Landream Melbourne Pty Ltd v Aust and NZ International Investment Group Pty Ltd

[2021] NSWCA 318

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Landream Melbourne Pty Ltd v Aust & NZ International Investment Group Pty Ltd [2021] NSWCA 318

Hearing dates:

9 December 2021

Date of orders:

15 December 2021

Decision date:

15 December 2021

Before:

Bathurst CJ at [1];
Macfarlan JA at [2];
Payne JA at [3]

Decision:

(1)   Appeal dismissed;

(2)   Appellant to pay the respondent’s costs.

Catchwords:

CONTRACTS — termination — whether agreement wrongfully terminated — construction — meaning of “change in control including change in the majority shareholding” — whether satisfied where majority shareholder ceased to hold any shares but no new majority shareholding created

Cases Cited:

Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7

Hancock v Rinehart [2015] NSWSC 646

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37

Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631

Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12

Category:

Principal judgment

Parties:

Landream Melbourne Pty Ltd (Appellant)
Aust & NZ International Investment Group Pty Ltd (Respondent)

Representation:

Counsel:
N Hutley SC with G Farland (Appellant)
DB Studdy SC with D Robertson (Respondent)

Solicitors:
HWL Ebsworth Lawyers (Appellant)
Keypoint Law (Respondent)

File Number(s):

2021/173199

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Commercial List

Citation:

[2021] NSWSC 650

Date of Decision:

28 May 2021

Before:

Rein J

File Number(s):

2020/363038

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent, Aust & NZ International Investment Group Pty Ltd (ANZIIG) is the registered proprietor of property at 18-40 Anderson Street, Parramatta (the Property).

The appellant, Landream Melbourne Pty Ltd (Landream) is the trustee of the Landream Melbourne Unit Trust (Landream UT). From 21 March 2016, Mr Li was the sole shareholder and director of Landream. From 1 August 2018, the units in the Landream UT have been held by Yara Development Pty Ltd (Yara), Duoact Pty Ltd (Duoact) and Glory Era Pty Ltd (Glory).

In 2016, Landream and ANZIIG executed an “Exclusive Dealing Agreement and Term Sheet for the call option and development of 18-40 Anderson Street, Parramatta” (the 2016 Term Sheet), which contemplated that Landream would pursue rezoning of the Property, and may ultimately acquire an interest in the Property.

Subsequently in 2018, Landream and ANZIIG executed a further “Exclusive Dealing Agreement and Term Sheet for the PDA or call option and development of 18‑40 Anderson Street, Parramatta” (the 2018 Term Sheet) which superseded and replaced the 2016 Term Sheet. Clause 11(a)(iii) of the 2018 Term Sheet gave ANZIIG the right to terminate the 2018 Term Sheet if “there is a change in control including a change in the majority shareholding of Landream or its parent company without ANZIIG’s approval not to be unreasonably withheld.”

On 9 September 2020, a number of changes were made to the shareholders and board of directors of Landream. Mr Xiaoyang (Harvard) Shen was added as a director of Landream, and Mr Li transferred his entire shareholding in Landream to Yara, Duoact and Glory in shares corresponding to their unitholding in the Landream UT. Landream did not seek ANZIIG’s consent before these changes occurred or notify ANZIIG after the fact.

On 18 December 2020, ANZIIG gave notice to Landream terminating the 2018 Term Sheet pursuant to cl 11(a)(iii) on the basis that the changes on 9 September 2020 constituted a “change in control” within the meaning of that clause.

Landream commenced proceedings in the Equity Division of the Supreme Court of New South Wales seeking declaratory relief that ANZIIG was not entitled to terminate the 2018 Term Sheet. The primary judge found that ANZIIG was entitled to terminate the 2018 Term Sheet pursuant to cl 11(a)(iii).

The sole issue on appeal was whether there had been a “change in control including a change in the majority shareholding of Landream” for the purposes of cl 11(a)(iii).

The Court (per Payne JA, Bathurst CJ and Macfarlan JA agreeing) held, dismissing the appeal:

1. A “change in the majority shareholding” is not limited only to a change in the shareholding of Landream which results in the formation of a new majority shareholding. There is a relevant change in the majority shareholding if a majority shareholder ceases to be such: at [40]-[42], [45].

   Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 applied.

