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[2025] NSWSC 1344
Supreme Court of NSW
2025-11-14
Nixon J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Boyded Industries Pty Ltd & Anor v Heartland One Pty Ltd & Ors [2025] NSWSC 1344
Hearing dates: 8-11 and 15-19 September 2025
Date of orders: 14 November 2025
Decision date: 14 November 2025
Jurisdiction: Equity
Before: Nixon J
Decision: 1. Direct that the parties are to bring in short minutes of order by 5pm on 28 November 2025 to give effect to the reasons for judgment.
2. Direct that, in the event the parties are unable to agree on orders to give effect to the reasons for judgment, the parties are to exchange and provide to the Associate to Nixon J, by 5pm on 28 November 2025, the orders which each party proposes and submissions (limited to 5 pages) on those orders, indicating whether, and if so why, an oral hearing is requested to deal with the matters in dispute.
Catchwords: TRUSTS – whether directors of trustee resolved to amend trust deed and to approve appointment of a new appointor – whether amendment was outside power – whether appointor exercised power to appoint a supervisor for an improper purpose – whether supervisor exercised power to remove and replace trustee upon real and genuine consideration – whether appointments of appointor, supervisor and replacement trustee were invalid and of no effect
EMPLOYMENT – where employment of chief executive officer terminated on payment of five weeks’ pay in lieu of notice – whether employment governed by written executive employment agreement – whether a mutual intention to abandon or vary the terms of the written agreement is imputed to the parties – whether employment could only be terminated on reasonable notice – whether employer breached implied obligations of good faith and reasonableness – whether there were grounds for summary dismissal
CONTRACT – offer and acceptance – where parties exchanged emails regarding the terms of a proposed bonus in return for the successful implementation of a strategy to develop pubs – whether there was a binding agreement as to this “hospitality bonus term”
CORPORATIONS – Oppression – whether the affairs of group of companies were conducted in a manner oppressive to minority shareholder – whether there was a strategy to remove minority shareholder as chief executive officer and as a director of operating entities for purpose of persuading him to agree to sell shares – whether there was commercial unfairness in removing minority shareholder from those roles
Legislation Cited: Corporations Act 2001 (Cth) ss 232, 233, 1322
Evidence Act 1995 (NSW) s 140
Fair Work Act 2009 (Cth) s 117
Cases Cited: Adventure World Travel Pty Ltd v Newsom (2014) 86 NSWLR 515; [2014] NSWCA 174
Australian Institute of Fitness Pty Ltd v Australian Institute of Fitness (Vic/Tas) Pty Ltd (No 3) [2015] NSWSC 1639
Baba v Sheehan [2021] NSWCA 58
Blythe Chemicals Ltd v Bushnell (1933) 49 CLR 66; [1933] HCA 8
Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67
Burger King Corporation v Hungry Jack's Pty Ltd (2001) 69 NSWLR 558; [2001] NSWCA 187
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25
Catalano v Managing Australia Destinations Pty Ltd [2014] FCAFC 55
Commissioner of Taxation (Cth) v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520; [2000] HCA 35
Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32
Concut Pty Ltd v Worrell [2000] HCA 64
Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184
David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 108
Easling v Mahoney Insurance Brokers (2001) 78 SASR 489; [2001] SASC 22
ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1998) 28 ACSR 688; [1998] NSWSC 413
Fexuto v Bosnjak [2001] NSWCA 97
Finch v Telstra Super Pty Ltd (2010) 242 CLR 254; [2010] HCA 36
Fitzwood Pty Ltd v Unique Goal Pty Ltd (2001) 188 ALR 566; [2001] FCA 1628
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Goozee v Graphic World Group Holdings Pty Ltd [2002] NSWSC 640
In the matter of Heartland Group Pty Ltd [2024] NSWSC 1029
In the matter of Heartland Group Pty Ltd [2024] NSWSC 875
In the matter of Mobius Distilling Pty Ltd (in liq) [2025] NSWSC 539
Jeffreys v Sheer [2025] NSWCA 31
Karger v Paul [1984] VR 161
Lancedale Holdings Pty Ltd v Health Group Australasia Pty Ltd [1999] NSWSC 609
McClelland v Northern Ireland General Health Services Board [1957] 1 WLR 595
Mercanti v Mercanti [2015] WASC 297
Mercanti v Mercanti (2016) 50 WAR 495; [2016] WASCA 206
Millsave Holdings Pty Ltd v Connective Group Pty Ltd (2023) 75 VR 239; [2023] VSCA 326
Montevento Holdings Pty Ltd v Scaffidi (2012) 246 CLR 325; [2012] HCA 48
Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692
Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102
Munstermann v Rayward; Rayward v Munstermann [2017] NSWSC 133
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
New South Wales Cancer Council v Sarfaty (1992) 28 NSWLR 68
New South Wales Rugby League Ltd v Wayde (1985) 1 NSWLR 86
O’Neill v Phillips [1999] UKHL 24; [1999] 1 WLR 1092
Onassis v Vergottis [1968] 2 Lloyd’s Rep. 403
Onefone Australia Pty Ltd v One.Tel Ltd [2010] NSWSC 1120
Owies v JJE Nominees Pty Ltd (in its capacity as the trustee for the Owies Family Trust) [2022] VSCA 142
Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567
Re Baron Vestey’s Settlement [1951] Ch D 209
Re Dernacourt Investments Pty Ltd (1990) 20 NSWLR 588
Re Heartland Group [2025] NSWSC 367
Re Heartland Group Pty Ltd [2024] NSWSC 875
Re Norvabron Pty Ltd (No 2) (1986) 11 ACLR 279
Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234
Sangha v Baxter [2009] NSWCA 78
Scaffidi v Montevento Holdings Pty Ltd [2011] WASCA 146
Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359; [1931] HCA 21
Spartalis v BMD Constructions Pty Ltd (2014) 120 SASR 575; [2014] SASCFC 124
Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640; [1975] HCA 63
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245; [1988] HCA 11
Tallerman and Company Proprietary Ltd v Nathan’s Merchandise (Victoria) Proprietary Ltd (1957) 98 CLR 93; [1957] HCA 10
Thacker v Key (1869) LR 8 Eq 408
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Tomanovic v Global Mortgage Equity Corp Pty Ltd [2011] NSWCA 104
Turner v Richards [2025] NSWCA 83
Tzavaras v Tzavaras & Sons Pty Ltd [2023] NSWCA 168
Watson v Foxman (1995) 49 NSWLR 315
Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459; [1985] HCA 68
Westpac Banking Corporation v Wittenberg (2016) 242 FCR 505; [2016] FCAFC 33
Category: Principal judgment
Parties: Claim
Boyded Industries Pty Ltd (First Plaintiff)
Heartland Motors Pty Ltd (Second Plaintiff)
Chicago Properties Pty Ltd (Third Plaintiff)
Heartland One Pty Ltd (First Defendant)
Kieran Turner (Second Defendant)
Anthony Turner (Third Defendant)
Cross-Claim
Kieran Turner (First Cross-Claimant)
Turnercorp Pty Ltd (Second Cross-Claimant)
Heartland One Pty Ltd (Third Cross-Claimant)
Joanne Marie Richards (First Cross-Defendant)
Bernice Melinda Hooker (Second Cross-Defendant)
B.G Webb Pty ltd (Third Cross-Defendant)
Bernley Corporation Pty Ltd (Fourth Cross-Defendant)
Heartland Group Pty Ltd (Fifth Cross-Defendant)
Boyded Industries Pty Ltd (Sixth Cross-Defendant)
Chicago Properties Pty Ltd (Seventh Cross-Defendant)
BGW Nominees Pty Ltd (Eighth Cross-Defendant)
Heartland Motors Pty Ltd (Ninth Cross-Defendant)
Heartland Blacktown Pty Ltd (Tenth Cross-Defendant)
Heartland Penrith Pty Ltd (Eleventh Cross-Defendant)
HMG Parts Pty Ltd (Twelfth Cross-Defendant)
Rossfield Nominees Pty Ltd (Thirteenth Cross-Defendant)
T S Management Pty ltd (Fourteenth Cross-Defendant)
Sallyann Marie Turner (Fifteenth Cross-Defendant)
Representation: Counsel:
M Ashhurst SC / A R Langshaw (Plaintiffs/Cross-Defendants)
M R Elliott SC / D G Healey (Defendants/Cross-Claimants)
Solicitors:
MinterEllison (Plaintiffs/Cross-Defendants)
McCabes (Defendants/Cross-Claimants)
File Number(s): 2025/176273
Publication restriction: Nil
This proceeding concerns a group of companies known as the “Heartland Motors Group”, which operates a car sales business. The ultimate holding company of the Heartland Motors Group is BG Webb Pty Ltd.
The Heartland Motors Group was founded by the late Mr Bernard George Webb. Mr Webb had three daughters: Ms Joanne Richards, Ms Bernice Hooker and the late Ms Kathryn Turner.
This proceeding is the latest instalment in a long-running dispute between, on the one hand, Ms Richards and Ms Hooker and, on the other, Mr Kieran Turner and Mr Anthony Turner (who are children of Ms Turner).
The estates of Ms Turner and her late mother, Ms Dulcie Webb, have significant shareholdings in BG Webb, which have not yet been distributed. It was common ground that such distribution will occur and that, upon completion, the shareholdings in BG Webb will be as follows:
Ms Richards will hold 320 shares (approximately 30%);
Ms Hooker will hold 320 shares (approximately 30%);
Turnercorp Pty Ltd, a company of which Mr Kieran Turner is the sole director and shareholder, will continue to hold 108 shares (approximately 10%);
Mr Kieran Turner will hold 80 shares (approximately 7.5%);
Mr Anthony Turner (the brother of Mr Kieran Turner) will hold 80 shares;
Mr Ben Turner (who is also the brother of Mr Kieran Turner) will hold 80 shares; and
Ms Sallyanne Turner (who is the sister of Mr Kieran Turner) will hold 80 shares.
To avoid confusion, I will refer to Mr Kieran Turner below as Mr Turner, and to his siblings, where relevant, by their full names.
BG Webb holds all of the issued shares in Bernley Corporation Pty Ltd which, in turn, holds 599 of the 600 issued shares in Heartland Group Pty Ltd. The remaining share in Heartland Group is held by Boyded Industries Pty Ltd (which is itself a subsidiary of Heartland Group).
The directors of each of BG Webb, Bernley and Heartland Group are Ms Richards, Ms Hooker and Mr Turner.
Heartland Group holds all of the issued shares in the following companies, which largely comprise the operating entities of the Heartland Motors Group:
Rossfield Nominees (A.C.T.) Pty Ltd;
T S Management Pty Ltd;
BGW Nominees Pty Ltd;
(the Operating Entities)
Since early May 2025, Ms Richards and Ms Hooker have been the directors of each of the Operating Entities.
A chart showing the structure of the Heartland Motors Group is attached as Annexure A to this judgment.
One of the main issues for determination in this proceeding is whether Boyded was, on 30 April 2025, validly removed and replaced as trustee of the Rossfield Group Trust (RG Trust).
The RG Trust is a discretionary trust that was established by way of a Deed of Settlement dated 28 March 1980 (RG Trust Deed). Its assets include:
a portfolio of shares listed on the Australian Stock Exchange;
real property at the following locations in New South Wales:
(a) folio identifier 10/201177, known as 8 Romford Road, Kings Park; (b) folio identifier 11018-239, known as 206 Hume Highway, Greenacre; (c) folio identifier 1/127943, known as 220 Hume Highway, Greenacre; (d) folio identifier 100/1007863, known as 196 Sunnyholt Road, Kings Park; (e) folio identifier 32/1180330, known as 2166 Castlereagh Road, Penrith; (f) folio identifier 89/137508, known as 130 Sunnyholt Road, Blacktown; (g) folio identifier 1/582182, known as 2 Steel Street, Blacktown; (h) folio identifier 52/1060302, known as 1 Packard Avenue, Castle Hill; (i) folio identifier 1/1293988, known as 277-283 Hume Highway, Greenacre; (j) folio identifier 1/511595, known as 43 Edgar Street, Maroubra; (k) folio identifiers 22/548100 and 23/548100, known as 97 Glossop Street, North St Marys; and (l) folio identifier 30/SP20856, known as Seascape, 53 Bay Street, Tweed Heads;
cash and other financial assets; and
the issued shares in Chicago Properties Pty Ltd and the issued units in the Chicago Unit Trust, of which Chicago Properties is trustee.
The Chicago Unit Trust owns real property located at 18 Chicago Avenue in Blacktown, NSW. This site is partly occupied by the head office of the Heartland Motors Group (Blacktown Office) and otherwise consists of premises leased to third parties.
The claim brought by the Plaintiffs (Boyded, Heartland Motors and Chicago Properties) concerns steps taken by Mr Turner and his brother, Mr Anthony Turner, for the purpose of removing Boyded as trustee of the RG Trust and appointing the First Defendant, Heartland One Pty Ltd, as trustee. Heartland One is an entity of which Mr Turner is the sole director and shareholder. The Plaintiffs contend that those steps were invalid and of no effect, and seek declarations that, inter alia, Boyded remains the trustee of the RG Trust.
In early May 2025, shortly after Ms Richards and Ms Hooker learned of the purported removal and replacement of Boyded as trustee of the RG Trust, Mr Turner was removed as a director of the Operating Entities and his employment as Chief Executive Officer (CEO) of the Heartland Motors Group was terminated. At around the same time, Mr Anthony Turner’s employment as Chief Operating Officer was also terminated.
By their Cross-Claim, Mr Turner and Turnercorp:
allege that Mr Turner’s employment as CEO was not “validly and effectively” terminated, and seek damages for breach of his employment contract; and
allege that, principally by reason of the events surrounding the termination of Mr Turner’s employment as CEO and his removal as a director of each of the Operating Entities, the affairs of the Heartland Motors Group have been conducted in a manner that is contrary to the interests of the members of BG Webb as a whole, or oppressive to, unfairly prejudicial to, or unfairly discriminatory against the Cross-Claimants, within the meaning of s 232 of the Corporations Act 2001 (Cth) (Act).
This proceeding came on for hearing on an expedited basis. The Cross-Claimants were unable to complete their expert evidence on the issue of relief before the commencement of the hearing. Neither party sought an adjournment of the hearing in order to allow this evidence to be completed. Instead, the parties agreed that the Court should proceed to hear and determine all issues with the exception of any orders for relief in respect of the Cross-Claim. This was done on the basis that, if the Court determined that the Cross-Claimants succeeded on either the breach of contract claim or the oppression claim, there would need to be a separate hearing dealing with, for example, damages for the breach of Mr Turner’s employment contract, or the valuation of the shares in BG Webb and the appropriate relief for any oppressive conduct.
The business of the Heartland Motors Group was originally established in the 1960s by Mr Bernard Webb, together with Mr John Down and members of the Auswild family. Mr Down appears to have left the business in its early stages.
On 18 February 1998, Mr Webb passed away. From that time until around 2009, the Heartland Motors Group was owned and controlled by members of Mr Webb’s family and members of the Auswild family.
In 1998, Ms Richards was appointed as a director of various entities within the Heartland Motors Group, including BG Webb, Bernley, Boyded, Heartland Group, Rossfield Nominees and T S Management. Ms Richards has remained a director of those entities since that time and has subsequently been appointed as a director of the remaining Operating Entities.
From about 1995 to 2000, Mr Turner was employed in various roles in the Heartland Motors Group while he completed university. Following a brief period spent studying abroad and subsequently working for an accounting firm, he returned to the Heartland Motors Group and was employed in various administrative, and later executive, roles from 2003 to 2009.
In about 2008, there was a dispute between the Webb and Auswild families as to whether Mr Turner ought to be appointed as the CEO of the Heartland Motors Group. This dispute was resolved on the basis that the Auswilds ceased their involvement in the Group.
In May 2009, Mr Turner was appointed as CEO of the Heartland Motors Group. Around that time, a parcel of shares in BG Webb was issued to Turnercorp, which represented around 10% of the shares then on issue. The other 90% of the shares was held, as to around 22.5% each, by Mr Webb’s three children (Ms Richards, Ms Hooker and Ms Turner) and by Mr Webb’s widow (Ms Dulcie Webb).
In 2017, there was a dispute between the parties regarding the distribution of the proceeds of the sale of a substantial property in Parramatta that was owned by the RG Trust. This sale was structured so as to complete in two “tranches”, involving a payment of $50m followed by a payment of $100m.
Up until this point in time, distributions from the RG Trust had generally been made in proportion to the shareholdings in BG Webb. However, for at least the first tranche of the Parramatta sale proceeds, it was agreed that there would be a departure from the usual course, with distributions instead being made to the eight grandchildren of Mr Webb (being the two children of Ms Richards, the two children of Ms Hooker and the four children of Ms Turner).
The dispute which subsequently arose in early 2017 concerned:
whether it had been agreed that Turnercorp would receive 10% of the sale proceeds, prior to the remaining 90% being split equally between the eight grandchildren (including Mr Turner);
whether it had been agreed that both tranches of the Parramatta sale proceeds (or only the first) would be split in this way; and
whether it had been agreed that the proceeds of the sale of another property which the RG Trust owned at Lakemba, NSW, would be distributed in the same manner as the Parramatta sale proceeds.
I address this dispute below. For present purposes, it is sufficient to note that there was a heated disagreement on this issue (with Mr Turner accusing Ms Richards of being “a shit stirrer” and complaining about his aunts “craft[ing] up these lies and gossip about poison”), and that the dispute appears to have contributed to a deterioration in the relationship between Ms Richards and Mr Turner.
In March 2017, Mr Turner was informed that there was currently no Appointor of the RG Trust, by reason that the Appointor nominated in the RG Trust Deed was a company which had since been deregistered. Mr Turner instructed the Group’s solicitors, HWL Ebsworth (HWLE), to prepare the necessary documentation for the appointment of himself as the Appointor of the RG Trust.
On 24 April 2017, HWLE sent Mr Turner a draft Deed Poll to vary the RG Trust Deed and a draft minute of a meeting of the directors of Boyded. The draft minute contained a resolution approving Boyded’s entry into the Deed Poll and approving Mr Turner’s appointment as the Appointor of the RG Trust.
I will return to the balance of the correspondence exchanged between Mr Turner and HWLE below, when dealing with the Plaintiffs’ claim concerning the RG Trust.
Mr Turner contends that the board of Boyded passed a resolution in the terms drafted by HWLE at a meeting on 1 May 2017, which was attended by himself (in person) and Ms Richards (by telephone), and that he was therefore validly appointed to the office of Appointor of the RG Trust. The Plaintiffs dispute that any such meeting took place and that Ms Richards gave her approval for this appointment.
On 21 July 2017, Mr Turner sent signed documents to HWLE relating to his appointment as Appointor. Several days later, he departed to Biarritz, France, where he remained on an extended sabbatical for a period of around 18 months.
Following Mr Turner’s return from France in early February 2019, he informed the other shareholders that he intended to leave the business and to sell Turnercorp’s shares in BG Webb. The relevant events were the subject of factual findings made in a prior proceeding in this Court between the parties (see Re Heartland Group Pty Ltd [2024] NSWSC 875 at [30]-[49]).
The key events were as follows:
Mr Turner offered to sell his 10% share in BG Webb for an amount of around $42m;
the other shareholders rejected this offer on the basis that it exceeded the value of Mr Turner’s shares by “many multiples”, but indicated that they were open to selling the entirety of the business to a third party;
Mr Turner indicated that he was in discussions with a third party who was interested in purchasing only his shares;
the other shareholders responded that they were concerned about a third party having a role in the management of their family business; and
although Mr Turner indicated that he would pursue such a sale (and circulated a resolution to approve this sale), no such transaction eventuated, with Mr Turner stating that his buyer had “walked”.
During this period, the communications between the parties were characterised by an increasing level of hostility. For example, on 18 March 2019, Mr Turner accused Ms Richards of being “foolish”, and said: “I am exiting the business because of you and yet here you are trapping me in. Very strange, although not unusual … you will regret this.”
On 3 June 2021, Ms Kathryn Turner passed away.
In November 2021, there was a board meeting at which Ms Richards told Mr Turner that the other shareholders wished to sell. Mr Turner responded that “he wasn’t a seller”, but agreed that it was “okay” for them to speak with Mr Nick Politis, who owned a number of car dealerships.
Shortly afterwards, Ms Richards and her mother met with Mr Politis, who indicated that he was not interested in purchasing only their shares (and thereby being in business with Mr Turner), but “would be interested in buying the whole group”. Mr Turner later informed Mr Politis that the Turner family had no plans on selling, and this appears to have brought an end to those negotiations.
On 26 December 2021, Ms Dulcie Webb passed away
As noted above, it is common ground between the parties that, when the estates of Ms Turner and Ms Webb are fully distributed (which has not yet occurred), each of Ms Richards and Ms Hooker will hold around 30% of the shares in BG Webb, Mr Turner will hold around 17.5% (including the 10% interest held by Turnercorp), and each of Mr Turner’s three siblings will hold around 7.5%.
On 1 April 2022, Mr Turner made an offer to purchase each of Ms Hooker’s and Ms Richards’ shares in BG Webb for a total price of approximately $45m. He stated that this represented “the approximate net sale price as you would have received if Nick Politis bought the whole group for c$150m”.
On 26 May 2022, Ms Richards issued a notice of an Extraordinary General Meeting of BG Webb to be held on 29 June 2022 (2022 EGM Notice), for the purpose of considering resolutions to increase the number of directors from two to three, and to appoint Ms Hooker as a director of BG Webb (in addition to Ms Richards and Mr Turner).
On 1 June 2022, Mr Turner’s then solicitors, Madison Marcus, sent a letter to Ms Richards’ solicitors, demanding that the 2022 EGM Notice be withdrawn, failing which Mr Turner would apply to this Court seeking injunctive relief. The matters raised by the letter included that Ms Hooker had no experience as a company director and no experience within the automotive industry, and that her appointment would put at risk the various franchise agreements which the Group had with car manufacturers (Manufacturers).
Ms Richards refused to withdraw the 2022 EGM Notice.
On 27 June 2022, Mr Turner and Turnercorp commenced a proceeding in this Court (the 2022 Oppression Proceeding) seeking:
an interim injunction restraining Ms Richards and Ms Hooker from proposing any resolution to change the board of BG Webb; and
final relief pursuant to s 233 of the Act for alleged oppressive conduct.
On 6 December 2022, Mr Turner convened board meetings of various Operating Entities within the Heartland Motors Group at which he purported (over Ms Richards’ opposition) to pass resolutions appointing his brother, Mr Anthony Turner, as a director of each of those entities. Mr Turner claimed to be able to pass such resolutions unilaterally, by reason that he had been appointed chairman of all of the companies in the Group and had a casting vote. (This contention was subsequently rejected by this Court, both at first instance and on appeal.)
On 3 February 2023, Mr Turner sent an email to Ms Richards, stating that she was not to contact any staff member of the Heartland Motors Group other than himself, and that he had directed staff not to respond to any communications from her.
In May 2023, Mr Turner offered to purchase his aunts’ 60% interest in BG Webb for around $53.86m. In July 2023, Ms Richards and Ms Hooker indicated that they were willing to proceed with a buy-out of their shares, but wanted $135m in cash and properties in return for their interest. Mr Turner responded shortly afterwards, describing this offer as “ugly”, “risky” and “simply a joke”, and stated that “even my last offer is outdated because we have had market changes since”. In September 2023, Mr Turner made a non-indicative binding offer to purchase his aunts’ 60% interest for $47.34m in cash and property (that is, around 10% lower than his May 2023 offer). The buy-out negotiations seem to have stalled at this point in time.
On 23 May 2024, Mr Turner issued notices of Board meetings to be held on 30 May 2024 to consider resolutions for the removal of Ms Richards as a director of Boyded, Heartland Penrith, Heartland Blacktown and HMG Parts.
On 30 May 2024, Mr Turner and Mr Anthony Turner purported to pass those resolutions, over Ms Richards’ opposition.
On 3 June 2024, Ms Richards and Ms Hooker commenced a proceeding in this Court seeking declarations regarding the composition of the boards of various entities within the Heartland Motors Group (the 2024 Directors Proceeding).
On 19 July 2024, Black J delivered reasons for judgment in the 2024 Directors Proceeding, finding that Mr Anthony Turner had not been validly appointed as a director of various Operating Entities on 6 December 2022 (see paragraph [52] above) and that, accordingly, the resolutions removing Ms Richards (which were passed with Mr Anthony Turner’s vote) were invalid and of no effect: In the matter of Heartland Group Pty Ltd [2024] NSWSC 875.
On 15 August 2024, the Court made declarations giving effect to those findings in the 2024 Directors Proceeding: In the matter of Heartland Group Pty Ltd [2024] NSWSC 1029.
On 25 July 2024, Ms Richards sent an email to Mr Turner stating that she and Ms Hooker were “not sellers”, adding that: “what we want is to ensure the ongoing success of the Group for the family”.
On 12 September 2024, Mr Turner served a notice of intention to appeal from Black J’s orders in the 2024 Directors Proceeding. He subsequently filed a summons seeking leave to appeal on 22 October 2024.
On 15 September 2024, Mr Turner executed a deed, by which he purported to exercise his power as Appointor of the RG Trust to appoint Mr Anthony Turner as Supervisor of the RG Trust. The Plaintiffs dispute the validity of this appointment.
On 8 November 2024, Mr Turner made a non-binding indicative offer to purchase his aunts’ 60% interest in BG Webb for around $47.344m. This was, in effect, a restatement of the offer that he had previously made in September 2023 (see paragraph [54] above).
On 3 February 2025, the board of Bernley passed resolutions, over Mr Turner’s opposition, convening an Extraordinary General Meeting of Heartland Group for 26 February 2025 (the February 2025 EGM), for the purpose of considering resolutions to appoint Ms Hooker as a director of Heartland Group (and to remove, to the extent he was validly appointed, Mr Anthony Turner as a director of Heartland Group).
On 25 February 2025, Mr Turner applied to the Federal Court for short service of an application for an interlocutory injunction restraining his aunts from proposing any resolution at the February 2025 EGM to change the composition of the board of Heartland Group (the 2025 Federal Court Proceeding). In addition, Mr Turner sought, in the 2025 Federal Court Proceeding, relief for alleged oppressive conduct. Orders for short service were made, but the application was not served. The 2025 Federal Court Proceeding was discontinued on the following day.
On 26 February 2025, Mr Turner failed to attend, on behalf of Boyded, the February 2025 EGM, with the result that it was rendered inquorate. (The two members of Heartland Group were Bernley as to 99.83% and Boyded as to 0.17%.)
On 4 March 2025, Ms Richards commenced a proceeding in this Court seeking orders pursuant to ss 249G and 1319 of the Act for the convening of a further Extraordinary General Meeting of Heartland Group, including a direction that a corporate representative of Bernley would constitute a quorum of members (the 2025 EGM Proceeding).
On 26 March 2025, the Court of Appeal heard the appeal from the 2024 Directors Proceeding (the 2025 Directors Appeal), and judgment was reserved.
On 15 April 2025, the 2025 EGM Proceeding was heard. On 17 April 2025, Black J delivered judgment in that proceeding and made orders convening an Extraordinary General Meeting of Heartland Group for 2 May 2025 (May 2025 EGM).
On 1 May 2025, the Court of Appeal dismissed the 2025 Directors Appeal: Turner v Richards [2025] NSWCA 83.
On 2 May 2025, the May 2025 EGM was held, and resolutions were passed appointing Ms Hooker as a director of Heartland Group.
On 5 and 6 May 2025, Heartland Group passed resolutions appointing Ms Hooker as a director of each of Boyded, Heartland Motors and BGW Nominees, and removing Mr Turner as a director of each of those entities.
On 6 May 2025, the directors of Heartland Motors (being Ms Richards and Ms Hooker) passed a resolution resolving to terminate Mr Turner’s employment as CEO and Mr Anthony Turner’s employment as Chief Operating Officer, and to appoint Mr Rohan Meyer as CEO. On the same day, letters of termination were sent to Mr Turner and Mr Anthony Turner.
Also on 6 May 2025, Ms Richards and Ms Hooker made an offer to purchase Mr Turner’s and Turnercorp’s shares in BG Webb for a cash amount of $30m. The offer letter noted that Mr Turner’s offer in November 2024 of $47.344m for his aunts’ 60% interest implied a valuation of $13.44m for the 17.5% interest held by himself and Turnercorp, and that the cash offer of $30m represented a 223% premium to that valuation. Mr Turner responded by stating that Ms Richards and Ms Hooker had gone “rogue” and had “lost control of the RGT [RG Trust]” (this being, apparently, a reference to the removal of Boyded and appointment of Heartland One).
On 7 May 2025, Heartland Group passed resolutions removing Mr Turner as a director of Heartland Blacktown and Heartland Penrith, and appointing Ms Hooker as a director of each of those entities.
On 8 May 2025, the Plaintiffs commenced this proceeding seeking, inter alia, declarations that Heartland One had not been validly appointed as trustee of the RG Trust and that Boyded remained the trustee, and that Mr Turner had been validly removed as CEO.
On 15 May 2025, a meeting of Heartland Group was held, at which resolutions were passed removing Mr Turner as a director of HMG Parts, Rossfield Nominees and T S Management, and appointing Ms Hooker as a director of each of those entities.
On 29 May 2025, Heartland One, Mr Turner and Mr Anthony Turner gave an undertaking to the Court, pending further order, not to do, or to resolve or determine to do, the following:
“a. distribute, sell, transfer, dispose of, mortgage, encumber or otherwise deal with, the assets of the [RG Trust] or any interest therein (whether it comprise capital or income);
b. interfere with the entry onto or occupation or use of the properties described in Schedule 1 [being the various properties owned by the RG Trust]”.
Each of Ms Richards, Ms Hooker, Mr Turner and Mr Anthony Turner gave evidence, and each was cross-examined.
The cross-examination of each of Ms Richards and Mr Turner extended over several days.
The Defendants submitted that Ms Richards had a poor memory, which “can be conceived of in two ways”, namely:
“The first is a genuine failure to recall details, sometimes acknowledging memory loss, other times not. The second is one of convenience, remembering what she wants to remember and forgetting the rest.”
Similarly, the Defendants submitted that Ms Hooker had a poor memory, and that she had a “pre-determination to answer questions on a topic a particular way, regardless of what documents were going to be shown to her”.
It is not surprising, in circumstances where the events at issue extend back more than eight years and concern a wide range of dealings and transactions during that period, that each of Ms Richards and Ms Hooker had a limited ability to recall the detail of specific events, or the specific order in which events occurred, or their state of mind at particular points in time.
Further, in circumstances where the main participants in these events have been in dispute for a long time, including various court proceedings over the past few years, their recollections will be, consciously or unconsciously, affected by the entrenched views which each holds regarding the merit of their own position. For example, Ms Richards acknowledged, in cross-examination, that as a result of her dealings and disputes with Mr Turner over the past eight years, her mind was “poisoned” against him.
In Watson v Foxman (1995) 49 NSWLR 315 at 319, McLelland CJ in Eq made the following often-quoted observations regarding the fallibility of human memory, particularly when disputes intervene:
“…human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”
“‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be... Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”
Those matters underline the importance of the Court reasoning to its conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31] per Gleeson CJ, Gummow and Kirby JJ. This does not eliminate the established principles about witness credibility, but it tends to reduce the occasions where those principles are seen as critical: ibid.
While oral testimony needs to be carefully assessed in light of the objective contemporaneous evidence, particularly when given by a party to litigation many years after the events, such testimony can provide important context for understanding particular documents and their significance. In ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24 at [28], Bell P (as his Honour then was) (with whom Bathurst CJ and Leeming JA agreed) observed as follows:
“Documents and events have to be understood in their context, and evidence of context will often be furnished by witnesses in their oral evidence. Documents, moreover, will not always present a complete picture of events. Indeed it would be rare that they do. Nor do contemporaneous documents necessarily or invariably convey or record the background or context in which events took place. That background or context will be familiar to the actors at the time of those events but may not always emerge from documents.”
In addition to advancing the submissions set out above regarding Ms Richards’ memory, the Defendants submitted that Ms Richards is “someone who is not prepared to be honest when it comes to her intention to sell”, including “in her evidence in this case”. This submission was advanced in the context of submissions made by the Defendants regarding a strategy allegedly pursued by Ms Richards, which was said to involve terminating Mr Turner’s employment in order to weaken him and put pressure on him to sell. I address this issue below. In considering this issue, and in determining Ms Richards’ state of mind at various points in time, I have been guided primarily by the objective documentary evidence, rather than her oral evidence regarding her intentions at particular points in time. That is not because I have formed the view that her evidence on those matters was dishonest. Rather, it is because such oral evidence, particularly in the context of an acrimonious dispute spanning an extended period of time, is inherently unreliable, to be treated with caution, and to be carefully assessed in the light of other available evidence. Similar observations may be made regarding the evidence of Ms Hooker and Mr Anthony Turner regarding their respective states of mind at various points in time.
In the case of Mr Kieran Turner, the Plaintiffs went further and made a number of submissions to the effect that his evidence was not merely unreliable, but contained “deliberate fabrications”.
I have determined that Mr Turner’s evidence is untruthful in a number of specific respects, which are identified when resolving the various factual disputes that are addressed below.
Further, I formed the view, over the course of Mr Turner’s extensive cross-examination, that he was at times, and particularly when presented with matters which were inconsistent with his account, evasive and reluctant to make concessions. In particular, there were various instances, which are addressed below, where Mr Turner claimed to be able to recall events that assisted his case with a remarkable degree of specificity (even as to matters which had occurred more than eight years ago), but claimed a complete lack of any recollection about matters which cast doubt upon his account (including actions which he had taken in the days or weeks before he gave evidence).
Mr Turner deposed, in his 9 July 2025 affidavit, that his ability to put on evidence in support of his Cross-Claim had been hampered by the fact that, in early May 2025, access to his Heartland email account “was disabled without notice”. In response, the Plaintiffs filed affidavit evidence establishing that Mr Turner had, at around the time of his termination, sought to delete the entire content of his email inbox (which was able to be substantially recovered from an earlier backup). There was also evidence which suggested that Mr Turner and Mr Anthony Turner had co-ordinated the deletion of their emails at around this time. Specifically, on 7 May 2025, Mr Anthony Turner sent his brother the following text message: “Shall we tomorrow delete all our emails from the server and save them on a usb?” When taken to this message, Mr Turner claimed to have no recollection of it, or of discussing the deletion of emails with his brother, or of copying his emails on a USB, or of whether he has in fact had access to a copy of his emails since 8 May 2025. (In that regard, the Plaintiffs referred, in their closing submissions, to various emails from Mr Turner’s Heartland email address which were exhibited to his affidavit evidence, and which could only have been obtained by his having access to a copy of those emails.)
“Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases.
Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44].”
Instead, I have, in the light of the findings which I have made about the truthfulness or credibility of certain aspects of Mr Turner’s evidence, approached his evidence with caution when determining the specific factual issues that arise in the proceeding, and have evaluated such evidence in light of the contemporaneous documents, the objectively established facts, the apparent logic of events, the existence and nature of corroborative evidence, and the effect of the evidence as a whole.
Finally, in deciding whether I am satisfied that the Plaintiffs and the Cross-Claimants have established their respective claims on the balance of probabilities, I have taken into account the nature of the cause of action, the nature of the subject matter of the proceeding, and the gravity of the matters alleged: Evidence Act 1995 (NSW), s 140(2); Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J; [1938] HCA 34; and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450 per Mason CJ, Brennan, Deane and Gaudron JJ; [1992] HCA 66.
The Plaintiffs seek declarations that Mr Turner was not validly appointed as Appointor of the RG Trust; that Mr Anthony Turner was not validly appointed as Supervisor of the RG Trust; that Heartland One was not validly appointed as trustee of the RG Trust; and that Boyded is and remains the trustee of the RG Trust. The Plaintiffs also seek a final injunction restraining the Defendants from dealing, or purporting to deal, with the property of the RG Trust.
The Cross-Claimants seek an order compelling Boyded to transfer legal title to the property of the RG Trust to Heartland One, to deliver all books and records relating to the RG Trust to Heartland One, and to assign or novate all contracts relating to the RG Trust in favour of Heartland One.
