Re Pickwick 1A Facilities Services Pty Ltd
[2025] VSC 645
•17 October 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
COMMERCIAL COURT
CORPORATIONS LIST
S ECI 2025 01586
IN THE MATTER of PICKWICK 1A FACILITIES SERVICES PTY LTD (ACN 621 907 248)
BETWEEN:
| PICKWICK GROUP PTY LTD (ACN 010 287 993) | Plaintiff |
| - and - | |
| PICKWICK 1A FACILITIES SERVICES PTY LTD (ACN 621 907 248) | Defendant |
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JUDGE: | Hetyey AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 September 2025, further material received 15 September 2025 |
DATE OF JUDGMENT: | 17 October 2025 |
CASE MAY BE CITED AS: | Re Pickwick 1A Facilities Services Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2025] VSC 645 |
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CORPORATIONS – Corporations Act 2001 (Cth) – s 461(1)(k) – Winding up on just and equitable ground – Company established as Indigenous joint venture – Failure of main object of company – Irretrievable breakdown in relationship of trust and confidence between shareholders – Lack of confidence in conduct and management of affairs of company – Deadlock – Dysfunction of board of directors – Financial position of company – Where company reliant on ongoing financial assistance from minority shareholder and applicant for winding up – s 467(4) – Whether other remedy available – Relative justice of winding up remedy.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D McAloon | Maddocks |
| No appearance for the Defendant | ||
| Mr A Budd and Ms C Barney as interested persons | None | Self-represented |
TABLE OF CONTENTS
Introduction
Background
JV agreement
Shared Services Agreement
Supply Nation certification
Change of ownership of company shares
Correspondence, meetings and other events
Bank account suspension
Procedural history
Statutory provisions and legal principles
Standing to make winding up application
Failure of main object of company
Breakdown in relationship between shareholders
Lack of confidence in conduct and management of affairs of company
Deadlock
Dysfunction of board of directors
Current financial position of company
Whether less drastic remedy available
Relative justice of winding up
Conclusion
HIS HONOUR:
Introduction
The defendant, Pickwick 1A Facilities Services Pty Ltd (‘Pickwick 1A’ or ‘company’) was established on 26 September 2017 as an incorporated joint venture to create a facilities services and recruitment business that would accord with the Australian Government’s Indigenous Procurement Policy; a policy designed to stimulate Indigenous entrepreneurship and business development and provide Indigenous Australians with opportunities for economic participation. The company employs 16 people[1] and is currently party to approximately 40 client contracts under which the company provides its services, including general cleaning, pest control, waste management and disaster recovery services.
[1]Twelve are hired on a permanent basis, including the company’s general manager, and the remaining four on a casual basis.
At the time of commencement of this proceeding on 26 March 2025, the current directors of the company were: Aunty Christine Konomie Barnie, a Woppaburra Aboriginal Elder of the Dharumbal nation,[2] who was appointed on 15 July 2020; Alton Robert Budd, who was appointed on 1 December 2023; and Helina Shanti Solomon, who was appointed on 1 June 2021.[3] Ms Solomon is also a director of the plaintiff, Pickwick Group Pty Ltd (‘PWG’ or ‘plaintiff’). Aunty Christine is also the company secretary and board chairperson. She holds 51 of the company’s 100 ordinary shares and PWG holds the balance. Aunty Christine describes the company as a ‘First Nations joint venture’, with herself and Mr Budd as First Nations board members.
[2]Without any intended disrespect, I will refer to Christine Konomie Barnie as Aunty Christine in recognition of her status as an Aboriginal elder.
[3]The circumstances of Ms Solomon’s appointment as director are now the subject of dispute.
In this proceeding, the plaintiff seeks orders pursuant to s 461(1)(k) of the Corporations Act 2001 (Cth) (‘Act’) that the company be wound up on just and equitable grounds and liquidators be appointed. In broad terms, the plaintiff alleges the joint venture has been terminated and that it can no longer support Pickwick 1A’s operations given the company’s ongoing losses and apparent inability to become a self-sufficient business. The plaintiff also refers to a deadlock in the management of the company and a breakdown in the relationship between its shareholders.
Aunty Christine and Mr Budd (together, ‘interested persons’), resist the plaintiff’s application. They contend the plaintiff is seeking to force a winding up of the company in contravention of a Joint Venture Agreement dated 16 November 2017 (‘JV agreement’) and a Shared Services Agreement dated 15 May 2019 (‘SSA’). They also oppose a winding up because PWG has allegedly provided misleading financial information and caused monies to be removed from the company’s account. Mr Budd also says he and Aunty Christine have objected to the winding up application ‘under duress’ because they have been denied payment of their directors fees for three months and cannot afford legal representation.
Background
JV agreement
The original joint venturers included PWG, Sylvanous Walton Johns and Carolyn Ann Malone, each of whom executed the JV agreement. The JV agreement recites the parties ‘desire to own, operate and conduct a business venture together…[as] directors and shareholders of [Pickwick 1A]’.
Under cl 3.1 of the JV agreement, the business of the joint venture was to comprise the following two core activities:
(a) Social aspect namely running programmes to make work ready potential job applicants.
(b) Commercial aspect in winning work with which the job applicants can be employed.
Under cl 4.1, the terms were to be ‘open ended’ commencing on 26 September 2017 unless sooner terminated including by the mutual consent of the parties (cl 4.1.1) or the ‘acquisition by a party of all the Joint Venture interests of the other party’ (cl 4.1.5).
Under cl 8.3 of the JV agreement, PWG was the sole contributor of all cash and other resources to fund and operate the joint venture until it became ‘self-funding in the view of the Joint Venturers’. The advance of funds from PWG to the company to maintain the company’s cashflow has been recorded as a loan in the financial statements of the company and of PWG (‘cashflow loan’). The quantum of the cashflow loan has also been recorded in a loan ledger maintained by PWG (‘loan ledger’). In accordance with cl 8.4 of the JV agreement, all loan contributions made under cl 8.3 are charged to Pickwick 1A at cost plus five per cent.
Ms Solomon has given evidence that the company’s finances have historically been managed by PWG’s finance team because the company does not have a finance or accounting team of its own. She deposes that where the PWG finance team identified the company had insufficient funds to meet its liabilities, funds would be transferred from a PWG bank account to the company’s bank account to enable it to satisfy its liabilities as and when they fell due. The advance of funds were then recorded as part of the cashflow loan and included on the loan ledger.
Shared Services Agreement
As noted, on or around 15 May 2019, PWG and Pickwick 1A executed the SSA. The recitals to the SSA record, among other things, that the parties seek to establish the scope of services rendered by PWG and Pickwick 1A to support the company’s operations in conducting its business and that PWG is willing to provide the company with technical and administrative support.
