Pages Property Investments Pty Ltd v Boros

[2020] NSWSC 1270

Supreme Court

New South Wales

Medium Neutral Citation:

Pages Property Investments Pty Ltd v Attila Boros & Ors [2020] NSWSC 1270

Hearing dates:

30-31 July 2020; 4-7 August 2020; 11-12 August 2020

Date of orders:

17 September 2020

Decision date:

17 September 2020

Jurisdiction:

Equity - Corporations List

Before:

Black J

Decision:

Judgment for Plaintiff on certain claims as set out. Second, Fifth, Sixth and Seventh Defendants wound up on the just and equitable ground.

Catchwords:

CORPORATIONS — Members’ rights and remedies — Oppression — Winding up on the just and equitable ground — Failure to keep adequate books and records — Where conflicting sets of accounts needed to be reconstructed to ascertain companies’ financial positions — Where nature of significant account entries and transactions still cannot be explained — Where companies’ affairs not conducted for the benefit of the members as a whole.

CORPORATIONS — Directors and officers — Directors’ duties — Duty to act in good faith in the best interests of company and for proper purpose — Duty not to use position as director or officer improperly — Directors’ involvement in transactions between a company in which they are a director and a company in which they have financial interests in.

EQUITY — Fiduciary duties — Conflict of interest and duty — Informed consent — Directors’ involvement in transactions between a company in which they are a director and a company in which they have financial interests in.

Legislation Cited:

- Civil Procedure Act 2005 (NSW), s 101(4)

- Corporations Act 2001 (Cth), ss 180, 181, 182, 232, 233, 249B, 286, 344, 461(1)(e), 461(1)(k), 1317E, 1317H, 1317J, 1317K, 1317S(2), 1318

- Evidence Act 1995 (NSW), ss 136, 140

- Trustee Act 1925 (NSW), s 85

Cases Cited:

- Asia Pacific Joint Mining Pty Ltd v Allways Resources Holdings Pty Ltd [2018] QCA 48; (2018) 125 ACSR 227

- Australia and New Zealand Banking Group Ltd v Westpac Banking Corp (1988) 164 CLR 662

- Australian Securities and Investments Commission v ABC Funds Managers Ltd [2001] VSC 383; (2001) 39 ACSR 443

- Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 2) [2013] FCA 234

- Australian Securities and Investments Commission v Cassimatis (No 8) [2016] FCA 1023; (2016) 336 ALR 209

- Australian Securities and Investments Commission v Chase Capital Management Pty Ltd [2001] WASC 27; (2001) 36 ACSR 778

- Australian Securities and Investments Commission v Drake (No 2) [2016] FCA 1552; (2016) 340 ALR 75; 118 ACSR 189

- Australian Securities and Investments Commission v Edwards (No 3) [2006] NSWSC 376; (2006) 57 ACSR 209

- Australian Securities and Investments Commission v Flugge and Geary [2016] VSC 779; (2016) 342 ALR 1

- Australian Securities and Investments Commission v Healey [2011] FCA 717; (2011) 196 FCR 291; 278 ALR 618; (2011) 83 ACSR 484

- Australian Securities and Investments Commission v Healey (No 2) [2011] FCA 1003; (2011) 85 ACSR 654

- Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; (2009) 236 FLR 1

- Birtchnell v Equity Trustees Executors and Agency Co Ltd [1929] HCA 24; (1929) 42 CLR 384; [1929] ALR 273

- Briginshaw v Briginshaw (1938) 60 CLR 336

- Brunninghausen v Glavanics [1999] NSWCA 199; (1999) 46 NSWLR 538; 32 ACSR 294; 17 ACLC 1247

- Bull v Lee (No 2) [2009] NSWCA 362

- Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20

- Cassimatis v Australian Securities and Investments Commission [2020] FCAFC 52; (2020) 376 ALR 261; (2020) 144 ACSR 107

- Charlton v Baber [2003] NSWSC 745; (2003) 47 ACSR 31; 21 ACLC 1671

- Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64

- Coope v LCM Litigation Fund Pty Ltd [2016] NSWCA 37; (2016) 333 ALR 524

- Daniels v Anderson (1995) 37 NSWLR 438

- Dhami v Martin [2010] NSWSC 770; (2010) 79 ACSR 121; 241 FLR 165; BC201004930

- Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599

- Fox v Percy (2003) [2003] HCA 22; 214 CLR 118

- Gerace v Auzhair Supplies Pty Ltd (in liq) [2014] NSWCA 181; (2014) 87 NSWLR 435; 100 ACSR 465

- Great Southern Finance Pty Ltd (in liq) v Rhodes [2014] WASC 431; (2014) 103 ACSR 137

- Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296; 287 ALR 22; 87 ACSR 260

- Hart Security Australia Pty Ltd v Boucousis [2016] NSWCA 307

- Hills Industries Ltd v Australian Financial Services and Leasing Pty Ltd [2012] NSWCA 380

- Holyoake Industries (Vic) Pty Ltd v V-Flow Pty Ltd [2011] FCA 1154; (2011) 86 ACSR 393

- Howard v Commissioner of Taxation [2014] HCA 21; (2014) 309 ALR 1

- Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821; [1974] 1 NSWLR 68; [1974] 1 All ER 1126; (1974) 3 ALR 448

- Hurford Hardwood Kempsey Pty Ltd v Kempsey Timbers (Sawmilling) Pty Ltd (No 5) [2020] NSWSC 287

- JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237

- John Shaw and Sons (Salford) Ltd v Shaw [1935] 2 KB 113; [1935] All ER Rep 456

- Jones v Dunkel (1959) [1959] HCA 8; 101 CLR 298

- Jones v Jones [2009] VSC 292

- JZ Lee Interiors Pty Ltd v Smith [2015] VSC 693

- Kenna & Brown Pty Ltd v Kenna [1999] NSWSC 533; (1999) 32 ACSR 430; 17 ACLC 1183

- Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361

- Lewis Securities Ltd (in liq) v Carter [2018] NSWCA 118; (2018) 355 ALR 703; 128 ACSR 120

- Loch v John Blackwood Ltd [1924] AC 783

- Love v ASC [2000] WASCA 404; (2000) 36 ACSR 363

- Manning v Cory [1974] WAR 60; (1974) CLC 40-140

- McCrohan v Harith [2010] NSWCA 67

- Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692

- Morley v Australian Securities and Investments Commission (No 2) [2011] NSWCA 110; (2011) 83 ACSR 620

- MSPR Pty Ltd v Advanced Braking Technology Ltd [2013] NSWCA 416

- Munstermann v Rayward [2017] NSWSC 133

- NRMA v Parker (1986) 6 NSWLR 517; 11 ACLR 1; 4 ACLC 609

- Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170

- Netglory Pty Ltd v Caratti [2013] WASC 364

- Notaras v Waverley Council [2007] NSWCA 333

- Omnilab Media Pty Ltd v Digital Cinema Network Pty Ltd [2011] FCAFC 166; (2011) 285 ALR 63; 86 ACSR 674

- One.Tel Ltd (in liq) v Rich [2005] NSWSC 226; (2005) 190 FLR 443 ; 53 ACSR 623

- Pages Property Investments Pty Ltd v Boros [2019] NSWSC 1778

- Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768

- Primacy Underwriting Agency Pty Ltd v Kilborn [2007] NSWSC 158; (2007) 25 ACLC 160

- Queensland Independent Wholesalers Ltd v Coutts Townsville Pty Ltd [1989] 2 Qd R 40

- Queensland Press Ltd v Academy Investments No 3 Pty Ltd [1988] 2 Qd R 575; (1987) 11 ACLR 419; 5 ACLC 175

- Ramsay v BigTinCan Pty Ltd [2014] NSWCA 324; (2014) 101 ACSR 415

- Re Bicher & Son Pty Ltd [2020] NSWSC 711

- Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789; (2014) 101 ACSR 233

- Re Cumberland Holdings Ltd (1976) 1 ACLR 361 at 375; (1975-76) CLC 40-250

- Re FAL Healthy Beverages Pty Ltd [2017] NSWSC 476

- Re Global Advanced Metals Pty Ltd [2019] NSWSC 1804; (2019) 141 ACSR 222

- Re Hair Industrie Penrith Pty Ltd, Hair Industrie Merrylands Pty Ltd [2015] NSWSC 1578

- Re HIH Insurance Ltd and HIH Casualty andGeneral Insurance Ltd; Australian Securities and Investments Commission (ASIC) v Adler [2002] NSWSC 171; (2002) 168 FLR 253; 41 ACSR 72

- Re Hillsea Pty Limited [2019] NSWSC 1152

- Re ICB Medical Distributors Pty Ltd [2018] NSWSC 1315

- Re JGS Investment Holdings Pty Ltd [2014] NSWSC 1532

- Re Lawrence Waterhouse Pty Ltd (in liq) [2011] NSWSC 964

- Re Motasea Pty Ltd [2014] NSWSC 69; (2014) 97 ACSR 589

- Re National Discounts Ltd (1951) 52 SR (NSW) 244; 69 WN (NSW) 115

- Re Pages Equipment Holdings Pty Ltd (admin apptd) [2020] NSWSC 959

- Re Pure Nature Sydney Pty Ltd [2018] NSWSC 914

- Re Swan Services Pty Ltd (in liq) [2016] NSWSC 1724

- Re Weedmans Ltd [1974] Qd R 377

- Re William Brooks & Co Ltd and Companies Act [1962] NSWR 142; (1961) 79 WN (NSW) 354

- Rose v Trend Designs Pty Ltd [2020] NSWSC 675

- Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275

- Sevilleja v Marex Financial Ltd [2020] UKSC 31

- Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2003] QSC 402; [2004] 2 Qd R 207; (2004) 22 ACLC 724

- State of New South Wales v Moss (2000) 54 NSWLR 536

- Strategic Communications Management Pty Ltd v Techfront Australia Pty Ltd [2020] NSWSC 847

- Tomanovic v Argyle HQ Pty Ltd [2010] NSWSC 152

- Tomanovic v Global Mortgage Equity Corporation Pty Ltd [2011] NSWCA 104; (2011) 84 ACSR 121

- Troulis v Vamvoukakis [1998] NSWCA 237

- Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31

- Van Reesema v Flavel (1992) 7 ACSR 225; 10 ACLC 291

- Vanguard Financial Planners Pty Ltd v Ale [2018] NSWSC 314

- V-Flow Pty Ltd v Holyoake Industries (Vic) Pty Ltd [2013] FCAFC 16; (2013) 296 ALR 418; 93 ACSR 76

- Vrisakis v Australian Securities Commission (1993) 9 WAR 395; 11 ACSR 162

- Waterman v Gerling Australia Insurance Company Pty Ltd [2005] NSWSC 1066; (2005) 65 NSWLR 300

- Wayde v New South Wales Rugby League Ltd [1985] HCA 68; (1985) 180 CLR 459

- Westpac Banking Corporation v TheBell Group Ltd (in liq) (No 3) [2012] WASCA 157; (2012) 44 WAR 1

Texts Cited:

- Mason and Carter, Restitution Law in Australia (LexisNexis Butterworths, 2nd ed, 2008)

Category:

Principal judgment

Parties:

Pages Property Investments Pty Ltd (Plaintiff)
Attila Boros (First Defendant)
Pages Equipment Holdings Pty Ltd (prov liq apptd) (Second Defendant)
Pages Sales Pty Ltd (prov liq apptd) (Fifth Defendant)
Phire Pty Ltd (prov liq apptd) (Sixth Defendant)
Pages Austructures Pty Ltd (Seventh Defendant)

Representation:

Counsel:
M White/R Gration (Plaintiff)

Solicitors:
WMD Law (Plaintiff)
A Boros (self-represented)

File Number(s):

2016/357782

Judgment

Introduction

1. The Plaintiff (“PPI”) seeks a range of relief in these proceedings against several individuals and companies within the group of companies operating the Pages event hire business (“Pages Group”). The First Defendant, Mr Boros, has appeared and contests the relief sought in the proceedings. PPI has settled its claims against the Third and Fourth Defendants, Mr Thatcher and Mrs Boros, and several corporate defendants are now in provisional liquidation and have taken no active role in the proceedings. The Seventh Defendant (“Austructures”) is not in provisional liquidation, but did not participate in this hearing. Although it had foreshadowed that it would seek to be heard in respect of the relief sought against it, namely an order that it be wound up for oppression or on the just and equitable ground, it ultimately did not seek to do so, and Mr Boros addressed that question in closing submissions.

