PERTH MARKETS LTD

[2019] WASC 417

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   PERTH MARKETS LTD [2019] WASC 417

CORAM:   HILL J

HEARD:   23 AUGUST & 26 SEPTEMBER 2019

DELIVERED          :   23 AUGUST & 26 SEPTEMBER 2019

PUBLISHED           :   15 NOVEMBER 2019

FILE NO/S:   COR 164 of 2019

MATTER:   PERTH MARKETS LTD

EX PARTE

PERTH MARKETS LTD

Plaintiff

FILE NO/S:   CIV 2416 of 2019

MATTER:   ONE FUNDS MANAGEMENT LTD AS TRUSTEE FOR THE PERTH MARKETS LAND TRUST

BETWEEN:   ONE FUNDS MANAGEMENT LIMITED AS TRUSTEE FOR THE PERTH MARKETS LAND TRUST

Applicant

Catchwords:

Corporations law - Scheme of arrangement - Application for orders convening scheme meeting under s 411(1) of the Corporations Act 2001 (Cth) - Whether requirements to order scheme meeting are satisfied - Orders made convening meeting

Corporations - Application for directions by trustee under s 92 of the Trustee Act 1962 (WA) - Whether within jurisdiction to make the directions sought - Approach to be taken to trust scheme - Whether proposed amendments are within the powers of alteration conferred by the constitution of the trust - Whether trustee required to serve application on all unitholders

Corporations law - Scheme of arrangement - Application for orders approving the scheme under s 411(b) of the Corporations Act 2001 (Cth) - Orders made approving scheme - Reservation of liberty to apply

Corporations - Application for directions by trustee under s 92 of the Trustees Act 1962 (WA) - Second court hearing - Relevant considerations

Legislation:

Corporations Act 2001 (WA), s 411, 413
Trustees Act 1962 (WA), s 92(1), 92(2)
Rules of the Supreme Court 1971 (WA), O 58 r 4
Supreme Court (Corporations) (WA) Rules 2004 (WA)
Property Law Act 1959 (WA)

Result:

Orders made convening scheme meeting and giving directions sought
Orders made approving scheme and giving directions sought

Category:    B

Representation:

COR 164 of 2019

Counsel:

Plaintiff : Mr A J Papamatheos

Solicitors:

Plaintiff : Lavan

CIV 2416 of 2019

Counsel:

Applicant : Mr A J Papamatheos

Solicitors:

Applicant : Lavan

Case(s) referred to in decision(s):

Decimal Software Limited; in the matter of Decimal Software Limited (No 2) [2018] FCA 2040

In the matter of Ardent Leisure Limited (No 2) [2018] NSWSC 1990

In the matter of Investa Funds Management Limited (No 2) [2018] NSWSC 1995

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66

Plan B Trustees Ltd v Parker [2012] WASC 392

Psivida Ltd v New Psivida, Inc; Re Psivida Ltd [2008] FCA 627

Re Abacus Funds Management Ltd [2005] NSWSC 1309; (2006) 24 ACLC 211

Re Amcom Telecommunications Ltd [2015] FCA 341

Re APN News and Media Ltd [2007] FCA 770; (2007) 62 ACSR 400

Re Ardent Leisure Lted [2018] NSWSC 1665

Re Auzex Resources Ltd (No 2) [2012] QSC 101

Re Avoca Resources Ltd [2011] FCA 208

Re Cortona Resources Ltd (No 2) [2013] FCA 302

Re CSR Ltd [2010] FCAFC 34; (2010) 183 FCR 358

Re DUET Management Company 1 Ltd [2013] NSWSC 817; (2013) 95 ACSR 34

Re International Goldfields Ltd [2004] WASC 112

Re Investa Listed Funds Management Limited as responsible entity for the Armstrong Jones Office Fund and the Prime Credit Trust [2016] NSWSC 341

Re Investa Properties Limited [2007] FCA 1104; (2007) 25 ACLC 1

Re Macquarie Capital Alliance Ltd [2008] NSWSC 745; (2008) 67 ACSR 484

Re Macquarie Communications Infrastructure Group [2009] NSWSC 487

Re Macquarie Goodman Funds Management Ltd [2004] NSWSC 119; (2004) 52 ACSR 194

Re Marengo Mining Ltd [2012] FCA 1220

Re Mirvac Funds Management Ltd [2014] NSWSC 1569

Re Mirvac Limited, Mirvac Funds Ltd [1999] NSWSC 457; (1999) 32 ASCR 107

Re Nzuri Copper Ltd [2019] WASC 189

Re Opes Prime Stockbroking Ltd [2009] FCA 813; (2009) 179 FCR 20

Re Scarborough Equities Ltd (No 2) [2009] FCA 484

Re Seven Network Ltd (No 3) [2010] FCA 400; (2010) 267 ALR 583

Re South African Supply and Cold Storage [1904] 2 Ch 268

Re SRG Limited [2018] FCA 1092

Re Wesfarmers Ltd; Ex Parte Wesfarmers Ltd [2018] WASC 308

Re Westfield Corporation Limited [2018] NSWSC 584

Re Westfield Corporation Limited (No 2) [2018] NSWSC 921

Re Westfield Holdings Ltd [2004] NSWSC 458; (2004) 49 ACSR 734

Re Westfield Holdings Limited (No 5) [2014] NSWSC 976

Read v Bowesco Pty Ltd [2013] WASC 240

Sydney Airport Holdings Ltd [2013] NSWSC 1665

TriAusMin Limited, in the matter of TriAusMin Limited (No 2) [2014] FCA 833

HILL J:

Overview

1. By an originating process dated 8 August 2019 (COR 164 of 2019), the plaintiff, Perth Markets Limited (PML), sought orders pursuant to s 411 of the Corporations Act 2001 (Cth) (Corporations Act) convening a meeting of its members to consider a proposed scheme of arrangement (Scheme). By separate originating summons filed on 9 August 2019 (CIV 2416 of 2019), One Funds Management Ltd (OFM) as trustee for the Perth Markets Land Trust (PMLT) sought directions of the court pursuant to s 92(1) of the Trustees Act 1962 (WA) (Trustees Act) in relation to a proposed trust scheme (Trust Scheme) (collectively Schemes).

2. At the time the matter came before me, PML shares and PMLT units were stapled securities pursuant to their respective constitutions.   

3. The proposed Schemes provide for a corporate restructuring of the existing Perth Markets business.  In respect of the Scheme, it is proposed that a new company, Perth Market Groups Limited (PMGL), will acquire 100% of the shares in PML in exchange for PML shareholders receiving an equal proportion of shares in PMGL.[1]

   [1] Affidavit of Steven Cole filed 8 August 2019, par 31.3.1.

4. The proposed Trust Scheme is an interlinked arrangement whereby PMGL will acquire 100% of the units in PMLT in exchange for unitholders receiving an equal proportion of shares in PMGL.[2]

   [2] Affidavit of Steven Cole filed 8 August 2019, par 31.3.2.

5. To facilitate the hearing of these applications, I ordered that the evidence filed in each of COR 164 of 2019 and CIV 2416 of 2019 stand as evidence in each proceeding.

6. On 23 August 2019, I made orders pursuant to s 411(1) of the Corporations Act to convene a meeting of PML's members to consider and vote on the proposed Scheme. I also made ancillary orders as to the convening and conduct of the meeting pursuant to s 1319 of the Corporations Act.

7. On 23 August 2019, in respect of the Trust Scheme, I ordered that OFM was justified in (a) convening a meeting of unitholders to consider the proposed scheme; (b) distributing an explanatory memorandum to its unitholders; and (c) subject to unitholders passing the resolutions, proceeding on the basis that the proposed alterations to the Constitution would be within the powers conferred on OFM by the constitution of the Trust. I also ordered that OFM be excused from any requirement under s 92(2) of the Trustees Act or O 58 r 4(a) of the Rules of the Supreme Court 1971 (WA) (RSC) to serve the originating summons dated 9 August 2019 and the supporting affidavit material on the PMLT unitholders.

8. The Scheme meeting and Trust Scheme meeting were held on 19 September 2019.  At these meetings, the Scheme and the resolutions in respect of the Trust Scheme were approved by the requisite majorities.[3]  

   [3] Third affidavit of Paul Campbell filed 23 September 2019, pars 25 - 33, 'PC16', 'PC18'.

9. On 26 September 2019, I made orders approving the Scheme and giving the directions sought in respect of the Trust Scheme. 

10. In making the orders on 23 August 2019 and 26 September 2019, I stated that I would publish written reasons for my orders subsequently. These are my reasons.  In publishing my reasons, I have drawn on the helpful submissions of Mr Papamatheos who appeared as counsel for PML and OFM in these proceedings. 

Factual Background

PML, OFM and PMLT

1. PML was incorporated in Western Australia and registered with the Australian Securities and Investments Commission (ASIC) on 7 October 2015.[4]  At the date of the hearings, PML had 58,840,131 fully paid ordinary shares (Shares) on issue.[5]

   [4] Affidavit of Steven Cole filed 8 August 2019, par 11.

   [5] Affidavit of Steven Cole filed 8 August 2019, par 13.

2. OFM was incorporated in New South Wales and registered with ASIC on 24 January 2006.[6]  It is the trustee of PMLT.

   [6] Affidavit of Steven Cole filed 8 August 2019, par 19, 'SC7' and 'SC8'.

3. PMLT was created by a deed entitled 'Constitution of Perth Markets Land Trust' on 3 February 2016 (Constitution), which was amended on 29 March 2016.[7]  PMLT has on issue 58,840,131 units.[8]

Perth Markets

[7] Affidavit of Steven Cole filed 8 August 2019, par 22, 'SC9' and 'SC10'.

[8] Affidavit of Steven Cole filed 8 August 2019, par 25.

1. The Perth Markets business is the only wholesale fresh produce market in Western Australia.  It comprises:

   (a)51 hectares of land in Canning Vale, WA (Market City Site);

   (b)buildings and fixtures on the Market City Site; and

   (c)tenant leases in force from time to time.

