only two Co-Owners, any nominee of that Co-Owner; or

(b)   in any other case, any member of that Co-Owner’s Group,

nominated in writing by it to the Defaulting Co-Owner wishes to purchase all or part of the Default Interest at a price equal to the Default Interest Value (or the relevant proportion of the Default Interest Value where the Co-Owner wishes to purchase part of the Default Interest). If no such notice is given within that 10 business day period, the right conferred upon the Co-Owners under this clause will lapse.

22. Under cl 12.14, within ten business days of giving notice that it wishes to purchase, the Acquiring Co-Owner must deliver an unconditional contract providing for completion 60 days after the contract is entered into, and the Defaulting Co-Owner must execute and exchange it. If the contract is not exchanged within ten business days of receipt, the Acquiring Co-Owner may take action to enforce its rights by seeking specific performance and the parties agree that damages are not an adequate remedy for non-performance. The Co-Owners may agree in writing to vary any of the procedures set out in the clause.

23. Clause 13 is headed Notices. Because of its centrality, I will set it out here:

13.1   Form

A notice, approval or consent in connection with this deed:

(a)   must be in writing;

(b)   must be marked for the attention of the person specified in the Details; and

(c)   must be left at the address of the addressee or sent by prepaid ordinary post (airmail if posted to or from a place outside Australia) to the address of the addressee or sent by facsimile to the facsimile number of the addressee which is specified in the Details or if the addressee notifies another address or facsimile number then to that address or facsimile number.

13.2   Effective on receipt

Unless a later time is specified in it a notice, approval or consent takes effect from the time it is received.

13.3   Receipt by post or fax

A letter or facsimile is taken to be received:

(a)   in the case of a posted letter, on the third (seventh, if posted to or from a place outside Australia) day after posting; and

(b)   in the case of a facsimile, on production of a transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the facsimile number of the recipient notified for the purpose of this clause if prior to 5.00 pm on a business day or otherwise upon the next business day following such production.

24. There is no “Details” section in the Agreement. No person for whose attention the notice must be made is specified. No facsimile number is specified. Where, at the beginning of the Agreement, the parties are identified, each is stated to be located at Level 24, AMP Building, 33 Alfred Street, Sydney NSW. But it is agreed that AMPCFM did not have that address as at 7 July 2023. No submission was put that notice was required (exclusively or otherwise) to be given at that address.

THE FIRST DEXUS TRANSACTION

25. In April 2021, the AMP Capital Diversified Property Fund (of which AMPCFM was the responsible entity) merged with the Dexus Wholesale Property Fund and an entity styled Dexus Wholesale Property Ltd (Dexus Wholesale) became the responsible entity of the AMP Capital Diversified Property Fund, assuming the rights and obligations of AMPCFM as responsible entity.

26. The relevant part of the Accession Deed is cl 1, which provides:

1   Agreement

With effect on and from the Effective Date:

(a)   each of the parties to a Contract agree that the Contract is discharged and a new contract (New Contract) is created on the same terms and conditions as that Contract except that:

(i)   each reference to the Outgoing Party will be read as a reference to the Incoming Party; and

(ii)   notices to the Incoming Party must be provided using its details specified in this document; and

(iii)   any reference to the Guarantor is deleted; and

(iv)   in the New Contract created on the same terms as the Co-owners Agreement, the definition of “Beneficial Party” is amended by replacing the words “in respect of ACPP Retail, AMP Life and ACPP Holding” with “AMP Capital Funds Management Limited in its capacity as responsible entity of the AMP Capital Diversified Property Fund”;

(b)   the Incoming Party and each other party to a New Contract:

(i)   are bound by that New Contract; and

(ii)   enjoy under that New Contract all the rights and benefits conferred on those parties under that New Contract;

(c)   the Incoming Party does not have any of the obligations of the Outgoing Party under the Contract that arose before the Effective Date;

(d)   the Continuing Parties release the Outgoing Party and the Guarantor from any obligation under the Co-owners Agreement to be performed on or after the Effective Date; and vice versa; and

(e)   the Continuing Co-owners and the Manager release the Outgoing Party from any obligation under the Management Agreement and the Development Management Agreement to be performed on or after the Effective Date; and vice versa.

27. In the Details specified in the Accession Deed, AMPCFM is identified as the Incoming Party, with the address Level 24, AMP Building, 33 Alfred Street, Sydney NSW 2000.

28. Transfer of the 25% share previously held by AMPCFM to Dexus Wholesale was registered on 13 October 2021. This resulted in the ownership of the Property being held as tenants-in-common by:

1. Macquarie Retail – 50%;

2. Dexus Wholesale – 25%; and

3. AMPCFM – 25%.

29. By all accounts, because of s 601FS of the Act, ^[3] the obligations of AMPCFM as responsible entity devolved upon Dexus Wholesale. The evidence did not reveal whether Dexus executed any instrument binding it to the Agreement.

    3. Section 601FS(1) of the Act provides: “If the responsible entity of a registered scheme changes, the rights, obligations and liabilities of the former responsible entity in relation to the scheme become rights, obligations and liabilities of the new responsible entity.”

29. On 22 October 2021, Dexus Wholesale gave notice to AMPCFM under cll 8.1(a) and 9.2 of the Agreement that:

In accordance with clause 8.1(a) and 9.2 of [the Agreement], we put [AMPCFM] on notice that [Dexus Wholesale] wish [sic] to Deal with its Interest by selling the whole of its Interest being 25% of the Property for $422,500,000.00 (plus GST) on the terms comprised in the attached Contract for Sale (the Terms).

Pursuant to clause 8.1(a)(i) we hereby offer [AMPCFM] the first right to acquire the Interest on the Terms.

Under clause 9.3 of [the Agreement], [AMPCFM] has 2 months from receipt of this notice to notify [Dexus Wholesale] as to whether it intends to exercise its first priority pre-emption right and purchase the Interest.

31. On 16 December 2021, AMPCFM wrote to Macquarie Retail:

Clause 9.4 of [the Agreement] provides that [AMPCFM] must provide a notice to [Dexus Wholesale] specifying whether it wishes to acquire the Interest within 2 months from the date of receipt of the Transfer Notice, being 21 December 2021 … [AMPCFM] and [Dexus Wholesale] must then execute and exchange the Contract for Sale within 10 business days after [AMPCFM] receives the form of Contract for Sale from [Dexus Wholesale] (which must occur within a maximum of 10 business days from the end of the Invitation Period) in accordance with clause 9.7 of [the Agreement].

Compliance with the timing mandated by clauses 9.4 and 9.7 may result in [Dexus Wholesale] and [AMPCFM] exchanging the Contract for Sale in early January during the Christmas shutdown period. [Dexus Wholesale] and [AMPCFM] have therefore agreed to work towards signing the Contract for Sale before the end of the Invitation Period and to provide for a settlement date of 31 January 2022. The parties’ current intention is to exchange the Contract for Sale before the end of the Invitation period.

[AMPCFM] requests that AMP Macquarie Pty Limited as trustee of the AMP Macquarie Trust waives any non-compliance with [the Agreement] in connection with the process of exchanging the Contract for Sale before the end of the Invitation Period.

32. Macquarie Retail acceded to AMPCFM’s request to waive non-compliance with the date for exchange of contract.

33. On 31 January 2022, Dexus Wholesale transferred its 25% of the Property to AMPCFM. This resulted in ownership of the Property being held as tenants-in-common by:

1. Macquarie Retail – 50%; and

2. AMPCFM – 50%.

THE SECOND DEXUS TRANSACTION

34. On 27 April 2022, AMP Ltd announced that it had agreed to sell its real estate and domestic infrastructure equity business to the Dexus group.

35. On 24 March 2023, AMP Ltd transferred all of its shares in AMPCFM to Dexus Falcon Pty, an entity within the Dexus group (and the second defendant), with the consequence that the ultimate holding company of AMPCFM became Dexus Holdings and AMPCFM ceased to be a Related Corporation of AMP Ltd or the group of companies controlled by it.

MACQUARIE RETAIL GIVES NOTICE OF A PROHIBITED DISPOSAL

36. On 20 March 2023, Dexus announced that it and AMP had agreed binding documentation for the acquisition of AMP’s real estate and domestic infrastructure equity business.

37. On 24 March 2023, Macquarie Retail’s solicitors (NRF) wrote to AMPCFM seeking information “in order for Macquarie Retail to understand and exercise their rights under the Agreement”.

38. On 28 March 2023, Dexus Holdings gave notice to the Australian Securities Investments Commission that it had become the ultimate holding company of AMPCFM.

39. The following communications between the parties or their solicitors were, unless otherwise stated, by email.

40. On 30 March 2023, NRF wrote to AMPCFM enclosing a document entitled ‘First Notice’ (First Notice) stating that the acquisition by Dexus of AMP’s business earlier described resulted in a deemed Prohibited Disposal and Default under the Agreement. The covering letter informed AMPCFM that a copy of the letter and First Notice had been sent to AMPCFM’s solicitors (HSF).

41. On 31 March 2023, HSF wrote to NRF:

RE: Co-owners’ Agreement, Macquarie Centre, North Ryde (COA)

As previously advised, we act for AMP Capital Funds Management Ltd as responsible entity of AMP Capital Shopping Centre Fund 1.

We refer to your letter to our client dated 30 March 2023 and the enclosed draft “First Notice” (Notice). Capitalised terms in this letter have the meaning given to them in your 30 March 2023 letter and the Notice.

It is not apparent to us or our client that the Revised Dexus Transaction creates any rights for your client under [the Agreement] or otherwise. However, to enable us to better understand your client’s position, would you please provide the reasoning and rationale for your contention and explain the circumstances which you contend have resulted in a deemed Prohibited Disposal under [the Agreement].

Our client’s position is that neither your letter of 30 March 2023 nor the Notice requires any action by it.

We note that we have not received a copy of your 30 March 2023 letter. Would you please ensure that all future correspondence is emailed to [email protected] and [email protected] with copies to [email protected] and [email protected].

Our client reserves its rights in relation to [the Agreement].

Yours sincerely

[Emphasis added]

42. From this point on (with the one exception referred to later), all communications between the parties were via their respective solicitors.

43. After a further exchange of correspondence, on 28 April 2023, NRF wrote to HSF:

Dear Colleagues,

RE: Co-owners’ Agreement - Macquarie Centre, North Ryde (COA)

We refer to our letter dated 30 March 2023 addressed to your client serving a Notice pursuant to clause 12.2 of [the Agreement].

We also refer to your letter of 31 March 2023 requesting that all future correspondence to your client be directed to your firm.

Accordingly, by way of service, we enclosed a Notice issued by Macquarie Retail Pty Ltd at the direction of the Unitholders pursuant to clause 12.2 of [the Agreement].

As a formality, a hard copy of the Notice will be sent to your client by registered post pursuant to clauses 12.2 and 13 of [the Agreement].

Yours faithfully

[Emphasis added]

44. The letter enclosed a document of the same date headed ‘Notice of Exercise of Rights under clause 12.2 of the Co-owners’ Agreement – Macquarie Centre, North Ryde dated 25 October 2012 as amended and restated from time to time (COA) (Second Notice)’ (Second Notice) and gave notice of Macquarie Retail’s nomination of a valuer, Mr Paul Satara.

45. On 18 May 2023, HSF wrote to NRF taking issue with a number of matters which it is not necessary to canvass here. Pertinent things which the letter did say, however, were:

Your client’s failure to respond in any meaningful way coupled with the service of what purports to be a notice issued under clause 12.2 of [the Agreement] suggests the absence of your client’s duty of utmost good faith in its dealings with our client required by clause 24 of [the Agreement].

