Morara Pty Ltd v Kingslane Property Investments Pty Ltd [No 2] - [2022] WASC 372

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MORARA PTY LTD -v- KINGSLANE PROPERTY INVESTMENTS PTY LTD [No 2] [2022] WASC 372
CORAM:   HILL J
HEARD:   19 & 20 OCTOBER 2020
DELIVERED          :   4 NOVEMBER 2022
FILE NO/S:   COR 31 of 2014
BETWEEN:   MORARA PTY LTD
Plaintiff
AND
KINGSLANE PROPERTY INVESTMENTS PTY LTD
First Defendant
EVAN ALEXANDER GEORGE CRANSTON
Second Defendant
JOHN WINDSOR CRANSTON
Third Defendant

Catchwords:

Corporations – Claim for oppression – Failure to pay director and shareholder of plaintiff for services provided to first defendant – Previous unsuccessful claim for remuneration by related company of plaintiff against first defendant – Payment of legal fees by company – Whether conduct constitutes oppression under s 232 and s 233 of the Corporations Act 2001 (Cth) – Appropriate relief

Legislation:

Corporations Act 2001 (Cth), s 232, s 233

Result:

Plaintiff's claim of oppression made out.
Orders for payment of $55,092.60, reimbursement of legal fees and for the purchase of the plaintiff's shares

Category: B

Representation:

Counsel:

Plaintiff	:	D H Solomon & G Zagari
First Defendant	:	G D Cobby SC
Second Defendant	:	G D Cobby SC
Third Defendant	:	G D Cobby SC

Solicitors:

Plaintiff	:	Solomon Brothers
First Defendant	:	Douglas Cheveralls Lawyers
Second Defendant	:	Douglas Cheveralls Lawyers
Third Defendant	:	Douglas Cheveralls Lawyers

Case(s) referred to in decision(s):

Australian Institute of Fitness Pty Ltd v Australian Institute of Fitness (Vic/Tas) Pty Ltd (No 3) [2015] NSWSC 1639; (2015) 109 ACSR 369
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304
Chase Corporation (Australia) Pty Ltd v North Sydney Brick and Tile Co Ltd (1994) 35 NSWLR 1
Exton v Extons Pty Ltd [2017] VSC 14; (2017) 53 VR 520
Hillam v Ample Source International Ltd (No 2) [2012] FCAFC 73; (2012) 202 FCR 336
HNA Irish Nominees Ltd v Kinghorn (No 2) [2012] FCA 228; (2012) 290 ALR 372
Hylepin Pty Ltd v Doshay Pty Ltd [2020] FCA 1370; (2020) 148 ACSR 30
IceTV Pty Ltd v Ross [2008] NSWSC 1321
John J Starr (Real Estate) Pty Ltd v Andrew (Australasia) Pty Ltd (1991) 6 ACSR 63
Joint v Stephens [2008] VSCA 210
Melrob Investments Pty Ltd v Blong Ume Nominees Pty Ltd [2022] SASCA 29
Morara Pty Ltd v Kingslane Property Investments Pty Ltd [2019] WASC 136
Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692
Parker v Auswild [2022] VSCA 8; (2022) 403 ALR 111
Porter Street Investments Pty Ltd v Nellbar Pty Ltd [2022] WASCA 33
Power v Ekstein [2010] NSWSC 137; (2010) 77 ACSR 302
Re DG Brims and Sons Pty Ltd [1995] QSC 53; (1995) 16 ACSR 559
Re Ledir Enterprises [2013] NSWSC 1332; (2013) 96 ACSR 1
Re London School of Electronics Ltd [1986] Ch 211; [1985] 3 WLR 474
Re Optimisation Australia Pty Ltd [2018] NSWSC 31; (2018) 362 ALR 374
Russell v Lee Holdings Pty Ltd [No 3] [2020] WASC 346
Smith Martis Cork & Rajan Pty Ltd v Benjamin Corp Pty Ltd [2004] FCAFC 153
Thomas v HW Thomas Ltd [1984] 1 NZLR 686
Trojan Equity Ltd v CMI Ltd [2011] QSC 346; (2011) 87 ACSR 144
Warrington Management Pty Ltd v Kingslane Property Investments Pty Ltd [2019] WASC 2
Warrington Management Pty Ltd v Kingslane Property Investments Pty Ltd [2020] WASCA 8

HILL J:

Christopher Weaver is the sole shareholder and a director of the plaintiff (Morara). On 19 February 2014, Morara commenced these proceedings under the Corporations Act 2001 (Cth) (Act) seeking relief for oppression and, in the alternative, the winding up of the first defendant (KPI) on just and equitable grounds. Morara complains that the conduct of KPI by Evan Cranston and John Cranston has been oppressive to its interests.
Prior to the commencement of these proceedings, another company associated with Mr Weaver, Warrington Management Pty Ltd (Warrington), commenced proceedings against KPI seeking restitution for the provision of services said to have been provided by Warrington to KPI (First Proceedings).
By agreement between the parties, the hearing of this matter was adjourned until after the resolution of the First Proceedings.
The trial of the First Proceedings took place over five days in May 2018. On 10 January 2019, Vaughan J dismissed Warrington's claim on the basis that the remuneration agreement was between Mr Weaver and KPI.[1]
[1] Warrington Management Pty Ltd v Kingslane Property Investments Pty Ltd [2019] WASC 2 (Reasons). See in particular [343].
Warrington appealed against this decision. The appeal was dismissed on 17 January 2020.[2]
[2] Warrington Management Pty Ltd v Kingslane Property Investments Pty Ltd [2020] WASCA 8.
Following the dismissal of the appeal, Morara substantially narrowed the issues in dispute in these proceedings and did not pursue orders for the winding up of KPI on just and equitable grounds. The sole issues for determination at the hearing of this matter were first, whether certain conduct of the defendants was oppressive to the interests of Morara and second, if so, what relief should be granted.
For the reasons that follow, it is my view that:
(a)in the particular circumstances of this case, the failure by Evan Cranston and John Cranston to agree the remuneration of Mr Weaver for the work he performed for KPI or make any payment to him for this work was commercially unfair to the interests of Morara;
(b)the conduct of Evan Cranston and John Cranston in utilising funds of KPI to pay for the legal costs associated with these proceedings, with the exception of the application for an interlocutory injunction dated 22 March 2019, was also commercially unfair to the interests of Morara;
(c)to date, this conduct has not been remedied by Evan Cranston and John Cranston and continues as at the date of this decision;
On this basis, the plaintiff has made out its claim for oppression.
The more difficult question is what remedy should flow from the finding of oppression. At all stages until 3 April 2020, the claim in both the First Proceedings and in these proceedings was that the remuneration was payable to Warrington and not Mr Weaver. Given the significant delay in prosecuting any claim on behalf of Morara, I decline to grant the primary relief sought by the plaintiff for an order requiring KPI to pay $683,175 to Mr Weaver.
In the circumstances of this case, I consider orders should be made requiring KPI to pay to Mr Weaver the sum of $55,092.60, being the success fees payable in relation to the 13 Modal Crescent Property Sydicate. In addition, Evan Cranston and John Cranston should reimburse KPI for any payments made by KPI for the legal costs of these proceedings, apart from the costs of the application for an interlocutory injunction dated 22 March 2019. Finally, Evan Cranston and John Cranston should be required to purchase Morara's shares in KPI.
The detailed basis for my reasons is set out below.

