Westfield Group and Westfield Retail Trust - s.87B undertaking

Withdrawal

On 13 September 2013 Westfield Management Limited (Westfield), RE1 Limited and RE2 Limited (together, WRT) sold their existing interests in Karrinyup Shopping Centre to an entity associated with Unisuper. On that basis the Proposed Acquisition (as defined in and as contemplated by, the Undertaking) is no longer proceeding. On 19 September 2013 Westfield and WRT sought the ACCC’s consent to the withdrawal of the Undertaking in accordance with s87B(2) of the Competition and Consumer Act 2010 (the Act).  On 9 October 2013 the ACCC consented to the withdrawal by Westfield and WRT of the Undertaking.

Original undertaking

On 4 September 2013, the ACCC accepted an Undertaking given by Westfield and WRT pursuant to section 87B of the Act (the Undertaking) in relation to Westfield, WRT and/or Westfield Management Limited in its capacity as the trustee of the WestArt Trust’s proposed acquisition of the Karrinyup Shopping Centre (the Proposed Acquisition). In the north-west metropolitan Perth area, Westfield and WRT jointly own Westfield Innaloo, the Innaloo MegaCentre and Innaloo Shoppers Village (co-located) (together, Innaloo Shopping Centre) and a one-third interest in the Karrinyup Shopping Centre. The ACCC considered that, in the absence of the Undertaking, the Proposed Acquisition may have the effect, or may be likely to have the effect of substantially lessening competition in relation to:

(a) the supply of retail space in shopping centres (encompassing regional shopping centres and sub-regional shopping centres) to retailers in north-west metropolitan Perth; and

(b) the supply of shopping centre amenities to customers (shoppers) in north-west metropolitan Perth.

The Undertaking requires Westfield and WRT to divest Innaloo Shopping Centre to a purchaser approved by the ACCC. Westfield and WRT have entered into a Put and Call Option Deed which, upon its exercise, will result in the sale of Innaloo Shopping Centre to the Buyer. In the event that Westfield and WRT fail to divest Innaloo Shopping Centre to the Buyer pursuant to the Put and Call Option Deed, the Undertaking requires Westfield and WRT to divest Innaloo Shopping centre to a purchaser to be approved by the ACCC. The objective of the Undertaking is to address the ACCC’s competition concerns which would otherwise arise as a consequence of the Proposed Acquisition.  The Undertaking aims to achieve this objective by:

(a) addressing the ACCC’s concern to maintain the competition which existed before the Proposed Acquisition through the creation or strengthening of a viable, effective, stand-alone independent and long term competitor in the relevant markets;

(b) ensuring that any purchaser of Innaloo Shopping Centre approved by the ACCC has the necessary assets, rights and agreements to compete effectively with Westfield and WRT;

(c) maintaining the economic viability, marketability, competitiveness and goodwill of Innaloo Shopping Centre prior to divestiture;

(d) enabling the Approved Purchaser to supply the product and service offerings which are part of Innaloo Shopping Centre independently and without reliance upon Westfield or WRT (as applicable);

(e) providing for the effective oversight of the operation of Innaloo Shopping Centre prior to divestiture, the process of divestiture and the separation of Innaloo Shopping Centre from businesses that will be retained by Westfield and WRT;

(f) requiring Westfield and WRT to appoint an Approved Independent Manager to manage Innaloo Shopping Centre until the completion of the divestiture of Innaloo Shopping Centre in the event that Westfield and WRT fail to divest Innaloo Shopping Centre to the Buyer pursuant to the Put and Call Option Deed; and

(g) providing for the effective oversight of Westfield and WRT’s compliance with this Undertaking.