Civil liability of trustee‑managers to unitholders
Open ↗40.—(1) Any unitholder of a registered business trust who suffers loss or damage because of any conduct of the trustee‑manager of the registered business trust which contravenes any provision of this Act may recover the amount of the loss or damage by action against the trustee‑manager, whether or not the trustee‑manager has been convicted of an offence in respect of the contravention.
(2) Any action under subsection (1) must commence within 6 years after the cause of action arises.
(3) This section does not affect any liability that any person has under any other provision of this Act or under any other written law or rule of law.
Power to acquire units of unitholders dissenting from arrangement or contract approved by 90% majority
Open ↗40A.—(1) Where an arrangement or a contract involving the transfer of all of the units, or all of the units in any particular class, in a registered business trust (called in this section the subject trust) to —(a)
the trustee of another trust (including the trustee‑manager of another business trust and the trustee of a real estate investment trust); or
(b)
any other person,[Act 30 of 2022 wef 12/03/2024]
(called in this section the transferee) has, within 4 months after the making of the offer in that behalf by the transferee, been approved as to the units or as to each class of units whose transfer is involved by the holders of at least 90% of the total number of those units or of the units of that class (other than units already held at the date of the offer by the transferee), the transferee may, at any time within 2 months after the offer has been so approved, give notice in the prescribed manner to any dissenting unitholder that it desires to acquire the units of the dissenting unitholder.
[2/2009]
[Act 30 of 2022 wef 12/03/2024]
(2) When a notice mentioned in subsection (1) is given, the transferee is, unless on an application made by a dissenting unitholder within one month from the date on which the notice was given or within 14 days of a statement being supplied to a dissenting unitholder under subsection (3) (whichever is the later) a court thinks fit to order otherwise, entitled and bound to acquire those units —(a)
on the terms which under the arrangement or contract the units of the approving unitholders are to be transferred to the transferee; or
(b)
if the offer contained 2 or more alternative sets of terms, on the terms which were specified in the offer as being applicable to dissenting unitholders.[2/2009]
(2A) Where alternative terms were offered to the unitholders, a dissenting unitholder is entitled to elect which of those terms the dissenting unitholder prefers, on or before the later of the following dates:(a)
the last day of one month after the date on which the notice is given under subsection (1);
(b)
the 14th day after a statement is supplied under subsection (3).[Act 30 of 2022 wef 12/03/2024]
(2B) In offering alternative terms to the unitholders, the transferee must state which of those terms is to apply to the acquisition of the units of a dissenting unitholder where the dissenting unitholder fails to make the election within the time allowed under subsection (2A).[Act 30 of 2022 wef 12/03/2024]
(2C) In determining whether the arrangement or contract has been approved by the holders of the requisite number of units, or units of any particular class, under subsection (1), the units that are issued after the date of the offer are to be disregarded.[Act 30 of 2022 wef 12/03/2024]
(3) Where a transferee has given notice to any dissenting unitholder of the subject trust that it desires to acquire the units of the dissenting unitholder, the dissenting unitholder is entitled to require the trustee-manager of the subject trust by a written demand served on the trustee-manager of the subject trust, within one month from the date on which the notice was given, to supply the dissenting unitholder with a written statement of the names and addresses of all other dissenting unitholders as shown in the register of unitholders of the subject trust; and the transferee is not entitled or bound to acquire the units of the dissenting unitholders until 14 days after the posting of the statement of such names and addresses to the dissenting unitholder.[2/2009]
[Act 30 of 2022 wef 12/03/2024]
(4) Where, pursuant to any such arrangement or contract, units in the subject trust are transferred to a transferee or its nominee and those units together with any other units in the subject trust held by the transferee at the date of the transfer comprise or include 90% of the total number of the units in the subject trust or of any class of those units, then —(a)
