C & C Fisher Pty Ltd v Livadaras

C & C Fisher Pty Ltd v Livadaras - [2010] FCA 11 - FCA 2010 case summary — Zoe

[11]

8 The expression "its associates" is defined in Part 1.2, Div 2 of the Act. In particular, s 15 provides that it includes a person with whom another person is acting in concert. The expression "acting in concert" has been held to mean an understanding between the parties as to a common purpose or object, which understanding should be consensual and there should be some adoption of it. However, it is not essential that the parties are committed to it, or bound to support it. The understanding can be informal, as well as unenforceable, and the parties may be free to withdraw from it, or act inconsistently with it, notwithstanding their adoption of it. And, the understanding may be proved by inference from the circumstances surrounding the impugned transaction and from what the parties have done, as well as by direct evidence: see Bank of Western Australia Ltd v Ocean Trawlers Pty Ltd (1995) 16 ACSR 501 at 524 to 525 per Owen J. 9 Finally, it is necessary to consider the words "interest in the resolution … other than as a member". In City Pacific Limited v Bacon (No 2) [2009] FCA 772, Dowsett J observed (at [28]) that s 253E of the Act "seems to assume that a responsible entity of a listed scheme will have an interest in both its removal and its replacement". In Southern Wine, Steytler P (with whom McLure and Pullin JJA agreed) reviewed the legislative history and context of s 253E and observed it "… was designed to ensure that the responsible entity, in voting on a resolution, would not put its own interest, arising independently of its membership of the scheme, ahead of that of other members, to their potential detriment": at [21]. 10 From these authorities, it appears to be relatively clear that a responsible entity's desire to remain in that position is the type of interest to which the conflict of interest proscription in s 253E is directed. It would follow, in my view, that if a member of a scheme reaches an understanding with the responsible entity of that scheme to assist that responsible entity to pursue its interest in remaining as responsible entity for the scheme, that member must necessarily have an interest other than as a member in any resolution which seeks to remove the responsible entity from that position. On the other hand, if, as the Court ultimately concluded in Southern Wine (see at [24]), the responsible entity and the member are genuinely acting in the pursuit of their own self-interest to, for example, maximise the return they receive from their interests in the scheme, that would not be an interest of the kind that s 253E proscribes. The determination of the precise nature of the relevant interest, in all the circumstances, is a question of fact.

[12]

THE ISSUES THAT ARISE 11 From this outline of the legislative setting, it might be thought that the critical question in this case is whether C & C Fisher and Australian Olives were acting in concert and, therefore, were associates within the terms of s 253E of the Act. However, as was explained by Greenwood J in Livadaras, the true questions in this case revolve around whether Mr Livadaras acted in bad faith, or made an error of law, in reaching the conclusion that he did about those issues and making the ruling at the 12 December meeting: see Livadaras at [70]. 12 Indeed, in Livadaras, notwithstanding that his Honour concluded on all the evidence and submissions before him, after a trial of that issue, that Australian Olives and Tyrone O'Grady Pty Ltd (the equivalent party to C & C Fisher in this matter) were not acting in concert, and therefore were not associates (see Livadaras at [59]), he still proceeded to dismiss Australian Olives' application because he concluded it had failed to establish that Mr Livadaras' conclusion to the contrary was affected by bad faith, or involved an error of law: see Livadaras at [109] and [114]. 13 It follows from this that the question whether, based on the evidence and submissions before me, I consider C & C Fisher is an associate of Australian Olives, is a question which is irrelevant to the true questions in dispute in this case. Instead, the true questions in dispute between the parties in this case are whether, based on the facts known, or reasonably available, to Mr Livadaras at the time of the 12 December meeting, his conclusions and ruling were made in good faith and according to law. 14 Having reached this conclusion, I consider I must dismiss C & C Fisher's application for the first declaration that: C & C Fisher is not an associate of Australian Olives. I do so because I consider a declaration to that effect is not reasonably likely to resolve the true questions in dispute between the parties, or have any relevant bearing upon them: see Lewis v Green [1905] 2 Ch 340 at 344, Smart v Allen (1970) 91 WN(NSW) 241 at 246 to 249 and P Young, Declaratory Orders (2nd ed, 1984), pp 60 to 61. 15 However, I consider the second declaration sought by C & C Fisher does, in broad terms, raise the true issues in dispute between the parties. As noted above, they are whether Mr Livadaras' conclusion and ruling that C & C Fisher was not entitled to cast the 70 votes at the 12 December meeting was either: · made in bad faith; or · made in good faith, but involving an error of law. 16 As to the second of these issues, C & C Fisher and Australian Olives have submitted that it involves a consideration of the reasonableness of Mr Livadaras' ruling. I will consider whether that is so later in these Reasons.