The Defendants/Cross-Claimants contend that the following sequence of events resulted in Boyded being removed, and Heartland One being appointed, as trustee of the RG Trust.
First, on 1 May 2017:
the directors of Boyded (Mr Turner and Ms Richards) met and resolved:
(a) to approve the entry by Boyded, as trustee of the RG Trust, into a Variation by Deed Poll (the Appointor Deed), whereby the RG Trust Deed was amended so as to give Boyded the power to appoint a replacement Appointor if the office of Appointor is vacant for any reason; and (b) to approve, subject to the Appointor Deed being executed, the appointment of Mr Turner as Appointor; and
immediately following this meeting, and in accordance with this authority, the Appointor Deed was executed and Mr Turner was appointed as Appointor of the RG Trust.
Secondly, on 15 September 2024, Mr Turner exercised his powers as Appointor to appoint Mr Anthony Turner as Supervisor of the RG Trust, this appointment being effected by a “Deed of Appointment of Supervisor” that was signed by each of them (the Supervisor Deed).
Thirdly, on 30 April 2025, Mr Anthony Turner exercised his powers as Supervisor of the RG Trust to remove Boyded and to appoint Heartland One as trustee of the RG Trust, this being effected by a “Deed of Appointment and Variation” (Trustee Deed). The Trustee Deed was signed by Mr Anthony Turner as Supervisor and by Mr Turner on behalf of Heartland One.
The Plaintiffs submitted that each of those three steps was invalid and of no effect. In particular, the Plaintiffs submitted that:
the directors of Boyded did not resolve to approve either the entry into the Appointor Deed or the appointment of Mr Turner as Appointor, and his purported appointment was therefore invalid and of no effect;
even if the directors of Boyded did pass a resolution to that effect, the Appointor Deed was outside the power of amendment in the RG Trust Deed and, therefore, the amendment was invalid and of no effect;
by reason that Mr Turner’s appointment as Appointor was invalid and of no effect, his purported exercise of his power as Appointor to appoint Mr Anthony Turner as Supervisor was invalid and of no effect, and therefore Mr Anthony Turner’s purported exercise of his power as Supervisor to remove and replace the trustee was invalid and of no effect;
even if Mr Turner’s appointment as Appointor was valid, his purported appointment of Mr Anthony Turner as Supervisor was invalid and of no effect because Mr Turner exercised his powers as Appointor for an improper purpose; and
even if Mr Anthony Turner’s appointment as Supervisor was valid, his purported removal of Boyded and appointment of Heartland One as trustee of the RG Trust was invalid and no effect because:
(a) Mr Anthony Turner did not exercise his powers upon any real and genuine consideration; or (b) alternatively, the appointment of Heartland One as trustee was “for the benefit of the Appointor” and was therefore beyond the power of appointment in the RG Trust Deed.
In response to the first of these issues, the Defendants/Cross-Claimants submitted that, even if the entry into the Appointment Deed and the appointment of Mr Turner as Appointor had been approved only by Mr Turner (rather than by each of Mr Turner and Ms Richards), this was a “procedural irregularity”, and the Court should exercise its discretion to declare this approval to be “not invalid” pursuant to s 1322 of the Act.
I address each of these issues below.
The RG Trust was established in March 1980 by the RG Trust Deed. The General Beneficiaries of the RG Trust include, relevantly, the children and grandchildren of the late Mr Webb.
Mr Turner estimates, in his affidavit evidence, that the shares and units held by the RG Trust are worth approximately $26.5m. The financial statements of the RG Trust as at 30 June 2023 record “Land and buildings at cost” in the amount of $43.576m. (I do not intend, by referring to those matters, to make any finding regarding the current value of the RG Trust’s assets, but only to indicate that those assets are very substantial and appear to be worth in the tens of millions of dollars.)
The real property owned by the RG Trust is, for the most part, leased back to various Operating Entities pursuant to informal leases and used for the operation of the car dealership business.
Boyded was appointed as a trustee of the RG Trust on 15 December 1992 and became sole trustee on 3 July 1994. It is a wholly owned subsidiary of Heartland Group, and its ultimate holding company is BG Webb.
At all material times up until 5 May 2025, the directors of Boyded were Mr Turner and Ms Richards. On that date, Mr Turner was removed and Ms Hooker was appointed as a director of Boyded.
Mr Turner deposed that, during the period in which he and Ms Richards were directors, Boyded generally resolved that the annual income of the RG Trust was paid either to family members in a manner proportionate with their respective shareholdings in BG Webb, or to companies within the Heartland Motors Group. However, as addressed below, there was a departure from this usual course with respect to the distribution of the proceeds of the sale of two properties, which were located in Parramatta and Lakemba.
In around 2015, Mr Turner was responsible, as CEO of the Heartland Motors Group, for negotiating the sale of land owned by the RG Trust at Church Street in Parramatta, which had been the site of the Boyded Holden dealership (the Parramatta Property). This property was sold to a group of companies known as the “Gateway Group” for $150m. The sale proceeds were to be received in two tranches of $50m and $100m respectively. The first instalment was paid in 2016, and the second instalment was paid in 2017.
It was common ground that there was a discussion between Ms Richards and Mr Turner in which it was agreed that a distribution should be made from the proceeds of the sale of the Parramatta Property to the eight grandchildren of Mr Bernard Webb and Ms Dulcie Webb (that is, the four children of Ms Turner, the two children of Ms Richards, and the two children of Ms Hooker).
However, there was a dispute as to whether this agreement:
related only to the first $50m tranche of the sale proceeds (as Ms Richards contended) or was an agreement in relation to the full $150m (as Mr Turner contended);
was an agreement:
(a) that the sale proceeds be distributed equally between the eight grandchildren (as Ms Richards contended), such that Mr Turner received 12.5% of those proceeds; or (b) that 10% of the sale proceeds be distributed to Turnercorp, with the remaining 90% being distributed equally between the eight grandchildren, including Mr Turner (as Mr Turner contended), such that Mr Turner received 21.25% of those proceeds; and
extended to the distribution of the proceeds of the sale of another property owned by the RG Trust located at Canterbury Road in Lakemba, New South Wales (the Lakemba Property), which was sold for around $18.35m.
It is unnecessary to determine this issue. There are no claims advanced in this proceeding concerning the distribution of the sale proceeds of either the Parramatta Property or the Lakemba Property.
The relevance of this dispute for present purposes is that the parties’ hostile exchanges in early 2017 regarding these matters provide important context for understanding their subsequent dealings in relation to the RG Trust and the Heartland Motors Group more generally. For this reason, a number of the communications regarding these matters are set out below.
On 29 January 2016, Mr Turner sent an email to the Group’s external accountant, Mr Jepsen, copied to Mr Anthony Turner. In this email, Mr Turner stated that: “Its been agreed to distribute the $150m Parramatta settlement direct to the 8 gran[d]kids separate to my 10% as per the attached calculation which [Mr Jepsen] set up for me some time ago”. The attached spreadsheet set out the distributions which were to be made from the $150m sale proceeds in accordance with this “agreement”. Neither Ms Richards nor Ms Hooker was copied on this email.
In around February 2017, Mr Anthony Turner telephoned Ms Richards to ask her about the possibility of borrowing money from her. During the course of this telephone call, Mr Anthony Turner told Ms Richards that his brother had received an extra 10% of the sale proceeds of the Parramatta Property. Subsequently, Mr Anthony Turner’s wife showed Ms Richards a copy of the spreadsheet showing the manner in which the sale proceeds of the Parramatta Property were distributed. The spreadsheet also showed distributions in respect of the sale proceeds of the Lakemba Property.
On 2 March 2017, Ms Richards attended a meeting with Mr Jepsen, Ms Turner and Ms Webb. At this meeting, Mr Jepsen told Ms Richards that: “Lakemba was piggybacked off the Parramatta sale and the proceeds were distributed the same way”. Following the discussion with Mr Jepsen, Ms Richards informed Ms Hooker of these matters.
On the following day, 3 March 2017, Ms Richards sent a text message to Mr Turner and Ms Hooker, stating as follows (emphasis added):
“Mum Kate and I had a meeting yesterday with Greg Jepsen to sign our tax returns. During our talks Greg told us that the sale of Lakemba was being divided the same as it was for the first $50M of [the Parramatta property] and not divided into the proper shareholding. I spoke to Bess and she also confirmed we have never been told this at a board meeting or any other time. We also found out that the division for the $50M wasn’t equally among all the grandkids as we were told it was going to be. We heard you got your 10% and then it was divided amongst you all. We were very disappointed that this also wasn’t conveyed to us as we agreed it should go equally to the 8 of [you] as a one off. I also said that [you] should divide it into 9 giving mum a share. I said at the last board meeting that the rest of the settlement of [the Parramatta Property], if it goes through, was to go in the proper shareholding too (meaning 10% you and 22-1/2% nan KATE Bess and I). Happy to sit down with you when your mum gets back and Bess said she will fly down so we can discuss all this and what’s happening going forward.”
“I’ll get Greg to explain to you the tax advantages of Lakemba as Neal and I did some time ago at a board meeting. Basically it meant the company retained more and paid about $6m less in tax and the family members got less.
Regarding my 10% that’s completely different and separate to any distributions which was agreed unanimously some time ago. What’s the point of me being rewarded the 10% if the other grandkids get the same.
I’m sitting in a dealer award conference to receive a Hyundai platinum award 2016 and I get this text. It’s a disgrace.
Stop looking in the past Jo I’m getting sick of you picking fights with me. Be happy for your set up. If it weren’t for me your life would be very different. I look forward to meeting you all at the next board meeting.”
“We are very happy with you and more than happy for you to have your 10 percent,, what we don’t understand is why the 8 grandchildren have equal shares as the company wasn’t left to them ,,, I understand it was for tax, but the division was wrong,, so don’t think it’s a disgrace for us to query, you probably would too, after all we are family and this is a business question,, sorry if you feel that way ,, look forward to seeing you soon , Bess”
“You all unanimously agreed in January 2016. We have records, personal discussions, text messages and statements in a tax audit to prove this. Bes you personally spoke to Anthony and agreed. Jo, nan and mum personally spoke to me and agreed. Stop looking back, this business is hard enough without all your lack of trust and attempts to rewrite the history books. Jo is just a jealous person because I am going on a 1 year holiday after 23 years of working for heartland and that Adam wasn’t mentioned in an article recently and the 3 turners were. Driven by pure jealousy and bad blood which is breaking the family business up. Just sell out if you don’t like how I run the business. Greg Jepsen or anyone will tell you how well I run it and how much money I have made you all. My integrity should never be questioned and saying I distributed money wrongly is disgusting! Good bye!”
Mr Turner subsequently said to Ms Richards words to the effect that “the split can’t be changed and the proceeds for Stage 2 [of the sale of the Parramatta Property] have to be distributed in the same way as the first lot”.
There are, in evidence, minutes of meetings of Boyded’s board dated, respectively, 30 June 2016 and 30 June 2017. Each is signed by Mr Turner, and each states that Ms Richards attended the relevant meeting. According to these minutes, the board of Boyded (Ms Richards and Mr Turner) resolved to approve the distribution of all of the net income of the RG Trust for, respectively, 30 June 2016 and 30 June 2017, by distributing 9/89ths to Turnercorp, and 10/89ths to each of the eight grandchildren (including Mr Turner).
Ms Richards deposed that she was overseas at the time when these meetings are recorded to have taken place and that she did not attend any meeting of Boyded on either of those dates. There was no evidence that the meetings referred to in those minutes occurred on any other date.
Ms Richards did, however, subsequently sign financial statements of the RG Trust recording distributions which appear to relate to the sale proceeds of the Parramatta Property. In particular, she signed the financial statements of the RG Trust for the financial year ended 30 June 2016 on 22 December 2016, and those for the financial year ended 30 June 2017 on 15 December 2017. When taken to this material in cross-examination, Ms Richards stated that she signed the financial statements on the recommendation of management, without the trust income distribution being pointed out to her. (The financial statements do not refer to any distribution being made to Turnercorp, but do refer to a distribution being made to the Turner Family Trust. Mr Turner gave evidence that Turnercorp accepted distributions from the RG Trust in its capacity as trustee of the Turner Family Trust.)
On 20 March 2017, just over a fortnight after the exchange of messages regarding distributions from the RG Trust which is set out at paragraphs [124]-[127] above, Mr Turner sent an email to Mr Dennis Bluth of HWLE, stating that he had been informed that the Australia and New Zealand Banking Group (ANZ) had “an issue” with the fact that the Appointor of the RG Trust was a deregistered company. Mr Turner stated that the Appointor of the RG Trust was “an important role” and asked for a quote “to update this deed to nominate me as the Appoint[o]r”. He also made the following further request: “Can you also please quote to update our whole group for any deeds, constitutions, articles of association etc that are inadequate, old, lost, unsigned or signed by dead people? We need to clean these loop holes up.” In addition, Mr Turner made the following request to Mr Neal Duggin and Ms Amanda Kragh (who were copied on the email): “Neal / Amanda – do you known any other companies, trusts etc that have such inadequate documentation?”. At this time, Mr Duggin was the Company Secretary and Chief Financial Officer of various entities in the Heartland Motors Group, and Ms Kragh was the Administration Manager.
On 23 March 2017, Mr Bluth forwarded to Mr Turner an email from another partner of HWLE, Mr David Clarke, regarding the Appointor for the RG Trust, which stated as follows:
“The issue would appear to be that there is no incumbent Appointor for the Rossfield Group Trust. The former Appointor is a company which has been deregistered. …
The alternatives are as follows:
1. re-register the former Appointor and complete the appointment of the replacement Appointor before again deregistering the former Appointor; or
2. amend the Trust Deed to permit the Trustee to appoint a replacement Appointor where the office of Appointor has been vacated. The Trustee can then appoint the replacement Appointor.
We believe that (2) is the cleaner approach. …
We would need to prepare the relevant document together with the appropriate minutes of the Trustee resolving to enter into and execute the same.”
“Ok happy to go with option2 as recommended. Please nominate me as the Appoint[o]r.
Do we need to update any other deeds or constitutions in our Group re unsigned docs, lost, old, dead people etc per the attached structure?”
In response, Mr Bluth sent an email later that day, proposing a meeting with Mr Turner, Mr Duggin and Mr Clarke to “go through the corporate structure”.
Around one month later, on 24 April 2017, Mr Clarke sent an email to Mr Turner, copied to Mr Bluth and Mr Duggin, attaching the draft Appointor Deed and a draft minute of Boyded. Mr Clarke stated that:
“These documents give effect to the variation to the Trust Deed to enable the Trustee from time to time to appoint the Appoint[o]r in circumstances where the office of the Appoint[o]r is vacant. The minute approves the execution of the Deed of Variation and the appointment of you as the Appoint[o]r, subject to your consent to act. You should separately by letter to the Trustee advise as follows:
‘I, Kieran Turner, hereby accept with immediate effect my appointment as the Appoint[o]r of the Rossfield Group Trust settled under a Trust Deed dated 28 March 1980’.
This letter should post date the minute.”
“I will do the below as instructed but I would also like you to do that group audit as previously mentioned. Can you please provide a cost and time estimate to do this and what you need from Neal?”
“A. [Boyded] is currently the sole trustee of the [RG] Trust established by the [RG] Trust Deed.
B. Under clause 23 of the Trust Deed, [Boyded] may, at any time and from time to time, by deed of appointment or other deed, declare any new or other powers concerning the Trust Fund, and such powers may relate to the management or control of the Trust Fund.
C. [Boyded] wishes to amend the [RG] Trust Deed by this deed poll to give itself the power to fill the currently vacant office of Appointor on the terms set out in this deed poll.
D. This deed poll is supplemental to the [RG] Trust Deed.”
“In accordance with clause 23 of the [RG] Trust Deed, on and from the date of this deed poll, the Trust Deed is amended as follows:
Insert a new subclause 19(3) to read as follows:
‘Notwithstanding any other provision of this clause 19, the trustee may, if the office of the Appoint[o]r is vacant at any time for any reason whatsoever, appoint a replacement Appoint[o]r in its absolute discretion’.”
“Date: XXX
Time: XXX (Sydney Time)
Location: Sydney
Chair: XXX (Chair)
In attendance: XXX (Mr/Mrs XXX) (in person)
XXX (Mr/Mrs XXX) (by teleconference)
Quorum: The Chair confirmed that a quorum was present.
Trust Deed Variation: IT WAS NOTED THAT
(a) the Company is currently the sole trustee of the Rossfield Group Trust ABN 13 563 017 330 (Trust);
(b) the original appointor under the Trust, Rossfield Appointor Pty Ltd ACN 001 339 171, was de-registered on 30 September 1997 and so cannot perform its duties under the Deed of Settlement dated 28 March 1980 that establishes the Trust (Trust Deed);
(c) the office of appoint[or] under the Trust is currently vacant;
(d) clause 19 of the Trust Deed permits an existing appoint[or] to replace itself but does not provide a procedure to fill the office of appointor where that the [sic] office is vacant;
(e) clause 23 of the Trust Deed allows trustees of the Trust, at any time and from time to time, to declare by deed any new or other powers concerning the trust fund of the Trust (Trust Fund), and that such new or other powers may relate to the management or control of the Trust Fund;
(f) the appointment of a new appointor under the trust is practically necessary and desirable for the ongoing management and control of the Trust Fund.
The Chair TABLED a Variation by Deed Poll to be executed by the Company pursuant to which subclause 19(3) is inserted into the Trust Deed to empower trustees of the Trust to appoint a replacement appointor in the event that the office of appoint[or] is vacant for any reason whatsoever (Deed Poll Variation).
IT WAS RESOLVED THAT:
(a) the Deed Poll Variation and the variation to the Trust Deed that it contemplates is approved; and
(b) the Deed Poll Variation be executed by the Company in its capacity as trustee of the Trust, in substantially the form tabled by the Chair (with such amendments as to form as any director of the Company may approve, such execution to be conclusive evidence of such approval).
(c) Subject to execution of the Deed Poll Variation and Kieran Turner consenting to act as Appoint[or], the Trustee appoint Kieran Turner as the Appoint[or] of the Trust.
Closure: There being no further business, the meeting was closed.”
There were, in evidence, three different versions of the “1 May 2017” Minutes which were signed by Mr Turner.
In each of those three versions, Mr Turner has inserted, in his handwriting, the words:
“1 May 2017” alongside the “XXX” appearing next to “Date”;
“Kieran Turner” alongside “XXX (Chair)”; and
“Neal Duggin” alongside “In attendance: XXX (Mr/Mrs XXX) (in person)”.
In two of those versions (but not the third), Mr Turner has inserted, in his handwriting, the words “Jo Richards” alongside “XXX (Mr/Mrs XXX) (by teleconference)”.
I will address below the circumstances in which the two versions containing the references to “Jo Richards” were created.
Mr Turner deposed that a meeting of the board of Boyded took place on 1 May 2017, at which he and Ms Richards passed the resolution recorded in the “1 May 2017” Minutes; that, immediately following this meeting, he filled in and signed the minutes (neglecting to add Ms Richards’ name) and executed the Appointor Deed; and that he placed these signed documents in the files kept at the Blacktown Office. He further deposed that, after he sent the signed documents to HWLE in July 2017, it was brought to his attention that he had omitted to record Ms Richards’ attendance, and that he amended the minutes at that time by adding her name.
I will address below the details of Mr Turner’s account, which was the subject of extensive challenge in cross-examination.
Neither Mr Duggin or Ms Richards had any recollection of attending any board meeting of Boyded, on around 1 May 2017 or at any other time, at which the subject matter of the “1 May 2017” Minutes was discussed.
Ms Richards gave unchallenged evidence that she had searched her email inbox for the period from 23 March 2017 to 30 September 2017 and had been unable to locate:
any email referring to, or attaching or containing any notice of, a board meeting of Boyded held on or around 1 May 2017; or
any email referring to, or attaching copies of, “the minutes of the supposed board meeting on 1 May 2017” or the Appointor Deed, or the notice signed by Mr Turner purporting to accept his appointment as Appointor.
Mr Duggin acknowledged that his signature appears on the Appointor Deed, but deposed that he does not have any independent recollection of signing this document, including “how that came about, or any other discussion or circumstances surrounding my doing so”.
On 12 May 2017, Mr Turner sent an email to Mr Clarke and Mr Duggin, copied to Mr Bluth, seeking an update on the status of his request for an audit of the corporate structure of the Heartland Motors Group. Over the course of the following week, Mr Turner and Mr Clarke exchanged a number of emails in respect of this audit.
On 21 May 2017, Mr Clarke sent an email to Mr Turner, enclosing a diagram which summarised the details of the trustees, appointors and unitholders of the various entities within the Heartland Motors Group and requesting that Mr Turner “review this document and advise if any changes are required”. The attached document set out the following information in respect of the “Appointor” of the RG Trust:
“Rossfield Appointor Pty Limited…
HWLE prepared draft documentation to replace the Appointor with Kieran Turner. We are not certain whether this documentation has been put in place.”
“… how does it work if the appoint[o]r is a company? Do the directors/chairmen then have control?
Also, do you register the chairman?”
“Where a company is an appointor, it will pass a resolution of its board resolving to exercise its power as an appointor. I am not sure what you are referring to when you mention registering the Chairman. What register are you referring to? My initial feeling would be no.”
On 4 July 2017, HWLE issued an invoice to Mr Turner in relation to the audit of the Heartland Motors Group’s corporate structure. Mr Turner replied that he would pay the invoice, and asking for an update on this audit.
On 5 July 2017 at 9:52am, Mr Clarke responded to Mr Turner’s email, enquiring whether Mr Turner wanted HWLE to update his address with the Australian Securities and Investments Commission (ASIC) in respect of the Operating Entities of which he was a director.
At 10:18am, Mr Turner responded as follows:
“David – you were going to review the groups deeds and constitutions and replace me with any dead or ex-shareholding people?”
“We separately reviewed the trust deeds to identify appointors and unitholders. There are no individual appointors or unitholders excepting for yourself as appointor of the Rossfield Group Trust (see attached).”
The “attached” document relating to the RG Trust, to which Mr Turner’s attention was directed, was a copy of the document referred to at paragraph [152] above, which stated that: “HWLE prepared draft documentation to replace the Appointor [of the RG Trust] with Kieran Turner. We are not certain whether this documentation has been put in place.”
At 1:56pm, Mr Turner responded to Mr Clarke’s email as follows (emphasis added):
“Ok so the only real change is the appointer [sic] of RGT to me which I still need to get signed and will do at our July Board meeting. I will email you this when done so you can register such.”
“Ok so the only real change is the appoint[o]r of RGT to me which I still need to get signed and will do at our July Board meeting. Noted. I will email you this when done so you can register such. There is no external register. You just need to keep the details with the register you maintain for the Unit Trust. It would be useful if you could send copies of the final signed documents to us for our records.”
I will address below the significance of this exchange of messages on 5 July 2017 and, in particular, the issue of precisely what “still” needed to be done as at that date in respect of the “change” to “the appoint[o]r of RGT”.
As set out in this email exchange, Mr Turner contemplated that there would be a meeting of the board of Boyded later in July 2017. As events transpired, no such meeting occurred. On 18 July 2017, Ms Richards sent a text message to Mr Turner, apologising for the late notice and stating that she “[c]an’t make [Board] meeting Friday having something done to my eye”. The following day, on 19 July 2017, Mr Turner informed Mr Duggin and Ms Kragh that the board meeting scheduled for 21 July 2017 had been “cancelled”.
“See attached signed docs for our register appointing me as the RGT Appoint[o]r, please file and note.”
The scanned PDF file comprised of three documents:
a copy of the “1 May 2017” Minutes, in which Mr Turner had inserted the date and the attendees as being Mr Turner and Mr Duggin (with no reference to Ms Richards);
a copy of the Appointor Deed signed by Mr Turner and Mr Duggin; and
a letter dated 1 May 2017 and signed by Mr Turner, accepting his appointment as Appointor (this being drafted in the terms proposed by Mr Clarke in his email of 24 April 2017: see paragraph [136] above).
Moments later, Mr Turner sent the same scanned PDF file to Mr Greg Jepsen of Auswild & Co, who was the external accountant and auditor of the Heartland Motors Group.
On 24 July 2017, Mr Clarke responded to Mr Turner’s email of 21 July 2017, stating as follows:
“There is no public register that would need updating in the same way as you might notify ASIC of a change to the shareholders or officeholders of a company. However, we assume that you have a register for the Trust. These documents should be included with that Register. Let me know if you need a hand with maintaining this Register.”
Later that day, Mr Turner responded to Mr Clarke’s email, stating that his email of 21 July 2017 was an “FYI” and “for your files for future reference if necessary”.
On 27 July 2017, Mr Turner flew to Biarritz, where he stayed for approximately 18 months.
In closing submissions, Senior Counsel for the Defendants identified that the “factual issue to be determined is whether Joanne [Richards] participated in a telephone call with Kieran [Turner] and Mr [Duggin] on 1 May [2017]. It’s that simple.”
More specifically, as stated in the Defendants’ written closing submissions, the issue is:
“whether more likely than not, Joanne participated by telephone in a short informal board meeting held on about 1 May 2017 with Kieran and Mr Duggin (company secretary), at which it was decided that Boyded would enter into [the Appointor Deed] so as to enable the trustee to appoint a replacement Appointor, and subject to that occurring, for Boyded to exercise that power to appoint Kieran as the Appointor.”
The only direct evidence that Ms Richards participated in this meeting is as follows:
the two versions of the “1 May 2017” Minutes in which Mr Turner has, by hand, inserted “Jo Richards” as attending by telephone;
the entry shown in a photograph which Mr Turner took of his 2017 diary, that refers to a telephone call with Ms Richards and Mr Duggin on 1 May 2017; and
Mr Turner’s affidavit evidence of this meeting.
I deal with each below.
“Between 21 July 2017 and the end of July 2017, I received a call from HWL Ebsworth. I do not have a clear recollection of whether I received that call from David Clarke or Dennis Bluth. In that conversation, the caller thanked me for my business and told me that the particular matter with HWL Ebsworth was now finalised. In that phone call, I was asked if Joanne was present at the meeting on 1 May 2017. I replied saying that ‘yes’ she was, but she was not in the room and participated via speakerphone. In response, I was told that the minutes which I had signed would need to be amended to include Joanne's name as an attendee and that the amended minutes should be put with the other records of meetings of Boyded Industries.
Following my call with HWL Ebsworth in late July 2017, I took the minutes of the meeting of 1 May 2017 out of my manilla folder and amended those minutes to record that 'Jo Richards' had attended by teleconference. …
I then placed the amended written minute back into the manilla folder.
I have since searched for the original signed minute from 2017, but have been unable to find it. That search included my home office, and the Coogee Office. I have not searched the Group's head office at Chicago Avenue, Blacktown as I am not permitted to access that office anymore. I do not know what would have happened with the original minute, or when it may have been removed from my office.”
There are a number of difficulties with Mr Turner’s account.
First, the time records of HWLE do not contain a reference to any such telephone call with Mr Turner between 21 and 31 July 2017.
Secondly, HWLE was issued with a subpoena to produce any file note evidencing or recording any such telephone call, and nothing was produced.
Thirdly, on 24 July 2017, Mr Turner stated to HWLE that the “1 May 2017” Minutes were sent “for your files for future reference if necessary” (see paragraph [168] above). If HWLE had raised with Mr Turner, shortly after receipt of those minutes, a concern that the minutes did not record Ms Richards as attending the meeting, and if Mr Turner had immediately addressed this issue by adding Ms Richards’ name, it would be expected that he would have sent a copy of the amended minutes to HWLE for their “files” and for “future reference”. He did not, however, do so at that time, or at any time thereafter.
Fourthly, if HWLE had contacted Mr Turner to raise an issue about the omission in the “1 May 2017” Minutes of any reference to Ms Richards, and had advised that “the minutes which [Mr Turner] had signed would need to be amended to include Joanne's name as an attendee”, it would be expected that HWLE would have requested a copy of the corrected minutes (particularly since, on 5 July 2017, HWLE had expressly asked Mr Turner to “send copies of the final signed minutes to us for our records”: see paragraph [161] above). However, there is no evidence that HWLE made such a request, at this time or any time thereafter.
Fifthly, if HWLE had advised that the corrected minutes “should be put with the other records of meetings of Boyded Industries”, it would be expected that Mr Turner, after correcting the minute, would have done so. The unchallenged evidence of Mr Duggin is that, during his time as Company Secretary, minutes and resolutions “were kept in filing cabinets and cardboard boxes in a cubicle adjacent to the board room at the [Blacktown] Office”. In that regard, Mr Turner deposed that he could recall placing the signed documents “in a manilla folder” that was kept in his office at the Blacktown Office. No file meeting the description of this “manilla folder” has been found, despite extensive searches of the Blacktown Office by the Plaintiffs’ solicitors.
Sixthly, Mr Turner’s account does not explain why there are two copies of the "1 May 2017" Minutes which bear Ms Richards’ name, in Mr Turner’s handwriting. If he had created a version in late July 2017, which he kept in an identified place in the Group’s records, there would have been no need for him to create a further copy at some other point in time.
Finally, no original signed copy of the amended “1 May 2017” Minutes has been located. There are two scanned copies with Ms Richards’ name which date from 2024. As addressed below, when regard is had to the events surrounding the creation of those scanned copies, it is likely that the two versions of the minutes which were scanned in 2024 were created around that date.
On 13 March 2024, Mr Turner sent a text message to Ms Kragh, attaching a photograph of the “1 May 2017” Minutes, which included the handwritten names of only himself and Mr Duggin as the attendees. Mr Turner asked Ms Kragh: “Did we invite Jo to this meeting?”
This led to the following exchange of text messages (emphasis added):
Mrs Kragh: “Sorry I know nothing of this meeting. I can try ask Lee [Payne] but she may not know as would be Greg [Jepsen] time. The wording sounds like Auswild would be involved. Want me try Lee?”
Mr Turner: “Yes and can you please ask Chris to search Neal’s [Mr Duggin’s] email to Jo [Ms Richards] around/before 1 May 2017”
Ms Kragh: “I’ve got ND [Neal Duggin] email will check now”
Mr Turner: [Thumbs up]
“Ok thanks it’s v[ery] important”
“The deed mentions a director by teleconference so I’m hoping she was invited and she agreed to attend by phone”
Ms Kragh: “In email now searching inbox and sent”
Mr Turner: [Thumbs up]
Mr Turner: “Also check emails from hwl [HWLE] or Auswild’s on this meeting/date thanks”
Ms Kragh: “I’ve got some HWL emails they prepared the minutes and instructions I’ve got them bundled to forward but yet to find anything re Jo or even after meeting or about meeting still looking”
“Just emailed what I could find. Nothing re meeting or Jo. Trying Auswild will let you know”
“Lee [Payne] on a zoom will call me around 1 hr.”
Mr Turner: [Thumbs up]
Mr Turner: “Nothing to Jo? About a meeting?”
Ms Kragh: “Nothing tried sent and inbox. Nothing. Not even between you and [Neal Duggin] talking [about] meeting. Nothing found.”
Mr Turner: “Ok I’m hoping he gave the original to Greg [Jepsen] and he knows more?”
Ms Kragh: “Spoke to Lee she is calling Greg and will advise outcome. But not sure they were involved with this one she believes was just HWL but maybe Greg can recall something worth a try.”
Mr Turner: [Thumbs up]
Ms Kragh: “Lee just called me back Greg advised Auswild were not involved and found out after when provided the deed. He is unfortunately not aware of meeting attendance etc. recommended maybe trying ND [Neal Duggin] if he recalls? If you want me to contact him let me know.”
Mr Turner: “Nah all good it’s not a major thing.”
“Q. Look at what you ask Ms [Kragh]. ‘Did we invite Jo to this meeting?’ See that?
A. Yes.
Q. Do you recall yesterday when I asked you some questions whether you had a vivid recollection of this meeting?
A. I don’t recall you asking that.
Q. I can assure you that I did. Remember I asked you your evidence about where people were standing in the meeting--
A. Yes, yes, yes.
Q. --and how you filled out the minutes immediately the meeting was over?
A. Yes.
Q. Then I suggested to you whether you had a good recollection of the meeting, and you said you did.
A. Yes.
Q. Why then, were you asking Ms [Kragh] on 13 March 2024 whether you had in fact invited Jo to that meeting?
A. I was looking for the invite that was sent prior to the meeting.
Q. You weren’t asking Ms [Kragh] whether or not you’d actually invited Jo to the meeting?
A. I was asking her to check [Neal’s] emails to see whether he had invited Jo to the meeting in 2017.
…
Q. Your evidence that I asked you about yesterday--
A. Yes.
Q. --was that you had added your aunt’s name to these minutes after your solicitors rang you and told you that her name was not on them; correct?
A. Yes.
Q. What I’m asking you, if that’s right, if that really happened, why didn’t you send the minutes with your aunt’s name on them to Ms [Kragh] in this text message?
A. I don’t recall.
…
Q. I want to suggest to you that the document at page 14098 [that is the document which was photographed and sent to Ms Kragh] is a document that you found in your records in or about 13 March 2024.
A. I don’t recall.
Q. I want to suggest to you that it’s a document you created just before you went to Biarritz back in 2017.
A. I don’t recall.
Q. I want to suggest to you that that document had been sitting in the company’s records from 2017 through to 2024 in the condition that it’s now shown at page 14098.
A. I don’t recall.
…
Q. What you were doing was asking Ms [Kragh] as to whether or not it was possible that Jo might have attended this meeting.
A. No. I asked her to look for an invite that we had sent Jo to the meeting, and I said to please check - please ask Chris to search [Neal’s] emails to Jo around/before 1 May 2017.”
I do not accept Mr Turner’s explanation that he was, in early 2024, looking for evidence that Ms Richards had been invited to the “1 May 2017” meeting, rather than looking for evidence of her attendance.
First, it is inconsistent with the text of Mr Turner’s message to Ms Kragh, in which he explained why he was asking whether Ms Richards was invited: “The deed mentions a director by teleconference so I’m hoping she was invited and she agreed to attend by phone” (emphasis added). Mr Turner accepted in cross-examination that the reference to the “deed” in this message was a reference to the “1 May 2017” Minutes which he had photographed and sent to Ms Kragh. Mr Turner was not only “hoping” that Ms Richards was “invited”, but was also “hoping” that “she agreed to attend by phone”. He was plainly concerned that the copy of the “1 May 2017” Minutes which he sent to Ms Kragh did not refer to Ms Richards as having attended, and he was unsure whether or not she had agreed to attend, and had attended, this meeting by telephone.
Secondly, it is difficult to see why Mr Turner would have needed, in March 2024, to find evidence of an invitation if he had, in the Group’s records, a copy of a minute recording Ms Richards’ attendance, which he had signed, and if he had a clear recollection that she had, in fact, attended the meeting.
Thirdly, if Mr Turner had, as at March 2024, a copy of the “1 May 2017” Minutes of the meeting with Ms Richards’ name, there is no explanation as to why he attached a copy of the minute which omitted her name (or how he came to take a photograph of the version without her name). According to his affidavit evidence, he created the version of the “1 May 2017” Minutes which did not include her name on 1 May 2017 and put it in a specific folder on that date; and then took it from that folder in July 2017, added Ms Richards’ name, and put it back in that same folder. If that was the case, and he was making enquiries about the 1 May 2017 meeting in March 2024, it is likely he would have opened the relevant folder and obtained a copy of the “1 May 2017” Minutes with Ms Richards’ name, rather than finding (from some unidentified source) a copy of the unaltered minute, taking a photograph of that document, and asking if Ms Richards was invited.
When presented with these difficulties, Mr Turner could not offer any explanation but instead, as set out above (and as occurred frequently during his cross-examination), responded by saying that he had no recollection as to these matters.
On 23 May 2024, Mr Turner gave notices convening board meetings of Boyded and other Operating Entities to consider resolutions to remove Ms Richards as a director of those entities. On 30 May 2024, Mr Turner purported to pass those resolutions with the support of Mr Anthony Turner.
