On an application for sanction of a scheme of arrangement under Section 86, the Court again considered the proper manner in which the “headcount” aspect of the approval requirement should be calculated where a custodian holds a number of shares for investors.
The traditional approach of the Courts as to the position of a custodian, assuming it is instructed to vote some of its shares in favour of and some against the scheme, has been to treat the custodian for the headcount test as one vote “for” and one vote “against.”
In the Little Sheep case, the petitioner argued that for the purposes of the headcount test a custodian should be counted as one person having voted either “for” or “against” the scheme depending on its net voting position.
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In the Matter of Sections 15 and 86 of the Companies Law (2011) Revision and In the Matter of Alibaba.com Cause No. FSD 38 of 2012, per Creswell, J. (20 April 2012)