Shirim Pty Ltd v Fesena Pty Ltd

[2000] NSWSC 878

Reported Decision: (2000) 35 ACSR 221

New South Wales

Supreme Court

CITATION:	Shirim Pty Limited v Fesena Pty Limited [2000] NSWSC 878
FILE NUMBER(S):	SC 4086 of 1994
HEARING DATE(S):	9-13, 16-20 August (written submission to 1 September), 1, 15 December 1999, 8, 29 March, 12 May 2000
JUDGMENT DATE:	1 September 2000
PARTIES :	Shirim Pty Limited (ACN 001 398 689) (First Plaintiff) James Robert Smith (Second Plaintiff) Fesena Pty Limited (ACN 001 349 828) (First Defendant) Eastern Suburbs Private Hospital Pty Limited (ACN 001 327 840) (Second Defendant) Hapday Holdings Pty Limited (ACN 001 185 253) (Third Defendant) Traknew Holdings Pty Limited (ACN 001 214 268) (Fourth Defendant) Macquarie Hospital Services Pty Limited (ACN 002 616 917)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Nigel Cotman SC and Edmund Finnane (Plaintiffs) Geoffrey Lindsay SC and Michael Hall (Defendants)
SOLICITORS:	Garrett Walmsley Madgwick Lawyers (Plaintiffs) Thompson Eslick Solicitors (Defendants)
CATCHWORDS:	Inquiry - Value of shares and units - Compulsory purchase - Consent orders - Nature and scope of inquiry - Allegations of oppression - Whether an estoppel as to oppression arises in conseqence of consent orders - Relevance of oppression - Fair market value
LEGISLATION CITED:	Corporations Law s 260 (2) (now s 246AA)
CASES CITED:	Lord v Dernacourt Investments Pty Limited (14 March 1994, unreported) Coombs v Dynasty Pty Limited (1994) 12 ACLC Dynasty Pty Limited v Coombs (1995) 138 ALR 64 Rankine v Rankine (1996) 14 ACLC 116 Spencer v The Commonwealth (1907) 5 CLR 418 Fexuto Pty Limited v Bosnjak Holdings Pty Ltd (1998) 28 ACSR 688 O'Neill v Phillips (House of Lords, 20 May 1999, reported in The Times, 21 May 1999) Kizbeau Pty Limited v W G & B Pty Limited (1995) 184 CLR 281
DECISION:	See paragraphs 115-117

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 1 September 2000

4086/94 SHIRIM PTY LIMITED and ANOR -v- FESENA PTY LIMITED and ORS

JUDGMENT

1    MASTER: These proceedings were commenced by summons filed by the Plaintiffs, Shirim Pty Limited and James Robert Smith, on 11 October 1994. By that summons the Plaintiffs sought orders for the winding up of the First Defendant, Fesena Pty Limited, and of the Second Defendant, Eastern Suburbs Private Hospital Pty Limited, and for the removal of the Second Defendant as trustee of the Netherleigh Unit Trust, together with consequential relief. 2    Subsequently, on 7 February 1995 there was filed an Amended Summons, which made certain emendations (not here material) to the statutory basis for the orders sought for the winding up of each of the First Defendant and the Second Defendant, sought certain relief (not here material) regarding a meeting or purported meeting of the directors of the Second Defendant on 29 June 1988, and, relevantly to the matter presently before me, sought the following relief (claimed in prayer 10 of the Amended Summons),

Alternatively to Orders 1, 2, 5 and 6:

10.1 an order that the shareholders of the first and second defendants respectively purchase the shares of the first plaintiff in each such company at fair market value,

10.2 refer the matter to a Master for an assessment of the appropriate fair market values pursuant to 10.1 above.

3 Subsequently, by Notice of Motion filed on 26 February 1996 the Plaintiffs sought orders that the Fourth and Fifth Defendants, Traknew Holdings Pty Limited and Macquarie Hospital Services Pty Limited, purchase the shares owned by the First Plaintiff in the First and Second Defendants, and that the Fourth and Fifth Defendants purchase the units owned by the First Plaintiff in the Netherleigh Unit Trust. Further, that the matter be referred to the Master to hold an inquiry to determine the price of the purchases specified in the foregoing orders. 4 When that Notice of Motion came before the Court on 14 March 1996 Mr Hamilton of Queen’s Counsel (as His Honour then was) appeared for the Plaintiffs; Mr M. Bonnell, solicitor, appeared for the Defendants. The Defendants consented to the substantive relief sought by the Plaintiffs in their Notice of Motion, and in consequence orders were made in the terms of paragraphs 1, 2, 6 and 7 in the document entitled Minute of Orders which was filed in Court that day. A direction for the entry of the orders forthwith was also made; and also, subject to the entering of the foregoing orders, orders and directions of a procedural nature were made in accordance with the document entitled Minute of Order for Leave to Proceed and Directions, which was also filed in Court that day. 5 The Court also on 14 March 1996 at the request of the parties noted that the orders referred to in paragraphs 1, 2, 6 and 7 in the Minute of Orders were made pursuant to section 260 (2) of the Corporations Law, and that in making such orders the Court was of the opinion referred to in that subsection. 6 The Order was thereupon entered on 14 March 1996. The substantive orders thereby made were as follows:

1. Pursuant to Section 260 (2) of the Corporations Law;

(a) the shares of Shirim Pty Limited in Eastern Suburbs Private Hospital Pty Limited and the units of Shirim Pty Limited in the Netherleigh Unit Trust be purchased by Hapday Holdings Pty Limited and Traknew Holdings Pty Limited; and

(b) the shares of Shirim Pty Limited in Fesena Pty Limited by [ sic ] purchased by Macquarie Hospital Services Pty Limited.

2. The proceedings be referred to the Master to inquire as to:

(a) whether the said shares in Eastern Suburbs Private Hospital Pty Limited and units in the Netherleigh Unit Trust should be acquired by Hapday Holdings Pty Limited and Traknew Holding Pty Limited jointly or jointly and severally or individually and in the latter case in what proportions;

(b) the value of Shirim Pty Limited’s shares and units in Eastern Suburbs Hospital Pty Limited and the Netherleigh Unit Trust at which the purchaser or purchasers under these orders shall acquire the same;

(c) the value of Shirim Pty Limited’s shares in Fesena Pty Limited at which Macquarie Hospital Services Pty Limited shall acquire the same.

7    The Order contained as paragraph 4 the following,

The Court notes that -
the orders referred to in Order 1 hereof are made pursuant to section 260 (2) of the Corporations Law and that in making such orders the Court is of the opinion referred to in that subsection.

