Fexuto Pty Limited v Bosnjak Holdings Pty Limited & Ors

306 Young J found that Holdings seemed to work well until 1988. Between 1979 and 1988 Mr Bob Bosnjak and Mr Jim Bosnjak managed and directed the business. Young J further found that the problems which eventually brought the parties to court appeared to commence on 12 September 1988 when Mrs Carol Bosnjak was first appointed a director of Holdings. She regularly, although not invariably, voted with Mr Jim Bosnjak on management matters about which Mr Bob Bosnjak frequently had a different opinion. (Although, as earlier noted, Mrs Carol Bosnjak resigned in June 1989 and was not reappointed until July 1993, Young J's point was that her 1988 appointment marked a date after which relations between the two principal managers began to cause major problems between them.) 2. Witnesses . 307 In the next section of his reasons Young J discussed the reliability and credibility of witnesses as an aid to his later making findings on disputed questions of fact.

308 Mr Bob Bosnjak. In regard to Mr Bob Bosnjak Young J said that cross-examination had shown that a lot of his evidence was contrary to contemporaneous documents. He then continued: " I formed the general opinion that Bob Bosnjak deeply and conscientiously believes that he is being oppressed. He is the older surviving son of the founder of the company. He considers that up to 1988 the company worked well. He considers that this was primarily as a result of his skills and that his younger brother, Jim, was more of a show pony who spent many hours in industry committees, but little time in the company's business. He acknowledges that his mother was a director and that she was a strong force, but says that she never functioned as a director. However, he considers that as a woman and not only a woman but one who could not speak English, she had no significant part to play in the Westbus business. Bob Bosnjak was very emotionally affected by the appointment of Carol Bosnjak as a director in 1988. That emotional torment has to a great extent led to Bob Bosnjak being obsessed and seeing a conspiracy in almost everything that was done in the Company. He resented the fact that his input was not invited when proposals were being made to the board. That resentment led to Bob Bosnjak opposing virtually every proposal that was put to the board. It also led to Bob Bosnjak saying over and over again in evidence that he was being publicly degraded and humiliated by managers who were sympathetic to Jim and Carol, particularly the present Chief Executive Officer, John Mostyn. The obsession led to Bob Bosnjak seeing a conspiracy in even the most trivial matters such as the fact that Debbie Bosnjak8 had a key to the stationery cupboard, but he did not. The obsession has led Bob Bosnjak to reconstruct events in a particular light. That light has often given a false impression as to what really occurred. I did not regard Bob Bosnjak as a completely reliable witness. "

309 Mr Jim Bosnjak. In Young J's opinion, Mr Jim Bosnjak came across as a careful man with an outgoing personality, some of whose recollections were faulty, some of whose evidence was difficult to accept and some parts of whose evidence were a little unrealistic. In regard to one issue (which concerned the possible future acquisition of a competing bus company) Young J said that the evidence tended to support Mr Bob Bosnjak's opinion that Mr Jim Bosnjak's opposing view was based on a fantasy in one respect and was specious in another. At a somewhat later point, Young J said that Mr Jim Bosnjak's evidence about the minutes of a disputed meeting of Directors said to have been held on 29 May 1989 did not enhance his credit. 310 I reproduce one passage in full because of its significance (which will become more fully apparent later): " Jim Bosnjak was cross-examined at considerable length on volume 13 of the plaintiff's bundle which contained many notes of Price Waterhouse & Co (his accountants) including letters from Mr Jim Marsden (Jim Bosnjak's then solicitor) to Ms Margaret Gibson of Price Waterhouse. It is quite obvious that both Margaret Gibson and Jim Marsden were acutely aware of the necessity for a 60% quorum and the other problems involved in holding the July, 1993 Extraordinary General Meeting. Jim Bosnjak was at pains to point out that none of these documents bore his name or signature. Neither Margaret Gibson nor Jim Marsden were called. It is very difficult to accept that none of these matters which were causing Jim Bosnjak's advisers so much concern were not transmitted to him, especially as the relevant meeting was held at Price Waterhouse's premises. " 311 (Also, in later sections of his reasons Young J made findings adverse to Mr Jim Bosnjak's credit.)

312 Mrs Carol Bosnjak. There was a difficulty with the evidence of Mrs Carol Bosnjak. Affidavits made by her had been filed. She was sworn in and affirmed the truth of her affidavits. She then became ill, left the witness box and never returned to it. Young J decided to admit part of the affidavits into evidence and noted that he would discount the weight of those parts because the witness was not available for cross-examination. He also said that it was obvious from what he had been told that Mrs Carol Bosnjak had become unfit to continue to give evidence as a result of psychological problems. He added that the cause of the problems was just a matter of speculation.

313 Other witnesses. Young J also made comments upon many of the other witnesses but none of these was of sufficient importance in the resolution of the basic issues in the case to warrant reference at this point with the possible exceptions of Mr J Mostyn, Mr Ash and Mr Gotze. 314 Mr Mostyn was appointed as CEO of Holdings in January 1995 for six months, extendable by agreement, which happened in May 1995. Young J said he came across very poorly and did not demonstrate the skills for which he had been appointed, that is, the ability to deal with the situation where the company was not performing as a result of the dissident director not being able to change with the times. Both Mr Jim Bosnjak and Mr J. Mostyn said in their evidence that the purpose of Mr Mostyn's appointment had been to hold the scales between the various Directors but Young J found that by May 1995 at the latest Mr Mostyn had quite obviously become Mr Jim Bosnjak's right-hand man, who never ever agreed with any proposal made by Mr Bob Bosnjak. 315 As to Mr Ash, all that Young J said was that he was the financial controller of the Company, gave his evidence in a calm fashion, and was not obviously partial to either party. (In later sections of his reasons he made more adverse comments.) 316 Young J said that Mr Gotze had been called to show there would be no real difficulty in dismembering the Bosnjak group, if the court ordered. The judge found his evidence of little value. His brief reasons for this opinion were: " Mr Gotze was mainly concerned with the bus industry in Victoria. He was not able to give much cogent evidence as to the type of services operated by the Company. He did not know of any private bus company that had been dismembered, but did identify government services that had been privatized in Melbourne, Adelaide and Perth. " 317 In discussing witnesses, Young J also commented on the absence of persons from the witness box whose evidence he thought would have helped him to decide some of the issues between the parties. This comment applied both to the plaintiff's case and the defendants'. 318 The judge also noted that he had been given "precious little information as to the details of Holdings' business", notwithstanding the great volume of evidence that had been put before him. 3. Oppression. 319 In the next section of his reasons, Young J considered the factual position concerning oppression, under the general heading "Was there oppression in all or any of the following:" followed by a list of eleven subheadings, (a) - (k). The first nine of these were specific matters on which counsel for Fexuto had focused attention in his final address as demonstrating oppression whether they were taken either singly or in some combination. Young J had earlier mentioned that the Statement of Claim had listed 17 heads of oppression. He had said he would deal with the nine upon which counsel addressed but that it would then be necessary "to consider the total picture in the light of the applicable principles whether there [had] been oppression". Thus, the last two of the eleven subheadings were: (j), the role of Holdings in the proceedings, and (k), Generally. The first nine were (a), the events of 1988/9; (b); legitimate expectations of management rights; (c.), the estate of Anda Bosnjak; (d),The National Bus Company; (e),The Edensor Park Depot; (f), Transcard; (g), Declining results of Holdings; (h), Asset split and access to books and records; and (i), Proposed Amalgamation of National Bus Co. with Westbus. Young J dealt with the subheadings as follows. 320 (a) The events of 1988/9. This ground stemmed from the appointment of Mrs Carol Bosnjak as a director on 12 September 1988. Mr Bob Bosnjak was extremely opposed to the appointment. Young J did not accept the reasons put forward by Mr Bob Bosnjak for his opposition. Young J said that the main reason for his opposition was that the balance of power changed. Until the appointment of Mrs Carol Bosnjak, Mr Bob Bosnjak tended to get his own way often over protests of Mr Jim Bosnjak. After Mrs Carol Bosnjak became a director, Mr Jim Bosnjak and she "changed the balance to the opposite position".

