Morrison v Woodthorpe [No 3] - [2022] WASC 454

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   MORRISON -v- WOODTHORPE [No 3] [2022] WASC 454
CORAM:   TOTTLE J
HEARD:   14 - 17 NOVEMBER 2022
DELIVERED          :   22 DECEMBER 2022
FILE NO/S:   COR 64 of 2022
BETWEEN:   ALLAN ROY MORRISON
First Plaintiff
ADAMUS RESOURCES PTY LIMITED
Second Plaintiff
AND
KEVIN MARK WOODTHORPE
First Defendant
PETER BASIL WALLACE MICHAEL
Second Defendant
MOSES KOPENA BOSOMPEM
Third Defendant

Catchwords:

Corporations - Application to rectify register maintained by the Australian Securities & Investments Commission - Removal of director and secretary by resolution executed under s 249B of the Corporations Act 2001 (Cth) - Where member purportedly executing s 249B resolution a company incorporated in Nevis - Whether director executing resolution was de facto managing director of member company - Whether removal of director of subsidiary fell within putative managing director's implied actual authority - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 249B, s 1274, s 1322(4)
Rules of the Supreme Court 1971 (WA), O 9A

Result:

Application granted

Category: B

Representation:

Counsel:

First Plaintiff	:	E M Heenan SC & J R Shepherd
Second Plaintiff	:	E M Heenan SC & J R Shepherd
First Defendant	:	J F Park & R E Lennon
Second Defendant	:	J F Park & R E Lennon
Third Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Blackwall Legal LLP
Second Plaintiff	:	Blackwall Legal LLP
First Defendant	:	Dentons Australia
Second Defendant	:	Dentons Australia
Third Defendant	:	No appearance

Cases referred to in decision:

Damberg v Damberg [2001] NSWCA 87; (2001) 52 NSWLR 492
Entwells Pty Ltd v National and General Insurance Co Ltd (1991) 5 ACSR 424
Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2QB 480
Harold Holdsworth & Co (Wakefield) Ltd v Caddies [1955] 1 WLR 352
Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549
Re Centura Global Holdings Ltd [2016] NSWSC 62; (2016) 111 ACSR 185
Re Seabay Kitchen Pty Ltd [2019] NSWSC 790
SPP Ltd v Chew Beng Gim [1993] SGGA 66; [1993] 3 SLR(R)

TOTTLE J:

These proceedings arise out of a dispute between Ms Angela List and Mr Paul List. They are married but separated and are litigating in various jurisdictions over control of companies with interests in mining assets in Ghana and Mali. Those interests were acquired in separate transactions between 2017 and 2021 for an aggregate consideration of more than US$130 million. The litigation in this court was conducted through proxies - the first plaintiff representing Mr List and the defendants representing Ms List.[1] Mr List and Ms List were the only witnesses.
[1] Both Mr List and Ms List are Interested Non-Party's for the purpose of O 9A of the Rules of the Supreme Court 1971 (WA).
The proceedings concern the validity of the following:
(a)The removal of the first plaintiff as a director of the second plaintiff by Ms List (acting in her capacity as a director of BCM Investments Ltd - the sole shareholder of the second plaintiff).
(b)The appointment of the first and second defendants as directors of the second plaintiff.
(c)The appointment by the first and second defendants of the third defendant as a director of the second plaintiff immediately prior to their resignations as directors.
(d)The removal of the first plaintiff as the company secretary of the second plaintiff and the appointment of the first defendant as its company secretary and, upon his resignation, the appointment of the third defendant as the company secretary.
The plaintiffs have applied for orders rectifying the register maintained by the Australian Securities & Investment Commission in respect of the second plaintiff conformably with their contention that the removal and appointments of officers described above were invalid.[2] The third defendant did not participate in the proceedings. He attended court on the first day of the hearing and informed the court that he only wished to observe rather than participate in the proceedings.
[2] The application is brought under s 1322(4) of the Corporations Act 2001 (Cth).
In these proceedings it was common ground that Ms List and Mr List are the sole directors of BCM Investments, a company incorporated in Nevis, and that until their marriage broke down irretrievably in March 2021, they managed its affairs informally. No formal board meetings of BCM Investments were ever held.
In April and May 2021 Ms List took steps to obtain control of BCM Investments and expropriate Mr List's interest in it. These steps involved what purported to be three BCM Investments meetings. First, a meeting of shareholders on 16 April 2021 and the passing of a resolution purportedly appointing a third director, Mr Joseph Owusu‑Ansah. Secondly, a meeting of the directors of BCM Investments on 17 April 2021 and the passing of a resolution purportedly reducing the number of shares held by Rowntry Trading Ltd (the company which held Mr List's shares) from 50 to 20 shares. Thirdly, a meeting of directors on 3 May 2021 and the passing of a resolution purportedly forfeiting Rowntry's shares. In these proceedings, the fact that no notice of these meetings was given to Mr List was not disputed.
In May 2021 Ms List purported to amend the articles of incorporation of BCM Investments to change its name to Nguvu Holdings Ltd. The change of name was registered with the Office of the Registrar of Corporations in Nevis.[3] At the hearing counsel generally referred to the company by its former name of BCM Investments and I will do likewise.
[3] Trial bundle, tab 80.
After he became aware of the steps taken by Ms List, Mr List commenced proceedings in the Eastern Caribbean Supreme Court (the Nevis proceedings) and on 9 November 2021 he obtained an ex parte injunction, in effect, restraining Ms List from taking any step in the management of BCM Investments. At an inter partes hearing on 20 December 2021 the ex parte injunction was varied by reducing its scope. As varied the injunction restrained Ms List from selling BCM Investments' shares or taking steps to alter its management structure.
The first and second defendants placed no reliance on the resolutions purportedly passed in April and May 2021 at the meetings described in [5]. Rather they contend that, though not formally appointed as such, from mid-2017 Ms List acted as the managing director or president of BCM Investments, in effect acting as its chief executive officer, and that she did so with Mr List's consent or acquiescence. The first and second defendants contend that the removal of the first plaintiff as a director of the second plaintiff and the appointment of them as directors in his place were steps that were within the ambit of Ms List's implied actual authority as managing director.[4]
[4] First and second defendant's amended defence [2] - [4].
To establish their claim that Ms List acted as BCM Investments' de facto managing director the first and second defendants rely on the steps taken by her to negotiate the acquisition of the mining interests and the carrying of those agreements into effect.
Other than in minor respects the first plaintiff does not dispute Ms List's account of the work she undertook but disputes the characterisation she places on her role. The first plaintiff emphasises that Ms List was employed by the BCM Group as its Director (Finance & Administration) and further (as was acknowledged by Ms List in her evidence) that each negotiation was undertaken, and each agreement was concluded with Mr List's knowledge and consent. On that basis the first plaintiff contends that no question of implied actual authority of a managing director could arise. The first plaintiff contends that, in any event, BCM Investments was a holding company that required no day-to-day management by a managing director or chief executive officer. He contends also that if Ms List had any implied actual authority, it did not extend to removing him as a director of the second plaintiff. Further, the first plaintiff contends any implied authority had come to an end in April 2021 as was implicitly acknowledged by Ms List's attempts to obtain control over the affairs of BCM Investments in the manner described in [5]. Alternatively, the first plaintiff contends that if any implied authority held by Ms List survived the events of April 2021, any such authority was terminated by Mr List when he commenced the Nevis proceedings, that is before Ms List purportedly removed the first plaintiff as a director of the second plaintiff on 24 December 2021.
Against that background the following questions arise:[5]
(a)Did the directors of BCM Investments, in effect Mr List, agree, consent to, or otherwise acquiesce in Ms List acting as the president or managing director of BCM Investments and thereby acting as its chief executive officer with responsibility for the general management of the affairs of BCM Investments?
(b)If so, by reason of that agreement, consent or acquiescence did Ms List have implied actual authority to act as BCM Investments' chief executive officer with responsibility for the general management of the affairs of BCM Investments?
(c)If so, did that authority include actual authority on behalf of BCM Investments to appoint and remove directors of the second plaintiff?
(d)If so, did Ms List exercise that authority by signing the purported resolution of BCM Investments removing the first plaintiff as a director of the second plaintiff and appointing the first and second defendants as directors in his place?
[5] This paragraph substantially reproduces the identification of issues contained in the plaintiffs' opening submissions which the defendants' counsel accepted as an accurate statement of the issues.
For the reasons given below I have concluded that Mr List did not agree or acquiesce in Ms List acting as managing director of BCM Investments and that she did not have the implied actual authority conferred by holding that office. Even if Ms List had acted as managing director with Mr List's consent that authority was terminated when Mr List commenced the Nevis proceedings, if indeed, it had not come to an end in April 2021. It follows that Ms List had no authority to sign the resolution removing the first plaintiff as a director of the second plaintiff and appointing the first and second defendants as directors in his place and so those appointments were invalidly made. It follows also that the removal of the first plaintiff as the company secretary of the second plaintiff and the appointment of the first defendant as company secretary and the subsequent appointment of the third defendant as the director and company secretary of the second plaintiff were invalid.