[17]

Extraordinary Resolution 2 - Appointment of New Responsible Entity That Huntley Management Limited ACN 089 240 513 be appointed as the new responsible entity of the Project. 24 Not surprisingly, there was some history to this notice of meeting. It had its genesis in a letter Mr Jeff Elson, a member of the Scheme, sent to all of the other members in late June 2008, seeking their support to call a meeting of the members of the Scheme to consider a resolution to remove Australian Olives as the responsible entity for the Scheme and replace it with Huntley Management. In his letter, Mr Elson complained that the investors in the Scheme had only received around $1,000 per grove against a projected income of around $6,500 per grove. At the same time, he pointed out that Australian Olives had returned a net profit of $2,536,455 in the year ended 30 June 2007 and, in addition, its associated companies had received $1,859,947 for water charges and other substantial amounts for management fees. He also pointed out that Huntley Management had taken over Projects 5 and 6 and discovered that around 35 per cent of the olive trees in Project 5, and around 63 per cent of those in Project 6, were dead or non-commercial trees. 25 On 3 July 2008, Australian Olives sent a letter in response, signed by Mr Blake Ammit. In that letter, Mr Ammit set out, what he considered to be, the relevant background to the matter. Among other things, he alleged that a company called Stantins Accounting and Financial Planning Group ("Stantins") had sold the majority of the grove interests in Projects 5 and 6 to their client base and, according to Mr Ammit, had played a role which had been "detrimental to the efficient running of the AOL projects". Mr Ammit alleged that Stantins had their own reasons for wanting to change the responsible entity for the Scheme. He concluded his letter by asking members to disregard the letter from Mr Elson. 26 At this juncture, it is relevant to mention that Mr Livadaras was, and is, a principal of Stantins and he is employed in that firm as a Certified Practising Accountant. 27 Under s 252B(1)(a) of the Act, the responsible entity of a scheme must call a meeting of the scheme's members to consider and vote on a proposed extraordinary resolution, if members with at least 5 per cent of the votes that may be cast on that resolution, make a request for such a meeting. By early August 2008, Mr Elson had obviously been able to meet this prerequisite because the notice of meeting referred to above had attached to it a list of members of the Scheme that were said, in total, to represent approximately 32 per cent of the votes that may be cast at a meeting of the members of the Scheme.

[18]

Ruling made and extraordinary resolutions passed at 12 December meeting 28 Mr Fisher attended the meeting on 29 August 2008. After a lengthy discussion that meeting was adjourned to 28 November 2008 so that both Australian Olives and Huntley Management could provide further information to the members as to their proposals for the future conduct of the Scheme. Then, on 28 November 2008, the meeting was further adjourned for two weeks to 12 December 2008. Mr Fisher was unable to attend the adjourned meeting held on 28 November 2008, or the further adjourned meeting held on 12 December 2008. Accordingly, he appointed Australian Olives as a proxy to attend on behalf of C & C Fisher. Mr Beddoe and Mr Shaw, the solicitor for Australian Olives, attended the 12 December meeting on behalf of Australian Olives. 29 The meeting of 12 December was recorded and a transcript of that recording was in evidence before me. That transcript records that, at the beginning of the meeting, Mr Livadaras nominated himself for election as Chairman of the meeting and he was elected unopposed. The transcript also records that Mr Livadaras adjourned the meeting for a short period just before he made his ruling, to obtain advice from Ms Dahnia Mithiran of Piper Alderman, solicitors, who he had arranged to be present to advise him. 30 By the time of the meeting of 12 December, Australian Olives had already been removed as the responsible entity for Australian Olives Projects numbered 1, 2, 4, 5 and 6. Some of these removals were challenged in Court, including the proceedings before Greenwood J in relation to Project 4, ie, Livadaras. Greenwood J delivered his decision in Livadaras on 15 September 2008. I mention these matters because by the time of the 12 December meeting, all of those closely involved were obviously well aware of the decision in Livadaras insofar as it set out the principles in relation to Mr Livadaras' role as Chairman of such a meeting. So much is clear from the transcript of the 12 December meeting because the Livadaras decision is mentioned frequently by various of those present. 31 According to the transcript of the 12 December meeting, Mr Livadaras began by stating that the purpose of the meeting was to consider two extraordinary resolutions. He then asked a number of questions of Mr Beddoe and Mr Shaw about who was financial and eligible to vote at the meeting and what the total number of eligible votes was. In response to the latter question, he was told 780. Mr Livadaras then raised the issue of the transfer of the 70 groves from Australian Olives to C & C Fisher on 20 August 2008. He asked whether that had been done pursuant to a transfer deed. Mr Beddoe told him that it had been and that the transfer deed had been stamped by the Queensland State Revenue Office. Thereafter, the following exchange occurred between Mr Livadaras and Mr Beddoe, or, on some points, Mr Shaw, about what payments C & C Fisher had made for the transfer (the irrelevant parts have been excluded):

