In the matter of Centro Retail Limited and Centro MCS Manager Limited in its capacity as Responsible Entity of Centro Retail Trust [2011] NSWSC 1175

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Centro Retail Limited and Centro MCS Manager Limited in its capacity as Responsible Entity of Centro Retail Trust [2011] NSWSC 1175 Hearing dates: 29, 30 September 2011 Decision date: 05 October 2011 Jurisdiction: Equity Division - Corporations List Before: Barrett J Decision: Judicial advice that the applicant, as responsible entity of the Centro Retail Trust, would be justified in modifying the constitution of the Centro Retail Trust under s 601GC(1)(b) of the Corporations Act 2001 (Cth) in accordance with the proposed amending deed at tab 5 of exhibit MDB1 to the second affidavit of Michael Dean Benett sworn on 29 September 2011 and the proposed amended constitution at tab 4 of that exhibit Catchwords: CORPORATIONS - managed investment schemes - modification of constitution of registered scheme under s 601GC(1) - whether in the particular case the responsible entity may effect modification under s 601GC(1)(b) - meaning of "members' rights" - whether members have a "right" to see new units issued for the price stated in the existing constitution and not otherwise unless some different basis is added by special resolution of members - held that "members' rights" do not extend to a "right" to have the scheme administered according to the existing constitution and not otherwise - "members' rights" to be construed by analogy with company law - need nevertheless for the responsible entity, as a trustee, to act for the benefit of beneficiaries - the possibility of dilution of existing members is a matter to be taken into account in assessing benefit to beneficiaries Legislation Cited: Company Law Review Act 1998 (Cth) Corporations Act 2001 (Cth), Part 5.1, ss 601FB(1), 601FC(2), 601GC(1) Trustee Act 1925, s 63 Cases Cited: Armitage v Nurse [1998] Ch 241 Eagle Star Trustees Ltd v Heine Management Ltd (1990) 3 ACSR 232 ING Funds Management Ltd v ANZ Nominees Ltd [2009] NSW 243; (2009) 228 FLR 444 In the matter of Centro Properties Ltd and CPT Manager Ltd [2011] NSWSC 1171 Lowry (Inspector of Taxes) v Consolidated African Selection Trust Ltd [1940] AC 648 Re Mirvac Ltd [1999] NSWSC 457; (1999) 32 ACSR 107 Premium Income Fund Action Group Inc v Wellington Capital Ltd [2011] FCA 698 Re John Smith's Tadcaster Brewery Ltd [1953] Ch 308 Scaffidi v Montevento Holdings Pty Ltd [2011] WASCA 146 Shearer (Inspector of Taxes) v Bercain Ltd [1980] 3 All ER 295 Smith v Permanent Trustee Australia Ltd (1992) 10 ACLC 906 White v Bristol Aeroplane Co Ltd [1953] Ch 65 Whitehouse v Carlton Hotel Pty Ltd [1987] HCA 11; (1987) 162 CLR Category: Interlocutory applications Parties: Centro Retail Limited - First Plaintiff Centro MCS Manager Limited in its capacity as Responsible Entity of Centro Retail Trust - Second Plaintiff Representation: Mr J G Santamaria QC/Mr P Zappia - Plaintiffs Mr M A Izzo - Australian Securities and Investments Commission as amicus curiae Clayton Utz - Plaintiffs File Number(s): 2011/00285738