Boyd v Feeney

Case •

[2017] NSWSC 1595

•

22 November 2017

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Boyd v Feeney & Ors [2017] NSWSC 1595
Hearing dates:19 – 20 September 2017, 20 October 2017
Decision date: 22 November 2017
Jurisdiction:Equity - Corporations List
Before: Black J
Decision:

The Court holds that the company should be wound up, with the order for the winding up stayed for 21 days after it is made, and that no decree for specific performance of the memorandum of understanding should be made.

Catchwords:

CORPORATIONS — Members’ rights and remedies — Oppression — closely held family company – where relationship between shareholders has broken down

 

CORPORATIONS — Winding up — Grounds for winding up — Just and equitable ground – where company has no director – where affairs of company managed by shareholder under power of attorney

  EQUITY — Equitable remedies — Specific performance – Suit for specific performance of memorandum of understanding – whether parties to memorandum intended to be legally bound by it – whether specific performance should be decreed
Legislation Cited: - Corporations Act 2001 (Cth), ss 232–233, 461(1)(k), 467
- Evidence Act 1995 (NSW), s 136
- Income Tax Assessment Act 1936 (Cth), Div 7A
- Succession Act 2006 (NSW), Ch 3
Cases Cited: - Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd [2008] VSCA 86; (2008) 66 ACSR 325
- Australian Securities and Investments Commission v ABC Fund Managers Ltd [2001] VSC 383; (2001) 39 ACSR 443
- Bagot & Grieve v Chameleon Mining NL [2012] NSWSC 1331
- Byrne v A J Byrne Pty Ltd [2012] NSWSC 667
- Cacace v Bayside Operations Pty Ltd [2006] NSWSC 572
- CIC Insurance Ltd v Hannan & Co Pty Ltd [2001] NSWSC 437; (2001) 38 ACSR 245
- Commonwealth of Australia v Gretton [2008] NSWCA 117
- Dick v Alan Powell Holdings Pty Ltd [2009] QSC 184
- Great Australian Resources Pty Ltd v Platinum Mining Ventures Ltd [2011] FCA 1472
- Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34
- Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810
- JC Williamson Ltd v Lukey & Mulholland (1931) 45 CLR 282
- MacLean v MacLean [2017] FCA 194
- Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692
- Munstermann v Rayward [2017] NSWSC 133
- Nassar v Innovative Precasters Group Pty Ltd [2009] NSWSC 342; (2009) 71 ACSR 343
- Protocom Holdings Pty Ltd v Kent Street Chambers Pty Ltd [2015] FCA 751
- RBC Investor Services Australia Nominees Pty Ltd v Brickworks Ltd [2017] FCA 756; (2017) 120 ACSR 517
- Re AJ Roberts Removals & Storage Pty Ltd [2017] NSWSC 1054
- Re Catombal Investments Pty Ltd [2012] NSWSC 775
- Re George Raymond Pty Ltd; Salter v Gilbertson [1999] VSC 460; (2000) 18 ACLC 85
- Re Hayes Steel Framing Systems Pty Ltd (admins apptd) [2017] NSWSC 385
- Re Ledir Enterprises Pty Ltd [2013] NSWSC 1332; (2013) 96 ACSR 1
- Re Lowes Park Pty Ltd; Headlam v Lowes Park Pty Ltd (1994) 62 FCR 535
- Re Swan Services Pty Ltd [2017] NSWSC 692
- The Owners – Strata Plan No 58087 v Matthews [2015] NSWSC 1906
- Thomas v HW Thomas Ltd [1984] 1 NZLR 686; (1984) 2 ACLC 610
- Tomanovic v Argyle HQ Pty Ltd [2010] NSWSC 152
- Tomanovic v Global Mortgage Equity Corporation Pty Ltd [2011] NSWCA 104; (2011) 288 ALR 310; 84 ACSR 121
- Varma v Varma [2010] NSWSC 786; (2010) 6 ASTLR 152
- Victory Projects Pty Ltd v AAA Self Storage Pty Ltd [2016] NSWSC 1758
- Watson v Foxman (1995) 49 NSWLR 315
- Wayde v New South Wales Rugby League Ltd [1985] HCA 68; (1985) 180 CLR 459
Category:Principal judgment
Parties: Lynette Boyd (Plaintiff)
Judy Feeney (First Defendant)
Marie Ellersdorfer (Second Defendant)
Dane Corak (Third Defendant)
D & D Corak Investments Pty Ltd (Fourth Defendant)
Representation:

Counsel:
N Simpson (Plaintiff)
M Klooster (First Defendant)
M Bennett (Second to Fourth Defendants)

  Solicitors:
Wills & Estates Legal Services (Plaintiff)
Ziman and Ziman Solicitors (First Defendant)
Marsdens Law Group (Second to Fourth Defendants)
File Number(s):2015/159789

Judgment

  1. By Amended Statement of Claim filed on 19 September 2017 the Plaintiff, Ms Lynette Boyd seeks orders for specific performance and by way of relief in an oppression claim and a winding up order of D & D Corak Investments Pty Ltd (in liq) (“Company”). Several other defendants are joined in the proceeding, namely Ms Judy Feeney, Ms Marie Ellersdorfer and the late Mr Dane Corak. Ms Boyd, Ms Feeney and Ms Ellersdorfer are the daughters of the late Mr Corak and are sisters. Ms Ellersdorfer is also the representative of the estate of the late Mr Corak in these proceedings, Ms Feeney and Ms Ellersdorfer are the executors of the estate and Ms Ellersdorfer also holds a power of attorney on behalf of the Company. Ms Feeney appeared in the proceedings but led no evidence and made no substantive submissions; Ms Ellersdorfer and the estate of the late Mr Corak, represented by Ms Ellersdorfer as executor, opposed the relief sought; and the Company initially opposed the relief sought but then, in the course of the hearing, filed a submitting appearance on 20 September 2017.

Factual background

  1. By way of background, the Company initially carried on a dry cleaning business, primarily under the control of the late Mr Corak, but also involving his late wife, Mrs Corak, and subsequently owned several properties. Prior to 27 April 2003, the late Mr Corak and the late Mrs Corak were the sole shareholders in the Company, each holding 2,300 shares. The late Mrs Corak bequeathed her shares in the Company to Ms Boyd, Ms Feeney and Ms Ellersdorfer, such that they each became owners of 766 shares in the Company in February 2004. It appears that Ms Boyd, Ms Feeney and Ms Ellersdorfer were appointed as directors of the Company, in addition to the late Mr Corak, on 29 May 2003, in the case of Ms Ellersdorfer, and on 28 October 2003, in the case of Ms Boyd and Ms Feeney, after the late Mrs Corak’s death and apparently without attending any relevant meeting, and were removed as directors of the Company in October 2004 (Boyd 24.2.17 [41]–[42], [49]), apparently on the basis their appointment as directors had been made in error. There was plainly a degree of informality in that process, but it must be recognised that these events took place some 13 years ago. The late Mr Corak was thereafter the Company’s sole director in the years prior to his death in 2015 and the Company has had no director since his death. That is a matter of some significance to which I will refer below.