Our client’s position is that none of the various transactions to which you have referred in your April letter or in any previous correspondence, has resulted in a “Prohibited Disposal” or a deemed “Prohibited Disposal” for the purposes of [the Agreement].

Accordingly, the process under clause 12 of [the Agreement] has not been effectively activated by your client’s notices, including that attached to the April letter.

Your client has failed to properly articulate or seek declaratory relief as to its asserted rights. It will not be able to persist with that position. The notice attached to the April letter is apparently a precursor to an attempt to exercise rights under clause 12.14 of [the Agreement]. Given our client’s dispute that there has been any “Prohibited Disposal” your client will have to commence specific performance proceedings to seek to justify its position. Any such proceedings will be defended on the basis that there has been no actual or deemed “Prohibited Disposal”.

Should your client pursue the process outlined in clause 12 of [the Agreement] and in due course deliver an unconditional contract of sale purporting to be in accordance with clause 12.14 of [the Agreement], it is our client’s intention that it will not sign a contract of sale and it will defend any proceedings which may be commenced seeking to compel it to do so.

Notwithstanding the failure of your client to provide reasons for its assertions and the service on our client of a notice which purports to be a notice issued under clause 12.2 of [the Agreement], our client has instructed us to respond to your May Letter as follows […]

46. A further brief exchange of correspondence then occurred which it is not necessary to recount.

47. On 26 May 2023, Macquarie Retail engaged Mr Satara.

48. AMPCFM did not join in the appointment of the valuer.

49. On 23 June 2023, Mr Satara determined the Net Proceeds of Sale (ie the market value) of the Property as $1,660,000,000.

MACQUARIE RETAIL GIVES NOTICE OF PURCHASE

50. On 7 July 2023 at 5:31pm, NRF wrote to HSF enclosing a notice of purchase pursuant to cl 12.11 of the Agreement (Third Notice). The covering letter stated:

We enclose a Notice of purchase issued by Macquarie Retail Pty Ltd pursuant to clause 12.11 of [the Agreement].

As a formality, a hard copy of the Notice will be sent to your client by registered post pursuant to clauses 12.11 and 13 of [the Agreement].

[Emphasis added]

51. The Third Notice relevantly provided:

Pursuant to clause 12.11 of [the Agreement], [Macquarie Retail] now advises AMPCFM in writing that it wishes to purchase all of the Default Interest at a price equal to the Default Interest Value. Specifically, [Macquarie Retail] wishes to purchase AMPCFM’s 50% ownership interest in the subject property at the price of $830,000,000 (see the Valuer’s determination at 13.5).

An unconditional contract of sale for the Default Interest will be provided to AMPCFM within 10 business days of this Notice as required by clause 12.14 of [the Agreement].

52. The letter and Third Notice were forwarded by HSF to AMPCFM at 5:40pm.

53. On 7 July 2023, a copy of the Third Notice was sent by registered post to AMPCFM at Level 30, 50 Bridge Street, Sydney NSW 2000, AMPCFM’s actual physical address. Australia Post records prove that it was delivered at 9:45am on 18 July 2023 (that is, well outside the time limit in cl 12.11).

54. On 21 July 2023, NRF sent HSF an unconditional contract for the purchase of all of AMPCFM’s 50% interest in the Property for $830,000,000. A copy of the contract and covering letter were hand-delivered to AMPCFM’s physical address that same day.

THE PROCEEDINGS

55. These proceedings started on 29 November 2023 when Macquarie Retail sued out of the Court a Summons and accompanying Commercial List Statement, claiming:

(1)   A declaration that the transfer of all the shares in Dexus Capital Funds Management Limited (formerly [AMPCFM]) to the Second Defendant on or about 24 March 2023 gave rise to a deemed Prohibited Disposal and/or Default pursuant to clauses 8.2 and 1.1 (definition of "Default") of the Co-owners' Agreement - Macquarie Centre, North Ryde dated 25 October 2012 read with the Accession Deed - Co-Owner Agreements - Macquarie Centre, North Ryde dated 22 October 2014 (2012 & 2014 COA).

(2)   An order that the First Defendant specifically perform and carry into execution a contract of sale in the form issued by the Plaintiff to the First Defendant on 21 July 2023 pursuant to clause 12.14 of the 2012 & 2014 COA (Contract of Sale).

(3)   An order that the First Defendant and/or Second Defendant do all things necessary on completion of the Contract of Sale to transfer to the Plaintiff legal title to, or ownership of, the First Defendant's 50% share of the following property (the "Property" as defined in clause 1.1 of the 2012 & 2014 COA):

a.   the land in DP 3/1047085, 123-124/1130457 and 100/612281 (which now together comprise the land in DP 100/1190494);

b.   the improvements, fixtures, fittings, services, plant and equipment located in or on the Property and belonging to the First Defendant (itself or together with the Plaintiff); and

c.   any associated rights acquired under any contract for the purchase of any Property or any ancillary agreement.

(4)   An order that the First Defendant and/or Second Defendant be liable for and pay the costs of the CBRE Valuation Report dated 23 June 2023.

(5)   Interest on the amount payable under prayer 4.

(6)   Costs.

(7)   Such other and further relief the Court considers appropriate.

56. AMPCFM is cited as first defendant and Dexus Falcon as second defendant. The true protagonists, however, are Macquarie Retail and AMPCFM (now owned by the Dexus group). Where the context requires, references to AMPCFM should be construed as including Dexus Falcon.

57. The hearing was set down to commence on 21 October 2024 for three days. It was completed in just under two.

58. The Court had the benefit of comprehensive written and oral submissions. I have taken account of all the arguments but will not restate them.

59. The parties helpfully provided a Statement of Agreed Facts.

THE PARTIES’ POSITIONS

Macquarie Retail

60. Macquarie Retail puts the following principal propositions:

1. by the Accession Deed, the terms reflected in the Agreement continued to be binding on all the parties to the Agreement, except for the Outgoing Party (that is, ACPP), from 25 October 2012 until 22 October 2014, continued to be binding on the Outgoing Party in respect of any obligations required to be performed by it up to 22 October 2014 and, from 22 October 2014, bound and continued to bind each of the parties to the Accession Deed to the terms reflected in the Agreement (I use the phrase ‘reflected in the Agreement’ because, whilst the Accession Deed does not itself embody the substantive terms in the Agreement, it creates a new agreement on those terms);

2. when, on 31 May 2013, AMPCFM acquired (by being replaced as responsible entity of the AMP Capital Shopping Centre Fund) its first 25% interest in the Property (the first 25%), it did so “under cl 8.1” within the meaning of that expression in cl 8.2;

3. when, on 31 January 2022, AMPCFM acquired, by transfer from Dexus Wholesale, its second 25% interest in the Property (the second 25%), it did so “under cl 8.1” within the meaning of that expression in cl 8.2;

4. by the transfer from AMP Ltd to Dexus Falcon of its shares in AMPCFM, AMPCFM ceased to have the characteristics which qualified it as a member of AMPCFM’s Relevant Co-Owner’s Group within the meaning of cl 8.2 (by no longer being a Related Corporation) and was thereby deemed to have carried out a Prohibited Disposal, was in Default and deemed under cl 8.2 to be a Defaulting Co-Owner;

5. on 30 March 2023 (and it is not in dispute), it gave notice to AMPCFM of the Default under cl 12.2, and thereafter appointed a valuer to determine the Net Proceeds of Sale and Default Interest Value, which the appointed valuer did on 23 June 2023;

6. on 7 July 2023, either by NRF’s email to HSF or by the transmission of its email by HSF to AMPCFM (which was actually received by AMPCFM), it gave notice to AMPCFM under cl 12.11 that it wished to purchase all of the Default Interest;

7. on 21 July 2023, it delivered an unconditional contract to AMPCFM in accordance with cl 12.14, but the contract was not exchanged within the 10 business days’ time limit; and

8. it is, in the premises, entitled to an order that the contract be specifically performed.

AMPCFM

61. AMPCFM puts the following principal propositions in response:

1. the Accession Deed discharged the Agreement, creating a new one, with the effect that any obligation on any party to the Agreement which had not arisen by the Effective Date of the Accession Deed was discharged. Consequently, the reference in cl 8.2 (incorporated into the Accession Deed by cl 1(A) of that instrument) to a Co-Owner which acquired an interest in the Property under cl 8.1, is a reference only to an acquisition which occurred after 22 October 2014 (the Effective Date of the Accession Deed). A further consequence is that the acquisition of the first 25% is not an interest which AMPCFM acquired under cl 8.1 as referred to in cl 8.2 (because it happened before 22 October 2014) and the change in control of AMPCFM to Dexus Wholesale was thus not a breach of cl 8.2, and therefore not a Default;

2. the acquisition of the second 25% was not acquired under cl 8.1, but rather, under cll 9.2 to 9.7 because that interest was offered directly to AMPCFM by way of the operation of cll 9.2 to 9.7;

3. clause 8.2 does not apply to the change in control of AMPCFM brought about by the Dexus acquisition because the transfer of the second 25% was not from a Co-Owner (Dexus Wholesale) to a member of that Relevant Co-Owner’s Group. Where cl 8.2 refers to “a member of that Relevant Co-Owner’s Group”, it means and means only a member of the Relevant Co-Owner’s Group referred to in cl 8.1(b)(i) and, for present purposes, there was no such Relevant Co-Owner’s Group. It follows that the change in control of AMPCFM was not a breach of cl 8.2 and therefore not a Default in relation to the second 25%;

4. a Default (by way of a Prohibited Disposal) in relation to either (but not both) of the first 25% or the second 25% does not, under cll 12.11 and 12.12(a), entitle Macquarie Retail to purchase the other 25% or oblige AMPCFM to sell it. Consequently, if Macquarie Retail does not establish that the acquisition of both 25% interests were under cl 8.1, it fails. AMPCFM says that the words in cl 12.14 “the Acquiring Co-Owner may take action to enforce its rights by seeking an order for specific performance of its rights under this clause 12 in respect of the particular Default” (emphasis added) mean a Default in respect of a particular identified interest; and

5. if Macquarie Retail was otherwise entitled to acquire only the first 25% or the second 25% (but not both), it is not open to the Court to grant relief in relation to only one of those interests because:

1. no such relief was pleaded or claimed;

2. by cl 12.11, Macquarie Retail had a once-only election to purchase all or part of the Default Interest, and it exercised it with respect to all of the Default Interest, thereby waiving any right it might otherwise have had with respect to the other 25%; and

3. under cl 12.14, Macquarie Retail delivered an unconditional contract of sale for the whole, and the whole only, of AMPCFM’s interest in the Property; and

6. Macquarie Retail did not, either timeously or at all, give notice to AMPCFM in compliance with cl 12.11 read with cl 13. In its Commercial List Response filed on 22 February 2024, AMPCFM admits that, on 7 July 2023, Macquarie Retail sent a letter dated 7 July 2023 to AMPCFM but says that it was not delivered within the time limits prescribed in cl 12.11. It otherwise denies that Macquarie Retail gave notice under cl 12.11. The effect of this is that AMPCFM denies both that the covering email and Third Notice sent by NRF to HSF, or the email forwarding them to AMPCFM, was the giving of notice pursuant to cl 12.11. This comprehends denials that service on HSF was giving notice to AMPCFM and that coming to the actual attention of AMPCFM of the notice did not constitute the giving of notice. It argues that:

1. the requirements for giving notice laid down in cl 12.11 are strict;

2. the letter dated 7 July 2023 and Third Notice were received by AMPCFM outside the ten business days’ time limit for giving notice in cl 12.11 (on 18 July 2023). There is no dispute about this;

3. clause 12.11 requires that the notice be given “to the Defaulting Co-Owner”. Notice to HSF was not the giving of notice to AMPCFM because the Accession Deed does not authorise notice to be given to someone else as agent of the Defaulting Co-Owner, and a solicitor is not implicitly vested with authority to receive notices on behalf of their client. There was no holding out by AMPCFM that notices required to be given to it could be given to its solicitors. AMPCFM draws attention to cl 1.2(d) which provides that “a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including persons taking by novation), transferees and assigns” which does not include a person’s lawyer; and

1. clause 13 makes no provision for giving notice by email or any other form of service other than for the notice to be left at the address of the addressee, or sent by prepaid ordinary post, or facsimile. It makes no provision for notice to be given by it actually being received by the recipient.

