MACQUARIE INVESTMENT MANAGEMENT LTD FOR MACQUARIE GLOBAL INFRASTRUCTURE TRUST II HC AK CIV-2012-404-003857

MACQUARIE INVESTMENT MANAGEMENT LTD FOR MACQUARIE GLOBAL INFRASTRUCTURE TRUST II HC AK CIV-2012-404-003857

Because the contravention was caused by failure to comply with a condition of the Exemption Notice, notice was given in accordance with ss37AE and 37AF, and no subscriber objected in the statutory form describing material prejudice, the conditions of s37AC(1)(e) were satisfied and the Court was required to make a relief order; the late service on the Financial Markets Authority was a non‑fatal formality.

Citation
openlaw-b82f3994_e19b_4198_853f_429e0460821d.pdf
Parties
Applicant / Issuer: Macquarie Investment Management Limited A.C.N. 002867 003 as Responsible Entity for Macquarie Global Infrastructure Trust II; Objectors (withdrawn): Mr and Mrs Carryer; Objectors (withdrawn): Mr and Mrs Moody; Investor / Correspondent (no Formal Objection): D L Parnell; Regulator (served; No Objection): Financial Markets Authority
Court
High Court
Jurisdiction
New Zealand
Judgment Date
27 February 2013
Procedural Posture
Application Under the Securities Act 1978 for Validation/relief / Hearing on the Papers; Application for Relief Under S37 AC (alternatively S37 Ah)
Outcome
Relief granted under s37AC; New Zealand allotments validated
Legal Topics
Allotment Validation, Exemption Notice Non‑compliance, Mandatory Relief Under S37 AC, Notice and Service Requirements
Securities Law Remedial Relief Administrative Law Allotment Validation Exemption Notice Non‑compliance Mandatory Relief Under S37 AC Notice and Service Requirements

Case Brief

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Parties

Macquarie Investment Management Limited A.C.N. 002867 003 as Responsible Entity for Macquarie Global Infrastructure Trust II

Applicant / Issuer

Mr and Mrs Carryer

Objectors (withdrawn)

Mr and Mrs Moody

Objectors (withdrawn)

D L Parnell

Investor / Correspondent (no Formal Objection)

Financial Markets Authority

Regulator (served; No Objection)

Procedural Posture

Application Under the Securities Act 1978 for Validation/relief / Hearing on the Papers; Application for Relief Under S37 AC (alternatively S37 Ah)

Legal Issues

  1. 1 Whether the New Zealand allotments can be validated despite non‑compliance with the Exemption Notice
  2. 2 Whether the conditions of s37AC(1)(e) are satisfied so that mandatory relief must be granted
  3. 3 Whether the failure to serve the Financial Markets Authority within the five working day period is fatal to the relief application

Ratio Decidendi

Because the contravention was caused by failure to comply with a condition of the Exemption Notice, notice was given in accordance with ss37AE and 37AF, and no subscriber objected in the statutory form describing material prejudice, the conditions of s37AC(1)(e) were satisfied and the Court was required to make a relief order; the late service on the Financial Markets Authority was a non‑fatal formality.

Court Disposition

Relief granted under s37AC; New Zealand allotments validated

Orders

  • Order made under s37AC in terms of the draft filed as amended to delete alternative relief under s37AH