In-between those steps, Mr Turner sent himself, on 28 May 2024, a scanned copy of the “1 May 2017” Minutes, in which he had inserted, in his handwriting, “Jo Richards” as having been in attendance by teleconference.
On 3 June 2024, Ms Richards and Ms Hooker commenced the 2024 Directors Proceeding, seeking declarations as to the identity of the current directors of the entities in the Heartland Motors Group, including Boyded, and challenging the validity of the purported resolutions removing Ms Richards as a director of various entities, including Boyded.
On 16 June 2024, Mr Turner sent himself another scanned copy of the “1 May 2017” Minutes in which he had inserted, in his handwriting, “Jo Richards”.
Whereas the handwriting in respect of the two “Jo Richards” entries is slightly different in the two versions of the “1 May 2017” Minutes which include her name, the other handwritten entries are identical in all three versions of this document:
“Q. Do you agree that the handwriting, other than for the name of Jo Richards, is identical on page 1593, 14131 and 14200 [the three versions of the “1 May 2017” Minutes]?
A. Yes, it’s all my handwriting.
Q. Not only is it all your handwriting, it’s the same version of your handwriting, that is, that 14131 is a copy of 1593 and 14200 is also a copy of 1593?
A. It looks like it, yes.
Q. The only thing that’s changed between the handwriting on 1593 and the handwriting at 14131 and the handwriting at 14200 is how the words “Jo Richards” has been written?
A. Yes. All in my handwriting, though.”
This correspondence suggests that the two “Jo Richards” versions were created from the version without her name, which was sent to HWLE on 21 July 2017.
On 16 June 2024, shortly after scanning and sending the second “Jo Richards” version of the minutes to himself, Mr Turner forwarded a copy to his solicitors, McCabes.
On the following day, 17 June 2024, Mr Turner caused Heartland One to be incorporated. At this time, it was named Heartland Two Pty Ltd and Mr Anthony Turner was a director. Mr Anthony Turner accepted, in cross-examination, that the purpose for which this entity was incorporated was to act as a replacement trustee for the RG Trust.
Mr Turner could not offer any explanation, in cross-examination, as to how there came to be, in mid-2024, two different scanned versions of the “1 May 2017” Minutes in which he had inserted Ms Richards’ name. He appeared at one stage to suggest that he must have wanted to create a second copy of this document for his own records. However, he could not offer any reason as to why he needed to do so, or why, if there was such a need, he did not simply photocopy the existing hard copy, rather than creating a second handwritten version. When pressed on these matters in cross-examination, Mr Turner stated that he could not recall the circumstances in which these copies were made:
“Q. Why would you make a copy in handwriting instead of taking a photocopy or scanning a copy?
A. Because I would have already had copies and I just did a second one for my own records.
Q. You needed another handwritten copy rather than a photocopy of the original? Is that your evidence?
A. I don’t recall. Just giving an option. Not unusual for me to take copies.
Q. See, what I want to suggest really happened is that the only copy of any minute that you held involving the meeting of 1 May 2017 as at March 2024 was the version that you see at page 14098 [that is, the version sent to Ms Kragh, which did not include Ms Richards’ name].
A. No.
Q. I want to suggest to you that there was no version with your aunt’s name on it for these minutes prior to 28 May 2024.
A. No.
Q. I want to suggest to you that on 28 May 2024 you wrote the name Jo Richards on the document at page 14131.
A. No.
Q. Where do you say you got that document from then?
A. Which one?
Q. The document at page 14131 [the version sent to himself on 28 May 2024].
A. They’re just photocopies, I suppose. I don’t recall.
Q. You just found it in a drawer and then scanned it to yourself? Is that your evidence?
A. I don’t recall where I found it.
Q. Do you recall scanning it?
A. No, I don’t, actually.
Q. Do you recall why--
A. No, I don’t.
Q. --you might have scanned it?
A. No.
Q. So you just can’t say - you can’t tell his Honour at all why it is that there is a scanned document at page 14130?
A. To myself.
Q. To yourself. No idea?
A. I don’t recall.”
“Q. On 16 June ’24, you sent the minutes - sorry - after you scanned the document at page 14199, you sent that document to your solicitors, did you not?
A. I don’t recall.
Q. What I want to suggest to you was that you sent the document at page 14200 to your solicitors for the purposes of creating a fraudulent series of documents that would allow you to take control of the Rossfield Group Trust.
A. I don’t recall.
Q. You don’t recall whether you committed a fraud?
A. No, I don’t recall scanning these documents like you say.
Q. I want to suggest to you that you scanned those documents for the purposes of being able to cause a new trustee to be appointed to the Rossfield Group Trust.
A. No.
Q. Why did you scan these documents then, on 16 June 2024?
A. I don’t recall.
Q. Then how do you know it wasn’t for the purposes of trying to get your trustee appointed to the Rossfield Group Trust?
A. I don’t recall.
Q. You do understand that the proceedings were commenced by your aunts in June 2024 to try and get control of the BG Webb entities? You knew that, didn’t you?
A. I think that was the chairman court battle, wasn’t it?
Q. Before Black J.
A. The chairman issue. Yes.
Q. You were disputing the validity of the appointment of Bess to that board and your aunts were disputing the validity of the appointment of Anthony to those boards?
A. Yes.
Q. Whoever won that battle was going to have control of the BG Webb group of companies. That was your understanding, wasn’t it?
A. I don’t recall.
Q. What I’m suggesting to you is that within a couple of weeks of your aunts commencing those proceedings, you scanned the document at page court book 14200. It’s not a coincidence, is it, Mr Turner, that that scan took place within a few weeks of your aunts commencing the proceedings that were heard by Black J?
A. I don’t recall.”
It is implausible that, in circumstances where Mr Turner had, in 2024, shown great concern to locate any evidence that might prove that Ms Richards attended a meeting of the board of Boyded on 1 May 2017, he would have had no recollection as to the means by which he came to have two different versions of the minutes with her name in May and June 2024, or why he sent those minutes to his solicitors, in the midst of litigation with his aunts over the control of Boyded.
Finally, it is notable that, although Mr Turner sought evidence or confirmation of Ms Richards’ attendance at the 1 May 2017 meeting from Ms Kragh, from Mr Duggin’s records, from HWLE’s emails, and from Mr Jepsen and Ms Payne of Auswild & Co, he did not make any enquiry of Ms Richards herself. There was no explanation for his failure to do so. It must have been a deliberate omission on his part. The likely reason for his failure to do so is that he did not wish to alert Ms Richards to the fact that there was no evidence of her attendance at a meeting of the board of Boyded on 1 May 2017 which had purportedly approved his appointment as Appointor, or to the fact that he was intending to exercise his powers as Appointor to appoint Mr Anthony Turner as Supervisor of the RG Trust.
In closing address, Senior Counsel for Mr Turner accepted that, having regard to the fact that the scanned versions of the “1 May 2017” Minutes with Ms Richards’ name were created shortly after Mr Turner was seeking to find documentary proof for her attendance at a meeting of board of Boyded on that date, the Court “might accept [the Plaintiffs’] submissions that the documents first had Joanne’s name added to it at that time”.
Having regard to the chronology set out above, and the terms of Mr Turner’s messages with Ms Kragh in March 2024, I find, that:
Mr Turner did not, prior to May 2024, have any copy of the “1 May 2017” Minutes which referred to Ms Richards as having attended the purported 1 May 2017 board meeting, and could not otherwise locate any evidence to substantiate his “hope” that she had been present;
he created the two versions of the “1 May 2017” Minutes which include “Jo Richards” as having attended by teleconference at around the time that he scanned those documents in May and June 2024, in circumstances where he did not know whether or not Ms Richards had in fact attended;
he did so in order to fabricate documentary evidence to support a contention that the board of Boyded (including Ms Richards) had approved his appointment as Appointor of the RG Trust; and
his evidence that he could recall amending the “1 May 2017” Minutes in July 2017 to add Ms Richards’ name, following a telephone conversation with HWLE, was untruthful.
In his 7 August 2025 affidavit, Mr Turner included a number of photographs which he stated were images of his “diary for the period of 24 April 2017 to 14 May 2017”. The first handwritten entry for 1 May 2017 was “Ring Jo Re Appointer, with Nd.” Mr Turner deposed that he had written this “action item” in his diary “[p]rior to 1 May 2017”.
The photograph showed that this item had been ticked. Mr Turner deposed that it was his practice to tick an appointment or task in his diary to signify once it had been completed.
Accordingly, the photograph was, according to Mr Turner, contemporaneous documentary evidence that Mr Turner had scheduled a telephone call with Ms Richards (“Jo”) and Mr Duggin (“Nd”) regarding the change of “Appoint[o]r” on 1 May 2017, and that this telephone call had taken place.
Mr Turner deposed, in a further affidavit of 5 September 2025, that he had taken these photographs of his diary on 1 June 2025.
It follows that, on Mr Turner’s evidence, the photographs of these pages from the diary were taken several days before the Statement of Claim was served by the Plaintiffs (on 5 June 2025), and therefore before the Plaintiffs had advanced any allegation that the “1 May 2017” Minutes “did not record proceedings at any actual meeting of Kieran and ‘Neal Duggin’ that occurred on 1 May 2017, or at all”.
Mr Turner could not, in cross-examination, offer any explanation as to why, prior to any such allegation being raised, he had decided to take out a diary from eight years earlier and take a number of photographs (including of the entries in his diary for 1 May 2017). He claimed to have no recollection of the circumstances surrounding the taking of those photographs:
“Q. The statement of claim that I’ve just showed you in which the allegations were made against the genuineness of your evidence about the 1 May 2017 meeting weren’t made until 5 June 2025. Are you able to explain why you were looking at your diary four days before that?
A. I don’t recall.
Q. Where were you when you took those photographs?
A. It says here I was at home.
Q. Where had this story - this diary been stored before you took the photographs that you refer to at paragraph 5 of this affidavit?
A. I assume it was at home.
Q. Do you have all your diaries stored at home or just the diary for 2017?
A. I have some.
Q. Why some and not others?
A. I don’t recall.
Q. Why did you take the photographs of your diary on 1 June 2025 that you describe in paragraph 5 of your affidavit?
A. I don’t recall.
Q. Just for old times’ sake, you thought you’d go through some old diaries and take some photographs of some particularly good days? Was that the reason?
A. I don’t recall.
Q. Do you recall going and getting your diary, and taking these photographs?
A. I don’t recall.
Q. You don’t recall getting your diary on 1 June 2025, and taking photographs of it?
A. I don’t recall.
Q. Less than five months ago, you go and take a diary that’s the best part of eight years old, take it out, and take photographs of specific pages, and you don’t recall why you did this?
A. I don’t recall.
Q. Did you take photographs of any other diaries whilst you were taking photographs of your 2017 diary?
A. I don’t recall.”
Mr Turner also claimed to have no recollection of what he did with his diary after he took the photographs on 1 June 2025, or after he took some further photographs on 5 August 2025.
On 21 August 2025, the Plaintiffs served a Notice to Produce for Inspection on Mr Turner’s solicitors, seeking, inter alia:
“The complete original physical diary from which images included at paragraphs 66 and 67(d) (and TUR.0005.0001.0133, enclosed) in the affidavit of Kieran John Turner sworn on 7 August 2025 were made.”
“Q. Did you look for the diary after your solicitors received the notice to produce on or about 21 August 2025?
A. I don’t recall.
Q. You’ve got no recollection of whether you looked for your diary after the notice to produce was served?
A. No. No.
…
Q. I want to suggest to you, you knew prior to 28 August 2025 that your solicitors had received on your behalf a notice to produce your diary by 28 August 2025.
A. I don’t recall.
Q. I want to suggest to you, you deliberately chose to ignore that notice to produce and to not produce your diary in accordance with the notice to produce.
A. I don’t recall.
Q. Do you recall going at any stage after receiving the notice to produce - do you recall going looking for your diary?
A. Yes, towards - closer to more recently, I remember looking for the diary.”
In order to explain this turn of events, the Defendants filed an affidavit from Ms Brigid Bargwanna, which was sworn on 5 September 2025. Ms Bargwanna is Mr Turner’s mother-in-law.
Ms Bargwanna deposed that, in either the week starting 11 or 18 August 2025, she had cleaned the house of her daughter and Mr Turner, as she typically did; that this had involved “throwing out what appeared to be rubbish”; and that, in the course of doing so, she had picked up “a black diary” which had been left on the kitchen bench and threw it into the recycling bin without first consulting with anyone whether she should do so.
Although the Notice to Produce which was served on 21 August 2025 (and was likely forwarded by Mr Turner’s solicitors to him on that date) required production of his diary by 28 August 2025, Mr Turner deposed that he did not take any steps to locate the diary, or make any enquiries as to what had happened to it, until 2 September 2025 (which happened to be several days after the recycling was collected on 27 August 2025).
When Ms Bargwanna was, in cross-examination, challenged as to why she concluded, without asking anyone, that a diary on a kitchen bench was rubbish, Ms Bargwanna stated that the kitchen bench was, in effect, where the members of the household left paper which they wanted to be recycled. (This appears to be inconsistent with Mr Turner’s own evidence, in his 5 September 2025 affidavit, that he regularly leaves his briefcase “and other papers” – apparently a reference to papers on which he is working, or which he wishes to retain – “on the kitchen bench when I come home at the end of the day”.)
Assuming the correctness of Ms Bargwanna’s evidence regarding this household practice, there was no explanation as to why Mr Turner, having kept his 2017 diary safely for eight years and having identified that it contained critical evidence for this proceeding, left the diary lying on his kitchen bench, when he was (presumably) aware that the household practice was that any paper left there was regularly gathered up and thrown away. Mr Turner deposed that he had “no memory of leaving my 2017 Diary on the kitchen bench” and that due to his “movements, level of activity and stress”, he “must have put it down there at some point and then neglected to put it away”. It would be expected that, if his stress were due to the issues in the proceeding, he would have taken particular care to preserve important evidence in the proceedings which was in his possession, instead of leaving it, for some unidentified period (which appears to have been at least some days), in a place where the members of the household put paper for recycling.
Further, there is evidence that suggests that Ms Bargwanna may have discussed her evidence with Mr Turner prior to swearing her affidavit. At 8.17am on 5 September 2025, Mr Turner’s wife had sent a message to Mr Turner stating as follows: “She hasn’t answered. I’ll text her and say we need to speak tomorrow and not to speak to them till she’s spoken to us.” It is likely that this is a reference to Mr Turner and his wife needing to speak to Ms Bargwanna, prior to her speaking to the solicitors for the purpose of giving evidence in the proceeding. Mr Turner responded by “liking” his wife’s text message.
“She also said she is happy to sit in her beach house in qld…”
“She also said she is happy to sit in her beach house in qld and have Kieran be her Director…”
(Mr Turner’s email reads: “change the below min black and send back in a new email”. It is likely from the context and the events which followed that Mr Turner was requesting that his brother “change” the recollection “below” by adding the words “in black” and then re-send the email).
It is unnecessary to make any finding regarding the circumstances in which the diary came to be unavailable by the time of the hearing. In particular, I do not make any finding that this evidence was destroyed, or draw any inference from such a finding.
Whatever the fate of the hard copy paper diary, the key issue for present purposes is whether there is an adequate basis for the Court to conclude that the entry in the photograph of the diary for 1 May 2017 – “Ring Jo Re Appointer, with Nd” – was written prior to, or around, 1 May 2017, as opposed to being added at some unknown time prior to 5 June 2025 (when the photographs were taken). The photograph itself is capable of proving only that the entry was in the paper diary as at the date that the photograph was taken. The sole evidence that the entry was written in the diary on around 1 May 2017 is Mr Turner’s affidavit evidence to this effect.
I am unable to give this evidence any significant weight, having regard to my findings that, in 2024, Mr Turner fabricated two versions of the “1 May 2017” Minutes which included Ms Richards’ name, in circumstances where he was aware that there was otherwise no documentary evidence that she had been invited to or had attended any such meeting.
Further, there is reason to doubt that Mr Turner had in his possession, prior to 2025, a copy of his 2017 diary which included an entry confirming that a meeting had been arranged with Ms Richards and Mr Duggin on 1 May 2017 to discuss the Appointor of the RG Trust, and that this meeting had occurred. In particular, if Mr Turner had such an entry in his 2017 diary as at early 2024, it is difficult to see why he was asking Ms Kragh to search Mr Duggin’s inbox to see if there was any evidence that Ms Richards had been invited to, and had attended, such a meeting.
For those reasons, I have disregarded the entry for 1 May 2017 in the photograph of the 2017 diary.
“On 1 May 2017, I met with Neal at the Group's head office of 18 Chicago Avenue, Blacktown, and we called Joanne to discuss the appointor issue. Prior to that meeting, I printed the documents emailed to Neal and me by HWL Ebsworth on 24 April 2017... I cannot recall if an unsigned copy of these documents were emailed to Joanne before the meeting took place.
…
Joanne did not attend the meeting on 1 May 2017 with Neal and I in person. Rather, Neal and I telephoned her.
At the start of the meeting on 1 May 2017, I explained to Joanne that this was not an ordinary operations or performance 'board meeting' of directors of the Group, it was specifically a meeting of Boyded Industries for the purpose of giving effect to HWL Ebsworth's advice and to nominate a new appointor to the RGT and that there were no other agenda items. Joanne said ok.
Neal was sitting at his desk and read out loud to Joanne over the phone by reference to the unsigned documents which had been printed out and were in front of him. I cannot recall if Neal read aloud the entirety of the contents of each document which had been printed, or if he provided a high-level overview. I recall leaning against Neal's filing cabinet while Neal was speaking. Neal then asked Joanne if she had any questions. Joanne said she did not.
After reading out the proposed resolution contained on the draft minutes, I called for the resolution to execute the deed poll to be voted upon. Joanne and I both said we agreed with the resolution.
After the meeting ended, and in Neal's presence:
(a) I signed and dated the minutes of the meeting, recording myself and Neal as attendees and myself as chairperson;
(b) Neal and I signed the Deed of Variation; and
(c) I signed a document accepting my appointment as the Appointor of the RGT which I had prepared consistent with HWL Ebsworth’s advice of 24 April 2017.
I then took the signed documents to my office in the Group’s head office…
I did not, however, on 1 May 2017, include Joanne’s name in the minutes of the meeting of Boyded Industries at the time of signing them.
To the best of my recollection, the call with Joanne only lasted about 5 or 10 minutes.
I recall placing the signed documents (being the signed minutes of meeting, the signed Deed of Variation and the document accepting my appointment as appointor of the RGT in a manilla folder in my office at the Group’s head office located at 18 Chicago Avenue, Blacktown where the Group’s business records were kept. I no longer have access to those premises.”
There are a number of difficulties with this evidence.
First, it is inherently implausible that Mr Turner, who repeatedly stated his lack of recollection of matters relevant to these proceedings (including events concerning a critical piece of evidence – the diary – which occurred in the month before he was cross-examined), would have a detailed recollection of what was, on his evidence, a routine telephone call concerning the administration of the RG Trust, which occurred more than eight years earlier and which “only lasted about 5 or 10 minutes”. On his account, he was able to recall not only the substance of the matters said at this meeting, but could “recall leaning against Neal’s filing cabinet while Neal was speaking”, and could recall that “Neal was sitting at his desk and read out loud to Joanne over the phone by reference to the unsigned documents which had been printed out and were in front of him”. Further, he claimed to have an actual recollection not only of signing the minutes and the Appointor Deed immediately after the conclusion of this meeting in Mr Duggin’s presence, but of placing the signed documents “in a manilla folder in my office” (which has not been located, despite extensive searches of the Group’s records).
Secondly, there are specific features of the account which are implausible.
In particular, it is implausible that Ms Richards (who had, only a month or so earlier, been involved in an acrimonious argument with Mr Turner regarding distributions from the RG Trust) would, when presented with a proposal that Mr Turner be appointed as Appointor of the RG Trust, simply reply “ok”. Ms Richards deposed that she was, following the dispute about the sale proceeds from the Parramatta and Lakemba Properties, “wary and distrustful of the manner in which Kieran was dealing with dividends and distributions from the Trust” (as is shown by her message set out at paragraph [124] above), and that she therefore considered it “highly unlikely” that she “would have readily agreed, in the course of a brief conversation, to the taking of steps to give Kieran any further control over the Trust, at least without an opportunity to properly understand the nature and effect of anything that was being proposed”. That evidence is logical and accords with common sense. In that regard, Mr Duggin gave evidence that, in his experience, Ms Richards would usually, when presented with legal documents of this nature, request an opportunity to get advice before providing her consent. That evidence is supported by the numerous examples in evidence of Ms Richards seeking advice from her solicitors on materials provided to her as a director, or proposals put to her for her agreement.
It is also implausible that, if Mr Turner had, immediately after a meeting with Ms Richards and Duggin, completed the “1 May 2017” Minutes in Mr Duggin’s presence, he would have recorded only himself and Mr Duggin as attendees, without including any reference to Ms Richards (and without Mr Duggin noticing this omission).
“Q. Is this what you’re telling his Honour: that after these documents were created on 1 May 2017, they went into the Blacktown office, do you agree with that much?
A. Yes.
Q. But for some reason, at some later point in time, you picked them up and took them to the King Street office?
A. Yes.
Q. You could have just sent them to the solicitors from the Blacktown office; couldn’t you?
A. I hadn’t registered them.
Q. Oh, you hadn’t registered them, in the register that you don’t know what it is, in that register? Is that the register you’re referring to?
A. I didn’t know what register, yes.
Q. So you create the documents at the Blacktown office, you with me so far? You don’t - and you place them in the offices, in a manila folder, in your office at Blacktown? Yes?
A. Yes.
Q. But then you pick them up and take them to the King Street office so that they can go into the register that you don’t know exists?
A. The file travelled with me to and from the offices in a briefcase while the matters were ongoing. The audit was still going, the register hadn’t been signed.
…
Q. Your evidence is that instead of these documents that I’ve just taken you to being stored in the filing cabinets and cardboard boxes maintained by the Company Secretary in head office at Blacktown, you personally took these documents with you wherever you happened to be during this period?
A. Yes.
Q. Took them home as well?
A. If I didn’t go from Blacktown straight to King Street Wharf, I would take them home and then I’d take them to King Street Wharf. King Street Wharf was my main office.
Q. If you left them at King Street Wharf and then went to Blacktown, you wouldn’t have had them available to you if they were required for the audit. That’d be right. Wouldn’t it?
A. Yes.
…
Q. You could end up with the documents, these important company documents, in an entirely different office from when they were, from where they were usually stored. Is that your evidence?
A. It’s possible.
Q. All because, you say, you wanted to keep these documents with you so that they would be available when the auditors required them.
A. Yes.”
This evidence is implausible. It is highly unlikely that Mr Turner was carrying documents relating to the Appointor of the RG Trust with him throughout the period from 1 May 2017 to 21 July 2017 in case they were needed for some register (which he could not identify), or for the audit of the companies in the Group being conducted for HWLE. If the documents were needed for either of those purposes, it is likely that he would have provided copies of the documents to HWLE as soon as they were executed.
Fourthly, even if the version of the “1 May 2017” Minutes which was sent to HWLE in July 2017 were regarded as a reliable contemporaneous record of events, it is inconsistent with Mr Turner’s account, since it indicates that any meeting to address the issue of the Appointor of the RG Trust (whether on 1 May 2017 or at some other unidentified time) was attended by Mr Turner and Mr Duggin, but not by Ms Richards, and that she therefore was not asked to, and did not, approve at any such meeting, the appointment of Mr Turner as Appointor of the RG Trust.
Fifthly, the terms of Mr Turner’s exchange of messages with Ms Kragh indicate that he did not, in 2024, have any recollection of whether Ms Richards was invited to, or attended the meeting, but instead “hoped” that this was the case (see paragraphs [184]-[189] above).
Sixthly, on 3 May 2025, Mr Turner sent a text message to Mr Anthony Turner, which attached a letter sent by Ms Richards’ solicitors in response to the purported notification of removal and replacement of Boyded as the trustee of the RG Trust. In this text message, Mr Turner stated as follows (emphasis added): “It’s not as bad as I thought it would be. Seems they don’t have any documents and so far I’m happy. Once we give them the docs then we will find out if they have an argument. And they haven’t said jo was away on 1 May etc so that’s good.” The italicised statement would be an odd statement to make if (as Mr Turner deposes) he had a vivid recollection of Ms Richards attending the meeting with him and Mr Duggin on 1 May 2017, and he had a copy of the minutes recording her attendance, which he had created in 2017, and a hard copy diary indicating that such a meeting had taken place. It does, however, make sense if Mr Turner did not in fact have any such recollection, and was aware that the only evidence that Ms Richards had attended such meeting was the version of the “1 May 2017” Minutes that he had created in mid-2024.
Finally, the credibility of Mr Turner’s affidavit evidence regarding these events is seriously undermined by his conduct in creating documentary evidence, in 2024, of Ms Richards’ attendance at a meeting of the board of Boyded on 1 May 2017, in circumstances where he was aware, from his enquiries, that no such documentary evidence existed.
Having regard to those matters, I find that Mr Turner’s affidavit evidence, which he maintained in cross-examination, that he had a detailed recollection of Ms Richards’ participation in a meeting of the board of Boyded on 1 May 2017, and a recollection of amending, in July 2017, the “1 May 2017” Minutes so as to include Ms Richards’ name was untruthful.
“The fact that a witness is disbelieved does not prove the opposite of what he asserted ... It has sometimes been said that where the story of a witness is disbelieved, the result is simply that there is no evidence on the subject …, but although this is no doubt true in many cases it is not correct as a universal proposition. There may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example, that the truth would be harmful to him; and it is no doubt for this reason that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case … Moreover, if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of the alternative state of facts …”
The Defendants submitted that – even if the Court were to determine (as I have found) that no weight should be placed on Mr Turner’s affidavit account of the 1 May 2017 meeting, or on the “1 May 2017” Minutes which include Ms Richards’ name, or on the photographed entry in the 2017 diary – the Court would infer from the following objective matters that it was more likely than not that an informal telephone meeting of the directors of Boyded occurred on 1 May 2017, at which the directors resolved to approve Mr Turner’s appointment as Appointor:
in late March 2017, HWLE had informed Mr Turner that there was no incumbent Appointor of the RG Trust, and recommended amending the RG Trust Deed so as to permit Boyded to appoint a replacement Appointor when the office was vacant;
communications on that specific subject matter then ensued between HWLE, Mr Turner and Mr Duggin, in March and April 2017;
in the week prior to 1 May 2017, HWLE sent an email to Mr Turner and Mr Duggin, attaching a set of documents to implement this recommendation, including the Appointor Deed and a minute of a meeting to be held of Boyded’s directors that set out resolutions to enter into the Appointor Deed and, subject to that occurring, to appoint Mr Turner as Appointor;
1 May 2017 fell on the Monday in the week following receipt by Mr Turner and Mr Duggin of this document pack from HWLE;
Mr Duggin told the Plaintiffs’ solicitors in May 2025 that board meetings were pretty informal, with Ms Richards usually dialling in by telephone. It would therefore be unsurprising, and indeed expected, that a meeting held on 1 May 2017 would have been attended by Ms Richards by phone, particularly where it was an “impromptu” meeting to address a one-off item that had been recommended by HWLE;
Mr Duggin (who was company secretary) and Mr Turner signed the Appointor Deed in 2017; and
Mr Duggin acknowledged in cross-examination that he understood that, as company secretary, he was the guardian of corporate governance of the Group, and in performing that role, ensured that:
(a) when board meetings were required in order for decisions to be made for a company in the Heartland Motors Group, those meetings were arranged and held, and (b) when he signed a contract as an officer of a company in the Group, he ensured that the board had met and authorised for that to occur.
The matter in paragraph (4) above – namely, that 1 May 2017 was the Monday following the provision of the draft documentation to Mr Turner – is a simple matter of fact. However, it has implicitly bundled up in it a suggestion that there was some need to deal with this matter promptly, leading to Mr Turner calling a meeting several days later, on short notice, and with no papers being provided in advance.
There is no indication in the contemporaneous correspondence that there was thought to be any need (or that Mr Turner understood that there was any need) to deal with this issue before the next scheduled board meeting, which was to be held on 21 July 2017. For example, HWLE did not advise that the documentation should be executed as soon as possible.
The company which was named as Appointor in the RG Trust Deed (namely, Rossfield Appointor Pty Ltd) had been deregistered almost twenty years earlier. There was no indication that the lack of an Appointor had caused, was causing, or was about to cause, any immediate difficulty. Although there was reference in the email correspondence to a “friend” of Mr Turner at ANZ indicating that the bank had some “issue” with the Appointor being a deregistered company, there is no indication that this presented any pressing impediment or problem for the conduct of the affairs of the RG Trust or of the Heartland Motors Group.
The only power given to the Appointor by the Trust Deed is the power specified in clause 19, which (prior to any amendment affected by the Appointor Deed) read as follows:
“(1) THE Appointor named or described in the Seventh Part of the Schedule may from time to time by instrument in writing appoint any other person or persons as Supervisor hereunder and may at any time revoke any such appointment.
There is no contemporaneous documentary evidence that, as at May 2017, there was any, or likely to be any, occasion for the power in clause 19(1) to be exercised at any time in the near future. No contemporaneous document refers to any need to appoint a Supervisor of the RG Trust, or otherwise refers to any intention on the part of Mr Turner to take any step as Appointor shortly after his appointment.
In those circumstances, there was no need for a meeting of the board of Boyded to be arranged at short notice, to deal with the appointment of an Appointor to the RG Trust, rather than leaving it to be addressed when the board next met.
Further, the communications between Mr Turner and HWLE after 1 May 2017 support a finding that no meeting of the board of Boyded had yet been held to deal with the Appointor issue and that Mr Turner was planning to deal with this at the next scheduled board meeting in July 2017.
On 21 May 2017, HWLE sent Mr Turner a document which stated, in relation to the RG Trust, that “HWLE prepared draft documentation to replace the Appointor with Kieran Turner. We are not certain whether this documentation has been put in place.” Mr Turner did not respond to this query by stating that this documentation had already been executed, and providing a copy. Instead, he asked, “how does it work if the appoint[o]r is a company?”; whether in such circumstances, the “chairman” or “directors” have control; and whether it was necessary to register the “chairman” (see paragraphs [152]-[154] above). As previously noted, Mr Turner was of the view that he was “chairman” of the companies within the Heartland Motors Group. This email indicates that, as at 21 May 2017, Mr Turner was contemplating whether the new Appointor should be a company within the Group and wanted to know, in order to assist with this decision, whether the Appointor would be controlled by the directors of the company (who would likely be himself and Ms Richards) or by the “chairman” (that is, solely by Mr Turner). HWLE responded that the power of a corporate appointor would be exercisable by its board.
On 5 July 2017, HWLE provided Mr Turner with an update on the outcome of their audit of the Heartland Motors Group, and specifically referred Mr Turner to the attached document, which was a copy of the document sent to him on 21 May 2017, stating that HWLE were “not certain whether [the documentation to replace the Appointor of the RG Trust] had been put in place”. On the same day, Mr Turner responded that the “change” of the “appoint[o]r of RGT to me” was something “which I still need to get signed and will do at our July Board meeting”, promising to “email you this when done” (paragraphs [156]-[161] above).
Mr Turner was cross-examined about this email exchange. He claimed that what he “still need[ed] to get signed” was a “register” in relation to the change of the Appointor of the RG Trust. However, he could not identify this “register”, or explain why the register needed to be signed at a meeting of the Board (if the relevant documents to effect the change had already been executed on the Board’s authority), or why he would need to send a signed “register” to HWLE “so [they] can register such”. An extract from the cross-examination is set out below:
“Q. The word ‘still’ means something that you’d already undertook to do. Doesn’t it?
A. No. It doesn’t. I haven’t signed the register.
Q. You weren’t talking about the register, Mr Turner. Were you?
A. Yes. I was.
Q. You were talking about the documents at 1575 through to 1583 [the draft Board minute and the Appointor Deed]. Weren’t you?
A. I talk about register, register, register, register. It’s clear I’m talking about the register.
…
Q. No, no, no, Mr Turner, your next sentence is, ‘I will email you this when done so you can register’, not you producing a register or completing a register. You’re sending the documents to your solicitors for them to register.
A. Yes, so before he responded, I didn’t know what register, legal register, an internal register or an [Auswild] & Co register. He has confirmed there is no external legal register, but he has confirmed that there is a register that does exist.
…
Q. What register do you claim you maintain for the unit trust?
A. I don’t know. That’s the whole point.
…
Q. Why would you say, have a look at the next sentence, ‘I will email you this when done so you can register such.’ Why would you say, ‘I will email you this register when done so you can register such’? You wouldn’t say that; would you?
A. I’ve told you, there’s many registers.
Q. Right. So, I just want to make this clear. The second sentence, after the word noted.
A. Yes.
Q. ‘I will email you this.’ You say that reference to this is a reference to a register?
A. Yes.
Q. ‘So I will send you this register when done so you can register.’ That’s your evidence?
A. ‘I will send you the documents so you can register such.’
Q. Hang on, the documents? You mean the documents that were sent to you on 24 April 2017?
A. Yes.
Q. Right. So you are saying, and they’re the same documents that you’re referring to in the line above; correct?
A. Yes.
Q. Right. So you are saying that when those documents are signed, you will send them to your solicitors so that they can register them?
A. There’s a legal register, there’s a financial register, there’s an internal register. Here’s one piece of the puzzle.
Q. Just listen to my question. You agreed with me that the documents that you’re saying, ‘I will email you this when done so you can register’, is in fact a reference to the documents referred to in the first sentence. You just agreed with me on that.
A. It’s the documents that required to be registered. You need the documents for the registration.”
I do not accept Mr Turner’s explanation of his email of 5 July 2017. In that communication, he expressly stated that, as at that date, he “still need[ed] to get signed” the “change” of “the appoint[o]r of RGT to [himself]” (that is, the documentation to effect this change was yet to be executed) and that he intended to get this signed at a forthcoming meeting of the board of Boyded later in July 2017. That is important contemporaneous evidence that, as at 5 July 2017, no such documentation had been executed, and that this was because the necessary board meeting had not yet been held.
Finally, in his 5 July 2017 email to HWLE, Mr Turner promised to “email you this when done so you can register such”, that is, to send the completed documentation regarding the change of Appointor once it was executed. Mr Turner subsequently emailed that material to HWLE and the Group’s external accountants on 21 July 2017, stating as follows in his email to HWLE: “See attached signed docs for our register appointing me as the RGT Appoint[o]r, please file and note.” It is likely, having regard to the terms of the emails of 5 and 21 July 2017, that the documentation (including the ”1 May 2017” Minutes) was executed around the time that it was sent to the Group’s lawyers and accountants.
As regards the matter in paragraph [245](5) above, I accept that there was evidence that meetings of the directors of Boyded (Ms Richards and Mr Turner) could be, and were from time to time, organised outside the scheduled meetings, and Ms Richards sometimes attended such ad hoc meetings by teleconference.
However, there is no communication from Mr Turner or Mr Duggin to Ms Richards referring to such a meeting, either before or after it occurred, despite Ms Kragh having apparently undertaken extensive searches for such evidence in 2024.
Nor is there any documentary evidence of Ms Richards being informed, at any time, whether before or after 1 May 2017, of any issue regarding the Appointor of the RG Trust, or any proposal to amend the provisions of the RG Trust Deed in respect of the Appointor, or any proposal to appoint a replacement Appointor.
Nor is there an entry for any such meeting on 1 May 2017 in Mr Duggin’s electronic diary, in circumstances where he gave unchallenged evidence that: “It was my usual practice to diarise all board meetings attended by me in my Microsoft Outlook calendar.”
