Panel Decision in Third Application in Relation to Colonial First State Property Funds

Release number


The Panel advises that it has reached a decision on interim orders in the third application in relation to the four Colonial First State Property funds which the Panel announced yesterday. The application from the Responsible Entity for the Colonial Funds sought interim orders to restrain Mirvac Funds Ltd processing acceptances under its bid for the Colonial Funds or exercising any voting power in the Colonial Funds in reliance on those acceptances.

The Panel advises that its decision on interim orders is as follows:

  1. It will not make any order affecting the date of the Colonial Funds meetings (the Meetings) which are due to consider the Merger Proposal put forward by the Commonwealth Office Property and Gandel Retail Funds. The Meetings are due to proceed on Monday 30 September;
  2. The Panel has made application to the Federal Court for the Court to decide the issue of whether Mirvac may validly, under its constitution, issue Mirvac stapled securities, or options, in the manner, and at the value, described in the Mirvac bidder's statement, and, if there is any problem, whether it may be remedied;
  3. The Panel has accepted an undertaking from Mirvac that it will not exercise any votes from acceptances at the Meetings on Monday; and
  4. The Panel will wait for the Court's decision before making its final decision as to whether unacceptable circumstances exist.

Mirvac advises the Panel that to assist the Panel's proceedings, it will not process any acceptances or issue securities until after the Meetings, by which time it is anticipated that the question of law will be resolved. If not, the Panel will make an interim order in relation to processing acceptances to preserve the status quo until the issue is resolved.

The Panel considered that there is enough uncertainty as to Mirvac's current and future ability to issue the securities as proposed in its bidder's statement that the referral to the court was warranted. The proceedings are before the Federal Court tomorrow morning and parties have advised the Panel that submissions could be heard within a full day's court hearing. The Panel will issue a further Media Release by Friday afternoon at the latest advising of the progress or the result of the proceedings. It will also ask the parties to post announcements on their websites and give a copy of those announcements to ASX.

The undertaking provided by Mirvac means that it will not vote at the Meetings, and that any Colonial Funds unitholder who has accepted the Mirvac offer may still attend, or give a proxy, for the Monday Meetings. The Colonial Responsible Entity advises that Colonial Funds unitholders may lodge proxies by fax up until 9.00 a.m. AEST on Saturday 28 September 2002. The number is 02 8234 5180.

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