2. There is a significant degree of common ground between the parties as to the background facts. PPI is the trustee of The Page Family Discretionary Trust and owns shares in several of the corporate Defendants, which operated a hire business established by the late Mr Greg Page. From about 2003 until her death in 2018, Mr Page’s widow, Mrs Mary Terese (“Tess”) Page was the sole shareholder of PPI. PPI alleges that the First Defendant, Mr Boros, was its chief executive officer from July 2003 to March 2008 and effectively controlled PPI and its decision making in that period. It is not necessary to determine that question since the claims to be determined in these proceedings arise subsequently. It is common ground that Mr Boros was PPI’s sole director and sole company secretary from 3 March 2008 until 12 September 2016, when Mrs Page removed him from those positions and appointed her son, Mr Timothy Page, as PPI’s sole director and secretary.

3. The Second Defendant (“PEH”) was placed in voluntary administration on 3 July 2020, and the Court subsequently appointed provisional liquidators to it. Mr Boros is, and has been since 17 December 1999, a director of PEH, and Mr Thatcher was the other director of PEH since that date. The shareholders of PEH are, and have been since 29 October 2003, PPI as to 50%; Hun Enterprises Pty Ltd (“Hun”), a company associated with Mr Boros and Mrs Boros, as to 25%; and Thatcher Group Pty Ltd (“Thatcher Group”), a company associated with Mr Thatcher, as to 25%. The Fifth Defendant (“Sales”) was also placed in voluntary administration on 3 July 2020, and the Court also subsequently appointed provisional liquidators to it. Mr Boros was also, from 21 November 2014 until 25 August 2015, a director and the sole company secretary of Sales. Mr Thatcher is and has been since 21 November 2014 a director of Sales and its sole company secretary from 25 August 2015. The shareholders of Sales are, and have been since 21 November 2014, PPI as to 26.667%; Hun as to 26.667%; Thatcher Group as to 26.667%; and two other entities each as to a 10% interest in that company.

4. The Sixth Defendant (“Phire”) was also placed in voluntary administration on 3 July 2020, and the Court also subsequently appointed provisional liquidators to it. Phire was, until 8 September 2015, known as Pages Hire Centre (NSW) Pty Ltd (“PHC”). Mr Boros is and has been a director of Phire since its incorporation and is currently the sole director and sole company secretary. Mr Thatcher was a director of Phire from 17 December 1999 until 21 August 2015 and was the sole company secretary of Phire from 1 September 2007 to 16 November 2010. The shareholders of Phire are, and have been since about 21 January 1999, PPI as to 50%; Hun as to 25%; and Thatcher Group as to 25%. There is a dispute as to whether Phire ceased trading from January 2015 or 30 June 2015, but it is common ground that, from about 1 January 2015, Mr Boros caused creditors of Phire, other than the Australian Taxation Office (“ATO”), to reissue their invoices to Sales. Phire was placed in voluntary administration on 9 September 2015, executed a Deed of Company Arrangement (“DOCA”) on 5 November 2015, and the deed administrators terminated that deed on 19 June 2020. As mentioned above, Phire was again placed in voluntary administration on 3 July 2020 and provisional liquidators were then appointed to it by the Court.

5. The Seventh Defendant is Pages Austructures Pty Ltd (“Austructures”). Mr Boros is and has been a director of Austructures since its incorporation and is, and has been since 27 March 2007, its sole director. From about 9 September 2008 until 1 July 2020, the shareholders of Austructures were PPI as to 25%; Hun as to 25%; Hospitality Hire (Aust) Pty Ltd (a company owned by Mrs Boros) (“HHA”) as to 25%; and Thatcher Group as to 25%. On or about 1 July 2020, Thatcher Group transferred its shares in Austructures to Mr Boros’ daughter, so that PPI now has a 25% interest and Mr Boros and associated persons and entities together have a 75% interest in Austructures.

6. The Fifth Further Amended Statement of Claim is a complex document. Mr Boros’ Defence to the Fourth Further Amended Statement of Claim (which he was not required to update) was adopted from an earlier Defence filed by the several Defendants when they were legally represented, and is convoluted and prolix. It does not adequately respond to several pleaded allegations and, in particular, Mr Boros responds to several factual allegations only by pleading “[m]ove to strike; time barred by operation of section 1317K of the Act”. I address that section, and the corresponding limitation period under general law, where relevant below. I have had regard to all defences raised but only address those which are of substance in this judgment. A dispute arose between the parties as to whether Mr Boros should be entitled to withdraw several earlier admissions in that Defence, which was ultimately of no significance to the factual and legal findings that I reach below.

7. After the conclusion of oral closing submissions, I directed PPI to provide a schedule clarifying an aspect of its pleaded claims, by identifying each material aspect of the financial accounts of each of the several companies that it contended was false or did not provide a true and fair view of the relevant company’s financial position, identifying specified matters, and I then allowed it a further opportunity to correct cross-references to evidence in that schedule that appeared to be in error, and allowed Mr Boros an opportunity to respond to that schedule. I also directed PPI to provide a schedule setting out its quantification of damages for each pleaded claim, and allowed Mr Boros an opportunity to respond to that schedule. I have disregarded Mr Boros’ response to the extent that, rather than addressing any question of quantification, he reagitated the question whether he was liable in respect of the claims, as to which he had previously made both written and oral submissions. The authorities make clear that the proper course is to disregard further submissions that extend beyond any leave granted for them: Carr v Finance Corp of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 at 257-258; Notaras v Waverley Council [2007] NSWCA 333 at [147] per Tobias JA, with whom Mason P and Hodgson JA agreed; Bull v Lee (No 2) [2009] NSWCA 362 at [8].

Affidavit evidence and credit

8. Before turning to the affidavit evidence on which the parties rely, I should address the principles to which the Court should have regard in assessing the affidavit and oral evidence. To the limited extent that there is any direct contest as to events, and given the passage of time between the events and the hearing, I have placed primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599 at [15]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 129; Re Hillsea Pty Limited [2019] NSWSC 1152 at [16]ff. I also have regard to the gravity of the matters alleged against Mr Boros in determining whether those matters are proved to the civil standard, under s 140 of the Evidence Act 1995 (NSW), reflecting the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171. In the event, Mr Boros gave little evidence in admissible form of several earlier arrangements for which he contended and, as I note below, Mr Timothy Page had limited knowledge or understanding of relevant events.

9. PPI relies on several affidavits of Mr Timothy Page, who is a confined space rescue officer by occupation, and the son of the late Mr and Mrs Page and now the sole director of PPI. In his affidavit dated 28 November 2016, Mr Page refers to PPI’s ownership of an industrial property at Punchbowl, to which I refer below, and the lease of that property to PEH and PEH’s then operation of an event hire business from that property. His evidence is that the late Mr Greg Page started the business in 1957 and that Mr Boros and Mr Thatcher worked for the business from the 1980s. Mr Page leads evidence of PPI’s then shareholding in several of the Pages Group companies, and refers to the circumstances in which he became aware of a suggestion that Mr Boros had listed the Punchbowl property for sale in August 2016. Mr Page also refers to several transactions involving PPI, to which I refer further below, to requests for the books and records of PPI made to Mr Boros and to correspondence between solicitors in respect of those requests. The issues in respect of access to documents are relevant to the oppression claims, although orders for production of documents were made in the proceedings and the Court will determine the proceedings on the basis of the documents now produced in them.

10. By a second affidavit dated 31 October 2017, Mr Page referred to the shareholdings of the several companies in the Pages Group and to the entry into a first lease of the Punchbowl property between PPI and PEH on 25 June 2014 (“First Lease”) and a second lease between PPI and PEH in July 2016 (“Second Lease”). He again referred to a telephone conversation with a real estate agent in respect of Mr Boros’ listing of the Punchbowl property for sale, to the circumstances in which he was then appointed as a director of PPI and to requests made by PPI’s solicitors for access to PPI’s books and records and the commencement of proceedings seeking access to those books and records. Mr Page also referred to the circumstances in which the amount of a facility from Australia and New Zealand Banking Group Limited (“ANZ”) to PPI was increased in November 2016, although he appears to have had little personal knowledge of that matter. He also there referred to the entry into the Second Lease over the property and to unsuccessful attempts made between the parties to negotiate a resolution of the proceedings.

8. PPI relies on a third affidavit of Mr Page dated 21 February 2020, which referred to conversations with Mrs Page prior to her death, in which she had referred to Mr Boros’ role in dealing with the finances of the Pages Group business, and he also gives evidence of Mrs Page’s lack of business sophistication and her apparent lack of understanding of the affairs of the Pages Group companies. Mr Page’s evidence is that his late mother had not mentioned to him several financial arrangements on which Mr Boros relies by way of defence. He acknowledges that Mrs Page received payments from the Pages Group including a weekly allowance but observes that she never advised him that those payments were loans from the companies or referred to any liability to pay back those payments (Page 21.2.2020 [13]). Mr Page’s evidence is that he did not find any evidence or documents among his late mother’s papers referencing any payment arrangement between Mrs Page and PPI or PEH, or between PPI on the one hand and PEH, Sales and Phire on the other, after the death of Mrs Page (Page 21.2.2020 [15]). Mr Boros also tenders no such documentation in the proceedings.

9. Mr Page refers to PPI’s later entry into a contract for sale of the Punchbowl property with a third party, which did not proceed when PEH did not surrender the Second Lease, but PPI now does not press an earlier claim for relief in respect of that matter. He refers to further requests made by PPI’s solicitors for books and records of the companies (Page 21.2.2020 [25]) and to the interest payable by PPI on the increased loan facility to PPI from ANZ (Page 21.2.2020 [27]-[29]). Mr Page also refers to certain matters raised in the Defendants’ then Defence to the Second Further Amended Statement of Claim filed 23 December 2019, and to his assumption until about January 2017 that Mr Boros “had done the right thing” and ensured the rent payable under the Second Lease reflected a commercial market rent, and to his having since learned that the rent payable under the Second Lease was “well below” market rent. I address that question below.

10. Mr Page also gives evidence responding to Mr Boros’ evidence as to comments made by PPI’s solicitors at a meeting on 8 August 2017. Nothing turns on those comments, where the status of the Second Lease is a matter for the Court, and does not depend upon PPI’s solicitor’s view of that question. Mr Page also addresses other aspects of Mr Boros’ evidence. He notes that Mr Boros and other Defendants have not produced board minutes recording any of the transactions in issue in the proceedings (Page 21.2.2020 [38]) and I note that no board minutes of any significance were tendered.

11. By his fourth affidavit dated 5 June 2020, Mr Page responded to Mr Boros’ affidavit dated 17 April 2020, referring to the position which Mr Page held for a period in the Pages Group business, which was plainly not a management role, and to his lack of knowledge of dealings with ANZ; he referred to the late Mrs Page’s reliance on Mr and Mrs Boros, and to the fact that Mrs Boros had held a power of attorney for Mrs Page; to Mrs Page’s education and her career in teaching, but her lack of sophistication as a businesswoman, although she held a position as a director of a charitable organisation; and to a reduction of payments made by the Pages Group companies to her in late 2014, when Mr Boros told her that the business had not been “doing so well”. Mr Page also referred to an offer made by Mr Boros that Mr Page be appointed as a director of companies in the Pages Group, and to Mr Page having recognised (I interpolate, rightly) that it would be undesirable that he accept such an appointment where he was also a director of PPI. Mr Page also addressed several other matters that are not material to the findings that I reach below and to correspondence between Mr Boros and PPI’s solicitors from March 2020 onwards. Mr Page also there replied to the affidavit of Mrs Boros dated 22 April 2020, which was not read.

12. Mr Boros cross-examined Mr Page at some length. It was apparent that Mr Page had limited knowledge of the affairs of the companies, and, as he fairly accepted, he also had little business expertise. It seems to me likely that Mr Page had relied heavily on his solicitors to prepare his affidavits, and that his account of the history of the companies in those affidavits likely reflected his solicitors’ analysis of relevant documents rather than any substantial understanding of those documents on his part. It was perhaps unfortunate that Mr Page was left to give evidence of matters that he did not fully understand. However, nothing turns on that matter for present purposes, since the issues largely turn upon documents and Mr Boros’ account of decisions which he made, in which Mr Page had no involvement. I accept that Mr Page was doing his best to give honest evidence, although the utility of that evidence was limited by his lack of personal knowledge of events and his limited business expertise.