2. A diverse range of businesses operate at the Market City Site involved in wholesale trading, food retailing, business service providers and weekend consumer markets.

Corporate Restructure

1. The present corporate structure of the Perth Markets is somewhat complex.  The purpose of the proposed Scheme and Trust Scheme is to effect a corporate restructure and simplification of the existing Perth Markets business. 

2. In the first stage of the proposed restructure, PMGL, a new company, will become the holding company of all PML Shares and PMLT units (collectively security holdings) by way of 'top-hatting' a new company over the existing ownership structure.

3. The restructure proposes that:[9]

   (a)PML Shares and PMLT units be unstapled from each other;

   (b)PMGL will acquire 100% of the shares in PML by each PML share being exchanged for one PMGL share;

   (c)PMGL will acquire 100% of PMLT by each unit being exchanged for one PMGL share.

   [9] Affidavit of Steven Cole filed 8 August 2019, par 31.2 and 31.3.

4. It is then proposed that the PMGL shares will be consolidated on a two for one basis.[10] 

   [10] Affidavit of Steven Cole filed 8 August 2019, par 31.4.

5. That is, the existing ownership of Perth Markets will be maintained through the proposed Schemes; if the proposed Schemes are approved, the current security holders will be entitled to equivalent proportions of PMGL shares. 

6. In the second stage of the proposed restructure, PML will transfer all of its shares in Market City Asset Manager Co Pty Ltd (MCAM) to PMGL.  The assets of the Market City Asset Trust (MCAT) will be transferred to MCAM and MCAM will assume the liabilities of MCAT.  Once this has occurred, MCAT and PMLT will be vested and the trusts terminated in accordance with their respective constituent documents.[11]

   [11] Schedule 2, Implementation Deed (Affidavit of Sarah Wiesener sworn 16 August 2019, 'SW1').

7. There are three key reasons for the restructure.[12]  First, the existing corporate structure is complex and gives rise to substantial administrative and compliance requirements and costs.  Second, development opportunities are being pursued and the current structure presents difficulties for the effective and efficient pursuit of these opportunities.  Third, the ATO has issued Taxpayer Alert TA 2017/1 which has implications for businesses with a stapled security structure.

   [12] Affidavit of Steven Cole filed 8 August 2019, par 30.

8. On 8 August 2019, PML, OFM and PMGL entered into an Implementation Deed for the proposed restructure of the Perth Markets Group.[13]  This deed was varied on 15 August 2019.[14]

   [13] Affidavit of Amanda Louise Meloni filed 16 August 2019, 'ALM2'.

   [14] Affidavit of Amanda Louise Meloni filed 16 August 2019, 'ALM3'.

9. The directors of PML unanimously recommended that their shareholders vote in favour of the Scheme.[15]  As OFM is an independent trustee, they did not consider it appropriate to make any recommendation in respect of the Trust Scheme.[16]  The directors of OFM unanimously resolved that the Trust Scheme is in the best interests of PMLT unitholders.[17] The independent expert retained by PML and OFM to give an opinion on the proposed Schemes concluded that, in the absence of an alternative offer, the Schemes are in best interests of security holders.[18]

Evidence for first court hearing

[15] Affidavit of Steven Cole filed 8 August 2019, pars 58 - 59.

[16] Scheme Booklet, p 5.

[17] Affidavit of Frank John Tearle filed 8 August 2019, pars 29 - 30, 'FJT6'.

[18] Independent Expert Report prepared by Adam Myers and Sherif Andrawes of BDO Corporate Finance Pty Ltd, Affidavit of Stephen Cole filed 8 August 2019, p 415, par 39.

1. PML and OFM relied on nine affidavits; six filed in COR 164 of 2019 and three filed in CIV 2416 of 2019.  These were:

   (a)an affidavit of Steven Cole sworn 8 August 2019.  Mr Cole is the chairman of PML.  Mr Cole confirmed a number of formal matters, outlined the nature of the proposed Schemes and attested to the verification process undertaken by PML of the draft scheme booklet.  His affidavit annexed the Scheme Implementation Deed and the draft explanatory statement (or scheme booklet).

   (b)an affidavit of Amanda Louise Meloni sworn 16 August 2019.  Ms Meloni is a solicitor employed by Lavan, the solicitors for PML and OFM.  Ms Meloni confirmed service of the court papers on ASIC and annexed signed copies of the Implementation Deed (and the deed of variation), signed Deed Polls executed by PMGL in favour of each security holder and by OFM in favour of each unitholder, as well as a copy of the signed due diligence report.

   (c)an affidavit of Derek Noel La Ferla sworn 16 August 2019. Mr La Ferla is a partner of Lavan and is the proposed chairperson of the Scheme meeting and Trust Scheme meeting. In his affidavit, Mr La Ferla consented to act as chairperson of the meetings and provided the necessary disclosures required by r 3.2 of the Supreme Court (Corporations) (WA) Rules 2004 (WA) (Corporations Rules).

   (d)an affidavit of Dean Prosper Hely sworn 16 August 2019. Mr Hely is managing partner of Lavan and is proposed as the alternate chairperson of the Scheme meeting and Trust Scheme meeting if Mr La Ferla is unable to act. In his affidavit, Mr Hely consented to act as alternate chairperson and provided the necessary disclosures required by r 3.2 of the Corporations Rules.

   (e)an affidavit of Paul Campbell sworn 16 August 2019.  Mr Campbell is the company secretary of PMGL.  Mr Campbell annexed copies of the certificate of incorporation, share register and constitution of PMGL, as well as a current ASIC search of PMGL.  He also attested to the verification process undertaken by PMGL of the draft scheme booklet and annexed a copy of the signed due diligence report.

   (f)a supplementary affidavit of Steven Cole sworn 22 August 2019.  Mr Cole annexed numerous email exchanges between PML's solicitors and ASIC in relation to the draft scheme booklet.  He also annexed copies of the registers of members of PML and unitholders of PMLT, templates of the proxy forms for the extraordinary general meeting of PML, the Scheme meeting and Trust Scheme meeting and a copy of the executed unstapling Deed.[19]  He also attached a final draft of the scheme booklet[20] and formal correspondence that had been received from ASIC.[21]

   (g)an affidavit of Frank John Tearle sworn 8 August 2019.  Mr Tearle is a director of OFM.  Mr Tearle annexed copies of the original constitution of PMLT, a copy of the current constitution of OFM, a copy of the current and historical ASIC search of OFM and a register of unitholders.  Mr Tearle confirmed that the proposal had the unanimous support of the board of directors of OFM.[22]

   (h)two affidavits of Sarah Wiesener, both sworn 16 August 2019.  Ms Wiesener is a director of OFM.  Ms Wiesener confirmed that OFM is an independent trustee and that OFM considered it appropriate to seek judicial advice as to the appropriateness of the steps proposed to be taken in relation to the Trust Scheme.  Her affidavit also annexed a copy of the signed Implementation Deed and the deed of variation.  Ms Wiesener's second affidavit confirmed the verification that had been undertaken by OFM in relation to the statements attributable to it in the scheme booklet.

   [19] Supplementary affidavit of Steven Cole filed 22 August 2019, 'SC19' - 'SC22'.

   [20] Supplementary affidavit of Steven Cole filed 22 August 2019, 'SC25'.

   [21] Supplementary affidavit of Steven Cole filed 22 August 2019, 'SC26'.

   [22] Affidavit of Frank John Tearle sworn 8 August 2019, 'FJT6'.

Nature of Proposed Transactions

1. The proposed Schemes contemplate the unwinding of the existing stapled security structure of the Perth Markets Group and incorporating PMGL as a new holding company of the group.  The underlying business as well as its assets and liabilities do not change under the proposed Schemes.  The Schemes provide that existing stapled security holders will receive one share in PMGL for each stapled security that they currently hold.  As a consequence, the existing security holders will continue to hold the same proportionate ownership interest in the Perth Markets Group if the Schemes are implemented.

2. The Scheme between PML and its ordinary shareholders provides for shareholders to transfer all of their shares in PML to PMGL in consideration for the issue of one PMGL for each PML share.  That is, the effect of the scheme is to make PML a wholly owned subsidiary of PMGL.

3. The directions sought by the plaintiffs regarding the Trust Scheme concerned a proposed amendment to the constitution of PMLT to effect a 'trust scheme' in accordance with the common practice established in the Supreme Court of New South Wales.[23]  If passed, the proposed amendments to PMLT's constitution would unwind the stapled securities structure and provide for the transfer of all units in PMLT to PMGL in consideration for the issue of one share in PMGL for each unit in PMLT.  PML and OFM propose that, immediately following implementation of the Schemes, there will be a two for one consolidation of PMGL shares.  Each eligible security holder will then hold one PMGL share for each stapled security they held prior to the Schemes being implemented.

   [23] See for example Re Mirvac Limited, Mirvac Funds Ltd [1999] NSWSC 457; (1999) 32 ASCR 107; Re Westfield Holdings Ltd [2004] NSWSC 458; (2004) 49 ACSR 734; Re Investa Listed Funds Management Limited as responsible entity for the Armstrong Jones Office Fund and the Prime Credit Trust [2016] NSWSC 341 [14].

4. The Implementation Deed between PML, OFM and PMGL sets out the procedures for the implementation of the proposed restructure. 

5. On the Implementation Date, each of the PML Shares will be unstapled from the trust units by resolutions of the directors of PML and OFM under their respective constitutions and as authorised by a resolution put to an extraordinary general meeting of PML shareholders.  The general meeting will be held on the same day as the Scheme meeting and the Trust Scheme meeting. 

6. In order to give effect to the proposed restructure, four resolutions are proposed by PML and OFM. First, at an extraordinary general meeting of PML, is a resolution for the unstapling of the PML Shares and PMLT Units subject to and conditional upon the Scheme becoming effective. Second, at the PML scheme meeting to be convened under s 411(1) of the Corporations Act, a resolution approving the Scheme. Third, at the Trust Scheme meeting, a resolution to approve the unstapling of the PMLT units and the PML Shares. Fourth, at the same Trust Scheme meeting, a resolution to amend the PMLT's constitution in accordance with the PMLT deed poll, to give effect to the Trust Scheme. It is proposed that each of the meetings be held on 19 September 2019, one after the other.