Background Facts

In September 2002, Morara was incorporated. At all material times, Mr Weaver owned and controlled Morara.[3]
[3] Reasons [121].
On 17 August 2010, following discussions between Mr Weaver, John Cranston and his son Evan Cranston, KPI was incorporated for the purpose of establishing, promoting and managing property investments to be acquired by various special purpose trusts and syndicates.[4]
[4] Reasons [1], [120].
The pre-incorporation discussions included a broad consensus that each of them would have different roles and responsibilities within KPI. Mr Weaver was to be the managing director and have an executive role in the business.[5] Mr Weaver and the Cranstons also discussed an intended remuneration agreement by which Mr Weaver would be rewarded for his efforts in KPI.[6]
[5] Reasons [111].
[6] Reasons [336].
At the time of its incorporation, Mr Weaver and Evan Cranston were appointed as directors of KPI. Ninety ordinary shares were issued, comprising 30 shares to each of Morara, Evan Cranston, and Kingslane Pty Ltd, a company associated with John Cranston.[7]
[7] Reasons [120] - [121].
From July 2011 until June 2013, Mr Weaver received a monthly periodic payment of $5,833.33 from KPI. These payments totalled $70,000 per annum, which was based on a gross amount of $100,000 less taxation of $30,000 (calculated at 30%, the company taxation rate).[8] These payments comprised Mr Weaver's base retainer which was paid in advance.[9]
[8] Reasons [152].
[9] Reasons [310], [313].
In March 2012, Mr Weaver met with John Cranston and Evan Cranston and informed them that he no longer wanted to remain in business partnership with them and would no longer attempt to identify investment opportunities for KPI.[10]
[10] Reasons [160], [168].
Between September 2013 and March 2016, Hotchkin Hanly, a firm of solicitors, issued invoices to KPI in relation to both the First Proceedings and these proceedings. The invoices that were issued by Hotchkin Hanly in relation to these proceedings total $43,125.95.[11] Since March 2016, Douglas Cheveralls Lawyers has acted for the defendants. From 18 April 2019, these invoices have not been paid by KPI.
[11] Exhibit 1, p 586, 588, 592, 595, 596, 599, 601, 602, 604, 605, 607, 611 - 612, 614, 615. This amount is slightly less than the total set out in the Plaintiff's schedule to its submissions. It was not clear from the schedule how the amount of $43,433.85 had been calculated.
On 9 August 2016, Mr Weaver was removed as a director of KPI.[12]
[12] Reasons [292].
Vaughan J held that the reasonable remuneration for the professional and project management services provided by Mr Weaver to KPI between 17 August 2010 and 6 December 2013 was $683,175 (rounded down), comprising $285,482.60 for asset management, $342,600.00 for establishment including capital raising fees, and $55,092.60 for success fees received in 2017 in relation to one of the property syndicates.[13]
[13] Reasons [416]. The property syndicate was 13 Modal Crescent Property Syndicate.

Delay in delivery of judgment

The hearing of this matter took place in October 2020. It has not been possible to complete the reasons for my decision as quickly as I would have liked.
In this case, the delay has not had any significant impact on my ability to properly assess the parties' cases. This is because no oral evidence was given by any witness at the hearing (for the reasons which I explain below). The parties filed schedules of the evidence on which they relied for the purposes of the application. I also had the benefit of detailed written and oral submissions from the parties in support of the position for which they contend.