8    It should here be recorded that on 16 August 1999, during the hearing of the inquiry contemplated by the foregoing order, it was noted as follows,

As to paragraph 2 (a) in the Order, the Defendants are content that the shares and units referred to therein be acquired by Hapday Holdings Pty Limited and Traknew Holdings Pty Limited jointly and severally, and that the Plaintiffs are content with such a course.

9 In consequence, therefore, the reference to the Master contemplated by Order 2 of 14 March 1996 is limited to paragraphs (b) and (c) of Order 2. 10 It should here be recorded that the Second Plaintiff Dr James Robert Smith, is the principal of and has the controlling interest in the First Plaintiff, Shirim Pty Limited (to which I shall refer as “Shirim”), and that Dr Thomas Richard Wenkart is the principal of and has the controlling interest in each of the Defendants. 11 The subject matter of the proceedings relates to the business of the Netherleigh Private Hospital, conducted by Eastern Suburbs Private Hospital Pty Limited at Randwick through the structure of a unit trust. Dr. Smith was a 24 percent shareholder in that company, and a 24 percent unit holder in the unit trust (known as the Netherleigh Unit Trust). 12 It is appropriate that I should here set forth the relevant provisions of section 260 (2) of the Corporations Law (as those provisions stood at the date of the making of the foregoing order, 14 March 1996 - the provisions contained in that subsection now comprise section 246AA of the Corporations Law),

If the Court is of the opinion:-

(a) That the affairs of a company are being conducted in a manner that is oppressive or unfairly prejudicial to (or unfairly discriminatory against) a member or members (in this section called the “Oppressed Member of Members”) or in a manner that is contrary to the interest of the members as a whole; or

(b) that an act or omission, or a proposed act or omission, by or on behalf of a company, or a resolution, or a proposed resolution, of a class of members of a company, was or would be oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member or members (in this section also called the “Oppressed Member of Members”) or was or would be contrary to the interests of the members as a whole;

The Court may, subject to subsection (4), make such order or orders as it thinks fit, including, but not limited to, one or more of the following:-

....

(e) An order for the purchase of the shares of any member by other members.

13 The inquiry contemplated by order 2 came on for hearing before me on Monday, 9 August 1999. The hearing occupied that day, and 10, 11, 12, 13, 16, 17, 18, 19 and 20 August. On that last day, at the conclusion of oral submissions by Counsel, I made directions for the lodgement of any further written submissions on behalf of the Plaintiff by 26 August 1999 and for the lodgement of any further written submissions by the Defendant by 31 August 1999, and I reserved my decision. (The last of those written submissions was lodged on 1 September 1999). 14 Before I had published my reserved decision, the Plaintiffs on 1 December 1999 foreshadowed the possibility that they would make an application to re-open the evidence in their case. 15 For the reasons set forth in my judgment herein of 15 December 1999, and despite the opposition of the Defendants, I granted that leave to the Plaintiffs to re-open the evidence in their case, and I made consequential procedural orders in that regard. 16 Consequent upon that leave the matter came before me on 8 March 2000 and again on 29 March 2000, for the purpose of further procedural directions being made, especially in regard to the delivery of written submissions by the respective parties. The matter came on for further hearing before me, for the re-opening of the evidence of the Plaintiffs, on 12 May 2000. At the conclusion of the re-opening of that evidence and the reception by the Court of oral and written submissions concerning that additional evidence, I again reserved my decision in the matter. 17 At the commencement of the hearing on 9 August 1999 there was argument concerning the nature and the scope of the inquiry before the Court. It was submitted on behalf of the Plaintiffs that, although the orders for the inquiry were made by consent, the invocation of jurisdiction vested in the Court by section 260 (2) of the Corporations Law for the compulsory purchase of shares and units of the First Plaintiff in Eastern Suburbs Private Hospital Pty Limited (to which I shall refer as “ESPH”) and the shares of the First Plaintiff in Fesena Pty Limited (to which I shall refer as “Fesena”), in the light of the notation contained in paragraph 4 of the Order of 14 March 1996, had the consequence that there arose an estoppel against the Defendants. The effect of that estoppel, so it was submitted on behalf of the Plaintiffs, was that the Defendants were estopped from disputing the existence of oppression of the nature asserted in each of the substantive affidavits which were on foot at the time of the making of the orders, and which assertions were capable of forming the basis of the Court’s jurisdiction to make those orders. 18 The Plaintiffs relied upon the fact that, notwithstanding that the orders were made by consent, the Court on 14 March 1996 for the purposes of the making of those orders received into evidence three affidavits of James Robert Smith, the Second Plaintiff, sworn respectively on 14 October 1994, 21 April 1995 and 28 April 1995, and that the deponent of those affidavits was not required for cross-examination, and that the Defendants, so it was asserted on the part of the Plaintiffs, at that stage chose not to place any evidence before the Court. 19 It will be appreciated that the present proceedings were instituted by Summons (and that an Amended Summons was later filed), and that there were no pleadings filed in the proceedings. 20 I have had the benefit not only of oral submissions, but also of written submissions, from each of the parties in respect to the scope and nature of the inquiry. Those submissions will be retained in the Court file (as will also all other sets of written submissions which have been delivered by the parties in these proceedings). 21 It will be appreciated that the jurisdiction of the Court under section 260 (2) of the Corporations Law for an order for the purchase of the shares of the Plaintiffs in the First and Second Defendants could be activated only if the Court were to hold the opinion of the nature set forth in one or both of paragraphs (a) and (b) of that subsection. 22 This question concerning the existence of oppression and an asserted estoppel in that regard arose at an early stage in the inquiry, when on Monday, 9 August 1999 (the first day of the hearing of the inquiry) there were tendered on behalf of the Plaintiffs a notice of motion filed by the Plaintiffs on 26 February 1999, three affidavits of James Robert Smith, sworn respectively on 14 October 1994, 21 April 1995 and 28 April 1995 (those being the three affidavits to which reference has already been made) and an affidavit of John Francis Morrissey sworn 14 March 1996. Those documents, and in particular the four affidavits, were not at that stage in the inquiry read as evidentiary material presented in the case of the Plaintiffs. They were tendered, to use the description by Senior Counsel for the Plaintiffs, as “artefacts”. Presumably the purpose of that tender was to have the effect of constituting some form of admission against the Defendants. 23 That tender was objected to by the Defendants. In respect to that tender I delivered an ex tempore judgment on 9 August 1999, rejecting the tender of the documentary material in the character of (as it had been thus described) artefacts. 24 In the course of that ex tempore judgment I referred to the nature of the proceedings and to the terms of the orders made by consent on 14 March 1996. I expressed the tentative view that an issue estoppel had arisen, but stated that that tentative view was not determinative of the precise nature of any such issue estoppel, which was a matter which, if it were to be decided at all, must be decided in the context of evidence available to the parties. I also in the course of that judgment emphasised that the views that I was expressing therein related solely to the admissibility of evidence in the inquiry being conducted by me, and that those views were not to be regarded as determinative of any other matter or issue in the proceedings. 25 Whilst, for the purpose of attracting the statutory jurisdiction under Section 260 (2) of the Corporations Law for the compulsory purchase by specified parties of the shares held by another party in a company, the Court must be of the opinion, in the instant case, of the existence of oppression, that oppression is of the nature considered by McLelland CJ in Eq. in Lord v Dernacourt Investments Pty Limited (14 March 1994, unreported), where his Honour said,