The Defendants submitted that this omission was not significant, because Mr Duggin “gave evidence that he would not necessarily diarise informal meetings of the kind that occurred”. In fact, the relevant part of Mr Duggin’s affidavit read as follows: “I am aware that, on occasion, the directors had informal meetings (i.e. a meeting not identified in the meeting schedule) to address urgent matters. I do not recall ever participating in these meetings, and I would not expect them to be recorded in my diary”. That is, Mr Duggin’s evidence was that (unsurprisingly) his diary would not record any informal meeting of Mr Turner and Ms Richards which Mr Duggin did not attend. However, the purported board meeting of 1 May 2017 is said to be a meeting which Mr Duggin did in fact attend. Mr Duggin stated, in a proof of his evidence which the Defendants tendered, that he was “fairly rigorous” in his practice of diarising board meetings, and if the meeting of 1 May 2017 had occurred (which he is said to have attended), he would expect it to be in his diary. The lack of any reference to this meeting in his diary is therefore a significant matter.
Mr Duggin also gave unchallenged evidence that, ahead of each board meeting, Ms Kragh would send out a board pack which he would approve and that “[i]f additional documents were to be considered at a board meeting, [he] would ordinarily provide them, or arrange for [Ms Kragh] to provide them, to the directors ahead of the meeting”. That accords with good corporate governance and common sense. However, there is no record of the Appointor Deed being sent to Ms Richards prior to the meeting. There is no explanation in Mr Turner’s affidavit as to why this did not occur.
“Q:…You understood that one of your roles as company secretary of the companies in the [BG] Webb Group was to act as guardian of corporate governance?
A. Yes.
Q. And you sought to act accordingly when performing your role as company secretary, that is--
A. Yes.
Q. --to act as guardian of corporate governance?
A. Yes.
Q. In that role, acting as guardian of corporate governance, you would ensure that where board meetings were required in order for decisions to be made for the company, that those meetings were arranged and held?
A. Yes.
Q. You ensured that where you signed a contract in your capacity as an officer of the company that the board had met and authorised you to do so; correct?
A. Yes.”
On the basis of this evidence, the Defendants submitted that “it is unlikely that Mr Duggin would have signed the Deed of Variation unless a board meeting had been arranged and held to approve this occurring”.
However, the evidence above was couched in terms of what Mr Duggin would do “where board meetings were required in order for decisions to be made for the company”. It was not put to Mr Duggin that he understood, or would have appreciated, at the relevant time, that there needed to be a board resolution before he could sign the Appointor Deed as Company Secretary. The Appointor Deed does not refer to any authority from the board of directors being required or obtained in relation to the document. He was not asked, in cross-examination, any questions about the extent of his understanding as to the circumstances in which the authority of the board of Boyded (Mr Turner and Ms Richards) was required, and in which the authority of the CEO (Mr Turner) would not be sufficient. In those circumstances, the generalised concessions which he made regarding his practices are of minimal significance.
The Plaintiffs pleaded that, if and to the extent that the “1 May 2017” Minutes recorded an actual meeting of Mr Turner and Mr Duggin (which Ms Richards did not attend), any such meeting was not a quorate meeting of the board of Boyded that was capable of passing a resolution in the terms recorded, and that at no time has a quorate meeting of Boyded passed any resolution to that effect (see Further Amended Statement of Claim, [29]-[30]).
The Defendants admitted that, at all material times, a quorum of two directors was required for the transaction of business by the board of Boyded (Defence [15]). However, in response to the allegations in paragraphs [29]-[30] of the Further Amended Statement of Claim, the Defendants pleaded that:
“… even if there had been such procedural irregularity (denied), such a procedural irregularity does not render the resolution invalid, or alternatively, the Court may, and it is contended should, make an order declaring the resolution, the amendment deed and the appointment of Kieran Tuner as appointor of the trust not invalid under s 1332 of the Corporations Act.”
(1) In this section, unless the contrary intention appears:
(a) a reference to a proceeding under this Act is a reference to any proceeding whether a legal proceeding or not; and
(b) a reference to a procedural irregularity includes a reference to:
(i) the absence of a quorum at a meeting of a corporation, at a meeting of directors or creditors of a corporation, at a joint meeting of creditors and members of a corporation or at a meeting of members of a registered scheme; and
(ii) a defect, irregularity or deficiency of notice or time.
…
(4) Subject to the following provisions of this section but without limiting the generality of any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes:
(a) an order declaring that any act, matter or thing purporting to have been done, or any proceeding purporting to have been instituted or taken, under this Act or in relation to a corporation is not invalid by reason of any contravention of a provision of this Act or a provision of the constitution of a corporation;
…
(6) The Court must not make an order under this section unless it is satisfied:
(a) in the case of an order referred to in paragraph (4)(a):
(i) that the act, matter or thing, or the proceeding, referred to in that paragraph is essentially of a procedural nature;
(ii) that the person or persons concerned in or party to the contravention or failure acted honestly; or
(iii) that it is just and equitable that the order be made; and
…
(c) in every case--that no substantial injustice has been or is likely to be caused to any person.
In closing written submissions regarding this issue, the Defendants contended that, irrespective of whether there was any resolution of the board of Boyded, Ms Richards had given Mr Turner “sole responsibility as director for handling and making decisions about legal matters, such that he could, on behalf of Boyded, decide who to appoint as Appointor”, with the effect that (irrespective of whether Ms Richards was involved in the decision) the execution of the Appointor Deed and appointment of Mr Turner as Appointor were valid.
I accept the Plaintiffs’ submission that there is no pleaded case advanced by the Defendants to the effect that Mr Turner had been given “sole responsibility” for “legal matters” related to Boyded, such that he had unilateral authority to execute the Appointor Deed and to appoint himself as Appointor of the RG Trust. It would be a substantial denial of procedural fairness to the Plaintiffs to permit such an issue to be raised by the Defendants in closing submissions, in circumstances where the Plaintiffs were not afforded any opportunity to address the issue in evidence in chief.
In any case, the evidence before the Court was insufficient to make out any such contention. The Defendants principally relied on the following concessions by Ms Richards in the course of her cross-examination:
“Q. You just left it to Kieran to run the enterprise; correct?
A. Correct.
Q. Gave him responsibility to make decisions concerning the affairs of the group?
A. Correct.
Q. Including legal decisions?
A. Including?
Q. Legal decisions.
A. What do you mean by legal decisions?
Q. Decisions relating to legal matters affecting the group?
A. Yes.
Q. You gave him responsibility to look after that, didn’t you?
A. Yes.”
Those propositions leave entirely at large how such responsibility was given to Mr Turner (including whether it was given by the board of one or more corporate entities), when it was given (including whether it was given before or after 2017), what was the scope of any responsibility to “look after” decisions, and what was the scope of “legal matters”. Those matters were otherwise unexplored on the evidence because no issue regarding the existence, source and scope of any delegated authority was pleaded.
Further, any contention that Mr Turner had been given, as at 1 May 2017, “sole responsibility” to approve and execute, on behalf of Boyded, documents such as the Appointor Deed, is at odds with:
the documents drafted by HWLE in April 2017, which indicated that a resolution of the Board was required in order to give effect to Mr Turner’s appointment;
Mr Turner’s statement to HWLE, on 5 July 2017, that he intended to get the relevant documentation signed at the forthcoming board meeting; and
Mr Turner’s concern to find (and subsequently create) some evidence in 2024 which indicated that Ms Richards had attended a board meeting on 1 May 2017 at which a resolution to approve Mr Turner’s appointment as Appointor had been passed.
I turn then to the Defendants’ pleaded contention that any lack of a quorum was a “procedural irregularity” which the Court should determine did not invalidate the passing of the relevant resolution. In this regard, the Defendants advanced the following submissions:
“Further, even if Joanne’s absence meant that the Deed and appointment were invalid, the appropriate course would be for the Court to exercise power under s 13[22] of the Corporations Act declaring such items not invalid. There is no evidence that a different decision would have been made in 2017 if Joanne had been present when the decision was made. She had given Kieran complete responsibility for the making of decisions in relation to the Group, including relevantly here, decisions relating to legal matters affecting the Group. He was the Group’s managing director. Joanne understood nothing or almost nothing of what she was told on any legal or accounting matter, would not read documents that were provided to her in an attempt to understand them, and did not know what an appointor was. As such, even if she had been present, the result (Deed of Variation and the appointment of Kieran) would have been the same. A director who pays such disregard for their duties and responsibilities, and consequentially leaves another director with all of the burdens, should not be allowed to later complain about and take advantage of a procedural irregularity in order to confer, years after the relevant events, some personal advantage that she would never have enjoyed even if she had been involved in the decision. It was clear that Boyded needed a legal issue to be solved in 2017 by the appointment of an Appointor to the Rossfield Trust and that the person who was the obvious choice for that role was Kieran.”
I reject this submission, for four main reasons.
First, it proceeds on the basis that there was in fact a meeting of the directors of Boyded, which was attended by Mr Turner and Mr Duggin (but not Ms Richards), at which a decision was made to approve Mr Turner’s appointment. The only evidence that any such meeting occurred is the version of the “1 May 2017” Minutes which Mr Turner sent to HWLE on 21 July 2017. Mr Turner did not assert that any such meeting (attended only by himself and Mr Duggin) took place. Nor did Mr Duggin have any recollection of attending a meeting at which the subject matter of the “1 May 2017” Minutes was discussed. Further, Mr Turner did not assert that there was any occasion, whether on 1 May 2017 or otherwise, on which he purported to unilaterally pass a resolution of the board of directors of Boyded. I am not satisfied that any such meeting was in fact held.
Secondly, assuming that there was a meeting on 1 May 2017 which was attended by Mr Turner and Mr Duggin, but not Ms Richards, the relevant “act, matter or thing purporting to be done” which the Defendants seek to have declared “not invalid” is the purported passing of a resolution at that meeting approving the amendment to the RG Trust Deed and Mr Turner’s appointment as Appointor. This would not be a case of a “procedural irregularity”. On this scenario, the thing that was in fact done (namely, the passing of a resolution by Mr Turner alone) differed in form, substance and effect from the thing that ought to have been done (namely, the consideration and, if thought fit, passing of a resolution by Boyded’s board): see Onefone Australia Pty Ltd v One.Tel Ltd [2010] NSWSC 1120 at [9]-[12] (Barrett J).
Thirdly, I am not satisfied that, assuming Mr Turner did purport to pass a resolution in relation to the Appointor of the RG Trust in Ms Richards’ absence, he was acting honestly in so doing. He was aware (from the materials provided to him by HWLE) that any appointment of a new Appointor to the RG Trust had to be approved by the board of Boyded. He did not, in his affidavit evidence or in cross-examination, give any evidence that he believed, in 2017, that such a decision could be taken by himself, without any reference to Ms Richards, let alone identify any basis for such a belief. His conduct in creating, in 2024, two versions of the “1 May 2017” Minutes which included Ms Richards’ name indicates that he in fact understood that her agreement was essential.
Fourthly, the Defendants focussed, in the submissions quoted above, on Ms Richards’ lack of interest in various other legal matters concerning the Heartland Motors Group. However, Ms Richards had, as at May 2017, a keen interest in the administration of the affairs of the RG Trust and, in particular, in the distributions made from the sale proceeds of the Parramatta and Lakemba Properties. This was evident in the discussions which occurred, and messages which were sent, about this topic in early 2017 (see paragraphs [124]-[128] above). One of the relevant distributions which was the subject of dispute – being a payment of more than $8.5m to Mr Turner – was made on 16 May 2017. Having regard to those matters, I accept Ms Richards’ evidence that if the proposal to appoint Mr Turner as Appointor of the RG Trust had been brought to her attention on or around 1 May 2017, it is highly unlikely that she would have agreed to this proposal, without seeking an opportunity to obtain legal advice in order to understand the nature and effect of what was proposed. Further, it is likely that, if she had been advised as to the nature and effect of what was proposed, she would have opposed it.
“THE Trustee for the time being may at any time and from time to time by deed of appointment or other deed revoke add to or vary all or any of the trusts herein-before limited or the trusts limited by any variation or alteration or addition made thereto from time to time and may by the same or any other deed or deeds declare any new or other trusts or powers concerning the Trust Fund or any part or parts thereof the trusts whereof shall have been so revoked added to or varied but so that the law against perpetuities is not thereby infringed and so that such new or other trusts powers discretions alterations or variations:
(i) may relate to the management or control of the Trust Fund or the application or investment thereof or to the Trustee’s powers or discretions in these presents contained;
(ii) shall not be in favour of or for the benefit of the Settlor or result in any benefit to the Settlor but shall otherwise be for the benefit of all or any one or more of the General Beneficiaries hereunder or, if there shall be none, for the benefit of all or any one or more of the statutory next of kin of the last surviving Primary Beneficiary;
(iii) shall not affect the beneficial entitlement to any amount set aside for any beneficiary prior to the date of the variation alteration or addition.”
Clause 1.1(vii) defines the Appointor as meaning “successively the person or persons named and described as such in the Seventh Part of the Schedule”. The person named in the Seventh Part of the Schedule is Rossfield Appointor Pty Ltd (which was deregistered on 30 September 1997).
Clause 3 of the Appointor Deed provided as follows:
“In accordance with clause 23 of the Trust Deed, on and from the date of this deed poll, the Trust Deed is amended as follows:
Insert a new subclause 19(3) to read as follows:
‘Notwithstanding any other provision of this clause 19, the trustee may, if the office of the Appoint[o]r is vacant at any time for any reason whatsoever, appoint a replacement Appoint[o]r in its absolute discretion’.”
The Plaintiffs submitted that the power in clause 23 to “vary all or any of the trusts herein-before limited” does not extend to a power to vary the Trust Deed insofar as it contains provisions concerning the office of Appointor, as distinct from a variation of the RG Trust created by the Trust Deed.
In support of this submission, the Plaintiffs relied on Mercanti v Mercanti [2015] WASC 297. In that case, there was an issue as to whether, in respect of two different trusts (described as the MMF Trust and the FW Trust), a purported amendment to the trust deed so as to change the identity of the appointor was valid. The power of amendment was, in each trust deed, couched in different terms, and this difference was critical to Le Miere J’s reasoning at first instance.
The amendment clause in the MMF trust deed provided, relevantly, that “the Trustees … may … vary … the trusts terms and conditions hereinbefore contained” (at [87]). Le Miere J concluded as follows (at [91], emphasis added):
“In my opinion the natural and ordinary meaning of the words of cl 28 are that the trustees may amend the provisions of the trust deed, including the items in the Schedule naming or describing the Appointor and the Guardian. In my opinion there is nothing in the remaining provisions of the trust deed that necessarily imply that the trustees cannot amend the deed by removing the Appointor or Guardian and replacing them.”
An appeal from his Honour’s decision in respect of the MMF trust deed was dismissed: Mercanti v Mercanti (2016) 50 WAR 495; [2016] WASCA 206.
The amendment clause in the FW trust deed provided as follows (at [98], emphasis added):
“14.1 The Trustee may at any time and from time to time (but whilst there shall be an Appointor only after having given not less than 30 days written notice to the Appointor of his intention so to do) by deeds revoke add to or vary all or any of the trusts hereinbefore provided or the trusts provided by any variation alteration or addition made thereto from time to time and may by the same or any other deed declare any new or other trusts or powers concerning the Trust Fund or any part thereof the trusts whereof shall have been so revoked added to or varied.
14.2 The powers specified in clause 13.1 shall not be exercised so that:
14.2.1 any interest under the trusts as so revoked added to or varied may vest after the expiry of the perpetuity period;
14.2.2 any member of the Excluded Class is becomes or may become entitled to any interest or benefit under the trusts as so revoked added to or varied; or
14.2.3 the beneficial entitlement to any amount set aside for any Beneficiary prior to the date of the variation alteration or addition is affected.
14.3 Save as provided in clauses 14.1 and 14.2 these presents shall not be capable of being revoked added to or varied.”
“The crucial words of cl 14.1 are ‘the Trustee may … vary … the trusts hereinbefore provided’. In my opinion the trusts hereinbefore provided are the trusts provided for in the earlier provisions of the trust deed. Clause 2 (Declaration of Trust) declares that the trustee shall stand possessed of the Trust Fund and the income thereof upon the trusts and with and subject to the powers and provisions hereinafter expressed. The trusts and powers expressed are found in cl 2 (Declaration of Trust), 4 (Profits of the Trust), 5 (Vesting of Trust), 6 (Benefits in Addition), 7 (Trustee Powers), 8 (Trustee’s General Powers). The identity of the Appointor is not ‘any of the trusts hereinbefore provided …’.
In my opinion the natural and ordinary meaning of the words ‘the Trustee may … vary … the trusts hereinbefore provided’ does not extend to varying the terms and conditions of the trust deed dealing with the office of Appointor as distinct from the trusts created by the trust deed. The FW Trust Deed distinguishes between ‘the trusts’ and ‘the trusts powers and provisions’ of the trust deed. The definition clause defines ‘Trust’ to mean ‘the trusts powers and provisions as constituted by this Deed of Settlement’. The word ‘Trust’ appears in cl 15.4 which refers to persons claiming a beneficial interest in over or upon ‘the property subject to this Trust’. Clause 15.10 specifies that the law applicable to ‘this Trust’ shall be the law of the place of the residence of the Trustee. In contrast, the power of amendment in cl 14 refers to varying ‘the ‘Trusts” herein before provided not ‘the Trust’. Perhaps more persuasive is that cl 2.1, in which the Settlor declares the trust, distinguishes between ‘the trusts’ and ‘the powers and provisions’ in the trust deed. Similarly, cl 3.1, which is concerned with indemnity and exclusion of liability, distinguishes between ‘Trusts’ and ‘authorities, powers and discretions’ of the trust deed by referring to the execution or failure to exercise ‘any of the trusts authorities powers and discretions’ of the trust deed ‘by virtue of being Trustee of the Trust’. Section 8 of the trust deed, which deals with trustee’s powers, distinguishes between ‘trusts’ and ‘powers’ and ‘powers and provisions’. Clause 8.19 refers to questions arising under or in relation to the execution of ‘the trusts and powers of this Deed’. Clause 8.29 refers to the trustees appointing the whole or any part of the Trust Fund to be held upon other trusts and thereupon ‘the trust herein declared concerning that property’ shall cease and the property shall be subject to ‘the trusts powers and provisions contained in the other settlement’.
Clause 14 of the FW Trust Deed does not empower the Trustee to remove the Appointor and appoint a new Appointor in his, her, or their place.”
His Honour’s findings in respect of the FW trust deed were not the subject of any appeal.
In closing written submissions, the Defendants did not engage with the reasoning in Mercanti, asserting as follows (emphasis added):
“The power of amendment in clause 23 expressly includes a power to add to or vary the trust recorded in the deed. On the natural meaning of these words, this would enable the deed to be varied so as to enable the trustee to appoint an appointor where the position becomes vacant.”
The Defendants’ submission does not accurately reflect the language of the relevant clause in the RG Trust Deed. Clause 23 does not provide a power to “vary the trust recorded in the deed”, but rather (as in the FW trust deed considered in Mercanti) a power to “vary all or any of the trusts herein-before limited”.
As was the case with the FW trust deed in Mercanti, the clause of the RG Trust Deed by which the Settlor declares the trust distinguishes between the “trusts” and the “powers and provisions” in the Trust Deed, providing as follows:
“IN consideration of the premises the Settlor as Settlor HEREBY DECLARES that the Trustee shall and the Trustee HEREBY DECLARES that it will henceforth stand possessed of the Trust Fund and of the income thereof upon the trusts and with the powers and subject to the provisions hereinafter expressed”.
The Defendants did not address, in their submissions, the manner in which the term “the trusts” is used in the RG Trust Deed, nor explain, by reference to such use, why a power of the trustee to “vary the trusts herein-before limited” would extend to a power to amend the provisions of the trust deed so as to replace the Appointor specified in the RG Trust Deed. The Defendants did not identify any basis, in terms of the language of the RG Trust Deed, for distinguishing the reasoning in Mercanti regarding the scope of the similarly worded power in the FW trust deed.
Nonetheless, I consider it preferable not to express any concluded view on the scope of the amendment power in the RG Trust Deed, in circumstances where it is unnecessary to express any view on that issue in this proceeding, in particular because the issue has received only scant attention in the written and oral submissions of the parties and there has been no analysis undertaken, in submissions, of the terms used in clause 23 in light of the other provisions of the RG Trust Deed, such as was undertaken in Mercanti.
The Plaintiffs further contended that, even if the “1 May 2017” Minutes were (contrary to my findings above) an accurate record of a meeting of the directors of Boyded:
those minutes “record the simultaneous authorisation of Boyded’s execution of the deed of amendment (to give itself power to appoint an appointor) and the exercise of the power arising consequent upon the amendment”;
the Appointor Deed (which amended the RG Trust Deed) must have been executed after the authorisation was given by the board of Boyded; and
it follows that Boyded purported to exercise the power to appoint an Appointor before it conferred upon itself that power.
In support of this argument, the Plaintiffs referred to authorities to the effect that a trustee must exercise a power at the time it falls to be exercised, and cannot fetter its exercise of discretion by determining to exercise a power in advance: Fitzwood Pty Ltd v Unique Goal Pty Ltd (2001) 188 ALR 566; [2001] FCA 1628 at [121] per Finkelstein J, citing Thacker v Key (1869) LR 8 Eq 408; and Re Baron Vestey’s Settlement [1951] Ch D 209.
The Plaintiffs submitted that:
“A corollary of that position is that a trustee cannot determine to exercise a power that it does not presently have, even if it will obtain that power in the future. Assuming that it had power to vary its trust powers in the manner provided for by the Deed Poll, and in fact exercised that power, it did not until the subsequent execution of the Deed Poll have that power, and thus could not have validly exercised the new trust power it had granted to itself at the time of the alleged meeting and thus fetter its future discretion as to whether, and if so how, to exercise that discretionary power created after that time.”
If it were necessary to decide this issue (in the event that I had determined that a meeting of the board of Boyded had occurred on 1 May 2017 with Ms Richards in attendance, as recorded in the amended “1 May 2017” Minutes, and as recounted in Mr Turner’s affidavit), I would have rejected these submissions.
First, it is important to have regard to the terms of the resolution recorded in the “1 May 2017” Minutes (emphasis added):
“IT WAS RESOLVED THAT:
(a) the [Appointor Deed] and the variation to the Trust Deed that it contemplates is approved; and
(b) the [Appointor Deed] be executed by the Company in its capacity as trustee of the Trust, in substantially the form tabled by the Chair …
(c) Subject to execution of the [Appointor Deed] and Kieran Turner consenting to act as Appoint[or], the Trustee appoint Kieran Turner as the Appoint[or] of the Trust*.*”
In short, the Board resolved that the Deed Poll be executed and that, subject to this occurring, Mr Turner be appointed as the Appointor of the Trust.
To describe this as the Board “fettering its future discretion” regarding the exercise of its power to appoint an Appointor is to seek to draw a temporal distinction between events which were, as a matter of substance, all part of one transaction. In particular, if I had accepted the accuracy of Mr Turner’s account of the 1 May 2017 meeting, I would have found that:
Mr Turner printed out and brought to the 1 May 2017 meeting copies of each of the draft documents provided to him by HWLE – namely, the draft minutes, the Appointor Deed and the document by which Mr Turner was to accept the appointment as Appointor;
Mr Duggin either read out or provided a summary of each of those documents, following which Ms Richards and Mr Turner resolved to approve both the execution of the Appointor Deed and Mr Turner’s appointment as Appointor; and
immediately following this meeting, which lasted around 5 or 10 minutes, Mr Turner signed each of those documents in Mr Duggin’s presence (with Mr Duggin also signing the Appointor Deed).
If I had made findings to the above effect, then I do not think it could be said, in any substantive sense, that Boyded had impermissibly “fettered its discretion” regarding the manner in which its power would be exercised in the future, by determining that Mr Turner should be appointed as Appointor of the RG Trust in advance of Boyded’s having (mere moments later) the power to do so.
Accordingly, if I had found that the meeting of 1 May 2017 had occurred, as set out in the amended “1 May 2017” Minutes and as recounted in Mr Turner’s affidavit, and had found that Boyded had power, pursuant to cl 23 of the RG Trust Deed, to amend the RG Trust Deed so as to confer upon itself the power to replace the Appointor of the RG Trust, I would not have concluded, on the basis of this “timing” issue, that the exercise of that power was invalid.
I have determined that the board of Boyded did not authorise the execution of the Appointor Deed and that this document was therefore invalid and of no effect.
It follows that:
Mr Turner did not have power to appoint Mr Anthony Turner as Supervisor of the RG Trust, when he purported to do so on 15 September 2024; and
Mr Anthony Turner did not have power to remove Boyded as trustee of the RG Trust, and to appoint Heartland One to that office, when he purported to do so on 30 April 2025.
Accordingly, it is unnecessary to determine whether or not those powers were validly exercised, or were exercised for an improper purpose.
However, in case I am wrong in my conclusions that Mr Turner and Mr Anthony Turner did not have the powers which each purported to exercise as, respectively, Appointor and Supervisor, I have considered the Plaintiffs’ contentions below and have, in particular, made findings regarding the purpose(s) for which those powers were exercised. Further, the events leading up to the change of the trustee of the RG Trust are also relevant to the Cross-Claim, insofar as the Cross-Defendants relied on those matters as providing a basis for the termination of the employment of each of Mr Turner and Mr Anthony Turner.
There was no dispute regarding the relevant principles.
Although a power to appoint a trustee might not be correctly characterised as a “fiduciary power”, such a power is controlled by the doctrine of “fraud on a power”, such that it must be exercised bona fide for the purpose for which it was conferred: Baba v Sheehan [2021] NSWCA 58 at [5] per Brereton JA.
In Lancedale Holdings Pty Ltd v Health Group Australasia Pty Ltd [1999] NSWSC 609 at [71], Bryson J observed that:
“It is very common to find that the manner of exercise of powers is limited by requiring that they be exercised in good faith and for the purposes for which they were conferred; sometimes this is a limitation imposed in Equity on the conduct of trustees or other persons with fiduciary responsibilities who deal with rights which exist only in Equity; and sometimes a control of that kind is implied in the terms of the instrument creating the power. Similar implications are usual for powers in public law.”
The doctrine of “fraud on a power” operates to avoid the exercise of a power where it has been exercised for a purpose, or with an intention, beyond the scope of, or not justified by, the instrument creating the power. Such an exercise of power for an extraneous purpose is invalid and void: Baba v Sheehan at [6] per Brereton JA and see also at [50] per Emmett AJA (with whom Simpson AJA agreed).
The purpose of a trust deed, in conferring a power, is to benefit the objects of the relevant trust. If the power is exercised for an unauthorised purpose, which benefits the person on whom the power is conferred, the exercise of such power will be for a foreign purpose. A power will be exercised for a foreign purpose if it is exercised with the intention of benefiting someone who is not an object of the power: ibid at [49] (Emmett AJA).
In Baba v Sheehan, Emmett AJA summarised the issue for determination on that appeal as follows (at [49]-[50]):
“The objects of the Trust, as specified in the Trust Deed, are the Unitholders. The exercise of the power conferred by cl 2 of the Trust Deed must, accordingly, be for the purpose of benefiting the Unitholders. If the power were to be exercised for the purpose of enabling Mr Sheehan [who exercised the power of appointment] to control the Trust Business and the affairs of the Trust, that would be an exercise for a foreign purpose.
In that context, it is relevant that each of Mr Baba, Mr Carney and Mr Sheehan was a director and shareholder of Smart Street [the former trustee]. On the other hand, the only directors and shareholders of Silktote [the replacement trustee] are Mr Sheehan and his wife. Thus, the effect of replacing Smart Street with Silktote was to remove from Mr Baba and Mr Carney any capacity to have a say in the affairs of the Trust and to limit those who have such a say to Mr Sheehan and his wife. If that were the purpose and intention of Mr Sheehan in exercising the power, it would be for a foreign purpose and be void and ineffective. However, if Mr Sheehan, as Appointor, in good faith formed the view that it was in the interests of all of the Unitholders that Smart Street be replaced with Silktote because Silktote was better qualified to manage the affairs of the Trust and the Trust Business, there would be no fraud on the power.”
In that case, the problem for the appellants was that the primary judge had found that Mr Sheehan did not in fact exercise the power of appointment for the improper purpose of obtaining control of the Trust, and the appellants did not identify any basis for challenging this finding, which was open on the evidence (at [52], [57]).
Similarly, in Mercanti, the appointor of the MMF trust had removed the corporate trustee of the MMF Trust and had replaced it with a different corporate entity which he controlled. Le Miere J held as follows (at [175]-[176]):
“Appointing a company controlled by [the appointor] as trustee was not of itself the exercise of the power by [the appointor] for a foreign or improper purpose. [The appointor’s] purpose was to appoint in place of [the former trustee] … a company which would reinstate the management of the business which had been removed without consultation or notice by [the former trustee] … acting by its shareholders … There is no evidence that [the appointor] intended to effect any purpose beyond putting [the replacement trustee] in control of the [MMF Trust] and the management of the family business. For example, there is no evidence that [the appointor] intended [the replacement trustee] to deal improperly with trust assets. As trustee, [the replacement trustee] was bound to exercise its powers, including its power in relation to the assets and income of the trusts, as a fiduciary.
[The appointor’s] purpose was to restore the status quo in the sense I have described. There is no evidence that [the appointor] did so to achieve any purpose other than the proper and effective management of the business. … The plaintiffs have not established that [the appointor] executed the notices of removal and acceptance of appointment of trustee for any improper or ulterior purpose.”
“The question of the purpose for which [the appointor] appointed [the replacement trustee] as Trustee was a question of fact. The judge found, in effect, that [the appointor’s] purpose was to appoint [the replacement trustee] to reinstate the management of the business. The reinstatement of the management of the trust’s business was not, as the judge said, an improper purpose in itself. Even though the reinstated ‘management’ was effectively [the appointor], the exercise of the power of the Appointor was, in the circumstances of this case, as the judge found, consistent with a legitimate concern for ‘the proper and effective management of the business’. The effective management of the trust’s business would be to the benefit of all the objects of the trust. There is no error in the judge’s reasoning or conclusion.”
These authorities indicate that the question of the purpose for which an appointor exercises a power to replace the trustee is a question of fact and that, if the appointor does so as a result of a legitimate concern to protect or advance the interests of the objects of the trust, then the appointor will be acting for a proper purpose (even if the appointor replaces the existing trustee with a trustee which the appointor controls). For example, if the appointor, in good faith, has formed the view that the replacement trustee (which the appointor controls) is better qualified to manage the affairs of the trust, in the interests of the objects of the trust, then there will be no “fraud on the power”. If, however, the appointor is not, in fact, acting out of any legitimate concern for the interests of the objects of the trust, but is instead replacing the existing trustee in order to gain, or maintain, control of the management of the affairs of the trust, or to remove such control from other directors or shareholders of the existing trustee, then the appointor will be exercising the power for a foreign purpose, and this will be void and ineffective.
In the present case, it was common ground that these principles applied both to the power of the Appointor of the RG Trust to appoint a Supervisor, and to the power of the Supervisor of the RG Trust to remove and replace the Trustee.
Further, as a discretionary power, a power to appoint a trustee may, like a discretionary power of a trustee, be impugned on the basis that it was exercised without giving a real or genuine consideration to the exercise of the discretion. The concept of giving “a real or genuine consideration” requires that there be “the exercise of an active discretion” and that there be consideration of whether or not to exercise the power: Owies v JJE Nominees Pty Ltd (in its capacity as the trustee for the Owies Family Trust) [2022] VSCA 142 at [86] (Kyrou, Niall and Walker JJA). The Victorian Court of Appeal there referred to McGarvie J’s observations in Karger v Paul [1984] VR 161 at 164 that it was relevant to look at “the inquiries which were made … , the information [the trustees] had and the reasons for, and manner of, their exercising their discretion”.
Under Karger v Paul principles, a decision may be reviewable for want of “properly informed consideration”. If the consideration is not properly informed, it is not genuine: Finch v Telstra Super Pty Ltd (2010) 242 CLR 254; [2010] HCA 36 at [66] (French CJ, Gummow, Heydon, Crennan and Bell JJ).
Further, a discretionary power to remove or appoint a trustee must be exercised personally and not in conjunction with, or under the direction of, another person: Scaffidi v Montevento Holdings Pty Ltd [2011] WASCA 146 at [150] per Murphy JA and Hall J (which was overturned on appeal on unrelated grounds: (2012) 246 CLR 325; [2012] HCA 48); see also at [98].
On 20 March 2023, Mr Turner, Mr Anthony Turner and Ms Richards attended a meeting of directors of the Operating Entities in the Heartland Motors Group. Ms Kragh also attended this meeting in her capacity as company secretary. Ms Richards attended the meeting by Zoom, with the others being present at the King Street Office. At the conclusion of the board meeting, the screen in the King Street Office went black, but Ms Richards’ audio link remained live. Mr Turner and Mr Anthony Turner did not alert Ms Richards to this, but instead stayed on the line and listened as Ms Richards proceeded to have a privileged conversation with her lawyers, which was recorded. (The Plaintiffs waived privilege in respect of this conversation at the hearing, and tendered the recording and transcript.)
Mr Turner implausibly asserted in cross-examination that he did not realise at the time that this was a conversation between Ms Richards and her lawyers. Having regard to the contents of the conversation, this must have been obvious, especially to an experienced businessperson such as Mr Turner (who plainly followed the conversation intently, as he claimed that it was “etched” in his memory). That conclusion is reinforced by the fact that on 22 March 2023, just two days after the relevant board meeting, Mr Turner sent the following text message to Ms Kragh (emphasis added):
“Hi Ak. Can you please add the jo legal discussion that we taped into our minutes of the last board meeting – technically it formed part of our meeting.”
“Q. Didn’t you understand that was a legal discussion you overheard?
A. The Jo legal discussion, what was 22 March, maybe at that time I knew.
Q. Right. So you did know it was a legal--
A. That was the board meeting?
Q. The 20th, so--
A. So at the time I heard it, no, I didn’t. At this stage, two days later?
Q. You’ve had an epiphany? Two days later you’ve had an epiphany, and now you realise it was a legal discussion?
A. Well, I’ve referred to it. I don’t understand - I don’t recall why I’ve described it as a legal discussion, but I did.
Q. I think the more important question, Mr Turner, is why you didn’t concede a few minutes ago that you knew that it was a legal discussion?
A. Because at the time I didn’t.
Q. But two days later you did?
A. Potentially, I don’t even know if that is my state of mind by saying the legal discussion. I’m not saying they were lawyers, it just sounded like a legal discussion. Maybe that’s all I’m referring to.
Q. Ah, legal discussion between non-lawyers?
A. Yes.”
Mr Turner’s failure to acknowledge that the conversation which he overheard was a discussion between Ms Richards and her legal advisors, and his attempts to explain away his 22 March 2023 text to Ms Kragh, damage his credit.
The taped conversation is lengthy. The relevant part of the conversation between Ms Richards (“JR”) and her solicitor, Mr Hugh Scott (“HS”), which Mr Turner identified as having given rise to his concern about the manner in which Ms Richards would manage the RG Trust, was as follows:
“JR: Yeah. What’s the other issue, the big issue that you’re
That $7 million, $12 million, that extra 10%
HS: Parra
JR: Yeah. Is that all null and void because it’s over 7 years ago? Like we can’t go back on that?
HS: It’s going to be difficult because you approved the distribution.
JR: But I didn’t sign anything.
HS: I think you signed the minutes that approved it. But…
JR: Not the extra 10%
HS: The distributions were 10%. Let me go back over it, but I’m pretty sure you signed the relevant minute and approved some distributions out of that trust, that equate to an additional 10%.
JR: Oh really? Did I sign something?
HS: A minute yeah. But we’ve got cases where people have effectively just signed what they were told to sign and proceeded to overturn it. But I think possibly the better approach is to equalise the distributions in [?] by effectively altering future distributions. Cause you as director… you as trustees have discretion to make distributions under that trust. And you can say… you’d have to do it properly, but you can say, $30 million has been paid to Kieran and his siblings which represented 15%, 10% of… therefore the next distribution of something – x distribution, won’t be to Kieran and his siblings.
JR: To even it up?
HS: Correct. And that way you’re not contesting this one, but you’re equalising the overall distributions.
JR: He’ll just say no.
