Bateman v Newhaven Park Stud Ltd

[2004] NSWSC 566

Reported Decision: 49 ACSR 597
(2004) 22 ACLC 943

Supreme Court

CITATION:	Bateman v Newhaven Park Stud Ltd [2004] NSWSC 566
HEARING DATE(S):	11/06/04, 16/06/04
JUDGMENT DATE:	29 June 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Barrett J
DECISION:	Interlocutory injunction refused
CATCHWORDS:	CORPORATIONS - share buy back - requirement for approval by special resolution on which no vote cast in favour by person whose shares are to be bought back or by associates of such person - identifying "associates" - "acting in concert" - need to show understanding as to common objective - need for concert to be "in respect of" particular "matter" of voting on particular resolution - family relationships and past ties insufficient to raise serious question to be tried - whether interlocutory injunction in any event justified to defend utility of oppression proceedings - consideration of wide range of remedies court may grant if plaintiffs successful - balance of convenience considerations where interlocutory order would compel breach of contract
LEGISLATION CITED:	Corporations Act 2001 (Cth), ss.10, 15, 257D(1)(a), Part 2J.1,
CASES CITED:	Adsteam Building Industries Pty Ltd v The Queensland Cement and Lime Co Ltd (No 4) [1985] 1 QdR 127 Bank of Western Australia Ltd v Ocean Trawlers Pty Ltd (1995) 16 ACSR 501 Re Brenfield Squash Racquets Club Ltd [1996] 2 BCLC 184 Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 Elders IXL Ltd v National Companies and Securities Commission [1987] VR 1 Fexuto Pty Ltd v Busnjak Holdings Pty Ltd (2001) 37 ACSR 672 Gillard v The Queen (2003) 78 ALJR 64 Grizonic v Suttor [2004] NSWSC 137 Heine Management Ltd v Australian Securities Commission (1993) 12 ACSR 578 Industrial Equity Ltd v Commissioner for Corporate Affairs (1989) 1 ACSR 153 IPT Systems Ltd v MTIC Corporate Pty Ltd (2000) 36 ACSR 454 John J Starr (Real Estate) Pty Ltd v Robert R Andrew (A'sia) Pty Ltd (1991) 6 ACSR 63 Orr v Lane (1951) 52 SR (NSW) 37 Tait v The Queen (1962) 108 CLR 620 The King and the Attorney General of the Commonwealth v The Associated Northern Collieries (1911) 14 CLR 387 Re Tiger Investment Co Ltd (1999) 33 ACSR 438 Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 Village Roadshow Ltd v Boswell Film GmbH (2004) 49 ACSR 27
PARTIES :	Edmund Gregory Thomas Bateman - First Plaintiff Abtourk (Syd No 391) Pty Limited - Second Plaintiff Belinda Cawardine Bateman - Third Plaintiff Charado Pty Limited - Fourth Plaintiff Newhaven Park Stud Limited - First Defendant Frederick John Kelly, Richard John Kelly, John Horace Ingham, Norman Eric Napper - Second Defendants Burst Pty Limited - Third Defendant Braylen Pty Limited - Fourth Defendant
FILE NUMBER(S):	SC 3600/03
COUNSEL:	Mr G K Burton - Plaintiffs Mr R J Weber SC/Mr C Mantziaris - First Defendant and First and Fourth Second Defendants Mr G A Sirtes - Second Second Defendant, Third and Fourth Defendants
SOLICITORS:	Abbott Tout - Plaintiffs Esplins - First Defendant and First and Fourth Second Defendants Macquarie Legal Practice- Second Second Defendant, Third and Fourth Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

DATE

3600/03 - EDMUND GREGORY THOMAS BATEMAN & 3 ORS v NEWHAVEN PARK STUD LIMITED & 3 ORS

JUDGMENT

Background

1 By notice of motion filed on 1 June 2004 and heard by me on 11 and 16 June 2004, the plaintiffs seek interlocutory orders restraining the defendants from completing certain transactions or, perhaps more accurately, a composite transaction having two inter-linked elements.

2 The first defendant (“Newhaven”) is a company the shares of which are listed for quotation on the stock market of Australian Stock Exchange Limited (“ASX”). The plaintiffs are shareholders of Newhaven. The transaction in question involves Newhaven and certain other shareholders of Newhaven, being Richard John Kelly (one of the second defendants, whom I shall call “R J Kelly”), Burst Pty Limited (the third defendant) and Braylen Pty Limited (the fourth defendant). Under that transaction, Newhaven is to buy back the Newhaven shares held by R J Kelly, Burst and Braylen; and Burst and Braylen are to purchase certain real property owned by Newhaven, being a suburban hotel and a rural property formerly used as a horse stud.

3 The terms of the transaction are such that it will not proceed to completion in either of its branches unless two conditions are satisfied: first, a special resolution approving the share buy back by Newhaven must have been passed in accordance with Part 2J.1 of the Corporations Act 2001 (Cth); and, second, a resolution approving the purchase of the real property from Newhaven must have been passed in accordance with the listing rules of ASX. A general meeting of Newhaven was convened for the purpose of considering proposed resolutions meeting these specifications. The meeting commenced on 10 May 2004 and was adjourned to 26 May 2004 without either proposed resolution having been submitted to a vote. When the adjourned meeting resumed, motions for the adoption of the two resolutions were debated, voting took place and both resolutions were declared duly passed.

