Instead of short minutes being brought in, various collateral disputes were called to my attention. I was informed by counsel for the plaintiff that it really was not possible for it to make an election as to whether or not it would sell its shares to the majority until at least 14 days after determination of questions of detail arising from my earlier reasons were resolved.

A day was spent on 29 October, 1998 discussing the short minutes and other matters which gave rise to the matters listed below. Time ran out, so I granted an injunction to hold the status quo and reserved my decision to to-day.

B. What sort of an enquiry and account of profits should be ordered in respect of the National Bus Company matter?

C. What sort of accounting should be ordered with respect to the Transcard matter?

D. How should questions of valuation be approached?

E. When should the plaintiff be put to its election as to whether it will sell its shares in Westbus?

F. Should an injunction be granted to restrain any alteration in the financial structure of NBC?

It was agreed by counsel that issue I should be postponed until later.

Before dealing with these matters, it is necessary to repeat some of the matters raised by the pleadings and how they were determined in my earlier reasons.

The plaintiff is a company controlled by Mr Bob Bosnjak. The first defendant is the holding company of a series of companies who collectively will be referred to as "Westbus". The principal business of Westbus is to operate buses and coaches.

In the final version of the statement of claim, the plaintiff primarily sought a declaration that the affairs of the first defendant were being conducted in a manner which was oppressive and unfairly prejudicial to its interests and to those of the members of the first defendant as a whole, contrary to s 260 of the Corporations Law.

That statement of claim also sought various subsidiary orders, the most significant of which were:-

(xvi) An order that it purchase the shares of the majority;

(xviii) An order that the assets and liabilities of Westbus be

split up and returned to the shareholders in a manner considered to be just and equitable to the Court.

I did not consider that the plaintiff was entitled to either of those orders.

I did, however, consider that the plaintiff was entitled to some relief in respect of three matters.

I found that there was oppression. However, I said at p 744:-

"All in all, it seems to me that the established oppression would be better met by ordering an accounting and by continuing the existing interim injunction permanently or at least until an amalgamation proposal is presented in proper form before an appropriately constituted board."

"It follows from what I have said that there must be an accounting to the Company: (a) by Jim and Carol Bosnjak for any advantage at the expense of the Company or at the cost of or the detriment to Holdings with respect to NBC up to 10 January, 1994; (b) by Jim on the same basis, though without limitation as to time, in connection with Transcard; and (c) there must be a recovery of costs paid to the Company's legal advisers for taking part in this litigation to shore up the majority position."

Earlier at p 746, I said when dealing with remedies,

"In my view, the only account that Bob Bosnjak should have is an enquiry as to what, if anything, is the amount which Jim and Carol Bosnjak should refund to Westbus because they utilized the time and information of Westbus in connection with the acquiring of the NBC franchise for the Melbourne bus operations up to 10 January, 1994."

I virtually ended the reasons at p 747 with the following:-

"Some thought will need to be given as to the most efficient way to do this. It is obviously inappropriate at this stage to go too deeply into the accounting process. If what I have said in these reasons is insufficient guidance, a referee can apply for further guidance, and, if a Master is to deal with the next part of the case, he or she can decide the relevant point or refer it to me.

"After that accounting is actually or notionally performed, Bob Bosnjak would be entitled to an order that the majority purchase his shares at a price to be fixed by the Court. At present he does not want this order to be made. If he continues in that attitude, I will not make any further order. I cannot see how the oppressors can obtain that order because it is convenient for them to obtain it. To allow this would be to allow oppressors to benefit from their own wrong ... .

"I would imagine that there will be some very interesting submissions made about costs. I have already mentioned the application by the Company for costs. My present feeling, which is by no means intended to be even a preliminary adjudication on the issue is that the reasonable costs of each party should come out of the assets of Holdings on analogy with a suit to wind up a partnership, but that each party should bear his her or its own costs over and above this including the not inconsiderable costs of multiple photocopying of documents."

The present evidence shows that Jim Bosnjak has purchased Carol Bosnjak's interest in Westbus and NBC, so that it is only now necessary to look at the problem qua Jim Bosnjak.