Procedural background

These proceedings were commenced on 19 February 2014 by originating process, supported by an affidavit of Mr Weaver.
Shortly after this, in March 2014, the parties agreed that these proceedings and the First Proceedings should be case managed together. As is common for matters commenced under the Supreme Court (Corporations) (WA) Rules 2004 (WA), the issues in the proceedings were delineated by the parties filing lists of issues.
On 25 June 2015, Chaney J (the original case manager of both these proceedings and the First Proceedings) ordered that the preliminary trial in these proceedings be tried together with the First Proceedings. These orders contemplated that the preliminary trial be limited to the question as to whether any oppressive conduct had occurred, with the question of relief to be determined separately at a later date.
During the trial of the First Proceedings, Vaughan J vacated these orders. His reasons for decision record that the parties had taken the 'pragmatic view' that these proceedings should be adjourned until the First Proceedings were finalised.[14]
[14] Reasons [291].
After the trial of the First Proceedings concluded and prior to judgment being delivered, on 29 May 2018, orders were made by Vaughan J in these proceedings in the following terms:
The Court notes the agreement of counsel to this matter, COR 31 of 2014, that, if there is a trial in this matter, COR 31 of 2014, following delivery of judgment in matter CIV 2908 of 2013:
(a) all evidence adduced at the trial in CIV 2908 of 2013 shall, by consent, also be received as evidence at the trial in this matter, COR 31 of 2014;
(b) all findings of fact and law (including as to credibility of witnesses) made in the reasons for judgment in CIV 2908 of 2013, shall be binding on all parties at the trial of this matter, COR 31 of 2014, notwithstanding the fact that some of the parties to this matter, COR 31 of 2014, are not also parties in CIV 2908 of 2013;
(c) the trial of this matter, COR 31 of 2014, be listed for hearing for 2 days before the Honourable Justice Vaughan at 10.30 am on a date to be fixed; and
(d) all parties to this matter, COR 31 of 2014, irrevocably waive and abandon their right to challenge the Honourable Justice Vaughan sitting as the trial judge in this matter, COR 31 of 2014, on the ground of apprehended bias as a result of His Honour having been the trial judge in CIV 2908 of 2013 and having made findings in CIV 2908 of 2013 concerning the credibility of persons who are parties to and/or proposed witnesses at the trial of this matter, COR 31 of 2014.
In the First Proceedings, reasons for decision were delivered by Vaughan J on 10 January 2019 and judgment entered on 7 February 2019. Warrington appealed the decision of Vaughan J. The appeal was heard on 20 November 2019 and dismissed on 17 January 2020.[15]
[15] Warrington Management Pty Ltd v Kingslane Property Investments Pty Ltd [2020] WASCA 8.
After the appeal was lodged but prior to it being heard, Morara filed an application for an interlocutory injunction in these proceedings seeking an order to prevent KPI from dissipating the judgment sum it had received in respect of its counterclaim in the First Proceedings. On the oral undertaking of KPI not to dissipate the proceeds of the judgment sum except in the ordinary course of business, Morara's application was dismissed.[16]
[16] Morara Pty Ltd v Kingslane Property Investments Pty Ltd [2019] WASC 136.
Following dismissal of the appeal, the matter was relisted before me on 18 March 2020 for directions. Orders were made for the parties to file amended lists of issues. Re‑amended lists of issues were filed on 15 July 2020 by Morara with a responsive list of KPI being filed on 28 July 2020. Ultimately, a number of the issues in KPI's list were abandoned prior to the hearing.
Prior to the hearing, each of the parties filed schedules of the evidence, legal and factual findings that were the subject of the First Proceedings that they sought to rely on for the purpose of the hearing of this matter.
A consolidated bundle of documents relied on by each party was tendered at the hearing of this matter.[17]
[17] Exhibit 1.

Issues for determination

At the time of the hearing, the dispute between the parties had significantly narrowed. Two matters are relied upon by Morara for its claim of oppression. First, the failure by KPI to remunerate Mr Weaver, who Morara says was its nominated director and shareholder, either before or after judgment in the First Proceedings, and second, the use of company funds to defend these proceedings on behalf of all defendants.
Ultimately, the parties agreed the issues for determination in these proceedings were as follows:
(a)Has the conduct of KPI's affairs or any part thereof been oppressive to, unfairly prejudicial to, or unfairly discriminatory against Morara in any capacity? (Plaintiff's issue 1/ Defendant's issue 4).
(b)Is it oppressive, unfairly prejudicial to, or unfairly discriminatory for KPI to fail to pay an amount to a person who has not made a demand for payment and has insisted the amount is due to another? (Defendant's issue 6).
(c)Is Mr Weaver's remaining entitlement to remuneration (as found by Vaughan J in the First Proceedings) limited to $483,175.20? (Defendant's issue 8).
(d)If the court finds there are grounds for making an order under s 233 of the Act, what, if any, orders are appropriate in all of the circumstances? (Plaintiff's issue 2/ Defendant's issue 9).

Legal principles - Oppression

The plaintiff's claim is based on a claim for oppression, pursuant to s 232 and s 233 of the Act.
Section 232 of the Act provides:
232 Grounds for Court order
The Court may make an order under section 233 if:
(a) the conduct of a company's affairs; or
(b) an actual or proposed act or omission by or on behalf of a company; or
(c) a resolution, or a proposed resolution, of members or a class of members of a company;
is either:
(d) contrary to the interests of the members as a whole; or
(e) oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity.
For the purposes of this Part, a person to whom a share in the company has been transmitted by will or by operation of law is taken to be a member of the company.
Note: For affairs, see section 53.
Section 53 of the Act defines the 'affairs of a body corporate' to include:
(a)the promotion, formation, membership, control, business, trading, transactions and dealings (whether alone or jointly with any other person or persons and including transactions and dealings as agent, bailee or trustee), property (whether held alone or jointly with any other person or persons and including property held as agent, bailee or trustee), liabilities (including liabilities owed jointly with any other person or persons and liabilities as trustee), profits and other income, receipts, losses, outgoings and expenditure of the body; and
…
(c)the internal management and proceedings of the body; and
…
(g) matters concerned with the ascertainment of the persons who are or have been financially interested in the success or failure, or apparent success or failure, of the body or are or have been able to control or materially to influence the policy of the body;
Where one or both of the conditions in s 232(d) or s 232(e) of the Act are satisfied, the court may make an order under s 233 of the Act.
The principles that apply to determine whether conduct is oppressive, unfairly prejudicial, or unfairly discriminatory, are well known and are not in dispute. They can be summarised as follows.
Section 232 and s 233 of the Act should be read broadly.[18] As was noted by French CJ in Campbell v Backoffice Investments Pty Ltd:[19]
The imposition of judge-made limitations on their scope is to be approached with caution.
[18] Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 [72] (French CJ) [176] (Gummow, Hayne, Heydon & Kiefel JJ).
[19] Campbell v Backoffice Investments Pty Ltd [72].
On an application under s 232 of the Act for orders pursuant to s 233 of the Act, the court may make orders where the conduct, act or proposed act or resolution is either contrary to the interests of the members as a whole or 'oppressive to, unfairly prejudicial to, or unfairly discriminatory against' a member or members whether in that capacity or in any other capacity.[20] The weight of authority is that this is a composite phrase and that these individual elements are simply different aspects of what is the essential criterion of the section, namely commercial unfairness.[21]
[20] Corporations Act2001 (Cth) s 232.
[21] Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692, 704 (Young J); Joint v Stephens [2008] VSCA 210 [134]; Hillam v Ample Source International Ltd (No 2) [2012] FCAFC 73; (2012) 202 FCR 336 [4]; Russell v Lee Holdings Pty Ltd [No 3] [2020] WASC 346 [137].
In this case, Morara relies on s 232(e) of the Act. That is, Morara contends that the conduct of KPI has been oppressive to its interests as a shareholder or in another capacity.
The question as to what conduct against a member in 'any other capacity' falls within the terms of s 232 is not settled. In IceTV Pty Ltd v Ross, Brereton J expressed the view that:[22]
[S]ince the amendments to the oppression provision in the 1980s, oppression can be of a shareholder, not only qua shareholder, but in some other capacity. This does not, however, mean that, just because a person is a shareholder, oppression of that person in some capacity unrelated to his or her interest in the company will give a remedy under Corporations Act, s 233. In Re Dernacourt Investments Pty Ltd, (1990) 20 NSWLR 588, Powell J made observations that suggest that the oppression of the victim still has to be in a capacity of involvement with the corporation – whether as shareholder, officer or employee (at 515‑6). In John J Starr (Real Estate) Pty Ltd v Andrew (Australasia) Pty Ltd (1991) 6 ACSR 63, Young J, as the Chief Judge then was, said that if the oppression of the plaintiff was only in its capacity as a franchisee of the defendant then the Court would decline to grant relief (at 65-6). In my view, the extension of the oppression provision to oppression of a shareholder "whether in that or any other capacity" was not intended to confer a remedy on a person who happened to be a shareholder of a company in respect of conduct of a company vis-a-vis that person which was unconnected with the person's involvement or interest in the company.
[22] IceTV Pty Ltd v Ross [2008] NSWSC 1321 [13].

