Westfield Management Ltd v AMP Capital Property Nominees Ltd

The High Court of Australia considered a dispute between Westfield Management Limited (appellant) and AMP Capital Property Nominees Ltd and UniSuper Limited (respondents) concerning the proposed winding up of a managed investment scheme. The Karrinyup Regional Shopping Centre was the primary asset of the KSC Trust, which was registered as a managed investment scheme under the Corporations Act 2001 (Cth). The respondents, holding two-thirds of the units, wished to pass a resolution under s 601NB of the Act directing the responsible entity to wind up the scheme, which would involve selling the shopping centre and distributing the proceeds. The appellant, holding one-third of the units, opposed this and sought to prevent the respondents from voting for the resolution without its prior written consent, alleging a breach of a Unitholders' and Joint Venture Agreement.

The central legal issue before the High Court was whether a provision within the Unitholders' and Joint Venture Agreement, which prohibited the sale of the trust property without unitholders' written consent, operated to fetter a unitholder's statutory right to vote for an extraordinary resolution to wind up the managed investment scheme under s 601NB of the Corporations Act 2001 (Cth). Specifically, the court had to determine if the contractual prohibition on sale could override the statutory right to direct the winding up of the scheme.

The High Court reasoned that the statutory right conferred by s 601NB of the Corporations Act 2001 (Cth) to direct the winding up of a managed investment scheme could not be fettered by a contractual agreement. The court noted that while the Agreement contained provisions regarding the sale of the Karrinyup Regional Shopping Centre and the determination of the Trust, these provisions did not prevent a unitholder from exercising their statutory right to vote for a winding up. The court drew an analogy to English case law where provisions in a company's articles of association attempting to limit statutory rights were held invalid. The court concluded that the Agreement did not prevent AMP Capital Property Nominees Ltd from voting in favour of the winding up resolution.

Consequently, the High Court dismissed the appeal with costs.