4 The plaintiffs, as well as being shareholders of Newhaven, are keen to enter into a transaction with it corresponding with that involving R J Kelly, Burst and Braylen but at what the plaintiffs consider to be a price more advantageous to Newhaven. It is necessary to refer here to some past events. A transaction between Newhaven on the one hand and R J Kelly, Burst and Braylen was first proposed in the first half of 2003. It was a composite transaction corresponding with that now under consideration except as to price. Like the present transaction, the earlier transaction required approval by resolutions of Newhaven’s shareholders. To that end, a general meeting was convened for 25 July 2003. Shortly before that meeting was held, the present plaintiffs submitted to Newhaven a proposal for an equivalent transaction, but with them substituted for R J Kelly, Burst and Braylen and on terms more advantageous to Newhaven.

5 The proposal of R J Kelly, Burst and Braylen was considered at the meeting on 23 July 2003 but the necessary resolutions were not passed. Newhaven then proceeded to negotiate with the plaintiffs. There was a volume of correspondence during the second half of 2003. In late 2003, R J Kelly, Burst and Braylen came forward with an improved proposal. On 22 December 2003, Newhaven entered into agreements with R J Kelly, Burst and Braylen. They are the agreements embodying the transaction now under consideration.

6 The plaintiffs afterwards commenced these proceedings. By their amended statement of claim they seek relief directed towards the result that Newhaven enters into a transaction generally corresponding with the present transactions, but with the plaintiffs paying a higher price; or, as an alternative, that Newhaven offers the relevant Newhaven assets for sale on the open market.

The basis on which an interlocutory injunction is sought

7 In pursuing the claim for an interlocutory injunction in the notice of motion filed on 1 June 2004, the plaintiffs put forward two unrelated grounds. First, they say that the resolution supposedly passed on 26 May 2004 to satisfy the requirement arising under Part 2J.1 did not, in reality, meet the statutory specification so that one of the conditions precedent to effectuation of the transaction has not been fulfilled. Second, they say that the relief sought is necessary to preserve the subject matter of the proceedings pending trial. I shall deal with the grounds in the order I have stated them.

The first ground on which an interlocutory injunction is sought

8 The relevant requirement under Part 2J.1 is stated in s.257D(1)(a). It requires that the terms of the buy back agreement be approved before it is entered into and that the approval be by one of two means. The first is

“a special resolution passed at a general meeting of the company, with no votes being cast in favour of the resolution by any person whose shares are proposed to be bought back or by their associates.”

9 The persons whose shares are proposed to be bought back are, in this case, R J Kelly, Burst and Braylen. The contention of the plaintiffs is that the resolution purportedly passed in satisfaction of the s.257D(1)(a) requirement did not in reality meet the statutory specification because, while none of R J Kelly, Burst and Braylen cast votes in favour of it (or against it, for that matter) one or more “associates” of those shareholders (or of one or more of them) did vote in favour. The main person said to be an “associate” of one or more of R J Kelly, Burst and Braylen is JWK Nominees Pty Limited. The others are FJK Nominees Pty Ltd, Zedrum Pty Ltd, Glammis Pty Ltd, Hatley Pty Ltd and Zali Pty Ltd. It is conceded that each of these six companies voted in favour of the resolution but Newhaven denies that any of them is an “associate” of any of R J Kelly, Burst and Braylen.

10 The plaintiffs base this part of their case on s.10 and parts of s.15, being ss.15(1)(a) and 15(1)(c), although the reliance on the last provision is somewhat faint. These sections are in Division 2 of Part 1.2. Section 10 reads as follows:

“(1) This Division has effect for the purposes of interpreting a reference (in this Division called the associate reference ), in relation to a person (in this Division called the primary person ), to an associate.
(2) A person is not an associate of the primary person except as provided in this Division.
(3) Nothing in this Division limits the generality of anything else in it.”

11 Section 15(1) is in the following terms:

“(1) The associate reference includes a reference to:
(a) a person in concert with whom the primary person is acting, or proposes to act; and
(b) a person who, under the regulations, is, for the purposes of the provision in which the associate reference occurs, an associate of the primary person; and
(c) a person with whom the primary person is, or proposes to become, associated, whether formally or informally, in any other way;
in respect of the matter to which the associate reference relates.”

(Section 16 qualifies s.15 but not in ways presently relevant.)

Construing Division 2 of Part 1.2 in the context of s.247D(1)(a)

12 Section 10 explains the way in which the other provisions of Division 2 of Part 1.2 operate. Section 10(1) directs attention, in the first instance, to the “primary person”, that is, the person whose “associate” is sought for the purpose of interpreting a reference to an “associate” (that reference being the “associate reference”). Section 10(2) then makes it clear that an “associate” relationship cannot be found except through a provision of Division 2 of Part 1.2. The provisions upon which the plaintiffs rely are, as I have said, s.15(1)(a) and, to a lesser extent, s.15(1)(c).

13 The “associate reference” with which the present inquiry is concerned is that in s.257D(1)(a) – that is, the reference to an “associate” of a “person whose shares are proposed to be bought back”. When attention is focussed upon s.15(1), however another level of inquiry is directed: what is “the matter to which the associate reference relates”? The clear indication here is that the reference in s.257D(1) to an “associate” of a “person whose shares are proposed to be bought back” is a reference that “relates” to some “matter” and the task is to identify that “matter”.

