Prime Trust Action Group Welcomes Victorian Court of Appeal Judgement in 360 Capital Case



On 4 October 2012, the Court of Appeal in the Victorian Supreme Court delivered a unanimous judgement, confirming an earlier judgement, that unilateral amendments made by the Responsible Entity of the 360 Capital Industrial Fund were invalid.


Section 601GC(1)(b) of the Corporations Act allows a Responsible Entity to change the Constitution without member (unitholder) approval if it reasonably considers that the change will not adversely affect members' rights.  In the case in question, the Court of Appeal ruled that the RE failed to comply with s601GC(1)(b) of the Corporations Act and declared that "the right of a member to have a managed investment scheme administered according to the constitution of the scheme is fundamentally the most important right of membership".


Unitholders will recall that APCH, as Responsible Entity for Prime Trust, amended the Constitution without unitholder approval to provide itself with a listing fee of $33 million.  The Prime Trust Action Group believes that this amendment was contrary to s601GC(1)(b) as well as contrary to several other sections of the Corporations Act and the Constitution itself.  We note that the Court of Appeal decision may have application to several of the issues we have raised about the Prime Trust listing fee and welcome the recent Court of Appeal judgement and the precedents thereby created.