In the matter of DUET Finance Limited; In the matter of DUET Company Limited; In the matter of DUET Investment Holdings Limited; In the matter of DUET Finance Limited as responsible entity of DUET Finance Trust [2017] NSWSC 415

Supreme Court New South Wales

Medium Neutral Citation: In the matter of DUET Finance Limited; In the matter of DUET Company Limited; In the matter of DUET Investment Holdings Limited; In the matter of DUET Finance Limited as responsible entity of DUET Finance Trust [2017] NSWSC 415 Hearing dates: 8 March 2017 Decision date: 08 March 2017 Jurisdiction: Equity - Corporations List Before: Black J Decision: The Court orders pursuant to s 411 of the Corporations Act 2001 (Cth) that the First to Third Plaintiffs convene meetings of shareholders for the purpose of considering and, if thought fit, agreeing to proposed schemes of arrangement and makes ancillary orders. The Court gives judicial advice that the Fourth Plaintiff, as responsible entity for a managed investment scheme, would be justified in propounding resolutions to unitholders to implement a corresponding scheme and proceeding on the basis that the amendments to be made to the constitution of the managed investment scheme to implement the corresponding scheme would be within the powers of alteration conferred by that document and s 601GC of the Corporations Act 2001 (Cth). Catchwords: CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Applications under s 411 of the Corporations Act 2001 (Cth) for orders convening meetings of members to consider and if thought fit to agree to proposed schemes of arrangement – where schemes of arrangement involve the Plaintiffs' shareholders transferring their shares to another company for cash consideration – whether requirements to order scheme meetings are satisfied.

CORPORATIONS – Managed investments – Application for judicial advice by responsible entity under s 63 of the Trustee Act 1925 (NSW) – whether responsible entity would be justified in convening a meeting of unitholders to approve amendments to the trust constitution to give effect to a proposed scheme – whether proposed amendments are within the powers of alteration conferred by the constitution of the managed investment scheme and s 601GC of the Corporations Act 2001 (Cth). Legislation Cited: - Corporations Act 2001 (Cth), Pt 5.1, ss 411, 601GC - Supreme Court (Corporations) Rules (NSW) - Trustee Act 1925 (NSW), s 63 Cases Cited: - Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 - Cleary v Australian Cooperative Foods Ltd [1999] NSWSC 991; (1999) 32 ACSR 701 - FT Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69 - Re ACM Gold Ltd; Re Mt Leyshon Gold Mines Ltd [1992] FCA 89; (1992) 34 FCR 530 - Re APN News & Media Ltd [2007] FCA 770; (2007) 62 ACSR 400 - Re Archean Gold NL (1997) 23 ACSR 143 - Re Arthur Yates & Co Ltd [2001] NSWSC 40; (2001) 36 ACSR 758 - Re Aspen Group Ltd [2015] NSWSC 1718 - Re AXA Asia Pacific Holdings Ltd [2011] VSC 4 - Re BigAir Group Ltd [2016] FCA 1296 - Re Brambles Industries Ltd (2006) 59 ACSR 501; [2006] FCA 1273 - Re DUET Management Company 1 Limited [2013] NSWSC 817; (2013) 95 ACSR 34 - Re Hostworks Group Ltd [2008] FCA 64; (2008) 26 ACLC 137 - Re Intecq Ltd [2016] NSWSC 1429 - Re Investa Properties Limited [2007] FCA 1104; (2007) 25 ACLC 1186 - Re Macquarie Capital Alliance Ltd [2008] NSWSC 745; (2008) 67 ACSR 484 - Re Macquarie Communications Infrastructure Group [2009] NSWSC 487 - Re Mirvac Ltd [1999] NSWSC 457; (1999) 32 ACSR 107 - Re NRMA Insurance Ltd (No 1) [2000] NSWSC 82; (2000) 33 ACSR 595 - Re Orion Telecommunications Ltd [2007] FCA 1389 - Re Prime Infrastructure Holdings Ltd [2010] NSWSC 1104; (2010) 80 ACSR 193 - Re SAI Global Ltd [2016] FCA 1312 - Re SFE Corporation Ltd [2006] FCA 670; (2006) 59 ACSR 82 - Re The Trust Company Ltd [2013] NSWSC 1680 - Re Toll Holdings Ltd [2015] VSC 123 - Re Veda Group Ltd [2015] FCA 1506 - Re Webcentral Group Ltd [2006] FCA 937 - Re Wridgways Australia Ltd [2010] FCA 1187 Texts Cited: - T Damian & A Rich, Schemes, Takeovers and Himalayan Peaks: The use of schemes of arrangement to effect change of control transactions, 3rd ed, 2013 Category: Principal judgment Parties: 2017/63852 DUET Finance Limited (Plaintiff) 2017/63853 DUET Company Limited (Plaintiff) 2017/63854 DUET Investment Holdings Limited (Plaintiff) 2017/66399 DUET Finance Limited as responsible entity of DUET Finance Trust (Plaintiff) Representation: Counsel: I M Jackman SC (Plaintiff – in each proceeding) D F C Thomas (CK William Australia Bidco Pty Ltd – in each proceeding)