2. A “change in the majority shareholding of Landream” occurred on 9 September 2020 when Mr Li, previously the sole shareholder in Landream, ceased to be a shareholder in Landream upon transfer of his shares to Yara, Duoact and Glory: at [41].

Judgment

1. BATHURST CJ: I agree with the orders proposed by Payne JA and with his reasons.

2. MACFARLAN JA: I agree with Payne JA.

3. PAYNE JA: This is an appeal from a decision of Rein J where the primary judge determined that the respondent, Aust & NZ International Investment Group Pty Ltd (ANZIIG) had validly terminated its contract with the appellant, Landream Melbourne Pty Ltd (Landream): Landream Melbourne Pty Ltd v Aust & NZ International Investment Group Pty Ltd [2021] NSWSC 650.

Relevant entities

4. ANZIIG is the registered proprietor of a property at 18-40 Anderson Street, Parramatta (the Property), which it holds on trust in its capacity as trustee for the Shen Family Trust. The Property was operated by ANZIIG as a Holiday Inn Hotel. The Property is subject to a mortgage in favour of Westpac.

5. Landream was registered on 3 April 2014. At the time of its incorporation, the shares in Landream were divided equally between Mr Shu Li and Mr He Qiao, who each held 50 shares. Mr Li and Mr Qiao were also both directors of Landream.

6. The Landream Melbourne Unit Trust (Landream UT) was established by deed made on 7 April 2014 (the Trust Deed). The Trust Deed nominated Landream as trustee. At the time the Landream UT was constituted, 60 units were held by Yara Development Pty Ltd (Yara) and 40 units were held by Duoact Pty Ltd (Duoact). On 1 August 2018, Yara transferred 18 of its 60 units in the Landream UT, and Duoact transferred 2 of its 40 units in the Landream UT, to Glory Era Pty Ltd (Glory).

7. On 21 March 2016, Mr Qiao transferred all 50 of his shares to Mr Li, who thereby became sole shareholder of Landream. Mr Qiao was also removed as director of Landream, leaving Mr Li as sole director.

8. In 2016, ANZIIG desired to rezone and redevelop the Property, and entered into an agreement with Landream to assist in achieving these objects. On 13 October 2016, Landream and ANZIIG had executed an “Exclusive Dealing Agreement and Term Sheet for the call option and development of 18‑40 Anderson Street, Parramatta” (the 2016 Term Sheet). The 2016 Term Sheet contemplated that Landream would apply for and pursue rezoning of the Property for a 24-month “Rezoning Period”, and may ultimately acquire a 20% interest in the Property as tenant in common with ANZIIG by exercise of a Call Option (cl 3). In accordance with cl 8 of the 2016 Term Sheet, upon entry into the agreement Landream paid ANZIIG $350,000 plus GST as an “Exclusivity Fee”.

The 2018 Term Sheet

9. On 6 December 2018, Landream and ANZIIG entered into an “Exclusive Dealing Agreement and Term Sheet for the PDA or call option and development of 18-40 Anderson Street, Parramatta” (the 2018 Term Sheet) which superseded and replaced the 2016 Term Sheet. The recitals to the 2018 Term Sheet relevantly provided:

“The parties agree that, despite anything in the [2016] Term Sheet, the [2016] Term Sheet ceases to be of any force or effect on and from the date of this Term Sheet and the [2016] Term Sheet is superseded and replaced in its entirety by this Term Sheet.”

10. Clause 1 of the 2018 Term Sheet set out the parties to that agreement. That clause, which is identical to cl 1 of the 2016 Term Sheet, identified Landream and ANZIIG as parties to the agreement in their capacity as trustees as follows:

“1.   Aust & NZ International Investment Group Pty Ltd ACN 114 597 867, being the owner of the Property (as trustee of the Shen’s Family Trust) (ANZIIG).

2.   Landream Melbourne Pty Ltd ACN 168 909 242 (as trustee for the Landream Melbourne Unit Trust) (Landream).”

11. Clause 8(c) of the 2018 Term Sheet provided:

“Subject to Landream complying with its obligations in clauses 8(a) and (b), ANZIIG will provide all reasonable assistance to Landream to enable the Rezoning by signing any document reasonably required by the relevant authority or providing such information in ANZIIG’s possession which is required for the application.”