7. PMGL will then issue shares which comprise the consideration for the Scheme to shareholders in return for their shares in PML.  It will also issue shares which comprise the consideration for the Trust Scheme to unitholders in return for their units in PMLT.  Once the shares have been issued, a two for one consolidation of the PMGL shares will occur. 

1. PMGL is required to register the former security holders as the holders of PMGL shares.  The obligations of PMGL under the Scheme are supported by a deed poll dated 14 August 2019 which has been executed by PMGL.[24]

   [24] Affidavit of Amanda Louise Meloni filed 16 August 2019, 'ALM5'.

2. Following implementation of the Schemes, the second phase of the corporate restructure will be carried out.

3. The directors of PML unanimously recommended that security holders vote in favour of the Schemes.[25]  An independent expert report (IER) has been prepared by Mr Adam Myers and Mr Sherif Andrawes of BDO Corporate Finance Pty Ltd.  The IER expresses the opinion that the Schemes are in the best interests of security holders on the basis that the advantages outweigh the disadvantages.  The scheme booklet also contains information as to the tax implications of the Schemes.[26]

   [25] Scheme Booklet, cl 4.7.

   [26] Scheme Booklet, cl 4.9 and Annexure B.

4. I was provided with the draft scheme booklet which was submitted to ASIC on 2 August 2019[27] and the various amendments that have been made to the document since then.[28]

   [27] Affidavit of Steven Cole filed 8 August 2019, par 55 - 57, 'SC16'.

   [28] Supplementary affidavit of Steven Cole filed 22 August 2019, 'SC24', 'SC25'.

5. The scheme booklet contains the following sections:

   (a)detailed warnings on the inside cover and encouragement for PML shareholders and PMLT unitholders to obtain independent legal, financial, taxation and other professional advice;

   (b)a letter from the Chairman of PML with a clear statement of the PML Board's recommendation;

   (c)a listing of all key dates for the Schemes;

   (d)a 'frequently asked questions' table, which addresses all the essential matters;

   (e)an overview of the proposed corporate restructure and Schemes;

   (f)information about PML and PMGL;

   (g)a section on risks;

   (h)a section on the financial impact of the Schemes and corporate restructure;

   (i)a section on material contracts; and

   (j)a section on the advantages and disadvantages of the proposed Schemes.

6. The scheme booklet included a number of important annexures which will form part of the scheme booklet.  These include the IER, a letter from BDO concerning the Australian taxation implications of the proposed Schemes, the Implementation Deed, the proposed Scheme and Trust Scheme, the Deed Polls and the relevant notices of meeting.

Legal Principles in respect of the Scheme

1. Pursuant to s 411 of the Corporations Act, a scheme of arrangement can be used to re-organise a company in a manner which will be binding on its members provided that:

   (a)the arrangement is agreed by the requisite majorities as prescribed by s 411(4)(a) of the Corporations Act, namely 75% of shareholders by value and 50% by number; and

   (b)the court approves the arrangement pursuant to s 411(4)(b) of the Corporations Act.

2. There are three stages to an application under s 411 of the Corporations Act. First, the court approves the convening of a scheme meeting and the draft explanatory statement to be sent to the scheme members. Second, the members vote on the proposed scheme at the scheme meeting. Third, assuming the first two stages have occurred, the court approves the proposed scheme.[29]

   [29] Re CSR Ltd [2010] FCAFC 34; (2010) 183 FCR 358 [7].

3. As Mr Papamatheos, who appeared as counsel for the plaintiff noted, there are well-established principles which apply to the first stage of proceedings.  The court will order the convening of the scheme meeting and approve the dispatch of the scheme booklet if is satisfied that:[30]

   (a)the applicant is a pt 5.1 body;

   (b)there is a compromise or arrangement within the meaning of s 411 of the Corporations Act;

   (c)the proposed scheme booklet contains the prescribed information[31] and provides proper disclosure;[32]

   (d)the scheme is bona fide and properly proposed;

   (e)ASIC has had at least 14 days' notice of the proposed hearing date and a reasonable opportunity to examine the terms of the scheme and the scheme booklet and to make submissions;[33]

   (f)the procedural requirements of the Act and the Corporations Rules have been met;

   (g)the scheme is of such a nature that, if it receives the necessary statutory majority at the scheme meeting, the court will be likely to approve it.[34]

   [30] Re SRG Limited [2018] FCA 1092 [11]; Re Wesfarmers Ltd; Ex Parte Wesfarmers Ltd [2018] WASC 308 [60].

   [31] Corporations Act 2001 (Cth), s 412(1)(a)(ii); Corporations Regulations 2001 (Cth) reg 5.1.01, Sch 8 cl 8301 ‑ 8310.

   [32] Corporations Act 2001 (Cth), s 412(1)(a)(i).

   [33] Corporations Act 2001 (Cth), s 411(2)(b).

   [34] Re Wesfarmers Ltd; Ex Parte Wesfarmers Ltd [63]; Re SRG Limited [12].

4. Any issue about classes of members is usually determined at the first hearing.[35]  This is to prevent costs and court time from being wasted which would otherwise occur if this issue was left to the second hearing.[36]

   [35] Re CSR Ltd [73].

   [36] Re Opes Prime Stockbroking Ltd [2009] FCA 813; (2009) 179 FCR 20 [20].

5. The standard of review undertaken by the court at the first hearing is whether the proposed scheme is not inappropriate and is one that sensible business people might consider is of benefit to its members.[37] If the proposed arrangement is one that appears fit for consideration by a meeting of members and is a commercial proposition likely to gain the court's approval if passed by the necessary majority, leave should be given to convene the meeting.[38]

   [37] Re Amcom Telecommunications Ltd [2015] FCA 341 [10].

   [38] Re SRG Limited [12]; Re Wesfarmers Ltd; Ex Parte Wesfarmers Ltd [72] - [76].

Legal Principles in respect of Trust Scheme

1. A practice has developed in New South Wales in relation to 'trust schemes'. Where a trust scheme is proposed, the trustee seeks directions from the court for judicial advice.[39]  Specifically, trustees seek advice for the provision of explanatory disclosure documents to unitholders and for the convening of a meeting of unitholders to obtain approval for the alteration of the trust instrument which is required to bring the transaction into effect.  If fully informed unitholders agree to the proposed alteration, the trustee then returns to the court to seek further directions for advice as to implementation of the transaction.

   [39] See for example Re Mirvac Limited, Mirvac Funds Ltd; Re Macquarie Goodman Funds Management Ltd [2004] NSWSC 119; (2004) 52 ACSR 194; Re Abacus Funds Management Ltd [2005] NSWSC 1309; (2006) 24 ACLC 211; Re Macquarie Capital Alliance Ltd [2008] NSWSC 745; (2008) 67 ACSR 484 [19]; Re Macquarie Communications Infrastructure Group [2009] NSWSC 487; Re DUET Management Company 1 Ltd [2013] NSWSC 817; (2013) 95 ACSR 34; Sydney Airport Holdings Ltd [2013] NSWSC 1665; Re Ardent Leisure Lted [2018] NSWSC 1665[21].

2. The court will give directions if it is satisfied of the following matters:[40]

   (a)any intended alteration to the trust instrument can be validly proposed and implemented, either pursuant to the trust instrument  or legislation;

   (b)the procedural requirements analogous to those applying to a proposed scheme of arrangement under s 411 of the Corporations Act have been followed;

   (c)the directions for trustee advice are cast in usual and appropriate terms and issued at the appropriate stage of the proceedings; and

   (d)there is no apparent reason why the trust scheme should not, in due course, receive the court's direction for advice to implement if the necessary majority of the unitholders' votes is achieved.

   [40] Re Westfield Holdings Ltd [2004] NSWSC 458; (2004) 49 ACSR 734 [2] ‑ [3]; Re Macquarie Capital Alliance Ltd [19] ‑ [23]; Re DUET Management Company 1 Ltd [9] ‑ [10]; Re Mirvac Funds Management Ltd [2014] NSWSC 1569 [2] ‑ [3]; Re Westfield Corporation Limited [2018] NSWSC 584 [29]; Re Ardent Leisure Ltd [10], [20] ‑ [22].

3. Counsel for the plaintiff submitted that I should adopt this approach in considering the Trust Scheme.  At the time of making my orders, a 'trust scheme' had not received judicial consideration in Western Australia.  For this reason, it is appropriate that I set out the basis upon which I was satisfied that it was appropriate to adopt the practice that has become standard in New South Wales. 

4. I note that the relevant provision of the Trustees Act is not identical to the NSW provision.  Section 63(1) of the Trustees Act 1925 (NSW) is more broadly framed and provides that:

   A trustee may apply to the Court for an opinion advice or direction on any question respecting the management or administration of the trust property, or respecting the interpretation of the trust instrument.

5. In contrast, s 92(1) of the Trustees Act provides that:

   Any trustee may apply to the Court for directions concerning any property subject to a trust, or respecting the management or administration of that property, or respecting the exercise of any power or discretion vested in the trustee.

6. Counsel for the plaintiff submitted that s 92 of the Trustees Act is sufficiently broadly framed to make the directions sought and drew the court's attention to previous authorities which have considered the subject matter jurisdiction of this section. This court has previously held that there is no implied limitation in the text of this section.[41]  In Plan B Trustees Ltd v Parker, Edelman J considered this section and held that:[42]

   The only express requirement of subject matter jurisdiction is that the direction sought concerns either (i) any property subject to a trust; (ii) the management or administration of that property; or (iii) the exercise of any power or discretion vested in the trustee.

   [41] Plan B Trustees Ltd v Parker [2012] WASC 392 [36] - [39] referring to Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 [55].

   [42] Plan B Trustees Ltd v Parker [38].

