Pedro-X Pty Ltd v SHRL Ventures Pty Ltd - [2025] QSC 268

SUPREME COURT OF QUEENSLAND
CITATION: Pedro-X Pty Ltd v SHRL Ventures Pty Ltd [2025] QSC 268 PARTIES: PEDRO-X PTY LTD ACN 622 852 180
(plaintiff)
v
SHRL VENTURES PTY LTD ACN 655 980 233
(defendant)

FILE NO/S:               3390/23
DIVISION:               Trial Division
PROCEEDING:        Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:     20 October 2025
DELIVERED AT:     Brisbane
HEARING DATE:    14, 15, 16, 17, 18, 21, 22, 23 July and 8 August 2025
JUDGE:  Smith J
ORDER:                   1. I declare that the defendant breached the Joint Venture

Agreement.

2.   I declare the agreement dated 18 August 2022 is void.
3. Alternatively to 2 pursuant to section 237 of the Australian Consumer Law I set aside the agreement dated 18 August 2022.
4. I find the defendant engaged in unconscionable conduct contrary to section 20 of the Australian Consumer Law.
5.   I assess the plaintiff’s damages arising from the breaches of contract or for breaches of the Australian Consumer Law to be $556,419.60.
6. I find that the defendant engaged in oppressive conduct within the meaning of that term contained in section 233 of the Corporations Act 2001 (Qld).
7.   I will hear the parties on further orders to be made in light of my findings.
8.   I will hear the parties on the question of costs.
CATCHWORDS: CONTRACT – where the parties entered into a Joint Venture Agreement to operate a franchise – whether directors of the defendant breached express or implied terms of the agreement to act in good faith – whether an agreement by the plaintiff to sell its shares to the defendant was a product of duress –

whether agreement breached and the defendant should have specific performance
CONTRACT – unconscionability – whether the conduct of the directors of the defendant was unconscionable – whether damages should be awarded
COMPANY LAW – whether conduct of the defendant’s directors was such as there was oppression – whether winding up order should be made
DAMAGES – whether the amounts received by the directors of the defendant were wages or a distribution of profits of the business - what was the appropriate discount rate to be applied for present value of money and contingencies
UNFAIR DEALING – where bullying behaviour by one director towards another amounted to unconscionable conduct – where threats made by another also amounted to unconscionable conduct – where one director was locked out of a business
Australian Consumer Law ss 20, 236, 237
Corporations Act 2001 (Qld) ss 46, 233
ANZ Banking Group Ltd v Karam [2005] NSWCA 344; (2005) 64 NSWLR 149, applied
Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502, cited
Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR
137, cited
Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17;
(2024) 98 ALJR 719, applied
Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd [2017] FCAFC 75; (2017) 251 FCR 404, distinguished
Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447, applied
Commonwealth v Amman Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64, considered
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, considered
Electricity Generation Corp v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640, cited
Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3; (1986) 160 CLR 1, applied
Henville v Walker [2001] HCA 52; (2001) 206 CLR 459, cited
Hogg v Dymock (1993) 11 ACSR 14, cited
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, applied
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298,
considered
Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250
CLR 392, cited

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd
[2007] HCA 61; (2007) 233 CLR 115, applied
Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd [1938] HCA 66; (1938) 61 CLR 286, applied
Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494, applied
Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353, applied
Meehan v Jones [1982] HCA 52; (1982) 149 CLR 571, cited Nurisvan Investment Ltd v Anyoption Holdings Limited [2017] VSCA 141, cited
Official Trustee in Bankruptcy v Tooheys Ltd (1993) 29 NSWLR 641, cited
Optus Networks Pty Ltd v Telstra Corporation Pty Ltd [2001] FCA 1798, cited
Paciocco v ANZ Banking Group Ltd [2015] FCAFC 50; (2015) 236 FLR 199, cited
Pollitt v R [1992] HCA 35; (1992) 174 CLR 558, applied Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd [1989] HCA 6; (1989) 167 CLR 177, cited
Re Back 2 Bay Pty Ltd (1994) 12 ASCR 614, cited
Re Treadtel International Pty Ltd (No 2) [2016] NSWSC 791, applied
Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234, applied
Stubbings v Jams 2 Pty Ltd [2022] HCA 6; (2022) 276 CLR 1, applied
Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85,
applied
United Group Rail Services Ltd v Rail Corporation (NSW)
[2009] NSWCA 177; (2009) 74 NSWLR 618, applied
Universe Tankships Inc of Monrovia v Transport Workers Federation & ors [1983] 1 AC 366, applied
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514, applied
Wayde v NSW Rugby League Ltd [1985] HCA 68; (1985) 180
CLR 459, applied COUNSEL: Mr N. Shaw for the plaintiff

SOLICITORS: Rose Litigation Lawyers for the plaintiff
Self-represented defendant

INTRODUCTION.......................................................................................................... 5
PLEADINGS.................................................................................................................. 5
(a) Statement of claim................................................................................................... 5
(b) Defence................................................................................................................... 8
SUBMISSIONS.............................................................................................................. 8
(a) Plaintiff.................................................................................................................... 9
(b) Defence................................................................................................................. 14
PLAINTIFF’S CASE................................................................................................... 19
(a) Mr Augustine........................................................................................................ 19
(b) Ms Augustine........................................................................................................ 37
DEFENCE CASE........................................................................................................ 41
(a) Mr Singh............................................................................................................... 41
(b) Mr Grewal............................................................................................................. 58
(c) Ms Grewal............................................................................................................. 67
(d) Ms Garratt............................................................................................................. 71
FACTUAL FINDINGS................................................................................................ 75
SUMMARY OF FINDINGS....................................................................................... 82
BREACH OF CONTRACT......................................................................................... 88
AUGUST CONTRACT............................................................................................... 92
DURESS...................................................................................................................... 93
UNCONSCIONABLE CONDUCT............................................................................. 93
OPPRESSION.............................................................................................................. 95
QUANTUM................................................................................................................. 97
Mr Lytras.................................................................................................................... 97
Mr Otto..................................................................................................................... 101
CONCLUSION.......................................................................................................... 104
ORDERS.................................................................................................................... 105

INTRODUCTION

This is an action by the plaintiff against the defendant for various orders relating to a Joint Venture Agreement (JVA) which has soured.
The parties entered into this agreement to operate a Pack and Send (P & S) franchise store in Tweed Heads from July 2022. By August 2022 Mr Augustine of the plaintiff and Mr Grewal of the defendant could no longer work together.
On 18 August 2022, Mr Singh of the defendant and Mr Augustine met and an agreement was reached whereby the plaintiff agreed to sell its shares to the defendant.
The plaintiff alleges this agreement was the product of duress but the defendant denies this. The plaintiff alleges he has been unlawfully locked out of the business but this is denied as the defendant says he resigned. The plaintiff claims damages for breach of contract or unconscionable conduct and other ancillary orders due to oppression.
For the reasons which I follow I have decided that on the balance of probabilities I accept the evidence lead by the plaintiff and prefer it to the evidence lead by the defendant.
I have found that the defendant by its agent Mr Grewal engaged in conduct which breached the JVA by engaging in bullying type conduct and in failing to work at Tweed Heads as agreed.
I find that an oral agreement between the plaintiff on 18 August 2022 to sell its shares to the defendant was product of duress by Mr Singh and should be set aside.
I also find that thereafter the plaintiff was shut out of the business and the profits of the business were retained by the defendant.
I also find that all of the conduct alleged above amounts to unconscionable conduct and oppression.
I have assessed damages for breach of contract or for unconscionable conduct in the amount of $556,419.60.

PLEADINGS

Statement of claim

In the statement of claim the plaintiff alleges that it held 50 of 100 shares in Tweed Heads Logistics Pty Ltd (TLPL). It is alleged that the defendant owned the remaining 50 shares. The defendant also owned and operated a P & S business at Mermaid Beach and Beenleigh.
Mr Gus Augustine is a director and shareholder of the plaintiff and a director of TLPL. Mr Havin Grewal and Mr Sarbjit Singh are directors of the defendant and shareholders of the defendant.
In January 2018, the plaintiff entered into an agreement with P & S systems to operate a Toowong franchise for a term of 10 years.

On or about 29 May 2022 the plaintiff and the defendant entered into a JVA for the purpose of their investing in and developing a P & S franchise outlet at Tweed Heads. The JVA provided that the business would be operated through TLPL and each of the parties would hold 50 per cent of shares in that company. The parties agreed they would each actively participate in the business of TLPL and would conduct the business in a diligent manner. Both parties agreed also to use their best endeavours to promote the interests of the business.
By clause 22 of the JVA it was agreed that if either committed or suffered a material breach of its obligations under the agreement the other party would be entitled to require the defaulting party to sell all of its shares held by it and the defaulting party was then to deliver a duly executed transfer of its shares in favour of the other party upon full payment of the price of its shares being such sum as would be agreed to or such sum as the auditors of TLPL certified to be a fair value.
It was agreed by clause 23.2 that the agreement would operate in good faith and with fairness.
On or about 1 July 2022 TLPL settled an agreement with Vune Pty Ltd for the purchase of it of the P & S business at Tweed Heads.
The plaintiff paid $25,000 to TLPL on 9 and 11 June 2022 and $137,500 to Vune Pty Ltd between 1 and 8 July 2022 towards the purchase of the business.
On or about 1 July 2022 TLPL entered into a franchise agreement for it to operate a business using the intellectual property and systems of P & S systems at the premises for a period of 10 years with a right to renew in 2032.
The plaintiff alleges that the terms of the franchise agreement included that TLPL, Mr Augustine and Mr Grewal would continuously exert their best efforts to promote the business; actively and diligently promote and develop the business; exercise their best endeavours in the conduct of the business and give prompt, courteous and efficient advice to their customers.
The plaintiff further alleges that implied terms of the joint venture included that the plaintiff and the defendant would:
(a)Conscientiously exert their best endeavours in the conduct of the business.
(b)Apply their skills to the management of the business.
(c)Assist each other in the conduct in the management of the business.
(d)Cooperate and do things necessary to enable the other party to have the benefit of the agreement.
(e)Act in good faith towards each other.
The plaintiff alleges between 4 July 2022 and 18 August 2022 the defendant failed to:
(a)Ensure the business of TLPL was conducted in accordance with sound and good business practice and the highest ethical standards.

(b)Act in good faith. It is alleged that Mr Grewal repeatedly belittled Mr Augustine and disparaged him to the employees of TLPL.

It is alleged that the conduct of the defendant was in breach of the obligations of the defendant. It is further alleged between 4 July 2022 and 18 August 2022 the defendant failed to actively participate in the business and this was a breach of the obligations pleaded.
On 18 August 2022, the plaintiff and the defendant entered into an agreement whereby the plaintiff would sell its shares in TLPL to the defendant in return for
$165,000 (the August agreement). It is alleged that the August agreement was the product of a threat and demand to the plaintiff by the defendant and as a result was voidable and the plaintiff elected to treat it as unenforceable. Further it is alleged the defendant has not paid any monies to the plaintiff and as a result repudiated the agreement which has been accepted or the August agreement has been abandoned.
Alternatively, it is pleaded that the conduct of the defendant in making threats concerning the August agreement was unconscionable under s 20 of the Australian Consumer Law (ACL) and in the premises the plaintiff is entitled to orders that the agreement is void.
It is alleged that since 18 August 2022 the defendant has:
(a)Excluded the plaintiff from the management of the business;
(b)Operated the business for itself;
(c)Managed and operated TLPL for itself;
(d)Refused to cause TLPL to make any payment to Mr Augustine;
(e)Refused to cause TLPL to make any payment to the plaintiff and instead has made payments to itself and Mr Grewal.
Further the defendant threatens to continue these matters. As a result of the breaches of various obligations pleaded, the defendant has repudiated the JVA and it is terminated.
It is said that in consequence of the breach and repudiation of the JVA the plaintiff has lost the benefit of it. It is said that under the 10-year life of the franchise agreement the loss is somewhere between $500,000 and $1,300,000.
It is further pleaded that the plaintiff is entitled to damages for breach of contract and the amount of $162,500.
Further or alternatively the conduct of the defendant was unconscionable and as a result of this the plaintiff has suffered loss and damage as pleaded and further it is entitled to the appointment of a receiver.
It is further alleged the conduct of the defendant is oppressive and in the premises an order should be made under s 233 of the Corporations Act 2001 (Cth) (Corporations Act) for the purchase by the defendant of the plaintiff’s shares in TLPL.