Clause 2.4 of the SSA states the agreement is to operate in conjunction with the JV agreement and cl 2.2 provides that unless terminated by agreement between the parties, the SSA ‘continues indefinitely’. Clause 3 of the SSA states that PWG agrees to provide Pickwick 1A with the requisite human capital to perform relevant commercial operations as required by legislative and client requirements for as long as is deemed necessary by both parties (cl 3.1); costs for relevant human capital resources borne by PWG will be accrued and billed to Pickwick 1A as an invoice for ‘support services’ (cl 3.2); Pickwick 1A will accrue all invoices and transfer them into an internal commercial loan account (i.e. the loan ledger) which will serve as an account of loan contributions made under cl 8 of the JV agreement (cl 3.3); and PWG will provision the effective loan facility through its internal funding and recover the loan amount, including interest expenses as detailed in cl 8 of the JV agreement (cl 3.4).
Clauses 4, 5 and 6 of the SSA further state that PWG will provide human resources, administrative, business development expertise, and corporate shared services functions to Pickwick 1A. As a matter of practice, PWG issues invoices for the value of these services. However, the invoices are not immediately paid by Pickwick 1A but accrue as a debt and are recorded on the loan ledger in addition to the cashflow loan.
Clause 8 of the SSA provides, among other things, that the company will promptly disclose to PWG all information reasonably required or requested by PWG relevant to the services provided and that PWG must make available to the company its auditable records detailing the cost of providing such services.
Supply Nation certification
On 30 August 2018, the company was registered as a supplier with ‘Supply Nation’ - a supplier diversity organisation that certifies whether a business or organisation is 50% or more Indigenous owned.[4] In or around 2019, it became necessary under the Australian Government’s Indigenous Procurement Policy for indigenous joint ventures to, among other things:
(a)be at least 50% Indigenous owned and controlled;
(b)be registered with, and certified through Supply Nation;
(c)develop a plan to build the skills and capacity of the Indigenous business partners; and
(d)develop an Indigenous workforce plan.
[4]According to its website, Supply Nation also manages Australia’s largest directory of verified Indigenous businesses and facilitates connections between Indigenous businesses and corporate and government members. See >
On 17 September 2019, the company was certified by Supply Nation as an Indigenous joint venture. Throughout 2020 to 2023, the company passed and retained its certified status. According to Aunty Christine, due to issues arising in the operation of the business, an audit by Supply Nation in 2024 was deferred but the company’s certified status remained.
Between 8 December 2021 and 17 October 2022, PWG and Pickwick 1A executed additional agreements titled ‘Indigenous Joint Venture: Skills and Capability Transfer Plan’ and ‘Indigenous Joint Venture: Indigenous Workforce Plan’.
Change of ownership of company shares
Pickwick 1A’s shareholding is made up of 100 ordinary shares fully paid at $1.00. At incorporation, PWG owned 49 shares, Mr Johns owned 26 shares, and Ms Malone owned 25 shares. On 21 April 2020, Mr Johns transferred his shares to Ms Malone. Then, on 30 August 2022, Ms Malone transferred her 51 shares to Aunty Christine. Accordingly, and as noted earlier, the current shareholders of Pickwick 1A are now Aunty Christine (as to 51 shares) and PWG (as to 49 shares).
PWG considers the JV agreement was terminated in accordance with cl 4.1.5 of the agreement as a result of Aunty Christine’s acquisition of Ms Malone’s 51 shares and the departure of Mr Johns and Ms Malone from the company. PWG says that despite the termination of the JV agreement, it has continued supporting Pickwick 1A through the provision of the cashflow loan and ‘back-office’ support.
Correspondence, meetings and other events
In late 2024, PWG determined that its funding of the company’s operations should cease as soon as possible. This decision was apparently made on the basis of an assessment by PWG that the company’s management was deadlocked and that the company was continuing to incur losses. From late 2024, the directors of PWG and Pickwick 1A have attended meetings and exchanged correspondence discussing the prospect of winding down the company’s operations. There appeared to be broad acceptance by the members of the board that the company should be wound down but they have failed to reach agreement on proposed resolutions to achieve that outcome. At the final hearing of this matter, Aunty Christine clarified that she and Mr Budd never opposed the winding down process but had sought to be included in it.
On 4 December 2024, there was a meeting of Pickwick 1A’s board which was attended by the directors, Aunty Christine, Mr Budd, and Ms Solomon, and the company’s general manager, Mr Robert Clark (‘4 December board meeting’). It was also attended by Mrs Inban Solomon and Dr Deva Solomon (both directors of PWG) and Mr Neil McLean[5] (the executive director and CEO of PWG). At the meeting, the prospect of a winding down of the company’s operations was discussed. On or around 20 January 2025, Aunty Christine sent a letter to PWG in which she disagreed with PWG’s proposal to wind down the company, stated that a proposed closure date of 31 January 2025 was unrealistic, and called for public examinations and a forensic audit of the company (’20 January letter’).
[5]In the material filed by the plaintiff and interested persons, Mr McLean’s name was also spelled ’Mr McClean’.
On or around 29 January 2025, Mrs Inbam Solomon caused a letter to be sent to Aunty Christine and Mr Budd formally notifying them of PWG’s intention to imminently withdraw funding from Pickwick 1A and requesting the convening of a meeting of directors on 13 February 2025 to consider a proposal for the winding down of the company’s operations (’29 January letter’). Aunty Christine responded by letter dated 7 February 2025, in which she stated, among other things, that she and Mr Budd had apparently held a meeting (on an unspecified date) at which they had used their ‘two to one majority to defer [PWG’s] call for a meeting’ (‘7 February letter’). She also said they ‘refute[d] [PWG’s] agenda for the call for a meeting’.
On 11 February 2025, PWG instructed its solicitors, Maddocks, to send a letter to Aunty Christine and Mr Budd asserting that the meeting referred to in the 7 February letter did not appear to have been called in accordance with the company’s constitution and that the meeting scheduled in the 29 January letter for 13 February 2025 had been validly called. The letter further noted that PWG would make application to the Court to have the company wound up if the resolutions proposed in the 29 January letter were not passed.
On 13 February 2025, a meeting was held remotely (via Microsoft Teams) in accordance with the request in the 29 January letter and attended by Aunty Christine, Mr Budd and Ms Solomon. None of the resolutions proposed by PWG to wind down Pickwick 1A were passed (‘13 February board meeting’).
On or around 20 February 2025, Aunty Christine sent an email to Ms Solomon ‘reconvening’ a meeting of the board apparently scheduled for the same day, together with a proposed agenda and minutes amending the resolutions proposed by PWG at the 13 February meeting (‘20 February email’). The amended resolutions relevantly stipulated that Pickwick 1A’s directors were to be involved throughout the winding down process and that Aunty Christine would be ‘the signatory to all agreed decisions that are made during this process’. PWG instructed Maddocks to respond the same day, stating that the proposed meeting was not validly called in accordance with the company’s constitution and again foreshadowing a formal Court application for the just and equitable winding up of the company on the basis that the prospect of an orderly winding down of the company did not appear possible.
On or around 27 February 2025, Aunty Christine sent an email to Ms Solomon calling for a further meeting to be held on 6 March 2025 to discuss the topic of PWG’s proposed winding down of the company, including the treatment of the company’s existing contracts with third parties (‘27 February email’). The proposed meeting did not take place due to the occurrence of Cyclone Alfred in Brisbane and was postponed to 13 March 2025. The board met on that day via Microsoft Teams (‘13 March board meeting’). Once again, the directors of Pickwick 1A failed to reach agreement in relation to a process for the orderly winding down of the company. This proceeding was then commenced by the plaintiff on 26 March 2025.