In Smith Martis Cork & Rajan Pty Ltd v Benjamin Corp Pty Ltd,[23] the Full Court of Federal Court cited with approval the comments of the learned authors of Ford's Principles of Corporations Law that it is not every relationship of a member to a company which will demand relief. In that case, the court noted that the 'various family trusts and corporations of the founding members were treated as the vehicles of the relevant individuals without any distinction being drawn between the position of the founding members and their respective entities'.[24] The court then stated:[25]
The question will, as the authors observe at [11.470], turn on the size and nature of the company and whether the particular relationship has significance independently of membership of the company. The text continues as follows:-
"… Whether the section is attracted would seem to depend on whether, in the circumstances, the employment relation was a way in which the member received a return for investment or whether the employment was independent of being a member. So, for example, where a small company is so organised that benefits are tied to being a director rather than a shareholder, a member-director who is unfairly prejudiced as director no longer has to resort to an application for winding up on the just and equitable ground …"
In the present case the Company was so organised that Benjamin Corporation received its remuneration by way of a reward for the services provided by Mr Martis through his directorship of the Company and, in particular, through the servicing by him of his clients under the authorised representative agreement. It seems to us that this is the sort of relationship which was contemplated by the widening of the language of the section.
[23] Smith Martis Cork & Rajan Pty Ltd v Benjamin Corp Pty Ltd [2004] FCAFC 153.
[24] Smith Martis Cork & Rajan Pty Ltd v Benjamin Corp Pty Ltd [102].
[25] Smith Martis Cork & Rajan Pty Ltd v Benjamin Corp Pty Ltd [106] - [107].
The South Australian Court of Appeal recently discussed the meaning of s 232(e) in Melrob Investments Pty Ltd v Blong Ume Nominees Pty Ltd.[26] Relevantly, Bleby JA (Lovell JA and David JA agreeing), after referring to Smith Martis Cork & Rajan Pty Ltd v Benjamin Corp Pty Ltd, stated that:[27]
This analysis suggests that where conduct of the company's affairs (relating to, say, trust property) could be said to be oppressive to a unit holder in a trust of which the company is trustee, but that unit holder has no relationship to the shareholding in the company, s 232(e) might not be engaged.
However, that is not to say that to affect adversely the interests of the beneficiaries of a trust who are not members may not still engage the interests a member or members in a manner contemplated by s 232(e). It has been suggested that:
The extent to which a member can be affected “in any other capacity” requires consideration of the possible structures involved. As a broad proposition, it can be stated that often the member will not be directly affected by the unfair administration of the trust (because often the member will often not be a beneficiary of the trust in a strict sense), yet the member will often be indirectly affected because the entity which is a beneficiary of the trust will often be related in some way to the member.
(Footnote omitted)
I would not hazard to express a general, let alone universal, delineation of the relationships between members of a company and beneficiaries of a trust of which the company is trustee that will, and will not, engage the operation of s 232(e). Whether the interests of a member in some other capacity have been affected such as to engage s 232(e) should be approached on a case-by-case basis, bearing in mind the general principle that the section is to be construed broadly.
[26] Melrob Investments Pty Ltd v Blong Ume Nominees Pty Ltd [2022] SASCA 29.
[27] Melrob Investments Pty Ltd v Blong Ume Nominees Pty Ltd [117] - [119].
The question as to whether the conduct in question can be characterised as 'oppressive, unfairly prejudicial, or unfairly discriminatory' turns on an objective assessment of the relevant facts and circumstances of the particular case. As Sifris J stated in Exton v Extons Pty Ltd:[28]
From a review of the more relevant authorities, the critical issue is commercial unfairness, judged objectively. It usually results in some harm or prejudice by such conduct that is not reasonably or commercially justifiable. Of course all of the facts and circumstances and context needs to be examined in order to determine whether such conduct alleged is oppressive. Further, upon such examination conduct that may appear unfair may be fully justified. It goes without saying that the authorities referred to below deal with a range of different factual considerations and relationships. Each case must depend on its own facts and circumstances.
[28] Exton v Extons Pty Ltd [2017] VSC 14; (2017) 53 VR 520 [48].
In determining whether there has been commercial unfairness, this has to be considered in the context of the particular relationship between the parties which is in issue. This will often involve a balancing exercise between competing considerations.[29]
[29] Joint v Stephens [136]; Hillam v Ample Source International Ltd (No 2) [4].
In Re Ledir Enterprises,[30] Black J cited with approval the observations of Richardson J in Thomas v HW Thomas Ltd:[31]
Fairness cannot be assessed in a vacuum or simply from one member's point of view. It will often depend on weighing conflicting interests of different groups in the company. It is a matter of balancing all the interests involved in terms of the policies underlying the companies legislation in general and s 209 in particular; thus to have regard to the principles governing the duties of a director in the conduct of the affairs of a company and the rights and duties of a majority shareholder in relation to the minority; but to recognise that s 209 is a remedial provision designed to allow the Court to intervene where there is a visible departure from the standards of fair dealing; and in the light of the history and structure of the particular company and the reasonable expectations of the members to determine whether the detriment occasioned to the complaining member's interests arising from the acts or conduct of the company in that way is justifiable.
[30] Re Ledir Enterprises [2013] NSWSC 1332; (2013) 96 ACSR 1[179].
[31] Thomas v HW Thomas Ltd [1984] 1 NZLR 686, 694.
In considering whether the conduct complained of by the plaintiff is oppressive, it is relevant to consider the course of conduct of the parties, including the conduct of the plaintiff. In Re London School of Electronics Ltd, Nourse J explained why the plaintiff's conduct was relevant in the following terms:[32]
The conduct of the petitioner may be material in a number of ways, of which the two most obvious are these. First, it may render the conduct of the other side, even if it is prejudicial, not unfair. Secondly, even if the conduct on the other side is both prejudicial and unfair, the petitioner's conduct may nevertheless affect the relief which the court thinks fit to grant under subsection (3). In my view there is no independent or overriding requirement that it should be just and equitable to grant relief or that the petitioner should come to the court with clean hands. (footnotes omitted) (citations omitted)