13. PPI also tendered an affidavit dated 28 November 2016 of the late Mrs Page (Ex P1). Mrs Page’s evidence was that the late Mr Greg Page started the Pages Hire business in 1957 and that Mr Boros and Mr Thatcher joined the business in the 1980s and Mr Page died in 2003. Mrs Page there referred to the fact that she was the sole director of PPI until about 2008, when Mr Boros replaced her as PPI’s sole director and secretary. Mrs Page acknowledged that she had received several benefits from PPI, including the use of a car, travel costs and other less substantial benefits such as access to limousines if she was attending a function.

14. Mrs Page referred to dealings with the Punchbowl property and to the First Lease, but her evidence was that she did not know whether PEH was paying the rent on that property after she ceased to be a director of PPI in 2008 (Ex P1, [12]). She also referred to the entry into the Second Lease and her evidence was that the Second Lease was entered into without her knowledge or consent, and that Mr Boros did not discuss it with her (Ex P1, [14]). Her evidence was that her consent was also not sought or obtained to use the Punchbowl property as security for companies in the Pages Group to borrow funds from ANZ and that the Punchbowl property had been listed for sale in 2016 without her knowledge or consent, and that she subsequently passed a resolution removing Mr Boros as director and secretary of PPI and appointing Mr Timothy Page as director and secretary. Her evidence was that Mr Boros was her late husband’s “business partner” for many years; she thought Mr Boros was managing the Pages event hire business; he provided the benefits to which she had referred in her affidavit to her and she thought she was being looked after and trusted Mr Boros. Mrs Page’s evidence accords with the probabilities, although I bear in mind that she could not be cross-examined.

15. PPI relied on an affidavit dated 18 July 2019 of Mr Lenord and his expert report in respect of the market rent payable in the Punchbowl property (Ex P14) at the time of the entry into the Second Lease. I will address that report in dealing with that issue below.

16. PPI also relied on several reports of Ms Bateman, to which I refer below in dealing with the particular issues to which they were relevant. Ms Bateman’s affidavit dated 19 March 2018 exhibited her first expert report dated 1 March 2018 (Ex P8). That report was admitted without limitation as to paragraphs 177 and 192, relating to the alleged lapse of PPI’s GST registration; paragraphs 110-113 and 144 relating to the alleged transfer of business from Phire to Sales in 2015; and paragraphs 19-21, 96-99, 130-131 and 180 and Schedule 1 relating to the allegation of false loan accounts with PPI, and otherwise subject to a limiting order under s 136 of the Evidence Act as relating to the question of oppression, winding up on the just and equitable ground and the costs of obtaining expert assistance arising from issues as to the alleged failure to keep proper books and records. Ms Bateman’s second report dated 27 June 2019 (Ex P9) was admitted without limitation as to paragraph 16-32, relating to the alleged failure to properly record PPI’s shareholdings in group companies and share premium reserves and as to paragraph 46(f) relating to Austructures’ books and records, and otherwise with a limiting order under s 136 of the Evidence Act as noted above.

17. Ms Bateman’s third report dated 30 August 2019 (Ex P10) was admitted without limitation as to paragraphs 175-186 relating to the alleged failure to keep proper books and records of PPI; paragraph 176 relating to the alleged increase in PPI’s debt to ANZ; paragraphs 58-59 and 125 relating to the alleged lapse in PPI’s GST registration; paragraphs 84-89 relating to the loan of $124,000 to PEH; paragraphs 178-180 relating to the alleged failure to properly record PPI’s shareholdings in group companies and share premium reserves; paragraphs 46-50, 76-81 and 181-183 relating to the alleged transfer of the business from Phire to Sales in 2015; paragraphs 61, 89-91, 94-95, 102-104, 134, 142-161 and 181 and Schedule 7 relating to the alleged false loan accounts with PPI, and paragraphs 63(c) and 184-185 as to the alleged failure to ensure Austructures kept proper books and records, and otherwise with a limiting order under s 136 of the Evidence Act as noted above.

18. Ms Bateman’s report dated 4 June 2020 (Ex P11) was admitted without limitation. Paragraphs 18-61 of that report refer to the financial records of PPI; paragraphs 62-98 refer to the financial records of Phire; paragraphs 99-119 relate to the financial records of Sales; paragraphs 137-145 relate to documentation of loan accounts between related parties; and paragraphs 183-190 of that report deal with Ms Bateman’s view as to the amount of the fees charged by her to PPI that relate to the question whether proper financial records of PPI have been kept, but do not distinguish between those expenses that are referable to issues as to PPI’s accounts and those that are referable to issues as to other companies’ accounts. Ms Bateman’s further report dated 8 July 2020 and several further reports amending aspects of her calculations were admitted without limitation. As I noted above, I will address these reports below in addressing the relevant issues.

19. Ms Bateman was not provided with assumptions as to provable facts and, as I will note below, Ms Bateman did not always adequately expose any basis in accounting or professional standards for the opinions that she expressed or restrict her evidence to matters within her professional expertise. Mr Boros cross-examined Ms Bateman but that cross-examination did not significantly undermine those parts of her evidence which did reflect the application of accounting expertise to provable facts and could be given weight.

20. I have had regard to other matters raised by Mr Boros in submissions which he contended had the result that PPI acted “untruthfully” in respect of several of its claims, including a claim for estoppel brought by PPI to support a surrender of the Second Lease, which was abandoned after Mr Page’s cross-examination; matters raised in the cross-examination of Mr Boros; the scope of documents sought by PPI on subpoena and a contention, which was not established, that PPI had not provided with Ms Bateman will all relevant documents that were made available to it; the circumstances in which PPI sought to sell the Punchbowl property; and a suggestion that there was an unidentified “shadow director” behind Mr Timothy Page “running this claim” and that it was not brought for the benefit of all of PPI’s “beneficiaries”. I am not persuaded that these matters establish any lack of integrity in PPI’s claim, although parts of it were not pressed and some aspects of it have not succeeded.

21. Mr Boros relied on several affidavits, which were prepared at the time that he was represented by Counsel and solicitors in the proceedings. His first affidavit dated 30 January 2018 had been prepared in support of an unsuccessful application for summary dismissal or striking out of the claims brought by PPI against him in the proceedings or a permanent stay of the proceedings. His evidence there was that he was the sole director of PPI from 3 March 2008 until 12 September 2016, when Mrs Page removed him and appointed Mr Page in his place as PPI’s director. He was also a director of PEH, in which PPI was a 50% shareholder, since 1999 and Mr Thatcher was the other director of PEH. Mr Boros there referred to the lease of the Punchbowl property from PPI to PEH, initially pursuant to the First Lease and subsequently pursuant to the Second Lease. Mr Boros also led evidence, admitted with a limiting order under s 136 of the Evidence Act as submission only, in support of a claim that PPI had commenced and continued the proceeding to exert pressure on him, as a director of PEH, to cause PEH to surrender its lease over that property. It is not necessary to address that issue, where Mr Boros’ previous attempt to stay the proceedings failed. It is in event apparent, for the reasons noted below, that PPI’s factual complaints have substantial factual merit, although not all of them give rise to claims available to PPI as distinct from other companies within the Pages Group.

22. Mr Boros referred to the structure under which the Pages Group business was conducted from 1999 until 2014 (Boros 30.1.18 [26]). He also referred (Boros 30.1.18 [30]) to the circumstances in which he was appointed as director of PPI in place of Mrs Page. Little turns on that matter, since the claims against Mr Boros relate not to the circumstances of his appointment as a director of PPI but to the manner in which he conducted himself in that position. Mr Boros addressed the appointment of voluntary administrators to Phire on 9 September 2015 and to the entry into the DOCA by Phire on 5 November 2015 (Boros 30.1.18 [32]). Mr Boros also addressed specific aspects of the claims made by PPI and I will refer to his evidence in dealing with those claims below.

23. Mr Boros also relied on his further affidavit dated 17 April 2020, which acknowledged that Mr Timothy Page did not have a role as a director of the Pages Group companies until he became a director of PPI, but contended that Mr Page was a full-time employee of the Pages Group until about 2006 and claimed, by way of assertion, that Mr Page knew of the ANZ facilities and how they functioned (Boros 17.4.20 [7]-[8]). Mr Boros again referred to the structure of the Pages Group companies and to Mrs Page’s role in the companies before he became a director of PPI in July 2008. The matters which I have to determine relate to the subsequent period.

24. In that affidavit, Mr Boros also referred to the accounting functions of the Pages Group (Boros [30]ff), complained of failures in the performance of a former commercial manager with the Pages Group, whose responsibilities he says included the internal accounts function, and contended that work in progress (“WIP”) was treated differently in the Pages Group’s reports to ANZ (where he says it was included as an asset under a formula which estimated its value based on expenses incurred against forward sales) and for tax purposes, where he contended it was not recorded as an asset. Mr Boros contended (Boros [41]) that the financial statements prepared for internal reporting purposes and the reports sent to ANZ did not match the accounts prepared for tax purposes for that reason. Mr Boros was cross-examined (T223ff) as to this evidence and he there maintained that ANZ had reporting criteria which were not the same as the Australian Taxation Office’s criteria (T225). In cross-examination, Mr Boros also disagreed with Ms Bateman’s evidence (to which I refer below) that WIP would be included in annual financial statements provided to the Australian Taxation Office, although indicating that he would have sought advice as to that matter if it was contentious (T231-232). There is no suggestion that any contemporaneous advice was sought as to that matter. Although his evidence was not entirely clear, he adhered to his affidavit evidence that WIP was not included in final accounts provided to the Australian Taxation Office (T232, T236). Mr Boros was cross-examined as to a significant difference in the 2011 financial year between different versions of the financial statements (Boros [71], Ex J1, 2857, 2870) (T248) and as to the non-production of signed and audited financial statements in, for example, 2012 and 2013 and referred to his reliance on the Pages Group’s accounts department in that regard (T251). Mr Boros was also cross-examined at length (T262ff) as to other inconsistencies in the financial accounts of the companies and the absence of final versions of relevant financial statements.

25. Mr Boros also described other aspects of the accounting process, reporting to ANZ and finalising annual accounts and identified (Boros [69]) the audited financial statements which he contended had been prepared for PPI for the years ending 30 June 2009 through 30 June 2011; PEH for the years ending 30 June 2009 through 30 June 2015; and Phire for the years ending 30 June 2008 through 30 June 2014. He also referred to a compilation report which he contended had been prepared and signed by PPI’s external accountant for the financial year ended 30 June 2015 (Boros [70]) and identified documents for Sales and PEH which he contended were final documents provided to the Australian Taxation Office for the years ended 30 June 2017 through 30 June 2019 (Boros [71]). Mr Boros also set out (Boros [72]) a table indicating financial statements for the Pages Group covering the financial years from 30 June 2008 to 30 June 2019. Mr Boros subsequently resiled, in cross-examination, from the identification of some of those documents as final accounts, when the extent of deficiencies in them began to emerge. I will refer to aspects of this affidavit in dealing with particular issues below.

26. Mr Boros was cross-examined at length. Mr Boros was cross-examined as to his recognition that decisions made as a director of PPI had the ability to affect its interests in PEH and Phire and his evidence was that his primary concern as a director of PPI was PPI’s interest to the exclusion of any other person or organisation (T214). He recognised that he should not use his position as director to gain an advantage for himself or some other party, with a qualification if that advantage was “acknowledged and agreed by other parties that may have been affected” (T214-215). He also acknowledged an obligation to avoid a conflict between his own interests and the interests of PPI, “unless there was acknowledgement by other parties that could be impacted” (T215); that formulation does not reflect the legal test, as I will note below. He was also cross-examined as to the extent of Mrs Page’s participation in the management of the Pages Group’s business and his evidence was that Mrs Page would go through final accounts with “a reasonable amount of diligence” (T215-T216). He acknowledged that Mrs Page started to become “overwhelmed” by the issues in the business in 2008 (T216), and I note that he was appointed as the director of PPI in her place in that year. I refer to other aspects of Mr Boros’ cross-examination as to specific issues below.

