Re APN Property Group Ltd and APN RE Ltd
[2021] VSC 389
•15 June 2021
| 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 |
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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 |
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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.
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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 this first hearing:
1An order pursuant to subsection 411(1) of the Corporations Act that APN PG convene a meeting of APD Shareholders for the purposes of considering and, if thought fit, agreeing to (with or without modification) the APN PG Scheme (APN PG Scheme Meeting).
2Directions pursuant to section 1319 of the Corporations Act as to the manner in which the APN PG Scheme Meeting is to be convened and conducted, the place at which the APN PG Scheme Meeting is to be held, and the persons authorised to act as Chairperson and alternate Chairperson at the APN PG Scheme Meeting.
By originating process filed the same date in proceeding S ECI 2021 01963, APN RE applies for orders under r 54.02(2)(c) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’) including, with respect to this first hearing:
1Directions pursuant to rule 54(2)(c) [sic] of the Rules on whether APN RE is justified in convening a meeting of Trust Unitholders for the purpose of the Trust Unitholders considering the proposed Trust Scheme Resolutions (as defined in the SID) and, if thought fit, agreeing (with or without modification) to the proposed transaction under which the units in APD Trust will be acquired through the Trust Scheme.
2Directions pursuant to rule 54(2)(c) [sic] of the Rules on whether APN RE is justified in distributing:
(a)an explanatory memorandum (Scheme Booklet) to Trust Unitholders which, among other things, explains the purpose and effect of the Trust Scheme; and
(b) a proxy form, together with the Scheme Booklet.
3Directions pursuant to rule 54(2)(c) [sic] of the Rules as to whether APN RE is justified in proceeding on the basis that the making of amendments to the constitution of APD Trust would be within the powers of alteration conferred by the constitution of APD Trust and s 601 of the Corporations Act 2001 (Cth) (the proposed amendments are set out in the APD Trust Supplemental Deed (which is Annexure E to the Scheme Booklet) and are to be made by APN RE in its capacity as responsible entity of the APD Trust as part of the proposed transaction following approval of the Trust Scheme Resolutions and the resolution to approve the APN PG Scheme by APD Shareholders (as those terms are defined in the SID)).
The Schemes
If the Schemes are approved and implemented:
(a)the Bidder will acquire all of the APD Securities on payment to the APD Security Holders of 90 cents for each APD Security (‘the Scheme Consideration’); and
(b)the distribution of 1.5 cents per APD Security to each APD Security Holder, announced on 11 June 2021, will still be paid on 30 July 2021 (‘the Permitted Distribution’).
Legislative preconditions with respect to the APN PG Scheme
Part 5.1 of the Act provides for procedures for arrangements and reconstructions between a company and its members, which can be binding on all members. The procedure contemplates three stages, being:
(a)an application to a court for an order to convene a scheme meeting;
(b)the conduct of the scheme meeting; and
(c)an application to a court to approve the scheme.
With respect to the first stage, the Court may order a meeting to be convened providing it is satisfied, relevantly on the current application, that:
(a)as prescribed by s 411 of the Act:
(i)APN PG has made the application in relation to an arrangement that is proposed between a company (being a pt 5.1 body) and its members; and
(ii)fourteen days’ notice of the hearing of the application has been given to the Australian Securities and Investments Commission (‘ASIC’); and ASIC has had a reasonable opportunity to examine the terms of the proposed arrangement and the draft explanatory statement, and to make submissions to the Court; and
(b)as prescribed by r 3.2 of the Supreme Court (Corporations) Rules 2013 (Vic), the plaintiff has filed an affidavit with the requisite information about the chairperson and alternate chairperson for the scheme meeting.
On the evidence, the Court’s discretion has been enlivened because:
(a)the application is in relation to a scheme to effect an acquisition of shares from APN PG’s members, which is an arrangement within the meaning of the section;[1]
(b)the requisite notice has been given to ASIC which, by letter dated 14 June 2021, has stated that it ‘does not currently propose to appear to make submissions, or intervene to oppose the Scheme, at the first hearing under subsection 411(1) of the Act’; and
(c)by affidavits of Mr Christopher Aylward and Mr Clive Appleton both affirmed 10 June 2021, information with respect to the chairperson and the alternate chairperson has been provided.