Further or alternatively TLPL should be wound up under s 46(1)(k) of the
Corporations Act 2001.

Defence

The defendant denies there was an implied term of the joint venture that if they could not cooperate with each other one party would sell all of its shares to the other party at a fair value. This is because the JVA provided for all of the terms agreed to.
The defendant also denies that the plaintiff and the defendant agreed that TLPL would pay Mr Augustine and Mr Grewal the sum of $1,500 per week plus superannuation.
The defendant also denies that matters pleaded in paragraphs 19 and 20 of the statement of claim.
The defendant alleges that issues arose between Mr Augustine and the owner of Vune Pty Ltd in that the owner was required under the terms of the franchise agreement to oversee and undertake a seamless handover to TLPL and was required to be present at the business for two weeks without remuneration. Mr Augustine informed the previous owner she did not know how to run the business and terminated the handover process without discussing the matter with either Mr Grewal and the defendant and thereby breached the franchise agreement. Mr Augustine refused to consider any suggestions made by Mr Grewal and Mr Singh. He continually boasted he had several years’ experience in the business as opposed to them and instructed the staff that all decisions had to be approved by him. Mr Augustine sought to manage TLPL to the exclusion of Mr Grewal and the defendant. Mr Grewal did not belittle Mr Augustine. The defendant also denies that any conduct by it breached the obligations of the defendant. It is alleged that Mr Augustine was employed by TLPL and yet was often away from the business premises attending to his other business namely the Toowong franchise. Mr Grewal was and is currently employed by TLPL on a full-time basis.
It is submitted that there was an agreement on 18 August 2022 whereby the plaintiff sold its shares in TLPL to the defendant for $162,250. The defendant denies that the agreement was a product of the threat and demand to the plaintiff.
It is alleged Mr Augustine removed himself from the business group and logged out of the TLPL email account. The company’s secretary prepared the necessary documents to transfer the plaintiffs shares to the defendant. They met on 27 August 2022 at a sports club. The partner of Mr Augustine would not agree to his executing the documents and became abusive and as a result Mr Singh and Mr Grewal left the meeting. The plaintiff repudiated the August agreement. This has not been accepted by the defendant. The defendant denies there was any unconscionable conduct, and the defendant is bound to pay the $162,250 in exchange for the transfer of shares.
Because of this agreement the plaintiff is no longer entitled to manage and operate the business or receive further payments from it. Therefore, the plaintiff has suffered no loss.

SUBMISSIONS

Plaintiff’s submissions

The plaintiff generally submits that the evidence of the plaintiff’s witnesses was more reliable than those called by the defendant, who were wholly unreliable and, at times, dishonest. It is submitted that the evidence of the defendant’s witnesses should be treated with extreme caution, except where it is corroborated by uncontroversial facts or reliable documentary evidence.
It is submitted the defence witnesses collaborated on their evidence; gave improbable and inconsistent explanations; and sought to establish the defendant’s case in the witness box rather than truthfully answering questions. They were inconsistent with each other and in their own evidence.

The plaintiff’s evidence, on the other hand, was consistent, clear and believable and supported by the evidence.

Bullying allegation

The plaintiff has established that during a period of about six weeks from 2 July 2022, the defendant, through the actions of Mr Grewal, repeatedly bullied, harassed, belittled and failed to work constructively with the plaintiff. During the same period, Mr Grewal did not fulfil the defendant’s agreement to work full time in the business, and instead devoted a large proportion of his time to other activities, particularly the Mermaid Beach store.
It is submitted that the bullying conduct led by Mr Augustine should be accepted and the evidence of Mr Grewal would be rejected. It is submitted that Mr Grewal’s demeanour was one of being angry and aggressive when talking about the consignment notes as to the delivery boxes.
The bullying conduct was in breach of multiple stipulations of the JVA, namely:
(a)clause 10.4;
(b)clause 18.1;
(c)clause 23.2; and
(d)the implied obligation of cooperation and good faith.
The bullying conduct falls well short of the standards imposed by the JVA. It is submitted that good faith and cooperation duties require a party to a contract to act honestly and with fidelity to the bargain and to refrain from undermining the bargain, and to have regard to the interests of the other party in their benefit of the bargain.¹

Lack of diligence

It is submitted that the diligence conduct allegation is also established on the evidence. Mr Grewal’s own timeline demonstrated that he was in attendance at the Tweed Heads store substantially less than required by his full-time employment contract.

Paciocco v ANZ Banking Group Limited [2015] FCAFC 50; (2015) 236 FCR 199 at [288]; Optus Networks Pty Ltd v Telstra Corp Pty Ltd [2001] FCA 1798 at [104].

It is submitted that the failure to call Ms Maitala is such that a Jones v Dunkel
direction should be given.²
The diligence conduct contravened the following clauses of the JVA:
(a)clause 10.4;
(b)clause 17.2;
(c)clause 17.3; and
(d)the implied obligation of good faith.
The commercial context and background of the parties is of importance in construing these provisions.³ The context included the verbal agreement between the parties that Mr Grewal and Mr Augustine would work full-time on the business.
Mr Grewal’s failure to observe these terms amounts to a breach of the JVA.

August agreement

With respect to the August agreement, it was never a binding contract as:
(a)Mr Singh had no individual authority to do enter into the agreement;⁴
(b)essential terms of the bargain had not been agreed upon. As such, the agreement lacked intention, certainty and formality;⁵
On the issue of duress, it is submitted that Mr Augustine’s version of events with respect to 18 August 2022 should be accepted. It would be found that Mr Singh told him that if he did not agree to sell the plaintiff’s shares in Tweed Logistics that he would:
(a)find whatever he could to damage Mr Augustine and the plaintiff’s reputation with the franchisor; and
(b)destroy Mr Augustine’s reputation.
It is submitted that Mr Singh had a tendency to engage this type of conduct which was reflected in the evidence. Coercive or extortive threats of this nature can amount to a form of duress sufficient to vitiate a contract.⁶
It was clear that Mr Augustine did not want to sell his shares. He only indicated his assent to do so as a result of the illegitimate coercive pressure applied by Mr Singh, who used his superior position to overbear his will. The contract, if it existed, was voidable at the plaintiff’s election.

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
Electricity Generation Corp v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 at [35].
Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd [2017] FCAFC 75; (2017) 251 FCR 404 at [149]-[151].
Nurisvan Investment Ltd v Anyoption Holdings Limited [2017] VSCA 141 at [56]-[64].
Universe Tankships Inc of Monrovia v International Transport Workers’ Federation & Ors [1983] 1 AC 366 at p 400.

Unconscionability

The plaintiff relies on the same conduct to contend the August agreement should be set aside as unconscionable. Mr Singh took advantage of Mr Augustine’s reliance on his legal and commercial experience to extract assent to the sale of the shares. The buyout provisions of the JVA were drafted by Mr Singh and were clearly at the forefront of his mind during the meetings. There was an unequal bargaining position.

Oppression

It is convenient to deal with oppression, unconscionable conduct and winding up generally. It is submitted that:
(a)there was a failure by the defendant to observe the agreed approach to joint management of the Tweed Heads enterprise;
(b)upon the plaintiff raising concerns, the defendant sought to enforce a buyout, which did not proceed;
(c)when the sale share did not proceed, and even before that time, the defendant took over the business for himself without consultation or agreement with the plaintiff; and
(d)even during the period of exclusion, Mr Singh and Mr Grewal still considered Mr Augustine to be bound by his duties and obligations as a director.
This conduct amounts to classic shareholder oppression. The defendant took over the business and operated it for its own benefit to the exclusion of the plaintiff. This was unfair, and the type of unfairness s 233 of the Corporations Act was designed to address.
Similarly, the defendants’ conduct as a whole was unconscionable within the meaning of s 24 of the ACL. The winding up remedy is maintained only as a remedy of last resort.

Remedies

The plaintiff submits that in the event any remedy is to be granted by the Court, it would be appropriate to allow the parties to consider the Court’s decision before making submissions as to the appropriate remedy. There is a broad discretion to:
(a)compensate the plaintiff with an award of damages which may appropriately be assessed on a lost profits basis, or on some other basis;
(b)order a compulsory purchase or sale of the shares;
(c)set aside the August agreement or declare it void; and/or
(d)enforce the August agreement with orders for specific performance.

Damages

With respect to the award of damages, the plaintiff submits the Court is in a position to make factual findings on this. The payments made to Mr Singh and Mr Grewal were in the nature of equity distributions. The wages paid were entirely surplus. The

“wage” amounts increased after Mr Augustine was excluded, yet the turnover remained the same and the evidence demonstrated that they did not work full-time in the business. Mr Grewal was effectively managing four stores, and was even working for Beenleigh at the time.

The submissions otherwise refer in detail to the evidence, and I have regard to those submissions.

Oral submissions

Mr Shaw submitted that I should make the following orders:
(a)Declare the August agreement to be void or alternatively set it aside pursuant to the ACL.
(b)Declare there were breaches of contract because of the alleged bullying and lack of diligence.
(c)Assess the damages.
(d)Find there was oppression and seek further submissions from the parties as to the appropriate orders to be made.
With respect to the bullying allegation, I would accept the evidence of Mr Augustine as to what happened between 2 July 2022 and 18 August 2022. Mr Augustine was clear and specific in his affidavit (paragraph 121). It was clear that Mr Grewal wanted to get out the consignment evidence and it showed how worked up he was about Mr Augustine’s conduct. It was submitted that Ms Garratt was unreliable and gave inconsistent evidence. The court should also find there was a collaborative process by the defendant’s witnesses in the preparation of their affidavits.
With respect to the letter written by Mr Augustine to the Franchisor on 29 August 2022 this provides evidence of consistency of allegation.
I would find that Lakvin and Mr Grewal copy and pasted paragraphs of their affidavits and I would find that Mr Singh drafted them.
With respect to the allegation by Ms Garratt that there was a conversation with Mr Augustine about taking over the business on 17 August 2022 this was never in her affidavit or statutory declaration. She deliberately volunteered this to bolster the defendant’s case and highlights her unreliability. It was also never put to Mr Augustine.
It is submitted that the bullying allegations amount to a breach of clauses 10.4; 18.1;
23.1 of the JVA and the implied term.
As regards the diligence allegation the plaintiff relies on paragraph 10.4 of the JVA which brings in standards imposed by the Franchisor.⁷ Mr Grewal provided a schedule prepared from the Google timeline events.⁸ The employment contract⁹ showed that Mr Grewal was to work 40 hour per week in business. The hours referred

See Franchise agreement clause 6.4; Exhibit 1 page 238.
See MFI E.
Exhibit 24 page 332.

to in MFI E would lead to the conclusion that Mr Grewal regularly came in later than the opening times. This is consistent with Mr Augustine’s allegation in paragraph 114 of Exhibit 1 that for the first two weeks Mr Grewal was hardly present, and it declined after that.