27. In closing submissions, PPI submits that the Court should find that Mr Boros was an untruthful witness in respect of several important matters and that his evidence should be treated with caution unless corroborated by contemporaneous documents. Mr White, who appears with Mr Gration for PPI, submits, and I accept, that Mr Boros’ answers to questions in cross-examination were often non-responsive, and that he gave diffuse and ambiguous explanations for matters, often by reference to matters as to which he had not led documentary or affidavit evidence, although he had been legally represented when his affidavits were prepared. Mr White also submits, and I accept, that Mr Boros frequently made claims of factual matters that supported his case in cross-examination which later proved to be incorrect. Mr White submits, and I accept, that other significant aspects of Mr Boros’ affidavit evidence were shown to be incorrect, including his explanation for the difference between the ‘management accounts’ provided to ANZ and the audited financial statements provided to the Australian Taxation Office, or on which the tax returns were based, by reference to the treatment of WIP, and that there were also shifts in Mr Boros’ evidence as to that matter in cross-examination. Mr White also submits, and I accept, that there were significant inconsistencies in Mr Boros’ evidence in cross-examination as to the extent and duration of the adverse financial impact of an issue that he claimed had arisen with invoicing in March 2014, and as to whether the payments to Mrs Page on which he relied in his defence were ‘loans’ or were ‘advances’ against future dividends. PPI submits Mr Boros’ evidence should not be accepted on these matters and treated with great caution in relation to other matters.

8. It seems to me that Mr Boros is, not surprisingly, very aware of the personal financial risk that he faces in these proceedings and that he has, at best, tailored his evidence to seek to minimise that risk; that he has sought to vary his evidence to meet what he, likely rightly, perceived as adverse developments arising from the evidence led against him; that his evidence of conversations with the late Mrs Page as to critical matters is not reliable, given her limited understanding of matters relating to the Pages Group and the extent to which he assumed a dominant role in its management; and that he has not given an honest or frank account of the manner in which Pages Group calculated its income to be reported to the Australian Taxation Office. I do not accept Mr Boros’ evidence other than where it is corroborated by documents or is consistent with the objective probabilities.

9. Mr Boros also relies on the existence of internal accounting staff and an external accountant to the Pages Group in response to several claims directed to failures in the companies’ accounts which I address below. Mr Boros served, but did not read, affidavits of Ms Hales, a bookkeeper employed by the Pages Group and Mr Gulwadi, its external accountant and auditor, and he did not explain why those witnesses were not called. I infer that their evidence would not have assisted Mr Boros, in accordance with authority that where a party would be expected to, but does not, call a witness who could give evidence on a relevant matter, and the failure to call that evidence is unexplained, an inference may be drawn that the uncalled evidence would not have assisted the party’s case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at [63]–[64]; MSPR Pty Ltd v Advanced Braking Technology Ltd [2013] NSWCA 416 at [53].

10. PPI submits, and I accept, that it has faced many difficulties in obtaining production of documents in these proceedings, which likely have not been fully resolved despite the orders made by Rees J in Pages Property Investments Pty Ltd v Boros [2019] NSWSC 1778. Mr White submits and I accept that the difficulties in obtaining production of documents have caused significant difficulty for PPI in quantification of its claims below, and I will find below that the internal inconsistencies in PPI’s financial records cause difficulty for several of those claims. Mr White submits that Mr Boros’ “obstruction” in that regard should not be permitted to shield him from liability for breaches of fiduciary duty and contravention of his director’s duties and refers to my observation in Re FAL Healthy Beverages Pty Ltd [2017] NSWSC 476 at [41]-[43] that:

“I accept, that where relevant facts are peculiarly within the knowledge of the defendant or where the defendant has greater means to produce evidence relating to those facts, then provided the claimant provides sufficient evidence from which the matter can be inferred, the defendant ‘comes under an evidential burden, or an onus of adducing evidence …

Where a fact is peculiarly within the knowledge of a party to litigation, slight evidence of that fact may suffice to prove the fact unless that evidence is explained away by the party with the knowledge of the fact.”

34. However, that proposition cannot be taken too far, and its starting point is that a party first provides sufficient evidence from which the matter can be inferred. It does not authorise the Court simply to assume the correctness of the position for which PPI contends where it is not established by the tender of the Pages Group’s financial records, given the deficiencies in them which I address below, and there is not sufficient other evidence, or even “slight” evidence from which the matter can be inferred.

PPI’s claim for breach of director’s statutory and general law duties

35. PPI pleads that Mr Boros owed it statutory and fiduciary duties (5FASC [45]-[46]) which he breaches in several respects. Paragraph 45 pleads the relevant statutory duties as follows:

1. From 28 July 2003 until 12 September 2016, [Mr Boros] owed PPI the following statutory duties:

(a) a duty to exercise his powers and discharge his duties with the degree of care and diligence that a reasonable person would exercise: s 180(1) of the Act;

(b) a duty to exercise his powers and discharge his duties in good faith in the best interests of PPI, and for a proper purpose: s 181(1) of the Act;

(c) a duty not to improperly use his position to gain an advantage for himself or someone else, or cause detriment to PPI: s 182(1)(a) and (b) of the Act; and

(d)   a duty not to improperly use information obtained in his role as director of PPI to gain an advantage for himself or someone else, or cause detriment to [PPI]: s 183(1)(a) and (b) of the Act.”

36. This paragraph is a broadly accurate pleading of the relevant duties. Section 180 of the Corporations Act requires a director or other officer of a corporation to exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise if they were a director or officer of a corporation in the corporation’s circumstances and occupied the office held by, and had the same responsibilities within the corporation as, the director or officer. The statutory duty of care and diligence under that section overlaps with directors’ duty of care arising at general law. I summarised the applicable principles in Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789; (2014) 101 ACSR 233 (“Re Colorado”) at [408] as follows:

“In Australian Securities Commission v Gallagher above at 52–3, Pidgeon J observed that the test whether the statutory duty of care and diligence had been contravened was an objective one, that a director need not exhibit a greater degree of skill in the performance of his or her duties than may reasonably be expected for a person of his or her knowledge and experience, in the relevant circumstances, and that it was relevant to consider the way in which the work of the company was distributed between its directors and other officers, provided that distribution was reasonable. In Australian Securities and Investments Commission v Adler above at [372] (upheld by the Court of Appeal in Adler v Australian Securities and Investments Commission (2003) 46 ACSR 504; 179 FLR 1; [2003] NSWCA 131), Santow J noted that the duties imposed by the section are essentially the same as directors’ duties at general law; that, in determining whether a director had exercised reasonable care and diligence, the test was what an ordinary person, with the director’s knowledge and experience, might be expected to have done in the circumstances if he or she was acting on his or her own behalf; and that the duty of care and diligence would require special vigilance in a situation of potential conflict, requiring scrupulous concern on the part of those officers who become aware of that transaction to ensure that any necessary corporate approvals are obtained and safeguards put in place. That decision has been cited with approval in recent case law, including Parker v Tucker (2010) 77 ACSR 525; [2010] FCA 263 at [70] per Gordon J and Diamond Hill Mining Pty Ltd v Huang Jim Mining Pty Ltd (2011) 84 ACSR 616; [2011] VSC 288at [90] per Croft J.”

37. A question of breach of this duty requires a balancing of the foreseeable risk of harm against the potential benefits that could reasonably have been expected to accrue to the company from the conduct in question: Vrisakis v Australian Securities Commission (1993) 9 WAR 395 at 450; 11 ACSR 162 at 209; Australian Securities and Investments Commission v Cassimatis (No 8) (2016) 336 ALR 209; [2016] FCA 1023 at [479], aff’d Cassimatis v Australian Securities and Investments Commission [2020] FCAFC 52; (2020) 376 ALR 261; (2020) 144 ACSR 107; Re FAL Healthy Beverages Pty Ltd above at [55].

38. Section 181 of the Corporations Act requires a director or officer of a corporation to exercise his or her powers and discharge his or her duties in good faith in the best interests of the corporation and for a proper purpose. There are differing views as to whether any part of that duty is to be assessed by a subjective standard, which it is not necessary to address in this case: Re Colorado Products Pty Ltd (in prov liq) above at [421]; Australian Securities and Investments Commission v Drake (No 2) [2016] FCA 1552; (2016) 340 ALR 75; 118 ACSR 189 at [494]; Hart Security Australia Pty Ltd v Boucousis [2016] NSWCA 307 at [75]; Australian Securities and Investments Commission v Flugge and Geary [2016] VSC 779; (2016) 342 ALR 1 at [1980]ff; Vanguard Financial Planners Pty Ltd v Ale [2018] NSWSC 314 at [133]. I summarised the relevant principles in respect of that section and the broadly corresponding general law duty in Re Colorado above at [419]–[421] as follows:

“In Chew v R (1991) 4 WAR 21; 5 ACSR 473 at 499, Malcolm CJ summarised the requirements of that duty as being that directors (1) must exercise their powers in the interests of the company, and must not misuse or abuse their power; (2) must avoid conflict between their personal interests and those of the company; (3) must not take advantage of their position to make secret profits; and (4) must not misappropriate the company’s assets for themselves.

The case law is divided as to whether a contravention of s 181(1)(a) of the Corporations Act requires that it be established that a director engaged deliberately in conduct which he or she knew was not in the company’s best interests: for example, Forge v Australian Securities and Investments Commission (2004) 213 ALR 574; [2004] NSWCA 448 at [245] per McColl JA (with whom Handley and Santow JJA agreed); Holyoake Industries (Vic) Pty Ltd v V-Flow Pty Ltd above at [150], varied on appeal on another point in V-Flow Pty Ltd v Holyoake Industries (Vic) Pty Ltd above. In Westpac Banking Corporation v Bell Group Ltd (in liq) (No 3) (2012) 44 WAR 1; 89 ACSR 1; [2012] WASCA 157, the Court of Appeal of the Supreme Court of Western Australia unanimously held that the corresponding general law duty to act in good faith in the company’s best interests was subjective and would be complied with if directors honestly believed they acted in the company’s best interests (at [923] per Lee AJA, at [1988] per Drummond AJA, at [2027], [2772], [2795] per Carr AJA). The alternative view is that a contravention of that limb of s 181 can be established if the law objectively considers that what the director did was improper, even if the director subjectively believed that he or she was acting in the company’s best interests: see, for example, Australian Growth Resources Corporation Pty Ltd (recs and mgrs apptd) v Van Reesema (1988) 13 ACLR 261at 270–1; 6 ACLC 529 per King CJ; Mernda Developments Pty Ltd (in liq) v Alamanda Property Investments No 2 Pty Ltd (formerly known as Dollarforce Financial Services Pty Ltd) (2011) 86 ACSR 277; [2011] VSCA 392 at [32]–[33]. ... The section may be contravened if a director promotes his or her personal interest in a situation where there is a conflict or real or substantial possibility of a conflict between those interests and the company’s interests: Australian Securities and Investments Commission v Adler above at [735]; Parker above at [72].

A contravention of s 181(1)(b) may also be established if a director does not exercise his or her powers for the purpose for which they were conferred or exercised them for an improper purpose, and the bulk of authority indicates that question is to be determined objectively: Permanent Building Society (in liq) v Wheeler (1994) 11 WAR 187; 14 ACSR 109 at 137 per Ipp J (with whom Malcolm CJ and Seaman J agreed); Australian Securities and Investments Commission v Adler above at [738]–[739]; Parker above at [73]. In Westpac Banking Corporation v Bell Group Ltd (in liq) (No 3) above, the majority held that whether a director acts for an improper purpose, for the purposes of the corresponding general law duty, is determined objectively involving an assessment by the Court of what was reasonable in the circumstances (at [933] per Lee AJA, at [1988], [2027], [2073] per Drummond AJA). By contrast, Carr AJA held that the test whether directors had acted for an improper purpose was primarily subjective, although a decision would be voidable if directors acted in good faith for a purpose that was beyond their powers or for a collateral purpose (at [2923]).”

