Anthony Shear as trustee for the Links Field Trust v Campbell - [2020] WASC 391

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ANTHONY SHEAR as trustee for THE LINKS FIELD TRUST -v- CAMPBELL [2020] WASC 391
CORAM:   MASTER SANDERSON
HEARD:   1 & 2 SEPTEMBER 2020
DELIVERED          :   28 OCTOBER 2020
PUBLISHED           :   28 OCTOBER 2020
FILE NO/S:   COR 54 of 2020
BETWEEN:   ANTHONY SHEAR as trustee for THE LINKS FIELD TRUST
Plaintiff
AND
PAUL DOUGLAS CAMPBELL
First Defendant
MICHAEL WILLIAM RYDING
Second Defendant
PAUL DOUGLAS CAMPBELL as trustee for THE CAMPBELL FINANCE TRUST
Third Defendant
MICHAEL WILLIAM RYDING as trustee for THE RYDING FAMILY TRUST
Fourth Defendant
OCEAN LIFE (WA) PTY LTD
Fifth Defendant
ODYSSEY MORTGAGE AND FINANCE PTY LTD
Sixth Defendant

Catchwords:

Corporations Act 2001 (Cth) - Claim for oppressive conduct - Turns on own facts

Legislation:

Corporations Act 2001 (Cth)

Result:

Winding up order to be made
Oppressive conduct made out

Category: B

Representation:

Counsel:

Plaintiff	:	P Ward
First Defendant	:	LA Warnick
Second Defendant	:	LA Warnick
Third Defendant	:	LA Warnick
Fourth Defendant	:	LA Warnick
Fifth Defendant	:	LA Warnick
Sixth Defendant	:	LA Warnick

Solicitors:

Plaintiff	:	Gandhi and Shaw
First Defendant	:	Trinix Lawyers
Second Defendant	:	Trinix Lawyers
Third Defendant	:	Trinix Lawyers
Fourth Defendant	:	Trinix Lawyers
Fifth Defendant	:	Trinix Lawyers
Sixth Defendant	:	Trinix Lawyers

Case(s) referred to in decision(s):

Jenkins v Enterprise Gold Mines NL [1992] 6 ACSR 539
Joint v Stephens [2008] VSCA 210
Re SRW Nominees Pty Ltd [2019] VSC 547

MASTER SANDERSON:

By originating process filed 24 April 2020 the plaintiff sought orders that the sixth defendant (OMF) be wound up pursuant to s 233(1)(a), s 461(1)(f) or s 461(1)(k) of the Corporations Act 2001 (the Act). The plaintiff also sought an order that a transaction by which the fifth defendant (Ocean Life) acquired the business of OMF be declared void or set aside. This order was sought pursuant to s 233 of the Act. It was common ground between the parties that such an order could be made - the issue really was whether the order ought be made. At the outset, it is worth clarifying just what orders the plaintiff was seeking and under what sections of the Act it was seeking those orders.
Section 232 of the Corporations Act reads as follows:
232Grounds for Court order
The Court may make an order under section 233 if:
(a)the conduct of a company's affairs; or
(b)an actual or proposed act or omission by or on behalf of a company; or
(c)a resolution, or a proposed resolution, of members or a class of members of a company;
is either:
(d)contrary to the interests of the members as a whole; or
(e)oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity.
For the purposes of this Part, a person to whom a share in the company has been transmitted by will or by operation of law is taken to be a member of the company.
Note: For affairs, see section 53.