[32] Re London School of Electronics Ltd [1986] Ch 211, 222; [1985] 3 WLR 474, 482, cited with approval in Australian Institute of Fitness Pty Ltd v Australian Institute of Fitness (Vic/Tas) Pty Ltd (No 3) [2015] NSWSC 1639; (2015) 109 ACSR 369 [102].
In Morgan v 45 Flers Avenue Pty Ltd, Young J noted that whether oppression was established was to be determined by reference to the nature of the business carried on by the company and the nature of the relations between its participants and:[33]
whether objectively in the eyes of a commercial bystander, there has been unfairness, namely conduct that is so unfair that reasonable directors who consider the matter would not have thought the decision fair.
[33] Morgan v 45 Flers Avenue Pty Ltd 704.
As was noted by Brereton J in ReOptimisation Australia Pty Ltd:[34]
[I]n a case of a closely held company, formed or continued on the basis of a personal relationship involving mutual confidence, in which shareholders have entered into association upon the understanding that each of them who has ventured capital will also participate in the management of the company, and there are legal or practical restrictions on the transfer of shares, so that a member cannot take out his or her stake and go elsewhere, it is usual, rather than exceptional, for equitable considerations to constrain the legal powers of the majority, such that it would usually be considered unjust, inequitable or unfair for a majority to use their voting power to exclude a member from participation in management, without giving him the opportunity to remove his capital upon reasonable terms. (emphasis in the original)
[34] ReOptimisation Australia Pty Ltd [2018] NSWSC 31; (2018) 362 ALR 374 [298].
Because the test is an objective test, a plaintiff does not have to prove the defendant knew or believed their conduct was unfair. The question of commercial unfairness is to be judged having regard to the facts known to the parties at the time of the conduct complained of, and not by reference to what subsequently transpires or facts which subsequently become known.[35] For this reason, if a respondent acts on the basis of an honest but mistaken belief, the conduct may not be unfair.[36]
[35] Chase Corporation (Australia) Pty Ltd v North Sydney Brick and Tile Co Ltd (1994) 35 NSWLR 1, 26; Joint v Stephens [138].
[36] Joint v Stephens [138].
In Campbell and Another v Backoffice Investments Pty Ltd and Another,[37] Gummow, Hayne, Heydon and Kiefel JJ reiterated the point that the conduct of a company's affairs may be oppressive even though the conduct is otherwise lawful, and the person engaging in the conduct believes he or she is acting lawfully.
[37] Campbell v Backoffice Investments Pty Ltd [176].
The Court of Appeal recently summarised the principles that govern buy‑out orders under s 233 of the Act in Porter Street Investments Pty Ltd v Nellbar Pty Ltd.[38] In that case, the court observed that:[39]
Section 233(1) is in wide terms. The court 'can make any order under this section that it considers appropriate in relation to the company'. The remedial power under s 233(1) is confined only to the extent that the subject-matter, scope and purpose of the provision may enable the court to determine that a particular exercise of the power would be definitely extraneous to any object the legislature could have had in mind. In determining what is definitely extraneous regard must be had to the non-exhaustive list of permissible kinds of orders in ss 233(1)(a) ‑ (j).
[38] Porter Street Investments Pty Ltd v Nellbar Pty Ltd [2022] WASCA 33 [94] - [95].
[39] Porter Street Investments Pty Ltd v Nellbar Pty Ltd [93].
The court went on to state that:[40]
Section 233(1) of the Corporations Act does not prescribe the basis on which the price for shares is to be fixed if a compulsory purchase order or a buy-back order is made. As Gummow, Hayne, Heydon and Kiefel JJ stated in Campbell v Backoffice Investments Pty Ltd:
Although s 233(1)(d) gives the court power to make an order for the purchase of shares by a member, the Corporations Act is silent about the terms on which such a sale may be ordered. In particular, the Corporations Act does not identify the basis upon which the price for the shares is to be fixed if an order for compulsory purchase is made. Under earlier forms of the oppression provisions of companies legislation, orders were made for the compulsory sale of shares by one member to another at prices to be fixed according to various criteria. In some cases the price has been fixed at the value the shares would have had at the commencement of the proceedings but for the effect of the oppressive conduct. In other cases a date other than the date of commencement of the proceedings has been fixed. Again, there is no reason to give the present oppression provisions some narrower construction. In particular, the power given to the court by s 233(1)(d) should not be hedged about by implied limitations. (citations omitted)
[40] Porter Street Investments Pty Ltd v Nellbar Pty Ltd [96].
The court then summarised the following principles which arise from the authorities:[41]
[41] Porter Street Investments Pty Ltd v Nellbar Pty Ltd [97] - [98].
1.The court has a wide discretion once s 233 has been enlivened by a finding of oppression under s 232 - a discretion that extends both as to the appropriate remedy and, if the court orders compulsory purchase of shares, as to the mode of valuation of the shares.
2.The purpose of a buy-out order is not to compensate for loss; it is to separate the oppressor and the oppressed.
3.The court should fix a price for the shares that represents a fair value in all the circumstances of the case.
4.In looking to the 'fair value' one must look at all the circumstances of the case and seek to put the oppressed in the same position as nearly as can be if there had been no oppression, erring, if there is to be any erring, on the side of the oppressed.
5.The date at which the shares are to be valued varies having regard to all relevant circumstances.
6.There is no hard rule as to the selection of the valuation date. The question is what is the fair time for valuation of the shares having regard to the overriding requirement of justice and fairness to both parties in all the circumstances of the case. As was said by Chernov JA (Neave JA agreeing) in Foody v Horewood:
[T]he court's discretion in determining the date of valuation in respect of shares to be purchased from an oppressed minority shareholder is wide and absolute, subject to the requirement that it be exercised judicially, and is to be informed by the justice and fairness of the particular situation. In [the judgment under appeal] his Honour recognised, correctly, I think, that there is no firm rule by which the relevant date of valuation is to be selected …
In short, the overriding requirement when valuing the shares of a company for the purpose of a compulsory purchase order or a buy-back order is that the valuation, and the date at which the valuation is carried out, be fair. What fairness requires depends on the facts of the particular case. (citations omitted)

