Gandy v Gandy [No 2] - [2025] WASC 207

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   GANDY -v- GANDY [No 2] [2025] WASC 207
CORAM:   HOWARD J
HEARD:   28 APRIL 2025 & 22 MAY 2025
DELIVERED          :   29 MAY 2025
FILE NO/S:   CIV 2286 of 2024
BETWEEN:   GLYNN TREVOR GANDY
First Plaintiff
GLYNN TREVOR GANDY as CO-TRUSTEE OF THE GANDY FAMILY TRUST
First Second Plaintiff
STEPHEN WALLACE MCCLOUD as CO-TRUSTEE OF THE GANDY FAMILY TRUST
Second Second Plaintiff
AND
KIMBERLY NEIL GANDY as CO-TRUSTEE OF THE GANDY FAMILY TRUST
Defendant

FILE NO/S: CIV 1299 of 2019
BETWEEN: KIMBERLY NEIL GANDY
Plaintiff
AND
GANDY TIMBERS PTY LTD
First Defendant
GANDYS TRANSPORT CO PTY LTD
Second Defendant
GLYNN TREVOR GANDY as trustee for GANDY FAMILY TRUST
First Third Defendant
STEPHEN WALLACE MCCLOUD as trustee for GANDY FAMILY TRUST
Second Third Defendant
GLYNN TREVOR GANDY
Fourth Defendant
STEPHEN WALLACE MCCLOUD as trustee for THE STONEDALE PASTORAL TRUST
Fifth Defendant
GANDYS TRANSPORT CO PTY LTD as trustee for THE GANDY FARM TRUST
Sixth Defendant
STEPHEN WALLACE MCCLOUD trading as MCCLOUD BUSINESS & TAXATION MANAGEMENT
Seventh Defendant
GANDY TIMBERS PTY LTD
First Plaintiff by counterclaim
GANDYS TRANSPORT CO PTY LTD
Second Plaintiff by counterclaim
GLYNN TREVOR GANDY
Third Plaintiff by counterclaim
STEPHEN WALLACE MCCLOUD as trustee for STONEDALE PASTORAL TRUST
Fourth Plaintiff by counterclaim
GANDYS TRANSPORT CO PTY LTD as trustee for THE GANDY FARM TRUST
Fifth Plaintiff by counterclaim
KIMBERLY NEIL GANDY
First Defendant by counterclaim
GLYNN TREVOR GANDY as trustee for GANDY FAMILY TRUST
First Second Defendant by counterclaim
STEPHEN WALLACE MCCLOUD as trustee for THE GANDY FAMILY TRUST
Second Second Defendant by counterclaim
KIMBERLY NEIL GANDY as trustee for GANDY FAMILY TRUST
Third Second Defendant by counterclaim

Catchwords:

Application for final relief - Orders sought for the perfecting of the vesting of land subject of trustees' resolution - Separation of commercial interests - Whether agreement for distribution of trust assets was preliminary or conditional - Application granted

Interlocutory injunction - Application to restrain dealing with dividends from shares said to be trust assets - Separation of commercial interests - Agreement for sale of trust assets, namely listed shares - Whether breach of sale agreement - Whether serious question to be tried - Assessment of balance of convenience - Adequacy of damages - Application dismissed

Legislation:

Trustees Act 1962 (WA)

Category: B

Representation:

CIV 2286 of 2024

Counsel:

First Plaintiff	:	Mr E M Heenan SC & Mr T E Ledger
First Second Plaintiff	:	No appearance
Second Second Plaintiff	:	No appearance
Defendant	:	Mr M L Bennett

Solicitors:

First Plaintiff	:	Pragma Lawyers
First Second Plaintiff	:	No appearance
Second Second Plaintiff	:	No appearance
Defendant	:	Bennett

CIV 1299 of 2019

Counsel:

Plaintiff	:	Mr M L Bennett
First Defendant	:	Mr E M Heenan SC & Mr T E Ledger
Second Defendant	:	No appearance
First Third Defendant	:	No appearance
Second Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
First Plaintiff by counterclaim	:	No appearance
Second Plaintiff by counterclaim	:	No appearance
Third Plaintiff by counterclaim	:	No appearance
Fourth Plaintiff by counterclaim	:	No appearance
Fifth Plaintiff by counterclaim	:	No appearance
First Defendant by counterclaim	:	No appearance
First Second Defendant by counterclaim	:	No appearance
Second Second Defendant by counterclaim	:	No appearance
Third Second Defendant by counterclaim	:	No appearance

Solicitors:

Plaintiff	:	Bennett
First Defendant	:	Pragma Lawyers
Second Defendant	:	No appearance
First Third Defendant	:	No appearance
Second Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
First Plaintiff by counterclaim	:	No appearance
Second Plaintiff by counterclaim	:	No appearance
Third Plaintiff by counterclaim	:	No appearance
Fourth Plaintiff by counterclaim	:	No appearance
Fifth Plaintiff by counterclaim	:	No appearance
First Defendant by counterclaim	:	No appearance
First Second Defendant by counterclaim	:	No appearance
Second Second Defendant by counterclaim	:	No appearance
Third Second Defendant by counterclaim	:	No appearance

HOWARD J:

There are presently seven extant matters in this Court in which the main actors are brothers, Kimberly Neil Gandy (Kim) and Glynn Trevor Gandy (Glynn).[1]
[1] For obvious reasons, and without intending any disrespect, I have referred to members of the Gandy family by their first names.
There have been at least another four matters (now concluded) in this Court concerning, or between, the brothers.
Kim and Glynn are sons of Alexander Neil Gandy (who died in 1998) and Norma Pearl Gandy. Kim and Glynn have two sisters, Leanne and Nerrilee.
The seven extant actions are provisionally listed for a seven‑week trial commencing on 6 April 2026.
These reasons concern an application brought by Glynn in CIV 2286 of 2024 (CIV 2286);[2] and one by Kim in CIV 1299 of 2019 (CIV 1299).[3]
[2] Glynn is the first plaintiff in his personal capacity and the first named second plaintiff in his capacity as co‑trustee of the Gandy Family Trust. Stephen Wallace McCloud is the second named second plaintiff in his capacity as co-trustee of the Gandy Family Trust. Kim is the defendant in his capacity as co‑trustee of the Gandy Family Trust.
[3] CIV 1299 is commonly referred to by the parties as the 'main action'. Kim is the plaintiff and Glynn is the fourth defendant in his personal capacity. The other defendants are Gandy companies or trustees of Gandy Trusts or, in the case of Mr McCloud in his personal capacity as seventh defendant, a professional advisor defendant.
There is common background to the two applications as there is, indeed, to all of the proceedings.
In the broad, it is common ground that prior to November 2017 the brothers' relationship, to understate it, was problematic. As may be inferred from the at least 11 actions that are or have been in this Court after November 2017, that relationship has not improved.
There was then something of a process adopted to separate Kim and Glynn's commercial interests which culminated in an agreement and transactions on about 2 November 2017.
Those commercial interests were held through various entities.
Throughout his application, Glynn refers to the Gandy Group as comprising:
1.Gandy Timbers Pty Ltd (Gandy Timbers);[4]
2.Gandys Transport Co Pty Ltd (Gandys Transport);[5]
3.the Gandy Family Trust;[6]
4.the Stonedale Pastoral Trust;[7] and
5.the Gandy Farm Trust.[8]
[4] Gandy Timbers is the first defendant and first plaintiff by counterclaim in CIV 1299.
[5] Gandys Transport is the second defendant and second plaintiff by counterclaim in CIV 1299.
[6] Glynn and Stephen Wallace McCloud as trustees for the Gandy Family Trust are the third defendants in CIV 1299.
[7] Stephen Wallace McCloud as trustee for the Stonedale Pastoral Trust is the fifth defendant and fourth plaintiff by counterclaim in CIV 1299.
[8] Gandys Transport as Trustee for the Gandy Family Trust is the sixth defendant and fifth plaintiff by counterclaim in CIV 1299.
They are the same entities which Kim refers to as the Gandy Entities.

Glynn's application in CIV 2286: the application and evidence

By Originating Summons filed on 30 October 2024, Glynn sought amongst other orders:
1.That pursuant to section 89 and / or 92 of the Trustees Act 1962 (WA) and / or Order 58 rule 2(e) of the Rules of the Supreme Court 1971 (WA) and / or the inherent jurisdiction of this Honourable Court, the First Plaintiff, First named and Second named Second Plaintiffs, and Defendant forthwith sign all documents and do all things desirable or necessary to transfer to the First Plaintiff or his nominee the whole of the interest and estate in real property known as Channybearup, comprised of:
(a)Lot 11227 on Deposited Plan 204912, being the land comprised in Certificate of Title Volume 1316 Folio 493;
(b)Lot 12155 on Deposited Plan 163008, being the land comprised in Certificate of Title Volume 2065 Folio 1000; and
(c)Lot 5168 On Deposited Plan 229259, being the land comprised in Certificate of Title Volume 2091 Folio 460.
As may be seen, the Originating Summons is said to be brought by Glynn in his personal capacity and then by Glynn and Mr McCloud as co‑trustees of the Gandy Family Trust. Counsel for Glynn, however, confirmed that this application is brought only by Glynn in his personal capacity.[9] From here, I will refer to it as Glynn's application. As may be seen, Glynn's application is, effectively, against Kim.
[9] ts 127.
Further, the land in the three titles set out in the Originating Summons is referred to from here as Channybearup.
Relevantly to Glynn's application, immediately prior to 2 November 2017, Channybearup was held by Kim, Glynn and Mr McCloud as Trustees of the Gandy Family Trust.
At that time, those Trustees were also the Guardians of the Gandy Family Trust.
The Gandy Family Trust is provided for by:
1.a deed executed on 1 February 1994;[10]
2.a first deed of variation executed in about 1999 and stamped for duty on 22 May 2020;[11] and
3.a second deed of variation executed on or about 9 July 2002;[12]
(together the Gandy Family Trust Deed).
[10] Affidavit of Glynn Trevor Gandy made on 28 October 2025 and filed on 30 October 2024 (Glynn's first affidavit) [4] and Attach 'GTG-1'.
[11] Glynn's first affidavit [5] and Attach 'GTG-2'.
[12] Glynn's first affidavit [7] and Attach 'GTG-3'.
In Glynn's application, he read the following affidavits filed in CIV 2286:
1.his affidavit made on 28 October 2024 and filed on 30 October 2024 (Glynn's first affidavit);
2.an affidavit of one of his solicitors, Kylie Simone Michael, made and filed on 26 February 2025 (Ms Michael's CIV 2286 affidavit); and
3.his affidavit made and filed on 26 February 2025 (Glynn's second affidavit).
Glynn also read in his application affidavits he made in other Gandy proceedings; namely:
1.CIV 1741 of 2023, made on 14 September and filed on 15 September 2023: but only paragraphs [5] - [8], [18] - [26], and [40] ‑ [44]; and
2.CIV 2398 of 2024 made and filed on 23 November 2024: but only paragraphs [87] - [144], and annexures 'GTG 34' ‑ 'GTG 78' and 'GTG 81'.
In opposition, Kim read the following affidavits filed in CIV 2286:
1.his affidavit made and filed on 22 November 2024;
2.an affidavit of one of his solicitors, Monique Marie Vincent, made and filed on 11 February 2025; and
3.a further affidavit of Ms Vincent made and filed on 28 April 2025.