  2. Ms Boyd pleads that, in about 2009, the Company lent Ms Feeney an amount of approximately $780,000 and, in around 2013, the Company lent Ms Feeney a further amount of approximately $1 million and those loans were unsecured (Amended Statement of Claim [13]–[14]). Ms Boyd complains that she was not consulted in respect of either of the loans (Amended Statement of Claim [16]). Ms Boyd originally alleged that, between 2004 and 2013, Ms Feeney (as pleaded) or Ms Ellersdorfer (as stated in Ms Boyd’s affidavit evidence) occupied a property owned by the Company at Brighton-Le-Sands in New South Wales without payment of rent or occupation fee to the Company (Statement of Claim [17]) and that Ms Boyd was also not consulted in respect of that arrangement (Statement of Claim [18]). Relief on that basis was not pressed at the hearing.

  3. By letter dated 30 June 2010, Ms Boyd’s then solicitor requested access to copies of the Company’s financial and other records for the period 2003 to that date including a range of documents. By letter dated 5 July 2010, the Company’s accountant responded that he had been instructed by the Company that it was agreeable to their providing copies of financial and other documents requested by Ms Boyd that were in his possession and that:

“the Company has further instructed us to seek payment of $1,000 prior to forwarding any information, being the cost of our time in compiling and providing the financial and other documents requested.”

Ms Boyd did not accept that approach. It appears that a substantial amount of information was subsequently either provided by, or offered by, the Company’s accountants to Ms Boyd by letter dated 22 July 2010, and correspondence from Ms Boyd’s solicitor in August 2010 recorded the fact that Ms Boyd had been given the opportunity to view documents for the 2009 financial year relating to the Company at the late Mr Corak’s home.

  1. By an email dated 25 February 2011, the Company’s accountant advised Ms Boyd’s solicitor that the late Mr Corak did not want to provide a copy of the loan agreement with Ms Feeney to Ms Boyd “for fear it will result in further investigation and questions from [Ms Boyd]”; advised that that agreement was with an entity owned by Ms Feeney that had used the relevant funds for a property development and that there was provision for security to be taken over that property, but security had not been taken over that property; and put forward a proposal by Mr Corak to acquire Ms Boyd’s shares in the Company at a value determined by a valuer appointed by Ms Boyd, on the basis that property valuations and the Company’s financial records would be made available to her as necessary. It appears that proposal did not proceed.

  2. On 2 August 2012, Mr Corak granted Ms Feeney and Ms Ellersdorfer an enduring power of attorney and enduring guardianship in respect of his affairs.

  3. Ms Boyd’s evidence is that she had a conversation with the late Mr Corak in early 2013 in which he said:

“We have decided that you can sell your shares for $660,000 but you will have to sign a document that you will not ask for any more money from the Company.”

Ms Boyd asked where that figure came from and whether Mr Corak was happy with that figure; and he responded that “[w]e thought that’s a good price for your shares.” Ms Boyd’s evidence is that Ms Feeney and Ms Ellersdorfer did not buy her shares in the Company (Boyd 24.2.17 [68]). It should be noted that the conversation to which she refers does not indicate that she accepted that offer to buy her shares or that there was any discussion that Ms Feeney or Ms Ellersdorfer would be the purchaser of the shares.

  1. By email dated 13 May 2013, the Company’s accountant valued Ms Boyd’s shares in the Company at $1,365,648, using specified property values for the Company’s properties (Ex P2). Ms Boyd then sent an email to Ms Ellersdorfer and Ms Feeney offering to sell her shares in the Company for $1,365,648. That email referred to some of the matters which are the subject of complaint in these proceedings, including suggesting that Ms Ellersdorfer and Ms Feeney had been authorised to act on Mr Corak’s behalf and that that gave Ms Boyd “an unequal say in matters of the company” and “no voice in any matters in the present running of the company”. Ms Boyd there indicated that:

“Rather than going into mediation and negotiation regarding matters of the company I would prefer to be paid for my shareholding.

I believe that it would be in everyone’s best interest for either the Company to buy back my shares or for one or all of the other shareholders to purchase these.”

Ms Boyd set out the shareholding in the Company, referred to the accountant’s valuation of her shares and indicated that:

“I am willing to sell my shares to the Company in a buy-back arrangement or to sell them to one or all of the other shareholders for the amount prepared and valued by [the accountant] as at 31 March 2013 at $1,365,648.00.”

Ms Boyd also indicated that, if Ms Feeney and Ms Ellersdorfer did not accept her proposal for buying her shares, at the price she advised, she would not engage in discussions other than on specified conditions and suggested that:

“I believe that what I am asking is very fair and reasonable and for my part I see no reason why a settlement cannot be reached amicably and quickly.”

  1. On 25 June 2013, Ms Ellersdorfer replied to that email by indicating no more than that Ms Boyd’s email and letter had been filed (Ex A1, 159).

  2. Ms Boyd commenced several proceedings in the Guardianship Tribunal or New South Wales Civil and Administrative Tribunal (“NCAT”) concerning the power of attorney given by the late Mr Corak in favour of Ms Ellersdorfer and Ms Feeney. The first of the proceedings was commenced in 2012 and later withdrawn by Ms Boyd. Ms Boyd then commenced further proceedings concerning the same matter in 2014 (Ellersdorfer 1.6.17 [67]–[69]), in which she again sought review of Mr Corak’s appointment of Ms Ellersdorfer and Ms Feeney as his attorneys in an application and also sought the appointment of a financial manager and guardian for Mr Corak.

  3. A mediation took place in the NCAT proceedings on 4 November 2014. Ms Boyd was represented by a solicitor at the mediation; Ms Feeney and Ms Ellersdorfer were represented by another solicitor acting for both of them and Mr Corey was represented by a solicitor and attended part only of the mediation by phone, and was not present during the afternoon (Ellersdorfer 1.6.17 [71]; Boyd 24.2.17 [82]; T29–T30). Following that mediation, Ms Boyd, Ms Feeney, Ms Ellersdorfer and Mr Corak (by his solicitor) executed a Memorandum of Understanding (“MOU”) as to certain matters, including an “in principle” agreement as to the sale of Ms Boyd’s shares in the Company to Mr Corak at a price to be determined by valuation undertaken in a specified way, with the late Mr Corak to provide an agreement for sale of shares within 14 days from receipt of the valuation.

  4. The MOU was signed by Ms Boyd, Ms Ellersdorfer and Ms Feeney, and by the solicitor for Mr Corak, and recorded the parties had agreed to mediate the issues in dispute, arising out of the proceedings before the NCAT. The MOU recorded that:

“(1)   [Ms Boyd] has agreed in principle to sell her shares in [the Company] to Mr Corak or his nominee at a price to be determined by valuation.

(2)   Valuation to be prepared by a duly qualified valuer within 4 weeks from the date of this agreement to be nominated by Mr Corak and the other nominated by [Ms Boyd].