It is not necessary that the conduct complained of be continuing at the time the Court considers making an order. The starting point for the determination of whether s 232 of the Act is engaged, and what relief should be granted, is the stance taken by the defendants at the time the proceeding is commenced.[42]
[42] Campbell v Backoffice Investments Pty Limited [65], [182]; HNA Irish Nominees Ltd v Kinghorn (No 2) [2012] FCA 228; (2012) 290 ALR 372 [521] (Emmett J).

Whether the failure to pay remuneration to Mr Weaver is oppressive

It is not in dispute that KPI has not paid Mr Weaver the amount of $683,175 found by Vaughan J to be reasonable remuneration for the services he provided to KPI between 17 August 2010 and 6 December 2013,[43] or any lesser amount.
[43] Reasons [416].
Morara relies on the findings of Vaughan J that:
(a)Morara was 'effectively Mr Weaver's alter ego with respect to KPI';[44]
(b)there were pre-incorporation discussions between Mr Weaver and the Cranstons in relation to an intended remuneration agreement of Mr Weaver which provided reward for effort;[45]
(c)Mr Weaver made significant efforts to agree his remuneration structure with the Cranstons;[46] and
(d)the services provided to KPI were performed by Mr Weaver as an officer of KPI.[47]
[44] Plaintiff's submissions [16].
[45] Reasons [353].
[46] Reasons [177] - [179], [181], [184], [186], [187], [198] - [200], [202] - [204], [209] – [211], [214], [215].
[47] Reasons [378].
Morara submits that the failure by the Cranstons to agree a remuneration structure for Mr Weaver for the services he provided to KPI was a failure within the 'affairs of the company' and was commercially unfair. On this basis, Morara contends the conduct of KPI's affairs by the Cranstons was oppressive to, unfairly prejudicial to, and unfairly discriminatory against Morara.
The defendants deny Morara has standing to seek relief for the non-payment of fees to Mr Weaver. The defendants submit that there was no relevant act of oppression against Morara because there was never an intention that Morara would be remunerated 'by way of payments made to its director'.[48] In this case, there was no relevant act or omission against Morara.
[48] ts 96.
Senior counsel emphasised that not every relationship between a shareholder and a company gives standing to seek relief under s 232 and s 233 of the Act. The defendants referred me to a number of authorities which, it contends, support its position that there was no relevant act or omission against Morara (in KPI failing to make any payment to Mr Weaver).
The defendants emphasise that, prior to April 2020, no claim was advanced by Mr Weaver that he was entitled to any remuneration in his personal capacity. The claim that was advanced at all times prior to this was that remuneration was payable to Warrington. This claim was rejected by the trial judge and the Court of Appeal. In these circumstances, the defendants said that their failure to pay any remuneration to Warrington could not be oppressive to, unfairly prejudicial to, or unfairly discriminatory against Morara. The defendants submit that it is not open for the plaintiff or Mr Weaver to ignore the manner in which the case had been advanced prior to this date and that this has to be taken into account in assessing whether the defendants' conduct was unfair.
In the defendants' submission, it was not oppressive for KPI to fail to make any payment to Mr Weaver after 3 April 2020. This was because the majority of the remuneration payable to Mr Weaver was payable by 3 December 2013. As such, any claim to this payment became statute barred in December 2019. The only claim that was not statute barred was an amount of $55,092.60 which became payable in 2017.
As was noted by Young J in John J Starr (Real Estate) Pty Ltd v Andrew (Australasia) Pty Ltd, the first of the cases relied upon by the defendants, the court considers the effect of the conduct as well as the relationship of which the defendants' conduct is complained about.[49]
[49] John J Starr (Real Estate) Pty Ltd v Andrew (Australasia) Pty Ltd (1991) 6 ACSR 63, 65.
For the reasons which are set out below, I do not accept that Morara does not have standing to bring a claim for oppression based on the failure to pay remuneration to Mr Weaver or that the only effect complained about by the plaintiff is in relation to a separate, unrelated contractual relationship between Mr Weaver and KPI.
First, as was found by Vaughan J, Morara was effectively Mr Weaver's alter ego. There are only three members of the company. No distinction was drawn by Mr Weaver, Evan Cranston and John Cranston between them and the entities in which they held their respective shareholdings in KPI.
Second, the relationship between Mr Weaver and KPI, which gave rise to the entitlement to remuneration, arose because Mr Weaver was an executive director of KPI. Mr Weaver was an executive director of KPI because he was a member of KPI. That is, the relationship did not arise independently of Morara's membership of the company.
Third, the pre-incorporation discussions, as found by Vaughan J, were to the effect that Mr Weaver would be rewarded for his effort in building the investments of KPI. This was to occur not just through the increase in the value of his shareholding (which he held in the name of Morara) but by payment of remuneration.

In these circumstances, the failure by the Cranstons to act in accordance with these pre-incorporation discussions and agree the details of Mr Weaver's remuneration structure and make any payment to him to reward him for the effort he expended was, in my view, commercially unfair.
It is important to stress that, in my view, the commercial unfairness does not arise from the failure by KPI to pay Mr Weaver. I accept that until the proposed amendment to the statement of issues in this case, it was never contended that Mr Weaver in his individual capacity was entitled to payment. Until that time, the claim was prosecuted by Warrington. KPI successfully defended that claim. I accept that this conduct, while prejudicial to the interests of Mr Weaver and Morara, was not unfair.
In this case, the commercial unfairness arises from the failure by Evan Cranston and John Cranston to act in accordance with the pre-incorporation discussions. Given these discussions, it was not reasonable or commercially justifiable for the majority shareholders to take the benefit of the work done by Mr Weaver without agreeing his remuneration structure or making any payment to him.
The evidence before me is that this behaviour has continued as the defendants have not agreed the structure of Mr Weaver's remuneration nor made any payment to him. On this basis, I accept that the oppression of the plaintiff is ongoing and has not been terminated by the judgment of Vaughan J.

