Auswild v Bergmuller

[2023] VSC 589

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL COURT

CORPORATIONS LIST

S ECI 2022 04971

IN THE MATTER OF FINANCE & GUARANTEE COMPANY PTY LTD (ACN 000 032 548) (AND OTHERS ACCORDING TO THE SCHEDULE)

BETWEEN:

JAMES RONALD AUSWILD & ANOR (according to the attached Schedule)	Plaintiffs
v
JAMES AUSWILD BERGMULLER & ANOR (according to the attached Schedule)	Defendants

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JUDGE:	Croft J
WHERE HELD:	Melbourne
DATES OF HEARING:	30 & 31 August 2023, 1 September 2023
DATE OF JUDGMENT:	6 October 2023
CASE MAY BE CITED AS:	Auswild v Bergmuller
MEDIUM NEUTRAL CITATION:	[2023] VSC 589

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CORPORATIONS — Directors’ duties — Conflict of interest — Where two groups of directors propose alternative resolutions for recovery of judgment debt — Whether defendant directors had conflict of interest in voting on resolutions for recovery of judgment debt from themselves — Whether directors representing plaintiffs have conflict in proposing alternative resolution to act on behalf of company group — Whether court intervention in ordinary decision‑making process of company group is justified — Where defendants propose alternative resolution to appoint independent insolvency practitioner — Where ongoing conflict and bitterness between two shareholder groups necessitates a clearly independent process for recovery of judgment debt — Where defendants’ undertaking to appoint independent insolvency practitioner is practical resolution to conflict.

CORPORATIONS — Oppression proceeding — Whether defendant directors engaged in oppressive conduct in voting down resolution of directors representing plaintiffs — Where defendants’ conduct not commercially unfair or contrary to accepted standards of corporate behaviour — Whether defendant directors engaged in oppressive conduct in passing resolution to establish committee — Where defendant directors’ resolution not commercially unfair nor would any reasonable director consider unfair or unreasonable — Not oppressive for directors to make legitimate and good faith business decisions despite other differences of opinion — Mark Gerard Ireland as Executor of the Estate of the late Charles Stuart Gordon v Sandra Jane Retallack [2011] NSWSC 846 — Corporations Act 2001 (Cth), ss 232(d) and (e) and 233 — Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr SV Shepherd	Lander & Rogers
For the Defendants	Mr PW Collinson KC and Ms FJ Bentley	Shanahan Tudhope Lawyers (with KCL Law as Town Agent)

HIS HONOUR:

Introduction

1. This proceeding commenced by application dated 5 December 2022 (as amended 12 December 2022) under s 233 of the Corporations Act 2001 seeking interlocutory and final relief for oppression (“the Application”).

1. The Plaintiffs are 48% shareholders in the Preston Motors Group of companies (“PMG”).  The defendant directors, James Auswild Bergmuller and Peter Parker (“Bergmuller” and “Parker” respectively), who represent the other 52% shareholders, owe the PMG $19.8 million pursuant to a judgment debt.[1]  On 23 November 2022 the First Defendant, Bergmuller (using his casting vote), together with the Second Defendant, Parker, voted down the resolution put by directors representing the Plaintiffs, Graham Hamilton and Brian Silvia (“Hamilton” and “Silvia” respectively) and voted up his own resolution on how to recover the judgment debt. 

   [1]JAB Nominees (Aust) Pty Ltd v Auswild [2020] VSC 731; Orders of Riordan J (28 May 2021) (“the Shareholder Proceeding”).

1. By their Application the Plaintiffs seek to have this resolution (“the Bergmuller resolution”)[2] set aside for conflict of interest and an alternative resolution proposed by Hamilton (“the Hamilton resolution”) implemented.[3]  The Defendants appear to concede that the Bergmuller resolution should be set aside but contend that Hamilton and Silvia also have a conflict of interest and that an independent insolvency practitioner should be appointed to recover the judgment debt.

   [2]The Bergmuller resolution is set out in Annexure 1 to these reasons.

   [3]The Hamilton resolution is set out in Annexure 2 to these reasons.

1. In broad terms the issues raised by this proceeding are:

(a)   Did Bergmuller and Parker have a conflict of interest in voting on resolutions about recovery of a judgment debt from themselves?

(b)  Do the remaining directors, Hamilton and Silvia, have a conflict of interest in acting on behalf of the PMG to recover the judgment debt?

(c)   Whether there are grounds for this court to intervene in the ordinary business decision making process of the PMG regarding the collection of a judgment debt?

1. In respect of the Application the Plaintiffs rely upon the affidavits of Graham Hamilton and Robert Tassell both sworn 5 December 2022 together with the affidavits of Graham Hamilton, James Auswild, Barbara Auswild, all sworn on 14 February 2023 and the affidavit of Brian Silvia sworn 15 February 2023.  The Defendants rely only on the affidavit of John Melluish sworn 4 July 2023. The Defendants led no oral evidence at the hearing in these proceedings.  The parties also rely upon a tendered bundle of documents which was agreed and provided by way of a Tender List at the conclusion of the hearing of the proceedings.

Background

Antecedent Litigation

1. These proceedings follow extensive and protracted litigation concerning the PMG in two separate trials before Riordan J, an appeal in the Court of Appeal and an unsuccessful application to the High Court for special leave to appeal the Court of Appeal decision.[4]  The Court of Appeal reasons provide a very helpful history of the litigation preceding these proceedings.[5]  It is, nevertheless, desirable to provide a summary of matters of now more direct relevance to these proceedings.

   [4]Finance & Guarantee Company Pty Ltd v Auswild [2019] VSC 664 (“the Company Proceeding”); JAB Nominees (Aust) Pty Ltd v Auswild [2020] VSC 731 (“the Shareholder Proceeding”); Parker v Auswild; Bergmuller v Auswild [2022] VSCA 8; (2022) 403 ALR 111 (“the Court of Appeal Proceeding”).

   [5]Parker v Auswild; Bergmuller v Auswild [2022] VSCA 8; (2022) 403 ALR 111 at 114–7, [1]–[16].

1. The PMG comprises related companies primarily involved in the motor vehicle trade and was established by Sir James Fredrick Auswild and his brother Ronald William Auswild in the 1950s. The PMG’s shareholding is divided between their respective descendants as to 52% held by the descendants of Sir James Fredrick Auswild (“the JFA shareholders”) and 48% held by the descendants of Ronald William Auswild (“the RWA shareholders”).  The JFA shareholders comprise JAB Nominees Pty Ltd as trustee for the Geraldine Bergmuller No. 2 Will Trust (“the Geraldine Bergmuller No 2 Will Trust”), Martina Parker, Simone Ferry, and Nicole Alekna (“the Parker sisters”).  The Plaintiffs in this proceeding, James, Barbara, and Ronald Auswild comprise the RWA shareholders and, as indicated, are represented on the board of the PMG by Hamilton and Silvia.  JAB Nominees Pty Ltd is represented on the PMG board by its, variously, sole director and shareholder, Bergmuller, and the Parker sisters are represented by Parker. Together they comprise the JFA shareholders.

1. This proceeding has a lengthy history, both factually and in litigation, to which reference has been made.  In brief summary, on 29 August 2014, a number of companies in the PMG filed the Company Proceeding in this Court. In that proceeding claims were made against former directors and members from the RWA shareholders alleging misconduct in the management of the affairs of the PMG.  Shortly after the commencement of the Company Proceeding, several of the JFA shareholders commenced an oppression proceeding in the form of the Shareholder Proceeding against the RWA shareholders.  The Shareholder Proceeding made many of the same allegations as those raised in the Company Proceeding. 

1. On 19 February 2018, the RWA shareholders filed a third party notice in the Shareholder Proceeding against Bergmuller and Parker in their capacity as directors of the PMG, alleging that the filing and maintenance of the Company Proceeding was oppressive to, unfairly prejudicial to, or unfairly discriminatory against the RWA shareholders within the meaning of s 232(e) of the Corporations Act.  Whilst framed as an oppression case, the focus of the proceeding was on whether or not it was a conflict of interest for Bergmuller and Parker to have commenced and continued the proceeding by the PMG against the RWA shareholders, spending company funds to litigate matters which would stand to benefit their nominating shareholders in the Shareholder Proceeding.

1. On 3 October 2019, Riordan J dismissed the Company Proceeding and entered judgment for the defendants.  Some findings of conflict of interest were made against the RWA shareholder directors, but the claims were ultimately dismissed due to the expiry of limitation period and laches. 

1. On 26 June 2020, Riordan J made orders by consent that the, so called, Sales Committee dispose of the PMG’s assets.  Thereupon the PMG effectively commenced a winding up process which has to date realised approximately $55 million.  The last remaining major assets of the PMG to be realised are its two Porsche franchises. 

1. On 11 November 2020, Riordan J gave judgment in the Shareholder Proceeding in relation to the Third Party Claim and in so doing made findings to the effect that:

(a)   In deciding to file and maintain the Company Proceeding, Bergmuller and Parker breached their fiduciary duty to avoid a conflict between their duty to the PMG Plaintiffs and their personal interests;[6]

(b)  But for Bergmuller’s and Parker’s breach of the conflict rule, the PMG Plaintiffs would not have incurred their own costs of the Company Proceeding and the costs of the defendants of the Company Proceeding, which they were ordered to pay;[7] and

(c)   Bergmuller and Parker allowed the Company Proceeding to be used as part of a coordinated plan, which included the acquisition of shares held by the RWA shareholders by the JFA shareholders.[8]

[6]See [2020] VSC 731 at [179].

[7]See [2020] VSC 731 at [205] and [211].

[8]See [2020] VSC 731 at [239] and also [140].

1. As a result of the decision in the Shareholder Proceeding, Bergmuller and Parker were relevantly ordered to:

(a)   Reimburse the plaintiffs in the Company Proceeding (the PMG companies) for the costs and disbursements incurred by the plaintiffs in the Company Proceeding up to and including the entry of judgment on 30 October 2019, in a sum to be determined by the Court.  That amount has since been fixed at $11,632,555.56;

(b)  Reimburse the plaintiffs in the Company Proceeding for the costs payable to the first defendant by the plaintiffs in the Company Proceeding in the sum of $2,300,000;

(c)   Reimburse the plaintiffs in the Company Proceeding for the costs payable to the second to tenth defendants by the plaintiffs in the Company Proceeding. This costs order yet to be agreed or taxed.

