Statement of reasons
This notice applies to acts or omissions occurring on or after 23 August 2002 and expires on 31 May 2009.
Westgate Power Centre Limited (Westgate) is a code company within the meaning of the Takeovers Code (the Code) as it has more than 50 shareholders. New Zealand Retail Property Group Limited (NZRPG) holds approximately 75% of the total voting rights in Westgate. The trustees of the Mark Gunton Trust (the MG Trust) hold approximately 87% of the shares in NZRPG. Accordingly, the trustees of the MG Trust control more than 20% of the total voting rights in Westgate, and any person that is appointed as a trustee of the MG Trust would become the controller of voting rights in Westgate (by joining the existing trustees as an associate in the control of those voting rights).
Appointment of Neilson Murdoch Harris as trustee of MG Trust on 23 August 2002
On 23 August 2002, Neilson Murdoch Harris was appointed as a trustee of the MG Trust. Upon his appointment, Mr Harris joined the remaining trustee, Bryce Gordon Donne, and the settlor, Mark Gunton, in the controlling of voting rights in Westgate. Shareholder approval was not obtained under rule 7(c) of the Code. Accordingly, it appears that Mr Harris may not have complied with the Code.
The Takeovers Panel (the Panel) has granted a retrospective exemption from rule 6(1) of the Code to Mr Harris in respect of any increase in his control of voting rights in Westgate as a result of his appointment as a trustee of the MG Trust on 23 August 2002.
The Panel considers that the exemption is appropriate and consistent with the objectives of the Code because—
Resettlement of MG Trust
The MG Trust has decided to resettle various assets upon the Mark Gunton Heritage Trust (the MG Heritage Trust), the beneficiaries of which are in all material respects the same as those of the MG Trust (the resettlement). The settlor of the MG Trust, Mark Gunton, has decided to appoint Bryce Gordon Donne (an existing trustee of the MG Trust) and Tracey Lancelot Goodin as trustees of the MG Heritage Trust. As part of the resettlement, the shares that are jointly held by the trustees of the MG Trust (currently Mr Donne and Mr Harris) are to be transferred to Mr Donne and Mr Goodin (jointly) in their capacity as trustees. Accordingly, following the resettlement, Mr Goodin would join Mr Donne and Mr Gunton in the controlling of voting rights in Westgate.
The Panel has granted an exemption from rule 6(1) of the Code to Mr Goodin in respect of any increase in his control of voting rights in Westgate as a result of his appointment as a trustee of the MG Heritage Trust.
The Panel considers that the exemption is appropriate and consistent with the objectives of the Code because—