Outline of the first and second defendants' case

To understand the approach I have taken to recounting the facts in the next section of these reasons, it is helpful to expand upon the basis on which the first and second defendants advance their case in respect of Ms List's authority. The overarching proposition is that from August 2017 Ms List solely controlled and managed BCM Investments and its subsidiaries. Adapting an expression used by the Court of Appeal in Singapore in SPP Ltd v Chew Beng Gim,[6] counsel for the first and second defendants described Ms List's management of BCM Investments as a 'one woman show'.[7] The first and second defendants contend this characterisation is supported by the circumstances surrounding the negotiation by Ms List and acquisition by BCM Investments of the five mining interests described below.
(a)The acquisition in 2017 of the Nzema mine and related mining tenements in Ghana from Endeavour Mining Corporation. The transaction involved the acquisition of all the shares in the second plaintiff from Endeavour Mining Corporation.[8] The terms of the acquisition were documented in a Share Purchase Agreement made on 8 August 2017 between BCM Investments and BCM International Ltd and Endeavour Mining Corporation and Endeavour Gold Corporation,[9] and according to its terms the consideration was a maximum of US$60 million with the final amount being determined (as Ms List described it) by reference to 'free cashflow'.[10] Ms List's evidence was that a total of US$46 million was paid.[11]
(b)In 2017 investing £750,000 in a placement of shares in Goldstone Resources Ltd (Goldstone), a company listed on the AIM market. Goldstone has subsidiaries in Ghana including Goldstone Akrokeri Ltd, which owns a mine in Ghana. In addition to an agreement to take the placement, BCM Investments entered an agreement entitled 'Relationship Agreement' with Goldstone.[12]
(c)The acquisition in 2018 of the Tabakoto mine in Mali from Avion Resources (Mali) Ltd (Avion), a company within the Endeavour group of companies. The transaction involved the acquisition of all the shares in Tabakoto Holdings Ltd from Avion Resources. The terms of the acquisition were documented in a Share Purchase Agreement made on 1 September 2018 and according to its terms the consideration was US$59,750,000 subject to adjustment including for what was termed 'leakage' in the agreement.[13]
(d)The acquisition in 2019 of an interest in the Konongo gold project from Talos Ghana Ltd (Talos). The transaction involved the acquisition of 80.99 per cent of the shares in Owere Mines Ltd from Talos. The terms of the acquisition were documented in a Share Purchase Agreement made on 28 November 2019 and according to its terms the consideration was US$30 million.[14]
(e)The acquisition in 2019 of an interest in mining concessions named 'South Salman' and 'Mame'. The transaction involved the acquisition of 90% of the shares in Sanu Resources Ghana Ltd from Amalgamated Investments Ltd (Amalgamated). The terms of the acquisition were documented in a Share Purchase Agreement made on 21 November 2019 and according to its terms the consideration was US$1,000,000.[15]
[6] SPP Ltd v Chew Beng Gim [1993] SGGA 66; [1993] 3 SLR(R) [24].
[7] ts 121 and 302.
[8] Trial bundle, tab 17.
[9] Unless it is necessary to distinguish between them, I will refer to each of the Endeavour companies as 'Endeavour'.
[10] ts 236.
[11] ts 237.
[12] Trial bundle, tab 22.
[13] Trial bundle, tab 39 p 645.
[14]Trial bundle, tab 59 p 898 and ts 279.8.
[15] Trial bundle, tab 58 p 866.
In their written outline of submissions,[16] the first and second defendants contend that Ms List's sole control and management of BCM Investments was evidenced by the following five matters:
[16] First and second defendants' outline of opening submissions filed 11 November 2022.
(a)First, documents and correspondence relating to the Share Purchase Agreement with Endeavour into which Mr List was not copied or referred. The first and second defendants identified 12 documents: four chains of emails exchanged with representatives of Endeavour Gold before the Share Purchase Agreement was made,[17] one memorandum sent to Ms List by the Chief Financial Officer of Endeavour,[18] four chains of emails exchanged with representatives of Endeavour after the Share Purchase Agreement was made but before it was completed,[19] a letter dated 19 December 2017 sent by Ms List to Endeavour requesting an adjustment to the purchase price,[20] and a letter received by Ms List in December 2019 from Endeavour informing her of a threat of litigation.[21]
[17] Trial bundle, tabs 13, 14, 15, 16 and 21.
[18] Trial bundle, tab 12.
[19] Trial bundle, tabs, 18, 19, 24 and 31.
[20] Trial bundle, tab 32.
[21] Trial bundle, tab 61.
(b)Secondly, Ms List's nomination of the first plaintiff as the director of the second plaintiff and its Australian subsidiary, Castlegem Pty Ltd, pursuant to clause 6.2(a) of the Endeavour Share Purchase Agreement. The first and second defendants assert Ms List was solely responsible for this nomination.
(c)Thirdly, correspondence passing between the first plaintiff and Ms List relating to the management and operation of the second plaintiff into which Mr List was not copied or referred. The first and second defendants rely on three documents.
(i)The first is a chain of emails comprising an email from Mr Jonathan Adongo (the Administration Manager of BCM Group) to the first plaintiff sent on 25 October 2017 containing the subject line 'Consent to act as a director' asking the first plaintiff to sign a form (inferentially a consent to act as a director of the second plaintiff) and return it to him, the first plaintiff's reply by email sent on 26 October 2017 attaching the completed form, a further email from the first plaintiff to Ms List and Mr Adongo sent on 26 October 2017 seeking an indemnity from any liability that might be incurred as a consequence of being a director, Ms List's reply to the first plaintiff confirming that an indemnity would be given and asking Mr Adongo to arrange it and the first plaintiff's reply to that email.[22] Each of the emails sent by Ms List and Mr Adongo were copied to Mr List as was the first plaintiff's reply to the first email received by him from Mr Adongo.
[22] Trial bundle, tab 23.
(ii)The second document is an email sent by the first plaintiff to Mr Adongo on 12 February 2019, copied to Ms List and Mr David Abini, the financial controller of BCM Ghana and BCM International to which the first plaintiff attached an invoice from ASIC and queried how it was to be paid.[23] In that email the first plaintiff also said, '[l]et's hurry and get these entities deregistered so we don't have to keep paying all these ASIC fees and charges'.
[23] Trial bundle, tab 45.
(iii)The third document comprises emails sent by the first plaintiff to Mr Adongo and Ms List attaching an overdue notice from ASIC in respect of the invoice attached to his email of 12 February 2019.[24]
[24] Trial bundle, tab 46.
(d)Fourthly, various contracts and share purchase agreements the first and second defendants assert were negotiated and executed solely by Ms List on behalf of BCM Investments. The first and second defendants rely on the following documents:
(i)The Relationship Agreement with Goldstone was executed by Ms List on behalf of BCM Investments and was not executed by Mr List.[25]
[25] Trial bundle, tab 22.
(ii)The Share Purchase Agreement with Avion which was executed by Ms List on behalf of BCM Investments and Mr List on behalf of BCM International.[26]
[26] Trial bundle, tab 39.
(iii)An amendment deed to the Share Purchase Agreement with Avion executed by Ms List on behalf of BCM Investments and Mr List on behalf of BCM International.[27]
[27] Trial bundle, tab 43.
(iv)The Share Purchase Agreement with Amalgamated executed by Ms List on behalf of BCM Investments as its 'duly authorised attorney'.[28]
[28] Trial bundle, tab 58.
(v)An addendum to a memorandum of understanding which preceded the Share Purchase Agreement with Talos executed by Ms List as 'the 'duly authorised officer for BCM Investments Limited'.[29]
(vi)A letter agreement between BCM Investments and Talos which was signed by Ms List on behalf of BCM Investments.[30]
(vii)A memorandum of understanding between BCM Investments and Amalgamated in respect of Sanu Resources Ltd which was executed by Ms List on behalf of BCM Investments.[31]
(viii)A letter dated 28 October 2019 from BCM Investments to Endeavour making a claim pursuant to an indemnity given in the Endeavour Share Purchase Agreement which was signed by Ms List.[32]
(ix)The Share Purchase Agreement with Talos which was signed by both Mr List and Ms List on behalf of BCM Investments.[33]
(x)A share transfer form in respect of the transfer of shares in Sanu Resources (Ghana) Ltd pursuant to the terms of the Share Purchase Agreement with Amalgamated which was signed by Ms List on behalf of BCM Investments.[34]
(xi)Two agreements with Amalgamated (each entitled 'Advance Payment Agreement') altering the dates for certain payments. Each agreement was executed by Ms List.[35]
(xii)A deed of share transfer in relation to the shares in Sanu Resources (Ghana) Ltd which was executed by Ms List.[36]
(e)Fifthly, Ms List's appointment on behalf of BCM Investments of herself as a director of Goldstone Akrokeri 'pursuant to cl 3.1 of the Relationship Agreement with Goldstone'.[37] I interpolate that cl 3.1 of the Relationship Agreement did not confer on BCM Investments a right to nominate a director to Goldstone's board of directors or to the board of any Goldstone subsidiary.
[29] Trial bundle, tab 47.
[30] Trial bundle, tab 48.
[31] Trial bundle, tab 51.
[32] Trial bundle, tab 56.
[33] Trial bundle, tab 59.
[34] Trial bundle, tab 67.
[35] Trial bundle, tabs 70 and 107.
[36] Trial bundle, tab 66.
[37] Trial bundle, tab 22.

