In the matter of Optimisation Australia Pty Ltd (Costs)

[2018] NSWSC 280

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280
Hearing dates:	6 March 2018
Date of orders:	07 March 2018
Decision date:	07 March 2018
Jurisdiction:	Equity - Corporations List
Before:	Brereton J
Decision:	See para [41]
Catchwords:	CORPORATIONS – members remedies – oppression – compulsory share purchase order – price – whether price should bear interest from date when member excluded and valuation struck – where dividend paid in the meantime – held, interest should be allowed, but credit given against it for dividend   COSTS – apportionment – interest on costs – gross sum costs
Legislation Cited:	(CTH) Corporations Act 2001, ss 233, 1317H (NSW) Civil Procedure Act 2005, s 100, s 101, Sch 6 cl 21 (NSW) Courts and Other Justice Portfolio Legislation Amendment Act 2015 (NSW) Uniform Civil Procedure Rules, r 42.1
Cases Cited:	Chaina v Presbyterian Church (NSW) Property Trust (No 26) [2014] NSWSC 1009 Commercial Indemnity Pty Limited, In the matter of [2016] NSWSC 1125 Cretazzo v Lombardi (1975) 13 SASR 4 Cross v Queensland Newspapers Pty Ltd (No 2) [2008] NSWCA 120 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 Hancock v Rinehart (Lump sum costs) [2015] NSWSC 1640 Hawes v Dean [2014] NSWCA 380 Hawkesbury District Health Service Ltd v Chaker (No 2) [2011] NSWCA 30 Hughes v Western Australia Cricket Assn (Inc) (1986) ATPR 40–748 Idoport Pty Ltd v NAB [2005] NSWSC 1273 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 Jelbarts Pty Ltd v McDonald [1919] VLR 478 Mobile Innovations Ltd v Vodafone Pacific Ltd [2003] NSWSC 423 Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 Optimisation Australia Pty Limited, In the matter of [2018] NSWSC 31 Oshlack v Richmond River Council (1998) 193 CLR 72 Poulos v Eberstaller (No 2) [2014] NSWSC 235 Roads and Traffic Authority (NSW) v McGregor (No 2) [2005] NSWCA 453 Sydney Ferries v Morton (No 2) [2010] NSWCA 238 Tarabay v Leite [2008] NSWCA 259 Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) (2011) 288 ALR 385; [2011] NSWCA 256 Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201 Waterman v Gerling (Costs) [2005] NSWSC 1111 Waters v PC Henderson (Australia) Pty Ltd (1994) 254 ALR 328 Williams v Stanley Jones & Co Ltd [1926] 2 KB 37
Category:	Costs
Parties:	Brian Kearney (P) Optimisation Australia Pty Limited (D1) Gary Williams (D2) Susan Williams (D3) Sharmark Pty Limited (D4) Orchard Office Services Pty Limited (D5)
Representation:	Counsel: B. Kearney (in person) (P) M. P. Cleary (Ds)   Solicitors: Self-represented (P) Brown Wright Stein (Ds)
File Number(s):	2013/153589

Judgment

1. On 31 January 2018, I published reasons for judgment[1] in which I concluded that there should be orders to the effect that:

   1. In the matter of Optimisation Australia Pty Limited [2018] NSWSC 31

1. Pursuant to Corporations Law s 233, Gary, Susan and Sharmark purchase Brian’s shareholding in Optimisation, for a price of $725,000, adjusted for the balance of his loan account, and the loan account discharged;

2. Pursuant to Corporations Law s 1317H:

1. Gary pay compensation to Optimisation in the sum of $66,656.33 (being the amount of $2,084.33 overpaid to him, and $64,572 overpaid to Susan during the period 2007 to 2011);

2. Gary and Susan pay compensation to Optimisation in the sum of $85,204.86 (being the amounts of $26,000 and $29,166.62 overpaid to Susan while in England, and $30,038.24 overpaid annual leave); and

3. Gary and Orchard pay compensation to Optimisation in the sum of $208,618.75 (being the amount of the overpayments to Orchard);

4. Optimisation pay Brian $8,333.33 (being the additional notice to which Brian was entitled);

3. The cross-claim be dismissed

2. In order to afford counsel an opportunity to consider the reasons before formal orders were made, to allow an opportunity to review my calculations and identify any matters which might have been overlooked, I directed that the plaintiff bring in short minutes of orders to give effect to the judgment at which time any such matters, the question of costs, and any other consequential issues, might also be addressed.