321 Young J concluded that nothing relating to the appointment of Mrs Carol Bosnjak as a director went to any oppression extant at the time the oppression proceedings began. However, he thought that the matter was vital background material. He said that Mr Bob Bosnjak's reaction to the appointment was strange and strong and led directly to members of the family who had previously been quite friendly ceasing to speak to one another.

322 (b) Legitimate expectations of management rights. Under this head Young J first discussed the relevant case law and then the facts. He drew principally on two cases: Ebrahimi v Westbourne Galleries Ltd9 and Re Posgate and Denby (Agencies) Ltd10. In Ebrahimi the petitioner sought an order under s 210 of the Companies Act that his shares be bought by the respondent. Section 210 was the then oppressive conduct section. In the alternative the petitioner sought an order for the winding up of the company on the "just and equitable" ground in s 222(f). The petitioner failed under s 210 but succeeded under s 222(f). The House of Lords held that there were circumstances in which it was just and equitable to wind up a company which was a quasi partnership which had reached a state of deadlock. Counsel for the plaintiff submitted that Mr Bob Bosnjak's situation had become closely analogous to that of a quasi partner in a deadlocked company and that this supported his claim of oppression within the meaning of section 260. Young J noted that there was no deadlock in the instant case but agreed that the case was closely analogous. 323 Young J then discussed Re Posgate and Denby, and showed that the same ideas that lay behind the decision in Ebrahimi on the just and equitable ground were adopted in oppression cases also, following amendments in England in 1980 to the statutory provisions. This happened together with the taking up of the concept of "legitimate expectation" in this area.11 The basic idea stated by Hoffmann J in Posgate v Denby was that in an oppression case the court might take into account "not only the rights of members under the company's constitution, but also their legitimate expectations arising from the agreements or understandings of the members inter se"12. A little later, after emphasising how important it was for each case to be considered on its own facts and referring to the statement by Lord Wilberforce in Ebrahimi that in most cases the basis of association would be adequately and exhaustively laid down in the articles, so that the superimposition of equitable considerations would require something more, he said: " … in my judgment it is equally necessary for a shareholder who claims that it is "unfair" within the meaning of section 459 [the U.K. equivalent of section 260] for the board to exercise powers conferred by the articles to demonstrate some special circumstances which create a legitimate expectation that the board would not do so. Section 459 enables the court to give full effect to the terms and understandings on which the members of the company became associated but not to rewrite them. "13 324 Young J observed that authorities outside England did not use the expression "legitimate expectation" as such, but that cases from other jurisdictions applied the same type of consideration. After referring to various of the cases, he stated that they supported the following propositions: 1, the court looks at the constitution of the company to see if it founds a legitimate expectation claimed by a plaintiff; 2, even if nothing in the constitution supports the claimed legitimate expectation, the court will, in appropriate cases, look to the understandings of the parties when they entered into the corporate quasi-partnership; 3, the court looks at the question by considering the impact on the oppressed, not on the intention of the alleged oppressor; 4, the mere fact that a company is a quasi-partnership is not enough to raise a legitimate expectation that each partner will be able to take part in management; 5, mere failure to agree between the majority and the minority is not usually of itself sufficient to demonstrate oppression; 6, a legitimate expectation may be lost if it is no longer practicable for the right to the expectation to continue.

325 Applying these propositions to the case before him, he said it was necessary to answer three questions: had a legitimate expectation that Mr Bob Bosnjak would share in day-to-day management arisen? If it had, did it still exist? If it still existed, had it been frustrated?

326 In answering the first of these questions, Young J set out some of the history of Holdings. He first considered the position both before the rearrangement organised by Mr Bosnjak senior which was effected in late 1976, then referred to the fact that the arrangements then made remained in place until the deaths of Mr John Bosnjak and Mr S. Bosnjak senior in June and October 1979, and, on these facts, concluded that no relevant legitimate expectation could have come into existence in favour of Mr Bob Bosnjak before December 1975; nor could any such legitimate expectation have arisen between December 1975 and the death of Mr S. Bosnjak.

327 As to the period between the death of Mr S. Bosnjak and the death of Mrs Anda Bosnjak, there was a conflict in the evidence. During that period (apart from the time between September 1988 and June 1989 when Mrs Carol Bosnjak either was or acted as a director) the three Directors of the company were Mrs Anda Bosnjak, Mr Bob Bosnjak and Mr Jim Bosnjak. Mr Bob Bosnjak's evidence was that Mrs Anda Bosnjak played very little part in the management of the business and that all management decisions were made either by himself and Mr Jim Bosnjak jointly, or not at all. Mr Jim Bosnjak's evidence was that corporate life was tolerable because Mrs Anda Bosnjak joined in the decision-making process, preventing any deadlock. Young J found that it was more likely than not that Mrs Anda Bosnjak participated in business decisions to the extent stated by Mr Jim Bosnjak. This led him to conclude that during the period in question there was a mechanism for breaking the deadlock. This in turn led to Young J's final conclusion on this point, which he expressed as follows: " It is true that between 1989 and mid-1993, Bob and Jim in fact had day to day management and control of Holdings. However, as I have said previously, that fact alone is insufficient from which to construct a legitimate expectation as relied on by Bob Bosnjak. 328 Although, (on his approach), he did not need to, Young J next considered whether, if a legitimate expectation had arisen in Mr Bob Bosnjak's favour, it still existed. In dealing with this question, Young J said that the bulk of the evidence about the dispute before the court concerned Mr Bob Bosnjak's view that he was isolated and removed from any effective voice in management where he had a legitimate expectation to be involved despite his clashes with others. Young J was of the view that a legitimate expectation to be involved in management came to an end "where the company becomes so changed in structure or size that the legitimate expectations of others brought about by changing the constitution of the company would be thwarted if the petitioner's expectation was to continue". For this proposition he relied on Re Blue Arrow plc.14 329 He went on, that on any view of the facts relations between Mr Bob Bosnjak and Mr Jim Bosnjak had become strained to the degree that they could not work together. He noted that in the period between the death of Mrs Anda Bosnjak on 31 October 1992 and July 1993, when Mr Jim Bosnjak and Mr Bob Bosnjak were the only Directors, the de facto position was that either they agreed on a decision or the status quo remained; Mr Bob Bosnjak could effectively veto any initiative by Mr Jim Bosnjak either by disagreeing or by not participating in a meeting. This frustrated Mr Jim Bosnjak. From July 1993, when Mrs Carol Bosnjak became a third director, the position changed. With one exception, Mrs Carol Bosnjak voted with Mr Jim Bosnjak on every motion proposed at a directors' meeting. Executives were appointed who were predominantly loyal to the majority of the board. As Mr Bob Bosnjak saw his position, it changed from one where he had been seen as "the boss" to one where he was being bossed about by underlings. In Young J's view Mr Bob Bosnjak was not able to work as part of a management team with Mr Jim Bosnjak or with Mrs Carol Bosnjak. In his opinion, this meant that if Mr Bob Bosnjak had had any legitimate expectation to be involved in management, it had ceased. He was also of opinion that for a different reason any legitimate expectation had come to an end. This was that the mere expansion of the business made it no longer possible for the 1989 status quo to continue so far as management was concerned.

330 Young J then came to the sub-question whether, if a legitimate expectation had existed, it had been frustrated. He acknowledged that in light of his answers to the previous two sub-questions, his third sub-question was of no moment so far as oppression based on legitimate expectation was concerned. However, he thought it useful to discuss it, because it involved a consideration of material which he thought very significant when analysing the total effect of the conduct of the majority.

331 Young J then described the way in which Mr Bob Bosnjak reacted to the appointment of Mr Mostyn. That Mr Mostyn would be appointed was first proposed at a board meeting on 26 October 1993. Mr Bob Bosnjak opposed the idea. Discussion continued during 1994. Mr Mostyn was eventually appointed by the board to carry out a review of the company's operations in late November 1994. There was dispute about the details of what happened when Mr Bob Bosnjak and Mr Mostyn first met but there was no doubt that at a very early stage Mr Bob Bosnjak told Mr Mostyn that he was not going to help him, that he didn't want him there, and that he did not trust him. Mr Mostyn was appointed CEO to commence on 16 January 1995, initially for six months, and in May 1995 his appointment was made permanent. There were constant clashes between Mr Bob Bosnjak and Mr Mostyn. Young J found that these were more the product of the attitude of Mr Bob Bosnjak to the diminution of his influence in the company than of any active planning by Mr Jim Bosnjak or Mrs Carol Bosnjak to belittle or humiliate him. Young J also found that Mr Mostyn became close to Mr Jim Bosnjak and that although Mr Jim Bosnjak said that he was in the same position as Mr Bob Bosnjak in that direct management was being carried out by Mr Mostyn and middle managers, in fact Mr Jim Bosnjak's management was continuing because Mr Mostyn was taking notice of his wishes as he represented the majority of the board. 332 Further, Young J found that Mr Mostyn would confer with Mr Jim Bosnjak and Mrs Carol Bosnjak before board meetings and would tell them his recommendations and obtain their reactions. Young J did not think that this had led to predetermination of issues at board meetings but that there was some "pre-digestion", of which he was critical. 333 Young J also found that the business was functioning normally despite the internal problems.