12. Clause 11 of the 2018 Term Sheet set out the grounds on which the Term Sheet could be terminated. Pursuant to cl 11(a), ANZIIG had a right to terminate the 2018 Term Sheet in the event of certain breaches by Landream. It provided:

“11   Termination of Term Sheet

(a)   Insolvency and breach

ANZIIG may terminate this Term Sheet without liability by written notice to Landream if;

(i)   an insolvency event occurs in relation to Landream; or

(ii)   prior to the Rezoning, Landream breaches its obligations under this Term Sheet in a way which has a material adverse impact on ANZIIG and Landream does not rectify the default within 21 days of written notice; or

(iii)   there is a change in control including a change in the majority shareholding of Landream or its parent company without ANZIIG’s approval not to be unreasonably withheld.”

13. Clause 11(c) empowered either party to terminate the Term Sheet if the objective of the agreement, namely the rezoning of the Property, was not achieved, without the need for breach by any party. It provided:

“11   Termination of Term Sheet

…

(c)   Rezoning not achieved before expiry of Rezoning Period

If Rezoning is not achieved because the Rezoning application is either rejected or not determined before the expiry of the Rezoning Period either party may terminate this Term Sheet by written notice to the other party. On such termination, each party will bear its own costs and Landream will forfeit the Exclusivity Fee (including any Extension Fee, if applicable).”

14. Clause 18 specified the rights of the parties following termination of the 2018 Term Sheet and in relation to novation and assignment of interests in the Term Sheet:

“18   Other

(a)   Following termination of this Term Sheet, Landream will transfer to ANZIIG such right or interest as it may have in any plans, specifications, design drawings and other intellectual property generated in respect of the Rezoning application without charge or fee.

(b)   Landream cannot assign or novate its interest in this Term Sheet without the consent of ANZIIG (not to be unreasonably withheld, noting that it will be reasonable for ANZIIG to refuse consent if it reasonably considers that its interests would be materially adversely affected).”

15. On 6 December 2018, Mr Li was Landream’s sole director and shareholder and the units in the Landream UT were held as follows:

1. Yara: 42 units;

2. Duoact: 38 units; and

3. Glory: 20 units.

16. On 9 September 2020, a number of changes were made to the shareholders and board of directors of Landream:

1. Mr Xiaoyang (Harvard) Shen was appointed as a director of Landream. The directors of Landream were thereafter Mr Li and Mr Harvard Shen.

2. Mr Li ceased to be a shareholder in Landream upon transferring all 100 of his shares in Landream as follows:

1. to Yara: 42 shares;

2. to Duoact: 38 shares; and

3. to Glory: 20 shares.

17. The number of shares in Landream transferred by Mr Li to each of these entities corresponds with the number of units held by each of these entities in the Landream UT.

18. Landream did not seek ANZIIG’s consent before these changes occurred and did not notify ANZIIG of the fact that they had taken place. The changes were only discovered when ANZIIG conducted an ASIC search on 30 November 2020.

19. By letter dated 18 December 2020, ANZIIG gave notice to Landream terminating the 2018 Term Sheet pursuant to cl 11(a)(iii). ANZIIG asserted that the share dealings with respect to Landream and change in the officeholders of Landream which took place on 9 September 2020 constituted a change in control of Landream and/or a change in the majority shareholding of Landream in breach of cl 11(a)(iii), giving ANZIIG the right to terminate the 2018 Term Sheet.

20. On 11 January 2021, Landream filed an Amended Summons in the Equity Division of the Supreme Court of New South Wales seeking declaratory relief to the effect that ANZIIG was not entitled to terminate the 2018 Term Sheet or, alternatively, an order that Landream be relieved of the forfeiture of its rights to perform, and to ANZIIG’s performance of, the 2018 Term Sheet.

21. The matter was granted expedition, on the basis that, should the rezoning be approved, it must occur by 30 June 2021. The matter was heard on 13 May 2021, and judgment was delivered by the primary judge on 28 May 2021.

