I~ THE GUAND COURT OF THF. CA VMAN ISLANDS FINANCIAL SERVICr:S DIVISION The Hon Mr Justice Andre,"' J. Jones QC [n Chambers, 29 and 30 November 2011 And In Open Court, 20 .January 2()12 CAUSE NO.FSD 182 OF 2011 (AJ.J) IN THE MA ITER of sections 15 and 86 of the Companies Law (20 I 0 Revision) (as amended) AND 1\1 THl:: MAITER of the Orand Court Rules 1995 Order 102 AND 1\1 TH E MA ITER of Little Sheep Group Limited ApfJcarances: Mr Nigel Meesn <.,)C and Mr Stephen LeonlSinis of Conyers Dill & Pearman for Little Sheep Group Limiled REASONS INTRODUCTION I. This applkaliun raises i:I. 4uI::Slion about how to decide whl;!thl;!T [hI;! "double majority" mandated by seclion 86 of the Companies Law has been achieved for the purposes of a se,heme of arrangement between a company and its shareholders, when all or substantially all of the shares in question are held lhrouglL ct :;in!;;l~ \;utltuuian ur clearing hOllSC. The Grand Court Rulcs Committee answered this question many years ago hy enacting Order 102. r,21 (6), bul it h:ls been slIbmitted by counsel in this case that the rule is ul(r(1 vire.~ or would be:: ultra vires if it is interpreted and applied in the manner set out in Practice Direction NO.2/2002.
Little Sheep Group Limited ("'the Company") Ilpplicd by Il summons dated gh November 20 I J for an order to convene a '·court meeling" in respect of a scheme of arrangement proposed to be made between the Company and its shareholders for the purpose of privatizing the Company ("the Scheme"). The Company's issued share capjl~1 comprises 1.037,220,620 ordinary shares of IIKSO.10 each ("the Issued 1of9 Shares") which tire prcscnLly lis led on the main board of the I-long Kong Stock Exchange. The current shareholder profile has been described to the Court as follows. Approximalely 29.7% of the Issued Shares are beneficially owned by Possible Way Lld, a company owned by the Company's principal tOllnoers, Mr Zh~ng Gong and Mr Chen Hongkai, members oflheir families, and various olher individuals invol\'ed with the establishmcnt and management of lhe Company . . V1CSSTS Zhang Gong and Chen Hongkai own El further 3.24% of the Issued Shares in lheir o",n right. Approximately 27% of the Issued Shares arc beneficially owned by W,mdle Investments Limiled "Wandle"), an indirect wholly owned subsidiary of Yum! Brands Inc, a company wnQse shares arc Iisled on the New York Stock Exchange. The balance of approximalely 40% of th\; Issut:u stulrt:s em: bt:ndid,llly owned by an unknown number of indepcndcnr investors.
The Company owns a large:: chClin ofrestllurallts in the Peorles Republic of China. On 2'"J May 2011 it entcred into an agreemt:nt wilh Wandie that it would promote the Seheme, the purpose and eftcct of which is that the Company will become a subsidiary of Ihc Yum! Brands Group, the world's Iflrgcst operator of franchised restaurants including Kentucky hied Chicken, Pizza filii and Taco Bet!. This agreement was publically announced on 13lh May 20 II. The intention is that WandIe will acquire 9723% of the Company's equity and tbe balance will continue to be owned by Possible Way Ltd. The mechanism by which this privatization is to be achieved is Hmt the relevant shares, including all those owned by the independent investors (referred 10 115 "the Scheme Shares") will be cancelled and the resulting credit wlll be applied to pay up al1d issue to WandIe the same number of new shares. Wnndlt: wi II pay to the holders of the Scheme Shares HK$6.50 in cash for each share. Economically, this mechanism has the same result as a [cnder ofter made by Wandie. Legally, there is an imporlHnt distinctIon. I f WandIe had malic: ~n llff~r to buy the oLltst(mdin~ shares which it does not already own, it would have to acquire 90% of them by agreement before it could compulsory ac.qllire the balance pursuant to section 88 of rhe Companies Law. The cln;~t of ~truvturill~ the transaction as a scheme of arrangcment is that section 86 provid\!s for a lower threshold of acccptance. The Scheme will become binding only if (a) it is approved by II majority in numher representing seventy-five; per cent in value of the Company's members (referred to as the "double majority" or ;;the stalulory majority") and (b) it is sanctioned by the Court The enh~t of Ihe Court's sanction is that the !\cheme becomes binding upon those members who abslained or voted against thc proposal. THE APPLICATION FOR DIRHCTlONS