39. Section 182 of the Corporations Act prohibits a director, secretary, officer or employee of a corporation from improperly using his or her position to gain an advantage for himself or herself or someone else, or cause detriment to the corporation. I summarised of the applicable principles in Re Colorado above at [432]–[433] as follows:

“An objective standard is to be applied in determining what amounts to an improper” use of position, and impropriety is established by a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case”: R v Byrnes above at 514–15 per Brennan, Deane, Toohey and Gaudron JJ; R v Towey (1996) 21 ACSR 46 at 57; 132 FLR 434 per Gleeson CJ (with whom Allen and James JJ agreed). In Doyle v Australian Securities and Investments Commission (2005) 227 CLR 18; 223 ALR 218; 56 ACSR 159; [2005] HCA 78, the High Court observed (at [35]) that the relevant conduct would be improper if it amounted to:

“a breach of the standards of conduct that would be expected of a person in [the director’s] position by reasonable persons with knowledge of the duties, powers and authority of his position as director, and the circumstances of the case, including the commercial context.”

It is not necessary that the relevant director gain an advantage for himself or herself or cause a detriment to the company in order to establish a contravention of the section: Chew v R (1992) 173 CLR 626 at 633; 107 ALR 171 at 174; 7 ACSR 481 at 484 per Mason CJ, Brennan, Gaudron and McHugh JJ. An objective test was also applied to determine whether this section was contravened in Holyoake Industries (Vic) Pty Ltd v V-Flow Pty Ltd above and, in Hydrocool Pty Ltd v Hepburn (No 4) (2011) 279 ALR 646; 83 ACSR 652; [2011] FCA 495, Siopsis J followed R v Byrnes, above, in holding that impropriety for the purposes of this section was objective and did not require subjective knowledge of impropriety and followed Chew v R, above, in holding that a contravention could be established although the desired object was not achieved. …”

40. Paragraph 46 of the Fifth Further Amended Statement of Claim pleads fiduciary duties owed by Mr Boros to PPI, as follows:

1. From 28 July 2003 until 12 September 2016, [Mr Boros] owed to PPI the following fiduciary duties:

(a)   a duty to act in good faith and in the best interests of PPI;

(b)   a duty to exercise his powers for a proper purpose;

(c)   a duty not to prefer his own interests or the interests of others over the interests of PPI; and

(d)   a duty to avoid situations where there is a conflict between his own interests and the interest of PPI.”

41. Several observations need to be made about this pleading. First, the formulation of the duties pleaded in 5FASC [46(a)]-[46(b)] as “fiduciary” duties is controversial. The case law recognises that a director owes an equitable duty to act in good faith and in the company’s best interests and to exercise his or her powers for a proper purpose, although there is an open question whether that duty can properly be characterised as “fiduciary” where it imposes positive obligations. On appeal in Westpac Banking Corporation v TheBell Group Ltd (in liq) (No 3) [2012] WASCA 157; (2012) 44 WAR 1, the majority in the Court of Appeal of the Supreme Court of Western Australia (at [918]-[933] per Lee AJA, at [1956] and [1978] per Drummond AJA) held that the director’s duties to act in good faith and in the company’s interests and for proper purposes, although imposing positive obligations, can nonetheless be characterised as fiduciary, and Carr AJA observed (at [2733]) that he was not prepared to hold, on the present state of authority, that duties to act in the company's interests were not fiduciary duties. This question was subsequently noted in Netglory Pty Ltd v Caratti [2013] WASC 364 at [345]ff, where Edelman J observed that it may be incorrect, on the current state of Australian authorities, to characterise a breach of positive duties by a director, such as duties to act in good faith and in a company’s interests and for proper purposes, as a breach of fiduciary duty. His Honour nonetheless noted (at [347]-[349]) that the High Court “appears to have recognised that there may be a fiduciary prescriptive liability to account, where that liability is associated with a proscriptive fiduciary duty”; that it may be possible to describe the “proper purposes” duty in negative terms, as a duty not to act for collateral purposes; and that the duty or duties to act in good faith in the interests of the company could alternatively be characterised as prescriptive conditions upon the exercise of a fiduciary power. It is not necessary to determine the status of this duty in order to determine these proceedings.

42. Second, PPI does not plead or allege a breach of the “no profit” aspect of fiduciary duties, and I therefore do not further address that duty in this judgment. Third, the duties pleaded in 5FASC [46(c)]-[46(d)] do not accurately reflect the “no conflict” aspect of fiduciary duties. A director owes, as aspects of the “no conflict” rule, a duty to avoid a conflict of duty and duty or a conflict of duty and interest but not, as 5FASC [46(c)]-[46(d)] assume, a duty to avoid conflict of interest and interest. While I will not take an unduly technical approach to that pleading, that misunderstanding may have affected aspects of PPIs’ substantive case.

43. Turning now to well-established principles, a director of a company is a recognised category of fiduciary and the “no conflict” rule applies to a director as a status-based fiduciary. (As I noted above, PPI does not plead a breach of the “no profit” rule.) The “no conflict rule” has a strict application when it applies in the sense that, if a transaction has occurred in conflict of interest, a company director cannot avoid a breach of that rule by asserting the fairness of the transaction or that it was in the company’s best interests or that the director was not acting with subjective dishonesty. I observed (by reference to authority) in Re Colorado Products Pty Ltd (in prov liq) above at [351]:

“Broadly, the no conflict rule prohibits conduct where a fiduciary has a personal interest or duty owed to a third party which gives rise to a real and sensible possibility of a conflict. That rule and the no profit rule, which provides that a fiduciary cannot obtain a profit from its fiduciary position without the principal’s consent, may overlap.”

44. In Coope v LCM Litigation Fund Pty Ltd [2016] NSWCA 37; (2016) 333 ALR 524 , Payne JA (with whom Gleeson and Leeming JJA agreed) summarised the no conflict and no profit rules as follows (at [105]):

“A fiduciary is under an obligation, without informed consent, not to promote the personal interests of the fiduciary by making or pursuing a gain in circumstances in which there is a conflict, or a real or substantial possibility of a conflict, between the personal interest of the fiduciary and those to whom the duty is owed … A conflict arises if there is a real and sensible possibility that the personal interests of the fiduciary divide the loyalty of the fiduciary with the result that he or she could not properly discharge their duties to the beneficiary. …:” [citations omitted]

45. It is important also to recognise that a necessary step in determining whether a breach of the rule against conflict of interest is established is to ascertain the subject matter of the relevant fiduciary obligations, which may be determined from the course of dealing between the parties: Birtchnell v Equity Trustees Executors and Agency Co Ltd [1929] HCA 24; (1929) 42 CLR 384 at 409; [1929] ALR 273 at 284 per Dixon J; Omnilab Media Pty Ltd v Digital Cinema Network Pty Ltd [2011] FCAFC 166; (2011) 285 ALR 63 ; 86 ACSR 674 at [206] , where Jacobson J (with whom Rares and Besanko JJ agreed) characterised the proposition “that the scope of the fiduciary duty must be moulded according to the nature of the relationship and the facts of the case” as “fundamental”; Colorado above at [361]. In Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296; 287 ALR 22; 87 ACSR 260, the Full Court of the Federal Court (Finn, Stone and Perram JJ) observed (at [179] that:

“The concept of “duty” in the “conflict of duty and interest” formula of the first of these [themes] is convenient shorthand. It refers simply to the function, the responsibility, the fiduciary has assumed or undertaken to perform for, or on behalf of, his or her beneficiary. What that function or responsibility is, is a question of fact. It may be narrow and circumscribed, as is often the case with specific agencies; it may be broad and general, as is characteristically the case with the functions of company directors; its scope may have been antecedently defined or determined; it may have been ordained by past practice; it may be left to the fiduciary’s discretion to determine; and it may evolve over time as is commonly the case with partnerships. Put shortly the actual function or responsibility assumed determines “[t]he subject matter over which the fiduciary obligations extend” for conflict of duty and interest and conflict of duty and duty purposes.”

46. In Howard v Commissioner of Taxation [2014] HCA 21; (2014) 309 ALR 1, French CJ and Keane JJ in turn referred (at [34] ) to the principle that:

“The scope of the fiduciary duty generally in relation to conflicts of interest must accommodate itself to the particulars of the underlying relationship which give rise to the duty so that it is consistent with and conforms to the scope and limits of that relationship.”

Their Honours also noted, with reference to authority, that such a duty is to be “moulded according to the nature of the relationship and the facts of the case”. Gageler J (at [110]) there referred with approval to the observation in Grimaldi above to which I have referred above.

47. This principle can in turn overlap with principles of waiver and ratification, summarised by Tracey J in Holyoake Industries (Vic) Pty Ltd v V-Flow Pty Ltd [2011] FCA 1154; (2011) 86 ACSR 393 at [92] (varied on appeal on another point in V-Flow Pty Ltd v Holyoake Industries (Vic) Pty Ltd [2013] FCAFC 16; (2013) 296 ALR 418; 93 ACSR 76 as having effect that:

“A breach may be avoided if the fiduciary makes a full and frank disclosure of the facts to the person to whom the duty is owed and that person consents to the fiduciary acting in a way that would otherwise place him or her in a position of conflict. Disclosure and consent may also retrospectively excuse a breach which has already occurred.”

I have drawn on my judgment in Colorado at [351] for the analysis which appears above.

Claim to set aside the Second Lease

PPI’s pleaded case and evidence

48. On or about 15 June 2016, PPI and PEH executed the Second Lease of the Punchbowl property from PPI to PEH for a period of five years commencing on 1 July 2016 until 30 June 2021, with options to renew for two further periods of five years each. The rent payable by PEH under the Second Lease was $33,000 per month (inclusive of GST) payable monthly in advance on the 1st day of each month, under cl 3 of the Second Lease and Item 6 of the Reference Schedule. The rent payable by PEH under the Second Lease is reviewed annually during the terms of the lease on the first and each subsequent anniversary of the commencement date of the lease by a specified formula under cl 4 of the Second Lease and Item 7 of the Reference Schedule. PEH is obliged to pay, within 20 business days after receiving an itemised statement from PPI after the end of each 12-month period of the lease, specified operating costs for the property under cll 5.1 and 5.2 of the Second Lease. PEH is obliged to pay interest to PPI on any rent, operating costs or other money payable by PEH to PPI and unpaid for 10 business days at a rate equal to 2% per annum above the highest overdraft rate charged as at the due date for payment by PPI’s bank for commercial loans in excess of $100,000, from the date the relevant payment was due under cl 13.3 of the Second Lease.

49. PPI pleads (5FASC [43]-[44]) that the market rent for the Punchbowl property as at 15 June 2016 was about $42,090 per month plus GST (about $46,300 per month inclusive of GST) and that the rent payable by PEH under the Second Lease is substantially below market rent. PPI pleads that Mr Boros breached his statutory and fiduciary duties by causing PPI to enter into the Second Lease at a rent substantially below market rent (5FASC [47]). In particular, PPI pleads that Mr Boros did not exercise his powers and discharge his duties as the director of PPI in good faith in its best interests, contrary to s 181 of the Act; that he improperly used his position as a director of PPI to gain an advantage for himself by reason of his indirect interest in PEH, or to gain an advantage for PEH, contrary to s 182 of the Act; and that he breached the pleaded fiduciary duties owed to PPI in that respect.

50. The rent payable under the Second Lease is $360,000 per annum, excluding outgoings which were to be paid by PEH; including land tax, which was not an additional charge to PEH; and exclusive of GST. Mr Boros referred, in his affidavit dated 30 January 2018, to a market valuation of the Punchbowl property obtained by ANZ from a third party valuer, Jones Lang LaSalle (“JLL”) in the sum of $5,500,000 (Ex J1, 8021-8065). Mr Boros also referred to his decision to set a gross rent at the amount of $360,000 per annum, which he contended was in PPI’s best interests (Boros [76]) and referred to the execution of the Second Lease. Mr Boros also relied on enquiries he had made of a local real estate agent prior to entry into the Second Lease and, in oral evidence given by leave, his evidence was that he was advised of the price range that would be achieved on a sale of the property and the rent per square metre that would be paid on a nearby property, if someone wanted to rent such a property (T209-210). Mr Boros also relied on a consent to lease by ANZ, which he contended involved ANZ’s assessment of whether the lease was at an appropriate rental, although the evidence did not establish that contention.

51. Mr Boros was cross-examined as to the circumstances of entry into the Second Lease and accepted the need for valuation advice about the value of the property and the rental values in that respect (T371), and again maintained that he had sought advice from local agents as to the rent that could be obtained (T372). He was also cross-examined, at some length, as to whether the rent payable under the Second Lease was market value (T379ff) and he denied that he arranged for the Second Lease to be entered into at a below market rent to advantage PEH if the property was sold and that he did not act in PPI’s interests in doing so (T383).