The primary judgment

22. The principal issue before the primary judge was the proper construction of cl 11(a)(iii) of the 2018 Term Sheet.

23. Landream offered three alternative constructions of cl 11(a)(iii) to the primary judge which focused on the “beneficial ownership” of the shares, the need for a “practical change in control” of the majority shareholding, and a change in the majority “unitholding” of Landream. Landream emphasised the context as being that the parties had contracted in their capacity as trustees, and that accordingly what ANZIIG was really interested in was the position of those standing behind the corporate trustee, namely the unitholders, rather than the shareholders in Landream, who were of no practical significance.

24. The primary judge rejected Landream’s construction of the clause, finding at [24] that there is “nothing unbusiness-like in an interpretation which focuses attention on the shareholding in the trustee, rather than the units of the underlying trust”. His Honour held that it is the nature and commercial significance of the obligations assumed by each party, and their capacity to fulfil them, that is important, and under the 2018 Term Sheet obligations were imposed on Landream, not its unitholders. His Honour also held that while the unitholders had the power to remove Landream as trustee, they did not “control” the trust in the sense of having the ability to decide how the trust would act.

25. The primary judge concluded that, on an objective and businesslike interpretation, cl 11(a)(iii) did not require consideration to be given to whether the shares in Landream were held beneficially or not. The words used in cl 11(a)(iii) are clear and admit no ambiguity. The requirements of the clause were met when Mr Li transferred his entire shareholding to other entities without the approval of ANZIIG. ANZIIG was therefore entitled to terminate the 2018 Term Sheet.

26. The primary judge determined that cl 11(a)(iii) was not a penalty. Landream does not appeal against this finding. The primary judge also concluded that Landream should not be granted relief against forfeiture. No appeal was brought from that finding.

27. The primary judge dismissed Landream’s summons and ordered that it pay ANZIIG’s costs.

Notice of Appeal

28. Landream principally seeks the following orders in the notice of appeal filed on 26 August 2021:

“1.   Appeal allowed.

2.   A declaration that:

(1)   the share transfers identified in the Schedule B to the Amended Summons in the Court below, and

(2)   the appointment of Xiaoyang Shen as director of the appellant on or around 9 September 2020,

were not, separately or together,

‘… a change in control including a change in the majority shareholding of Landream or its parent company …’;

for the purposes of cl. 11(a)(iii) of the Termsheet on account of which ANZIIG became entitled to terminate the Termsheet.

3.   Not pressed.

4.   Not pressed.

5.   An order that the Respondent forthwith take all necessary steps to procure the consent of Westpac Banking Corporation CAN 007457141, as mortgagee of the Property, to the registration of the document entitled ‘Voluntary Planning Agreement’ in the form attached to the email sent from Mark Girgis of Landream to John Shen and Yesh Mudaliar on 9 November 2020 at 5.53 pm (the VPA) on the title of the Property and then immediately deliver the same to the appellant.

6.   A declaration that the Respondent is not entitled to terminate the Termsheet on account of the Rezoning contemplated therein not having been achieved by or on 31 January 2021 or before the expiry of a reasonable period after a form of the VPA executed by the respondent is delivered to the appellant.

7.   ….”

29. On the evidence before this Court, it is apparent that if Landream was successful in securing its principal relief, a declaration in the terms of proposed order 2, the matter would in any event need to be remitted to a judge of the Equity Division to address disputed questions of fact and law underlying the making of proposed orders 5 and 6. Mr Hutley SC, who appeared for Landream in this Court, accepted as much.

Consideration

30. The only issue agitated on the appeal, the correct construction of cl 11(a)(iii) of the 2018 Term Sheet, is a very narrow one. Landream contends that ANZIIG wrongfully terminated the agreement because, despite Mr Li selling 100% of his shares in Landream, no single entity thereby acquired a majority shareholding in Landream. Thus, it was submitted, there was not “a change in the majority shareholding of Landream” within the meaning of cl 11(a)(iii).

31. There was no dispute between the parties about the principles of construction to be applied. In Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37, French CJ, Nettle and Gordon JJ held at [46] that:

“[46]   The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.” (Footnotes omitted)

32. It was also common ground that the Court should approach the task of construction on the assumption that the parties intended to produce a commercial result, and should avoid a construction which gives rise to commercial nonsense or works a commercial inconvenience: Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35] (French CJ, Hayne, Crennan and Kiefel JJ).

