Macquarie Private Capital A Limited [2008] NSWSC 323

Macquarie Private Capital A Limited [2008] NSWSC 323

The requirements for convening of meetings and judicial advice have all been satisfied. The schemes and associated managed investment scheme amendments are structured properly, disclosure and notification around variable consideration are adequate, the exclusivity and break fee provisions are reasonable, and there is no basis for separating MISL into a different class or for the court to address s 411(17)(a) avoidance concerns at this stage. Accordingly, the orders sought should be made.

Parties
First Plaintiff: Macquarie Private Capital A Limited; Second Plaintiff: Macquarie Private Capital B Limited; Third Plaintiff: Macquarie Private Capital Management Limited; Interested Party: BSPEL Australia Ltd; Interested Party: Bear Stearns Private Equity Ltd
Jurisdiction
Australia
Judgment Date
09 April 2008
Procedural Posture
Corporations Schemes of Arrangement and Judicial Advice / Application for Convening of Meetings and Judicial Advice
Outcome
Orders made for convening of meetings and for judicial advice as sought
Legal Topics
Schemes of Arrangement, Judicial Advice (trustees), Class Constitution of Members, Exclusivity/incentive Provisions (break Fees, No Shop/no Talk), Disclosure and Explanatory Statement Requirements, Voting Rights and Restrictions, Approval Procedures Under Corporations Act
Corporations Law Equity Managed Investment Schemes Schemes of Arrangement Judicial Advice (trustees) Class Constitution of Members Exclusivity/incentive Provisions (break Fees, No Shop/no Talk) Disclosure and Explanatory Statement Requirements +2 more

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Parties

Macquarie Private Capital A Limited

First Plaintiff

Macquarie Private Capital B Limited

Second Plaintiff

Macquarie Private Capital Management Limited

Third Plaintiff

BSPEL Australia Ltd

Interested Party

Bear Stearns Private Equity Ltd

Interested Party

Procedural Posture

Corporations Schemes of Arrangement and Judicial Advice / Application for Convening of Meetings and Judicial Advice

Legal Issues

  1. 1 Should orders be made for the convening of meetings of shareholders and unitholders under s 411(1) of the Corporations Act 2001?
  2. 2 Should the trustee be advised it is justified in placing the proposal before unitholders?
  3. 3 Is there any relevant voting restriction applicable under s 253E?

Ratio Decidendi

The requirements for convening of meetings and judicial advice have all been satisfied. The schemes and associated managed investment scheme amendments are structured properly, disclosure and notification around variable consideration are adequate, the exclusivity and break fee provisions are reasonable, and there is no basis for separating MISL into a different class or for the court to address s 411(17)(a) avoidance concerns at this stage. Accordingly, the orders sought should be made.

Court Disposition

Orders made for convening of meetings and for judicial advice as sought

Orders

  • Order for convening meeting of ordinary shareholders of the first and second plaintiffs for considering the scheme of arrangement.
  • Approval of Scheme Booklet for distribution and dispatch to shareholders.