52. PPI also relies on JLL’s report, and points out that that report stated that the gross lettable area of the property was 6,085m²; out of a total area of 11,552m^2; that average asset performance in the area of the property was a market rent (excluding GST) of $131 per annum per m² for ‘prime rents’ and $109 per annum per m² for ‘secondary rents’. Mr White points out that, even assuming on the basis that the property would achieve only a secondary rent, and that the property was ‘average’, the market rent would be expected to be $663,265 plus GST per annum, by reference to that report. I accept that report provides some support for the higher rental figure for which PPI contends, recognising that it was prepared some months before the Second Lease was entered.

53. PPI relied on the affidavit dated 18 July 2019 of Mr Lenord and his expert report in respect of the market rent payable on the Punchbowl property (Ex P14) and Mr Boros relied on the expert report of Mr Price (Ex D2). I recognise that, as PPI points out, Mr Price stated in his report that he was instructed not to consider the terms of the Second Lease, and he confirmed in cross-examination that he had not been provided with a copy of that lease, although he was given the opportunity to review it in cross-examination and did not change his view. It seems to me that approach is not necessarily incorrect, where Mr Price’s evidence was to be directed to market rentals, rather than specifically to that lease.

54. There were significant differences between Mr Lenord’s and Mr Price’s evidence as to the basis on which the market rent should be calculated and as to its amount. Mr Lenord assessed the annual market rent for the property as $505,700, on the basis of a “net” rent (sect 9.3), with outgoings excluded and to be paid separately by the tenant. He estimated the outgoings for the Punchbowl property as $157,591 per annum which he considered was within the parameters for this building type (sect 7.1). Mr Lenord continued to express the view that the rent for property was appropriately assessed on that basis in cross-examination (T183), although he also indicated his view that, calculated on a “gross” basis, the market rent for the property would be $662,661 per annum (T182).

55. By contrast, Mr Price assessed the annual market rent for the property as $510,000 per annum, on the basis of a “gross” rent (p 9), with outgoings included in the rent and not separately chargeable to the tenant (T409), and he expressed the view that a “gross rent” should be charged on older assets such as the property (T409). He also described a “gross” rent in cross-examination as meaning that a tenant is not charged outgoings relating to land tax, council or water in addition to the quoted rent (T409). This description of “gross rent” is consistent with the definition of ‘Effective Market Rent’ contained on page 11 of his report, although he uses the term ‘Market Rent’ rather than ‘Effective Market Rent’ throughout his report. Mr Price’s rental estimate is based on comparator properties set out on pages 5 to 8 of his report, and his approach to a “gross” rent is illustrated by his treatment of a property at Yennora (page 7) where he determines a $125,000 gross rent by adding $25,000 fixed outgoings to (net) rent of $100,000.

56. Several other aspects of the Second Lease and Mr Lenord’s approach were consistent. Both Mr Lenord and Mr Price treated land tax as included in the rent and not an additional charge to the lessee, and Mr Lenord assumed that the lessor would increase the rental price to reflect land tax (sect 9.2), and that approach is consistent with the terms of the Second Lease. Both Mr Lenord and Mr Price also calculated their market rent as exclusive of GST, and that approach is also consistent with the terms of the Second Lease.

57. Mr White submits that:

“In the end, the different approaches used by Mr Price and Mr Lenord to estimating the ‘Market Rental Value’ make no practical difference as Mr Price says the market rent for the 2016 lease was $510,000 per annum plus GST, while Mr Lenord says that it was $505,070 per annum plus GST.”

I do not accept that submission, since it would be incorrect to compare the nominal rental in the Second Lease, exclusive of outgoings, with Mr Price’s assessment of a “gross” market rent inclusive of outgoings. The “gross” rent figure in Mr Price’s report would equate to a “net” rent, calculated on the same basis as the rent payable under the Second Lease and estimated by Mr Lenord, of $352,409 per annum, after deducting the hypothetical outgoings estimated by Mr Lenord. The rent payable under the Second Lease of $360,000 per annum on a “net” basis is slightly higher than that figure.

58. Both Mr Lenord and Mr Price were cross-examined and both addressed questions constructively, while adhering to their different approaches, different selection of comparable properties and different conclusions. They both offered reasoned and apparently plausible explanations for their different approaches and their selection of comparable properties, including the significance of the age and height of the properties. There is no basis to prefer Mr Lenord’s evidence to Mr Price’s evidence, or vice versa and, on that narrow basis, PPI has not established that the rent payable under the Second Lease was below a reasonable market range.

Claim for breach of duty against Mr Boros in respect of the entry into the Second Lease

59. In its opening written submissions, PPI submits that Mr Boros caused PPI to enter into a 15-year lease of the Punchbowl property at an initial rent of $33,000 per month and this was substantially below the true market rent for the Punchbowl property at that time. Mr Boros responds that he “diligently and to the best of [his] ability at the time investigated and took advice on a commercial rent of the property” and his final determination was $360,000 per annum plus GST plus land tax and other outgoings including insurance; he contends that the valuation evidence supports the rent paid by PEH; and that Mr Price’s valuation “was far more reflective of the actual property taking into account the lowest ceiling height and yard space”; and he denies that he improperly used his position as director of PPI to gain an advantage for himself and/or PEH.

60. There may be a real question whether the limited extent of the enquiries made by Mr Boros to determine the rent payable under the Second Lease amounted to a breach of the statutory duty of care and diligence under s 180 of the Act or the corresponding general law duty, but PPI did not plead such a breach. It seems to me that the pleaded claim against Mr Boros under s 181 of the Act is not established, where there can be no suggestion that it was not in PPI’s interests to formalise the ongoing lease with PEH in the Second Lease and it has not been established that rent specified in the Second Lease was below market rent at the relevant time. The pleaded breach of s 182 of the Act has also not been established, where any impropriety and any improper advantage to PEH or Mr Boros would only be established if the lease had been below market rent.

61. I am satisfied that Mr Boros breached the “no conflict” rule in respect of the entry into the Second Lease since there was a real and sensible conflict of interest between his duties owed to PPI and his economic interest in PEH in determining the rent payable by PEH to PPI under that lease, where he had no economic interest in PPI and a significant economic interest in PEH and the Second Lease had the obvious capacity to shift economic value from PPI to PEH if entered into at a below market rent. There is no suggestion that Mr Boros sought any formal or informal consent from the shareholders of PPI, still less on a fully informed basis, that would give rise to any consent to or ratification of that conflict. However, PPI has not established any loss arising from the breach of that rule or that PEH or Mr Boros obtained any profit from that breach, and that breach has no consequence, where it is not shown that the rent payable was a below market rental.

62. PPI seeks a consequential declaration that the Second Lease was procured by Mr Boros in breach of his duty to PPI and an order setting aside the Second Lease from the date the order was made (5FASC, Relief, [6], [6A]). That relief should not be ordered where it has not been shown the rent payable was not a market rental and no loss suffered by PPI or profit made by PEH or Mr Boros has been established. For completeness, PPI relied on paragraphs 366-370 of Ms Bateman’s report dated 4 June 2020 (Ex P11) to quantify its claim in respect of the Second Lease. Ms Bateman calculated the difference between the rent payable from 1 July 2016 to 30 June 2020 under the Second Lease, including CPI movements, by reference to the market rent assessed by Mr Lenord (on a net basis) and the market rent assessed by Mr Price (on a gross basis) and calculated interest payable on those amounts at pre-judgment Court rates. It is not necessary to address that calculation further where the basis of this claim has not been established.

Mr Boros’ defences to this claim

63. Mr Boros pleads several defences to this and other claims, separately in respect of each of the claims. Mr Boros pleads an estoppel defence (Defence [44(b)]), contending that PPI caused PEH to assume that PPI did not dispute the rent payable under the Second Lease. That defence is not established, where Mr Boros and, through him, PEH knew the limited extent of the enquiries he had made to establish whether the rent payable was market rent and there would, in any event, be no detriment to PEH in permitting PPI to claim for any deficiency in its liquidation, had the fact of a below market rental been established. Mr Boros does not plead that he, as distinct from PEH, has any estoppel defence arising from any representation to him in that regard. It is not necessary to address the further matters pleaded in response by PPI in Reply [6].

64. Mr Boros also pleads a claim for conventional estoppel (Defence [44(c)]). A conventional estoppel may be established where the party asserting that estoppel has adopted an assumption as to the terms of its legal relationship with the party to be estopped; that other party has adopted the same assumption; the parties have conducted their relationship on the basis of the mutual assumption; each party knew or intended the other to act on that basis; and the departure from that assumption will occasion detriment to the party asserting the estoppel: Waterman v Gerling Australia Insurance Company Pty Ltd [2005] NSWSC 1066; (2005) 65 NSWLR 300 at [83]. A conventional estoppel involves an element of agreement, whether express or implied, or at least demonstrated acceptance of a particular state of things, and is not established by acts done by one person without the other’s knowledge: Queensland Independent Wholesalers Ltd v Coutts Townsville Pty Ltd [1989] 2 Qd R 40 at 46 per McPherson J; Re Motasea Pty Ltd [2014] NSWSC 69; (2014) 97 ACSR 589 at [27]. It does not seem to me that the matters on which Mr Boros rely establish any basis for such an agreement or understanding extending to the payment of a below market rent under the Second Lease, had that been established. Mr Boros also pleads (Defence [44(e)) that it would be unjust for PPI now to raise any dispute as to the rent payable under the Second Lease but I can see no such injustice. This defence must fail and it is not necessary to address the further matters pleaded in response by PPI in its Reply ([7]-[9]).

65. Mr Boros also objects (Defence [47(a)]) to the form of this pleading but it seems to me that it sufficiently identified the case that he had to meet, and it is not necessary to address the further matters pleaded in response by PPI in Reply [10]. Mr Boros also repeats (Defence [47(d)]) his defence of estoppel and adds claims for affirmation, ratification and acquiescence in response to that claim. I have addressed the estoppel claim above; the additional defences fail on the same basis; and it is not necessary to address the matters pleaded in response by PPI in Reply ([11]).

66. Mr Boros also pleads (Defence [47(e)]) the legal elements of the statutory business judgment rule under s 180(2) of the Act. I address the elements of that defence below, but it has no application here where the pleaded contraventions relate to ss 181 and 182 of the Act and not the duty of care and diligence under s 180 of the Act. Mr Boros also pleads (Defence [47(f)]) that he should be relieved from liability under s 1317S(2) or 1318 of the Act. That question should be addressed in respect of his liability for the case brought against him as a whole, and not the individual components of it, and I address that question below.

67. Mr Boros pleads a defence of laches (Defence [47(g)]); PPI replies (Reply [13]), with substantial force, that Mr Boros’ conduct in withholding books and records and the failure to keep proper books and records caused the delay. It seems to me there was not sufficient delay by PPI to establish that defence, given that matter, where Mr Boros had practical control of PPI for part of the relevant period; the issues as to books and records to which PPI refers likely have contributed to the delay in bringing the claims; and the claims are in any event brought within the statutory limitations period under s 1317K of the Act which will be applied by analogy to the equitable claim.

253. PPI also submits that:

“PPI seeks an appointment of a receiver and manager to Austructures to engage in an orderly sale of the business, followed by a winding up of the company. Mr Boros has demonstrated by the previous manner that he has conducted the affairs of PPI, PEH and P[h]ire that he cannot be trusted to act in good faith in the interests of the company as a whole, or to comply with his other statutory director’s duties or fiduciary duties. The Court could have no confidence while Mr Boros remains the controlling mind of Austructures that the accounts he keeps will be true and correct, and that any dealings will be honestly and correctly recorded.

A sale process in those circumstances, conducted by an independent receiver and manager, could be expected to maximise the overall return to contributories on a winding up.

Alternatively, PPI would be content for a winding up order to be made and would propose that the provisional liquidators currently appointed to PEH, [Sales] and P[h]ire be appointed given the size and nature of intercompany loans and transfers of assets within the Group that have been uncovered and that should be properly investigated. That would maximum the efficiency and reduce the costs overall of those investigations and reconciliations of accounts.”