(the “Reimbursement Orders”).

Antecedents to this proceeding

1. As a result of the Reimbursement Orders, the PMG must now take steps to recover the debts owed to it by Bergmuller and Parker.  However, at some stage in the process of recovery, the PMG may need to determine:

(a)   The costs payable by it to the second to tenth defendants in the Company Proceeding, so that that amount can be reimbursed pursuant to the order that was made to this effect in that proceeding; and

(b)  To what degree any liability of Bergmuller and Parker to the PMG may be reduced by way of insurance funds from a directors and officers insurance policy held in their favour with Chubb Insurance.

1. For convenience, these debt recovery and associated recovery tasks are referred to as the “Debt Recovery Tasks”. 

1. On 13 September 2022, Hamilton requested a board meeting to consider recovery of the judgment debt.  On 14 September 2022, the Plaintiffs’ solicitors Pikes & Verekers Lawyers (“PVL”) wrote to the solicitors for JAB Nominees Pty Ltd, Brown Wright Stein (“BWS”), alleging Bergmuller’s conflict and saying that he should resign from his directorship.  BWS responded, on 4 October 2022, saying that Bergmuller would excuse himself from all recovery matters and therefore had no conflict.  On 6 October 2022, Bergmuller by his own solicitors, Shanahan Tudhope Lawyers (“STL”), undertook to abstain from voting in relation to any matters that concerned the costs orders made by Riordan J.

1. On 12 October 2022, Bergmuller relinquished his sole directorship of JAB Nominees Pty Ltd and his father, Johann Bergmuller, was appointed a director of that company and also of Jay Jay Nominees Pty Ltd.  At the same time Bergmuller transferred his holding of all shares in Jay Jay Nominees Pty Ltd to his father.  Bergmuller had previously transferred his holding of all shares in JAB Nominees Pty Ltd to Jay Jay Nominees Pty Ltd on 11 May 2022.

1. On 19 October 2022, Bergmuller emailed the PMG’s board to the effect that Hamilton had, without authorisation, disclosed information to Porsche that was said to have jeopardised negotiations to extend the Porsche franchises and thus impaired the sale of those franchises by the PMG. 

1. On 23 November 2022, a board meeting of the PMG was convened where Parker and Bergmuller (the latter with his casting vote) exercised their voting power and control in relation to the collection of the judgment debt by voting down the Hamilton resolution for recovery of the judgment debt and voting up the Bergmuller resolution for recovery of the judgment debt.[9]

   [9]See [1] of the Application which refers to the Bergmuller resolution in the form set out in Annexure “A” to the Application; and see above at [3] and Annexure 1 to these reasons. 

1. On 2 December 2022, the Plaintiffs moved in this Court to have those resolutions set aside and these proceedings were commenced on 5 December 2022 (and amended on 12 December 2022). 

1. On 15 December 2022, the Defendants abandoned the Bergmuller resolution for recovery of the judgment debt and by letter from their solicitors proposed the appointment of an independent insolvency practitioner with delegated authority to exercise all decision‑making regarding recovery of the judgment debt.[10]  The Bergmuller resolution was not, however, acted upon and is not now pursued by the Defendants.  Rather, the Defendants proposed to set aside this resolution and to propose and vote in favour of an alternative resolution for the appointment of an independent insolvency practitioner as set out in Annexure “B” to the Application.[11]  With respect to this proposed resolution, the Defendants say that the proposed resolution would see an independent insolvency practitioner appointed as a delegate of the PMG board, pursuant to clause 15.8 of the PMG constitution, with that person delegated all the necessary powers to undertake the Debt Recovery Tasks.  Clause 15.8 of the constitution of the PMG empowers the directors to delegate any powers exercisable by the directors to a committee which may comprise one or more persons.

   [10]Letter from STL to PVL dated 15 December 2022.

   [11]See the reference to this proposed resolution in [5] of the Plaintiffs’ claim as set out in the Application. This proposed alternative resolution is also set out in Annexure 4 to these reasons. 

1. On 13 January 2023, PVL wrote to STL and made a number of assertions.  First was that, in consequence of Bergmuller’s father now holding all the shares in JAB Nominees Pty Ltd and Jay Jay Nominees Pty Ltd, Bergmuller was taken to have resigned his directorship of the PMG by operation of the relevant constitution.  Secondly, that those restructuring transactions were intended to hinder and delay enforcement of the judgment debt and as such were liable to be set aside under the relevant legislation.  On 7 February 2023, BWS wrote to the Plaintiffs’ solicitors and, without admission, undertook that Bergmuller’s father would transfer his shares in JAB Nominees Pty Ltd back to Bergmuller. 

Relief sought and issues arising

1. In the Application the Plaintiffs seek the following relief (together with an order as to costs and other relief as the Court thinks fit):

1.A declaration that, in voting 23 November 2022 in favour of the resolution in the form set out in annexure “A” to this Originating Process (Bergmuller Resolution) at a meeting of the Boards of the companies on set out in Schedule A to the Bergmuller Resolution (PMG Companies), the Defendants acted in breach of their fiduciary duties as directors of the said companies, to avoid conflicts between their duties to the companies and their personal interests.

2.An order that the Bergmuller Resolution be set aside.

3.Further and in the alternative an order that the conduct of the Defendants in purporting to pass the Bergmuller Resolution on 23 November 2022 was conduct in and of the PMG Companies’ affairs contrary to the interests of the members as a whole; or oppressive conduct within the meaning of s.232 of the Corporations Act 2001.

4.To the extent that it may be necessary an order pursuant to s233(1)(c) of the Corporations Act 2001 that the Bergmuller Resolution be set aside.

5.An order pursuant to s233(1)(j), of the Corporations Act 2001 that the First Defendant convene a meeting of the Boards of the PMG Companies within seven days of the date of this order to vote on the resolutions in the form set out in annexure “B” to this Originating Process (Plaintiffs’ Resolutions).

6.An order pursuant to s233(1)(i), of the Corporations Act 2001 that the Defendants abstain from any vote of directors of the PMG companies in respect of the Plaintiffs’ Resolutions.

7.An order pursuant to s.233(1)(c) of the Corporations Act 2001 that for the purposes of the meeting as set out in order 5 above, two directors will be sufficient for a quorum of that meeting.

8.Further and in the alternative, an injunction on an interim and final basis restraining the Defendants from pursuing their personal interests in conflict with the PMG Companies’ interests in obtaining the benefit of Riordan J’s orders of 20 November 2020 and 28 May 2021.

1. The Bergmuller resolution, as described in these reasons, and as  referred to above is contained in Annexure “A” to the Application and  is set out in Annexure 1 to these reasons. The “Plaintiffs’ Resolution” referred to above is set out in Annexure 2 to these reasons and is the Hamilton resolution as described in these reasons. 

1. The Hamilton resolution was, as indicated previously, not passed.  At the 23 November 2022 board meeting, Hamilton proposed by this  resolution that he and Silvia be delegated sole responsibility for pursuing the Debt Recovery Tasks.  Parker then proposed the Bergmuller resolution which, as has been indicated, was passed with Bergmuller using his casting vote as chairman of the PMG. 

Subsequent events

1. Shortly before this proceeding was first issued, a directions hearing took place before Riordan J who had delivered judgment in the two proceedings giving rise to the judgment debts, namely the Company Proceeding and the Shareholder Proceeding.[12]  As the Defendants observed, that unique background provided Riordan J with an informed perspective on an appropriate means of resolving outstanding matters. 

   [12]Directions Hearing, 2 December 2022 (Riordan J).

1. At that directions hearing, the following exchange occurred between Riordan J and senior counsel for the Defendants:

HIS HONOUR: The ability for these parties to waste legal costs, it seems silly to talk about it now, given the amount that’s been spent - - -

MR COLLINSON: Yes.

HIS HONOUR: but I would’ve thought the appropriate process that might satisfy everybody is if a solicitor was appointed or, you know, two people were appointed completely independently to undertake this process, even if only for the purpose of reporting to the board if I’m binding the company as to what should be done in the interests of the company.

MR COLLINSON: Yes.

HIS HONOUR: That would give your clients an opportunity to talk to somebody and, if it wasn’t binding, it leaves everybody the opportunity to go to court eventually but - - -

MR COLLINSON: Yes. The suggestion Your Honour has made is one that I immediately saw as something that needed to be given serious consideration.

⋮

MR COLLINSON: Yes, but there may be commercial proposals that have to be decided upon that are more complex than - - -

HIS HONOUR: Yes, of course.

MR COLLINSON: - - - the simplistic recovery possibility, but that still leaves open the possibility that Your Honour has suggested, of someone independent taking that role of being an independent decision maker. So we may well, Your Honour, put a proposal once we’ve absorbed the scope of this application…

1. This point was developed further by Riordan J in the following exchanges with counsel for the Plaintiffs:

It strikes me that there’s good reason to keep this moving along but there’s also reason to give the opportunities to the third parties to consider really whether fighting this application is their best way forward, rather than putting some sensible proposal for an independent person to enforce the judgment and report back to the board or otherwise, as we’ve exchanged just on a superficial level.

⋮

MR SHEPHERD: - - - because of how this matter has evolved over the last eight years or however long it’s been running, I think it’s important that we deal with it one step at a time. The first step is to get rid of this resolution and then to propose another resolution for the committee. If there’s a conflict then that can be raised or flagged.

HIS HONOUR: It’ll be done in one hit, Mr Shepherd. The fact is, the proceeding will remove the resolution and appropriate relief will be granted. But again, I’d encourage you to consider an option whereby an independent solicitor was appointed with affectively (sic) whatever power can be agreed upon - - -

1. A slight variant of Riordan J’s suggestion was immediately put forward in the following open offer put by the Defendants’ solicitors in correspondence dated 15 December 2022:[13]

   [13]CB982.

At the hearing before Riordan J on 2 December 2022, his Honour suggested that perhaps the matter could be appropriately resolved by the appointment of an independent solicitor to undertake the recovery process. An independent solicitor would not be appropriate as solicitors must act on instructions. However, we are of the view that the decision making could properly by made by an independent insolvency practitioner.

