AMP Capital Property Nominees Ltd & Anor v Westfield Management Ltd [2011] NSWCA 386

AMP Capital Property Nominees Ltd & Anor v Westfield Management Ltd [2011] NSWCA 386

Clause 10.1(a) of the Unitholders' Agreement, when properly construed, restricts the sale of the shopping centre property only prior to the winding-up of the trust, requiring unanimous written consent. Once the trust is to be wound up (as directed by a resolution under s 601NB), that restriction does not apply. Consequently, cl 16.2 does not prevent AMPCN and UniSuper from exercising their voting rights to direct the responsible entity to wind up the Scheme without Westfield's consent. The primary judge erred in holding otherwise, and the appeal must be allowed.

Parties
First Appellant: AMP Capital Property Nominees Ltd; Second Appellant: UniSuper Ltd; Respondent: Westfield Management Ltd
Jurisdiction
Australia
Judgment Date
14 December 2011
Procedural Posture
Appeal / Decision on Appeal From Final Injunction
Outcome
Appeal allowed
Legal Topics
Managed Investment Schemes, Voting Rights, Trust Deed Interpretation, Unitholder Agreements, Winding Up of Schemes
Corporations Law Contract Law Managed Investment Schemes Voting Rights Trust Deed Interpretation Unitholder Agreements Winding Up of Schemes

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Parties

AMP Capital Property Nominees Ltd

First Appellant

UniSuper Ltd

Second Appellant

Westfield Management Ltd

Respondent

Procedural Posture

Appeal / Decision on Appeal From Final Injunction

Legal Issues

  1. 1 Whether unitholders (AMPCN and UniSuper) can be restrained from voting in favour of a winding up resolution under s 601NB of the Corporations Act 2001 (Cth) in the absence of written consent from all unitholders under the Unitholders' Agreement.
  2. 2 Construction of cl 10 and cl 16.2 of the Unitholders' Agreement—does 'written consent of the Unitholders' require unanimity?
  3. 3 Whether cl 16.2 applies to voting rights conferred by statute under the Act or only those in the Trust Deed.

Ratio Decidendi

Clause 10.1(a) of the Unitholders' Agreement, when properly construed, restricts the sale of the shopping centre property only prior to the winding-up of the trust, requiring unanimous written consent. Once the trust is to be wound up (as directed by a resolution under s 601NB), that restriction does not apply. Consequently, cl 16.2 does not prevent AMPCN and UniSuper from exercising their voting rights to direct the responsible entity to wind up the Scheme without Westfield's consent. The primary judge erred in holding otherwise, and the appeal must be allowed.

Court Disposition

Appeal allowed

Orders

  • Appeal allowed.
  • Orders of Ward J made on 1 September 2011 set aside.