62. AMPCFM did not press an untenable submission that notice was not given in time because the email communications were out of time because a business day ends at 5:00pm and they were sent and received after 5:00pm on the last day for notice. Such a construction of business day was rejected by Barrett J in Mohamed v Farah [2004] NSWSC 482 at [53]. It is also to be observed that cl 13.3(b) takes a facsimile to be received if it was sent in its entirety to the specified facsimile number prior to 5:00pm on a particular business day. That presumption does not apply to an email communication which, unlike a facsimile, does not need to be printed out to be seen.

Macquarie Retail’s Rejoinders

63. As to AMPCFM’s argument that the acquisition of the first 25% was not acquired under cl 8.1, Macquarie Retail argues that its entitlement to the priority right and AMPCFM’s obligation in cl 8.1, read with cl 8.2, are rights and obligations which had accrued at the time of termination of the Agreement within cl 2.2. The basis for this argument is that AMPCFM’s obligation (and the corresponding right on the part of other Minority Co-Owners) to acquire the first 25% was, in effect, attached to that interest irrespective of when a relevant Default occurred and hence, those rights and obligations had accrued at the moment the first 25% was acquired.

64. As to the argument that AMPCFM was not a member of that Relevant Co-Owner’s Group within cl 8.2 (because it was not a member of the Dexus group), Macquarie argues that the reference in cl 8.2 to that Relevant Co-Owner’s Group is a reference to the Co-Owner’s Group of which the Co-Owner the subject of the change in characteristics was member, that is, if a Co-Owner which acquired an interest in the Property under cl 8.1 ceases to be a member of the Co-Owner’s Group to which it belonged at the time of the acquisition (irrespective from whom it acquired the interest) cl 8.2 applies.

65. As to the argument that, on a Prohibited Disposal, the only interest which the Acquiring Co-Owner can acquire is a specific interest the subject of a Default, Macquarie Retail draws attention to the definition of Default Interest which it argues has the consequence that, on a Default, the entirety of the interest of the Defaulting Co-Owner is in play. It also draws attention to the fact that a Default, as defined, may consist of a breach of an obligation of good faith (cl 24) or the failure to meet an indemnity (cl 27) which need not bear a relationship to any particular interest.

66. As to the argument that the Court cannot grant relief in relation to only one 25% interest, it seeks to rely on the words in cl 12.14 that it “may take action to enforce its rights by seeking an order for specific performance of its rights” under cl 12 and argues that the Court can grant relief in respect of whatever its rights turn out to be. It relies, with respect to the argument that it has not pleaded such a claim, on the prayer in the Summons for “other and further relief the Court considers appropriate”. Finally, it argues that the Court can grant this relief under s 90 of the Civil Procedure Act 2005 (NSW). ^[4]

    4. Section 90(1) of the Civil Procedure Act 2005 (NSW) provides: “The court is, at or after trial or otherwise as the nature of the case requires, to give such judgment or make such order as the nature of the case requires”.

67. On AMPCFM’s arguments on notice, Macquarie Retail puts that:

1. clause 13 permits the giving of notice via email and such notice was given and received on 7 July 2023 either by delivery to HSF as agent for AMPCFM, or by transmission by HSF to AMPCFM that day;

2. by way of the correspondence between the solicitors, the parties agreed pursuant to cl 12.17 to vary the procedures set out in that clause to permit email service on HSF;

3. by that correspondence, AMPCFM notified another address under cl 13.1(c);

4. in taking the position it does on notice, AMPCFM is not, in its dealings with Macquarie Retail, acting with the utmost good faith, contrary to cl 24; and

5. by instructing HSF to write the 31 March 2023 and 18 May 2023 letters, AMPCFM caused Macquarie Retail to assume that it would treat notices sent to HSF as validly served and would not require strict compliance with the notice procedures, Macquarie Retail relied on these assumptions to its detriment so that AMPCFM is estopped from departing from them.

AMPCFM’s rebutter on notice

68. AMPCFM argues that neither HSF’s letter dated 31 March 2023 nor its letter dated 18 May 2023 conveyed that AMPCFM was dispensing with any formal requirement for giving of notice under the Accession Deed. It puts that the 31 March 2023 letter referred to correspondence being emailed, not notice being given.

69. It argues that Macquarie Retail has not established an evidentiary basis for its claimed estoppel. It has not proved reliance out of the mouth of its guiding minds.

CONSIDERATION

70. Before dealing with the arguments, it is apt to state briefly the principles which apply to the construction of the Agreement and the Accession Deed. They are both commercial contracts which are to be given a business-like interpretation. Interpreting them requires attention to the language used by the parties, the commercial circumstances which they address, and the objects which they are intended to secure. The meaning of the words chosen is determined objectively by reference to their text, context, and purpose, the question being what a reasonable businessperson would have understood them to mean. Preference is given to a construction supplying a congruent operation to the various components of the whole, so as to avoid commercial inconvenience. Where language is open to more than one construction, the Court will prefer a construction which avoids consequences which are capricious, unreasonable, inconvenient or unjust. ^[5]

    5. Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109; McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 at [22]; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [22]; Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530 at [82]; Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522 at [15]; Electricity Generation Corporation Ltd v Woodside Energy Ltd (2014) 251 CLR 640 at [35]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [47]–[51].

71. I will endeavour to deal with the issues (including answers and replies) to which the arguments (as I understand them) recounted above give rise, in the sequence in which they are set out above.

Was the acquisition of the first 25% an interest acquired under clause 8.1 within the meaning of clause 8.2?

72. The following two questions, both of contractual construction, arise:

1. was the first 25% acquired “under clause 8.1” within the meaning of those words in cl 8.2 of the Accession Deed (by way of incorporation of the text of the Agreement) or was it acquired under the terms of the Agreement only; and

2. if the latter, was the right in Macquarie Retail and corresponding obligation on AMPCFM under cl 12 to acquire and sell, respectively, the first 25% on the occurrence of a Default consisting of a cessation of the characteristics which qualified AMPCFM as a member of a Relevant Co-Owner’s Group (under cl 8.2) occurring after termination of the Agreement, a right and obligation which had accrued under the Agreement at the time of its termination?

73. I have concluded that the first 25% was acquired under cl 8.1 as incorporated into the Accession Deed. The second question therefore does not arise, but I will still answer it. I have concluded that there had not been an accrual of any right or obligation under cl 12 by 22 October 2014 in relation to the first 25%.

74. The effect of AMPCFM’s submission on the first question, if accepted, would be that AMPCFM received the benefit of the entitlement to take an interest in the Property from another Minority Co-Owner because it was a member of that Relevant Co-Owner’s Group, but without the burden of having to offer to sell it if it ceased to be a member of that Relevant Co-Owner’s Group as contemplated by cl 8.2. AMPCFM’s construction has the effect that any acquisition under cl 8.1 prior to 22 October 2014 is to be disregarded for the purposes of cl 8.2, and Minority Co-Owners have no priority in relation to such an interest.

75. A commercial object which cl 8.2 is intended to secure is that the interest does not (without consequence) come to be held by a person who was a member of a Co-Owner’s Group (the existence of which was the factor entitling the transfer in the first place) and then ceases to be such. The construction contended for by AMPCFM would defeat, rather than serve, this object.

76. Such a result would also be inimical to Recital C in the Background section of the Agreement (which is incorporated into the Accession Deed) that each party is entitled to certain of the benefits enjoyed by, and subject to certain of the obligations of, the parties to it.

77. More important, indeed decisive, is that the construction contended for is contrary to the words of the Accession Deed. Clause 1(A) of the Accession Deed brings into existence a New Contract on the same terms and conditions as the Agreement. Clause 8.1 itself (and where it is referred to in cl 8.2) are as much terms of the Accession Deed as they were of the Agreement.

78. Clause 1.2(a) of the Agreement provides:

a reference to this deed or another instrument includes any variation or replacement of either of them.

79. Applying this by way of incorporation into the Accession Deed, if one otherwise would construe the reference to cl 8.1 in cl 8.2 only to the Agreement, cl 1.2(a) deems that reference to be a reference to the Agreement’s successor, namely, the Accession Deed.

80. As to the second question, in my view, where cl 2.2 refers to accrued rights and obligations, it has in mind rights or obligations ripe to be vindicated by the grant of relief. That is not this case. No Default triggering cl 12 had occurred and there was no accrued right or obligation presently in existence at the time of the Accession Deed.

Was the second 25% acquired “under clause 8.1”?

81. The answer to this question involves the proper construction of the term “under” where it precedes the words “clause 8.1” in cl 8.2.

82. In Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520 at [49], the High Court (Gleeson CJ, Gaudron, McHugh and Hayne JJ) said that the contract “under” which something occurs is to be identified by determining whether it is “properly to be seen as the source of the obligation” to do that thing. ^[6]

    6. See too Uber Australia Pty Ltd v Chief Commissioner of State Revenue [2024] NSWSC 1124 at [108] and the authorities cited there.

83. I reject AMPCFM’s argument that the second 25% was not acquired under cl 8.1 because it was acquired, rather, under cll 9.2 to 9.7.

84. Clause 8.1(a)(i) is the source of the obligation to give the priority first right to acquire. That acquisition is on the terms set out in cll 9.2 to 9.7. It follows that the acquisition of the second 25% was under cl 8.1.

85. I interpolate that the circumstances by which Dexus came to own the second 25% were not elucidated at the trial.

Did AMPCFM, by the change in control of it because of the Dexus acquisition, cease to have the characteristics which qualified it as a member of “that Relevant Co-Owner’s Group” within the meaning of clause 8.2?

86. It is not in issue that when the second 25% was acquired by AMPCFM, it and Dexus were not members of the same Co-Owner’s Group. As I have said, the evidence does not elucidate how Dexus came to have the second 25% in the first place or how cl 8.1(b) was or could have been the basis for that transfer. In fact, it could not have been. This does not matter because the interest was acquired by AMPCFM under cl 8.1(a) (within the meaning of cl 8.2), Dexus being a Minority Co-Owner wishing to deal with the whole of its interest.

87. The thrust of AMPCFM’s submission is that “that Relevant Co-Owner’s Group” means, and means only, a Co-Owner’s Group to which the transferor and transferee belonged at the time of the Dealing whereby the transferee acquired an interest pursuant to the permission given in cl 8.1(b). In other words, it does not mean the Co-Owner’s Group to which AMPCFM belonged when Dexus acquired control of it.

