TP02/056
The Panel advises that it has received a third application in relation to the four Colonial First State Property funds. The application is from the Responsible Entity for the Colonial Funds and is in relation to Mirvac Funds Limited's takeover bid for the Colonial Funds. The application seeks a declaration of unacceptable circumstances, and interim orders to restrain Mirvac processing acceptances or exercising any voting power in the Colonial Funds in reliance on those acceptances and similar final orders until Mirvac amends its constitution to resolve the issue. Mirvac disputes the application and advises that it considers it is fully entitled to issue stapled securities as described in its bidder's statement.
The application follows some dispute between the parties as to whether the constitution of the Mirvac Fund allows the issue of the Mirvac stapled securities in the manner, and at the value, described in the Mirvac bidder's statement.
The Colonial Responsible Entity also disputes Mirvac's ability to issue the options offered under its bid. Mirvac also rejects these assertions.
The Commonwealth Responsible Entity has raised similar issues to those raised by the Colonial Responsible Entity.
Both Mirvac and the Colonial Responsible Entity assert that they have Senior Counsel's advice to support their contentions.
The application follows the application last night to halt dispatch of the Mirvac bidder's statement. In both that application, and this one, the Panel is concerned to ensure that Colonial unitholders will have as much relevant information as is reasonable prior to the proposed Meetings of the Colonial Funds.
The Colonial Responsible Entity has requested the Panel to refer the issue of Mirvac's ability to issue the units to the court for determination. It currently seems extremely unlikely for such a question to be determined, prior to the Meetings or the Meetings' proxy closing dates.
The Panel is not currently minded to order that the Meetings be postponed. It considers that that is still a decision for the Colonial Responsible Entity.
The Panel will seek to resolve the application for interim orders so that further information on these issues can be provided to unitholders in the Colonial Funds in reasonable time for them to make use of it prior to the Meetings and the proxy closure. Currently, feasible ways of achieving this are likely to be by newspaper advertisement, announcement to ASX and posting on the relevant entities' websites.
The President of the Panel has appointed Jennifer Seabrook, Karen Wood and Teresa Handicott to consider the applications.
Nigel Morris
Director, Takeovers Panel
Level 47 Nauru House,
80 Collins Street
Melbourne VIC 3000
Ph: +61 3 9655 3501
nigel.morris@takeovers.gov.au