For s 232 to be engaged, one or other of subsections (a), (b) and (c) must be established by the plaintiff. If one of those subsections is satisfied then, and only then, subsections (d) or (e) must be satisfied. So there is a two stage process. A plaintiff can fall at the first hurdle or they can clear the first hurdle but fall at the second. Then no order is to be made. If both hurdles are cleared – that is to say one or all of the requirements of subsections (a), (b) and (c) have been satisfied and one or all of subsections (d) or (e) have been satisfied, then the court may make an order under s 233. So even if a plaintiff clears both hurdles in the section an order can still be refused if it is just to do so. Of course, while the discretion is in its terms unfettered, it must be exercised judicially. I will detail with the defendants' arguments later in these reasons. But in overview the defendants said that the plaintiff failed to satisfy the requirements of subparagraphs (d) and (e). Further, they said that if those requirements were satisfied as a matter of discretion no order ought be made.
If a plaintiff satisfies s 232 then s 233 is engaged. The suite of remedies available is very wide. In the originating process the plaintiff sought to wind up OMF pursuant to s 233(1)(a). But really the essential order the plaintiff was seeking was the reversal of the sale to Ocean Life of OMF. If that order was made then the winding up of OMF had utility. But if that order was not made then OMF was a shell and appointment of a liquidator would achieve nothing.
That being the case, there was no utility in the plaintiff relying on s 461(1)(f) or s 461(1)(k). Even if one or other of these subsections were satisfied, the only available remedy was the winding up of OMF. Neither s 461 itself, nor any other section, would allow for the unwinding of the sale of the OMF business to Ocean Life. Counsel for the defendants in his written submissions almost went as far as saying as the internal structures of OMF had broken down there were grounds for winding up on the just and equitable ground. I do not take this as a concession that any orders should actually be made under s 461. But in the circumstances it was a reasonable observation and one which highlighted the inutility of reliance upon s 461. Although, at no stage did counsel for the plaintiff concede s 461 did not advance the plaintiff's position, the case was really argued that relief ought be granted to the plaintiff on the basis of oppression.
Turning to the evidence, the plaintiff relied on two affidavits he swore - the first of 23 April 2020 and the second of 21 July 2020. He also relied on an affidavit of David Brian Shaw sworn 2 June 2020. Further, and to a limited extent, the plaintiff relied on his affidavits sworn and filed in a related proceeding (COR 41 of 2019) which was referred to as the 'OFS proceeding'. The OFS proceeding was between the present plaintiff and the present second and fourth defendants. The first defendant was a witness in the OFS proceeding and was a director of the third defendant. Insofar as it was necessary to refer to these affidavits, I gave leave to do so. For their part, the defendants relied on two affidavits of the first defendant – the first sworn 7 July 2020 and the second sworn 4 August 2020. They also relied on an affidavit of the second defendant sworn 7 July 2020.
Before detailing the facts, I should make some general comments concerning the evidence of the parties. The content and tone of the various affidavits make it plain there has been a complete breakdown in the relationship between the plaintiff on the one hand and the first and second defendants on the other. Their differences are deep and bitter and their respective positions are irreconcilable. Not surprisingly, the plaintiff blames the first and second defendants for the breakdown in the relationship; the first and second defendants take the opposite view. It is not my role to apportion blame to any party. My role is to determine the facts based upon the evidence and then determine whether or not there has been, on the part of the defendants, conduct which satisfies the legal requirements of the section. Really the only relevance of the bitter rivalry between the two camps is to acknowledge that they can never work together in the future and any outcome which anticipates that result must be avoided.
In his written submissions, counsel for the plaintiff dealt with the issue of burden of proof. He put the position this way:
10.Where, as in this case, the relevant oppressive conduct includes breaches of fiduciary duties on the part of directors of the company by entering into related-party transactions whilst being in a position of conflict of interest, the Plaintiff carries the burden only of proving that the directors of the company were in a position of conflict of interest. The onus then moves to the defendants to show that the directors made full disclosure of their conflicting interests in the subject transactions, that they then obtained informed consent to the transactions, and that the transactions were for the benefit of the company, such that there was a reasonable commercial justification for the transactions. Absent such evidence from the Defendants, oppression may be inferred.
Counsel supported that submission by reference to the decision of the Full Court of this court in Jenkins v Enterprise Gold Mines NL.[1] The plaintiff says in this case, far from disclosing their conflict of interest in obtaining informed consent, the first and second defendants both in their personal dealings with the plaintiff and in dealings with the plaintiff through their solicitors, actively concealed their intentions and actions. The defendants do not concede that to be the case.