The focus of much of Ms List's evidence was directed to establish that she was responsible for the negotiation of the agreements to which I have referred and the carrying of those agreements into effect. The focus of the cross-examination of Mr List was to demonstrate that he did not participate in the negotiations and he was not aware of, or did not understand, important aspects of the agreements and the projects to which they related. A recurring theme in Ms List's evidence, however, was that Mr List knew that she was negotiating each agreement and she had his consent to BCM Investments entering each agreement save for the final Advance Payment Agreement with Amalgamated.[38]
[38] ts 257, 261, 272, 278, 281, 283.

Approach to the evidence of Mr List and Ms List

Mr List and Ms List each gave their evidence-in-chief orally. Mr List was cross-examined but Ms List was not. The evidence of each was generally consistent with the facts established by the documents and in that respect was reliable. To the extent, however, that each of them gave evidence that involved a characterisation of their own or the other's conduct, and where there were conflicts in their evidence, I have approached the evidence of both of them with caution. In part this is because there was a significant elapse of time between many of the relevant events and the hearing but the primary reason for adopting a cautious approach is the risk that those aspects of their evidence were influenced (perhaps subconsciously) by their perceptions of how their evidence might serve their interests.

The facts

Mr List's business background

Bayswater Contract & Mining Pty Ltd (BCM Australia) was a civil earthworks contractor managed originally by Mr List's parents and following his father's death by Mr List and his mother, Mrs Elwyn List. In 1990 BCM Australia was awarded the civil earthworks contract for a goldfields project in Ghana. In about 1993 the headquarters of the business then operated by BCM Australia moved to Ghana.
In 1997 Rowntry was incorporated in Western Samoa. Mr List and his mother were the shareholders. In the late 1990s and early 2000s BCM Ghana Ltd was incorporated and operated as a mining services contractor in Ghana and BCM International Ltd was incorporated and operated as a mining services contractor in neighbouring countries.
On her death Mrs List's shares in Rowntry passed to Mr List's siblings and those shares were subsequently acquired by him so that by 2001 Mr List was the sole shareholder in Rowntry.[39] On 18 February 2005 Rowntry was struck off the Register of International and Foreign Companies in Samoa.[40]

Ms List's business background

[39] ts 140.

[40] Trial bundle, tab 8.

Ms List graduated from university in 1998 with a Bachelor of Science degree with a major in accounting. She worked for the accounting firm KPMG in Ghana until about mid-2001 when she took unpaid leave to assist Mr List in managing the BCM businesses following the departure of the then finance director. Ms List did not return to KPMG and from 2001 onwards worked within the BCM group of companies.

The Lists' marriage and working relationship

Mr List and Ms List married in 1997.[41] They worked closely together. When Ms List first started work with the BCM Group she sat 'across from [Mr List's] desk'.[42] Later they had offices 'right next' to each other in BCM Ghana's office.[43]
[41] ts 225 and 229.
[42] ts 226.
[43] ts 232.
Ms List' was employed as the 'Director (Finance & Administration) - BCM Group of Companies'.[44] As Mr List described it, and I find, Ms List was a 'fully paid executive of BCM International and BCM Ghana'.[45]
[44] Trial bundle, tab 13.
[45] ts 200.
By late 2020 relations between Mr List and Ms List had deteriorated. On 29 December 2020, Ms List sent Mr List a letter proposing that they separate as a couple.[46] In that letter, in addition to dealing with various personal matters Ms List stated:
We both agree not to meddle in the affairs of the other's businesses. For the avoidance of doubt I will no longer play any executive role in the affairs of BCM Contracting companies and I will execute all the necessary documents to dissociate myself from your businesses, once a full reconciliation and rationalization of assets has been completed.
[46] Trial bundle, tab 68 p 951.
Mr List and Ms List separated in March 2021.

BCM Investments

On 13 January 2000, BCM Investments was incorporated in Nevis under the Nevis Business Corporation Ordinance 1984 (the Ordinance).[47] It adopted by-laws on the same date and Morning Star Holdings Ltd was appointed as its registered agent in Nevis.[48] BCM Investments' by-laws contain provisions of a kind commonly found in the constitutions of companies incorporated under the Corporations Act 2001 (Cth).
[47] Trial bundle, tab 4.
[48] Trial bundle, tab 7.
On 4 April 2001 Mr List was appointed as the sole director of BCM Investments.[49] It is common ground that Mr List has neither resigned nor been removed as a director.
[49] Trial bundle, tab 38.
On 7 March 2002 Ms List was appointed as a director of BCM Investments. Mr Jonathan Adongo was the company secretary of BCM Investments until January 2021.
BCM Investments was largely dormant until August 2017 though by then it had acquired one third of the shares in BCM Ghana, the remaining two thirds being held by Mr List.[50]
[50] Trial bundle, tab 42.
Part 2 of article V of BCM Investments' by-laws governs the role of the person appointed as president or managing director. It provides:
The President or Managing Director shall be the chief executive officer of the Corporation and shall be responsible for the general management of the affairs of the Corporation and shall have the powers and duties usually incident to such office, except as specifically limited by appropriate resolution of the Board of Directors. He shall also have such other powers and perform such other duties as may be assigned to him by the Board of Directors. He shall preside at all meetings of shareholders at which he is present and, if he is a Director, at all meetings of the Directors.
BCM Investments had no employees. It did not have a bank account. It was not in dispute that, unlike BCM Ghana and BCM International, BCM Investments had no operations.[51]

Acquisition of Nzema mine

[51] ts, 172 and 294.

