Hoare v Hoare

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0088

MATHEW CHARLES HOARE	Applicant
v
ANTHONY PETER HOARE	First Respondent
and
KIM McDONALD	Second Respondent

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JUDGES:	BEACH, T FORREST and SIFRIS JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 March 2023
DATE OF JUDGMENT:	5 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 73
JUDGMENT APPEALED FROM:	[2022] VSC 528 (Button J)

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INJUNCTIONS – Interlocutory injunction granted to restrain company directors from holding meeting – Prima facie case established – Balance of convenience favoured grant of injunctions – Application for leave to appeal – Judgment not attended with sufficient doubt – Serious injustice not established – Application refused.

Niemann v Electronic Industries Ltd [1978] VR 431, applied.

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Counsel
Applicant:		Mr P Bick KC
First respondent:		Mr T Kelly KC with Ms C Gobbo
Second respondent:		No appearance
Solicitors
Applicant:	Bowman & Knox Lawyers
First respondent:	Colin Biggers & Paisley
Second respondent:	Madgwicks Lawyers

BEACH JA
T FORREST JA
SIFRIS JA:

Introduction

This is an application for leave to appeal from a decision of Button J in the Commercial Court, restraining the applicant (‘Mathew’) and his sister, the second respondent (‘Kim’), from calling or participating in any meeting of Geelong Quarries Pty Ltd (‘GQ’) for the purpose of terminating the contractual arrangements between GQ and Hoare Bros Pty Ltd (‘Hoare Bros’). Mathew, Kim and their brother, the first respondent (‘Anthony’),[1] are directors of GQ and, through their controlled entities,[2] equal shareholders of GQ.
[1]Without any disrespect, first names are used throughout this judgment in order to distinguish between individuals who share a common surname.
[2]The shareholders of GQ are ET Investments (Vic) Pty Ltd (Anthony); H4MC Pty Ltd (Mathew); and Markee Custodians Pty Ltd (Kim).
This proceeding and the specific injunctive relief ordered by the judge, is part of a complex, broad, ongoing and not finally and fully articulated dispute between the siblings, Anthony on the one side and Mathew and Kim on the other. Kim has filed a notice of intention not to contest this application.
Since 2013, there has been an informal quarrying agreement between GQ and Hoare Bros (‘the Hoare Bros Quarrying Agreement’). The purpose of the meeting was to propose the termination of the Hoare Bros Quarrying Agreement and the implementation of a tender process for such quarrying activities. There was no explanation given to the judge or this Court as to why the termination was urgent and could not wait a few months, having been on foot for over a decade. The only response was that it was good corporate governance to have a written formal agreement in place.[3] Without being too cynical, it is not without relevance to note that the notice convening the meeting (‘the Notice’) was given shortly after Anthony indicated that he was proposing to file a consolidated statement of claim, referred to more fully below.
[3]Other than such agreement being in writing, there was no suggestion that such formal agreement would be on more favourable terms than the Hoare Bros Quarrying Agreement.
Critical to the granting of the injunction was the (contested) contention by Anthony that Mathew and Kim were not validly appointed directors of GQ and that under (contested) family arrangements, referred to below, their respective entities are not entitled to be shareholders of GQ. Apart from the family arrangements (reflected in various documents referred to below) which primarily challenge the status of Mathew and Kim, the effective decision makers of GQ, Anthony claims that the conduct of the affairs of GQ by Mathew and Kim constitutes oppressive conduct within s 232 of the Corporations Act 2001 (Cth) (‘the Act’), with the result that, if successful, orders may be made including orders for the removal of Mathew and Kim as directors and/or the transfer of the shares held by their respective entities.
The judge held that these matters, although not fully and precisely articulated, and highly contested, constituted a sufficient basis to conclude that there was a prima facie case. Although there are seven grounds of appeal, as referred to below, the main focus was on whether there was a prima facie case. The judge regarded the balance of convenience as favouring preservation of the status quo, in circumstances where there was no urgency and the Hoare Bros Quarrying Agreement had been on foot for a decade.
In order to properly understand the dispute between the siblings, it is necessary to briefly consider two other Supreme Court proceedings currently on foot. They are referred to below and, although they relate to the broader family dispute, they have a direct impact on the contested matters referred to, as acknowledged by the judge. An application by Anthony for the consolidation of the three proceedings is yet to be heard (‘the Consolidation Application’). Mathew opposes the Consolidation Application and asserts that the proposed consolidated statement of claim pleads new and different causes of action and matters. The judge considered that the Consolidation Application was relevant for the reasons referred to below and for this reason granted the injunction for a relatively short period, until the determination of that application or further order.
For reasons that follow, we consider that there is no merit in any of the proposed grounds of appeal and leave to appeal is refused. In short, we are not satisfied that the decision is attended with sufficient doubt and far from satisfied that substantial injustice would be done if the decision was to stand.[4] Further, the judge exercised a discretion on a matter of practice and procedure, and for the reasons given, and to the extent relevant, no error of the required kind has been identified.[5]

Relevant background[6]

Proceedings between siblings

[4]The appropriate test referred to in Niemann v Electronic Industries Ltd [1978] VR 431, 441–2 (Murphy J). See also Chhet v Khmer Buddhist Temple Association Inc [2021] VSCA 266, [47].

[5]House v The King (1936) 55 CLR 499; 55 CLR 499.

[6]The background facts, which are uncontroversial unless indicated, are taken from the reasons of the judge; Re Geelong Quarries Pty Ltd [2022] VSC 528 (‘Reasons’).