(3)   The price will be the mean between the two valuations.

(4)   Agreement for sale of shares to be submitted by Mr Corak’s solicitor to [Ms Boyd’s] solicitor within 14 days from receipt of valuation and shall be in the form containing usual and proper conditions for the sale of private company shareholding and settlement within 14 days from receipt of valuation …

(5)   Adjustment of the price may be given according to any loan accounts or other loans between [Ms Boyd] and Mr Corak with supporting evidence and subject to agreement of the parties on amounts.”

  1. The MOU also dealt with other matters, including confirmation of the position as to personal loans made by Mr Corak to Ms Boyd, Ms Feeney and Ms Ellersdorfer; the provision of advice to Mr Corak concerning his obligations as a director of a private company; provision of information by the Company’s accountant as to the late Mrs Corak’s loan account; discussion of the sale of another property; the position as to payments made by Mr Corak to his daughters resulting from the purchase of Ms Ellersdorfer’s house; the continuance of the existing care arrangements for Mr Corak; and a request to NCAT to adjourn the hearing on the basis that the parties could approach the Registrar for a new date if required.

  2. Ms Boyd pleads, and it is an essential element of her case, that the parties intended to be legally bound by the MOU (Amended Statement of Claim [20]–[21]). Ms Boyd also pleads steps which she then took to seek to obtain information to allow a valuation of her shares in the Company, to which Mr Corak did not respond. As I noted above, she seeks an order for specific performance of paragraphs 1–5 of the MOU.

  3. In the event, the NCAT did not adjourn the hearing but delivered reasons for decision by which it determined not to carry out a review of the power of attorney given by Mr Corak in favour of Ms Feeney and Ms Ellersdorfer. NCAT’s decision recorded the views put before it, including Mr Corak’s views, referred to several professional reports and to submissions of a separate representative, and indicated that it did not conclude that it was in Mr Corak’s best interests to override his wishes in respect of the attorneys he had appointed. NCAT noted that the adjournment sought would not be consistent with case management policies and observed that it:

“… nonetheless, encourages the parties to continue efforts to settle their differences, which are clearly longstanding and go beyond these proceedings, as quickly as possible, in Mr Corak’s best interests.”

  1. By a further power of attorney dated 14 November 2014 (Ex D2) signed by Mr Corak as the Company’s sole director, apparently shortly after the NCAT proceedings and the execution of the MOU, the Company appointed Ms Ellersdorfer as its attorney, conferring a wide range of powers upon her, including powers to deal with property and with operational and management issues. Mr Corak died on 22 August 2015 (Ellersdorfer 1.6.17 [6]).

  2. Ms Feeney and her children have since brought proceedings under Ch 3 of the Succession Act 2006 (NSW) and negotiations between the estate, Ms Feeney and her children have for some time contemplated that the loans made to Ms Feeney would be repaid by a direction that amounts payable to Ms Feeney or her children under the settlement will first be directed to repayment of the amount she owes to the Company (Ex D1, p 6; T42). After I reserved judgment in these proceedings, orders were made by the Court in those proceedings that approved a settlement of those proceedings on that basis.

  3. Turning now to the affidavit evidence, Ms Boyd relies on her affidavits dated 24 February and 30 June 2017. In her first affidavit dated 24 February 2017, Ms Boyd gave a detailed account of the history of her family and of the business activities of the Company. She refers to the fact that she had worked in the Company’s business in her late teens, and it appears that she continued to work with the Company until beyond her teenage years (Boyd 24.2.17 [15]; T28). Ms Boyd also refers to the sale of the Company’s business in about 2000 and to the Company’s subsequent investments in property, and to the circumstances in which shares in the Company were transferred to her (and Ms Feeney and Ms Ellersdorfer) on the late Mrs Corak’s death. Aspects of her evidence relating to events in 2003 and 2004 were rightly not read, where they would have little prospect of supporting the relief sought.

  4. Ms Boyd also gives evidence of the circumstances in which she became aware in 2009 of loans by the Company to Ms Feeney (or, more precisely, as to the first loan, to a company associated with Ms Feeney) and to the information as to those matters recorded in the Company’s accounts. She refers to steps taken by her former solicitor to seek to obtain information concerning the Company’s affairs during 2010, to which I have referred above. Ms Boyd also refers to earlier attempts to sell her shares in the Company to the late Mr Corak and to the proceedings which she brought in NCAT and the mediation and execution of the MOU to which I also referred above. Ms Boyd also refers to steps she subsequently took to obtain information to seek to progress the valuation of shares contemplated by the MOU.

  5. Ms Ellersdorfer relies on her affidavits dated 1 June 2017 and 3 October 2017. Ms Ellersdorfer refers to the family history, including that the late Mr Corak and the late Mrs Corak had immigrated to Australia as refugees from Croatia and accumulated a substantial estate. Ms Ellersdorfer refers to support provided by Mr and Mrs Corak, including substantial wedding gifts and other financial support, to their daughters including Ms Boyd. Ms Ellersdorfer also refers to requests made by Ms Boyd to the late Mr Corak to hold meetings to be attended by Ms Boyd’s accountant and solicitor, to Ms Boyd’s wish for the Company to pay for her advisers to attend those meetings, and to Mr Corak’s view that he was happy to meet with Ms Boyd but would not meet her solicitors or accountants or pay for their attendance at meetings. Ms Ellersdorfer also referred, in evidence admitted with a limiting order under s 136 of the Evidence Act 1995 (NSW) as submission only, to the fact that the Company had treated the loans made to Ms Feeney in accordance with Div 7A of the Income Tax Assessment Act 1936 (Cth) and that interest was being charged on those loans. It appears that that interest has been capitalised, to the extent that it has been charged. Ms Ellersdorfer also addressed the position in respect of the proceedings in the NCAT and the conduct of the mediation that led to the signature of the MOU.

  1. Ms Ellersdorfer also referred to the fact that Ms Feeney and her children had brought proceedings under Ch 3 of the Succession Act against the estate and that agreement had been reached to settle those proceedings, subject to Court approval. Ms Ellersdorfer also referred to her intention, subject to Court approval of the settlement of the proceedings under the Succession Act and resolution of these proceedings, that the estate would sell the late Mr and Mrs Corak’s family home; that there would be a distribution of assets in the estate and of the Company’s assets to its shareholders; and that the Company then be wound up or sold. Ms Ellersdorfer did not identify the corporate steps that would or could be taken to achieve that result where the Company presently has no director appointed to it and its shareholders are in disagreement, as evidenced by these proceedings.