254. Mr Boros submits, in response to this claim, that Austructures is a solvent operating company with employees and ongoing economic input. I understand that to be common ground, although evidence to establish it was not led in these proceedings. Mr Boros also submits that the appointment of a liquidator to Austructures would devalue the business and its assets; that PPI is an equal minority shareholder with two other corporate entities and one individual, and the three other shareholders (which, I interpolate, are all associated with Mr Boros) should be seen as separate and each one as having its own rights. Mr Boros also offers to maintain the undertakings given in previous proceedings in which PPI sought the appointment of a provisional liquidator to Austructures and suggests that an appropriately qualified accounting firm should value Austructures and PPI’s shareholding “at which time an offer to buy the interest of PPI at market value will be put forward”; and he also submits that Austructures is not a large business and would seek a smaller, more cost effective firm to carry out the valuation, and that the cost of that valuation should be borne equally by the four shareholders in Austructures. Mr Boros also properly recognises that any purchase of PPI’s interest in Austructures would not affect any claims that PEH or Sales or their liquidators may have against Austructures.

255. I have referred above to the circumstances in which the Court may make a winding up order on the basis of oppression or on the just and equitable grounds. I am satisfied that matters that I have noted above in respect of Austructures’ financial records also amount to a material failure to maintain true and fair financial records in respect of that company. That failure, combined with the recent transfer of assets from other companies within the Pages Group to Austructures without any documentation for the transactions or any independent assessment of value or evidence of payment, is sufficient to establish that the conduct of Austructures’ affairs is contrary to the interest of the members of Austructures as a whole and oppressive to, and unfairly prejudicial to, PPI’s interests as a member of Austructures. It also seems to me that these matters are contrary to the public interest in the proper administration of companies and support a winding up of Austructures on the just and equitable ground. I will order the appointment of the same liquidators to Austructures as to PEH, Phire and Sales, where there seems to me to be a real advantage in a single appointment to all group companies given the uncertainties as to the accuracy of their financial records and the ownership of assets which arise from the matters I have addressed above.

256. I raised, in the course of oral submissions, and the parties addressed, whether I should stay that order for 21 days, on the basis of undertakings given by Mr Boros in the earlier proceedings in respect of the conduct of Austructures’ business, and both parties supported the making of such an order if a winding up order was to be made, to allow the parties to seek to agree a buy-out of PPI’s or other shareholders’ shares, if they wished. I have ultimately concluded that I should not stay that winding up order, which is substantially founded in public interest considerations, including a failure to maintain true and fair accounts in Austructures. Even if Mr Boros and PPI could now negotiate arrangements for a buy-out, where they have already had a long period to do so and have not done so, the evidence does not provide any reason to think that Austructures’ financial records would be properly maintained by Mr Boros if it was left in his control, and there is also no reason to think that Mr Page has sufficient knowledge of Austructures’ business or the business acumen to acquire the shares of Mr Boros and his family members and assume control of that company. It would, of course, be open to Austructures’ contributories to later apply to terminate the winding up under s 482 of the Corporations Act if they can establish its solvency and that the issues as to its management which have brought about its winding up have been addressed.

257. PPI alternatively sought an order under s 233(b) of the Act appointing a receiver and manager to Austructures, to sell its business, assets and properties, and an order that Austructures be wound up following that sale (5FASC [12F]-[12G]). It is not necessary to make such an order where a liquidator will be appointed to Austructures.

Declaratory relief and claims for compensation

258. PPI seeks a declaration under s 1317E of the Corporations Act that Mr Boros has contravened ss 181, 182 and/or 183 of the Act (5FASC, Relief, [1]). That section provides that, if the Court is satisfied that a person has contravened a civil penalty provision, the Court must make a declaration of contravention. Subsection 1317E(2) requires that that declaration specify the conduct that constituted the contravention. No declaration of a contravention of those provisions of the Act can be made under that section, since the balance of authority indicates that that section only applies to proceedings in which relief is sought by the Australian Securities and Investments Commission: One.Tel Ltd (in liq) v Rich [2005] NSWSC 226; (2005) 190 FLR 443; 53 ACSR 623 at [69]–[70]; Primacy Underwriting Agency Pty Ltd v Kilborn [2007] NSWSC 158; (2007) 25 ACLC 160 at [6]–[8].

259. PPI also seeks an order that Mr Boros pay compensation to it under s 1317H of the Corporations Act (5FASC, Relief, [2]), which permits the Court to order a person to compensate a corporation for damage suffered by the corporation if the person has contravened a corporation civil penalty provision in relation to the corporation, and damage resulted from the contravention. Section 1317J(2) of the Act provides that, relevantly, the corporation may apply for a compensation order. PPI has standing to seek such an order, but only in respect of a breach of a statutory duty owed to PPI and not in relation to a breach of a statutory duty owed to any other entity. In the alternative, PPI seeks an order that Mr Boros pay equitable damages to it for breach of a fiduciary duty owed to it (5FASC, Relief, [3]).

260. I have found that Mr Boros breached his fiduciary duty by reason of a conflict of interest in respect of the entry into the Second Lease, but no loss and no profit accruing to PEH or to him has been established by reason of that breach. I have found that Mr Boros is liable to pay compensation to PPI in respect of a contravention of s 180 of the Act, referable to unpaid rent and interest from 4 April 2011 to 12 September 2016. I have found that Mr Boros also breached his statutory duty in respect of the failure to keep true and fair accounts of PPI, but not that the entire cost of Ms Bateman’s work is recoverable by reason of that breach, and PPI should be left to recover its reasonable costs of Ms Bateman’s reports as costs of the proceedings. I have also found that Mr Boros also breached his fiduciary duty by reason of a conflict of interest in respect of the additional borrowing from PPI to pay down amounts owed by PEH and addressed the quantification of its loss above. PPI’s other claims for compensation have not been established.

Mr Boros’ claims for relief under s 1317S and s 1318 of the Corporations Act

261. As I noted above, Mr Boros pleaded claims for relief under ss 1317S and 1318 of the Corporations Act, which should be addressed in respect of his conduct as a whole. The Court has power to grant relief from a contravention of a civil penalty provision under s 1317S of the Act if, in “eligible proceedings” brought against a person, it appears to the Court that that person has or may have contravened a civil penalty provision, but that he or she had acted honestly and, having regard to all the circumstances of the case (including those connected with his or her appointment as an officer of a corporation), the person ought fairly to be excused for the contravention. Section 1318 in turn allows a Court to relieve, relevantly, an officer of a corporation from liability in civil proceedings for negligence, default, breach of duty or breach of trust, if he or she establishes that he or she acted honestly, and that he or she ought fairly to be excused for the negligence, default, breach of duty or breach of trust having regard to all of the circumstances of the case including those connected with his or her appointment.

262. In Daniels v Anderson (1995) 37 NSWLR 438 at 525, Clarke and Sheller JJA observed that a corresponding section allows the Court:

“to excuse company officers from liability in situations where it would be unjust and oppressive not to do so, recognising that such officers are businessmen and women who act in an environment involving risk in commercial decision-making.”

263. Matters relevant to relief under these sections include whether the defendant acted honestly; a value judgment whether, having regard to all the circumstances of the case, the defendant ought fairly to be excused for the contravention; and whether, as a matter of discretion, the Court should exercise its power to relieve the defendant from any liability: Australian Securities and Investments Commission v Edwards (No 3) [2006] NSWSC 376; (2006) 57 ACSR 209 at [10]; Australian Securities and Investments Commission v Healey (No 2) [2011] FCA 1003; (2011) 85 ACSR 654 at [83]–[84]; Great Southern Finance Pty Ltd (in liq) v Rhodes above at [60]; Re Swan Services Pty Ltd (in liq) [2016] NSWSC 1724 at [236]-[237]. Whether relief from liability should be granted under these sections depend not only on subjective honesty but also on the degree to which the relevant conduct fell short of the required standard, the seriousness of the contravention and its actual or potential consequences, any element of impropriety such as deception and personal gain and any contrition of the applicant and the need for general deterrence is also relevant: Morley v Australian Securities and Investments Commission (No 2) [2011] NSWCA 110; (2011) 83 ACSR 620 at [44], [49]–[50].

264. Mr Boros pleaded (Defence [47(f)]) that he should be relieved from liability under s 1317S(2) or 1318 of the Act in respect of the claim that he caused PPI to enter the Second Lease at below market value. I should address that defence for completeness although that claim is not established where it is not established the Second Lease was in fact below market value. I bear in mind in that respect the financial significance of the rent payable under the Second Lease to both PPI and PEH; the fact that there was no urgency limiting the time available to Mr Boros for obtaining information as to the market rent for the premises; there is no suggestion that the cost of obtaining a considered third party advice as to the rent payable would have been substantial; and that such advice would be reasonably available to Mr Boros, had he sought to obtain it. I am also not satisfied that Mr Boros could reasonably believe that the inquiries he claimed to have made as to the market rent for the property were sufficient. I have found that Mr Boros had a conflict between his duty owed to PPI and his interests in respect of PEH in respect of the entry into the Second Lease, and did not make full and fair disclosure of relevant information so as to seek approval of the transaction from PPI’s shareholder. I am not satisfied that Mr Boros should be relieved from liability in respect of his conduct in respect of the Second Lease, having regard to the nature of the conflict involved in the transaction and the serious consequences for PPI of a letting of the premises at below market value, had that liability otherwise been established.

265. As I noted above, Mr Boros also seeks relief (Defence [64(d)] under s 1317S or s 1318 of the Act in respect of the deficiencies in PPI’s accounts. The extent of the deficiencies in PPI’s financial records and of his failure to address those matters are such that he cannot establish that he ought fairly to be excused for that contravention. Mr Boros also seeks relief under s 1317S or s 1318 of the Act in respect of any non-payment of rent and outgoings under the First Lease. I am not satisfied that Mr Boros ought fairly to be excused from that contravention, having regard to the relevant circumstances and applying the principles to which I referred above. Mr Boros also seeks relief under s 1317S or s 1318 of the Act in respect of the additional borrowing by PPI which was applied to reduce PEH’s borrowings. I again bear in mind the fact that Mr Boros had a material conflict of his duty owed to PPI and his interest in PEH in this transaction; the financial significance of this additional borrowing to PPI and the benefit that PEH obtained by it; and the fact that nothing prevented Mr Boros making fair disclosure of this transaction and his interest in it as a shareholder in PEH or seeking ratification of the transaction or at least informal consent to it from PPI’s shareholder. I am not satisfied that Mr Boros should be relieved from liability in respect of his conduct in respect of this borrowing. It has not been necessary to address several other areas in which Mr Boros seeks such relief.

266. I am therefore not satisfied that Mr Boros has established the basis for relief under s 1317S or s 1318 of the Act in respect of the relevant contraventions and breaches of fiduciary duties taken separately, still less that he has established the basis for relief when those contraventions and breaches of fiduciary duty are assessed as a whole.

Mr Boros’ other defences including his defence based on payments to Mrs Page and PPI

267. Mr Boros pleads (Defence [238]) a defence under s 85 of the Trustee Act 1925 (NSW) in answer to the claims made against him as an officer of PPI. He does not clearly identify the acts to which he claims that defence applies or the material facts on which he relies to establish it. The gravamen of that defence is that those unidentified acts amounted to a breach of trust by PPI for which it is or may be liable; PPI, through Mr Boros’ act or acts, acted honestly and reasonably, and ought fairly be excused for the breach of trust; the Court ought to relieve PPI wholly or partly from its personal liability for the breach pursuant to s 85 of the Trustee Act; and liability would not then be imposed on Boros. That defence cannot succeed, because no claim for breach of trust is made or established against PPI, as to which any relief is required; and, to the extent that I have found Mr Boros to have breached his duties, he did not act reasonably in that regard; and this defence also cannot succeed where Mr Boros’ claims for relief under ss 1317S and 1318 of the Corporations Act fail, for the reasons noted above.

268. By paragraphs 239-240 of his Defence, Mr Boros purportedly reserved an entitlement to rely on provisions of the Trust Deed for the Pages Family Discretionary Trust and PPI’s constitution. Mr Boros made no further submission in that respect and no basis for relief under any such provision is established.