The Company's summons for directions in respecl or the maHers which necessarily arise in connection with convening the court meeting initially came on for hearing on 291h November 20 II. The applicable procedural rules and practice are contained in the Grand Court Rules 1995 (Revised Edition), Order 102, rule 2 I and Pr(Jctie<: Direction No.212002, which set out in detail all the matlers which must be addressed 2 of 9 by the Court First, the Court will consider whclher or nol it IS appropriate to convene class meetings and, if so, the composition of the classes. Second, the Court will consider ,.mether the proposed time and place of the court meeting and the method of giving Ilutice is appropriate in all the circumstances. The test is whether the proposed arrangemt:nls are likely to allord the persons haYing lhe economic interest in the Sc.hcme Shflre~ a reasonable period within which to make an informed decision and deliver the·ir prox.y fanns or ""oting inslnlctions in time fo~ their vo1es to be c.OLlntcd. Third, the Court musl be satisfied that the scheme dlCumenlalion will provide tile shareholJers with all the infonnation reasonably necessary to enable them to make fln informed decision about the merits of the Scheme. The Rules and Practice Directinn spe<:i rically recognize and take account of the fill,;ltha1, ill ihe ordinary case, the shares in question are likely to be listed on a stock exchange ,lI1d that the registered holders of the shares arc unlikely to be the persons having the economic imere~1. For the purposes of giving directions the Courtlal\.t:~ m:.coun1 or the interests of the underlying inveslors. Fourth, the Court will require evidence in order to saLisfy itselr tl1al the directions for the Gourt meeling and the content of the scheme documentation comply with any the applicable slvck exchange rules and any mher applicable regulations. The Company's affidavit evidence addressed all these matters and I was satisfied [hat Ihc directions sought were appropriare, save in one importanl respect.
GCR Order 102, r.21 (6) states <IS follows- ~The Clllirl sh:tll give sud1 liircL1i(ln~ a:; may be necessary for thc purp<15e or cmbling it :o Ilctcrl11ine whclhl~r cr not the statutory majorities will havc bcen achicvl,.-u. lrall or ~ubstanlial1)' a:l of lhe share) or debl irSllllmcnt~ to l'ihic;h the rrop()~cd scheme ~lr.tc) urc registcr~,J in Lhe nllme of' one or more cuslo<.lial1~ cr clcar:n& houS(,'l), the Court may d.rccLthat . til) such w sLodian or c.earing huuse InJY c;~st voles bOLh 1'01' and against the prq10se in aco.)('d;l:1c~ wilh [he instructions of i:s clients; (b) such ~u~todinn OT c',cHing house shall sped/)' ~hc nur.1OCI' of voLes easL in favcur 0:' the scheme End lhe number of clienLs 01' members on whose ins:l'uclions Lhc)' arc cu.~t und the number of votes ellS I against the proposed scheme and Lhe number or clients or mc:nbcrs or. whose inslruclillllS Lhey arc cast:'
The shareholder prolile which I have described In paragraph 3 above ~1<1les to the beneficial ownership of the )ss\lcd Shares. The Company's evidence is that, as at 21 <l November 2011, 87.73% of the Issued Shares were registered in the name ofHKS(X-: Nominees Limited which acts as a common nominee in respect uf ~ecul'ities held in the C~ntrClI Clearing and Settlement Syslcm of the Hong Kong Securities Clearing Company Limited. whieh 1 shall refer to as "CCASS". It is acc.epted hy counsel for the Company that CCASS is a ""custodian or clearing house" within the meaning of Rule 21(6). The Company's urtidavit docs not (lclually specify what proportion of the Scheme Shilrcs (as opposed 10 the Issued Sh~lres) are regi"tered through CCASS. but counsel accepted tha[ it must be "1111 01' subst<1l1tilllly a1/" of them. It follows that I am bound to consider whelhcr or nOl I should direct that CCASS (a) may c·ast votes for ond against lhe Seheme in accordanl:e with the instructions reeeh'ed from its Participants (as defined in ils General Rilles) lInd (b) should specify the number of votes cast ill fDvour o~' the Scheme and the number of Participants on who~e Jnf9 inSLrucLions Lhey are cast and lhe number ()r \'Oles cast qgqinst the Scheme .md the Ilumbt:r uf"Par(il:ipanb un whuse insLrul:liulls they tlre (;a~l. 7_ NOlv.-·ithstanding Rule 21 (6), the Company's summons seeks a direction that "CCASS be cuu/lled ali one person ror the purpose of ascenailliug whether or nut the requirement thai a majority in number of the Scheme Shareholders approve the Schcmc"_ [rclilscci 10 make a tiirecl.ion in these lerms because r considered it to be wrong in principle and conLrary to Ru[e 21(6). CCASS can only cast "otes in accordance with instructions received Irom its IJarticipanLs. The Court is bound Lo assume that some Parcicipants will instruct CCASS to vote in favour of che Scheme and some will give instructions to vote against it_ CCASS is bound to vote, if at all, strictly in accordance \\iith its instructions, which necessarily mCElns that it must be able to votc both tor and against the Schcmc_ Arguably, this means that the Court is treating CCASS ns if it were two mcmbers/voters for thc purposcs of ciliculating the m~iority 111 value. As r understand it, Mr Meeson accepts that CCASS can vote for and against the Scheme (otherwise it will not be able co vote at all) but argues that I should direct that it be treated as one member/voter for the purpose of calculating the ml:\iority in number. As I understand paragraph 33 of his written submission, the theory is that the Court should look at the number of shares voted by CCASS and set offtne positive and negative votes against each other_ CCASS should then bc treated (IS one voter, either for or against the Scheme depending upon the net position. [n my judgmenl Ihis mCLhod of calculation would not be consislent with the purpose or section 86. It would also contravene Rule 21 (6)(b).