  2. By her second affidavit dated 3 October 2017, Ms Ellersdorfer referred to correspondence relating to the provision of financial records to Ms Boyd and to the fact that the late Mr Corak and the Company’s accountant had dealt with the loans to Ms Feeney (or, more precisely, as to the first loan, to a company associated with Ms Feeney). It appears that the loan of $780,000 was made pursuant to a loan agreement dated 7 July 2008 to a proprietary company associated with Ms Feeney, and Ms Feeney was a guarantor of that loan, and the loan of approximately $1 million may have been made under a Division 7A loan facility agreement. However, there is real uncertainty as to the latter proposition, since a Division 7A excluded loan agreement dated 8 May 2014, which records a loan to Ms Feeney personally, is executed by Ms Feeney but not by the Company. Ms Ellersdorfer’s evidence is that Ms Feeney owed the Company, as at 30 June 2016, a total amount of approximately $1,994,619, which is plainly a very substantial loan to have been made on an unsecured basis, and (in a statement admitted with a limiting order under s 136 of the Evidence Act as a submission only) that unpaid interest from 2014 had been treated as a further loan to Ms Feeney and added to the balance of the loan.

  3. In her second affidavit, Ms Ellersdorfer also recognised that the Company currently had no director and referred to her intention, as a shareholder of the Company, as co-executor of the late Mr Corak’s estate and, to the extent relevant, as the Company’s attorney under a power of attorney to cause the Company to be wound up by a members’ voluntary liquidation, and to her being agreeable to an independent director being appointed to the Company to facilitate that course. There was no evidence to suggest that any potential independent director had been identified or had consented to appointment for that purpose. As matters stand, there may also be real practical difficulties in implementing a voluntary winding up, because of potential difficulties in convening a general meeting of the Company and the disagreement between shareholders to which I referred above.

  4. Each of Ms Boyd and Ms Ellersdorfer was cross-examined. Ms Boyd did not accept in cross-examination that the late Mr Corak gave her and her husband $100,000 on their wedding or an amount of $800,000 after he sold a farm, but did not contest that the late Mr Corak had paid her and her husband amounts of over $600,000 in the period since 1991, although her evidence was that she had reimbursed other monies advanced to her in 1989 and 1991 (T46). Ms Boyd also did not contest that she received cheques of approximately $230,248 and $285,751 from the late Mr Corak in November 2003 (T47). Ms Boyd accepted in cross-examination that she ultimately did not need to inspect the Company’s documents to which she had requested access at the Company’s accountant’s office in 2010, because they were provided to her then solicitor (T54). Ms Boyd also has access to the Company’s recent financial records, including its 2016 financial statements and its 2016 tax return and to other loan documents and documents to which she referred in cross-examination (T53).

  5. I have regard, in respect of the affidavit evidence, to the fallibility of human memory which increases with the passage of time, particularly where disputes or litigation intervene: Watson v Foxman (1995) 49 NSWLR 315 at 318–319; Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810 at [41]; Varma v Varma [2010] NSWSC 786; (2010) 6 ASTLR 152 at [424]–[425]. Mr Bennett, who appears for Ms Ellersdorfer, accepted that Ms Boyd’s evidence in cross-examination was frank and open, although he compared her affidavit evidence unfavourably with it. Ms Ellersdorfer’s recollection of events, as disclosed by her cross-examination, was somewhat limited, and she had limited involvement in decisions made by Mr Corak for the Company, which were often communicated by Ms Feeney as the Company’s solicitor prior to the late Mr Corak’s death. Ms Ellersdorder accepted in cross-examination that the relationship between her and Ms Boyd on the one hand and between her and Ms Feeney on the other hand was now strained (T82). Her evidence in cross-examination, which I accept as a truthful account of her understanding, was that her parents had given wedding gifts to each of Ms Boyd, Ms Feeney and Ms Ellersdorfer and paid ongoing bills for them (T82). It is otherwise not necessary to reach findings as to credit in respect of Ms Boyd or Ms Ellersdorfer given the findings that I reach below.

Ms Boyd’s claim for specific performance

  1. Ms Boyd sought an order that paragraphs 1–5 of the MOU, to which I referred above, be specifically performed by the late Mr Corak or, now, by his estate. Mr Simpson, who appears for Ms Boyd, submits that the MOU was intended to create legal relations between Ms Boyd and the Defendants. Mr Simpson also submitted (T132) that an obligation on the late Mr Corak to buy Ms Boyd’s shares should be implied into the MOU although it was not express in it. Mr Simpson submits, and I accept, that Ms Boyd’s subsequent correspondence demonstrated that she was ready, willing and able to sell her shares by the process contemplated by the MOU (T133). While I accept that proposition, it will not assist Ms Boyd unless the MOU has binding effect between the parties.

  2. Ms Ellersdorfer, in her personal capacity and as representative of the estate of the late Mr Corak, submits that there should be no order for specific performance because the MOU is not binding. Mr Bennett submits that the MOU did not give rise to a binding agreement where the NCAT proceedings were concerned with the welfare of the late Mr Corak rather than with the Company’s affairs; the MOU contemplated the adjournment of the NCAT proceedings, and the NCAT ultimately did not take that course; and the MOU did not resolve how several assets were to be dealt with, including another property at Leura. Mr Bennett also refers to the fact that the NCAT’s reasons for decision appear to have recognised the continuance of disputes between the parties, although it is not apparent that it was there devoting its attention to the impact, if any, of the MOU in making that observation.

  3. Mr Bennett also points to the fact that Mr Corak was not present, even by telephone, at the mediation for several hours prior to the signature of the MOU by his solicitor, and submits that the MOU was signed on behalf of Mr Corak without his authority or his knowledge of its terms. The evidence is not sufficient for me to reach the serious finding that the MOU was signed by Mr Corak’s solicitor on his behalf, without Mr Corak’s authority or without his knowing of its terms, where it is possible that he was contacted in the afternoon notwithstanding the evidence of his usual practice to rest in the afternoon. Mr Bennett also points to a lack of specificity in Ms Boyd’s submissions as to how the MOU would be performed. That submission has substantial force, where the MOU does not define, with certainty, the terms of any share sale agreement or how any loans made by the late Mr Corak to Ms Boyd should be treated, in the adjustment contemplated by paragraphs 1–5 of the MOU.

  4. I am satisfied that the MOU was not intended to create an enforceable agreement between Ms Boyd and Mr Corak in respect of the sale of Ms Boyd’s shares in the Company. Several factors support that result. First, the MOU refers to Ms Boyd having “agreed in principle” to sell her shares, and the language “in principle” seems to me to indicate something short of a binding commitment. In Cacace v Bayside Operations Pty Ltd [2006] NSWSC 572 at [18], Brereton J observed that the phrase “agreed in principle” is often used to indicate that “although consensus on a matter has apparently been reached, there is not yet a final agreement” and that the words “settled in principle“ refer to a “state of consensus somewhat short of settled”: see also Bagot & Grieve v Chameleon Mining NL [2012] NSWSC 1331; The Owners – Strata Plan No 58087 v Matthews [2015] NSWSC 1906 at [14]. Mr Simpson also referred to the decision of the Court of Appeal in Sayed v National Australia Bank Ltd [2013] NSWCA 304, where Emmett JA (with whom McColl JA and Tobias AJA agreed) held that the “in principle” agreement in issue in that case was intended to bind the parties to it. It seems to me that the MOU is distinguishable from the agreement at issue in that case, and the extent of unresolved issues and uncertainties in the MOU to which I refer below, and the circumstances in which it was executed, indicate that it was not intended to have immediately binding effect in this case.