Kim's application in CIV 1299: the application and evidence

By a chamber summons in CIV 1299 filed on 25 February 2025 (Kim's application), Kim sought the following substantive orders:
1.Until further order, the first defendant be restrained and an injunction be granted restraining the first defendant from dealing with spending or otherwise disposing of any dividends received on the shares held by the first defendant in Wesfarmers Limited being the holding SRN I0153246041 and in Coles Limited being the holding SRN I0030122925 (Dividends).
2.An order be granted requiring the first defendant to pay any Dividends received from 25 February 2025 within 2 business days of receipt into an interest-bearing account separate from the other funds or accounts held by the first defendant. (original emphasis)
As may be seen, in his application Kim sought orders against Gandy Timbers.
It may be noted that Glynn and Gandy Timbers are represented by the same solicitors and counsel in these two applications.
Relevantly to Kim's application, immediately prior to 2 November 2017 Gandy Timbers was the registered holder of 32,295 shares in Wesfarmers Ltd (Wesfarmers shares).
In his application, Kim read the following affidavits filed in CIV 1299:
1.an affidavit of Ms Vincent made and filed on 25 February 2025;
2.an affidavit of another of his solicitors, Pragya Srivastava, made and filed on 15 April 2025; and
3.an affidavit of another of his solicitors, Sophie Ella Coffin, made and filed on 21 May 2025.[13]
[13] Filed in response to the affidavit of Thomas Edward Ledger made and filed on 12 May 2025 in CIV 1299, read by Glynn in Kim's application and as identified below.
Kim also read in his application from other Gandy proceedings:
1.Glynn's affidavit in CIV 2286 made and filed on 26 February 2025, which I referred to above as Glynn's second affidavit;
2.Glynn's affidavit in CIV 1741 of 2023 made on 14 September and filed on 15 September 2023; and
3.his (Kim's) affidavit in CIV 2396 of 2024 made and filed on 22 November 2024.
In opposition to Kim's application, Gandy Timbers read an affidavit of Ms Michael made and filed in CIV 1299 on 24 March 2025 (Ms Michael's CIV 1299 affidavit).
Kim objected to one paragraph and one annexure ('KSM-1') to Ms Michael's CIV 1299 affidavit.[14] Unhelpfully, that objection was not foreshadowed before the first hearing.
[14] ts 171 and 187.
The objected to evidence from Ms Michael's CIV 1299 affidavit and the objected to annexure comprised what was said to be the balance sheet of Gandy Timbers as at 31 January 2025.
I did not rule on the objection at the first hearing because Gandy Timbers did not read that paragraph and sought an adjournment of Kim's application to allow it to put on further evidence.
At the conclusion of the first hearing, Gandy Timbers was given leave to file a further affidavit going to that contested matter.
On 12 May 2025, Gandy Timbers filed an affidavit of one of its solicitors, Thomas Edward Ledger, made on the same date. Amongst other things, Mr Ledger's affidavit sought to render admissible the balance sheet of Gandy Timbers as at 31 January 2025 which was 'KSM‑1' to Ms Michael's CIV 1299 affidavit. There was no objection taken to Mr Ledger's affidavit by Kim (and, as noted, Kim filed, belatedly perhaps, Ms Coffin's affidavit in response).
As a result of Mr Ledger's affidavit, I took 'KSM‑1' into evidence as Gandy Timbers' balance sheet as at 31 January 2025.
Gandy Timbers objected to Ms Coffin's affidavit being taken into evidence on the basis that: it was received at 4.00 pm the day before the second hearing; there was no leave granted to Kim to file it; it was unclear to what, if any, argument was addressed; and parts of it were, on any view, irrelevant.
Over those objections, I allowed Kim to read Ms Coffin's affidavit.
Counsel for Glynn foreshadowed, perhaps in terrorem, an application to further adjourn Kim's application on the basis that Glynn could put further material before the Court going to the 'solvency' of the Stonedale Pastoral Trust. I would not have allowed that adjournment. The question of the financial position of the Stonedale Pastoral Trust was raised by Kim at the first hearing. When Glynn filed Mr Ledger's affidavit he was, in my view, well on notice of the issue. Mr Ledger's affidavit must be taken to be Glynn's considered response to that issue. Further, to the end of efficient case management, as I note below, interlocutory applications need to be brought to an end.

Relevant events of 2 November 2017

Both of the present applications arise out of the events on 2 November 2017. Those events, including both the Channybearup Resolution and the Sale Agreement (as defined below), are the subject of the pleadings in CIV 1299.
There is a relevant difference between the parties, apparent from the pleadings in CIV 1299, as to what was agreed on 2 November 2017. Before turning to that, I will set out the relevant written instruments from that date.

Channybearup instruments of 2 November 2017

On 2 November 2017, the Trustees of the Gandy Family Trust resolved to vest Channybearup 'to' Glynn (Channybearup Resolution).[15]
[15] Glynn's first affidavit [13] and [15]. The Channybearup Resolution is part of 'GTG-4' at page 86 to Glynn's first affidavit.
Channybearup was also the subject of a Deed made 2 November 2017 between the Trustees and the Guardians of the Gandy Family Trust.[16] Recital D to the Deed recorded that the Trustees had resolved to settle a portion of the assets of the Gandy Family Trust on Glynn; the 'portion' including Channybearup.[17]
[16] That Deed is part of Attach 'GTG-4' at page 92 of Glynn's first affidavit.
[17] Part of Attach 'GTG-4' at page 92 to Glynn's first affidavit.
The Trustees executed a Transfer of Land form on 2 November 2017 of Channybearup to Glynn.[18] The consideration was stated to be 'pursuant to a deed of partial vesting of trust dated 2 November 2017'.

Wesfarmers shares instrument dated 2 November 2017

[18] The Transfer is part of Attach 'GTG-4' at page 101 to Glynn's first affidavit.

