Re Macquarie Private Capital A Ltd

Macquarie Private Capital A Limited applied to the court for orders to approve a proposal for interlinked schemes of arrangement and an amendment of the managed investment scheme constitution. The proposal involved the acquisition of "stapled securities" by an outside party for cash. The court was required to determine whether a potential voting restriction affecting one security holder should be addressed at this stage of the proceedings, where the consideration was variable but the formula was fixed and the quantum would be ascertained and notified before meetings. The court also needed to decide whether one security holder constituted a separate class for scheme purposes and whether it should consider the avoidance question posed by section 411(17)(a) of the Corporations Act at the convening stage. Additionally, the court examined the "no shop", "no talk" and "break fee" provisions and the need for an explanatory statement to set out the scheme conditions precedent in full.

The court held that the potential voting restriction affecting one security holder should be addressed at the convening stage as it was relevant to the fairness of the scheme. The court also determined that one security holder did not constitute a separate class for scheme purposes and that it was not necessary to consider the avoidance question posed by section 411(17)(a) at the convening stage. The court found that the "no shop", "no talk" and "break fee" provisions were reasonable and that the explanatory statement was sufficient to set out the scheme conditions precedent in full. The court granted the orders sought by Macquarie Private Capital A Limited.

The court ordered that the interlinked schemes of arrangement and the amendment of the managed investment scheme constitution be approved, subject to certain conditions. The court also ordered that the security holders be subjected to a warranty that the securities were free from encumbrance and that the quantum of consideration would be ascertained and notified before meetings. The court further ordered that the explanatory statement be delivered to the security holders in accordance with the provisions of the Corporations Act.