Takeovers Code (Westgate Power Centre Limited) Exemption Notice 2009

  • expired
  • Takeovers Code (Westgate Power Centre Limited) Exemption Notice 2009: expired, on 1 June 2009, by clause 3.

Reprint
as at 1 June 2009

Crest

Takeovers Code (Westgate Power Centre Limited) Exemption Notice 2009

(SR 2009/69)

  • Takeovers Code (Westgate Power Centre Limited) Exemption Notice 2009: expired, on 1 June 2009, by clause 3.


Note

Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint.

A general outline of these changes is set out in the notes at the end of this reprint, together with other explanatory material about this reprint.

This notice is administered by the Takeovers Panel.


Pursuant to section 45 of the Takeovers Act 1993, the Takeovers Panel gives the following notice (to which is appended a statement of reasons of the Takeovers Panel).

Notice

1 Title
  • This notice is the Takeovers Code (Westgate Power Centre Limited) Exemption Notice 2009.

2 Application
  • This notice applies to acts or omissions occurring on or after 23 August 2002.

3 Expiry
  • This notice expires on the close of 31 May 2009.

4 Interpretation
  • (1) In this notice, unless the context otherwise requires,—

    Act means the Takeovers Act 1993

    Code means the Takeovers Code under the Act

    MG Heritage Trust means the trust to be established by deed of trust before 1 June 2009 with Bryce Gordon Donne and Tracey Lancelot Goodin as trustees and the children and grandchildren of Mark Gunton as primary beneficiaries and known as the Mark Gunton Heritage Trust

    MG Trust means the trust known as the Mark Gunton Trust, established by deed of trust dated 24 May 1990.

    (2) In this notice, a reference to a person increasing voting control is a reference to the person becoming the holder or controller of an increased percentage of voting rights in Westgate Power Centre Limited.

    (3) Any term or expression that is defined in the Act or the Code and used, but not defined, in this notice has the same meaning as in the Act or the Code.

5 Exemption from rule 6(1) of Code for Neilson Murdoch Harris
  • Neilson Murdoch Harris is exempted from rule 6(1) of the Code in respect of any increase in his voting control resulting from his appointment as a trustee of the MG Trust on 23 August 2002.

6 Exemption from rule 6(1) of Code for Tracey Lancelot Goodin
  • Tracey Lancelot Goodin is exempted from rule 6(1) of the Code in respect of any increase in his voting control resulting from his appointment as a trustee of the MG Heritage Trust.

Dated at Auckland this 1st day of April 2009.

The Common Seal of the Takeovers Panel was affixed in the presence of:

[Seal]

David Jones,
Chairperson.


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—

  • any breach of the Code appears to have been inadvertent:

  • the shareholders of Westgate were not disadvantaged in not having the opportunity to vote on Mr Harris' appointment as trustee of the MG Trust, as it would not have had any real effect on those shareholders:

  • the appointment related to a reorganisation of a private family trust, and the Code is not intended to inhibit the restructuring of family trusts that have no real effect on the shareholders of a code company:

  • the exemption avoids unnecessary compliance costs that would be incurred if it were not granted.

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—

  • the shareholders of Westgate would not be disadvantaged in not having the opportunity to vote on Mr Goodin's appointment as trustee of the MG Heritage Trust, as it would not have any real effect on those shareholders:

  • the appointment of Mr Goodin as trustee of the MG Heritage Trust would relate to a reorganisation of a private family trust, and the Code is not intended to inhibit the restructuring of family trusts that have no real effect on the shareholders of a code company:

  • the exemption avoids unnecessary compliance costs that would be incurred if it were not granted.


Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 9 April 2009.


Contents

  • 1General

  • 2Status of reprints

  • 3How reprints are prepared

  • 4Changes made under section 17C of the Acts and Regulations Publication Act 1989

  • 5List of amendments incorporated in this reprint (most recent first)


Notes
1 General
  • This is a reprint of the Takeovers Code (Westgate Power Centre Limited) Exemption Notice 2009. The reprint incorporates all the amendments to the notice as at 1 June 2009, as specified in the list of amendments at the end of these notes.

    Relevant provisions of any amending enactments that have yet to come into force or that contain relevant transitional or savings provisions are also included, after the principal enactment, in chronological order.

2 Status of reprints
  • Under section 16D of the Acts and Regulations Publication Act 1989, reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by the amendments to that enactment. This presumption applies even though editorial changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in the reprint.

    This presumption may be rebutted by producing the official volumes of statutes or statutory regulations in which the principal enactment and its amendments are contained.

3 How reprints are prepared
  • A number of editorial conventions are followed in the preparation of reprints. For example, the enacting words are not included in Acts, and provisions that are repealed or revoked are omitted. For a detailed list of the editorial conventions, see http://www.pco.parliament.govt.nz/legislation/reprints.shtml or Part 8 of the Tables of Acts and Ordinances and Statutory Regulations, and Deemed Regulations in Force.

4 Changes made under section 17C of the Acts and Regulations Publication Act 1989
  • Section 17C of the Acts and Regulations Publication Act 1989 authorises the making of editorial changes in a reprint as set out in sections 17D and 17E of that Act so that, to the extent permitted, the format and style of the reprinted enactment is consistent with current legislative drafting practice. Changes that would alter the effect of the legislation are not permitted.

    A new format of legislation was introduced on 1 January 2000. Changes to legislative drafting style have also been made since 1997, and are ongoing. To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislation reprinted after 1 January 2000 is in the new format for legislation and reflects current drafting practice at the time of the reprint.

    In outline, the editorial changes made in reprints under the authority of section 17C of the Acts and Regulations Publication Act 1989 are set out below, and they have been applied, where relevant, in the preparation of this reprint:

    • omission of unnecessary referential words (such as of this section and of this Act)

    • typeface and type size (Times Roman, generally in 11.5 point)

    • layout of provisions, including:

      • indentation

      • position of section headings (eg, the number and heading now appear above the section)

    • format of definitions (eg, the defined term now appears in bold type, without quotation marks)

    • format of dates (eg, a date formerly expressed as the 1st day of January 1999 is now expressed as 1 January 1999)

    • position of the date of assent (it now appears on the front page of each Act)

    • punctuation (eg, colons are not used after definitions)

    • Parts numbered with roman numerals are replaced with arabic numerals, and all cross-references are changed accordingly

    • case and appearance of letters and words, including:

      • format of headings (eg, headings where each word formerly appeared with an initial capital letter followed by small capital letters are amended so that the heading appears in bold, with only the first word (and any proper nouns) appearing with an initial capital letter)

      • small capital letters in section and subsection references are now capital letters

    • schedules are renumbered (eg, Schedule 1 replaces First Schedule), and all cross-references are changed accordingly

    • running heads (the information that appears at the top of each page)

    • format of two-column schedules of consequential amendments, and schedules of repeals (eg, they are rearranged into alphabetical order, rather than chronological).

5 List of amendments incorporated in this reprint (most recent first)
  • Takeovers Code (Westgate Power Centre Limited) Exemption Notice 2009 (SR 2009/69): clause 3