By way of general overview, this proceeding (and the two other current Supreme Court proceedings) arise from disputes between the siblings concerning the distribution of assets and control of family companies, following the death of their father Peter Hoare (‘Peter’) on 19 May 2011. The executors of Peter’s estate are Anthony, Mathew, Kevin Edward Roache (‘Roache’) and John Clement Nagle (‘Nagle’). Although probate of Peter’s estate was granted on 14 November 2011, the affairs of the estate have still not been concluded, and the current suite of proceedings involves Roache and Nagle.
This proceeding was commenced by originating process dated 14 October 2021 (‘the Oppression Proceeding’). The originating process seeks declaratory and injunctive relief under ss 232, 233 and 1324 of the Act, interim orders pursuant to the same provisions, and alternative relief pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). Paragraphs 1 and 2 of the originating process are in the following terms:
1An order pursuant to sections 232, 233 and 1324 of the Corporations Act 2001 (Cth) that:
(a)the First and Second Defendants [being Mathew and Kim respectively] have engaged in oppressive conduct.
(b)the First and Second Defendants be removed as directors of Geelong Quarries Pty Ltd.
(c)the shares issued to Markee Custodians Pty Ltd be cancelled.
(d)the First and Second Defendants compensate Geelong Quarries Pty Ltd for all loss and damage occasioned by them.
2Interim orders pursuant to sections 232, 233 and 1324 of the Corporations Act 2001 (Cth) that:
(a)Until further order, or the determination of Supreme Court Proceeding S ECI 2020 03342 and Supreme Court Proceeding S ECI 2020 02806, the First and Second Defendants are restrained from:
(i) acting as directors of Geelong Quarries Pty Ltd;
(ii)in any capacity, appointing any other directors of Geelong Quarries Pty Ltd;
(iii)issuing any further shares in Geelong Quarries Pty Ltd to any other person or entity;
(iv)dealing with the shares held by them (either directly or beneficially) in Geelong Quarries Pty Ltd;
(v)terminating the Quarry Agreement dated 1 July 2013 between Galaxie Investments Pty Ltd and Geelong Quarries Pty Ltd; and
(vi)terminating the existing contractual arrangements between Hoare Bros Pty Ltd and Geelong Quarries Pty Ltd.
(b)Until further order, or the determination of Supreme Court Proceeding S ECI 2020 03342 and Supreme Court Proceeding S ECI 2020 02806, an independent director (in addition to the Plaintiff) be appointed to Geelong Quarries Pty Ltd.
The two other proceedings currently on foot are proceeding S ECI 2020 03342 (‘the Separation Proceeding’) and S ECI 2020 02806 (‘the Distribution Proceeding’). Broadly, the Separation Proceeding involves Anthony (and a related company) seeking to enforce against Mathew (and other involved corporations) a ‘Separation Agreement’ said to have been reached between mid-2016 and August 2017 concerning one limb of the family business empire, referred to as the ‘Hoare Bros Business’. As part of the relief sought in that proceeding, Anthony seeks an order that H4MC Pty Ltd (‘H4MC’) transfer all of its shares in GQ to Anthony.
Anthony is also the plaintiff in the Distribution Proceeding. Mathew, Roache, Nagle and Amberlowe Pty Ltd (‘Amberlowe’) are the defendants. Amberlowe is the corporate trustee of the Hoare Family Settlement Trust (‘the Family Trust’). Amberlowe owned a large number of properties and held cash. Broadly, Anthony alleges that a ‘Division of Assets’ was agreed in December 2017 and, whereas Mathew and Kim have received their (effectively one third) distributions, Anthony has not.
There is a further proceeding, S ECI 2020 01838 (‘the First Geelong Quarries Proceeding’), which was issued by Anthony, against Mathew and Kim, in April 2020. That proceeding challenged the appointments of Mathew and Kim as directors of GQ under s 1322 of the Act and sought permanent and interim orders restraining Mathew and Kim from taking various steps concerning GQ, including terminating the quarry agreement between Galaxie Investments Pty Ltd (‘Galaxie’) and GQ (‘the Quarry Agreement’). Galaxie holds the title to ‘Liberton’, which is a property of about 1800 acres located on the Hamilton Highway at Stonehaven. GQ conducts quarrying operations at Liberton (on a portion of the land) pursuant to an agreement between Galaxie and GQ. By the Quarry Agreement, Galaxie licensed GQ to conduct quarrying operations, and GQ is obliged to pay Galaxie a royalty. GQ holds the work authority under the Mineral Resources (Sustainable Development) Act 1990 (work authority number 1407) (‘the Work Authority’).
The First Geelong Quarries Proceeding was dismissed by Almond J, pursuant to consent orders on 25 June 2020. The ‘Other Matters’ in the orders record an undertaking by Mathew and Kim not to seek to convene a meeting of GQ to terminate the Quarry Agreement, and an acknowledgement by Anthony that Mathew and Kim were validly appointed as directors of GQ.

The family trusts and the will — the family arrangements

To put in context some of the matters addressed below, it is necessary to say something of Peter’s will, two relevant family trusts and the earlier shareholding structure of GQ.
These matters arise because Anthony says that Peter’s shares in Galaxie (four of six shares, held by his estate) and Peter’s shares in GQ (originally 10 of 10 shares at the time of Peter’s death) form part of the residue of his estate and, in accordance with the will, ought to have been transmitted to Amberlowe and thereafter dealt with in accordance with the Family Trust deed. Anthony says certain distributions have not been made in accordance with the will or the terms of the Family Trust deed.
It is convenient to set out the necessary background by quoting Anthony’s submissions in the proceedings below,[7] which set out the necessary background succinctly:
[7]Contentious paragraphs, footnotes to the affidavits, paragraph numbers, and paragraphs reciting matters already addressed above are omitted.
There are two key trusts involved in the dispute.
Galaxie is the corporate trustee of the Peter Hoare Family Trust (Peter Hoare Trust).
Amberlowe Pty Ltd (Amberlowe) is the trustee of the Hoare Family Settlement Trust (Family Trust). …
Prior to his death, Peter executed a Will, and a non-binding letter of instructions entitled ‘Testamentary Request’ (Letter of Instructions).
The Will records that:
(a)Anthony, Mathew, Roache and Nagle are to be executors;
(b)Peter bequeathed the 5 shares he held in Amberlowe to his trustees to be held by them in accordance with the Will;
(c)Peter bequeathed:
(i)$100,000 and all household furniture and effects to his wife, Dianne Hoare (Dianne); and
(ii)the rest and residue of the Estate to the trustees upon trust to sell, call in collect and convert the same into money and to:
(A)payout all liabilities;
(B)pay the residue to Amberlowe to be held pursuant to the terms of the Family Trust deed.
The Corpus Beneficiaries under the Family Trust were the Amberlowe directors, shareholders, employees, spouses and children of employees.
Kim was not a Corpus Beneficiary under the Family Trust deed. [Mathew noted that, as a sibling of Corpus Beneficiaries, Kim is within the class of general beneficiaries, as defined in the Family Trust Deed and that, by cl 7, the Trustees were empowered to transfer any part of the Trust Fund to one or more beneficiaries.]
At the time of his death, Peter was a co-director of Galaxie with Anthony.
The current shareholding of Galaxie is:
(a)4 ordinary shares: Peter;
(b)1 ordinary share: O’Hare Pty Ltd (being a company controlled by Mathew); and
(c)1 ordinary share: Anthony. …
Galaxie holds the Liberton property in its capacity as trustee of the Peter Hoare Trust.
The specified beneficiaries under the Peter Hoare Trust are Anthony, Mathew and Kim.
Mathew has been, since 30 August 2011, the sole director of Galaxie.
Anthony contends that the shares held by Peter in Galaxie and GQ were required to be transferred to Amberlowe on his death and thereafter dealt with under the terms of the Family Trust deed. He says the distributions made to Kim and Mathew go well beyond the terms of the Family Trust deed, and insofar as Peter’s shareholdings in both Galaxie and GQ are concerned, in breach of the Family Trust deed. As noted in the square bracketed addition to the above extract at [16], Mathew takes a broader reading of the Family Trust deed and Kim’s position as a beneficiary under that deed.
At the time of his death, Peter held 10 shares in GQ. Anthony says that Mathew, with Nagle’s involvement, simply took these shares for himself in 2011. ASIC records show the 10 shares being transferred to Mathew on 16 December 2011. Then, further ASIC records show the 10 shares being transferred by Mathew, with five going to Mathew’s company, H4MC, and five going to Anthony’s company, ET Investments (Vic) Pty Ltd (‘ET’), on 26 February 2013. Anthony says he only recently (in July 2022) obtained control of ET and that the company was previously controlled by Nagle on trust for him. Despite ET obtaining half the shares on issue in GQ, Anthony now says the initial transfer to Mathew was invalid, along with essentially all dealings in GQ’s shares and the appointment of Mathew and Kim as directors thereafter.
In March 2020, H4MC appointed Kim and Mathew as directors of GQ, relying on cl 69 of GQ’s constitution, which enables the holder of at least 50 per cent of the shares to ‘appoint additional Directors’. Anthony says that, due to the original defects in the shares Mathew obtained in GQ from Peter, these appointments are invalid, as is the issue of five shares to Kim’s company, Markee Custodians Pty Ltd (‘Markee’), in mid-2021, which Kim and Mathew apparently used their power as directors (under cl 12(1) of GQ’s constitution) to issue. Anthony also says this share issue to Markee was invalid due to the alleged defects in the appointment of Kim and Mathew as directors. Anthony submitted, adopting colloquial language, that Kim’s interests ‘only piggyback’ on the flawed entitlement which Mathew asserts. Mathew and Kim say Anthony was aware of the 2013 transfer to H4MC and ET, as he signed the ASIC form. They also say he is estopped from contesting the validity of Kim and Mathew’s appointment as directors, given the acknowledgement contained in Other Matters in the orders dismissing the First Geelong Quarries Proceeding.
Anthony contends that, because he did not control ET at the time, H4MC appointed Kim a director of GQ (and so he could not equalise the number of directors), and thereafter caused GQ to issue shares to Markee, thereby diluting the interest of ET. Mathew and Kim have been able to form a voting block to defeat his interests. He contends that this conduct constitutes oppressive conduct in the affairs of GQ, within the relevant provisions of the Act.