7. The directions sought by OFM ask whether OFM is justified in convening a meeting of unitholders for the purpose of considering the Trust Scheme, distributing an explanatory statement and proceeding on the basis that making the proposed alterations to the PMLT Constitution would be within the powers of alteration of the trustee as conferred by the PMLT Constitution. 

8. In my view, each of these directions are examples of directions 'respecting the exercise of any power or discretion vested in the trustee' within the meaning of s 92 of the Trustees Act. On this basis, I considered that the court had jurisdiction to make the orders sought.

9. Turning then to the approach that should be adopted in relation to the matters that should be considered in determining whether to grant the directions sought. As noted above, there is a well-established practice that has developed in New South Wales as to what should be considered in relation to a trust scheme.  Unless there are any jurisdictional differences that need to be accounted for or I considered that the approach taken by numerous judges of the NSW Supreme Court was plainly wrong, which I do not, it was my view that it was appropriate to adopt the approach taken by the NSW Supreme Court. This is for the following reasons. 

10. First, the approach of the NSW Supreme Court is consistent with regulatory policy, namely that of ASIC and the Takeovers Panel.  In this respect, I note that ASIC's Regulatory Guide 60 concerning schemes of arrangement applies to trust schemes.[43] The Takeovers Panel have produced a guidance note in relation to trust scheme mergers[44] in which the Takeovers Panel notes the similarity between trust schemes and members' schemes of arrangement[45] and considers that the notice of meeting should meet disclosure standards comparable to a trust scheme[46] and include similar information.[47] 

    [43] See definition of 'reconstruction', ASIC Regulatory Guide 60, p 32.

    [44] Takeovers Panel Guidance Note 15: Trust Scheme Mergers ('Guidance Note').

    [45] Guidance Note, par 7.

    [46] Guidance Note, par 13.

    [47] Guidance Note, par 15.

11. Second, the corporate restructure is an integrated proposal and there is a single booklet that is sent to all security holders.  For this reason, it is appropriate to extend by analogy the procedures of the pt 5.1 Scheme to the Trust Scheme to ensure that those sections of the scheme booklet which concern the Trust Scheme are examined in the same way as the remainder of the scheme booklet.

12. Third, many corporate transactions involve multiple jurisdictions.  It is in the interests of all parties concerned that, wherever possible, a uniform approach is adopted to the consideration of these transations. 

Disposition - Scheme

1. The formal matters that PML had to prove are satisfied. 

2. PML is a company and, accordingly, is a pt 5.1 body.  The proposed Scheme constitutes an 'arrangement'.  This type of restructure has been approved by courts as an 'arrangement' on numerous occasions.[48] PML has filed the affidavits required by r 3.2 of the Corporations Rules regarding the persons who have been nominated to be the chairperson and alternate chairperson for the Scheme Meeting.[49]

   [48] See for example Re Marengo Mining Ltd [2012] FCA 1220 [6].

   [49] Affidavit of Derek Noel La Ferla filed 16 August 2019; Affidavit of Dean Prosper Hely filed 16 August 2019.

3. No class issue arose in relation to the Scheme.  All shareholders are being treated equally and, as a result, constitute a single class.  I note that there are no foreign shareholders of PML.  As a result, there is no need to include any mechanisms to address the issue of securities to parties in other jurisdictions.

4. By letter dated 22 August 2019, ASIC confirmed that it had been given 14 days' notice of the hearing and had a reasonable opportunity to examine the terms of the Scheme and the draft explanatory statement.[50]  ASIC also gave notice that it did not propose to appear at the first hearing to make submissions or intervene to oppose the Scheme.[51]

   [50] Supplementary affidavit of Stephen Cole filed 22 August 2019, 'SC26'.

   [51] Supplementary affidavit of Stephen Cole filed 22 August 2019, 'SC26'.

5. On the materials before me, there is nothing to suggest that the proposed Scheme is not properly proposed.  The constitution of PML does not prevent the Scheme.[52]

   [52] Affidavit of Stephen Cole filed 8 August 2019, 'SC2'.

6. There are a number of conditions precedent to the Scheme.[53]  Mr Cole has deposed that he is not aware of any basis to believe that any condition precedent will not be satisfied or waived by the necessary time.[54]

   [53] Scheme, cl 3.1.

   [54] Supplementary affidavit of Stephen Cole filed 22 August 2019, par 16.

7. I have read the initial draft of the scheme booklet (as provided to ASIC) and considered the various amendments made.  I have also been provided with the communications between ASIC and PML's solicitors in relation to ASIC's review of the draft scheme booklet.  I was and am satisfied that there will be proper disclosure as to the effect of the proposed Scheme and the material considerations for security holders.

8. There is evidence before me as to the due diligence and verification process that was undertaken by both PML and PMGL.[55]  On the basis of this evidence, I accept that:

   (a)PML undertook a process of due diligence and verification to verify the accuracy of statements attributable to PML in the scheme booklet;

   (b)PMGL undertook a similar process to verify the statements attributable to it;

   (c)appropriate steps have been taken to satisfy PML and PMGL that the scheme booklet does not omit any material information.

   [55] Affidavit of Stephen Cole filed 8 August 2019, pars 47 - 52; Affidavit of Amanda Louise Meloni filed 16 August 2019, 'ALM4'; Supplementary affidavit of Stephen Cole filed 22 August 2019, par 35 ‑ 40.

9. The directors of PML have resolved to approve the scheme booklet in its final form.[56]

   [56] Affidavit of Steven Cole filed 8 August 2019, 'SC15, cl 3.1, p 337.

10. Based on the checklist provided by counsel for PML,[57] I was satisfied that the scheme booklet contained the prescribed information in accordance with s 412(1)(a)(ii) of the Corporations Act and Sch 8 of the Corporations Regulations 2001 (Cth).

    [57] Outline of Submissions filed 20 August 2019, Appendix A.

11. In written and oral submissions, counsel for PML and OFM drew to my attention some specific matters.  I address each of these below.

Performance Risk

1. I was and am satisfied that the nature and terms of the proposed Schemes are such that the members are adequately protected against the risk that PMGL will not perform its obligations under the Schemes.

2. In that respect I have had regard to:

   (a)the terms of the Schemes whereby the obligation to transfer the PML Shares and PMLT units occurs prior to and is interdependent with the right to receive PMGL shares;[58]

   (b)the terms of the deed poll executed by PMGL pursuant to which PMGL covenants in favour of each security holder that it will perform all obligations under the Schemes and provide the scheme consideration to each security holder in accordance with the terms of the Schemes;[59] 

   (c)the acknowledgement in the deed poll executed by PMGL that the deed can be enforced by any security holder and that PML may enforce the deed poll on behalf of all security holders.[60]  In my view, the security holders are sufficiently identified within the deed poll to enable them to enforce the deed poll as against PMGL by reason of the Property Law Act 1959 (WA), s 11(1).

   [58] Affidavit of Steven Cole filed 8 August 2019, 'SC15', cl 5.3, p 338.

   [59] Affidavit of Amanda Louise Meloni filed 16 August 2019, 'ALM5', cl 4, p 233.

   [60] Affidavit of Amanda Louise Meloni filed 16 August 2019, 'ALM5', cl 2, p 232.

3. In any event, as was contended by counsel for PML and OFM, the proposed Schemes seek to effect a corporate restructure of the Perth Markets.  On this basis, the performance risk that might otherwise arise when performance is required by an unrelated third party does not arise.

Interests of creditors of PML and Land Trust

1. The Schemes concern the transfer of shares and units.  For this reason, there is no question that arises as to the impact on creditors from any orders that are made.

Financial Assistance

1. An early draft of the scheme booklet addressed the question as to whether a proposed refinancing of the Perth Markets business was financial assistance under s 260A(1) of the Corporations Act. This matter was resolved through conferral with the financier and ASIC.[61]  As a consequence, amendments were made to the Scheme Booklet to remove disclosure about this issue.  In my view, this was appropriate as its inclusion may have been misleading to security holders.

Other matters

[61] Supplementary affidavit of Steven Cole filed 22 August 2019, pars 8 - 10.

1. Counsel for PML and OFM drew my attention to the 'deemed warranty' provision in the proposed Scheme and Trust Scheme.[62]  The warranty provision is disclosed in the scheme booklet.[63]  Deemed warranty clauses are not unusual and are acceptable provided there is adequate disclosure to the scheme participants of its existence.[64]

   [62] Scheme, cl 5.5; PMLT Deed Poll, cl 30.8.

   [63] Scheme booklet, par 4.21.

   [64] Re APN News and Media Ltd [2007] FCA 770; (2007) 62 ACSR 400 [57] - [63]; Re DUET Management Company 1 Ltd [23]; Re Nzuri Copper Ltd [2019] WASC 189 [90].

2. In addition, the Schemes provide that, to the extent permitted by law, the PML shares and OFM units will be transferred free from encumbrances and restrictions on transfer of any kind.[65]  The terms of this clause are in standard terms and includes the opening words 'To the extent permitted by law'.  The inclusion of these words address the concern that has previously been expressed as to whether third parties may gain the impression that their rights have been extinguished.[66]  I also note that this provision is similarly disclosed in the scheme booklet.[67]

   [65] Scheme, cl 5.7; PMLT Deed Poll, cl 30.8.

   [66] Re Investa Properties Limited [2007] FCA 1104; (2007) 25 ACLC 1 [25] - [30]; Re Scarborough Equities Ltd (No 2) [2009] FCA 484 [9] ‑ [10].

   [67] Scheme Booklet, par 4.21.

1. Additionally, the plaintiff sought orders for electronic dispatch of the scheme booklet.  I note that these orders are now common.[68]  Details were provided as to the terms of the proposed electronic notification.[69]  I was satisfied, having read the terms of the proposed email communication to security holders, that an order for electronic dispatch of the scheme booklet was appropriate.

   [68] See, for example, Re SRG Ltd [48].

   [69] Supplementary affidavit of Steven Cole filed 22 August 2019, pars 20 - 22, Annexure 'SC21'.

2. Taking into account all of these matters, I considered that there was no apparent reason why the Scheme should not, if the necessary special resolution of shareholders is passed, receive the court's approval.