In early 2017 Ms List was approached by a friend, Mr Simon de Montessus, the chief executive officer of Endeavour, who told her that Endeavour was disposing of its 'non-core' assets and asked her whether she had any interest in acquiring a mine owned by Adamus Resources Ltd. Adamus Resources Ltd is a company incorporated in Ghana in which the second plaintiff holds 90% of the shares. I infer from the overall context that although Ms List referred to Mr de Montessus having asked her whether she had any interest in owning a mine, the question was really directed to whether BCM Group had any interest in acquiring a mine. There is no evidence to suggest that Ms List personally was in a position to make the acquisition and as will be seen the acquisition was funded in part by a US$20 million loan made to BCM Ghana.
The negotiations for the acquisition culminated in the execution of the Share Purchase Agreement on 8 August 2017. The Share Purchase Agreement with Endeavour was signed by Ms List and Mr List. Each signed as an 'authorised signatory' of BCM Investments and separately as an 'authorised signatory' of BCM International.[52] Settlement occurred on 29 December 2017.
[52] Trial bundle, tab 17 p 253.
Ms List conducted the negotiations on behalf of BCM Investments and BCM International. BCM International was a party to the agreement in its capacity as the guarantor of BCM Investments' obligations. Ms List explained the commercial reason why BCM International was a party as follows:
Because it [had] a contract [with] Endeavour Mining Limited in Cote d'Ivoire. And so [Endeavour] held the view that if BCM Investments did not come up with the money that they would deduct that source from revenue to be BCM International.
Ms List kept Mr List informed of the negotiations. Mr List's evidence-in-chief was as follows:[53]
And in terms of day-to-day operations of BCM Investments, was there anything required in running the business of BCM Investments?---Yes. You know, there was regular, you know, discussions, you know, between myself and my wife, Angela, you know, in terms of, you know, the running of the business – of the terms of the acquisition of BCM Investments, you know, was discussed. You know, yes, it was regularly discussed. You know, the acquisition. And I, you know, eventually gave my approval to acquire it.
And:[54]
Did you have any role in negotiating this agreement?---Not directly with the client, but, you know, I was – made sure I was kept very well-informed behind the scenes.
And how did you do that?---Through discussion with Angela.
And when and where did you have those discussions?---Well, you know, those discussions took place, you know, prior to – you know, prior to executing the agreement, leading up to the agreement. Yes.
[53] ts 141.
[54] ts 145.
In cross-examination Mr List's evidence was:[55]
You never provided any instructions to any party in relation to the share purchase agreement with Endeavour, did you?---Not with Endeavour, but I provided instructions to Angela.
When did you provide those instructions to Angela?---Intermittently, you know, during the negotiations. You know, she would report back to me and say, "This is where we are," you know, and we would come to a consensus on where we should go with it.
And where do you say these discussions occurred?---They would have been – they would have occurred at home, in the office.
In which office?---The BCM International and BCM Ghana office in Accra – an area called Labone in Accra.
[55] ts 165.
Leaving to one side the notion of 'instructions', Ms List's evidence was largely to the same effect as that of Mr List:[56]
Was it a single discussion or several discussions that you had with Mr List to exchange this information?---I – I'm sure there were several discussions. I – but I don't recall. You know, often I would, you know, tell him what I was doing because, you know, we were married at the time. And so I did share information on, you know, how I was going, generally, with everything.
And where were these conversations held?---Depended on where we were. There was one occasion in – in London. This was shortly before we completed, and I was telling him about, you know, the – my use – my nomination of BCM Investments for – for the transaction. And so I – I told him that Jonathan was going to give him some paperwork and to sign over because, you know, there had to be a transfer of shares to – to me. And his response was, let me think about how much to give you. To which I said, you mean I would have to tell you how much I'm going to give you, Paul. This is – this is my transaction and, you know – but – and so that conversation kind of stuck with me. I then explained to him that, you know, BCM Ghana Limited was going to be a party to – to the transaction by being the borrower of the first $20 million to – to secure the purchase. To which he said, okay. I also explained to him that BCM International Limited had to be a guarantor, because at the time, BCM International was executing a contract for Endeavour in – in Côte d'Ivoire. And Endeavour wanted to be able to withhold the monies from BCM International if I didn't come up with the money. So – and he agreed to that. So we subsequently signed the loan agreement with Standard Chartered and the SPA which is (indistinct) international.
[56] ts 234 - 235.
Mr Adongo suggested that the purchaser under the Share Purchase Agreement should be BCM Investments. Ms List explained how that came about:[57]
And do you have a recollection of how that share purchase agreement came into being?---Yes, so when I had agreed the – the terms of purchase with – with Endeavour, they asked me which entity, you know, I was intending to use. And we had a company secretary at the time, and Jonathan Adongo advised that there was a shell company that had nothing or did nothing, and suggested that we could use that. So I left the – that aspect of, you know, with him. I presented the name to Endeavour as the contracting party.
[57] ts 233.9.
In addition to negotiating the terms of the Share Purchase Agreement Ms List negotiated the terms of a US$20 million loan to BCM Ghana with the Standard Chartered Bank to finance part of the consideration payable under the agreement.[58]
[58] ts 247.
The negotiation and settlement of the Share Purchase Agreement involved a number of complex commercial and regulatory issues. These included: addressing concerns held by the Ghanian Revenue Authority that the 'repatriation' of funds from Adamus Resources Ltd to the second plaintiff involved impermissible 'transfer pricing',[59] addressing concerns held by the Ministry of Mines about tolling arrangements between Adamus Resources Ltd and other mining enterprises;[60] the necessity for funds to be retained in a 'Blocked Account' to cover potential rehabilitation liabilities and for the terms of a 'Blocked Account' agreement to be negotiated and settled,[61] and negotiating an adjustment to the purchase price.[62]
[59] ts 233.
[60] ts 238.
[61] ts 252 and trial bundle, tab 34.
[62] Trial bundle, tab 32.
It is unnecessary to review the evidence of each of Mr List and Ms List in detail in relation to these matters. It is sufficient to say that the evidence demonstrates that each of these issues was dealt with by Ms List without Mr List's involvement and his knowledge of the issues was limited. In particular, it was clear from his evidence in cross-examination that he had no real understanding of the 'transfer pricing' issue nor why a 'Blocked Account' was required or how it operated. Mr List's limited knowledge of these matters is not a basis for concluding that he was not aware of the structure of the transaction and its principal commercial terms.
The appointment of the first plaintiff as a director of the second plaintiff was effected by a circular resolution of the retiring directors of the second plaintiff dated 29 December 2017.[63]
[63] Trial bundle, tab 33.
There was a conflict between the evidence of Ms List and that of Mr List as to how the first plaintiff came to be nominated for appointment as a director of the second plaintiff. Mr List's evidence was to the effect that he discussed the nomination of the first plaintiff as a director of the second plaintiff with Ms List and they agreed they would appoint the first plaintiff.[64] Mr List said that he telephoned the first plaintiff to ask him if he would agree to become a director of the second plaintiff and he agreed. He said he asked Ms List to conclude the paperwork.[65] Ms List's evidence was that she nominated the first plaintiff to be the director of the second plaintiff and that she did not discuss that nomination with Mr List and that she spoke to the first plaintiff to ask him whether he would be a director.[66]
[64] ts 143.
[65] ts 143.
[66] ts 245.
In his email to Ms List and Mr Adongo sent on 26 October 2017 in which he asked for an indemnity, the first plaintiff wrote:
I understand the reasons you asked me to be a director of Adamus but I am not prepared to take any personal liability under Australian company law for breaches that are beyond my control.
The reference to 'the reasons you asked me to be a director' provides some support for Ms List's evidence that she spoke to the first plaintiff and asked him to be a director and I think it likely that she did so. However, I think it is most unlikely that she did not discuss the prospective appointment with Mr List to make sure that he approved and in this respect I note that both Mr Adongo's email of 25 October 2017 and Ms List's email of 26 October 2017 were copied to Mr List. Taken in isolation the emails are evidence from which it may be inferred that Mr List knew that Ms List had nominated the first plaintiff to be the director of the second plaintiff. Given that Ms List and Mr List were married, that they lived together and that they worked closely together in the BCM Group business, it is unrealistic to consider the emails in isolation. It is inherently improbable that Ms List did not discuss with Mr List the proposal to nominate the first plaintiff as a director of the second plaintiff before speaking to the first plaintiff about the matter. Further, the identity of the person or persons appointed to the board of directors of the second plaintiff was not an inconsequential detail. These proceedings attest to the potential importance of the composition of the board of the second plaintiff given the ability of the second plaintiff to control the affairs of its operating subsidiaries. In summary, in my assessment, I do not accept Ms List's evidence that she did not discuss the appointment of the first plaintiff to the board of the second plaintiff with Mr List before speaking to the first plaintiff. Her evidence is inconsistent with the probabilities arising from her personal and business relationship with Mr List, the discussions that she accepts took place with Mr List about the transaction generally and the fact that the emails referred to earlier in this paragraph were copied to Mr List.
There was a similar conflict of evidence in respect of who recommended the Perth based lawyers who acted for BCM Investments and BCM International in the transaction. Mr List's evidence was that he made the recommendation because of a long-standing personal association with one of the partners in the firm.[67] Ms List's evidence was that the recommendation was made by Mr Morgan Carroll of Endeavour.[68] On whose recommendation the lawyers were appointed is not a matter of decisive significance. I find that however the appointment came about, it is something that is likely to have been discussed between Ms List and Mr List especially because it involved the instruction of lawyers in the city from which Mr List originated.
[67] ts 170.
[68] ts 235.
On 29 November 2017 Mr List and Ms List signed a resolution of directors of BCM Investments approving the transfer of 50% of Rowntry's shares in BCM Investments to Notre Dame Investment Ltd, a company controlled by Ms List. I infer that the transfer approved by this resolution was a consequence of the discussion to which Ms List referred in the extract from her evidence quoted at [36].
After settlement of the Share Purchase Agreement Ms List was appointed as a director of Adamus Ghana and from around 2018 she worked from Adamus Ghana's office as well from the offices of BCM Ghana.

Goldstone

On 26 September 2017 Ms List executed an agreement entitled 'Relationship Agreement' between Goldstone, Strand Hanson Ltd and BCM Investments. The agreement recorded that it was executed on behalf of BCM Investments by Ms List 'acting by a director'.[69] The agreement recorded that BCM Investments had agreed to subscribe for 50,000,000 shares in Goldstone Resources Ltd at a subscription price of 1.5 pence a share. The agreement was not the subscription agreement itself. Rather it governed the relationship that would exist if any person nominated by BCM Investments served as a director of Goldstone. As noted earlier, it did not confer a right on BCM Investments to nominate and appoint a director to Goldstone. In that respect, from a commercial perspective the Relationship Agreement might be regarded as secondary in terms of importance to the agreement to subscribe for shares.
[69] Trial bundle, tab 22 p 299.
Ms List negotiated the Relationship Agreement.[70] She described herself as 'the lead person' in the negotiations and that she was:[71]
nominated by Goldstone as the automatic representative and so I was in charge of everything to do with the negotiations, etcetera, and they gave me the option to nominate additional directors onto the subsidiaries which I did.
[70] ts 247.
[71] ts 249.

Mr List's evidence in cross-examination was that he nominated Ms List to be the BCM Investments' nominee on the board of Goldstone following discussions with the principal of Goldstone.[72]
[72] ts 178 - 179.
In the light of the closeness of the relationships (working and personal) between Ms List and Mr List at the time I find that he knew both about the agreement to subscribe for shares and the Relationship Agreement before the agreements were made and that he communicated his approval to Ms List of BCM Investments entering into the agreements (even though he may not have been aware of the detailed terms of the Relationship Agreement) and to her appointment as a Goldstone director.
Finally, I note that on Ms List's evidence her nomination to the board of Goldstone did not arise from the exercise of any powers as a director of BCM Investments. Rather, as she said in evidence, she was nominated by Goldstone and this was the position irrespective of whether the nomination came about because it had been suggested by Mr List or because Ms List was 'the lead person' in the negotiations.

