Re Geelong Quarries Pty Ltd - [2022] VSC 528

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2021 03781

IN THE MATTER OF GEELONG QUARRIES PTY LTD (ACN 129 611 025)

BETWEEN:

ANTHONY PETER HOARE	Plaintiff
v
MATHEW CHARLES HOARE & ANOR (According to the Schedule of Parties)	Defendants

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JUDGE:	Button J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 September 2022
DATE OF JUDGMENT:	8 September 2022
CASE MAY BE CITED AS:	Re Geelong Quarries Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 528

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INJUNCTIONS – Interlocutory injunction – Application for interlocutory injunction to restrain company directors from holding a meeting to vote to terminate an agreement and conduct a tender process for quarrying services – Whether there is a prima facie case – Whether the balance of convenience favours granting the interlocutory injunction – Where the proper plaintiff in an oppression proceeding has not been joined to the proceeding – Where there are multiple proceedings and plaintiff has foreshadowed a consolidation application – Where balance of convenience favours granting the interlocutory injunction – Application granted upon undertakings.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	T North QC C Gobbo	Colin Biggers & Paisley
For the First Defendant	P Bick QC P Caillard	Bowman & Knox
For the Second Defendant	R Greenberger	Wightons Lawyers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The interlocutory application...................................................................................................... 1
Affidavits relied on....................................................................................................................... 2
Proceedings between the siblings............................................................................................... 3
The Family Trusts and the Will................................................................................................... 5
Quarrying operations: GQ and HB............................................................................................ 8

The parties’ key contentions.......................................................................................................... 10

Legal principles and test to be applied........................................................................................ 14

Consideration.................................................................................................................................... 15

Urgency: does the status quo need to be changed?............................................................... 15
Prima facie case........................................................................................................................... 16
Failure to name ET as plaintiff......................................................................................... 16
Whether matters identified by Anthony as serious questions to be tried arise in this proceeding.............................................................................................................. 17
Conclusions on prima facie case...................................................................................... 23

Balance of convenience and the lesser risk of injustice......................................................... 26

Relief................................................................................................................................................... 28

Postscript............................................................................................................................................ 30

HER HONOUR:

Introduction
The interlocutory application

By summons dated 23 August 2022, the plaintiff (Anthony) sought interlocutory injunctions against the defendants (the Summons). The first defendant (Mathew) is Anthony’s brother, and the second defendant (Kim) is Anthony’s sister. I will refer to them by their first names as Anthony and Mathew have the same surname (Hoare).

Each of Anthony, Mathew and Kim are presently directors of Geelong Quarries Pty Ltd (GQ). Each of the siblings currently holds five shares in GQ, through controlled entities, H4MC Pty Ltd (H4MC) in Mathew’s case, ET Investments (Vic) Pty Ltd (ET) in Anthony’s case, and Markee Custodians Pty Ltd (Markee) in Kim’s case.

While somewhat wider in its terms, the Summons was directed at preventing a meeting of the board of GQ from proceeding. The meeting was to have been held on 18 August 2022.[1] The board meeting was called by Mathew to consider terminating the informal quarrying services agreement between GQ and an entity effectively controlled by Anthony, Hoare Bros Pty…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] VSC 528
Decision Date: 8 September 2022

CaseChat Overview and Summary

Geelong Quarries Pty Ltd sought an interlocutory injunction to prevent its directors from holding a meeting to vote to terminate an agreement and conduct a tender process for quarrying services. The application was made in the Supreme Court of Victoria and the court had to decide whether there was a prima facie case for the injunction and whether the balance of convenience favoured granting it. The case involved multiple proceedings, and the plaintiff had foreshadowed a consolidation application. The court held that there was a prima facie case for the interlocutory injunction and the balance of convenience favoured granting it. The court also noted that the proper plaintiff in an oppression proceeding had not been joined to the proceeding.

The court considered the merits of the case and held that the plaintiff had made out a prima facie case for the interlocutory injunction. The court found that the directors' proposed actions would cause irreparable harm to the plaintiff and that there was a serious question to be tried on the merits. The court also considered the balance of convenience and found that it favoured granting the interlocutory injunction. The court noted that the directors' proposed actions would cause significant harm to the plaintiff and that the plaintiff had not been joined to the proceeding as the proper plaintiff in an oppression proceeding. The court also considered that there were multiple proceedings and that the plaintiff had foreshadowed a consolidation application.

The court granted the application for an interlocutory injunction upon certain undertakings being given by the plaintiff. The court held that the balance of convenience favoured granting the interlocutory injunction and that the plaintiff had made out a prima facie case for the injunction. The court also noted that the proper plaintiff in an oppression proceeding had not been joined to the proceeding and that there were multiple proceedings and a consolidation application had been foreshadowed. The court ordered that the directors of Geelong Quarries Pty Ltd be restrained from holding a meeting to vote to terminate an agreement and conduct a tender process for quarrying services until further order of the court. The court also ordered that the plaintiff give certain undertakings before the interlocutory injunction would be granted.

Orders