On 14 August 2025, Aunty Christine and Mr Budd called for and conducted a meeting of the company’s directors, during which they alleged that a number of former directors of the company remained as authorised signatories on the company’s Commonwealth Bank of Australia (‘CBA’) account and purported to pass a resolution to remove Ms Solomon as a director on the basis of an alleged conflict of interest (‘14 August board meeting’). Following the meeting, various correspondence passed between the interested persons and Maddocks concerning Ms Solomon’s purported removal and the circumstances of her original appointment to the company’s board. PWG does not accept the resolution for Ms Solomon’s removal was effective.
Bank account suspension
On 20 August 2025, Ms Solomon called CBA to confirm who had access to, and who were the authorised signatories of, the company’s account. During this call, Ms Solomon explained to the CBA representative the nature of this proceeding and the circumstances of the 14 August board meeting. She was informed by CBA that on 12 August 2025 the interested persons had attended a CBA branch and sought to make changes to the company’s account. She was also advised that CBA would suspend the company’s account in line with its internal governance policies regarding director disputes. CBA subsequently advised Ms Solomon via email that to remove the suspension, ‘an agreement must be met in branch with all directors (as per ASIC) in attendance’.
On 21 August 2025, Maddocks wrote to the interested persons setting out a proposal to lift the account suspension. The proposal was not responded to. On 27 August 2025, when the PWG finance team attempted to process the company’s timesheets and payroll in the ordinary course, CBA declined all outgoing payments as a consequence of the account suspension. Accordingly, the company’s employees had not been paid at the time of the final hearing of the matter on 8 September 2025.
Between 28 August 2025 and 2 September 2025, further correspondence passed between the plaintiff and the interested persons concerning the frozen company account and the purported removal of Ms Solomon as director; however, those issues could not be resolved.
Procedural history
On 26 March 2025, the plaintiff commenced this proceeding by way of originating process seeking the winding up of the company under s 461(1)(k) of the Act.
At a directions hearing on 5 May 2025, Aunty Christine and Mr Budd appeared via audio-visual link and were granted leave to be heard as interested persons in the proceeding pursuant to r 2.13(1) of the Supreme Court (Corporations) Rules 2023 (Vic).
In the period since the proceeding was commenced, various documents relating to the company’s financial position have been provided to the interested persons, including bank statements, financial statements, and the loan ledger relating to the cashflow loan and other amounts owed by the company to PWG. In accordance with an order made in the proceeding on 10 June 2025, the interested persons raised, and PWG responded to, questions arising from the loan ledger between the companies.
On 28 July 2025, PWG and the interested persons attended a Court-ordered mediation. Regrettably, they were unable to resolve the dispute. The matter then proceeded to final hearing on 8 September 2025.
At the commencement of the hearing, I made orders under s 467(1)(c) of the Act to deal with the impasse between PWG and the interested persons about the company’s suspended CBA account. The orders specified the signatories to the account and established a regime for dealing with the payment of ordinary business expenses from the account, pending the final determination of the matter.
In support of its application, PWG relies upon four affidavits of Ms Solomon affirmed on 25 March 2025, 27 June 2025, 4 September 2025 and 15 September 2025, respectively. The last of those affidavits was filed after the hearing to provide the Court with more recent financial information concerning the company. The plaintiff also relies on written submissions dated 18 August 2025 and a consent to act as joint and several liquidators given by each of Adrian Robert Hunter and Mitchell Herrett on 3 September 2025.
In resisting PWG’s application to wind up the company, the interested persons rely upon the following material:
(a)affidavits of Mr Budd affirmed 28 April 2025 and 14 May 2025 (the latter being a revised version of his earlier affidavit);
(b)affidavits of Aunty Christine affirmed 30 April 2025 and 14 May 2025 (the latter being a revised version of her earlier affidavit);
(c)submission of Mr Budd filed 1 September 2025 (including attachments); and
(d)further material received from the interested persons on 8 September 2025 and 15 September 2025.
None of the persons who swore or affirmed affidavits in the proceedings were cross-examined at the final hearing.
Statutory provisions and legal principles
Section 461(1) of the Act relevantly states:
The Court may order the winding up of a company if:
…
(k) the Court is of opinion that it is just and equitable that the company be wound up.
Pursuant to s 462(2) of the Act, a winding up order under s 461(1)(k) may be sought by the relevant company, a creditor of the company, or a contributory.
Section 467(1)(c) of the Act provides that on hearing a winding up application, the Court may ‘make any interim or other order that it thinks fit’.
The categories of facts and classes of conduct that enliven the just and equitable jurisdiction under s 461(1)(k) are neither rigid nor closed.[6] The Court must evaluate the factual matrix of the dispute to be satisfied whether sufficient reason exists to wind up the company.[7] In Re JSSP Holdings Pty Ltd,[8] I identified the following matters which inform the question of whether a just and equitable winding up order should be made:
[6]Ebrahimi v Westbourne Galleries Ltd [1973] AC 360, 379 (Lord Wilberforce). See also Australian Securities and Investment Commission v Kingsley Brown Properties PtyLtd [2005] VSC 506 [96] (Mandie J); Australian Securities and Investment Commission v Storm Financial Ltd (2009) 71 ACSR 81, 109 (Logan J); Australian Securities and Investments Commission v Letten (No 10) [2011] FCA 498 [12] (Gordon J) (‘ASIC v Letten’); Re Dawning Investments Pty Ltd (2022) 68 VR 226, 242 (‘Re Dawning Investments’).
[7]ASIC v Letten [14].
[8][2021] VSC 33 [14] (‘Re JSSP Holdings’).
(a) a failure of the main object of the company’s formation;[9]
[9]Re Tivoli Freeholds Ltd [1972] VR 445. See also Re Dawning Investments 274 .
(b) a deadlock in the management of the company;[10]
(c) a breakdown in the relationship between the shareholders;[11]
(d) a lack of confidence in the conduct and management of the affairs of the company;[12]
(e) where there has been fraud, misconduct or oppression in relation to the affairs of the company;[13]
(f)serious concerns about the company’s compliance with its statutory obligations,[14] including the filing of tax returns;[15]
(g)where there have been breaches of the Corporations Act, including breaches of directors’ duties or an inadequacy of accounts or recordkeeping;[16]
(h) questions of commercial morality in the conduct of the company’s affairs;[17] and
(i) a risk to the public interest that warrants protection.[18]
[10]Re Yenidje Tobacco Company Ltd [1916] 2 Ch 426; Johnny Oceans Restaurant Pty Ltd v Page [2003] NSWSC 952; Clarke v Bridges [2004] FCA 394; Booker v You Run the Business Pty Ltd [2008] FCA 1762. See also Re Dawning Investments 274–275 and Re Admiral Cove Pty Ltd [2023] VSC 537 (‘Re Admiral Cove’).
[11]Nassar v Innovative Precasters Group Pty Ltd (2009) 71 ACSR 343. See also Re Dawning Investments 252.