Having regard to thc fact that CCASS holds 87.7% of the Issued Shares and possibly hnltis I1n evcn higher prnponi()n of the Scheme Sharcs, the ctlcct of allowing if to yote for and against the Scheme is that thc outcome as regards the "majority in value" will be delennjned, almost inevit<lbly, by the instructions received from its PartiCipants. This is ~le common sense approach. It produces a commercially acceptable result which will bc readily undcrstood by investors. It is also the approach mandated by Rule 21 (6)(a)_ However, the ctlcct of treating CCASS as one member (with one vote) tor the purpose of ascertaining the "majority in number" without regard to the number of Participants from whom in:;tructions nre received is not only inconsistent with the purpose of section 86, but would be highly artiticialllnd could conceivably produce a result which is commercially unacceptable. This approach makes it easier for an oppont:nl of the Scheme 10 defeat it by the simple mech~tnism of having a nominal number of its shares registered in the names of the requi~ite number of individuals who agree to vote against it. In this way it would be possible for someone having a minimal economic interest in the Company to hold it to ransom and demand a higher prict: fUf his shan:s. CUllvt:r~ly, it WlIU[J Jllelk.e it e-d~ier for the Company's management to guarantee that the majority in number will be achieved by making the same kind of arrangements. The approach mandated by Rule 21 (6)(b) is intended [0 mitigate against manipu lation of this sort. 4019
I should make it clear that there is no suggestion that any share manipulation has taken place or is likely to occur in this case. I dismissed this part of the Company's summons simply because I considere.d that, in the circumstances of this case, the Court was being asked Lo make an order \\>hich was boLh COnlrary to the Rules and wrong in prindplc. InsLcm.l, I inlended Lo ITIiike an order in <locordam:e with Rule 21 (6) as follows - "cc,\gS nhaJ I h~ permitled 10 vole I(~' and Qgainsllhe Sc~()mo in UC~ll'dllnCQ , .... ith instruclions received from InV~~I ')r P:1.I'licipul1ls (t}~ uclineJ in the Scheme 1)0~umcnL), Each ini\)stl1r [>ortieipo:Jt who givc& ..,oling indrllCLj(ln,~ 10 CCJ\SS ~hall be COllnled es one J'ler~l1n for the purposes 0: IlSCerlDining; whellwr ,Ie n(ltthe requin:mcnt1.hlll ~ nllljoLty in numb<:r of lhe Scheme Shllrcho.dcrs aJ'lprovc the Scheme", I also directed that certain consequential amendments would need to be made to that part of the Scheme Document which dealt with the procedure for voting. THE MEANING Ah:D [FrECT Of SECTlO~ 86
The ~ol1owing day, before my order had been drawn lip and signed, I was persuaded to re-open Lhe hear-ing for the purpose of allowing counsel for the Company to make thc argument that there is no jurisdiction to make an order in these 1erms. The ~oll1plainL is that my intended order appears to have the effect or treating the ParLicipants of CCASS as if they are members of the Company and that the Court is prevented by section 311 of the Companies Law from treating anyone other than CCASS itselras the member. Section 38 states that- "The sub,cri bel'S (If the mCr.lorandJI1l cl' association or UIlY cum puny :;hull be cccm~d lO have agrcc:i 10 bl.'Comc members Ill' the company -,,'hose mCI1l(')[1fndurn lhl!y Il<Jve hul!~\;rilx;u , uml U~UI! tILe legislralion or the company shull be entered u:; m~ll1hcrs Oil lh~ n;gi:itc! llf IllCtliocrs hereinal'lcf menlioned, and cwry Utllel PCISUI! ""Ill' h"s Ilglccd In bec()mc <I mcmb\:l' of lhe company and whose nilme is \;nlC:"l:~ on the rcgi~lcr llf rnt.:rnhcrs, ~hall be deemed Lo b\; IlInClllber Ill' the com puny, II. In order to become a member of the Company it b necessary to have one's name placed on the register of members. Accordingly, it is said that each registered member is a single memher and for the purposes of what Mr \1eeson calls "the head-count test'", it is only thc registered members who mo)' be counted. It follows, according to counsel, that CCASS mLl~1 be counted as one voter for the purposes of the "majority in number" although by hb reasoning it is effectively being counted as two voters for the purposes ot"the "majority in value". Counsel referred me lo three authorities in support of lh is rroposition.