334 Young J made the following further findings. From May 1995 Mr Mostyn, encouraged by Mr Jim Bosnjak and Mrs Carol Bosnjak, acted with ill will towards Mr Bob Bosnjak and deliberately made sure that he had minimal power in the day-to-day management of the business. Mr Bob Bosnjak was critical of Mr Jim Bosnjak, Mrs Carol Bosnjak, Mr Mostyn and various middle managers who were appointed from about this time. Young J concluded that these matters showed that management which involved Mr Bob Bosnjak was unworkable and that in the case of Mr Watts, whose appointment to his job was said to be an example of oppressive conduct, his appointment was not in any way oppressive.

335 Finally, in regard to this third subquestion, Young J said he thought the answer was clearly yes, that is, if there had been any legitimate expectation, it had been frustrated.

336 (c) The estate of Anda Bosnjak. Young J sketched the facts concerning Mrs Anda Bosnjak's 1977 and 1992 wills, the granting of probate of the 1992 will on 17 December 1993, and the later proceedings about its validity. He noted that those proceedings had not been heard by the time of the hearing before him. Whatever might turn out to be their result, he did not see that it could be of any relevance to the proceedings before him and did not deal with the matter further in his reasons. 337 Perhaps inconsistently, he added the observation that it had been submitted for Mr Bob Bosnjak that the circumstances of the probate case were relevant to the general case of oppression because they showed the animosity between Mr Bob Bosnjak and Mr Jim Bosnjak as well as (allegedly) the length Mr Jim Bosnjak would go to, to ensure that Mr Bob Bosnjak did not control Holdings. He thought this submission was valid and said he would take it into consideration when dealing with oppression as a whole, but added that it did not make him revise anything he had said about legitimate expectations.

338 (d) The National Bus Company. National Bus Company Pty Ltd (NBC) was incorporated on 7 May 1993. At all material times its two shareholders and two Directors were Mr Jim Bosnjak and Mrs Carol Bosnjak. NBC tendered for and on 26 September 1993 obtained a contract with the Victorian government to acquire a substantial part of the Public Transport Corporation's Melbourne bus services. Mr Bob Bosnjak claimed that the way this was done was an incident of oppression and also constituted breaches of fiduciary duty by Mr Jim Bosnjak and Mrs Carol Bosnjak in that they took personal advantage of a corporate opportunity.

339 Young J regarded this matter as important in the case and dealt with it in detail. Paragraphs 340 to 341 following summarise his reasoning about and findings of fact leading to his principal factual conclusions.

340 On 10 March 1993 the Victorian government by advertisement and news release called for expressions of interest in a contract into which (in substance) NBC later entered. Mr Jim Bosnjak was interested in tendering for the contract and spoke to Mr Bob Bosnjak about it. Although the evidence of the two men about what was said between them on this subject was in sharp conflict in many respects, on any view of the evidence Mr Bob Bosnjak was completely opposed to Holdings having anything to do with the Victorian proposal. Considerable work was involved in preparing tender documents, the first of which was called the Expression of Interest document and which was lodged in the name of Holdings on 13 April 1993. The address of this document was that of Mr Jim Bosnjak's office at his home at Edensor Park, not Holdings usual Northmead address.

341 The final paragraph of the covering letter said " 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. "

342 From then on, Mr Jim Bosnjak busied himself and various employees of Holdings in pursuit of the Victorian contract. 343 The plaintiff submitted before Young J that the evidence showed that the use of Holdings employees was of some significance. Young J made two particular findings in the defendants' favour on these issues. He also made a more general finding in favour of the plaintiff. The first of the particular findings concerned Mr Ash. Young J said: " The evidence shows that Robert Ash was involved in NBC. He regularly sent NBC invoices for time spent and out of pocket expenses which it paid. Mr Ash says that this was for work on his own time. On the balance of probabilities, I should accept that this is so. " 344 The second particular finding concerned a claim that employees at Edensor Park had worked for NBC. Young J said: " In my view any use by NBC of Westbus' employees only occurred to a minimum extent and only at Edensor Park and is not a significant factor in this case. " 345 NBC was incorporated on 7 May 1993.

346 By the end of May 1993 Mr Jim Bosnjak had arranged an overdraft and leasing facilities for NBC with the National Australia Bank.

347 On 28 May 1993, the tender document was lodged on behalf of NBC. It stated that the shareholders of NBC were the proprietors of the majority interest in Holdings. Some information of Holdings was also given.

348 Shortly before the time for tenders closed, Mr Jim Bosnjak, according to his evidence, told Mr Bob Bosnjak that most of the papers for the tender were ready to go and asked him whether he had given it any more thought. His evidence was that Mr Bob Bosnjak replied: "I told you before I'm not going into this with you or anybody else. If you want to go for it, you go for it - I don't want anything to do with you. Get out of here and don't come back." Mr Bob Bosnjak denied this conversation, and some others to like effect about this time. He said that in the period March, April, May 1993 the subject had been mentioned only twice. Once, when Mr Jim Bosnjak had said to him that he understood the Melbourne bus system was going up for tender and that "We should have a look at this, what do you think?" to which he replied in words to the effect, "We have got enough problems here. Never mind about going to Melbourne". The other occasion was during a conversation between him, Mr Roger Graham and Mr Jim Bosnjak in which Mr Graham said he had been doing some work for the Victorian Government who were going to call for tenders for the privatisation of the Metbuses and then said, "Perhaps you should have a look at it". Mr Bob Bosnjak said that he had said, "No we have enough problems up here", that Mr Jim Bosnjak had said "I would like to have a look at it" and he, Mr Bob Bosnjak had said, "I don't think that we should as we have enough problems to take care of without going to Melbourne". Young J said that, on balance, he accepted the evidence that Mr Jim Bosnjak and Mr Bob Bosnjak had had the conversations to which Mr Jim Bosnjak had sworn.

349 On 23 August 1993 the Victorian government announced that NBC had succeeded in its tender. 350 Young J noted that financial projections (made at the time of the tender) put before him showed that NBC would incur losses for perhaps three years, and that that had happened, but that as matters stood when the proceedings were before him it seemed that NBC had or would soon become quite profitable.

351 Young J's principal findings were: senior staff of Westbus were used to do work for NBC (this is the more general finding I mentioned in par 343); the Melbourne bid involved the skills of Mr Jim Bosnjak but his expertise, although doubtless gained from Westbus, was his own, and his use of it was not a use of Westbus property; the opportunity to tender for the Melbourne contracts was a business opportunity available to Holdings; there was a real possibility of competition between Westbus and NBC, although certain steps taken by Mr Jim Bosnjak had reduced that possibility as a practical matter; Mr Jim Bosnjak was concerned that Mr Bob Bosnjak might find out more than Mr Jim Bosnjak was willing to tell. Although Young J thought this was because Mr Jim Bosnjak did not want Mr Bob Bosnjak to sabotage the bid rather than to deprive Mr Bob Bosnjak or Westbus of the opportunity of being involved in it, nevertheless he thought there was "something furtive" about the tender, and the "apparent stealth with which [it] was submitted".

352 The legal conclusions that Young J drew from his review of the facts were that: Mr Jim Bosnjak and Mrs Carol Bosnjak had been in breach of their fiduciary duties to Holdings; there had been no consent by the company to such breaches; there had been no fully informed consent by the Directors; rules concerning waiver and dispensation did not assist the defendants; the abstraction by Mr Jim Bosnjak and Mrs Carol Bosnjak from Holdings of the corporate opportunity which had occurred was oppressive to the "members as a whole"; accordingly, he would take this matter into account when considering whether the total conduct of the majority was oppressive.