HS: Of course. But you have control, and there will be a court case obviously. But, but you’ll have the fact of what he did here will then come out, but not in the context of seeking to overturn what has already happened and potentially approved, but rather to make it equal, at this point, fair. So that’s my thinking. And I think that’s probably the best way to go.
JR: Okay. I didn’t realise I’d signed anything.
HS: I’m pretty sure you have. I’d have to go back.”
“What Joanne was discussing with those with her, who I understand to be her lawyers, made me think that the assets of the [RG Trust] were not likely to be administered properly if Joanne, and possibly also Bernice, were in control of Boyded Industries. What they said also made me think that, under Joanne’s administration, the distributions of the trust would not be administered fairly.”
“I don’t recall all of my thoughts in this meeting about words and lines. The overall recording that I heard made me feel that she was up to no good with the future trust distributions, and it was gross misconduct and in complete bad faith.”
“Q. What else is said in what is etched in your memory … do you say caused you to form the view that the trust would not be administered fairly?
A. What is etched in my memory is that it was a fraudulent plot.
Q. So if it’s etched in your memory, can you please tell us what words you relied upon to reach the conclusion that it was a fraudulent plot?
A. I don’t recall.”
On 30 May 2024, Mr Turner and Mr Anthony Turner purported to pass resolutions, over Ms Richards’ opposition, removing her as a director of various Operating Entities (including Boyded).
On 3 June 2024, Ms Richards and Ms Hooker commenced the 2024 Directors Proceeding, challenging the validity of the appointment of Mr Anthony Turner as a director of various Operating Entities and the removal of Ms Richards as a director of those companies, and seeking a declaration that the only two directors of Boyded were Ms Richards and Mr Turner (see paragraph [57] above).
I have determined that, around this time, Mr Turner fabricated two versions of the “1 May 2017” Minutes recording that Ms Richards had attended a meeting of the Boyded board on that date and joined in a resolution approving the appointment of Mr Turner as Appointor of the RG Trust (see paragraph [206] above). The second of those documents was fabricated by Mr Turner on or around 16 June 2024, when he (for the first time) sent a copy of that document to his solicitors (see paragraphs [196]-[199] above).
On the following day, 17 June 2024, Mr Turner caused Heartland One to be registered. At the time of its registration, Heartland One was named Heartland Two Pty Ltd, and each of Mr Turner and Mr Anthony Turner was appointed as a director. In cross examination, Mr Anthony Turner accepted that the purpose for which Heartland One was incorporated was to act as a replacement trustee of the RG Trust. He also gave the following evidence:
“Q. You were aware by at least 17 June 2024, when that company was incorporated, that Kieran had formulated a new plan to seek to retain control over that trust by changing the trustee?
A. I believe so.
Q. That was because Kieran wanted to maintain control over the Rossfield Group Trust; correct?
A. No, he wanted to protect the trust.
Q. When you say protect the trust, he wanted to protect the trust by maintaining control over the trust?
A. For its beneficiary, yeah.
Q. He wanted to replace Boyded with a company of which he was a director and shareholder?
A. Yes.
Q. So he wished to maintain control over the Rossfield Group Trust?
A. Yes.
Q. He asked you for help in enacting that plan to replace the trustee of the trust?
A. Yeah, because we both heard the recording.
Q. I’m just asking - if you can just listen to my question.
A. Yeah.
Q. He asked you for help enacting that plan to replace the trustee of the Rossfield Group Trust?
A. Enacting, yes.”
On 19 July 2024, Black J delivered reasons for judgment in the 2024 Directors Proceeding. Relevantly, Black J determined that Mr Anthony Turner had not been validly appointed as a director of various Operating Entities, and that the two directors of those companies were Mr Turner and Ms Richards. His Honour subsequently made declarations to that effect on 15 August 2024 (see paragraphs [58]-[59] above).
On 12 September 2024, Mr Turner filed a notice of intention to appeal from Black J’s orders.
On 15 September 2024, each of Mr Turner and Mr Anthony Turner executed the Supervisor Deed, which purported to appoint Mr Anthony Turner as the Supervisor of the RG Trust.
The recitals to the Supervisor Deed include the following matters:
“D. By a resolution of the trustee, Boyded Industries Pty Ltd, dated 1 May 2017 and the written acceptance of the Appointer dated 1 May 2017, the Appoint[o]r was appointed as the sole appoint[o]r of the Trust and has continually held office up to the date of this deed.
E. Clause 19(1) of the Trust Deed provides that:
The Appointor named or described in the Seventh Part of the Schedule may from time to time by instrument in writing appoint any other person or persons as Supervisor hereunder and may at any time revoke such appointment.
F. The office of Supervisor for the Trust is currently vacant.
G. The Appoint[o]r wishes for the purpose of good governance to appoint the New Supervisor [Mr Anthony Turner] as the Supervisor of the Trust.”
“2. Appointment of Supervisor
(a) Pursuant to clause 19(1) of the Trust Deed, by way of execution of this deed the Appointor appoints [Mr Anthony Turner] as the Supervisor of the Trust with all the powers of the Supervisor vesting in [Mr Anthony Turner] with effect from the Effective Date.
(b) By way of execution of this deed, [Mr Anthony Turner] accepts his appointment as Supervisor of the Trust with effect from the Effective Date.
3. Powers of the Supervisor
(a) The powers of the Supervisor are set out in clause 19(2) of the [RG] Trust Deed as follows:
19(2) The Supervisor shall be entitled by instrument in writing at any time and from time to time: -
(a) in his absolute discretion to remove any Trustee hereunder or of the Trust Fund;
(b) appoint any additional Trustee or Trustees hereunder or of the Trust Fund;
PROVIDED ALWAYS that if and so long as either the Appointor or the Supervisor is a member of the class of General Beneficiaries neither the Appointor nor the Supervisor shall be eligible to be appointed as Trustee hereof and the Supervisor shall not make any appointment for his own personal benefit or the personal benefit of the Appointor.
(b) [Mr Anthony Turner] acknowledges the powers of the office of Supervisor and agrees to act in accordance with and be bound by the powers, discretions and obligations conferred by the [RG] Trust Deed.
(c) The Appointor acknowledges that upon his appointment as appointor of the Trust, he was excluded from the class of General Beneficiaries pursuant to the proviso to the definition of ‘General Beneficiaries’ in clause 1(ii) of the [RG] Trust Deed.
(d) [Mr Anthony Turner] acknowledges that he will exclude from the class of General Beneficiaries from the Effective Date pursuant to the proviso to the definition of ‘General Beneficiaries’ in clause 1(ii) of the [RG] Trust Deed.”
“Q. --I’m not asking what you were advised. I’m asking for your understanding at the time you executed this document as to the purpose of your appointment as supervisor.
A. Cause then I’d nominate Kieran to how they wanted him to be the trustee, I believe.
Q. Yes. So the sole purpose which you understood you were being appointed as the supervisor of the trust was to subsequently appoint Heartland One as the trustee of the Rossfield Group Trust?
A. Yes.”
On 6 September 2024, Mr Anthony Turner ceased to be a director of Heartland One. Since that date, Mr Kieran Turner has been the sole director of this entity.
On 17 September 2024, two days after the Supervisor Deed was executed by Mr Turner and Mr Anthony Turner, McCabes, on instructions from Heartland One, lodged an application with the Office of State Revenue (OSR) for a private ruling as to the stamp duty consequences of a change of the trustee of the RG Trust from Boyded to Heartland One. This application stated as follows:
“The Supervisor proposes to appoint the Applicant [Heartland One] as the sole trustee of the [RG] Trust.
A Deed of Appointment and Variation (Deed) has been prepared to remove the current trustee and appoint the Applicant as the new trustee. An Application to record a new registered proprietor (Application) for the Dutiable Trust Property has been prepared for lodgement with NSW Land Registry Services.
Before executing the Deed and the Application, the Applicant considers it prudent to determine the liability for duty on the Dutiable Trust Property if it is appointed as trustee of the Trust.”
The “Deed of Appointment and Variation” referred to in this application was the Trustee Deed which was subsequently executed in April 2025, a draft of which was provided to the OSR.
On 26 September 2024, the OSR responded, seeking further information in respect of this application. In particular, the OSR:
noted that Recital K of the draft Trustee Deed stated that the recently appointed Supervisor:
“has legitimate concerns that the Removed Trustee [Boyded Industries Pty Ltd] is not capable of the proper and effective management of the Trust and, with the intention of protecting the interests of all Beneficiaries, wishes to remove the Removed Trustee and appoint the New Trustee as trustee of the Trust”
noted that Boyded was not a party to the draft Trustee Deed, suggesting that this was “a case of a forced removal of the current trustee (who has been the sole trustee of the trust since 1994) rather than an amicable retirement of trustee”; and
asked for an explanation of “the reason(s) for the proposed change in the trustee of the trust”.
The OSR’s request went unanswered for a period of around six months.
On 22 October 2024, Mr Turner filed a summons seeking leave to appeal from the orders made in the 2024 Directors Proceeding.
On 25 January 2025, Ms Richards issued a notice convening a board meeting of Bernley on 3 February 2025. At this meeting, resolutions were passed, over Mr Turner’s opposition, for the convening of the February 2025 EGM of Heartland Group in order to consider resolutions to appoint Ms Hooker, and to remove (in the event that he had been validly appointed) Mr Anthony Turner, as a director of various Operating Entities. Notices duly convening the February 2025 EGM were issued on the same day.
On 18 February 2025, Ms Richards emailed Mr Turner a signed circulating resolution and instrument of appointment which provided for Mr Turner to be appointed as the corporate representative of Boyded at the February 2025 EGM. Mr Turner did not respond to this correspondence, and did not subsequently attend the February 2025 EGM on behalf of Boyded, thereby rendering the meeting inquorate.
On 4 March 2025, Ms Richards commenced the 2025 EGM Proceeding.
On 19 March 2025, McCabes sent a response to the OSR's letter of 26 September 2024, which is referred to in paragraph [349] above, stating as follows (emphasis added):
“2. Reasons for the proposed change in trustee
Kieran as the Appointor and Anthony as the Supervisor have formed a view that the current trustee of the Trust, Boyded Industries, is not presently capable of the proper and effective management of the Trust. These concerns arise as follows:
(a) On 3 June 2024, Joanne commenced, by way of originating process (Supreme Court of NSW Proceedings 2024/205160), proceedings against Kieran, Anthony, Boyded Industries and twelve other entities within the Heartland group.
(b) Joanne sought declarations and orders regarding the appointments of directors of inter alia Boyded Industries Pty Ltd and restraints against Kieran and Anthony.
(c) On 19 July 2024, his Honour Justice Black made findings as to the validity of the appointment and removal of directors of the corporate defendants to the proceedings: In the matter of Heartland Group Pty Limited and others [2024] NSWSC 875. In his judgment, the corporate governance affairs of the group of companies is described by Justice Black as to be "in disarray" (at [8]). In respect of Boyded Industries, the purported appointment of Anthony as a director by Kieran on 6 December 2022 was held to be invalid (at [68]) and the purported appointment of Bernice as a director by Joanne on 13 December 2022 was held to be invalid (at [101]).
(d) On 15 August 2024, his Honour made further orders and declarations as to the governance of each company: In the matter of Heartland Group Pty Limited and others [2024] NSWSC 1029.
(e) The orders of Justice Black are subject to appeal, those proceedings are listed for final hearing on 26 March 2025 before the Court of Appeal of the Supreme Court of New South Wales.
The removal of Boyded Industries and appointment of the applicant is for the purpose of providing stability for the beneficiaries of the Trust in the context of continuing litigation. The Trust is the entity by which the profits of the Heartland group flow through to the living descendants of Bernard Webb. Historically, the profits have been distributed between the descendants either proportionately according to the shareholdings of the ultimate holding company BG Webb Pty Ltd or, where capital gains have been realised from the sale of property, to the 8 grandchildren equally. Kieran and Anthony are concerned that a deadlock of the directors of Boyded Industries would prevent the usual distribution of income between the current beneficiaries and that further action by Joanne to gain majority control of Boyded Industries could result in the exclusion of certain beneficiaries.
Subject to complying with relevant trustee duties, the applicant has no intention to vary future distributions from the Trust to exclude any of the current beneficiaries.”
On 26 March 2025, the Court of Appeal heard the 2025 Directors Appeal, and reserved judgment.
On 15 April 2025, the 2025 EGM Proceeding was heard. Judgment was delivered by Black J on 17 April 2025, and orders were made convening an EGM of the Heartland Group at 10:00am on 2 May 2025 and directing that a corporate representative of Bernley would constitute a quorum of members of Heartland Group at the May 2025 EGM: Re Heartland Group [2025] NSWSC 367.
On 28 April 2025, Heartland One obtained the private ruling which it had sought from the OSR.
At 4:39pm on 29 April 2025, the Associate to Payne JA advised the parties that the Court of Appeal would deliver judgment in the 2025 Directors Appeal at 10:15am on 1 May 2025.
On 30 April 2025, Mr Anthony Turner purported to execute the Trustee Deed, in his capacity as Supervisor of the RG Trust. Clauses 2.1-2.3 of the Trustee Deed provided as follows:
“2.1 Removal of Trustee and appointment of New Trustee
Pursuant to clause 19(2) of the Trust Deed, the Supervisor removes [Boyded] and appoints [Heartland One] as trustee of the [RG] Trust in place of [Boyded] to undertake and to assume as from the Effective Date the trusts, powers, discretions and obligations conferred by the Trust Deed upon the trustee of the [RG] Trust subject to the irrevocable condition that [Heartland One] is absolutely prohibited from being a Beneficiary under the Trust Deed or from otherwise directly or indirectly benefiting under the Trust Deed.”
2.2 Acceptance of the New Trustee
By way of execution of this deed, [Heartland One] accepts its appointment as trustee of the [RG] Trust and agrees to accept the transfer from [Boyded] of all assets belonging to the Trust and to hold those assets in accordance with and be bound by and administer the trusts, powers, discretions and obligations conferred by the Trust Deed.
2.3 Declaration by New Trustee
[Heartland One] hereby declares that notwithstanding anything else contained in the Trust Deed, [Heartland One]:
(a) is absolutely prohibited from being a Beneficiary under the [RG] Trust or otherwise directly or indirectly benefiting under the Trust; and
(b) disclaims any interest or entitlement to any benefits of income, capital or other benefits from the [RG] Trust, and this declaration is not capable of amendment.”
Mr Anthony Turner gave evidence in cross-examination that he did not believe that there was any urgency in signing the Trustee Deed. However, it is significant that this document was executed on the day after the Court of Appeal indicated it would deliver its decision in the 2025 Directors Appeal, the day before that decision was delivered, and two days before the Court-ordered May 2025 EGM was scheduled for the purpose of considering whether to appoint Ms Hooker as a director of various Operating Entities (including Boyded).
On 1 May 2025, Mr Anthony Turner sent the directors of Boyded a “Notice of Removal and Appointment of Trustee”, informing them that he had exercised his powers as Supervisor to remove Boyded and to appoint Heartland One, effective immediately, and requiring Boyded to:
“1. Transfer legal title to the property of the Trust to the New Trustee.
- Deliver to the New Trustee all books, documents and records, investments, funds and all indicia of title to real estate and any other property whatsoever relating to the Trust.
- Assign or cause the novation of any contractual arrangement with a third party relating to the Trust so that the New Trustee shall succeed to the Existing Trustee to the extent necessary to effect such succession.”
It is clear that Mr Turner appointed his brother, Mr Anthony Turner, as Supervisor of the RG Trust, in order that Mr Anthony Turner would exercise his powers as Supervisor to remove Boyded as trustee of the RG Trust and appoint Heartland One as replacement trustee. Mr Anthony Turner gave evidence that this was the purpose of his appointment as Supervisor and, consistently with this, McCabes sent a letter to the OSR on behalf of Heartland One two days after Mr Anthony Turner’s appointment, stating that: “The Supervisor proposes to appoint [Heartland One] as the sole trustee of the [RG] Trust.”
The question which then arises is what was Mr Turner’s purpose in taking those steps for the removal and replacement of Boyded.
The Defendants placed reliance on Mr Turner’s evidence that he believed, as a result of the privileged conversation which he had overheard on 20 March 2023, that “the assets of the [RG Trust] were not likely to be administered properly if [Ms Richards], and possibly also [Ms Hooker], were in control of Boyded Industries: and that “under [Ms Richards’] administration, the distributions of the trust would not be administered fairly.”
The Defendants submitted that it was not put to Mr Turner that he did not, in fact, hold those views from 20 March 2023 and that, in those circumstances, an “alternative finding is not reasonably open”, having regard to the evidence before the Court and the rule in Browne v Dunn (1893) 6 R 67.
In closing written submissions, the Plaintiffs contended as follows:
“Kieran steadfastly in cross-examination, often in an entirely unresponsive manner, adhered to the use of phrases to the effect that he took these actions ‘to protect the trust’ and to prevent a supposed plot to ‘change the trust distributions away from the beneficiaries in the trust’. These mantras drawn from his affidavit evidence obscure, rather than reveal, the true reason Kieran in fact sought to appoint Anthony as the supervisor of the RG Trust: it was for the fixed and sole purpose of Anthony in turn effecting a change of trustee to a company under the sole control of Kieran so as to ensure that Kieran could retain personal control over the RG Trust rather than face a situation in which he could be outvoted by Ms Richards and Ms Hooker on the board of Boyded. This was part of a broader plan on the part of Kieran to prevent, at all costs, a situation in which he would not have ultimate sole control over the assets of the RG Trust.”
“Q. You agree that the change was for the purposes of trying to take the control of the trust away from your aunts?
A. Protect the trust assets, yes.
Q. You were trying to take control of this trust away from shareholders who owned almost 60% of the shares of this company?
A. Protect the trust assets.
Q. And when you say protect, you mean make sure that you stayed in control of them? That’s what you mean by protect?
A. No. Protect the trust assets from the fraudulent plot I heard.”
Although the question to be determined is Mr Turner’s subjective purpose in exercising his powers as Appointor to appoint his brother as Supervisor, it does not follow that Mr Turner’s repeated assertions in cross-examination that he was acting to “protect the trust assets” are decisive. Such evidence regarding a person’s state of mind at the time of particular past events must be approached with caution, particularly because of the risk that it may be, consciously or unconsciously, influenced by the issues raised and positions adopted by the parties in the litigation (see paragraphs [89]-[90] above).
There are a number of difficulties with Mr Turner’s evidence that the reason why he wanted to gain control of the RG Trust was due to a desire to “protect” the trust assets from the “fraudulent plot” which Ms Richards had discussed with her lawyers.
First, Mr Turner could not identify, by reference to the recording and transcript of the conversation between Ms Richards and her lawyers, any particular statements made in the course of that conversation which caused him to have this alleged concern about a “fraudulent plot” (see paragraphs [333]-[335] above).
Secondly, it is difficult to see how the statements made in the overheard conversation could give rise to any rational apprehension of a “fraudulent plot”. The highest the conversation goes is that Mr Scott suggested to Ms Richards that the trustee might be able to make a distribution with the effect of “equalising” distributions made by the RG Trust, so as to bring them into line with the shareholdings in BG Webb, and thereby make the overall position “fair”. This was said in a context where it was common ground that, other than in respect of sale proceeds of the Parramatta and Lakemba Properties, distributions had been made in the past in accordance with those shareholdings, and Mr Turner was aware that Ms Richards had previously disputed whether there had been agreement to vary this practice in respect of distributions from the Parramatta and Lakemba sale proceeds (other than in respect of the first tranche of the sale proceeds of the Parramatta Property). In response, Ms Richards did not indicate any intention to pursue this recommendation and stated that it would be opposed by Mr Turner. Mr Scott acknowledged that any such decision by the trustee would need to be done “properly” and that there would need to be “a court case”, to consider whether this was “fair”.
Thirdly, Ms Richards was not, at any time, in control of the administration of the RG Trust. At all relevant times up until the execution of the Trustee Deed by Mr Anthony Turner on 30 April 2025, the trustee of the RG Trust was Boyded, and the directors of Boyded were Mr Turner and Ms Richards. The ultimate holding company of Boyded is BG Webb, in which Ms Richards held an interest of approximately 30%. Ms Richards therefore did not have control over the administration of the trust assets or over distributions from the RG Trust. Although Mr Turner was aware, in 2024 and 2025, that Ms Richards and Ms Hooker (who also held 30% of BG Webb) were seeking to take control of various entities within the Heartland Motors Group, including Boyded, he does not state in his affidavit that he had any genuine concern that Ms Hooker (who has been a director of Boyded since Mr Turner was replaced) would not properly administer the assets of the RG Trust, or would act unfairly in making distributions, let alone identify any basis for such a concern. Instead, he states that, as a result of the overheard conversation between Ms Richards and her lawyers, he had a concern that “Joanne and possibly Bernice” would not administer the RG Trust properly. He did not elaborate on how a conversation, in which Ms Hooker did not participate, could give rise to any such concern about Ms Hooker.
“… Hugh turned up and discussed your fraudulent conduct in detail with you and the female lawyer. Anthony, Amanda, and I witnessed this. I have given you a recording of this and it is within our legal proceedings.”
on 13 February 2025, Mr Turner wrote to Ms Richards’ solicitor, stating that Ms Richards had, at meetings via Zoom, been “hiding lawyers and other advisers out of [sight] … while strategizing fraudulent conduct”.
However, the fact that Mr Turner stated, in hostile communications with Ms Richards (which were, as explained below, often characterised by insulting language), that she was guilty of “fraud” does not establish that he, in fact, held any genuinely founded concerns about the manner in which the RG Trust would be administered in the event that Ms Hooker and Ms Richards obtained control of Boyded. Nor do I consider that matters are significantly advanced by the fact that Ms Richards conceded, in cross-examination, that Mr Turner communicated to her that he was “very upset”, and appeared to feel very strongly, about the conversation that he had overheard. The issue is not whether Mr Turner angrily and forcefully questioned Ms Richards’ motivations in his communications with her, but whether he took steps to remove Boyded as trustee out of any genuine concern to protect the trust assets, or for some other purpose.
The Defendants also relied on the fact that Mr Anthony Turner had given unchallenged evidence that, after overhearing the recorded conversation between Ms Richards and her lawyers, Mr Turner had expressed to him a concern that “Joanne (including possibility [sic] with Bernice) may take steps to take control of Boyded, and in turn the [RG Trust] and that should that occur, would be in a position to alter distributions”. That bears a close similarity with Mr Turner’s evidence regarding his concerns, after overhearing the conversation, “if Joanne, and possibly also Bernice, were in control of Boyded”. Although Mr Anthony Turner’s evidence of the conversation was not specifically challenged, I do not place significant weight on his recollection of a conversation around two-and-a-half years ago, which is not recorded in any contemporaneous document, particularly where there is a risk that such evidence may, consciously or unconsciously, be affected by subsequent events and the allegations advanced in the proceeding, and where there is evidence that Mr Anthony Turner has previously, as a result of Mr Turner’s intervention, adjusted his evidence of a recollected conversation in proceedings relating to the Heartland Motors Group (see paragraph [224] above).
For reasons given above, I have serious reservations about the credibility and reliability of Mr Kieran Turner’s testimony. Given those reservations, it is necessary to evaluate his testimony as to his subjective purpose in light of the objectively established facts and the apparent logic of events.
In particular, it is necessary to place Mr Turner’s appointment of his brother as Supervisor in the context of the broader struggle for control of the Heartland Motors Group between Mr Turner and Ms Richards, which had been going for some time, and was continuing, as at September 2024. In particular:
“Q. Can you please explain why then, at page 1572, you asked Mr Bluth to have you personally nominated as the appointor of this trust instrument and not to have a company in the BG Webb group of companies as the appointor?
A. Because the appointor was the boss of the trust, and I was the boss.
Q. Didn’t you understand that you were a shareholder?
A. I was the CEO.
Q. Did you think that that meant that you could override the decisions of all the other shareholders?
A. No, I was just the boss of the trust, CEO of the trust.”
It is likely that, in appointing his brother as Supervisor of the Trust, Mr Turner was seeking to ensure that, if he lost control of Boyded, he would remain “boss of the trust”.
In short, Mr Turner was not acting out of a legitimate concern to protect the interests of the objects of the RG Trust, but was instead acting out of a desire to gain exclusive control of the management of the affairs of the RG Trust and to frustrate his aunts’ attempts to gain control of the Heartland Motors Group (including the corporate trustee of the trust which held the valuable real estate assets that were integral to the operation of the Group’s car dealership business). As such, he was exercising his powers as Appointor for an improper purpose.
Accordingly, if (contrary to the findings set out above), I had determined that Mr Turner was validly appointed as Appointor of the RG Trust, I would have found that his purported exercise of his powers as Appointor to appoint Mr Anthony Turner as Supervisor of the RG Trust was invalid and of no effect.
Given the findings I have made above, the question as to whether Mr Anthony Turner acted for a proper purpose in exercising his powers as Supervisor to replace Boyded with Heartland One as trustee of the RG Trust does not arise. In case I am wrong on those antecedent issues, I have addressed this matter briefly below.
Mr Kieran Turner gave evidence that the execution of the Trustee Deed one day before judgment in the Directors Appeal was delivered was “a coincidence”, but otherwise responded “I don’t recall” to various questions regarding the execution of that document. For example, he stated that he could not recall “the reason why this document was prepared”, or whether he was the person responsible for the document being drafted, or whether his “concerns” about the existing trustee were “the reason why this document was prepared”, or whether he asked his brother to execute the document, or even whether he understood that the purpose of the document was to remove Boyded as the trustee of the RG Trust (adding “I’d need to get legal advice”). Mr Turner stated, in cross-examination, that the decision to remove and replace the trustee was a decision taken by his brother, and not by him:
“Q. Just listen to my question please. Do you remember that you wanted Boyded Industries removed as trustee of the Rossfield Group Trust and you wanted Heartland One appointed?
A. When are you talking about?
Q. In 2025.
A. When exactly are you talking about?
Q. Can you answer my question please?
A. I don’t recall. I don’t even know when you’re trying to get me to recall from.
Q. You know that a company that you control, Heartland One Pty Limited--
A. Yes.
Q. --has purportedly been appointed as the trustee of the Rossfield Group Trust?
A. Yes.
Q. You know that, don’t you?
A. Yes. Once they sign it.
Q. And that’s something that you wanted to happen, isn’t it?
A. It was Anthony’s decision.
Q. I haven’t asked you that, have I? That was something you wanted to happen, isn’t it?
A. It was Anthony’s decision.”
“[Ms Richards] (possibly with [Ms Hooker]) was planning to, and would, take steps to exclude Kieran and myself from the management of the Heartland Motor Group and exercise the control they held over the trustee of the [RG Trust], take control of its assets and to prefer their own interests and to exclude the other beneficiaries from the future distributions”.
“The Supervisor has legitimate concerns that [Boyded] is not capable of the proper and effective management of the Trust and, with the intention of protecting the interests of all Beneficiaries, wishes to remove [Boyded] and appoint [Heartland One] as trustee of the Trust”.
“Q. Are the matters that are recorded in recital K matters to which you turned your mind at the time of executing this deed?
A. Turn my mind? No.”
That evidence is directly inconsistent with, and undermines the reliability of, Mr Anthony Turner’s affidavit evidence on this issue.
Further, Mr Anthony Turner gave evidence in cross-examination that:
he was not aware that a draft of the Trustee Deed had been prepared more than seven months earlier, in September 2024 (when it was provided to the OSR);
he did not provide any instructions or any input into the preparation of the Trustee Deed;
he was “probably not” aware of the powers of the Supervisor at the time he signed the Trustee Deed; and
he did not, at the time of signing the Trustee Deed, “give any consideration at all” to the consequences of doing so.
In light of this evidence, if it were necessary to determine the issue, I would have found that Mr Anthony Turner did not, in executing the Trustee Deed, exercise the power to remove and replace the trustee of the RG Trust upon any real and genuine consideration. In particular, there was not the “exercise of an active discretion” by Mr Anthony Turner, involving any informed consideration of whether or not to exercise the power to remove and replace Boyded as the trustee, since he proceeded to execute the Trustee Deed without having provided any input into its drafting, without turning his mind to the matters stated in the Recitals as being his reasons for the entry into the Trustee Deed, and without giving “any consideration at all” to the consequences of executing the Trustee Deed. Having regard to those matters, it is likely that Mr Anthony Turner executed the Trustee Deed because his brother asked him to do so and that he was therefore, in effect, acting under the direction of Mr Kieran Turner when he purported to exercise his powers as Supervisor.
For those reasons, even if Mr Anthony Turner was validly appointed, the purported removal and replacement of Boyded as trustee of the RG Trust was invalid and of no effect.
“The Supervisor shall be entitled by instrument in writing at any time and from time to time: -
(a) in his absolute discretion to remove any Trustee hereunder or of the Trust Fund;
(b) appoint any additional Trustee or Trustees hereunder or of the Trust Fund;
PROVIDED ALWAYS that if and so long as either the Appointor or the Supervisor is a member of the class of General Beneficiaries neither the Appointor nor the Supervisor shall be eligible to be appointed as Trustee hereof and the Supervisor shall not make any appointment for his own personal benefit or the personal benefit of the Appointor.”
The Plaintiffs submitted that the power to remove and replace the trustee was exercised, on 30 April 2025, in order to “preserve (and enhance) Kieran’s ability to control the affairs of the RG Trust” and was therefore exercised “for the personal benefit of the Appointor”, thus offending the proviso set out above and rendering the purported exercise of the power ultra vires and invalid.
Insofar as this submission is a variant of the Plaintiffs’ submission that Mr Turner was not acting for a proper purpose in appointing Mr Anthony Turner as Supervisor, and Mr Anthony Turner was not acting for a proper purpose in removing and replacing the trustee of the RG Trust, and relies on the same factual matters, then this submission adds nothing of substance to the matters which have already been addressed above.
Insofar as this submission arises in the event only that the other matters set out above have been determined adversely to the Plaintiffs (and therefore, in the event that each of Mr Turner and Mr Anthony Turner was validly appointed and was acting for a proper purpose), then it would arise only where I had determined that the appointment of Heartland One was made for the purpose of protecting the interests of the beneficiaries of the RG Trust, and ensuring that distributions were made fairly to beneficiaries (with Mr Turner being excluded, by reason of his appointment as Appointor, from the class of General Beneficiaries in the RG Trust Deed). It follows that, if the issue had arisen in the context of such findings, I would have concluded that the appointment of Heartland One as trustee of the RG Trust was not for Mr Turner’s personal benefit.
For the reasons set out above, the Plaintiffs have established their claim. It follows that the purported appointment of Heartland One as trustee of the RG Trust was invalid, and that Boyded remains the trustee. The Plaintiffs are entitled to declaratory relief to this effect.
It also follows that the Cross-Claimants’ claim for an order compelling Boyded to transfer all property of the RG Trust to Heartland One will be rejected.
The Plaintiffs submitted that the Court should, in addition, permanently restrain each of Mr Turner, Mr Anthony Turner and Heartland One from purporting to deal with the property of the RG Trust, in circumstances where they have previously made demands for the transfer of all property held by the RG Trust to Heartland One, and where they ceased such demands after each of them gave an undertaking to the Court, on 29 May 2025:
“not to do the following or resolve or determine to do so:
a. distribute, sell, transfer, dispose of, mortgage or encumber or otherwise deal with the assets of the Rossfield Group Trust established by deed of settlement dated 28 March 1980 (Trust) or any interest therein (whether it comprise capital or income);
b. interfere with the entry onto or occupation or use of the properties described in Schedule 1.”
It is also relevant that, on 29 April 2025, Mr Turner had asserted to a representative of the NAB that he was the Appointor of the RG Trust and, as such, had “the legal power to buy, sell, finance, etc these Trust/assets properties.”
The Defendants did not advance any submission to the effect that, if the Plaintiffs succeeded in their claim, such final injunctive relief should not be granted.
Having regard to the matters outlined above, I am satisfied that it is appropriate to grant the relief sought by the Plaintiffs.
On 6 May 2025, Ms Richards sent a letter on behalf of Heartland Motors to Mr Turner, which was headed “Termination of your employment with Heartland Motors Group (Company)” (Termination Letter).
The Termination Letter stated that the Board had decided to terminate Mr Turner’s employment “in accordance with clause 9.2 of your employment contract dated 17 March 2009”.
By the Further Amended Statement of Claim, Heartland Motors seeks a declaration that Mr Turner’s employment was terminated on 6 May 2025.
By the Further Amended Cross-Claim, Mr Turner contends that his employment was not “validly and effectively terminated”, and seeks damages for breach of contract. (Senior Counsel for Mr Turner confirmed in opening address that his client did not press his claim for specific performance of the employment contract.)
In closing submissions, the Cross-Claimants identified the following primary questions arising on Mr Turner’s claim for breach of contract.
First, what was the form of his contract of employment as at 6 May 2025 (in particular, was it written or implied, or some combination of the two)?
Secondly, what were the terms of the contract relevant to the exercise of any power of termination?
Thirdly, what was the purpose, manner and effect of the termination on 6 May 2025?
Fourthly, having regard to the answers to (1)-(3) above, did Heartland Motors breach the terms of the employment contract by the termination of Mr Turner’s employment on 6 May 2025?
The Cross-Defendants contended that the contract of employment was written, and was in the form of the Executive Emp****loyment Agreement which was executed by Heartland Motors and Mr Turner, and was dated 17 March 2009.
The recitals to the Executive Employment Agreement stated as follows:
“A. The Employer [Heartland Motors] has offered the Executive [Mr Turner] employment on the terms of this Agreement and the Executive has accepted that offer.
B. This Agreement sets out the terms and conditions of the Executive’s employment.”
“2.1 The Employer will employ the Executive in the position of Deputy Chief Executive Officer or such other position or positions determined by the Employer from time to time in accordance with this Agreement and with the consent of the Executive which consent shall not be unreasonably withheld.”
“5.1 The Executive shall perform such duties and responsibilities as the Employer may reasonably require from time to time.
5.2 The Executive shall report to the CEO or such other person nominated by the Board from time to time.”
“9.1 The Employer may terminate this Agreement without notice or payment in lieu of notice if:
(a) the Executive commits any serious or persistent breach of any of the provisions of this Agreement;
(b) the Executive is guilty of any misconduct or wilful neglect in the discharge of their duties;
…
9.2 Either party may terminate this Contract by giving to the other party not less than one month’s notice in writing.
9.3 The Employer may require the Executive to work out the whole or some part only of the notice period.
9.4 At the option of the Employer, the Employer may pay the Executive not to work out the whole or some part of the notice period by tendering a payment in lieu of such period of the notice period as is not to be worked by the Executive.”
The Cross-Claimants contended that:
the Executive Employment Agreement was intended to regulate the employment relationship in the period when Mr Turner was employed as Deputy CEO, which lasted until May 2009 (at which time he was employed as CEO, following the retirement of Mr Ware); and
the employment relationship between Mr Turner and Heartland Motors as at May 2025 was “materially different from that recorded in this old document”, including by reason that:
(a) he was occupying, and had occupied for sixteen years, “a different (and indeed the most senior) position in the organisation”; (b) his role and responsibilities were “fundamentally different from what they were in March 2009”; (c) “contrary to the terms of the old contract he was not answerable to and did not have to report to Mr Ware and had not done so for 16 years and was instead vested with responsibility for managing the entire enterprise and given the autonomy to do so”; and (d) his remuneration package was, since his employment as CEO, “entirely different from that set out in the old contract (both in terms of his salary, and as to car and bonus entitlements that did not even exist in the old contract)”.
The Cross-Claimants submitted that the appropriate conclusion to be drawn is that the parties did not intend for the terms of the Executive Employment Agreement to govern Mr Turner’s employment at any time since he was employed as CEO, and that, as at May 2025, the terms of his contract were unwritten, with the contract arising from a course of conduct between the parties over an extended period of time. Specifically, the terms of that contract were said to include:
an obligation on the part of Heartland Motors to act in good faith towards Mr Turner, including in the exercise of powers and in performance of the contract; and
an obligation, if and to the extent it was open to Heartland Motors to terminate, to give Mr Turner reasonable notice of termination.