Accordingly, we propose that the proceeding be settled on the following terms:

1.the resolution as passed on 23 November 2022 and attached to the Originating Process be set aside;

2.an independent insolvency practitioner, either agreed between the parties or failing such agreement, appointed by the President of the Australian Restructuring Insolvency and Turnaround Association (ARITA), be appointed to enforce the orders against our client and Mr Parker on behalf of the PMG Companies, including recovering funds from Chubb (but do so without reference to the Board); and

3.pursuant to clause 15.8 of the constitution of the Preston Motors Group companies, the insolvency practitioner be delegated the authority to exercise all decision making in relation to the enforcement of the orders and to retain appropriate legal advisors for that purpose, to be paid for by the Preston Motors Group;

4.the proceeding be dismissed with no order as to costs.

This proposal was rejected by the Plaintiffs’ solicitors in correspondence dated 13 January 2023.[14]

[14]CB984.

1. The Defendants have formulated an undertaking to the Court which is in essentially the same terms as the offer made on 15 December 2022.  This undertaking is set out in Annexure 3 to these reasons.  The Defendants undertake thereby to propose and vote in favour of a resolution which would see an independent insolvency practitioner (“an IIP”), being Alice Ruhe of SMB Advisory or Rachel Burdett of Cor Cordis, appointed pursuant to clause 15.8 of the constitution of PMG to take appropriate action in respect of the outstanding judgment debts and to be delegated all necessary powers to do so.  The Defendants say that this resolution would necessarily be passed because Bergmuller has a casting vote as chairman.  This proposed resolution for appointment of an independent insolvency practitioner (referred to as “the IIP resolution”) is set out in Annexure 4 to these reasons.

Hamilton resolution

Plaintiffs’ submissions

1. The Hamilton resolution, as put forward in this proceeding, contains, in Resolution 3, the proposal, referred to previously, for the appointment of Hamilton and Silvia as a subcommittee of the board to recover monies the subject of the Reimbursement Orders.  In support of the Hamilton resolution, the Plaintiffs contend that:[15]

26.The Hamilton resolution[s] effectively provide for the remaining two directors, Hamilton and Silvia, as a subcommittee of the board to appoint solicitors to advise on and then take all reasonable and necessary steps to recover a quantified judgment debt owed to PMG by Bergmuller and Parker.

27.The orders now sought provide a mechanism for the unconflicted directors of PMG (Hamilton and Silvia) to recover a judgment debt owed to the company by the conflicted directors (Bergmuller and Parker). The proposed mechanism delegates all necessary powers of board in relation to that collection to Hamilton and Silvia (RWA directors) as a subcommittee of the board for that purpose.

28.There could be no better example of the RWA directors’ and PMG’s interest being perfectly aligned. Recovery of the judgment debt is unquestionably for the benefit of the company as a whole.

[15]Plaintiffs’ Outline of Opening Submissions (18 August 2023) at [26]–[28].

1. The Hamilton resolution was, however, opposed by the Defendants on the basis that Hamilton and Silvia had a conflict of interest as between the interests of the RWA shareholders who nominated them and the interests of the PMG regarding recovery of the judgment debt for two reasons.  The first is because the RWA shareholders have a separate claim for a costs judgment[16] (not the subject of this proceeding) in their favour against the PMG from a Chubb Insurance directors’ indemnity policy limited to $6 million in competition with the PMG’s larger claim of $19.8 million. The second is because they expressed to Porsche an interest in buying the Porsche franchises that the PMG was selling in consequence of the Sale Committee orders made by Riordan J on 26 June 2020.

   [16]Riordan J’s costs judgment of 3 October 2018 referred to is in fact in favour of the second to tenth defendants in the Company Proceeding for convenience and present purposes here referred to as the RWA shareholders.

1. The Plaintiffs submit that claims of such conflicts are misconceived but, in any event, it is to be noted that neither of those alleged conflicts have anything to do with the recovery of the judgment debt.  If, for the sake of argument, it is said that alleged conflicts existed, they would no more preclude Hamilton and Silvia from acting to recover the judgment debt than the findings of a conflict against Bergmuller and Parker have precluded them from acting as directors of the PMG since 11 November 2020 in matters other than recovery of the judgment debt and unrelated to the decision about which they were found to have a conflict of interest. 

1. Moreover, it is contended that where a conflict of interest is alleged, the Defendants need to show “a decision taken by directors to advantage themselves other than as members of the general body of shareholders would constitute and [sic] abuse of fiduciary powers.”[17]  Short of not seeking to promptly recover as much as possible, it is said that there could be no absence of good faith or relevant purpose attached to the RWA directors’ actions in carrying out the purpose of the subcommittee that would enliven a prospective review of those actions by the Court.[18] 

   [17]Howard v Commissioner of Taxation [2014] HCA 21 at [34] citing Harlowe’s Nominees Pty Ltd v Woodside (Lakes Entrance) Oil Co NL (1968) 121 CLR 483 at 493–494 per Barwick CJ, McTiernan & Kitto JJ.

   [18]See Harlowe’s Nominees Pty Ltd v Woodside (Lakes Entrance) Oil Co NL (1968) 121 CLR 483 at 493.

1. More specifically, with respect to the Chubb claim the Plaintiffs observe that in the Shareholder Proceeding Riordan J ordered Bergmuller and Parker to reimburse the PMG for the costs (as agreed or assessed) of the second to tenth defendants in the Company Proceeding, being the RWA shareholders and related entities.  On 11 May 2022, PVL wrote to Chubb seeking to settle that amount. 

1. In terms of conflict, the Plaintiffs contend that there is no real and sensible question of competition between the RWA shareholders and the PMG for the $6 million Chubb fund.  This is because, it is submitted, if the RWA shareholders do not get paid from Chubb they will get paid from the PMG then if the PMG recovers the money from Chubb in “priority” to the RWA shareholders, the PMG would still be liable to the RWA shareholders. 

1. The Hamilton resolution is for recovery of a quantified $19.8 million debt from Bergmuller to the PMG and does not deal with the additional unquantified costs liability of the PMG to the RWA shareholders for which the Defendants are liable to reimburse the PMG.  As this unquantified costs liability is money that the PMG will have to pay out, rather than money it has paid out and is seeking to recoup, the question of whether the person to whom the PMG owes the unquantified costs liability money or the PMG receives the money is said to be moot.  This, it is contended, is easily tested by a counter factual.  Thus if the RWA shareholders do not receive money from Chubb, they have an enforceable order against the PMG and it will be in the same position as if the RWA shareholders had been paid by Chubb.  Consequently, it is said that from the PMG’s stance it makes no difference whether the money comes to it or goes to the RWA shareholders. 

1. Finally, it is said that in this respect the RWA shareholders will be entitled to payment of their costs as agreed or assessed before surplus funds are distributed to the PMG shareholders on winding up.  As the RWA shareholders’ costs order will have to be paid before any final distribution to shareholders and the PMG will be able to pay, there is claimed to be no competition for the money available from Chubb. 

1. As to the Porsche dealerships or franchises, the Plaintiffs submit that there is no conflict as the RWA shareholders have no interest in buying any of the dealerships or obtaining any of those franchises.  It is contended that the oral evidence of Hamilton, James Auswild and Barbara Auswild make this quite clear. 

1. Moreover, the Plaintiffs submit, the question as to whether there was a conflict of interest regarding Porsche is now irrelevant.  It is said, for the sake of argument only, that if there was a conflict that related to Hamilton’s conversations with Porsche, it has no bearing on what is now sought to be done by Hamilton and Silvia pursuant to the proposed resolutions; the Hamilton resolution. 

1. By their voting against the Hamilton resolution and in favour of the Bergmuller resolution at the PMG board meeting on 23 November 2022, the Plaintiffs contend that the Defendants contravened the no conflict rule and that the Plaintiffs’ equity for rescission of the consequent resolutions arose immediately.[19]  The Defendants’ impugned voting is said to be a paradigm of the very sort of action for which the protective purpose of the no conflict rule exists. 

   [19]Maguire v Makaronis (1996–1997) 188 CLR 449 at 472 per Brennan CJ and Gaudron, McHugh and Gummow JJ: “… their fiduciary duty forbade the appellants, in the circumstances of this case, to enter into the transaction and the equity for rescission was immediately generated by breach of that fiduciary duty.”

1. Neither of the Defendants has offered to pay anything of the judgment debt and in exercising control over the PMG board to their own advantage, it is said, they have delayed recovery of some $19.8 million they owe the company and continue in attempts to exert negative control over a process in which they are irretrievably conflicted.  Moreover, it is said that at the same time the Defendants have refused to give an undertaking not to deal with their assets directly or indirectly until the judgment debt is satisfied.[20]  It is said to be of most significance with respect to Bergmuller for two reasons. First, his liability for conflict of interest arose by reason of his, or his alter ego’s (JAB Nominees Pty Ltd), interest as a 26% shareholder of the PMG as trustee for the Geraldine Bergmuller No 2 Will Trust and as such his assets include a right of exoneration from those trust assets; and, secondly, because he has actively engaged in restructuring the directorship and shareholding of JAB Nominees Pty Ltd as trustee of the Geraldine Bergmuller No 2 Will Trust holding the assets from which indemnification might be sought or be available.

   [20]PMG Board Minutes at CB873.

1. Finally, it is contended that there is no evidence of RWA shareholder interests represented by Hamilton and Silvia being in conflict with the PMG interests in recovery of the judgment debt.  In circumstances where the PMG is selling its assets and will distribute the surplus to shareholders after paying off any debts the Plaintiffs contend that any such conflict is as inconceivable as it is unexplained. 

Defendants’ submissions

Conflict of interest in the context of buyout proposals

1. The Defendants contend that the real and sensible possibility for conflict to arise is apparent from, what is said to be, the surprising behaviour of Hamilton in relation to his approach to Porsche on behalf of the RWA shareholders.  Not only was the conduct claimed to be detrimental to the interests of the PMG, but that Hamilton appears to see no problem with what he did. 