I am of opinion that by consenting to an order being made by the Court the parties must be taken to have implicitly admitted the existence of any necessary condition of the Court’s power to make that order. As was put by W. B. Campbell J (with whom Wanstall SPJ agreed) in an analogous case arising under Section 186 of the Companies Act 1961 (Queensland) in Queensland Co-operative Milling Association v Hutchinson (1976) 2 ACLR 188 at 192: “The consent order presupposes that the parties must have been taken to have mutually conceded that the jurisdiction of the Court under Section 186 had been made out, namely: that there had been oppression in relation to one or more members and that it was just and equitable that an order be made.”

....

But even if it were proper to have regard to disputed allegations in the pleadings for this purpose in the present case, those allegations include a range of possible bases for relief under section 260 (2) (f), and consent to the order could not be construed as an admission of all or any particular one of them. Acceptance that one or other of the various states of fact referred to in paragraph (a) and paragraph (b) of section 260 (2) existed carries no necessary consequence in relation to the mode of determination of the price to be paid for the shares ordered to be purchased...In the absence of any such necessary consequence there is no legitimate basis for giving to the expression “market value...of...the shares of [Holdings] in [Dernacourt]” in the order for reference to the Master anything but its natural and ordinary meaning, to be determined in accordance with generally accepted valuation principles, as the Master held.