Tabakoto mine

On 1 September 2018 BCM Investments and BCM International executed a Share Purchase Agreement with Avion and Endeavour for the acquisition of the shares in Tabakoto Holdings Ltd which owned the Tabakoto mine in Mali.[73] The agreement was signed by Ms List 'on behalf of BCM Investments' and by Mr List 'on behalf of BCM International.' Mr List consented to Ms List signing the agreement on behalf of BCM Investments.[74]
[73] Trial bundle, tab 39 p 645 - 728.
[74] ts 257.
Ms List negotiated the Share Purchase Agreement and, subsequently, an Amendment Deed made on 13 December 2018.
Mr List had no direct role in the negotiations.[75] He said that Ms List negotiated the agreement, 'under my agreement for her to negotiate it, yes'.[76] He was aware of the fundamentals of the agreement before he signed it on behalf of BCM International.[77] His evidence was that Ms List 'recommended' the agreement and he was satisfied with it.[78] Ms List's evidence was as follows:[79]
Did you discuss this – the terms of this agreement with Mr Paul List?---Yes. I did, and it was subject to me raising $35 million to pay this – I wasn't able to raise the entire $70 million. So I agreed with Endeavour to sort of similar arrangements to the previous one and I raised $35 million from a bank called Ecobank. The same as with the Adamus Resources acquisition, Paul List had to sign the loan agreement for Ecobank to pay Endeavour and that was the agreement.
[75] ts 145.
[76] ts 186.
[77] ts 190.
[78] ts 190.
[79] ts 257.
Ms List's evidence that she 'raised $35 million' is potentially misleading. It was an abbreviated way of conveying that she arranged a finance facility for BCM Ghana to borrow $35 million.
As with the Nzema mine transaction BCM International was a party to the Share Purchase Agreement in its capacity as a guarantor.
Ms List's evidence was that Mr List knew that she was signing the Amendment Deed on behalf of BCM Investments and he consented to her doing so.[80]
[80] ts 261.
In the light of the evidence to which I have referred in the immediately preceding paragraphs and the fact that BCM Ghana was the party borrowing the money to finance a major component of the consideration and that BCM International was the guarantor I find that Ms List and Mr List discussed the acquisition and its terms and Mr List approved of them before the agreement was concluded. Likewise, I find that Ms List and Mr List discussed the terms of the Amendment Deed and Mr List approved of it before it was executed.
In reaching the conclusions recorded above I have not ignored the evidence elicited from Mr List in cross-examination which indicated that he had no understanding of the concept of 'leakage' as defined in the Share Purchase Agreement.[81] In my view this did not undermine his evidence that he was aware of (what he described as) the fundamentals of the transaction.
[81] ts 186 and 188 - 189.
Ms List and Mr List were appointed directors of Tabakoto Holdings Ltd after the acquisition had been completed.[82] Subsequently a problem arose in Mali which prevented the export of gold. The problem had to be resolved with the Minister of Mines in Mali. Ms List resolved the problem. Her evidence was that Mr List knew what she was doing to resolve the problem and expected her do it.[83] In the circumstances where she was a director of Tabakoto I find that she resolved the problem in that capacity.

Konongo gold project

[82] ts 186.

[83] ts 272.

On 13 December 2018 BCM Investments entered into a memorandum of understanding whereby it agreed to purchase 80.99% of the shares in Owere Mines Ltd from Talos and thereby acquire the Konongo gold project. The December 2018 memorandum of understanding was not in evidence.
An addendum to the memorandum of understanding was executed on 29 March 2019.[84] The addendum was signed by Ms List as the 'authorised officer for BCM Investments'. Ms List negotiated the amendment to the memorandum of understanding, and a subsequent letter agreement with Talos,[85] to vary the dates on which various payments forming part of the consideration were to be made.[86]
[84] Trial bundle, tab 47.
[85] Trial bundle, tab 48 p 758.
[86] ts 264.
Mr List was not involved in the negotiation of these agreements but he was aware of what Ms List was doing.[87]
[87] ts 264.
On 28 November 2019 BCM Investments entered into an agreement entitled 'Share Purchase Agreement' with Talos to acquire 80.99% of the shares in Owere Mines Ltd and thereby acquire the Konongo gold project.[88] The agreement was executed by Mr List and Ms List on behalf of BCM Investments as its 'duly authorised officers'. In the agreement BCM Investments warranted that it had 'taken all corporate action required by it to authorise it to enter into and perform [the agreement]'.[89] The purchase price was US$30 million payable in three tranches. The Share Purchase Agreement was the formal instrument of agreement contemplated by the memorandum of understanding, the addendum to the memorandum of understanding and the letter agreement.
[88] Trial bundle, tab 59 p 934.
[89] Trial bundle, tab 59 p 918.
For the sake of completeness, I note that Ms List gave evidence that '[the] deal [was] not concluded yet'.[90]

Amalgamated - Sanu Resources

[90] ts 266.

On 21 November 2019 Ms List signed a share purchase agreement with Amalgamated and Sanu Resources Ghana Ltd for the acquisition by BCM Investments of the 100% of the shares in Sanu Resources Ghana Ltd.[91] The consideration was stated to be US$1,000,000. In the execution clause of the agreement Ms List was described as the 'duly authorised attorney for BCM Investments Limited'. There is no evidence that Ms List was appointed BCM Investments' attorney. Parenthetically, I observe executing the agreement as 'duly authorised attorney for BCM Investments' is inconsistent with the execution of the agreement being a manifestation of the exercise of the implied authority of a de facto managing director.
[91] Trial bundle, tab 58 p 866 - 897.
The share purchase agreement was preceded by a memorandum of understanding between BCM Investments and Amalgamated which had been executed on 24 July 2019.[92]
[92] Trial bundle, tab 51 p 836.
Subsequently, the share purchase agreement was amended by the two 'Advance Payment Agreements' to which I have referred earlier. The first of these was signed by Ms List as 'director' of BCM Investments on 18 February 2021,[93] and the second was signed by Ms List as 'Chief Executive Officer' on 21 March 2022.[94] It was common ground that Mr List did not know about the Advance Payment Agreement of 21 March 2022.
[93] Trial bundle, tab 70 p 954.
[94] Trial bundle, tab 107 p 1164.
Mr List's evidence was that he was involved in the negotiation of the agreement with Amalgamated and attended meetings in relation to the transaction.[95] His evidence was that Ms List entered into the agreement as a co-director of BCM Investments with his approval. Ms List denied that Mr List had been involved in the negotiation of the agreement though she said that he was aware of the negotiations and consented to her entering into the memorandum of understanding executed on 24 July 2019.[96]
[95] ts 206.
[96] ts 269 - 270 and 278.
It is not necessary to resolve the conflict of evidence as to whether Mr List was involved in the negotiation of the agreements with Amalgamated (save for the Advance Payment Agreement of 21 March 2022). It is sufficient to find that Mr List knew that Ms List was negotiating the agreements and approved of them before BCM Investments entered into them.

Administrative issues concerning the second plaintiff

As referred to earlier, in 2019 the first plaintiff sent emails to Ms List and Mr Adongo concerning invoices received from ASIC and requested that they arrange for payment of the invoices.[97]

January - December 2021

[97] Trial bundle, tabs 45 and 46.

