A Notice To Unit Holders In Bt Managed Funds

A Notice To Unit Holders In Bt Managed Funds

Westpac Banking Corporation and BT Funds Management Limited have this afternoon announced an issue of apparent non-compliance by BT with New Zealand securities law. This matter was brought to the Commission’s attention by Westpac. The Commission is pleased Westpac and BT have decided to inform investors of this matter, at the request of the Commission.

The announcement from Westpac and BT Funds Management fails to address an important matter – the effect of this non-compliance with the law. In the Commission’s view subscriptions for any non-compliant allotments of securities are immediately repayable by BT Funds Management, plus interest at 10% per annum from the date of subscription.

The Commission understands that BT intends to apply to the High Court to clarify which units were issued under these circumstances, to validate affected investments and to pursue other potential avenues of relief from consequences of non-compliance. They have said that affected clients will be notified by BT and will be appropriately represented in any court process.

BT has provided an information line for investors. Investors who are potentially affected and who require early clarification should also consider taking independent advice.

The Commission believes it is important that investors who may be affected are aware of their rights in this matter at the earliest possible opportunity. The Commission considers there is a risk that investors may be prejudiced if they are not aware of their rights.

The Commission has decided to initiate an inquiry into this matter. The inquiry will also consider wider questions of compliance with the relevant exemption notices.

A description of the relevant law is set out in the attached background statement.

BACKGROUND

Investment products in Australian unit trusts and Australian registered managed investment schemes may be offered to the public in New Zealand under class exemptions granted by the Securities Commission. The relevant exemption is the Securities Act (Australian Registered Managed Investment Schemes) Exemption Notice 1999, and predecessor exemption notices.

These exemptions allow Australian funds managers to offer investment products to the public in New Zealand without a New Zealand registered prospectus, subject to compliance with the conditions of the Commission’s exemption.

One of the conditions of exemption is that certain documents relating to the investment schemes must be deposited with the Registrar of Companies. Westpac and BT inform the Commission that there appear to have been various periods of non-compliance with this requirement of the exemption prior to October 2002 for some BT funds offered to the public in New Zealand.

Failure to comply with this condition means that the exemption from having a registered prospectus does not apply to any securities allotted during the period that the documents were not deposited with the Registrar. Unless an exemption applies, any allotment of securities offered to the public without a registered prospectus is invalid and of no effect.

Where an invalid allotment is made the issuer of the securities has an immediate obligation to place the subscriptions in trust and to repay these as soon as reasonably practicable. If subscriptions are not repaid within 2 months after the date on which the subscriptions were received then the issuer and each of its directors are jointly and severally liable to repay the subscriptions, together with interest at a rate of 10% per annum.

This means that people who invested in affected funds during the periods of non-compliance are entitled to have their subscription money returned, plus interest of 10% per annum.

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