1. Sometime in the first half of 2022, Hamilton had discussions with James and Barbara Auswild in which they discussed the possibility of “settling this thing” by way of the RWA shareholders buying the JFA shareholders’ shares in the PMG.[21]  He suggested it would be prudent for them first to confirm with Porsche that they would be acceptable people to own the Porsche franchise (through their ownership of the PMG).[22]  In early June 2022, as a result of these conversations, Hamilton, unbeknown to the Defendants, approached Porsche, and met with Messrs Schmollinger and Tilley at the Porsche offices in Collingwood.[23]  James Auswild, in cross examination, at first unequivocally denied having requested Hamilton to approach Porsche,[24] but when pressed further and his attention drawn to, what the Defendants describe as, the obvious inconsistency with his evidence in chief,[25] the Defendants contend that he admitted that approaching Porsche was at least one thing he asked Hamilton to do.[26]  Nevertheless, in my view, a more accurate understanding of this evidence is that James Auswild asked Hamilton to pursue all options to extricate the RWA shareholders from their ongoing business relations with the JFA shareholders which would, in the context of their ongoing family dialogue, possibly involve the sort of discussions Hamilton had with Porsche.  In my view, the evidence of Barbara Auswild confirms this position.

   [21]T104:5–7.

   [22]T104:8–18.

   [23]T105:1, T110,24–T111:9.

   [24]T151:18–19.

   [25]Being a reference to his affidavit dated 14 February 2023, [6] (see CB44).

   [26]T153:9–14, 23–24.

1. The Defendants say that at the meeting with Porsche, Hamilton advised Porsche that the RWA shareholders were considering buying out the JFA shareholders and asked their “criteria” for assessing whether the Auswilds would be appropriate franchise holders.  When Porsche purportedly asked the question “what about Bergmuller?”, it is said that Hamilton unnecessarily volunteered to Porsche that Bergmuller would not meet their criteria because “according to his own affidavit in the court proceedings, he’s insolvent”.[27]  The Defendants contend that the supply of adverse information of this nature was unnecessary because what was being proposed by Hamilton was that the RWA shareholders would buy out the JFA shareholders, not the other way around; meaning that Bergmuller would no longer have any involvement in the PMG, being the franchise holder.  On the other hand, Hamilton made the point, which might be thought to be unsurprising in a longstanding business relationship of franchisor and franchisee, that this is a matter of which, in any event, Porsche should previously have been advised through the PMG chairman, Bergmuller, as part of being fully informed of the proceedings and matters relevant to the franchise arrangement.[28]

   [27]T112:21–23.

   [28]T122:21–23.

1. As observed by the Defendants, Hamilton’s description of his meeting with Messrs Schmollinger and Tilley as recorded in the 23 November 2022 minutes of the PMG board meeting[29] is accurate.  The Defendants submit that these minutes appear to indicate that Hamilton made no real attempt to discourage Porsche from proceeding with an offer of a new franchise agreement of only three to six months.  Hamilton’s description on this aspect was as follows: “We think that we might have to consider restricting the new franchise to three to six months.  I said well that’s a matter for you guys not for me.  I said, I can’t really comment on that.  And I think Gary Tilley said, well, what would you do if you were in our position?  And I said, well if I was on your side of the table, I can understand your position, but it’s not my call”.  Shortly after Hamilton’s approach to Porsche, he provided Porsche, by email, with a number of court documents, including Bergmuller’s affidavit filed in the Court of Appeal, and the orders of Riordan J setting up the Sales Committee.[30]  Hamilton admitted so doing, apparently in the context of keeping Porsche fully informed in the context of the franchisor and franchisee relationship.[31]

   [29]CB869.

   [30]Defendants’ Opening Documents, tabs 14–16.

   [31]T109:10–15, TT110:19–23.

1. The Defendants contend that Hamilton’s timing of his meeting with Porsche could not have been worse because at that time the Porsche franchise agreements were coming to an end, and the PMG was negotiating extensions of these agreements.  The PMG had an expectation that the franchise agreements would be extended for a period of five years, as had been the case previously, and as had been acknowledged by Porsche in the weeks leading up to the end of the franchise term.  However, after Hamilton’s provision of information to Porsche, it wrote to the PMG reducing the franchise extension from the expected five years to a period of only one year.[32]  In a further letter, Porsche noted that it had become aware of the Sales Committee.[33]  Hamilton acknowledged that when he saw that letter, he recognised that the information provided by him was the “catalyst” or at least one cause[34] of Porsche’s letter and the reduction in the franchise term.[35]  The Defendants observe that, despite this, he did not volunteer to the PMG board that he had met with Porsche and provided the information to it to which reference has been made.[36]  Throughout the following months, the PMG board considered what to do about the reduced franchise term and, the Defendants say, how to undo the damage; including through seeking legal advice and, it is said, by Mr Gattereder of the PMG going overseas to meet with Porsche in Germany.[37]  It is, however, not accurate to say that Mr Gattereder made a special journey to Germany to speak with Porsche at its head office. The evidence is that he had already planned to be at a conference in Germany and took the opportunity to meet with Porsche.[38]  In any event, Hamilton stayed silent and it was not until Bergmuller’s email of 19 October 2022[39] that Hamilton then provided an account to the board meeting on 23 November 2022.[40] 

   [32]CB644/647.

   [33]CB650.

   [34]T126:18–26.

   [35]T117.29.

   [36]T118:29–31.

   [37]T132:10–21.

   [38]T132:13–16.

   [39]CB709.

   [40]CB868–869.

1. The Defendants further submit that:

Remarkably, Mr Hamilton was not in the least “embarrassed”, “horrified” or “dismayed” [T18:1‑9] by the significant problem he had caused the PMG by his pursuit of the interests of his nominating shareholders, the RWA Family. He seemed to view his conduct as acceptable because he wasn’t wearing his “director’s hat” when he made the approach, but instead he believed he was acting on behalf of the RWA Shareholders.

In my view, it is perhaps a more balanced understanding of Hamilton’s evidence in relation to the Porsche meeting to say that he was seeking to obtain an indication from Porsche whether, in the event that the RWA Shareholders were in a position to take on the franchises of the Porsche dealerships, they would be franchisees acceptable to Porsche.  Unwise though this meeting may have been, a position hardly ameliorated by the suggestion that a person in Hamilton’s position was thinking he could remove his “director’s hat”, I do accept that the purpose of such a meeting in the context of the clear, bitter animosity between the PMG families and the evidence of the Auswilds as to their desperation to free themselves of any business relationship with the JFA shareholders was to find a means of achieving a reasonable separation. That this was the motivation for these discussions on Hamilton’s part is, in my view, reasonably clear.  Moreover, Hamilton does deny any intention to damage the PMG.[41]  Consequently I accept that Hamilton’s conduct was in pursuit of a solution to the PMG’s seemingly intractable family disputes rather than some malicious intent in any respect.

[41]T114:19–21.

1. At a board meeting of the PMG on 15 June 2022,[42] a written legal advice from Kalus Kenny Intelex (“KKI”) was tabled.[43] This advice not only addressed legal issues arising from the Porsche correspondence, but also the potential damage to the commercial interests of the PMG companies which might occur were Porsche to insist on a twelve month franchise term.  The letter stated (at page 3):

Whilst by no means exhaustive, we note that a 12‑month agreement: -

(a)May signal to or be interpreted by potential buyers that PMG is under some pressure or compulsion to sell and negatively impact the price that may be offered.

(b)May cause key employees of the Dealerships who become aware of the 12‑month agreement to consider that this does not provide certainty for them in the long term and therefore negatively impact the ability of the Dealerships to retain their services

(c)Not align with a strategy to achieve the best outcomes in relation to the sale of both the Dealerships and the real estate upon which the Dealerships are conducted

[42]Defendants’ Opening Documents, tab 7.

[43]Defendants’ Opening Documents, tab 7, page 523 of bundle.

1. Whilst recognising that the reduction in the proposed franchise term had the potential to cause significant commercial damage to the PMG as set out in the KKI letter,[44] Hamilton stated that he felt that Porsche was only reducing the franchise term to “put some pressure on [them]” and would ultimately extend it;[45] as if, the Defendants say, this somehow alleviated any wrongdoing by him.  Hamilton also stated that at the initial meeting, when he told Porsche about Bergmuller’s financial position and the state of the litigation, Porsche had indicated that perhaps it would only extend the franchise agreement for six months.  He responded “Well, that's a matter for [you] blokes. It’s got nothing to do with me”.[46]  The Defendants contend that, as a director of the PMG, the certainty and duration of the Porsche franchise should have concerned him greatly.  Ultimately, the PMG managed to resolve the issues with Porsche and entered into franchise agreements for a five year term,[47] but not without first expending significant time, effort and expense.

   [44]T126:1–4, T126:13–14.

   [45]T125:21–27.

   [46]T133:17–28.

   [47]See Defendants’ Opening Documents, tabs 9 and 10.

1. The Defendants submit that the fact that Hamilton does not recognise the gravity of his conduct and how he acted against the interests of the PMG for the benefit of the RWA Shareholders raises a genuine concern as to his capacity to make decisions about recovery under the costs orders.  It is said that it raises doubt as to how he might possibly navigate competing duties to the PMG and the interests of the RWA shareholders which might arise in the debt recovery process when he has such limited awareness of the scope of his duties.  For the preceding reasons, in the course of consideration of the Defendants’ submissions I am of the view that this is an overstatement with respect to Hamilton and his conduct. Nevertheless, it is illustrative of a likely perception adversely to that of Hamilton’s independence and lack of his being “swayed”[48] were matters to proceed according to the Hamilton resolution.  The importance of these matters is discussed further below.[49] 

   [48]As “swayed” is referred to in Warman International Ltd v Wire (1995) 182 CLR 544 at 557–8; and see also Bergmuller & Parker v Auswild [2022] VSCA 8; (2022) 403 ALR 111 at 129, 144 and 145, [80], [148] and [151]; also Defendants’ Closing Submissions (1 September 2023) at [28].

   [49]See below at [64]–[66].

1. The Defendants observed that whilst James and Barbara Auswild deny a present interest in purchasing the shares by the JFA shareholders as a way of “settling” the debts, James Auswild acknowledged that it could not be ruled out as a possibility in the future.[50]  Further, the Defendants say that “quite extraordinarily” James Auswild stated that he understood there was a possibility that Hamilton and Silvia might at some point be engaged in the collection of debts from Bergmuller and Parker and on the other hand be negotiating with the JFA shareholders in relation to a sale of shares.[51]  The Defendants say that this is precisely why James Auswild wanted Hamilton and Silvia to be in charge of the whole thing.[52]  In cross examination, James Auswild gave evidence in this respect, as is highlighted by the Defendants, as follows:

MR COLLINSON …But just so there's no doubt about the matter, you've got in mind, don't you, that it's possible that Mr Hamilton and Mr Silvia might be negotiating two things at once, the liability of Mr Parker and Mr Bergmuller under the costs orders and also at the same time a potential sale by one family to the other of shareholding interests in the PMG companies?