26    Further, in performing the task committed to it by the consent of the parties of assessing the value of the shares and units of the First Plaintiff, the Court is not bound to treat the assertions made in the affidavits to which I have earlier herein referred (being the affidavits the tender of which as “artefacts” on behalf of the Plaintiffs was rejected on the first day of the hearing of the inquiry) as being facts which must necessarily be accepted without challenge, or to regard those assertions as necessarily constituting oppression of the Plaintiffs; let alone to preclude the Defendants (upon the basis of an asserted estoppel) from testing the evidentiary basis of those assertions or from disputing that those assertions constitute oppression of the Plaintiffs. 27    Once the statutory jurisdiction to order the compulsory purchase of shares has been invoked, I consider that the Court is enabled to proceed to the inquiry in the terms agreed upon by the parties untramelled by any consideration that facts do not need to be proved or that factual situations when proved necessarily constitute oppression. 28    Where, however, the existence of oppression can be established by evidence, then there is abundant judicial authority which sets forth the principles to be applied by the Court in performing the appropriate valuation and the relevance to that exercise of any such proven oppression. 29    In the present inquiry, therefore, any relevant oppression certainly will not be disregarded, but that oppression must be established by evidence. Once relevant oppression is established, the effect of that oppression in arriving at the value of the shares must be taken into consideration. However, it does not seem to me to be at all an appropriate, or, indeed, a proper, approach to this inquiry as to value, to assume that, because the Court is prima facie of the view that there is or has been sufficient oppression asserted by the Second Plaintiff to attract the statutory jurisdiction of the Court to make by consent the orders in respect to the purchase of shares, the Defendants should in consequence be precluded from testing at the present inquiry as to the value of the shares and units the precise nature of the oppression alleged. 30    The Plaintiffs are not precluded from establishing that there was oppression against Dr Smith. However, that oppression must be established by evidence. It does not seem to me that the implicit concession made by the Defendants, in consenting to the orders for compulsory purchase by some of them of the shares of the Plaintiffs (that there had been oppression in relation to the Plaintiffs and that it was proper that such an order be made (Lord v Dernacourt Investments Pty Limited, supra)), precludes the Defendants from testing the evidence relied upon by the Plaintiffs in respect to each and every asserted instance of oppression. 31    In my view, therefore, the consent of the Defendants constitutes a prima facie admission of such oppression as may be necessary to attract the statutory jurisdiction of the Court to make by consent the orders for the compulsory acquisition of the shares of the Plaintiffs in the First and Second Defendants, but does not constitute some form of issue estoppel concerning specific instances of oppression. Such a conclusion not only is consistent with authority (Lord v Dernacourt Investments Pty Limited, loc.cit.), but also must be obvious from the fact that allegations of oppression have not been particularised by the Plaintiffs beyond those set forth in the document entitled “Submission of the Plaintiffs” which was handed up during the opening address of Senior Counsel for the Plaintiffs at the commencement of the hearing on 9 August 1999. 32    It is appropriate here to record that in respect to any asserted oppression there has never been any suggestion on the part of the Plaintiffs that property or funds have been diverted from either of Fesena or ESPH or from the Netherleigh Unit Trust. 33    It will be observed that order 2(b) and (c) do not refer to any date. They merely require the Court to inquire as to “the value of Shirim’s shares [and units]...at which the purchaser [or purchasers under these orders] shall acquire the same”. 34    What is intended by the terms of the foregoing orders is clearly the price which the purchaser shall be required to pay to the First Plaintiff for its shares and units. 35    As will be appreciated from the numerous relevant authorities in this regard, references to value or valuation of shares in cases of compulsory purchase by one shareholder of the shareholding of another shareholder can attract different meanings. 36    The value of an item may vary depending on the purpose for which the valuation is required, and there is no standard definition of value for all purposes and in all circumstances. Indeed, one author of considerable experience and expertise in this field has identified at least nine different kinds of value (including book value, depreciated value, going concern value, liquidation or break-up value, firesale value, intrinsic value, market value, replacement value and special value: Wayne Lonegan, The Valuation of Businesses, Shares and Other Equity, 2 ed. (1994), 4-6; see also M. S. Adamson, The Valuation of Company Shares and Businesses, 7 ed. (1986), Ch 2; Steven Sirianos, “Problems of Share Valuation Under Section 260 of the Corporations Law”, Company and Securities Law Journal, Volume 13, March 1995, 88.) 37    In considering the nature and scope of the present inquiry, the Court should not disregard the fact that the purpose of the inquiry is to give effect to an order for the compulsory acquisition of shares held by the First Plaintiff, and that the order for that compulsory acquisition was made pursuant to the relief in that regard sought in prayer 10 in the Amended Summons, prayer 10.1 seeking an order that the shareholders of the First and Second Defendants respectively purchase the shares of the First Plaintiff in each such company at fair market value [emphasis inserted]. 38    It follows, therefore, that the “value” of the shares in each of the First and Second Defendants which are to be acquired pursuant to the orders of 14 March 1996 is the “fair market value” sought in prayer 10 of the Amended Summons (prayer 10.2 referring the matter to a Master for an assessment of the appropriate fair market values pursuant to prayer 10.1). I recognise that the wording of prayer 10 in the Amended Summons is not in identical terms replicated in Orders 1 (a) and (b) and 2 (b) and (c) (Order 1 (a) referring to the purchase of units as well as of shares, and Orders 2 (b) and (c) speaking only of the value of such shares and units). 39 I also recognise that Order 1 (a) refers to the purchase not only of the shares of the First Plaintiff in ESPH but also of the units of the First Plaintiff in the Netherleigh Unit Trust, whilst prayer 10 in the Amended Summons speaks only of the purchase of shares; and, further, that the relevant relief of which the parties have availed themselves under the provisions of Section 260 (2) of the Corporations Law does not in any way address itself to the purchase (whether made compulsorily or voluntarily) of units in a unit trust. Nevertheless, as will become apparent, the purchase of the shares and the purchase of the units are so interconnected that it would be inappropriate in the instant case to approach the exercise of inquiring as to the value of the shares and inquiring as to the value of the units other than by the application of identical principles. 40 I have also referred to the fact that neither the relief sought in the Amended Summons nor the terms of the Order itself refers to any date upon which the values of the shares and units which are the subjects of the present inquiry are to be calculated. Nevertheless, it seems to me implicit, both in the terms of the relief sought in prayer 10 of the Amended Summons (“fair market value”) and in the wording of the Order of 14 March 1996, that the subject matter of the inquiry is the fair market value of the shares and units at the date of the order, that is, at 14 March 1996. 41 There has been placed before the Court a very considerable quantity of evidence, which comes within one or more of the following categories. 42 Firstly, there is evidence from Dr. Smith, the Second Plaintiff, concerning his involvement in the Netherleigh Private Hospital, and concerning the various instances of what is characterised by the Plaintiffs as oppression. 43 Secondly there is evidence from a number of persons who participated in aspects of the administration and activities of the Netherleigh Private Hospital throughout the relevant period. That evidence has essentially been directed to supporting, or to disputing, the areas of evidence of Dr. Smith relating to what he has characterised as instances of oppression. 44 Thirdly, there has been placed before the Court opinion evidence by persons who are presented as experts in their respective fields, concerning the value of the hospital enterprise, and, in consequence, the value to be attributed to the shares and units which are the subject of the present inquiry. 