88. A corollary of AMPCFM’s submission is that cl 8.2 only applies to an acquisition under cl 8.1(b). This cannot be correct because cl 8.2 refers to an interest acquired under the whole of cl 8.1, not one acquired under only cl 8.1(b).

89. The definition of “Relevant Co-Owner’s Group” is merely a shorthand reference to the Co-Owner’s Group of which the transferee was a member at the time it acquired its interest. Where that definition is used in cl 8.1(b), it is used in the context of defining the ambit of the permissible Dealing. Where it is used in cl 8.2, it is used to define the Co-Owner’s Group of which a transferee under cl 8.1 ceases to be a member. This conclusion is supported by the definition of Default which refers to “a breach of clause […] 8.2 (Ceasing to be a member of a Co-Owner’s Group)” (emphasis added) and cl 1.2 which provides that the singular includes the plural and vice versa.

90. I interpolate that, if my earlier conclusion that the first 25% was acquired under cl 8.1 is correct, in the end result, it would not matter that the second 25% was not acquired under cl 8.1 as referred to in cl 8.2, because the change in control of AMPCFM was a Prohibited Disposal in relation to the first 25% which, for the reasons referred to below, affects both interests.

91. I record that AMPCFM addressed an unsustainable argument (which it did not develop) that “Relevant Co-Owner’s Group” is a reference to the Co-Owner’s Group of which Dexus was part. This construction would have the effect that a Default is only triggered when the transferor’s Co-Owner’s Group status changes. Leaving aside that this construction does not sit with the words of the clause, it does not reflect any rational or logical commercial justification. By then, the interest has passed and a change in the transferor’s status as a member of a Co-Owner’s Group is commercially irrelevant.

If a deemed “Prohibited Disposal” occurs, does clause 12 of the Agreement entitle the Acquiring Co-Owner to purchase all of the Defaulting Co-Owner’s interest in the Property?

92. AMPCFM’s submission that a Default by AMPCFM ceasing to be a member of a Co-Owner’s Group does not affect the entirety of AMPCFM’s interest in the Property, but only some part of it, has insuperable difficulties.

93. The basis of the submission is that the reference in cl 12.14 to “specific performance in respect of the particular Default” (emphasis added) bears a necessary relationship to the acquisition of an identified interest in the Property. However, the particular Default here is not one in connection with the acquisition of either the first 25% or the second 25%. It is AMPCFM ceasing to be a member of a Co-Owner’s Group. This affects Macquarie Retail’s position as much with respect to the first 25% as it does with respect to the second 25%. If correct, the outcome would be that Macquarie Retail would remain in co-ownership with a now differently controlled AMPCFM without the operation of the pre-emptive rights provisions, which outcome is, in my view, inimical to an object which the Accession Deed seeks to secure.

94. Once again, and decisive, in my opinion, is that the construction contended for is at odds with the words chosen by the parties. Default Interest is defined to mean the interest in the Property held by the Defaulting Co-Owner, not some part of it. Indeed, cl 12.11 gives the Acquiring Co-Owner the option to buy all or part of the Default Interest.

95. The effect of a Co-Owner carrying out a Prohibited Disposal and thereby being in Default under the Agreement is to make that Co-Owner a Defaulting Co-Owner and expose it to the risk of being bought out. The whole of the Defaulting Co-Owner’s interest is in play when it commits a Prohibited Disposal.

96. A Prohibited Disposal is but one of a number of Defaults which can give rise to an acquisition under cl 12. These include a breach of good faith, and a default in meeting indemnities, neither of which necessarily relates to a particular property interest.

97. The reference in cl 12.14 to the Acquiring Co-Owner’s entitlement to enforce its rights “by seeking an order for specific performance of its rights under this clause 12 in respect of the particular Default” (emphasis added) pertains to the Default. A Co-Owner may commit more than one Default and so give (or receive) more than one Default Notice: see cl 12.3.

98. A final consideration weighing against AMPCFM’s construction is that the words of limitation relied on by it apply only to the remedy of specific performance in respect of the particular Default, and not to some other remedy such as damages. The implication is that, where specific performance is concerned, the Default must be related to a particular interest in the Property, but where, for example, damages are concerned, this is not the case. There is no commercially logical or rational basis for such a distinction.

99. I reject Macquarie Retail’s submission that, if the Court were to find that the Default related to only one (but not both) 25% interests and relief would otherwise be available in relation to that interest, the Court could and should grant it. I uphold AMPCFM’s submission on this point. Leaving aside that such relief was not claimed, Macquarie Retail’s right under cl 12.11 is to give notice of its wish to purchase all or part of the Default Interest, and its obligation under cl 12.14 is to deliver the contract it wishes to have exchanged. It gave notice only of an intention to purchase all of AMPCFM’s interest in the Property and submitted a contract on that basis. Under cl 12.14, its entitlement is to seek specific performance of that contract, not some other contract. Section 90 of the Civil Procedure Act 2005 (NSW) does not save this situation because the order sought is not appropriate to be made.

Did Macquarie Retail give notice under clause 12.11?

100. Clause 12.11 itself entitles a Co-Owner to give notice to the Defaulting Co-Owner that it wishes to purchase. The clause does not itself impose any formalities or ceremony, let alone any strict requirements, for the giving of notice.

101. If any strict requirements apply, they must derive from cl 13 which requires notice to be in writing, to be marked for the attention of a person specified in the Details and left or posted to an address specified in the Details, or sent by facsimile to the facsimile number specified in the Details. Clause 13.1(c) makes provision for the addressee to notify another address.

102. But there are no Details in the Agreement. Clause 1(A)(ii) of the Accession Deed provides that notices to the Incoming Party (AMPCFM) must be provided using its details specified in the Accession Deed which identifies the physical address as Level 24, AMP Building, 33 Alfred Street, Sydney NSW 2000. However, agreed facts are that:

1. as at 7 July 2023, AMPCFM's registered business address was Level 30, 50 Bridge Street, Sydney NSW 2000; and

2. as at 7 July 2023, AMPCFM did not have an address at Level 24, AMP Building, 33 Alfred Street, Sydney NSW 2000.

103. The requirements in cl 13.1(c) for notices to be left at or sent to a particular address or sent by facsimile both presuppose an address specified in the Details. Given that there are no Details, cl 13.1(c) has no field of operation (except perhaps in the case of the addressee notifying a different address). Neither does cl 13.1(b) have any field of operation. The only formal requirement for notice which remains is that it be in writing. It is not in issue that an email communication is writing.

103. Importantly, cl 13.2 provides that, unless a later time is specified in it, a notice takes effect from the time it is received.

104. There are presumptions in cl 13.3 as to receipt by post or fax, but not in relation to notice given in some other fashion. The presumption as to receipt of a facsimile in cl 13.3 presupposes specification of a facsimile number.

105. The parties to the Agreement and the Accession Deed were no doubt well-resourced and represented, and it cannot be assumed that the absence of Details is a mistake – giving rise to an inference that cl 13 was not intended to have strict application other than where writing is specified. But even if it was, that absence has the effect that the only formal requirement (which I consider is strict) is that notice be in writing. Coupled with cl 13.2, this means that all cl 12.11 requires is that there be brought to the attention of the recipient, in writing and with reasonable explicitness, what the contract requires must be notified. ^[7]

     7. Taylor v Raglan Developments Pty Ltd [1981] 2 NSWLR 117 at 132 per Powell J; Australian Securities and Investments Commission v Bank Leumi Le-Israel (1995) 134 ALR 101 at 136 per Sackville J.

106. It was not put that the Accession Deed imposed a strict requirement to give notice by posting it to an address which was not that of the addressee. Such a construction would create commercial inconvenience to say the least and should be avoided. The existence of the possibility that notice would have to be given, and given only, at an incorrect address is an indication that the address requirements are not strict formalities.

107. Whilst Macquarie Retail undoubtedly intended to give notice to AMPCFM by emailing it to HSF, perhaps by dint of good fortune, the notice was on-sent to AMPCFM and received by AMPCFM in time. It was not put (nor could it properly have been) that HSF was acting without authority in forwarding the notice to AMPCFM, although I do not think it would have mattered if it was.

108. From the time of receipt of the notice, AMPCFM knew, from notice in writing, that Macquarie Retail wished to purchase. Accordingly, Macquarie Retail gave it notice in compliance with cl 12.11.

109. So far as the authority of HSF to receive notice on behalf of AMPCFM is concerned, it is plain that HSF was authorised by AMPCFM (nothing to the contrary was put) to send its 31 March 2023 letter. I would be prepared to infer that NRF understood this request to be one that all future correspondence to AMPCFM be directed to HSF, as the second paragraph of NRF’s 28 April 2023 letter enclosing the Second Notice indicates. HSF’s response on 18 May 2023 refers to service of what purported to be a notice under cl 12.2. The letter took issue with the validity or entitlement to serve a notice but did not take issue that email communication to HSF was not service. Thereafter, NRF emailed the 7 July 2023 letter and Third Notice to HSF.

110. It is not in issue that a Co-Owner can employ an agent (in this case, NRF) to give notice on its behalf. It is also not in issue that, ordinarily, a solicitor is not implicitly vested with authority to receive notices on behalf of a client. ^[8] But a solicitor can no doubt be given authority, express or otherwise, to receive notice.

     8. Singer v Trustee of the Property of Munro [1981] 3 All ER 215, 218

111. I am not persuaded that HSF had, or conveyed that it had, authority to accept notices (as distinct from correspondence) on behalf of AMPCFM, to the intent that notice given under the Agreement to it was notice to AMPCFM. The distinction may be a fine one, but where valuable contractual rights are concerned, fine distinctions can play a legitimate role. HSF asked that named individuals be copied in on correspondence and gave email addresses for that purpose.

112. I am also not persuaded that the provision of those email addresses was notification of another address for the purposes of cl 13.1(c), although the submission that it was, is not without some force. The difficulty with it is that a number of different addresses were given, and I do not consider that the Accession Deed gave the addressee the option of requiring notice to be given at multiple addresses. It seems to me that a different address under cl 13.1(c) is one physical address or one facsimile number and the addressor could choose either or both.

113. I am also not persuaded that the correspondence established an agreement under cl 12.17 to vary in writing the procedures set out in cl 12.17. The method of notice, for the purposes cl 12.11 (because of cl 13), is not a procedure set out in cl 12.17. An agreement to vary cl 13 is not an agreement to vary a procedure set out in cl 12. NRF’s acceding to HSF’s request to be copied in on correspondence does not amount to any agreement in writing.

114. Turning to the question of good faith, one can readily understand Macquarie Retail being aggrieved that, after HSF’s request, the point is taken that notice was not validly given by Macquarie Retail adopting the course it was asked to adopt. But leaving aside a possible estoppel, the issue whether Macquarie Retail gave notice is strictly contractual. If what Macquarie Retail did was not in compliance with the contract, taking the point is not bad faith.

115. I uphold AMPCFM’s submission that an estoppel has not been made out. No one from Macquarie Retail gave evidence that an assumption was relied upon that compliance with HSF’s request would dispense with the requirements for notice (whatever they may be) under cl 12.11. To the contrary, when NRF sent their 7 July 2023 letter, they said “as a formality, a hard copy of the notice will be sent to your client by registered post pursuant to cll 12.11 and 13 of [the Agreement]”. Although what the utility of this would have been, given the lateness of that form of notice, is hard to discern, it indicates the absence of reliance on an assumption that email would suffice.

CONCLUSION

117. Macquarie Retail is entitled to have the contract for the purchase of the entirety of AMPCFM’s interest in the Property specifically performed. Orders will be made to that effect.