the transferee must within one month from the date of the transfer (unless on a previous transfer pursuant to the arrangement or contract it has already complied with this requirement) give notice of that fact in the prescribed manner to the holders of the remaining units in, or of the remaining units of that class of units in, the subject trust who have not assented to the arrangement or contract; and
(b)
any such holder may within 3 months from receiving the notice require the transferee to acquire the units of the holder.[2/2009]
(5) Where a unitholder has given notice under subsection (4)(b) with respect to any units, the transferee is entitled and bound to acquire those units —(a)
on the terms on which under the arrangement or contract the units of the approving unitholders were transferred to it; or
(b)
on any other terms that are agreed or that the court on the application of either the transferee or the unitholder thinks fit to order.[2/2009]
(6) Where a notice has been given by the transferee under subsection (1) and a court has not, on an application made by the dissenting unitholder, ordered to the contrary, the transferee must —(a)
after the expiry of one month after the date on which the notice has been given;
(b)
after 14 days after a statement has been supplied to a dissenting unitholder under subsection (3); or
(c)
if an application to the court by the dissenting unitholder is then pending, after that application has been disposed of,
transmit a copy of the notice to the trustee of the subject trust together with an instrument of transfer executed on behalf of the unitholder by any person appointed by the transferee and on its own behalf by the transferee, and pay, allot or transfer to the trustee of the subject trust the amount or other consideration representing the price payable by the transferee for the units which by virtue of this section the transferee is entitled to acquire, and the trustee of the subject trust must thereupon register the transferee as the holder of those units.
[2/2009]
(7) Any sums received by the trustee of the subject trust under this section must be paid into a separate bank account, and any such sums and any other consideration so received must be held by that trustee in trust for the several persons who had held the units in respect of which they were respectively received.[2/2009]
(8) Where any money or other consideration is held in trust by the trustee of the subject trust for any person under this section, the trustee holding the money or other consideration may, after the expiry of 2 years and must, before the expiry of 10 years, after the date on which such money or other consideration was received by the trustee, transfer the money or other consideration to the Official Receiver.[Act 30 of 2022 wef 12/03/2024]
(9) The Official Receiver must —(a)
deal with any moneys received under subsection (8) as if the moneys were paid to the Official Receiver pursuant to section 49; and
(b)
sell or dispose of any other consideration so received under subsection (8) in any manner that he or she thinks fit and must deal with the proceeds of the sale or disposal as if it were moneys paid to him or her pursuant to section 49.[Act 30 of 2022 wef 12/03/2024]
(10) In determining the units in the subject trust already held by the transferee at the date of the offer under subsection (1) or the percentage of the total number of units in the subject trust or of any class of those units held by the transferee under subsection (4), units held or acquired —(a)
by a nominee on behalf of the transferee;
(b)
where the transferee is a corporation, by its related corporation or by a nominee of the related corporation;
(c)
where the transferee is the trustee‑manager of a business trust or the trustee of a real estate investment trust —(i)
by a person who controls more than 50% of the voting power in the business trust or real estate investment trust, or by a nominee of that person;
(ii)
by the trustee‑manager of the business trust on its own account, or by the manager for the real estate investment trust, or by a nominee of the trustee‑manager or manager; or
(iii)
by a related corporation of the trustee‑manager for the business trust or the manager for the real estate investment trust or by a nominee of that related corporation; or
(d)
where the transferee is the trustee of a trust that is not a business trust or a real estate investment trust, by a related corporation of the trustee (being a corporation) or by a nominee of that related corporation,
is to be treated as held or acquired by the transferee.