14 It seems to me that the “matter” in question is the “matter” of voting on the special resolution approving the terms of the buy back agreement. That conclusion is consistent with the approach taken by Hayne J in Heine Management Ltd v Australian Securities Commission (1993) 12 ACSR 578 at 594. When s.15 is seen as having that operation in relation to s.257D(1)(a), the task under s.15(1)(a) is to decide whether the alleged “associate” is a person “in concert with whom” a “person whose shares are proposed to be bought back” (being the “primary person” in s.10 terms) is acting, or proposes to act, “in respect of” the “matter” of voting on the special resolution approving the terms of the buy back agreement. The focus is thus upon the actions of the “primary person” whose shares are proposed to be bought back, as those actions relate to the particular “matter”. The putative “associate” will be an “associate” of that “primary person”, via s.15(1)(a), if, “in respect of” that “matter”, that “primary person” either “is acting” or “proposes to act” “in concert with” that putative “associate”. (For present purposes the “proposes to” aspect may be disregarded.)

15 Translating that to the situation now under consideration, the question is whether, at the time voting on the s.257D(1)(a) resolution occurred, any of R J Kelly, Burst and Braylen was acting in concert with JWK Nominees Pty Ltd (or with FJK Nominees Pty Ltd, Zedrum Pty Ltd, Glammis Pty Ltd, Hatley Pty Ltd and Zali Pty Ltd) in respect of the “matter” of voting on that resolution – so that the company concerned was “a person in concert with whom” any of R J Kelly, Burst and Braylen was acting in respect of that “matter”.

“Acting in concert”

16 Mr Burton of counsel, who appeared for the plaintiffs, took me to a number of authorities on the meaning of “acting in concert” in contexts such as the present. The cases to which he referred are Elders IXL Ltd v National Companies and Securities Commission [1987] VR 1, Adsteam Building Industries Pty Ltd v The Queensland Cement and Lime Co Ltd (No 4) [1985] 1 QdR 127 and Bank of Western Australia Ltd v Ocean Trawlers Pty Ltd (1995) 16 ACSR 501. In the first of these cases, Marks J rejected the proposition that any of certain persons was an “associate” of another person by virtue of a collection of provisions including one using the “acting in concert” criterion with which I am currently concerned. In doing so, Marks J emphasised that the provisions were concerned with real combinations and real aggregations which, one way or another, truly exist on a balance of probabilities and not as a product of mere suspicion or prejudice. Among matters deemed irrelevant to the inquiry were the fact that two persons had “a friendly relationship”, the fact that two companies were part sponsors of a sporting event and the fact that two persons were directors of a football club.

17 The Adsteam Building Industries case addressed directly the “acting in concert” concept. McPherson J, after discussing the meaning of “agreement, arrangement or undertaking” and concluding that there must exist at least “an understanding among those involved”, said:

“Much the same conclusion is true of the allegation of ‘acting in concert’ in the same paragraph of the pleading and particulars. As at present advised I cannot see that it is possible for persons to ‘act in concert’ towards an end or object, or even simply to act in concert, unless there is at least an understanding between them as to their common purpose or object. The expression in question evokes the notion of joint actors, or perhaps even joint tortfeasors, as to which it is settled that there must be ‘concerted action to a common end’: see The Koursk [1924] P. 140,156. A mere coincidence of separate acts is insufficient: see Fleming: The Law of Torts , 6th ed., at pp.227-228. It therefore seems to me that the express reference, whether in the pleading in this case or in s.7(4)(c) itself, to persons ‘acting in concert’ adds little if anything to what is already comprehended by the expression ‘understanding’ in s.7(4)(b).”

18 The same matter was dealt with by Owen J in Bank of Western Australia v Ocean Trawlers in this way:

“The phrase ‘acting in concert’ connotes knowing conduct the result of communication between parties and not simultaneous actions occurring contemporaneously. Of course, the statutory definition expands that concept by including a proposal so to act. However, in the context of this case the allegation is of a bilateral arrangement. ‘Acting in concert’ involves at least an understanding between the parties as to a common purpose or object: see Adsteam Building Industries Pty Ltd v Queensland Cement and Lime Company Ltd (No 4) [1985] 1 Qd R 127 at 132. It is necessary that the understanding should be consensual and that there should be some adoption of it. However, it is not essential that the parties are committed to it or bound to support it. An arrangement or understanding can be informal as well as unenforceable and the parties may be free to withdraw from it or to act inconsistently with it notwithstanding their adoption of it: see Federal Commissioner of Taxation v Lutovi Investments Pty Ltd 140 CLR 434 at 443-4; 22 ALR 519. Such an understanding may be proved by inference from the circumstances surrounding the impugned transaction and from what the parties have done as well as by direct evidence: see Adsteam (supra) at 133.”

Owen J re-affirmed these views in IPT Systems Ltd v MTIC Corporate Pty Ltd (2000) 36 ACSR 454.

19 In Industrial Equity Ltd v Commissioner for Corporate Affairs (1989) 1 ACSR 153, Crockett, Fullagar and Nathan JJ said that “acting in concert means little more than engaged in a concert”. They continued:

“It is not necessary for a person to be doing or performing any physical or overt acts or actions in order to be ‘acting in concert’ with another person.

A first person may be ‘acting’ in a concert with a second person, to assault and rob a third person, throughout a period in which the first person merely stands still and watches the second person do the necessary physical acts. Of course he must be ‘acting’ by ‘being present’, ‘lending support’ or the like, but he need not be doing acts in the way contended for by Mr Finkelstein.”

20 As these last remarks imply, the same approach to “acting in concert” is taken in other areas of the law. Section 45D of the Trade Practices Act 1974 (Cth), dealing with secondary boycotts, says that “a person must not, in concert with a second person, engage in conduct …”. Bowen CJ (with whom Evatt J agreed) said, in relation to that provision, in Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331:

“Acting in concert involves knowing conduct, the result of communication between the parties and not simply simultaneous actions occurring spontaneously.”