[1]See, eg, Re Foundation Healthcare Ltd (2002) 42 ACSR 252, 264 [39] (French J).
Discretionary factors with respect to the APN PG Scheme
On this application to convene the scheme meeting, the Court should consider the merits and fairness of the proposed scheme only to the extent of identifying whether there is an issue that ‘is such as would unquestionably lead to a refusal to approve a proposed scheme at the approval hearing, that is, the proposed scheme appears now to be on its face “so blatantly unfair or otherwise inappropriate that it should be stopped in its tracks before going any further”’.[2] Otherwise, the Court should confine itself to ensuring that procedural and substantive requirements for the calling of and the conduct of the meeting will be met and in particular:
(a)whether the scheme is fit for consideration by the members such that, if it is agreed to by the members, the Court would be likely to approve it at the second court hearing; and
(b)whether members are properly informed as to the nature of the scheme.[3]
[2]Re Healthscope Ltd (2019) 139 ACSR 608, 615 [45] (Beach J), quoting Re Foundation Healthcare Ltd (2002) 42 ACSR 252, 265 [44] (French J).
[3]Re Healthscope Ltd (2019) 139 ACSR 608, 615 [45]-[46].
Scheme is fit for consideration by the members
In my opinion, the APN PG Scheme is fit for consideration by its members, for the following reasons.
The Proposed Transaction is recommended by all directors.
The independent expert report by KPMG Financial Advisory Services (Australia) Pty Ltd valued each APD Security between 82 and 93 cents and assessed the Schemes to be fair and reasonable.
The performance risk is acceptable because:
(a)the obligation to transfer the APD Securities is subject to the Bidder first providing the Scheme Consideration; and
(b)the Bidder and the Guarantor have executed a deed poll in favour of the APD Security Holders binding them to comply with the Schemes, including paying the Scheme Consideration.
Clause 8 of the Scheme Implementation Deed provides that APD must pay the Bidder a break fee of $3 million in limited circumstances, including:
(a)if a third party acquires all or the majority of the APD Securities after publicly announcing a competing proposal before the second court hearing;
(b)the directors withdraw or adversely modify their recommendation in favour of the resolutions; or
(c)the Bidder terminates the Scheme Implementation Deed for material breach by APD.
I do not consider the break fee to be excessive or coercive in nature, for the following reasons:
(a)It would be unlikely to influence voting at the meeting because it is not payable if the APD Security Holders reject the scheme.
(b)It does not exceed 1% of the equity value of APD.[4]
(c)It was the subject of commercial arms-length negotiations.
(d)It is fully disclosed in the Scheme Booklet.
[4]Accordingly, it is within the relevant guidelines given by the Takeovers Panel, Australian Government, Guidance Note 7 - Lock-up devices (Issue 4, 11 February 2010) 3 [9].
I do not consider that the exclusivity provisions are unreasonable. The exclusivity period under the Scheme Implementation Deed is six months from the date of the deed. The exclusivity provisions are subject to the directors’ fiduciary and statutory duties and are clearly disclosed in the Scheme Booklet.
I do not consider that the Permitted Distribution constitutes financial assistance to the Bidder to acquire the APD Securities within the meaning of s 260A of the Act for the following reasons:
(a)The Bidder is not currently an APD Security Holder and will not receive the Permitted Distribution.
(b)The effect of the Permitted Distribution is only to reduce the consideration payable in accordance with the reduction to the net assets of APD consequential on the distribution.
(c)The declaration of the Permitted Distribution is at the election of APD.