3. The following issues now require resolution:

1. Whether interest should be included in the purchase price for Brian’s shareholding, the judgment against Optimisation for additional notice, and the compensation orders on the derivative claims;

2. The amount of Brian’s loan account to be adjusted against the purchase price;

3. Whether the judgments in favour of Optimisation on the derivative claims should be stayed;

4. Costs, including whether an order should be made for interest on costs, and liberty reserved to apply for a gross sum costs order; and

5. Whether various interlocutory injunctions should be terminated.

Interest

4. Brian submits that pre-judgment interest should be added to the sum of $725,000, which I have found is the proper price for the acquisition of his shareholding, at the pre-judgment rates from April 2013, which was the date of valuation.

5. The rationale of the selection of April 2013 as the valuation date was that it was then, as a condition of the termination of his employment, that the defendants ought to have offered to acquire Brian’s interest at valuation. But for the question of dividends, to which I shall come, he has been out-of-pocket, and the defendants have had the benefit during that period, of the funds which ought to have been paid to Brian. On ordinary compensatory interest principles, it is appropriate to reflect that by including interest since April 2013 in the purchase price.

6. At the rates applicable to pre-judgment interest under Civil Procedure Act 2005, s 100 referred to in Practice Note SC Gen 10, interest on $725,000 from 6 April 2013 to 6 March 2018 amounts to $218,483.22. I accept that an oppression suit is not a proceeding for the recovery of money within s 100, but I do not doubt that in the exercise of the court’s wide discretionary powers to do justice under Corporations Act, s 233, it can include in the price payable a component, in the nature of interest, that reflects the time value of money. Mr Cleary submitted that there was no evidence of commercial rates of interest, and that is so; but one of the purposes of the Practice Note is to avoid the need for parties claiming interest to prove in each case an appropriate rate, and while it is true that the prescribed rate includes a component to incentivise debtors to pay, not dissimilar considerations apply in the present context: in principle, delay in paying money to a person who is entitled to receive it, on whatever basis, is to be discouraged.

7. However, since April 2013 Optimisation has paid Brian dividends, amounting to $200,200, which he would not have received had his shareholding been acquired when it ought to have been; those dividends have been applied to his loan account in reduction of the amount for which he is indebted to Optimisation. It is plain that he cannot have both interest (on the footing that he should have been bought ought in April 2013), and retain the dividends (which he received only because he remained a shareholder after 2013). But he should have one or the other. As to which, in principle reliance on dividend would leave the oppressed minority shareholder at the mercy of the majority during the period in question, as to whether any and if so what dividend might be paid. For that reason, I prefer to use interest. Accordingly, the price payable to Brian should be adjusted to include a component which reflects the difference between interest of $218,483.22 and the dividends which he has received of $200,200, being $18,283.22. That means that the purchase price is $743,283.22.

8. Again, on ordinary compensatory interest principles, interest should be included in the judgments in favour of Optimisation in respect of the derivative claims.

9. In respect of the judgment in favour of Brian against Optimisation on his employment claim, it was submitted that interest should be denied on the basis that he had been offered but not accepted a greater sum than he recovered. However, while that may be relevant on the question of costs, it does not alter what is in the context of interest the fundamental point that the money which should have been in Brian’s hands remained in the hands of Optimisation; an unaccepted offer, albeit a generous one, is not equivalent to payment. Interest should be included in this judgment also.