353 Young J then said that the appropriate form of relief for appropriation of a corporate opportunity was to have the majority recompense the company for the real loss; there was usually no call for a buy out order; this was because the substance of such a procedure was to short-circuit the ordering of the company to commence proceedings against the majority to refund their profits. His view was that this would make it necessary for him to consider what would be the order for recompense that would be made in an action by the company against the majority. He noted that for Mr Bob Bosnjak it was contended that he should order that the property gained by the breach of fiduciary duty should be held on trust for the company, but that it was contended for Mr Jim Bosnjak there should simply be an order for an account of profits for a period. He then said that he would leave the question of remedy until later in his reasons.

354 Another aspect of the NBC matter which Young J thought he should take into consideration was the stage at which Mr Bob Bosnjak had sufficient knowledge about it to be able to commence proceedings. His conclusion was that by 10 January 1994 Mr 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.

355 (e) The Edensor Park Depot. This head of complaint was that when Holdings moved its ordinary bus operations from the Edensor Park Depot to Bonnyrigg, the Edensor Park Depot was kept for the benefit of NBC, not Holdings. Young J found that the depot was being used for Holdings' purposes, that there was no support for Mr Bob Bosnjak's contention that employees stationed there were spending significant time on NBC affairs, and that this matter gave no support to the plaintiffs' oppression case.

356 (f) Transcard. In regard to this, Young J recorded that a company known as Cabcharge proposed a joint venture with Holdings which would promote a stored value card called Transcard. This would be used by passengers in taxis and the company's buses to pay fares. Mr Jim Bosnjak became a director of the Transcard company. He also became a shareholder, his share being held for him by a nominee. Westbus entered into a service agreement with the Transcard company. The joint venture had advantages for Westbus. Mr Jim Bosnjak did not make known to Holdings his personal interest in Transcard. He personally became responsible for a share of the development costs of Transcard amounting to $902,868. The venture turned out not to be profitable, and Cabcharge bought out his interest for the amount he owed for his share of the development costs.

357 Westbus had spent money and used the time of its employees in promoting the Transcard. There was no authorisation of this expenditure at board level. Reasons were given in evidence for the lack of a board resolution. Young J was not impressed by some of these. He said: "The evidence gives me the firm impression that the Transcard affair was being carried on by Jim Bosnjak under a cloak of secrecy".

358 Young J held that the Transcard matter was a significant illustration of oppression but said it was of the type that called for money to be paid back into the Company rather than for a compulsory purchase of shares. His conclusion was: " It is not obvious from the material presently before the court whether there was a profit, but it is clear that the Westbus group did expend considerable sums on the project which were spent without proper authority and which, in my view could not be justified by some expectation of benefit to Westbus. Of course, the vice here is the conflict of interest and duty of a fiduciary. In such case, it usually matters not that the fiduciary has made no profit so long as the principal has suffered loss, or that the principal has suffered no loss as a result of the fiduciary making a profit, see Mason and Carter, Restitution Law in Australia (Butterworths, Sydney, 1995) para [1712]; Jackman, The Varieties of Restitution (Federation Press, Sydney, 1998) page 123; see also Humphris v Jenshol (1997) 25 ACSR 212. I will deal further with this matter in section 6(b). It is sufficient for the present merely to say that there will be need for an accounting before the Master or a referee. " (Section 6(b) dealt with the remedies of constructive trust and account of profits.)

359 (g) Declining Results of Holdings. Young J listed a number of managerial business decisions which the plaintiff argued were responsible for a significant decline in the profits of the company, concerning for example, the location of the head office. Young J held that although there was some substance in the criticisms, all the decisions were of a kind which reasonable Directors could have made and with which the court would not interfere. He said that one of the matters complained of (the withholding from Mr Bob Bosnjak of a report on renovations at Northmead) was again a case of important matters which were withheld from Mr Bob Bosnjak which reinforced his overall case. Subject to that, this head of complaint was not significant in the plaintiff's oppression case. 360 (h) Asset Split and Access to Books and Records. Young J dealt separately with the topics of (i) assets split and (ii) access to books and records. 361 As to the former, Young J recorded that Mr Bob Bosnjak had from time to time suggested that the way to end the arguments within the family was to split the assets of Holdings between himself and the rest of the family. However, Mr Bob Bosnjak's proposals never passed the stage, in Young J's opinion, of being nebulous, and he concluded that the reaction or non reaction to such proposals could not constitute oppression. 362 In regard to non access to books and records Young J summarised the history of Mr Bob Bosnjak's requests for access and occasions of refusals of his requests. In May 1995 the plaintiff and Mr Bob Bosnjak commenced proceedings in the Federal Court to obtain access, which resulted, in August 1995, in an agreement that certain records would be made available. The proceedings were dismissed in September 1996, by consent, after further undertakings had been given by the defendants. Young J said that the history of the litigation and of events after it showed that Mr Jim Bosnjak and Mr Mostyn should have provided Mr Bob Bosnjak with more information than they in fact did. 363 (i) Proposed Amalgamation of National Bus Co with Westbus. The plaintiff had claimed that from late 1996 NBC had been in financial difficulties and required a substantial injection of capital; that to deal with this problem Mr Jim Bosnjak and Mrs Carol Bosnjak had set in train a proposal to amalgamate NBC and Holdings; that the proposal had been prepared using the staff and expertise of Holdings; and that Mr Jim Bosnjak and Mrs Carol Bosnjak and/or their associated entities had accepted the proposal and transferred their shares in Holdings to NBC.

364 Young J found that there had been two proposals for amalgamation, both of which appeared to have arisen from severe liquidity problems in NBC.

365 The first began in May 1997. Mr Jim Bosnjak discussed with NBC's solicitors and accountants various ways by which there would be the merger of NBC and Westbus which would then be floated as a public company in which the Bosnjak family would hold 60 percent. Mr Jim Bosnjak gave evidence that he had been advised by the proposed underwriters that the float would not succeed if there were dissident directors; each version of the proposal involved a "Bob free" structure, although Mr Jim Bosnjak said this would be temporary only. NBC's solicitors sent a letter dated 10 July 1997 to Mr Bob Bosnjak setting out a proposal involving these features, and saying that as an alternative Mr Jim Bosnjak and Mrs Carol Bosnjak were prepared to buy Mr Bob Bosnjak's share in Holdings at valuation. The letter gave Mr Bob Bosnjak until 18 July 1997 to indicate his acceptance or otherwise. He rejected the offer and commenced the instant proceedings on 28 August 1997.

366 The second proposal was presented to Mr Bob Bosnjak on 24 November 1997, after the proceedings had begun, and he was given three days to make his decision. This proposal, which was a refinement of the first one, was considered by the board of Holdings on 27 November 1997. Mr Oliver, the manager of NBC, told the board that the report which was on that day put before them embodying the proposal had taken him and Mr Ash four weeks to prepare. Mr Bob Bosnjak asked for a seven to 14 day adjournment of the meeting, since he had only had the relevant papers three days, but his motion had no seconder, and failed. The board then voted to accept the proposal, by majority of two to one (the one being Mr Bob Bosnjak). Various associated motions were then passed by the same majority. On the same day transfers to NBC of the of the two sevenths of the shares in Holdings controlled by Mr Jim Bosnjak and of the two sevenths of the shares in Holdings controlled by Mrs Carol Bosnjak were approved.

367 On 16 December 1997, Cohen J. by consent restrained any implementation of the resolutions of 27 November until further order.

368 Young J found that the real aim of the merger was to benefit NBC and/or to rid Westbus of Mr Bob Bosnjak. He also accepted evidence given by Mr Oliver that there were very real benefits to Westbus from the merger. Nevertheless, he said that he found it difficult to come to any other conclusion "than that the principal aim of the proposed amalgamation was to exclude Bob Bosnjak's influence even further". He went on to say that the interim injunction had put an end to any potential oppression by the amalgamation proposal. He rejected a submission for the defendants that any act by the majority concerning the amalgamation of NBC and Westbus was not an act in the affairs of the company. He added that because NBC now appeared to be profitable, Mr Bob Bosnjak no longer seemed to object to a merger so long as he had a one-third interest in the whole conglomerate.