“It is firmly established by a long line of cases … that the parties to an agreement may vary some of its terms by a subsequent agreement. They may, of course, rescind the earlier agreement altogether, and this may be done either expressly or by implication, but the determining factor must always be the intention of the parties as disclosed by the later agreement.”
In Commissioner of Taxation (Cth) v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520; [2000] HCA 35 at [24], Gleeson CJ, Gaudron, McHugh and Hayne JJ said that Taylor J’s observations in Tallerman accorded with principle and authority.
In Concut Pty Ltd v Worrell [2000] HCA 64 at [18]–[19], Gleeson CJ, Gaudron and Gummow JJ referred to the decisions in Tallerman and Sara Lee Household and observed that, as with other issues of contractual formation, whether a change to the employment relationship results in a variation of the existing contract of employment or its replacement is to be ascertained objectively in all of the circumstances.
In Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567 at 576, Ashley J observed that:
“where employer and employee agree to an alteration in the employee’s duties and responsibilities which is profound, a court should be more ready to hold (unless the original contract of employment provided for the contingency) that a new contract has replaced the old; or at least that the old contract, as varied, contained terms objectively appropriate to the new relationship created.”
Ashley J found (at 577-578) that, on the facts of that case, a far-reaching change in the plaintiff’s situation which was “not within the original contemplation of the parties and not comprehended by [their original contract]” gave rise to a fresh contract of service, not merely a variation of the original one.
In Westpac Banking Corporation v Wittenberg (2016) 242 FCR 505; [2016] FCAFC 33 at [249], Buchanan J (with whom McKerracher and White JJ agreed) said that the decision in Quinn v Jack Chia did not represent “any new statement of principle”, but instead represented the application of “ well established contract and employment law principles” to the “striking facts” of that case.
Buchanan J observed (at [257]) that, in a case where it is said that a contract of employment has been replaced in an ongoing relationship of employment (or even that its terms have been varied), the search is for an imputed mutual intention that such a change in the contractual landscape has occurred.
In Easling v Mahoney Insurance Brokers (2001) 78 SASR 489; [2001] SASC 22 at [8], Doyle CJ observed that: “a court should not too readily assume that a change in working arrangements, or in the duties of an employee, involves either a variation to an existing contract, or the making of a new contract.” His Honour added (at [9]-[10]) that:
“In my respectful opinion the issue is whether the original agreement gives the employer the right to make the changes that have been made, and if it does, then neither a varied contract nor a new contract arises.
The application of the relevant principles to the facts of a particular case will often be difficult. In some fields of employment changes in the working arrangements and tasks performed will occur gradually. The application of the relevant principles of law may be difficult in such a case.”
“A court should not too readily find that a change in working arrangements or in the duties of an employee entails either a variation to an existing contract or the making of a new contract. If the original agreement gives the employer the right to make the changes that have occurred, there will be neither a variation of contract nor a new contract.”
“Whether changes occur incrementally and slowly, or more rapidly pursuant to an intended program of development and expansion, unless it can be said that an employer has breached a contract by an unjustified and unlawful attempt to impose change (in which case the employee has the normal remedies for breach or repudiation) it would not be readily inferred, in my view, that the entire contract of employment has been replaced by a new one. In the case of a comprehensive written contract dealing with a range of important matters, including but by no means confined to, methods and occasions for termination of the contract, that could have drastic and potentially damaging results for both parties. Such an intention should not lightly be imputed to them in a continuing relationship.
A suggestion of consensual variation raises different issues. The variation suggested must arise directly from the altered circumstances and respond to them in a way which can be objectively attributed and imputed to both parties. The test for implication of the term, or the implied abandonment of an existing term, leaving a void to be filled, is not supplied by the view of a court that the change would itself be reasonable. Unless it can be said that abandonment of a term represents a common intention it may not be assumed in my respectful view. A fortiori, the altered circumstances are consensual; so must be the contractual variation, if any.”
As outlined above, it is common ground that the Executive Employment Agreement was executed by Heartland Motors and Mr Turner, and that this contract governed their employment relationship after it was entered on 17 March 2009. The question for determination is whether the parties must have intended that it ceased to govern the employment relationship from around the time that Mr Turner was appointed as CEO in May 2009.
The Cross-Claimants placed particular reliance on the fact that the Executive Employment Agreement provided that Mr Turner would be employed in the position of Deputy CEO, that he would be required to report to the CEO (Mr Ware), and that he would be required to perform such duties as his employer (Heartland Motors) may reasonably require from time to time: clauses 2.1, 5.1 and 5.2. Further, the agreement provided that Mr Turner’s remuneration was specified to be a base salary of $315,000, together with superannuation contributions and the provision of “a fully expensed motor vehicle”: clauses 3.1 and 3.5.
The Cross-Claimants submitted that the changes to the employment relationship between Mr Turner and Heartland Motors, which occurred following the execution of the Executive Employment Agreement, included that:
Mr Turner was appointed as CEO following Mr Ware’s retirement;
as CEO, he reported directly to the Board, and to nobody else;
as CEO, he had extensive delegated responsibility for the conduct of the Group’s affairs, including decisions on a range of operational matters, such as negotiating deals with Manufacturers, leasing premises and settling salaries; and
several entities in the Group did not exist while he was Deputy CEO (including Heartland Blacktown, Heartland Penrith, BGW Nominees and HMG Parts);
on employment as CEO, his salary was increased to $550,000 and was further increased over time to be, as at May 2025, $1,015,000, plus bonuses of about $50,000 per month.
Heartland Motors did not dispute that those changes had occurred. The critical issue is whether, having regard to those changes, the Court should objectively impute to the parties a mutual intention that the employment relationship between them should no longer be governed by the terms of their written agreement.
Such an intention should not be lightly imputed, as it could have drastic and potentially damaging results for both parties: see Easling, Spartalis and Wittenberg, quoted above.
Significantly, the Executive Employment Agreement was not specified to be a contract for Mr Turner’s employment as Deputy CEO. Instead, it provided for his employment “in the position of Deputy Chief Executive Officer or such other position or positions determined by [Heartland Motors] in accordance with this Agreement and with the consent of [Mr Turner] which consent shall not be unreasonably withheld” (clause 5.1).
“The Executive must:
(a) perform to the best of the Executive’s ability the duties assigned to the Executive by the Employer;
(b) use all reasonable efforts to promote the interests and business of the Employer;
(c) serve the Employer faithfully and diligently to the best of the Executive’s ability; and
(d) comply with all policies of the Employer in place from time to time.”
I accept that, over the course of the period of sixteen years since the entry into the Executive Employment Agreement, there have been significant increases to Mr Turner’s salary, and that there have been new corporate entities added to the Heartland Motors Group. However, those matters are not sufficient to establish, either individually or in combination with the other matters set out above, that there has been such a fundamental change in the employment relationship between Mr Turner and Heartland Motors that the Court should impute to those persons an abandonment of their written agreement. For example, while new corporate entities may have come into existence, Mr Turner deposed that, for “the majority of [his] time as CEO”, he was “performing duties for Heartland Motors” (that is, the counterparty to the Executive Employment Agreement) and “reporting to the directors of Heartland Motors and BG Webb”. Further, the increase to Mr Turner’s salary over the course of his sixteen years of employment equates to an increase of approximately 8% year-on-year, which is not a level of increase such as to indicate that there has been a fundamental change in his role or responsibilities.
In addition, Mr Turner has previously, in the course of earlier litigation regarding the Heartland Motors Group (in which he was legally represented), asserted that his employment as CEO is governed by the terms of the Executive Employment Agreement. For example, in an affidavit sworn in the 2024 Directors Proceeding, he deposed that he was “appointed CEO of the Group” in 2009 and identified his “employment agreement” as being the Executive Employment Agreement dated 17 March 2009 (which he exhibited to his affidavit). He also made a similar statement in an affidavit which he prepared for the 2025 Federal Court Proceeding. In his affidavit in the present proceeding, Mr Turner claimed that he “did not look carefully” at the Executive Employment Agreement, at the time of swearing either of those two earlier affidavits. I do not accept this evidence. It is plain that Mr Turner is someone who is heavily invested in the various proceedings relating to the Heartland Motors Group. It is likely that he has been closely involved in the preparation of his affidavit evidence and has reviewed its contents carefully. It is unlikely that he would have expressly referred to the Executive Employment Agreement, and exhibited it to his affidavit, if he was of the view that it was outdated and of no relevance to his role as CEO. The suggestion that some other agreement governs his employment appears to have first been raised following his termination.
The Executive Employment Agreement contained a number of provisions regarding various matters which were undoubtedly of importance to Heartland Motors, including provisions regarding intellectual property rights (cl 7), confidential information (cl 8), and restrictive covenants (cl 10).
Similarly, this agreement contains other provisions which were undoubtedly of importance to Mr Turner, such as provisions relating to superannuation (cl 3), reimbursement of expenses (cl 3.7), hours of duty (cl 4) and leave (cl 6).
The Cross-Claimants submitted that, even if the Court found (as set out above) that the Executive Employment Agreement (including cl 9.2) continued to apply as at 6 May 2025:
there was implied into the contract a term requiring Heartland Motors to give reasonable notice of termination;
this implied term was not “wholly excluded” by clause 9.2, which provided that the contract “could not be terminated on ‘less than’ one month’s notice”; and
it followed that, while the period of notice could in no case be less than a month, the period of notice which was to be given remained governed by the implied term of reasonableness.
In Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32 at [30], French CJ, Bell and Keane JJ observed that employment contracts have attracted a number of implied terms in the course of the evolution of the employment relationship, including an implied term to give reasonable notice of the termination of the contract other than for breach. Their Honours added: “All such terms are subject to the express provisions of the particular contracts and any applicable statutes.”
In New South Wales Cancer Council v Sarfaty (1992) 28 NSWLR 68 at 73-74, Gleeson CJ and Handley JA referred to the decision of the House of Lords in McClelland v Northern Ireland General Health Services Board [1957] 1 WLR 595, and made the following observations:
“It is now well-established that, as a general rule, if the parties to a contract of employment make no provision as to the circumstances in which it may be brought to an end, the law will imply a term to the effect that the contract is terminable by either party upon reasonable notice to the other… However, some of the speeches in McClelland go further and indicate that, even where a contract of service contains some express provisions relating to termination, the parties will be taken to have intended that it may also be terminated on reasonable notice unless the language they have chosen evinces a clear intention to the contrary. Other things being equal, the courts have shown a strong inclination to impute such an intention to the parties. Even so, as McClelland shows, where, as in the present case, the parties have expressed detailed provisions as to the right of either party to terminate, it is ultimately a question of construction as to whether they intended those provisions to be comprehensive. If they did, that intention will prevail and there will be no implication of a right to terminate on reasonable notice.”
In the present case, clause 9.2 expressly provided that each of Heartland Motors and Mr Turner was able to terminate the agreement “on not less than one month’s notice”. That is inconsistent with any intention that neither party could terminate unless reasonable notice was given. Any such restriction on termination would give rise to uncertainty, for both parties to the contract, and undercut the evident intention of clause 9.2, which was to ensure that both parties were free to terminate so long as at least one month’s notice was given.
That does not mean, however, that notions of reasonableness and good faith have no part to play.
The Cross-Claimants referred to the decision in Adventure World Travel Pty Ltd v Newsom (2014) 86 NSWLR 515; [2014] NSWCA 174. In that case, a contract of employment provided that: “Either party may terminate this agreement and the Employment at any time by giving the other party not less than 12 months prior written notice during the 2 years period from the Commencement Date and thereafter by providing 3 months prior written notice.”
The employee, Mr Newsom, issued a notice shortly before the end of the two-year period specified in this clause, giving 12 months’ notice of his resignation. The employer then purported, after the conclusion of the specified two-year period, to give three months’ notice (thereby seeking to terminate the employment at an earlier date than would have been the case pursuant to the employee’s notice). In contending that the contract should be interpreted as permitting multiple notices, the employer argued that, were this not so, the employee could give notice terminating the employment in 5, 10 or 20 years’ time, each of which would be “not less than 12 months”, and the employer would be bound to that period. Meagher JA (with whom McColl and Leeming JJA agreed) dealt with this submission as follows (at [26]):
“The power to fix a period of ‘not less than’ 12 months is conferred for the purpose of giving advance notice of the termination of the agreement. Where a contractual power is given to one party for a purpose but in terms wider than necessary for the protection of its legitimate interests, the exercise of the power may be constrained by implied obligations of reasonableness and good faith, as was held in relation to the exercise of the powers given in the agreement in Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187; 69 NSWLR 558 at [163], [185]. A constraint in those terms would prevent the fixing of a period of notice for an extraneous purpose or one which could not on any view be justified as reasonable having regard to the purpose for which such a notice is given. That purpose, described generally, is to enable the parties to end their existing relationship and have a reasonable time to obtain either a substitute employee or other employment: see Birrell v Australian National Airlines Commission (1984) 5 FCR 447 at 458 (Gray J); and, in relation to a distributorship agreement, Crawford Fitting Co v Sydney Valve & Fittings Pty Ltd (1988) 14 NSWLR 438 at 448 (McHugh JA). In my view the power in cl 14.1(a) is to be read subject to such a constraint.”
Having regard to these principles, I accept that the exercise of the power in clause 9.2 of the Executive Employment Agreement to terminate on not less than one month’s notice is constrained by implied obligations that such power be exercised in good faith and reasonably, and not capriciously or for some extraneous purpose. This does not amount to a finding that, despite the terms of clause 9.2, the Executive Employment Agreement could only be terminated by either party on reasonable notice. In Burger King Corporation v Hungry Jack's Pty Ltd (2001) 69 NSWLR 558; [2001] NSWCA 187, the Court (Sheller, Beazley and Stein JJA) observed that:
the relevant authorities make no distinction of substance between the implied term of reasonableness and that of good faith, with Priestley JA stating in Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 263 that: “The kind of reasonableness I have been discussing seems to me to have much in common with the notions of good faith” (at [169]; and see also [170]); and
the concept of good faith is understood as including “an obligation on the parties to co-operate in achieving the contractual objects (loyalty to the promise itself)”, “compliance with honest standards of conduct” and “compliance with standards of conduct which are reasonable having regard to the interests of the parties” (at [171], referring to Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 at 367; and see also Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 at [145] per Bathurst CJ (Meagher and Macfarlan JJA agreeing)).
Importantly, the implied obligation of good faith and reasonableness does not require a party to act in the interests of the other party or subordinate its own legitimate interests to those of the other party, although it does require it to have due regard to the rights and interests of the other party: Cordon Investments at [144].
The question as to whether this implied obligation was breached by Heartland Motors in terminating Mr Turner’s employment is considered below.
The Cross-Claimants submitted that, having regard to the purpose, manner and effect of the termination of Mr Turner’s employment on 6 May 2025, Heartland Motors breached its implied obligation of good faith and reasonableness.
As regards the purpose of the termination, the Cross-Claimants submitted that Ms Richards and Ms Hooker caused Heartland Motors to terminate Mr Turner’s employment “in execution of a pre-arranged strategy to enable a sale of the Group’s shares to a third party”, believing that this termination would “cause him significant distress and weaken his attachment to the Group, and that this would make Turnercorp more willing to sell its shares”.
As regards the manner of the termination, the Cross-Claimants submitted that Ms Richards and Ms Hooker adopted a “secretive blitzkrieg” strategy, which involved not taking any steps which might forewarn Mr Turner of their intention to remove him, until they were ready to put their plan into effect. The Cross-Claimants submitted that this strategy demonstrated a lack of good faith, since it was “calculated to, and had the effect of, ensuring that [Mr Turner] could not seek to protect himself, including by seeking the assistance of this Court” and “involved giving him no opportunity to consider and be heard on any so-called ground for termination”.
As regards the effect of the termination, the Cross-Claimants submitted that the intended, actual and foreseeable effect of the termination was to “deprive [Mr Turner] of his long standing and much valued employment, and leave him immediately unemployed and humiliated”, despite his having “worked hard over decades to grow and develop the businesses, in the process making and distributing millions upon millions of dollars for the personal use and enjoyment of [Ms Richards] and [Ms Hooker], who themselves had contributed next to nothing”.
Further, the Cross-Claimants contended that the effect of the termination was to cause the dealer subsidiaries in the Group “to commit events of default under most dealership agreements”. (I will deal with this issue separately below, when considering the oppression claim.)
The Cross-Claimants submitted that Ms Richards and Ms Hooker took steps to remove Mr Turner as CEO of the Heartland Motor Group and as a director of the operating entities for the purpose of “persuading Turnercorp to sell its shares [in BG Webb] so as to facilitate their exit from the Group (and possibly with the benefit of Turnercorp’s shares as well if, in its weakened state, it agreed to be bought out following Kieran’s termination)”.
Each of Ms Richards and Ms Hooker had, in the past, expressed an interest either in selling the entirety of the Heartland Motors Group to a third party (such as Mr Nick Politis, with whom they had discussions in 2021: see paragraph [39] above), or in selling their shares to Mr Turner. There had been a number of discussions with Mr Turner regarding such a sale, but none had progressed very far.
The Cross-Claimants’ submissions on this issue focussed, in particular, on a sale strategy which was said to have been formulated by Ms Richards and Ms Hooker following the engagement of Dr Tony Rumble of The Wealth Partnership, who in turn engaged Mr Rohan Meyer as a consultant in around December 2023. The engagement letter for Mr Meyer stated that Ms Richards and Ms Hooker were seeking advice and services “in relation to their dispute with Kieran Turner, and to assist with the maximisation and monetisation of the value of their capital invested in the Heartland Group of Companies”. The particular services to be provided by Mr Meyer included the following (emphasis added):
“(a) advise in relation to business strategy especially as it relates to the fair market valuation of, and potential sale of the business/es and assets owned by the Heartland Group of companies;
…
(b) advise as to strategy and tactics to aid [Ms Richards’ and Ms Hooker’s] negotiations with all stakeholders (including potential purchasers, related service providers and motor vehicle manufacturer/s, Government and regulatory agencies) and participate in such negotiations as expressly required by [The Wealth Partnership];
(c) assist and advise in respect of any proposed sale of the assets/ businesses of the Heartland Group …”
Similarly, in November 2023, Dr Rumble sent an email to Ms Richards and Ms Hooker regarding his discussions with another consultant, Mr Steve Rivers, in which Dr Rumble reported that he had informed Mr Rivers that “[Ms Richards and Ms Hooker] don’t wish to continue to be [in the] motor business going forward ie [their] goal is to monetise the value of the businesses”.
Ms Richards conceded, in cross-examination, that at the end of 2023 she was intending to pursue a process that would culminate in a sale of her shares in the Group.
In January 2024, Mr Meyer, likely with input from Dr Rumble, prepared a document headed “Heartland Group – High-Level Business Strategy 2024”. This strategy involved three phases:
“Phase 1: Recalibrate Board and Appoint Advisory Board”. This phase involved appointing Ms Hooker to the Board “and any other Board changes” (which, Ms Richards acknowledged, involved removing Mr Turner). It also involved appointing advisors, such as Mr Meyer, and advising Manufacturers of the changes;
“Phase 2” involved an “in-depth business review”. There were two “scenarios” for this phase, one of which involved working with existing executive management (including Mr Turner) and the other of which involved appointing a new CEO; and
“Phase 3: Business Sale”. This phase involved reviewing the business for sale readiness, preparing an information memorandum, identifying potential buyers, agreeing on a sale process, and implementing that process.
Mr Meyer gave evidence that, when he provided his strategy document to Ms Richards and Ms Hooker, they told him that they were “unhappy with Kieran in the role of CEO, but were open to the possibility of Kieran continuing in that role” and “selling the business was an option they wished to consider and explore, but not a certainty if the issues that they were having with Kieran could be resolved”.
In May 2024, Dr Rumble sent a letter to Mr Meyer proposing that “effective immediately upon Jo Richards and Bess Hooker securing management control of the Heartland Group, you will be employed by Heartland Group as CEO”.
On 20 December 2024, Dr Rumble sent a Confidentiality, Non-Disclosure and Non-Circumvention Agreement to McCarrolls, which is a car dealership business. The recitals to this agreement stated that Ms Richards and Ms Hooker had, in their capacity as shareholders of the Heartland Motors Group, financial information relating to the Group, including entities which own real property used by the Group (described as the “Confidential Information”), and that McCarrolls was “desirous of receiving the Confidential Information to consider an acquisition of [Ms Richards’ and Ms Hooker’s] shares in the Business”. Clause 1.2 of this agreement provided that McCarrolls would advise Ms Richards and Ms Hooker, as soon as practicable after receiving this information, whether it was interested in acquiring those shares.
“Strategic goal is to secure control, restore value across operation and asset base, and to (in due course) monetise at ‘best value’ (eg 2-3 year process)
Discussions regarding sale now assume that:
Sale of 100% of shares in Heartland Group can be arranged
Sale consideration can include a subsequent component reflecting uplift in value of assets.”
While this document referred to a goal of selling 100% of the business in around a “2-3 year” timeframe, there were discussions with McCarroll’s in early 2025 regarding the sale of the property and business at Castle Hill, for the purposes of generating funds to buy out Mr Turner’s interest in BG Webb (in the event that he agreed to sell). In circumstances where Mr Turner had been threatening to bring an oppression claim (and had commenced, but then discontinued, such a claim in the 2025 Federal Court Proceeding), it is understandable that Ms Richards and Ms Hooker were exploring whether they would be able, in the event that Mr Turner sought, or agreed, that his shares be bought out by his aunts, to raise the funds necessary to complete such a purchase. Further, it should be noted that Mr Turner had himself taken similar steps at around this time. In November 2024, he had communications with ANZ regarding a proposed $40m loan, and informed the bank that one of the purposes of this loan was a “family buy out”.
The Cross-Claimants relied on the fact that Dr Rumble had, in an email of 13 May 2025, referred to McCarrolls having a “first and last right of refusal”. There was otherwise no evidence of the nature of any such right. Further, Dr Rumble mentioned this “right” in the context of referring to an “eventual sales process” (without indicating any timeframe for such a process to be “eventually” undertaken). In this email, Dr Rumble also referred to a previous indication by Ms Richards and Ms Hooker that they wanted “to install management to stabilise and improve the value of the businesses, with a view to a potential sale of assets at a point in time which you decide to be appropriate”.
In cross-examination, Ms Richards agreed that she recognised, in around 2021 or early 2022 (that is, after the dealings with Mr Politis did not proceed), that Mr Turner’s attachment to the business represented an obstacle for her aim of achieving a sale of all of the shares in the Group; and that, by around 2024, she thought that if he was removed as CEO, this might lead to him being more willing to sell his shares.
However, it does not follow that Ms Richards, let alone Ms Hooker, implemented a strategy of removing Mr Turner as CEO and as director of the Operating Entities for the purpose of achieving a sale of the whole of the business. When this proposition was put to Ms Richards in the same passage of cross-examination, she responded that there were “a lot of reasons” why Mr Turner was removed as CEO, and that “[w]e just didn’t want to work with him anymore”. She maintained this evidence throughout the course of her lengthy cross-examination. Similarly, Ms Hooker rejected any suggestion that she took steps to remove Mr Turner as CEO for the purpose of persuading him to sell his shares, so that the whole of the business could then be sold.
A key part of the Cross-Claimants’ case, both in respect of the termination claim and the oppression claim, was that the of terminating Mr Turner as CEO was to effect a sale strategy. That is apparent from the following submissions made by Senior Counsel for the Cross-Claimants in closing address (emphasis added):
”HIS HONOUR: Isn’t that enough for a board to say, We don’t trust our CEO? …
[SENIOR COUNSEL FOR CROSS CLAIMANTS]: What your Honour I think is really asking me is, was there more than one purpose? Was one purpose to weaken Turner Corp to facilitate a sale? Was the second purpose, Well, we don’t trust him anymore. Here are these grounds we set out in our letter, and that’s why we’re doing it? We say that the only purpose was to weaken Turner Corp for sale, and we say that is obvious in circumstances where there were all manner of alternatives that could have been deployed to deal with that issue if it was genuine, and we highlight the fact that they said in their evidence that as far as relationships and trust was concerned, that had gone long ago, well before 6 May. That wasn’t a reason to terminate him.”
“The reason for the decision to terminate your employment with the Group is that the Board no longer has trust and confidence in your judgment or ability to perform your role of Chief Executive Officer …”
I am satisfied that the “Board” (that is, Ms Richards and Ms Hooker) had, as at 6 May 2025, lost trust and confidence in Mr Turner as CEO, having regard to the following matters.
First, Mr Turner had, for several years prior to May 2025, repeatedly sought to frustrate attempts by Ms Richards and Ms Hooker (who together controlled 60% of the shares in BG Webb) to have a say in the management of the Heartland Motors Group. For example:
in December 2022, Mr Turner purported unilaterally to appoint his brother as a director of various Operating Entities, over Ms Richards’ opposition, despite having no power to do so (see paragraph [52] above);
in February 2023, Mr Turner sent an email to Ms Richards (who was a director of all entities within the Heartland Motors Group), stating that she was not to contact any staff member other than himself, and that he had directed staff not to respond to her. There was evidence that Mr Turner subsequently took steps to enforce this directive, including by sending texts to the Group Financial Controller, Ms Kragh, after learning that she had answered a telephone call from Ms Richards, asking Ms Kragh not to “breach [this] policy again” and directing as follows: “Do not answer or reply to any phone, text or email”;
in May 2024, Mr Turner wrote to Ms Richards demanding that she resign as a director within seven days, and then purported to pass, over Ms Richards’ opposition and with the support of Mr Anthony Turner (who had not been validly appointed as a director), resolutions removing Ms Richards as a director of each of the Operating Entities;
in February 2025, Mr Turner used his powers as an officer of Boyded to frustrate attempts to hold the February 2025 EGM for the purpose of appointing Ms Hooker as a director of Heartland Group; and
after being unsuccessful in the 2024 Director Proceeding, Mr Turner purported to appoint Mr Anthony Turner as Supervisor of the RG Trust and then, after the determination of the 2025 EGM Proceeding, Mr Anthony Turner (likely at Mr Turner’s request) purported to exercise his powers as Supervisor to replace Boyded with Heartland One as trustee of the RG Trust.
The final matter was specifically referred to in the Termination Letter as being a reason why, as at 6 May 2025, the Board had lost trust and confidence in Mr Turner, stating as follows:
“… the Board no longer has trust and confidence in your judgment or ability to perform your role of Chief Executive Officer in circumstances where a majority of directors [namely, Ms Richards and Ms Hooker] are concerned that:
…
you have purported to change the trusteeship of the trust which was controlled by the Group and is integral to the continued viability, sustainability and commercial integrity of the Group's business, without any consultation, and which raises the risk of occasioning significant financial loss to the Group.”
The purported appointment of Heartland One was the culmination of a series of steps taken by Mr Turner over the course of eight years, commencing with Mr Turner’s purported appointment of himself as Appointor of the RG Trust in 2017, without informing, consulting with, or seeking the approval of Ms Richards.
The removal of Boyded and appointment of Heartland One as trustee of the RG Trust had the effect, and was undertaken for the purpose, of removing from the Group’s control the valuable assets of the RG Trust, which were integral to the conduct of the Group’s business, and placing such control exclusively in Mr Turner’s hands. I accept that these matters seriously, and justifiably, undermined Ms Richards’ and Ms Hooker’s trust and confidence in Mr Turner as CEO.
Secondly, Mr Turner had sought to enlist the aid of Manufacturers in frustrating his aunts’ attempts to have Ms Hooker appointed as a director of various entities within the Heartland Motors Group. The Termination Letter identified this conduct as having contributed to Ms Richards’ and Ms Hooker’s loss of trust and confidence in Mr Turner:
“you have written to the dealers in your personal capacity, and in conflict with your position as CEO, seeking to lobby them in relation to governance issues (we refer to your solicitors’ correspondence of 23 August 2024) and misrepresenting the true position.”
“As discussed, my aunty Bernice Hooker is a major shareholder of Heartland and has recently proposed to be elected as a Director of our parent company on 29 June 2022.
I am vehemently against this change of control for the following reasons:
1. No business experience
2. No automotive experience
3. Has been trying to sell her shares without success
4. Lives in QLD
5. Will sack Anthony or I
6. Will breach a verbal agreement I have with her
7. Not known to any manufacturer
8. Won’t fulfill her legal duties as a director
9. Will cause senior management Heartland resignations or changes
10. Will bring the companies into disrepute
11. Will trigger immediate Supreme Court and Family Court action
Th[e] only sensible decision is to not support Bernice as a Director or a shareholder and recommend she immediately sells her shares.”
“Yep, had a win. Basically, the manufacturers said they won’t consider adding Bernice as a Director unless the company that is contracted with them asks for this with both Directors signing this request. And obviously I wont sign this request so they don’t have to even consider it … at this stage 7 of our 12 manufacturers have written this to them. So, I feel my job is safe, the first time in 3 years.”
Ms Hooker was not aware of these letters at the time, but became aware of them in early 2025 when Mr Turner deployed this material in the 2025 Federal Court Proceeding, in support of a claim (which he subsequently abandoned) for an injunction restraining Ms Richards, Ms Hooker and Bernley from proposing any resolution at the 2025 February 2025 EGM to appoint Ms Hooker as a director of Heartland Group.
There are numerous other examples of such communications with Manufacturers to which Ms Hooker was not privy.
Mr Turner suggested that he was taking such steps for the benefit of the Heartland Motors Group and the various Manufacturers. However, it is more likely that he was motivated by self-interest and, in particular, his desire to ensure that Ms Hooker was not appointed as a director, in particular because he was concerned that, if Ms Hooker and Ms Richards obtained control of the Group, it would mean the end of his tenure as CEO. That is apparent from the terms of Mr Turner’s email to his father-in-law on 5 September 2024, set out in paragraph [484] above, in which he stated that as a result of his manoeuvrings with Manufacturers to prevent Ms Hooker’s appointment “I feel my job is safe”. It is also apparent from the following text message which Mr Turner sent to Ms Hooker on 13 June 2022, when she was seeking to be appointed to the board of BG Webb (emphasis added):
“Hi bes, I’m reaching out as family and not an enemy. I can’t let you out vote me on the board because I know you will try to sack me. I won’t let this happen. This is going to get messy, just being up front. Supreme Court and Manufacturers will expose dirty laundry. What happens from here is a direct response to your attempts to sack me after 27 successful years. I offered you a chance to take cash and move on happily but you threw it in my face by trying to sack me. The beginning of massive turmoil is unfortunately here and I’m disappointed it’s come to this from you.”
Mr Turner was threatening to “expose dirty laundry” to Manufacturers in order to encourage Ms Hooker to abandon her attempt to be appointed as a director, because he was concerned to ensure that he could not be removed as CEO.
Around two weeks later, on 29 June 2022, Mr Turner sent a text message to Mr Golden of Hyundai referring to the “dirty laundry” in question, namely, the alleged prior association of Ms Hooker’s husband with a bikie gang: “If these black uhlan bike director and shareholder affiliations end up in the newspaper or on tv I will rely on these m[e]ssages as legal notice.”
In December 2022, Mr Turner again urged Hyundai to intervene in the dispute between himself and his aunts, but Hyundai declined to get involved. In particular, there was the following exchange of emails between Mr Turner and Mr Anthony Rogers of Hyundai:
Mr Turner: “… my aunties have called a board meeting tomorrow to remove Anthony [Turner] as a director for an unknown reason and add Bernice [Hooker] to Heartland Group P/L and Boyded Industries P/L. Would you like to meet with my aunties to contest this until you understand why and determine if it’s in the best interests of the company? …”
Mr Rogers: “Unfortunately, under the terms of the Hyundai Franchise Agreement, HMCA employees are not in a position to contest any changes on your board, and it is appropriate that we leave those matters to be resolved within Heartland Group.”
“That she’d never had a job, she’d never worked in the car motor industry, she lived in Queensland, she wasn’t interested in the business, she’d never been interested in the business, she wasn’t capable of being in the business, she was married to a bikie. I can keep going.”
“Can you please advise your position on my aunties proposals below before our next Board Meeting on 20.3.23 at 1030am;
1. Add Bernice Hooker as a Director to Heartland Group P/L and Boyded Industries P/L
2. Remove Anthony Turner as a Director to Heartland Group P/L and Boyded Industries P/L.
As CEO, I would recommend ‘NO’ to both proposals simply because Anthony has 27 years of Automotive experience and Bernice has 0 years. Plus you know Anthony very well and Bernice not at all.
I will be voting ‘NO’ to both proposals.”
Hyundai again declined to express a position on this matter of internal governance; and Mr Turner again urged them, unsuccessfully, to get involved, out of a concern that “if my aunties get control of the Board as they propose by adding [Ms Hooker] and removing Anthony [Turner] then they can sack me and or sell Heartland Hyundai”. He concluded this communication by stating that “if I or we suffer damage I will refer to these emails”.
Similarly, Mr Turner exchanged the following text messages with Mr Kevin Gannon of Mitsubishi Motors Australia Pty Limited in June 2022:
“[Mr Turner]: Hi Kevin, how are you? I need you to meet my Aunty Bernice. She is an existing substantial shareholder but since my mum and nan died within the past 12 [months] she is now trying to come onto the Board and i don’t want her to as her husband is a Bikie for the Black Uhlans and if the press get a hold of this then it’ll be on the front page and tv and destroy both our brands. Based on that and her nil experience it should be plenty reason for you to reject her.
[Kevin Gannon]: Hi Kieran, currently overseas, will call on my return late July. My initial thoughts are we are unable to decide on company board members or decisions, we can only control who is the designated DP [Dealer Principal] of a business, or if an ownership change was happening. I will investigate further and advise.
[Kieran Turner]: Yes that is possibly true but regardless I strongly suggest you request an INTRO MEETING as she is a shareholder/director and get to know her. I voted against her appointment but was outvoted. I am putting manufacturers on NOTICE that I disagree with her appointment because of her inexperience and affiliations with bikies which are material threats to our brands. I will leave the decision to you and your senior mgt team from here and take no responsibility hereafter.”
There were numerous other examples of such correspondence in evidence. I accept the Cross-Defendants’ submission that Mr Turner encouraged Manufacturers to enforce rights (including rights which they did not in fact have) adversely to entities within the Heartland Motors Group, with a view to enlisting their aid in frustrating the attempts by Ms Richards and Ms Hooker to exercise their rights as substantial shareholders to have a say in the composition of entities within the Group.
Thirdly, a further matter which Ms Richards and Ms Hooker identify, in their respective affidavits, as undermining their relationship with Mr Turner was the fact that he regularly addressed them, or spoke about them, in contemptuous and offensive terms.
Ms Hooker deposed that when Mr Turner spoke to her on business matters, she “often felt belittled” (his tone likely reflecting the views regarding Ms Hooker that he expressed in the messages set out above).
Ms Hooker also deposed that Mr Turner was “often rude, especially to Jo [Ms Richards]”. There are numerous examples of such conduct referred to in the evidence. For example:
Ms Richards sent an email to Mr Turner regarding the minutes which he had prepared of a meeting held on 31 January 2023, expressing the view that those minutes were not accurate or complete and, in particular, stating as follows:
“As for your note of the 31 January 2023 meeting, I note that you have queried why the BG Webb transfers set out in your mother’s estate have not been signed off. I told you that they hadn’t been done correctly, to which you then called me a ‘fucking bitch’ and told me to ‘fuck off’. In the face of that abuse I said I wasn’t going to listen any more and was leaving the meeting. Your note does not properly record that exchange. For your benefit the reasons why the transfers have not been finalised are set out in our lawyer’s correspondence with your lawyer.”
“Your abusive language and conduct has become intolerable. Calling me a ‘f…… b….’, a ‘coward’, ‘disgusting’, a ‘low life grub’ and telling me to ‘f… o..’ is simply unacceptable.”
“Your ignorance and greed are making you act insane, and I seriously question your mental health and capacity to act as a reasonable person or Director.”
In their closing written submissions, the Cross-Claimants conceded, in something of an understatement, that “there have been occasions when [Mr Turner] has spoken to his aunts in ways that he should not have”.