Quarrying operations: GQ and Hoare Bros

GQ was registered in 2008. It was not, initially, an operating company, but has held the Work Authority since 2012.
GQ obtained the Work Authority in 2012. It entered into the Quarry Agreement with Galaxie on 1 October 2012. That agreement was for a term of 10 years, with four further 10 year options. The Quarry Agreement acknowledges that GQ may use another entity to undertake the quarrying work. The Quarry Agreement provides for GQ to pay a royalty to Galaxie, but Anthony and Mathew disagree about whether the royalty rate and other terms were set with the intention that GQ would not generate a profit.
Part of Anthony’s current sensitivity regarding the Quarry Agreement stems from Mathew having taken steps to try and terminate the Quarry Agreement between Galaxie and GQ soon after he became a director. This was then addressed through the issue of the First Geelong Quarries Proceeding, in which Mathew and Kim then gave undertakings not to terminate that agreement.
On 30 June 2022, Anthony, on behalf of GQ, issued a notice to Galaxie exercising the option to take up another 10 year term. While it appears that Mathew and Kim initially took umbrage at Anthony purporting to act for GQ in this unilateral manner (hence Markee issuing ‘Kim’s Notice’),[8] they all now agree that it is in GQ’s interests that the 10 year extension occur.
[8]The application was also directed to preventing a resolution referred to in a notice dated 9 July 2022, issued by Markee, being voted on by Mathew and Kim (Kim’s Notice). Kim’s Notice proposed a resolution that ‘[GQ] exercise its rights to a further ten (10) year term pursuant to the [Quarry Agreement]’.
Hoare Bros is a company forming part of the Hoare Bros Business. There is a dispute in the Separation Proceeding about whether or not GQ is also part of the Hoare Bros Business, such that Mathew should exit GQ.
Hoare Bros has provided quarrying services to GQ since about 2013. As noted, there is no formal written agreement between Hoare Bros and GQ. At the time of the Hoare Bros Quarrying Agreement, Mathew also worked at Hoare Bros (along with Anthony). Mathew no longer works at Hoare Bros.
Since the siblings’ relationship soured, they each have various complaints about the other and how the arrangements between GQ and Hoare Bros are operating. The evidence descended into quite some detail regarding the mutual complaints.

