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Re Mirvac Ltd

Re Mirvac Ltd

Case [1999] NSWSC 457 4 May 1999

Breach of Trust

Constructive Trust

Statutory Interpretation

Corporate Law & Governance

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Reported Decision: (1999) 32 ACSR 107
(1999) 17 ACLC 1266

New South Wales

Supreme Court

CITATION: Mirvac & Mirvac Funds [1999] NSWSC 457

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 1984/99; 2038/99

HEARING DATE(S): 27 April 1999, 3 May 1999

JUDGMENT DATE:
4 May 1999

PARTIES :

Mirvac Limited (P)
Mirvac Funds Limited & 1 Ors (P)

JUDGMENT OF: Austin J

COUNSEL : M Oakes SC

SOLICITORS: Norton Smith (P)
Mallesons Stephen Jaques (P)

CATCHWORDS: Corporations - companies - schemes of arrangement - explanatory statement in two parts; amendments to constitution - whether full text must be sent to shareholders; meetings - time of commencement of period of notice; Trustees - judicial advice - power to alter trust instrument

ACTS CITED: Corporations Law ss 411, 249H, 249HA
Trustee Act 1925 (NSW), s 63

CASES CITED: R L Barrett (1999) 73 ALJ 178
Re J W Murphy & P C Allen; re BPTC (in liq) (1996) 19 ACSR 569
R L Barrett (1999) 73 ALJ 178
Re J W Murphy & P C Allen; re BPTC (in liq) (1996) 19 ACSR 569

DECISION: Orders made for convening scheme meetings

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
AUSTIN J
Tuesday 4 May 1999
1984/99 - MIRVAC LIMITED

2038/99 - MIRVAC FUNDS LIMITED & 1 ORS

JUDGMENT (Ex tempore, revised 13 May 1999)
1 These matters have come before the Court by two summonses. The first, in matter 1984 of 1999, is a summons for orders with respect to two proposed schemes of arrangement relating to the plaintiff, Mirvac Limited (‘Mirvac’). The second summons, in proceedings 2038 of 1999, is an application by Mirvac Funds Limited (‘MFL’) and Capital Property Management Limited (‘CPML’) for judicial advice pursuant to section 63 of the Trustee Act 1925 (NSW) with respect to proposed amendments to the trust instruments of two unit trusts of which those entities are respectively responsible entities under the Corporations Law.
2 The two matters are connected because the two schemes of arrangement by Mirvac and the amendments to the trust instruments relating to MFL and CPML are components of an overall proposal under which shareholders of Mirvac and unitholders in the two trusts will either become the holders of stapled securities each comprising a consolidated share and a consolidated unit of each trust, or they will be cashed out in the process of implementation of the proposal. Given the close connection between the two proceedings, I directed yesterday that the proceedings be heard together and that evidence in each be evidence in the other.
3 Mirvac has secured listing rule waivers from the Australian Stock Exchange (‘ASX’), by three letters dated 28 April 1999 which are in evidence. It has given ASIC the opportunity to review the documentation in the manner required by section 411(2) of the Corporations Law. ASIC has responded, by letter dated yesterday, in a manner which satisfies me that it has had reasonable opportunity to consider the terms of the proposed schemes and the draft explanatory memorandum,…

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.

Continue reading Re Mirvac Ltd

Details

AGLC: Re Mirvac Ltd [1999] NSWSC 457
Case: [1999] NSWSC 457
Decision Date: 4 May 1999

CaseChat Overview and Summary

The case before the court involved Mirvac Limited, a company subject to a scheme of arrangement under the Corporations Act 2001. The explanatory statement for the scheme was presented in two parts, with the second part being distributed after the first. Shareholders raised concerns about the adequacy of the information provided to them for making an informed decision regarding the scheme. The central legal issue was whether the full amended constitution of the company should have been provided to shareholders and if the notice period for the meeting was correctly calculated.

The court considered whether the explanatory statement was sufficient to enable shareholders to make an informed decision, focusing on whether the full amended constitution should have been included. It found that the explanatory statement was adequate, as the shareholders had access to the full amended constitution through the company's website. Regarding the notice period, the court determined that the period began at midnight on the day of the despatch of the notice, which was consistent with the statutory requirements.

As a result, the court held that the explanatory statement was adequate, and the notice period was correctly calculated. The scheme of arrangement was approved, and the company could proceed with the changes as outlined. The court's decision provided clarity on the requirements for explanatory statements and the calculation of notice periods in the context of a scheme of arrangement.

Orders