Re pSivlda LIm/led r2008) PCA 627 is relied upon in suppurt uf lhe proposition that "il is the law in Australia [hat Ihe registered shareholder [of a company] is one member even if it is il ucp()sitory". This is ,t dcc,ision ofthe Fedeml Court of Australia in which Jacobson J. mat.lt: 1:10 uakr c-ollvcning a scheme meeting pursuant to seClion 411(1) of the AuSLralian Corporations Act 2001. The report is a very briefstatemenl 50f9 of the reasons tor an ex parle order to convene a meeting in connection with a scheme of arr.!ngemcnl. IL does not recite the relevanl provisions of the Act or the <'lppliGHbk: rules, but it Is apparent lhal Ihe Olpplication was the equivalent of the Company's application berore this Court. It is also apparent that it was an ex p(Jrle application. In p~nlgruph II or his reasong Jacobson J. said lhut 53% of the ~ompany's shares are held through AN" Nominees Ltd. He commented lhat "This rna)' have consequences in relalion to thc hcadc.ount test imposed by sAl I (4)(a)(ii) of the Act". However, he did not expla:n lhe head-counlleSl or indicate whal the consequences might be. This is pt:rbaps nOl surprising since he also said in the next paragraph that "This is nOl a InCltter which alTects my discretion to convene a meeting of the shareholders of pSivida. However, it may become a relevant factor at the second court hearing. In that event the plaintiff may seek 10 rely l'lI rl:~enl amendments to sAil ... ." None of this is explained in the judge's reasons, Nor is it reflected in the order itself: which makes no referenc.e to A"JZ Nominees Ltd. I do nol iind this report at all helpful in connection with the conslruction and applicalion or :It:~liUII 86 ur the O:l)'lllan Islands Companics Law or Order 102, rule 21 orthe Grand Court Rules.
I was also referred to 'he decision of the Hong Kong Court of Appeal ill Re PCCW Ud 12009] 3 HKC 192. This case concerned the privatizution of Pacific Century CyberWorks Ltd and involved an application to the court to sanction II scheme of llrrongemcnt pursuanl to section 166 of the I long Kong Companies Ordnance, Cap.32 which is the equivalenl of seclion 86 of the Cayman Islands Companies Law. The mechanism used to privatize PCCW Ltd was the same as that proposed to be used in this case. Approximatcty 93.75% or PCCW Ud's shares were registered in the name of CCASS. There was evidence thal shareholdings owned by Iwo supporlers of scheme of arrangemenl had been <;split" by transferring and registering single shares in the names of hundreds of individuals prior to the court meeting fortne sole purpose llf t:llsuring that thl.: majoriLy in number would be achieved and/or boosting [he margin b) which it is achieved. The court held that the mB,jority in number would not have been achieved but for this share manipulation exercise. The Court of Appeal reversed the Irial judge's lk:~i:;il1n te SCLIl~liL'1l the sdmll\:, but il did not do so on the b(lsis that the manipulati ve practices had invalidated the vote. It was held that when Ihe court comes 10 Ihe conclusion that a material number of votes have been influenced by manipulative priJ(;lices, il cannot accord the majority its usual weight for the purposes of deciding whelher or not to sanction the scheme. I agree \vith this proposition, but thc Hong Kong Court of Appeal did not addres" the oppo"ite scenario in which the Il1Djorily in number would have been u0hicvcd but for manipulative share splitting carried out by opponents of a scheme of arrangement. It" the scheme or arrangement is considered [0 have been rejected as a result of manipulative share splitting, the quefltion of whether or not 10 SDIlction it would never come bcrorc the court.