With respect to the allegation by Mr Grewal that there was an agreement on 2 July 2022 that they each work half days this was never put to Mr Augustine in cross examination, and Mr Augustine gave evidence to the contrary. The conclusion one should draw from Exhibit MFI E is that Mr Grewal was not working full time at Tweed Heads. Also Mr Grewal alleged that he did not work at Mermaid Beach but the fact is he did.¹⁰ Ms Garratt admitted that he worked for Beenleigh and ultimately Mr Grewal admitted you have to be at the store to do the job.¹¹
The fact is his salary was all paid through Tweed Heads even though Mr Grewal was working at Beenleigh, Mermaid Beach and Southport. Mr Grewal in fact is the face of the Beenleigh store. The court would conclude there was a breach of the diligence clauses to the detriment of the plaintiff.
As regards the meeting on 18 August 2018 Mr Augustine came there to resolve the issues. It is noteworthy that Mr Singh did not speak to Mr Grewal before making any offer. He offered to buy the shares and talked about the deadlock situation. He rejected the split shift option out of hand. I would take into account that Mr Singh was a lawyer who had prepared the documents, his conduct was unconscionable and oppressive that evening.
The catalyst for the action for oppression was the conduct on 18 August. It is further alleged all of the conduct from 2 July 2022 was unconscionable.
As regards the oppression action it would be found that there was a deliberate decision to shut Mr Augustine out of the GMX.¹² I would not accept the defence evidence. It is noteworthy that on 28 August 2022 the defendant wrote to the franchisor¹³ advising the Franchisor that Pedro-x had been terminated and SHRL has assumed full control of the store to the exclusion of Pedro-x and that SHRL would be the sole proprietor.
With respect to the damages question it was accepted there should be some discounting for contingencies, but this should be in the range of 3 to 6 per cent. It should be accepted the business has survived, has a reasonable turnover and a wage has been paid. Further with respect to the oppression action there has been a denial of access to the books and records. It would also be accepted that the March decision to close the business was a deliberate decision to defeat the claim in this proceeding and is part of the oppression. It was submitted that even if the agreement in August stood the oppression action can still be argued.
With regard to the defence submissions concerning Mr Lytras the fact is the business plan relied on was simply a plan. The fact is the expert had the actual numbers and Mr Lytras saw all of the documents that Mr Otto had which led to the joint report. The experts came to the same conclusions and identified the two live issues.

Transcript day 5 page 74.
Transcript day 5 page 88.
On the evidence, this was an accounting/management system.
Exhibit 5 page 141.

With regard to the allegation of estoppel this was not pleaded and should not be relied on.

Defence submissions

Diligence point

It is submitted that a central issue is that Mr Grewal is alleged to have failed to meet the required hours set out in the employment agreement. It is submitted that the plaintiff has overlooked the fact that significant work can be done without being on site. Further the plaintiff did not contest the nature of the work completed by Mr Grewal being away from the premises or being done remotely. The defendant’s claims about Mr Grewal working away from the business have not been challenged or refuted.
It must also be noted that Mr Augustine was absent every Tuesday (eight hours weekly) and left early on other weekdays. He also worked below the required 40 hours. Mr Augustine admitted leaving at 2 or 3pm two to three times a week.¹⁴
It is submitted there was an agreement at Goonellabah on 2 July 2022 between Mr Augustine and Mr Grewal as to the working arrangements.
It is submitted that the plaintiff has demanded strict compliance from the defendant but did not hold itself to the same standard. There was no evidence tendered by the plaintiff of any failure of Mr Grewal to actively participate in the business and the timeline is accurate. Mr Augustine agreed that the allegation that Mr Grewal did not work more than three days a week is inaccurate. The timeline indicated he was at the business for 29 days for the period 1 July 2022 until 18 August 2022. Mr Grewal’s evidence was that there was an arrangement which enabled both Mr Grewal and Mr Augustine to attend their families and the other stores which allowed for flexibility. It is also noteworthy that Mr Augustine did not complain about noncompliance.

Allegation of bullying

With respect to the allegations of belittling and disparaging conduct by Mr Grewal it is submitted the plaintiff has failed to provide any cogent evidence in its case. The plaintiff relies solely on the oral evidence of Mr Augustine. He admitted there was no belittling or disparaging conduct in the presence of Ms Maitala. Hence the defence opted not to call her.
Ms Garratt in her cross-examination steadfastly maintained she did not hear Mr Grewal belittle or disparage Mr Augustine. She also said that on 17 August 2022 Mr Augustine told her that she would be working for only him now. Mr Grewal gave evidence that he denied the allegations made by Mr Augustine. There might have been heated discussion about the labelling but nothing disparaging. Ms Garratt said the working environment was cordial and friendly which was corroborated by messages in the chat group. The personal chat between Mr Augustine and Mr Grewal on 18 August 2022 (Exhibit 28) supports this contention.
I do not think this accurately reflects the evidence - see transcript day 2 page 41.

Management of the business

It is submitted that the plaintiff has not highlighted any short comings of the defendant in running the business and it must be acknowledged that Tweed Heads is better managed than Toowong. There is no issue of non-compliance of the terms, conditions and operating procedures of the franchisor.
The defendant has been actively involved in the business, it has improved and continues to do so. There is no evidence offered of an allegation that the business was not attended to in a timely and diligent manner.
The defendant deployed its staff prior to the commencement on 1 July 2022. The defendant has allowed the business to use its carrier accounts to consign shipments of the businesses. Utilities of the business have been set up using the name of the defendant and it is continuously deployed its staff to assist in various aspects of the business.
The defendant has not neglected or caused neglect the affairs of the business to unjustly enrich itself.

Expert evidence

It is submitted the plaintiff intentionally omitted relevant documents when providing material to the expert. Mr Lytras proceeded according to the assumptions provided and relied solely on the documents furnished pursuant to those instructions. He also agreed that his instructions did not allow for the owners to continue operations in the absence of a manger as he assumed a manger would be present from 30 September 2022 onwards. He agreed that if he received the updated information memorandum he would have incorporated this into his analysis. He was also not briefed on the business plan for Tweed Logistics and lacked data regarding operating costs. He recognised the plaintiff held a differing perspective on staffing confirming three fulltime staff members was a factual requirement which conflicted with his assumptions. He accepted that the presence of three staff would materially alter the situation. He agreed that a 22.5% profit margin figure was overstated due to the need for additional employees and therefore profits would be significantly reduced and could not be added back.
It is submitted the expert report should be found unreliable due to incorrect instructed assumptions; wilful and deliberate non-disclosure of material to the expert and concerns regarding the integrity and credibility of the plaintiff.
As to Mr Otto a discount rate falls within a typical range of 10 to 20 per cent. Contingencies and capital expenditures have not been accounted for Mr Lytras’ calculations. Wages paid to working owners should be reinstated. Profit margins should more rather be 6.4 per cent in accordance with the requirements of the business plans.

Duress and 18 August 2022 agreement

As regards the alleged duress on 18 August 2022 it must be noted that Mr Augustine holds an MBA in project management with 15 years of experience. He would have managed complex procurement negotiations. He had operated P & S Toowong for

six years and his allegation of being intimated by Mr Singh is improbable. In light of his experience, it can reasonably be inferred that he possesses a thorough understanding of contractual terms.

The August agreement came about after Mr Augustine called Mr Singh. The parties had regular debriefing sessions and no issues were raised. Mr Augustine called Mr Singh to meet with him on 18 August 2022 requesting that Mr Grewal not be present. Mr Singh in his submissions refers to the conversation alleged by the plaintiff. There was an allegation that Mr Singh was fiery without any evidence to support this. The meeting was at a location full of diners at the relevant time. Mr Augustine alleged he was under duress, but Mr Singh denies these statements. The alleged threats are not credible. There was no evidence of coercive or extortive threats. Mr Augustine admitted he was not physically restrained or in fear of bodily harm.
It is submitted the elements of duress have not been made out as he had the option to walk out as suggested by his wife. There was a discussion between the two of them as to the methodology and timing of the settlement. Documents were to be prepared and monies exchanged. There was an agreement.
Mr Augustine decided to drop the van off at the Grewal residence and called Mr Singh to let him know this and said he would not be coming back to the business. Mr Singh called Mr and Mrs Grewal immediately and it was decided that Mr Augustine’s password be changed to safeguard matters in the event of a mistake by staff. Since 18 August 2022 Mr Augustine has not come into the business or make any attempts to come.
With respect to the meeting on 27 August 2022 all parties agreed that Mr Augustine attended with the intention of executing the documents. No objections or reservations had been raised about the agreement before this. It was Parvin who instructed Mr Augustine not to sign the documents. It is alleged that the Grewals and Mr Singh after being called criminals were not given the opportunity to say anything.

It is submitted that the plaintiff by its conduct in agreeing to sell the shares and not turning up to work and not contacting the defendant and agreeing to meet on 27 August 2022 should be estopped from denying the existence of the agreement. The defendant has suffered detriment in having to assume the duty of managing the business at considerable expense.

Oppression

Mr Augustine agreed that he was not entitled to wages for not working since August 2022 and agreed that dividends were subject to profits and no dividends had been declared. He also agreed that he was still a director and had not changed the registered address. He also agreed he had full access to bank accounts and to the P & S portal.
As to the affidavit of Mr Augustine it is submitted that it is wholly unreliable contradictory, misleading and full of assumptions and speculation. He got the dates wrong. He made an allegation of confrontation when he was not there. He was not impressive in cross examination. He lied about the debriefing meetings. He blamed his solicitors for not providing documents to the expert. He went to the Sydney

conference and did not actually attend the conference. Mr Grewal on the other hand had a strong work performance.

It is submitted there is hearsay in Parvin’s affidavit and the intention of the affidavit was to disparage Mr and Ms Grewal.

Unconscionable conduct

It is submitted the plaintiff has failed to show any elements of unconscionable conduct.
The parties had equal shares and there was no lack of transparency on the part of the defendant. The plaintiff had the opportunity to disengage and was going to paid what he had invested. There was no special relationship of the parties as the contract was independent and voluntary. Mr Augustine read, discussed and commented on the JVA and executed it after he was satisfied about it.
It is submitted the evidence of Mr Singh and Mr and Mrs Grewal was consistent with the pleadings. Also it was supported by the evidence of Ms Garratt. The directors of the defendant agreed and ratified the agreement between Mr Singh and Mr Augustine concerning the acquisition of the shares.
As regards the alleged phone conversation with Parvin, Lakvin said her phone was being used by her son watching cartoons. Also the timing is not consistent with Parvin’s evidence. It is also submitted that Mr Augustine never said anything about not being happy about Mr Grewal’s work ethic.
Neither Mr Grewal nor Mr Singh took out more salary than was set out in the employment agreement.
With respect to the sale the defendant has been ready, willing and able to complete. The payment of the $162,500 will be made upon completion of the documents.

Further matters

It is submitted the plaintiff’s submissions raise further conduct not pleaded. The parties must adhere to the pleadings. It is submitted the plaintiff has failed to prove the crux of its case. The claim against the defendant should be dismissed and an order should be made that the August agreement is valid and binding and should be completed.
I have had regard to the attachments to the defendant’s submissions.

Oral submissions

The defence pointed out that the Southport store had been running since April 2024, Coomera was not yet in operation and Beenleigh commenced in December 2022. With regard to the diligence allegation the timeline shows that Mr Grewal was at Tweed Heads more than three days a week. Mr Augustine in his evidence agreed with the timeline. It would be accepted that Mr Grewal did work offsite for Tweed Heads and could do this before he turned up later in the morning. It was submitted I would accept Mr Grewal’s evidence that there was an agreement with Mr Augustine about

the times of work. Also the fact is all of the work was done and there was no complaint about this so one would readily conclude that Mr Grewal had performed his duties. Mr Augustine did not give evidence he had to do extra work or that the Tweed Heads business suffered. I should accept Mr Grewal’s evidence of the agreement made a Goonellabah on 2 July 2022. There was also no complaint made by Mr Augustine to anyone about this allegation and Mr Augustine enjoyed the benefit of the arrangement. This allegation should fail.