[86]

Consideration of C & C Fisher's allegations of bad faith 46 It is appropriate to begin my consideration of C & C Fisher's allegations of bad faith by noting that Mr Livadaras' role as Chairman of the 12 December meeting relevantly included a requirement for him to hear the contentions of fact going to the questions he had to decide and to decide those issues impartially taking into account those facts and any facts known to him at the time: see McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 ("McLean Bros") at 860 per Barton J and Livadaras at [68]. 47 The requirement of impartiality obviously dictates an absence of bias or prejudgment. Some of C & C Fisher's allegations against Mr Livadaras are to the effect he was biased, or more specifically, he had prejudged the issues he had to determine at the meeting: see [43.2], [43.3] and [43.5] above. To establish these allegations of bias, or prejudgment, against Mr Livadaras, C & C Fisher will need to show that Mr Livadaras had, and maintained, a closed mind on the question of the validity of the C & C Fisher votes, or that he was unable or unwilling to decide that question impartially: see Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 555 per Burchett J and Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424 ("Gamaethige") at 442 to 443 per Stone J (with whom Hill J agreed). 48 It will not be sufficient for C & C Fisher to show that Mr Livadaras held views about the desirability of removing Australian Olives as the responsible entity for the Scheme: see Vakauta v Kelly (1989) 167 CLR 568 at 576 per Dawson J and Gamaethige at 443 per Stone J. This point is important because, on the evidence before me, I find that Mr Livadaras probably did hold the view that it was in the best interests of the members of the Scheme that Australian Olives be removed as the responsible entity for the Scheme. However, I consider that C & C Fisher must go much further than this and show, for example, that Mr Livadaras was not willing to receive relevant information about the validity of the C & C Fisher votes, or was not willing to listen to arguments on that question, or demonstrated by his conduct that he was not open to be persuaded to a contrary view. 49 Turning then to C & C Fisher's specific allegations of bad faith, I consider there is a short answer to the first allegation (in [43.1] above) that Mr Livadaras failed to disclose the legal advice he received at the 12 December meeting. That is: that there is no evidence that anyone at the 12 December meeting asked Mr Livadaras to disclose that legal advice. Since it was not the sort of information that a chairperson of a meeting would ordinarily volunteer to disclose, I do not consider that Mr Livadaras can be criticised for failing to disclose it, if he was not asked to. It follows that I do not see how its non-disclosure can possibly support a conclusion of bad faith on Mr Livadaras' part. 50 I also do not consider the allegations (in [43.2] above): that Mr Livadaras seemed fixated on the C & C Fisher votes; that he was determined to conclude that they were invalid; and that he kept changing his line of attack, support a conclusion that Mr Livadaras acted in bad faith. As Chairman of the meeting Mr Livadaras had to determine whether or not C & C Fisher was entitled to cast its 70 votes. This was, without doubt, the most controversial issue to be determined at the meeting. It is, therefore, not surprising that Mr Livadaras was focused on, or even fixated by, this issue. Provided that his fixation, or determination, does not support a conclusion he was biased, or had prejudged this issue (as to which see [51] to [55] below), I do not consider these allegations support a conclusion of bad faith on Mr Livadaras' part. 51 As to allegations (in [43.2], [43.3] and [43.5] above) to the effect that Mr Livadaras was biased, or that he prejudged the issues he had to determine at the 12 December meeting, first, it is to be noted that C & C Fisher have not expressly identified what "ulterior motive" Mr Livadaras had in wishing to have Australian Olives removed as the responsible entity for the Scheme. As I have already noted above (see at [44]), C & C Fisher have not alleged that Mr Livadaras was pursuing some direct or indirect financial motive. Further, I do not consider the view he held that it was in the best interests of the members of the Scheme that Australian Olives be removed as the responsible entity for the Scheme constitutes an ulterior motive, in any relevant sense. 