[1] Jenkins v Enterprise Gold Mines NL [1992] 6 ACSR 539.
The relevant facts are as follows. OMF is a three man, three shareholder company. From its incorporation in September of 2010, the plaintiff carried on the business with the second defendant. From August 2014 the first defendant joined the business. Essentially OMF was to carry on a mortgage broking business as a sideline to the plaintiff and the second defendant's financial advisory business, Odyssey Financial Services (OFS).[2] Both OMF and OFS were archetypal 'quasi partnerships'. Both parties accept that to be the case.
[2] Affidavit of Anthony Shear sworn 23 April 2020 [59], [6], [7] – [18]; Annexure AS1.
In 2018, the plaintiff and the second defendant fell into dispute concerning OFS.[3] This led to the plaintiff commencing the OFS proceedings in January 2019. In those proceedings the plaintiff sought winding up orders in the absence of an agreement for one or other of the parties to buy the other out.[4] On 12 April 2019, whilst the OFS proceedings were still on foot, the first defendant was appointed a director of OFS over the plaintiff's objection.[5] This was done at a general meeting and the appointment was in all respects proper. The OFS proceedings settled. The precise terms of that settlement are not presently relevant. However, the plaintiff took the second defendant's shares and the first and second defendants ceased to be directors of OFS.[6]
[3] Affidavit of Anthony Shear sworn 23 April 2020 [19] and [20].
[4] Affidavit of Anthony Shear sworn 23 April 2020 [23].
[5] Affidavit of Anthony Shear sworn 23 April 2020 [36].
[6] Affidavit of Anthony Shear sworn 23 April 2020 [10], [23]; Annexure AS5.
On 12 March 2019, the first and second defendants convened a meeting of shareholders and voted to remove the plaintiff as a director of OMF. No grounds for the plaintiff's removal were provided.[7] Once again, the requirements of the company's constitution were observed - that is to say at a technical level the removal was proper.
[7] Affidavit of Anthony Shear sworn 23 April 2020 [25] – [30]; Annexure AS8.
On 7 April 2019, the first defendant initiated a proposed buyout of the plaintiff from OMF.[8] The evidence shows that prior to the offer being made, the first and second defendants had done some advanced planning. There is nothing improper in that. They had undertaken discussions with potential lenders to finance the buyout. They had taken those steps without reference to the plaintiff. While that may show that there was a level of dysfunction, the failure of the first and second defendants to brief the plaintiff as to their plans, is in no way improper.
[8] Affidavit of Anthony Shear sworn 23 April 2020 [33] – [35], [37]; Annexure AS11 and AS12.
In par 12 of his written submissions, counsel for the plaintiff sets out a range of factors which he submitted established the affairs of OMF were being conducted by the first and second defendants in a way that was oppressive to the plaintiff. For instance, in par 12(g)(iv), counsel points out that in June 2018, the first and second defendants commissioned an external consultant report, without the plaintiff's knowledge, and using OMF funds. This report was used to justify a substantial increase in the salary of the first defendant and payment of a non-executive director fee to the second defendant. The evidence shows that this was in fact done. The defendants say that that step was perfectly proper. In fact, they join issue with the plaintiff and say that most, if not all, of the matters raised in par 12 of the submissions taken in isolation or together, amount to no more than a proper running of the company. For present purposes, it is unnecessary to examine each of the particular complaints in detail. The key to this case is the sale of the OMF business to Ocean Life.
That sale came about in this way. On 6 September 2019, the defendants' solicitors wrote to the plaintiff putting an offer to him to purchase his shares in OMF for just over $166,000.[9] The offer included comprehensive releases in favour of the first and second defendants and OMF. At all material times, the first and second defendants maintained the only realistic option was for them to buy the plaintiff out of OMF. It was clear from the cross-examination of the defendants they took this approach because the mortgage broking business was effectively being run by the first defendant. It was his fiefdom; the business had been developed with his expertise. It was not an attractive option for him to sell out of the business. On the basis of the evidence, I am satisfied that motivated the first defendant and to a lesser extent the second defendant. They simply wanted to buy the plaintiff out and be rid of him. They were not interested in selling their interests in the business to the plaintiff.
[9] Affidavit of Anthony Shear sworn 23 April 2020 [40]; Annexure AS15.
In or about June 2019, the first and second defendants obtained a valuation of the OMF business from Acute Business Services. This was done without reference to the plaintiff. The defendants did not attempt, in response to the plaintiff's claims, to establish the accuracy of this valuation. The report was admitted into evidence on the basis it established the first and second defendants had obtained a valuation. But there was no independent expert evidence as to what was the proper value of OMF. Counsel for the plaintiff criticised the report and pointed out in cross-examination it did not take into account aspects of the business which might have led to a different valuation. That may be right. Two things are important. First, there was no evidence the valuation was accurate. Second, a valuation report of sorts was obtained. It is also important to note the plaintiff had no knowledge of, let alone any input, into the valuation report.