Ground 1: construction of cl 11(a)(iii)

33. Landream submitted that the primary judge misconstrued cl 11(a)(iii) by focusing on the fact that “the sole shareholder transfer[red] all of his shares to other entities”, which assumed that all that was necessary for a change of control was that the majority shareholder ceased to hold a majority of the shares in Landream at the relevant time. Landream submitted that, properly construed, cl 11(a)(iii) required the creation of a new state of affairs necessarily involving the creation of a new majority shareholding.

34. Landream submitted that as each of Yara, Duoact and Glory did not on 9 September 2020 individually obtain a “majority shareholding” in Landream, there was no “majority shareholding” in Landream created by Mr Li’s transfer of shares.

35. Landream submitted that the expression “change in control” in cl 11(a)(iii) was not qualified and the word “including” indicated that “a change in the majority shareholding of Landream” was a reference to just one specific example of deemed “control”. It was submitted that the words “… a change in the majority shareholding of Landream or its parent company…” led to the conclusions:

1. first, that the object of the “change” is the majority shareholding of Landream (that is, the identity of the person who holds the majority of shares in that company or its parent company) such that the focus is on the substitution of one majority shareholding for another; and

2. secondly, that the reference to “in the majority shareholding” has as its object “Landream, or its parent company” and the word “majority” qualifies “shareholding” such that the focus is on the discrete entity with the ability to command the majority of votes.

36. Landream submitted that its posited construction was consistent with the purpose and object of the 2018 Term Sheet and supported by the following contextual features of cl 11(a)(iii):

1. first, ANZIIG’s right of termination for breach of the clause would not arise unless it was dealing with a new majority shareholder (of either Landream or its parent). Here, there was no new entity for which to seek approval;

2. secondly, Mr Li remained as a director and the board of Landream was not controlled by anyone else (whereas if there was a new majority shareholder, it would be in the position to change the composition of the board); and

3. thirdly, the expression is inclusive (“including a change…”) and on its own does not cover the field of types of changes in control but is merely an example with a particular (and narrow) focus.

37. One matter relied upon by ANZIIG should be addressed at the outset. It was submitted that Landream sought to run a new and different case about the construction of cl 11(a)(iii) for the first time on appeal and should not be permitted to do so: Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645-646; Water Board v Moustakas (1988) 180 CLR 491 at 497; [1988] HCA 12.

38. I would reject ANZIIG’s submission. Whilst it is correct that the precise way in which Landream formulated its case was in some respects different in this Court to the way the primary judge was addressed, in my view, there was no prejudice to ANZIIG in this reformulation of the case. I agree with Mr Hutley SC’s submission that it would be inimical to the interests of justice not to allow the point to be raised in circumstances where no new evidence has been sought to be adduced and there is no unresolved question of fact.

39. I am, however, unable to accept Landream’s construction of cl 11(a)(iii).

40. Landream’s construction of cl 11(a)(iii) is contrary to the language of the provision. The phrase “a change in the majority shareholding” says nothing about the creation of a new majority shareholding. Landream’s construction treats the requirement for “a change in control including a change in the majority shareholding of Landream” as one limited to a change in the majority shareholding of Landream which results in the formation of a new majority shareholding. This assumes a limitation in cl 11(a)(iii) which does not arise from the language used by the parties to the 2018 Term Sheet.

41. Mr Li’s transfer of all of the shares he held in Landream to three new shareholders constituted a “change in the majority shareholding of Landream” because Mr Li, the majority shareholder, ceased to be the majority shareholder of Landream. That change in shareholding was sufficient to trigger the requirement that Landream obtain ANZIIG’s approval for the transfer of the shares, which it failed to do.

42. Landream’s construction of cl 11(a)(iii) is also a commercially unlikely one. The “change in control” provision would only be engaged where a transfer of shares resulted in the formation of a “new majority shareholding”. The clause would have no utility in circumstances where the existing majority shareholder transferred all of its shares to entities in percentages which did not result in the creation of a “new majority shareholder”. A party in ANZIIG’s position would have no right to approve a sale of all the shares of the majority shareholder to completely new shareholders, regardless of the identity of those shareholders. In a close commercial arrangement such as that created under the 2018 Term Sheet, involving the attempted rezoning and development of the Property, it is unlikely that a reasonable businessperson would conclude that this was a sensible commercial result.