[2/2009]
(11) To avoid doubt, in this section —(a)
a reference to a transferee (being the trustee of a trust) holding, acquiring or contracting to acquire units in another trust is a reference to the transferee doing any of these as trustee of the firstmentioned trust; and
(b)
a reference to a transfer of units of a trust to a transferee (being the trustee of another trust) is a reference to such transfer of units to the transferee as trustee of that other trust.[2/2009]
(12) The reference in subsection (1) to units already held by the transferee —(a)
includes a reference to units which the transferee has contracted to acquire; but
(b)
excludes units which are the subject of a contract binding the holder of the units to accept the offer when it is made, being a contract entered into by the holder for no consideration and under seal or for no consideration other than a promise by the transferee to make the offer.[2/2009]
(13) Where, during the period within which an offer for the transfer of units to the transferee can be approved, the transferee acquires or contracts to acquire any of the units whose transfer is involved but otherwise than by virtue of the approval of the offer, then the transferee may be treated for the purposes of this section as having acquired or contracted to acquire those units by virtue of the approval of the offer if, and only if —(a)
the consideration for which the units are acquired or contracted to be acquired (called in this subsection the acquisition consideration) does not at that time exceed the consideration specified in the terms of the offer; or
(b)
those terms are subsequently revised so that when the revision is announced the acquisition consideration, at the time mentioned in paragraph (a), no longer exceeds the consideration specified in those terms.[2/2009]
(14) In this section —“dissenting unitholder” includes a unitholder who has not assented to the arrangement or contract and any unitholder who has failed or refused to transfer the units of the unitholder to the transferee in accordance with the arrangement or contract;
“real estate investment trust” has the meaning given by section 2(1) of the Securities and Futures Act 2001;[2/2009; 4/2017]
[Act 30 of 2022 wef 12/03/2024]
“register of unitholders” includes any records kept by the trustee-manager of the subject trust, or with respect to the subject trust, of the names and addresses of holders of derivatives of units in a registered business trust.[Act 30 of 2022 wef 12/03/2024]
(15) In this section and sections 40B and 40C, “units”, in relation to a registered business trust, includes derivatives of units in a registered business trust.[Act 30 of 2022 wef 12/03/2024]
(16) In this section and section 40C, “unitholders” includes holders of derivatives of units in a registered business trust but does not include a person who holds derivatives of units in a business trust only beneficially.[Act 30 of 2022 wef 12/03/2024]
(17) Nothing in the definition of “units” in subsection (15) is to be read as requiring any units to be treated —(a)
as units of the same class as those into which they are convertible or for which the holder is entitled to subscribe; or
(b)
as units of the same class as other units by reason only that the units into which they are convertible or for which the holder is entitled to subscribe are of the same class.[Act 30 of 2022 wef 12/03/2024]
Joint offers
Open ↗40B.—(1) In the case of an arrangement involving an offer to acquire all of the units in a registered business trust, or all of the units in any particular class in a registered business trust, by 2 or more persons jointly (called in this section the joint transferees), section 40A is to be read subject to this section.
(2) The conditions for the exercise of the rights conferred by section 40A(1) and (2) are satisfied —(a)
in the case of acquisitions of units by virtue of acceptances of the offer — by the joint transferees acquiring or unconditionally contracting to acquire the necessary units jointly; or
(b)
in other cases — by the joint transferees acquiring or unconditionally contracting to acquire the necessary units either jointly or separately.
(3) The conditions for the exercise of the rights conferred by section 40A(4) and (5) are satisfied —(a)
in the case of acquisitions of units by virtue of acceptances of the offer — by the joint transferees acquiring or unconditionally contracting to acquire the necessary units jointly; or
(b)
in other cases — by the joint transferees acquiring or contracting (whether unconditionally or subject to conditions being met) to acquire the necessary units either jointly or separately.
(4) Subject to this section, the rights and obligations of the transferee under section 40A are respectively joint rights and joint and several obligations of the joint transferees.
(5) Subject to subsection (6), any notice or other document given or sent by or to the joint transferees under section 40A is complied with if the notice or document is given or sent by or to any of them.