At the current hearing, Mr Rayment, QC and Mr Stevenson who appeared for the defendants, except for the first defendant, say that what I have just quoted are the words of a considered judgment and should not be reviewed. They say further that, if there is any discrepancy between the two, the quote at p 746 governs as the quote on p 747 merely purports to be a summary. On the other hand, Mr Ellicott, QC and Mr Drummond for the plaintiff say that until final order the Court may review its expression of reasons and indicate what it truly meant. In any event, they say, passages from the reasons show that the plaintiff was entitled to more relief than the defendants would concede.

A. I do not consider that there is any real doubt that, before a decision is passed and entered, a judge may even withdraw the whole of his or her judgment if it appear that there is a flaw in it. I recently considered this problem in a case where counsel rightly submitted that I had overlooked a key question, see Twenty-First Australia Inc v Shade (31.7.1998, unreported). Such a review must not be lightly entered into: Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300. However, a judge may correct infelicity of expression and ambiguous statements when they are called to his or her attention when the short minutes are brought in.

B. Mr Ellicott, QC said that the proper relief was that the shares in the National Bus Company (NBC) should be held on constructive trust for Westbus. I rejected that submission in my earlier reasons, and cannot see any reason to depart from that position. Mr Ellicott, QC then put that the profits which Jim Bosnjak made through the use of his fiduciary position with Westbus was the full value of the shares in NBC less the subscription price of $2. On the other hand, Mr Rayment, QC submitted that the appropriate way to assess the profits was to impose a virtual licence fee on Jim Bosnjak compelling him to pay what would have been asked as a consultant's fee for the work and information which Westbus provided.

To deal with these submissions, it is necessary to view in some detail what I found at the trial with respect to this issue.

NBC was incorporated on 7 May 1993. Its issued and paid up capital has been at all material times, 2 ordinary shares of $1.00 each. The directors and shareholders of National Bus Company are and have at all material times been Jim Bosnjak and Carol Bosnjak.

50. On or about 6 March 1993 the Department of Transport of the

Victorian Government called for expressions of interest for the

provision of public passenger bus services currently operated by the

Public Transport Corporation of Victoria ("the Victorian Bus

51. The Victorian Bus Contract represented a significant business

The statement of claim then set out detailed allegations as to how the resources of Holdings were used to support the tender documents to obtain the Melbourne bus services. The NBC tender was successful and on 26 September, 1993 NBC contracted with the Victorian Government to acquire a substantial part of the Public Transport Corporation's Melbourne bus services. Paragraph 50 of the statement of claim was basically admitted: paragraph 51 was denied.

The undisputed facts are that the Victorian Public Transport Corporation wished to privatize all its bus services. As things turned out, this was done in two tranches. NBC was successful in acquiring the whole of the first tranche.

The evidence showed that the possibility of Westbus or NBC being able to tender for the Melbourne bus services was drawn to their attention by Roger Graham. Roger Graham was a previous Westbus general manager. Further, Roger Graham caused the Victorian Government to fax notices drawing attention to the invitation to supply expressions of interest to a significant number of established bus companies in Australia together with some overseas operators. The fax to Westbus was sent to Jim Bosnjak at Edensor Park rather than to the head office.

Roger Graham advised Jim Bosnjak that there would be a briefing session in Melbourne about the privatization on 16 March, 1993. Jim Bosnjak says that he spoke to Bob Bosnjak and told him that he, Jim, thought that the company should have a look at the Victorian situation. Jim says that Bob Bosnjak's response was, "No way. I'm not interested in anything you want to do." Bob denied that this was said.

Jim Bosnjak went to Melbourne on 16 March, 1993, attended the briefing and collected handouts including timetables and maps. Jim says, but Bob denies, that Jim called on Bob and told him that he had collected papers from Melbourne, but was told in coarse language to leave. Robert Ash, the first defendant's financial controller, said that, at the request of Jim Bosnjak, he also spoke to Bob Bosnjak about the matter in mid to late March, 1993.

I accepted the evidence of Jim Bosnjak and Robert Ash on these questions.