Staying the compensation orders

10. To the extent that the derivative claims have succeeded, their impact on Optimisation has been taken into account in the adjustments made in the valuation process, with the result that the price payable to Brian is calculated on a basis that assumes that the adverse impact of the matters complained of has been remedied. Upon completion of the acquisition of Brian’s shareholding, Gary and Susan will be the only persons beneficially interested in Optimisation. So long as that remains the position, there does not appear to be any utility in enforcing the personal liability of the other defendants to Optimisation. It is conceivable that that may change if, for example, Optimisation were to go into liquidation, but there is no present suggestion of that. Once he is bought out, Brian has no further interest in the matter. For those reasons, the operation of the compensation orders should be stayed indefinitely.

Costs

11. Brian sought an order that the defendants pay the whole of his costs, on an indemnity basis. He also sought an order for interest on costs, and leave to apply for a gross sum costs order. The defendants submitted that they should be liable for only 50% of Brian’s costs, on the ordinary and not the indemnity basis. They opposed an order for interest on costs, and they opposed liberty to apply for a gross sum costs order.

12. As the defendants acknowledge, the general rule is that the costs follow the event, unless it appears that some other order should be made,[2] and this general rule, in the context of the compensatory purpose of a costs order, founds a “reasonable expectation” on the part of a successful party of being awarded costs against the unsuccessful party. [3]

    2. (NSW) Uniform Civil Procedure Rules r 42.1.

    3. Oshlack v Richmond River Council (1998) 193 CLR 72 at [67] and [134].

13. Where litigation involves multiple issues, the ultimately successful party may have failed on one or a number of those issues. Given that “the event” is not necessarily limited to the final overall outcome, but includes individual issues in the proceedings,[4] the question often arises whether there should be a departure from the general rule where the ultimately unsuccessful party has succeeded (and, as a corollary, the successful party has failed) on one or more substantial issues. The court does not usually apportion costs between issues, but acts on the outcome of the proceedings as a whole, without attempting to differentiate issues on which the party may not have succeeded. [5] However, a successful plaintiff who has failed on certain issues may be deprived of costs on those issues, or even ordered to pay the defendant’s costs of them. [6] But this course, while open, is one on which the court embarks with hesitation; the authorities[7] reflect consistent themes that (1) justice may not be served if parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case; but (2) it may be appropriate to apportion costs where a clearly definable and severable issue, on which the otherwise successful party failed, has occupied a significant part of the trial. [8] The severability of one issue on which the successful party failed is not, without more, sufficient to warrant departure from the general rule. [9] However, the court may depart from the general rule if the ultimately unsuccessful party succeeds on significant issues,[10] particularly if those issues are clearly dominant or separable. [11]

    4. Williams v Stanley Jones & Co Ltd [1926] 2 KB 37; Jelbarts Pty Ltd v McDonald [1919] VLR 478.

    5. Cretazzo v Lombardi (1975) 13 SASR 4 at [12].

    6. Hughes v Western Australia Cricket Assn (Inc) (1986) ATPR 40–748 , 48,136.

    7. Mobile Innovations Ltd v Vodafone Pacific Ltd [2003] NSWSC 423 at [4]; Cretazzo v Lombardi (1975) 13 SASR 4 at [16]; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261; Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201; Waters v P C Henderson (Australia) Pty Ltd (1994) 254 ALR 328; NRMA Ltd v Morgan (No 3) [1999] NSWSC 768

    8. Waterman v Gerling (Costs) [2005] NSWSC 1111 at [10].

    9. Hawkesbury District Health Service Ltd v Chaker (No 2) [2011] NSWCA 30 at [14]

    10. James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [31]–[36]; Sydney Ferries v Morton (No 2) [2010] NSWCA 238 at [10]–[12]; Roads and Traffic Authority (NSW) v McGregor (No 2) [2005] NSWCA 453 at [20]; Cross v Queensland Newspapers Pty Ltd (No 2) [2008] NSWCA 120 at [13]; Tarabay v Leite [2008] NSWCA 259 at [76].