118. It is not immediately apparent what utility there would be in making the declaration sought. I will hear the parties on the form of relief and costs if not agreed. The parties are to draw to my attention any other matter which remains to be dealt with.

119. The exhibits are to be returned.

SCHEDULE A

Co-owners’ Agreement – Macquarie Centre, North Ryde made at     on 25 October 2012

Parties

AMP Macquarie Pty Limited ABN 91 103 734 854 as trustee of the AMP Macquarie Trust of Level 24, AMP Building, 33 Alfred Street, Sydney, New South Wales (AMP Macquarie)

AMP Macquarie Holding Pty Limited ABN 87 103 734 836 in its capacity as trustee of the AMP Macquarie Holding Trust of Level 24, AMP Building, 33 Alfred Street, Sydney, New South Wales (AMP Macquarie Holding)

ACPP Retail Pty Limited ABN 87 108 662 013 in its capacity as trustee of the ACPP Retail Trust of Level 24, AMP Building, 33 Alfred Street, Sydney, New South Wales (ACPP Retail)

AMP Capital Investors Limited ABN 59 001 777 591 in its capacity as trustee of the ACPP Holding Trust of Level 24, AMP Building, 33 Alfred Street, Sydney, New South Wales (ACPP Holding)

AMP Life Limited ABN 84 079 300 379 of Level 24, AMP Building, 33 Alfred Street, Sydney, New South Wales (AMP Life)

AMP Capital Investors Limited ABN 59 001 777 591 as responsible entity of the AMP Capital Shopping Centre Fund ARSN 103 738 834 of Level 24, AMP Building, 33 Alfred Street, Sydney, New South Wales (ASCF)

AMP Capital Investors Limited ABN 59 001 777 591 as responsible entity of the AMP Capital Retail Trust ARSN 103 738 727 of Level 24, AMP Building, 33 Alfred Street, Sydney, New South Wales (ARP)

Background

A.   AMP Macquarie, ACPP Retail and ASCF own the Property as tenants-in-common in shares of 50%, 25% and 25% respectively.

B.   The Co-Owners intend to hold the Property as an investment and for that purpose the Co-Owners have entered into this deed to set out the terms and conditions of the co-ownership arrangement.

C.   The parties have agreed to enter this deed at the request of AMP Macquarie, ACPP Retail and ASCF in order to ensure that each party is entitled to certain of the benefits enjoyed by and is subject to certain of the obligations imposed on the parties to this deed.

D.   The other parties acknowledge that this deed is entered into for the benefit of the Foundation Unitholders for the purposes of clause 9 only.

Operative Provisions

1.   Definitions and Interpretation

1.1   Definitions

[…]

Acquiring Co-Owners means:

(a)   in relation to clause 11, has the meaning given to that term in clause 11.10; and

(b)   in relation to clause 12, has the meaning given to that term in clause 12.12.

[…]

business day means any day on which banks are open for general banking business, not being a Saturday, Sunday or public holiday in the State in which the Property is located or in New South Wales.

Beneficial Party means:

[...]

(c)   in respect of ACPP Retail, AMP Life and ACPP Holding;

(d)   ASCF; and

(e)   in respect of AMP Macquarie, AMP Macquarie Holding and ARP.

[…]

Co-Owners means AMP Macquarie, ACPP Retail and ASCF and any other person who holds an interest in the Property as a tenant in common from time to time.

[…]

Co-Owner’s Group in respect of a Co-Owner means collectively:

(a)   that Co-Owner;

(b)   in relation to a Co-Owner not in the AMP Group, a Related Corporation of that Co-Owner at the relevant time (other than where the Co-Owner or that Related Corporation is a trustee or responsible entity); and

(c)   in relation to any Co-Owner which is a member of the AMP Group only:

(i)   the trustee, responsible entity or other person for the time being holding title to the assets of any AMP Fund in that relevant capacity; or

(ii)   an AMP Related Corporation.

For the purposes of this definition, a reference to each Co-Owner will be taken to refer to:

(a)   in respect of paragraph (a) above, each of that Co-Owner and the relevant Beneficial Parties; and

(b)   in respect of each other paragraph, the relevant Beneficial Parties only.

[…]

Dealing means a transfer, sale, disposal, alienation, declaration of trust, distribution in specie or other dealing in respect of any legal or equitable interest in the Property (excluding a Mortgage), and includes an agreement to do any of them but does not include any transfer, sale, disposal, alienation, declaration of trust, issue or other dealing with:

(a)   the shareholding or voting rights in a Co-Owner; or

(b)   the units or other form of ownership rights in the trust, management investment scheme or other entity of which that Co-Owner is the trustee or responsible entity,

and Deal and Dealt have corresponding meanings.

Default means, in relation to a Co-Owner:

(a)   a breach of clauses 6 (Dealings with interests), 7 (Mortgages of the Property), 8.2 (Ceasing to be a member of a Co-Owner's Group), 9 (Pre-emption rights), 24 (Good faith) or 27 (Indemnities) of this deed which that Co-Owner has failed to rectify within 10 business days after written notice of the breach has been given to it by any of the other Co-Owners specifying the breach and requesting that the same be remedied within such 10 business day period;

(b)   if the Other Co-Owner's Contribution is not repaid in accordance with clause 10(b)(iii);

(c)   if the Other Co-Owner has failed to deliver a transfer to the Acquiring Transferor in respect of the Dilution Interest in accordance with clause 11.11;

(d)   a breach of obligations under either the Management Agreement or the Development Management Agreement which that Co-Owner owes to the other Co-Owners (as further described in the Management Agreement or the Development Management Agreement) and which the relevant Co-Owner has failed to rectify within 20 business days after written notice of the breach has been given to it by any of the other Co-Owners specifying the breach and requesting that the same be remedied within such 20 business day period;

(e)   a Prohibited Disposal where within 10 business days after either receiving written notice of that Prohibited Disposal from any other Co-Owner or itself becoming aware of that Prohibited Disposal the Co-Owner in respect of which the Prohibited Disposal has occurred has been unable:

(i)   to unwind the transaction causing the Prohibited Disposal; or

(ii)   otherwise to put itself into a position whereby a Prohibited Disposal will be taken not to have occurred;

(f)   a default under any Mortgage in relation to the Property other than where the Co-Owners have entered into a binding Mortgagee Side Deed; or

(g)   an Insolvency Event.

Default Buyout means an acquisition of a Co-Owner’s interest in the Property pursuant to clause 12.

Default Interest means the interest in the Property held by the Defaulting Co-Owner.

Default Interest Value means a value equivalent to that proportion of the Net Proceeds of Sale which the Default Interest bears to the whole of the Property.

Default Notice means a notice given by an Injured Co-Owner pursuant to clause 12.1.

Defaulting Co-Owner means a Co-Owner which is in Default.

[…]

Injured Co-Owner means a Co-Owner that is not the Defaulting Co-Owner and who gives notice under clause 12.1.

Interest means that portion of a Co-Owner’s interest with which it wishes to deal under clause 9.

[…]

Minority Co-Owner means each of:

(a)   ACPP Retail and any permitted transferee referred to in paragraph 8.1(a)(i); and

(b)   ASCF and any permitted transferee referred to in paragraph 8.1(a)(i),

for so long as either of them by itself holds a Property Interest of 50% or less.

[…]

Net Proceeds of Sale means the proceeds of sale (excluding auction expenses, selling commission, legal costs and disbursements and other costs and expenses applicable to the sale of the Property) which the Property would be expected to realise upon a sale in the ordinary course of business on the open market between a willing but not anxious purchaser and a willing but not anxious vendor.

[…]   

Permitted Transfer means a Dealing permitted pursuant to clause 8.

Permitted Transferee means the party having the benefit of a Dealing or a Permitted Transfer.

[…]

Prohibited Disposal means any transfer, sale, disposal, alienation, declaration of trust, distribution in specie or other dealing (excluding a Mortgage) in respect of:

(a)   the shareholding or voting rights in a Co-Owner; or

(b)   […]

except where any of the following is satisfied:

(c)   the Co-Owner obtains the prior written approval of all the other Co-Owners to the transfer, sale, disposal, alienation, declaration of trust, distribution in specie or other dealing;

[…]

[…]

1.2   Interpretation

In this deed unless the contrary intention appears:

(a)   a reference to this deed or another instrument includes any variation or replacement of either of them;

[…]

(c)   the singular includes the plural and vice versa;

(d)   a reference to a person includes a reference to the person’s executors, administrators, substitutes (including persons taking by novation), transferees and assigns;

(e)   a reference to any thing (including any amount) is a reference to the whole and each part of it and a reference to a group of persons is a reference to any one or more of them;

[…]

2   Duration and termination

2.1   Duration

This deed commences on the date of this deed and will terminate on the earlier of:

(a)   the date that a new deed is entered into with the consent of the parties in lieu of this deed; and

(b)   the date that;

(i)   any person becomes the sole owner of the Property; or

(ii)   there is a simultaneous completion of a sale by all of the Co-Owners of an in-aggregate 100% interest in the Property.

2.2   Termination not to affect rights and obligations

The termination of this deed for any reason whatsoever will not affect the accrued rights and obligations of the parties to this deed at the time of termination.

[…]

6   Dealings with interest

[…]

6.6   Prohibited Disposals

(a)   Each Co-Owner must promptly give written notice to each other Co-Owner if a Prohibited Disposal occurs in relation to it.

(b)   If a Prohibited Disposal occurs in relation to a Co-Owner, that Co-Owner must:

(i)   disclose reasonable details of such Prohibited Disposal to each other Co-Owner; and

(ii)   provides [sic] full details (including a structure diagram of the holdings) of any person who as a consequence of that Prohibited Disposal:

A.   has or following the Prohibited Disposal will have any shareholding or voting rights in the Co-Owner; and

B.   has or following the Prohibited Disposal will have any units or other form of ownership rights in the trust, managed investment scheme or other entity of which the Co-Owner is the trustee or responsible entity.

[…]

8   Permitted transfers of interest in the Property

8.1   Dealing with Co-Owner’s Group

(a)   If a Minority Co-Owner wishes to Deal with the whole of its interest in the Property, then:

(i)   unless the transferee to that Dealing is:

A.   an entity wholly owned by the Beneficial Party relevant to that Minority Co-Owner or a sub trust, all of the units in which are held by that Beneficial Party; or

B.   a person referred to in paragraph (d) of the definition of “AMP Fund” in clause 1.1; or

C.   the new or replacement trustee or responsible entity of the trust (including an unregistered trust, a trust having an approved deed or registered managed investment scheme) in respect of which:

1)   that Co-Owner holds an interest in the Property in its capacity as trustee or responsible entity; or

2)   the Beneficial Party of that Co-Owner holds an equitable interest in the Property in its capacity as trustee or responsible entity.

then the other Minority Co-Owner shall have a priority first right to acquire the interest on the terms set out in clause 9.2 to 9.7 (inclusive); and

(ii)   if that Minority Co-Owner does not accept the offer under clause 8.1(a)(i), subject to clause 8.1(b), the provisions of clauses 9.2 to 9.16 (inclusive) will apply in relation to the sale of that interest in the Property.

(b)   Subject to clause 8.1(a), a Co-Owner is permitted at any time and from time to time to Deal with the whole or any portion of its interest in the Property (without complying with clause 9) where the other party to the Dealing:

(i)   is a member of that Co-Owner’s Co-Owner’s Group (Relevant Co-Owner’s Group); or

(ii)   is any person referred to in clause 8.1(a)(i).