While I accept that there was evidence that Ms Richards is herself a party to a group chat with her children in which offensive and disparaging remarks have been made about Mr Turner, such remarks in the context of discussions with immediate family (which were not intended to be conveyed to or read by Mr Turner) are distinct from Mr Turner’s demeaning, belittling and offensive remarks directed at Ms Richards in the course of their dealings in respect of the management of the Heartland Motors Group over a number of years, in meetings, in text messages to her and in emails. It is unsurprising that, in response to this conduct, Ms Richards formed the view that she was, as a director of the entities with the Heartland Motors Group, unwilling and unable to continue to work with Mr Turner in the role of CEO.
The issue for determination is whether Heartland Motors complied with its implied obligations of good faith and reasonableness in terminating Mr Turner’s employment pursuant to clause 9 of the Executive Employment Agreement. In considering that issue, it is necessary to consider whether Heartland Motors was acting to promote its own legitimate interests, or whether Heartland Motors was acting capriciously, or otherwise failed to co-operate in achieving the contractual objects, failed to comply with honest standards of conduct, or failed to comply with standards of conduct which are reasonable having regard to the interests of the parties.
Having regard to the matters set out above, I am satisfied that Ms Richards and Ms Hooker had, as stated in the Termination Letter, lost trust and confidence in Mr Turner as CEO as at 6 May 2025, which was the result of a series of events over an extended period culminating in the steps taken by him to remove control of the RG Trust from the Heartland Motors Group and to place such control exclusively in his own hands. In those circumstances, I am satisfied that Heartland Motors Group was not acting capriciously, but was promoting its own legitimate interests by exercising its contractual right under clause 9.2 to terminate Mr Turner’s employment. Accordingly, Heartland Motors did not breach any implied obligations of good faith and reasonableness by exercising that right.
For the reasons set out above, the employment relationship between Heartland Motors and Mr Turner was governed by the Executive Employment Agreement, which included cl 9.2, permitting either party to terminate that agreement on not less than one month’s notice.
Pursuant to s 117(2) of the Fair Work Act 2009 (Cth), Heartland Motors was not entitled to terminate Mr Turner’s employment unless:
(a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or
(b) the employer has paid to the employee … payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee … at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.
Having regard to the length of Mr Turner’s employment and his age, the minimum period of notice “worked out under s 117(3)” was five weeks, which was slightly longer than the period specified in clause 9.2. Pursuant to s 117(2)(b), Heartland Motors was entitled to make payment of five weeks’ pay to Mr Turner in lieu of notice. (Similarly, clause 9.4 of the Executive Employment Agreement provided that Heartland Motors could, at its option, pay Mr Turner “not to work out the whole or some part of the notice period by tendering a payment in lieu of such period of the notice period as is not worked by [him]”.)
By the Termination Notice issued on 6 May 2025, Heartland Motors stated that it was terminating Mr Turner’s employment in accordance with cl 9.2 of the Executive Employment Agreement and that it would, in accordance with cl 9.4 and s 117 of the Fair Work Act, provide “payment in lieu of notice of five weeks’ pay (to be paid today less applicable tax)”. This sum was paid into Mr Turner’s bank account on 9 May 2025.
Accordingly, the steps taken by Heartland Motors in terminating Mr Turner’s employment complied with clauses 9.2 and 9.4 of the Executive Employment Agreement, and with s 117 of the Fair Work Act. Further, for the reasons given above, Heartland Motors did not, in exercising those rights, breach any implied obligations of good faith and reasonableness. It follows that the claim for breach of contract must be dismissed.
The Cross-Defendants submitted that, in any event, Heartland Motors was entitled to summarily dismiss Mr Turner from his employment as at 6 May 2025 by reason of his misconduct.
It is well established that an employee’s dismissal may be justified upon grounds on which the employer did not act and of which the employer was unaware at the time of termination (and even though the ground actually relied upon is found to be without substance): Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 at 377 per Dixon J; [1931] HCA 21; Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 at 262 per Mason CJ; [1988] HCA 11.
An employee in a position of confidence can “be dismissed without notice or compensation if he acted in a manner incompatible with the due and faithful performance of his duty, or inconsistent with the confidential relation between himself and [the employer]”: Blythe Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 72-73 per Starke and Evatt JJ; and see also at 81-82 per Dixon and McTiernan JJ; [1933] HCA 8. These observations were quoted with approval by Gleeson CJ, Gaudron and Gummow JJ in Concut v Worrell at [25]. In that case, Kirby J observed (at [51]) that:
“it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal”
Given that I have determined that Heartland Motors did not breach the terms of Mr Turner’s employment contract by terminating his employment on five weeks’ notice, it is unnecessary to determine this issue. Further, I consider it undesirable, in circumstances where it is unnecessary to do so, to express a view on each of the various allegations of misconduct that Heartland Motors advanced against Mr Turner (which do not otherwise arise). It is sufficient for present purposes to address Heartland Motors’ contention that Mr Turner’s conduct in relation to the change of the trustee of the RG Trust was such as to justify his summary dismissal by Heartland Motors.
I am satisfied that the following conduct on the part of Mr Turner prior to 6 May 2025 was incompatible with the due and faithful performance of his duty and was destructive of the mutual trust between the employer and employee, such as to justify his summary dismissal:
his purported execution, in around July 2017, of the Appointor Deed on behalf of Boyded, in circumstances where he was aware that the board of Boyded had not given its approval for his appointment as Appointor of the RG Trust;
his failure to inform his fellow director of Boyded, Ms Richards, that he had purported to appoint himself as Appointor of the RG Trust;
his fabrication, in 2024, of two versions of the “1 May 2017” Minutes which purported to record that Ms Richards had in fact approved his appointment as Appointor of the RG Trust; and
his purported exercise of his powers as Appointor to appoint his brother as Supervisor of the RG Trust, for the improper purpose of frustrating his aunts’ attempts to obtain control of the Heartland Motors Group, by taking away from the Group control of the valuable assets of the RG Trust, which were used to conduct the business of the Group, and placing such control exclusively in his own hands.
For those reasons, even if I had determined that Mr Turner’s employment was not governed by the terms of the Executive Employment Agreement, or that Heartland Motors was required by the terms of his employment contract to give him reasonable notice of termination, I would have determined that Heartland Motors was, as at 6 May 2025, entitled to summarily dismiss Mr Turner.
I have not gone on to consider what relief would have been granted if I had determined that Mr Turner’s employment contract had been breached.
That is because an order was made, by consent, on 18 August 2025, that the question of damages for any such breach be determined separately, and following the determination of the other issues in the proceedings. This order was sought in circumstances where the proceeding was brought on for hearing on an expedited basis, and the parties were unable, in the time available, to complete their expert evidence on this issue. In particular, there was some complexity to any assessment of damages for breach of contract by reason of the claim for damages for loss of the opportunity to earn a bonus under the alleged “Hospitality Bonus Term”, which I consider below. The parties submitted that the Court should, in this judgment, determine the existence and content of any “Hospitality Bonus Term”, so that those findings could be taken into account in preparing the evidence on damages
The Cross-Claimants accepted that, if I found that liability was not established, then it would be an arid exercise to have a further hearing at first instance to determine what relief would have been awarded in the event that those claims had been established, and the appropriate course would be to dismiss those claims, with the Cross-Claimants then being able to pursue any rights of appeal.
Nonetheless, in case I am wrong on the issue of breach, I have gone on to consider whether there was a Hospitality Bonus Term in the terms pleaded by the Cross-Claimants, since there was substantial argument on this issue and the determination of this issue could, in the event of any successful appeal against the finding of breach, be taken into account in any subsequent assessment of damages for breach.
“a term that [Heartland Motors], or one of its related entities, would seek to carry out a project to develop and convert the properties at 1 Packard Avenue, Castle Hill and 206-220 Hume Highway, Greenacre (Properties) held by [Boyded] and operated by [Heartland Motors] to hospitality venues including obtaining development consent in respect of the Properties (each, a Hotel DC) for that purpose, and upon each Hotel DC being obtained, Kieran would become entitled to bonus payments comprising:
a. an amount equal to 30% of those parts of the Properties which was shown as being occupied by the approved development (being a pub with parking facilities) in the relevant Hotel DC; and. following development:
b. an amount equal to 30% of any other returns made in respect of the project (including profits made from the operation and sale of the developed business).”
The term was said to arise from an exchange of emails. It is necessary to go through the history of the negotiations in some detail, as individual emails need to be interpreted not only having regard to their own terms, but also having regard to the preceding communications.
On 19 February 2020, Mr Turner sent an email to Ms Richards, Ms Hooker, Ms Kathryn Turner and Ms Dulcie Webb, which set out a proposal to develop a hospitality business and to reorganise the shareholdings of BG Webb:
“I have come up with an idea to add pubs to our existing car dealerships where we are zoned appropriately. My research to date confirms we could lodge a DA and if successful an application to LGA for pubs on our Castle Hill site and Chullora site.
…
I would like to be an equal partner so we are all 20% equity owners. I am doing all the work by myself these days and if the above strategy is approved my life will turn upside down. I will sacrifice a lot of time and stress with no guarantees of success hence a gift of 2.5% equity from each of you would make all 5 of us equal partners at 20% each.”
In March 2020, Ms Richards responded by requesting a meeting in person to discuss Mr Turner’s proposal. Around this time, the first COVID-19 lockdown began. On 21 March 2020, Mr Turner suggested that a meeting occur when COVID-19 was “contained” and stated that he was “not willing to further expand my time, duties and stress levels by buying additional group investment properties and planning and building major metro pubs without additional equity to 20% so we are all equal”. Ms Richards agreed that it was “not a good time to do any transactions at the moment”, and it appears that discussions were put on hold for a number of months.
On 12 June 2020, Mr Turner sent an email to Ms Richards, Ms Hooker and Ms Turner, in which he provided an update on the impact of COVID-19 on the Heartland Motors Group business, and stated as follows:
“I don’t see a way out of these big losses unless we recreate ourselves. Have you thought more about my hotel for equity proposal?
… how about we structure this as a bonus. Ie, 5% group equity per pub approval? That’s 1.25% from each of you per pub. And to be clear the pubs will be worth about $70m each if it comes off so that’s putting about $30m in each of your pockets in 3 years for doing nothing … It’s a no brainer.”
As outlined above, Mr Turner’s proposal was that he receive additional equity in BG Webb in return for each pub that was developed.
On 15 June 2020, Ms Turner expressed her support for her son’s proposal. On the same day, Ms Richards responded as follows:
“[Ms Hooker] is coming down in the next month so maybe we could have a board meeting then to discuss your proposal. Can you give a bit more info on this before the meeting like what are we doing with the other sites? Will they still be operating as Heartland?
and any other proposals you have going forward.”
“The pubs will be in the corners of the car dealerships at Castle Hill and Chullora …They can continue on as cars for the balance albeit in a smaller capacity but the pubs will earn about $4m each and more than offset the car losses at these sites. The pubs themselves will run under me and the Heartland structure …”
A meeting took place on 24 August 2020. Mr Turner deposes that, at this meeting:
Ms Richards indicated that she, Ms Hooker and Ms Webb were agreeable “in principle” to the suggestion that the Heartland Motors Group diversify its operations to include pubs; and
Mr Turner reiterated his proposal that his “bonus for doing this work would be an increase in Turnercorp’s 10% equity stake in BG Webb to 20%” (that is, an additional 5% group equity per pub).
On 27 August 2020, Mr Turner sent a revised proposal to Ms Richards, copied to Ms Turner and Ms Hooker, which stated as follows (emphasis added):
“My proposal of a personal bonus of 5% group equity per pub was countered by you for 5% equity only in the pubs per pub approval. In principal, I was in agreement with this and grateful the negotiation went forward. However, it’s more complicated doing it that way as I flagged to you in the meeting.
…
The big killer for me is the FSR not being transferred if we subdivide. Therefore, I propose we change the equity proposal to be 5% equity in the pub and the whole site it sits on (without subdivision) per pub approval? …”
“Ok all good, to be clearer:
- My original offer was an extra 10% on 6 car dealerships, 2 pubs and all 12 properties.
- Your counter was an extra 10% on 2 pubs and part of their 2 properties.
- My counter is an extra 10% on 2 pubs and whole of their 2 properties.
My counter is because of reasons already supplied below, basically we lose very valuable FSR for possible re zoning one day, if we subdivide the hotels.
…
And to answer your question Joe, there are five different entities owning the 12 properties”
“The bonus offer to Kieran is an additional 10% equity in each of the new pubs and the whole land it sits on if the pub is approved by Council and OLGA.”
On 11 September 2020, Ms Richards sent an email to Mr Turner, copied to Ms Hooker and Ms Turner, stating that she was seeking advice from her solicitor, Mr Hugh Scott, in respect of “a few Trust issues”. Mr Turner responded on the same day, indicating that he had spoken with Mr Greg Jepsen (from the Group’s external accountants, Auswild & Co) in respect of engaging KPMG to prepare a revised form of agreement and that he would provide this draft agreement to Mr Scott as soon as possible.
On 14 September 2020, Mr Turner sent an email to Mr Scott, enclosing a document entitled “Priority Distribution Deed” and a revised corporate structure of the Heartland Motors Group prepared by KPMG. In this email, Mr Turner stated that KPMG “propose a Property Agreement instead of setting up new companies and stamp duty on transferring properties which is different to what I recommended but fine by me”. Mr Turner sent a follow-up email to his mother and aunts on the morning of 24 September 2020, indicating that he had not received a response from Mr Scott, and stating as follows (emphasis added): “This should be a no brainer and we should be going forward together on this. I have accepted your offer in principal and come back a long way to do so.”
At 12:28pm on 24 September 2020, Mr Scott responded, stating that it is “in everyone’s interest not to rush what is a complicated proposal” and disputing Mr Turner’s suggestion that there was any “in principle” agreement:
“Your email today stated that you had accepted Jo, Bess and Dulcie’s offer in princip[le], but the documents are drafted on the assumption that there is agreement on your 10% 'equity' offer relating to the pubs and to the whole of the subject properties. The offer that had been made to you was for 10% equity of the pubs and the part of the properties referable to the pubs. Given the matters below there are difficulties with both offers, and it may be that some other more achievable and certain form of incentive for achieving the approvals, such as a $ sum, may have to be discussed and agreed.”
Mr Scott also noted that there were various issues with the draft Priority Distribution Deed which had been provided by Mr Turner, including that this document “provides no detail of, nor indeed make[s] any reference to, the proposal for hotel development and the threshold hurdles for approvals from the council and Liquor and Gaming NSW”. Mr Scott asked if he could speak to KPMG about these matters.
At 12:40pm, Mr Turner sent a response to Mr Scott, which was copied to Ms Richards, Ms Hooker and Ms Turner, stating as follows:
“Your [sic] killing me, this has been going on since Feb. As stated many times, if I get the pubs approved by Council and [Liquor & Gaming] then I get an additional 10% in the pubs and their property. If this is agreed the finer details can be done when/if they get approved and the incentive is triggered.
…
I’m not responding to Hugh again… Let me know if the deal is accepted or not, either way I’m fine.”
At around 2:05pm, Ms Richards responded to Mr Turner’s email, copied to Ms Hooker, suggesting that the best way forward was for Mr Scott to speak to KPMG in respect of his concerns regarding the Priority Distribution Deed. Later that evening, Mr Turner replied, reiterating that his proposal is “the extra 10% in the pubs and properties they sit on” and stating: “If that’s not agreed then forget it”. He requested a response by the following day.
On 28 September 2020, Mr Scott sent an email to Mr Turner, which was copied to Ms Richards, Ms Turner and Ms Hooker, and which set out a counterproposal, as follows (emphasis added):
“Jo, Bess and Dulcie together with their grandchildren have met to discuss the pub proposal. In general terms they are happy to offer the following alternative proposals each of which will need trustee approval:
- A cash amount(s), to be discussed and negotiated, in the event required approvals are obtained to the development and operation of the pubs, the detail, scale, scope and operation of the developments, and sites, of the pubs to be agreed. This would be payable on receipt of the approvals. It would be tantamount to a payment by the trust of a consultancy fee for achieving the approvals, not a distribution, and could be documented now.
- In substance their previous proposal, which they understand you accepted in principal, of 10% equity in the pub businesses and 10% of the part of the properties on which the pubs are sited. The latter would be 10% of the net proceeds of the sale of the future subdivided lots upon which the pubs are sited. The pre-condition to the incentive will be obtaining the required approvals to the development and operation of the pubs, of which the detail, scale, scope and operation of the development, and sites, of the pubs is to be agreed. Subject to the approvals, the 10% equity in the pub businesses would be transferred or allotted on establishment of the businesses and the 10% of the net sale proceeds on completion of the future sale of the subdivided lots.”
“In February 2020 I proposed a Pub Strategy for an additional 10% equity in the whole group so we would be equal partners, considering I literally do everything and have made you more money than BG would ever have dreamed.
In August 2020 you countered with an additional 10% equity in the pubs and part property (totalling 20%).
In September 2020 I countered with an additional 10% in the pubs and the whole property they reside (totalling 20%).
I’m not negotiating anymore….”
“It’s a disgrace that I have to deal with this crap when I’m trying to help you and save the business just like I have for the past 25 years. And it’s a disgrace how you all exclude Mum.
…
LET’S KEEP THIS SIMPLE… I have taken advice this morning on these emails and its clear Hugh is up to something so my offer is back to my original one – I want to be an equal partner ie 20% in the whole group.
If this is unacceptable then fine I’ll happily enjoy life with less stress but I’m not being tricked by Hugh and these wordy emails that have beaten me down over 7 months while I have saved YOUR car business throughout a global pandemic without one phone call to see how I or the business is going…”
Later on the same day, on 29 September 2020, Mr Turner sent another email to Ms Turner, copied to Ms Richards and Ms Hooker, apologising for his tone and indicating that his offer was withdrawn, stating that he didn’t think his proposal for the development of the pubs was going to be “the end” and that “[n]ow no one gets anything”.
On 30 September 2020, Ms Richards replied to Mr Turner’s email, reiterating the offer contained in Mr Scott’s email of 28 September 2020. The following afternoon, Mr Turner replied, stating “[t]hanks but no thanks” and “I’m so over it let’s move on”.
It is plain that there was no agreement by this date, “in principle” or otherwise.
On 13 October 2020, Ms Richards sent an email to Mr Turner stating that she, Ms Hooker and Ms Webb had decided that they wished to sell the business of the Heartland Motors Group, so that each individual family could “be in charge of their own future” and to avoid family disagreements.
Mr Turner responded on the following day, apologising for his “disrespectful” emails and stating that he also wanted to “sell out of this business and do my own thing”. However, he went on to state that:
“I recommend you accept my pub proposal but how about we make my additional 10% group equity subject to the pubs being built, not just da / [Liquor & Gaming] approved. That’s probably 3-4 years away, if we are lucky. Then I propose we trade for 2 solid years then sell the whole thing in 5-6 years.”
“To your plan re the pubs and business, we are all on board with going ahead with the pubs and your exit strategy with selling the entire empire in 5-6 years once the market has picked up and we have an agreement on the pubs.
So we would like to make one last offer and we will not move on this, as we think it is fair and also an increase on what you agreed to during that meeting at Nans in August.
We do not agree to extra group equity. The offer, for this deal only, is an extra 20% (instead of an extra 10%) of the pubs, as the extra value lies in the hotels and not the whole group. The risk lies mainly with us being the majority shareholders, and we are minimising our gain by rewarding you with extra equity. If you are unmoveable in this regard, we have no other option but to start the sale process of the whole group.”
This email made an offer for 30% of the equity in the pubs (“an extra 20%” on top of the previous offer of 10%), without any interest in the land on which they were located.
Mr Turner responded on the same day, seeking both that his share in the pubs be increased to 40% and also that he receive “the 2 whole properties [on which] they reside”. Accordingly, the parties were, at this stage, still far apart.
On 21 October 2020, Mr Turner sent an email to Ms Richards, Ms Hooker, and Ms Turner, asking whether “we are doing or ditching” his pub bonus proposal. Ms Richards responded that they were “happy for [Mr Turner] to go ahead” if he agreed with the offer made in her email of 16 October 2020. Later that day, following some further emails, Mr Turner stated that he would not accept a deal for “less than 40% of the pubs and their properties” (emphasis added).
On 22 October 2020, Ms Richards reiterated that she, Ms Hooker and Ms Webb “were not going to move on our offer of 30% of the pubs”. Mr Turner replied on the following day, rejecting this offer.
On 15 November 2020, Mr Turner sent an email to Ms Richards, Ms Hooker and Ms Turner, purporting to accept the “30% equity offer in the 2 pubs and the whole properties they reside subject to achieving DA and OLGA [Liquor & Gaming] approval for such” (emphasis added).
No such offer had been made. Instead, as set out above, Ms Richards, Ms Hooker and Ms Webb had offered 30% of the equity in the proposed pubs (and no property). Ms Richards pointed this out in an email to Mr Turner on the following day, stating as follows: (emphasis added)
“There seems to be some confusion with our offer.
Just to clarify, our offer was 30% of the pubs only (no land included). Our first offer was 10% of the pubs and the subdivided land that the pubs sat on (which you agreed to at the meeting at mums). You then informed us that the subdividing would be detrimental for further development on the rest of the land. We understood this, hence our increased offer to 30% of the pubs only (no land). At no point in our negotiations have we offered any equity of the whole of the land that the pubs sit on. Our offer still stands at 30% of the pubs.”
Ms Richards expressly stated, twice, that the offer is in respect of the “pubs only” with “no land included”. No reasonable person reading this offer would understand that any offer was being made for the whole (or any part of) the land on which the pubs were located.
On the evening of 16 November 2020, Mr Turner replied to Ms Richards, copied to Ms Hooker, stating that the previous correspondence was “absolutely ridiculous” and that he had “agreed to 30% with the lands”. Mr Turner’s response amounts to a rejection of the offer made by Ms Richards. There was, therefore, no agreement at this time, and no offer remained open that was capable of acceptance.
Three months later, on 23 February 2021, Mr Turner sent an email to Ms Richards, copied to Ms Hooker and Ms Turner, stating that he had “lodged the 2 pub da’s even though I didn’t get what I wanted” and that he “will accept” the offer of “30% of the pub business in terms of dividends and sale proceeds etc”.
There was no offer at this time that was capable of acceptance. Mr Turner’s statement that he “will accept” the offer previously made to him, for “30% of the pub business in terms of dividends and sale proceeds” (and without any reference to land) is, in substance, an offer by him along the lines previously made by Ms Richards, namely, a proposal for an arrangement whereby he will receive “30% of the pubs only (no land)”.
On 25 February 2021, Ms Richards replied, stating that she, Ms Hooker and Ms Webb were pleased that Mr Turner was “happy to proceed with their previous offer of 30% of the pub businesses”. On 2 March 2021, Mr Turner responded as follows:
“I definitely wouldn’t say I’m ‘happy to proceed’ on your 30% offer considering the massive workload… but I’m putting the company first.”
This was the first time that there was a meeting of minds on the content of any proposed pub bonus. Specifically, each of the shareholders of BG Webb agreed with a proposal that Mr Turner receive 30% of the pubs (that is, 30% of dividends from the pubs and 30% of the proceeds of any sale of the pubs), but no interest in the properties on which the pubs were located.
However, it does not follow that there was a variation of Mr Turner’s employment contract to include, from this point in time, a term to that effect.
In the course of being cross-examined regarding the negotiation of the pub bonus proposal, Mr Turner gave evidence that: “When a deal is agreed, we get the lawyers in. That’s how we do it.” The indication from Ms Richards that she, Ms Hooker and Ms Webb were “happy to proceed” with a proposal that Mr Turner receive 30% of the equity in the pubs (without any land) should properly be read as an indication that they were happy to take steps to formulate a binding agreement along the lines of this proposal. However, there is no evidence that there was, at this point, any negotiations between the parties’ lawyers regarding how any such agreement would be implemented. Nor was there subsequently any meeting between Mr Scott and KPMG regarding the issues which he had previously raised regarding the implementation of Mr Turner’s proposal (which remained unresolved). Nor was any draft documentation prepared to give effect to this proposal.
For those reasons, I am not satisfied that there was any “Hospitality Bonus Term”, either along the terms pleaded or otherwise.
On 6 May 2025, Ms Richards sent a letter on behalf of Heartland Motors to Mr Anthony Turner, which was headed “Termination of your employment with Heartland Motors Group (Company)”.
The Termination Letter stated that the Board had decided to terminate Mr Anthony Turner’s employment “in accordance with clause 9.2 of your employment contract dated 13 August 2020”, and that, in accordance with clause 9.4 of this contract and s 117 of the Fair Work Act 2009 (Cth), he would be “provided with payment in lieu of notice of five weeks’ pay”. That payment was subsequently deposited into Mr Anthony Turner’s bank account.
The Termination Letter stated that the Board no longer had trust and confidence in Mr Anthony Turner’s judgment or his ability to perform his role as Chief Operating Officer, in particular because of his role in purporting to remove Boyded and appoint Heartland One as Trustee of the RG Trust:
“you have purported to change the trusteeship of the trust which was controlled by the Group and is integral to the continued viability, sustainability and commercial integrity of the Group’s business, without any consultation, and which raises the risk of occasioning significant financial loss to the Group.”
By the primary claim, Heartland Motors sought a declaration that Mr Anthony Turner’s employment was terminated on 6 May 2025.
This issue no longer arises for determination in the proceeding, as Mr Anthony Turner does not contest the fact that his contract of employment was terminated. He is separately pursuing remedies under the Fair Work Act in a proceeding in the Federal Court.
By the Cross-Claim, Mr Turner and Turnercorp seek relief in respect of alleged oppression in the conduct of the affairs of the Heartland Motors Group.
In closing written submissions, the Cross-Claimants focussed their allegations of oppressive conduct on:
the appointment of Ms Hooker as a director of Heartland Group and the Operating Entities in early May 2025, which was said to be a step taken for the purpose of enabling Ms Richards and Ms Hooker to vote together to remove Mr Turner as CEO of the Heartland Motors Group and as a director of every Operating Entity within the Group; and
the removal of Mr Turner from those roles on 6 May 2025.
The Cross-Claimants submitted that this conduct was oppressive for a number of reasons, which were relied upon individually and collectively, namely:
those actions were taken in pursuit of a strategy aimed at “injuring and weakening a fellow owner and relative, for their personal gain as shareholders”, and in particular, were “aimed at persuading Turnercorp to sell its shares so as to facilitate their exit from the Group”;
the manner of Mr Turner’s termination, and the intended and actual purpose and effect of that manner of termination, were oppressive;
“aggravating all of the above matters”, Ms Richards and Ms Hooker “together sought to use the assets of the Group (including trust assets) and information about those assets, for the purposes of attempting to negotiate various deals with McCarrolls in order to raise the very funds that they thought they would need in order to achieve a purchase of Turnercorp’s shares if the above strategy worked and Kieran/Turnercorp agreed to sell”;
it was oppressive to remove Mr Turner as a director of the Operating Entities in circumstances where, in particular, he had “so much accumulated knowledge and expertise in the industry” and “his removal left the board of every operating company … in the hands of two people who had no knowledge, training, experience or skills necessary to discharge their duties and exercise their powers properly”; and
the actions caused the dealership entities to commit events of default under contracts with Manufacturers, who were “vital business partners”, and, in addition, those breaches were “deliberately caused” by Ms Richards and Ms Hooker, in circumstances where the consequences of those breaches was unknown.
I address each of these contentions below.
Two preliminary matters should be noted.
First, there was a vast range of factual issues covered in the cross-examination of Ms Richards and Mr Turner, extending over a period of more than eight years of the Group’s operations and of their dealings with each other. In considering the oppression claim, I have not attempted to address or resolve any particular factual dispute unless it is necessary (and only to the extent necessary) to resolve the particular grounds of oppression which are set out above.
The Court may make an order under section 233 if:
(a) the conduct of a company’s affairs; or
(b) an actual or proposed act or omission by or on behalf of a company; or
(c) a resolution, or a proposed resolution, of members or a class of members of a company;
is either:
(d) contrary to the interests of the members as a whole; or
(e) oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity.
For the purposes of this Part, a person to whom a share in the company has been transmitted by will or by operation of law is taken to be a member of the company.
Having regard to the width of the definition of “affairs” in s 53 of the Act, the affairs of a holding company include the affairs of each of its subsidiaries: Re Norvabron Pty Ltd (No 2) (1986) 11 ACLR 279 at 292 (Derrington J); Re Dernacourt Investments Pty Ltd (1990) 20 NSWLR 588 at 615 (Powell J).
The term “affairs” is also expressly defined as including the situation where a company acts as a trustee: see David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 108 at [97] and [106]-[112] per Leeming JA (with whom Stern JA and Griffiths AJA agreed).
Section 232 expressly contemplates that conduct may be oppressive where it affects the member in their capacity as a member or in some other capacity (for example, as a director or employee). The claims of oppression here are brought by Turnercorp as a member of BG Webb and by Mr Turner as a contingent member of that entity (pending distribution of the shares in BG Webb held by the estates of Ms Turner and Ms Webb).
The Cross-Claimants rely on each of s 232(d) and s 232(e).
As regards s 232(d), in New South Wales Rugby League Ltd v Wayde (1985) 1 NSWLR 86 at 96, the Court of Appeal (Street CJ, Kirby P, Hope JA) observed, in relation to the predecessor provision, that:
“it seems difficult to place any meaning on ‘the interests of the members as a whole’ that differs from ‘the benefit of the company as a whole’. The only legitimate interests of the members would be their interests as corporators. As corporators, considered as a whole, their legitimate interests must be circumscribed by, and found within, the constituting documents of the company.”
“Whilst it is true that the Code should be given a beneficial construction and not unduly narrowed by judicial decisions, the terms of s 320 must not lead courts into assuming the management of corporations, substituting their decisions and assessments for those of directors, who can be expected to have much greater knowledge and more time and expertise at their disposal to evaluate the best interests of the members of the corporation as a whole.”
In Australian Institute of Fitness Pty Ltd v Australian Institute of Fitness (Vic/Tas) Pty Ltd (No 3) [2015] NSWSC 1639 at [84], Sackar J observed (citing Goozee v Graphic World Group Holdings Pty Ltd [2002] NSWSC 640 at [41]-[44] per Barrett J) that:
the test whether conduct is contrary to the interests of members as a whole is objective, and is to be determined by reference to whether the conduct adheres to accepted standards of corporate behaviour or is in accordance with how reasonable directors would act in attending to the affairs of the company; and
the decision of what is contrary to the interests of the members as a whole directs attention not to the interests of the persons who are, in fact, the members for the time being, but rather to the interests of an individual hypothetical member.
As regards s 232(e), the composite expression “oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member” extends to conduct involving “commercial unfairness”, or where the conduct complained of involves a visible departure from the standards of fair dealing and a violation of the conditions of fair play, or where a decision has been made so as to impose a disadvantage, disability or burden on the plaintiff that, according to ordinary standards of reasonableness and fair dealing, is unfair: In the matter of Mobius Distilling Pty Ltd (in liq) [2025] NSWSC 539 at [172] per Black J, citing Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 at 704 (Young J) and Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459 at 472-473; [1985] HCA 68 (Brennan J).
In Morgan v 45 Flers at 704, Young J noted that whether oppression was established was to be determined by reference to the nature of the business carried on by the company and the nature of the relations between its participants and “whether objectively in the eyes of a commercial bystander, there has been unfairness, namely conduct that is so unfair that reasonable directors who consider the matter would not have thought the decision fair.”
In Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 at [176], Gummow, Hayne, Heydon and Kiefel JJ observed that it is not the case that the only conduct of a company’s affairs that is to be classified as “oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member” is conduct of the company’s affairs that is otherwise lawful. Their Honours added that it should not “be supposed that there cannot be oppression on the part of one who thinks that he or she is acting rightly” (ibid).
In [2014] FCAFC 55 at [9], the Full Court of the Federal Court (Siopis, Rares and Davies JJ) referred to this passage from in making the following observations:
“The test of unfairness requires an objective assessment of the conduct in question with regard to the particular context in which the conduct occurs. The question is whether objectively in the eyes of the commercial bystander there has been unfairness, namely conduct that is so unfair that reasonable directors who consider the matter would not have thought the conduct or decision fair. As the test is objective, whether or not the conduct is oppressive will not depend upon the motives for what was done. It is the effect of the acts that is material”.
“There will be circumstances in which the emergence of irreconcilable differences will cause the court to conclude that an understanding or expectation as to participation in management should be taken to have ceased, in a manner not entitling the person excluded from such participation to relief under the statutory provisions. That would be so where the court decides that it is the person excluded who is responsible for the breakdown in the relationship. …”
“There is no reason to doubt what has been said on many occasions, namely, that a mere 'deadlock' will not be oppression under ss 232. See, for instances in this Court, Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [2001] NSWCA 97; 37 ACSR 672 at [89] ('Irreconcilable differences may establish a basis for winding up, they do not of themselves constitute oppression or unfair prejudice'), approved in Tomanovic v Global Mortgage Equity Corporation Pty Ltd [2011] NSWCA 104 at [199], and Campbell v BackOffice Investments [2008] NSWCA 95; 66 ACSR 359 where Giles JA observed at [137] that 'a breakdown in relationship in a 50/50 entity is not the same as oppression'; see also at [442]-[444]."
Although there is no overarching “clean hands” requirement, the conduct of the member who is asserting oppression may “render the impugned conduct not unfair” or may “affect the nature of the relief”: WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd [2025] FCA 622 at [156] (Jackman J). In assessing the gravity of any allegation of oppression, it is relevant to consider the extent to which the minority shareholder has “baited” the majority shareholder to act in an oppressive manner: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1998) 28 ACSR 688 at 741; [1998] NSWSC 413 (per Young J).
The onus is on the plaintiff in an oppression suit to show that he or she has been unfairly treated in the relevant sense, as opposed to having been merely “prejudiced” or “discriminated” against. Whether conduct is fair or unfair requires weighing conflicting interests of different groups within the company; it is not assessed simply from one member’s point of view: WIJOAV at [156].
“Kieran was afforded no opportunity to deal with and respond to the so-called grounds of removal; no opportunity to continue as CEO or director under formal warning or direction; and no opportunity to take any step to attempt to protect himself, including exercising his right to approach this Court for assistance.”
I have already addressed, and rejected, the Cross-Claimants’ submission that, having regard to the manner, purpose and effect of Mr Turner’s termination, Heartland One breached its implied obligations of good faith and reasonableness in exercising its right to terminate his employment on five weeks’ notice. Those observations apply equally to the contention that the manner, purpose and effect of Mr Turner’s termination gave rise to commercial unfairness such as to amount to oppression.
The Cross-Claimants did not elaborate, in submissions, what steps Mr Turner might have taken “to attempt to protect himself” if he had been given more notice of his termination.
Insofar as it is suggested that Mr Turner could have applied to this Court for some interlocutory relief in respect of his termination, there is no articulation of what relief would have been sought or why Mr Turner would have been entitled to that relief (and, as noted above, he has abandoned any claim for specific performance of his employment contract).
Insofar as it is suggested that Mr Turner might have taken some step, as a director, CEO or shareholder, to prevent his termination, that is precisely what he had been seeking to do for a period of around three years prior to his termination. During that period, he had engaged in a series of corporate manoeuvres designed to prevent his aunts from gaining control of the Operating Entities within the Group, in particular because he was concerned that they might then take steps to remove him as CEO (see, for example, paragraphs [483], [484] and [487] above). Those actions contributed to the breakdown of trust and confidence which resulted, as at 6 May 2025, in his termination as CEO.
Further, I have determined that Heartland One was, by reason of Mr Turner’s conduct prior to 6 May 2025, entitled to summarily dismiss him (see paragraphs [508]-[513] above).
Having regard to those matters, I reject the submission that there was any commercial unfairness in the manner, purpose or effect of Mr Turner’s termination.
Finally, it is unclear whether the Cross-Claimants maintained their pleaded allegation that one purpose of the termination of Mr Turner as CEO was to deny him the benefits that he contends were to accrue from the “Hospitality Bonus Term”. The Cross-Claimants did not, in closing written or oral submissions, advance any contention to this effect. Nor was it put to Ms Richards or Ms Hooker in cross-examination that the purpose of terminating Mr Turner was to deny him the benefits which he would otherwise have received by reason of the Hospitality Bonus Term. In any case, I have determined that there was no such contractual term.