The Expression of Interest document was lodged in the name of Bosnjak Holdings Pty Ltd on 13 April, 1993. The document was prepared by Robert Ash. The document was enclosed with a covering letter on the letterhead of Holdings. The final paragraph of the covering letter read as follows:-

"For the purpose of this expression of interest details have been provided in respect of the Bosnjak Holdings Pty Ltd group. At the tender stage we will determine the precise entity that would undertake the services. Such entity may be a related company in the group or a joint venture with another major transport service provider outside of Victoria."

Jim Bosnjak said in evidence that this last paragraph was included so that the options would be left open. If Bob wished to join in, then a Westbus company could put in the tender. I did not accept Jim Bosnjak on this.

On 20 April, 1993, Jim Bosnjak received a letter from the Victorian Government that Bosnjak Holdings Pty Ltd was invited to lodge a tender. On 24 April, 1993, Jim Bosnjak travelled to Melbourne and spent three days researching the operations of the then MET buses. Robert Ash also worked hard for two to three weeks on the tender.

Jim Bosnjak says that, shortly afterwards, he spoke to Bob and told him, "Bosnjak Holdings has been given an opportunity to lodge a tender for Melbourne." He says that Bob replied, "I don't give a stuff....I'm not interested in going into business with you - I've told you before, if you want to do it, do it yourself." Bob Bosnjak again denied this conversation, but I accepted that it occurred.

Debbie Bosnjak was informed of the matter in early May, 1993. At Jim Bosnjak's request and after instruction as to how to conduct surveys from Charlie Debono, the general manager of the first defendant, she proceeded to Melbourne with a friend, Esther Savvas, and a Westbus employee, Scott McDonald to undertake passenger loading surveys. These people carried out these surveys and also took some photographs of buses.

The tender document was substantially completed on 26 May. It is in evidence as document 15 in plaintiff's volume 6. The tender was a professionally produced document, well reasoned and obviously has taken a considerable amount of time and skill to compose. The tender document was in the name of NBC. However, it noted that the shareholders of NBC were the proprietors of the majority interest in Holdings and relied on some information of Holdings.

On 28 May, Debbie Bosnjak bound the final tender document, took it to Melbourne and lodged it with the appropriate authority. I agreed with Mr Ellicott QC's submission that the tender document was littered with Westbus information, has all the hallmarks of being prepared by Westbus staff and was made on the back of Westbus' reputation.

I further found that entry into the purchase of the majority of the Victorian Government's bus services involved considerable risk. Indeed, in the events which happened, NBC acquired the majority of the routes, two bus depots and 265 buses. At this stage, Westbus itself only held six depots and 350 buses. Moreover the operator would be working in an environment that could be quite different to that appertaining in western Sydney. The financial projections produced showed that there would be losses for perhaps three years. That happened. However, NBC has or will soon become quite profitable. Despite all those factors, the purchase could not be described as speculative.

The prime defence of Jim and Carol was to deny that they took advantage of a corporate opportunity, but that if they did, Westbus effectively renounced any business opportunity it might otherwise have available to it and further that the Company approved and consented to what they did (para 65). They further said (para 66) that Bob Bosnjak acquiesced in or waived any objection to such involvement. I found all those issues against Jim and Carol Bosnjak. I also found against their submission that there was no evidence that the senior staff of Westbus were ulitized to do work for NBC.

However, in finding that the defendants had taken advantage of a business opportunity, I noted that the Victorian Government seemed to be particularly keen to ensure that it only invited tenders from established bus operators. However, in the event, it was quite unnecessary for NBC to rely on the Westbus name as its tender was the only substantial one submitted. However, I repeat, this was only known after the event and, at the time the tender was submitted, those submitting it obviously thought it was necessary to involve the Westbus reputation and know-how.

I further held that it was also clear that the Melbourne bid involved the skills of Jim Bosnjak as an experienced bus service operator. However, such expertise, although doubtless gained from Westbus, was Jim Bosnjak's personal expertise and his use of it was not a use of Westbus property.

I further decided that, by 10 January, 1994, Bob Bosnjak was in a position to know sufficient of any breach of fiduciary duty, to enable him to decide whether or not to commence proceedings.

