In the matter of Re1 Limited (ABN 80 145 743 862) and Re2 Limited as responsible entities for Westfield Retail Trust 1 and Westfield Retail Trust 2 (No 3) [2014] NSWSC 762 the NSW Supreme Court considered the adjournment of the adjournment of the SGM of the Westfield Retail Trust relating to its restructuring.
The chair adjourned the meeting of 29 May 2014 to a date to be fixed following disclosure of new information.
Justice Brereton set out his considerations in approving the adjournment and the resumption and conduct of the adjourned meeting.
“first, whether what is proposed will be lawful and compliant with the relevant provisions of the Corporations Act and such other laws as may be applicable; secondly, whether there is any apparent impediment to the proposal that would make it improbable that the Court would approve it at the second hearing, which will take place after the securityholder meeting; and thirdly, whether the matters are being put to securityholders in an atmosphere and with information that ensures that they are properly and fairly informed of the relevant matters which will inform their decision and their vote….
it was not inappropriate to adjourn the meeting, to enable that recently received information to be properly considered by securityholders, in particular so that those who had already cast proxy votes before that information became available, might be in a position to reconsider their position in the light of the new information.”
Justice Brereton was satisfied that under the constitution of the Westfield Retail Trusts there was power in the chair to adjourn the meeting as he did.
How long should the adjournment be for? The company must allow sufficient time for securityholders to be appropriately notified, obtain advice if they wish, and lodge a new proxy form if so desired.
Who will be entitled to vote at the adjourned meeting? “As the adjourned meeting is not a new meeting, but a continuation of the meeting of 29 May …, the same qualifications for eligibility to vote must apply as applied at the earlier meeting and, accordingly, the registration date of 27 May 2014 as the entitlement cut-off date remains appropriate.”
Justice Brereton orders included:
(a) the only persons who are entitled to attend and vote at the resumed meeting will be the Securityholders whose interests were recorded on the register of Westfield Retail Trust as at 7:00 pm on Tuesday, 27 May 2014 (the Entitlement Cut-Off) as being entitled to vote such interests;
(b) Securityholders (as at the Entitlement Cut-Off) will be able to change their votes by submitting revised proxy forms should they wish to do so, provided they are received by no later than 10.00 am (AEST) on Wednesday, 18 June 2014 (Revised Proxy Deadline);
(c) Securityholders (as at the Entitlement Cut-Off) who did not vote by the original Proxy Deadline of 2.00 pm (AEST) on Tuesday, 27 May 2014 will be entitled to submit proxy forms;
(d) if a Securityholder submitted a valid proxy form by the original Proxy Deadline and he or she does not submit a revised proxy form by the Revised Proxy Deadline, then his or her vote will be cast in accordance with the directions of his or her previously submitted proxy form.