  5. I am reinforced in that view by the fact that the MOU did not, in terms, impose an obligation on Mr Corak to purchase the shares, presumably because it had not imposed an anterior obligation on Ms Boyd to sell them; the provision for an agreement for the sale of shares containing “usual and proper conditions” provided only limited guidance as to the terms that should be included; and the agreement was dependent on a further agreement by the parties as to the adjustments to the price. The MOU also dealt with the several other matters to which I referred above, without reaching a concluded agreement about them. The fact that the MOU was signed by the late Mr Corak’s solicitor is also more readily explicable in circumstances that the agreement was not intended to have legally binding effect in respect of the steps to be undertaken.

  6. No question of an order for specific performance arises where the MOU did not have binding legal effect. However, Mr Simpson refers to the nature of an order for specific performance, as described by Dixon J in JC Williamson Ltd v Lukey & Mulholland (1931) 45 CLR 282 at 297 as:

“a remedy to compel the execution in specie of a contract which requires some definite thing to be done before the transaction is complete and the parties’ rights are settled and defined in the manner intended.”

Even if, contrary to my view, the MOU was binding and enforceable on the parties, it seems to me that an order for specific performance could not properly be made in the relevant circumstances. The uncertainty as to the terms of any agreement for the sale of shares is a significant obstacle to specific performance and there seems to me to be no basis to resolve a dispute as to the amount of any adjustment for loans from the late Mr Corak to Ms Boyd if an order for specific performance were made.

  1. Mr Bennett also submitted that the order for specific performance sought by Ms Boyd would deliver her a windfall, because her shares in the Company would be acquired by the estate in performing the MOU and then distributed to Ms Boyd “for free” under the late Mr Corak’s will. Assuming, without deciding, that the late Mr Corak’s will would have that effect, I do not accept that submission, since the estate’s acquisition of Ms Boyd’s shares in the Company at fair value would be economically neutral for both the estate and Ms Boyd, by substituting money for shares of the same value, and would not alter the total value of the share of the estate that is ultimately to be distributed to Ms Boyd.

Ms Boyd’s claim for relief in oppression

  1. In the alternative to her claim for specific performance, Ms Boyd sought a declaration under s 232 of the Corporations Act 2001 (Cth) that the affairs of the Company have been conducted in a manner that is oppressive to, unfairly prejudicial to, or unfairly discriminatory against her and an order that the Company be wound up under s 233 or s 461(1)(k) of the Corporations Act). I will address the latter application below.

  2. I will refer to the relevant principles before turning to the parties’ submissions and their application in this case. I have drawn upon Counsels’ submissions and my summary of those principles in Re Ledir Enterprises Pty Ltd [2013] NSWSC 1332; (2013) 96 ACSR 1, Victory Projects Pty Ltd v AAA Self Storage Pty Ltd [2016] NSWSC 1758 and Re AJ Roberts Removals & Storage Pty Ltd [2017] NSWSC 1054 in this regard. Section 232 of the Corporations Act provides that the Court may make an order under s 233 if:

“(a)   the conduct of a company’s affairs; or

(b)   an actual or proposed act or omission by or on behalf of a company; or

(c)   a resolution, or a proposed resolution, of members or a class of members of a company;

is either:

(d)   contrary to the interests of the members as a whole; or

(e)   oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity.”

  1. This section and its predecessors extend to conduct involving “commercial unfairness” or where the conduct complained of involves a visible departure from the standards of fair dealing and a violation of the conditions of fair play, or a decision has been made so as to impose a disadvantage, disability or burden on the plaintiff that, according to ordinary standards of reasonableness and fair dealing, is unfair: Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 at 704; Wayde v New South Wales Rugby League Ltd [1985] HCA 68; (1985) 180 CLR 459. In Thomas v HW Thomas Ltd [1984] 1 NZLR 686; (1984) 2 ACLC 610, Richardson J observed (at 618) that

“Fairness cannot be assessed in a vacuum or simply from one member’s point of view. It will often depend on weighing conflicting interests of different groups within the company. It is a matter of balancing all the interests involved in terms of the policies underlying the companies legislation in general and s 209 [the NZ provision] in particular: thus to have regard to the principles governing the duties of a director in the conduct of the affairs of a company and the rights and duties of a majority shareholder in relation to the minority; but to recognise that s 209 is a remedial provision designed to allow the Court to intervene where there is a visible departure from the standards of fair dealing; and in the light of the history and structure of the particular company and the reasonable expectations of the members to determine whether the detriment occasioned to the complaining member’s interests arising from the acts or conduct of the company in that way is justifiable.”

  1. In Morgan v 45 Flers Avenue Pty Ltd above, Young J observed (at 704) that the phrases “oppressive, unfairly prejudicial or unfairly discriminatory” in s 232 of the Corporations Act should be construed as “a composite whole and the individual elements mentioned in the section should be considered merely as different aspects of the essential criterion, namely commercial unfairness”. His Honour also there noted that whether oppression was established was to be determined by reference to the nature of the business carried on by the company and the nature of the relations between its participants and:

“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.”

  1. In Re Lowes Park Pty Ltd; Headlam v Lowes Park Pty Ltd (1994) 62 FCR 535, Burchett J noted (in an observation that I cited with approval in Byrne v A J Byrne Pty Ltd [2012] NSWSC 667 at [46]) that fairness cannot be considered in a vacuum, and in relation to a family company can only be considered in the light of the history of the company and the family and the purpose for which the company was formed, and that a person who receives the gift of an interest in a company in a situation of this kind is in a somewhat different position from one who has invested his own funds in a company from which he cannot extract himself or herself. Mr Bennett also emphasises the observations of Byrne J in Re George Raymond Pty Ltd; Salter v Gilbertson [1999] VSC 460; (2000) 18 ACLC 85 at [24], where his Honour observed, in respect of a predecessor section that:

“Whether, for oppression purposes, a company should be regarded as a family company, or a group of companies as a family group, is a question of fact. Moreover, unlike companies, families do not last for ever. The characteristic of the company or group of companies as a family company or family group may change or disappear as the years pass and generations are replaced by successive generations. In this case, the current members of the Gilbertson family have drifted apart somewhat but it was submitted that the conduct of the affairs of [the company] must be understood against the background that dealings between family members are often informal, that loans within a family may not necessarily be made on a commercial basis and that certain family members may assume or be given a position of dominance over others. The requirements of s246AA that the conduct in question have the characteristic of unfairness and the concern of the courts to assess that conduct in a realistic way having regard to all relevant considerations, means that, where appropriate, this aspect of the conduct should not be ignored. See, for example, Thomas v H W Thomas Ltd [1984] 1 NZLR 686 at 695 per Richardson J; McWilliam v L J R McWilliam Estates Pty Ltd (1990) 20 NSWLR 703 at 711, per Young J; Re Lowes Park Pty Ltd (1994) 62 FCR 535 at 552, per Burchett J.”