(6) The notice required to be given by the joint transferees under section 40A(1) and (4) must be made by all of the joint transferees and —(a)
where one or more of them is a corporation, signed by a director or an equivalent person of that corporation; and
(b)
where one or more of them is a limited liability partnership or partnership, signed by any partner who has authority to bind the limited liability partnership or partnership, as the case may be.[Act 30 of 2022 wef 12/03/2024]
Effect of impossibility, etc., of communicating or accepting offer made under arrangement or contract
Open ↗40C.—(1) Where there are unitholders of units in a registered business trust to whom an offer to acquire units in the registered business trust is not communicated, that does not prevent the offer from being an offer made under an arrangement or a contract for the purposes of section 40A if —(a)
those unitholders have no address in Singapore registered with the trustee-manager of the registered business trust;
(b)
the offer was not communicated to those unitholders —(i)
in order not to contravene the law of a country or jurisdiction outside Singapore; or
(ii)
because communication to those unitholders would in the circumstances be unduly onerous; and
(c)
either —(i)
the offer is published in the Gazette; or
(ii)
the offer can be inspected, or a copy of it obtained, at a place in Singapore or on a website, and a notice is published in the Gazette specifying the address of that place or website.
(2) Where an offer is made to acquire units in a registered business trust and there are persons for whom, by reason of the law of a country or jurisdiction outside Singapore, it is impossible to accept the offer, or more difficult to do so, that does not prevent the offer from being made under an arrangement or a contract for the purposes of section 40A.
(3) It is not to be inferred —(a)
that an offer which is not communicated to every unitholder of the registered business trust cannot be an offer made under an arrangement or a contract for the purposes of section 40A unless the requirements of subsection (1)(a), (b) and (c) are met; or
(b)
that an offer which is impossible, or more difficult, for certain persons to accept cannot be an offer made under an arrangement or a contract for those purposes unless the reason for the impossibility or difficulty is the reason mentioned in subsection (2).[Act 30 of 2022 wef 12/03/2024]
Remedies in cases of oppression or injustice
Open ↗41.—(1) Any unitholder or any holder of a debenture of a registered business trust may apply to the court for an order under this section on the ground —(a)
that the affairs of the registered business trust are being conducted by the trustee‑manager of the registered business trust, or the powers of the directors of the trustee‑manager of the registered business trust are being exercised, in a manner oppressive to one or more of the unitholders or holders of debentures of the registered business trust including the applicant or in disregard of the applicant’s or their interests as unitholders or holders of debentures of the registered business trust; or
(b)
that some act of the trustee‑manager of the registered business trust, carried out in its capacity as trustee‑manager of the registered business trust, has been done or is threatened or that some resolution of the unitholders or holders of debentures of the registered business trust or any class of them has been passed or is proposed which unfairly discriminates against or is otherwise prejudicial to one or more of the unitholders or holders of debentures of the registered business trust (including the applicant).
(2) If on such application the court is of the opinion that either of the grounds mentioned in subsection (1) is established, the court may, with a view to bringing to an end to or remedying the matters complained of, make any order that it thinks fit and, without limiting the foregoing, the order may —(a)
direct or prohibit any act or cancel or vary any transaction or resolution;
(b)
regulate the conduct of the affairs of the trustee‑manager of a registered business trust in relation to the registered business trust in future;
(c)
authorise civil proceedings against the directors of the trustee‑manager of the registered business trust to be brought in the name of or on behalf of all the unitholders of the registered business trust as a whole by any person or persons and on any terms that the court may direct;
(d)
provide for the purchase of the units in or debentures of the registered business trust by other unitholders or holders of debentures of the registered business trust;
(e)
provide that the registered business trust be wound up; or
(f)
provide that the costs and expenses of and incidental to the application for the order are to be raised and paid out of the trust property of the registered business trust or to be borne and paid in any manner and by any persons that the court deems fit.
(3) Where an order under this section makes any alteration in or addition to the trust deed of any registered business trust, then, despite anything in any other provision of this Act but subject to the provisions of the order, the trustee‑manager of the registered business trust concerned does not have power, without the permission of the court, to make any further alteration in or addition to the trust deed that is inconsistent with the provisions of the order; but subject to the foregoing provisions of this subsection the alterations or additions made by the order have the same effect as if duly made by special resolution of the unitholders of the registered business trust.[Act 25 of 2021 wef 01/04/2022]
(4) A copy of any order made under this section must be lodged by the applicant with the Authority within 7 days after the making of the order.
(5) Any person who contravenes subsection (4) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 and, in the case of a continuing offence, to a further fine not exceeding $1,000 for every day or part of a day during which the offence continues after conviction.