Judge’s reasons

The Reasons are clear, comprehensive and compelling. We set them out in some detail in order to demonstrate that it was entirely open to the judge to exercise the discretion in favour of granting the limited injunction and, in the very difficult circumstances of the case, to conclude that, although attended with some problems, there was a sufficiently arguable prima facie case.
After setting out the relevant background, the contentions of the parties and the relevant legal principles (including the Court’s broad discretion) which were and are not in dispute, the judge dealt with urgency and said:
The status quo, so far as is relevant to this application, is that [Hoare Bros] provides quarrying services to GQ, as it has done since about 2013. While I accept that the deterioration in the relationship between the warring siblings has made the relationship between GQ and [Hoare Bros] difficult and fractious, riven, as it is, by mutual mistrust, in my view the evidence does not show any urgent need to terminate the agreement between GQ and [Hoare Bros].
Similarly, I accept that, other considerations aside, for corporate good order and to ensure that important commercial matters of the kind identified by Mathew and Kim are addressed, it would be in GQ’s interests to have a formal agreement with whichever entity conducts the quarrying operations. However, [Hoare Bros] and GQ have operated informally for many years and there is no urgency in achieving a formal contract; in other words, the suboptimal situation can continue for another few months (or even years).[9]
[9]Reasons, [40]–[41].
The judge next dealt with the prima facie case. In response to Mathew’s assertion that the termination of the agreement between GQ and Hoare Bros does not affect any shareholder in GQ and is not otherwise oppressive, the judge said that Mathew had looked at the matter too narrowly. The judge referred to the broader dispute between the siblings and said:
If a meeting of the board of GQ is held and the resolutions to terminate the agreement between GQ and [Hoare Bros] and conduct a tender pass, those resolutions will only be valid if Mathew and Kim were validly appointed directors. If Anthony ultimately succeeds, Mathew and Kim would not have been validly appointed directors and any actions they took in that capacity may be impugned, or they will be removed as directors. Considering whether to preserve the status quo involves considering whether their proposed actions as directors should be permitted to proceed while their appointments are under challenge, or their removal is otherwise sought on the basis of oppressive conduct. I do not accept that an interlocutory injunction cannot (as Mathew appeared to argue) be made to preserve the status quo and prevent steps being taken as a director to terminate an informal agreement because the substantive action attacks the directors’ original (and continued) appointment and not the general ability of the company’s board to terminate an informal contract on reasonable notice.
Paragraph 1(b) of the originating process seeks an order that Mathew and Kim be removed as directors of GQ. In submissions, Anthony confirmed that the removal was sought on the basis that their conduct in the management of GQ involved oppressive conduct, as well as on the basis that there were defects in their appointments. As to the latter, Anthony also confirmed that the argument he will put in support of paragraph 1(a) of the originating process, which seeks a finding that Mathew and Kim have engaged in oppressive conduct, will include a contention that the oppressive conduct includes Mathew’s allegedly wrongful taking of Peter’s shares in GQ in 2011.[10]
[10]Ibid [52]–[53] (citations omitted).
In answer to Mathew and Kim’s submission to the effect that Anthony is estopped from denying that Mathew and Kim were validly appointed as directors of GQ because of an admission made by Anthony in consent orders filed in order to resolve the First Geelong Quarries Proceeding referred to above, the judge noted that she was not taken to any material concerning that proceeding other than the originating application and said:
I cannot conclude for the purposes of this interlocutory application that Anthony is estopped from challenging Mathew and Kim’s appointments …[11]
[11]Ibid [54].
In answer to further submissions made by Mathew and Kim to the effect that the various claims made by Anthony were inconsistent, Anthony submitted that he had only obtained copies of the trust deeds in July 2022, well after the Distribution Proceeding and the Settlement Proceeding had commenced, and that further amendments and a proposed application for consolidation of the proceedings would be made. The judge said:
The underlying issues, including insofar as they arise in the foreshadowed characterisation of oppressive conduct, involve the proper administration of a deceased estate, and the adherence of trustees to the terms of the two trusts. Accordingly, it is not obvious that the positions that Anthony may have previously taken in his personal capacity (and at a time when he was ignorant of the terms of the two trust deeds) preclude Anthony’s apparent change of course.[12]
[12]Ibid [56].
The judge then dealt with the foreshadowed Consolidation Application, which her Honour regarded as relevant for a number of reasons. The judge said:
First, it is clear that Anthony is alive to the tensions — to adopt a neutral expression — between his line of argument advanced in this proceeding and the position he has taken in the Distribution Proceeding and the Separation Proceeding. The Consolidation Application will, of necessity, need to adopt a single, consistent course (cf Mathew’s submission that it would only replace a ‘dog’s breakfast’ spread over three proceedings with a ‘consolidated dog’s breakfast’). Accordingly, I do not consider that the present tension between the positions adopted in this proceeding and the other proceedings should be regarded as fatal to (or even seriously undermining of) the application for interlocutory relief before me.
Secondly, and relatedly, given that the interlocutory injunction is sought until the ‘earlier of’ determination of the Consolidation Application or further order of the Court, and an undertaking has been proffered to bring on the Consolidation Application within two weeks, the interlocutory injunction sought is of limited duration. While Mathew submitted that the grant of an interlocutory injunction would just involve handballing or deferring the issue, in my view, the Court will be in a much better position to assess the strength of Anthony’s claims (and those of his involved corporate entities) once that Consolidation Application has been put on and determined. Accordingly, I do not accept that the Court is in as good a position now, as it will be when the proposed consolidated proceeding has been fully articulated, to assess whether the status quo ought to be preserved until trial, or some other earlier point.
Thirdly, the timing of the Consolidation Application is also relevant for the purposes of assessment of the balance of convenience. There is no evidence that there is a pressing need for GQ to conduct the foreshadowed tender. The reasons Mathew and Kim advance for considering that the present agreement with [Hoare Bros] should be terminated, a tender conducted and a formal agreement concluded with the successful tenderer, are reasons largely based on corporate good order and a desire to see a formal agreement cover certain matters they regard as important. But there is no reason to think that the current informal arrangement cannot continue to be conducted for some time to come, despite the operations of GQ being made practically difficult by the mistrust between the siblings (Mathew and Kim on one side, and Anthony on the other) and that difficulty extending to the quarrying operations involving [Hoare Bros] (with Anthony complaining about [Hoare Bros’] invoices not being paid in a timely way, and Mathew and Kim complaining about the adequacy of the information being provided by [Hoare Bros]).
Fourthly, and turning back to the prima facie case issue, in my view, it would involve the Court adopting an unduly narrow approach to effectively shut its eyes to the existence of the two other proceedings and the foreshadowed Consolidation Application. In my view, having regard to the breadth of the Court’s power to grant an interlocutory injunction pursuant to s 37 of the Supreme Court Act 1986 (Vic) where it is ‘just and convenient’ to do so, and O 38 of the Rules, it is appropriate to have regard to the Consolidation Application and the issues that will come together in a single proceeding if that application succeeds. I also note that the Court can grant interlocutory injunctions before proceedings are issued, having regard to the issues that foreshadowed proceedings will raise. While the analogy ought not be taken too far, the foreshadowed Consolidation Application is, in some ways, akin to a foreshadowed proceeding. Further, the parties’ arguments on this application — including those of Mathew, and Kim, who adopted Mathew’s submissions — travelled extensively into the other proceedings.
The issues to be agitated in the consolidated proceeding (if the Consolidation Application succeeds) include (as the Separation Proceeding is presently framed) the question of whether GQ is part of the ‘Hoare Bros Business’. In the Separation Proceeding, Anthony says it is, and that he reached an agreement with Mathew that Mathew would ‘exit from the Hoare Bros Business’. The relief sought in that proceeding includes an order that H4MC transfer its shares in GQ to Anthony, or his nominee. The defendants in that proceeding (which include Mathew) dispute that GQ is part of the Hoare Bros Business. If Anthony succeeds in those allegations, Mathew will be removed from GQ. As matters stand, Mathew is a director of GQ and, unless restrained, will be in a position to, and proposes to take action to, terminate the agreement of many years’ standing between GQ and [Hoare Bros]. All of which is to say that the interlocutory relief sought in this proceeding also seeks to preserve the status quo in a way that connects with the broader litigious landscape so far as the existing Separation Proceeding, and the foreshadowed Consolidation Application, are concerned.[13]
