In the matter of Asia Pacific Data Centre Limited [2018] NSWSC 1375

In the matter of Asia Pacific Data Centre Limited [2018] NSWSC 1375

360 Capital is not an associate of the responsible entity APDC following the sale to OIG as of 16 January 2018. There is no ongoing common purpose or objective amounting to acting in concert in relation to the APDC Trust’s affairs post 16 January 2018. 360 Capital is therefore entitled to vote at the adjourned scheme meeting, and it is appropriate for declaratory relief to be granted in advance to provide commercial certainty.

Parties
Plaintiff: 360 Capital FM Limited; First Defendant: Asia Pacific Data Centre Limited; Second Defendant: NEXTDC Limited
Jurisdiction
Australia
Judgment Date
07 September 2018
Procedural Posture
Corporations Law Declaratory Relief / Final Judgment After Hearing
Outcome
Declaratory relief granted for the plaintiff; costs order against the second defendant (NEXTDC).
Legal Topics
Managed Investment Schemes, Voting Entitlements, Associates – Acting in Concert, Meetings of Members, Declaratory Relief, Winding Up
Corporations Law Equity Managed Investment Schemes Voting Entitlements Associates – Acting in Concert Meetings of Members Declaratory Relief Winding Up

Case Brief

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Parties

360 Capital FM Limited

Plaintiff

Asia Pacific Data Centre Limited

First Defendant

NEXTDC Limited

Second Defendant

Procedural Posture

Corporations Law Declaratory Relief / Final Judgment After Hearing

Legal Issues

  1. 1 Whether 360 Capital FM Limited is an 'associate' of Asia Pacific Data Centre Limited under the Corporations Act 2001 (Cth) s 12 and thereby prohibited under s 253E from voting on the proposed winding-up resolution at the scheme meeting;
  2. 2 Whether to grant declaratory relief determining eligibility to vote prior to the meeting.

Ratio Decidendi

360 Capital is not an associate of the responsible entity APDC following the sale to OIG as of 16 January 2018. There is no ongoing common purpose or objective amounting to acting in concert in relation to the APDC Trust’s affairs post 16 January 2018. 360 Capital is therefore entitled to vote at the adjourned scheme meeting, and it is appropriate for declaratory relief to be granted in advance to provide commercial certainty.

Court Disposition

Declaratory relief granted for the plaintiff; costs order against the second defendant (NEXTDC).

Orders

  • Declare that for the purposes of Corporations Act 2001 (Cth), s 253E, and in the events which have happened up to and including 14 June 2018, 360 Capital FM Limited is entitled to vote its interests on the proposed resolutions at the extraordinary general meeting of unitholders of the Asia Pacific Data Centre Trust...
  • The second defendant (NEXTDC) to pay the plaintiff's costs.