That observation was cited, with apparent approval, by Greenwood J in MacLean v MacLean [2017] FCA 194 at [9].

  1. The principles applicable to a claim for oppression were summarised by Austin J in Tomanovic v Argyle HQ Pty Ltd [2010] NSWSC 152 at [39], and the Court of Appeal noted the parties did not challenge that summary of the applicable principles in Tomanovic v Global Mortgage Equity Corporation Pty Ltd [2011] NSWCA 104; (2011) 288 ALR 310; 84 ACSR 121 at [140]. His Honour observed that:

“(a)   consistent with the principle that the purpose of relief is to terminate the effects of oppression, relief will generally be inappropriate as a matter of discretion if there is no continuing oppression: Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304, at [182]; [2009] HCA 25;

(b)   unfairness is assessed by reference to 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”: eg, Campbell v Backoffice Investments Pty Ltd (2008) 66 ACSR 359, per Basten JA at [181]; [2008] NSWCA 95;

(c)   while it is recognised that conduct may be oppressive if inconsistent with the “legitimate expectations” of shareholders, expectations are not immutable. The non-fulfilment of expectations will not establish oppression, if there has been some good reason for the extinguishment of the expectation: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (2001) 37 ACSR 672, at [85], [86], [175]; [2001] NSWCA 97; Nassar v Innovative Precasters Group Pty Ltd (2009) 71 ACSR 343, at [96]; [2009] NSWSC 342 per Barrett J;

(d)   “it is important when assessing corporate activities to see if there has been oppression that judges do not remain in their ivory tower”: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1988) 28 ACSR 688, Young J at 739; [1998] NSWSC 413;

(e)   a particular matter which will be taken in account in assessing the gravity of any allegation of oppression, is the extent to which the minority shareholder has “baited” the majority shareholder to act in an oppressive manner: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1988) 28 ACSR 688, at 741; [1998] NSWSC 413 …”

  1. Those principles were again summarised by Stevenson J in Munstermann v Rayward [2017] NSWSC 133 at [22] as follows (omitting citations):

“(1)    The test of oppression is an objective one of unfairness ...

(2)    The court must look to determine whether on the balance of probabilities the objective commercial bystander would be satisfied that the affairs of the company were being conducted unfairly …

(3) A director may act oppressively in the sense relevant to the operation of s 232 and yet not breach any fiduciary or other duty owed as a director ...

(4)    Conduct of a company’s affairs may be oppressive even though the conduct is otherwise lawful ...

(5)    Conduct that has the effect of paralysing a company in the operation of its business is properly characterised as conduct contrary to the interests of the members as a whole …

(6)    A shareholder of 50 per cent of the shares in a company can seek relief for oppressive conduct because they do not have control in the form of power to prevent the oppression, particularly where individual strong arm tactics are used …

(7)    The court must formulate an opinion about oppression or unfair prejudice as at the date of the institution of proceedings and the issue of relief under s 233 must be determined at the date of the hearing …

(8)    The discretion under s 233 is wide as to the appropriate remedy …

(9)    The nature of the remedy chosen by the court under s 233 will be dependent upon the conclusions drawn by the court as to the type of oppression with which the court is dealing and the court will choose the remedy which is least intrusive ….

(10)    The aim of any order under s 233 must be to put an end to the oppression …

(11)    The court should only look to wind up an otherwise solvent company as a “last resort” …

(12)    As a remedy for oppression, an oppressor can be ordered to sell their shares to the oppressed party ….

(13)    If an order is to be made for the purchase of shares under s 233 the task of the court is to fix a price that represents a fair value in all the circumstances.”

  1. In RBC Investor Services Australia Nominees Pty Ltd v Brickworks Ltd [2017] FCA 756; (2017) 120 ACSR 517, Jagot J in turn observed that the authorities established that the statutory oppression provisions are to be read broadly and the imposition of judge-made limitations on their scope should be approached with caution; the word "oppressive" should not be considered in isolation, but rather the question should be whether, objectively in the eyes of a commercial bystander, there has been conduct so unfair that reasonable directors who consider the matter would not have thought the conduct to be fair; assessing fairness involves a balancing exercise between competing considerations, including the conduct of the applicant; and the issue is not the motive for, but the effect of, the allegedly oppressive conduct.

  2. I also bear in mind the observation in Tomanovic v Global Mortgage Equity Corporation Pty Ltd above that each case has to be considered on its own facts and circumstances, and by reference to the conduct as a whole. I bear in mind that I must also have regard to the collective impact of the matters on which Ms Boyd relies.

  3. Ms Boyd relied on the lack of consultation with her in respect of her purported appointment and removal as a director of the Company in 2003–2004, but that occurred some 13 years ago. As I noted above, a claim in respect of the occupancy of a property at Brighton-Le-Sands by Ms Ellersdorfer was not pressed by Ms Boyd at the hearing. Ms Boyd also relied on her difficulty in obtaining financial records between June and November 2010 (Amended Statement of Claim [36]). However, as Mr Bennett points out, the claim was undermined by concessions made by Ms Boyd in cross-examination that she was permitted to inspect records of the Company at the late Mr Corak’s house and was permitted to inspect the Company’s records and copy them at its accountant’s office and was then satisfied with the information which had been provided to her. Quite apart from that matter, the position as to access to records over a short period in 2010 would provide little support for an application for relief in oppression or for a winding up order, now seven years later.

  4. Ms Boyd also relies (Amended Statement of Claim [37]–[38]) on the offer to buy her shares and the suggestion made by the late Mr Corak as to their value of $660,000, made without undertaking any formal valuation of them. It is also unclear whether that figure was intended to reflect the value of the shares, or was adjusted downward to take account of the other monies that Mr Corak had previously made available to Ms Boyd. I do not see that matter as supporting an oppression claim, so far as it was an offer which Ms Boyd was free to accept or reject, and did not in fact accept. The time that has passed since that event also reduces its significance in this application. Ms Boyd also relies on her unsuccessful attempt to sell her shares at the accountant’s valuation, but it does not seem to me to have been oppressive for other shareholders not to choose to acquire Ms Boyd’s shares, which had been bequeathed to her, for a substantial price at a time of her choosing. Ms Boyd also relies on the NCAT proceedings and the MOU in support of the oppression claim. Mr Bennett responds, and I accept, that those matters provide little support for the oppression claim. The former primarily related to care arrangements for the late Mr Corak, rather than to the Company’s affairs and, where I have held that the MOU was not binding, then a failure to implement it also does not seem to me to amount to oppression. Ms Boyd’s further complaint, in cross-examination, that she was disappointed in her lack of input into sourcing investment properties for further growth in the Company and in the extent to which she learnt from or was guided by Mr Corak’s experience in property investment (T57) was not pleaded and also does not seem to me to rise to the level of oppression.