369 (j) The role of Holdings in the proceedings. From the time the proceedings began until the day the trial began, Holdings contested the plaintiff's claims in the same way as an ordinary arms length litigant. Young J noted that a full defence was prepared by the company's solicitors, and that counsel were paid thousands of dollars for preparing for the hearing. He also commented on the number of vigorously contested interlocutory proceedings. In his opinion, the cases showed the majority should not permit the company to spend shareholders' funds in opposing suits brought by the minority under section 260. He also recorded that during the trial he had told the parties he would take notice of what had happened during the case management phase of the case and that they had acquiesced in this approach. He then referred to subsequent submissions made for the company to the effect that it was entitled to protect its own interests and that it had not gone further than doing that.

370 Young J's conclusions were: " In my view, the extent of the defence by the Company went beyond merely protecting its discrete interests. Doubtless some part, perhaps even up to two-thirds of the Company's legal costs may well have been properly incurred. However, the balance of probabilities is that at least one-third of these costs were incurred to support the majority. This was authorised by the majority who did not just instruct Mr Mostyn to look after the Company's discrete interests, but to defend vigorously. This Mr Stitt QC and Freehill, Hollingdale & Page, both renowned for their vigour, duly did up to the first day of hearing. This 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 unauthorised expenditure: Martin v Australian Squash Club Pty Ltd (1996) 14 ACLC 452, 477. The amount of the unauthorised expenditure can be assessed by the Master or by a referee. "

371 (k) Generally The first matter Young J dealt with under this heading was the appointment of Mrs Carol Bosnjak to the board on 19 July 1993. This was said to have been an invalid appointment, motivated by Mr Jim Bosnjak's strategy to control the company. After a review of the relevant facts, Young J said that as there were only shareholders representing 57% of the shares present at the meeting, the meeting was incompetent to transact the business of appointing additional Directors. He also said there was almost certainly no valid notice convening the meeting. He went on: " Thus, As a matter of law, the appointment of Carol as a director was irregular to say the least. However, Bob Bosnjak in due course recognised Carol as a director. He says that the problem was that she joined Jim in turning the administration of the company in such a way as he was effectively excluded from participating in management decisions. The appointment was invalid or irregular. It may be that it would have been validated under s 1322 of the Corporations Law, but that never arose. I would accept that the reason for the appointment of Carol was not any conspiracy against Bob Bosnjak, but an attempt to break the deadlock which was being caused by Bob Bosnjak not attending directors' meetings. " 372 Young J also referred to allegations in the Statement of Claim of miscellaneous matters which taken with the other matters he had dealt with were said to constitute oppression. These included defamation proceedings being maintained by Mr Mostyn against Mr Bob Bosnjak at the expense of Holdings for alleged defamatory remarks made about Mr Mostyn at Directors' meetings, and general continued denigration by Mr Bob Bosnjak.

373 Mr Bob Bosnjak had defended the defamation proceedings and had also cross claimed in defamation. The proceedings had not been heard when the case was before Young J who said that as a consequence he could not assess the significance of their subject matter.

374 The other matter dealt with by Young J under this heading was a complaint that Miss Sandra Bosnjak (Mr Bob Bosnjak's daughter, employed in the business) had been victimised by Mr Mostyn with the encouragement of Mr Jim Bosnjak and Mrs Carol Bosnjak. Young J held there was insufficient evidence to make out this allegation. 4. Procedural problems. 375 Under this heading, Young J dealt with a number of matters some of which it is not necessary to notice here because they are not essential to an understanding of his overall judgment and were not mentioned in the appeal. The others were what he referred to as core issues of procedure which he dealt with under the headings (i) the position of Fexuto as plaintiff; (ii) the role of section 260 (2) (g) of the Corporations Law; (iii) the rule in Foss v Harbottle; and (iv) the defence of laches.

376 (i) The position of Fexuto as plaintiff. Young J rejected a submission by the defendants that it would be wrong, because of the nature of Fexuto's position as a trustee, to equate Fexuto with Mr Bob Bosnjak. His opinion was that "the commercial reality of the situation" was that "the parties at all relevant times regarded and were entitled to regard the senior Bosnjak member of the trustee company as being substantially the persona of the company".

377 (ii) The role of s260 (2) (g) of the Corporations Law. After referring to authorities, Young J said he was of the opinion that s 260 (2) (g) could be used to short-circuit the requirement that a company must be the plaintiff in proceedings against those who had committed misfeasances against it and to short-circuit the requirement that if the company did not proceed, a shareholder could bring an action only in limited circumstances. He approved of the plaintiff's submission that the trend of recent amendments to s 260 was to ensure that the court was invested with plenary power to deal with all types of variegated oppression with whatever weapon seemed just and equitable.

378 (iii) The rule in Foss v Harbottle. Young J referred to the various exceptions to the rule in Foss v Harbottle - and in particular to the exceptions where the wrongdoers are in control of the company and when justice so requires. After discussing the authorities, he said that he could "see no problem with ascribing to the legislature a commercially realistic, non-technical rule that, in the proper case, there can be a short-circuiting of procedures by use of s.260 (2) (g), either by authorising the oppressed to bring an action in the name of the company or for a buyout of shares on the basis that the accounting that would come about as a result of that action were done here and now". He added that if it were necessary to do so he would permit the plaintiff to bring a derivative action under the "when justice so requires" exception. 379 (iv) Laches. Young J was of the view that delay and laches were relevant only to the type of relief that might be granted. 5. Assessment of Oppression . 380 Young J began this section by observing that although there might well be cases where each single allegation could not be regarded as showing oppression he must nevertheless assess the totality of the allegations to see if there was oppression. He indicated that having considered the particular allegations separately he would now look at the overall picture. First he considered the law. 381 (a) The Law. After discussing the way in which, according to earlier case law, s 260 should be applied, Young J concluded that the individual elements mentioned in the section should be considered merely as different aspects of the essential criterion, commercial unfairness; the section should be applied broadly, but not lightly; it is legitimate for the majority to use its numbers to achieve its wishes by voting at meetings; oppression is not normally established simply by showing that the majority are in control of the company, that the person claiming oppression is consistently outvoted or that the majority have made commercially questionable decisions. He cited Lush J. who said in Re M Dalley and Co Pty Ltd that the mere disadvantages of being in a minority, no matter how "galling and even financially damaging these may be... do not in themselves constitute oppression...".15

382 On the other hand, he said, even if shareholders or Directors are exercising their powers lawfully in strict legal terms, that will not be an answer to the claim of oppression if the result of their exercise of their powers has been unjust detriment to those who complain; it was not fatal to the plaintiff's case that Mr Bob Bosnjak may not have been blameless in his conduct; however, if the majority's conduct were the natural results of the conduct of the minority, that conduct would be assessed against the background and might have lesser significance than it otherwise would have; any remedy given by the court for oppression must relate to eliminating the oppression found.

383 (b) The total facts of the case. Young J then expressed his conclusions about oppression, taking an overall view of the facts of the case. 384 His conclusions were: " I have noted in various parts of these reasons, particularly in section 3(b) that various complaints that Bob made, were, at least in part, justified. The senior staff, particularly Messrs Mostyn and Ash did act partially in Jim Bosnjak's interest and tended to by-pass Bob. There is no doubt in my mind that the attempts to create a 'Bob free environment' by the majority did affect Bob's rights as a member of the company even putting aside any legitimate expectations of management. Bob's general attitude may have been seen by the majority as meaning that they could not work together. However, contributory negligence is no defence to oppression. The majority must respect the rights of the minority no matter how difficult or trying they might consider that to be. Looking at the conduct of the majority as a whole, I must ask myself whether there has been conduct of the affairs of Holdings and Westbus which is unfair to Bob judged from the point of view of the reasonable observer. In my view the conduct does step over the mark. Bob Bosnjak, despite his personality was entitled to be consulted much more than he was. Despite his propensity for abusing people who approached him, there was no reason why at least key proposals could not have been submitted to him in writing. His views as to the change from management by the directors to management by executives and to the use of consultants were entitled to be given greater heed than they were. However, for reasons which follow, I consider that the appropriate remedy for the oppression is, if Bob Bosnjak so wishes, his shares be purchased by the majority after there has been an actual or notional accounting for monies which should be returned to Holdings. " 6. Remedies . 385 (a) Young J reached the conclusion that the established oppression should be met by ordering an accounting and by continuing the existing interim injunction permanently or at least until an amalgamation proposal was presented before an appropriately constituted board.