Mr Ellicott, QC noted that my judgment was based to a considerable extent on what the High Court said in Warman International Ltd v Dwyer [1995] HCA 18; (1995) 182 CLR 544. He then took me thoroughly through the judgment in that case highlighting the occasions when the judges made it clear that the defaulting fiduciary was not a person to whom much mercy need be shown. The same sort of approach was taken by the Court of Appeal in O'Halloran v RT Thomas & Family Pty Ltd (13.10.1998, unreported).

It is necessary to analyse what was said in the Warman case.

At p 557, the High Court pointed out that the remedy of account with a defaulting fiduciary does not depend on the beneficiary suffering any loss. "The stringent rule that the fiduciary cannot profit from his trust is said to have two purposes: (1) that the fiduciary must account for what has been acquired at the expense of the trust, and (2) to ensure that fiduciaries generally conduct themselves `at a level higher than that trodden by the crowd' ". The words quoted are those of Cardozo, CJ in Meinhard v Salmon 164 NE 545, 546 (NY) (1928). At p 559, the Court said, "The conduct of the plaintiff may be such as to make it inequitable to order an account ... . It is necessary to keep steadily in mind ... that the remedy be fashioned to fit the nature of the case and the particular facts." At pp 561-2, the Court said, "It is for the defendant to establish that it is inequitable to order an account of the entire profits. If the defendant does not establish that that would be so, then the defendant must bear the consequences of mingling the profits attributable to the defendant's breach of fiduciary duty and the profits attributable to those earned by the defendant's efforts and investment, in the same way that a trustee of a mixed fund bears the onus of distinguishing what is his own."

Mr Ellicott, QC submits that these passages mean that the account must be on the basis set out at the commencement of this section.

Mr Rayment QC relied on Seager v Copydex Ltd [1967] 1 WLR 923 that the profits should be assessed in this sort of case on the basis of reasonable compensation for what was used.

With respect, I do not consider that the Copydex case provides any useful analogy for the decision in the instant case. I can see no answer to Mr Ellicott, QC's propositions, save and except that, as I have already held, the relevant defendants have satisfied me that Bob Bosnjak should have taken action no later than 10 January, 1994, so that the capital value of the shares in NBC is to be taken at that date.

There is then the matter as to whether there should be an allowance for the defendants' risk, skill, expertise and other expenses.

At the original hearing I reviewed the submissions that there should be no such allowance and whether there was dishonesty. After quoting the portion of the judgment in Warman's case, I said at p 745:-

"Where a fiduciary breaches a duty not to profit at the expense of his or her principal, without dishonesty, it is customary for the Court in an action brought by the company or in a derivative action to allow the directors a proper fee for the risks they have taken in bringing about a profitable property which must now pass to the company; see Quinlan v Essex Hinge Co Ltd [1996] 2 BCLC 417.

"Mr Rayment, QC says that there was no dishonesty in this case, but, even if there was, the same principle applies nowadays after Warman's case, at least where the company has received incontrovertible benefit by the acts of a fiduciary.

"I consider that this last submission is too wide. The allowance of a just amount to an errant fiduciary is discretionary. Mason and Carter, op cit at para [1735] say that the allowance is `invariably withheld against the dishonest fiduciary'. With respect, that is too general a statement. The Court must examine all the circumstances of the case and see what is fair and equitable. If there has been a degree of dishonesty by the fiduciary, but the fiduciary's efforts have been the prime source of the profit, it is open to the Court to make an allowance."

I then held that there had been dishonesty in the Transcard matter, but that in the NBC matter the defendants "genuinely believed that Bob Bosnjak was not interested in the Melbourne buses and that they had done all that was necessary to do their duty to him. They were in error in assuming that there was consent to their obtaining advantages, but they did not act dishonestly."

"Even if there was dishonesty in the case of the NBC, I would consider that this was a case where, notwithstanding that dishonesty, a sizeable allowance would need to be made to the erring fiduciaries for their efforts.