[12]Loch v John Blackwood Ltd [1924] AC 783, 788; Australian Securities and Investments Commission v ABC Fund Managers (2001) 39 ACSR 443, 469 (Warren J) (‘ASIC v ABC Fund’).
[13]Macquarie Bank Ltd v TM Investments Pty Ltd (2005) 223 ALR 148, 151 (Barrett J); Macquarie University v Macquarie University Union Ltd (No 2) [2007] FCA 844. See also B H McPherson, ‘Winding up on the “Just and Equitable” Ground’ (1964) 27(3) Modern Law Review 282, 298–9.
[14]Australian Securities and Investments Commission v Barrack Mortgage Managers Pty Ltd [1999] NSWSC 272; Australian Securities and Investments Commission v Drury Management Pty Ltd [2004] QSC 068.
[15]Entwisle v Minken Pty Ltd (2013) 97 ACSR 361, 364 (Elliott J).
[16]Australian Securities and Investments Commission v AS Nominees Ltd (1995) 62 FCR 504, 532–533 (Finn J); ASIC v ABC Fund 469; Australian Securities and Investments Commission v International Unity Insurance Pty Ltd [2004] FCA 1059 [137], [140]–[142] (Lander J).
[17]Commonwealth Deputy Commissioner of Taxation v Casualife Furniture International Pty Ltd (2004) 9 VR 549, 580, 582 (Hansen J).
[18]ASIC v ABC Fund.
Additionally, the Court may intervene where a company is in a state of corporate paralysis,[19] which may be regarded as a species of deadlock or a distinct and unique factor justifying a winding up order.[20]
[19]Re Vision Image (Aust) Pty Ltd Cheng v Yeo [1998] WASC 38; CIC Insurance Ltd v Hannan & Co Pty Ltd (2001) 38 ACSR 245; Great Australian Resources Pty Ltd; Re Platinum Mining Ventures Ltd [2011] FCA 1472; Re Admiral Cove [57]; Re Sun Sign Pty Ltd [2025] VSC 431.
[20]Re Admiral Cove [48].
In Read-Zorn v Origin Distillers Group Pty Ltd,[21] Jackman J also observed:[22]
Winding up on the just and equitable ground has been recognised as applicable in a number of conventional categories, such as where the substratum of the company has failed, where management of the company’s affairs is in deadlock or disagreement, where the company’s formation involved fraud, where there has been misconduct on behalf of the company’s directors, where there is a constitutional or administrative vacuum in the company’s management, and where there is a lack of fairness, confidence and commercial morality in the company’s affairs…
[21][2023] FCA 280.
[22]Ibid [19], citing Catombal Investments Proprietary Limited [2012] NSWSC 775 [19] (Brereton J).
As Dodds-Streeton JA explained in Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd:[23]
Winding up is the characteristic remedy in circumstances where a working relationship predicated on mutual co-operation, trust and confidence has broken down, whether resulting in deadlock or otherwise. Equity would not ordinarily order the continuation of such an association where it would be a futility, would require continuing supervision or would be tantamount to specific enforcement of a contract of personal services.[24]
[23](2008) 66 ACSR 325.
[24]Ibid 341 [119] (Ashley JA agreeing at 327, Forrest AJA agreeing at 353).
In determining the relative justice of a winding up, the Court will balance the respective interests of all parties potentially affected by it,[25] together with the broader public interest.[26] Further, in the exercise of its discretion, the Court will also have regard to the financial position of the company and the availability of any alternative and less drastic remedy.[27] As Sifris J (as his Honour then was) said in Exton v Extons:[28]
Courts are ‘extremely reluctant to wind up a solvent company’…[29] As the Court of Appeal has observed, ‘[i]t is well accepted that the winding up of a solvent and flourishing company should be a last resort’.[30] Courts will consider whether any other relief would be preferable to a winding up order.[31]
[25]Re G Jeffrey (Mens Store) Pty Ltd (1984) 9 ACLR 193, 201; Re Docklands Chiropractic Clinic Pty Ltd [2020] VSC 364 [37]–[42] (Hetyey AsJ); Re JSSP Holdings [15].
[26]Re Walter L Jacob & Co Ltd (1988) 5 BCC 244, 251 (Nicholls LJ); Australian Securities and Investments Commission v AS Nominees Ltd, 530–1; Re JSSP Holdings [16].
[27]See Exton & Anor v Extons Pty Ltd (2017) 53 VR 520, 545 (Sifris J); Re Wyndham Park Estate Pty Ltd [2019] VSC 92 [40]–[42] (Sifris J).
[28](2017) 53 VR 520, 545. See also Re Dalkeith Investments Pty Ltd (1984) 9 ACLR 247.
[29]International Hospitality Concepts Pty Ltd v National Marketing Concepts Inc[No 2] (1994) 13 ACSR 368, 372 (Young J).
[30]French v Smith [2004] VSCA 207 [122] (Charles and Chernov JJA and Harper AJA); Sassine v Ray & Sons Construction Pty Ltd [2012] NSWSC 307 [21] (Black J).
[31]Turner v Ulicorp Pty Ltd [2007] NSWSC 206 [24] (Barrett J); Host-Plus Pty Ltd v Australian Hotels Association [2003] VSC 145 [67] (Hansen J).
Relatedly, s 467(4) of the Act is in the following terms:
Where the application is made by members as contributories on the ground that it is just and equitable that the company should be wound up or that the directors have acted in a manner that appears to be unfair or unjust to other members, the Court, if it is of the opinion that:
(a) the applicants are entitled to relief either by winding up the company or by some other means; and
(b) in the absence of any other remedy it would be just and equitable that the company should be wound up;
must make a winding up order unless it is also of the opinion that some other remedy is available to the applicants and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy.
Having set out the relevant statutory provisions and legal principles, I will now consider their application to the facts and circumstance of this case and determine whether, as a matter of discretion, Pickwick 1A should be wound up on the basis it is just and equitable to do so.
Standing to make winding up application
As a preliminary matter, it is clear that the plaintiff has standing under s 462(2) of the Act to make this application. The plaintiff is a contributory[32] of the company, holding 49% of the company’s shares. It is also a creditor of the company in respect of the amount outstanding on the cashflow loan (the quantum of which is discussed later in these reasons).
[32]The term ‘contributory’ is defined in s 9 of the Act and includes, in relation to a company (other than a no liability company), ‘a person liable as a member or past member to contribute to the property of the company if it is wound up’. In addition, s 231 of the Act essentially provides that a person is a member of a company if they are a member of the company on its registration or agree to become a member of the company after its registration and their name is entered on the register of members.
Failure of main object of company
As is apparent from the terms of the JV agreement and other documents I have referred to, the company was established as an incorporated joint venture with the object of conducting a facilities services and recruitment business that would promote employment opportunities for job applicants and operate in accordance with the Australian Government’s Indigenous Procurement Policy, as certified by Supply Nation (‘object’). In furthering this object, PWG agreed to contribute all cash and other resources to operate the joint venture until the joint venture became self-funding, in the view of the joint venture parties (cl 8.3 of the JV agreement). However, PWG is the only remaining joint venture party. The other joint venturers referred to in the JV agreement, being Mr Johns and Ms Malone, are no longer shareholders of the company.