    11. Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 at [63]–[66]; Waters v PC Henderson (Australia) Pty Ltd (1994) 254 ALR 328. An issue or group of issues is “clearly dominant” when it is clearly dominant in the proceedings as a whole (Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) (2011) 288 ALR 385; [2011] NSWCA 256, Campbell JA (Macfarlan JA and Young JA agreeing) at [107].

14. Those principles were worked out when litigation was dominated by common law claims for damages for personal injuries in motor vehicle accidents, where the supposedly separate issue was contributory negligence. In modern complex commercial litigation, a more nuanced approach is required, particularly lest the promise of a successful party recovering costs leads to it increasing the cost of litigation by running issues on which it fails. A costs order should reflect the relative responsibility of the parties for the costs incurred in litigation, and it is difficult to see, in particular, why an ultimately unsuccessful defendant should have to bear the plaintiff’s costs of issues which the plaintiff abandoned or on which the plaintiff failed.

15. Thus the starting point is that the plaintiff, having been successful, is entitled to his costs, and it is for the defendants to establish a basis for departing from that rule. [12] However, as the defendants submitted:

1. the plaintiff abandoned many issues, after they had been addressed by affidavit and documentary evidence, shortly before the trial;

2. the plaintiff failed on some issues at trial;

3. although the plaintiff succeeded on the reasonable notice issue, he failed (for want of jurisdiction) on the other aspects of his employment claim, and such success as he attained was markedly inferior to an offer of $25,000 which had been made, on a Calderbank basis, on 18 September 2014.

   12. Waterman v Gerling (Costs) [2005] NSWSC 1111 at [10].

16. Because of the complexities which orders that one party pay the other’s costs of specified issues (and that the other party pay the first party’s costs of other issues) create for assessors, it is undesirable to have multiple costs orders defined by reference to issues arising out of the one set of proceedings, and preferable to make a single order that covers all of the issues, on what has often been referred to as a “broad axe” percentage basis. [13] The nature and extent of the apportionment is discretionary, and made on an overall general impression rather than by precise identification and quantification of the issues. [14]

    13. In the matter of Commercial Indemnity Pty Limited [2016] NSWSC 1125

    14. Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [11]; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at [272]; Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) (2011) 288 ALR 385 at [84]; Hawes v Dean [2014] NSWCA 380.

17. It is appropriate to have regard to the overall outcome of the proceedings as well as the relative success of the parties on an issue by issue basis. The defendants adduced some evidence to the effect that the plaintiff had succeeded on half and abandoned or failed on the other half of the issues raised in his pleadings. There is no doubt that the defendants would necessarily have incurred significant costs on many of the issues which the plaintiff either abandoned, or failed on. In addition, though the plaintiff achieved a measure of success on his employment claim – to the extent of one month’s additional notice which, with interest amounts to $10,804.68 – that was far less than the $25,000 which he had earlier been offered.

18. On the other hand, this analysis overlooks that the plaintiff succeeded on the dominant issue – namely oppression – and, to a large extent, on the associated valuation issues. He succeeded on the overwhelming proportion of the issues that ultimately went to trial. He obtained a compulsory purchase order, at a price substantially greater than the defendants had ever offered. Moreover, the defendants on the eve of the trial abandoned almost the whole of their cross-claim against the plaintiff, by which they had sought to recover in excess of $1 million from him. When those matters are considered, the defendants should be regarded as responsible for well in excess of 50% of the costs of the proceedings.

19. The plaintiff relied on two Calderbank offers of compromise, the first made on 2 September 2015 and the second on 29 February 2016.

