Macarthurcook Fund Management Ltd

[2010] NSWSC 1117

CITATION:	Macarthurcook Fund Management Ltd [2010] NSWSC 1117
HEARING DATE(S):	28/09/10
JUDGMENT DATE :	28 September 2010
JURISDICTION:	Equity Division Corporations List
JUDGMENT OF:	Barrett J
EX TEMPORE JUDGMENT DATE:	28 September 2010
DECISION:	Judicial advice given.
CATCHWORDS:	CORPORATIONS - registered managed investment scheme - alteration of constitution by special resolution - form of resolution in notice of meeting refers to amending deed in form produced to meeting and initialled by chairman for identification - form of such deed accompanying notice contains blanks for dates - these dates completed in form initialled by chairman which also reflects change of name of an entity - lack of correspondence accordingly between the two documents - whether procedural irregularity for the purposes of s 1322(2)
LEGISLATION CITED:	Corporations Act 2001 (Cth), ss 601GC, 1322(2)
CATEGORY:	Principal judgment
CASES CITED:	Re Mirvac Ltd [1999] NSWSC 457; (1999) 32 ACSR 107 Re Moorgate Holdings Ltd [1980] 1 All ER 40
PARTIES:	Macarthurcook Fund Management Limited
FILE NUMBER(S):	SC 2010/280092
COUNSEL:	Mr M R Speakman SC/Mr I J Stanley - Plaintiff
SOLICITORS:	Blake Dawson - Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

TUESDAY 28 SEPTEMBER 2010

2010/280092 MACARTHURCOOK FUND MANAGEMENT LIMITED

JUDGMENT

1 I am dealing with a renewed application for judicial advice by the responsible entity of a unit trust scheme which is registered as a managed investment scheme under the Corporations Act 2001 (Cth).

2 This follows earlier judicial advice to the effect that the responsible entity would be justified in progressing to the point of a meeting of members of the scheme a proposal involving the alteration of the scheme’s constitution to create a mechanism for compulsory transfer of the scheme units.

3 The approach to the court is thus of the twofold sequential kind that has become commonplace since the decision of Austin J in Re Mirvac Ltd [1999] NSWSC 457; (1999) 32 ACSR 107.

4 Upon the renewed application advanced this morning, it has been shown that the relevant resolution for alteration of the constitution of the managed investment scheme, being a special resolution under s 601GC of the Corporations Act, was passed by the required majority of votes cast at the meeting which was the subject of the earlier judicial advice.

5 There is, however, one matter that has been drawn to the court's attention and requires comment.

6 The form of resolution set out in the notice of meeting was as follows:

“Subject to Resolution 1 being passed and Resolution 2 not being passed, THAT the constitution of MIF ( Constitution ) be amended in accordance with the provisions of the supplemental deed poll in the form tabled at the meeting and initialled by the Chair for the purposes of identification ( Supplemental Deed Poll ), and that MCFM as responsible entity of MIF be authorised to execute the Supplemental Deed Poll and lodge it with the Australian Securities and Investments Commission to give effect to the amendments to the Constitution.”

7 The introductory condition about other resolutions being passed and not passed was satisfied. An anomaly has, however, arisen in that the material accompanying the notice of meeting included a copy of the deed proposed to be initialled by the chair of the meeting as referred to in the form of resolution, but the form of deed actually initialled by the chair at the meeting was slightly different. There was, in that way, a discrepancy between the precise content of the form of which members were informed in the material accompanying the notice of meeting and the form to which the resolution as passed actually related.

8 The discrepancies are, however, of an entirely inconsequential kind. There are four places in the form of deed accompanying the notice of meeting where a blank appears in a space intended for a date. In two cases, the relevant date is that of the notice of meeting; in the third case, the date is that of a deed poll executed by a named party; and in the fourth case, the date is that of the meeting itself.

9 In the form accompanying the notice of meeting, the four dates are blank but in the form of deed that the chairman initialled, each blank is filled up by inclusion of the particular date that is relevant to the particular provision.

10 The dates are uncontroversial and no one seeing the form of deed sent with the notice of meeting could have been in the slightest surprised by the way in which the spaces were completed in the document that the chairman initialled for the purposes of the resolution itself. Each date is a date objectively ascertained or ascertainable and uncontroversial.

11 The other discrepancy between the two documents is that there is reference in the form accompanying the notice of meeting to "HRPT Properties Trust", whereas in the form of deed initialled by the chairman for the purposes of resolution the reference is to "CommonWealth REIT (formerly known as HRPT Properties Trust)”. There is therefore no more than an updating to reflect a change of name.

12 The change of name has, in turn, led to minor drafting alterations. A definition of "CWH" referring to CommonWealth REIT has in clause 3 of the Deed replaced a definition of "HRPT" referring to that entity by its former name; and, as a consequence, references throughout to “HRPT” have been replaced by references to “CWH”.

13 Again, the matters are inconsequential and uncontroversial.

14 There was some concern expressed in the course of submissions about these discrepancies and the attitude that might be taken to them.

15 If and to the extent that the requirement for correspondence between the notified form of a resolution and the form of the resolution as passed discussed in Re Moorgate Holdings Ltd [1980] 1 All ER 40 may be relevant to the special resolution concept reflected by s 601GC, the discrepancies to which I have referred are within the test of identical substance there mentioned.

16 In any event, the matter is, to my mind, amply covered by s 1322(2) of the Corporations Act:

“A proceeding under this Act is not invalidated because of any procedural irregularity unless the Court is of the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied by any order of the Court and by order declares the proceeding to be invalid.”

17 The "irregularity" consisting of the minor and inconsequential discrepancies between the two documents is obviously "procedural" and in the circumstances as I have described them, the court is firmly of the opinion that the "irregularity" has not caused and cannot cause substantial injustice to anyone.

18 The matter may be left there. Judicial advice will be given as sought.

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