Re APN Property Group Ltd and APN RE Ltd - [2021] VSC 389

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:	Riordan J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June 2021
DATE OF JUDGMENT:	15 June 2021
CASE MAY BE CITED AS:	In the matters of APN Property Group Ltd and APN RE Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 389

---

CORPORATIONS LAW — Members’ scheme of arrangement — Where order sought under s 411(1) of the Corporations Act 2001 (Cth) — Preconditions for orders convening a meeting – Discretionary considerations considered — Orders that a meeting be convened.

TRUSTEES – Judicial advice under r 54.02(2)(c) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Whether trustee justified in convening a meeting of trust unitholders for the purpose of considering a proposed acquisition of units — Orders that the trustee was justified in convening a meeting.

---

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

HIS HONOUR:

The plaintiff in proceeding S ECI 2021 01961 (‘APN PG’) is a corporation operating as a specialist real estate investment manager.
The plaintiff in proceeding S ECI 2021 01963 (‘APN RE’) is the responsible entity of the APD Trust, which is a registered managed investment scheme.
As at 11 May 2021, there were 329,548,043 shares in APN PG and the same number of units in the APD Trust (collectively referred to as ‘APD Securities’). The shares and the units are stapled together and admitted to the Official List of the Australian Securities Exchange under the ticker code ‘APD’. The holders of the APD Securities are collectively referred to as ‘APD Security Holders’.
By Scheme Implementation Deed dated 11 May 2021, APN PG and APN RE entered into an agreement with Dexus Nominee Pty Ltd (‘the Bidder’) and Dexus Funds Management Ltd (‘the Guarantor’) under which the Bidder would acquire 100% of the APD Securities (‘the Proposed Transaction’).
Under the Proposed Transaction, the following two schemes are proposed:
(a)the shares in APN PG would be acquired by the Bidder pursuant to a scheme of arrangement (‘the APN PG Scheme’); and
(b)the units in the APD Trust would be acquired by amendments to the constitution of the APD Trust to give effect to a trust scheme (‘the Trust Scheme’),
(collectively referred to as ‘the Schemes’).
By originating process filed 7 June 2021 in proceeding S ECI 2021 01961, APN PG applies for orders under ss 411 and 1319 of the Corporations Act 2001 (Cth) (‘the Act’) including, with respect to…

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 Ltd and APN RE Ltd 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 389
Decision Date: 15 June 2021

CaseChat Overview and Summary

In the case of Re APN Property Group Ltd and APN RE Ltd, the court was presented with a dispute involving the application for an order under section 411(1) of the Corporations Act 2001 (Cth) to convene a meeting of members of APN Property Group Ltd and APN RE Ltd. The primary focus was on whether the preconditions for such an order were satisfied and if the discretionary considerations warranted convening the meeting.

The central legal issues revolved around the interpretation and application of section 411 of the Corporations Act, specifically whether the court should exercise its discretion to order a meeting of members. The court also had to consider the advice provided to the trustee by a judicial officer under rule 54.02(2)(c) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), which addressed whether the trustee was justified in convening a meeting to consider a proposed acquisition of units.

In its decision, the court found that the preconditions for convening the meeting were indeed met. The court emphasised the importance of the statutory provisions and the role of the judicial officer's advice in its decision-making process. It concluded that the trustee was justified in convening the meeting, thereby upholding the trustee’s decision. The court granted the orders that a meeting be convened and that the trustee was justified in convening the meeting.

The final orders of the court mandated that the meeting be convened, affirming the trustee's actions and providing clarity on the procedural steps required under the relevant sections of the Corporations Act and the Supreme Court Rules.

Orders