"The facts of the NBC matter seem to me to get extremely close to the highest case exemplified by the High Court in Warman's case. No Westbus money went into NBC, Jim and Carol Bosnjak financed the acquisition from their own resources, they bore all the financial risks, NBC was for a while, unprofitable, but became profitable by a renegotiation with the Victorian government independent of Westbus and day to day managerial success was achieved not through Westbus, but primarily through the skill of Mr Oliver.

"Mr Ellicott, QC says that it is not correct to say that NBC prospered because of the efforts of Jim and Carol Bosnjak. He puts that its success was achieved by a non-fiduciary, Peter Oliver. However, what Mr Oliver did, he did as the CEO of a company controlled by Jim and Carol Bosnjak and in respect of which they bore the financial risk".

The question now is, on what basis should the allowance be made?

I believe it is pertinent to draw attention to the fact that in this class of case, a Court does not apportion earnings of a fiduciary between the various causes of those earnings. In this sort of case, the Court "does not allow an examination into the relative importance of contributory causes": Barton v Armstrong [1976] AC 104, 118. If there is sufficient connection between the profit that the fiduciary made and the breach of fiduciary duty, then the fiduciary is liable for all the profits; see O'Halloran's case at p 27 and Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449, 473. This is, of course, subject to the defendant satisfying the Court that a lesser order is just and subject to an appropriate allowance. It is in fixing the allowance that the Court may both vindicate the general principle of this branch of the law and also be fair to the individuals concerned in a particular case. This is how the Court goes about the exercise described by Lord Denning in Phipps v Boardman [1965] Ch 992, 1000 of not allowing a claim for repayment "to extend further than the justice of the case demands."

I believe that I should not proceed further with this discussion at this point. The defendants should isolate the matters which they say are proper matters for an allowance. The plaintiff can then indicate its attitude to those claims (apart from its already stated position that there should be no allowance at all) and an assessment can then be made.

C. The other major matter which resulted in the ordering of an account of profits was the Transcard matter. Transcard was proposed by the Cabcharge company as a joint business venture between itself and Westbus. The business would issue a stored value card which could be used on Westbus buses and could also be used to make purchases from fast food outlets and the like. Transcard appeared at first to be quite a profitable scheme from which large profits might be derived. In the end, the Transcard scheme came to nothing and Cabcharge bought Jim Bosnjak's interest in the scheme for $902,868, being the amount he owed to Cabcharge for his share of the development costs.

Mr Ellicott, QC submits that Jim Bosnjak should account to Westbus for $1,552,568 plus interest under two heads. The first head would reimburse Westbus for its expenditure on the project. This, on the evidence before me from Mr O'Brien amounts to $649,700. This sum is made up of $303,000, value of lease, $343,000 for time spent by officers of Westbus and $3,700 for cost of repairs. The second head is the $902,868 which was paid to Jim Bosnjak to release his debt of the exact same amount.

I do not consider that I can dispose of this aspect of the matter in a summary way. The technical reason for this is that a person cannot have part of an account or as Hutley, JA put it in Colin D Young Pty Ltd v Commercial and General Acceptance Ltd (24.8.1982 unreported) repeated in Adams v Bank of New South Wales [1984] 1 NSWLR 285, 296 "little bits of accounts". If there is to be an accounting taken, it must include all relevant matters. The Court cannot or, if it can, should not, declare part of what is owing and then have an account.

The second reason why the exercise should not be attempted is that it is necessary to look behind the facts and circumstances of the $902,868, being which I described as monies owing to Cabcharge for Jim Bosnjak's "share of the development costs" in order to see whether there was any profit or a net profit of less than that sum.

Thus all that I can do on this matter is to refer it for an enquiry.

I should note that no material has been placed before me from which I could hold that it would be just to make any allowance for the defendants' efforts. In view of the finding of dishonesty, such an allowance would be hard to grant in any event.

D. I was then asked to consider the principles of valuation that must be employed in this case.

The first matter is the date at which the shares should be valued if the plaintiff elects to sell its shares. Mr Ellicott, QC puts that it is the date of the decision to sell. I think this is correct, though in some respects it makes little difference as should another date be selected, appropriate adjustments for interest etc would be made.