Disposition - Trust Scheme

Proposed alteration to Constitution

1. The Trust Scheme proposes that substantial changes be made to the Constitution to implement the unstapling arrangement. The amendments also deal with the transfer of units to PMGL, the subscription for shares in PMGL, the consolidation of shares and the mechanics of the implementation of this part of the restructure.

2. Clause 25 of the Constitution sets out the process by which the Constitution can be amended.[70] Clause 25.2 conveys on the trustee a power to amend the Constitution by way of a deed unless the amendments adversely affect the rights of members in which case the amendment must be approved by special resolution passed by a meeting of unitholders. Clause 25.4 of the Constitution provides that no amendment which has the effect of cancelling or varying rights of unitholders is of any effect unless the amendment has been approved by special resolution of unitholders.

   [70] Affidavit of Steven Cole sworn 8 August 2019, Attachment 'SC9', p 199.

3. OFM accepted that the amendments proposed adversely affect the rights of members.  Accordingly, OFM proposed the convening of a meeting of unitholders to approve, by special resolution, the proposed amendments.

4. I was and am satisfied that the intended alteration to the Constitution of PMLT can be validly proposed and implemented by the procedure proposed by OFM. 

Analogous procedural requirements

1. I have already addressed most of the procedural requirements in my consideration of the Scheme.  The only additional matters that need to be considered are whether there was proper disclosure to unitholders as to the effect of the proposed Trust Scheme, satisfaction of the conditions precedent to the Trust Scheme and the verification process undertaken by OFM.

2. From my review of the draft scheme booklet, I was and am satisfied that there will be proper disclosure as to the effect of the proposed Trust Scheme on unitholders and the matters which are material considerations for unitholders.

3. There are a number of conditions precedent to the Trust Scheme.  Ms Wiesener has deposed that she is not aware of any basis to believe that any condition precedent will not be satisfied or waived by the necessary time.[71]

   [71] Affidavit of Sarah Wiesener filed 16 August 2019, par 13.

4. There was evidence before me as to the verification process undertaken by OFM in respect of the scheme booklet.[72]  On the basis of this evidence, I accept that OFM undertook a process of verification to verify the accuracy of statements attributable to OFM, in its capacity as the trustee of PMLT, in the scheme booklet.

   [72] Affidavit of Sarah Wiesener filed 16 August 2019, pars 13 - 16, 'SW3'.

5. The directors of OFM have resolved to approve the directors' statements in the scheme booklet.[73]

   [73] Affidavit of Sarah Wiesener filed 16 August 2019, pars 15 - 16, 'SW3'.

6. For these reasons, as well as the reasons set out above in relation to the Scheme, I was and am satisfied that the analogous procedural requirements that apply to a scheme of arrangement under s 411 of the Corporations Act have been followed in respect of the Trust Scheme.

Directions sought

1. I reviewed the directions sought by OFM.  The directions sought judicial advice on three matters:

   (a)first, whether OFM was justified in convening a meeting of unitholders to consider the proposed resolutions;

   (b)second, whether OFM was justified in distributing the scheme booklet to all PMLT unitholders; and

   (c)third, whether OFM was justified in proceeding on the basis that the making of the amendments to the Constitution would be within the power of alteration conferred by the Constitution.

2. For the reasons set out in paragraph 51 above, I considered that these directions were within the subject matter jurisdiction of s 92 of the Trustees Act. In my view, the directions were in appropriate terms and issued at the appropriate stage of the proceedings, namely the first court hearing.

Fit for consideration

1. Finally, as noted above in respect of the Scheme, I considered that there was no apparent reason why the Trust Scheme should not, if the necessary special resolution of unitholders is passed, receive the court's directions for its implementation.

2. In these circumstances, I considered that it was appropriate to give directions to the effect that OFM was justified in convening a meeting to consider the proposal to be put to unitholders and to dispatch the scheme booklet. I was and am also satisfied that it was appropriate to give directions that the making of the amendments proposed to the Constitution, following approval by special resolution of unitholders, was within the power of the trustee.

Service of application of unitholders

1. At the hearing before me, OFM sought to be excused from any requirement that arises pursuant to s 92(2) of the Trustees Act or O 58 r 4(a) RSC to serve the originating summons dated 8 August 2019 and supporting affidavits on each of the PMLT unitholders.

2. Section 92(2) of the Trustees Act provides that:

   Every application made under this section shall be served upon, and the hearing thereof may be attended by, all persons interested in the application or such of them as the Court thinks expedient.

3. The construction of this section was previously considered by Master Sanderson in Read v Bowesco Pty Ltd.[74] I agree with the conclusion reached by Master Sanderson that the proper construction of this section is that service is required only on those persons whose interests are impacted by the application or who the court thinks it expedient to serve. This is for the following reasons. First, the requirement to serve documents on a party is to ensure that any party whose interests may be affected by the orders of the court are provided with an opportunity to be heard before orders are made. In many cases where an application is made under s 92(1) of the Trustees Act, not all unitholders will be impacted by the directions sought. This is such an application. Second, mandatory service on all unitholders will, in many cases and in particular in relation to a trust scheme, be an unnecessary expense. Third, the court can consider at the hearing of the application which persons, if any, should be served with the application. This will require an assessment as to whether, in their absence, the court may fail to take into account some relevant submission. Fourth, any unitholder who considers they are impacted by the Trust Scheme will have an opportunity to express their views at both the meeting of unitholders and at the second court hearing.

   [74] Read v Bowesco Pty Ltd [2013] WASC 240 [18] - [22].

4. Turning then to the obligations imposed by the RSC O 58, I note that the application by OFM is an application under O 58 r 2(e) RSC. As such, pursuant to O 58 r 4(a) RSC, the summons is required to be served on any person whose rights or interests are affected by the relief sought.

5. In this case, I am satisfied that there is no requirement to serve the application on any of the unitholders.  The orders that are sought by the OFM are in relation to the convening of a meeting of unitholders and nothing else.  The orders themselves do not affect the rights or interests of unitholders.  The unitholders will have the opportunity at the Trust Scheme meeting to express their views on the proposed Trust Scheme and can appear at the second court hearing to make submissions in relation to the proposed Trust Scheme if they choose. 

Conclusion on First Hearing

1. At the hearing before me, I was satisfied that the substantive and procedural requirements under s 411(1) of the Corporations Act had been satisfied and that the proposed Scheme was fit for consideration by PML's members. I was also satisfied that it was appropriate to give the directions sought in respect of the Trust Scheme.

2. For these reasons, at the conclusion of the hearing on 23 August 2019, I made orders in terms of Annexure 'A' to this judgement in respect of the Scheme (COR 164 of 2019) and Annexure 'B' in respect of the Trust Scheme (CIV 2416 of 2019).

Meetings

1. The extraordinary general meeting of PML, the Trust Scheme meeting and the Scheme meeting were convened and held on 19 September 2019.

2. At each of these meetings, the resolution or resolutions were passed by the requisite statutory majority.

3. At the extraordinary general meeting of PML, 100% of the shareholders present in person and by proxy voted in favour of the resolutions.[75] 

   [75] Affidavit of Paul Campbell filed 23 September 2019, par 17, 'PC14'.

4. In respect of the Trust Scheme meeting, 20 unitholders were present in person and by proxy, comprising approximately 25.97% of the 77 unitholders.[76]  100% of unitholders who voted at the meeting were in favour of the resolutions.[77] This means 48,748,489 of the 58,840,131 PMLT units on issue were cast in favour of the resolution, which is approximately 82.85% of PMLT units on issue.[78]

   [76] Second affidavit of Derek Noel La Ferla filed 24 September 2019, par 12.

   [77] Second affidavit of Derek Noel La Ferla filed 24 September 2019, par 18.

   [78] Second affidavit of Derek Noel La Ferla filed 24 September 2019, par 12, 'DNLF3'.

5. In respect of the Scheme meeting, 18 shareholders were present in person and by proxy, comprising approximately 23.38% of the 77 shareholders.[79]  100% of shareholders who voted at the meeting were in favour of the resolution.[80]  This means 48,388,489 of the 58,840,131 PML Shares on issue were cast in favour of the resolution, which is approximately 82.24% of the PML Shares on issue.[81]

   [79] Second affidavit of Derek Noel La Ferla filed 24 September 2019, par 25.

   [80] Second affidavit of Derek Noel La Ferla filed 24 September 2019, par 31.

   [81] Second affidavit of Derek Noel La Ferla filed 24 September 2019, par 25, 'DNLF6'.

Approval of Scheme

1. These matters came back before me for the second court hearing on 26 September 2019.

2. In addition to the affidavits that were relied upon at the first hearing, PML and OFM relied on the following additional affidavits:

   (a)a second affidavit of Paul Campbell sworn 20 September 2019, the company secretary and chief financial officer of PML in relation to the printing of the scheme booklet and its dispatch, the preparation of an updated proxy form for the unitholders of PMLT and the uploading of the documents to the PML website;

   (b)an affidavit of Jason John Day sworn 23 September 2019, the managing director of Minuteman Press Perth, who was retained by PML to print the scheme booklet, in relation to the printing and checking of the scheme booklet;

   (c)a third affidavit of Paul Campbell sworn 23 September 2019, in relation to the receipt of proxies for the meetings, the attendance registers for each of the meetings, the advertisement of the second court hearing and the satisfaction of each of the conditions precedent to the Scheme and Trust Scheme;

   (d)a second affidavit of Amanda Louise Meloni sworn 24 September 2019, in relation to the lodgement with ASIC of the orders from the first court hearing, the registration of the scheme booklet and conferral with ASIC on the outcome of the meetings;

   (e)a second affidavit of Derek Noel La Ferla sworn 24 September 2019, the chairperson of the Scheme meeting and Trust Scheme meeting and observer at PML's extraordinary general meeting, providing a report on each of the meetings;

   (f)a fourth affidavit of Paul Campbell sworn 25 September 2019, in relation to the proxies that were received in respect of the Trust Scheme meeting and specifically addressing the proxy lodged by Demar Holdings Pty Ltd; and

   (g)a third affidavit of Amanda Louise Meloni sworn 26 September 2019 annexing correspondence received from ASIC confirming that ASIC had no objection to the proposed scheme under s 411(17)(b) of the Corporations Act, confirming that neither PML nor its solicitors had received any notice of objection from any security holder and annexing the certificates issued by PML and OFM confirming that all conditions precedent (apart from the orders sought at the second court hearing) had been satisfied.