On 28 October 2019, the first and second defendants incorporated Ocean Life. It seems clear the purpose of incorporating the company was as a vehicle for the acquisition of the business of OMF.[10] On 4 December 2019, OMF sold its business to Ocean Life.[11] This was done without any notice to the plaintiff. Indeed, as at the date of sale, the parties appeared still to be negotiating about the possible purchase of the OMF business by the plaintiff. Counsel for the plaintiff alleged both in his written and oral submissions that the first and second defendants, through their solicitors, actively concealed from the plaintiff the sale of the business. He points to a letter from the first and second defendants' solicitors of 23 January 2020 which purported to reject an offer by the plaintiff made 8 January 2020 on the basis the offer was not reasonable.[12] It is difficult to see how, in the circumstances, this letter was proper.
[10] Affidavit of Anthony Shear sworn 23 April 2020 [48]; Annexure AS23.
[11] Affidavit of P D Campbell sworn 7 July 2020 [47]; Annexure PDC23.
[12] Plaintiff's submissions filed 14 August 2020 [12(h)(viii)]; Affidavit of Anthony Shear sworn 23 April 2020 [47]; AS22.
Throughout his written submissions, when dealing with the sale of the business, counsel for the plaintiff highlights the role of the solicitors then acting for the defendants. He notes that these solicitors appear to have been acting for all the defendants.[13] There was no separate representation of OMF. The criticism is well made. It is difficult to see how the interests of the first and second defendants and OMF coincided to the point where it was proper for the one firm of solicitors to act for both sets of parties. OMF was not receiving independent legal advice in relation to the sale of its business to Ocean Life. All this against a background where the solicitors were aware there existed a dispute between the plaintiff on the one hand and the first and second defendants on the other.
[13] Plaintiff's submissions filed 14 August 2020 [12(h)(vii)].
While there is no real dispute between the parties as to the factual background, it is the defendants' position there was no oppressive conduct. Counsel for the defendants submitted the plaintiff's claim of oppressive conduct fell under two heads. First, the removal of the plaintiff as a director of OMF on 12 March 2019 and second, selling the mortgaging broking business of OMF to Ocean Life on 4 December 2019.[14] With respect, that may too narrowly define the plaintiff's complaints. For instance, I have quoted an example above offered by the plaintiff and relating to the increase in salary for the first defendant and the director's fees payable to the second defendant. Be that as it may, the submissions made on behalf of the defendants were as follows.
[14] Defendants' submissions filed 24 August 2020 [31].
The defendants say that by the time the plaintiff was removed as a director, the parties had been engaged in a deteriorating business relationship for some three years. The plaintiff and the second defendant were engaged in a bitter dispute over the conduct of the affairs of OFS.[15] Counsel also points out the board of OMF was completely dysfunctional immediately prior to the removal of the plaintiff. That being so, removing the plaintiff was both necessary and reasonable to restore some functionality to the board.[16]
[15] Defendants' submissions filed 24 August 2020 [35].
[16] Defendants' submissions filed 24 August 2020 [37(a)].
Furthermore, counsel submits removal as a director made little practical difference to the plaintiff. There had been no board meetings for years. It was always open to the plaintiff to communicate his views to both the first and the second defendants. In fact, that is what he did. But given the animosity between the plaintiff and the first and second defendants, it was always unlikely his views would be accepted.[17]
[17] Defendants' submissions filed 24 August 2020 [37(b)].
Counsel also points out the oppression, if any, has ended. The business of OMF has been sold, the company is a shell and there is now no need for intervention by the court.[18]
[18] Defendants' submissions filed 24 August 2020 [37(c)].
The authorities show that the expressions in s 232(e) - oppressive, unfairly prejudicial and unfairly discriminatory - all connote commercial unfairness. Furthermore, the test the commercial unfairness has an objective standard as Robson J pointed out in Re SRW Nominees Pty Ltd[19] at [37]:
It requires an assessment of whether objectively, in the eyes of a commercial bystander, there has been unfairness.
[19] Re SRW Nominees Pty Ltd [2019] VSC 547.
Differences between shareholders, even if irreconcilable, do not of themselves constitute oppression or unfair prejudice. In Joint v Stephens,[20] Nettle, Ashley and Neave JJA said in a joint judgment at [136]:
… the task of deciding whether there has been commercial unfairness is to be undertaken in the context of the particular relationship which is in issue … the assessment of commercial unfairness will not infrequently involve a balancing exercise between competing considerations. In turn that may involve an examination of the conduct of the applicant.
[20] Joint v Stephens [2008] VSCA 210.