52 More importantly, I do not consider that a fair reading of the transcript of the 12 December meeting shows that Mr Livadaras demonstrated bias, or prejudgment, in the discharge of his role as Chairman of that meeting. Among other things, that transcript shows that Mr Livadaras sought further information from Mr Beddoe and Mr Shaw about the payments C & C Fisher made for the 70 groves and what adjustments, if any, had been made between C & C Fisher and Australian Olives for the pre-paid management fees: see above at [31]. It also shows that Mr Livadaras expressed concerns about the vagueness of the information that was provided to him in response and offered an opportunity for it to be clarified: see above at [33] and [35]. Mr Shaw's ultimate response to that opportunity was to claim those concerns were not relevant: see above at [35]. It is also apparent from the transcript that Mr Livadaras stated his tentative views about the nature of the relationship between C & C Fisher and Australian Olives and that he listened to the arguments put by Mr Shaw and others in response before he made his ruling: see above at [34] to [38]. By way of contrast, there is no evidence in the transcript that Mr Livadaras was not willing to receive relevant information about the validity of the C & C Fisher votes, or was not willing to listen to arguments on that question, or was not open to be persuaded to a contrary view. I therefore consider the transcript shows Mr Livadaras diligently and impartially discharged his role as the Chairman of the meeting. It is worth interpolating that in many respects Mr Livadaras was discharging a role that is not too dissimilar to the inquisitorial role of the Refugee Review Tribunal, the diligent discharge of which the High Court has cautioned should not be too readily taken as evidence of apprehended bias: see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [30]. 53 As to the specific allegation (in [43.7] above) that Mr Livadaras would not accept the statements made to him by Mr Beddoe and Mr Shaw about the payment of the management fees, I do not consider Mr Livadaras was under any obligation to accept those statements at face value. Mr Livadaras made it quite clear at the meeting that he was particularly interested in the precise nature of the arrangements made between Australian Olives and C & C Fisher about the payment of, or adjustment for, the management fees for the 70 groves purchased by C & C Fisher: see above at [31], [33] and [35]. It is quite understandable that he was interested in those matters because the evidence before me (matters which must have been well known to all those at the meeting) shows that the annual management fee payable for a grove was between $1,800 and $2,000. This means that the total annual management fees that were paid or payable for the 70 C & C Fisher groves, were between $126,000 and $140,000. Given that C & C Fisher purchased the 70 groves in August 2008 for $1,400 (mistakenly reduced to $140) and the management fees were paid by Australian Olives in the previous March and May, commercial reality would suggest an adjustment of at least $70,000, and as much as $100,000 (depending on whether it is calculated from March or May and at the lower or higher rate) may have been in order. 