20. The essential terms of the former, which was expressed to be open for `14 days until 16 September 2015, were:

1. Payment to the plaintiff of $838,855 in return for transfer of his shares;

2. Proceedings and cross-claim otherwise dismissed;

3. Second and third defendant to pay the plaintiff’s costs on the ordinary basis as agreed or assessed.

21. The sum of $838,855 referred to in that offer, even without including the value of discharge of the plaintiff’s loan account if that were implicit in the offer, plainly exceeds the amount the plaintiff has recovered.

22. The essential terms of the latter, which was open only for only one day until 1 March 2016, were:

1. Judgment for the plaintiff against Optimisation for $41,466 on the employment claim;

2. Payment to the plaintiff of $705,167 in return for transfer of his shares;

3. All existing directors loan accounts in Optimisation to be repaid via dividends, “with any balance to be distributed in accordance with each party’s proportionate shareholding as at 28 February 2016, with profit of Optimisation to be calculated as at that date;

4. Proceedings and cross-claim otherwise dismissed;

5. Second and third defendant to pay the plaintiffs costs on the ordinary basis as agreed or assessed.

23. Because (1) would have involved a substantially greater judgment against Optimisation than the plaintiff has recovered, and (3) would have involved repayment of the loan account in addition to the purchase price of $705,167, and a further distribution of dividend - that offer was not more favourable to the defendants than the ultimate outcome. Even if it had been, the brief time for which it was open would have been a significant factor in considering whether it would have been as a matter of discretion an appropriate basis for an indemnity costs order where the rules of court relating to offers of compromise had not been invoked.

24. Accordingly, the offers are not “relevant”, as the plaintiff has not bettered them. That is not to say that they were not reasonable attempts to settle the proceedings, but that is not the question; it cannot be said that it was unreasonable to reject them.

25. The defendant’s Calderbank offer in relation to the plaintiff’s employment claim was made on 18 September 2014, immediately on the heels of the resolutions of that date, which contained many oppressive features and in respect of which it was necessary for the plaintiff to seek urgent injunctive relief. It was open for 12 days. Although a similar offer was included in another Calderbank offer of 29 January 2016, it there formed an unseverable part of an offer of compromise of the whole proceedings.

23. I have taken into account that:

1. The plaintiff failed to better the defendants’ offer in respect of the employment claims, and failed on significant aspects of them;

2. The plaintiff has put the defendants to significant costs of defending claims which were ultimately abandoned or on which the plaintiff failed;

3. To a substantial extent, the plaintiff’s exclusion from Optimisation contributed to his pursuit of some of the abandoned or unsuccessful claims, and the court must strike a balance between permitting litigants to canvas all issues, while not rewarding them for unreasonable conduct.

27. Bearing in mind that the defendants will bear their own costs, even of the issues which were abandoned or on which they succeeded, I have concluded that an order that the defendants pay 75% of the plaintiff’s costs (on the ordinary basis) would broadly and properly reflect the relative responsibility of the parties for the costs of the proceedings.

28. As to interest on costs, Civil Procedure Act, s 101(4) now provides that, unless the court otherwise orders, interest is payable on an amount payable under an order for costs; and s 101(5) provides that such interest is to be calculated at the prescribed rate (or such other rate as the court orders) as from the date the order was made (or any other date the court orders). This amendment, which was introduced by the (NSW) Courts and Other Justice Portfolio Legislation Amendment Act 2015, took effect from 24 November 2015, and does not extend to proceedings commenced before that date. [15] Accordingly, it does not apply to the present proceedings, because they were commenced before 24 November 2015. However, it represents a policy judgment as to what the default position should be, in the absence of reason to depart from it. Departure may well be appropriate in protracted litigation, where costs liabilities have been paid and/or incurred and a party and/or its solicitors have been out of pocket for a significant period - bearing in mind that as between solicitor and client the unpaid solicitor is typically entitled to recover interest from the client. However, there is no evidence as to the arrangements between Brian and his solicitors, or what if any costs have so far been paid or incurred, and whether anyone is out-of-pocket. Moreover, Brian was self-represented for a significant period during the pendency of the proceedings. In my view, there is good reason to give effect to the policy now reflected in the current form of s 101(4), but no basis has been established, by evidence or argument, for going any further.