[13]Ibid [61]–[65] (citations omitted).
The judge then set out her conclusions on the prima facie case and relevantly, and amongst other things, said:
If Anthony (or more accurately, upon joinder, ET as the member of GQ) establishes oppressive conduct arising from Mathew and/or Kim’s actions, the Court’s discretion to grant a remedy under s 233 will be enlivened. While I was not addressed on the remedies that may be ordered if the oppression case were to succeed, the Court’s discretion under s 233 is broad, and the originating process seeks orders removing Mathew and Kim as directors. Quite obviously, if they are removed as directors, they will not be in a position to vote on any resolutions affecting the affairs of GQ’s business, whether concerning the services presently provided by [Hoare Bros] or otherwise. Further, the relief granted upon a successful oppression case may involve steps to unwind and reconstitute the shareholdings in GQ, should the case succeed on the basis of the initial transfer of the 10 shares to Mathew constituting oppressive conduct.
While the oppression case has not been formulated with any precision, and it was somewhat difficult to understand from submissions exactly how it would be put, the lack of specificity in the detail of the case is largely a function of the proceeding having gone into abeyance soon after being issued to permit mediation to be pursued, and the speed with which the application for interlocutory relief had to be put on after Mathew issued the notice calling the board meeting, mere hours after this proceeding was effectively re-enlivened by Anthony’s 1 August 2022 email foreshadowing the Consolidation Application.
While, perhaps due only to the lack of elaboration of the oppression case, and the extensive, sprawling factual canvas, I am unable to describe the prima facie case as a strong one, as set out below, in my view the merits on the balance of convenience are strong, such that a more marginal prima facie case (albeit one that still meets the necessary threshold) still suffices to warrant the grant of an interlocutory injunction.
As stated, I have concluded that a prima facie case in the requisite sense has been established in the present proceeding, even without having regard to the proposed Consolidation Application. However, and in addition, it is, in my view, appropriate to have regard to the wider factual canvas, which includes the Consolidation Application which will, amongst other things, bring in another basis upon which it is contended Mathew will need to exit GQ, namely the so-called Separation Agreement. The fact that the Separation Proceeding includes an issue as to whether or not GQ forms part of the Hoare Bros Business was referred to by Mathew as well as by Anthony. A prima facie case (in the requisite sense) also exists in relation to that matter which, if the foreshadowed Consolidation Application succeeds, will be a question in this proceeding (as consolidated).
Anthony advanced his argument on the basis that the Consolidation Application was relevant to the application for interlocutory relief. The application itself was also framed seeking orders until the determination of the Consolidation Application. Mathew and Kim had the opportunity to address the relevance of the Consolidation Application, but their contentions relating to it focused on a different point: namely to the effect that it appeared a consolidated statement of claim would involve Anthony changing course and no longer conducting the litigation on the same footing he has conducted the other two proceedings for some time. Nevertheless, the argument before me was conducted on the basis that the wider litigious landscape between the siblings was relevant.
The interlinking of this proceeding and the other proceedings is further borne out by Mathew’s and Kim’s affidavit material also delving into aspects of those proceedings.[14]
[14]Ibid [69]–[74] (citations omitted).
The judge then dealt with the balance of convenience and said:
In my view, the balance of convenience overwhelmingly favours the grant of the interlocutory relief. The informal arrangement between [Hoare Bros] and GQ has been operating since in or around 2013. As noted above … there is no pressing need for the quarrying services to be put out to tender in the short-term. Moreover, as Mathew’s counsel frankly stated in submissions, if a tender were to be conducted, [Hoare Bros] ‘will presumably not be the front runner’ and would, in effect, have to undercut any other tenderer to have a prospect of succeeding. Against that, if Anthony (and ET) ultimately prevail at trial (whether in this proceeding in isolation or in a consolidated proceeding), Mathew and Kim will (amongst other matters) be removed as directors. Mathew and Kim will also (if this aspect of the Consolidation Application succeeds) be restrained from exercising their powers as directors of GQ and the proposed independent managers would be appointed directors of GQ. It is relevant to note, in this regard, that Anthony earlier filed an interlocutory process in this proceeding on 21 October 2021. While the hearing of that application was deferred to allow mediation to occur, had it been heard in the ordinary course and had it succeeded, Mathew could not have served the Mathew Notice, which triggered this application for urgent interlocutory relief.
I also take into account that, if no interlocutory injunction were ordered, the writing is on the wall that the informal agreement between [Hoare Bros] and GQ will be terminated and another company will be appointed to perform quarrying services. In view of the impact Anthony says this will have on staff of [Hoare Bros], and the likelihood of those events triggering yet more litigation, possibly involving a third party tenderer (if put on notice of Anthony’s claims), this is not a case in which damages would be an adequate remedy. Rather, the status quo ought to be preserved, at least until the Consolidation Application is on foot and determined.
For these reasons, in my view, it is clear that the lesser risk of injustice lies in preserving the status quo until the hearing or determination of the Consolidation Application, or other order. The worst case for Mathew and Kim (and GQ itself) is that they have to continue to muddle along with the present arrangements, with the attendant aggravations those arrangements entail for both sides, for several months.
Conversely, if the interlocutory relief is not granted, and GQ holds the meeting in question and terminates the informal quarrying services agreement with [Hoare Bros], it is likely that a third party will be formally appointed and common sense would dictate that (given the need for expensive quarrying machinery, hire agreements and staff) a contract with a third party quarrying operator would not be of such short duration that Anthony could procure [Hoare Bros] simply stepping back in if he prevails at trial. In other words, the status quo will not be able to be restored. Further, Anthony deposed that a material percentage of [Hoare Bros’] income is from the quarrying operations at Liberton and that at least some of [Hoare Bros’] staff would have to be made redundant if [Hoare Bros] were to lose the quarrying services work conducted for GQ.[15]
[15]Ibid [76]–[79] (citations omitted).
The orders made by the judge are in the following terms:
OTHER MATTERS:
…
C.The plaintiff undertakes to:
(i)forthwith amend the originating process to join ET Investments (Vic) Pty Ltd as a plaintiff, and H4MC Pty Ltd, Markee Custodians Pty Ltd and Geelong Quarries Pty Ltd as defendants;
(ii)make his application to consolidate proceedings S ECI 2020 02806, S ECI 2020 03342 and S ECI 2021 03781 by 4:00pm on 22 September 2022 in generally the terms set out in the email dated 1 August 2022 exhibited to pages 203–4 of exhibit bundle ‘APH1’ to the Affidavit of Anthony Hoare sworn on 23 August 2022 (the Consolidation Application).
D.The plaintiff, ET Investments (Vic) Pty Ltd and Hoare Bros Pty Ltd undertake that they will abide by any order the Court may make as to damages in case the Court shall hereinafter be of the opinion that the defendants shall have sustained any loss, by reason of these orders, which the plaintiff ought to pay.
THE COURT ORDERS THAT:
1.Until the earlier of determination of the plaintiff’s Consolidation Application, or further order of the Court, or agreement between the parties, the first and second defendants are restrained from:
(a)calling or participating in any meetings of Geelong Quarries Pty Ltd (or voting on any resolutions) for the purpose of terminating the contractual arrangements between Hoare Bros Pty Ltd and Geelong Quarries Pty Ltd;
(b)voting on the resolutions set out in the first defendant’s notice of board meeting dated 1 August 2022; and
(c)proceeding with the meeting proposed to be convened pursuant to the first defendant’s notice of board meeting dated 1 August 2022.
2.The plaintiff has leave to amend the originating process to join ET Investments (Vic) Pty Ltd as a plaintiff, and H4MC Pty Ltd, Markee Custodians Pty Ltd and Geelong Quarries Pty Ltd as defendants.
3.To the extent r 9.07 of the Rules applies to the steps in respect of which leave has been granted under order 2 of these orders, the requirement to comply with that rule is dispensed with.
4.Costs are reserved.
5.There is liberty to apply.[16]
[16]Order of Button J in Re Geelong Quarries Pty Ltd (Supreme Court of Victoria, S ECI 2021 03781, 8 September 2022).

