92Maximisation of entitlements on distribution of property

92 Maximisation of entitlements on distribution of property (1) This section applies to any calculation, for this part, of the entitlement of a person (the interested person) to participate in a distribution of the property of a landholder, whether on a winding-up of the landholder or otherwise. (2) A calculation is to be made based, firstly, on a distribution carried out in accordance with the constitution of the landholder, and with any law relevant to the distribution, as in force at the time of distribution, and the entitlement of the interested person is to be evaluated accordingly. (3) Next, a calculation is to be made based on a distribution carried out after the interested person, and any other person whom the interested person has power to direct for such a distribution or who is, in relation to the interested person, an associated person, had exercised all powers and discretions exercisable by them because of having acquired an interest in the landholder concerned— (a) to effect or compel an alteration to the constitution of the landholder; and (b) to vary the rights conferred by shares or units in the landholder; and

(c) to effect or compel the substitution or replacement of shares or units in the landholder with other shares or units in it; in such a way as would maximise the value of the entitlement, and the entitlement of the interested person is to be evaluated accordingly. (4) The results obtained by an evaluation of the interested person’s entitlement in accordance with subsections (2) and (3) are then to be compared, and whichever evaluation results in a greater entitlement is the correct evaluation, for this part, of the entitlement. (5) However, subsection (4) does not apply in a particular case if the commissioner— (a) is satisfied that the application of the subsection would be inequitable; and (b) determines, in writing, that the subsection does not apply.