Whether payment of defendants' legal costs by KPI is oppressive?

It was not in dispute that the payment of legal fees in defending proceedings for oppression may be relied upon by a member as a ground of oppression. As was noted by Byrne J in Re DG Brims and Sons Pty Ltd under the heading 'Misuse of company funds':[50]
Many thousands of dollars of company funds have been spent on lawyers, accountants and valuers in defending these proceedings on behalf of the majority shareholders. This is unfair and infringes the basal principle that "the powers, and the funds, of a company may be used only for the purposes of the company". No doubt a small part of the expenditure was justifiable; for example, in discovery, and in resisting such orders as that the company purchase the shares or pay a dividend for 1991. Expenditure to protect its discrete interests or for other proper purposes of the company may be made from company resources. The essential dispute here, however, is between the shareholders; and company funds should not have been used to defend the majority shareholders.
[50] Re DG Brims and Sons Pty Ltd [1995] QSC 53; (1995) 16 ACSR 559, 591 - 592.
In Power v Ekstein,[51] Austin J reviewed the authorities to the date of that judgment and concluded that the preponderance of authority was that there is no rule that expenditure of company funds on defending a claim for oppression is improper. The test is whether the company's participation in the proceedings is necessary or expedient in the interests of the company as a whole. This requires consideration of the particular circumstances of the case.[52]
[51] Power v Ekstein [2010] NSWSC 137; (2010) 77 ACSR 302 [112], [114] - [115].
[52] See also Trojan Equity Ltd v CMI Ltd [2011] QSC 346; (2011) 87 ACSR 144 [25] - [28].
In that case, his Honour held that a company had a legitimate interest in resisting a compulsory purchase order, ensuring the burden of the order fell fairly and that the valuation of shares was fair to the interests of the company. He also expressed the view that:[53]
It also seems to me that a company has a legitimate interest in responding to a challenge to the validity of its decision-making, and hence the Companies should be permitted to respond to the plaintiff's allegations about failure to comply with constitutional provisions about rotation of directors leading to an absence of directors. That argument does not just affect the directors; it affects the integrity of the company and the interests of its members as a whole, by challenging the validity of its corporate actions.
[53] Power v Ekstein [120].
In this case, there are only three shareholders of KPI. The defendants to these proceedings are KPI, Evan Cranston (a director and shareholder of KPI), and John Cranston (who is neither a director nor a shareholder of KPI in his own name). The evidence before me is that until May 2016, the company expended $43,125.95 (inclusive of GST) in instructing Hotchkin Hanly to defend these proceedings.[54]
[54] Cf Defendants' submissions [37] which refers to this amount as being $60,304.55.
In about May 2016, the defendants instructed Douglas Cheveralls Lawyers to act for them in both these proceedings and the First Proceedings. No distinction is drawn on the face of the invoices as to whether the invoices are issued in relation to this matter or the First Proceedings. The plaintiff says that fees of $16,870.70 have been incurred in defending these proceedings,[55] although it was not clear as to how this amount had been calculated.
[55] Schedule to plaintiff's submissions Line 85.
In this case, subject to the following exception, it is my view that the dispute in these proceedings is between the shareholders and their alter-egos, namely Mr Weaver, Evan Cranston and John Cranston. No allegation has ever been raised in the proceedings as to the validity of decision making by reference to KPI's constitution or any other issue that affects the interests of its members as a whole. Discovery has not been ordered nor provided by any party. For these reasons, I do not consider that the expenditure of company funds for the defence of these proceedings is for a proper purpose and that the conduct of the Cranstons and their associated shareholders in causing this to occur is commercially unfair and oppressive to the interests of the plaintiff.
The exception to this is the costs incurred in relation to the interlocutory application for an injunction following the delivery of Vaughan J's reasons for decision in the First Proceedings. On 22 March 2019, the plaintiff filed an application for an interlocutory injunction in these proceedings seeking to restrain KPI from dissipating the amount it had received under the judgment of Vaughan J which was then subject to appeal. I accept that in this case, orders were sought against KPI and that it was appropriate for KPI to expend funds to successfully defend the application that had been brought.
It is not possible from Exhibit 1 to determine whether these fees fall within the amount of $16,870.70 or not. To the extent that this amount includes fees incurred in relation to the application for interlocutory injunction, the payment of these fees by KPI does not constitute conduct which is commercially unfair or oppressive.