    15. See (NSW) Civil Procedure Act 2005, Sch 6, Pt 8, cl 21.

29. As for a gross sum order, the initial reluctance of courts to make such orders has increasingly dissipated. [16] However, the early recognition that they may be appropriate in large cases, where the assessment of costs would likely be protracted and expensive,[17] is relevant here. So is the desirability of avoiding “satellite litigation” about costs.

    16. Poulos v Eberstaller (No 2) [2014] NSWSC 235; Chaina v Presbyterian Church (NSW) Property Trust (No 26) [2014] NSWSC 1009 at [43]–[57].

    17. Idoport Pty Ltd v NAB [2005] NSWSC 1273; see also Hancock v Rinehart (Lump sum costs) [2015] NSWSC 1640 at [1].

30. In my view the potential quantum of the costs liability, the complexity of the proceedings, and the likely costs and delay that would be involved in the assessment process, make this prima facie a paradigm case for a gross sum order. The defendants’ opposition to a gross sum order was founded on the contention that such an application would prolong the already protracted litigation between the parties. In my view, it will do so no more, and potentially less, than proceedings for costs assessment. It will have the advantage that the exercise is conducted by, or under the supervision of, a judge already familiar with the proceedings. It will minimise the potential for further satellite litigation, reviews and appeals in costs assessment proceedings. And the Court could still, if it considers it appropriate, refer the question to an assessor or referee for inquiry and report.

Interlocutory orders

31. The defendants sought an order that the orders made on 22 September 2014 restraining the Defendants from giving effect resolutions 1, 5 and 8 of the meeting of members and directors held on 16 September 2014 be set aside.

32. Although - given that it was concluded that the plaintiff was entitled to an order for the acquisition of his share at as April 2013 - it was unnecessary to take this matter further, and although the fact that implementation of those resolutions was restrained meant that they did not in fact have an adverse impact, the substantive judgment concludes, in effect, that they were oppressive and contrary to the interests of the members as a whole. There is no reason why the injunctions restraining their implementation should be now set aside. They do not prevent Optimisation re-employing or remunerating Gary in the future, if it wishes to do so.

33. The defendants sought an order that the orders made on 22 September 2014 ordering the Defendants to lodge the First Defendant's original company corporate register folder and original documents to the Supreme Court exhibits office be set aside and the defendants are to collect the First Defendant's documents from the Supreme Court exhibits office. There is no reason why that order should be set aside, but now that the books are no longer required for the purposes of evidence, it is appropriate that the company register be returned to those with management of the company. The plaintiff suggested that this should be deferred until the purchase of his shares has been completed, but the company register is not security for his claims, and there is no sufficient reason for the further retention of these documents.

34. The defendants sought an order that Order 4 of the orders made on 10 March 2014, and varied on 15 November 2016, restraining the First Defendant from paying any invoice, other expense or liability in excess of $5,000 other than regular salary or wages and emoluments of employees, except having given 7 days’ written notice by email to the plaintiff’s solicitor, O’Neill McDonald, be set aside. Considerations of practicality (given that the plaintiff is now self-represented), and the circumstances that he will soon have no further interest in Optimisation, that his judgment against Optimisation (as distinct from his rights against other defendants) is for only a small sum, and that the freezing order referred to below will provide sufficient protection for his rights against Gary, Susan and Sharmark, warrant the termination of this order.