By force of cl 4.1.5, the JV agreement was strictly terminated upon the transmission of Mr Johns’ shares to his fellow shareholder, Ms Malone, on 21 April 2020. The transfer constituted an ‘acquisition by a party of all the Joint Venture interests of the other party’ within the meaning of the provision. Alternatively, Ms Malone’s subsequent transfer of her shares to Aunty Christine on 30 August 2022 likely also resulted in the termination of the joint venture.
While Mr Budd says he and Aunty Christine do not have access to documents that would verify the termination of the JV agreement, the company’s Australian Securities and Investments Commission current and historical extract records the relevant share transfers which triggered the termination.
Although Aunty Christine refutes that the JV agreement has been terminated because PWG continues to promote its association with Supply Nation and the company has apparently retained its status as a certified Indigenous Joint Venture with Supply Nation, neither of these factors would appear to alter the effect of cl 4.1.5. Further, having regard to the language of cl 4.1.5, I do not accept Mr Budd’s contention that the termination of the JV agreement required the company’s agreement. A transfer of a joint venturer’s shares is enough to engage the clause. Further, the company was not itself a party to the JV agreement; it was the joint venture vehicle the subject of the JV agreement.
Notwithstanding the JV agreement is strictly at an end, the fact that PWG has since financially supported the company may arguably be construed as evidence suggesting the existence of a new, informal joint venture between PWG (as to 49%) and Aunty Christine (as to 51%), using the company as a joint venture vehicle. It is unclear whether any conduct by PWG has caused Aunty Christine to rely upon a mistaken assumption of fact about the existence of a joint venture, or whether Aunty Christine and PWG have conducted their relationship on the basis of a mutual assumption that they were parties to a joint venture, such that a departure by PWG from any such assumption would now operate to Aunty Christine’s detriment.[33] However, these are not matters that were argued before the Court in this proceeding and I make no findings in relation to them.
[33]I am referring here to considerations relevant to common law estoppel, including estoppel in pais (see Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641, 674-5 (Dixon J) and Waltons Stores (Interstate) Ltd v Maher (1986) 5 NSWLR 407, 420 (Priestley JA)) and estoppel by convention (see Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226, 244 (Gibbs CJ, Wilson, Brennan and Dawson JJ) and Moratic Pty Ltd v Gordon [2007] NSWSC 5 [32] (Brereton J)).
But even if one or both of Aunty Christine and PWG have proceeded on the basis of there being a current joint venture between them, or even if a new joint venture agreement exists as a matter of fact, the position remains that PWG has now expressed a clear and unequivocal intention to cease funding the company (as a joint venture or otherwise).
The question then arises as to whether the company is capable of independently conducting its operations without ongoing financial assistance from PWG. For reasons which I will set out later in this judgment,[34] it does not appear that it can. It follows that the object of the company is no longer attainable and the substratum of the company has failed. The fact that PWG has effectively decided to abandon the undertaking and withdraw future funding further supports the view that the object of the company can no longer be realistically achieved.[35]
[34]See paragraphs [75]-[82] of this judgment.
[35]See B H McPherson, ‘Winding Up on the “Just and Equitable” Ground’ (1964) 27 Modern Law Review 282, 290 citing Re Red Rock G.M. Co (1889) 61 L.T. 785; Re Wickham & Bullock Island Coal Co (1905) 5 S.R. (N.S.W.) 265, 370. See also Re Dawning Investments, 274 [159] (Hetyey AsJ).
Breakdown in relationship between shareholders
Having regard to the available evidence, I consider that there has been an irretrievable breakdown in the relationship between the shareholders of the company. Correspondence and meetings between Aunty Christine and Ms Solomon (as PWG’s nominated director on the board of the company) and/or other senior representatives of PWG, suggests a level of disharmony and an absence of mutual co-operation and trust between the company’s shareholders. By way of example, in her 27 February email, Aunty Christine made reference to PWG’s ‘stated intention to force a closure’ of the company. The deterioration in the relationship between the company’s shareholders is also evident from the records of meetings of the company’s board. A transcript of the 13 March board meeting records Aunty Christine as having asserted that there had never been a discussion about the closure of the company that involved its directors, no clear information had been provided, and the rights of the company’s directors had been ‘dislodged’ from them. Similarly, the minutes of the meeting record the following:
The call by the two Directors, Aunty Christine Barney and Alton Budd for a clear plan and a valid process pathway has been rejected and ignored by the Board of the Pickwick Group. The rejection of contract negotiations, contract entitlements contract novation and client requirements on P1A have been overruled amid an amateurish attempt to steamroll Directors, Aunty Christine Barney and Alton Budd into making a rash decision that would clear any obstacles for Pickwick Group to rubberstamp the enforced closure without impediment or responsibility by the Board of Pickwick Group Pty. Ltd.
I accept the plaintiff’s submission that the state of relations between the company’s shareholders reached a new low point at the 14 August board meeting during which Aunty Christine and Mr Budd purported to remove Ms Solomon as a director of the company. Given the company was incorporated as a joint venture vehicle and its ability to trade is dependent upon the financial and operational support of PWG as one of its shareholders and the only remaining original joint venture party, the significance of Ms Solomon’s purported removal as PWG’s nominated director cannot be understated.
Lack of confidence in conduct and management of affairs of company
The available evidence also suggests that the interested persons have lost confidence in the conduct and management of the affairs of the company. Both Aunty Christine and Mr Budd have repeatedly called for a forensic audit of the company’s transactions and a public examination of its affairs. For example, in Aunty Christine’s 20 January letter, she relevantly stated:
We have no option but to call for an external forensic audit of the Pickwick Group Pty Ltd., and Pickwick P1A. The call is for the external examination of all aspects of both companies, including financial information and fund transfers; accrual and debt adoption between companies; taxation returns for each ABN as well as details of events that could be classed as fraudulent behavior [sic] by past management personnel from the period of the establishment of Pickwick P1A Shared Agreement…
We need a truthful and open account of the financial position and the internal movement of funds between accounts over the period of the two ABNs. We have been given different financial figures across the period including the differing figures supplied by you during the last financial period. There is evidence of financial data that has been proved to be incorrect; data that has been admitted on financial documents supplied Pickwick P1A in the last year.
The request for an audit and a public examination process was reiterated in Aunty Christine’s 7 February letter. She made reference to funds having been transferred from the company’s bank account to PWG without her written approval or the oversight of the company’s board. In her affidavit of 14 May 2025, Aunty Christine identifies a series of payments made from the company’s account which she believes do not relate to company expenses and instead benefit PWG, namely $25,000 paid for rental of an office in Darwin set up by PWG and $55,000 in redundancy payments for PWG employees. She says the company has not received an adequate explanation from PWG for the removal of these funds and has accordingly requested that they be refunded. PWG apparently admitted the error in relation to the rent paid on PWG’s Darwin office and adjusted the relevant profit and loss statement and the loan ledger. It is unclear whether the other identified errors have been rectified by PWG. In addition, Aunty Christine deposes that throughout January to March 2025, amounts received by the company under its contracts with clients were allegedly withdrawn from the company’s account (presumably by PWG staff) and transferred to PWG without adequate explanation to the company.[36]
[36]According to the minutes of the 14 August board meeting, Ms Solomon confirmed at the meeting that all the persons who were authorised to transact from the company’s CBA account via the CommBiz App were herself, Mr McClean and Challan Waite of PWG.