3. Subsequent to the hearing, in accordance with an order that I made at the second court hearing, a third affidavit of Steven Cole sworn 26 September 2019 was filed which annexed the corporate representative form of Demar Holdings Pty Ltd (Demar Holdings). 

4. These additional affidavits address the matters that PML and OFM were required to establish at the second hearing. The affidavits also clarified two additional matters.  First, an inadvertent error in the proxy form for the Trust Scheme meeting and second, the means by which Demar Holdings' securities were voted at the Trust Scheme meeting - namely by its corporate representative, Ms Skinner, rather than the proxy form which had been lodged with PML prior to that meeting.

Legal Principles in respect of the Scheme Approval

1. The approval of the proposed Scheme pursuant to s 411(4)(b) of the Corporations Act, or the second court hearing, is the third stage of approval for a scheme of arrangement. As noted above, the second stage is the approval of the Scheme by the requisite statutory majorities, which occurred at the Scheme meeting.

2. At the second court hearing, the court has two tasks:[82]

   (a)to ensure that all statutory and procedural requirements have been satisfied.  This includes confirming that:[83]

   i.the meeting was convened and held in accordance with the court's earlier orders,

   ii.the resolutions were passed with the requisite statutory majorities; and

   iii.the plaintiff otherwise complied with the court's earlier orders;

   (b)to determine, in the exercise of the court's discretion, whether to approve the proposed arrangement.

   [82] Re Wesfarmers Ltd; Ex parte Wesfarmers Ltd (No 2) [12].

   [83] Re International Goldfields Ltd [2004] WASC 112 [7].

3. The court has a discretion to approve a scheme under s 411(4)(b) and is not bound to approve a scheme just because the court previously made orders for the convening of a meeting or because the statutory majorities have been achieved.[84]  That said, the court will usually approach the task on the basis that security holders are better judges of what is in their commercial interests than the court.[85]

   [84] Re Wesfarmers Ltd; Ex Parte Wesfarmers Ltd (No 2) [13]; Re Seven Network Ltd (No 3) [2010] FCA 400; (2010) 267 ALR 583 [31].

   [85] Re Wesfarmers Ltd; Ex Parte Wesfarmers Ltd (No 2) [13]; Re Seven Network Ltd (No 3) [32] - [33].

4. The factors that inform the court's discretion whether or not to approve the scheme are:[86]

   (a)whether the members have voted in good faith and not for an improper purpose;

   (b)whether the proposal is fair and reasonable so that an intelligent and honest person who was a member of the relevant class, properly informed and acting alone, might approve it;

   (c)whether the plaintiff has brought to the attention of the court all matters that could be considered relevant to the exercise of the court's discretion;

   (d)whether there has been full and frank disclosure of all information material to the members' decision;

   (e)whether minority shareholders would be oppressed by the scheme;

   (f)whether the court is satisfied that the scheme has not been proposed to avoid Ch 6 of the Corporations Act;

   (g)whether ASIC has an objection to the scheme; and

   (h)whether the scheme offends public policy.

   [86] Re Seven Network Ltd (No 3) [35] - [40], [50], [52].

Legal Principles in respect of Trust Scheme approval

1. At the second court hearing, OFM sought judicial advice in respect of the Trust Scheme.  The directions sought by OFM asked whether OFM was justified in acting upon the resolutions of the PMLT unitholders and in doing all things and taking all necessary steps to put the proposal into effect.   

2. In my view, each of these directions are examples of directions 'respecting the exercise of any power or discretion vested in the trustee' within the meaning of s 92 of the Trustees Act. On this basis, I considered that the court had jurisdiction to make the orders sought.

3. Counsel for the plaintiff submitted that I should adopt the approach taken by the New South Wales Supreme Court as to the matters that I should consider when determining whether to grant the directions sought at the second court hearing. Specifically, as noted above, this approach is that the court should adopt the same general approach as applies to s 411 schemes.[87]

   [87] Re Westfield Holdings Limited (No 5) [2014] NSWSC 976 [6]; Re Westfield Corporation Limited (No 2) [2018] NSWSC 921 [7]; In the matter of Ardent Leisure Limited (No 2) [2018] NSWSC 1990 [14] - [15]; In the matter of Investa Funds Management Limited (No 2) [2018] NSWSC 1995 [8].

4. For the reasons that I have given in respect of the first court hearing, I considered that it was appropriate to accept this submission and adopt the same approach in considering whether to give the directions sought.

Disposition

Compliance with statutory and procedural requirements

1. I am and was satisfied, on the basis of the additional affidavits that were filed by PML and OFM that:

   (a)a copy of the court's orders made on 23 August 2019 were lodged with ASIC that day;[88]

   (b)a copy of the scheme booklet that was approved for distribution by the court was lodged with ASIC and registered on 23 August 2018;[89]

   (c)the Scheme booklet was dispatched to security holders in accordance with my orders of 23 August 2019;[90]

   (d)the Scheme meeting and Trust Scheme meetings were convened and held on 19 September 2019 in accordance with my orders of 23 August 2019;[91]

   (e)the Scheme and Trust Scheme were approved by the requisite statutory majorities;[92]

   (f)notice of the second court hearing was given by way of advertisement in The West Australian and The Australian newspapers on 20 September 2019;[93] and

   (g)ASIC informed PML on 25 September 2019 that, pursuant to s 411(17)(b) of the Corporations Act, it has no objection to the proposed Scheme.[94]

   [88] Affidavit of Amanda Louise Meloni filed 24 September 2019, par 5, 'ALM8'.

   [89] Affidavit of Amanda Louise Meloni filed 24 September 2019, pars 7 - 8, 'ALM10', 'ALM11'.

   [90] Second affidavit of Paul Campbell filed 20 September 2019, pars 12 - 27.

   [91] Third affidavit of Paul Campbell filed 23 September 2019; Second affidavit of Derek Noel La Ferla filed 24 September 2019.

   [92] Second affidavit of Derek Noel La Ferla filed 24 September 2019, par 18 - 21, 31 - 34.

   [93] Third Affidavit of Paul Campbell filed 23 September 2019, par 35 - 37, 'PC19' and 'PC20'.

   [94] Affidavit of Amanda Louise Meloni sworn 26 September 2019, 'AML17'.

2. Mr Papamatheos, counsel for the plaintiff, drew my attention to the fact that only 18 of 77 eligible PML shareholders voted at the Scheme meeting (or approximately 23.38% of voters) and that only 20 of 77 eligible PMLT unitholders voted at the Trust Scheme meeting (or approximately 25.97% of unitholders).  The security holders who exercised their right to vote held more than 82% of the securities on issue at each meeting.

3. As was stated by Farrell J in TriAusMin Limited, in the matter of TriAusMin Limited (No 2):[95]

   It is inappropriate to assume (in the absence of complaint) that shareholders who did not vote either did not have notice of the meeting or were silent in protest of the scheme; apathy should not be presumed to be antagonism.

   Nonetheless it does call for consideration to ensure that the vote [was] not unrepresentative, since the court retains the discretion to withhold its approval in that case. It is relevant to consider whether members have been deterred from attending or voting at the meeting.

   [95] TriAusMin Limited, in the matter of TriAusMin Limited (No 2) [2014] FCA 833 [10] - [11].

1. I respectfully agree with her Honour's view.

2. Relatively low shareholder turnout does not prevent the court from making orders approving a scheme of arrangement.[96] 

   [96] See for example Re Avoca Resources Ltd [2011] FCA 208 [25] (11.49% of shareholders holding 72.38% of shares); Re Cortona Resources Ltd (No 2) [2013] FCA 302 [12] (17.5% of shareholders holding 45.2% of shares); Re Auzex Resources Ltd (No 2) [2012] QSC 101 [18] (9.75% of shareholders representing 42.3% of votes); TriAusMin Limited, in the matter of TriAusMin Limited (No 2) [9] (10.94% of shareholders holding 52.9% of shares); Decimal Software Limited; in the matter of Decimal Software Limited (No 2) [2018] FCA 2040 [15] - [16] (5.21% of shareholders holding 52.85% of shares).

3. I was and am satisfied that there was a sufficient turnout at each of the meetings. I do not consider that the low voter turnout, in itself, suggested there had been an error in the dispatch of the scheme booklet, nor that this should prevent the court from making orders under s 411(4)(b). I note that:

   (a)the security holders who did vote at the meetings voted unanimously in favour of the Scheme and Trust Scheme;

   (b)the security holders who voted in favour of the Scheme and the Trust Scheme represented over 80% of the security holders;

   (c)there was nothing which suggested irregularity in the dispatch of the scheme booklets;

   (d)there was no evidence of any issue which would have deterred security holders from voting at or attending the meetings.

4. Mr Papamatheos drew my attention to an error in the proxy form for the Trust Scheme, namely that there was a set of boxes missing for the second resolution for the Trust Scheme meeting.  This error also appeared in the proxy form contained in the scheme booklet that was approved for dispatch.

5. This error was rectified by OFM dispatching replacement forms promptly and including the correct forms on the PML website.[97] 

   [97] Second affidavit of Paul Campbell filed 20 September 2019, pars 28 - 30.

6. I have reviewed the proxy forms that were lodged by unitholders in respect of the Trust Scheme.[98]  The unitholders either used the updated proxy or adopted a 'self‑help' remedy by drawing in the missing boxes and ticking the relevant box.  All of these proxies were accepted and included in the poll on the resolutions.[99] 

   [98] Fourth affidavit of Paul Campbell filed 25 September 2019, 'PC21'.

   [99] Third affidavit of Paul Campbell filed 23 September 2019, par 24, 32, 'PC16', 'PC18'. 