35. The defendants also sought an order that upon completion of the share sale, the freezing orders made on 15 November 2016 be set aside. That order was in the following terms:

1. Upon the plaintiff, by his counsel, giving to the Court the usual undertaking as to damages, until further order, the second and third defendants be restrained from, by themselves, their servants or agents removing from Australia, disposing of, diminishing, encumbering or otherwise adversely dealing with the proceeds of sale of the property situated at, and known as, 18 Alexandria Parade, South Coogee, being the land comprised of folio identifier 4/448956 to the extent of $2.5 million, except by way of deposit of the same to an interest bearing controlled moneys account in the name of, and under the control of, their solicitor on the record in these proceedings, such amount not to be disbursed except to be applied to the purchase of unencumbered real property in the name of the second and third defendants, or either of them, after 7 days' notice in writing to the plaintiff's solicitor and any such real property to remain unencumbered or be otherwise with the consent of the plaintiff's solicitor.

36. The plaintiff opposed that course on the basis that he would have a substantial costs entitlement, and sought that the restraint be enlarged to prohibit further encumbering the property to an extent that would jeopardise his ability to recover his costs.

37. The freezing order was made in circumstances where the sale of the property appeared imminent, and was intended to cover the principal sum of the potential order in favour of the plaintiff, interest and costs. Once the share sale is completed, the plaintiff will still have an established but as yet unquantified right to recover costs. He has said that his costs may be in the order of $1.2 million - which seems, even for this litigation, to be a very large sum. In any event, as already indicated, his entitlement is to only a percentage of the total costs. In my view, preservation of $1 million will adequately protect his interest after the share sale is completed, and will occasion no apparent hardship to the defendants.

38. However, the property is not currently being marketed for sale. In the absence of any apparent countervailing hardship to the defendants, reservation of sufficient equity to meet the plaintiff’s costs entitlement warrants that further encumbrance to an extent that would interfere with his ability to enforce that entitlement be prohibited. It seems that the property was passed in at auction in late 2016 at $6.4 million. It is currently mortgaged to the extent of $876,000. Most reputable lenders will lend to a reasonable borrowing limit of 70%, which would be approximately $4.5 million. After completion of the share sale, the plaintiff’s interest will be adequately protected if encumbering the property beyond $3.5 million is prohibited.

39. Accordingly, the freezing order made on 15 November 2016 should be varied:

1. with immediate effect, to substitute reference to the plaintiff for references to the plaintiff’s solicitor, and so that the second and third defendants are also restrained from further encumbering the property to the extent that the total amount secured thereon exceeds $2 million; and

2. with effect from the completion of the Share Sale, so that the limit of the amount the subject of the restraint is reduced to $1 million, and the limit of total encumbrances is increased to $3.5 million

40. These conclusions are reached on scant evidence, both as to the quantum of the plaintiff’s potential costs entitlement, and as to their impact on the defendants, in circumstances where the orders I propose would appear to impose no short-term hardship on the defendants. Should further evidence emerge as to the quantum of the plaintiff’s costs entitlement, or of hardship to the defendants, or the circumstances otherwise change, the orders may be varied according to the circumstances.

Orders

41. The court orders and gives judgment that:

1. Pursuant to (CTH) Corporations Act 2001, s 233, the Second, Third and Fourth Defendants purchase the Plaintiff’s 350 ordinary and 35 D class shares in the First Defendant (“the Shares”) for a price of $743,283.22 (“the Purchase Price”), and to give effect thereto (“the Share Sale”):

1. by 20 March 2018 the Second, Third and Fourth Defendants, at their own cost, submit to the plaintiff draft transfers of the Shares to or as directed by them, and any other documents reasonably required to give effect to such transfers (“the Transfer Documents”);

2. on 6 April 2018 at 10.00am at the Law Society settlement rooms (or such other time and place as the parties may agree), upon delivery to them by the plaintiff of the Transfer Documents duly executed by him, the Second, Third and Fourth Defendants deliver to the plaintiff a bank cheque payable to or as directed by the plaintiff in the sum of $635,955.72 (being the Purchase Price less the amount of the Plaintiff’s loan account balance of $107,327.50), and a deed executed by the first defendant under seal acknowledging receipt of the sum of $107,327.50 in full satisfaction and repayment of the plaintiff’s loan account with the first defendant and releasing all and any liability of whatsoever nature he may have to the first defendant;

3. the Second, Third and Fourth Defendants indemnify and keep indemnified the plaintiff in respect of any liability for stamp duty in respect of the Transfer Documents;

4. there be liberty to apply on two days’ notice in the event of any difficulty arising in the implementation of this order.