43. The two examples relied upon by Landream in oral submissions said to support its construction do not lead to any different conclusion. The first example given, a posited sale of 1% of the shares in Landream by the 100% shareholder, does not on the construction preferred by the primary judge or advanced on this appeal by ANZIIG effect “a change in control including a change in the majority shareholding of Landream” and may be put to one side. In this somewhat extreme example, the owner of 99% of the shares in Landream remains the same and there is no change in the control or majority shareholding of the company. The second example given, a selldown of shares by a 51% shareholder to become a 49% shareholding, is “a change in the majority shareholding” on the correct construction of cl 11(a)(iii). In my view there is nothing uncommercial or surprising in the conclusion that a party in ANZIIG’s position has bargained to approve any share transfer that has the effect of removing the majority shareholding in Landream, whether or not that majority shareholding is replaced by another majority shareholding. Given the nature and commercial significance of the obligations assumed by or imposed on Landream under the 2018 Term Sheet, ANZIIG had a vital interest in approving the transfer of shares by the majority shareholder in Landream such that its interest fell below 50%, whether or not a new majority shareholding was thereby created.

44. The additional contextual matters relied upon by Landream in written submissions do not support its proposed construction of cl 11(a)(iii):

1. first, Landream’s suggested construction limits ANZIIG’s rights to being able to approve a new majority shareholder. This is a conclusion which rather assumes the answer to the question of construction and is not itself a contextual matter in favour of Landream’s proposed construction;

2. secondly, the fact that Mr Li remained a director of Landream does not address the correct understanding of a provision which is addressed, in terms, to a question concerning Landream’s majority shareholding; and

3. thirdly, the fact that the expression used is inclusive (“including a change…”) and thus merely an example rather tends against Landream’s construction. It is clear that a change in control is intended to be a broader concept than simply a change in the majority shareholding, although, as here, the change in majority shareholding is a sufficient basis to trigger the requirement to obtain ANZIIG’s approval.

45. For these reasons I am unable to accept Landream’s suggested construction of cl 11(a)(iii) of the 2018 Term Sheet and would reject ground 1 of the appeal. This conclusion is dispositive of the remaining issues on the appeal, which I will address only briefly.

Ground 2: no change in control, as Mr Li remained a director

46. Neither party made any oral submission about ground 2 of the appeal. Landream submitted in writing that the primary judge erred in finding that there had been a change in control for the purposes of cl 11(a)(iii) because Mr Li, who remained one of two directors, remained in a position to control the decision-making of Landream by preventing any resolution of the board being passed.

47. One significant difficulty in determining this issue is that Landream’s constitution was not in evidence. Whilst there is force in ANZIIG’s submission that it was not proven by Landream that Mr Li could prevent any board resolution being passed, I would prefer not to express a concluded view about this issue given the conclusion I have reached about ground 1 of the appeal.

Ground 3: error in considering the actual or subjective state of mind of Mr Shen

48. Landream made no oral submission about ground 3. In writing, Landream submitted that the primary judge (at [24]) erred in finding that there was a change in control of Landream for the purposes of cl 11(a)(iii) by reference to the “actual subjective state of mind” of Mr Jhon Shen, ANZIIG’s sole shareholder and sole director. Mr Shen had given evidence that he would never have caused ANZIIG to enter into the agreement if he had been aware that Mr Li would not continue to be the majority shareholder in Landream.

49. I am unable to accept this submission. It is clear from [24]-[27] and [32]-[36] of the primary judgment that the primary judge did not interpret cl 11(a)(iii) by reference to Mr Shen’s “actual subjective state of mind” but instead correctly applied the objective theory of contract in construing cl 11(a)(iii).

50. I would reject ground 3 of the appeal.

Grounds 9-10: error in disregarding the power of the unitholders in the Landream UT

51. Neither party addressed grounds 9 and 10 in oral submissions.

52. By ground 9, Landream submitted that the primary judge erred in finding (at [28]-[30]) that there was a change in control of Landream for the purposes of cl 11(a)(iii) in circumstances where, among other things:

1. the unitholders in the Landream UT could have “called for” a transfer from Landream “of its rights, entitlements and interest” in the 2018 Term Sheet without effecting a change in control within the meaning of cl 11(a)(iii); and

2. the unitholders in the Landream UT could have “removed” Landream as trustee of the Landream UT and “substituted” a different trustee without effecting a change in control within the meaning of cl 11(a)(iii).