7. Mr Papamatheos also drew my attention to the manner by which Demar Holdings' securities were voted at the Trust Scheme meeting.  Prior to each of the meetings, Demar Holdings lodged proxy forms. The proxy indicated that Demar Holdings wanted its securities voted in favour of the resolutions.[100]

   [100] Fourth affidavit of Paul Campbell filed 25 September 2019, 'PC22'.

8. Previously, Demar Holdings had lodged with PML a form appointing Ms Skinner as its corporate representative for the purpose of any general meeting of PML.[101]  Ms Skinner attended the Trust Scheme meeting as corporate representative of Demar Holdings and cast its vote in favour of the resolutions.  I note that it is arguable that the corporate representative form lodged for general meetings of PML does not apply to a meeting of unitholders of PMLT.  However, the chairperson of the Trust Scheme meeting accepted the vote of Demar Holdings by its corporate representative without objection and I am satisfied that Demar Holdings' votes were appropriately counted at all meetings in the manner intended by it.

   [101] Third affidavit of Steven Cole filed 26 September 2019, 'SC27'.

9. In the circumstances, I was and am satisfied that there is no issue in relation to the validity of the second resolution that was passed at the Trust Scheme meeting.

10. Accordingly, I was and am satisfied that all statutory pre‑conditions have been met.  I now turn to consider the discretionary considerations.

Good faith and proper purpose

1. There is no evidence that the security holders voted for an improper purpose.  I am satisfied on the evidence that has been filed by PML that the members voted in good faith and for a proper purpose as:

   (a)the purpose of the proposed Schemes is to restructure the Perth Markets business, which is a transaction ordinarily approved by courts.  It does not involve any novel treatment of rights of security holders.  Rather, current security holders will receive a proportionate interest in PMGL to their existing interests.  For this reason, voting in favour of the proposed Schemes is unlikely to be motivated by some improper purpose;

   (b)the independent expert opined that in the absence of an alternate proposal (and none has emerged), the Schemes are in the best interests of security holders; and

   (c)neither ASIC nor any security holder appeared at the second court hearing to object to approval of the proposed Schemes.

Fairness and reasonableness

1. At the first hearing, based on the evidence before the court, I was satisfied that the proposed restructure of the Perth Markets was of such a nature that there was no apparent reason that it should not receive approval if the requisite voting majorities were achieved at the Scheme meeting and Trust Scheme meeting. 

2. Nothing has occurred since the date of the first hearing to change this view.  The security holders who voted at the meeting unanimously supported the proposed Schemes.  No security holder appeared to oppose the orders sought at the second court hearing. I was and am satisfied that the proposed  Schemes are fair and reasonable and are Schemes that sensible business people might consider to be of benefit to security holders. 

All relevant matters brought to the court's attention

1. At the first court hearing, counsel for PML and OFM drew my attention to a number of matters.  These are summarised in these reasons at [67] to [74].

2. There were two further matters that counsel drew my attention to at the second court hearing.  First, evidence was put before the court to demonstrate that the conditions precedent to the Scheme (apart from the court's approval at the second court hearing) have been satisfied or waived.[102] Second, PML sought an exemption from s 411(11) of the Corporations Act. In my view, there is no utility in requiring the court's orders approving the Scheme to be annexed to PML's constitution. As noted by Mr Papamatheos, this exemption has become ordinary practice for transactions of this kind. I considered it was and is appropriate in the circumstances of this case to make the orders sought under s 411(12) of the Corporations Act.

Full and fair disclosure

[102] Third Affidavit of Paul Campbell filed 23 September 2019, pars 38 - 42; Affidavit of Amanda Louise Meloni filed 26 September 2019, 'ALM14', 'ALM15'.

1. At the first court hearing, based on the evidence before the court, I was satisfied that the draft scheme booklet would provide full and fair disclosure to security holders.

2. The additional affidavit evidence filed by PML and OFM establishes that the scheme booklet dispatched to security holders was in the form approved for distribution by the court.  Nothing has arisen to suggest that there has not been full and fair disclosure of all information that was material to the decision of security holders prior to them voting on the Scheme and Trust Scheme.

Oppression of minorities

1. There was no evidence that any minority has been oppressed.

Satisfaction of s 411(17) and ASIC's view

1. ASIC has provided a written statement to the effect that it does not object to the Scheme pursuant to s 411(17)(b) of the Corporations Act.[103] As a result, the requirements of s 411(17) have been satisfied. In any event, having regard to the nature of the proposed restructure, it cannot be said that the Scheme was proposed to avoid the operation of Chapter 6 of the Corporations Act.

Public Policy

[103] Second affidavit of Amanda Louise Meloni filed 26 September 2019, 'AML17'.

1. There is no evidence before the court that the proposed Schemes offend any aspect of public policy.  Given the nature of the proposed Schemes, it is my view that it could not be sensibly suggested that the Schemes offend public policy. 

Conclusion and Orders

1. At the hearing before me, I was satisfied that the substantive and procedural requirements under s 411(1) of the Act had been satisfied and that I should approve the proposed Schemes.

Reservation of liberty to apply

1. PML sought an order for liberty to apply to the court at a later date so that, if it became necessary in the future, it could seek to persuade the court to make orders pursuant to s 413(1) of the Corporations Act.

2. Pursuant to s 413 of the Corporations Act, the court may make orders as set out in s 413(1)(a) ‑ (g) either at the second hearing or subsequently, if the scheme is in connection with a 'reconstruction' of a pt 5.1 body or an 'amalgamation' of two or more pt 5.1 bodies.

3. Mr Papamatheos submitted that the court needed to be satisfied of three matters to enliven the power in s 413(1) of the Corporations Act. The three requirements are:

   (a)first, there is an application for the approval of an arrangement;

   (b)second, the arrangement must be proposed for the purposes of a reconstruction of a pt 5.1 body or an amalgamation of two pt 5.1 bodies;

   (c)third, under the scheme, the whole or any part of the undertaking or property of the pt 5.1 body concerned in the scheme is to be transferred to a company.

4. I accept that this is an accurate summation of the requirements in s 413(1). Turning then to the three requirements, in this case:

   (a)the 'arrangement' is the Scheme that PML has sought approval of at the second court hearing;

   (b)as noted above, the arrangement has been proposed for the purpose of the restructure of PML and related bodies pursuant to which the undertaking of PML is being transferred to PMGL.  That is, under the arrangement the Perth Markets business will be carried on by the same persons who previously conducted the business.  This passes the test set out by Buckley J in Re South African Supply and Cold Storage.[104]  On this basis, it is my view that the restructure of PML pursuant to the Scheme and Trust Scheme fits within the broad concept of a 'reconstruction';

   (c)under the Scheme, the whole of the undertaking of PML is being transferred to PMGL under the Scheme.[105]

   [104] Re South African Supply and Cold Storage [1904] 2 Ch 268, 286. See also Psivida Ltd v New Psivida, Inc; Re Psivida Ltd [2008] FCA 627 [13].

   [105] Scheme, cl 5.3.1, 5.4.

5. For these reasons, I was satisfied that all three requirements were satisfied and that, accordingly, it was appropriate to reserve to PML liberty to apply to the court at a later date for orders pursuant to s 413(1) of the Corporations Act.

Orders

1. For these reasons, at the conclusion of the hearing on 26 September 2019, I made orders in terms of Annexure 'C' to this judgement in respect of the Scheme (COR 164 of 2019) and Annexure 'D' in respect of the directions sought in respect of the Trust Scheme (CIV 2416 of 2019).

   
   

   Annexure 'A' to Reasons

   1.Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (Corporations Act), the plaintiff convene a meeting of holders of fully paid ordinary shares in the capital of the plaintiff to be held at 9:30am (Australian Western Standard Time) on 19 September 2019, at the Market City Commercial Centre, Level 1, Suite 4, 280 Bannister Road, Canning Vale (Scheme Meeting), for the purpose of considering and, if thought fit approving (with or without modification), the proposed scheme of arrangement (Scheme) being the document contained at Annexure SC‑25 (pages 347 to 364) to the affidavit of Steven Cole sworn 22 August 2019.

   2. The explanatory statement contained in Annexure SC-25 (pages 122 to 408) to the affidavit of Steven Cole sworn 22 August 2019 (including all contemplated and completed annexures and notices of meetings) (Scheme Booklet) be and is approved for distribution to members, subject to:

   (a) correction of any minor typographical errors and final typesetting, formatting and page numbering;

   (b) any minor amendments required or approved by the Australian Securities & Investments Commission (ASIC) for registration under section 412(6) of the Corporations Act;

   (c) correction or update of, or as a result of, any relevant date or market price reference;

   (d) completion of the contents page of the Scheme Booklet to list all annexures; and

   (e) inclusion of the Court's orders made in CIV 2416 of 2019 on 23 August 2019 as an annexure.

   3. Subject to these orders, the Scheme Meeting is to be:

   (a) convened, held and conducted in accordance with the plaintiff's constitution and to the extent not inconsistent with the constitution, the provisions of Part 2G.2 of the Corporations Act that apply to members of a company and in particular the provisions that apply to meetings of members;

   (b) convened, held and conducted as if rule 2.15 of the Supreme Court (Corporations) Rules 2004 (WA) does not apply, but that Rule 75-15(2) of the Insolvency Practice Rules (Corporations) 2016 (Cth) does apply; and

   (c) convened using the notice of meeting substantially in the form of the notice contained in Annexure SC-25 (pages 292 to 299) to the affidavit of Steven Cole sworn 22 August 2019.

   4. Subject to registration of the Scheme Booklet with ASIC, pursuant to section 412(6) of the Corporations Act, the plaintiff is to dispatch, on or before 28 August 2019, a document substantially in the form of the Scheme Booklet (approved at order 2 above) and any applicable proxy form (or a link to a website for any electronic proxy lodgement) to shareholders of the plaintiff as follows:

   (a)to each shareholder who has nominated an electronic address for the purposes of receiving notices of meeting from the plaintiff, an email to such address with a covering email text substantially in the form of Annexure B to this minute; and

   (b)to each other shareholder, by pre-paid or ordinary post, mail or courier to the address as set out in the register of the plaintiff's members.