45 It is appropriate that I should refer, at least in summary, to significant parts of the foregoing evidence. 46 Netherleigh Private Hospital is a private hospital located in Dutruc Street Randwick, in the Eastern Suburbs of Sydney. There has been a hospital of that name and at that location for many years, long before the present parties became in any way associated with Netherleigh. Each of the principal protagonists to the present proceedings, Dr. Smith, the Second Plaintiff, and Dr. Wenkart, who is the principal of the Defendants, was at all relevant times a registered medical practitioner. The evidence discloses that Dr. Wenkart has interests in other private hospitals in the Sydney metropolitan area, which are compendiously referred to as the Macquarie Health Group. 47 In 1976 Dr. Smith became involved in a venture with Dr. Wenkart to purchase both the land and the business of Netherleigh Private Hospital. The land was acquired in 1976 by Fesena, and the business was acquired in 1979 by the company which is now Eastern Suburbs Private Hospital Pty Limited. ESPH held its interest in the hospital business on trust for the Netherleigh Unit Trust. Dr. Smith, through Shirim, presently holds 24 per cent of the units in that unit trust. The other 76 per cent of the units are held by Dr. Wenkart, through Macquarie Hospital Services Pty Limited. Dr. Smith also held, and holds, 24 per cent of the shares in ESPH. The other 76 per cent of the shares are controlled by Dr. Wenkart. 48 In 1979 Dr. Smith was appointed to manage the hospital. From then until mid-1987 he received a management fee of $20,000 a year. He was physically present at the hospital each day. 49 At that time Netherleigh was both a medical and a surgical hospital. It had provision for a maximum of 77 beds. Patients were referred to Netherleigh by medical practitioners in the Eastern Suburbs. 50 It would appear that the relationship between Dr. Smith on the one hand and Dr. Wenkart on the other hand was a harmonious one at least until about 1984. From that time onwards it is the assertion of Dr. Smith that he was largely excluded from the management of the hospital, and that Dr. Wenkart commenced making major decisions affecting the hospital without consulting Dr. Smith. From that time onwards Dr. Wenkart also became involved in the day to day management of the hospital. 51 It was the assertion of the Plaintiffs that as at December 1986 the hospital was trading profitably as a 77 bed hospital, achieving between 12,000 and 16,000 bed-days a year, that being (upon the calculation of the Plaintiffs) an occupancy rate of between 43 per cent and 54 per cent. It was asserted that the hospital earned a net trading profit of $704,818 in the 1986 financial year from revenue of $2,747,754, that being (upon the calculation of the Plaintiffs) a return of 25.6 per cent on gross revenue. It was asserted that the value of the hospital as a going concern (being the totality of the assets of both Fesena and the Netherleigh Unit Trust), including land and buildings, was $7,000,000. Fesena also owned additional land, adjoining that upon which the hospital was conducted, which has been valued on behalf of the Plaintiffs at $1.2 million. 52 It was asserted on behalf of the Plaintiffs that between 1984 and 1987 Dr. Wenkart made major decisions relating to the hospital enterprise without consulting Dr. Smith. Those decisions included (so the Plaintiffs asserted) the appointment of architects to prepare plans costing about $250,000 for a major re-development of the hospital; the purchase in 1986 of a telephone system costing about $170,000; and the building, between late 1986 and early 1987, of new operating theatres costing between $1,000,000 and $2,000,000. 53 It was the assertion of the Plaintiffs that throughout that period, from 1984 to 1987, Dr. Smith protested against his exclusion from the management of the hospital, the way in which the building work was being organised, and what was described as Dr. Wenkart’s management style; but that Dr. Wenkart ignored Dr. Smith’s views on these matters, and refused Dr. Smith’s request to hold directors’ meetings. 54 It was the case for the Plaintiffs that, whilst there had been oppressive conduct on the part of Dr. Wenkart and the companies controlled by him before 1987, however, from 26 May 1987 Dr. Smith had been frozen out of the management of the hospital at all levels. The management fee of $20,000 a year which he had been paid from 1979 ceased on 26 May 1987, and thereafter the management of Netherleigh was carried out under the control of the Macquarie Health Corporation Pty Limited, that being a company controlled by Dr. Wenkart. (It should, however, in this regard be noted that no management fee was paid to that company.) 55 On 26 May 1987 Dr. Smith sought to dispose of his interests in the hospital in accordance with the terms of the Netherleigh Unit Trust Deed. The price at which Dr. Smith offered his interest was $876,000 for the units, plus $46,800 a share for each of his 24 shares in Fesena (that shareholding being offered for a total price of $1,123,200). Thus the offer which Dr. Smith made to sell his interests in the hospital was for a total sale price of $1,999,200. That offer was not accepted by Dr. Wenkart. 56 In mid-1987 there was a proposal, which did not proceed, that there would be a public float in respect to the hospital. At that time Dr. Wenkart offered to purchase Dr. Smith’s interests for a little over $1.6 million. Dr. Smith rejected that proposal. Subsequently, later in 1987, Dr. Smith made a further offer to sell his interests in the hospital to Dr. Wenkart for a somewhat lower price, being $1,800,000. A further attempt, in March 1989, by Dr. Smith to sell his interests to Dr. Wenkart was also rejected. Dr. Smith was also unsuccessful in his attempt in that year to limit his exposure to personal guarantees given be him to the Commonwealth Bank in respect to the indebtedness of the hospital. 57 It was submitted on behalf of the Plaintiffs that in the period since Dr. Smith was, in the words of the Plaintiffs, frozen out of the business in, at the latest, 1987, the fortunes of the hospital have greatly suffered. The bank debt of the hospital has risen from a little over $2 million in 1986 to $2.727 million in 1987, and then to almost $5.2 million in 1990, at which level it remained until 1996. The occupancy levels fell sharply to between 7,000 a year and (in 1991) 9,556 a year. The hospital has made a substantial trading loss each year from and including 1987. 58 Although from the commencement of his involvement in the hospital until 1986 Dr. Smith each year received dividends in respect to his shareholding and units, he has received no dividends since 1987. 59 It was asserted by the Plaintiffs that between late 1986 and 1987 ESPH engaged in costly and poorly planned building development works, which contributed substantially to both the blow-out in debt and the reduced occupancy levels. Further, that those works were embarked upon at the instance of Dr. Wenkart without any consultation with Dr. Smith, and, indeed, in the face of Dr. Smith’s protests as to the manner in which they were managed. 60 Until 1986 a substantial part of the profits from the hospital business were channelled into a superannuation fund of which Dr. Smith, Dr. Wenkart and some employees of the hospital were members. No such profits went into that fund after 1986, and, indeed, in the next four years the hospital returned to itself the bulk of those funds. (That conduct on the part of the hospital has been the subject of separate legal proceedings.) 61 At the outset of the present inquiry it was submitted on behalf of the Plaintiffs that on a fair assessment of the proper purchase price of Dr. Smith’s shares the Court ought to take account of the fact that from 1987 the hospital was run as Dr. Wenkart’s business, with Dr. Smith being locked out of management and unable to extricate his financial interests (being both his investment in the hospital and his exposure as a guarantor) from the fortunes of the hospital. 62 In support of the foregoing submission the Plaintiffs relied upon the decision of von Doussa J in the Federal Court of Australia in Coombs v Dynasty Pty Limited (1994) 12 ACLC. His Honour there held that it was appropriate that the applicant’s shares be valued, for the purpose of purchase by reason of oppression, as at the date that the applicant was excluded from the company’s affairs. His Honour awarded to the applicant simple interest on the value of the shares from that date until the date of judgment. On appeal that decision was upheld by the Full Court of the Federal Court: Dynasty Pty Limited v Coombs (1995) 138 ALR 64. 63 The Plaintiffs also relied upon the decision of Thomas J in Rankine v Rankine (1996) 14 ACLC 116. His Honour (with whom Macrossan CJ and McPherson JA agreed), in delivering the leading judgment in the Court of Appeal of Queensland, concerning a compulsory purchase of shares pursuant to Section 260 (2) (e) of the Corporations Law, said, at 120,