APD operates a number of employee share incentive schemes under which, on satisfaction of performance hurdles, either APD Securities or ‘Restricted Securities’ (being APD Securities which are the subject of a non-recourse loan) vest in the relevant employee. I am satisfied that the relevant employees, who have entitlements under share incentive schemes, are not a separate class from the other APD Security Holders because the legal rights of these security holders are not so dissimilar as to make it impossible for them to consult with the other security holders with a view to their common interest. Each participant in the scheme will receive the same consideration and will be treated equally under the scheme. As Robson J observed in Re Skilled Group Ltd (No 1):
I am satisfied that the performance rights or options held by some employees do not give rise to a separate class of members. It is worth noting at the outset that the rights will not vest until after the meeting to approve the scheme is held. Accordingly, the issue of additional shares will not influence the voting at the meeting directly. The question is whether the rights and options themselves (and the prospect of additional shares upon their vesting) gives rise to a divergence of interests with other shareholders. I do not consider that it does. The shares to be issued if the rights or options vest are not of a different type than those of other shareholders. Moreover, it appears to me that the employees with performance rights or options are in no different position from any other employee of the company who would be impacted by the scheme’s implementation in different ways on the basis of various interests extraneous to their status as members.[5]
[5](2015) 113 ACSR 525, 542 [82].
As Beach J stated in Re Healthscope Ltd, the relevant question is whether the rights of the relevant shareholders are:
… so dissimilar from the rights of the other … shareholders as to make it impossible for them to consult together with a view to their common interest. Or put another way, do the differences in rights … mean that any community of interest between them has been displaced for the purposes of them considering and voting upon the proposed Scheme… .[6]
[6](2019) 139 ACSR 608, 628 [107].
Further, the directors are not receiving any additional financial benefit if the Schemes are approved. I accept the plaintiffs’ submission that even the unvested employee rights of the director, Mr Slattery, will not be enhanced by the approval of the Schemes.
The chairman of the board of APD, Mr Aylward, has entered into a call option deed with the Bidder with respect to a portion of the APD Securities held by two companies of which he is a director, representing 19.9% of the total APD Securities on issue. The exercise price under the call option deed is the same price as that to be paid by the Bidder under the Schemes. The evidence establishes that this deed was a requirement of the Bidder and I am satisfied that it does not confer any additional benefit on Mr Aylward.
Section 4.3.3 of the Scheme Booklet identifies conditions precedent. The evidence is that there is no fact, matter or circumstance that is likely to result in the failure of any of the conditions precedent.
Members will be properly informed as to the nature of the scheme
Section 412(1) of the Act prescribes the disclosure requirements of the explanatory statement. To the extent that s 412 requires disclosure of ‘such information as is prescribed’, reg 5.1.01 and pt 3 of sch 8 of the Corporations Regulations 2001 (Cth) sets out such prescribed information and the documents that must accompany the explanatory statement.
The plaintiffs contended that the explanatory statement in Scheme Booklet includes all prescribed information and, in those circumstances, a court would ordinarily be satisfied that the information to be provided to shareholders was adequate for the purposes of convening a meeting.[7] The plaintiffs submitted as follows:
(a)first, the explanatory statement must explain the effect of the compromise or arrangement, and in particular state any material interest of the directors, and the effect on those interests of the compromise or arrangement so far as it is different from the effect on the like interests of other persons. The effect of the Schemes is addressed in section 5 and 7 of the Scheme Booklet, and the required information in relation to the material interests of Directors is addressed in sections 8.14 – 8.17 of the Scheme Booklet;
(b)secondly, the explanatory statement must set out the prescribed information, being the information set out in reg 5.1.01 and Schedule 8 of the Regulations. This requirement has been satisfied;
(c)thirdly, the explanatory statement must set out any other information that is material to the making of a decision whether or not to agree to the compromise or arrangement. In this respect, it is submitted that the Scheme Booklet is clear and comprehensive, and (along with the IER) contains a detailed evaluation of the Schemes, presented in a way that enables an APD Securityholder to form his or her own view of the merits of the Schemes.
[7]See, eg, Re Foundation Healthcare Ltd (2002) 42 ACSR 252, 263-4 [38] (French J); Re Opes Prime Stockbroking Ltd (No 2) (2009) 179 FCR 20, 43 [94]-[99] (Finkelstein J).