21 In Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550, the Full Federal Court considered a provision of the Workplace Relations Act 1996 (Cth) that said:

“Engaging in industrial action is not protected action if … it is engaged in in concert with one or more persons or organisations that are not protected persons …”

Wilcox and Cooper JJ said in a joint judgment:

“In view of our earlier conclusions, it is unnecessary for us to determine Davids’ further submission that the picket failed, or ceased, to be protected action because it was undertaken in concert with one or more unprotected persons or organisations: see s 170MM. However, we make three observations. First, we agree with North J that there is a difference between taking action ‘in concert’ and action in conjunction. Action ‘in concert’ is action undertaken as a result of communication between the parties to the action. It is not enough that there be spontaneous actions by two or more persons, even if those actions occur at the same time; although, of course, such actions may ‘naturally … lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement’: R v Associated Northern Collieries (1911) 14 CLR 387 at 400, per Isaacs J. Nor is action ‘in concert’ simply because the action of one person or organisation is supported by others. It follows, and this is our second observation, that, in order to establish that a picket was undertaken ‘in concert’ between two unions, it would not be enough to show that members of a second union participated in a picket arranged by the first unless, in the circumstances, the inference of concert were appropriate. Those members may have attended the picket as individuals, rather than at the instigation of their union. Even if they attended at the behest of their union, this might have been because their union wished to indicate support for the first union, and/or the picketers as individuals, without any collaboration between the two unions. Thirdly, if the subject pickets had ceased to be ‘protected action’ because of collaboration in their maintenance between NUW and one or more unprotected persons or organisations, this would not affect the status of the picket at an earlier point of time, or the availability of Div 10 of Pt VIB in respect of any action taken by Davids in relation to employees’ participation in the picket at that time.”

22 The “concert” concept also plays a part in the criminal law doctrine of joint criminal enterprise. In Gillard v The Queen (2003) 78 ALJR 64, Hayne J said (at 82):

“As was pointed out in McAuliffe , the terms ‘common purpose’, ‘common design’, ‘concert’, ‘joint criminal enterprise’ are used more or less interchangeably to invoke a doctrine by which the complicity of a secondary party in the commission of a crime may be established. It is a doctrine which is separate from the liability of an accessory before the fact, who counsels or procures the commission of the crime; it is separate from the liability of a principal in the second degree, who aids or abets in the commission of the crime. Joint criminal enterprise, or acting in concert, depends upon the secondary party (here, the appellant) sharing a common purpose with the principal offender (here, Preston) or with that offender and others. ”

23 Many of the formulations of the “concert” concept in various branches of the law go back to what was said by Isaacs J in the “Coal Vend Case”, The King and the Attorney General of the Commonwealth v The Associated Northern Collieries (1911) 14 CLR 387, a case under the Australian Industries Preservation Act 1906 (Cth). Isaacs J regarded association of persons for a purpose so as to make the purpose common to both as the essence of conspiracy. His Honour said:

“Community of purpose may be proved by independent facts, but it need not be. If the other defendant is shown to be committing other acts, tending to the same end, then though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge.”

The plaintiffs’ contentions on “acting in concert”

24 As regards JWK Nominees Pty Ltd and against the background of the “concert” concept thus elucidated, the plaintiffs say that there is, in this case, sufficient material to draw an inference that JWK Nominees Pty Ltd on the one hand and R J Kelly, Burst and Braylen on the other acted in a combined or aggregated fashion and with a common objective in respect of the special resolution to approve the terms of the buy back agreement. That inference, the plaintiffs say, is sufficiently strong to mean that there is a serious question to be tried as to whether, to the extent that the due passing of the resolution depends on the positive votes of JWK Nominees Pty Ltd, the resolution is of the description in s.257D(1)(a). I shall, for the moment, concentrate on JWK Nominees Pty Ltd and return in due course to FJK Nominees Pty Ltd, Zedrum Pty Ltd, Glammis Pty Ltd, Hatley Pty Ltd and Zali Pty Ltd.

25 The first matter to which the plaintiffs point is the pattern of ownership and control within JWK Nominees Pty Ltd as it appears from an ASIC search dated 27 April 2004. The search shows six shares as being on issue, of which two are held beneficially by R J Kelly, two are held beneficially by Frederick John Kelly (“F J Kelly”) and two are held beneficially by Thomas William John Kelly (“T W J Kelly”). The current directors are shown as the three current shareholders, with R J Kelly and F J Kelly having been in office since 1988 and T W J Kelly having been in office since 1999. R J Kelly and F J Kelly are brothers. T W J Kelly is their half brother.

26 Second, the plaintiffs point to a substantial shareholding notice (Form 604) lodged in September 2002 by “Kelly Family Group”. That notice referred, in aggregated form, to relevant interests in Newhaven shares on the part of Burst, Braylen, R J Kelly, JWK Nominees Pty Ltd and a number of other individual and companies, including F J Kelly and T W J Kelly.