As regards the alleged bullying conduct, the defence made the decision not to call Ms Maitala because Mr Augustine agreed there was no such conduct in her presence. In those circumstances an adverse inference cannot be drawn because she was not called. Ms Garratt corroborated the defence case. She was steadfast in her evidence. She did not hear any disparaging of Mr Augustine. As regards to the conversation on 17 August 2022 when Mr Augustine said he was taking over the court would accept this. Even though it was not mentioned in her affidavit or statutory declaration it was volunteered to the court. Also, it would be accepted there was a friendly and cordial environment. The group chats and the text on 18 August 2022 do not support Mr Augustine’s contentions.
As regards the defendant’s conduct of the business there had been no complaint about this. The defendant has complied with the franchise agreement. There have been no infringement notices and the business has improved. The defendant has deployed its own resources to keep Tweed Heads up and running. Indeed Tweed Heads used Mermaid Beach for the consignment of items. The defence acted in the best interests of the business. It would also be accepted there were debriefing meetings and no issues were raised by Mr Augustine there.
As regards the meeting on 18 August 2022 it would be taken into account that Mr Augustine was very experienced, holding an MBA and he would have been familiar with commercial contracts. He did not rely on Mr Singh. He also agreed that Mr Singh was calm at the start at least. It was not possible to do split shifts.
It was not possible for one party to manage the business. Mr Singh denied the conversation alleged by Mr Augustine but even things were said as alleged they were not credible and there was no duress. Also Mr Augustine was able to consult his wife. It should be born in mind the meeting went for 90 minutes. Mr Augustine was told the secretary would prepare the documents. I would accept Mr Singh’s evidence that Mr Augustine called him from Mr Grewal’s house and said he was not coming back.
They had to change the GMX for security reasons. Since 18 August 2022 Mr Augustine has made no attempt to come into work or ask for the new password. Additionally, Mr Singh spoke to him before 27 August 2022 regarding the documents and he intended to settle at that meeting.
I would note that there was no complaint about any conduct by the defendant between 18 August 2022 and 27 August 2022. The defence is still ready, willing and able to complete the August agreement.
Mr Singh denied that the correspondence in March of 2025 was a refusal to provide the books of account to the plaintiff. The reason for the letter on 21 March 2025¹⁵ was

Exhibit 8.

the Franchisor was involved. It was submitted that the plaintiff has not been excluded from the business. The fact is that no dividends are payable and there has been no board meeting to declare these. Mr Augustine was not expecting payments and was not entitled to wages or dividends. Also, he had access to the online banking portal and the P & S portal. The only thing changed was the password. It would not be accepted there was oppression or unconscionable conduct.

With respect to the expert evidence, it was submitted that Mr Lytras conceded that on the 2023 business plan the numbers would be different. He accepted that 22.5 per cent profit was overstated if there were additional employees. It was submitted that there should be no addback. Mr Singh also pointed out the salaries for himself and Mr Grewal for the period 1 July 2023 to 30 June 2024 were about $1,000 per week each.
Generally as regards to Mr Augustine’s evidence he was inconsistent and he changed the dates. He was not credible. As to Parvin there was a lot of hearsay in her evidence and her evidence of the phone calls to Lakvin does not fit in with the timing. I should accept Lakvin’s evidence regarding the toddler answering the call.
As regards to the letter to the Franchisor dated 28 August 2022 this was written because there was a risk of termination of the Franchise by the franchisor.

EVIDENCE

I now propose to give a summary of the evidence in this matter. I have had regard to all of the evidence in reaching my decision.
I will make some comments as to the credibility and the reliability of the witnesses in this summary. When I do this I have regard to all of the evidence and submissions.
I paid careful attention to the evidence given by the witnesses and was assisted by their demeanour in the witness box.

PLAINTIFF’S CASE

Mr Gus Augustine

Mr Gus Augustine in his affidavit¹⁶ states that he was born in Malaysia. He was married to his wife Parvin in 2001. He and his wife moved to Australia in November 2001 where they stayed for four years before they moved back to Malaysia in 2005. He completed an MBA through the University of Southern Queensland.
In March 2011 he moved back to Australia with his family and worked in a number of occupations.
In about January 2018 the plaintiff entered into an agreement with P & S systems to operate a franchise of the Toowong store for a term of 10 years. He started running the store in January 2018 and has run it since. Both he and his wife work full time there.
In about March 2018 he met Mr Havin Grewal. Between March 2018 and June 2018 a friendship developed between Mr Augustine and his wife and Mr Grewal and his

Exhibit 1.

wife. Mr Grewal informed Mr Augustine that he was running a money lending business in Malaysia; had an IT degree from a Malaysian University; had owned multiple businesses in Malaysia and worked in a bank.

In June 2018 Mr Augustine offered Mr Grewal’s wife Lakvin a job working in Toowong and she accepted. In 2020 Mr Grewal told Mr Augustine he had purchased a second-hand Ute and was using it doing deliveries. Mr Augustine engaged him on many occasions on behalf of the Toowong store.
In about July 2021 Mr Augustine got a job working for NX Blue Pty Ltd the main labour hire sub-contractor for Snowy Hydro Ltd. This took him away from the Toowong store.
As a result, he asked Mr and Ms Grewal if they would be interested in managing the Toowong store or if they would like to buy it. As a result, an agreement was made to the effect that Mr and Ms Grewal would be employed to manage the Toowong store and they would be jointly paid 50 per cent of the net profit of the store or $1,000 per week whichever was the greater. This was for a three-month period.
Mr and Ms Grewal started as managers of the Toowong store in June 2021 and he worked with them for two weeks to train them. After this Mr Augustine went to start his job in the Snowy Mountains. After two weeks he returned but because the border was closed he did not go back down. He kept Mr and Ms Grewal on as employees of the business which continued until September 2021. There was never any agreement for the Grewals to purchase the Toowong store.
At the end of September 2021 Mr Grewal told Mr Augustine that he was not interested in buying the Toowong store because he and his cousin Mr Singh wanted to buy their own P & S franchise. He said they were considering buying the franchise at Southport for about $380,000 but the deal did not come off. After this they were going to try and buy the existing South Brisbane P & S franchise.
In October 2021 Mr Augustine got another job working for a company in Sydney. By that stage Mr Grewal had not been able to buy another P & S franchise. As a result, in early November 2021 Mr and Ms Grewal came back to work in the Toowong store on the same basis as earlier. They continued to do this until Christmas 2021.
Mr Augustine was introduced to Mr Sarbjit Singh in August 2021 at a restaurant in Mount Gravatt. He was introduced as the cousin of Mr Grewal. Mr Singh advised him that he was a lawyer in Malaysia and owned a law firm there. He had worked mainly on company mergers and acquisitions in Malaysia and in South Africa. He was a director of 138 companies and paid $1,400,000 for his house. On 19 December 2023 Mr Augustine accessed Mr Singh’s LinkedIn page which is attached to the affidavit.
In early January 2022 Mr Grewal told Mr Augustine that he and Mr Singh had agreed with P & S to open up a new P & S franchise in Beenleigh.
In February 2022 Mr Grewal told Mr Augustine that he and Mr Singh had bought the existing P & S franchise at Mermaid Beach, and they would start running the store.

In about March or April 2022 Mr Augustine made enquiries with P & S about getting a second franchise. He was told that the owner of the Tweed Heads store was thinking about selling. However, Luke Martin from P & S head office said that P & S would only consider allowing Mr Augustine to get into another franchise if he went into partnership with somebody else.
Mr Augustine raised the idea of going into partnership with Mr Grewal in a phone call in about late April early May 2022. On 2 May 2022 he met Mr Grewal and Mr Singh in a pub near Helensvale. They discussed the idea of buying the Tweed Heads store in partnership. Mr Augustine said he was prepared to pay about $400,000 for the Tweed Head store that is $200,000 each. They discussed how the store would be run if it was bought and the agreement was that Mr Augustine and Mr Grewal would work at Tweed Heads full time until the store was up and running and making a good profit. Mr Singh would not work there. There was an in-principle agreement they would form a partnership to buy the store with Mr Singh suggesting a JVA which contained a term that if the relationship broke down one party could buy the other party out. Mr Singh said the best way to arrange the partnership was to set up a joint venture company and each of their partners could be shareholders in this company.
The next day Mr Grewal told Mr Augustine he had made an agreement with the operator of the Tweed Heads Franchise to buy it for $275,000 and that Singh would contact P & S to make the arrangements. Mr Augustine told him that this approach was against their standard process, and they were supposed to go through P & S to get approval to buy the franchise. Mr Singh on 9 May 2022 sent an email to Luke Martin advising of the agreement with Ms Maitala.
On 27 May 2022 Luke Martin approved the proposed purchase of the Tweed Heads store. Attachments to the email included a disclosure document; key facts sheet; franchise agreement; code of conduct; agency agreements; prior representation certificate and letter with application for grant of franchise for the territory of Tweed Heads.
In late May/early June 2022 Mr Singh told Mr Augustine that he had identified some issues with the paperwork and was discussing these with P & S. On 29 June 2022, the documents were signed.
On or about 29 May 22 the plaintiff and the defendant entered into the JVA.
On or about 1 July 2022 TLPL settled an agreement with Vune Pty Ltd for the purchase by it of the P & S business at Tweed Heads. The plaintiff paid $25,000 to TLPL and $137,500 to Vune Pty Ltd.
On 1 July 2022 TLPL entered into an agreement for it to operate the business using the P & S system for 10 years.
On 2 July 2022 there was a conversation between Mr Augustine, Mr Grewal and Mr Singh about how much Mr Grewal and Mr Augustine would be paid to work at the store. Initially it was agreed that they would be paid $2,000 plus superannuation per week as wages, but it was then agreed it should be $1,500 per week plus superannuation. Mr Augustine was paid this amount over the next six or seven weeks.

Mr Augustine started working in the Tweed Heads store from 2 July 2022. Mr Grewal started there as well. For the first two weeks or so Mr Augustine was there full time. Mr Grewal was supposed to be there but was not. He was hardly present at the store and only attended about three days a week and when he was there he was only there for three or four hours per day. Mr Augustine thought that the wage paid to him was a wasted expense because he was meant to be there full time and he was not.
Until 14 July 2022 Mr Augustine only worked at the Tweeds Head store with Ms Maitala. He did not work at the Toowong store. The handover period was meant to be two weeks and there were no issues with Ms Maitala.
From the outset of their time working in the Tweed Heads store Mr Grewal was aggressive towards Mr Augustine, bullying him and criticising everything he did. For example:
(a)Mr Grewal would criticise his everyday tasks like packing boxes or opening them.
(b)He treated him more like a servant or badly treated employee.
(c)He would get angry and blame Mr Augustine even though it was Mr Grewal’s fault.
(d)He would tell him to hurry up.
(e)He would criticise Mr Augustine for not putting out and filling hard copies of invoices despite the system being entirely electronic. He would say “are you stupid” or “can’t you read emails.”
(f)He criticised the way that he filed consignment notes.
(g)He would be angry at him after he spoke to customers and spoke to him in an aggressive and angry toned voice.
(h)In the period between criticism Mr Grewal would not talk to him and would just stomp around the store. As a result of this Mr Augustine became stressed and Mr Grewal criticised him saying “your heart is not in the business.”
It became worse and worse and whenever Mr Augustine went into the Tweed Heads store he felt sick in his stomach and nervous with his heart racing. Mr Augustine felt that it was as if from day one Mr Grewal was intent on finding anything he could to criticise and abuse him. As a result, Mr Augustine had trouble sleeping, was feeling anxious and second guessing himself.
Things came to a head on the evening of 19 July 2022. Mr Augustine confronted Mr Grewal about his bullying at the end of the day. He asked Mr Grewal what his problem was. The response was that the problem was not his but Mr Augustine’s. Mr Grewal walked around the store slamming down on tables and doors before storming out.
On 21 July 2022 Mr Grewal apologised for his for his behaviour and started becoming more civil but by 8 August 2022 he was back being abusive and a bully which continued until 15 August 2022. Also, Mr Grewal would not do his fair share of work. Also Mr Grewal was disparaging another employee Kelly Garratt and he said he intended to fire her by Christmas 2022.