I am satisfied that the evidence supports the plaintiffs’ submission. In particular, I have had regard to:
(a)the checklist exhibited to the affidavit of Ms Susannah Macknay sworn 11 June 2021; and
(b)the fact that the draft explanatory statement was provided to ASIC on 27 May 2021, and that by letter dated 14 June 2021, ASIC confirmed it has had a reasonable opportunity to examine it in accordance with ASIC policy contained in ‘Regulatory Guide 60 Schemes of arrangement’ and does not currently oppose the scheme.
The Trust Scheme
The Trust Scheme requires an amendment to the constitution of the APD Trust, which may be effected by a combination of:
(a)section 601GC(1)(a) of the Act, which provides that the constitution of a registered scheme may be modified by special resolution, being at least 75% of the votes cast by members entitled to vote;[8] and
(b)section 611, item 7 of the Act, which provides for an exception to the prohibition of increasing a person’s voting power in a target company above 20% in s 606(1) of the Act, if the members of the target company approve the acquisition by ordinary resolution at a general meeting (being 50% or more of the votes cast).
[8]See Corporations Act 2001 (Cth) s 9 (definition of ‘special resolution’).
Accordingly, it is necessary for APN RE to convene a meeting in accordance with pt 2G.4 of the Act.
Although s 411 of the Act does not apply to a registered managed investment scheme, a responsible entity may seek judicial advice, in a two stage process, that it is justified in implementing a proposed trust scheme similar to that which applies to a scheme under pt 5.1 of the Act.[9]
[9]Re Mirvac Funds Management Ltd [2014] NSWSC 1569, [2] (Black J).
On this first hearing, the plaintiff seeks judicial advice pursuant to r 54.02(2) of the Rules that it is justified in convening a meeting of unitholders in the APD Trust for the purposes of considering the proposed amendments to the constitution in order to implement the Trust Scheme.
Rule 54.02(2) of the Rules provides that a proceeding may be brought for:
(a)the determination of any question which could be determined in an administration proceeding …
…
(c) an order—
(i) approving any sale, purchase, compromise or other transaction by an executor, administrator or trustee; or
(ii) directing any act to be done in the administration of an estate or in the execution of a trust which the Court could order to be done if the estate or trust were being administered or executed under the direction of the Court.
I accept the plaintiffs’ submission that, having regard to similar considerations that support an application under s 411 of the Act, in answering the relevant question of whether the trustee is justified in putting the Trust Scheme to the beneficiaries, it is appropriate to grant the judicial advice sought with respect to the convening of the Trust Scheme meeting.
Online platform
I also accept the plaintiffs’ submission that, pursuant to ss 411 and 1319 of the Act, I should order that each of the scheme meetings be held virtually, through an online platform, and that there should be no physical meetings. The conduct of the meetings through an online platform ‘will facilitate the efficient implementation of a proposed commercial restructuring transaction according to law in the difficult circumstances posed by Covid-19’.[10]
[10]Re Avita Medical Ltd [2020] FCA 592, [8] (Jagot J), quoted with approval in Re Sienna Cancer Diagnostics Ltd [2020] FCA 899, [11] (Moshinsky J).
Orders
Accordingly, on 15 June 2021 in proceeding S ECI 2021 01961, I ordered as follows:
1Pursuant to rule 2.13(1) of the Supreme Court (Corporations) Rules 2013 (Vic) (the Rules), Dexus Nominee Pty Ltd and Dexus Funds Management Limited have leave to be heard in the proceeding without becoming a party to it.