(c)   Any such Dealing must be promptly notified in writing to the other Co-Owners by the Co-Owner Dealing with its interest.

8.2   Ceasing to be a member of Co-Owner’s Group

If a Co-owner which acquired an interest in the Property under clause 8.1 will cease to have the characteristics which qualify it as a member of that Relevant Co-Owner’s Group then, the Permitted Transferee will be deemed to have carried out a Prohibited Disposal and thereby be in Default, it will be deemed a Defaulting Co-Owner unless:

(a)   the other Co-Owners otherwise agree in writing; or

(b)   that Co-Owner prior to it ceasing to be a member of the Relevant Co-Owner’s Group Deals with all its Interest;

(i)   to a person which then qualifies as a member of the Relevant Co-Owner’s Group, and clause 9 does not apply to such Dealing; or

(ii)   otherwise in accordance with clause 9.

9   Pre-emption rights

9.1   Minority Co-Owner’s first right

(a)   If a Co-Owner (other than a Minority Co-Owner) (Selling Co-Owner) wishes to Deal with the whole or any portion of its interest in the Property (other than a Dealing by way of a Permitted Transfer in accordance with clause 8), the Selling Co-Owner acknowledges that, prior to issuing a Transfer Notice under clause 9.2, it must give notice in writing to the Minority Co-Owner specifying:

(i)   the Interest to be sold;

(ii)   the price at which the Interest is to be sold; and

(iii)   the other terms and conditions which are to apply to the sale (including a copy of the proposed contract of sale and any other ancillary agreements or side letters),

and such notice will constitute an irrevocable offer to the Minority Co-Owner to sell the Interest or a proportion of the Interest which will result in the Minority Co-Owner having a Property Interest of 50% or less (Minority Offer).

(b)   On receipt of the Minority Offer in writing under clause 9.1(a), a Minority Co-Owner may give notice to the Selling Co-Owner within ten (10) business days specifying if it wishes to acquire any of the Interest, and identifying the relevant part.

(c)   If the notices issued by the Minority Co-Owners in accordance with clause 9.1(b) together identify an Interest that is 100% or more of the Selling Co-Owner’s interest in the Property (Selling Co-Owner’s Interest), each relevant Minority Co-Owner is allocated a portion of the Selling Co-Owner’s Interest equivalent to that that Minority Co-Owner’s Co-Owner’s Share or, if the Minority Co-Owner has given notice that it wishes to acquire a lesser portion of the Selling Co-Owner’s Interest, then that portion.

(d)   If the notices issued by the Minority Co-Owners in accordance with clause 9.1(b) together identify an Interest that is less than 100% of the Selling Co-Owner's Interest, the Selling Co-Owner is not obliged to sell the Selling Co-Owner's Interest to the Minority Co-Owners unless the sale to all relevant Minority Co-Owners who issued the notices would result in the Selling Co-Owner having a Property Interest of at least 25%.

(e)   If the Minority Co-Owner issues a notice in accordance with clause 9.1(b), then the Selling Co-Owner must within 10 business days of receiving the Minority Co-Owner’s notice under clause 9.1(b) deliver to the Minority Co-Owner the Contract Documents, and within 10 business days of receiving the Contract Documents the Minority Co-Owner and Selling Co-Owner must execute and exchange their respective Contract Documents. If the Contract Documents are not exchanged within 10 business days of receipt by the Minority Co-Owner (other than as a consequence of the Selling Co-Owner’s delay or unwillingness) the Minority Co-Owner will be taken to have not accepted the offer made under clause 9.1(a).

(f)   If the Minority Co-Owner:

(i)   does not accept, or is taken not to have accepted, the offer under clause 9.1(a); or

(ii)   issues a notice in accordance with clause 9.1(a), but has specified that it will not acquire the whole of the Interest to be sold,

then the other provisions of clauses 9.2 to 9.8 do not apply in respect of any part of the Interest not purchased by the Minority Co-Owner (Unsold Part), except that the Selling Co-Owner may not sell the Unsold Part to a person other than the Minority Co-Owner:

(iii)   for a lower price; or

(iv)   on terms and conditions which are more favourable to the purchaser,

than those which have been offered to the Minority Co-Owner in accordance with clause 9.1(a), unless, in respect of the Unsold Part:

(v)   the Selling Co-Owner first gives the Minority Co-Owner a new Minority Offer in accordance with clause 9.1(a), specifying the price, terms and conditions which are [sic] apply to the sale; and

(vi)   the Minority Co-Owner does not accept that new Minority Offer in accordance with clause 9.1(a).

(g)   Subject to clause 9.1(f), the Selling Co-Owner may at any time within four months of the expiry of the ten (10) business days referred to in clause 9.1(b) may offer the Unsold Part or any portion of the Unsold Part (as the case may be) to any person.

(h)   Clauses 9.9 to 9.16 will apply in respect of a bona fide offer from an independent third party to purchase the Unsold Part in accordance with clause 9.1(g) which the Selling Co-Owner is prepared to accept on the basis that:

(i)   the reference to the Proposing Transferor is a reference to the Selling Co-Owner;

(ii)   each reference to the Remaining Interest is a reference to the Unsold Part;

(iii)   the reference to Disposition Prices and Terms is a reference to the prices and terms set out in the Minority Offer (including the proposed contract of sale and ancillary documentation); and

(iv)   each reference to an Offeree is a reference to each Co-Owner receiving the notice under clause 9.9 or that Co-Owner’s nominee (being a member of that Co-Owner’s Group).

9.2   Transfer Notice

Subject to the Co-Owner complying with clause 9.1 (if applicable), where a Co-Owner wishes to Deal with the whole or any portion of its interest in the Property other than by way of Permitted Transfer, it must immediately give notice in writing to the other Co-Owners and the Foundation Unitholders specifying:

(a)   the Interest to be sold;

(b)   the price at which the Interest is to be sold; and

(c)   the other terms and conditions which are to apply to the sale (including a copy of the proposed contract of sale and any other ancillary agreements or side letters).

The rights of any Foundation Unitholder under this clause 9 cease to apply if ARP, AMP Macquarie Holding or AMP Macquarie cease to have a direct or indirect interest in the Property. If a Foundation Unitholder does not exercise its rights under this clause 9 and a Co-Owner Deals with its Interest, the rights of the Foundation Unitholders under this clause 9 do not apply in respect that Interest acquired by the relevant Permitted Transferee.

9.3   Irrevocable offer

The service of a Transfer Notice constitutes an irrevocable offer to (in order):

(a)   each Co-Owner or its nominee (being a member of that Co-Owner’s Group); then

(b)   each Foundation Unitholder, or its nominee (being a member of that Co-Owner’s Group),

(each such person being an Offeree for the purposes of clause 9) for the sale of the Interest on the Disposition Prices and Terms for a period of two months from the date of receipt of the Transfer Notice.

9.4   Notice to proposing Transferor

At any time during the two month period referred to in clause 9.3, each of the Offerees may give notice to the Proposing Transferor specifying whether that Offeree wishes to acquire any of the Interest and, if so, what portion of the Interest. An Offeree referred to in clause 9.3(b) may only accept an offer to acquire all or part of the Interest subject to any Co-Owner or its nominee referred to in clause 9.3(a) not accepting that offer. If an Offeree does not give such a notice within the two month period referred to in clause 9.3, that Offeree is taken to have not accepted the offer of the Proposing Transferor.

9.5   Acceptances totaling 100% or more

(a)   If the acceptances of the Accepting Offerees (not including any Offeree referred to in clause 9.3(b)) total 100% or more of the Interest:

(i)   the Proposing Transferor must sell the Interest to the Accepting Offerees (not including any Offeree referred to in clause 9.3(b)) on the Disposition Prices and Terms, such Interest to be allocated among the Accepting Offerees in accordance with clause 9.5(a)(ii); and

(ii)   the Proposing Transferor must allocate the Interest between the Accepting Offerees (not including any Offeree referred to in clause 9.3(b)) in accordance with the following principles:

A.   a portion of the Interest to each relevant Accepting Offeree equivalent to that Accepting Offeree’s Share or, if the relevant Accepting Offeree has given notice that it wishes to acquire a lesser portion of the Interest, then that portion;

B.   if any portion of the Interest remains to be allocated after compliance with clause 9.5(a)(ii)A, to each relevant Accepting Offeree who has given notice that it wishes to acquire a portion of the Interest in excess of that portion equivalent to its Accepting Offeree’s Share, a portion of the remaining Interest equivalent to that Accepting Offeree’s Share or such lesser portion of the remaining Interest as is required to satisfy the notice given by that Accepting Offeree specifying the portion of the Interest that it wished to acquire; and

C.   thereafter in accordance with the principles set out in clause 9.5(a)(ii)B until such time as the whole of the Interest has been allocated or each of the relevant Accepting Offerees has been allocated the portion of the Interest that it wished to acquire.

(b)   If the allocation of the Interest pursuant to clause 9.5(a) does not result in the allocation of 100% of the Interest, the unallocated Interest must be allocated by the Proposing Transferor between the Accepting Offerees who are referred to in clause 9.3(b)) in such proportions as those Accepting Offerees agree.

(c)   If the Interest allocated to the Foundation Unitholders is less than the total portion specified in the Foundation Unitholders' notice to the Proposing Transferor under clause 9.4, the remaining Interest is to be further allocated between each of the Foundation Unitholders by agreement among themselves.

(d)   If the Foundation Unitholders do not agree their allocation and notify the Proposing Transferor by a such a notice within a further period of one month from the date that is the last day of the 2 month period referred to in clause 9.3, the Foundation Unitholders are taken to have not accepted the offer of the Proposing Transferor.

9.6   Acceptances totaling less than 100%

If any of the Interest remains unallocated pursuant to clause 9.5,, the Proposing Transferor is not obliged to sell the Interest to the Accepting Offerees but the Proposing Transferor may elect to sell to the Accepting Offerees that portion of the Interest allocated pursuant to clause 9.5.

9.7   Delivery of Contract Documents

The Proposing Transferor must within 10 business days of:

(a)   where the allocation of the Interest pursuant to clause 9.5(a) results in the allocation of 100% of the Interest or where no Offeree referred to in clause 9.3(b) is an Accepting Offeree, the expiry of the two month period specified in clause 9.4; or

(b)   other than where clause 9.7(a) applies, the expiry of the further one month period specified in clause 9.5(d),

deliver to each of the Accepting Co-Owners to which it will sell the whole or any portion of the Interest in accordance with either clause 9.5 or 9.6 the Contract Documents (amended to reflect a portion of the Interest and multiple purchasers as applicable) and, within 10 business days of receiving the Contract Documents each of the Accepting Offerees must execute and exchange their respective Contract Documents. If the Contract Documents are not exchanged within 10 business days of receipt (other than as a consequence of the Proposing Transferor’s delay or unwillingness) that Accepting Offeree will be taken to have not accepted the offer under clause 9.3 and the Proposing Transferor will be free to Deal with the interest in the Property the subject of those Contract Documents in accordance with clause 9.8.

9.8   Freedom to offer

If:

(a)   the Co-Owners any Foundation Unitholder do not accept the Proposing Transferor’s offer in respect of the whole of the Interest; or

(b)   the Proposing Transferor elects not to sell any portion of the Interest under clause 9.6,

the Proposing Transferor at any time within four month of the expiry of the two month period referred to in clause 9.4 and the one month period referred to in clause 9.5(d), may offer the Interest or any portion of the Interest (as the case may be) to any person at or on the Disposition Prices and Terms or at prices and on terms no more favourable to the purchaser than the Disposition Prices and Terms.