On 2 November 2017, Gandy Timbers entered into an agreement for the sale of assets to Kim, which included the Wesfarmers shares (Sale Agreement).[19]
[19] The Sale Agreement is part of Attach 'GTG-4' at page 77 to Glynn's first affidavit.
Clause 1(a) of the Sale Agreement contained an acknowledgement by Gandy Timbers that it received consideration of $1 for the purchase of the assets.
Clause 3 of the Sale Agreement provided that Gandy Timbers was to deliver (amongst other items), the Wesfarmers shares to Kim no later than 14 days from the date of the Sale Agreement.

The agreement of 2 November 2017

As noted above, there is a dispute between the parties as to what was agreed - outside of the written instruments set out above - on 2 November 2017 which is relevant to these applications.
In short, Kim pleads an agreement being relevantly reached on 2 November 2017 which reflects the Channybearup Resolution and the Sale Agreement. By way of contrast, Glynn (with other defendants) pleads a wider, or more detailed, agreement being relevantly reached on 2 November 2017 which, ironically, is relied upon by Kim in Glynn's application to deny Glynn the relief he seeks in his application.
In CIV 1299, Kim relevantly alleges, by his current and fourth further amended statement of claim filed 8 October 2024 (CIV 1299 SOC) that:
1.in or around mid-2015, he and Glynn agreed to separate their commercial interests in the 'Gandy Entities';[20]
2.on or about 2 November 2017, amongst others, Kim and Glynn entered into a partly written, partly oral and partly performed agreement for the distribution of assets of the Gandy Entities;[21]
4.part of the agreement was that the assets of the Gandy Entities would be distributed, relevantly, one-third to Kim and one-third to Glynn;[22]
5.part of the agreement was that Kim and Glynn agreed the real property component of the assets of the Gandy Entities was attributed a value of $22,345,000 and that a one-third share of that was $7,448,333;[23]
6.part of the agreement was that Glynn's one-third share of the assets included Channybearup;[24]
7.pursuant to the terms of the agreement, the Trustees of the Gandy Family Trust resolved to vest Channybearup to Glynn;[25]
8.pursuant to the agreement, the Trustees of the Gandy Family Trust entered into a deed with the Guardians of the Gandy Family Trust to vest Channybearup to Glynn;[26]
9.part of the agreement was Kim's one-third share of the assets included the Wesfarmers shares;[27] and
10.pursuant to the agreement, Gandy Timbers entered into the Sale Agreement.[28]
[20] That term is defined at CIV 1299 SOC [9]; CIV 1299 SOC [10].
[21] Kim defines this as the 'Agreement' at CIV 1299 SOC [13].
[22] CIV 1299 SOC [13.2]. The remaining one-third is pleaded as to be distributed to the sisters, Leanne and Nerrilee.
[23] CIV 1299 SOC [13.3.1].
[24] CIV 1299 SOC [13.5.1] - [13.5.3].
[25] CIV 1299 SOC [14.1] and [13.5.1] - [13.5.3]. This is the 'Channybearup Resolution' as defined above.
[26] CIV 1299 SOC [14.3].
[27] CIV 1299 SOC [13.4.15].
[28] CIV 1299 SOC [14.5].

Further to the pleading identified at paragraph [47.5] above, Kim pleads that the attribution of the value of the real property was made by an undated written schedule prepared by solicitors, Taylor Smart, for the purpose of agreeing the allocation on 2 November 2017.[29] That spreadsheet is annexed to Glynn's second affidavit[30] (2 November 2017 spreadsheet).
[29] Particulars to CIV 1299 SOC [13.3.1].
[30] Glynn's second affidavit [6(a)] and Attach 'CTG 1' at page 40.
Significantly, Kim's pleading in CIV 1299 SOC does not plead a relevant qualification on any of the agreement, the Channybearup Resolution, or the Sale Agreement.
As noted, in CIV 1299, Gandy Timbers is the first defendant and Glynn, in his personal capacity, is the fourth defendant. For present purposes from here, unless otherwise indicated, I have referred to Gandy Timbers and Glynn as the defendants in CIV 1299.
The defendants' partly written, partly oral and partly implied agreement,[31] has much in common with the agreement pleaded by Kim. For example, it is pleaded that the Group's assets[32] would be divided in a similar three way split.[33]
[31] The first, second, third, fourth, fifth and sixth defendants' re-amended defence and further re-amended counterclaim of the first, second, third, fourth and fifth plaintiffs by counterclaim filed 28 November 2019 (CIV 1299 defence) [13.4].
[32] As noted, Glynn (and Gandy Timbers) uses 'Gandy Group' cf Kim's use of 'Gandy Entities'.
[33] CIV 1299 defence [13.4(a)].
By their defence,[34] the defendants formally deny the agreement pleaded by Kim.[35] They plead that it was agreed on 2 November 2017 that, amongst other things, there would be 'a preliminary distribution' of the assets including Channybearup made by way of trust resolutions, contracts of sale and Landgate transfers to be made and executed on that date.[36]
[34] The current iteration is the CIV 1299 defence as defined at footnote 33 above.
[35] CIV 1299 defence [13.5].
[36] CIV 1299 defence [13.4(j)(i)].
The amount of the assets to be divided would be determined by reference to a number of matters but, significantly, one of which was the 2 November 2017 spreadsheet.[37]
[37] CIV 1299 defence [13.4(b)(i)].
The defence also pleads that there would be a similar 'preliminary distribution' of assets to Kim, including the Wesfarmers shares, made by way of trust resolutions, contracts of sale and Landgate transfers to be made and executed on 2 November 2017.[38]
[38] CIV 1299 defence [13.4(i)] and [13.4(i)(vi)].
The defendants' following pleas are important to the applications and I have quoted them relevantly below:
[13.4(k)]Following 2 November 2017, the distribution of the Gandy Group's Net Assets to the Transferees would be finalised such that:
(i)if, following the calculation of the value of the Gandy Group's Net Assets as set out in paragraph (b) above, the value of the assets already transferred to Kim and/or Glynn as set out in paragraphs (i) and (j) above was lower than that person's 1/3 share entitlement to the Gandy Group's Net Assets pursuant to the Agreement, then the person concerned would be entitled to a further distribution of assets of the Gandy Group such that the total value of Gandy Group assets he received was equivalent to 1/3 of the Gandy Group's Net Assets;
(ii)If, following the calculation of the value of the Gandy Group's Net Assets as set out in paragraph (b) above, the value of the assets already transferred to Kim and/or Glynn as set out in paragraphs (i) and (j) above was greater than that person's 1/3 share entitlement to the Gandy Group's Net Assets pursuant to the Agreement, then the person concerned would be required to refund a sum to the Gandy Group such that that the total value of Gandy Group assets he received was equivalent to 1/3 of the Gandy Group's Net Assets;
(iii) if, prior to the finalisation of the transfer to Glynn and/or Kim of the assets set out in in [sic] paragraphs (i) and (j) above, it became apparent that the value of the assets already transferred to them was greater than that person's 1/3 share entitlement to the Gandy Group's Net Assets, then the person concerned would not be entitled to the transfer of any further Gandy Group assets.
[13.4(1)]If, upon the transfer of any of the assets of the Gandy Group to any of the Transferees those Transferees became liable to pay any CGT or Duty, then a sum equivalent to that CGT or Duty would be distributed to that person by Gandy Timbers for the purposes of payment of that CGT and/or Duty and this would form a liability of Gandy Timbers as at 2 November 2017 for the purposes of calculating the Gandy Group's Net Assets.
It is common ground that Channybearup has not been finally transferred to Glynn.
As I was taken to no document which contained the terms pleaded in paragraphs [13.4(k)] and [13.4(l)] of CIV 1299 SOC, I infer that the defendants plead this as an oral part of the agreement they assert.