MR AUSWILD: Well, Graham knows the history of it.

MR COLLINSON: So you accept that that - - -?

MR AUSWILD: Most definitely.

In light of these possibilities, I do accept that the potential for conflict is “unmistakable” but, on a reading of the transcript of this evidence, I am of the view that it does not support there being a strategy to achieve a combined negotiation of debt recovery and the purchase of shares. Rather, it is, in my view, an acknowledgement that this could not be ruled out as a commercial possibility.  Nevertheless, even on this basis, I accept that this is a potentially serious conflict situation and not, by any means, a desirable outcome in the context of the very clear bitterness and distrust between the members of the PMG families. 

[50]T154:9–16.

[51]T156:18–26; and see Defendants’ Closing Submissions (1 September 2023) at [40].

[52]T156:26, T157:8–15.

1. Further in this vein, the Defendants submit that the prospect of the RWA shareholders purchasing the JFA Family shares whilst at the same time the PMG is pursuing a debt owed by that side of the family is very close to the conduct which was complained about by the RWA shareholders in their Third Party Claim against Bergmuller and Parker in the Shareholder Proceeding.  In the Shareholder Proceeding, the relief sought by the JFA shareholders included purchasing the RWA shareholders’ shares at a discount to reflect the amounts owing by the RWA family members to the PMG as claimed in the Company Proceeding.  This was referred to as the “pricing mechanism.”[53]  In the judgment in the Shareholder Proceeding, Riordan J held that the third party directors (being Bergmuller and Parker) pursued “… their personal interests by deciding to file and maintain the Company Proceeding as part of a coordinated plan, which included the purchase of the shares of the RWA Shareholders by the JFJ Shareholders.”[54]

   [53]See JAB Nominees (Aust) Pty Ltd v Auswild [2020] VSC 731 at [98], [139(b)] and [141].

   [54][2020] VSC 731 at [140]; and see above [7] (where the shareholders are described as the “JFA shareholders”).

1. Further, Riordan J found that:[55]

The inclusion of the Pricing Mechanism in the relief sought in the Shareholders Proceeding meant that proceeding was not in the interests of the Plaintiff Companies. If the claims had both succeeded, the effect of the Pricing Mechanism would have been that any amount of equitable compensation would:

(a)reduce the price payable by the JFJ Shareholders for the shares of the RWA Shareholders; or

(b)add to the price payable to the JFJ Shareholders, if the Court ordered the RWA Shareholders to purchase the shares of the JFJ Shareholders.

[55][2020] VSC 731 at [141]; and see above [7] (where the shareholders are described as the “JFA shareholders”).

1. On this aspect of the matter, reference is made by the Defendants to the following statement by Hamilton in cross examination:

So do you accept therefore that in the context of future negotiations to purchase the JFJ shareholders, the RWA shareholders might choose to try to apply some commercial pressure on JAB nominees to accept a lower price with the benefit that Mr Bergmuller wouldn't be made bankrupt, do you accept that that's a possibility?

1. Hamilton responded:

There are numerous possibilities but that is a possibility.[56]

[56]T142.22–28.

Again, this confirms, in my view, the undesirability of allowing for the possibility of any situation of this kind, potentially only though it may be, arising in the current circumstances. 

Pursuit of the Geraldine Bergmuller No 2 Will Trust

1. As the Defendants observe, there is no doubt about the animosity between the two sides of the family.  The RWA family are deeply angry at Bergmuller, it is said, for the way in which the Company Proceeding was pursued[57] and they would like to see him “punished financially” for that decision.[58]  This anger and animosity, it is emphasised, has the real potential to interfere with the RWA directors’ decision‑making in relation to what is in the best interests of the PMG when it comes to the debt recovery. 

   [57]T106:6–10, T149:29.

   [58]T106:11–12.

1. Further, the Defendants observe that a desire to pursue the Geraldine Bergmuller No 2 Will Trust on behalf of the PMG was flagged in correspondence from the RWA solicitors, PVL, dated 13 January 2023, in which they refer to a claim against the trust under the principles articulated in Pittmore Pty Ltd v Chan.[59]

   [59](2020) 104 NSWLR 62 at 102.

1. It is also observed that Hamilton acknowledged that, subject to advice, the RWA shareholders would like to pursue the Geraldine Bergmuller No 2 Will Trust for liability in respect of the costs debts.[60]  Hamilton said he thinks “… there’s good legal basis to do it and given there’s $25m involved you’d be silly not to pursue it.”[61]  On this basis the Defendants contend that this is plainly the intent of both the RWA shareholders and Hamilton.  The Defendants contend that that there is no apparent legal merit in the proposition that the PMG could recover funds from the Geraldine Bergmuller No 2 Will Trust, either directly,[62] or through a right of exoneration.  Moreover, it is submitted that there is no prospect that the Trust might be unwound in some other (unspecified) way, having been set up years before the events concerning the Company Proceeding transpired.  These proceedings are not the place to consider the prospects or otherwise of possible recovery through the unwinding of this Trust save to observe, as the Defendants submit, that the various allegations as to the prospects of this occurring are demonstrative of the ways in which the ongoing animosity between the two sides of the family may cause Hamilton and Silvia, at the direction of the RWA shareholders, to use the PMG funds to pursue a range of recovery options which may not be in the best interests of the PMG.  As a general observation, however, it would seem surprising that, whether Hamilton, Silvia or an IIP were to undertake the judgment debt recovery task, advice would not be taken on every prospect of recovering funds, particularly having regard to Bergmuller’s claimed insolvency, including through the Geraldine Bergmuller No 2 Will Trust. 

   [60]T106:14–20.

   [61]T106:24–26.

   [62]Defendants’ Closing Submissions (1 September 2023) [48]–[50].

Negotiations with Chubb Insurance

1. The PMG held a $10m directors and officers insurance policy in favour of Bergmuller and Parker (and the other directors and officers of the PMG).[63]  In their defence of the Third Party Claim, Bergmuller and Parker drew down on that policy.  Approximately $6.1 million remains available under that policy.[64] 

   [63]CB250.

   [64]CB688.

1. On 11 May 2022, PVL, solicitors on behalf of the second to tenth defendants in the Company Proceeding, including the Plaintiffs in this matter, wrote to Chubb Insurance asking that Chubb “… enter into negotiations directly with them with respect to payment by Chubb of an amount in respect of our clients' costs to be paid to them directly.”[65]  They then said that if the second to tenth defendants and Chubb could not agree as to the payment by Chubb to them of the amount sought, recovery proceedings could be commenced directly against Chubb under the Civil Liability (Third Party Claims Against Insurers) Act 2017.[66] Here, again, the Defendants say that there is a real prospect of conflict between the interests of the RWA family, who would like to press for direct payment by Chubb of the $4.9m they say they are owed on the basis of the report by Ms Dealehr,[67] and the interests of the PMG to take those funds from Chubb in priority and then to negotiate down its liability to the second to tenth defendants.

   [65]CB672.

   [66]CB672.  A copy of the Act referred to is at tab 11 of the Defendants’ Opening Documents.

   [67]See CB439 (Expert Report of Catherine Mary Dealehr dated 2 March 2020).

1. The Defendants submit that if litigation were to be commenced against Chubb as foreshadowed,[68] a contest for the insurance fund would arise between those parties to whom liability is owed by Bergmuller and Parker, including the PMG.  It is also submitted that Hamilton and Silvia could not represent the PMG companies in that dispute, where the PMG would be in direct competition with their nominating shareholders.  Again, it is said, someone independent would have to undertake that task.  Reference has been made previously to this issue in the context of considering the Plaintiffs’ submissions with respect to the extent to which there is any real conflict or difficulty in relation to the payment of the Chubb funds.[69]  It is not, however, in the present circumstances necessary to resolve this issue save to observe that to the extent that there is any controversy as to how the Chubb funds would be paid it would be desirable for an independent person, in relation to whom there could be no possible allegations of any personal interests in the process of payment, to undertake the task. 

   [68]To which it is worth noting that Chubb has advised it will not pay out any claimant in the absence of an agreement from all relevant parties as to the distribution.  See CB1089.

   [69]See above [38]

Further matters

1. For the reasons indicated in the preceding consideration of the parties’ submissions I accept the Defendants’ submissions; subject to any reservations or matters indicated in the course of considering those submissions.  While there may be some utility, as the Plaintiffs contend, in the process of seeking to have the Reimbursement Orders satisfied in utilising a person or persons  such as Hamilton or Silvia who are very familiar with the PMG history and operations, regard must be had to the ongoing conflict, bitterness and lack of trust between the two families involved with the PMG. 

1. This conflict, bitterness and lack of trust is very evident from the nature of the two proceedings at first instance and on appeal and from the oral evidence in this proceedings.  On the evidence and material before the court in this proceeding I have no reason to doubt the bona fides and integrity of Hamilton or Silvia or that they would not seek to apply themselves properly, objectively and assiduously to the process as contemplated in the Hamilton resolution.  However, in the context of the bitter animosity between the parties in this and the previous proceedings it would, with the best will in the world, be so easy to be “swayed”[70] in their tasks, unconscious though that may be.  Moreover, given the animosity and lack of trust between the parties which is so evident it is unlikely that the critical decisions they make would be accepted as proper and even handed.  Hence there would be the prospect of even more litigation in this sorry saga. 

   [70]And see above at [52].

1. For these reasons, and as foreshadowed in the statements of Riordan J to which reference has been made,[71] it is essential to establish a process for seeking to achieve satisfaction of the Reimbursement Orders which is independent of the parties.  On this basis I turn now to the independent insolvency practitioner proposals as set out in the IIP resolution proposed by the Defendants.

   [71]See above at [27]–[28].

The IIP resolution

Plaintiffs’ submissions

1. As indicated previously, the Plaintiffs oppose the appointment of an IIP as proposed by the Defendants and, rather, advocate proceeding as provided for in the Hamilton resolution.  More specifically, the Plaintiffs criticise the proposed appointment of an IIP on behalf of the PMG to enforce the orders in satisfaction of the Reimbursement Orders without reference to the board of the PMG and also that the costs of necessary legal advice obtained by that person would be paid by the PMG.[72]  Moreover, it is said that the defendant directors proposing this course of action are not shareholders.  It is also said to be significant that the JFA shareholders have remained notably silent on this application; other than Bergmuller’s alter ego JAB Nominees Pty Ltd asserting, through its solicitors, that this company has no liability for Bergmuller’s judgment debt and simultaneously arguing for an IIP.[73] 

   [72]CB982 – Letter from STL to PVL dated 15 December 2022.