9.9   Details of purchaser

Within 5 business days of receiving a bona fide offer from an independent third party to purchase the Remaining Interest in accordance with clause 9.8 which the Proposing Transferor is prepared to accept, the Proposing Transferor must give written notice to each of the other Co-Owners specifying:

(a)   the identity of:

(i)   the proposed purchaser;

(ii)   its ultimate holding company; and

(iii)   any beneficial owners of the proposed purchaser and its ultimate holding company;

(b)   any variations to the Disposition Prices and Terms (including a copy of the contract of sale, as amended, and any other ancillary agreements or side letters agreed between the Proposing Transferor and the proposed purchaser); and

(c)   if the Proposing Transferor asserts that the proposed purchaser is an Approved Purchaser, documentary evidence sufficient to establish that the proposed purchaser is an Approved Purchaser.

9.10   Additional Information

Within 5 business days of receiving a notice under clause 9.9, any of the other Co-Owners may give written notice requiring the Proposing Transferor to provide such additional information as may be reasonable in the circumstances to establish that the proposed purchaser is an Approved Purchaser.

9.11   Approved Purchaser

If the Proposing Transferor gives notice under clause 9.9 that the proposed purchaser is an Approved Purchaser, within 10 business days of receiving that notice or, if additional information has been requested under clause 9.10, within 10 business days of receiving that additional information or response, each of the Co-Owners must give written notice to the Proposing Transferor either accepting or rejecting that the proposed purchaser is an Approved Purchaser.

If:

(a)   any Co-Owner gives written notice that it does not accept that the proposed purchaser is an Approved Purchaser, the Proposing Transferor must give a copy of that notice to each other Co-Owner and the Foundation Unitholders and, with that notice, advise whether:

(i)   the Proposing Transferor accepts that the proposed purchaser is not an Approved Purchaser and clause 9.12 applies; or

(ii)   the Proposing Transferor disputes the assessment of that Co-Owner, and refers the matter to the Special Committee for determination; or

(b)   the Co Owners [sic] agree or the Special Committee determines that the proposed purchaser is an Approved Purchaser, the Proposing Transferor may sell the Remaining Interest to that Approved Purchaser.

In considering any dispute under clause 9.1 1 (a)(ii), the parties acknowledge that the Special Committee may not override the decision of a Co-Owner who gives notice that it does not accept that the proposed purchaser is an Approved Purchaser unless the Special Committee determines that the Proposing Transferor has adequately proved that the proposed purchaser is an Approved Purchaser. The Special Committee must give notice of its determination to each Co-Owner and the Foundation Unitholders.

9.12   Notice of Acquisition

Within a further 10 business days of the later of the date of receiving:

(a)   a notice from the Proposing Transferor under clause 9.11(a)(i), or

(b)   notice of the Special Committee’s determination following referral under clause 9.11(a)(ii) that the proposed purchaser is not an Approved Purchaser,

each Offeree may give notice to the Proposing Transferor specifying whether that Offeree wishes to acquire the Remaining Interest on the Replacement Disposition Prices and Terms. An Offeree referred to in clause 9.3(b) may only accept an offer to acquire all or part of the Interest subject to any Co-Owner or its nominee referred to in clause 9.3(a) not accepting that offer.

9.13   No Notice

If an Offeree does not give a notice within the respective 10 business day periods referred to in clause 9.11 or 9.12, that Offeree is taken to have either accepted that the proposed purchaser is an Approved Purchaser or notified the Proposing Transferor that it does not wish to acquire the Remaining Interest, as the case may be.

9.14   Sale to Co-Owners

If more than one of the Offerees notifies the Proposing Transferor that they wish to purchase the Remaining Interest under clause 9.12 the Proposing Transferor must sell the Remaining Interest to those Offerees on the Replacement Disposition Prices and Terms, such Remaining Interest to be allocated among those Offerees in accordance with clause 9.5 and clause 9.7 (with necessary changes) will apply to any such sale.

9.15   Freedom to Sell

If no Offeree notifies the Proposing Transferor that it wishes to purchase the Remaining Interest under clause 9.12 then the Proposing Transferor may dispose of the Remaining Interest to the purchaser nominated in the notice given under clause 9.9 on terms no more favourable than the Replacement Disposition Prices and Terms.

9.16   Transfer notice to lapse after 9 months

If the Interest of the Proposing Transferor has not been Dealt with under the preceding provisions of this clause 9 within 9 months from the date of the giving of the Transfer Notice, the right of the Proposing Transferor to Deal with the Interest will cease and the Transfer Notice in respect of the Interest will lapse. For the purpose of this clause 9.16, Dealt means final completion of the Dealing.

9.17   Variation of procedures

The Co-Owners may agree in writing to vary the procedure in this clause either generally or to meet the circumstances of any particular case.

[…]

12   Default

12.1   Notice of the occurrence of a Default

Each Co-Owner must promptly give written notice to the other Co-Owners if a Default occurs in relation to it.

12.2   Notice of Default of Prohibited Disposal

If a Default occurs, then at any time within 3 months of the Default occurring or, in the case of a Prohibited Disposal, within 3 months of being given notice of that Disposal in accordance with clause 6.6 (or, if a notice is not given under clause 6.6 in respect of a Co-Owner but a Prohibited Disposal comes to the notice of the other Co-Owner, when the other Co-Owner notifies the first Co-Owner that it is aware of the occurrence of a Prohibited Disposal), any Co-Owner may give notice in writing to the Defaulting Co-Owner:

(a)   stating that it desires to exercise its rights under this clause;

(b)   nominating an independent Valuer; and

(c)   requiring the Defaulting Co-Owner within 15 business days of the giving of that notice to nominate by written notice to the Injured Co-Owner another independent Valuer.

A copy of any notice served under this clause must be given to each other Co-Owner.

12.3   Default Notice

Despite any other provision of this clause 12, a Defaulting Co-Owner is only obliged to comply with one Default Notice at a time, being the first Default Notice received by it in respect of the Default and must comply with the terms of that notice.

12.4   Instruction of Valuers

Within one month of the giving of the Default Notice the Injured Co-Owner and the Defaulting Co-Owner must jointly request the Valuers to determine the Net Proceeds of Sale and the Default Interest Value.

12.5   If no appointment of a Valuer

If the Defaulting Co-Owner fails to nominate a Valuer in accordance with clause 12.2(c) or to join in the making of any request to be made in accordance with clause 12.4, within the applicable time, then the Valuer nominated by the Injured Co-Owner in the Default Notice will be entitled to proceed itself to make a determination in accordance with this clause, and clauses 12.6 and 12.7 do not apply and clauses 12.8 to 12.19 will be read and construed accordingly.

12.6   Third Independent Valuer as Umpire

Before proceeding to make their determination of the Net Proceeds of Sale and the Default Interest Value the Valuers must agree upon and appoint a third independent Valuer as umpire and obtain in writing that Valuer’s acceptance of the appointment. If the Valuers are unable to agree on an Umpire within 5 business days of their being appointed as such, either Valuer may request the President for the time being of the Property Institute of Australia (Inc) (for the Division of the State in which the Property is situate) (or any successor body) or his nominee to appoint an independent Valuer as the Umpire.

12.7   Terms of Umpire’s appointment

The terms of appointment of the Umpire appointed under clause 12.6 are to be restricted to determining a value for the Net Proceeds of Sale in the range between the respective determinations of the Valuers.

12.8   Determination by Valuers

The Valuers must deliver their determination of the Net Proceeds of Sale and the Default Interest Value to all Co-Owners within one month of their appointment. If the Valuers are unable to agree upon a determination within the period of one month, but the difference between their respective determinations does not exceed 2% of the aggregate of their determinations, then their determination will be deemed to be one half of such aggregate. If the difference is greater than 2% then at any time thereafter either Valuer or the Injured Co-Owner may request the Umpire to make the required determination within 15 business days.

12.9   Submissions from Co-Owners

The Valuers must call for and, if submitted, consider submissions from the parties and the Umpire must receive and consider any submissions from the Valuers.

12.10   Experts not arbitrators

The Valuers and the Umpire will act as experts and not as arbitrators and their respective determinations will be final and binding on the parties.

12.11   Notice of purchase to Defaulting Party

Within 10 business days after the delivery to it of the determination of the Valuers or the Umpire, as the case may be, a Co-Owner may give notice to the Defaulting Co-Owner that that Co-Owner or:

(a)   if there are only two Co-Owners, any nominee of that Co-Owner; or

(b)   in any other case, any member of that Co-Owner’s Group,

nominated in writing by it to the Defaulting Co-Owner wishes to purchase all or part of the Default Interest at a price equal to the Default Interest Value (or the relevant proportion of the Default Interest Value where the Co-Owner wishes to purchase part of the Default Interest). If no such notice is given within that 10 business day period, the right conferred upon the Co-Owners under this clause will lapse.

12.12   Acceptances totaling 100% or more

If the Notifying Co-Owners wish to purchase 100% or more of the Default Interest:

(a)   the Defaulting Co-Owner must sell the Default Interest to the Notifying Co-Owners or their Nominees as the case may be (Acquiring Co-Owners) at a price equal to the Default Interest Value, such Default Interest to be allocated among the Notifying Co-Owners in accordance with clause 12.12(b); and

(b)   the Default Interest is allocated between the Notifying Co-Owners in accordance with the following principles:

(i)   firstly, any Acquiring Co-Owners which are also Minority Co-Owners can offer to purchase the proportion of the Default Interest which will result in that Minority Co-Owner having a Property Interest of 50% or less (Top Up Interest), however, if more than one Minority Co-Owner wishes to purchase a Top Up Interest, then clause 12.12(b)(ii) applies to the allocation of the Default Interest between those Minority Co-Owners;

(ii)   a portion of the Default Interest to each Notifying Co-Owner equivalent to that Co-Owner’s Share (Allocated Portion) or, if:

A.   the Notifying Co-Owner has acquired a Top Up Interest in accordance with clause 12.12(b)(1):

1)   the Allocated Portion less the Top Up Interest; or

2)   if that Notifying Co-Owner has given notice that it wishes to acquire a portion less than its Allocated Portion, the portion that is the lesser of:

a)   that portion; and

b)   the Allocated Portion less the Top Up Interest; or

B.   the Notifying Co-Owner (if it has not acquired a Top Up Interest) has given notice that it wishes to acquire a portion less than its Allocated Portion, then that portion; or

(iii)   if any portion of the Default Interest remains to be allocated after compliance with clauses 12.12(b)(i) and 12.12(b)(ii), to each Notifying Co-Owner who has given notice that it wishes to acquire a portion of the Default Interest in excess of that portion equivalent to its Co-Owner’s Share, a portion of the remaining Default Interest equivalent to that Co-Owner’s Share or such lesser portion of the remaining Default Interest as is required to satisfy the notice given by that Notifying Co-Owner specifying the portion of the Default Interest that it wished to acquire; and

(iv)   thereafter in accordance with the principles set out in clause 12.12(b)(iii) until such time as the whole of the Default Interest has been allocated or each of the Notifying Co-Owners has been allocated the portion of the Default Interest that it wished to acquire.