   5. Dispatch in accordance with order 4 on or before 28 August 2019 is taken to be sufficient notice of the Scheme Meeting.

   6. If it comes to the attention of the plaintiff that any email dispatched in accordance with order 4(a) above has returned an undeliverable or undelivered receipt for a shareholder's nominated email address, then, in respect of that shareholder, the plaintiff is to dispatch, within a reasonable time thereafter, a document substantially in the form of the Scheme Booklet and any applicable proxy form in accordance with order 4(b).

   7. Mr Derek Noel La Ferla or, failing him, Mr Dean Prosper Hely is to be authorised to act as chairperson of the Scheme Meeting and report the result of the Scheme Meeting to this Court.

   8. The chairperson may adjourn the Scheme Meeting in his absolute discretion to such time, date and place as he considers appropriate.

   9. At the Scheme Meeting, two shareholders present in person or by proxy, corporate representative or attorney under power of attorney and entitled to vote will constitute a quorum for the Scheme Meeting.

   10. At the Scheme Meeting, each shareholder present and entitled to vote, will be entitled to one vote for each fully paid ordinary share in the capital of the plaintiff that the shareholder is registered as holding at 9:30am on 17 September 2019.

   11. At the Scheme Meeting, voting on the resolutions to approve the Scheme is to be conducted by way of poll.

   12. The time by which proxy forms must be returned or lodged online in accordance with any instructions given on the proxy form is 8:30am (Australian Western Standard Time) on 17 September 2019.

   13. If the matter is to be relisted, then on or before 20 September 2019, the plaintiff is to publish a completed notice of hearing substantially in the form of Annexure 'A' to these orders once in The West Australian newspaper and The Australian newspaper, and the plaintiff is otherwise, to the extent necessary, relieved from compliance with rule 3.4 of the Supreme Court (Corporations) (WA) Rules 2004 (WA).

   14. The proceedings be stood over to 9.00am (Australian Western Standard Time) on 26 September 2019 for the hearing of any application to approve the proposed Scheme.

   15. A copy of these orders be lodged with ASIC as soon as practicable after issue.

   16. The plaintiff shall publish a copy of the email issued to shareholders pursuant to order 4(a) substantially in the form of Annexure B to this minute on its website on 28 August 2019.

   17. These orders be entered forthwith.

   ANNEXURE A

   Perth Markets Limited (ACN 608 334 989)

   Notice of hearing to approve compromise or arrangement

   TO all the members of Perth Markets Limited (ACN 608 334 989) (Perth Markets) and unit holders in the Perth Markets Land Trust.

   TAKE NOTICE that at 9:00a.m. on Thursday 26 September 2019, the Supreme Court of Western Australia at 28 Barrack Street, Perth, Western Australia will hear concurrent applications by:

   ·Perth Markets seeking the approval of an arrangement between Perth Markets and its members as proposed by a resolution passed by the meeting of the members of Perth Markets held on 19 September 2019, at the Market City Commercial Centre, Level 1, Suite 4, 280 Bannister Road, Canning Vale.

   ·One Funds Management Limited (as trustee under the Perth Markets Land Trust) seeking directions as a trustee as to resolutions passed by the meeting of the unitholders of the Perth Markets Land Trust held on 19 September 2019, at the Market City Commercial Centre, Level 1, Suite 4, 280 Bannister Road, Canning Vale.

   If you wish to oppose the approval of the arrangement or the making of the trustee directions, you must file and serve on the plaintiff a notice of appearance, in the prescribed form, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served on the plaintiff at its address for service at least one day before the date fixed for the hearing of the application.

   The address for service of the plaintiff is: c/ Lavan, The Quadrant, Level 18, 1 William Street, Perth WA 6000 (Attention: Lawrence Lee).

   Paul Campbell
   Company Secretary
   Perth Markets Limited

   ANNEXURE B

   Dear Shareholder,

   Perth Markets Limited (PML) is pleased to provide you with a link to the Scheme Booklet, which includes notices of meeting for:

   (a)the Company General Meeting of PML shareholders to be held at 8:00am AWST on 19 September 2019 at Market City Commercial Centre, Level 1, Suite 4, 280 Bannister Road, Canning Vale, WA, 6155 (Market City Centre);

   (b)the Trust Scheme Meeting of Perth Markets Land Trust (PMLT) unitholders to be held at 9:00am AWST on 19 September 2019 at the Market City Centre; and

   (c)the Company Scheme Meeting of PML shareholders to be held at 9:30am AWST on 19 September 2019 at the Market City Centre.

   In addition to the Notice of Company Scheme Meeting referred to above, the Scheme Booklet contains information relating to the Company Scheme, the inter-related Trust Scheme, the Independent Expert's Report, the associated notices of Trust Scheme Meeting and General Company Meeting and the reasons for the Directors' recommendation.

   The Scheme Booklet is important and requires your prompt attention.

   You should read it in its entirety, and consider its contents carefully, before deciding whether or not to vote in favour of the Schemes. If you are in any doubt about what you should do, you should consult with a financial, legal, taxation or other professional adviser.

   1.Access to the Scheme Booklet

   As you have elected to participate in our electronic communications programme, the Scheme Booklet and notices of meeting (which are Annexures of the Scheme Booklet) are attached to this email by link.

   2.Lodging your proxy

   Instructions for how to lodge your proxy for each of the Company Scheme Meeting, Trust Meeting and General Company Meeting are contained on the relevant notices of meeting and proxy forms within the Scheme Booklet.

   Your proxy forms for each meeting must be lodged no later than 8:00am AWST on 17 September 2019. The notices of meetings and proxy forms provide further details on appointing proxies and lodging the proxy forms.

   If you have any problems accessing these documents please contact Perth Markets Limited's Company Secretary, Paul Campbell, on [phone] between 8.00am AWST and 5.00pm AWST Monday to Friday or by email to [email protected]

   If approved by the shareholders and unitholders, the Supreme Court will hear applications by PML and the official trustee of the PMLT at 9.00am AWST on 26 September 2019 for court orders to approve the Schemes.

   Paul Campbell
   Company Secretary
   Perth Markets Limited

Annexure 'B' to Reasons

1.The plaintiff be excused from any requirement under section 92(2) of the Trustees Act 1962 (WA) or Order 58 rule 4(a) of the Rules of the Supreme Court 1971 (WA) to serve the Originating Summons dated 8 August 2019 and the supporting affidavit material on the PMLT Unitholders.

2.Pursuant to section 92(1) of the Trustees Act 1962 (WA):

(a) the plaintiff as trustee for the Perth Market Land Trust (PMLT) is justified in convening a meeting of the unitholders of the PMLT (Trust Scheme Meeting) for the purpose of considering and, if thought fit, agreeing to the resolutions set out in the Notice of Trust Meeting contained in the explanatory memorandum (Scheme Booklet) forming Annexure SC-25 (pages 122 to 408) to the affidavit of Steven Cole sworn 22 August 2019 and filed in action COR 164 of 2019;

(b) the plaintiff is justified, prior to the Trust Scheme Meeting, in distributing an explanatory statement substantially in the form of the Scheme Booklet to all of the unitholders of the PMLT; and

(c) subject to the unitholders of PMLT passing the resolutions at the Trust Scheme Meeting, the plaintiff is justified in proceeding on the basis that the making of proposed alterations to the PMLT Constitution, as set out in annexure to the Scheme Booklet, and in the manner generally proposed following approval of the Trust Scheme Resolutions, would be within the powers of alteration of the trustee as conferred by the PMLT Constitution.

3.Any person who claims that his or her rights as a unitholder will be prejudiced by the alterations to the PMLT, the Corporate Restructure and by the plaintiff, with Perth Markets Limited and Perth Markets Group Limited, effecting the proposal for the acquisition of all the units in the PMLT, as set out in the Scheme Booklet, may, on or before 26 September 2019 at 9:00am apply to the Hon Justice Hill at the Supreme Court of Western Australia for such orders or such directions as the circumstances require.

4.There be liberty to apply on 48 hours written notice.

Annexure 'C' to Reasons

1.Pursuant to section 411(4)(b) of the Corporations Act 2001 (Cth) (Corporations Act), the scheme of arrangement between the plaintiff and its members, in the document contained at pages 230 to 246 of Annexure "PC-9" of the second affidavit of Paul Campbell sworn on 20 September 2019, is approved.

2.Pursuant to section 411(12) of the Corporations Act, the plaintiff is exempted from compliance with section 411(11) of the Corporations Act in relation to the scheme of arrangement referred to in paragraph 1.

3.Liberty be reserved to the plaintiff, Perth Markets Group Limited or any director or officer of Perth Markets Group Limited, and each of them are able to apply for other or any consequential orders as may be considered necessary or desirable under section 413 of the Corporations Act.

4.The plaintiff lodge an office copy of these orders with ASIC as soon as practicable after issue.

5.By 4pm on Thursday, 26 September 2019 the plaintiff file a further affidavit annexing the Corporate Representative Form signed by Ms Patricia Skinner as the corporate representative of Demar Holdings Pty Ltd.

6.These orders be entered forthwith.

Annexure 'D' to Reasons

1.Pursuant to section 92(1) of the Trustees Act 1962 (WA), the plaintiff, as trustee for the Perth Market Land Trust (PMLT), is justified in:

(a) acting upon the approved resolutions of the unitholders of the PMLT set out in the Notice Trust Scheme Meeting (contained in pages 184 to 191 of Annexure "PC-9" to the second affidavit of Paul Campbell sworn 20 September 2019 and filed in action COR 164 of 2019); and

(b) in doing all things and taking all necessary steps to put the proposal described in the PMLT Deed Poll (contained in pages 193 to 228 of Annexure "PC-9" to the second affidavit of Paul Campbell sworn 20 September 2019 and filed in action COR 164 of 2019) into effect in accordance with its terms.

2.These orders be entered forthwith.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MG
Research Orderly to the Honourable Justice Hill

15 NOVEMBER 2019