CIV 2286: Glynn's application

The parties' contentions

Glynn's application is essentially for what might be described as final relief in that it seeks the perfecting of the vesting of the land which was the subject of the Channybearup Resolution.
Glynn submits that up until 21 May 2024 the transfer of Channybearup to Glynn could not be completed because:
1.there were issues as to the validity of the appointment of the Trustees and the Guardians of the Gandy Family Trust and what was done by them on 2 November 2017;[39] and
2.Channybearup was subject to a mortgage in favour of Rabobank Australia Ltd which has been discharged.[40]
[39] Glynn's written outline of submissions filed 14 January 2025 (Glynn's submissions) [27].
[40] Glynn's submissions [32].
That position prior to 21 May 2024 did not appear to be disputed by Kim.
Glynn submits those two difficulties have been resolved.
Glynn submits that the first difficulty was resolved by orders made by Archer J (as she then was) on 21 May 2024 in CIV 1844 of 2023 (May 2024 Orders).[41] [42]
[41] The Orders appear as 'GTG-11' at page 188 to Glynn's first affidavit.
[42] Glynn's submissions [30].
As to the second difficulty, Glynn contends that the discharge of the Rabobank mortgage removed that as a reason why the title to Channybearup cannot be transferred, now, to him.[43] I did not understand Kim to contend otherwise.
[43] Glynn's submissions [36] - [37].
Kim submits that Glynn should not obtain the orders sought for three principal reasons, being:
1.the terms of the agreement on 2 November 2017 are in dispute between the parties, and, so, uncertain and will be resolved in CIV 1299;[44]
2.the 2 November 2017 agreement, relevantly for the transfer of Channybearup, was conditional;[45] and
3.the Gandy Family Trust Deed excludes Trustees (including Glynn) from any benefit under a transfer pursuant to cl 9.2 and cl 9.4 which is what Kim contends is sought by Glynn here.[46]
[44] Kim's written outline of submissions filed 11 February 2025 (Kim's CIV 2286 submissions) [1.1] - [6].
[45] Kim's CIV 2286 submissions [6] - [9].
[46] Kim's CIV 2286 submissions [20] - [23].
As the disputed agreement of 2 November 2017 will be resolved (albeit at a trial next year) in CIV 1299, Kim contends that the Court ought not determine Glynn's application at this time.
Further, by way of subsidiary propositions, Kim contends that:
1.he has a right to be indemnified for expenses and liabilities he reasonably incurred by his proceedings against Rabobank in CIV 1116 of 2024;[47]
2.he may have a prospective tax liability in respect of which he is entitled to an indemnity against Channybearup;[48] and
3.'to the extent' that the relief sought by Glynn is discretionary, the Court should not exercise its discretion in Glynn's favour.[49]

The terms of the agreement contended for by Glynn

[47] Kim's CIV 2286 submissions [24] - [29].

[48] Kim's CIV 2286 submissions [30].

[49] Kim's CIV 2286 submissions [2] and [31] - [35].