(6) This section applies to a person who is not a unitholder of a registered business trust but to whom units in the registered business trust have been transmitted by operation of law as it applies to the unitholders of a registered business trust; and references to a unitholder or unitholders are to be construed accordingly.
Derivative or representative actions
Open ↗42.—(1) Subject to subsection (2), a complainant may apply to the court for permission to bring an action or arbitration in the name and on behalf of all the unitholders of the registered business trust as a whole or intervene in an action or arbitration to which the trustee‑manager, on behalf of the registered business trust, is a party for the purpose of prosecuting, defending or discontinuing the action or arbitration on behalf of the trustee‑manager.[Act 25 of 2021 wef 01/04/2022]
[Act 30 of 2022 wef 12/03/2024]
(2) No action or arbitration may be brought and no intervention in an action or arbitration may be made under subsection (1) unless the court is satisfied that —(a)
the complainant has given 14 days’ notice to the directors of the trustee‑manager of the registered business trust of the complainant’s intention to apply to the court under subsection (1) if the directors of the trustee‑manager do not bring, diligently prosecute or defend or discontinue, the action or arbitration;[Act 30 of 2022 wef 12/03/2024]
(b)
the complainant is acting in good faith; and
(c)
it appears to be prima facie in the interests of all the unitholders of the registered business trust as a whole that the action or arbitration be brought, prosecuted, defended or discontinued.[Act 30 of 2022 wef 12/03/2024]
[Act 30 of 2022 wef 12/03/2024]
(3) Where a complainant on an application can establish to the satisfaction of the court that it is not expedient to give notice as required in subsection (2)(a), the court may make any interim order that it thinks fit pending the complainant giving notice as required.
(4) In granting permission under this section, the court may make any orders or interim orders that it thinks fit in the interests of justice, including (but not limited to) the following:(a)
an order authorising the complainant or any other person to control the conduct of the action or arbitration;[Act 30 of 2022 wef 12/03/2024]
(b)
an order giving directions for the conduct of the action or arbitration by the person so authorised; and[Act 30 of 2022 wef 12/03/2024]
(c)
an order requiring the trustee‑manager of a registered business trust in its capacity as trustee‑manager of the registered business trust to pay reasonable legal fees and disbursements incurred by the complainant in connection with the action or arbitration.[Act 25 of 2021 wef 01/04/2022]
[Act 30 of 2022 wef 12/03/2024]
(5) Where an action has been commenced or is to be brought in the State Courts, an application for permission under subsection (1) must be made in a District Court.[5/2014]
[Act 25 of 2021 wef 01/04/2022]
(6) In this section and section 43, “complainant” means —(a)
any unitholder of a registered business trust; or
(b)
any other person who, in the discretion of the court, is a proper person to make an application under this section.
Evidence of unitholders’ approval not decisive — court approval to discontinue action under section 42
Open ↗43.—(1) An application made or an action brought or intervened in under section 42 is not to be stayed or dismissed by reason only that it is shown that an alleged breach of a right of or duty owed to all the unitholders of the registered business trust as a whole has been or may be approved by the unitholders of the registered business trust, but evidence of approval by the unitholders may be taken into account by the court in making an order under that section.
(2) An application made or an action brought or intervened in under section 42 is not to be stayed, discontinued, settled or dismissed for want of prosecution without the approval of the court given upon any terms that the court thinks fit and, if the court determines that the interest of any complainant may be substantially affected by such stay, discontinuance, settlement or dismissal, the court may order any party to the application or action to give notice to the complainant.
(3) In an application made or an action brought or intervened in under section 42, the court may at any time order the trustee‑manager of the registered business trust in its capacity as trustee‑manager of the registered business trust to pay to the complainant interim costs, including legal fees and disbursements, but the complainant may be accountable for such interim costs upon final disposition of the application or action.[Act 30 of 2022 wef 12/03/2024]
Source: Singapore Statutes Online (Attorney-General's Chambers), © Government of Singapore.