Mr Budd says that an ‘anomaly’ of the arrangement between PWG and the company is that it allows for the ‘deployment of funds’ by the company to PWG without knowledge or authority of the company’s manager or board. He questions amounts taken from the company’s bank account, including in respect of ‘services rendered’ by PWG. In his written submissions, Mr Budd makes passing reference to ‘[l]arge round figure sums’ removed from the company’s bank account and returned the following day in full or reduced ‘without any explanation or invoice to allow the [c]ompany to examine or contest the veracity of the actions taken’. Mr Budd was unable to refer to any specific transactions meeting this description at the hearing. Following the hearing, he provided an annotated copy of the Court’s orders of 8 September 2025 in which he set out some further detail about such transactions.[37] While this is not itself sworn evidence, the 14 August board meeting minutes may add weight to Mr Budd’s concerns. When asked at the meeting why the cashflow loan debt owed to PWG by the company had ‘dropped alarmingly in the three months since the [a]pplication to windup was made in March 2025’ (dropping from around $800,000 to around $600,000), Ms Solomon allegedly responded, somewhat remarkably: ‘[w]e are doing anything we can to take out money from the [company] bank account’.
[37]In the annotated orders provided to the Court on 15 September 2025, Mr Budd relevantly submits:
We have determined that the sums of $40K; $30k; $50k; $4174k; $120k; $30k: $20k; $75k: and $60k; totalling $429,174 have been removed from the P1A account the past year with $127,658 been returned in the same period, leaving a nett of $301,515 removed to unnamed CommBiz accounts.
As indicated, the interested persons also raise concerns about the quantum of the cashflow loan by PWG to the company and the manner in which the loan ledger has been maintained. Mr Budd says that despite evidence given by Ms Solomon that PWG issues invoices to the company for the value of services provided under the SSA, there is no evidence of invoices or requests for payment by PWG for services connected to finance and company operations. He submits that the company has been charged for services ‘over and above’ what is contemplated by the SSA. In addition, Mr Budd expresses a lack of confidence in the reliability of the company’s financial statements and suggests different figures have been supplied by PWG via each of Mr McLean and the PWG finance team. He maintains that a forensic audit is the only means of interrogating the information contained on the loan ledger and to test the veracity of financial information made available to the company by PWG. He also expresses the view that a public examination is necessary to consider PWG’s finances and assess the movement of funds over the period of the joint venture.
While I do not make any positive findings about the interested persons’ various allegations concerning the financial management of the company and transfers from the company’s account, the fact that such allegations have been made illustrates the extent to which confidence has been lost. It also reveals the degree of mistrust and disharmony between the shareholders. If any of the allegations have substance, they may warrant further investigation by an independent liquidator.
I also note that Aunty Christine has raised broader governance concerns, including about the perceived diminished role of the company’s board and executive in the management of the company’s affairs. She deposes that in the 18 months preceding the making of her affidavit of 14 May 2025, Mr McLean and Ms Solomon have undertaken all decision making for the company, without the consent of the board. Whilst cll 10.1 and 10.2 of the JV agreement provided that the board will oversee and direct the activities of the company and have ‘final decision-making power in respect of the strategic direction of the Joint Venture’, Aunty Christine says these requirements have not been observed in practice. According to Aunty Christine, the company’s directors and general manager do not have financial delegation or the authority to incur company expenses. Further, she deposes that neither the company’s board, nor herself as chairperson of the board and 51 per cent shareholder of the company, have been given authority or delegation to make decisions or direct the activities of the company. Although cll 10.1 and 10.2 are strictly no longer operative because the JV agreement has been terminated, there is plainly a perceived lack of authority of the company’s board. In response to some of the interested persons’ allegations, Ms Solomon says the directors of the company are provided with monthly performance spreadsheets, showing revenue and costs, among other matters. While Aunty Christine and Mr Budd are apparently able to review those spreadsheets and ‘raise any items of concern’ with the PWG finance team, it seems this measure has not fully addressed the interested persons’ concern about a lack of financial authority or the ability to direct the activities of the company.
Lastly, the interested persons have made repeated complaints about the non-payment of directors fees. By way of response, Ms Solomon explains that under a direction by the PWG board to the PWG finance team in or around January 2025, payment of directors fees was allocated last priority (following payment of wages and superannuation, subcontractors and the cashflow loan, where possible). Whilst several months of outstanding directors fees were eventually paid by PWG during the course of the proceeding, the non-payment (or late payment) of directors fees has been a source of considerable consternation at board level.
Deadlock
The evidence shows there is a clear stalemate between the shareholders about the manner and timing of a voluntary and orderly winding down of the company. As already observed, after PWG raised the prospect of a winding down of the company at the 4 December board meeting, Aunty Christine expressed her disagreement with the proposal in her 20 January letter. Following PWG’s 29 January letter calling for a meeting of the board to consider the winding down of the company’s operations, Aunty Christine and Mr Budd purported to call their own meeting and defer the call for the meeting proposed by PWG. Aunty Christine insisted that as 51% owner of the company, any closure of the company should be on her terms. The validity of the interested persons’ meeting was challenged by PWG. In the 13 February board meeting, proposed resolutions for the voluntary winding down of the company could not be passed. Aunty Christine subsequently proposed alternative resolutions, demanding that she be ‘the signatory to all agreed decisions that are made during [the winding down] process’. At the 13 March board meeting, the directors were once again unable to reach any agreement about the orderly winding down of the company. Similarly, when the matter was later mediated on 28 July 2025, the shareholders of the company could not reach consensus about an agreed procedure for a winding down.
In order to voluntarily wind up a company under s 491 of the Act, a special resolution to that effect must be passed by 75 per cent of the company’s shareholders.[38] In this case, by virtue of the respective shareholdings of Aunty Christine (as to 51 per cent) and PWG (as to 49 per cent) and the ongoing disagreement between the shareholders of the company about the process and timing of its closure, I consider there is little, if any, prospect of a special resolution being passed.
[38]See s 250MA of the Act.
Another instance of a practical deadlock in the company’s affairs has arisen in relation to the use of the company’s bank account. As already detailed, due to the dispute between the shareholders of the company and the various interactions between CBA and each of the interested persons and Ms Solomon, CBA took the precautionary step of freezing the company’s account. Although the plaintiff’s counsel suggested at the hearing this was an instance of corporate paralysis, I don’t go so far as to describe the situation in those terms. The freezing of the company’s bank account is a symptom of a deadlock in the management of the company’s affairs. Because the interested persons and PWG cannot agree on a sensible arrangement for dealing with the company’s account, the Court was compelled to intervene at the final hearing of the matter and make orders specifying the signatories to the company’s account and establishing a regime for dealing with the payment of ordinary business expenses from the account, pending the final determination of the matter. It would be inappropriate for the Court to supervise aspects of the company’s financial management and governance on an ongoing basis.