386 (b) He then turned to the misfeasances/breaches of fiduciary duty which he had found established in regard to the NBC and Transcard matters. He thought an account of profits was the proper course to follow to remedy these aspects of oppression. In regard to the NBC matter he found that Mr Jim Bosnjak and Mrs Carol Bosnjak genuinely believed that Mr 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. Although stated unconditionally, the last finding may not have been unconditional, both because of some of Young J's earlier findings and because he went on to say that: " Even if there was dishonesty in the case of the NBC, I would consider that this was a case where, notwithstanding the dishonesty, a sizeable allowance would need to be made to the erring fiduciaries for their efforts. " 387 In considering the extent of the remedy he should order, Young J said that no Westbus money went into NBC, Mr Jim Bosnjak and Mrs Carol Bosnjak financed the acquisition from their own resources, and they bore all the financial risks. He also referred to the fact that Mr Bob Bosnjak waited a considerable time before commencing the oppression proceedings. He had waited until after NBC began to be profitable and then asked for a one-third share even although he had had adequate knowledge to commence proceedings by 10 January 1994. The result. 388 Findings on which the result was based. In Section 3(b) of his reasons, Young J appears to have found against the plaintiff's claim that the denial of what were said to be Mr Bob Bosnjak's legitimate expectations was oppressive. Indeed he seems to have found that Mr Bob Bosnjak had had no legitimate expectation. However, when he came to his Section 5 "Assessment of Oppression", he began by saying (as I understand it) that he must assess the totality of the allegations to see if there was oppression, including allegations which taken individually would not support a finding of oppression. Then, when he dealt in Section 5(b) with "The Facts of This Case", after recording that there had been oppression in relation to NBC, Transcard and payment of the company's costs of the proceedings to assist the majority position, and having said that he would set Mr Bob Bosnjak's legitimate expectations to one side because they had not existed when the proceedings began, he repeated that "those facts" which I take to be those dealt with under the "legitimate expectation" subheading, could, when married with the other facts lead to a conclusion that the conduct of the majority had been burdensome, harsh and wrongful. He then said that he had noted in various parts of Section 3(b) (which dealt with "legitimate expectation") that various complaints that Mr Bob Bosnjak had made were, at least in part, justified. This led into the passage which I have set out in par 384 above. Thus, the basis for his final conclusion of oppression was the behaviour of the majority in relation to NBC, the behaviour of Mr Jim Bosnjak in relation to Transcard and the behaviour of the majority concerning payment of the company's costs of the oppression proceedings themselves, and also, as matters supporting that conclusion, although not on their own requiring it, those complaints that had been discussed by Young J in Section 3(b) which he found were at least in part justified. 389 The orders. Young J published reasons on 9 September 1998 at the end of which he outlined the substance of the orders he thought should be made. In order to give the parties time to digest them and make submissions about their exact form, he stood the proceedings over for further argument about the form of the orders and costs. This argument took place shortly afterwards (29 October 1998) and was followed by written submissions. The oral and written submissions raised further matters of dispute. His Honour dealt with these when delivering further reasons on 4 November 1998 as a preliminary to and in explanation of the formal orders that he made on that day. Also during the further submissions, some matters concerning changes in ownership of shares in Holdings and the amalgamation of Holdings and NBC which had not previously been before the court were made known to the judge; also there was discussion of how some matters which would still need to be decided following the making of the orders should be resolved. These recent events are noted later and were reflected in the final orders, which were as follows: " The Court declares:- 1. That he 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. The Court orders:- 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 Defendant's 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 to be 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 observed. 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 'PX1001' 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. 8. Should the Plaintiff fail to elect as provided in Order 2, the Court orders: (a) that the Second Defendant account to any profits made by reason of his involvement in the Transcard Transaction referred to in paragraph 80D of the Statement of Claim as lastly amended; (b) that the Defendants other than the First and Sixth Defendants account for the profit made as at 10 January, 1994, being the value of the shares in National Bus Company Pty Limited as at that date less the sum of $2.00. (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 interest of the First Defendant. (d) provided that in the account referred to in (b) should the said Defendants show that any just allowance should be made for the Defendants risks, skills and expertise and other expenses such allowance must be made. Provided further that the inquiry 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 the directions as to the said inquiry. 10. Order that the said Defendants pay to the First Defendant the monies found to be due on such inquiry. 11. Note the 'Independent Directors Agreement' initialled by me and placed with the papers. 12. Stand over to 26 November, 1998 at 10.30 am to deal with the submissions as to costs. Direct parties to exchange submissions by 23 November, 1998 with copies to the Court. " 390 The agreement referred to in Order 11 was as follows: " independent directors agreement Note the agreement ('the Independent Directors Agreement') between Holdings, Jim Bosnjak, NBC, Bob Bosnjak, Fexuto Pty Limited and Gloria Bosnjak that: 1. The existing directors of Holdings will appoint to the board of Holdings two independent directors to be nominated by T R Morling QC; 2. The independent directors will hold office until 31 March 1999; 3. The directors of Holdings will consider a proposal for an amalgamation of the businesses of each of Holdings and NBC; 4. Bob Bosnjak and the two proposed independent directors will vote on the amalgamation proposal; 5. Jim Bosnjak and Gloria Bosnjak will not vote on the amalgamation proposal; 6. Until 31 March 1999 or until any decision of the directors of Holdings pursuant to paragraph 3 above, no other steps shall be taken by or on behalf of Holdings to pursue any amalgamation proposal other than as outlined in paragraphs 1 to 5 of this Schedule. " the appeal .

Events between Young J's orders and hearing of the appeal.

391 What happened, and what did not happen, pursuant to Young J's orders was arguably relevant to the relief this court would grant if it were to uphold any part of Mr Bob Bosnjak's appeal. This led to applications being made to this court both for leave to amend the notice of appeal and for the reception of further evidence. 392 The main point of the amendments was to seek alternative relief of different kinds in the event the appellant did not get what it was primarily asking for. One of these alternatives, now asked for for the first time, was, if all else failed, the winding up of Holdings. The court refused this last proposed amendment but allowed the others.16 393 Orders sought under the amended notice of appeal. The substance of the orders which Fexuto seeks to retain and obtain is as follows: (a) (i) " an inquiry as to the appropriate matter to split the assets of Bosnjak Holdings and the appropriate method of implementing such a split having regard to the assets and liabilities of Bosnjak Holdings so as to enable Bob Bosnjak and Fexuto Pty Ltd to continue their involvement in the operation of bus services ";17 or (ii) an order that " National Bus Company Pty Limited sell its shares in Bosnjak Holdings to Fexuto Pty Ltd ";18 or (iii) an order " in the event that the Court orders that Fexuto Pty Ltd be entitled to elect to have its shares in Bosnjak Holdings Pty Ltd purchased by [Jim Bosnjak and Feyama] at fair value, that Fexuto be given 14 days from the date of such order to elect to do so ."19 (b) (i) an order that " National Bus Company Pty Ltd pay to Bosnjak Holdings an amount equivalent to the value of its assets (not taking into account its shares in Bosnjak Holdings and any costs of acquiring the same) " as at an appropriate date, together with interest;20 or (ii) an order that Jim and Carol Bosnjak and their companies and NBC " account to Bosnjak Holdings Pty Ltd for the profit made from the National Bus Company Pty Limited transaction ", with a direction either that that profit " be the value of the shares in National Bus Company Pty Limited " as at an appropriate date " less $2 " or " the value of the shares in National Bus Company Pty Limited, it to be value (sic) at 10 January 1994 by reference to " specified matters " taking into account the actual events that have transpired after 10 January 1994 ."21 (c) an order " that Jim and Carol Bosnjak compensate Bosnjak Holdings for the deleterious effect of their management on the results and performance of Bosnjak Holdings ".22 (d) (i) an order that Jim Bosnjak " account for any profit made by reason of his involvement in the Transcard transaction ";23 and/or (ii) an order that " Jim Bosnjak hold upon trust or transfer to Bosnjak Holdings any interest or rights in relation to shares or other property (including options) arising out of or in relation to his dealings over Transcard ";24 (e) an order that the respondents other than Holdings " account for any monies paid to solicitors and counsel for [Holdings] in these proceedings over and above those reasonably necessary for the protection of the interests of [Holdings] ";25 and (f) orders for costs, including indemnity costs.26 394 Notwithstanding the trial judge's conclusion that Holdings had had an excessive involvement in the litigation, it is not only a cross-appellant but asks that orders in its favour be set aside. The amended notice of cross-appeal seeks the following orders: " 1. Appeal dismissed. 2. Cross Appeal allowed. 3. Order that the Appellant pay the costs of the Respondents (other than Holdings) in this Court and in the Court below. " 395 The grounds stated in the notice of cross-appeal are as follows: " NBC 1. The trial judge erred in failing to hold that the Appellant consented to, acquiesced in, or waived any opposition to Jim and Carol Bosnjak pursuing the Victorian Bus Contract and conducting the business and operations of National Bus Company (NBC) on their own account.