On 15 August 2022 Mr Grewal did not come to work at the Tweed Heads store even though he was supposed to. That evening Mr Augustine dropped off the company van to his home at Eight Mile Plains. Mr Grewal was very rude to him and criticised him for being late to the house.
On 17 August 2022 Mr Augustine came back to work at the Tweed Heads store, but Mr Grewal did not turn up.
On 18 August 2022 neither Mr Grewal nor Mr Singh worked at the Tweed Heads store. Also on 18 August 2022 Mr Augustine called Mr Grewal to explain how he had corrected an error Mr Grewal had made. Mr Grewal exploded at him in a rage shouting words that he could not read he had done his work perfectly and Mr Augustine had ruined it.
After this Mr Augustine called Mr Singh and told him that he wanted to meet to discuss his concerns about working with Mr Gruel. They met a pub at Oxenford. Mr Augustine suggested that they do split shifts and job share so neither of them would be in the store at the same time. But Mr Singh said he did not agree with this because there shouldn’t be two bosses. Mr Singh said that based on his experience the only option was for one party to buy out the other party otherwise there would be a “deadlock” if both parties could not come to an agreement. Mr Augustine said that he would buy out the defendant. Mr Singh’s voice became aggressive and menacing and said that P & S would not let him run the Tweed Head store and that if he did not agree to sell to the defendant:
(a)He would meticulously look at every single thing in GMX for Tweed Heads and find something there that he had done wrong and tell P & S about it and brand him unfit with P & S;
(b)He would make sure Mr Augustine was finished with P & S;
(c)He would destroy his reputation; and
(d)Mr Singh threatened to tell P & S that Mr Augustine had over quoted a job to include higher margins and unnecessary service fees. Mr Augustine said this was a flat out lie.

Mr Singh was very aggressive at this time. He told Mr Singh that he needed to call his wife to tell her what happened because she was a director of the plaintiff as well. Mr Augustine called his wife and then went back to the table with Mr Singh. Mr Augustine told Mr Singh that he did not like what he was doing and had come there to resolve the situation with Mr Grewal. Mr Singh said it was a deadlock situation and either Augustine would do what he was demanding then and there and transfer the plaintiff’s shares to the defendant or he would send an email to P & S telling them that he cheated customers by overquoting and to finish him with P & S. He went to speak to his wife again, but he wasn’t able to and needed more time. The threat was repeated. Mr Augustine thought that Mr Grewal and Mr Singh had been trying to engineer the situation from the very beginning.
Mr Augustine could not afford to have his relationship with P & S destroyed because he had invested so much time and money in the Toowong store. He physically and emotionally could not continue to suffer the kind of abuse he was getting, and Mr Singh was a lawyer and had experience. He could not continue to fight with them

because they had family support. As a result Mr Augustine was very stressed and in that context told him “fine whatever you want.” He did not think there was any other practical option available.

Mr Singh said he would get an accountant to calculate the payout - what had been invested and the profit for the six weeks. They shook hands.
That evening he drove to Mr Grewal’s house and dropped off the keys in the mailbox. He called Mr Singh to tell him he had done this.
From the evening of 18 August 2022 Mr Augustine has not been able to access anything to do with the Tweed Head store or TLPL. His password to the electronic sales data base called GMX was changed and his password to the designated email address was changed. He was totally cut off from all operations.
On 27 August 2022 there was a meeting to discuss the situation with Mr Singh. Mr Grewal started discussing his demands and he became very aggressive jumping out of his chair and pointing to Parvin aggressively.
Later there was correspondence with P & S. ¹⁷
Ultimately, on 12 September 2022 Mr Augustine instructed Rose Litigation lawyers.
Mr Augustine remains a director of TLPL and has made efforts to obtain documents from it. These documents have not been provided.
In the period 19 August 2022 until the commencement of these proceedings the defendant and TLPL has not paid any monies to the plaintiff. Mr Augustine says that the conduct of each of Mr Grewal and Mr Singh made it impossible for him to be involved with them in the business. The relationship completely broke down.
In his second affidavit dated 6 November 2024¹⁸ Mr Augustine responds to some of the defence material. He denies that it is necessary for the operators of P & S to send out all deliveries personally and it is usual to engage third party contractors to carry out this work. He disagrees with much of the affidavit of Mr Singh. He disagrees that he was ever asked to get independent legal advice. He says that the defendant has refused to cause TLPL to make any payment to him since 18 August 2022. He agrees that he signed the prior representation certificate on 27 May 2022. He denies that Mr Grewal was in charge of the administrative work for the Tweed Heads store because they were supposed to share that work between them. He says that between 2 July 2022 and 18 August 2022 Mr Grewal was not primarily involved in the packing pickups and drop offs whilst Mr Augustine was mainly in the front office. He says that Mr Grewal, Ms Garratt and he shared the responsibility for personally making a handful of deliveries. He denies there was a contemplation there would be three full time employees to operate the Tweed Heads franchise. With respect to the meeting of 18 August 2022 he stands by the evidence in his first affidavit and says he was emotionally devastated. He denies that he logged himself out of the GMX systems or the dedicated email account. He says that he was removed from them. He denies that he ever set out to take over the management of operations of the Tweed Heads

Exhibit 1 pages 701-706 and 985.
Exhibit 2.

franchise and says that Mr Singh and Mr Grewal set out to deceive him. He also denies that he agreed to execute all necessary documents to effect the August agreement and denied that resigned his employment with TLPL. He denies that he remained ready, willing and able to perform his obligations with respect to the August agreement. He repeats that fact that Mr Singh made threats to him. He denies that he breached his duties as a director of TLPL.

Evidence of Mr Augustine

Mr Augustine said that he was the principal officer of TLPL. He said that he had not changed over the address to where correspondence to the company was sent. He said that his accountant had said that all directors needed to consent to such a change, and he took no steps to ensure this had happened, aside from advising his solicitors.¹⁹
His affidavit in paragraph 23 set out his employment between 2011 and 2018. After 2018 he continued working for Clough Projects between July 2018 until June 2019. He was then made redundant and worked at P & S Toowong after that.²⁰ He worked at Snowy Hydro in July 2021 but that stopped because of the border closures and in October 2021 worked at Greenlight contractors in Sydney.
At the end of June 2022, he started work at the Tweed Heads P & S. After the Tweed Heads P & S he worked for Nacap (a construction company) between January 2023 and September 2023. He was not employed between August 2022 and January 2023 but was running the P & S store in Toowong.
He acquired the P & S store in 2018 because he wanted to own his own business. It was an existing business. He acquired the business to increase its profitability and said he succeeded in this.²¹ He sold it for $78,000. He held it for about seven years, and it was on the market for two years and he ultimately sold it in April 2025.
When he signed the purchase agreement for the Toowong shop the minimum sales performance fees²² were:
(a)2018 $200,000
(b)2019 $275,000
(c)2020 $325,000
(d)2021 $400,000
(e)2022 $450,000
He said that he achieved his targets for 1, 2 and 3²³ but then said that he did not achieve the target for year one. The figures showed the total sales for Toowong were as follows:
(a)Financial year 2019 $156,400
(b)Financial year 2020 $165,264

Transcript day 1 page 48-49.
Transcript day 1 page 50.10.
Transcript day 1 page 52.15.
Exhibit 1 page 942.
Transcript day 1 page 55.37.

(c)Financial year 2021 $164,102
(d)Financial year 2022 $339,971

He agreed that in the financial year ending 2018 he only achieved 56 per cent of his sales figures; 48 per cent of his sales figures in 2019; 41 per cent of his sales figures in 2020 and 36 per cent of his sales figures in 2021.²⁴ He said that he did not believe the sales targets were realistic.²⁵ He claimed though that the Tweed Heads figures were realistic based on sales.²⁶
He said that he asked Lakvin to work for him because there was job opportunity for him in July 2018 and she was looking for a job.²⁷ He admitted taking up this new job to get more money and to afford to put Lakvin on.²⁸ He did not dispute that for Toowong that the gross sales figures for 2018 were $155,490.²⁹ He agreed that an operating profit was about 25-30 per cent of the gross turnover and therefore the profit was about $31,000 before tax.³⁰ He agreed that Toowong was not doing well but he still employed her and paid staff out of his own pocket.³¹
He said that in March 2019 Lakvin left and he asked her to leave because he could no longer afford her.³² He claimed that she was not a good worker and did not come in on time. But they kept her on.³³ But he said they did not say anything to her because she was a friend. After March 2019 he worked for Clough and Parvin ran the Toowong store. After being retrenched from Clough he worked at P &S Toowong full-time and Parvin got a job full-time at the Wesley Mission.³⁴ He said that the store was not going badly and was able to pay its rent.³⁵
In July 2021 he accepted another job and agreed he wanted to sell the business.³⁶ He denied though making an offer to the Grewals to take over the store. He said that Havin approached him and said he might be interested in buying the store. He said that he offered to pay Havin and Lakvin 50 per cent of the net profits if they ran the store with him.³⁷
He accepted that the turnover for July 2020 until 2021 was $164,102 and accepted he received about $13,000 per month.³⁸
At paragraph 62 of his affidavit, he set out the payments he made to the Grewals for the period July until December 2021. He agreed he paid them as follows³⁹:

Transcript day 1 pages 57-58.
Transcript day 1 page 59.15.
Transcript day 1 page 59.35.
Transcript day 1 page 60.30.
Transcript day 1 page 61.10.
Transcript day 1 page 61.
Transcript day 1 page 62.35.
Transcript day 1 page 62.45.
Transcript day 1 page 63.11.
Transcript day 1 page 63.25.
Transcript day 1 page 63.
Transcript day 1 page 64.5.
Transcript day 1 page 64.15.
Transcript day 1 page 64.25.
Transcript day 1 page 65.5.
Transcript day 1 page 65.

(a)July 2021 $4,400;
(b)August 2021 $7,963;
(c)September 2021 $5,873;
(d)October 2021 $0;
(e)November $11,750; and
(f)December $8,035.

He did not dispute that this was 25.9 per cent of the profit.
He agreed that he was nominated as the public officer of TLPL. He agreed that he signed a consent form in that regard.⁴⁰
He was taken to the figures from July 2021 until December 2021 and said that Lakvin and Mr Grewal worked at the store except for October. He agreed those figures were as follows:
(a)July 2021 $16,967;
(b)August 2021 $20,387;
(c)September 2021 $21,557;
(d)October 2021 $15,677;
(e)November 2021 $49,814; and
(f)December 2021 $34,181.
He agreed for that six-month period when the Grewals were in the store the average was $26,000 per month as compared to $13,000 per month when he was running the store.⁴¹ He claimed there was a drop of sales in October because some of the work was done then and the receipts occurred in November.
He said that a new GMX system was introduced in January 2022 for sales reporting. This system led to an automatic downloading of the MYOB.
He agreed that when Lakvin and Mr Grewal worked there they were to get 50 per cent of the net profits.⁴² He denied that in the six months they were there they doubled the turnover.⁴³
He disagreed that Lakvin and Mr Grewal proved themselves.⁴⁴ He said that in September they decided not to proceed with the purchase of the store.⁴⁵ He said that they mentioned they were interested in buying another store and said he found out they were looking at other stores in August and September 2021.⁴⁶

