Australia and New Zealand Banking Group Limited, in the matter of Australia and New Zealand Banking Group Limited [2010] FCA 945

Australia and New Zealand Banking Group Limited, in the matter of Australia and New Zealand Banking Group Limited [2010] FCA 945

The inaccurate reporting of shares by ING subsidiaries was an honest and inadvertent procedural error. Validation would not defeat the statutory policy behind s 259C, would not cause substantial injustice, and was supported by ASIC and APRA. The Court exercised its discretion under s 1322(4)(a) to validate the share acquisitions between 30 November 2009 and 9 August 2010.

Parties
First Plaintiff: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED; Second Plaintiff: ING AUSTRALIA LIMITED; Third Plaintiff: ING (NZ) HOLDINGS LIMITED; Fourth Plaintiff: ING LIFE LIMITED; Fifth Plaintiff: ING (NZ) NOMINEES LIMITED; Sixth Plaintiff: ING FUNDS MANAGEMENT LIMITED; Seventh Plaintiff: ING CUSTODIANS PTY LTD; Eighth Plaintiff: OASIS FUND MANAGEMENT LIMITED; Ninth Plaintiff: FSP FUNDS MANAGEMENT LIMITED; Tenth Plaintiff: FSP PORTFOLIO ADMINISTRATION LIMITED
Jurisdiction
Australia
Judgment Date
06 September 2010
Procedural Posture
Corporations – Application Under S 1322(4) of the Corporations Act 2001 (cth) / Final Judgment and Orders
Outcome
Application granted; acquisitions validated.
Legal Topics
Validation of Share Transactions, Indirect Self Acquisition, Statutory Fund Compliance, ASIC Exemptions, Investment Schemes, Life Insurance Business
Corporations Law Validation of Share Transactions Indirect Self Acquisition Statutory Fund Compliance ASIC Exemptions Investment Schemes Life Insurance Business

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Parties

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

First Plaintiff

ING AUSTRALIA LIMITED

Second Plaintiff

ING (NZ) HOLDINGS LIMITED

Third Plaintiff

ING LIFE LIMITED

Fourth Plaintiff

ING (NZ) NOMINEES LIMITED

Fifth Plaintiff

ING FUNDS MANAGEMENT LIMITED

Sixth Plaintiff

ING CUSTODIANS PTY LTD

Seventh Plaintiff

OASIS FUND MANAGEMENT LIMITED

Eighth Plaintiff

FSP FUNDS MANAGEMENT LIMITED

Ninth Plaintiff

FSP PORTFOLIO ADMINISTRATION LIMITED

Tenth Plaintiff

Procedural Posture

Corporations – Application Under S 1322(4) of the Corporations Act 2001 (cth) / Final Judgment and Orders

Legal Issues

  1. 1 Whether acquisitions of shares in ANZ by its controlled subsidiaries between 30 November 2009 and 9 August 2010 were void under s 259C(1) of the Corporations Act
  2. 2 Whether trustee rights of indemnification confer a beneficial interest for purposes of s 259C(1)(b)
  3. 3 Whether Court has jurisdiction to validate those acquisitions under s 1322(4)

Ratio Decidendi

The inaccurate reporting of shares by ING subsidiaries was an honest and inadvertent procedural error. Validation would not defeat the statutory policy behind s 259C, would not cause substantial injustice, and was supported by ASIC and APRA. The Court exercised its discretion under s 1322(4)(a) to validate the share acquisitions between 30 November 2009 and 9 August 2010.

Court Disposition

Application granted; acquisitions validated.

Orders

  • Pursuant to s 1322(4) Corporations Act 2001 (Cth), issues or transfers of shares or units of shares in ANZ by its controlled entities to or in trust for managed investment schemes, unit trusts, investor directed portfolio services, statutory funds, or controlled entities for NZ life fund purposes (except excess...