As noted, Kim's pleading in CIV 1299 would not provide him with an argument to oppose Glynn's application.
Kim seeks to rely on Glynn's CIV 1299 defence for two submissions against Glynn's application; namely that there:
1.is a contest between the parties as to what agreement was reached on 2 November 2017, such that it would be wrong to 'decide' the issue of whether Channybearup should be transferred; and
2.was only a provisional or uncertain agreement reached.
As to the relevant parts of his CIV 1299 defence, Glynn submits:
[5]In contrast, the only assets that have been already transferred to Glynn Gandy are those pleaded at paragraphs 13(j)(ii) to (vii) of the defence and counterclaim in CIV 1299 of 2019. Their value, as at 2 November 2017, was $5,328,588.62, which, on any view, is less than 1/3 of the value of the net assets of the Gandy Group as at 2 November 2017.
[6] Accordingly, the term of the 2 November 2017 agreement pleaded at paragraph 13(k)(iii) of the defence and counterclaim in CIV 1299 of 2019 does not apply in respect of the transfer of Channybearup and, contrary to paragraphs 10 and 11 of Kim Gandy's submissions, there is no contradiction or inconsistency in the manner in which Gandy Timbers Pty Ltd (which is not even a party to this proceeding) has dealt with the disputed Wesfarmers shares.
[7]Even if, after the transfer of Channybearup to Glynn Gandy, the value (as at 2 November 2017) of the assets transferred to him from the Gandy Group were to exceed his 1/3 share entitlement (which, for the avoidance of doubt, is denied), the consequence on the case pleaded in the defence and counterclaim in CIV 1299 of 2019 is that he would be required by the term pleaded at paragraph 13(k)(ii) to refund a sum of money to make up the difference, not that he would not be entitled to the transfer of the real estate.[50] (footnotes omitted) (original emphasis)
[50] Glynn's reply written outline of submissions filed 26 February 2025 (Glynn's reply submissions).
It is common ground that there has not been a 'finalisation of the transfer' within the meaning of the plea at paragraph [13.4(k)(iii)] of the CIV 1299 defence:
1.to Glynn of Channybearup; and
2.to Kim of the Wesfarmers shares.
It did not appear from Kim's submissions that he contends that the value of the assets Glynn has received already exceeds one‑third of the net assets of the group.[51] That was confirmed at the hearing of these applications.[52]
[51] Kim's CIV 2286 submissions [9].
[52] ts 160 and 164.
Glynn accepted that the perfecting of the transfer of Channybearup to him would put him over one‑third of the value of the assets.[53]

Consideration of Glynn's CIV 1299 defence

[53] ts 124 - 125.

I have approached Glynn's application on the basis of his CIV 1299 defence and, in particular, on the basis of paragraph [13.4(k)] as quoted above. Obviously, there may need to be a determination at the forthcoming trial as to whether what was agreed on 2 November 2017 included what Glynn pleads at paragraph [13.4(k)] of his CIV 1299 defence.
I do not consider, in short, that the CIV 1299 defence provides an argument for Kim to resist Glynn's application.
That is because I accept that the natural reading of the CIV 1299 defence, and in particular paragraph [13.4(k)] as quoted above, is to the effect that:
1.the assets to be transferred to Glynn included Channybearup;
2.if the assets already transferred to Glynn (before the effective transfer of Channybearup) exceeded one‑third of the total value of the assets, then Glynn would not be entitled to the transfer of any further asset;
3.in effect, Glynn could receive an asset which resulted in him receiving more than one-third of the total value, subject to paragraph [75.2] above; and
4.if, as a result of a transfer as per paragraph [75.3] above, Glynn did receive more than one-third of the total value, he would come under a payment or refund obligation.
The agreement pleaded by Glynn would not then prevent the transfer of Channybearup because of the accepted fact that I identified in paragraph [71] above.
Kim rather reads Glynn's CIV 2019 defence as pleading that the agreement was to the effect that if the transfer of Channybearup would take Glynn over one‑third of the total value, then the plea is that it was agreed that transfer would not occur.
As said, I do not consider that is the natural reading of the pleading. For the avoidance of doubt, Glynn's counsel made plain that was not Glynn's case as pleaded.[54]
[54] ts 168 - 169.
While it may be accepted that there is a dispute between the parties as to the terms of what was agreed on 2 November 2017, I do not consider that the dispute is material to the question or questions raised by Glynn's application.
For that reason, I do not consider that Glynn's application needs to await the broader resolution of the issues in CIV 1299.

CIV 2286: The validity of the Channybearup Resolution

Glynn submits that the Channybearup Resolution and the vesting of the property in him took, and was to take, place pursuant to cl 9.1 of the Gandy Family Trust Deed.
He further submits that the validity of the Channybearup Resolution has been determined between the parties by the May 2024 Orders.
Initially, in response, Kim contended that:
1.the May 2024 Orders did not 'validate' the Channybearup Resolution; and
2.because the Resolution was made pursuant to cl 9.2 and cl 9.4 of the Gandy Family Trust Deed, it was not affected by the May 2024 Orders.
However, as I understand it, at the hearing counsel for Kim accepted that there was a 'res judicata' between the parties on the issue.[55]
[55] ts 165.
In context, I took that to mean that Kim accepted that the validity of the Channybearup Resolution had been determined by the May 2024 Orders.
In all of those circumstances, I do not need to deal with this issue further other than to note that, as I understand it, it is no longer put by Kim as a reason against Glynn's application.

CIV 2286: Kim's claim to an indemnity from trust assets

Kim asserts an indemnity in two ways, as identified above.
The first is in relation to the proceedings he commenced against Rabobank in CIV 1116 of 2024.
As was candidly and properly accepted by Kim's counsel at the hearing, that proceeding was not commenced by Kim qua trustee of the Gandy Family Trust.[56] Rather, it was commenced by Kim in his personal capacity as a guarantor of a loan facility which, amongst other security, was secured over Channybearup.
[56] ts 152.
With respect, that concession was properly made and appears irresistible.
At the very least, if Kim had commenced that action as a sole trustee, he would have had to have joined his fellow co‑trustees to the action (which did not occur).
Counsel for Kim did not take the Court to any authority in which a non‑trustee has been recognised as having an indemnity against trust assets for a personal (in the sense of in their own right rather than as a trustee) action.
In the absence of being taken to such authority, I do not understand the basis on which such an indemnity is asserted, and I do not find that it is a reason not to accede to Glynn's application. As I understand it, a non‑trustee party would not have an indemnity, as contended for by Kim, against the assets of the trust.
As also identified above, the second basis put for an indemnity is that, presumably as one of the Trustees, Kim may have a liability to the ATO in respect of the disposition of Channybearup to Glynn.
There was no evidence before the Court as to their being such a tax liability. Kim principally raises the possibility of a capital gains tax liability on the disposition of Channybearup.
With respect, I accept Glynn's submissions on this point which are to the effect that:
1.a capital gains tax liability could only arise on a disposition of Channybearup by the Trustees;
2.for that liability to have arisen, necessarily the Channybearup Resolution (and other associated instruments referred to above) would have to have been effective to dispose of Channybearup to Glynn; and
3.the disposition which caused the tax liability would, necessarily, have the effect that the property was no longer trust property and so would no longer be available to the Trustees from which to be indemnified (assuming that the Trustees had to seek an indemnity).
Accordingly, I would not refuse Glynn's application on the basis of that possible spectre.