Grounds of appeal

The grounds of appeal[17] are lengthy and overlap. They are in the following terms:
[17]For convenience, the proposed grounds are referred to in our reasons as grounds.
Ground 1 — Wrong test applied — onus reversed
(a)The Learned Primary Judge whilst identifying the correct test for the grant of an interlocutory injunction (J35–8) erred in:
(i) failing to apply the correct test properly or at all;
(ii)applying in substance a different and incorrect test namely does the status quo need to be changed? (J40, 46, 63, 66, 78) which test reversed the onus.
(b)Had the Learned Primary Judge applied the correct test as she identified it, the Learned Primary Judge would have found:
(i)the applicant for interlocutory relief, Anthony Hoare, had not established a prima facie case for the relief he sought.
(ii)the balance of convenience or injustice did not favour the grant of the interlocutory injunction.
(iii)damages would in any event be an adequate remedy.
Ground 2 — Estoppel, res judicata, issue estoppel, abuse of process
(a)The Learned Judge erred in failing to find or hold that Anthony Hoare was estopped and precluded from relying in support of his application for an interlocutory injunction on his contention that Mathew Hoare and Kim McDonald were not validly appointed directors of Geelong Quarries by reason of the following:
(i)In proceeding S ECI 2020 01838 Anthony Hoare sought a declaration that Mathew Hoare and Kim McDonald were not validly appointed as directors of Geelong Quarries and consequential relief.
(ii)Proceeding S ECI 2020 01838 was settled and finally resolved on the basis of, inter alia, an acknowledgment by Anthony Hoare to the Court and Mathew Hoare and Kim McDonald recorded in Other Matters Part A of the Orders of Almond, J. made on 24 June 2020 that Mathew Hoare and Kim McDonald had been validly appointed as directors of Geelong Quarries and otherwise dismissing that proceeding by consent.
(iii)Mathew Hoare and Kim McDonald had acted on such acknowledgment and a dismissal of the said proceeding and conducted the affairs of Geelong Quarries as the majority of its directors for two years thereafter including holding 13 board meetings (J ).
(b)Had the Learned Primary Judge found Anthony Hoare was estopped and precluded from relying in support of his application for an interlocutory injunction from contending Mathew Hoare and Kim McDonald were not validly appointed directors of Geelong Quarries, the Learned Primary Judge would have dismissed Anthony Hoare’s application for an interlocutory injunction.
Ground 3 — No prima facie case for relief[18]
[18]In the application for leave to appeal dated 5 October 2022, ground 3 comprises paragraphs 3, 4 and 5. We have set out the grounds as paragraphs (a)–(f).
(a)The Learned Primary Judge erred in failing to find or hold that Anthony Hoare had failed to demonstrate he had a prima facie case for relief in respect of oppression in relation to the conduct of the affairs of Geelong Quarries, the oppression case being ‘not articulated with any precision’ (J70) ‘somewhat difficult to understand from submissions exactly how it would be put.’ (J70) and ‘there being a lack of elaboration of the oppression case’ (J71).
(b)The Learned Primary Judge should have found:
(i)Anthony Hoare had failed to either articulate or establish a prima facie case of oppression either of Anthony Hoare or his company ET Investments, Anthony Hoare not being a shareholder in Geelong Quarries and ET Investments not then being a party to the proceeding.
(ii)Anthony Hoare's complaints in the proceeding, the Separation Proceeding, the Distribution Proceeding and the complaints asserted in Anthony Hoare's affidavits and in submissions made by his counsel on his behalf (J68) did not and could not constitute the prima facie case of oppression of a member of Geelong Quarries.
(iii)Anthony Hoare's complaint about Mathew Hoare taking the ten shares in Geelong Quarries (J32(c)) which was subsequently transferred half to Anthony Hoare's entity ET Investments and half to Mathew Hoare's entity H4MC Pty Ltd said to be contrary to the will of the late Peter Hoare did not amount to oppression of ET Investments as a shareholder of Geelong Quarries and in any event occurred in or prior to 2013 and could not be sued on in 2022 when it was raised for the first time.
(c)The Learned Primary Judge erroneously conflated harm to Hoare Bros. by the termination of the informal agreement with Geelong Quarries to operate the quarry with harm to ET Investments as a member of Geelong Quarries which might amount to oppressive conduct of the affairs of Geelong Quarries.
(d)The Learned Primary Judge should have found that the harm (if any) to Hoare Brosby termination of the informal agreement to operate the quarry would not and could not constitute oppression of ET Investments as a member of Geelong Quarries and should have dismissed the application for interlocutory relief.
(e)The Learned Primary Judge erred in determining (J69) that Anthony Hoare might be able to formulate a claim for oppression of ET Investments as a member of Geelong Quarries and then granting injunctive relief to enable Anthony to have the opportunity to formulate such a claim.
(f)The Learned Primary Judge should have found there was no prima facie case for oppression relief and dismissed the application.
Ground 4 — Hoare Bros agreement terminable on reasonable notice
The Learned Primary Judge erred in failing to find the relief sought by Anthony was in substance to prevent the termination of the unwritten agreement pursuant to which Hoare Bros. operated the quarry of Geelong being an unwritten agreement could have been terminated on reasonable notice. Its termination was a matter for the Board of Geelong Quarries. No prima facie case for the grant of the interlocutory relief preventing termination by the giving of reasonable notice had been made out.
Ground 5 — Exclusion of relevant evidence
(a)The Learned Primary Judge erred in refusing to admit into evidence the affidavit of Mathew Hoare sworn on 7 September 2022.
(b)Had the Learned Primary Judge admitted the affidavit of Mathew Hoare sworn on 7 September 2022 into evidence, the Learned Primary Judge would have found or ought to have found that the said affidavit put it beyond doubt that Anthony Hoare had acquiesced and participated in the transfer of the shares in Geelong Quarries to ET Investments and H4MC Pty Ltd in 2013 and consequently did not have and could not have a prima facie case for oppression relief in respect of Anthony Hoare and Kim McDonald being two of the three directors of Geelong Quarries.
Ground 6 — Balance of convenience/injustice
(a)The Learned Primary Judge erred in holding or finding (J76) the balance of convenience favoured the granting of the interlocutory injunction.
(b)In so finding or holding the Learned Primary Judge placed weight or undue weight on the following irrelevant matters:
(i)The injunction being in place for a relatively short period of time being until the hearing and determination of the plaintiff's consolidation application (J75);
(ii)That the informal arrangement between Hoare Bros. and Geelong Quarries had been in place since in or around 2013 (J76);
(iii)There was no pressing need for the quarrying services to be put out to tender (J76);
(iv)The worst case for Mathew Hoare and Kim McDonald (and Geelong Quarries itself) is that they ‘have to continue to muddle along with the present arrangements for several months’ (J78).
(c)The matters referred to in part (b) hereof were not relevant to the balance of convenience or injustice or alternatively not sufficiently relevant to tip the balance of convenience or injustice in favour of granting the relief sought.
(d)The Learned Primary Judge should have found the balance of convenience or injustice favoured dismissing the application and confining Anthony Hoare and ET Investments to such remedy as they might have in damages.
Ground 7 — No standing
Further or alternatively the Learned Primary Judge erred in not dismissing the application, inter alia, on the ground that it was commenced and prosecuted by Anthony Hoare, a director of Geelong Quarries, against the other directors of Geelong Quarries, Mathew Hoare and Kim McDonald, and that Anthony Hoare had no standing as a director to bring an oppression claim.
Ground 8 — Absent necessary parties
Further or alternatively the Learned Primary Judge erred in holding or finding a prima facie case for relief had been established and the balance of convenience or injustice favoured the granting of the injunction when the cause of action said to support the grant of the injunction, namely oppressive conduct of the affairs of Geelong Quarries, was raised in the proceeding by Anthony Hoare when no shareholders in Geelong Quarries or Geelong Quarries itself were parties to the proceeding or before the Court when the application was heard and determined.
The critical ground is ground 3 which we will deal with first. The other grounds either fall within ground 3 or can be disposed of very briefly given the nature of the application before the judge and before us.