In my earlier judgment I said at p 744 that on a buy-out, the price of the shares would need adjustment from their market value. This may be done by valuing the minority's shares on the basis that the misconduct did not occur; see Re Golden Bread Pty Ltd [1977] Qd R 44, 50 and 55; Re Dalkeith Investments Pty Ltd (1984) 9 ACLR 247, 255. Alternatively one first performs the accounting exercise of writing back what should not have been abstracted from the company and then values the shares; cf Re London School of Electronics Ltd [1986] Ch 211.

Both sets of counsel now agree that in valuing the plaintiff's shares, no discount should be made for the fact that the plaintiff's shares are a minority holding.

Mr Ellicott, QC submits that in any valuation, the valuer would be entitled to take into account that there was a distinct possibility that the Company was a very desirable asset for an overseas bidder and that the whole of the shares had a greater value than could be fixed by a maintainable earnings or other orthodox basis.

It is clear from the authorities that the Court requires that a plaintiff's shares be purchased at a "fair value" which is not necessarily the market value. Mr Ellicott, QC took me through some of the recent cases which established that point, and Mr Rayment, QC did not submit to the contrary. The cases referred to were, in chronological order, Weinberger v UOP Inc 457 A (2d) 701, 713 (Del) (1983); Holt v Cox (1994) 15 ACSR 313, 332-335 (affirmed by the Court of Appeal [1997] NSWSC 144; (1997) 23 ACSR 590); Re London School of Electronics Ltd [1986] Ch 211, 224; ES Gordon Pty Ltd v Idameneo (No 123) Pty Ltd (1994) 15 ACSR 536, 540-3; Gambotto v WCP Ltd [1995] HCA 12; (1995) 182 CLR 432, 447; Dynasty Pty Ltd v Coombs [1995] FCA 1447; (1995) 59 FCR 122, 145; Rankine v Rankine (1995) 18 ACSR 725, 727-732; 14 ACLC 116, 118-120; Martin v Australian Squash Club Pty Ltd (1996) 14 ACLC 452, 476.

I agree with the general proposition put by Mr Ellicott, QC. However, whether there are any possible bidders for the Company as a whole and how far a valuer could take that matter into account when fixing a fair value, is something that should be left until there is some concrete dispute between valuers. The possibility of Westbus having some greater value because of its possible desirability as a property for an overseas company to establish a toehold in Australia can be better assessed then.

I said at pp 726-8 that, although there were declining financial returns from Westbus and increased costs, these matters were well within the discretion of management. However, Mr Ellicott, QC submits that this matter is relevant when fixing a fair value for the plaintiff's shares should it elect to sell them. I do not see any reason for accepting this submission.

It follows that I do not consider that I can usefully lay down any general principles at this stage. The exercise in attempting to do so may, however, have had some value in that it would have alerted possible valuers to the factors that might be involved.

E. There does not seem to be any direct authority as to when a person in the position of this plaintiff should make an election as to whether to remain a shareholder of Westbus or to sell its shares to the majority at a fair value.

As I noted in my earlier judgment, I was to an extent following the approach taken by the present Chief Judge in Equity in Martin v Australian Squash Club Pty Ltd (1996) 14 ACLC 452. That case sheds only a little light on the present problem The Chief Judge did give guidance as to how the issues should be approached, but the judgment tends to suggest that the plaintiff would have to make an election before the actual valuation process had been completed, see p 477.

It seems to me that the most appropriate analogy is the situation where a plaintiff must elect between an account of profits and damages in an intellectual property case. The approach taken in such cases is illustrated by Led Builders Pty Ltd v Eagle Homes Pty Ltd (No 3) (1996) 36 IPR 293 and see Dr Martens Australia Pty Ltd v Bata Shoe Co of Australia Pty Ltd (1997) 145 ALR 233 and my decision in Dalysmith Corp (Aust) Pty Ltd v Cray Personnel Pty Ltd (14.4.1997 unreported).