53. I am unable to accept that the identity of the unitholders affects his Honour’s conclusion at [36] that the share transfers effected by Mr Li constituted a “change in the majority shareholding” and therefore a “change in control” within the meaning of cl 11(a)(iii). The language of the clause refers in terms to “shareholding” which must, in context, be a reference to the shares in the trustee, Landream. I would reject ground 9.

54. By ground 10, Landream submitted that the primary judge erred in finding (at [28]-[29]) that the unitholders of the Landream UT did not “control” Landream, notwithstanding the power of removal conferred on the unitholders by cl 3 of the Trust Deed, and notwithstanding the decision of Brereton J, as his Honour then was, in Hancock v Rinehart [2015] NSWSC 646 at [162]-[163].

55. Landream submitted that the primary judge erred in disregarding the effect of the power to remove and replace the trustee, by effectively concluding that the power of removal was not a power of appointment because the word “appointment” did not appear in the Trust Deed. It was submitted that, where the unitholders controlled Landream immediately before and after 9 September 2020, there could be no change in control for the purposes of cl 11(a)(iii) on or after that date.

56. In my view, the primary judge was correct to conclude at [28] that whilst the Trust Deed empowered the unitholders to remove Landream as the trustee, that power of removal did not mean that the unitholders “could direct Landream as trustee to do what they wanted it to do”.

57. These elements of control, control over decision-making and the appointment of directors, are essential to any finding that a person or entity “controlled” a corporation. The primary judge was correct to conclude that it was Landream’s shareholders, and not the unitholders in the Landream UT, who controlled the company, notwithstanding the unitholders’ power of removal and appointment.

58. The primary judge’s conclusions were not inconsistent with what was said by Brereton J in Hancock v Rinehart at [162]-[163]. His Honour said there:

“[162]   ‘Control’, in the context of a trust, is a more difficult concept. However, control being concerned with the power to determine how the trust will act, it will rarely be the beneficiaries who ‘control’ a trust. Unless the trust instrument otherwise provides, a trustee is not bound to follow directions given by the beneficiaries – even unanimously [Re Brockbank [1948] Ch 206; Hotung v Ho Yuen Ki [2002] 3 HKLRD 641; Ford & Lee, [1.1530]]. The power of beneficiaries who are collectively absolutely entitled to the trust property to call for transmission of the trust property to them and thus to terminate the trust does not imply a power to direct the trustee [Re Brockbank]. The power to terminate a trust, analogous to the power to wind up a company, is not ‘control’ of the trust while it exists; it does not involve the ability to decide how the trust will act.

[163]   By analogy with the position that a company is controlled by those who have the ability to determine the composition of the board of directors through a general meeting, so may a trust be controlled not necessarily by those who have its day-to-day management (the trustee), but by those who have the ability to control the trustee through the power of removal and replacement (the appointor). But at least where there is no appointor, then it is generally the trustee who can decide how the trust will act, and thus ‘controls’ the trust.”

59. Brereton J’s conclusions in that case, that a trust will “rarely” be controlled by the beneficiaries, and that a corporation is controlled by “those who have the ability to determine the composition of the board of directors through a general meeting”, are supportive of the conclusion of the primary judge at [28] that:

“[28]   It is true that Landream could be removed by unitholders by reason of the trust. There is no evidence that the trust deed was provided to ANZIIG, but assuming that it was or that ANZIIG should be taken to be aware of the likelihood that there was such a power, that does not mean that the unitholders could direct Landream as trustee to do what they wanted it to do. If the unitholders wanted to remove Landream as trustee that was open to them, but that did not empower them to remove Mr Li as the director of Landream or change the shareholders of Landream.”

60. Regardless of whether any of the other possible exercises of power by the unitholders constituted a “change in control”, the primary judge’s conclusion that there was “a change in the majority shareholding of Landream” which constituted a “change in control” for the purposes of cl 11(a)(iii) was correct.

61. Ground 10 should be rejected.

Conclusion and proposed orders

62. Landream did not press grounds 4-8, 11 and 12 of the notice of appeal.

63. For the foregoing reasons I propose the following orders:

1. Appeal dismissed;

2. Appellant to pay the respondent’s costs.

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Decision last updated: 15 December 2021