CIV 2286: discretion not to order the transfer

At the hearing, counsel for Kim asserted that his discretion argument was, essentially, that as there was a dispute about the terms of the agreement reached on 2 November 2017 and Glynn had identified no need for urgency on his part for the vesting to be effected then, as a matter of discretion, it should be left over to the trial next year.[57]
[57] ts 166.
In all of the circumstances, by parity with my reasoning to decline an adjournment of Glynn's application to the trial because of the uncertainty of the agreement as I set out above, I would not, as a matter of discretion, decline to determine Glynn's application at this point.
I say that on the assumption that there is such a discretion. However, I am not to be taken as deciding that there is in substance such an operative discretion.

CIV 2286: Disposition

For the above reasons, I would grant Glynn's application.
I expect that the parties will be able to agree a form of orders to give effect to these reasons.
I will hear the parties, if needs be, on the form of the final orders and costs.

CIV 1299: Kim's application

The parties' contentions

In CIV 1299 Kim pleads that by the Sale Agreement[58] Gandy Timbers agreed to sell, amongst other things, the Wesfarmers shares to him for $1 and to deliver them within 14 days.[59] By its CIV 1299 defence, Gandy Timbers, in essence, admits the Sale Agreement.[60]
[58] CIV 1299 SOC: Particular (c)(ii) to [13] and [13.4.15].
[59] CIV 1299 SOC [14.4].
[60] CIV 1299 defence [13A.3].
Kim then pleads that in breach of the Sale Agreement, Gandy Timbers has failed to transfer the Wesfarmers shares to Kim.[61] By its CIV 1299 defence, Gandy Timbers accepts that the Wesfarmers shares have not been transferred to Kim.[62]
[61] CIV 1299 SOC [17.1].
[62] CIV 1299 defence [14.2] and [15.5].
There is a further plea by Kim that as a result of a de‑merger (after the Sale Agreement), Wesfarmers shareholders, including Gandy Timbers by implication, were issued shares in Coles Group Ltd (Coles shares).[63] Gandy Timbers accepts for present purposes the facts of the de‑merger and the receipt by it of the Coles shares.[64]
[63] CIV 1299 SOC [18].
[64] Gandy Timbers written outline of submissions filed 23 April 2023 (Gandy Timbers' submissions) [11].
Kim pleads the failure to transfer the Wesfarmers shares has resulted in Gandy Timbers receiving:
1.the Coles shares;[65] and
2.dividends in respect of both the Wesfarmers and Coles shares.[66]
[65] CIV 1299 SOC [19.1].
[66] CIV 1299 SOC [19.2].
Gandy Timbers, by its CIV 1299 defence, pleads that Kim is not entitled to be transferred the Wesfarmers shares[67] because:
1.the value of assets already transferred to Kim are greater than his one-third entitlement and he is not entitled to any further assets;[68] and
2.Gandy Timbers (as the first plaintiff by counterclaim) seeks to set off against any relief claimed by Kim, losses it claims it has suffered.[69]
[67] CIV 1299 defence [15.6].
[68] CIV 1299 defence [16].
[69] CIV 1299 defence [33].
Gandy Timbers accepts, for the purposes of Kim's application, that there is a serious question to be tried as to whether Kim has received more than one‑third of the assets. This is not the ground on which Gandy Timbers defends Kim's application.[70]
[70] ts 169.
As is apparent, Kim's application is for interlocutory relief pending the determination of CIV 1299 which will determine whether Gandy Timbers is in breach of the Sale Agreement in failing to have transferred the Wesfarmers (and Coles) shares to Kim.