To speak of the “date of valuation” of shares in oppression proceedings is apt to confuse unless one clarifies what is meant by “valuation”. What needs to be assessed is the value of the shares at a selected date had it not been for the effect of the oppressing conduct . ( Scottish Co-operative Wholesale Society Limited v Meyer [1959] AC 324 at 364; Re Golden Bread Pty Limited; The Queensland Co-operative Milling Association v Hutchison (1976) 2 ACLR 188). The underlined words show that the price is not the amount of a valuation at a particular time, but rather a finding of hypothetical fact. The figures attributable to each will commonly be different. The valuation of the shares at the given date will not necessarily provide the answer that the parties need. It may however take the parties some distance towards the goal if it can be used as a figure from which deductions or to which additions may be made in the light of subsequent findings as to the effects of earlier acts of oppression.

64    It seems to me, however, that reliance by the Plaintiffs upon the foregoing passage from the judgement of Thomas J is, in the circumstances of the instant case, misconceived. 65    The present parties have, through their own choice, and by their own voluntary decision, in consenting to the terms of the Orders made on 14 March 1996, delimited the nature of the inquiry to be conducted. As I have already observed, the values which are the subject of the present inquiry, are the fair market values at which shares and units of the First Plaintiff must be purchased by some of the Defendants. 66    I reject the submission that in order to ascertain a fair market value one looks to the hypothetical situation considered by the Court of Appeal of Queensland in Rankine v Rankine. That was an approach which, I would respectfully observe, appears to have been entirely appropriate to the circumstances of the relief granted in that case. That relief, which was granted in the course of contested proceedings, should be contrasted with the nature of the inquiry in the instant case, the precise terms of that inquiry being set forth in an Order which resulted from the consent of the parties. 67    Unless the phrase “fair market value” is to be deprived of all meaning, and unless the use of that phrase in prayer 10 of the Amended Summons is to be disregarded in its entirety, it seems to me that it is totally inappropriate to have regard to circumstances of a hypothetical nature when inquiring as to a value to be attributed when dealing with a real purchaser upon an open market. Lonegan, op.cit. 5, defines “market value” (I appreciate that he does not purport to define “fair market value”) as follows,

Market value is the price at which an asset can be realised and is based on the assumption that an asset can be realised to an arm’s length purchaser as and when desired. Implied in this definition is that there are always ready and willing buyers and sellers of the asset being valued and that there is sufficient time to properly market the asset being sold. Market value is then defined as the price that would be negotiated in an open and unrestricted market between a knowledgable, willing but not anxious buyer and a knowledgable, willing but not anxious seller acting at arm’s length.

