TP03/043
The Takeovers Panel today advises that it has deferred making a decision in relation to the application it received from CPT Manager Limited (as responsible entity for Centro Property Trust) (Centro) on Thursday 10 April 2003. The application is for a declaration under section 657A of the Corporations Act (Act) of unacceptable circumstances and orders in relation to the affairs of AMP Shopping Centre Trust (ART). Centro is currently offering to acquire all of the units in ART in a takeover bid it announced on 18 March 2003.
The reason for the delay is that yesterday the Panel consented to AMP Life Limited (AMP Life) becoming a party to these proceedings, which the Panel commenced on 10 April 2003. AMP Life applied on Wednesday to become a party to the proceedings. AMP Life had three times previously refused the Panel's invitation to become a party to the proceedings.
The Panel is very mindful of the cost and uncertainty to unitholders in ART and Centro that the added delay will cause. However, the Panel considered that consenting was more likely to give greater certainty to unitholders earlier than the alternatives available to it.
Process
The Panel contacted all persons whose interests appeared to be affected by the application on 11 April 2003 in a brief, as required by Regulation 20 of the ASIC Regulations. AMP Life received a copy of the brief. It advised the Panel that it did not wish to become a party to the proceedings but sought to make submissions to the Panel. The Panel accepted AMP Life's request and allowed it to make submissions. The Panel advised AMP Life of the consequences of its choice not to become a party to the proceedings: i.e. it would not receive the submissions of the persons who did become parties, nor their rebuttal submissions, nor would it have the opportunity to make rebuttal submissions of its own.
The Panel, through the course of proceedings gave AMP Life two further invitations to become a party. AMP Life also refused these two further invitations, even though it acknowledged during the proceedings that its rights might be adversely affected if it did not become a party in circumstances where the Panel might refer the issue before it to a Court or make some order about the Co-owners' Agreements that are at the heart of the Panel's current proceedings.
On Monday 28 April 2003, the Panel provided parties, and AMP Life, with a draft decision which it then proposed to make, and offered them the opportunity to make submissions, under section 657A(4) of the Act.
On Wednesday 30 April 2003, AMP Life wrote to the Panel saying that the proceedings had taken a direction it had not foreseen (and which it couldn't have foreseen), that it had been denied access to documents which were relevant to it, and that the Panel had denied it procedural fairness.
AMP Life sought the Panel's consent to become a party to the proceedings, to receive copies of all documents provided to the Panel and to the parties in the proceedings, an opportunity to read and consider them and an opportunity to make submissions to the Panel on its draft decision and proposed orders in light of the information in the documents it was seeking.
The Panel has consented to AMP Life now becoming a party to the proceedings and has provided the relevant documents to AMP Life. Necessarily, that has meant that the Panel cannot now make its final decision in these proceedings until at least Wednesday 7 May 2003.
Costs
The Panel has advised AMP Life that it will take into account the additional costs of parties to the proceedings incurred because of the late time in the proceedings that AMP Life has now sought to become a party, in the event that it finds that unacceptable circumstances exist.
Review
The Panel also consented to AMP Life becoming a party because that will allow AMP Life the right to seek review of the Panel's decision at first instance (which it did not have as a person who had chosen not to become a party to the proceedings). The Panel also considered that providing the information to AMP Life, and giving AMP Life an opportunity to make submissions now, is most likely to assemble a complete and fully developed decision if any of the parties choose to seek review of the decision to a Review Panel. Again, the Panel considered that this was the shortest way to certainty for unitholders of ART and Centro.
Fairness
The Panel is very concerned to ensure that it conducts timely and efficient proceedings, for the benefit of investors, the market and parties, but also that it conducts them fairly and is seen to be fair. On that basis, the Panel considers it may not be seen to be fair in these circumstances, to deny AMP Life the opportunity to make submissions in these proceedings, and to seek review of this decision. The Panel noted that this is the first time that a person had refused to become a party and then sought to become one at the very end of proceedings. The Panel advised that its consent in these circumstances should not be seen as any precedent for future proceedings.
Guidance
The Panel will include guidance on the subject in it briefs for future matters.
The President of the Panel has appointed Leslie Taylor, Jenny Seabrook and Robyn Ahern to be the sitting Panel in these proceedings.
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
1 The Co-Owners' Agreements are agreements in relation to shopping centres which are co-owned by ART and other AMP entities. The Co-Owners' Agreements include pre-emptive rights requiring a party to the agreements to sell their interest in the shopping centres to the other co-owners in various circumstances.