There is no apprehension, presently, that Gandy Timbers will dispose of the Wesfarmers or Coles shares themselves[71] and no relief is sought in relation to those 'underlying' shares.
[71] ts 165.
Kim contends that the dividends which have been paid or are payable up to these hearings, on the Wesfarmers shares was $553,213.35 and, in respect of the Coles shares, $125,304.61.[72] These are not the subject of Kim's application.
[72] Kim's written outline of submissions filed 15 April 2025 (Kim's CIV 1299 submissions) at page 5; ts 198.
It appeared to be common ground that ordinarily Wesfarmers and Coles paid dividends twice a calendar year by an interim dividend and then by a final dividend.[73]
[73] ts 181.
It was made plain in the hearing that Kim's application is in respect of dividends which have not yet been received by Gandy Timbers.[74] That is, the orders sought are entirely prospective and would operate on the receipt of dividends in the future.
[74] ts 183.
Kim's CIV 1299 submissions stated:
Fundamentally Kim's position in respect of the dividends is that they must be held in escrow pending determination by this Honourable Court of the precise terms of the agreement in dispute between the parties.[75]
[75] Kim's CIV 1299 submissions [7].
That the orders sought in Kim's application only concern future dividends to be received by Gandy Timbers must be borne in mind in any assessment of where the balance of convenience lies.
As eventually emerged with clarity at the first hearing, Kim contends that the Sale Agreement resulted in Gandy Timbers holding the Wesfarmers (and Coles) shares as trustee for him on a 'purchase trust'.[76] A somewhat different trust may have been asserted in Kim's CIV 1299 submissions at paragraph [6].
[76] ts 176, 178 – 180 and 182.
At the resumed hearing, counsel for Kim sought to advance, it appeared, a trust over the underlying Wesfarmers and Coles shares on a further, alternative, basis. No notice had been given of any alternative argument. Kim sought leave to adjourn his application to allow submissions to be put on that alternative basis.
I declined to adjourn the application further. In my view, the parties have been accorded every reasonable opportunity to properly present their cases on the two applications. In my view, it was not consistent with the appropriate use of Court resources and considerations of proportionality to allow a further adjournment which would continue to delay the resolution of the applications. Every application and hearing in this Court comes at the 'cost' to some other parties and the resolution of their dispute.
In response, principally, Gandy Timbers submits that:
1.there is serious question to be tried as to whether Gandy Timbers is in breach of the Sale Agreement;
2.a contract for the sale of shares which are readily obtainable in the market is not specifically enforceable because damages will be an adequate remedy;[77]
3.Kim does not plead any proprietary interest in the dividends;[78]
4.if, notwithstanding the above propositions, the Court is to weigh the balance of convenience, it does not favour the grant of the injunction sought as damages are an adequate remedy in respect of the dividends;[79] and
6.further, the balance of convenience also does not favour the grant of the injunction because Kim delayed in seeking the injunction; which delay is to the prejudice of Gandy Timbers.[80]
[77] Gandy Timbers' submissions [16]. Those submissions cited Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed) [20-040]. By reference to authority, the authors state that 'a contract for the sale of shares … will not be specifically enforceable if the securities are readily obtainable in the market and anyone can go and buy them because damages will be an adequate remedy'.
[78] Gandy Timbers' submissions [18].
[79] Gandy Timbers' submissions [20] - [21].
[80] Gandy Timbers' submissions [23] - [25].
By reference to the fact that Kim's application is wholly prospective, Gandy Timbers submits that, in effect, Kim is seeking a future order which is akin to a freezing or Mareva order.
As I understand it, in answer to Gandy Timbers' submissions as to damages being an adequate remedy, Kim asserts that Gandy Timbers does not have sufficient assets to meet the damages claim.
Ms Coffin's affidavit seeks to challenge the reliability of 'KSM‑1' to Ms Michael's CIV 1299 affidavit.
For the reasons which follow, I do not consider that I need to reach a definitive view as to Kim's challenge to the reliability of 'KSM‑1'.

CIV 1299: Consideration and disposition of Kim's application

Even if I were to accept, against Gandy Timbers' submissions, that there was a serious question to be tried as to whether there was a 'purchase trust' in respect of the Wesfarmers (and Coles) shares as a result of the Sale Agreement, I would not find that there is a serious question to be tried that there is a trust over the dividends to be paid in respect of the shares.
Gandy Timbers, in my view, has received the dividends, and will receive dividends, because it holds the Wesfarmers and Coles shares. It is receiving those as a monetary payment (or a credit to a bank account) for which it must account to the beneficiary. However, that does not, of itself, lead to a serious question that the monetary amount or the credit for which it is liable to account is impressed with a trust.
Even if I were to consider that there was a serious question to be tried as to whether there was a trust over the dividends to be received (which I do not), I do not consider that the balance of convenience would favour the grant of an injunction.
Gandy Timbers' balance sheet, 'KSM-1' to Ms Michael's CIV 1299 affidavit, shows as at 31 January 2025:
1.total current assets of $6,240,606.98;
2.total non-current assets of $2,031,299.55;
3.total assets of $8,271,906.53;
4.total current liabilities of $65,664.73;
5.total non-current liabilities of $2,485,040.56; and
6.net assets of $5,721,201.24.
As said above, if an assessment is to be made as to the balance of convenience, it would consider the likely value of the dividends which will be received from now up to the trial.
From looking at the attachments to Kim's submissions,[81] the dividends in each calendar year for the Wesfarmers shares have not exceeded $65,000 and the Coles shares have not exceeded $25,000.
[81] Kim's CIV 1299 submissions.
I was told by Kim's counsel from the Bar table without objection that it was anticipated that Gandy Timbers would receive up to the scheduled trial next year, three or four dividends in respect of each of the Wesfarmers and Coles shares. So, on a rough and ready calculation, the amount of dividends to be received up to the scheduled trial would be no more than in the order of $180,000.
Even giving weight to the attacks on 'KSM-1' of Ms Michael's CIV 1299 affidavit based on Ms Coffin's affidavit, it appears to me that the balance sheet of Gandy Timbers as at 31 January 2025 shows a very comfortable buffer above the notional amount of $180,000.
In all of the circumstances, if the Court got to the position of considering whether damages were an adequate remedy in respect of the future dividends to be received, it appears to me that:
1.damages would be an adequate remedy; and
2.there is presently no reasonable basis to consider that Gandy Timbers would not easily satisfy any damages from the net assets of Gandy Timbers even after the challenges mounted by Kim.
I should also say that in assessing the balance of convenience, I have borne in mind the strength of the serious question to be tried which Kim advances. As will be apparent from my reasons above, I do not consider that Kim has a strong case on the question to be tried (which is the trust over the future dividends). It would more accurately be described as weak, in my view. In those circumstances, I consider that he would have to show an overwhelming balance of convenience; which I have found he cannot do.
I consider, also, that there is considerable force in the submission put by Gandy Timbers that Kim's application essentially is seeking a freezing or Mareva order. And, further, that different considerations (which are less favourable to Kim) would come into play on such an application. However, because of the position I have otherwise reached, I do not need to resolve that further.
Also, because of the position I have reached, I do not need to consider the discretionary considerations of delay advanced by Gandy Timbers.

CIV 1299: Disposition of Kim's application

For the above reasons, I would dismiss Kim's application.
I will hear the parties, as needs be, as to the form of the final orders and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TM
Associate to Justice Howard
29 MAY 2025

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