2. The trial judge erred in failing to hold that it was unconscionable for the Appellant to assert and maintain its claim for relief in respect of the monies received, benefits derived and assets of, NBC, and that it should be estopped form doing so.

3. The trial judge erred in ordering that there be an account to [Holdings] of the value of the shares in NBC as at 10 January 1994, less the sum of $2.00 and subject to just allowances.

Transcard 4. The trial judge erred in ordering that there be an account to [Holdings] of any profits made by Jim Bosnjak by reason of his involvement in the Transcard transaction.

Relief 5. The trial judge erred in holding that the circumstances gave rise to an exception to the rule in Foss v Harbottole and that s260(2)(g) of the Corporations Law could be used to short circuit the requirement that the Company must be the Plaintiff in proceedings against those who have committed misfeasances against it. ……….

6. The trial judge erred in holding that the total facts of the case amounted to an all over view that the conduct of the majority was burdensome, harsh and wrongful.

7. The trial judge erred in ordering that the [Jim and Carol and their companies and NBC] pay 50% of the costs of the Appellant. " 396 Also remaining in the amended notice of appeal was a claim for a declaration and order that Mr Jim Bosnjak's and Mrs Carol Bosnjak's NBC shares were held on constructive trust for the benefit of Holdings.27 When counsel for the appellant was asked about the apparent inconsistency between maintaining an entitlement to this order and what was sought in order (b)(i) above, he explained that the order the appellant was primarily seeking in regard to NBC was order (b)(i), and that this was to avoid possible complications arising from the changes in ownership of the shares in NBC, and that the constructive trust order was left in because it was thought that a conclusion along the lines that would have led to such an order would be a necessary step in the reasoning that would uphold the making of an order such as order (b)(i). 397 The further evidence. After argument and discussion concerning the further evidence application, two letters and some of the facts derived from an affidavit of Mr Bob Bosnjak sworn 5 June 2000 were accepted as evidence in the appeal, subject to relevance. The court gave reasons for these decisions at the time.

398 The first of the two letters (Exhibit 3 in the appeal) was dated 23 October 1998. It was from Fexuto's solicitors to the Board of Directors of the National Express Group PLC, England (NEG). As it contains some arguably relevant factual history in convenient form, I summarise it fairly fully. 399 In the letter the solicitors explained the way in which the issued capital of Holdings was held. It went on to say that they had obtained for the first time, on 13 October 1998, a copy of a Memorandum of Understanding (MOU) between Mr Jim Bosnjak and NEG and had also obtained copies of related communications. They said the purpose of the letter was to place NEG on notice of certain matters relevant to the proceedings before Young J.

400 The letter explained the nature of the proceedings, the relief sought by Fexuto, and the position the proceedings had reached at the date of the letter. Copies of his Honour's reasons and the principal pleadings were enclosed. It was said that it was likely there would be an appeal against Young J's final orders. The possibility of an application for special leave to appeal to the High Court was mentioned. Thus, it was said, the proceedings might not be finally resolved for a considerable period of time. The letter then summarised Young J's findings in regard to the NBC issue, the Amalgamation Proposal and the "buy-out" issue between shareholders and asserted that Mr Bob Bosnjak had only learned on 11 September 1998 of a proposal that an unnamed "interested party" might provide a capital injection or take up an equity position in NBC and further that as at 15 September Mr Bob Bosnjak had had no knowledge of the MOU.

401 The letter then said that Mr Bob Bosnjak had commenced proceedings for an injunction restraining NBC from entering into any agreement relating to dealings in its shares; that on 2 October 1998 Mr Jim Bosnjak, Mrs Carol Bosnjak and NBC had given undertakings to the court not to enter into any such agreement; and that on 15 October 1998 Young J had extended the undertakings up to and including 29 October 1998.

402 In later paragraphs the letter set out Fexuto's view that entry into any agreement pursuant to terms of the MOU by Mr Jim Bosnjak would be in breach of the rights of Holdings and that should NEG proceed to acquire a shareholding interest in NBC pursuant to the MOU, Fexuto would take any necessary steps to ensure that any interest acquired by NEG in NBC would be transferred to Holdings, or to obtain appropriate restitutionary relief.

403 Complaint was further made of aspects of what was said to have been a negotiation that had been going on for a considerable time between NEG and Mr Jim Bosnjak, including, by way of example, an allegation that NEG officers had met with Mr Oliver CEO of NBC in circumstances where Mr Jim Bosnjak told NEG that Mr Oliver was acting jointly on behalf of NBC and Holdings, which, the letter asserted, was not correct.

404 The letter ended by suggesting a meeting between Mr Bob Bosnjak and NEG prior to the further hearing of the proceedings on 29 October 1998.

405 Some of the further facts received in evidence in the appeal occurred before 21 June 1999 (the date of the other letter admitted into evidence). These were as follows: By December 1998 Mrs Gloria Bosnjak, Mr Jim Bosnjak's wife, had replaced Mrs Carol Bosnjak as a director of Holdings; on 23 December 1998 Messrs Docherty and Pollard were appointed as independent Directors of Holdings to consider a proposal to amalgamate NBC and Holdings; on 29 March 1999 the board of Holdings resolved not to take further action on the amalgamation proposal at which time the independent Directors resigned; in May 1999 NEG purchased the entire issued capital of NBC (and thus acquired a four sevenths interest in Holdings) from Mr Jim Bosnjak; at a meeting of Directors of Holdings on 17 May 1999 Messrs White and Rendall were appointed as Directors, representing NEG (Mr Jim Bosnjak and Mrs Gloria Bosnjak voting in favour; Mr Bob Bosnjak against); on 11 June 1999 Fexuto started a second oppression proceeding; in June 1999, Fexuto and NEG agreed, as an interim resolution of Fexuto's claim for interlocutory relief in the second oppression proceeding, that: a) Mr Bob Bosnjak was to remain a director of Holdings b) the non dividend policy was to stand c) NEG and Mr Bob Bosnjak were to negotiate as to Mr Bob Bosnjak's future role in Holdings 406 The second of the two letters, Exhibit 1 in the appeal, dated 21 June 1999, was from the solicitors for the defendants to the solicitors for the plaintiff Fexuto. The letter recorded an agreement between the plaintiff and the defendants in the second oppression proceedings as follows: " 1. The members meetings of the Bosnjak companies convened for 23 June 1999 will lapse with the agreement of all shareholders. This will mean the shareholders will not attend personally, or by proxy or by representative, the meetings of the Bosnjak companies convened for 23 June 1999 or any adjournment thereof.

2. The effect of the lapse of the meetings will be that the current composition of the boards is not changed and our client reserves its rights to remove Mr Bob Bosnjak as a director of the various Bosnjak companies, but shall give your client 4 weeks notice. 3. The recommendations of the directors in relation to the dividend policy stand. That is to say, no dividends will be paid in the year commencing 1 July 1999 unless the directors otherwise decide.

4. Messrs White and Bosnjak will meet on 22 June 1999 to discuss the costs of the proceedings, your client's salary package, management systems, and board structure, including the resignation or removal of Mrs Gloria Bosnjak as a director of the Bosnjak companies. To avoid any misunderstanding, this paragraph does not mean the outcome of those discussions must be to the satisfaction of Mr Bob Bosnjak, but rather that the parties meet and hold those discussions in good faith. 5. The notice of motion will be dismissed with costs reserved.