The election is to be "made before any hearing on the quantum of monetary relief to be ordered is embarked upon", Led Builders, supra at p 300; Neilson v Betts (1871) LR 5 HL 1; De Vitre v Betts (1873) 6 HL 319; Weingarten Bros v Charles Bayer & Co (1905) 22 RPC 341. However, the election is to be an informed election, and limited discovery may be given before the election is required to be made: Led Builders at p 302; Minnesota Mining & Manufacturing Co v C Jeffries Pty Ltd [1992] FCA 392; (1992) 37 FCR 294. Once an election is made, it is final, notwithstanding the lodgment of an appeal: Kendall v Masters [1860] EngR 964; (1860) 2 De G F & J 200; 45 ER 598. It is unjust to delay unreasonably in the making of the election: Island Records Pty Ltd v Tring International plc [1996] 1 WLR 1256, 1259-1260.

It may have been necessary to obtain more details as to the basis of the account that was ordered. Especially in view of the negotiations that are being carried on by the defendants to have additional shares in NBC issued to a third party, it would be unjust to have the plaintiff keep its election options open for more than a further 14 days. Thus, the order will require the plaintiff to elect by notice filed with the Court (either in the Registry or with my Associate) no later than 4 pm on 18 November, 1998 whether it desires the defendants to acquire its Westbus shares at a fair price.

F. An additional matter which I need consider is the latest in a series of amalgamation proposals. In my earlier reasons I noted two such schemes involving the sale of 40% of NBC to the public. These schemes were, in part, defeated by the injunction granted by consent on 16 December, 1997 by Cohen, J which restrained any step in the amalgamation of the businesses of Westbus and NBC. The order, so far as is relevant was that "the First to Sixth Defendants, by themselves, their servants or agents, be restrained until further order from taking any steps to amalgamate the business of Westbus Pty Limited with that of National Bus Company Pty Limited."

It became apparent at the hearing on 29 October 1998 that from May, 1998, there has been a further proposal involving the issue of further shares in NBC so that a British interest will achieve a 40% shareholding. Mr Rayment, QC said that this was in no respect an amalgamation of the businesses. On the face of it, it might not be, but there was sufficient in confidential exhibit PX 1001 for me to consider that the close interest of the British company in the day to day operations of Westbus showed that it was more likely than not that a step towards the amalgamation of the businesses was contemplated. I granted a more particular injunction for six days to hold the status quo while I considered these further reasons.

Mr Rayment, QC strenuously opposed the injunction. He submitted that there was no equity to grant such an injunction and that Mr Ellicott, QC wished it to continue for 14 days after my decision on the present matter.

There could be at least three bases for granting the injunction. First, as ancillary to any claim to a proprietary interest in the shares of NBC if my decision not to grant a proprietary interest was reversed on appeal. Secondly, to hold the status quo in a further oppression suit involving further exclusion of Bob Bosnjak from participating in any real decision making in Westbus. Thirdly, ancillary to the injunction granted by Cohen, J on 16 December, 1997.

The first possible basis has not yet arisen in that there is no appeal from this order. Indeed, even if there were an appeal, it would be by no means obvious that a freeze on what happens within NBC should be imposed. The second is in like plight. However, because of an order I made by consent during October, supplemented by the "Independent Directors Agreement" made by the parties a copy of which I have placed in the Court file, a structure is now in place whereby any amalgamation proposal will be vetted by an independent board.

I consider that what has happened may perhaps be a breach of Cohen, J's order of 16 December, 1997. However, in view of the proposed independent board, that injunction should now be discharged.

Mr Rayment, QC also argued that were an injunction to be given a special form of undertaking as to damages would have to be framed. Although it is unnecessary to consider this submission as no injunction will be granted, I agree with the submission. The form of undertaking as to damages is set out in the Supreme Court Rules Part 28 rule 7(2). The undertaking usually operates to make the giver pay damages when the claim fails. If it were appropriate to grant an injunction, a special provision would need to be inserted in the undertaking to trigger the liability if an appeal were not filed by a certain date or if the appeal were dismissed whichever event was the later.

