Alexander v Burne [2015] NSWCA 377

Alexander v Burne [2015] NSWCA 377

The combined operation of cl 6.1(b) and the definition of Special Majority in cl 1.1 required two-thirds or more of all Unitholders eligible to vote to vote in favour of a resolution concerning a Unitholder Matter. Eligibility to vote referred to legal capacity or right to vote, not presence at the meeting. Because only 44 Unitholders voted in favour when 46 votes were required on the basis of 69 Unitholders, the merger resolution was not passed by a Special Majority and the primary judge erred in answering the Separate Question affirmatively.

Jurisdiction
Australia
Judgment Date
02 December 2015
Procedural Posture
Appeal Concerning Construction of a Unitholders Deed and Validity of a Resolution Approving a Merger / Appeal From the Equity Division of the Supreme Court of New South Wales After Young AJA Answered a Separate Question in the Affirmative
Outcome
Appeal allowed.
Legal Topics
['meetings of Unitholders' 'special Majority Voting Requirement' 'construction of Trust/unitholders Deed' 'validity of Resolution Approving Merger' 'separate Question Under R 28.2 of the Uniform Civil Procedure Rules 2005 (nsw)']
['corporations' 'equity' 'contract Interpretation'] ['meetings of Unitholders' 'special Majority Voting Requirement' 'construction of Trust/unitholders Deed' 'validity of Resolution Approving Merger' 'separate Question Under R 28.2 of the Uniform Civil Procedure Rules 2005 (nsw)']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Concerning Construction of a Unitholders Deed and Validity of a Resolution Approving a Merger / Appeal From the Equity Division of the Supreme Court of New South Wales After Young AJA Answered a Separate Question in the Affirmative

Legal Issues

  1. 1 ['Whether the resolution to approve a proposed merger between Grant Thornton and BDO was passed by a Special Majority vote of the Unitholders within the meaning of cl 6.1(b) of the Unitholders Deed.' 'Whether Special Majority, defined as a vote of two-thirds or more of persons eligible to vote in respect of a resolution, meant two-thirds of Unitholders present at the meeting and entitled to vote or two-thirds of all Unitholders eligible to vote.']

Ratio Decidendi

The combined operation of cl 6.1(b) and the definition of Special Majority in cl 1.1 required two-thirds or more of all Unitholders eligible to vote to vote in favour of a resolution concerning a Unitholder Matter. Eligibility to vote referred to legal capacity or right to vote, not presence at the meeting. Because only 44 Unitholders voted in favour when 46 votes were required on the basis of 69 Unitholders, the merger resolution was not passed by a Special Majority and the primary judge erred in answering the Separate Question affirmatively.

Court Disposition

Appeal allowed.

Orders

  • ['Appeal allowed.' 'Set aside the affirmative answer of Young AJA to the Separate Question.' 'Answer the Separate Question, "No".' 'Remit the proceedings to the Equity Division of the Supreme Court of New South Wales for directions consistent with these orders.' "The respondents to pay the appellants' costs of the...