   [73]Letter from BWS to PVL dated 27 January 2023.

1. The Plaintiffs also made reference to Bergmuller’s financial position which, according to the uncontested evidence of Hamilton in the context of his meetings with Porsche, is that Bergmuller is insolvent and would not be able to pay the judgment debt.  Whether, as the Plaintiffs assert, there would be access to sufficient funds to satisfy the judgment debt through the Geraldine Bergmuller No 2 Will Trust and whether, in reality, this is a viable option must, on the material before the Court, be a matter of speculation.  Whether or not the PMG would have a viable cause or causes of action to recover monies from any other persons or entities is also a matter of speculation on the basis of material presently before the Court.  Nevertheless, it may well be the case, as the Plaintiffs contend, that if the PMG moved for Bergmuller’s bankruptcy this would open statutory investigations to establish any rights that may exist against available assets, including those of the Geraldine Bergmuller No 2 Will Trust. Again, the Court expresses no views on these matters, both for the preceding reasons and because it is not necessary to do so.

1. The Plaintiffs also make the more general point that there is no basis for appointment of an IIP to decide upon available alternative courses of action unless any alternative means of recovery could enliven a conflict between an interest of the RWA shareholders and the PMG.  It is said that the only way that such a conflict could arise would be if, for some inexplicable reason, the RWA shareholders did not want to get as much money as possible.  Whether this position is correct or not, even though it does foreshadow a possibility of conflict, though possibly in an unlikely event, it does not, as I have indicated previously, address the need for a clear independent process to seek satisfaction of the Reimbursement Orders in the context of the very bitter and distrustful relationship between the PMG families. 

Defendants’ submissions

1. The Defendants in their submissions address the advantages of the IIP resolution, the relative costs involved, the identity of the insolvency practitioner and the mechanics of and power of the Defendants to vote to pass the IIP resolution.  These matters are addressed in the Defendants’ submissions in these respects, as follows:[74]

   [74]Defendants’ Closing Submissions (1 September 2023) [56]–[69].

56.The IIP Resolution is the best practical solution available to the PMG for the recovery of the debts.

57.The advantage of the IIP Resolution is that it is a complete solution to the recovery of the debts and one which avoids any possibility of conflicts and ensures the task can be progressed without the risk of further expensive and costly litigation.

Cost of the IIP dealing with the costs orders

58.The plaintiffs seem to no longer press an argument, at least with any vigour,[75] that an IIP would be unreasonably expensive, but to the extent that the cost of the IIP proposal remains a live issue it is apparent that:

[75]The cost of the IIP is not mentioned in the plaintiffs’ written opening submissions.

(a)The cost of the proposal is unlikely to be as high as that estimated by Brian Silvia;

(b)having regard to the debts owed and the financial position of the PMG, the cost of the IIP is de minimis.

59.As is apparent from the independent expert report of John Melluish,[76] Mr Silvia has overstated the estimated costs of using an independent insolvency practitioner to undertake the debt recovery, relying on hourly rates in excess of what is standard for the industry and exaggerating the scope of tasks that would be required.

[76]CB72–83.

60.In his affidavit, Mr Silvia identifies five categories of tasks he anticipates an independent insolvency practitioner would have to undertake (the fifth only necessary if a settlement cannot be reached), and his estimate of the time and cost of those tasks. He estimates the total cost of the recovery tasks (if all five categories of tasks were ultimately required) to be potentially as much as $209,600.[77]

[77]Affidavit of Brian Silvia, CB58, [9], [17], [19], [21] and [23].

61.However, Mr Melluish’s expert opinion is that:

(a)whilst he agrees with the general “categories” of tasks identified by Mr Silvia, he believes than in some circumstances the scope of works proposed by Mr Silvia in relation to that category is unnecessary and the estimated time to be taken is excessive. One does not need to be an experienced Insolvency Practitioner or expert to see this is true. For instance, Mr Silvia, at paragraph 9 of his affidavit, estimated that the first category of tasks would take 64 hours.

(b)the range of hourly rates cited by Mr Silvia is excessive.[78] Mr Silvia suggests a rate range of $600 - $1000 per hour for a Practitioner, whereas the highest hourly rate Mr Melluish could find in his searches was $865 per hour for a partner of Deloitte. Mr Melluish noted that this task would be more likely undertaken by a small to medium sized firm, where the rates are more in the range of $645‑$695 for a partner. In any event, the debate between the experts has been overtaken by the actual rates advanced by the two persons identified by the defendants as proposed candidates for the appointment, being Ms Ruhe and Mr Burdette, both of whom have quoted rates consistent with those identified by Mr Melluish;[79]

[78]CB75, [12].

[79]CB1138; CB1143.

(c)using Mr Silvia’s estimates of the hours to be taken for each category of task, but amending the hourly rates to market rates, would in itself reduce Mr Silvia’s estimate to $142,000 (at its highest);[80]

[80]CB77.

(d)Having regard to a more realistic scope of works and hourly rates, Mr Melluish estimates the recovery tasks to cost $89,200, even if all five categories of tasks were required.[81]

[81]CB78.

62.The difference in costs estimates is, at the end of the day, not a consideration of great importance. The Court should not sanction the debt recovery being undertaken by conflicted directors simply because of the cost of an appropriate alternative. There can be no doubt from the financial statements of the PMG about the ability of the PMG[82] to afford an IIP to undertake the debt recovery tasks, and any additional costs of solicitors, counsel or other professional advisors which would be necessary under any proposal.

[82]CB1103.

Identity of Insolvency Practitioner

63.In order to present a complete solution (and to mitigate against any future dispute), the defendants have identified and approached two insolvency practitioners to undertake the IIP role under the proposed IIP Resolution. They are Alice Ruhe, a principal at SMB Advisory and Rachel Burdett, a partner of Cor Cordis. Neither of them has any relationship with Mr Bergmuller or Mr Parker.[83]

[83]CB1136 and CB1141–1142.

64.The plaintiffs have said nothing about the identity of these persons. There is no reason to believe they take issue with the options, or that the identity of these persons is the reason they reject the proposed IIP Resolution.

Ability of defendants to vote in favour of and pass the IIP Resolution.

65.The Constitution of the PMG at cl 15.6(e)[84] states:

[84]CB235.

a director may vote and be counted in any quorum in relation to any matter in which that director has a material personal interest, subject to compliance with the Corporations Act.

66.There is no question that, subject to statute, the extent of a director’s fiduciary obligations to his or her company can be modified by an “attenuation” provision in its constitution: Short v Crawley [No 30] [2007] NSWSC 1322 at [1004]. An attenuation clause is to be construed according to its terms.[85]

[85]Centofanti v Eekimitor Pty Ltd (1995) 15 ACSR 629, 631–632 (King CJ), 641–643 (Olsson J), both of whom Mohr J agreed with; Re Automotive & General Industries Ltd [1975] VR 454, 460–461 (Gillard J).

67.Looking then at the terms of the attenuation provision, cl 15.6(e) allows Mr Parker and Mr Bergmuller to vote and be counted in any quorum “subject to compliance with the Corporations Act”. This is a reference to s.191 of the Act which deals with “Disclosure of, and voting on matters involving, material personal interests”. It may also refer to general directors duties prescribed the Act, including those under ss 180 to 184.

68.Relevantly, s 191 of the Corporations Act states:

(1)A director of a company who has a material personal interest in a matter that relates to the affairs of the company must give the other directors notice of the interest unless subsection (2) says otherwise.

…

(2)The director does not need to give notice of an interest under subsection (1) if:

…

(b)the company is a proprietary company and the other directors are aware of the nature and extent of the interest and its relation to the affairs of the company;

69.Accordingly, Mr Parker and Mr Bergmuller may vote so long as they give notice of their material personal interest or the other directors are aware of the nature and extent of their interest. This is consistent with the authorities which suggest that disclosure need not occur where the other directors are fully aware of a director’s material personal interest in a matter.[86]

[86]See for instance Lee Panavision Ltd v Lee Lighting Ltd [1992] BCLC 22, 33: Woolworths Ltd v Kelly (1991) 22 NSWLR 189, 212 (Samuels JA) and 234 (Mahoney JA); Krupace Holdings Pty Limited v Chia Hotel Investments Pty Limited [2018] NSWSC 862, [84]–[87] (Rein J).

1. For the reasons indicated in the preceding consideration of the Plaintiffs’ submissions and, as previously indicated, the need to ensure a clearly independent, expeditious and cost effective process for achieving, as far as possible, satisfaction of the Reimbursement Orders I accept the Defendants’ submissions in this respect and the matters and reasons raised and advanced in those submissions. 

Oppression

Test for oppression

1. The relevant legal considerations in relation to s 232(d) and (e) of the Corporations Act are helpfully and concisely set out in the Defendants’ submissions, as follows:[87]

   [87]Defendants’ Closing Submissions (1 September 2023) [77].

77.The relevant legal considerations in relation to ss 232(d) and (e) include:

(a)That phrase “oppressive to, unfairly prejudicial to, or unfairly discriminatory against” in 232(e) is concerned with conduct, objectively determined, that involves “commercial unfairness”, or “a departure from the standards of fair dealing, or where a decision has been made to impose a disadvantage, disability or burden on the plaintiff that, according to ordinary standards of reasonableness and fair dealing, is unfair”: Re Ledir Enterprises PTY LTD and Another (2013) 96 ACSR 1 at [178] per Black J.

(b)Whether there has been “unfairness” in the requisite sense is to be judged objectively: Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459 at 472‑473 per Brennan J.

(c)The relevant test is “whether reasonable directors, possessing any special skill, knowledge or acumen possessed by the directors and having in mind the importance of furthering the corporate object on the one hand and the disadvantage, disability or burden which their decision will impose on a member on the other, would have decided that it was unfair to make that decision”: Wayde at 472‑473. Or, put slightly differently, whether, “objectively in the eyes of a commercial bystander, there has been unfairness, namely conduct that is so unfair that reasonable directors who consider the matter would not have thought the decision fair”: Morgan v 45 Flers Ave Pty Ltd (1986) 10 ACLR 692 at 704 per Young J.