54 Mr Shaw told Mr Livadaras that no deal had been done about the management fees and that no payment had been made by way of adjustment for those fees: see above at [32] to [35]. When clarification was sought on these issues, Mr Shaw ultimately chose to question the relevance of Mr Livadaras' concerns, rather than attempt to provide clarification: see above at [35]. Faced with the contradiction in, and vagueness of, these statements and the reluctance to provide the clarification sought, I consider Mr Livadaras was quite entitled not to accept what the Australian Olives representatives told him at the 12 December meeting and instead to conclude that he was not satisfied that C & C Fisher had paid the management fees in question, whether directly, or by way of adjustment (see at [38] above). Moreover, while he clearly came to a different conclusion about this issue to that urged upon him by the Australian Olives' representatives, provided that conclusion was open to him on the facts known to him, as I consider it was, his reaching that conclusion in those circumstances could not be said to demonstrate bias or prejudgment. 55 For these reasons, I do not consider that C & C Fisher have made out the allegations that Mr Livadaras was biased, or demonstrated any prejudgment, of the issues he had to determine at the 12 December meeting. 56 As to the allegation (at [43.4] above) that Mr Livadaras misled the meeting when he said he had a discussion with a concerned investor "just prior to the meeting", I fail to see how this has any bearing on the question whether he discharged his role as the Chairman of the meeting in bad faith, viz, dishonestly, or knowingly for an improper purpose. I should add that Mr Livadaras denied this allegation on oath in his evidence before me. I would put in the same category C & C Fisher's allegations (although not specifically set out in [43] above) that Mr Livadaras believed that the C & C Fisher votes would be cast against the extraordinary resolutions, that Mr Livadaras was concerned to know whether the deed of assignment had been stamped, and that Mr Livadaras said in evidence that he wanted documentary proof that C & C Fisher had paid for its 70 groves, yet he did not ask for that kind of proof at the 12 December meeting. 57 C & C Fisher also allege (at [43.6] above) that bad faith can be inferred from the fact that Mr Livadaras did not contact Mr Fisher and ask him about the issues of concern to him, even though it was suggested at the meeting that he should do so. The first thing to be said about this allegation is that there is no evidence that Mr Fisher was readily contactable on the day of the meeting. Nor is there any evidence that Mr Livadaras, or anyone else, knew how or where to contact him. Apparently Mr Shaw, who made the suggestion, did not know where, or how, he might be contacted because the transcript records him saying at the meeting, immediately after he made the suggestion: "His details in terms of address are on the register of members, aren't they?": see above at [37]. In any event, there is no evidence before me to suggest that, even if he had been contacted, Mr Fisher would have been able, or willing, to shed any more light on the issues of concern to Mr Livadaras than the two representatives of Australian Olives who were present at the meeting. 58 Finally, there is a number of responses to the allegation (at 43.8 above) that Mr Livadaras took no steps to put Australian Olives, or C & C Fisher, on notice as to the issues he intended to raise at the 12 December meeting. First, there is the obvious response that Mr Livadaras was not to know, until he attended the meeting, that he would be elected as its Chairman. Secondly, and more importantly, all of the members of the Scheme, including Australian Olives and C & C Fisher, had received the notice of the meeting, which set out the extraordinary resolutions to be considered at the meeting. Moreover, this was the third adjourned meeting held to consider those resolutions and it is apparent from the transcript of the 12 December meeting that those who attended were well aware that the entitlement of C & C Fisher to cast its 70 votes was to be the central issue at the meeting. This is borne out by the fact that Mr Shaw, Australian Olives' solicitor, was sufficiently prepared that he was able to address the meeting at length about the legal issues involved with the C & C Fisher votes, including matters such as what the terms "associates" and "acting in concert" meant in the construction of s 253E of the Act. Further, there was quite a deal of discussion by Mr Shaw and others at the meeting about the reasons of Greenwood J on the similar issues in Livadaras.