2. the First Defendant pay the Plaintiff the sum of $10,804.68 (being $8,333.33 and interest of $2,471.35).

3. Pursuant to Corporations Act, s 1317H, the Second Defendant pay the First Defendant the sum of $95,878.26 (being $66,656.33 and interest of $29,221.93).

4. Pursuant to Corporations Act, s 1317H, the Second and Third Defendants pay the First Defendant the sum of $110,532.35 (being $85,205.86 and interest of $25,326.49).

5. Pursuant to Corporations Act, s 1317H, the Second and Fifth Defendants pay the First Defendant the sum of $300,999.70 (being $208,618.75 and interest of $92,380.95).

6. The operation of the judgments in paragraphs (3), (4) and (5) be indefinitely stayed.

7. The First Defendant's original company corporate register folder and original documents lodged with the Court pursuant to orders made on 22 September 2014 be returned to the First Defendant.

8. Order 4 of the orders made on 10 March 2014 and varied on 15 November 2016 (restraining the First Defendant from paying any invoice, other expense or liability in excess of $5,000 other than regular salary or wages and emoluments of employees, except having given 7 days’ written notice by email to the plaintiff’s solicitor, O’Neill McDonald), be discharged with effect from this day.

9. the freezing order made on 15 November 2016 be varied:

1. with immediate effect, to provide as follows:

the second and third defendants be restrained from, by themselves, their servants or agents:

(a) removing from Australia, disposing of, diminishing, encumbering or otherwise adversely dealing with the proceeds of sale of the property situated at, and known as, 18 Alexandria Parade, South Coogee, being the land comprised in folio identifier 4/448956, to the extent of $2.5 million, except by way of deposit of the same to an interest bearing controlled moneys account in the name of, and under the control of, their solicitor on the record in these proceedings, such amount not to be disbursed except to be applied to the purchase of unencumbered real property in the name of the second and third defendants, or either of them, after 7 days' notice in writing to the plaintiff and any such real property to remain unencumbered or be otherwise with the consent of the plaintiff; and

(b) further encumbering the property to the extent that the total amount secured thereon exceeds $2 million.

2. with effect from the completion of the Share Sale, to provide as follows:

the second and third defendants be restrained from, by themselves, their servants or agents:

(a) removing from Australia, disposing of, diminishing, encumbering or otherwise adversely dealing with the proceeds of sale of the property situated at, and known as, 18 Alexandria Parade, South Coogee, being the land comprised in folio identifier 4/448956, to the extent of $1 million, except by way of deposit of the same to an interest bearing controlled moneys account in the name of, and under the control of, their solicitor on the record in these proceedings, such amount not to be disbursed except to be applied to the purchase of unencumbered real property in the name of the second and third defendants, or either of them, after 7 days' notice in writing to the plaintiff and any such real property to remain unencumbered or be otherwise with the consent of the plaintiff; and

(b) further encumbering the property to the extent that the total amount secured thereon exceeds $3.5 million.

10. there be liberty to apply to further vary the freezing order as so varied;

11. the Defendants pay 75% of the Plaintiff’s costs of the proceedings, including the cross-claim.

12. Pursuant to (former) Civil Procedure Act, s 101(4), interest be paid on any amount payable under order (11) at the prescribed rate from the date of this order.

13. Each party has liberty to apply, by motion and supporting evidence filed by 30 April 2018, pursuant to Civil Procedure Act 2005, s 98(4), for a specified gross sum instead of assessed costs in respect of any or all costs orders made in these proceedings, such motion to be made returnable before Brereton J by arrangement with his Associate.

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Endnotes

Decision last updated: 08 March 2018