(d)Notwithstanding that the test is an objective one, the court is to have regard to context in determining whether or not a decision is unfair: Joint v Stephens [2008] VSCA 210 at [134] and [136]; Hillam (No 2) [2012] FCAFC 73 at [4]. Fairness is often a matter of “balancing all the interests involved” and cannot be assessed in a vacuum: Thomas v HW Thomas Ltd [1984] 1 NZLR 686 at 618. See also In Ledir Enterprises (2013) 96 ACSR 1 at [179] – [182] (Black J).

(e)One matter that forms part of the relevant context in which the conduct is to be assessed is the constitutional and contractual documents that govern the relationships between shareholders (which in the current case is relevantly the Constitution, including the attenuation provision): HNA Irish Nominee Ltd v Kinghorn (No 2) (2012) 88 ACSR 427 at [508]; O’Neil v Phillips [1999] 1 WLR 1092 at 1098.

(f)The relevant context also includes the course of conduct by the parties, including the conduct of the plaintiff: Joint v Stephens [2008] VSCA 210 at [136]; Hunter v Organic & Natural Enterprise Group Pty Ltd (2012) 92 ACSR 183 at [105].

(g)As with the s 232(e) ground, an assessment of whether conduct is “contrary to the interests of the members as a whole” is objective: Goozee v Graphic World Group Holdings Pty Ltd (2002) 42 ACSR 534 at [42]‑[44]. It is determined by whether the conduct adheres to “accepted standards of corporate behaviour” or is in accordance with how reasonable directors would act in attending to the affairs of the company: Goozee v Graphic World Group Holdings Pty Ltd (2002) 42 ACSR 534 at [41].

Was there oppressive conduct?

1. In light of the applicable legal principles, the Defendants submit that there was nothing oppressive about the conduct of Bergmuller and Parker so as to give rise to a finding of oppressive conduct under s 232, or relief under s 233, of the Corporations Act. 

1. The first act of oppression complained about is the “voting down” of the Hamilton resolution.[88]  In this context the Defendants submit that given what is established in relation to the “significant flaws” in the Hamilton resolution, it could not be said to be “commercially unfair” or contrary to “accepted standards of corporate behaviour” to vote against them.  It is said that, certainly, no reasonable director with knowledge of the circumstances would think so.  For the reasons indicated previously with respect to the possibility of Hamilton and Silvia being “swayed”[89] and having regard to what is, in my view, the clear need for an entirely independent process to be established I accept the Defendants’ submissions in this respect. 

   [88]T7:19–21.

   [89]See above at [52].

1. The second act of oppression complained of is the passing of the Bergmuller resolution (also referred to in this section as the “Enforcement Committee Resolution”).  The Defendants say that the Plaintiffs moved seamlessly from an allegation of conflict to an allegation of oppression, without any identification of the way in which the conduct is said to have been oppressive to the minority or not in the interests of the company as a whole.  The Plaintiffs seek to rely on correspondence from the solicitors for the Defendants and JAB Nominees Pty Ltd in which they acknowledge that Bergmuller and Parker cannot not vote on matters relating to the debt recovery[90] to suggest that they somehow admit the inappropriateness of passing the Bergmuller resolution.  However, that correspondence was sent in response to hostile correspondence demanding that Bergmuller and Parker resign simply because they owed debts to the PMG.[91] It was directed to the making of actual decisions about debt recovery rather than setting in place an independent process for making those decisions that would avoid any conflicts of interest. 

   [90]CB690 and CB695.

   [91]CB517 and CB521.

1. In my view, the Plaintiffs’ allegations and criticisms with respect to the Bergmuller resolution arise out of the conflict, bitterness and distrust between the family members involved in the PMG.  Were it not for this ongoing conflict, bitterness and distrust, I am not satisfied that the Bergmuller resolution taken at face value without this context would be regarded as raising issues of conflicts of interest or oppression.  Building on these considerations, and more specifically, the Defendants submit:[92]

   [92]Defendants’ Closing Submissions (1 September 2023) [81]–[83].

81.Having regard to the context, there was nothing “commercially unfair” about putting forward and voting for the Enforcement Committee Resolution. That context relevantly included:

(a)The reality of the situation faced by the board. Significant judgment debts needed to be collected from two directors where all directors were conflicted.

(b)The conduct of Mr Hamilton in relation to Porsche, demonstrating that he was not an appropriate person to undertake the debt recovery tasks.

(c)The animosity between the sides of the family which might reasonably lead to conflict if only the RWA directors were to undertake the task;

(d)The attenuation provisions found in the Constitution, which allow for Mr Bergmuller and Mr Parker to vote in relation to matters of personal interest where that interest is disclosed or otherwise known;

(e)The fact that the Enforcement Committee sought to replicate the highly successful Sales Committee which had been deemed acceptable by the RWA Shareholders in the Shareholders Proceeding. The Enforcement Committee was proposed to include skilled, independents persons who the RWA directors had good commercial relationships with and had worked with effectively, such as Mr Smith and Mr Olde, both of whom Mr Hamilton regarded as objective and capable [T96:28‑29,T97:1, T97:20‑21].

82.There was nothing commercially unfair about the Enforcement Committee Resolution, nor would any reasonable director consider the decision to pass the resolution unfair or unreasonable. The resolution was proposed as a good faith attempt to find a way for the PMG to effectively recover the judgment debts while avoiding conflicts; indeed there was (and remains) an obligation on Mr Bergmuller and Mr Parker to ensure they do not stifle that process. While it is possible for conduct to give rise to commercial unfairness even if undertaken honestly and in good faith (see De Tocqueville Private Equity Pty Ltd v Linden & Conway Ltd (2006) 56 ACSR 587 at [24]), courts are slow to find oppression in such circumstances. As Slattery J observed in McCausland v Surfing Hardware International Holdings Pty Ltd [2013] NSWSC 902 at [651]:

The court’s power should not be lightly exercised especially where lack of probity or want of good faith is not established, because the courts must respect the traditional roles of directors and shareholders in relation to corporate management: Shamsallah Holdings Pty Ltd v CBD Refrigeration and Airconditioning Services Pty Ltd (2001) 19 ACLC 517; [2001] WASC 8 at [14] per Owen J.

83.There is nothing to support a suggestion that the Enforcement Committee Resolution was passed in bad faith.

1. For these reasons I accept that the Bergmuller resolution did not unfairly prejudice or disadvantage the RWA shareholders.  I accept that it is difficult to see it having any impact on them whatsoever other than to deprive them of a committee comprised of their own board representatives, Hamilton and Silvia, which retained full control of the debt recovery process.  Again, this emphasises the conflict, bitterness and lack of trust between parties in this proceeding and the need for an independent process.  Moreover, as submitted by the Defendants, the fact that a minority shareholder does not get his or her way in relation to the conduct of the affairs of the company is not enough to constitute commercial unfairness.  Such a state of affairs is, in many cases, the natural consequence of being in the minority.[93]  It is not oppressive for those in control of a company to make legitimate and good faith business decisions about which there ultimately may be differences of opinion.[94] 

   [93]See Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1998) 28 ACSR 688 at 740 (reversed on other points by Fexuto Pty Ltd v Bosnjak Holding Ltd (2001) 37 ACSR 672); McCausland v Surfing Hardware International Holdings Pty Ltd [2013] NSWSC 902 at [647].

   [94]Mark Gerard Ireland as Executor of the Estate of the late Charles Stuart Gordon v Sandra Jane Retallack [2011] NSWSC 846 at [20].

1. Finally, the Defendants submit that it is incorrect to suggest, as the Plaintiffs did in their opening, that the Defendants ask the Court to order a passing of the IIP resolution even though they make no allegations of oppression against Silvia, Hamilton, or the RWA shareholders.  The Defendants do not invite the Court to make such an order and, moreover, wholly agree with the Plaintiffs that the Court should be wary “… to avoid an unwarranted assumption of the responsibility for management of the company”.[95]  It should “… not interfere with the traditional roles of directors and shareholders in managing and controlling a company, as provided for in its constitution, unless appropriate cause is shown”.[96] 

   [95]Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459 at 467 per Mason ACJ, Wilson, Deane and Dawson JJ.

   [96]HNA Irish Nominee Ltd v Kinghorn (No 2) (2012) 88 ACSR 427 at [507]. See also Thomas v HW Thomas Ltd (1984) 2 ACLC 610 at 620.

No continuing oppression

1. In support of the position advanced by the Defendants with respect to the Bergmuller resolution, as considered previously, it is contended that even if there were oppressive conduct complained of, it is not continuing. 

1. If oppression is found, the Court may exercise its discretion to make no order at all, or to make a broad range of orders as set out in s 233 of the Corporations Act.  However, “[t]he discretion must be exercised with regard to the statutory purpose to be found in the provisions.”[97] It is well established that the purpose of relief under s 233 is to either bring the identified oppressive conduct to an end, or where it is at an end, to compensate the oppressed for the impact of the oppressive conduct.[98] If there is no continuing oppression, the weight of current authority suggests that whilst the Court nonetheless retains power to make orders under s 233, the fact that claimed relief is founded on conduct which is no longer continuing is relevant to the exercise of the discretion.[99]  In this vein it was held by Sifris J in Exton v Extons that:[100]

From a review of the authorities, the better and predominant view is that the sections are enlivened if the conduct occurs at any time and notwithstanding that it may have ceased at the time of trial. However this will be of relevance in determining whether and to what extent orders should be made. There may be no need or utility for any remedy. Any remedy will depend on the particular circumstances of the case.

[97]Campbell v BackOffice Investments Pty Ltd [2008] NSWCA 95 at [120].

[98]Campbell v Backoffice Investments Pty Ltd [2008] NSWCA 95 per Giles JA at [122]; see also BAM Property Group Pty Ltd as trustee for BAM Property Trust v Imoda Group Holdings Pty Ltd [2019] FCA 1192 at 89; Re a Company No 002612 of 1984122; Rankine v Rankine (1995) 18 ACSR 725; Smith Martis Cork & Rajan Pty Ltd and Others v Benjamin Corporation Pty Ltd; Shirim Pty Ltd v Fesena Pty Ltd [2002] NSWSC 10; United Rural Enterprises Pty Ltd v Lopmand Pty Ltd and Ors (2003) 47 ACSR 514; Vadori v AAV Plumbing [2010] NSWSC 274, Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; 83 ALJR 903; 73 ACSR 1; 257 ALR 610; [2009] HCA 25 at [180]–[182]. Re Hollen Australia Pty Ltd [2009] VSC 95 at [87], citing Re Cumana [1986] BCLC 430 and Re a Company (1986) 2 BCC 99,453.