G. Who should conduct the enquiry? It has been suggested by both sides that I should carry out the enquiry because I have spent weeks becoming familiar with the material. There is a lot of sense in this proposal. However, there are factors which go the other way including whether the Court is properly using its resources to have a judge do an exercise which ordinarily is performed by Masters or Registrars.

I believe that I should not make a decision on this matter at the present time. I consider that I should give directions requiring the plaintiff to file draft directions as to the enquiry by a certain date and the defendants to respond by a date 21 days later. I would then put the matter in the list for directions as to filing of affidavits, and, after the evidence was complete make an assessment as to the optimum method of proceeding. I will not do this now as the parties may think it best for me to make a final order now directing an enquiry with the order made in sufficiently flexible terms that it is open as to whether the enquiry will be before me or a Master. I have drafted the Appendix accordingly.

I think it is necessary to make a formal declaration of oppression. I have already indicated the view I have taken on the first two questions of accounting and these should be reflected in the formal order.

The third matter requiring an account is expenditure of Westbus in the defence of these proceedings. As to that, I said at p 734:-

"... the extent of the defence by the Company went beyond merely protecting its discrete interests. Doubtless some part, even up to 2/3 of the Company's legal costs may well have been properly incurred." However, what the company did went beyond what was a proper course for the board to take and is oppressive. "The remedy again, however, is merely that the majority compensate the Company for the unauthorized expenditure. The amount of the unauthorized expenditure can be assessed by the Master or by a referee."

I do not consider that I can take this question any further.

I have set out in the Appendix a draft of the orders I propose to make which have been drawn from these reasons. Any rough edges can be polished in due course.

I. As I said earlier, the matter of costs has been deferred.

[His Honour then handed down a draft of the above and counsel

Counsel then agreed that orders other than costs might be made

now. The form of the Appendix was slightly altered. The Appendix

to this revised judgment contains those alterations.

1. That it is of the opinion that the affairs of the first defendant were at the institution of these proceedings being conducted in a manner that was oppressive to the plaintiff.

2. That should the plaintiff elect by filing a notice to that effect with the Court no later than 4 pm on 18 November, 1998, the second and fourth defendants purchase the plaintiff's shares in the first defendant at their fair value as at 18 November, 1998.

3. The Court notes that such "fair value" will be ascertained without regard to the plaintiff's shares being a minority interest in the first defendant and on the basis that the accounting referred to in order 8 had taken place and the amounts found to be due be paid to the first defendant on 18 November, 1998.

4. That further consideration generally including all questions of costs be reserved.

5. The undertakings and orders made on 16 December, 1997 are discharged as from 4 November, 1998.

6. The exhibits shall be returned to the party tendering the same on their undertaking to return same to the Court should they or any of them be needed for the purpose of any appeal. The confidential exhibit

PX 1001 will be handed out to the plaintiff's solicitors forthwith.

7. Any folder left with the judge for the purpose of the hearing other than files containing exhibits may be destroyed on or after 1 January, 1999.

Should the plaintiff fail to elect as provided in order 2, the Court orders:

profits made by reason of his involvement in the Transcard transaction referred to in paragraph 80D of the Statement of Claim as lastly amended;

sixth defendants account for the profit made as at 10 January, 1994 being the value of the shares in National Bus Company Pty Ltd as at that date less the sum of $2;

(c) That the defendants other than the first defendant

account for any monies paid to solicitors and counsel for the first defendant in these proceedings over and above those reasonably necessary for the protection of the interests of the first defendant.

Provided that in the account referred to in (b) should the said defendants show that any just allowance should be made for the defendants' risk, skill, expertise and other expenses, such allowance must be made. Provided further that the enquiry shall also deal with the amount of interest, if any, that should be paid on monies to be paid to the first defendant.

9. Liberty to the plaintiff to file a notice of motion returnable before Young, J at a date to be arranged with His Honour's Associate for directions as to the said enquiry.

10. Order that the said defendants pay to the first defendant the monies found to be due on such enquiry.

11. Note the "Independent Directors Agreement" initialled by

12. Stand over to 26 November, 1998 at 10.30 am to deal with submissions as to costs: direct parties to exchange submissions by 23 November, 1998 with copy to the Court.