27 Third, there is reference to a series of substantial shareholding notices (Forms 603 and 605) each dated 24 July 2003. The date is significant. It was the day immediately before the earlier meeting of Newhaven shareholders convened to consider proposals very similar to those the subject of voting on 26 May 2004, which proposals were not approved by shareholders. The effect of these notices was to disaggregate what was previously the collection of relevant interests designated “Kelly Family Group” and to notify three separate substantial shareholdings, one attributed to Burst, another attributed to FJK Nominees and the third attributed to JWK Nominees Pty Ltd. The Burst notification relates to shares in which relevant interests are shown as held by Burst, Braylen and R J Kelly. The FJK Nominees Pty Ltd notification relates to shares in which relevant interests are shown as held by that company, F J Kelly and certain other companies. The JWK Nominees Pty Ltd notification relates to shares in which relevant interests are shown as held by that company, John William Kelly (deceased) and T W J Kelly.

28 The circumstances in which the forms dated 24 July 2003 came to be prepared appear from two letters of that date, one from the solicitors for the plaintiffs to the solicitors for Newhaven and the other Newhaven’s solicitors’ reply. The plaintiffs’ solicitors referred to the “Kelly Family Group” Form 604 of 5 September 2002 and, after outlining voting restrictions arising under s.257D(1)(a) and ASX Listing Rules 10.10.1 and 14.11, said:

“It is self-evident that each of the individuals and companies named in the enclosed form 604 is, as a self-declared associate of each other (including Braylen Pty Ltd and Burst Pty Ltd) precluded from voting on either resolution 1 or resolution 2.”

29 The reply from Newhaven’s solicitors read in part as follows:

“We acknowledge the contents of your letter relating to voting by associates and its range of possibilities. In the case of each of Fred Kelly and Richard Kelly we are instructed each conducts his respective affairs entirely separately such that it cannot be said one is an associate of the other. Richard Kelly was completely unaware of the form 604 which you have provided to us today.
On receipt of your letter we telephoned the company accountant, Tom Horton. It appears that he has adopted a practice from his previous partner, Bill Rogerson, the former company secretary, that in preparing a substantial shareholder notice, the previous notice was copied, which notice dated back to a time when the respective brothers, F J Kelly and R J Kelly, had a situation where their family trusts had a common trustee, J W K Nominees Pty Limited of which Fred Kelly and Richard Kelly and others were directors.
Some years ago Burst Pty Limited (of which Fred Kelly is not a director or shareholder) became Trustee of Richard Kelly’s family trusts and FJK Nominees Pty Limited (of which Richard Kelly is not a director or shareholder) became trustee of Fred Kelly’s family trusts. The respective bothers at that time in effect formalised separation of their affairs, which had been the case quite some time before.
Erroneously Tom Horton who took over the practice of Bill Rogerson in about 2001 when preparing the form 604 did not consider the previous 1995 form closely enough and take account of the changed circumstances. He did not discuss the form’s contents with Fred Kelly who signed it at Tom Horton’s request.
Correcting Section 604 returns are being prepared and will prior to the meeting at 10.00am tomorrow be lodged with ASIC and ASX. Tom Horton, has advised he will be letting us have a letter detailing the exact history of what has transpired concerning the form 604. As soon as this is to hand we will provide you with a copy. We expect that that letter may then lead to an affidavit by Mr Horton in the current proceedings.”

30 The plaintiffs’ fourth point is to refer to certain aspects of the content of Newhaven’s annual report for the year ended 30 June 2001. That report shows R J Kelly and F J Kelly as joint managing directors of Newhaven and as having held office as joint managing directors since 1985. They were two of a total of four directors, the others being J H Ingham and N E Napper. R J Kelly and F J Kelly were the only executive directors and, despite the executive positions, were the only directors on the audit committee of the board. The same position prevailed in the year ended 30 June 2002 but changes occurred subsequently. In August 2003, J H Ingham ceased to be a director and T W J Kelly (the half brother of R J Kelly and F J Kelly) became a director, as did Frederick John Kelly Junior (a son of F J Kelly). An ASIC search shows that R J Kelly ceased to be a director on 18 November 2003, that is, a little more than a month before Newhaven entered into the contracts constituting the present transaction. As at May 2004, therefore, the directors of Newhaven were F J Kelly, F J Kelly Jr, T W J Kelly and N E Napper. The annual reports, in dealing with substantial shareholdings, reflected the changes that occurred in July 2003.

31 The fifth matter raised by the plaintiffs is certain aspects of discussion at the shareholders meeting on 25 July 2003, as appearing from a transcript of proceedings at that meeting. The particular passage identified begins with the representative of one of the present plaintiffs asking how the then offer from Burst to buy real property from Newhaven came about. The representative was Mr Bateman, a solicitor. The chairman of the meeting (F J Kelly) replied that it came about at a meeting at Red Hill on about 20 October (which must have been 20 October 2002). F J Kelly confirmed that he lived on Red Hill but denied that the meeting was a “family meeting” describing as being “[a]t my place, my office” with himself, R J Kelly and Mr Esplin, Newhaven’s solicitor, involved. Mr Bateman then asked when an announcement was made to ASX and was given the answer, “It would be in April” (which I take to be April 2003). The following exchange then occurred:

“MR BATEMAN: So there was a period of, say, five months where the board was entertaining a discussion between themselves – family members, that is – and board members who weren’t members of the family, concerning the Buy Back of shares and sale of the property; correct?
THE CHAIRMAN: There were negotiations going on, yes.
MR BATEMAN: The negotiations were carried on on behalf of the company by whom?
THE CHAIRMAN: By me.
MR BATEMAN: Just by yourself?
THE CHAIRMAN: The other directors were informed obviously.
MR BATEMAN: And at what stage was it agreed in principle that you would sell?
THE CHAIRMAN: Not until April or end of March, whenever it was.
MR BATEMAN: Would you care to explain then how it is that a draft notice of meeting setting out all the figures was issued prior to that date?
THE CHAIRMAN: Whenever it was issued. I don’t know the date. We would have to just check the official records, but as far as I’m concerned everything was done in the right order, and on legal advice. Everything was done in the right order. If you care to check the records you’ll find that’s the case. Just asking me here off the top of my head what the dates were, I can’t tell you that.”