Ground 3 — Prima facie case

Applicant’s submissions

Mathew submitted that the judge was wrong to conclude that Anthony had established a prima facie case. It was submitted that the case, based on the invalidity of the appointment of Mathew and Kim as directors and their respective entities as shareholders, the focus of the injunction application, was fundamentally misconceived for the reasons adverted to below.

First respondent’s submissions

Anthony submitted that a prima facie case was established and that contested factual matters and complex legal issues were properly matters for trial.

Analysis

The relief presently sought by Anthony challenges both the appointment of Mathew and Kim as directors of GQ and the entitlement of their respective entities to be shareholders of GQ. It also seeks orders under the Act for the oppressive conduct, by Mathew and Kim, of the affairs of GQ, which include the suggested invalid appointments (and the matters referred to at [19] above), but importantly go well beyond such conduct. Although the precise grounds are not fully and precisely articulated in the current pleadings, in each of the three matters, Anthony has sought leave to file a consolidated proceeding to more fully and precisely articulate the basis of his claims, many of which, although going well beyond the affairs of GQ, provide some relevant context. By order made on 12 December 2022, Delany J extended the injunction until the determination of the Consolidation Application or further order. We were told that the Consolidation Application, which is opposed, is to be heard in July 2023. We invited the parties to adjourn this application until after the determination of the Consolidation Application, which both the judge and this Court considered desirable and appropriate, but Mathew opposed this course contending that the matter was urgent. No urgency has been demonstrated. We do not propose to refer to the proposed consolidated pleading.
The current proceedings, despite the lack of precision and potentially inconsistent allegations, matters noted and considered by the judge, relevantly plead and raise two distinct bases for the relief claimed by Anthony, in relation to GQ.
First, by this proceeding, that is the Oppression Proceeding, Anthony claims relief based on the oppressive conduct of Mathew and Kim in relation to the affairs of GQ. Numerous matters (other than the status of Mathew and Kim and their related entities) are identified and deposed to.[19] Needless to say, for every allegation of oppressive conduct, there is an equal and opposite response and allegation deposed to.[20] This clearly demonstrates that there is a dispute between the siblings in relation to, amongst other things, and apart from the status matters referred to, the operation and management of GQ or in the language of the Act, the affairs of GQ. If the claim is made out, the relief available under the oppression provisions of the Act includes the removal of directors and the sale or disposal of shares. There is clearly a prima facie case and it is not the function of the Court on an interlocutory hearing to resolve contested matters or consider complex matters of law. There is no longer an issue of standing (all shareholders have been joined), other than the standing issue referred to below, and if Anthony is correct and establishes oppression, the full range of very broad relief will be enlivened under the relevant provisions of the Act.
[19]Affidavit of Anthony Hoare sworn 11 October 2021, [106]–[268] (‘Anthony October Affidavit’); Affidavit of Anthony Hoare sworn 23 August 2022, [9]–[16], [32], [48].
[20]Affidavits of Kim McDonald sworn 8 December 2021 and 27 August 2022; Affidavit of Mathew Hoare sworn 26 August 2022.
In oral submissions, Mr Bick KC for Mathew, submitted that, in light of the second basis referred to below, Anthony was in the same position as Mathew (that is, not entitled to be registered as a shareholder) and therefore lacked standing. It was further submitted that this basis for relief was not specifically dealt with by Anthony or the judge, or only dealt with in the context of the validity of the appointment of Mathew and Kim as directors, or the entitlement of their entities to be registered as shareholders (all matters involving the second basis referred to below) and not the more general and unrelated acts of oppression referred to. We do not accept either submission.
In relation to standing, in the circumstances of this case it is not necessary to establish standing as a preliminary threshold or matter. Rather, it is more appropriately dealt with as part of the trial.
The second basis is entirely unconvincing. This basis for relief was clearly considered by the judge as part of her Honour’s overall consideration of the sufficiency of the prima facie case[21] and notwithstanding the almost exclusive focus on the second basis.
[21]See [30] and [34] above. Submissions on this discrete ground were also made by Anthony (see [86(c)] of his submissions dated 29 August 2022).
The second basis relies on allegations made in the other proceedings, to the effect that Mathew and Kim are not entitled to act as directors of GQ and their respective entities are not entitled to be registered as shareholders of GQ. Again, if the allegations are made out they would not have had the power or ability to pass the proposed resolution, the very situation that the injunction seeks to protect. The allegations are contested, including a contention that Anthony is estopped from raising the issue as to the validity of the appointment of Mathew and Kim as directors and further, as the rejected affidavit of Mathew seeks to explain, Anthony’s knowledge of the movement of the shares in GQ.
These and other matters of fact and law were raised by Mathew in support of his contention that there was no prima facie case. As noted, these matters of fact and law, which are complex, inter-related and not fully articulated, are best dealt with at trial. A cause of action or prima facie case only has to be identified. The strength of the case need not be tested. The judge referred to Australian Broadcasting Corporation v O’Neill[22] where the High Court said that ‘it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial’ and that it was not necessary to demonstrate that it is more probable than not that the plaintiff will succeed at trial.[23]
[22](2006) 227 CLR 57; [2006] HCA 46.
[23]Ibid 82 [65] (Gummow and Hayne JJ); Reasons, [37].
The critical factual matters underpinning the submission, and repeatedly emphasised by Mr Bick KC by reference to the transcript and affidavits sworn by Anthony, relate to Anthony’s knowledge and involvement in all of the matters relevant to his challenge to the appointment of Mathew and Kim as directors of GQ and their entities as shareholders of GQ. The contended consequence, it was submitted, was that there is, on this second basis, no cause of action. We do not propose to rehearse all of the matters raised. Given the nature of the application before us and the fact that the matter may proceed to trial, it is sufficient to say that the submission is far too simplistic, and ignores other relevant facts and a proper legal analysis of the consequences that may follow from such knowledge and involvement. The most important other fact is when Anthony became aware of what we have called the family arrangements. Anthony says it was in July 2022, although this is contested. The legal consequences that follow from parties, even all parties, departing from agreed arrangements (whether arising out of contracts, trusts or wills) requires proper consideration of all of the facts and the relevant law, matters that are not suitable for determination at an interlocutory stage, beyond identifying that there is a prima facie case.
In relation to this second basis, being the primary focus of the injunction application and the application before us, the judge, not surprisingly in the circumstances, concluded that because of the ‘extensive, sprawling factual canvas’[24] (which included the first basis), the case, although marginal and not strong, nevertheless met the required threshold. None of the matters referred to before us affect this conclusion, with which we agree.
[24]Reasons, [71].
If we are wrong on this second basis, we regard the first basis, although dealt with by the judge in a more limited way,[25] as constituting a prima facie case under a very orthodox application of the very broad provisions of the Act.
[25]See [31] above.
Finally, we would, in any event, be prepared to grant an injunction under s 37 of the Supreme Court Act 1986 on the basis that it is ‘just and convenient to do so’. In the peculiar circumstances of this case, as identified above, including the haste with which the matter came on for hearing, the proposed consolidation application, the lack of urgency, the timing of the Notice and the short duration of the injunction, it is desirable, just and convenient that the status quo remains.[26]
[26]Section 37 was referred to by the judge (see [33] above).