68    (It will be recognised that the references in the foregoing definition to a “willing but not anxious buyer” and a “willing but not anxious seller” echo the judgments in the seminal decision of the High Court of Australia in Spencer v The Commonwealth (1907) 5 CLR 418, per Griffith CJ at 432; Barton J at 436; Isaacs J at 441 (“...by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration”).) 69 It follows from my foregoing observations that a hypothetical value for the shares and units which, so it is submitted on behalf of the Plaintiffs, those shares and units would have had, had it not been for the alleged instances of oppression is not the value for which in my conclusion the shares and units of the Second Plaintiff must be purchased by the purchasing Defendants. Further, that, in consequence, instances of alleged oppression cannot, as the Plaintiffs would have it, be taken into account in establishing the value for such puchases. 70 But even if (contrary to my foregoing conclusion) instances of alleged oppression are relevant to a valuation of the shares and units, and even if (contrary to my foregoing conclusion) in proceeding to a calculation of the shares and units, not upon the basis of actual happenings and events, but upon the basis of hypothetical facts as they would have existed, had it not been for the asserted instances of oppression, it is necessary to consider the effect of those asserted instances of oppression. This I shall now proceed to do. 71 I am in agreement with the submission of the Defendants that the essence of the complaint of the Plaintiffs is that the business of the trust and the investment of Fesena were not well managed. However, poor management or mismanagement do not constitute oppression: Fexuto Pty Limited v Bosnjak Holdings Pty Ltd (1998) 28 ACSR 688 at 740 (Young J). 72 Further, it should not be overlooked that at the time when Dr. Wenkart had in contemplation a public float in respect to the entirety of his hospital, pathology and computer interests, he made an offer, by letter dated 3 June 1987 (Exhibit ‘H’ to the affidavit of Dr. Smith, 21 April 1995) to purchase Dr. Smith’s shares and units for $1,607,429, that being the valuation performed by the Hooker Corporation, apparently on 16 April 1987. Dr. Smith refused that offer. The Defendants submit that the making of that offer to purchase on the part of Dr. Wenkart (which they describe as a fair offer) had the effect of vitiating any oppression which may have occurred before the date of that offer (and in that regard they rely upon Fexuto Pty Limited v Bosnjak Holdings Pty Limited, supra, at 743, and O’Neill v Phillips (House of Lords, 20 May 1999, reported in The Times, 21 May 1999)). 73    I have already recorded that the Plaintiffs expressly disclaim any suggestion that property has been diverted from the trust or from either company. Further, all parties and their respective experts agree that the statutory accounts of the companies and of the trust are accurate. ( In this latter regard it is relevant to note that, although the date for the calculation of the fair market value of the shares and units is, as I have concluded, 14 March 1996, the parties were content to adopt the various figures and accounts for 30 June 1996 as having application to 14 March 1996.) 74    In any event, the central allegation of oppression asserted on behalf of the Plaintiffs is that from 26 May 1987 Dr. Smith was excluded from management of the hospital at all levels. I am in agreement with the submissions of the Defendants that that allegation is clearly and objectively contrary to the true facts, as confirmed by Dr. Smith’s own evidence about his involvement in decision making and his receipt and monitoring of management committee reports, minutes and financial statements. 75    In substance, Dr. Smith’s complaint resolves itself into an assertion that the hospital was mismanaged, in the sense that business decisions that were made did not result in profitable returns to him on a continuing basis. 76    It should not be overlooked, however, that any loss which may have been suffered by the Plaintiffs in the conducts of the operations of the companies and of the unit trust is not more than the loss borne by the majority shareholder/unit holder, being Dr. Wenkart (either personally or through the vehicle of companies) in a greater proportion than that suffered by the Plaintiffs. It should also be emphasised that the Plaintiffs do not suggest that in consequence of the instances of alleged oppression, there were financial benefits which flowed to Dr. Wenkart, but which were denied to Dr. Smith. The only financial consequence of the matters complained of by Dr. Smith was a loss suffered by both himself and Dr. Wenkart, the loss suffered by Dr. Wenkart being far greater than that suffered by Dr. Smith. 77    I am in agreement with the submission of the Defendants that in those circumstances there is no oppression in fact, or, that there is no oppression that could justify adoption of a price payable for the shares and units held by Shirim other than a price equal to the respective market values at 14 March 1996. Mismanagement or the exercise of majority control do not, of themselves, constitute oppression (Fexuto Pty Limited v Bosnjak Holdings Pty Ltd, supra, at 740). 78    In the Defendants’ Written Submissions dated 20 August 1999 there are listed at paragraph 31 (pages 7-9) items of evidence which are fundamentally inconsistent with the following contentions of the Plaintiffs: that Dr. Smith was excluded from management of the hospital at all levels after 26 May 1987; that between 1984 and 1987 Dr. Wenkart made major decisions relating to the hospital without consulting Dr. Smith; and that the date 1 December 1986 should be selected as the date upon which shares and units of Shirim should be valued for the purposes of the Orders of 14 March 1996. 79    Those items of evidence upon which the Defendants in this regard rely include the fact that Dr. Smith personally signed financial statements and directors’ reports, and minutes of directors’ meetings in respect of Fesena Pty Limited; that he personally signed financial statements of the trust and minutes of directors’ meetings in respect of ESPH as trustee of the Netherleigh Unit Trust; throughout the period between 1984 and 1996 Dr. Smith regularly received and analysed management committee reports, minutes and financial statements and freely chose whether or not to attend management committee meetings; Dr. Smith actively participated in deliberations of the management committee in relation to the appointment of architects to prepare plans for a proposed re-development of the hospital, the purchase of a telephone system, the building of the operating theatres; Dr. Smith was the licensee of the hospital until 1993, and in 1986 and 1987 he signed Department of Health building application forms; in December 1986 Dr. Smith agreed with his co-directors that the proposed building works should be undertaken (despite suggestions that he disapproved of the building works, his evidence was that he agreed with the work being performed, but thought that the associated programme for acquisitions of medical equipment was too costly); Dr. Smith was personally involved in dealing with Department of Health and Fire Board requisitions; Dr. Smith personally attended the hospital premises on a daily basis until about March 1995, when his health compelled his retirement from professional medical practice; Dr. Smith agreed with the purchase of land adjoining the main hospital site; when he signed financial statements and reports of the trust Dr. Smith did so on the basis that he accepted that they represented a true and fair record. 80    I am in agreement that each of the foregoing items of evidence is inconsistent with the particulars of oppression asserted by the Plaintiffs. 81    It has been submitted on behalf of the Defendants that the proper approach to the valuation is to value the assets of each entity in which shares or units are to be purchased, assess the liabilities of that entity, and then calculate the net value. 82    I am in agreement with that approach, which appears to me to be consistent with the definition of market value given by Lonegan, op.cit, 5 (which I have earlier quoted herein). 83    The Court was offered three distinct approaches to asset valuation, by evidence from expert witnesses. They were that of Mr Nelson, who valued the hospital as at 1 December 1986 by comparing it to other hospitals sold in the 1980’s, and added a value for the additional land taken from another valuer’s report. 84    That of Mr Aitken and Mr Humphreys. Mr Aitken valued the hospital as a hypothetical going concern as at 30 June 1996, and added a value for the land he considered to be additional. Mr Humphreys then took Mr Aitken’s values and calculated another hypothetical cash flow, in order to produce a “pro forma balance sheet” value. 85    That of Mr Martin and Mr Vella, who valued the actual assets and undertakings of the hospital as at 30 June 1996. 86    For the reasons which I have already expressed concerning the inappropriateness of adopting a hypothetical approach, and the inappropriateness of adopting any date for the valuation other than the date of the making of the Order, I consider that the basis of the valuations of Mr Nelson and of Mr Aitken and Mr Humphreys should be rejected. 87    Further, I am in general agreement with the criticisms of the details of those valuations which are set forth in the foregoing Defendants’ Written Submissions (pages 10-14). 88    Not only do I consider that the basic approach of Mr Martin and Mr Vella (who valued the actual assets and undertakings of the hospital as at 30 June 1996) is consistent with the nature of the inquiry being conducted by the Court, but, further, it should be observed that Mr Martin, alone of the valuers, attempted independently to verify the information which he was given. He “put himself in the shoes of a prospective purchaser” and telephoned officials of the Department of Health and the Fire Board in order to check the licence conditions of the hospital and the capital improvements required to the fabric of the buildings. It should also be recorded that his valuation of the vacant land held by Fesena ($1.8 million) was not challenged in cross-examination. 89    Mr Vella’s report was constructed upon that of Mr Martin, and calculated the values for the shares and units in the three separate entities. There was no challenge to his propositions that:

