Vistra IE (Bristol) Ltd v Mr Dawkins Brown
| Jurisdiction | England & Wales |
| Judge | Sir Alastair Norris |
| Judgment Date | 08 December 2020 |
| Neutral Citation | [2020] EWHC 3732 (Ch) |
| Docket Number | Case No: CR-2020-003769 |
| Date | 07 December 2020 |
| Court | Chancery Division |
[2020] EWHC 3732 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Sir Alastair Norris
Case No: CR-2020-003769
Mr Thornton appeared on behalf of the Applicant
(Remote Hearing)
This is an application for seven cross-border mergers by the absorption of Dutch subsidiaries by English parents within an investment group ultimately headed by Aevitas Property Partners llc, a Delaware entity. The mergers are themselves but part of a restructuring of Aevitas, the object of which is to convert this part of its operations into a real estate investment trust under Part 12 of the Corporation Tax Act within the UK by converting the Dutch substructure of holding companies and property-owning companies into an English holding company and English property-holding companies. The pattern in each case is almost identical.
At the hearing, I have been taken through one example. I have in fact been able to read and review all of them. The selected example is Capital Industrial Holdings 2 Limited, an English Company (“C Limited”). It will by the effective date of the merger own the entire issued share capital of Capital Industrial Holdings BV, a Dutch Company, (“CBV”). CBV owns and leases and manages real estate assets.
It is unnecessary to set out the jurisdictional requirements of The Companies (Cross-Border Merger) Regulations 2007. The two-stage process (satisfaction as to formal requirements and then the exercise of a discretion to approve or withhold approval for the merger) is very well established. As to the formal requirements of the selected case, this is proved by the witness statements of Matthew Horgan: (1) C Limited is an English company; (2) a pre-merger certificate in relation to it was granted by ICC Judge Barber on 25 November 2020; (3) CBV is an EEA company; (4) Mr Philip Koenig, a Dutch civil law notary, granted a pre-merger certificate in relation to it on 7 December 2020. (For reasons of Dutch law and in the light of some further steps which have to be taken, it will be necessary for him to issue a confirmatory certificate; but his legal opinion is clear that this present pre-merger certificate is effective for the purposes of Dutch law).
The fifth requirement is that the merger certificates should be substantially the same. In fact, the terms approved at the time of the pre-merger agreement itself contained (i) an inaccurate translation of a minor term; (ii) a misstatement of the share capital, and (iii) some typographical errors. These were corrected, and all the corrections assented to by all of those who are or will be shareholders under the reorganisation, by a letter dated 17 November 2020. Judge Barber took this into account when she decided to grant the pre-merger certificate, satisfying herself that, since these errors were minor in nature and did not relate to any of the prescribed matters, she had a jurisdiction to grant the certificate. I do not intend to revisit that decision but in fact I agree with it.
The final matter is that there are no employees involved, and therefore Part 4 of the regulation is not engaged.
Coming to the matter of discretion, this is yet another case in which it is unnecessary to embark on a consideration of the divergent views upon what weighs in the exercise of the discretion. Once again, it is...
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