Here there was clear oppression in the way the plaintiff was treated by the first and second defendants. I would accept the plaintiff's removal from the board was not necessarily in and of itself oppressive. If he had been consulted about the way in which the company was being run after his removal from the board, even if his views were not accepted, the position may have been different. Indeed it is difficult to see why it was necessary to remove him from the board at all. He was not taking steps to actively block the activities of the company. He was not undermining its enterprise. It was a combination of removing him from the board and then running the company in a manner which ignored entirely his views, which was in the circumstances of this case, oppressive.
The position with respect to the sale of the business of OMF is even clearer. It may well be, as submitted by counsel for the defendants, that the plaintiff dithered. He asked for information and did not follow up his requests. He does not appear to have made any attempt to obtain independent valuations. He knew the first and second defendants were keen to buy his interest but he took no steps to facilitate a sale in a timely fashion or initiate a purchase himself. But whatever the plaintiff's faults may be, they pale in comparison with the steps taken by the first and second defendants. The first and second defendants were the effective controllers of OMF. From the moment they decided to sell the business of OMF to an entity they controlled, they were in a position of conflict. Precisely what they should have done in that situation is beyond the scope of these reasons. But it is clear, at the very least, they should have obtained an independent arm's length valuation of the business. While they did obtain a valuation, the evidence does not allow me to conclude it was in all respects, a proper independent arm's length valuation. If they had included the plaintiff in the process by first advising him a valuation was to be obtained and second offering him the opportunity to make representations as to the value, the position may have been different. Even then, given the nature of the fiduciary duties owed by the first and second defendants to OMF, it is difficult to see how the same solicitors could act for both parties. This was a situation where independent advice was required - legal and accounting.
In all the circumstances there was in this case a clear breach of their fiduciary duties to OMF and the plaintiff by the first and second defendants. That justifies a finding there was oppressive conduct.
The remaining question then is whether or not it is appropriate to make an order unwinding the sale transaction. The submissions put by counsel for the defendants on this issue were in many ways compelling. First, it was submitted the transaction was completed, the parties had moved on and to attempt now to unwind the transaction would be in no one's interest. Second, and following on from the first point, if the transaction was unwound and the business (or part of it) was returned to the control of a liquidator of OMF, the result would be a destruction in the value of the underlying asset. The liquidator would have to attempt to sell the business. There would be limited buyers and those buyers would know of the distressed condition of the seller. The inevitable result would be a negative outcome for both the plaintiff and the defendants. Finally, it was said that although there was no evidence the valuation of the business was accurate, the way that the valuation was undertaken suggests the result may in fact have been a fair outcome for all parties.
Against all of that, the plaintiff said this was a clear case of oppression. The only way the position could be put to rights was if the sale transaction was unwound. If that was done then in difficult circumstances a fair outcome could be achieved. Underpinning counsel's submissions was the important notion that parties who breach their fiduciary duties should be visited with consequences.
In the end, I am satisfied the plaintiff is entitled to the relief he seeks. I am satisfied that there was oppressive conduct - both with respect to the way the affairs of the company were conducted after the removal of the plaintiff as a director. More importantly in the wholesale process was oppressive. Such a clear breach of fiduciary duties entitles the plaintiff to relief. If the plaintiff wishes the sale transaction unwound, I will make orders accordingly.
At the conclusion of the hearing I asked both counsel to submit a minute of orders they saw as appropriate. The orders sought by the plaintiff were as follows:
1.The sixth defendant be wound up pursuant to s 233(1)(a) of the Corporations Act 2001 (Cth).
2.Jeremy Joseph Nipps of Cor Cordis, Mezzanine Level, BGC Centre, 28 The Esplanade, Perth WA 6000 be appointed as liquidator of the sixth defendant.
3.The Business Sale and Purchase Deed entered into between the sixth defendant and the fifth defendant dated 4 December 2019 is set aside.
4.The Loan Book Assignment Agreement entered into between the sixth defendant, the fifth defendant, Connective Broker Services (ACN 161 731 111) and Connective Lender Services Pty Ltd (ACN 161 731 460) dated 4 December 2019 is set aside.
5.The first, second and fifth defendants account to the liquidator of the sixth defendant on a willful default basis for all monies received by the fifth defendant in connection with the conduct of the business and the Client Book (as defined in the Loan Book Assignment Agreement referred to in order 4 above) transferred to the fifth defendant pursuant to the agreements referred to in orders 3 and 4 above.
6.The first, second and fifth defendants do all things reasonably requested by the liquidator of the sixth defendant to effect:
(a)an assignment of the Client Book (as defined in the Loan Book Assignment Agreement referred to in order 4 above) from the fifth defendant to the sixth defendant; and
(b)a transfer from the fifth defendant to the sixth defendant of the registered business name 'Odyssey Mortgage and Finance'.
It is to be noted that these orders anticipate an account on the basis of wilful default. This was not a matter which was argued at all in the course of the hearing. Before making an order on that basis, I will give the defendants the opportunity to make submissions on the point. It may also be that the orders require further refinement. For instance in order 5 there is no mention of a timeframe. I would also include an order that there be liberty to apply both to the parties and to the liquidator as difficulties may arise in implementing the orders. As to costs both parties should file short submissions on this question within 7 days of the date of publication of these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

IW
Associate to Master Sanderson

28 OCTOBER 2020