32 The sixth matter referred to by the plaintiffs is the result of voting at the meeting held on 25 July 2003. As the transcript in evidence shows, the chairman called for votes in favour of the s.257D(1)(a) resolution and no hands were raised. He called for votes against and seven hands were raised. A poll was demanded and taken. On the poll, 16,365,024 votes were cast, 56.2% being in favour and 43.8% being against. The point the plaintiffs make in that connection is that no Kelly interests voted in favour and that this contrasts with the board’s recommendation in favour. The inference to be drawn, it is said, is that all the Kelly interests combined to vote contrary to the recommendation. Two things may be said about this at once. First, a material change in circumstances had occurred after the board made its recommendation in relation to voting at the 25 July 2003 meeting. Newhaven had received an apparently more favourable proposal of the same kind from another interested group (the present plaintiffs). That was known to shareholders when they voted. The fact that no one present voted in favour is explicable by reference to the independent desires of the persons present, as distinct from any form of compact. The second point is that 16,365,024 shares were voted on the poll, despite there having been no votes in favour on the preliminary show of hands; and that, of these, about 9,197,130 (56.2%) were voted in favour of the resolution and about 7,167,870 (43.8%) were voted against. The several Kelly interests appear from the annual report to have accounted, at that time, for some 25,806,000 shares. The evidence to which I was taken does not show whether those, or any of them, were voted in favour, voted against or not voted at all.

Assessment of contentions on “acting in concert”

33 It is against this sixfold factual background, as presented by the plaintiffs, that I must approach the question whether R J Kelly was acting in concert with JWK Nominees Pty Ltd in respect of voting on the s.257D(1)(a) resolution on 26 May 2004. That question may, in light of the case law, be expressed in various ways. Was there an understanding between R J Kelly and JWK Nominees Pty Ltd as to their common purpose or object in relation to the matter of voting? Was there knowing conduct resulting from communication between R J Kelly and JWK Nominees Pty Ltd on the matter of voting, as distinct from corresponding or parallel actions occurring simultaneously? Was there a consensual adoption of an understanding common to R J Kelly and JWK Nominees Pty Ltd on the matter of voting? Was there some mutual contemporaneous engagement in relation to that matter? Alternatively, was there no more than spontaneous and independent action on the part of each?

34 A point to be made at once in relation to these questions is that the mere fact of family relationship should be left to one side. King George V and Kaiser Wilhelm II were first cousins. They did not act in concert between August 1914 and November 1918 and probably at other times as well. In the absence of evidence of agreement or dependency or actual influence implying commonality of action, family relationships, like the personal friendships considered in the Elders IXL case (above), of themselves prove nothing relevant to an inquiry such as the present.

35 The objectives of JWK Nominees Pty Ltd can only have been such objectives as were created for it by its directors. Two of the three directors – F J Kelly and T W J Kelly – were, at the relevant time, directors of Newhaven which was co-operating with R J Kelly (the third director), Burst and Braylen to achieve the objectives of the transaction between Newhaven and those parties. The explanatory memorandum sent by Newhaven to its shareholders said that all four Newhaven directors (F J Kelly, F J Kelly Jr, T W J Kelly and N E Napper) and their “associates” (undefined) “intend to vote in favour of the buy back and the associated transactions”. The recommendation was supported by a report by a financial expert. The influence of two of those directors (F J Kelly and T W J Kelly) within the separate boardroom of JWK Nominees Pty Ltd may therefore be presumed to have been directed towards causing JWK Nominees Pty Ltd to support the transaction by its votes. The stated position and intentions of F J Kelly and T W J Kelly with respect to voting on the resolutions at the meeting of Newhaven shareholders may be taken to have been communicated by them to J W K Nominees Pty Ltd in the form of actions directed towards causing JWK Nominees Pty Ltd to vote in the same way.

36 The motivation of F J Kelly and T W J Kelly is also of significance. As the explanatory statement shows, the Newhaven directors considered the transaction that was to be voted upon to be advantageous and beneficial to Newhaven and its shareholders. It was for that reason that they recommended that shareholders support the transaction by positive votes. Action by F J Kelly and T W J Kelly to cause JWK Nominees Pty Ltd to vote in favour would therefore have been consistent with their stated opinion as to where the best interests of that company, as a Newhaven shareholder, lay. No basis is shown for any suggestion of subversion for ulterior purpose that might call into question the credibility of what was done.

37 R J Kelly was in no position, acting alone, to cause JWK Nominees Pty Ltd to cast the positive votes it did cast. Nor was there any reason why he should seek to do so. He knew of the positive recommendation on voting by F J Kelly, T W J Kelly and the other Newhaven directors. That recommendation suited him very well. With two of the recommending persons constituting a majority of the directors of JWK Nominees Pty Ltd, he had, merely because of circumstances and without any need for agreement or arrangement, a reasonable assurance that JWK Nominees would vote in favour. He did not need to act or to communicate with anyone in that regard.