Dysfunction of board of directors
It is apparent that the board of Pickwick 1A is beset by dysfunction and disagreement.
A common theme arising from the material relied upon by the interested persons is that their power and authority as directors of the company have been curtailed by PWG. The interested persons also claim that the affairs of the company have effectively been managed by representatives of PWG without recourse to the board of the company. They also believe Ms Solomon, as a director of both PWG and the company, has made operational decisions in relation to the company without the knowledge or approval of the other company directors. They maintain this constitutes a conflict of interest and a breach of the JV agreement.
I have already referred to a number of meetings of the company’s board which are the subject of dispute. In the case of the meetings referred to in Aunty Christine’s 7 February letter and 20 February email, there is significant doubt as to whether those meetings were called in compliance with the company’s constitution. In particular, it appears the requisite seven days’ written notice of those board meetings was not provided by either Aunty Christine or Mr Budd as directors in accordance with cl 24.2(b) of the company’s constitution.
There is a transcript of the 13 March board meeting, at which the topic of the company’s closure was discussed. The following terse and unconstructive exchange between the directors occurred:
Alton – so you’re not here as P1A director, you are here as someone taking orders from Maddocks lawyers?
Helina – your questions are directed to me as a PWG representative, very clearly, are they not?
Aunty Christine – you are a P1A director first and foremost.
Helina – I am, and I am answering the questions you have given me about PWG, you haven’t asked me any questions about P1A. If you need to ask these things about P1A, you need the operational people of P1A, like Rob. Instead, you are asking me these questions as a director and representative of PWG.
Aunty Christine – you are a director.
Helina – so don’t contradict yourself, my answers are in the same frame as you are asking them.
Aunty Christine – I am really enjoying this.
Helina – Good.
Aunty Christine laughs and moves onto “Will Pickwick Group cover the costs as required to manage the process of the forced closure, including the indemnity of P1A Board Members against any actions that may be taken by any party who may be affected in a negative manner because of the forced closure?” There is no reply, so she asks Helina if the question stumps her.
Helina – no, the answer will be the same, I don’t know why you wouldn’t have guessed that by now. I am also enjoying this.
Alton – Are we wasting our time then?
Aunty Christine – so there is not much interest in you being attending this meeting? Is that correct?
Helina – those are your words.
The 14 August board meeting at which Ms Solomon was purportedly removed as a director is also emblematic of the significant dysfunction that has arisen on the company’s board. At the meeting, the following relevantly occurred:
(a)Aunty Christine asked Ms Solomon if she had ever given any thought as to why Aunty Christine and other company directors did not have authority to access the company account, to which Ms Solomon replied in the negative. Aunty Christine stated that access to the company account was ‘lopsided’;
(b)Aunty Christine accused Ms Solomon of being in a position of conflict as a director of the company because she was also a director of PWG, did not have the ‘correct code of conduct’ to be a director of the company, was ‘not progressing indigenous people’, and had affirmed an affidavit ‘against’ the company’s board;
(c)in response, Ms Solomon suggested that Aunty Christine could write to PWG and ask that it replace Ms Solomon as its nominated director on the company’s board;
(d)Aunty Christine disputed the circumstances and legitimacy of Ms Solomon’s initial appointment to the company board; and
(e)Aunty Christine then proposed a resolution to remove Ms Solomon as a director of the company. Ms Solomon cautioned that such a resolution would be invalid because it was not permitted by the company’s constitution and that any resolutions had to be proposed in writing and circulated in advance. Nevertheless, Aunty Christine and Mr Budd then purported to vote in favour of, and pass the resolution for, Ms Solomon’s removal as director, together with a further resolution to remove Ms Solomon’s access to the company’s account.
In his written submissions, Mr Budd explained that the decision to remove Ms Solomon from the board was taken because of her alleged conflict of interest in making decisions for PWG on behalf of the company board and without the board’s consent and approval. At the final hearing of the matter, the interested persons also submitted there was no evidence of Ms Solomon being appointed to the company’s board in the first place. According to Mr Budd, he has been unable to obtain a copy of a ‘signed [b]oard document’ establishing Ms Solomon’s appointment on a particular date.
Regardless of the underlying reasons, the action taken by the interested persons to purportedly remove Ms Solomon as a director, so close to the final hearing of the matter, was openly hostile and ill-considered. Pickwick 1A’s constitution does not authorise or make provision for the removal of a director by way of a vote of the company’s other directors, whether by reason of conflict of interest or otherwise. Clause 22.2(a) of the constitution clearly states that the company may remove any director and appoint another director as a replacement. Further, cl 22.2(b) stipulates that such removal or replacement must be effected by ordinary resolution of the company. The meeting that took place on 14 August 2025 was plainly a meeting of directors (as confirmed by the minutes). It was not a meeting of the members of the company, given Mr Budd, who is not a shareholder, also voted. Putting to one side the question of whether Ms Solomon was validly appointed as a director in the first place (which is unnecessary to resolve in this case), it is difficult to see how her removal was valid in the circumstances. On any view, there is clear disagreement about the current composition of the board.
Current financial position of company
As previously explained, it is important to have regard to the financial position of the company in considering the appropriateness of a winding up order.
From its inception until 30 June 2024, the company recorded losses for each financial year of its operation, including net losses of -$222,473 for the financial year ending 30 June 2023 and either -$71,741.99 (as set out in Ms Solomon’s evidence) or -$2,069 (according to a profit and loss statement) for the financial year ending 30 June 2024. It has also consistently experienced a net deficiency of assets since its initiation, including -$828,260 for the financial year ending 30 June 2023 and -$830,330 for the financial year ending 30 June 2024. The lion’s share of its liabilities appear to relate to the outstanding cashflow loan made by PWG ($883,222 as at 30 June 2024).
A profit and loss statement to the end of February 2025 prepared by the PWG finance team recorded the company’s net profit as being $109,153. Despite this indicative figure, Ms Solomon suggests in her first affidavit that when the company’s annual financial statements for the financial year ending 30 June 2025 are prepared, she expects the company to report net losses (including substantial net accumulated losses) ‘on account of the [cashflow loan] and interest, taxes, depreciation, and amortisation’. Regrettably, these financial statements were not available at the time of the final hearing on 8 September 2025. Pursuant to the Court’s orders, PWG filed supplementary evidence exhibiting more recent management accounts for the entire 2025 financial year which suggest a net profit for the company of $140,202.19.
The same management accounts also indicate the company has an excess of liabilities over assets in the amount of -$690,127.76. Most of the company’s liabilities comprise the outstanding cashflow loan owed to PWG ($652,221.30), together with trade creditors ($159,658.09). A table prepared by the PWG finance team which summarises the company’s expected creditor, employee, and tax expenses to the end of September 2025 indicates overdue taxation liabilities of approximately $29,000, and other overdue creditor liabilities in the amount of almost $65,000. The total expected creditor payments required by the end of September 2025 are almost $209,000. However, as at 11 September 2025, the balance of the company’s bank account was only $108,908.27. Without additional cash reserves, the company will need to rely on PWG to meet those liabilities and thereby increase its debt to PWG.