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He accepted that in 2022 that the Toowong store was awarded an award for sales growth and agreed that Lakvin and Mr Grewal assisted him with this.⁴⁷ He admitted that he did not work hard enough in the previous year and that Lakvin and Havin did work hard, and the award was based on the 12 months work that they had done.⁴⁸ He denied being envious of them.⁴⁹
Mr Augustine first met Mr Singh at a birthday party. Mr Augustine denied that what he said in paragraph 78b, c and d of his affidavit was incorrect.⁵⁰
Mr Augustine said that by 2021 he did not want to sell his store because the business was getting better.⁵¹
Mr Grewal purchased a store in Mermaid Beach and was doing well. He and Havin spoke together, and they wanted to expand. This was in March or April 2022.⁵² At that stage Mr Augustine was receiving a salary at Greenlight and had held the P & S store at Toowong for five years which was picking up. He had started to have a rejuvenated interest in P & S.⁵³ He ultimately put Toowong on the market in 2023 and sold it to raise money for the litigation. He admitted he only got $78,000 which was a desperate sale.⁵⁴
In 2022 with respect to the expanded franchise network he approached the franchisor, and they told him that for him to have a second store he needed a partner.⁵⁵ He spoke to Mr Grewal because he wanted him to go into partnership with him.⁵⁶
Mr Augustine was shown paragraph 33 of Parvin’s affidavit in which she alleged there was a dispute about profits for a job between $15,000 and $20,000 in October 2021. He said that Havin told him the issue was resolved.⁵⁷
He did not ask anybody else to go into partnership with him, he denied the proposition he was merely using Mr Grewal to get the second store and then to get control of it.⁵⁸
He said that despite Havin not being a good worker he approached him for this venture.⁵⁹
On 30 April 2022 he called Havin and then he, Mr Singh and Havin met at the Sunnybank Tavern. At that stage Mr Augustine was working full-time. There was also a meeting on a public holiday in May in Brisbane.⁶⁰ This was about purchasing the Tweed Heads business. Mr Augustine said it was worth about $400,000 and Mr

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Singh said this was excessive.⁶¹ He denied saying they had to act fast. He denied pushing for the purchase.⁶² He agreed he left it to Mr Singh and Havin to negotiate the terms. He agreed they got the best deal.⁶³

There was an agreement that a joint venture would be used as the vehicle to do the takeover. It was also agreed that Havin and he would run the store full-time until there was a manager. It was pointed out that in his affidavit he alleged that it was agreed they would run the store until it was making a profit (90(d)) and he said that was correct.⁶⁴
He agreed that a good profit would be a 20-30 per cent return of about $70,000 per annum.⁶⁵ He agreed that in the first year of operation the store made a loss of $55,000 although he claimed there were 5-6 employees and before this the previous owner would run the store by herself. ⁶⁶ In the 2023/2024 financial year there was a profit of
$33,224.⁶⁷ He disagreed that there was an agreement that before making a profit they would employ a manager. He agreed they had decided they needed a manager.⁶⁸
He was taken to the JVA and in particular Recital D and agreed that the parties were desirous of developing and selling the business.⁶⁹
With respect to the allegation in paragraph 92 of his affidavit he said it was against P&S’s standard process to approach the franchisee directly. He denied this was raised to disparage the defendant.⁷⁰ He agreed that the franchisor did not raise any issues about it.⁷¹
He agreed that he executed the JVA in a club in Sunnybank. He denied pressing to expedite this. He accepted he sent an email on 27 May 2022 that he was happy to sign it.⁷²
He agreed that the agreement provided that if the parties could not cooperate one party would be required to sell their shares to the other party.⁷³
He agreed that on 18 August 2022 he called Mr Singh for a meeting, and they met at the Oxenford Tavern. He said he arranged the meeting to tell him of the issues with Havin.⁷⁴
He accepted at the start Mr Singh was very calm and listened to what Mr Augustine had to say.⁷⁵ He said that he raised options. He said that Mr Singh said this was a JVA

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and both parties needed to work at the same time.⁷⁶ Mr Augustine denied saying he could not work with Mr Grewal.⁷⁷ He denied that he was adamant that both of them could not work together.⁷⁸

He didn’t recall if Mr Singh said that if both of them did not back down this would be a deadlock situation. This is what he alleged in paragraph 162 of his affidavit and that the only option would be for one party to buy out the other party.⁷⁹
He said that he offered to buy out SHRL. He agreed he made the first offer to buy them out. ⁸⁰ Mr Singh advised him that the franchisor might not agree as he did not have a business partner.⁸¹
Mr Augustine admitted calling Parvin. He did not recall that Mr Singh advised him that as nominated managers both of them would be responsible if the franchise suffered.⁸² He admitted calling his wife three time and he agreed to sell his shares.⁸³ He said this was because of threats and duress. He claimed he agreed to sell the shares because he had enough of the threats. He said the threats included:
(a)That Mr Singh would pick up anything he did wrong in Tweed heads and this would be taken up with the franchisor to show incompetence.⁸⁴
(b)Mr Singh would destroy him or finish him off by finding anything to do with Toowong.
(c)Mr Singh had the expertise to destroy him with P & S.⁸⁵
He said he told Mr Singh to be like a big brother to resolve the situation with Havin.⁸⁶ Mr Augustine claimed that he had a high respect for Mr Singh.⁸⁷ He said the Mr Singh said he could get him for overquoting.⁸⁸ He said he would send an email “right now” to P & S and he was fiery.⁸⁹
He accepted they were sitting in a dining area with many patrons around them and the patrons’ attention was not drawn to their conversation.⁹⁰ He agreed he was able to walk out.⁹¹
He also said that Mr Singh said he would tell the franchisor that Mr Augustine was not a good character.⁹²

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Mr Augustine agreed that he attended the Ivory Tavern on 29 July 2018.⁹³ He did not recall a meeting at the Sunnybank club on 12 August 2018.⁹⁴ He admitted did not raise any concerns at a meeting concerning any belittling by Mr Grewal and said he kept it to himself.⁹⁵
He said that prior to the meeting with Mr Singh on 18 August 2022 he told his wife about it.⁹⁶ He called her when threats started.⁹⁷ She disagreed when he said he was going to sell his shares to the defendant. Despite this he proceeded to sell his shares.⁹⁸ He did not listen to her because of the duress.⁹⁹
He admitted he did not feel threatened physically.¹⁰⁰ He agreed they shook hands and agreed to meet the next morning at the Tweed Store.¹⁰¹
He admitted driving to Mr Grewal’s house that night and dropping off the keys and the van.¹⁰² He admitted calling Mr Singh and telling him he had put the keys in the mailbox.¹⁰³ He did not recall saying that he had finished with Tweed Heads, and he would never come back.¹⁰⁴
He agreed his wife had told him on the phone not to sell the shares and to just walk away.¹⁰⁵ He agreed he never returned to Tweed Heads after this.¹⁰⁶ He said he was driven out of the business.
He was taken to paragraph 149 of his affidavit where he alleged that Mr Grewal did not come to work on 15 August 2022. He was shown a Google timeline for that date and admitted that Mr Grewal was there and interviewed a new staff member with him. He said he got the date wrong.¹⁰⁷

I consider the following essential terms were agreed on:
(a)the share transfer; and
(b)the refund of profits to be calculated on a purchase price.
I do not consider the agreement lacks certainty or intention. I bear in mind that the courts do try and uphold contracts, despite a lack of clarity.⁶⁹¹ There is also a presumption of intention concerning commercial contracts.⁶⁹² I do consider this is a case where there was an intention to be bound immediately.⁶⁹³
Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd [1938] HCA 66; (1938) 61 CLR 286 at p 302.
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115
at [48].
[2017] FCAFC 75; (2017) 251 FCR 404.
Meehan v Jones [1982] HCA 52; (1982) 149 CLR 571 at 589.
Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502 at pp 520-522.
Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 at pp 360-361.

DURESS

Duress can include economic duress. However one must bear in mind that the world of commerce can be harsh and corporate players are not always expected to be reasonable or even fair to one another.⁶⁹⁴
In Crescendo Management Pty Ltd v Westpac Banking Corporation⁶⁹⁵ McHugh JA noted that the law would “not give effect to apparent consent which was induced by pressure exercised upon one party by another party when the law regards that pressure as illegitimate.”
In Universe Tankships Inc of Monrovia v International Transport Workers’ Federation & Ors,⁶⁹⁶ it was held that coercive or extortive threats can amount to duress sufficient to vitiate a contract.
In ANZ Banking Group Ltd v Karam⁶⁹⁷ it was noted that equitable concepts of unconscionability guide the concept of duress.
In Thorne v Kennedy⁶⁹⁸ it was said that the vitiating factor of duress focuses upon the effect of a particular type of pressure on the person seeking to set aside the transaction. It does not require that the person’s will be overborne, nor does it require that the pressure be such as to deprive a person of any free agency or ability to decide. It is a case where the submitting party knows only too well what he or she is doing. This is the case here.
I find that there was a relationship of superiority on the part of Mr Singh and vulnerability on the part of Mr Augustine. Mr Singh the experienced lawyer and businessman was looked up to by Mr Augustine.
In this particular case I am satisfied that the conduct of Mr Singh at the meeting on 18 August 2022 amounted to duress. I consider that the allegations by him were threatening and induced the agreement by the plaintiff. I find that Mr Singh threatened to destroy the plaintiff’s reputation with the franchisor. He would make sure he was finished with P & S. Mr Augustine’s income was with P & S at that time and I find he was fearful about losing his agreement with the franchisor. He was distraught and emotionally could not continue.⁶⁹⁹ He reasonably felt he had no other option but to enter into the agreement.
I find there is a clear case here of such duress. I find the contract was voidable and has validly been terminated by the plaintiff.

UNCONSCIONABLE CONDUCT

I next turn to the question of unconscionable conduct. In this case the plaintiff argues that the August agreement was unconscionable

Queensland Wire Industries Pty Ltd v Broken Hill P Co Ltd [1989] HCA 6; (1989) 167 CLR 177 at p 191.
(1988) 19 NSWLR 40 at p 45.
[1983] 1 AC 366 at pp 384, 400.
[2005] NSWCA 344; (2005) 64 NSWLR 149 at [68].
[2017] HCA 49; (2017) 263 CLR 85 at [26].
Exhibit 1 paragraph 177.

Section 20 of the ACL prohibits unconscionable conduct in trade or commerce. There is no dispute that the conduct here (if proved) was in trade or commerce.
Unconscionable conduct both in equity and under the statute can occur when a party makes unconscientious use of his or her superior position or bargaining power to the detriment of a party who suffers from a special disability or is placed in some special situational disadvantage.⁷⁰⁰ The circumstance must be one which seriously effects the ability of the innocent party to make a judgment in their best interests.⁷⁰¹
It was accepted in Renard Constructions (ME) Pty Ltd v Minister for Public Works⁷⁰² that the courts apply standards of fairness to contracts and it is the duty of the parties to contracts to engage in good faith and fair dealing in their performance.
Also the unjust retention of property can amount to unconscionable conduct.⁷⁰³

However as it was noted in Stubbings v Jams 2 Pty Ltd ⁷⁰⁴ equitable intervention does not relieve a plaintiff of the consequence of imprudent transactions conducted in the ordinary and undistinguished course of a lawful business.
Of course before there can be a finding of unconscionable conduct generally the plaintiff must prove that the other party knew or ought to have known of the existence of the special disadvantage.⁷⁰⁵
In this case though, I consider that Mr Singh on behalf of the defendant did engage in unconscionable conduct. He was clearly in a superior bargaining position bearing in mind he was a lawyer with much experience and Mr Augustine looked up to him. Despite Mr Augustine’s qualifications I have found that Mr Singh was far shrewder at business. I find Mr Augustine was in a vulnerable position (that evening) bearing in mind their relationship and was at a special disadvantage. I also find that Mr Singh knew of this or ought to have known of this vulnerability.
In the circumstances I have concluded that Mr Singh acted unconscionably towards the plaintiff at that meeting and as a result I find there has been a breach of the ACL.
The statement of claim also pleads⁷⁰⁶ that bullying conduct⁷⁰⁷, the diligence conduct⁷⁰⁸, the conduct by Mr Singh relating to the August agreement⁷⁰⁹ and the exclusion of the plaintiff from the business is combined unconscionable conduct.
When I consider the position of Mr Augustine as compared to Mr Grewal (who had the support of Mr Singh, the experienced lawyer and businessman), I further find that

Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 at p 462, 474;

Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392 at [6], [161]; Stubbings v Jams

2 Pty Ltd [2022] HCA 6; (2022) 276 CLR 1 at [39].

Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 at p 461.
(1992) 26 NSWLR 234 at pp 264- 265.
Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 at p 153.
[2022] HCA 6; (2022) 276 CLR 1 at [38].
Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 at [38].
Paragraph 36.
Paragraph 19.
Paragraph 21.
Paragraph 24.

the conduct of the defendant through Mr Grewal between 2 July 2022 and 18 August 2022 together with the conduct of Mr Singh amounts to unconscionable conduct in breach of s 20 of the ACL.