38 There is no evidence of the processes engaged in within JWK Nominees Pty Ltd in reaching a corporate decision to cast its votes in favour of the s.257D(1)(a) resolution. But, for reasons I have explained, it may be accepted that the decision to vote in favour would have been reached regardless of R J Kelly, thus supporting an inference that, because he did not need to act within or in relation to JWK Nominees Pty Ltd in that respect, he did not do so.

39 Nor, to my mind, has any reason been shown for thinking that the filing of revised substantial shareholding notices in July 2003 was a product of anything other than a genuine realisation that an incorrect approach had been taken in preparing the earlier notices. The letter from Newhaven’s solicitors makes it clear that the earlier notices had been prepared by an accountant who did not take account of some relevant matters and may be assumed not to have been experienced in working through the implications of what are, even for skilled lawyers, complex statutory provisions. In short, there is nothing to suggest that the changes of July 2003 arose from anything more than a realisation of earlier error.

40 I am also of the opinion that nothing relevant, for present purposes, emerges from the changes to the composition of the Newhaven board in 2003 or the events at the shareholders meeting of July 2003. None of those matters can, in my view, be regarded as giving substance to any suggestion that R J Kelly and J W K Nominees Pty Ltd were parties to some voting compact that played itself out at the Newhaven shareholders meeting on 26 May 2004. By resigning from the Newhaven board, as he did in November 2003, R J Kelly was, if anything, distancing himself from those involved in JWK Nominees Pty Ltd. And, as I have said, there were good commercial reasons for any shareholder of Newhaven, acting selfishly and entirely in the shareholder’s own interests, not to follow, at the meeting of 25 July 2003, the course as to voting that the Newhaven directors had previously recommended.

Decision on “acting in concert”

41 The case the plaintiffs have sought to make by reference to s.15(1)(a) and, to a lesser extent, s.15(1)(c) is based on an attempt to show concert or association at large. The references to relationships and to events that occurred in the past are, it seems to me, directed towards demonstrating that R J Kelly and JWK Nominees were part of a group of persons and companies who interacted in various ways over a period of time. This, in my opinion, overlooks a crucial aspect of s.15(1), namely, the concluding words “in respect of the matter to which the associate reference relates”. The essential focus is upon collaboration or interaction “in respect of” the particular matter, as distinct from mere proximity. In this, s.15(1) is to be distinguished from provisions such as ss.11 and 13 which create tests of associateship concerned solely with relationships between persons.

42 In the absence of any direct evidence of actual communication as to voting intentions or of common intentions actually and knowingly shared (as distinct from coinciding) in relation to the s.257D(1)(a) special resolution of 26 May 2004, I am not satisfied that there is any serious question to be tried as to whether R J Kelly was, as envisaged by s.15(1)(a), acting in concert with JWK Nominees Pty Ltd “in respect of” the matter of voting on that resolution.

43 The plaintiffs did not make any developed submissions in relation to s.15(1)(c) and the proposition that R J Kelly was a person with whom JWK Nominees Pty Ltd was, as referred to in s.15(1)(c), “associated, whether formally or informally, in any other way … in respect of the matter” of voting on the s.257D(1)(a) special resolution. It is sufficient that I say that I am not satisfied that, on the evidence on which the plaintiffs rely, any other form of association has been shown “in respect of” that specific and delineated matter.

44 I now return briefly to the proposition that R J Kelly was, in respect of voting on the s.257D(1)(a) resolution on 26 May 2004, “acting in concert” with or otherwise “associated” with each of FJK Nominees Pty Ltd, Zedrum Pty Ltd, Glammis Pty Ltd, Hatley Pty Ltd and Zali Pty Ltd. As to ownership and control, I take at face value the plaintiffs’ assertions that the four companies other than FJK Nominees Pty Ltd are “controlled by” F J Kelly and that the directors and shareholders of FJK Nominees Pty Ltd are F J Kelly, his wife and his four adult children.

45 In these cases (in contradistinction to the case of JWK Nominees Pty Ltd), the plaintiffs cannot point to any formal role on the part of R J Kelly. There is nothing of a structural kind – beyond the sibling relationship that I consider to be of itself irrelevant – to link R J Kelly with any of the companies. The plaintiffs are therefore left with the second, third, fourth, fifth and sixth matters raised in relation to JWK Nominees Pty Ltd. Just as those matters did not, in the case of JWK Nominees Pty Ltd, give rise to any arguable case of “acting in concert” or other “association” “in respect of” voting at the meeting on 26 May 2004, neither do they have that effect in relation to the other companies. Again, in the absence of direct evidence of communication as to voting intentions or of common intentions actually and knowingly shared (as distinct from coinciding), I am not satisfied that there is any serious question to be tried by reference to either s.15(1)(a) or s.15(1)(c).

Mrs Bateman’s proxy

46 A second issue canvassed before me in relation to the s.257D(1)(a) resolution concerns votes ostensibly cast against the resolution in respect of 112,825 shares held by Mrs Belinda Bateman. The defendants say that steps necessary to enable the first plaintiff, Dr Edmund Bateman, to act as Mrs Bateman’s proxy in voting upon the poll were deficient. In view of the conclusion I have reached with respect to votes cast by JWK Nominees Pty Ltd, FJK Nominees Pty Ltd, Zedrum Pty Ltd, Glammis Pty Ltd, Hatley Pty Ltd and Zali Pty Ltd, however, it is not necessary to consider this point. It is not, I think, disputed that, with the votes of those members included among those cast in favour of the resolution, the total in favour would have excluded 75% of total votes cast, whether or not Mrs Bateman’s negative votes were counted.