Ms List signed a document purporting to be an extract from minutes of a meeting of the board of directors of BCM Investments held on 4 January 2021. The extract from the minutes recorded that the board approved the appointment of Mr Sarpong Odame as the secretary of the company and noted Mr Odame replaced Mr Adongo as company secretary.[98]
[98] Trial bundle, tab 69.
Ms List signed two documents purporting to record the passing of a resolution of the shareholders held at a meeting of shareholders of BCM Investments on 16 April 2021. One document purported to be the minutes of the meeting,[99] and one document purported to be an extract from the minutes of the meeting.[100] Ms List signed each document as a director/chairperson of BCM Investments and Mr Odame purported to sign the documents as the secretary of BCM Investments. It is unnecessary to reproduce the full text of the documents. The resolution purportedly passed by the shareholders was to appoint Mr Joseph Owusu-Ansah as a director of BCM Investments.
[99] Trial bundle, tab 72.
[100] Trial bundle, tab 71.
Ms List signed two documents purporting to record business transacted at a meeting of the board of directors of BCM Investments held on 17 April 2020.[101] One document purported to be the minutes of the meeting and one document purported to be an extract from the minutes of the meeting. The material parts of the extract document are as follows:[102]
[101] Trial bundle, tabs 73 and 74.
[102] Trial bundle, tab 73.
AT A MEETING OF THE DIRECTORS OF BCM INVESTMENTS LIMITED DATED 17 APRIL 2021 THE BELOW RESOLUTIONS WERE PASSED
BACKGROUND
A.The Company has since its incorporation been funded by Notre Dame Investments Limited (Notre Dame) on all its investment opportunities.
B.Rowntry Trading Limited (Rowntry) has refused to contribute proportionately to the investments made by the Company and the board has agreed that its shares be cancelled proportionately to fairly represent their contribution to the Company.
C.Rowntry holds 50 shares representing fifty percent (50%) of the issued shares of the Company and Notre Dame holds the remaining 50 shares representing fifty percent (50%). That it has been recommended by the board that thirty (30) shares (out of the 50 shares) held by Rowntry be cancelled so that it holds only 20 shares in the Company to represent its proportionate contribution to the business and affairs of the Company. Notre Dame shall continue to hold 50 shares for its active role and financial contributions to the Company.
RESOLUTIONS:
1.That Rowntry's shares is hereby reduced (by cancellation of thirty shares held by it in the Company) from 50 shares to 20 shares to fairly represent its proportionate contribution to the affairs of the Company.
2.That the new shareholding structure shall be as follows:
Notre Dame Investments Limited – 50 shares
Rowntry Trading Limited – 20 shares
3.That the secretary is authorised to make all necessary filings with the registry to reflect the new shareholding structure and to issue all notices to the directors upon completion.
I pause to observe that no evidence was adduced in these proceedings which would support the statement made in par A of the 'Background' section of the document set out in the preceding paragraph. Rather, the evidence supports the proposition that BCM Investments' acquisitions were underwritten financially by BCM Ghana and BCM International.
Ms List signed two documents purporting to record business transacted at a meeting of the board of directors of BCM Investments held on 3 May 2021.[103] One document purported to be the minutes of the meeting and one document purported to be an extract from the minutes of the meeting. The material parts of the extract document are as follows:[104]
[103] Trial bundle, tab 77 and 78.
[104] Trial bundle, tab 77.
AT A MEETING OF THE DIRECTORS OF BCM INVESTMENTS LIMITED DATED 17 APRIL 2021 THE BELOW RESOLUTIONS WERE PASSED
BACKGROUND
A.It has come to the attention of the Board that Rowntry Trading Limited, a company incorporated in Western Samoa (Rowntry Samoa), has become defunct and no longer exists as a corporate entity in Western Samoa.
B.A search conducted by the secretary revealed that Rowntry Samoa no longer exists in the registry in Western Samoa.
C.Considering that Rowntry Samoa no longer exists as a corporate entity, the directors have agreed that all the shares held by it be forfeited and held as treasury shares to be reissued in the future.
RESOLUTIONS:
1.That all shares held by Rowntry is hereby forfeited and should be placed in treasury for reissue in the future.
2.That following this, the sole shareholder of the Company shall be Notre Dame Investment Ltd holding 50 issued shares.
3.That Angela List's role as the Managing Director of the Company is hereby ratified and made official.
4.That the secretary is authorised to make all necessary filings with the registry to reflect the matters specified herein.
As recorded earlier, in addition to the steps referred to in the minutes set out in the preceding paragraphs it appears that at the beginning of May 2021 Ms List caused the Articles of Incorporation of BCM Investments to be amended in order to change the name of the company to Nguvu Holdings Ltd.[105]
[105] Trial bundle, tab 80 and 81.
Mr List was given no notice of the meetings held in January, April and May 2020 and did not become aware of them until September or October 2020.[106]
[106] ts 153.
In her evidence Ms List did not provide any explanation for the meetings recorded in the documents referred to in the preceding paragraphs nor did she seek to justify the purported reduction and subsequent forfeiture of Rowntry's shareholding in BCM Investments.
At the beginning of November 2021 Mr List commenced the Nevis proceedings. On 9 November 2021 the Eastern Caribbean Supreme Court granted an ex parte injunction restraining Ms List from:[107]
(a)any dealings with affairs of BCM Investments until the return date; and
(b)selling transferring, encumbering or in any way dealing with the shares of BCM Investments.
[107] Trial bundle, tab 83.
On 23 November 2021 Rowntry applied to renew its registration in Samoa. The application was successful and a certificate of good standing was issued on 30 November 2021.[108]
[108] Trial bundle, tabs 88 and 89.
There was an inter partes hearing in the Nevis proceedings on 20 December 2021 following which the ex parte injunction was varied. Relevantly, the varied injunction read as follows:[109]
The interim injunction granted on 9^th November, 2021 is hereby varied to read as follows:
(a)An interim order is granted prohibiting and restraining ANGELA LIST from selling, transferring, encumbering or in any way dealing with the shares of BCM INVESTMENTS LIMITED and Nguvu Holdings Limited until the full inter partes hearing or any further order of the court;
(b)An interim order is granted prohibiting and restraining ANGELA LIST and/ or BCM INVESTMENTS LIMITED and Nguvu Holdings Limited from taking any steps to alter the current management structure and directorship of BCM INVESTMENTS LIMITED and Nguvu Holdings Limited until the full inter partes hearing or any further order of the court;
(c)An order is granted prohibiting and restraining MORNING STAR HOLDINGS LIMITED from acting on any resolutions, conducting, transferring, disposing, or doing any business of BCM INVESTMENTS LIMITED and Nguvu Holdings Limited insofar as it relates to the prohibitions placed on Ms. Angels List in this order, until the inter partes hearing or any further order of the court.
(d)An interim order is granted prohibiting and restraining Nguvu Holdings Limited from selling, transferring, disposing, encumbering or in any way dealings with the purported shares of Nguvu Holdings Limited until the return date or any further order of the court;
[109] Trial bundle, tab 93.
In the reasons given for the varying the injunction the learned judge said:
That there is a serious issue to be tried as it relates to the steps, which had been taken to forfeit Rowntry Limited's shares in BCM Investments Limited and place them in treasury. That would have directly affected both Mr List's rights and duties as a director in Rowntry Limited. The court is also satisfied on the facts that there is a real prospect of success insofar as this aspect of his claim is concerned.
The balance of convenience rests with Mr List in ensuring that there are no further dealings with the shares and directorship in BCM Investments Limited until the outcome of the case.
However, as it relates to other aspects of the injunction, the Court is not satisfied that there are grounds upon which the injunction should be extended and, insofar as that is the case, the 1^st and 2^nd Respondents have generally succeeded in seeking to set aside the most draconian aspects of the Court's ex parte Order.
The Court is not satisfied that the balance of convenience weighs in Mr List's favour in his quest to place an entire hold on Ms List's powers of directorship and management of BCM Investments Limited. That would place an entire hold on the management of the company as Mr List conceded that the day-to-day management has for some time now been in the hands of Ms List. To grant such an injunction to the entire management of the affairs of BCM Investments Limited appears to me to be an inequitable exercise of the Court's discretion.
I am not satisfied that the issues raised in relation to decisions taken by Ms List in 2018 and 2019 are such that they would warrant a grant of an interim injunction. Whilst there are serious issues to be tried as it relates to the parties' views on the efficacy of these transactions and the impact on the company or their affiliates, the court is not satisfied that it is just and convenient to grant the orders, having now considered the evidence and submissions of Mrs List and her Counsel on the matter.
On 13 December 2021 the first and second defendants each signed a consent to act as a director of the second plaintiff.
On 20 December 2021 a firm of lawyers in Ghana, Korsah & Ackah sent a letter on instructions from the second plaintiff to Ms List in which they alleged that Ms List had unlawfully appointed directors to Adamus Resources Ltd (the second plaintiff's Ghanian subsidiary) and raised other concerns about the management of Adamus Resources Ltd. The letter recorded that the second plaintiff required Ms List to address the issues raised in it by 24 December 2021.
On 24 December 2021 Mr Lee Christensen, a director of CX Law, a Western Australian law firm, sent a letter to the first plaintiff the material parts of which read as follows:[110]
I act for BCM Investments Limited which is the sole shareholder of the above-named company.
Please find attached a resolution recorded by it pursuant to section 249B of the Corporations Act resolving, that you [had] been removed as a director of [the second plaintiff] and that [the first and second defendants] be appointed as directors of the company. Attached to the resolution are the consents of the new directors.
(Section 249B of the Corporations Act 2001 provides that a company that has only one member may pass a resolution by the member recording and signing it).
[110] Trial bundle, tab 96.

The resolution referred to in Mr Christensen's letter was signed by Ms List who was referred to in it as the sole director of BCM Investments Ltd. The material parts of the resolution were as follows:[111]
BCM INVESTMENTS Limited being the sole shareholder of the Adamus Resources Pty Ltd (ACN 094 543 389) ("the Company") resolves pursuant to section 249B Of the Corporations Act the following resolutions:
The following resolutions as ordinary resolutions:
1.That Allan Morrison be removed as at the date hereof as a director of the Company.
2.Having received since to act (copies attached) as directors of the Company from Peter Michael and Kevin Woodthorpe that they be appointed the directors of the company.
The company secretary be requested to complete and file the appropriate form with the Australian Securities and Investments Commission.
[111] Trial bundle, tab 95.
Contentious correspondence was exchanged between Ms List and the first plaintiff and their respective lawyers in the last week of December 2021 but it is unnecessary to recount the detail of those exchanges.
On 31 December 2021 the first and second defendants signed a circular resolution removing the first plaintiff as the company secretary of the second plaintiff.[112]
[112] Trial bundle, tab 101.
On 6 January 2022 the first defendant lodged with ASIC a Form 484 (5EFC00680) requesting it amend its registers to record the appointment of the first and second defendants as directors and the appointment of the first defendant as company secretary and the removal of the first plaintiff as director and company secretary. The registers were subsequently amended in accordance with the request.

January to June 2022

On 5 April 2022 the plaintiffs filed the present application.

On 8 June 2022 Ms List signed a document purporting to be a written resolution of 'the sole shareholder of [BCM Investments]'.[113] The material parts of this document read as follows:
[113] Trial bundle, tab 108.
WRITTEN RESOLUTION OF THE SOLE SHAREHOLDER OF THE COMPANY DATED THIS 8TH JUNE 2022
The undersigned being the sole shareholder of Nguvu Holdings Limited (formerly BCM Investments Limited) ("Nguvu") hereby resolves to:
1.Notwithstanding any possible deficiencies in the powers of Ms Angela List to do so (as have been alleged), ratify all actions (including but not limited to the signing of the shareholder's resolution on behalf of Nguvu on or around 24 December 2021) taken by Ms Angela List (in whatever capacity) in:
(a) the removal of Allan Roy Morrison as the sole director and secretary of Adamus Resources Pty Limited (ACN 094 543 389) (an Australian Company) ("Adamus"); and
(b) the appointment of Kevin Mark Woodthorpe and Peter Basil Wallace Michael as the directors and secretary of Adamus in Mr Morrison's place.
1.In the event that it is not possible to ratify the actions of Ms Angela List as provided in the above resolution or if there are any deficiencies which cannot be cured by the above resolution, Notre Dame Investments Limited as the sole shareholder of Nguvu hereby resolves that:
(a) Allan Roy Morrison be removed as the sole director and secretary of Adamus effective as of 24 December 2021 or the date of this resolution if retrospective effect cannot be given; and
(b) Appoint Kevin Mark Woodthorpe and Peter Basil Wallace Michael as the directors and secretary of Adamus (both having already provided consent to act) effective as of 24 December 2021 or the date of this resolution if retrospective effective cannot be given.
In the course of an interlocutory hearing of the present proceedings in this court held on 9 June 2022 counsel for the plaintiffs made a submission in the following terms:
Master, my friend seeks to create factual difference between us out of nothing. No one on our side has ever said that Mrs List didn't have day-to-day management of the company for many years. We wouldn't suggest that she didn't. We wouldn't suggest anything to the contrary. No one needs pleadings for us to admit that fact. We don't put it in any affidavit evidence.
On 20 October 2022 the first and second defendants resolved to appoint the third defendant as a director and company secretary of the second plaintiff and to accept their resignations as directors and to accept the resignation of the first defendant as company secretary. On 20 October 2022 the third defendant lodged with ASIC a Form 484 (5EGY28841) requesting it amend its registers to record the resignation of the first and second defendants as directors and the resignation of the first defendant as company secretary and the appointment of the third defendant as director and company secretary. The registers were subsequently amended in accordance with the request.