2Pursuant to sections 411(1) and 1319 of the Corporations Act 2001 (Cth) (the Act):
(a)the plaintiff, APN Property Group Limited (ACN 109 846 068) (APN PG) convene and hold a meeting (APN PG Scheme Meeting) of holders of fully paid ordinary shares in APN PG (APD Shareholders) for the purposes of considering and, if thought fit, agreeing (with or without modification) to a scheme of arrangement (APN PG Scheme) proposed between APN PG and APD Shareholders, the terms of which are set out in Annexure A to these orders;
(b)the APN PG Scheme Meeting is to be held at 10:00 am on 27 July 2021 (Melbourne time) and is to be conducted electronically through an online platform without APD Shareholders being physically present, such online platform to be accessed via the following web address
3The APN PG Scheme Meeting be convened by sending on or before the date that is at least 28 days prior to the APN PG Scheme Meeting:
(a)an email to the nominated email address of each APD Shareholder who has elected to receive communications from APN PG electronically (Email Shareholder), with such email to contains links to:
i.an electronic copy of a document substantially in the form of the Scheme Booklet at Exhibit 1 (which contains, among other things, the proposed APN PG Scheme at Annexure D and a Notice of Meeting at Annexure A) (Scheme Booklet);
ii.an online portal or website that is accessible by the Email Shareholder and which enables the Email Shareholder to lodge their proxy for the APN PG Scheme Meeting online; and
iii.an online portal or website that enables APD Shareholders to participate virtually in the APN PG Scheme Meeting;
(b)the following hard-copy documents to each APD Shareholder who is not an Email Shareholder (Hard Copy Shareholder):
i.a document substantially in the form of the Scheme Booklet;
ii.a personalised proxy form for the APN PG Scheme Meeting, substantially in the form of the document that is at page 165 of exhibit SCM-1 to the affidavit of Susannah Macknay sworn on 11 June 2021 (Proxy Form), and a pre-addressed envelope for the return of completed Proxy Form.
4 The documents referred to in paragraph 3(b) be sent:
(a)in the case of Hard Copy Shareholders whose postal address is shown on the register of members of APN PG as being within Australia, by pre-paid ordinary post to that address; and
(b)in the case of Hard Copy Shareholders whose postal address is shown on the register of members of APN PG as being outside Australia, by airmail to that address.
5APN PG is not obliged to send documents in the form, or substantially in the form, of those described in paragraph 3 to any person who becomes an APD Shareholder after 9:00 am on 16 June 2021.
6Compliance with r 2.15 of the Rules be dispensed with, except in so far as that rule applies rule 75-15(2) of the Insolvency Practice Rules (Corporations) 2016 (Cth).
7 Pursuant to section 1319 of the Act:
(a)APN PG may determine that, for the purposes of the APN PG Scheme Meeting, all the shares in APN PG be taken to be held by the person, persons or bodies corporate who held them as at 10:10 am (Melbourne time) on 25 July 2021, in accordance with the register held and maintained by APN PG;
(b)a proxy in respect of the APN PG Scheme Meeting will be valid and effective if, and only if, a Proxy Form is completed and delivered in accordance with its terms or a proxy is lodged online in accordance with the instructions by 10:10 am (Melbourne time) on 25 July 2021;
(c)the Chairperson of the APN PG Scheme Meeting be Christopher Aylward or in his absence, Clive Appleton;
(d)the Chairperson of the APN PG Scheme Meeting shall have the power to adjourn the meeting in his absolute discretion to such time, date and place (including as to whether the adjourned meeting should be held electronically) as he considers appropriate; and
(e)voting on the resolution to agree to the APN PG Scheme is to be conducted by way of a poll.
8 Compliance with rule 3.4 and Form 6 of the Rules is dispensed with.
9Subject to the requisite majorities of APD Shareholders voting in favour of the APN PG Scheme at the APN PG Scheme Meeting, APD publish a Notice of Hearing in The Australian newspaper, in substantially the form that appears at Annexure ‘B’ hereto not later than 5 days prior to the date fixed for the hearing of any application to approve the APN PG Scheme.
10This proceeding (APN PG Scheme Proceeding) be heard together with proceeding S ECI 2021 01963 (Trust Scheme Proceeding).
11Evidence in the APN PG Scheme Proceeding be evidence in the Trust Scheme Proceeding.
12 The inquiry required by rule 16.6 of the Rules take place on 29 July 2021.
13The further hearing of the originating process is adjourned to 10:15 am on 4 August 2021 for the hearing of any application for orders approving the APN PG Scheme.