Placing reliance on the company’s net profit figure of $109,153 as at February 2025, Aunty Christine believes the company is experiencing ‘a significant turnaround’. She maintains the company is ‘profitable, in a positive financial position and not insolvent.’ She also asserts there is minimal need for assistance from PWG. Similarly, Mr Budd deposes that information supplied by the company’s general manager suggests the company ‘is solvent and able to operate without the injection of funds from [PWG] in and after [28 January 2025]’, and that the company ‘could operate as a self-sufficient Indigenous corporation’. Unfortunately, there is nothing to substantiate these claims, including in the form of cash flow forecasts.
Doing the best I can with the information available, it would appear that while the company may have recently become cashflow positive, it is technically balance sheet insolvent, given its liabilities well exceed its assets. Any recent improvement in the company’s profitability must also be considered in light of the company’s negative equity on its balance sheet. At the same time, there is no clear evidence before the Court to indicate the company can profitably conduct its business, in the intermediate or long term, without ongoing financial assistance from PWG. Without such support, the company will likely be insolvent and unable to meet its liabilities as and when they fall due.
The company also remains indebted to PWG. While Ms Solomon has given evidence that the total amount owed to PWG in relation to the cashflow loan and services debt was $715,221.30 as at 14 March 2025, more recent financial documents for the company suggest the total debt owed to PWG was $652,221.30 as at 30 June 2025. Mr Budd submits the real debt owed to the plaintiff is ‘in the vicinity of $250,000 to $300,000’ which he says is based upon his reading of the company’s bank statements; however, there is no evidence before the Court to support these calculations. Regardless of the precise quantum of the debt owed to the plaintiff, it is beyond dispute that the company is indebted to the plaintiff for a significant sum. Given the JV agreement is at an end, and the SSA is ostensibly silent on the manner and timing of repayment of the cashflow loan, it may well be the case that the cashflow loan is payable on demand.[39] Were PWG to make a demand for the immediate payment of the loan, Pickwick 1A would have no capacity to meet that demand.
[39]See Ogilvie v Adams [1981] VR 1041, 1043 (Fullagar J); Re Hayvio Pty Ltd [2011] NSWSC 1125, [10]-[16] (Ward J) and the discussion in the text by Peter Agardy, The Loan Book – An analysis of the unsecured loan: Elements, proof and recovery (LexisNexis, 2nd ed, 2025) [13.1]–[13.18].
It follows that the financial position of the company does not constitute a restraint on the exercise of the Court’s discretion to order a winding up.
Whether less drastic remedy available
As earlier noted, s 467(4) of the Act essentially provides that even if the Court is satisfied of circumstances that justify a winding up on the just and equitable ground, it must consider whether some ‘other remedy’ is available and whether an applicant is acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy.
At the Court-ordered mediation, the plaintiff and interested persons were unable to resolve the dispute. No open offer has been made by either shareholder to acquire the shares of the other. Nor is there any compelling evidence before the Court of a likely sale of the company’s business to any third party. While Aunty Christine deposes that there have been ‘several interested parties in the sale of the [c]ompany’, her evidence lacks any specific detail. Given the absence of any other remedy, and having regard to the underlying facts and circumstances which support a winding up, I do not consider the plaintiff is acting unreasonably in seeking the relief it does.
For completeness, I do not accept the submission by the interested persons that a winding up order should be refused because PWG has allegedly breached the terms of the JV agreement. As I have already found, the JV agreement came to an end some time ago.
Relative justice of winding up
I observe there is real uncertainty in relation to the ongoing operation of the SSA in circumstances where the JV agreement is no longer on foot. According to cl 2.4 of the SSA, the SSA is to operate in conjunction with the JV agreement, whilst cll 3.2, 3.3 and 3.4 of the SSA assume that PWG will provide ongoing assistance to Pickwick 1A on the basis that the JV agreement remains in operation. While cl 2.2 states the SSA will continue indefinitely unless terminated by agreement of the parties, the SSA makes no provision for what is to happen if the JV agreement has already been terminated (as is the case here). It would be unjust and inequitable for the Court to effectively insist on PWG indefinitely funding the company in circumstances where the JV agreement is at an end and the relationship between the shareholders is fundamentally unviable. Accordingly, I accept PWG will suffer significant prejudice if the Court does not order the winding up of Pickwick 1A.
In my view, this significant prejudice outweighs the prejudice and inconvenience that the interested persons and others will suffer if a winding up order is made. While Aunty Christine may lose the value of her equity in the company, in light of the company’s precarious financial position, it is unclear whether her shares hold any real value at this time. While a winding up order will mean that the interested persons will no longer be able to perform their role as directors,[40] company employees will lose their employment, and the company’s clients will no longer receive contracted services, the financial sustainability of the company is doubtful in any event. Were PWG to unilaterally decide to cease funding, the company would likely be insolvent and would potentially be wound up by a creditor in the ordinary course.
[40]Section 198G(1) of the Act provides that while a company is under external administration (which includes liquidation), an officer of the company must not perform or exercise a function or power of that office.
Similarly, I do not consider that the broader public interest of Indigenous entrepreneurship and economic participation, as recognised in the Australian Government’s Indigenous Procurement Policy, should militate against the winding up of the company. It remains the case that the object of the company can no longer be achieved and its financial future is uncertain.
Conclusion
The evidence, when considered in totality, leaves the Court with a distinct impression of the company’s present position. Given the underlying JV agreement is at an end and PWG has declared it cannot, or will not, financially support the company, the purpose for which the company was established can no longer be practically achieved. It is clear that the working relationship between the current shareholders of Pickwick 1A has irretrievably broken down and that there is an absence of trust and confidence between them. The board has been riven by dysfunction and there is even disagreement about its actual composition. Each of these factors, separately and taken together, support the winding up of the company on the just and equitable ground under s 461(1)(k) of the Act.
In my view, allowing the status quo to remain is not a realistic option. The company would exist in a state of dysfunction and I have no confidence that the relationship between the shareholders would improve. To compel the ongoing association between the shareholders would be futile and would likely require continuing supervision by the Court. Further, I do not consider the company can sustain itself without the ongoing financial assistance of its minority shareholder, PWG. There appears to be no alternative or less drastic remedy available than the winding up of the company.
Although their specific allegations are untested under cross-examination, the interested persons have also expressed a distinct lack of confidence in the conduct and management of Pickwick 1A’s affairs. Placing the company into the hands of liquidators will allow independent officers to investigate whether alleged transfers from the company’s account were undertaken in breach of statutory or fiduciary duties, or are otherwise voidable under Pt 5.7B of the Act. In doing so, the liquidators may apply to the Court under Pt 5.9 of the Act to compulsorily examine the directors of the company or other persons who have taken part, or been concerned in, the ‘examinable affairs’ of the company, or who may be able to give information about its examinable affairs. In winding up the company, the liquidators would bring an objective view, unencumbered by the views of the shareholders and directors.[41]
[41]See Galanopoulos v Moustafa [2010] VSC 380 [34] (Sifris J).
In view of the above matters, and in the exercise of my discretion, I will wind up the company under s 461(1)(k) on the basis that it is just and equitable to do so.
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