Further, in around 2023 the “pub strategy” appears to have been put on hold.
In June 2022, Boyded received DA approval for the development of a pub on the Castle Hill site, and in May 2023, it received similar approval in respect of the Chullora site. However, by this time, Mr Turner’s views on the merits of the “pub strategy” had changed. In his CEO reports for July 2023 and November 2023, Mr Turner stated that this strategy was a “silly investment, especially because we have no experience in this business”. In his CEO report for April 2024, Mr Turner made the following statement in respect of the pub strategy: “Pens are down on this matter due to the high build costs of circa $30m per pub and the ongoing scrutiny over the pokies”.
“I’m plotting to give them an easy way out by saying we want to diversify out of auto and build the 2 pubs which will cost 40m each (this is a risk they won’t want) and I will say that if we go down that path then I won’t be able to buy them out for 20-30 years so if they want to sell now is the time.”
On 18 December 2024, the solicitors for Ms Richards and Ms Hooker sent a letter to Mr Turner requesting a business plan and an analysis of the risks and opportunities presented by the pub strategy. No such document was subsequently provided by him (suggesting that no such plan had been prepared or analysis had been undertaken).
Having regard to those matters, even if I had found that the parties had agreed to the “Hospitality Bonus Term” pleaded by the Cross-Claimants, I would not have been satisfied that the purpose, or effect, of the termination of Mr Turner’s employment as CEO was to frustrate his ability to obtain a bonus pursuant to that term.
The Cross-Claimants contended that it was oppressive to remove Mr Turner as a director of the Operating Entities.
First, the Cross-Claimants submitted that no intelligible reason had been given for the decision to remove him as a director of the Operating Entities, while leaving him as a director of BG Webb, Bernley and Heartland Group. The suggestion appeared to be that the Court should reject the contention of Ms Richards and Ms Hooker that they had any genuine reason for removing him as a director of any company, as otherwise they would have removed him as a director of every company.
It does not follow, from the fact Ms Richards and Ms Hooker have not taken steps to remove Mr Turner as a director of the parent entities of the Heartland Motors Group, in circumstances where he has an interest of around 17.5% in the ultimate holding company, BG Webb (and the members of the Turner family have, between them, an interest of around 40% in BG Webb), that Ms Richards and Ms Hooker did not have any genuine reason for removing him as a director of the Operating Entities.
I have determined, when dealing with the claim for breach of Mr Turner’s employment contract, that Ms Richards and Ms Hooker took the step of terminating Mr Turner as CEO because they had lost trust and confidence in him. For similar reasons, I am satisfied that the decision to remove him as a director of the Operating Entities was due to the loss of trust and confidence in him.
Secondly, the Cross-Claimants submitted that the removal of Mr Turner as a director of the Operating Entities was “inconsistent with the legitimate expectation that Turnercorp held, being a legitimate expectation induced by the other part-owners of the business at the very time Turnercorp acquired its shares, that Kieran could participate in the management and conduct of the Group’s affairs in a substantial way”. This legitimate expectation was said to arise from an agreement between the shareholders that Mr Turner “would obtain equity [in BG Webb] on the basis that he would be able to commit and dedicate himself to the business for the long-term” (with reference being made in closing submissions to Ms Richards’ acknowledgement, in cross-examination, that it was on the basis of such a commitment by Mr Turner that she agreed to Turnercorp having a 10% interest in BG Webb).
I accept that, as at May 2009, Mr Turner was issued with equity in BG Webb on the understanding that he would make a long-term commitment to the business. However, by May 2025, Ms Richards and Ms Hooker (who between them held 60% of the Group) had lost trust and confidence in Mr Turner by reason of his conduct over a number of years, culminating in his attempt to seize control of the RG Trust, such that there had been an irretrievable breakdown in the relationship between Mr Turner and his aunts. As a result, any previous arrangement or shared understanding that Mr Turner would have an ongoing role in the management of the business had come to an end: at [90]; at [96] and [117].
The Cross-Claimants contended, by an amendment made after the Plaintiffs’ evidence had closed, that Ms Richards and Ms Hooker have sought to use assets of the Group, including trust assets and information about those assets, for the purposes of attempting to negotiate transactions with McCarrolls in order to raise the funds needed to purchase Turnercorp’s shares in the event that Mr Turner agreed to sell (see paragraph [71A] of Further Amended Cross-Claim filed on 17 September 2025).
Insofar as this is an aspect of the Cross-Claimants’ contention that Ms Richards and Ms Hooker were pursuing a strategy which involved taking steps to terminate Mr Turner as CEO for the purpose of weakening him and inducing Turnercorp to sell its shares, I have already addressed this issue at paragraphs [461]-[476] above.
Insofar as this is a complaint that Ms Richards and Ms Hooker took steps in order to be in a position to make an offer to purchase Mr Turner’s shares (with such an offer subsequently being made on 6 May 2025: see paragraph [77] above), it is difficult to see how this could amount to oppressive conduct. No such sale could occur without Mr Turner’s agreement, and Mr Turner was himself taking steps in around the same period to obtain a loan from ANZ in order to make an offer to buy his aunts’ shares (see paragraph [470] above).
Further, a timely, unconditional offer by the majority to purchase the minority’s shares at fair value, supported by an independent valuation, may negate oppression, particularly in quasi-partnership cases where there has been a breakdown in the parties’ relations: WIJOAV at [159] (Jackman J), citing O’Neill v Phillips [1999] UKHL 24; [1999] 1 WLR 1092 at 1105–1107 per Lord Hoffmann, and Tomanovic v Global Mortgage Equity Corp Pty Ltd [2011] NSWCA 104 at [235] per Campbell JA (with Macfarlan and Young JJA agreeing).
Insofar as this is a complaint about the provision of information to a third-party pursuant to a confidentiality agreement, without Mr Turner’s agreement or consent, it is apparent that Mr Turner was himself providing information about the Group’s assets to ANZ (without his aunts’ knowledge or consent) for the purposes of obtaining the finance to make an offer to buy-out his aunts’ shares. The information, which was provided to ANZ, at Mr Turner’s direction, for this purpose included:
“1 Corporate Structure including all entities and ultimate beneficiaries / shareholders.
- Latest available consolidated Audited Financial Statements (ideally June 24); incorporating all obligor entities (dealerships, trading, propcos, guarantors, holdcos etc).
- Latest available consolidated Management accounts (ideally Sep 24) including P & L, Balance Sheet, Cashflow;
- Forecast / Budget for at least FY25 and FY26 including expected capex requirements (differentiating between growth and retention/maintenance capex)
- Listing of current stock on hand & all finding arrangements with bailment financiers;
- List of available property security and estimated valuations;
- summary of all current and expected related party loans and transaction[s];
- Details of Key management including roles & responsibilities across corporate governance, finance, dealerships etc.”
Finally, there was no detailed exploration in submissions as to the nature of the information provided to McCarrolls, the extent (if any) to which such material was commercially sensitive, and whether this was such information which Ms Richards and Ms Hooker had received in their capacity as shareholders. (As noted at paragraph [468] above, the Confidentiality Agreement provided to McCarrolls expressly stated that the information being provided was information which they held in that capacity.)
Having regard to those matters, I do not accept that the dealings with McCarrolls constituted, either individually or in combination with the other matters raised by the Cross-Claimants, oppressive conduct.
The Cross-Claimants submitted that:
the removal of Mr Turner as CEO and as a director of the Operating Entities “caused the dealership entities to commit events of default under important contracts with vital business partners, namely the manufacturers”;
Ms Richards and Ms Hooker had known that the Manufacturers’ consent was required for changes to management of the dealership entities, and had deliberately caused those entities to be in breach of their agreement; and
the consequences of those breaches were unknown.
As a starting point, it is important to note that the terms of the franchise agreements varied as between Manufacturers, and only some of those agreements required the Manufacturers’ consent to some (but not all) changes to the officers of the relevant Operating Entity or its parent. In particular:
the dealership contracts with each of the following Manufacturers did not contain any terms requiring the Manufacturer’s consent to any changes to the directors of either the relevant Operating Entity or the holding company: MG; Chery Motor Australia Pty Ltd; and Suzuki Australia; and
the dealership contracts with each of the following Manufacturers contained terms requiring the Manufacturers’ consent to changes to the officers of the relevant Operating Entity, but not to changes to the directors of the holding entity: Hyundai; Kia; KGM SsangYong Australia Pty Ltd; ATECO Automotive Pty Ltd (LDV); and JAC Auto (Pickup) Pty Ltd. In addition:
(a) the contract with Mahindra Automotive Australia Pty Ltd required Mahindra’s consent to the removal of a director of the relevant Operating Entity (but not to the appointment of any additional or replacement director); and (b) the contract with Mitsubishi required Mitsubishi’s consent to any change to the directors of the relevant Operating Entity, and also to the removal (but not appointment) of any director of the holding entity.
There were also provisions in the Jeep dealership agreement requiring consent to any change to the directors of the relevant Operating Entity. However, this is of little significance, as a non-renewal notice was issued in respect of this agreement more than two years ago, and the Heartland Motors Group has, in the interim, ceased selling Jeep vehicles.
It follows that none of the franchise agreements within paragraph [622(1)] above has been breached by any changes to the directors of the relevant Operating Entity or any holding entity.
As regards the franchise agreements within paragraph [622(2)] above, any breach of those agreements occurred at the time when Mr Turner was removed, and Ms Hooker was appointed, as a director of the relevant Operating Entities (that is, in early May 2025).
Since that time, none of the Manufacturers, other than Mitsubishi, has issued a breach notice to the relevant Operating Entity.
Mr Turner actively encouraged Mitsubishi to issue this notice and to assert a breach by Heartland Motors of the relevant franchise agreement. In particular:
an internal email between Mitsubishi staff on 7 May 2025 records that Mr Turner called Mr Wood of Mitsubishi, stating that he had been removed as a director and that he and Mr Anthony Turner were no longer employees, and “requested [that Mr Woods] contact Joanne Richards by email to advise that these actions are in breach of our FA [Franchise Agreement] etc.”;
Mr Turner sent a follow-up email to Mr Wood the next day, 8 May 2025, asking: “Have you emailed Jo on this breach yet?”;
Mr Turner sent a text message to Mr Gannon of Mitsubishi on 13 May 2025 asking if “your legal team sent an email yet?”, and another on 15 May 2025 asking “did you email Joanne yet?”; and
on 15 May 2025, Mr Wood told Mr Turner that Mitsubishi intended to issue a breach notice imminently, and Mr Turner was pleased that one of the Heartland Motors Group’s important trading partners would be taking this action against the Group, responding: “And rightfully so, thank you!!”
On 20 May 2025, Mitsubishi issued a breach notice to Heartland Motors pursuant to its franchise agreement. In this notice, Mitsubishi requested, inter alia, justification for the appointment of Mr Meyer as CEO, details regarding Ms Hooker’s credentials and role as a director, and a meeting with Ms Richards, Ms Hooker and Mr Meyer before 30 May 2025.
On the same day, Mr Turner sent a text message to Mr Wood, stating that: “I hope you stay strong on this and enforce your legal rights which in turn protects me and the businesses”. He also made disparaging remarks about Ms Hooker and Mr Meyer. Mr Turner followed this with a text message to Mr Gannon on 23 May 2025, in which Mr Turner expressed the “hope” that Mitsubishi “enforce their legal rights” under the franchise agreement, and again made disparaging comments about Ms Hooker’s suitability as a director.
For the reasons given above, I have determined that the matters upon which the Cross-Claimants relied in support of their oppression claim do not establish, either separately or cumulatively, any oppressive conduct.
It follows that there is no need to address the question of relief.
As with the claim for breach of contract, the Cross-Claimants accepted that there would be no utility, in the event that the Court rejected the oppression claim, in the Court proceeding to have a separate hearing in order to determine the (hypothetical) question of what orders for relief would have been made under s 233 of the Act in the event that oppression had been established.
It is sufficient for present purposes to address, briefly, the Cross-Claimants’ contention that the appropriate relief, in the event that oppression had been established, would have been for the Court to make an order enabling Turnercorp to buy out the shares of Ms Richards and Ms Hooker.
The Cross-Claimants acknowledged that, generally, a minority shareholder who is oppressed does not obtain an order enabling them to purchase the shares of the majority shareholder(s).
The nature of the remedy chosen by the Court under s 233 will be dependent upon the conclusions drawn as to the type of oppression with which the Court is dealing, and the Court will choose the remedy which is the least intrusive: Tzavaras v Tzavaras & Sons Pty Ltd [2023] NSWCA 168 at [74(9)] (Gleeson and Adamson JJA, Griffiths AJA) quoting with approval Munsterman**n v R**ayward [2017] NSWSC 133 at [22(9)] (Stevenson J).
In Fexuto CA at [166], Spigelman CJ observed that:
“It is only a systematic course of improper conduct on the part of the majority that would justify an order that the minority acquire, by compulsion of the Court, the shares of the majority.”
“I do not accept that there is some special inhibition on the Court's power to order shareholders engaged in oppression to sell their shares because they constitute a majority. What order is practically just will depend on the particular circumstances of each case. Majorities should not be encouraged to think that oppression is unlikely to have any more adverse consequence than an obligation to purchase the oppressed minority's shares, which might well suit the majority's purpose. Further, it might not be practically just to force a minority ‘partner’ who was oppressed and unfairly prejudiced by majority ‘partners’ who breached fiduciary duties and acted against the interests of the members as a whole and who no longer want to be members of the ‘partnership’ either to sell his interest or remain in ‘partnership’ with a stranger.”
Ultimately, the “‘direction’ of any buy-out [is] to be determined by what the justice of the case requires on the basis of all the circumstances of the case”: Millsave Holdings Pty Ltd v Connective Group Pty Ltd (2023) 75 VR 239; [2023] VSCA 326 at [1025] (McLeish, Macaulay and Lyons JJA); and WIJOAV at [170] (Jackman J).
It is therefore difficult to express any view on what relief I would have ordered in the event that the oppression claim was established, since the appropriate relief would depend on some alternative combination of factual findings and there would be, given the number of issues that have been raised in this proceeding, multiple alternative combinations of such findings. Further, the factual issues which would be relevant to assessing the appropriate relief would include not only those arising on the Cross-Claim, but also those arising on the Plaintiffs’ claim (including the allegations that Mr Turner had acted for an improper purpose in taking steps to change the trustee of the RG Trust).
Given those matters, I do not consider that there is any utility in expressing any views on the relief I would have ordered if some other combination of factual findings had been made.
For the reasons given above, I have determined that:
the Plaintiffs have established their claim that Heartland One was not validly appointed as trustee of the RG Trust, and that Boyded remains the trustee of that trust, and are entitled to declaratory and injunctive relief; and
the Cross-Claimants have failed to established their claims as to breach of contract and oppression, and accordingly, the Cross-Claim should be dismissed.
It follows that the Plaintiffs/Cross-Defendants are entitled to their costs of the proceeding.
The parties should bring in short minutes of order to give effect to these reasons for judgment. Insofar as there is a dispute about the form of the orders (including the terms of any declarations or injunction, or the form of the costs order), I will give the parties an opportunity to make submissions on those matters and, unless any party requests an oral hearing, will deal with any such dispute on the papers.
Accordingly, I make the following orders.
Direct that the parties are to bring in short minutes of order by 5pm on 28 November 2025 to give effect to the reasons for judgment.
Direct that, in the event the parties are unable to agree on orders to give effect to the reasons for judgment, the parties are to exchange and provide to the Associate to Nixon J, by 5pm on 28 November 2025, the orders which each party proposes and submissions (limited to 5 pages) on those orders, indicating whether, and if so why, an oral hearing is requested to deal with the matters in dispute.
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Boyded Industries Pty Ltd & Anor
Heartland One Pty Ltd & Ors [2025] NSWSC 1344
(2014) 86 NSWLR 515
(1933) 49 CLR 66
(1938) 60 CLR 336
(2001) 69 NSWLR 558
(2009) 238 CLR 304
(2000) 201 CLR 520
(2014) 253 CLR 169
(2001) 78 SASR 489
(2021) 388 ALR 128
(2010) 242 CLR 254
(2001) 188 ALR 566
(2003) 214 CLR 118
(2016) 50 WAR 495
(2023) 75 VR 239
(2012) 246 CLR 325
(2019) 100 NSWLR 218
(1992) 110 ALR 449
(1992) 28 NSWLR 68
(1985) 1 NSWLR 86
(1990) 20 NSWLR 588
(1992) 26 NSWLR 234
(1931) 45 CLR 359
(2014) 120 SASR 575
(1975) 134 CLR 640
(1988) 166 CLR 245
(1957) 98 CLR 93
(2012) 83 NSWLR 757
(1995) 49 NSWLR 315
(1985) 180 CLR 459
(2016) 242 FCR 505
(1984) 5 FCR 447
(1988) 14 NSWLR 438
(1998) 44 NSWLR 349
HMG Parts Pty Ltd;
Boyded;
Heartland Motors Pty Ltd;
Heartland Blacktown Pty Ltd; and
Heartland Penrith Pty Ltd.
On 28 June 2022, Hammerschlag CJ in Eq refused the application for interlocutory relief in the 2022 Oppression Proceeding.
On 29 June 2022, the Extraordinary General Meeting was held, and Ms Hooker was appointed as a director of BG Webb.
Mr Turner commenced a further proceeding against Ms Richards and Ms Hooker in this Court on 5 July 2022, in relation to Ms Dulcie Webb’s estate (the 2022 Estate Proceeding), seeking, inter alia, an order that the grant of probate be revoked and that he be appointed as administrator of Ms Webb’s estate. The 2022 Estate Proceeding was subsequently settled.
On 26 August 2022, Mr Turner and Turnercorp discontinued the 2022 Oppression Proceeding.
On 26 September 2022, Ms Hooker was appointed as a director of Bernley by a resolution of the board of BG Webb.
On 29 April 2025, the parties were informed that judgment in the 2025 Directors Appeal would be delivered on 1 May 2025.
On 30 April 2025, a deed was executed by Mr Turner, on behalf of Heartland One, and by Mr Anthony Turner, whereby Mr Anthony Turner purported, as Supervisor of the RG Trust, to remove Boyded as trustee of the RG Trust and to appoint Heartland One in its place. The Plaintiffs contend that the purported exercise of this power by Mr Anthony Turner was invalid and of no effect.
On 1 May 2025, Mr Anthony Turner sent an email to Ms Richards attaching this deed, and a document headed “Notice of Removal and Appointment of Trustee” which was addressed to Boyded and which required Boyded to transfer legal title to all property of the RG Trust to Heartland One.
I have not, however, made a global assessment of Mr Turner’s credibility, or made any findings on the basis of any such global assessment. As Basten JA observed in Sangha v Baxter [2009] NSWCA 78 at [155]-[156] (Handley AJA agreeing), there “are risks in making global findings about credibility of any particular witness”:
These messages were deleted by Mr Turner before he produced his mobile phone for inspection. When asked about the deletion of these messages, Mr Turner responded “I don’t recall”, despite the messages having been sent only shortly before Mr Turner was cross-examined. Mr Turner sought to explain this lack of recollection by stating that “it’s been a bit of a whirlwind”.
These messages give rise to a concern about the reliability of Ms Bargwanna’s evidence, particularly where there is evidence that Mr Turner has, in the past, communicated with Mr Anthony Turner regarding the content of his evidence and has proposed changes to that evidence, which were subsequently included in Mr Anthony Turner’s affidavit. In particular:
On 23 June 2022, Mr Turner asked his brother to send him his “memory” of two conversations with Ms Hooker in 2009 and 2012;
On the same day, Mr Anthony Turner responded, setting out his recollection of those conversations, which included the following statement attributed to Ms Hooker on Christmas Day, 2009:
Thirdly, Mr Turner claimed, in his affidavit, that after completing the “1 May 2017” Minutes immediately after the meeting, he put them in a manila folder at the Blacktown Office. However, there was unchallenged evidence from Mr Duggin that the file name of the scanned document, which was sent by Mr Turner to Mr Clarke on 21 July 2017, indicated that this document was scanned at the Group’s office at King Street Wharf. There was no explanation given by Mr Turner in his affidavit evidence as to how it came to be that the minutes which, according to his version of events, were signed on 1 May 2017 and thereafter kept in a hard copy file at the Blacktown Office came to be in the King Street Wharf office on 21 July 2017. When this matter was raised with Mr Turner in cross-examination, he stated that he was carrying the “1 May 2017” Minutes with him from office to office during 2017, while HWLE’s audit was ongoing and in case the documents needed to be “registered”. For example, he gave the following evidence:
The Plaintiffs submitted that Mr Turner’s conduct in fabricating the “1 May 2017” Minutes not only undermined his credit, but provided a basis for concluding that he was aware that no such meeting in fact occurred. In this regard, the Plaintiffs relied on Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [60] per Meagher JA (Basten and Campbell JJA agreeing). In that passage, his Honour referred, among other authorities, to the observations made by Gibbs J in Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 694; [1975] HCA 63 (citations omitted), namely, that:
In light of the matters set out above, I am not satisfied that it would be just and equitable, in the circumstances of this case, for an order now to be made validating any resolution which Mr Turner purported to unilaterally pass, approving the execution of the Appointor Deed and the appointment of himself as Appointor. Further, I consider that, assuming Mr Turner had purported to unilaterally pass such a resolution, substantial injustice would have been caused by the failure to seek Ms Richards’ agreement to the resolution, in particular because she would likely not have supported the resolution, and Mr Turner has subsequently purported to use his powers as Appointor to appoint Mr Anthony Turner as Supervisor, who in turn has purported to remove Boyded and appoint Heartland One as trustee of the RG Trust, thereby moving the valuable assets of the RG Trust outside the control of the Heartland Motors Group.
It follows that I reject the Defendants’ s 1322 application.
Having regard to those matters, I do not consider that there was any rational basis for Mr Turner to hold the view, based on the recorded conversation between Ms Richards and her lawyers, that if Ms Richards and Ms Hooker obtained control of Boyded, the trust would be administered, or distributions would be made, in a manner that was “fraudulent”, or that there was a need to “protect” the trust assets from any such “fraudulent plot”. The lack of any rational basis for such a concern makes it unlikely that any such concern was genuinely held by Mr Turner.
I accept that, on a number of occasions prior to the commencement of this proceeding, Mr Turner made statements to the effect that the recording of Ms Richards’ conversation with her lawyers indicated that she intended to engage in “fraud”. For example:
on 14 May 2024, Mr Turner sent an email to Ms Richards, in which he referred to “your overarching fraudulent scheme, which is clearly evident in our Board Meeting recording”, and stated that: “if you don’t remember the level of fraud, you and your legal team are embroiled in then I suggest you listen clearly, it’s absolutely shocking and simply unacceptable”;
on 19 November 2024, Mr Turner sent an email to Ms Richards in which he referred to her recorded conversation with Mr Scott, stating as follows:
in June 2022, Ms Richards and Ms Hooker had sought to have Ms Hooker appointed as a director of BG Webb and Mr Turner had brought the 2022 Oppression Proceeding in an (unsuccessful) attempt to prevent this from occurring;
in December 2022, Mr Turner had purported, over Ms Richards’ opposition, to appoint his brother, Mr Anthony Turner, as a director of various Operating Entities including Boyded (in circumstances where he had, in fact, no power unilaterally to do so);
in May 2024, Mr Turner and his brother purported to pass resolutions removing Ms Richards as a director of various Operating Entities, including Boyded;
in June 2024, Ms Richards and Ms Hooker brought the 2024 Directors Proceeding challenging those actions, which led to the Court finding that Mr Anthony Turner was not, and Ms Richards was, a director of various Operating Entities, including Boyded;
in the midst of the events set out in paragraphs (3) and (4) above, Mr Turner fabricated the two versions of the “1 May 2017” Minutes which purported to record Ms Richards as having approved his appointment as Appointor, and incorporated Heartland One for the purpose of removing Boyded as trustee;
shortly after the 2024 Directors Proceeding was determined adversely to him, and a few days after filing a notice of intention to appeal that decision, Mr Turner purported to exercise his powers as Appointor to appoint his brother as Supervisor of the RG Trust and caused a letter to be sent to the OSR stating that the Supervisor intended to replace Boyded with Heartland One as Trustee of the RG Trust; and
subsequently, in April 2025, Mr Anthony Turner purported, as Supervisor, to remove and replace Boyded as Trustee of the RG Trust on the day before the decision in the 2025 Directors Appeal was delivered, and two days before the May 2025 EGM was to be held to consider resolutions to appoint Ms Hooker as a director of Heartland Group.
Having regard to those matters, I find that Mr Turner’s purpose in appointing his brother as Supervisor was so that he could, in the event that his aunts gained control of the Operating Entities in the Heartland Motors Group (and, in particular, Boyded), take away control of the RG Trust from the Group and to place such control exclusively in his own hands. It was a move that was, like the others which he had taken, designed to frustrate his aunts’ attempts to gain control of the Heartland Motors Group, including Boyded.
Mr Turner gave the following evidence when asked, in cross-examination, why he had decided that he, rather than any corporate entity of the Heartland Motors Group, should be appointed as Appointor of the RG Trust:
One oddity of the present case is that the Executive Employment Agreement was executed by Mr Turner not only in his own right, but also as “Chairman of Directors” of Heartland Motors.
It was plainly contemplated by both parties, at the time of entry into this agreement in March 2009, that Mr Turner would become the CEO of Heartland Motors upon the retirement of Mr Ware (which occurred shortly afterwards). Mr Turner deposed that his grandfather, Mr Webb, had stated that it was his dying wish that Mr Turner “become CEO of the Group when [he] was ready to take on the role”, and that Mr Ware had, in the period between 2005 and 2009, “trained [Mr Turner] to take over as CEO”. Further, the plan to instal Mr Turner as CEO had led to a dispute, in 2008, between the Webb family and the Auswild family, which appears to have precipitated the latter’s departure from the business.
Having regard to those matters, it is likely that the parties, in framing the agreement as an Executive Employment Agreement which would apply to the position of Deputy CEO “or such other position … as determined by” Heartland Motors intended that the agreement would apply to Mr Turner’s prospective employment as CEO.
The terms of the Executive Employment Agreement regarding the Executive’s duties and responsibilities were sufficiently broad to address the contemplated promotion of Mr Turner to this role. Clause 5.1 required the Executive to perform “such duties and responsibilities as the Employer may reasonably require from time to time”, and clause 5.3 provided as follows:
There would be no reason to think that such important provisions would cease to apply by reason of Mr Turner’s promotion from Deputy CEO to CEO (particularly where that promotion was contemplated by both parties at the time of entry into the agreement). Having regard to those matters, any change in Mr Turner’s responsibilities would, at its highest, give rise to a question as to whether the terms of the contract had been varied, rather than abandoned (see Wittenberg at [282]).
In that regard, Mr Turner contended that the Court should find that it was a term of his contract of employment that termination could only occur on reasonable notice and that, having regard to matters such as the length of his employment, the seniority of his position, the size of the business, the amount of his salary, his qualifications and experience, and the difficulty of finding new employment of a similar nature, a reasonable notice period was two years.
Any variation (like any notion of replacement or novation) would depend upon an intention imputed to the parties: Wittenberg at [283].
Even if I had determined that Mr Turner’s responsibilities as CEO fell outside the scope of the Executive Employment Agreement, I would have found that Mr Turner had consented to the expansion of his responsibilities and had, in return, been rewarded by the receipt of a substantial salary and other inducements. There would be no reason to impute to the parties, from such circumstances, a mutual desire to abandon the provisions of clause 9.2 – which provided that either party may terminate the Executive Employment Agreement by giving to the other party “not less than one month’s notice in writing” – in favour of some unspecified limitation, which may well have fettered Mr Turner’s own discretion (see Wittenberg at [284]-[285]).
For those reasons, I find that the terms of the Executive Employment Agreement, including clause 9.2, continued to apply to the employment relationship between Heartland Motors and Mr Turner as at 6 May 2025.
On 23 December 2024, Dr Rumble sent a slide pack to McCarrolls that was headed “Heartland Group – Financial Information provided to McCarrolls Automotive Group”. The “Background” section stated that Ms Richards and Ms Hooker owned 60% of the Heartland Motors Group and were in a dispute with Mr Turner, who was CEO and owned 17%. It continued:
Secondly, as I have explained above, the Cross-Claimants did not, prior to the hearing, complete their expert evidence on relief (and, in particular, on the valuation of shares in BG Webb). Neither party sought an adjournment of the hearing in those circumstances. Instead, it was common ground that the Court had power to, and should, determine whether the oppression claim was established in advance of determining what (if any) relief should be ordered.
On 19 August 2024, Mr Turner stated, at a meeting of Heartland Group, that “we now need to progress the pubs, because the car dealerships are struggling” and that it would “cost circa $40m each pub” to “get 2 DA approved pubs going at out Castle Hill and Chullora sites” (that is, “total $80m” of expenditure), with “the payback period” being “20-30 years”. However, I am not satisfied that Mr Turner made those comments out of any genuine desire to pursue the pub strategy. Shortly after this meeting, on 5 September 2024, Mr Turner sent an email to his father-in-law indicating that he was “plotting” to use the revival of the pub strategy as a means of persuading Mr Richards and Ms Hooker to sell their shares:
Thirdly, the Cross-Claimants submitted that, as a result of Mr Turner’s removal as a director of the Operating Entities, those entities had lost his “accumulated knowledge and expertise in the industry and with these businesses”, and control of those entities was left “in the hands of two people [Ms Richards and Ms Hooker] who had no knowledge, training, experience or skills necessary to discharge their duties and exercise their powers properly”.
Each of Ms Richards and Ms Hooker acts as a non-executive director in circumstances where each is a substantial shareholder of the ultimate holding entity. The only qualifications for a person to be appointed as a company director are that he or she be over 18 years of age and not be the subject of a disqualification order: s 201B of the Act.
Ms Richards and Ms Hooker have appointed Mr Meyer as CEO. Mr Meyer has more than twenty years’ experience in the automotive industry. In addition, Ms Richards and Ms Hooker have sought advice from MinterEllison as to legal issues and from Dr Rumble as to financial matters. There is no evidence that the performance of the business has, to date, been adversely affected by the departure of Mr Turner and his brother.
Where a person in a senior executive position, who has extensive experience in and knowledge of the company’s business, acts in such a way as to undermine the trust and confidence necessary for him or her to continue in that role, it does not follow, from the fact that termination will lead to the loss of such knowledge and experience, that such a step is contrary to the interests of members as a whole or commercially unfair. For example, while it is the case that Mr Turner has long-established relationships with Manufacturers, the evidence establishes that he has sought to use those relationships to undermine the attempts of the majority shareholders (his aunts) to change the composition of the boards of the Operating Entities. It is difficult to see why, in those circumstances, it is commercially unfair for his aunts to remove him from his role as an officer of the Operating Entities, even if it means that those relationships do not continue (particularly where another person has been appointed who has experience in the industry).
Finally, the Cross-Claimants contended that, while Mr Turner has been left as a director of the parent entities, he has not been informed or consulted about significant matters, such as the development of a “2025 Operating Strategy” relating to Manufacturers which is dated July 2025. However, there are no pleaded issues that, since his removal as a director of the Operating Entities, Mr Turner has, as a director of the parent entities, been excluded from decision-making by those entities. Such matters can therefore be put to one side.
On 28 May 2025, a meeting took place between Mitsubishi, Mr Meyer, Ms Richards and Ms Hooker. Mr Meyer subsequently sent an email to Mitsubishi thanking them for “the ability to explain the situation … and the reasons behind actions that were taken”, and confirming the matters discussed at this meeting, which included that:
Mitsubishi expressed concern that its requirement for a new showroom “has not progressed sufficiently speedily under the ex-management team” (namely, Mr Turner and Mr Anthony Turner);
Mitsubishi was concerned about the approval of a development application for a pub on the site of the dealership, which had been organised by Mr Turner;
Mitsubishi wanted to see the dealership “deliver a consistent performance, as against the inconsistent results that have been achieved over the past five years”; and
the breach notice would remain in place until the decision of the Mitsubishi Executive Meeting.
On 31 July 2025, Mitsubishi confirmed that it agreed to the appointment of Ms Hooker and the removal of Mr Turner as directors of the relevant Operating Entity; that it approved the appointment of Mr Meyer as Dealer Principal; and that Ms Hooker and Ms Richards would be regarded as “Control Persons” under the franchise agreement from that point in time. Mitsubishi has now entered into a new franchise agreement which runs until 30 November 2026, with a further expiry date of 30 November 2030 that is conditional on certain performance criteria.
Further, it is notable that breach notices have not been issued by any other Manufacturer, despite Mr Turner taking steps to inform those Manufacturers of the changes to the directors of the relevant Operating Entities and urging the Manufacturers to assert their rights under their respective franchise agreements (contrary to the interests of the Heartland Motors Group). The following communications are by way of example only.
On 13 May 2025, Mr Turner sent a series of text messages to Mr Geoff Golden of Hyundai, asking “has your legal team sent an email yet?”, and urging that such a letter “Needs to be sent before 9am tomorrow when in court” and “Today preferable though”.
On 15 May 2025, Mr Turner sent a message to a Kia representative, asking “did you email Joanne re her breaches?”
On 23 May 2025, Mr Turner sent text messages to a Mahindra representative, in which he stated that he hoped that Mahindra had “engaged legal advice”, referred to “breaches and misconduct”, and urged the Mahindra representative to “enforce the rights of your company and Heartland”.
On 23 May 2025, Mr Turner sent a text message to representatives of each of Hyundai, LDV, Mahindra, SsangYong, Chery and JAC, stating that he had commenced proceedings in the Federal Court “seeking to expedite my reinstatement as CEO and Director” and to “remove Joanne and Bernice as Directors”, and urging the Manufacturers to “enforce their legal rights in accordance with their respective [franchise agreements]”.
Mr Meyer gave evidence regarding his conversations with representatives of the Manufacturers since his appointment as CEO of the Heartland Motors Group. In particular, he gave evidence that a number of the Manufacturers have stated that they accept, or have no issue with, the changes to management of the Operating Entities. The statements in Mr Meyer’s affidavit that were attributed to third parties were limited to evidence of the statements made, rather than the truth of those statements.
On the evidence before the Court, there is no basis to conclude that the removal of Mr Turner as CEO and as director of the Operating Entities, or the appointment of Ms Hooker as a director of those entities, has had or will have any material impact on the Group’s arrangements with Manufacturers or on its business more generally. For example, on 18 July 2025, Suzuki sent an email to Mr Meyer congratulating him on his appointment as CEO of the Heartland Motors Group, and acknowledging that Mr Meyer’s “industry experience and the strength of your operational team certainly bring a strong foundation for the Group’s revitalisation”. Suzuki subsequently sent a draft deed of variation to Mr Meyer, updating the authorised signatory from Mr Turner to Ms Hooker, and updating the management structure to remove Mr Turner and Mr Anthony Turner.
In any case, if there were any adverse impact on the Group’s business (for example, if one or more Manufacturers were to terminate the applicable franchise agreement, despite not having notified any breach to date), it would not follow that Ms Richards and Ms Hooker had engaged in oppressive conduct by terminating Mr Turner’s employment as CEO and removing him as a director of the Operating Entities without first obtaining the prior consent of the Manufacturers. It was open to a reasonable director in the position of Ms Richards and Ms Hooker to make the commercial judgment that any risk to the business from having moved swiftly to terminate Mr Turner’s employment without first obtaining the Manufacturers’ consent was outweighed by the risk to the business in permitting Mr Turner to remain as CEO and as a director of the Operating Entities, particularly having regard to his attempt to remove from the Group’s control the valuable real estate assets of the RG Trust that were integral to the operation of the Group’s car dealership business.
For those reasons, I reject the Cross-Claimants submission that Ms Richards and Ms Hooker engaged in oppressive conduct by taking steps to remove Mr Turner from his roles as CEO and as a director of the Operating Entities without first obtaining the consent of the Manufacturers.