Relief

The plaintiff seeks an order that the first defendant pay Mr Weaver, a director of the plaintiff, $683,175 as reasonable remuneration for the services he provided to the first defendant between 17 August 2010 and 6 December 2013. In the event KPI has insufficient assets to meet this payment, the plaintiff seeks an order that Evan Cranston and John Cranston pay money to KPI to enable this payment to be made.[56] The plaintiff also sought an order that the second and third defendants purchase the plaintiff's shares in KPI.
[56] ts 50.
Initially, the plaintiff contended that the value of the shares should be calculated by reference to the 'book value' of the shares based on the most recent company accounts. This was said to be the appropriate valuation as KPI is no longer trading. In calculating the value of the shares, the plaintiff says that two adjustments should be made: first, for legal fees paid by KPI which are required to be repaid to the first defendant; and second, for the payment to Mr Weaver of his remuneration. Once these adjustments have been made, the plaintiff contends the net assets of the first defendant should be divided by 90, being the number of shares on issue, and the plaintiff paid 30 times this value (to represent the 30 shares held by the plaintiff). In the course of argument, counsel for the plaintiff altered his position and submitted the primary relief sought by the plaintiff was for the payment of $683,215 and that if this occurred, Morara would transfer its shares for nothing.[57]
[57] ts 93.
In support of these orders, counsel for the plaintiff submitted that these proceedings had been run as an alternative claim to the First Proceedings. It was contended the court should exercise its 'extremely broad' powers under s 233(1)(j) and that 'the appropriate way to end that oppression is to pay the amount that the court found was the appropriate remuneration'.[58]
[58] ts 44 - 46.
The defendants oppose any order being made for the payment of any amount to Mr Weaver under s 233 of the Act. Three reasons were advanced for this submission. First, the plaintiff did not have standing to seek this relief. Second, until the dismissal of the appeal against the decision in the first proceedings, Mr Weaver had maintained that any remuneration was payable to Warrington and not to him personally. In their submission, no order should be made requiring the payment of remuneration to Mr Weaver as the limitation period had expired in relation to most of the claim. Third, and in any event, having failed in the First Proceedings, the court should not exercise its discretion to order any payment be made to Mr Weaver.
Pursuant to s 233(1) of the Act, the court may make any order under this section that it considers appropriate in relation to the company, including an order 'requiring a person to do a specified act' (s 233(1)(j)).
In Parker v Auswild,[59] the Victorian Court of Appeal considered the proper construction of s 233(1)(j). The court held that:[60]
The court is empowered under s 233(1)(j) of the Act to require a person to do a specified act. In Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd, the New South Wales Court of Appeal reviewed the purpose and scope of the power then found in s 260(2) of the Corporations Law which permitted the court to make such order as it thinks fit in the event of oppressive conduct including as to various specified matters. Spigelman CJ agreed with an observation by the trial judge that the amendments to s 260 had been designed to ensure that the court was invested with plenary power to deal with oppression with whatever weapons seem just and equitable. Spigelman CJ also expressed his agreement with the reasons of Priestley JA to similar effect.
Priestley JA held that s 260 was intended to be, and was, sufficiently flexible to allow the claimed breaches of fiduciary duty to be addressed. The text of s 260 as it had evolved called for such an interpretation. The legislative history of s 260 considerably reinforced that understanding of the words.
In our view, the observations of Spigelman CJ and Priestley JA as to the legislative intent underlying s 260(2) of the Corporations Law are just as applicable to s 233(1) of the Act. Section 233(1) permits the court to make any order it considers appropriate in relation to a company including a list of specified orders. They include an order under s 233(1)(j) requiring a person to do any specified act. The general discretionary powers of the court under s 233, and in particular the power under s 233(1)(j), authorise an order that the applicants reimburse the plaintiff companies for the costs and disbursements which they have incurred in a proceeding, as well as other expenses or losses which they may have incurred or been ordered to pay. (citations omitted)
[59] Parker v Auswild [2022] VSCA 8; (2022) 403 ALR 111.
[60] Parker v Auswild [131] - [133].
The court went on to state that:[61]
[I]t is our view that the powers given to courts under s 233 should be given a liberal construction in order that the oppression with which ss 232 and 233 of the Act are concerned may be more fully relieved.
[61] Parker v Auswild [138].
Counsel for the plaintiff denied that its claim, which was based on oppression, was statute barred.
I accept this submission. As O'Bryan J stated in Hylepin Pty Ltd v Doshay Pty Ltd:[62]
A claim for oppression under s 232 is not subject to any limitation period, and the oppression remedy allows the Court to make orders even if the oppressive conduct has ceased. Nevertheless, the Court has a broad discretion as to remedy. (citations omitted)
[62] Hylepin Pty Ltd v Doshay Pty Ltd [2020] FCA 1370; (2020) 148 ACSR 30 [27].
However, while the claim may not be statute barred, the extent of the delay is a relevant factor in the exercise of the court's discretion in determining whether or not to grant relief under the Act.
In this case, until April 2019, no claim was made by Mr Weaver in his personal capacity to any entitlement to remuneration. Until judgement was delivered in the First Proceedings, the claim that was advanced was that Warrington was entitled to payment. For the first time, in April 2019, at the hearing of the application for an interlocutory injunction in these proceedings, counsel for Morara foreshadowed that an alternative position would be advanced in these proceedings on behalf of Mr Weaver. At no stage has Mr Weaver commenced proceedings against KPI to recover the remuneration he says is due to him.
While I am satisfied the conduct of the defendants in failing to agree Mr Weaver's remuneration or to make any payment to him is oppressive conduct, I do not consider this means an order should be made to require KPI to now pay to Mr Weaver the amount found by Vaughan J to comprise his reasonable remuneration. The delay of Morara (and Mr Weaver) in advancing this claim has not been explained. There is no evidence that this delay has arisen as a consequence of any conduct on the part of the defendants.
In these circumstances, while I accept that the claim based on oppression is not statute barred and that it would be open to the court to make the orders sought, I decline to exercise my discretion to do so. In my view, at the date of the hearing of this application and the date of delivery of these reasons, it is not commercially unfair for KPI or the majority shareholders to refuse to pay to Mr Weaver an amount that it could not be compelled to pay to him. For this reason, it is unnecessary for me to determine whether the advances paid by KPI should be deducted from the amount found by Vaughan J to be reasonable remuneration.
There is one exception to this, namely the amount of $55,092.60 which was received by KPI in 2017 as a success fee in relation to one of the property syndicates. I accept that this is an amount that Mr Weaver could seek payment of.
In my view, the appropriate relief that should be given in this case is that KPI should be ordered to pay Mr Weaver the sum of $55,092.60.
In respect of the second aspect of oppression that I have found, I consider that in order to address this ground of oppression, Evan Cranston and John Cranston should be ordered to repay to KPI any payments that were made by KPI for the legal costs of these proceedings, with the exception of the costs of the application for an interlocutory injunction in these proceedings dated 22 March 2019.
Given the history of the dispute between these parties, I consider that orders should be made to separate the interests of the parties on a final basis. For this reason, I consider it is appropriate for the second and third defendants to purchase the plaintiff's shares. Given KPI is no longer trading, my initial view is that the value of the shares may be able to be calculated based on the financial statements of the company. However before making any final orders in this regard, I will hear from the parties given the length of time that has passed since the hearing of this matter.

Orders

For the reasons set out above, I consider the plaintiff has made out its claim for oppression. In order to remedy the oppression, I consider that orders should be made as follows:
(a)KPI pay to Mr Weaver the sum of $55,092.60;
(b)Evan Cranston and John Cranston reimburse KPI for all amounts paid by KPI to legal advisers in connection with these proceedings, with the exception of the costs of the application for an interlocutory injunction dated 22 March 2019; and
(c)Evan Cranston and John Cranston purchase the plaintiff's shares in KPI.
I will hear from the parties as to the precise orders that are required to give effect to these orders, together with interest, costs and the valuation of the plaintiffs' shares.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FD
Associate to the Honourable Justice Hill
4 NOVEMBER 2022