I further find that the exclusion of the plaintiff from the business since 18 August 2022 was also unconscionable. Mr Singh and Mr Grewal were in a superior position to the plaintiff and used their combined efforts to exclude it from the business. I find that they knew of the plaintiff’s vulnerability i.e. he looked up to Mr Singh and trusted Mr Grewal and was not as shrewd at business as they were. In effect they “ganged up” against him.
As a consequence of this conduct (which contravened a provision of Chapter 2 of the ACL), the plaintiff has suffered loss and damage.⁷¹⁰ I am satisfied that there is a causal link between the conduct and the damage in that conduct materially contributed to the plaintiff’s loss.⁷¹¹
I will hear further submissions as to any orders which may be appropriate under section 237 of the ACL in light of my findings.

ESTOPPEL

The defendant in its final submissions submitted that the plaintiff by its conduct in not turning up to work and not contacting the defendant is estopped from denying the existence of the August 2022 agreement.⁷¹²
The plaintiff objected to this being raised as it was not pleaded.
I agree with the plaintiff’s submissions. But in any event it hard to see that estoppel can be relied on. In light of my findings it was the defendant’s conduct which shut the plaintiff out of the business. Also if equitable estoppel is relied on the conduct of a party can disentitle it to equitable relief if its hands are unclean, as they are here.⁷¹³

OPPRESSION

Section 232 of the Corporations Act provides: “Grounds for Court order
The Court may make an order under section 233 if:
(a)the conduct of a company's affairs; or
(b)an actual or proposed act or omission by or on behalf of a company; or
(c)a resolution, or a proposed resolution, of members or a class of members of a company;
is either:

Section 236 of the ACL. The details are discussed later.
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at p 525; Henville v
Walker [2001] HCA 52; (2001) 206 CLR 459 at [106].
Exhibit 30 page 8 paragraph H.
Official Trustee in Bankruptcy v Tooheys Ltd (1993) 29 NSWLR 641 at p 650.

(d)contrary to the interests of the members as a whole; or
(e)oppressive to, unfairly prejudicial to, or unfairly discriminatory against,
a member or members whether in that capacity or in any other capacity.

For the purposes of this Part, a person to whom a share in the company has been transmitted by will or by operation of law is taken to be a member of the company.”

In order to establish oppression, an applicant must show that the affairs of the company or an act or omission of the company was oppressive to or unfairly prejudicial or discriminatory against members clearly contrary to their interests.⁷¹⁴ The exclusion from management and denial of information is a classic example of oppression.⁷¹⁵ The directors of a company are required to conduct the affairs of the company in the interests of the company and its shareholders as a whole.⁷¹⁶
In this case, I find on the balance of probabilities:
(a)there was a failure by the defendant to observe the agreed approach to the joint management of the Tweed Heads store;
(b)upon the plaintiff raising concerns, the defendant sought to enforce a buyout, which did not proceed;
(c)when the share sale did not proceed, the defendant took over the business for itself, and thereafter without consultation or agreement with the plaintiff:
(i)made all operational and business decisions itself;
(ii)employed Mr Singh in a full-time role;
(iii)caused the business to pay wages to Mr Singh and Mr Grewal largely in place of a dividend in circumstances where they did not work full-time in the business;
(iv)paid no money to the plaintiff a 50 per cent shareholder;
(v)represented itself as the sole proprietor of the business to the franchisor;
(vi)did not inform Mr Augustine of, or involve him, in any more decisions;
(vii)ignored the decision-making provisions of the JVA; and
(viii)refusing the plaintiff access to the financial records.
(d)even during the period of the exclusion, Mr Singh and Mr Grewal still considered Mr Augustine to be bound by his obligations and duties as a director.
Wayde v NSW Rugby League Ltd [1985] HCA 68; (1985) 180 CLR 459 at pp 467, 472.
Re Treadtel International Pty Ltd (No 2) [2016] NSWSC 791 at [103]; Re Back 2 Bay 6 Pty Ltd (1994)
12 ACSR 614 at p 615.
Hogg v Dymock (1993) 11 ACSR 14 at p 20. I note in that case the directors who ran the business received salaries, but an equal shareholder did not.

In light of the findings I have made, I find that the defendant in the conduct of the affairs of TLPL, acted contrary to the interests of the members as a whole and/or oppressively and unlawfully against the plaintiff.
Section 233 of the Corporations Act provides for a wide variety of remedies here. I will hear the parties as to what remedy is sought in light of my factual findings.

QUANTUM

Mr Lytras

Mr Elia Lytras has provided an expert report dated 31 May 2024.⁷¹⁷ Mr Lytras notes at paragraph 1.13 the allegations by the plaintiff that the defendant breached the JVA and acted unconscionably in breach of the ACL and breached various provisions of the Corporations Act.
Mr Lytras notes he has been instructed to assess the loss profit suffered by the plaintiff over the initial and renewal terms of the JVA as a consequence of these alleged actions.
Mr Lytras has calculated the loss at either over a 10-year period or a 20-year period. I am much more attracted to the 10-year period because I think it is unlikely that the business would have continued for a second period and consider the 20 year period too remote. I also note the 10 year period is what is pleaded in the statement of claim.
His calculations as at June 2024 for a 10-year period total $1,207,055:
This is summarised as:
1.   Lost wages $9,210.
2.   Lost profit $1,197,844.
3.   Total loss $1,207,055.
Applying a 3.5 per cent discount, this equals $1,020,883 as at 30 June 2024.
In the joint expert report this figure as at 30 June 2025 is $1,052, 147.
The basis of his calculation is the Plaintiff’s lost profit. The report is based on a number of assumptions as follows:
(a)But for the defendant’s actions the franchise would have been harmonious and the parties would have exercised the option to renew for a further period of 10 years.
(b)Mr Augustine and Mr Grewal would have worked actively until 30 September 2022 when a full time manager would have been employed.
(c)The loss after that date was 50 per cent of net profits before tax.
(d)The $84,358 Mr Augustine earned at Nacap would have been earned regardless.

Exhibit 24.

(e)The industry standard gross profit is in the range of 60-65 per cent.

In paragraph 6.4, Mr Lytras noted that in the financial year 2022/2023 the net profit before tax was a loss of $55,371 and for the period 1 July 2023 until 31 March 2024 the net profit was $33,224. However he added back in the wages, the superannuation guarantee and related party expenditure. This lead to a cash profit before interest and tax as follows:
(a)$122,373 for the 22/23 year; and
(b)$115,746 for the period 1 July 2023 until 31 March 2024.
He noted that the gross profit has been in the range of 59.1 per cent to 61.71 per cent. The reason for the loss in 2022/2023 was because the payments to the directors and related entities totalled $177,744. Over the entire period it was $260,266. Only
$12,162 was paid to Mr Augustine. $129,869 was paid to Mr Grewal and $99,511 to Mr Singh.
After the add backs, the cash profit over the entire period was $238,119. Only $12,162 was paid to Mr Augustine. Related party expenditure was $18,724.
His calculation of lost profit represents the lost profit share/dividends that the plaintiff has suffered. This is represented by 50 per cent of TLPL’s cash profit to owner before tax. He has applied a 22.5 per cent margin to assess likely sales from 1 April 2024 onwards. He also considered that sales would grow at about 4 per cent per annum.
He considered the terminal value of the franchise at $350,000 to $400,000.
Ultimately, annexure 31 sets out the lost profit calculation at $1,197,844 on an undiscounted basis being:
(a)$118,407 past loss (until 30 June 2024).
(b)$1,079,438 future loss until 30 June 2032.
After a 3.5 per cent “time value of money” discount this is $1,011,672.
I note that there is no discounting for contingencies.

Evidence of Mr Lytras

Mr Lytras accepted that he has not specifically discounted for contingencies in his figures.⁷¹⁸ He assumed there would be a harmonious working relationship. He accepts that Mr Otto was used a discount rate of 15 per cent.⁷¹⁹ He pointed out that even though there might be a discount of 10 per cent, the global discount would be
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greater.⁷²⁰ He accepted from an investing perspective there is an economic risk, but this investment was more secure as it provided a secure income stream.⁷²¹

He said that he received instructions from the plaintiff’s solicitor and accepted that what he said at paragraph 8 was not consistent with paragraph 19 of the statement of claim.⁷²²
With respect to page 105 of his report, he said that he considered a 10-year life span of the business and 20 year one. It was pointed out that paragraph 34 of the statement of claim only referred to a 10-year period and there was no mention of an extension for renewal.⁷²³
Equally, page 118 (paragraph 6) referred to a 10-year lifetime of the franchise as did page 129 (paragraph 21).⁷²⁴
He accepted that he proceeded on the assumption that Mr Augustine would have continued working in the Tweed Heads Franchise until a manager (probably Andrina) was appointed.⁷²⁵
Mr Lytras said that the gross profit margin in the range of 60 to 65 per cent⁷²⁶ was consistent with the 2017 information memorandum for Toowong.⁷²⁷ He assumed for the purposes of his report that after 30 September 2022 the business would be managed by an employed manager.⁷²⁸
He was taken to appendix 9 of the report⁷²⁹ and was taken in particular to page 139 where he was instructed not to incorporate any component for the observable decline in the Toowong franchise financial performance between 21/22 and 22/23. He followed this instruction and said that he did not seek to calculate any loss for that period of the Toowong franchise. He assessed loss only on the Tweed store which was favourable to the defendant in this case.⁷³⁰
He was then taken to paragraph 5.2 of his report⁷³¹ and said that he assumed for the purposes of his report that the party’s investment would have been harmonious and successful, and the parties would have taken up an option to renew the agreement for a further 10 years.
With respect to paragraph 5.3(c),⁷³² he said that the term “true profit” meant net profit before tax. At page 15 this was said to be $122,373 for the year ended 30 June 2023 and $115,746 for the period 1 June 2023 until 31 March 2024. He accepted that one

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Exhibit 24 page 135.
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Exhibit 24 page 137.
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measure of loss could be the loss of the wage of a working director if in fact the directors continued working on the business. ⁷³³

He said that the gross profit margin of between 59.1 per cent to 61.7 per cent⁷³⁴ was consistent with the business plan forecast.⁷³⁵
The Tweed Heads business plan had not been given to him.⁷³⁶ He was taken to Exhibit 5 at page 28 which is the 2022 Tweed Heads business plan and said that he did not think that he saw this.⁷³⁷ He was shown pages 43 to 44 which referred to three staff.
He was also referred to paragraph 5.3 of his report⁷³⁸ where he assumed that Mr Augustine and Mr Grewal would work actively until on or around 30 September 2022 and after that a dedicated manager would be employed. Consequently, after that they would share the true profit at 50-50.⁷³⁹
He did not dispute that the business plan for Tweed Heads referred to three staff whereas the business plan for Toowong was only one staff member.⁷⁴⁰ The Toowong business plan is in his report at page 178. He was not shown the 2023 one which appears at page 178 in Exhibit 5.⁷⁴¹
The only reason he referred to the 2017 Toowong business plan was because there was reference to a 60 to 65 per cent gross profit. He considered that looking at the 2023 business plan would not have made a difference because the Tweed Head performance was in the range of 60 to 65 per cent. Also Tweed Heads is a large store. The actual trading figures for Tweed Heads showed that a 60 to 65 per cent range was correct.⁷⁴²
He agreed that in paragraph 6.2 of his report⁷⁴³ he looked at Tweed Heads profit and loss performance but also a comparison to the Toowong franchise and a comparison to the sales performance of other franchise networks. He agreed he didn’t have the operating costs for Toowong or the other businesses.⁷⁴⁴