269. I should also address a more substantial defence raised by Mr Boros, repeated throughout his Defence to the Fourth Further Amended Statement of Claim, referable to payments made by companies in the Pages Group to PPI and Mrs Page. This issue overlaps with PPI’s claim in respect of an accounting entry in respect of the loan of $4,436,879 recorded in Sales’ financial records which I have addressed above. In paragraph 66B of his Defence to the Fourth Further Amended Statement of Claim, Mr Boros now pleads, in answer to PPI’s claim in respect of the First Lease, that:

(a)   In the period from Mr Page’s death on 27 July 2003 until Mr Boros’ removal as director of PPI on 12 September 2016, being the combined period of Mrs Page’s directorship of PPI and Mr Boros’ directorship of PPI, there was a financial arrangement in place between PPI and PEH to the effect that PEH would make payments to or on behalf of PPI to ensure that (among other things) PPI met all of its financial obligations, including loan repayments to the ANZ Bank;

(b)   Pursuant to the foregoing financial arrangement, PPI received from PEH, in addition to the payment of rent and operating costs, in the period from 1 January 2006 to 31 December 2016, further amounts total[ing] $1,358,366 (“Further PPI Payments”);

(c)   In the premises, PEH is entitled to rely on and/or set off the Further PPI Payments against any deficiency or shortfall of its obligations under the First Lease (which is denied).

270. Mr Boros also relies on this aspect of the defence in paragraph 47 of his Defence, in respect of the claim in respect of the Second Lease; and in paragraph 140 of his Defence, in respect of a loan by Sales to PPI recorded in the financial statement for Sales for the year ended 30 June 2016 in the amount of $4,436,879.

271. Mr Boros also now pleads an overlapping defence in paragraph 241 of his Defence, that:

“Further and in the alternative, in answer to each and all claims for pecuniary payment made by PPI, [Mr Boros] say[s] that:

a.    From time to time, the first defendants made payments to or for the benefit of Tess Page;

b.    Further and in the alternative, at all material times, when the payments were made to her, Tess Page was the sole shareholder of PPI;

c.    Further and in the alternative, at all material times, when the payments were made to her, Tess Page was a beneficiary of the Pages Family Discretionary Trust;

d.   The payments referred to in subparagraph (a) were made at the direction or request or benefit of PPI, or by Tess Page as a claimed entitlement as shareholder or beneficiary;

e.    Further and in the alternative, PPI was indebted to the defendants in respect of the payments referred to in subparagraph (a);

f.   Further and in the alternative:

1. PPI and the first defendants adopted a common understanding or convention that the defendants would make payments to Tess Page and PPI would be indebted to the defendants in respect of the same;

2. The first defendant relied on the said convention when they made each of the payments from time to time to or for the benefit of Tess Page;

[iii].    Such reliance would be to their detriment in the event that PPI is permitted to depart from the said convention; and

[iv].    In the circumstances, it would be unconscionable for PPI to depart from, and it is accordingly estopped from departing from, the said convention;

g.   Further and in the alternative, in respect of any claim for equitable relief, in order to do equity between the parties, PPI must account for the benefit received by it and Tess Page from PEH and the other companies within the Pages corporate group; and

h.   In the premises, to the extent to which [Mr Boros] has any liability to PPI (which is denied), [Mr Boros] is entitled to a set off against such liability an amount equal to the payments that they have made to or for the benefit of Tess Page or PPI (including the Tess Payments and the Further PPI Payments), together with interest.

272. Mr Boros addressed these matters in his first affidavit dated 30 January 2018 and referred to PPI Payments and Tess Payments totalling $2,496,140, made up of $1,358,366 in PPI Payments listed in a spreadsheet, $349,774 in payments into Mrs Page’s bank accounts for living expenses and home loan repayments in the period 2011 to 2016, and a further estimated amount of $788,000 in weekly payments of $2000 to Mrs Page between 2003 and 2011. Mr Boros there led evidence (admitted with a limiting order under s 136 of the Evidence Act as submission only) that Phire and Sales on behalf of PEH paid further amounts “by way of loan” to PPI. He exhibited a spreadsheet setting out those payments to his affidavit, which he said was based upon copies of bank statements. That spreadsheet was not admissible as a business record and was admitted with a limiting order under s 136 of the Evidence Act as submission only, and his evidence as to its truth was also admitted with a limiting order as to his understanding only. Mr Boros also referred (Boros 30.1.18 [50]) to bank statements produced by ANZ for an account of Mrs Page, which recorded weekly deposits of $1,000 from Phire and subsequently from PPI to Mrs Page, and he also referred to documents produced by St George recording payments to Mrs Page, and Mr Boros tendered bank statements recording payments to Mrs Page as part of Exhibit J1. Mr Boros also referred to additional payments made to Mrs Page, in evidence again admitted with a limiting order under s 136 of the Evidence Act as his understanding only and not proof of the fact, which he contended exceeded any underpayment of rent. There appears to be no contest that payments were made to Mrs Page.

273. Mr Boros again referred to “Top-Up Payments”(as defined) and “Direct Tess Payments” (as defined) in his affidavit dated 17 April 2020 ([173ff]), and referred to a folder of documents relating to those payments, and (as I noted above) bank statements recording payments to Mrs Page were tendered as part of Ex J1, and Mr Boros again referred to the summary of the amounts which he claimed were paid for and on behalf of PPI by Sales, PEH and Phire, totalling $4,430,879.65 (admitted with a limiting order under s 136 of the Evidence Act as submission only, as I noted above). Mr Boros’ evidence was that a discussion took place with Mrs Page, in about 2009 or 2010, as to whether these payments would be dividends or a loan; that Mrs Page then said she did not have the capacity to pay taxes on the money and asked whether the tax could be deferred; and that “we instead allowed them to bank up as loan”. I do not accept Mr Boros’ evidence as to these matters, having regard to the findings which I have reached as to his credit, and it does not support a treatment of those amounts as a loan by any of the companies to PPI. As Mr White points out, such a conversation would in any event not have affected earlier payments.

274. Mr Boros was cross-examined as to the fact that PPI’s financial statements did not record liabilities to Phire or PEH in 2011 or 2013, and maintained in cross-examination that the payments made to PPI and Mrs Page were not appropriately allocated by the Pages Group’s accounts department, which were recorded in bank statements of the companies (T244). Mr Boros’ evidence in cross-examination was that this issue first arose in a meeting with PPI’s solicitors, where Mr Boros was explaining the benefits that Mrs Page and PPI were receiving; he then asked the accounts office to start identifying the “loans” and then “discovered the problems or the payments” (T245). Mr Boros’ evidence in cross-examination was also that the “loans” to PPI and Mrs Page which have been made since 2003 were not recorded in financial records for earlier years because they had not “crystallised” (T253). I do not accept that contention and, had the loans existed in earlier years, their nature was such that they would have had to be recorded in the companies’ financial records. Mr Boros was also cross-examined as to the different figures attributed to the payments made to Mrs Page at different times (T318ff).

275. In closing submissions, Mr White summarises the history of this defence. In a letter dated 30 September 2016 (Ex J1, 6571), after PPI had sought books and records from Mr Boros, the Defendants’ solicitors at the time identified a claim that “exceeds a million dollars” in this regard. The defence reflecting that claim was pleaded in December 2019, when the Defendants (including Mr Boros) responded to PPI’s claim against PEH and Mr Boros for unpaid rent and outgoings under the First Lease by raising a ‘set-off’ for payments allegedly made by PEH to PPI or for its benefit to ANZ totalling $1,358,366, pursuant to an alleged “financial arrangement” (defined as the “PPI Payments”), and also contended that Phire (then known as Pages Hire Centre) had made payments to or on behalf of PPI for its expenses relating to the Punchbowl property and the living expenses of Mrs Page, which were claimed as a ‘set-off’ against PPI’s claim against PEH and Mr Boros for the increase in the ANZ debt in March 2016 (“Tess Payments”). The Defendants also then pleaded that the $4,436,879 loan to PPI recorded in Sales’ financial statements for 2016 reflected the PPI Payments and the Tess Payments, and that the subsequent entry in PEH’s financial statements for 2017 of a loan to PPI of $2,731,879 was PEH’s share of the loan $4,436,879, less the amount of $1,658,931 that Mr Boros had caused PPI to borrow from ANZ in March 2016 as applied to pay out PEH’s debt to ANZ as noted above.

276. In closing submissions, Mr White also pointed to substantial difficulties with the accounting entries supporting the figure of $4,436,879 recorded in Sales’ ‘Goodwill’ ledger, as derived from matters which do not appear to have any connection with payments to PPI and Mrs Page, namely a netting off of Phire’s debtors and creditors of approximately $1.4 million; the $320,000 payment made by Sales on behalf of Mr Boros as a contribution under the Phire DOCA in September 2015; the three loans totalling $2,212,459 owed by related companies to PEH which were written off in its ledgers as at 31 December 2015 and transferred to Sales; and an amount of $2,183,777 from a ‘Capital Reserve’ ledger (to which I have referred above), which was transferred to the ‘Rent in Advance’ ledger (to which I also referred above) and then PPI’s loan ledger on 30 November 2016, the day after these proceedings were commenced (Ex J1, 7296-7300; T336-353). Mr Boros claims that these figures were approved by Mr Gulwadi, the external accountant for the Pages Group, or by Romanis Cant, which both provided accounting advice to the Pages Group and acted as voluntary administrators of Phire. That claim was not supported by contemporaneous documents and, as I noted above, Mr Boros did not lead evidence from Mr Gulwadi or Mr Cant.

277. I am not persuaded that the payments relied on for this claim had the character of a loan to Mrs Page as Mr Boros contends, or that Mrs Page or PPI were under any obligation to repay those payments, which could be set off against any liability of PEH or any consequential liability of Mr Boros. As I noted above, I was not satisfied in PPI’s case that this amount, or at least some part of it, was not a liability of PPI, because significant funds were paid by PEH and Sales to Mrs Page, and the evidence does not establish whether those funds were paid as dividends, or an advance on dividends, or shareholder loans or, as may be most likely, without any adequate consideration of the nature of the payments. I am equally not satisfied in Mr Boros’ case that this amount, or any part of it, is a liability of PPI for the same reasons. The deficiencies in the evidence, the adverse findings I have made as to Mr Boros’ credit, Mr Page’s lack of knowledge of the companies’ affairs and the lack of accurate financial records in respect of the companies means that it is now not possible to reach a finding as to the true position as to these payments.

278. Returning to Mr Boros’ pleaded defence, I will assume, without deciding, that the matters pleaded in paragraphs 241(a)-(c) are established; the matter pleaded in paragraph (d) is not established as a matter of fact; and those paragraphs do not establish a defence unless they establish any basis to impugn PPI’s right to recover loss which is otherwise recoverable against Mr Boros. The matter pleaded in paragraph (e) could potentially establish a defence by way of set-off, but is not established. The common understanding or convention pleaded in subparagraph 241(f)(i) is not established and the balance of that paragraph does not arise. The basis for any obligation to account as pleaded in paragraph 240(g) is not established, since there is nothing inequitable in PPI or Mrs Page receiving benefits from PEH, which are not shown to be in the nature of a loan, and also receiving compensation for breach of duty by Mr Boros owed to PPI. The claim for set-off pleaded in paragraph 240(h) is not established because its basis is not established.

Costs and orders

279. I am therefore satisfied that PPI has established aspects of its case against Mr Boros, and that PEH, Sales, Phire and Austructures should each be wound up by the Court.

280. PPI sought an order for costs and interest on costs under s 101(4) of the Civil Procedure Act 2005 (NSW) from the date that the costs concerned were paid by it. PPI has been successful in part and there should at least be an order that Mr Boros pay a portion of its costs of the proceedings. My preliminary view is that Mr Boros should not be ordered to pay all of PPI’s costs of the proceedings, where PPI has pursued several claims that were not likely to succeed as a matter of law; several claims that could recover no more than, at best, Ms Bateman’s costs which were likely to be recoverable as costs of the proceedings in any event; and other claims for which it concedes it could establish no loss. It seems to me that the case would have been significantly shorter had PPI exercised greater rigour in determining which claims should have been pursued. I will hear the parties in that regard.

281. Accordingly, I make the following orders:

1   Mr Peter Gothard and Ms Robyn Duggan of KPMG be appointed liquidators jointly and severally of Pages Equipment Holdings Pty Ltd (in prov liq); Pages Sales Pty Ltd (in prov liq); Phire Pty Ltd (in prov liq) and Pages Austructures Pty Ltd.

2   The parties otherwise bring in agreed short minutes of order to give effect to this judgment, including as to costs, within 14 days or, if there is no agreement between them, their respective draft minutes of order and short submissions as to the differences between them.

3   These orders be entered forthwith.

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Decision last updated: 21 September 2020