[99]

No separate obligation to act on reasonable grounds 69 The separate obligation to act on reasonable grounds appears to be based on a statement Greenwood J made in Livadaras at the conclusion of his summary of the principles flowing from his review of the authorities on a chairperson's role, where his Honour said (Livadaras at [70]): "A good faith exercise of the power in the determination of facts upon which an exercise of the power rests does not give rise to an error of law. The chair must however act reasonably" (emphasis added). This statement, in turn, appears to be based upon the decision of McLelland J in Re Triden Contractors Ltd (1992) 30 NSWLR 615 which Greenwood J mentions in the immediately preceding paragraph of Livadaras: at [69]. There, Greenwood J sets out the following quote from Triden (at 616): "… the chairman must act in good faith, in accordance with any relevant law [ie, no error of law], and on reasonable grounds". In Triden, after making this statement, McLelland J went on to add (at 616 to 617) that: "If there is insufficient material available to him to enable him properly to make such a determination in a particular case then he should not purport to do so. However if he does do so the court will treat his determination as correct unless it is shown that it was not made in good faith, or that there were no reasonable grounds to support it, or that on the evidence before the court the determination was incorrect in point of substance …" (emphasis added). 70 In my respectful view, there is a number of aspects of this ruling that present difficulties. First, all of the other decisions dealing with this issue appear to hold that a chairperson's decision can only be reviewed for bad faith, or error of law: see the review of those decisions in Livadaras at [67] to [68] and also Link Agricultural at [39] to [42]. Secondly, so far as I can see, neither of the two authorities referred to by McLelland J used the expression "reasonable grounds", or anything similar: McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 and Re Telford Inns Pty Ltd (1985) 10 ACLR 312. Thirdly, the reference to "insufficient material" is curious because it suggests that a court could review the merits of a chairman's decision. As I have observed below (see at [76]), such a review is generally not permitted in the judicial review of administrative decisions and I consider there is all the more reason for concluding that it should not be permitted in a court's review of a chairperson's ruling at a meeting such as the one in this case. Finally, even if one were to apply authorities on the judicial review of administrative decisions, this requirement for reasonable grounds appears to run contrary to the restrictions the High Court has put on unreasonableness, irrationality, or illogicality as grounds for the review of administrative decisions: see the authorities reviewed in Livadaras at [74] to [76] and the discussion in M Aronson & Ors, Judicial Review of Administrative Action (4th ed, 2009) ("Aronson") at 4.410 to 4.425, 5.75 and 6.175 to 6.215. 71 Fortunately, I do not consider I need to resolve these difficulties because I consider Triden is distinguishable for a couple of reasons. First, Triden was a case dealing with an application to approve a scheme of arrangement following a meeting of creditors that had been ordered by the Court. The present case does not involve a creditors' meeting and, more importantly, the 12 December meeting was not ordered by a court. Secondly, the ruling in this case is affected by the provisions of s 253G of the Act. It provides as follows: A challenge to a right to vote at a meeting of members of a registered scheme: (a) may only be made at the meeting; and (b) must be determined by the chair, whose decision is final.

[101]

Both judicial review principles and Byng do not apply 75 As to the other kinds of unreasonableness relied upon by C & C Fisher (at [67.2] and [67.3] above), I do not consider the analogue of judicial review of administrative decision-making, by reference to Byng, is apt. My reasons for thinking that are these. First, apart from Byng, none of the other authorities Greenwood J referred to in Livadaras appear to draw the same analogy. I also note that Greenwood J did not expressly adopt it in Livadaras, but instead proceeded to review the authorities as "if" it might apply and demonstrated that, even in the judicial review context, the circumstances in which unreasonableness could constitute an error of law are extremely limited: see Livadaras at [72] to [76]. In other words, I consider C & C Fisher have misinterpreted what Greenwood J said in Livadaras. I also note that Kenny JA appeared to leave open the question whether English decisions such as Byng applied in Australia in these circumstances: see Link Agricultural at [42]. 76 Secondly, even if the analogy of judicial review of administrative decision-making is apt, it is well-established on Australian authority that such judicial review is limited to declaring and enforcing the law and it does not extend to reviewing the findings of fact or the merits of administrative action: see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 to 36 per Brennan J, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 to 356 per Mason CJ and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 ("S20/2002") at [114] per Kirby J. If that constraint applies to the review of public administrative decisions, I would have thought that it would apply with even more force to the review of a ruling made by a chairperson of a private meeting such as this, albeit one conducted within a specific statutory framework. 77 Finally, even if the analogy with the judicial review of administrative decision-making is apt, I do not consider English decisions on this area of the law, particularly those dealing with Wednesbury reasonableness, apply in Australia. Byng is, of course, such a decision. This is so because the courts in Australia and in England have differed in their approach to Wednesbury unreasonableness. In general, the English courts have taken a more relaxed approach, whereas the Australian courts have continued a much more restrictive approach: see the discussion in Aronson (above) at 6.175 and 6.195 and see further [79] below. 78 For these reasons, I do not consider Byng is good authority in Australia, insofar as it appears to apply, by analogy, the principles governing the judicial review of administrative action, to the review of the decisions of a chairperson of a meeting such as the one in this case. It necessarily follows that I reject C & C Fisher's submissions seeking to challenge Mr Livadaras' ruling on the grounds of unreasonableness, applying judicial review principles based on the ruling in Byng.

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