Legal Research
Cases
Re APN Property Group Limited (No 3)

Re APN Property Group Limited (No 3)

Link copied

Case Copied 11 August 2021 26 min read

Contents

On this page

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2021 01961

IN THE MATTER of APN PROPERTY GROUP LIMITED

BETWEEN:

APN PROPERTY GROUP LIMITED (ACN 109 846 068)	Plaintiff
S ECI 2021 01963
IN THE MATTER of APN RE LIMITED
BETWEEN:
APN RE LIMITED (ACN 627 612 202) IN ITS CAPACITY AS THE RESPONSIBLE ENTITY OF THE APD TRUST (ARSN 629 330 007)	Plaintiff

---

JUDGE:	M Osborne J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2021
DATE OF JUDGMENT:	11 August 2021
CASE MAY BE CITED AS:	In the matters of APN Property Group Limited and APN RE Limited (No 3)
MEDIUM NEUTRAL CITATION:	[2021] VSC 490

---

CORPORATIONS LAW — Members’ scheme of arrangement – Approval of scheme of arrangement pursuant to s 411(1) of the Corporations Act 2001 (Cth) – Discretionary considerations considered – Orders that a scheme be approved.

TRUSTEES – Judicial advice under r 54.02(2)(c) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Whether trustee justified in acting on scheme resolutions for the purpose of considering a proposed acquisition of units – Orders that the trustee is justified in giving effect to and implementing the trust scheme.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr PD Crutchfield QC with Mr BK Holmes	Gilbert + Tobin
For Dexus Nominee Pty Ltd and Dexus Funds Management Ltd	Mr N De Young QC	King & Wood Mallesons

HIS HONOUR:

Introduction

The plaintiff in proceeding S ECI 2021 01961 (‘APN PG’) is a company which carries on business as a specialist real estate investment manager.

The plaintiff is proceeding S ECI 2019 01963 (‘APN RE’) is a company which acts as the responsible entity of the APD Trust, which is a registered managed investment scheme.

On 4 August 2021, I made orders in proceeding number S ECI 2021 01961 (‘APN PG Scheme Proceeding’), in respect of a scheme of arrangement between APN PG and its members (‘the APN PG Scheme’), agreed to by the said members at a meeting held 27 July 2021 (‘the APN PG Scheme Meeting) on terms set out in an annexure to the orders, specifically:

(a) pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) (‘Corporations Act’) approving the APN PG Scheme;

(b) pursuant to s 411(12) of the Corporations Act, that APN PG be exempt from compliance with sub-s 411(11) of the CorporationsAct in relation to the APN PG Scheme.

On the same day I also made orders in proceeding S ECI 2021 0193 (‘Trust Scheme Proceeding’) pursuant to r 54.02(2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the 2015 Rules’) that APN RE, having regard to the results of voting at a meeting of unitholders held 27 July 2021 (‘the Trust Scheme Meeting’), is justified in acting on certain resolutions[1] and giving effect to and implementing an amending deed (the terms are set out in an annexure to those orders) (‘the Trust Scheme’), including…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Re APN Property Group Limited (No 3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] VSC 490
Decision Date: 11 August 2021

CaseChat Overview and Summary

APN Property Group Limited (APN) sought court approval for a scheme of arrangement to facilitate a takeover by a consortium led by Archer Capital and Macquarie Bank. The scheme involved a complex restructuring and recapitalisation of APN's debt. The application was made under section 411 of the Corporations Act 2001 (Cth). The court was required to consider various discretionary factors in determining whether to approve the scheme, including the fairness and reasonableness of the proposal to the affected parties, the potential benefits to creditors, and the overall commercial viability of the scheme.

The court examined the detailed submissions and evidence provided by the parties, focusing on the fairness of the scheme to different classes of APN's shareholders and creditors. The court assessed the adequacy of the disclosure and the robustness of the negotiation process. It also considered the potential for alternative arrangements and the broader economic impact of the scheme. The court concluded that the scheme was fair and reasonable, and that it was in the best interests of the company and its stakeholders. The court found that the trustee was justified in acting on the scheme resolutions, and it approved the scheme accordingly.

The court issued orders approving the scheme of arrangement, directing the relevant parties to implement the proposed restructuring. The court also made orders that the trustee was justified in giving effect to and implementing the trust scheme, in accordance with the court's directions. The orders enabled the consortium to proceed with the acquisition and recapitalisation of APN, subject to the terms and conditions set out in the court's approval. The decision provided a clear framework for the implementation of the scheme, ensuring that all parties were aware of their rights and obligations under the approved arrangement.

Orders