Ground 6 — Balance of convenience

Applicant’s submissions

Mathew effectively conceded that if there is a prima facie case, the balance of convenience would favour Anthony.

First respondent’s submissions

Anthony submitted that the lowest risk of injustice certainly favoured the grant of the injunction for the reasons given by the judge.

Analysis

The balance of convenience is easier and clearly favours the grant of the injunction as was properly conceded by Mathew. The injunction, although extended by Delany J, is of limited duration, and Mathew is entitled to apply to vary or set aside the injunction should circumstances change.

Grounds 1, 2, 4, 5, 7 and 8

There is no substance in any of these grounds and they may be disposed of very briefly.
In relation to ground 1, we do not accept that the judge failed to apply the correct test for the reasons set out in relation to ground 3. By referring to and properly dealing with the status quo, within the context of the application, the judge did not reverse the onus as contended.
In relation to ground 2, we do not accept that, in the circumstances, the judge erred in failing to make a finding of estoppel as contended. First, the issue was contested and it is not the function of the Court on an interlocutory injunction to resolve complex matters of fact and law. Secondly, and in any event, apart from the issue that the estoppel point was directed to the validity of the appointment of Mathew and Kim as directors, there was another basis upon which to conclude that there was a prima facie case: that is, the very broad relief available under the oppression provisions of the Act, which relevantly includes the removal of directors and the sale of shares.

In relation to ground 4, the fact that the agreement is terminable on reasonable notice is not to the point. The desirability of such termination and the power to do so are very much live issues in the oppression case and the broader issues between the parties. As previously noted, no adequate reason has been given for the termination. It is also not without some relevance that the termination will have a substantial negative impact upon Hoare Bros (effectively Anthony’s company) and its 43 employees,[27] in circumstances where it has not been demonstrated that GQ will be in any better position.[28] The notion that we want to do it because we can, does not serve the best interests of GQ, smacks of being tactical, and may well itself constitute oppressive conduct in the affairs of GQ, although we express no opinion in this regard.
[27]Anthony October Affidavit, [69].
[28]In the application for leave to appeal dated 5 October 2022, [4] refers to the Hoare Bros Quarrying Agreement as an ‘onerous contract’. Other than the agreement not being in writing, no submission was made in relation to this bold and extravagant statement. The same applies to [5(c)] in relation to ‘significant injustice’.
In relation to ground 5, we do not accept that the judge erred in excluding the relevant evidence for the reasons given by the judge in the postscript to the reasons. We note further that no application was made to re-open the case in order to tender, what was contended to be, relevant further evidence. In any event, the extent of the relevant knowledge of Anthony in relation to the movement of the shares in GQ, and the legal consequence of such knowledge, are properly matters for trial as referred to earlier.
In relation to grounds 7 and 8, the matter of standing and necessary parties was properly cured by the undertaking. All necessary parties have now properly been joined. In any event, all parties are properly before us and if necessary we would, in any event, make the same orders as the judge for the very compelling reasons given by her Honour with which we respectfully agree.

Disposition

For these reasons, Mathew has failed to persuade us that the judgment is attended with sufficient doubt. It is not, at the very least, on the ground that the first basis referred to above constitutes a proper and sufficient prima facie case for the reasons given. Further, and more importantly, Mathew has not established that there is serious injustice. An injunction for a few months[29] (with liberty to vary or discharge) in circumstances where Mathew and Kim are suddenly concerned with good governance in relation to a contract that has been on foot for over a decade, does not come anywhere near constituting an injustice, let alone a serious injustice, particularly given the opportunistic circumstances relating to the timing and service of the Notice. The requirements for leave to appeal from an interlocutory decision in a civil case, are, as emphasised by the authorities, necessarily very stringent. The requirements have not been met.
[29]It is highly relevant that the injunction was not granted until the hearing and determination of the trial, but rather until the determination of the Consolidation Application (or further order), and in respect of which an undertaking was given as part of the price of the injunction. This was, with respect, an entirely suitable balance and, without detracting from the weak but sufficient prima facie case, enables the issues to be more fully and precisely articulated when the Consolidation Application is determined. Mathew has no cause for complaint.
Accordingly, leave to appeal is refused.
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[2023] VSCA 73

5 April 2023