12.13   Acceptances totaling less than 100%

(a)   If the Notifying Co-Owners wish to purchase less than 100% of the Default Interest, the Defaulting Co-Owner is not obliged to sell the Default Interest to the Notifying Co-Owners unless:

(i)   an Acquiring Co-Owner which is also a Minority Co-Owner proposes to purchase a proportion of the Default Interest which will result in that Minority Co-Owner having a Property Interest of 50% or less (Top Up Interest); and

(ii)   the Top Up Interest, when subtracted from the Defaulting Co-Owner’s then current Property Interest, would result in the Defaulting Co-Owner having a Property Interest of at least 25%,

in which case:

(iii)   the Defaulting Co-Owner must sell the Top Up Interest to the Minority Co-Owner(s); and

(iv)   if more than one Minority Co-Owner wishes to purchase a Top Up Interest, then clause 12.12(b)(ii) applies to the allocation of the Default Interest between those Minority Co-Owners.

(b)   The parties acknowledge that any sale of the Default Interest by the Defaulting Co-Owner (other than pursuant to clause 12.12 or clause 12.13(a)) will be subject to clauses 9.6 to 9.17 inclusive as appropriately amended.

12.14   Delivery of contract for sale

The Acquiring Co-Owner within 10 business days of the expiry of the 10 business day period referred to in clause 12.11 must deliver to the Defaulting Co-Owner an unconditional contract of sale providing for completion 60 days after the contract being entered into and within 10 business days of receiving the contract of sale the Defaulting Co-Owner must execute and exchange their respective contract of sale. If the contract of sale is not exchanged within 10 business days of receipt the Acquiring Co-Owner may take action to enforce its rights by seeking an order for specific performance of its rights under this clause 12 in respect of the particular Default. The Co-Owners agree that in relation to this clause damages are not an adequate remedy for non-performance of a Co-Owner's obligations under this clause 12.

12.15   Valuers’ costs

The costs of the determinations of the Valuers and the Umpire under this clause will be deducted from the purchase price and if there is more than one contract of sale, on a pro-rata basis between each of the Acquiring Co-Owners.

12.16   Delivery of transfer

Upon settlement, the Defaulting Co-Owner must deliver to each Acquiring Co-Owner duly executed transfers in respect of the Default Interest or the relevant portion of it in such form as the Acquiring Co-Owners may reasonably require.

12.17   Variation of procedures

The Co-Owners may agree in writing to vary any of the procedures set out in this clause.

12.18   No derogation of rights

The rights conferred upon a Co-Owner pursuant to this clause in the event of a Default are in addition to and do not in any way limit any other rights that such party may have as a consequence of such Default.

12.19   Rectification of Default

If the Default giving rise to the application of this clause has been fully rectified at any time prior to the entering into of any contract of sale, either the Defaulting Co-Owner or any Acquiring Co-Owner, by giving written notice to the other Co-Owners at any time prior to the entering into of any contract for sale of the Default Interest, may terminate the sale procedures set out in this clause and, provided any Acquiring Co-Owner has been fully reimbursed by the Defaulting Co-Owner for all costs incurred by it arising from or connected with the Default (including any costs associated with the procedures contained in this clause), the obligations of any Co-Owner to complete the sale procedures set out in this clause will terminate.

13   Notices

13.1   Form

A notice, approval or consent in connection with this deed:

(a)   must be in writing;

(b)   must be marked for the attention of the person specified in the Details; and

(c)   must be left at the address of the addressee or sent by prepaid ordinary post (airmail if posted to or from a place outside Australia) to the address of the addressee or sent by facsimile to the facsimile number of the addressee which is specified in the Details or if the addressee notifies another address or facsimile number then to that address or facsimile number.

13.2   Effective on receipt

Unless a later time is specified in it a notice, approval or consent takes effect from the time it is received.

13.3   Receipt by post or fax

A letter or facsimile is taken to be received:

(a)   in the case of a posted letter, on the third (seventh, if posted to or from a place outside Australia) day after posting; and

(b)   in the case of a facsimile, on production of a transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the facsimile number of the recipient notified for the purpose of this clause if prior to 5.00 pm on a business day or otherwise upon the next business day following such production.

[…]

24   Good faith

Without limiting the generality of any other provision of this deed the parties agree that in the performance of their respective duties and the exercise of their respective powers under this deed and in their respective dealings with each other, they must act in utmost good faith.

[…]

27   Indemnities

27.1   Several liability

The liability of the respective Co-Owners hereunder is several only in the proportion of their Property Interests and not joint and several. If another party to this agreement defaults and such default is not attributable to a Co-Owner, that Co-Owner bears no liability for such default.

27.2   Co-Owner Indemnities

Each Co-Owner (Indemnifying Co-Owner) indemnifies, and must keep indemnified:

(a)   each of the other Co-Owners against all actions, suits, proceedings, claims, demands, costs, losses, damages, expenses and payments which may be made against or incurred or suffered by the other Co-Owners as a result of any default by the Indemnifying Co-Owner under this deed or any other agreement entered into or representation made or warranty given by the Co-Owners in respect of the co-ownership of the Property; and

(b)   any Co-Owner which takes action or refrains from taking action on behalf of another Co-Owner at the direction or with the consent of that other Co-Owner.

**********

SCHEDULE B

Accession Deed – Co-owner Agreements – Macquarie Centre, North Ryde NSW

Details

Incoming Party Name   AMP Capital Funds Management Limited in its capacity as responsible entity of the AMP Capital Diversified Property Fund

ACN   159 557 721

Address   Level 24, AMP Building, 33 Alfred Street, Sydney NSW 2000

Outgoing Party Name   ACPP Retail Pty Limited in its capacity as trustee of the ACPP Retail Trust

ABN   15 973 277 009

Address   Level 24, AMP Building, 33 Alfred Street, Sydney NSW 2000

Continuing Parties Name   AMP Macquarie Pty Limited in its capacity as trustee of the AMP Macquarie Trust

ACN   103 734 854

Address   Level 24, AMP Building, 33 Alfred Street, Sydney NSW 2000

Name   AMP Macquarie Holding Pty Limited in its capacity as trustee of the AMP Macquarie Holding Trust

ABN   56 368 950 546

Address   Level 24, AMP Building, 33 Alfred Street, Sydney NSW 2000

Name   AMP Capital Funds Management Limited in its capacity as responsible entity of the AMP Capital Shopping Centre Fund

ABN   98 275 953 042

Address   Level 24, AMP Building, 33 Alfred Street, Sydney NSW 2000

Name   AMP Capital Funds Management Limited in its capacity as responsible entity of the AMP Capital Retail Trust (of which AMP Capital Investors Limited was formerly the responsible entity)

ABN   66 213 225 013

Address   Level 24, AMP Building, 33 Alfred Street, Sydney NSW 2000

Name   AMP Life Limited

ABN   84 079 300 379

Address   Level 24, AMP Building, 33 Alfred Street, Sydney NSW 2000

Guarantor Name   AMP Capital Investors Limited in its capacity as trustee of the ACPP Holding Trust

ABN   57 983 644 776

Address   Level 24, AMP Building, 33 Alfred Street, Sydney NSW 2000

Manager Name      AMP Capital Investors Limited

ABN   59 001 777 591

Address   Level 24, AMP Building, 33 Alfred Street, Sydney NSW 2000

Contracts

-   “Co-Owners Agreement – Macquarie Centre” between the Outgoing Party, the Guarantor, the Continuing Parties and AMP and dated 25 October 2012 (Co-Owners Agreement);

-   “Management Agreement - Macquarie Centre” between AMP Macquarie Pty Limited in its capacity as trustee of the AMP Macquarie Trust and AMP Capital Funds Management Limited in its capacity as responsible entity of the AMP Capital Shopping Centre Fund (together the Continuing Co-owners), the Outgoing Party and the Manager dated 25 October 2012 (Management Agreement);

-   “Development Management Agreement – Macquarie Centre” between the Continuing Co-owners, the Outgoing Party and the Manager dated 25 October 2012 (Development Management Agreement); and

-   any other document to which the Outgoing Party, the Incoming Party, the Continuing Parties, the Guarantor and the Manager are parties in connection with the co-ownership of the Macquarie Centre.

Effective Date   22 October 2014

Jurisdiction     New South Wales

Background

A   The Outgoing Party, the Guarantor and the Continuing Parties are parties to the Co-owners Agreement.

B   The Outgoing Party, the Continuing Co-owners and the Manager are parties to the Management Agreement and Development Management Agreement.

C   The Outgoing Party has agreed to sell its interest in the Macquarie Centre to the Incoming Party.

D   Clause 6.3(b)(iii) of the Co-owners Agreement provides that “the party seeking to Deal with the whole or any part of its interest must...procure that the Permitted Transferee...executes and provides to the other Co-owners all documents reasonably required by the other Co-owners in favour of all relevant parties and in forms reasonably acceptable to such parties agreeing to be bound by the terms of this deed; the Management Agreement...; the Development Management Agreement...; and any other document to which the transferring Co-Owner is a party...”

E   Clause 15.1 of the-Management Agreement and clause 29 of the Development Management Agreement provide that: “If a person proposes to become a Co-Owner after the date of this agreement the relevant Co-Owner who proposes to transfer the whole or any part of its Property Interest to such New Co-Owner shall first procure that the New Co-owner executes an agreement with the other parties to this agreement...whereby the New Co-Owner accedes to and becomes bound by the obligations applicable to a Co-Owner under this agreement and becomes entitled to the rights of a Co-Owner under this agreement, and vice versa.”

F   The parties have entered into this document in satisfaction of clause 6.3(b)(iii) of the Co-owners Agreement, clause 15.1 of the Management Agreement and clause 29 of the Development Management Agreement.

1   Agreement

With effect on and from the Effective Date:

(a)   each of the parties to a Contract agree that the Contract is discharged and a new contract (New Contract) is created on the same terms and conditions as that Contract except that:

(i)   each reference to the Outgoing Party will be read as a reference to the Incoming Party; and

(ii)   notices to the Incoming Party must be provided using its details specified in this document; and

(iii)   any reference to the Guarantor is deleted; and

(iv)   in the New Contract created on the same terms as the Co-owners Agreement, the definition of “Beneficial Party” is amended by replacing the words “in respect of ACPP Retail, AMP Life and ACPP Holding” with “AMP Capital Funds Management Limited in its capacity as responsible entity of the AMP Capital Diversified Property Fund”;

(b)   the Incoming Party and each other party to a New Contract:

(i)   are bound by that New Contract; and

(ii)   enjoy under the New Contract all the rights and benefits conferred on those parties under that New Contract.

(c)   the Incoming Party does not have any of the obligations of the Outgoing Party under the Contract that arose before the Effective Date;

(d)   the Continuing Parties release the Outgoing Party and the Guarantor from any obligation under the Co-owners Agreement to be performed on or after the Effective Date; and vice versa; and

(e)   the Continuing Co-owners and the Manager release the Outgoing Party from any obligation under the Management Agreement and the Development Management Agreement to be performed on or after the Effective Date; and vice versa.

2   Governing law

This document is governed by the law in force in the Jurisdiction. Each party submits to the non-exclusive jurisdiction of the courts of that place.

3   Counterparts

This document may be executed in counterparts. All counterparts when taken together constitute one document and the date on which the last counterpart is executed will be the date of the document.

4   Costs

The parties agree to pay their own legal and other costs and expenses in connection with the negotiation, preparation, execution and completion of this document and of other related documentation.

5   Duties

The Incoming Party agrees to pay or reimburse the other parties on demand for all duties, fees, taxes and charges which are payable in connection with this document or a payment, receipt or other transaction contemplated by it.

[…]

EXECUTED as a deed

DATED: 21 October 2014

Endnotes

Amendments

11 November 2024 - Improved formatting of Annexures

Decision last updated: 11 November 2024