Fesena is a landholding company only, and has both leased and mortgaged its land. The shares in Fesena can have value only if the value of the land is greater than the secured debt.

Eastern Suburbs Private Hospital Pty Limited conducts no business other than trustee, and its shares can have no independent value.

The whole business of the trust was charged to the Commonwealth Bank to secure trust borrowing. The units can have value only if the value of the assets is greater than the secured debt.

90    It is appropriate then to turn to the liabilities of the foregoing entities. 91    The amount of the principal liabilities as at 30 June 1996 was not relevantly disputed by the respective parties. Both companies and trust were jointly and severally indebted to the Commonwealth Bank for $5.18 million. ESPH and the trust had a liability to the GAB No. 94 Superannuation Trust estimated at $1.5 million. The total liabilities were therefore not less than $6.68 million. ESPH and the trust carry that full liability. Fesena carries at least the $5.18 million secured debt. 92    Fesena’s “surplus” land was valued by Mr Aitken at $1.6 million. Mr Martin valued it at $1.8 million. Mr Vella, who was the only expert in this regard to offer a method of valuing the interest of Fesena in the land the subject of the lease to ESPH, delivered a value of $3.36 million for the whole of the land owned by Fesena. The net value of the shares in Fesena was therefore in a negative amount of $1.82 million (calculated as being $3.36 million less $5.18 million owed to the bank as at 30 June 1996). 93    Mr Martin’s valuation of the concern of the trust was $1.95 million. Even if the re-calculations performed by him in the course of his evidence were adopted, the highest value of the hospital as a going concern was in the vicinity of $2.75 million. 94    I am in agreement with the submission on the part of the Defendants that on no proper basis of valuation can it be asserted, let alone established, that the assets of the trust exceed its liabilities. Even if it be assumed that the bank first realises its security over the property of Fesena, and thus reduces the secured debt to $1.82 million, the total liability of the trust remains $3.32 million, and there still remains a substantial shortfall of unit holders’ funds. 95    It follows from the foregoing that the units have no value. 96    I have already recorded that on 15 December 1999 I granted to the Plaintiffs leave to re-open the evidence in their case, and I made consequential procedural orders in that regard. 97    In compliance with those procedural orders the respective parties lodged written submissions on 10 March 2000 (the Plaintiffs), 17 March 2000 (the Defendants). The matter came on for further hearing upon the re-opening of the evidence for the Plaintiffs on 12 May 2000. The Defendants on that date lodged supplementary submissions in respect to the re-opened case of the Plaintiffs. 98    The re-opening of the evidence in the case for the Plaintiffs arose in consequence of the following circumstances. 99    It will be recalled that it was the case for the Plaintiffs that if the date of the Order of 14 March 1996 be taken as the appropriate date for the performance by the Court of the task committed to it by the Order, then the difference between the approaches of the respective expert accountants, Mr Humphreys and Mr Vella, was whether an adjustment to the actual position obtaining on that date should be made, in order to allow for the asserted oppression of which the Plaintiff complained. Mr Humphreys contended that such an allowance should be made, whilst Mr Vella denied that it should be made. 100    However, the Plaintiffs submitted that the common element in the approach of both Mr Humphreys and Mr Vella was that each accountant assumed, for the purposes of his calculations, that there was a liability of ESPH to Ugla Pty Limited as trustee for the GAB (No.94) Superannuation Fund. According to the Plaintiffs the amount of that liability was $1,548,751. However, it was the submission of the Plaintiffs that that liability was only ever a contingent liability. It arose from the allegation, made in litigation commenced by Dr. Smith against Ugla Pty Limited (to which I shall refer as “Ugla”), ESPH and others (being proceedings 3854 of 1995 in the Equity Division, which were referred to during the re-opened evidence in the present inquiry as the “Ugla Proceedings”), that ESPH was liable to repay certain funds to Ugla, in the latter’s capacity as trustee for the GABA (No.94) Superannuation Fund. An actuarial valuation, relied upon by the Plaintiffs, put the 1996 value of the alleged liability at $1,548,751. 101    It was the submission of the Plaintiffs that ESPH had never admitted to owing the aforesaid amount of money to Ugla, and that before December 1999 ESPH had not admitted to owing any amount at all to Dr. Smith. Nevertheless, for the purposes of his report, Mr Vella assumed that that amount was owing. 102    After the conclusion of the hearing of the inquiry before me, the Ugla proceedings were heard before Bryson J, and were disposed of, partly by consent and partly by judicial determination. His Honour’s conclusions, together with orders made by consent, were embodied in Short Minutes of Order, which then became part of the evidence before me. The hearing before Bryson J took place on 8 and 9 November 1999, and His Honour published his reserved judgment on 23 November 1999. The Short Minutes which reflected His Honour’s findings and conclusions, and also embodied orders made by consent, were dated 3 December 1999. The orders were finally made three days later, on 6 December 1999. 103    In consequence of those orders, Dr. Smith was declared to be entitled to a retirement benefit of $300,000 from the GAB (No.94) Superannuation Fund, and it was declared that ESPH held on constructive trust for the fund such moneys as were necessary to render Ugla capable of paying that retirement benefit to Dr. Smith. Certain notations were made as to the formula for the calculation of the moneys which ESPH was required to pay. Calculations in accordance with that formula have subsequently been performed. 104    It has been submitted on behalf of the Plaintiffs that, in consequence, the Ugla proceedings have concluded with a declared liability on the part of ESPH to pay an amount of $250,847, rather than the contingent liability of $1,548,751, which was adopted in the reports of the two experts. It was the contention of the Plaintiffs that that actual liability of ESPH in an amount of $250,847 should be substituted for the contingent liability of $1,548,750, in proceeding to a calculation of the value of the shares and units. 105    It was the submission of the Plaintiffs that in conducting the present inquiry the Court was entitled to look to the outcome of the Ugla proceedings and to adjust its assessment of the value of the shares in the light of this subsequent event (in this latter regard the Plaintiffs relied upon the decision of the High Court of Australia in Kizbeau Pty Limted v W G & B Pty Limited (1995) 184 CLR 281 at 290.) 106 It will be appreciated that the foregoing submissions concerning the outcome of the Ugla proceedings have no effect upon the value which, at the outset of the inquiry, the Plaintiffs asserted should be calculated by reference to the position of the companies before the oppressive conduct is alleged to have commenced, in 1986. The outcome of the Ugla proceedings can have effect only upon the calculation of the value as at 14 March 1996, performed by reference to the hypothetical position which took into account the conduct identified by the Plaintiffs as oppressive conduct in the period between 1986 and 14 March 1996. 107 In consequence, for the Ugla proceedings and the outcome thereof to have any effect or significance in the present inquiry, the Plaintiffs must adopt as the date for the calculation of the value the date of 14 March 1996. 108 The Defendants point to the fact that in the Ugla proceedings consent orders were made on 6 December 1999 (pursuant to Short Minutes of Order). Those orders do not purport to quantify and do not quantify the extent of the liability of ESPH to refund the amount of $759,071.96 (with or without any allowance being made for interest, or the like). It was submitted on behalf of the Defendants that those orders of 6 December 1999 did no more than, firstly, determine Dr. Smith’s entitlement to a “retirement benefit” of $300,000 from the superannuation fund upon his retirement (which, in fact, occurred on 30 January 2000), and, secondly, set forth a mechanism by which moneys might be provided by ESPH to the superannuation fund for the payment of that particular retirement benefit. 109 In respect to the Ugla proceedings it was common ground between the parties that, on the evidence of Mr Vella, even if the adjustment which the Plaintiffs now seek to make were made, the market value of the subject shares and units would remain nil. It was also common ground between the parties that if the shares and units were to be valued at market value without any hypothetical adjustments their value would be nil. 110 It was submitted on behalf of the Defendants that the quantification of Dr. Smith’s retirement benefit from the Superannuation Fund in 2000 can have no bearing upon the amount of the liability of ESPH to the fund in 1996, particularly (but not only) as Dr. Smith had no entitlement to that benefit until his retirement, which in fact occurred in 2000. 111 I am in agreement with the submission on behalf of the Defendants (set forth in the Supplementary Submissions of the Defendants dated 12 May 2000) that there is no basis upon which the orders made by Bryson J on 6 December 1999 in the Ugla proceedings, or any agreement between Dr. Smith and the other parties to those proceedings, which grounded those orders, can justify a conclusion (asserted by the Plaintiffs) that orders providing for the payment of an entitlement of a retirement benefit of $300,000 to Dr. Smith from the Superannuation Fund could release ESPH from a liability to repay to that fund the much larger sum of $759,071.96 (with or without an allowance for interest, or the like, referable to a period since about 1986-1990); and further, a conclusion that the determination of a particular issue between Dr. Smith on the one hand and Ugla and ESPH on the other hand could properly determine all rights and liabilities between Ugla and ESPH. It will be appreciated that in the Ugla proceedings Ugla and ESPH were in a similar interest, both being Defendants to a claim brought by Dr. Smith as Plaintiff. Further, it should also be noted that there is no identicality of parties between the present proceedings and the Ugla proceedings. Hapday Holdings Pty Limited and Macquarie Hospital Services Pty Limited (the Defendants in the present proceedings who, together with Traknow Holdings Pty Limited have the burden of the purchase orders of 14 March 1996) were not parties to the Ugla proceedings. Further, Ugla Pty Limited is not a party to the present proceedings. 112 It was also submitted on behalf of the Defendants that Dr. Smith, as a director of Ugla and ESPH, was privy to any breach of trust involved in payments to Ugla from ESPH in the period 1986 to 1990. (I would here interpolate that it was on the basis of any such breach of trust, that relief was granted which had the effect of requiring ESPH to make payments to Ugla.) There appears to me to be considerable substance in the complaints by the Defendants that what Dr. Smith is now seeking to do is to obtain benefits from his participation in that breach of trust, those benefits resulting from, as the Plaintiffs would now have it, a considerable reduction in the amount which ESPH is required to repay to Ugla, being a reduction from the amount of the contingent liability in excess of $1.548 million, to an amount of a little over $250,000. 113 However, for the reasons which I have already expressed in relation to the evidence presented upon the inquiry before the Plaintiffs were granted leave to re-open the evidence in their case, the liabilities of Fesena will still exceed its assets (and will exceed them by considerably more than the resulting benefit of $764,203, which, according to the Plaintiffs, would be the amount by which those assets should be increased in consequence of the disposition of the Ugla proceedings). 114 It follows, therefore, that even if (contrary to the conclusion which I have already expressed) I were to accept the submissions and calculations of the Plaintiffs upon the re-opening of their evidence, I would still arrive at the same conclusion that the fair market value of the shares and units of Shirim in Fesena and in the Netherleigh Unit Trust was nil. 115 I summarise as follows my foregoing conclusions. I find that the value of Shirim’s shares in ESPH at which the Third and Fourth Defendants shall acquire them is nil. I find that the value of Shirim’s units in the Netherleigh Unit Trust at which the Third and Fourth Defendants shall acquire them is nil. I find that the value of Shirim’s shares in Fesena at which Macquarie Hospital Services Pty Limited shall acquire them is nil. 116 The order of 14 March 1996 committing to me this inquiry did not refer to the costs thereof. Usually such an order provides either that the Master conducting the inquiry will make an order in respect to the costs of the inquiry or that the matter, after the conclusion of the inquiry, will return to the Judge who made the original order for reference, so that the costs of the inquiry can be dealt with by that Judge. 117 If, however, I were requested to do so, I would, in the light of my foregoing conclusions and findings (which in essence have resulted in complete success to the Defendants), express the view that the costs of the Defendants of the inquiry should be paid by the Plaintiffs.

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Last Modified: 09/27/2000