Western Australian Numbered Acts Western Australian Numbered Acts (1) In this
section —
“person” includes an entity.
(2) This section
applies where it is necessary for the purposes of this Chapter to calculate
the interest of a person (the "relevant person” ) in a landholder or
other entity.
(3) This section does
not apply where section 158 or 159 applies.
(4) The interest is to
be first calculated as if the landholder or other entity were wound up without
regard to the notional exercise of the powers and discretions referred to in
subsection (5).
(5) The interest is to
be then calculated as if the landholder or other entity were wound up and as
if each interested person had exercised all powers and discretions exercisable
by the person —
(a) to
effect or compel an alteration to the constitution of the landholder or other
entity; and
(b) to
vary the rights attached to units or shares in the landholder or other entity;
and
(c) to
effect or compel the substitution or replacement of units or shares in the
landholder or other entity with other units or shares in it,
in such a manner as
would maximise the value of the relevant person’s interest.
(6) The reference in
subsection (5) to an interested person is —
(a) to
the relevant person; and
(b) if
the relevant person is a unit trust scheme, to the trustee of the scheme; and
(c) to
any person that the relevant person or a person referred to in
paragraph (b) has power to direct with respect to a distribution; and
(d)
where the calculation is required in order to determine the extent of a
relevant person’s interest for the purposes of section 163 or
164, to a related person under section 162 in respect of the relevant
person or a person referred to in paragraph (b).
(7) The relevant
person’s interest is the greater of the interest calculated under
subsection (4) and the interest calculated under subsection (5).
(8) If the calculation
under subsection (5) results in the greater interest the Commissioner
may, after considering the circumstances of the case, determine
that —
(a) the
application of subsection (7) would be inequitable; and
(b) the
relevant person’s interest is that calculated under subsection (4).