Supreme Court New South Wales Medium Neutral Citation: Mirvac Funds Management Ltd in its capacity as responsible entity of Mirvac Industrial Trust [2014] NSWSC 1854 Hearing dates: 21 November 2014 Decision date: 21 November 2014 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Orders made in accordance with short minutes of order. Catchwords: CORPORATIONS - managed investments - meetings - orders sought under Trustee Act 1925 (NSW) seeking judicial advice in respect of entry into trust scheme - where majority of unitholders voted in favour of the trust scheme and no party appeared to oppose the trust scheme - whether opinion, advice and directions in respect of trust scheme should be given. Legislation Cited: Trustee Act 1925 (NSW) s 63 Category: Interlocutory applications Parties: Mirvac Funds Management Ltd in its capacity as responsible entity of Mirvac Industrial Trust (Plaintiff) Representation: Counsel: I M Jackman SC (Plaintiff) J R Williams (Acquirer) Solicitors: Allens (Plaintiff) Gilbert & Tobin (Acquirer) File Number(s): 2014/294119 Judgment - ex tempore 1The plaintiff, Mirvac Funds Management Ltd ("MFML"), in its capacity as responsible entity of Mirvac Industrial Trust ("MIX") seeks judicial advice, at a second court hearing, under s 63 of the Trustee Act 1925 (NSW) in respect of the implementation of a trust scheme. The particular orders sought are that MFML, in its capacity as responsible entity of MIX, would be justified in implementing the particular scheme, as defined in an explanatory memorandum and notice of meeting which have been distributed to MIX unitholders, in giving effect to amendments to the MIX constitution set out in a supplementary deed poll annexed to the explanatory memorandum, and doing all things necessary to give effect to the scheme. 2The application is made following earlier orders by the Court which granted judicial advice in respect of the convening of a meeting of unit holders of MIX and the conduct of that meeting of unitholders. For the reasons set out in my judgment in respect of that application ([2014] NSWSC 1569), I had advised, under s 63 of the Trustee Act, that MFML, in its capacity as responsible entity of MIX, would be justified in distributing an explanatory memorandum and notice of meeting to MIX unitholders, in connection with the implementation of a trust scheme which provided for the proposed acquisition of all units in MIX by a third party, AustFunding Pty Ltd ("AustFunding"), a wholly-owned subsidiary of the Goldman Sachs Group Inc ("Goldman Sachs"). I had there reviewed the applicable principles, and noted that there were no issues that prevented the grant of the advice which was sought, or the convening of the relevant meetings. 3There is now further evidence before me as to the steps which have been taken to convene and conduct the relevant meetings and as to the outcome of those meetings. First, MFML reads the evidence of Ms Janik, by affidavit dated 19 November 2014, who is the Client Relationship Assistant Manager at the registry service provider for MIX and gives evidence as to the mailing out of the explanatory memorandum to MIX unitholders. Second, MFML reads the affidavit of Ms Austin dated 19 November 2014, who is the National Manager - Link Convene at that registry service provider. Ms Austin gives evidence as to the process adopted for processing proxy forms in respect of the unitholder meeting; the registration of attendees at that meeting; the process of voting at that meeting and the outcome of that meeting; and her affidavit annexes, in particular, the report in respect of the declaration of a poll in respect of two resolutions put to the meeting for approval, relating to amendments to the MIX constitution to effect the proposal and to approval of the proposal itself. The support for the proposal was overwhelming, with in excess of 99% of votes by value and in excess of 93% of votes by number supporting each of the resolutions. 4The affidavit of Mr Nicholas Blake, the General Manager of MIX, deals with the distribution of documents to MIX unitholders and the conduct of the scheme meeting and confirms the result of voting at that scheme meeting. Mr Blake also gives evidence, which is not surprising given the evidence of votes at the meeting, that MIX has received no notice of opposition to the further advice sought at the hearing this morning. No party appeared when the matter was called to seek to oppose the relevant application. 5Two further affidavits are sworn by persons associated with the acquirer of the relevant interests, AustFunding, and its ultimate parent entity, Goldman Sachs. Mr Gribble, who is a director of AustFunding and a managing director of Goldman Sachs Australia, gives evidence as to the funding arrangements in respect of payment of the consideration contemplated by the proposed scheme. Mr Gribble refers to the existence of a guarantee provided by Goldman Sachs to AustFunding, guaranteeing the prompt and complete payment of all obligations and liability of the funding entity, GSDF, to AustFunding arising out of the relevant commitment letter. That guarantee was not disclosed in the explanatory memorandum, as Mr Jackman properly acknowledges, but Mr Jackman also points out, plainly correctly, that that guarantee is advantageous to unitholders and, in that sense, it cannot be suggested that they were disadvantaged by not knowing of an additional matter that supported the payment of scheme consideration. 6A further affidavit of Mr Cognata affirmed 17 November 2014 deals with the financing arrangements in respect of GSDF, and points to the capacity of GSDF and its parent entity, Goldman Sachs, to meet its obligations to make the scheme payment and the arrangements which have been put in place to allow it to do so. In particular, Mr Cognata confirms that arrangements have been made, as I noted in my principal judgment, for payment of the scheme consideration to a US dollar account maintained by the Bank of America in Australia, which is an authorised deposit taking institution in Australia. I had addressed that matter in my earlier judgment, as a matter which indicated that there was no particular reason to be concerned as to the payment arrangements in respect of the scheme consideration. 7Finally, an affidavit of Mr Stuart McCulloch, who is a partner with the firm of solicitors acting for MFML in its capacity as responsible entity of MIX in relation to the application, confirms that the explanatory memorandum in the form circulated to unitholders reflects the version which was previously placed before the Court; draws attention to the satisfaction of conditions precedent in respect of the scheme; draws attention to the fact that the Australian Securities and Investments Commission has now executed documents containing the declarations and amendments contemplated by the scheme; confirms the publication of newspaper advertisements, as contemplated by the orders previously made by the Court, to give notice to unitholders of the meeting and of this hearing; and also confirms a lack of notice of opposition to the application. 8For the reasons indicated in my principal judgment at the first hearing, the scheme is structured, in a common form, to bring about acquisition of all the units in MIX by a third party for payment of the scheme consideration. It has received substantial support, both by value and by number of MIX unitholders. The evidence now led at this hearing addresses the steps that would be necessary to implement the scheme, in accordance with the terms of the explanatory memorandum and the orders previously made by the Court. I am comfortably satisfied, on the basis of that evidence, that the Court should give a direction in the form contemplated by MFML under s 63 of the Trustee Act, providing that it would be justified in implementing the scheme, giving effect to the amendment to the MIX constitution set out in the supplementary deed poll annexed to the explanatory memorandum and doing all things necessary to effect that scheme. 9Accordingly, I make orders in accordance with the short minutes of order initialled by me and placed on the file which include an order that these orders be entered forthwith. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 December 2014