Mr Mecson relied upon the observations of the lIonourable Anthony Rogers YP at paragraphs 66-75 and in particular the si(;l1ement in p;mlgri;1ph 66 in which he said 6019 "AI: thuse who voted. whcthi:r lor or Dg,linslthc Scheme, Wfl'C rcg.i~l.cmcl ~h~r!.'hul(k'l 's . Company law tukes no mllkc of any trusl or Ixm:liciul iI1ICr~s\ Il.laching til shares. lienee, n~ far a~ Ihe formalilit'S ~lre cl1n~crncd , there is no qucstioo nr ci1ullengc. Allhough il elin be saie lha ~ lhc threshold has hc~n achlc"cc J-.ccau~c those who vOleu in Jilv()ur or the Schcme were ~hal'ch{)klcr.;, the fact r~muins that there was a clear n1unipulalion or the vole and lx.'Calise or the extcn: lo which lhat happened the court cannol be ~urc the vote wa~ fair. Thill is relevant nil Ihe scc(lnd part of the court's runcti,m." Cayman Islands law is the same in the s(!nsc lhal section 38 or the Companies Law requires a company to trt:llt n:gislered shareholders, lind only registered shareholders, as its members. The judge went on to say in paragraph 68 that- "One ol' Ih..: :1Spc c L.~ of the aspcc ~~ highlighted hy thl; r<lI;L.~ of t1 ~ j~ I:a.:lC b ~ICll ~han;s wtiL:h remain rcgisterel.i in CC!\SS can be ~'{).Iillc~, \III the ':Jaih ur PWX) vOles, as regards the number of sh~res bul cannot be counled :10 a head-cliullL In lhose clrc~mstl!.nccs, thi, court s ~ mply uoe~ nl)t know how inl.iividllal shareholders whusc shares remain in CC!\SS wOl1ld have voted ." In this regard Hong Kong law is apparently different from Cayman Islands law. Whilst it is right III ~l:Jy that the Caym!lll Islands Companies Law takes no notice of an)' trusl or beneficial imerest altaching to shares, this does not lead to the conclusion that cmtodil'lns flnd clearing houses suc.h ac; CC ASS ''c<mnot be counted on 0 head- count" for the purposes or scx:tion 86. The effect of section 38 is that the Company and the Court is bound to treat CCASS as a member. However, lhis does not mean that lhc CourL is hound to adopt the fiction that r.CASS i~ an investor. The Court is perfectly cntith:d to take notice of the tact that custod inns or clearing houses such as CCASS are not the beneficial owners of the shares registered in their names. It is specifically spelt out in Rule 21 (6) that the Court will recognize that an institution such os CCASS, \vhich is doing nothing morc nor less than providing Ihe market with <l cuSlodian service, can only voLe the shares registered in its name in accordance with the instructions received from ils members or clients. This Court ghies directions designed to enable iL to carry out a head-count based upon tile number of Participants who give inSlruclions to CCASS. As a result of [he direction made in [his case in accordance wilh Rule 21 (G)(b), the Court will know both the number of Participants who instructed CCASS to vote in favour of the Scheme and the number who g<lve instructions to vote against it. In my judgment the combined effe\:t of section 38 and 86 of the Companies Law is that all those, and only those, whose names arc on the register must be counted for the purposes of bOln limbs of the double majority. The method by which they wi \I be counted is not ~pelled out jn section 86 and it is open to the Court to give appropriate directions consislent with the statutory purpose.