  5. Ms Boyd also relies on the evidence of loans to Ms Feeney (or, more precisely, her associated company in respect of the first loan) in support of her claim for oppression. Mr Simpson refers to Mr Corak’s reluctance to provide further information concerning those loans to Ms Boyd and he submits that the loans to Ms Feeney were “entirely unrelated to the affairs of the Company” and did not bring any commercial benefit to the Company and provided advantage only to Ms Feeney. Mr Simpson also relies, in support of the oppression claim, on the fact that the loans by the Company to Ms Feeney (or, as to the first loan, her associated company) were interest free (or, I interpolate, in respect of one loan, with interest capitalised) without security for an indefinite period. Mr Simpson submits, and I accept, that I should proceed on the basis that, where Ms Feeney did not lead evidence as to her loan arrangements with the Company, that evidence would not have assisted her in the defence of the proceedings. I also recognise that, as Mr Simpson pointed out, the Defendants did not call the Company’s accountant, Mr Mansfield, who appears to have been closely involved in dealings with the loans and the Company’s financial accounts, and would likely have had knowledge of their circumstances. In oral submissions, Mr Simpson submitted that the loans made to Ms Feeney (or, more precisely, her associated company in respect of the first loan) were uncommercial and support the principal or alternative relief sought in the proceedings (T20), and also submits that the loans to Ms Feeney were oppressive to Ms Boyd as a member where no dividend was declared in the relevant period (T21). I accept that, at least in some circumstances, the making of loans on uncommercial terms may be a matter that supports an oppression claim and potentially an order for winding up: Dick v Alan Powell Holdings Pty Ltd [2009] QSC 184.

  6. Mr Bennett responds that the loans incur interest and comply with Div 7A of the Income Tax Assessment Act and are therefore on commercial terms. I have referred above to the fact that interest has been accrued on at least the second loan, although it has been added to the principal rather than paid; there is no evidence that the Division 7A loan agreement was signed by the Company; and the evidence also does not establish whether the loans in fact comply with Div 7A of the Income Tax Assessment Act. More significantly, Mr Bennett points out that those loans will be discharged in the final distribution of the estate and in the settlement of the proceedings under the Succession Act to which I have referred above. Mr Bennett also points out, and I accept, that there is less room for criticism of loans made to Ms Feeney, even in substantial amounts, where there is evidence that the late Mr Corak has also provided significant benefits to his other daughters, including Ms Boyd, whether personally or through the Company.

  7. Ms Ellersdorfer, in her personal capacity and as representative of the Estate of the late Mr Corak, submits that there should be no order for winding up since there has been no oppression. Mr Bennett points out that the late Mr Corak controlled the Company and had done so since its establishment and that Ms Boyd inherited rather than paid for her shares and played no active role in the Company. Mr Bennett also submits that there is less basis for Ms Boyd to complain of steps taken by the late Mr Corak, in exercising control of the Company, when she inherited her shares in a company that had previously been and remained under his practical control. Mr Bennett fairly points out that an order for winding up, whether under s 233(1)(a) or under s 467 of the Corporations Act, would not ordinarily be made if some other remedy were appropriate in the relevant circumstances.

  8. I am not satisfied that oppression is established, where the Company was established by the late Mr Corak and the late Mrs Corak; its assets are largely if not entirely the result of their efforts; it had plainly been used, as a family company, to confer benefits on members of the family, in addition to benefits that were conferred by the late Mr Corak directly on members of the family, including Ms Boyd; and transactions of that character will often not involve a commercial aspect. I recognise that the loan arrangements between the Company and Ms Feeney (or, more precisely, as to the first loan, to her associated company) are not consistent with those that would ordinarily be made at arm’s length, including by reason that security was not taken for the loans. However, the family context of the relevant transactions is relevant in these circumstances, and it does not seem to me to have been an oppressive exercise of the late Mr Corak’s powers as a director of the Company to make loans that benefitted one of his daughters individually, even if that transaction may have been oppressive if undertaken by a public company or a proprietary company that was conducting a trading business.

  9. I have also referred above to the effect of orders made in the proceedings under the Succession Act that, it appears, should result in repayment to the Company of the loans made to Ms Feeney and her associated company. In those circumstances, any oppression which arose from the circumstances in which those loans were made or left on foot would no longer continue after those loans were repaid. It does not seem to me that it would be a proper exercise of discretion to make an order to wind up the Company on the basis of oppression. I will, however, find below that other matters relating to the governance of the Company will require that it be wound up, unless they can be promptly resolved between the parties.

  10. Mr Bennett also relied on a defence of laches in respect of the oppression claim. It is not strictly necessary to address that defence given the conclusions that I have reached above. I should note that, although delay can be relevant in an oppression or winding up case, that matter would not assist the Defendants here, where the difficulties in corporate governance to which I have referred, including the lack of any current director of the Company, are continuing matters. Mr Bennett also relies on the steps which the Defendants have taken to sell all of the Company’s assets and to deal with its outstanding loans to Ms Feeney and her associate company and on the fact that they propose later to distribute the balance to shareholders and wind up the Company in opposing the relief sought. While these matters are significant, it must also be recognised that these steps have been taken (to the extent they have already occurred) in the exercise of Ms Ellersdorfer’s power of attorney, and likely by her acting as a de facto director of the Company, in circumstances where there has been and is no director appointed in accordance with the requirements of the Corporations Act to make relevant decisions on the Company’s behalf.

Whether the Company should be wound up on the just and equitable ground

  1. As I noted above, Ms Boyd alternatively seeks an order that the Company be wound up under s 461(1)(k) of the Corporations Act on just and equitable grounds. That section relevantly provides that the Court may order the winding up of a company if it is of the opinion that it is just and equitable that the company be wound up. Mr Simpson refers to several authorities as to the circumstances in which such an order can be made: Australian Securities and Investments Commission v ABC Funds Managers Ltd [2001] VSC 383; (2001) 39 ACSR 443 at [119]; Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd [2008] VSCA 86; (2008) 66 ACSR 325 at [119]; Nassar v Innovative Precasters Group Pty Ltd [2009] NSWSC 342; (2009) 71 ACSR 343 at [132]. In Re Catombal Investments Pty Ltd [2012] NSWSC 775 at [19]–[20], Brereton J observed that a deadlock or disagreement in the management of the company's affairs was a common case for a winding up on this basis, and also that the words "just and equitable" were general words and an applicant could rely on any circumstances of justice or equity that affect him or her in his or her relationships with a company in support of such an application.

  2. Mr Simpson relied on matters which also support the oppression claim in order to support the order for winding up on just and equitable grounds. Mr Simpson submits that there is reason for a lack of confidence in the conduct and management of the Company’s affairs and also relies on “a breakdown between the members of the Company in circumstances where there is no current living director”. Mr Simpson points to several matters to support the suggested breakdown of the relationship between the Company’s members, including evidence that Ms Boyd, Ms Feeney and Ms Ellersdorfer do not “get on”; suggested issues as to access by Ms Boyd to the Company’s financial records; the inability of Ms Boyd to sell her shares, the application to NCAT and Ms Boyd’s failed attempts to implement the MOU, to which I have referred above. Mr Simpson also refers to disagreement between the parties as to whether the Company should be wound up. It appears that Ms Ellersdorfer supports a voluntary winding up of the Company and Ms Boyd supports a winding up by the Court, without, so far as the evidence goes, either of them or their advisers having adequately considered whether the difference between those two approaches is material in the present circumstances.