The law of Nevis

Before the hearing the parties exchanged expert evidence as to the law of Nevis governing the management and administration of companies incorporated in that jurisdiction. Ultimately the parties were able to reach an agreement as to the law and they prepared an agreed statement of facts as to the law of Nevis that was accepted into evidence.[114]
[114] Exhibit P2.
A consequence of the first and second defendants no longer relying on the resolutions purportedly passed at the April and May 2021 meetings of BCM Investments is that the only aspect of the law of Nevis which remains relevant concerns the principles as to the implied actual authority of a managing director of a Nevis company. The parties agreed, and I find, that the applicable legal principles were the same as those established by the common law of England. They also agreed there was no fixed definition at law for the duties or powers of a managing director and cited Harold Holdsworth & Co (Wakefield) Ltd v Caddies,[115] as authority for that proposition.
[115] Harold Holdsworth & Co (Wakefield) Ltd v Caddies [1955] 1 WLR 352.
In Harold Holdsworth & Co (Wakefield) Ltd v Caddies,[116] the central issue was whether a board of directors had the right to restrict the duties of a managing director to the management of subsidiaries of the company. In the course of his analysis Lord Reid stated that the law does not specify the duties of a managing director. His Lordship rejected the argument that because subsidiary companies each had their own boards, the board of the parent company could not assign any duties to anyone in relation to the management of subsidiaries as 'too technical an argument'.[117]
[116] Harold Holdsworth & Co (Wakefield) Ltd v Caddies.
[117] Harold Holdsworth & Co (Wakefield) Ltd v Caddies (366 - 368).
In their submissions both sides relied on the decisions in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd,[118] Hely-Hutchinson v Brayhead Ltd,[119] and Entwells Pty Ltd v National and General Insurance Co Ltd.[120]
[118] Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2QB 480.
[119] Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549.
[120] Entwells Pty Ltd v National and General Insurance Co Ltd (1991) 5 ACSR 424.
In Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd,[121] Kapoor and Hoon formed the defendant company Buckhurst to purchase and resell an estate. Kapoor, personally, agreed to pay the running expenses and to be reimbursed out of the proceeds of the resale. Kapoor, Hoon and a nominee of each were appointed directors of Buckhurst. The articles of association contained the power to appoint a managing director but none was appointed. Kapoor instructed the plaintiffs, Freeman & Lockyer, to apply for planning permission to develop the estate and do certain other work. The plaintiffs executed the work and claimed their fees. The trial judge held that although Kapoor was never appointed managing director he had acted as such to the knowledge of the board of directors and gave judgment for the plaintiffs. Buckhurst appealed and the Court of Appeal held that Kapoor had no actual authority to employ the plaintiffs but had ostensible authority as he acted throughout as the managing director to the knowledge of the board. In the course of rejecting the plaintiffs' contention that Kapoor had actual authority Willmer LJ observed:[122]
Actual authority might, of course, be either express - for example, if Kapoor were specifically authorised to engage the plaintiffs - or it might be implied - for example, if Kapoor had been appointed to some office which carried with it authority to make such a contract on behalf of the defendant company.
Willmer LJ went on to say that in the absence of any written record of Kapoor having been appointed to any office, which would carry with it authority to engage the plaintiffs, it was hopeless to contend that Kapoor was ever clothed with actual authority to retain the plaintiffs. His Lordship held that the real question was whether the trial judge was right in finding that Kapoor had ostensible authority.[123]
[121] Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd.
[122] Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd (488 - 489).
[123] Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd (489).
Diplock LJ felt that there was an insufficient factual foundation on which to hold that actual authority had been conferred on Kapoor but observed:[124]
I accept that such actual authority could have been conferred by the board without a formal resolution recorded in the minutes, although this would have rendered them liable to default fine under s 145(4) of the Companies Act 1948. But to confer actual authority would have required not merely the silent acquiescence of the individual members of the board but the communication by words or conduct of their respective consents to one another and to Kapoor.
[124]Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd (501).
In Hely-Hutchinson v Brayhead Ltd,[125] the chief executive of the company, Brayhead Ltd, Richards, often committed the company to contracts on his own initiative and subsequently referred them to the board. The board had acquiesced in this manner of conducting the business and were content to leave the running of the company to him. The company at the material time was negotiating to take over another company, Perdio Electronics Ltd, in which the plaintiff was the chairman and managing director. An agreement was reached between the plaintiff and Richards whereby Richards on behalf of the defendant company, gave two undertakings to the plaintiff in writing: one was to indemnify him against personal liability which he might incur by his having to honour his personal guarantee to a merchant bank, and the other was to guarantee the repayment of any moneys loaned by the plaintiff to Perdio. Both these undertakings were not reported to the board by Richards. Relying on these undertakings, the plaintiff advanced further sums of moneys to Perdio. Subsequently, Perdio went into liquidation and the plaintiff was called upon by the merchant bank to fulfil the guarantee which he did, and he brought an action against Brayhead to enforce the undertakings given by Richards on their behalf. It was held by the Court of Appeal that on the facts, Richards had the implied authority from the board of Brayhead to give the undertakings. Lord Denning MR in his judgment said:[126]
I need not consider at length the law on the authority of an agent, actual, apparent, or ostensible. That has been done in the judgments of this court in Freeman & Lockyer v Buckhurst Park Properties (Managal) Ltd. It is express when it is given by express words, such as when a board of directors pass a resolution which authorises two of their number to sign cheques. It is implied when it is inferred from the conduct of the parties and the circumstances of the case, such as when the board of directors appoint one of their number to be managing director. They thereby impliedly authorise him to do all such things as fall within the usual scope of that office. Actual authority, express or implied, is binding as between the company and the agent, and also as between the company and others, whether they are within the company or outside it.
Ostensible or apparent authority is the authority of an agent as it appears to others. It often coincides with actual authority. (emphasis original)
[125] Hely-Hutchinson v Brayhead Ltd.
[126] Hely-Hutchinson v Brayhead Ltd (583).
Lord Denning's reasoning that Richards had actual authority was as follows:[127]
[127] Hely-Hutchinson v Brayhead Ltd (584 - 585).
It is plain that Mr Richards had no express authority to enter into these two contracts on behalf of the company: nor had he any such authority implied from the nature of his office. He had been duly appointed chairman of the company but that office in itself did not carry with it authority to enter into these contracts without the sanction of the board. But I think that he had authority implied from the conduct of the parties and the circumstances of the case. The judge did not rest his decision on implied authority, but I think that his findings necessarily carry that consequence. The judge finds that Mr Richards acted as de facto managing director of Brayhead. He was the chief executive who made the final decision on any matter concerning finance. He often committed Brayhead to contracts without the knowledge of the board and reported the matter afterwards. The judge said:
"I have no doubt that MrRichards was, by virtue of his position as de facto managing director of Brayhead, or, as perhaps one might more compendiously put it, as Brayhead's chief executive, the man who had, in Diplock LJ's words, '"actual authority to manage'", and he was acting as such when he signed those two documents."
And later he said:
"the board of Brayhead knew of and acquiesced in Mr Richards acting as de facto managing director of Brayhead."
The judge held that Mr Richards had ostensible or apparent authority to make the contract, but I think that his findings carry with it the necessary inference that he had also actual authority, such authority being implied from the circumstance that the board by their conduct over many months had acquiesced in his acting as their chief executive and committing Brayhead Ltd to contracts without the necessity of sanction from the board. (citations omitted)
In his judgment Lord Wilberforce quoted from the extract of Diplock LJ's judgment set out above and stated:[128]
I think, therefore, it is legitimate to go on and consider, over and above the powers he had as chairman, what the actual circumstances of the relationship between him and the board of directors may show …. [Those circumstances] show that Mr Richards, with the consent and acquiescence of the board was allowed to act as chief executive and to make decisions relating to these financial questions.
[128] Hely-Hutchinson v Brayhead Ltd (587).
In Entwells Pty Ltd v National and General Insurance Co Ltd, Ipp J (as his Honour then was) made various observations on the role of a managing director. His Honour said:[129]
The task of a managing director is to deal with every day matters, to supervise the daily running of the company, to supervise the other managers and indeed, generally, be in charge of the business of the company: see Principles of Company Law, 5th ed, Ford, para 1425. It is a characteristic of the power of a managing director that he is given powers of day to day management which are exercisable without reference to the board: Pennington's Company Law, 5th ed, 657.
In many instances a company does not formally appoint a managing director, but a director (with the company's approval) may assume the mantle of a managing director and carry out the functions of a managing director: Freeman & Lockyer v Buckhur.st Park Properties (Mangal) Ltd (1964] 2QB 480.
A company may appoint more than one managing director and more than one director may, with the company's approval, assume the powers of a managing director. It is a question of fact whether a person has, with the approval of the company, assumed the powers of a managing director.
The plaintiff was a traditional type of small family company. It held no formal meetings of directors. Discussions between the directors took place over the family dinner table. The day-to-day management of all the affairs of the company was in the hands of Mrs Nikolic and Sasha as I have described. The members and directors of the plaintiff were content, and indeed desired that this position should obtain. In my opinion, Mrs Nikolic and Sasha did in fact act as managing directors of the plaintiff, with the approval of the plaintiff.
[129] Entwells Pty Ltd v National and General Insurance Co Ltd (427).