Finally, I W,lS rererred 10 the decision of the Court of Appeal in SchullZ v. Reynohll' [ 1992-931 CILR 59, The COllrt of Appeal held that a person having a beneficial interest in Lhe shares or a company has no loclI.\' standj to commence a derivative action on its behalf or in jts name. This can only be donc by or in the name of the registered shareholder. /,acca P. said at page 69 - 70f9 VIJ/irl/« riKht,\, und as a bene/i";(1/ (>llllle" oflhe shares has 110 l"ighl .~ l.IIuk,.tht!. I.aw. 1J'1<! inl'/anl "OSQ can fhere.f}r~ be di.~lillfilli.·hedl/"Om IG:cal \V~slcrn Rail W:Jy Cc v. Ruslh1ul (I ~52) ft4 I i It I) 21 J. In RI} ~'iew is it only C:"IS. Ihe }"e~iSlered shareholder of Newpo/'t j,rd. who Clln il1~·ti/Zlle an action agrJin.rl ;\el"p()1'1 LId " This case did not involve tl seileme or' nrrangcmcnt. The Court of Appeal was Hot I;unsklering the meaning and effect of section 86. Its analysis simply leads to Lhe conclusion that CCASS should be regarded as a member of the Company and that its Pmlicipants are not members of th~ Company. This ~onclusion is not in issue. The question which I urn being tatutory majorities mandated by Rules 2 I (6)(a) and (b) are u/lra vires because they are tantamount to treating the Participantc; a~ members. 16.1 remind my!)c1f thallhe basic rule of statutory interpretation is Lhat it is taken to be the Legislature's intention thnt a st<ltute will be construed in accordance wilh the gcncttll guides to legislative intention ),lid down hy lilw, ) rnuslwnsider section 86(2) in its proper conLext and seek to avoid an interpretation whieh produces an unworkable or impraclical result. which is inherently unlikely to have heen intended by Lhe LegislDturC. (See Francis IJcnnion's Sralu/ory [lIlapre/ation (foUl"Lh EJitiun), SccLion J 13. page!> 832-9). The purpose of section ~6 is to provide a mechanism whereby rights vested in large numbers or shareholders (or creditors) can he vnried in circl1ln~lances where it would be impractical to negotiate and reach agreement with each one separately. Thl: mechanism is that the rights of shareholuers or classes or shareholders (or creditors) may be varied with majority consent. Because vested contractual rignLs are being compulsorily varied, an essential part or this mechanism is that the procedure for obtaining majority consent is fixed hy the Court and the scheme of arrangement (which is a contract) becomes binding upon the parties only if it is ~"anctioned by the Court. The c()mp:InY has no power to summon an eXlraordimuy gCllcsal meelin~ rur lht: purpu~\:s or l:onsidt:ring and, jf (hough tit, approving a scheme of arrangement. A meeting for this purpose can be convened only by order of the COllrt ""in sllch manner as the COLirt directs". These words give the Court a wide discretion to give dire.ctiot1s about the procedure by wllid! tll\: [m:eLing will be convened and also the mechanisms by which the statutory majorities will be calculated.
Mr Meeson submits, rightly in my \li~w, thai the concept of a "majority in number" implies some form of head-count. However, section Rfi does not stipulaLe flny mechanism by which the head-count should be conducted. It is 11 matter for the Court 10 fix tile mechanism in accordance with the Rules, having regard to the circumstances of the casco When shares are regigtered in the names or two or more natural persons as joint own ern, it is open to the Court to trcDt them LIS a single hCtld (i.1r the purpose of the count. Similarly, when shares are registered in the name of a cus~odian or clearing house sllch as CCASS. tile Court is bound [Q treat it as a member of the comp~lny but it is also entitled to treat il as multi-headed member tor lhe purpose oj" thl;: count. Rule 2 I (6)(b) sets out the mechanism for determining the 8 ()f9 number of heads which will be attributed tn CCASS_ This mechanism is simple, praclical and well understood by institutions such as CCASS which have bt:t:1I Heling upon it ror many yeClr~ without any difficulty. CONCLUSION
On its lrue construction, section 86 does not mean thal each member must neccsS<'lrily be trcated !lS one head for the purpQses of the calculatin~ majority in number. "lor does it IllC,lll that t:ach member must necessarily cast only one vote for the purpose of calculating lhe majority in value. For these reasons I made an order that Cc.I\SS be permittcc1 10 vote for Rild f1gainst the Scheme in accordance with the instructions from its Participants and that it shall specify tbe number of votes cast in favour of the Scheme and the number of Participants on whose insln.:ctions they arc cast and the numher uf votes cast agHinst the Scheme lind the number of Participants on whose instructions they are cast. CCASS will be: treated as a tnulti-ht:adt.:u member for the purposes or the head-count. Th~ number of Participants from whom it received instnlctions (both ror and against) will determine the nlJmner of votes attribLllHbl~ to Cc.I\SS tor lhe purpo::>c of determining whether the majority in number has been achieved. DATI3D this 20th day of January 2012 The Hon Mr .Justice Andn:w .J. JOlles QC .JUDGE OF THIt GRAND COt;RT \)ol\)