14 The plaintiff has liberty to apply.
Further, on 15 June 2021 in proceeding S ECI 2021 01963, I ordered as follows:
1Pursuant to rule 54.02(2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules), the plaintiff, APN RE Limited (ACN 627 612 202) in its capacity as the responsible entity for the APD Trust (APN RE), is justified in:
(a)convening and holding a meeting (Trust Scheme Meeting) of the holders of units in the APD Trust (Trust Unitholders) for the purpose of the Trust Unitholders considering and, if thought fit, agreeing (with or without modification) to the proposed amendments to the Constitution of the APD Trust as set out the APD Trust Supplemental Deed (a copy of which is at Annexure E to the Scheme Booklet which is Exhibit 1 (Scheme Booklet)) pursuant to which the ordinary units in APD Trust will be acquired by Dexus Nominee Pty Ltd (Trust Scheme); and
(b)holding the Trust Scheme Meeting at 10:10 am on 27 July 2021 (Melbourne time) or immediately following the APN PG Scheme Meeting, whichever is the later, the meeting to be conducted electronically through an online platform without Trust Unitholders being physically present, such online platform to be accessed via the following web address RE is justified in distributing to Trust Unitholders a document substantially in the form of the Scheme Booklet (which includes an explanatory statement in relation to the Trust Scheme as well as a Notice of Meeting for the Trust Scheme Meeting) by sending on or before the date that is at least 28 days prior to the APN PG Scheme Meeting:
(a)an email to the nominated email address of each Trust Unitholder who has elected to receive communications from APN RE electronically (Email Unitholder), with such email to contains links to:
(i)an electronic copy of a document substantially in the form of the Scheme Booklet;
(ii)an online portal or website that is accessible by the Email Unitholder and which enables the Email Unitholder to lodge their proxy for the Trust Scheme Meeting online; and
(iii)an online portal or website that enables Trust Unitholders to participate virtually in the Trust Scheme Meeting;
(b)the following hard-copy documents to each Trust Unitholder who is not an Email Unitholder (Hard Copy Unitholder):
(i)a document substantially in the form of the Scheme Booklet;
(ii)a personalised proxy form for the Trust Scheme Meeting substantially in the form of the document that is at page 165 of exhibit SCM-1 to the affidavit of Susannah Macknay sworn on 11 June 2021 (Proxy Form), and a pre-addressed envelope for the return of completed Proxy Form.
3 The documents referred to in paragraph 2(b) be sent:
(a)in the case of Hard Copy Unitholders whose postal address is shown on the register of unitholders of APN RE as being within Australia, by pre-paid ordinary post to that address;
(b)in the case of Hard Copy Unitholders whose postal address is shown on the register of unitholders of APN RE as being outside Australia, by airmail to that address.
4APN RE is not obliged to send documents in the form, or substantially in the form, of those described in paragraph 2 to any person who becomes a Trust Unitholder after 9:00 am on 16 June 2021.
5The time by which a Proxy Form is completed and delivered in accordance with its terms or a proxy is lodged online in accordance with the instructions for the Trust Scheme Meeting is on 25 July 2021 at 10:10 am (Melbourne time).
6APN RE is justified in proceeding on the basis that the making of amendments to the constitution of the APD Trust as set out in the APD Trust Supplemental Deed at Annexure E to the Scheme Booklet, to be made by APN RE in its capacity as responsible entity of the APD Trust following approval of the resolutions to be put to Trust Unitholders at the Trust Scheme Meeting, would be within the powers of alteration conferred by the Constitution of the APD Trust and by s 601GC(1) of the Corporations Act 2001 (Cth).
7This proceeding (Trust Scheme Proceeding) be heard together with proceeding S ECI 2021 01961 (APN PG Scheme Proceeding).
8Evidence in the APN PG Scheme Proceeding be evidence in the Trust Scheme Proceeding.
9This proceeding be adjourned to 10:15 am on 4 August 2021 for the hearing of any application by APN RE that, having regard to the results of the Trust Scheme Meeting, it is justified in implementing the Trust Scheme.
10Any person who claims that their rights as a Trust Unitholder of the APD Trust will be prejudiced by the proposed amendments to the Constitution of the APD Trust as set out the APD Trust Supplemental Deed at Annexure E to the Scheme Booklet or by APN RE implementing the Trust Scheme may apply to the Court at or before the hearing on 4 August 2021 for such orders or directions as the circumstances may require.
11 The plaintiff has liberty to apply.
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