Conclusions

My conclusions may be distilled into the following propositions.
(a)An objective assessment of the facts does not support a finding that Ms List acted as managing director or chief executive officer of BCM Investments from August 2017.
(b)Had Ms List been the de facto managing director of BCM Investments:
(i)removing the first plaintiff as a director of the second plaintiff would not have been a matter that fell within her implied authority; and
(ii)any implied authority came to an end when Mr List commenced the Nevis proceedings and sought to restrain Ms List from any involvement in the management of the company.
I have come to the conclusions set out in the preceding paragraph for the following reasons.
The negotiation of the terms of the Share Purchase Agreement with Endeavour fell outside the ordinary course of the ordinary business of the BCM Group. In that respect it may be regarded as special project. That said, at the time Ms List was negotiating the acquisition she was employed by the BCM Group as the Director (Finance & Administration) and, though it was evident from the conversation recounted by her in the evidence quoted at [36] that Ms List regarded the acquisition as a personal acquisition in respect of which she had some form of proprietary interest, on an objective assessment she was conducting the negotiations in her capacity as a senior executive of the BCM Group. This finding flows from the following: the fact of her employment and the capacity in which she was employed; the role played by BCM Ghana as the party raising US$20 million to finance part of the purchase price and from BCM International's role as guarantor, and from the fact that it was only when the terms of the agreement had been negotiated that Mr Adongo suggested that BCM Investments be the purchasing party.
Ms List kept Mr List informed of the negotiations that led to the Share Purchase Agreement with Endeavour and he approved the principal commercial terms before the agreement was executed. Execution of the agreement was patently not something done by Ms List in the exercise of any implied authority.
Mr List approved of the proposed nomination of the first plaintiff for appointment as a director of the second plaintiff before Ms List contacted the first plaintiff to ask him to be a director. Ms List's communications with the first plaintiff after his appointment about ASIC invoices were matters of a purely administrative nature falling squarely within Ms List's responsibilities as Director (Finance & Administration) and provide no support for the proposition that in those exchanges she was exercising the implied authority of the managing director of BCM Investments.
In undertaking the work required to ensure that the Endeavour Share Purchase Agreement was completed and effect was given to its terms Ms List was acting concurrently in three separate but complementary capacities. She was acting as a senior executive of the BCM Group, she was acting as a director of BCM Investments and, after settlement she was acting as a director of Adamus Resources Ltd (the Ghanian company). The first and second defendants' attempt to characterise Ms List's activities as undertaken as a de facto managing director of BCM Investments ignores her role as an executive of the BCM Group and her role as a director of Adamus Resources Ltd. It is a characterisation adopted to advance Ms List's interests in her dispute with Mr List rather than one which reflects the reality of the various roles played by Ms List.

The agreement to take a placement of Goldstone shares and the negotiation and the entry into the Relationship Agreement with Goldstone and the appointment of Ms List as a Goldstone director were all undertaken with Mr List's knowledge and approval. Those matters did not demonstrate that Ms List was acting as the managing director of BCM Investments nor involve the exercise of any implied authority.
To avoid unnecessary repetition, it is sufficient to record that I have reached similar conclusions to those expressed in the immediately preceding paragraphs in relation to the agreements with Avion, Talos and Amalgamated (save the Advance Payment Agreement of 21 March 2022).
There were no day-to-day operations of BCM Investments to be managed by a managing director.[130] There were five acquisitions which, given the involvement of BCM Ghana and BCM International, may be more realistically characterised as forming part of the business of the BCM Group than a separate operation. Once the acquisitions were completed the management of the businesses was the responsibility of the boards of the companies acquired. Ms List's participation in the management of those businesses is more readily characterised as involving the discharge of her duties as the Director (Finance & Administration) of the BCM Group and the discharge of her duties as a director of the operating companies than as the exercise of the implied authority of the managing director of BCM Investments.
[130] I reach this conclusion on an assessment of all of the evidence including the answer given by Mr List in examination-in-chief quoted at [34] which appeared to accept that BCM Investments had 'day-to-day' operations.
Ms List's role as the Director (Finance & Administration), the existence of express authority from Mr List for the negotiation and entry into the transactions and Ms List's directorships of the subsidiary companies are important distinguishing features of the circumstances of this case from those considered in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd and Hely-Hutchinson v Brayhead Ltd.
Assuming in the first and second defendants' favour that Ms List was the de facto managing director of BCM Investments I do not accept that her implied authority extended to removing the first plaintiff as the sole director of the second plaintiff. The second plaintiff was the parent company of Adamus Resources Ltd. As I have remarked earlier, board control of the second plaintiff was not an inconsequential matter given the ability of the second plaintiff to control the operations of the 'downstream' subsidiaries. In my judgment, the appointment and removal of a person as a director to such an important position fell outside the ambit of the managing director's authority to manage the day-to-day business of BCM Investments.
Having had the opportunity to consider the documentary evidence and consider the oral evidence of Mr List and Ms List I place no reliance on the admissions the first and second defendants contend were made on Mr List's behalf as to Ms List's management of BCM Investments in the Nevis proceedings or in this court on 9 June 2022. The court is not bound by admissions made by a party.[131] For the reasons I have explained, there was no day-to-day management of BCM Investments and Ms List's activities in relation to the various transactions are explicable by reference to the performance by her of her responsibilities as an executive of the BCM Group and to her subsequent role as directors of the companies acquired.
[131] Damberg v Damberg [2001] NSWCA 87; (2001) 52 NSWLR 492 [160].
When Ms List's conduct in April and May 2021 is considered objectively it bespeaks a recognition on her part that she had no authority to act unilaterally on the part of BCM Investments and that to gain board control of BCM Investments she had to engineer the appointment of another director and to obtain total control of BCM Investments she had to expropriate Rowntry's shares.
Again, assuming that Ms List had implied authority to act on behalf of BCM Investments, that authority was terminated when Mr List obtained the ex parte injunction in Nevis and it was served on Ms List. Objectively, the fact of the commencement of the Nevis proceedings and the terms of the ex parte injunction were sufficient to bring any implied authority to an end. The fact of the proceedings and the fact of the injunction conveyed that any role played by Ms List on a de facto basis with Mr List's agreement or acquiescence had come to an end because he objected to her playing any role in the management of the company. The subsequent variation in the terms of the injunction is of no moment because it did not reflect any change in Mr List's position.
It follows from the conclusions I have reached that the removal of the first plaintiff as the director of the second plaintiff was invalid as were all the subsequent changes in office holders of the second plaintiff.

Relief

Relief is sought under s 1322(4) of the Corporations Act which confers power on the court to order rectification of any register kept by ASIC. It provides:
(4)Subject to the following provisions of this section but without limiting the generality of any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes:
(a)an order declaring that any act, matter or thing purporting to have been done, or any proceeding purporting to have been instituted or taken, under this Act or in relation to a corporation is not invalid by reason of any contravention of a provision of this Act or a provision of the constitution of a corporation;
(b)an order directing the rectification of any register kept by ASIC under this Act;
(c)an order relieving a person in whole or in part from any civil liability in respect of a contravention or failure of a kind referred to in paragraph (a);
(d)an order extending the period for doing any act, matter or thing or instituting or taking any proceeding under this Act or in relation to a corporation (including an order extending a period where the period concerned ended before the application for the order was made) or abridging the period for doing such an act, matter or thing or instituting or taking such a proceeding;
and may make such consequential or ancillary orders as the Court thinks fit.
Section 1322(4) of the Corporations Act has been held to permit the rectification of registers maintained by ASIC under s 1274.[132]
[132] Re Centura Global Holdings Ltd [2016] NSWSC 62; (2016) 111 ACSR 185 [56].
ASIC has been notified of the present application.[133]
[133] Trial bundle, tab 114A.
No issue was raised by the first and second defendants about the ambit of the power conferred by s 1322(4) of Corporations Act and as Black J said in Re Seabay Kitchen Pty Ltd,[134] there is a public interest in the adoption of proper process for changes in directors and shareholders and for notification to ASIC of directors and shareholders which warrants rectification of the register. This is a case in which it is appropriate to order that the registers maintained by ASIC be rectified. I will hear the parties as to the terms of the final orders.
[134] Re Seabay Kitchen Pty Ltd [2019] NSWSC 790 [13].
I will also hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Tottle
22 DECEMBER 2022