He agreed with Tweed Heads that if three full-time staff were to be employed this would increase the wages, but his assumption was that there would be a manager and one staff member after 30 September 2022. He agreed that with three full-time staff this would certainly affect his figures and the addback which was at page 15 of his report.⁷⁴⁵
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Exhibit 24 page 15.
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Exhibit 24 page 12.
Exhibit 24 page 13.
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Exhibit 24 page 14.
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He agreed that if the payments made to the two directors working at Tweed Heads were genuine payments there would be no addback in the figures.⁷⁴⁶
One example is if they worked 60 to 80 per cent in the business a wage of a $1,000 per week might be a genuine one.⁷⁴⁷
He was shown page 259 of his report and accepted that there was no figure for royalty payments, an advertising levy or licence fees for Pedro-x in the 22/23 financial year.
He said it was unusual this was not there and made no enquiries about it.⁷⁴⁸
He was taken to paragraph 6.4⁷⁴⁹ and asked about the wages and accepted that in some situations people can buy a job. However he said it was different here because Mr Singh and Mr Grewal had an enterprise of four businesses they were running.⁷⁵⁰
He agreed that having three full-time staff the cash profit figure to the owner would be less than 22.5 per cent, although all of this was a factual issue for the court.⁷⁵¹
There was some criticism made by the defendant of the evidence of Mr Lytras but in the end I accept the submissions made by the plaintiff on this point. The fact is the joint report notes that the two issues are the add backs (if any) and the amount of any discount. The fact is Mr Lytras has seen all of the material Mr Otto had and Mr Otto had all of the material.

Mr Otto

Mr Otto on the other hand has provided a report dated 19 December 2024.⁷⁵²
On his assessment, the loss for the 10-year term is $267,700 and for the 20-year term
$247,600.
He says there are two fundamental differences between Mr Lytras’ assessment and his calculation of loss profits.
The first difference concerns the treatment of owner’s remuneration. Mr Lytras’ assessment adds back such remuneration and calculating the loss of profits whereas Mr Otto is of the view that a commercial remuneration should be allowed (deducted) for the working owners which is required in driving the sales revenue of the business.
However, if the owners are not working in the business, he would share a similar view to Mr Lytras that such remuneration should be added back in the loss of profit calculation.
The impact of such treatment to exclude or include a commercial and market rate for the working owners significantly impacts upon the profit margin calculated. The profit margins adopted by Mr Lytras at 22.43 per cent and Mr Otto of 6.47 per cent vary considerably. He states, “In simple terms it is my view that in order to derive the

Transcript day 6 page 137.5.
Transcript day 6 page 137.32.
Transcript day 6 page 143.
Exhibit 24 page 15.
Transcript day 6 page 149.25.
Transcript day 6 page 151.5.
Exhibit 26.

revenue of the business, the work must be performed by the working owners or arm’s length employees. That is, it makes no difference who performs the work, but such amounts need to be calculated in calculating the loss of profit. In my opinion to do otherwise is not the correct application of the loss of profits methodology and in doing so will overstate the plaintiff’s loss.”

He further states, “In my opinion, the present value in a loss of profits methodology calculation requires both the time value of money and risk and uncertainty to be taken into account. I do not share the same view as to Mr Lytras in the discount rate applied at 3.5 per cent in his present valuation calculations applied against future income. To put it context, the rate adopted by Mr Lytras is lower than the current risk-free rate of
4.35 per cent.⁷⁵³ I further note that the franchise agreement has minimum sales revenues to be achieved which in itself may affect the term of the business and price achieved on these sales. The fact that the matter is before the court shows that in dealing with parties there are always risks in addition to normal commercial risks (that is it is not a passive income stream) and in my opinion the application of the loss of profits requires the expert’s assess discounted rate de facto in both the time value of money and risk of the income stream. To do otherwise is likely to materially overstate the plaintiff’s loss. The assessed discount rate by the experts may and often varies between the experts as they may hear differing views of the risks associated with the income stream. I agree with Mr Lytras that “additionally the court may factor in other contingencies based on the fact of the matter.”
Ultimately, Mr Otto calculates a loss of $267,700 as follows:
1.   Total past loss $45,626.
2.   Total future loss $132,622.
3.   Capital value business sale $89,487 a total of $267,735.

Evidence of Mr Otto

In his evidence, Mr Otto accepted the difference between the two experts was the treatment of the director’s remuneration and the appropriate discount rate.⁷⁵⁴ He agreed that the first issue depended on whether the basis of the remuneration of Mr Singh and Mr Grewal was genuine arm’s length remuneration for operational work.⁷⁵⁵
If it was genuine then there should not be an add back. It was for the court to determine the extent of equity distribution.⁷⁵⁶
If, for example, the court determined that 50 per cent was equity and 50 per cent wages, then 50 per cent should added back.⁷⁵⁷
As to the discount rate, Mr Lytras only took into account the time value of money whereas Mr Otto included a risk component.

RBA official cash rate as at 19 December 2024.
Transcript day 7 page 4.35.
Transcript day 7 page 5.1.
Transcript day 7 page 5.11.
Transcript day 7 page 5.30.

With respect to the 10- and 20-year figures, he noted that the 10-year figures include the sale of the business but the 20-year figures did not.⁷⁵⁸
Mr Otto explained why he fixed on a 15 per cent discount rate but accepted the range was somewhere between 10 – 20 per cent.⁷⁵⁹ He considered 3.5 per cent to be fairly low. He accepted though this was a small business and part of a franchise. This gives an element of security.⁷⁶⁰ It might be akin to a management rights business.⁷⁶¹
He accepted the turnover was fairly consistent but did point out there is a risk of termination.⁷⁶²
In re-examination he accepted his report did not take into account issues such as refurbishment and capital upgrades.⁷⁶³ But this would be more likely in the second ten years than the first.⁷⁶⁴
He said that the difference between the profit margin of 22 per cent and 6.4 per cent meant that the owners were in full time employment.⁷⁶⁵ He accepted that if the owners were not working in the business there would have to be an adjustment.⁷⁶⁶
He explained again that he considered 3.5 per cent to be too low and accepted that there was no certainty with sales revenue.⁷⁶⁷

Joint report768

A joint statement of experts was filed in the court on 19 February 2025. It was noted that in Mr Lytras’ report he calculated a loss assessed on undiscounted basis also a
3.5 per cent time value of money compound discount basis on assessed future losses and Mr Otto calculated with future losses assessed on a 15 per cent combined time value of money and risk of the income stream compound discount basis.
It was noted that because of the instructions given to Mr Lytras, he was to assess the plaintiffs profit for lost profit purposes from 1 October 2022 onwards on a pre-owner’s remuneration basis.
Mr Otto undertook his loss profit calculations after deducting working owners’ remuneration actually paid by TLPL to Mr Grewal and Mr Singh.
It is a factual matter for the court as to which basis or approach as to the treatment of owners’ remuneration and the loss profit calculation is correct.
The experts agreed that in the event the court did not find the factual instructions provided to Mr Lytras to be correct, it would need to be satisfied the amounts paid to

Transcript day 7 page 6.25.
Transcript day 7 page 7.7.
Transcript day 7 page 7.45.
Transcript day 7 page 8.20.
Transcript day 7 page 8.
Transcript day 7 page 9.11.
Transcript day 7 page 10.45.
Transcript day 7 page 11.20.
Transcript day 7 page 12.30.
Transcript day 7 page 14.
Exhibit 25.

Mr Grewal and Mr Singh after 1 October 2022 were for gainful employment in the Tweed Heads franchise and not a distribution of the franchise’s profits.

The second primary difference between the experts is the discount rate applied to future loss profit cash flows.

CONCLUSION

The measure of damages for breach of contract is the damages that will be awarded to put the party in the position they would have been had the contractual obligation been performed.⁷⁶⁹ With respect to compensatory damages for breaches of the consumer law, one must compare the position the plaintiff would have been in had the contravention not occurred as compared to his present position.⁷⁷⁰
Whichever approach is taken to, the result is similar here.
In my opinion on all the evidence, Mr Singh and Mr Grewal were not working 100 per cent of the time for the Tweed store. I have determined this for the following reasons:
(a)Both Mr Singh and Mr Grewal were involved with one other store each. I find that they were involved in the management of those stores.
(b)There is the Google timeline of Mr Grewal which shows he spent much time at Mermaid Beach and this was during the startup period.
(c)There is the Google review evidence showing that Mr Grewal was working also at Beenleigh. I consider one has to be hands-on at the stores.
(d)There is the fact that there are two other staff members Kelly and Andrina. This is consistent with Mr Singh and Mr Grewal constituting one more staff member and not two.
(e)There was the evidence of Ms Garratt that Mr Grewal did work for the other stores at Tweed Heads.
(f)I note that as at 7 September 2023 Mr Grewal signed a letter with P & S Beenleigh letterhead.⁷⁷¹
(g)I form the clear view that Mr Singh and Mr Grewal are using the Tweed heads store to pay themselves a wage for all of the stores (most likely because this is the store the subject of this dispute).
Bearing in mind there were two other staff members and doing the best I can with the information available, I consider that 66 per cent of the wages to them was an equity payment and 33 per cent was a wage.
I have also reached this conclusion because I consider that Mr Grewal and/or Mr Singh were doing considerable work for Tweed Heads and Mermaid Beach from 1

Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17; (2024) 98 ALJR 719 at [6] and [60];

Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3; (1986) 160 CLR 1 at p 11-12.

Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 at [42].
Exhibit 1 page 965.

July 2022; Tweed Heads, Mermaid Beach and Beenleigh from 1 December 2022 and Tweed Heads; Beenleigh, Mermaid Beach and Southport from April 2024.

Therefore, there should be a 66 per cent add back to determine true profit to the owners.
I now turn to the issue of discounting. The difficulties with the approach to discounting were discussed by the High Court in Commonwealth v Amman Aviation Pty Ltd⁷⁷² where various approaches by the members of the court were taken. In this case bearing in mind the possibility the agreement may have collapsed for other reasons and other contingencies I consider the amount of damages should be discounted in this matter.
I preferred Mr Otto’s evidence that the discount rate should be greater for contingencies (such as illness, the business closing earlier than it otherwise would, loss of sales, economic downturn etc) but I did not consider it should be as high as 15 per cent, in light of the global effect and the security of the income stream as Mr Lytras said in his evidence.
I conclude that the damages should be discounted by 10 per cent.
Therefore, I assess the loss to the plaintiff as 66 per cent of $843,060.⁷⁷³ This is a sum of $556,419.60.

ORDERS

1.I declare that the defendant breached the Joint Venture Agreement.
2.I declare the agreement dated 18 August 2022 is void.
3.Alternatively to Order 2, pursuant to section 237 of the Australian Consumer Law I set aside the agreement dated 18 August 2022.
4.I find the defendant engaged in unconscionable conduct contrary to section 20 of the Australian Consumer Law
5.I assess the plaintiff’s damages arising from the breaches of contract or for breaches of the Australian Consumer Law to be $556,419.60.
6.I find that the defendant engaged in oppressive conduct within the meaning of that term contained in section 233 of the Corporations Act 2001 (Qld).
7.I will hear the parties on further orders to be made in light of my findings.
8.I will hear the parties on the question of costs.

[1991] HCA 54; (1991) 174 CLR 64. See discussion in Cessnock City Council v 123 259 932 Pty Ltd
[2024] HCA 17; (2024) 98 ALJR 719 at [144].
See page 13 of Exhibit 25.