[99]Campbell v Backoffice Investments Pty Ltd [2009] HCA 25 (French CJ at [68]–[72]; Gummow, Hayne, Heydon and Kiefel JJ at [182]) adopting the approach of Giles JA in the Court of Appeal).

[100](2017) 53 VR 520 at 530.

1. Thus it is said that if the powers of the Court in relation to oppression under the provisions of ss 232 and 233 of the Corporations Act are enlivened, the Court should exercise its discretion whether or not to make any order.  In present circumstances, assuming there were to have been a finding of oppression the Defendants submit that reliance should be placed by the Court on the Defendants’ Undertaking[101] to pass the IIP resolution.  It is said that in the face of the withdrawn Bergmuller resolution and the proffered Undertaking, there is no utility for any remedy to be ordered.  In the alternative, the Defendants say that the Court should exercise its discretion to order the IIP resolution be passed in favour of the plainly problematic Hamilton Resolution.

   [101]A copy of this Undertaking is contained in Annexure 3 to these reasons.

1. For the preceding reasons and having regard to the withdrawal of the Bergmuller resolution and the Undertaking and also having regard to the authorities indicating that the Court should be wary of any assumption of responsibility for the management of the business of a company, I am of the view that the discretion should be exercised in favour of reliance upon the Defendants’ Undertaking to pass the IIP resolution. Moreover, for the preceding reasons, I am of the view that there was not, in all the circumstances, a conflict of interest inherent in the passing of the Bergmuller resolution having regard to its objective of achieving satisfaction of the judgment debt and also the membership of the, so described, Enforcement Committee. In any event the resolution has been withdrawn and so the issue, if there was one, does not now arise. Also, having regard to the preceding reasons I am of the view that there was no conflict of interest involved in Bergmuller voting down the Hamilton resolution, particularly having regard to its inherent difficulties, as identified previously.

Conclusion

1. For the preceding reasons the Court finds that there was no oppressive conduct so as to enliven the Court’s powers to make any orders under s 233 of the Corporations Act and that, consequently, the proceeding should be dismissed.  The Court is confident, on the basis of the Defendants’ Undertaking, that the IIP resolution will be passed. 

1. The parties are to bring in orders to give effect to these reasons.

1. I will reserve the question of costs and will hear the parties further on this issue. 

---

SCHEDULE OF PARTIES

S ECI 2022 04971
BETWEEN:
JAMES RONALD AUSWILD	First Plaintiff
BARBARA JOAN AUSWILD	Second Plaintiff
RONALD RAYMOND AUSWILD	Third Plaintiff
- v -
JAMES AUSWILD BERGMULLER	First Defendant
PETER PARKER	Second Defendant

SCHEDULE OF COMPANIES

BETWEEN:

FINANCE & GUARANTEE COMPANY PTY LTD (ACN 000 032 548)

PRESTON MOTORS PTY LTD (ACN 004 082 213)

PRESTON MOTORS (PROPERTIES) PTY LTD (ACN 008 467 427)

PRESTON MOTORS (PARTS SALES) PTY LTD (ACN 005 142 978)

ACN 008 392 505 PTY LIMITED (ACN 008 392 505)

PRESTON MOTORS (HOLDINGS) PTY LTD (ACN 004 357 279)

AUSWILD SECURITIES PTY LTD (ACN 000 718 178)

FINTEE INVESTMENTS (CANBERRA) PTY LTD (ACN 008 461 818)

Annexure 1

Resolution put forward by James Bergmuller

Resolution of Directors of each of the PMG Companies

1.The boards of the companies listed in Schedule A (PMG Companies) resolve to:

(a)form a committee (Enforcement Committee) in accordance with Schedule B to this resolution to enforce paragraphs 3 to 6 of orders of Riordan J dated 20 November 2020 (Relevant Orders) in the Shareholder Proceedings (copy attached);

(b)delegate to the Enforcement Committee all necessary powers to enforce the Relevant Orders, including the power to appoint the necessary consultants to assist with that process and to deal with Chubb Insurance Australia Limited (including policy number 93309459) in relation to the proceeds of any insurance policy.

Annexure 2

Resolutions put forward by Graham Hamilton

DRAFT RESOLUTIONS OF F&G RE COSTS RECOVERY

Privileged and confidential

Resolution 1

That the Company, along with the other seven plaintiffs in Supreme Court of Victoria proceeding SCI 2014/000071 (Company Proceeding), forthwith take all necessary steps to recover from James Auswild Bergmuller and Peter Parker the amount of $11,632,555.36 plus interest together with the First Defendants costs in the sum of $2.3m, which Messrs Bergmuller and Parker were ordered to reimburse to the plaintiffs in the Company Proceeding by orders made by Justice Riordan on 20 November 2020 and 28 May 202l in Supreme Court of Victoria proceeding SCI 2014/004719 (Shareholder Proceeding).

Resolution 2

That the Company, along with the other seven plaintiffs in the Company Proceeding, appoint solicitors to advise on and then take all reasonable and necessary steps to recover from James Auswild Bergmuller and Peter Parker the amount of $11,632,555.36 plus interest together with the First Defendants costs in the sum of $2.3m, which Messrs Bergmuller and Parker were ordered to reimburse to the plaintiffs in the Company Proceeding by orders made by Justice Riordan on 20 November 2020 and 28 May 2021 in the Shareholder Proceeding.

Resolution 3

That Graham Hamilton and Brian Silvia be appointed as a subcommittee of the Board of the Company with its delegated authority to cause the Company take all reasonable and necessary steps to recover from James Auswild Bergmuller and Peter Parker the amount of $11,632,555.36 plus interest together with the First Defendants costs in the sum of $2.3m, which Messrs Bergmuller and Parker were ordered to reimburse to the plaintiffs in the Company Proceeding by orders made by Justice Riordan on 20 November 2020 and 28 May 2021 in the Shareholder Proceeding.

Resolution 4

That James Auswild Bergmuller and Peter Parker recuse themselves from any directors’ meetings or voting of directors of the Company in respect of the recovery by the Company from James Auswild Bergmuller and Peter Parker of the amount of $11,632,555.36 plus interest as ordered, which Messrs Bergmuller and Parker were ordered to reimburse to the plaintiffs in the Company Proceeding by orders made by Justice Riordan on 20 November 2020 and 28 May 2021 in the Shareholder Proceeding.

Annexure 3

Defendants’ Undertaking to the Court

Each of James Bergmuller and Peter Parker undertake to the Court as follows:

1.Within 7 days of judgment in this proceeding Mr Bergmuller will call a meeting of the boards of directors of the Preston Motor Group companies.

2.At the Board Meeting, Mr Bergmuller and Mr Parker will propose and vote in favour of the resolution set out in Annexure A (the Resolution).[102]

[102]The Resolution referred to is set out in Annexure 4 to these Reasons.

3.Where there is a deadlock of votes, Mr Bergmuller will use his casting vote to pass the Resolution.

4.Mr Bergmuller and Mr Parker will not revoke the Resolution or pass any other resolution which modifies the Resolution.

Annexure 4

Proposed Resolution for the Appointment of an Independent Insolvency Practitioner

1.The resolution of:

(i)Auswild Secretarial Services Pty Ltd

(ii)Auswild Securities Pty Ltd

(iii)Austwise Corporation Pty Ltd

(iv)Finance & Guarantee Company Pty Ltd

(v)E M Faraleigh Pty Ltd

(vi)ACN 008 392 505 Pty Ltd

(vii)Commonwealth Motors (Properties) Pty Ltd

(viii)Fintee Investment (Canberra) Pty Ltd

(ix)County Building & Investment Co Pty Ltd

(x)Preston Motors (Holdings) Pty Ltd

(xi)Preston Motors (Properties) Pty Ltd

(xii)Preston Motors Pty Ltd

(xiii)Preston Motors Part Sales Pty Ltd

(xiv)Preston Motors (Essendon) Pty Ltd

(xv)Seascape Resort Apartments Pty Ltd

(xvi)PM Finance Pty Ltd

(xvii)PM South City Pty Ltd

(xviii)MC Autos Pty Ltd

(xix)ACN 612 396 737 Pty Ltd

passed on 23 November 2022 is set aside.

2.Pursuant to clause 15.8(a) and (b) of the Constitution of:

(i)       Finance & Guarantee Company Pty Ltd (ACN 000 032 548)

(ii)      Preston Motors Pty Ltd (ACN 004 082 213)

(iii)     Preston Motors (Properties) Pty Ltd (ACN 008 467 427)

(iv)     Preston Motors (Part Sales) Pty Ltd (ACN 005 142 978)

(v)      ACN 008 392 505 Pty Ltd (ACN 008 392 505)

(vi)     Preston Motors (Holdings) Pty Ltd (ACN 004 357 279)

(vii)     Auswild Securities Pty Ltd (ACN 000 718 178)

(viii)    Fintee Investments (Canberra) Pty Ltd (ACN 008 461 818)

(the Companies), the Companies appoint a committee comprising [Alice Ruhe of SMB Advisory or Rachel Burdett of Cor Cordis] (the Committee) for the purpose of:

(a)enforcing Orders 4 to 6 of Riordan J made on 20 November 2020 (including, in respect of Order 4, as amended by Orders 1 and 2 made by Riordan J on 28 May 2021); and

(b)agreeing or attending to the assessment of the costs payable by the PMG Companies under Order 3 dated 20 November 2020;

in proceedings SCI 2014 04719 and S ECI 2014 00071 (the Orders).

3.Pursuant to clause 15.8(c) of the Constitution of the Companies, the Committee is hereby delegated authority to exercise all decision making in relation to the Orders and associated tasks, including recovering funds from Chubb Insurance and to retain appropriate legal or other professional advisors for that purpose and to do all things necessary to give effect to any of its decisions, including executing relevant documents and contracts.

4.Pursuant to clause 15.8(d) of the Constitution of the Companies, the fees of the Committee, including the costs of any legal or other professional advisors retained by the Committee, be paid by Preston Motors Pty Ltd.