AMP Life Ltd v AMP Capital Funds Management Ltd & Anor

[2016] NSWCA 176

NSW Court of Appeal

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Interrogate

Catchwords

1. Corporations
2. › Registered managed investment schemes
3. › Meetings of members
4. › Voting rights
5. › Responsible entity and associates
6. › Whether associate precluded from voting where responsible entity but not associate has non-member interest in resolution
7. › Corporations Act 2001 (Cth), s 253E
1. Statutory Interpretation
2. › Purposive construction
3. › Prophylactic purpose of voting restriction
4. › Use of plural pronouns 'they' and 'their'
5. › Whether referring to group collectively or individually
6. › Corporations Act 2001 (Cth), s 253E
1. Statutory Interpretation
2. › Presumption against expropriation of rights
3. › Whether voting disentitlement constitutes confiscation or expropriation
4. › Inherent susceptibility of scheme interests to statutory conditions
1. Practice and Procedure
2. › Costs
3. › Trust disputes
4. › Testator's fault analogy
5. › Whether analogy applies on appeal
6. › Unsuccessful appellant beneficiary ordered to pay respondent's costs

Quick Take

Section 253E of the Corporations Act 2001 (Cth) operates on a collective basis: where any member of the group consisting of the responsible entity and its associates has a non-member interest in a resolution, all members of the group are disentitled from voting, even if a particular associate does not itself have such an interest. The conflicting first instance decisions of Davies J in Re Great Southern Managers and White J in Everest Capital are resolved in favour of the broader construction. The 'testator's fault' costs analogy does not extend to appeals from comprehensive first instance decisions on questions of statutory construction in trust disputes.