  3. Mr Bennett responds that, so far as Ms Boyd contends there is a lack of confidence in the Company’s management, then “no issue can be taken” with that matter, where there is no suggestion of failure of its role in dealing with property or with revenue or regulatory authorities or with creditors. With respect, I do not accept that submission. It seems to me that it is a significant matter that the Company has been undertaking substantial business transactions, albeit authorised by Ms Ellersdorfer under a power of attorney, and implemented with the assistance of the Company’s accountant and her or its solicitors, over a significant period in which it has had no director capable of making corporate decisions on its behalf. Mr Bennett also submits that there is no relevant breakdown in the relationship of members, where the Company was substantially under the late Mr Corak’s control and its affairs have never been predicated upon a working relationship of mutual cooperation, trust and confidence between Ms Boyd, Ms Feeney and Ms Ellersdorfer. There is less force in that submission where the lack of cooperation between the Company’s present shareholders will plainly have an impact on its present management.

  4. It is not necessary to reach a determination whether a breakdown of the personal relationship between the sisters could have justified a winding up on this basis, had the corporate affairs of the Company otherwise been properly conducted. It seems to me that a winding up order must here be made, on a narrow basis, where the Company has not had a director appointed to it since the death of the late Mr Corak and does not presently have a director appointed to it who can make corporate decisions on its behalf. The fact that a company has no directors capable of exercising corporate authority has long been recognised as a matter which may support a winding up application, although none of those cases involves a situation where there has been an ongoing attempt to exercise corporate powers under a power of attorney: CIC Insurance Ltd v Hannan & Co Pty Ltd [2001] NSWSC 437; (2001) 38 ACSR 245; Great Australian Resources Pty Ltd v Platinum Mining Ventures Ltd [2011] FCA 1472 at [15]ff; Protocom Holdings Pty Ltd v Kent Street Chambers Pty Ltd [2015] FCA 751 at [43]ff. I can see no basis on which the Court could permit a situation to continue, into the indefinite future, where the Company has no director capable of making a corporate decision on behalf of the Company, including a decision to revoke the power of attorney granted to Ms Ellersdorfer, and Ms Ellersdorfer is left, in the indeterminate future, to conduct its affairs without a director or proper corporate governance being in place, unless or until any voluntary winding up takes place. It seems to me that the power of attorney granted by the Company to Ms Ellersdorfer to conduct aspects of its affairs, cannot substitute for compliance with the requirement that a proprietary company have at least one director resident in Australia, who is subject to the statutory responsibilities imposed on a properly appointed director.

  5. I am reinforced in that view by the fact that, first, the Company has undertaken substantial activities in the period in which no director has been appointed to it, including the sale of a substantial commercial property and, for a period, took an active role in these proceedings. Second, Ms Ellersdorfer, in attending to aspects of the Company’s affairs as its attorney, seems largely to have left the question of what was to be done with those loans to her or the estate’s advisers to be addressed in the context of the settlement of the proceedings under the Succession Act. By contrast, a director of a proprietary company which was owed the amount owed by Ms Feeney and her associated company on an unsecured basis would, in exercising his or her statutory duty of care and diligence, have needed to give close personal attention to that issue. Third, there is a real question as to whether the Company could have taken any step to recover the loans from Ms Feeney or the company associated with her since Mr Corak’s death, where no corporate officer could have authorised the taking of that step, if it had sought to do so. Fourth, going forward, if difficulties arise in respect of the arrangements contemplated by the orders made by the Court in the proceedings under the Succession Act, so far as they affect the Company and its loans to Ms Feeney and her associated company, the Company has no director presently appointed to it who could determine the steps that it should take in that respect. It seems to me that those matters support the lack of confidence in the Company’s management for which Mr Simpson contends (T135).

  1. It seems to me that, on those narrow grounds, an order for winding up of the Company on the just and equitable ground should be made.

Outcome and costs

  1. For the reasons set out above, a liquidator would properly be appointed to address the Company’s position in respect of the orders made in the proceedings under the Succession Act and, if those orders do not in fact bring about prompt repayment of the loans made by the Company to Ms Feeney and the company associated with her, to take appropriate steps to require repayment of those loans, realise any other remaining assets of the Company, discharge any debts and distribute the surplus among contributories. Notwithstanding that Ms Boyd sought an order for the winding up of the Company, she did not tender a liquidator’s consent to appointment, which will be required before the Court can order a winding up or appoint a liquidator. Ms Ellersdorfer annexed two consents of a liquidator to her second affidavit. The Court will ordinarily appoint the Plaintiff’s choice of liquidator unless there is reason to take a different approach: Re Hayes Steel Framing Systems Pty Ltd (admins apptd) [2017] NSWSC 385. It will therefore be necessary for the parties to bring in orders and a consent of a liquidator nominated by the Plaintiff before he or she can be appointed. I will order below that that be done within 7 days.

  2. I propose to stay the winding up order for 21 days after it is made, to allow the parties a last opportunity to seek to resolve their differences, or, if it is practicable to do so given the divisions between them, cause the appointment of a liquidator in a voluntary liquidation by the means permitted by the Corporations Act.

  3. While the general principle, reflected in r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW), is that costs follow the event, that principle has qualifications: Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121]; Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34 at [98]; Re Swan Services Pty Ltd (in liq) [2017] NSWSC 692 at [25]. My preliminary view, subject to hearing from the parties, is that an order should be made that the Defendants (other than the Company) pay a portion, perhaps one quarter, of Ms Boyd’s costs of these proceedings as agreed or as assessed, where she has had some success and would not have needed to pursue the case, or incur the costs of running it, had the Defendants submitted to a winding up order being made by the Court. However, Ms Boyd initially advanced a wide case, parts of which related to events many years ago and parts of which (as to the property occupied by Ms Ellersdorfer) were not pressed at the hearing. Ms Boyd also failed in the substance of her application; did not obtain either an order for specific performance of the MOU or relief in oppression; and has succeeded in obtaining an order for winding up on a narrow ground that could readily have been determined in a half day hearing, had an application been brought on that narrow ground. In those circumstances, it seems to me that there would be real unfairness to the Defendants in ordering that they pay Ms Boyd’s costs of the proceedings in full.

  4. I direct the parties to bring in, within seven days, agreed short minutes of order providing for the appointment of a liquidator, a stay of those orders for 21 days and costs, together with a consent of the liquidator to be appointed; or, if there is no agreement between the parties as to orders, their respective draft minutes of order, the consent of any liquidator which the party proposes should be appointed to give effect to this judgment and their submissions as to costs. I will then make orders in Chambers to give effect to the judgment and as to costs.

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Decision last updated: 23 November 2017

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