47 The conclusion that, for the purposes of s.257D(1)(a) as it applied in the particular case, none of JWK Nominees Pty Ltd, FJK Nominees Pty Ltd, Zedrum Pty Ltd, Glammis Pty Ltd, Hatley Pty Ltd and Zali Pty Ltd has been shown (even to the extent of a serious question to be tried) to be an “associate” of “any person whose shares are to be bought back” makes it unnecessary to address the consequences of the casting of a positive vote by such an “associate”. It is sufficient, first, to record the possibility that, as a matter of construction, voting in favour by such an “associate” would cause the special resolution not to be a resolution of the kind described in s.257D(1)(a) so that, even if the votes in question were ignored and the necessary majority was still seen to have been achieved, the statutory condition would not be satisfied; and, second, to reject that possibility because it is inconsistent with the decision of the Victorian Court of Appeal in Village Roadshow Ltd v Boswell Film GmbH (2004) 49 ACSR 27 and that of Santow J in Re Tiger Investment Co Ltd (1999) 33 ACSR 438. As Callaway JA said in the former case, the offending vote “is simply excluded in determining the result”. The resolution as a whole is not vitiated.

The second basis on which an interlocutory injunction is sought

48 I therefore proceed to the second basis on which the plaintiffs’ claim an interlocutory order restraining the defendants from completing the transaction in question, namely, that such an order is necessary to preserve the subject matter of the proceedings pending trial.

49 The court has undoubted power to grant an interlocutory injunction to preserve the subject matter of the substantive action. The jurisdiction is discussed in the judgment of Campbell J in Grizonic v Suttor [2004] NSWSC 137. Its purpose is to ensure that the jurisdiction of the court is not stultified by actions before trial that will render the final determination merely academic. The power may be exercised to prevent the siubject matter of the proceedings being dissipated – as, for example, in Tait v The Queen (1962) 108 CLR 620 where the carrying into effect of sentence of death was enjoined pending determination of an appeal; and Orr v Lane (1951) 52 SR(NSW) 37 where an injunction was granted to restrain mixing with other money of bank notes the subject of a claim in detinue because an action of debt would have been of less utility to the plaintiff than an action in detinue.

50 The central question here is whether an injunction is necessary to defend the utility of this litigation. Implicit in the plaintiffs’ case that a positive answer must be given to that question is the proposition that the remedy to which they will be entitled, if successful at trial, is a remedy that prevents completion of the transaction approved by the resolutions passed on 26 May 2004.

51 The plaintiffs do not claim an interest in the rural property and the hotel contracted to be sold to Burst and Braylen. Nor could they. Those properties belong to Newhaven. They are not the subject matter of the litigation. The plaintiffs, as shareholders of Newhaven, have no right to or interest in its assets. They do not seek to maintain a derivative action in which some wrong done to Newhaven is complained of and Newhaven claims, in respect of the particular assets, a remedy against the other parties to the transactions with it. Their complaint relates to conduct of the affairs of Newhaven said to be inimical to shareholders in one or more of the ways specified in s.232. If the plaintiffs are successful at trial, they will have done no more than establish an entitlement to have the court consider whether any (and, if so, what) order should be made to protect the position of the plaintiffs as shareholders. The court should not be expected to be concerned with the position of the plaintiffs as aspirants to enter into a corresponding transaction with Newhaven: see John J Starr (Real Estate) Pty Ltd v Robert R Andrew (A’sia) Pty Ltd (1991) 6 ACSR 63. The task of the court will be to decide what, in the circumstances, is necessary to redress the prejudice or oppression the plaintiffs are shown to have suffered as shareholders.

52 If the transactions now under consideration had been completed when the plaintiffs made out their statutory cause of action under s.232, there would be a wide range of orders that the court might make to compensate or protect shareholders shown to have suffered in a way contemplated by s.232. If the directors or interests associated with them were shown to have profited improperly, there might be an order for an account of profits: Fexuto Pty Ltd v Busnjak Holdings Pty Ltd (2001) 37 ACSR 672. Another possibility is an order that the company itself purchase the plaintiffs’ shares at a price reflecting reversal or neutralisation of the effects of the oppression: s.233(1)(e). There might be an order that the shareholders who have benefited from the oppressive conduct, being parties to the proceedings, buy the plaintiffs’ shares at a price not reflecting any depressing effect of the oppression: s.233(1)(d). There might even be an order that the beneficiaries of the oppression sell their shares to the plaintiffs: Re Brenfield Squash Racquets Club Ltd [1996] 2 BCLC 184.

53 It cannot be said that the interlocutory order the plaintiffs now seek is necessary to ensure that the proceedings are not rendered nugatory in the sense that final determination becomes merely academic. A wide range of orders will be capable of being made to vindicate the position of the plaintiffs in the event of their success, even if the transactions under consideration have been completed. Any such completion will by no means deprive the plaintiffs of the results of the litigation.

54 On this basis, the plaintiffs must be regarded as having failed to make out an entitlement to relief on the second basis for which they contend. There is also a compelling balance of convenience argument arising from the prejudice that would be suffered by R J Kelly, Burst and Braylen if Newhaven were forced by order of the court into breach of its contract with them – plus, of course, the exposure to an action for damages Newhaven would incur through such a breach. As against that, as I have said, the full array of orders under s.233 will be potentially within the reach of the plaintiffs if they are ultimately successful in their oppression action.

Disposition

55 The plaintiffs’ claims to interlocutory relief in their notice of motion filed on 1 June 2004 are dismissed.

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Last Modified: 07/02/2004