6. The plaintiff will not in the present proceedings (save as to the question of costs) pursue the issues of whether; -- the removal of Mr Bob Bosnjak from the boards of the Bosnjak companies or the prevention of Mr Bob Bosnjak remaining as a director on those boards in his capacity as a nominee of the plaintiff at the meetings convened on 23 June 1999 is oppressive; and

-- the taking of any steps to avoid the declaration of any dividend a further dividend in the Bosnjak companies in respect of the financial year ending 30 June 2000 is oppressive. " The letter ended by saying: " As noted by your client, our client disputes any suggestion that it has engaged in any oppressive conduct in relation to the affairs of the Bosnjak companies, and this agreement should not be construed as derogating from that position. " 407 The remaining facts admitted in evidence were: On 8 February 2000 at a general meeting of Holdings the number of Directors was increased from five to eight; the following were elected; Mr Bob Bosnjak, Mr Jim Bosnjak, Mr Phillip White, Mr Trevor Fletcher (Managing Director), Mr Robert Ash (Finance Director), Mr Richard Brown, Mr William Rollason and Mr Geoff Evans; Messrs White, Brown, Rollason and Evans were all NEG representatives; in about May 2000 the Bosnjak name commenced to be removed from the Westbus buses. The argument of the appeal . 408 The grounds in Fexuto's notice of appeal were grouped under the following headings: A. National Bus Company; B. Legitimate Expectation of Management; C. Declining Results of Holdings; D. Transcard, E. Other; and F. Costs. My discussion of these matters is intended to cover the detailed submissions put by both sides. As Legitimate Expectation of Management was the first topic argued by counsel for Fexuto, I will deal with it first.

Legitimate expectation . 409 Counsel for Fexuto made the general submission that Young J should have found legitimate expectation. Counsel for the respondents said Young J was right in deciding it had not been established. 410 Particular submissions supporting Fexuto's general submission were made in written and oral submission and included the following. After referring to the three questions that Young J had formulated, namely, had the legitimate expectation that Mr Bob Bosnjak would share in day to day management arisen; if it had, did it still exist; and if it still existed, had it been frustrated, it was submitted that he was in error in answering the first two questions no. Further, in regard to the second question, it was submitted that his apparent assimilation of the present case to Re Blue Arrow28 was unjustified, because of the marked factual difference between the cases. The arguments for the respondents supported the trial judge's conclusions, examined the evidence supporting them at length and additionally referred to the facts that Article 101 of Holdings' Articles provided for the appointment of a managing director and that there were no pre-emptive rights in the Articles. 411 My approach to the "legitimate expectation" question is based on the same complex of facts dealt with by Young J when he dealt with the question. Many of the facts are not in dispute. On disputed facts Young J made some explicit findings. I will use these unless I indicate otherwise. He also made some more general observations in his assessment of witnesses. In instances where it seems likely that other factual findings were influenced by those assessments I will use those findings on the same basis. 412 Young J also commented on the non calling of witnesses, on both sides, who he would have expected to be called. I do not think he made any findings of fact based on this comment. It is a matter on which I take a somewhat different view, and although I also do not base any specific inference on it, I think I should mention it. 413 Young J tended, I think, to treat the contending parties as equally subject to his comment. However in my view the comment applies with more weight to witnesses who were not called from the defendants' side. Young J named four witnesses he thought would be in the defendants' camp. One was Mr Graham who had intimate knowledge of company matters from 1980 onwards and was closely associated with the NBC matter. Another was Mr Jim Marsden, whose evidence could have thrown more light on the making of Mrs Anda Bosnjak's 1992 will, and also on Mr Jim Bosnjak's knowledge of problems concerning the passing of motions at general meetings. Another was Margaret Gibson of Price Waterhouse who was one of Mr Jim Bosnjak's advisers concerning the last mentioned problems. These were all witnesses on important issues in the case. The fourth was Mrs Gloria Bosnjak, Mr Jim Bosnjak's wife. I would not attach any particular tactical significance to her not being called. 414 The two witnesses mentioned by the judge who he thought might have been called on the plaintiffs' side were Mr Bob Bosnjak's wife and his daughter, Sandra. As with the non-calling of Gloria Bosnjak in the defendants' case, I would not attach particular significance to the non-calling of these two family members. 415 Before stating my own conclusions I again mention the fact that in the interval between Young J's decision in this case and the hearing of the appeal, further consideration had been given by Lord Hoffmann to his use in earlier company law oppression cases of the term "legitimate expectation". In Re a company; O'Neill v Phillips,29 Lord Hoffmann referred to the fact that in earlier cases he had used the term " as a label for the 'correlative right' to which a relationship between company members may give rise in a case when, on equitable principles, it would be regarded as unfair for a majority to exercise a power conferred upon them by the articles to the prejudice of another member. " 30 416 He mentioned that in Re Saul D. Harrison & Sons plc31 he had used as an example what he called "the standard case" in which shareholders had entered into association upon the understanding that each of them who had ventured capital would also participate in the management of the company and that in such cases it would usually be considered unjust, inequitable or unfair for a majority to use their voting power to exclude a member from participation in the management without being given the opportunity to remove the invested capital upon reasonable terms. Lord Hoffmann had said that the aggrieved member could be said to have had a "legitimate expectation" of either participating in the management or withdrawing from the company. 417 He now said that it was probably a mistake to use the term when in this area of the law the idea had already been sufficiently defined in other terms. He went on that when in Saul D Harrison he had said that legitimate expectation was correlative to the equitable restraint " I meant that it could exist only when equitable principles of the kind I have been describing would make it unfair for a party to exercise rights under the articles. It is a consequence, not a cause of the equitable restraint. A concept of a legitimate expectation should not be allowed to lead a life of its own, capable of giving rise to equitable restraints in circumstances in which the traditional equitable principles have no application. " 32 418 In his reasons for judgment, Young J had noted that although, following Lord Hoffmann's lead in earlier cases, the concept of "legitimate expectation" had been accepted in England in the area of company law presently in question, it had not been adopted in other jurisdictions, although the kind of consideration given by the courts elsewhere to the situations dealt with in England under the term was very much to the same effect. Thus, although, following Lord Hoffmann's comment in O'Neill v Phillips, use of the term may drop off in England, the application of the equitable principles which resulted in its adoption will continue. Lord Hoffmann discussed those equitable principles in an earlier section of O'Neill v Phillips under the heading "Unfairly prejudicial" in terms which, from the Australian point of view, are in my opinion substantially consistent with the way those words in s 260 of the Corporations Law have come to be understood and applied in Australia. His statement of the position provides a very useful background against which to approach the present case. 419 Lord Hoffmann first pointed out that in company law persons become associated for an economic purpose on terms "contained in the articles of association and sometimes in collateral agreements between the shareholders" so that the affairs of the company will be conducted according to rules agreed by the shareholders.33 Secondly, however, he said, " company law has developed seamlessly from the law of partnership, which was treated by equity, like the Roman societas, as a contract of good faith. One of the traditional roles of equity, as a separate jurisdiction, was to restrain the exercise of strict legal rights in certain relationships in which it considered that this would be contrary to good faith. These principles have, with appropriate modification, been carried over into company law. "34 420 He then briefly discussed three cases which have become well known in this area of the law, Ebrahimi, then Blisset v Daniel35 which was used as an example by Lord Wilberforce in Ebrahimi, and Re Wondoflex Textiles Pty Ltd36 (a decision of Smith J). He then continued: " I cite these references to 'the literal construction of the articles' contrasted with good faith and 'the plain meaning of the deed' and 'what the parties can fairly have had in contemplation' to show that there is more than one theoretical basis upon which a decision like Blisset v Daniel can be explained. Nineteenth century English law, with its division between law and equity, traditionally took the view that while literal meanings might prevail in a court of law, equity could give effect to what it considered to have been the true intentions of the parties by preventing or restraining the exercise of legal rights. So Smith J speaks of the exercise of the power being valid 'in law' but its exercise not being just and equitable because contrary to the contemplation of the parties. This way of looking at the matter is a product of English legal history which has survived the amalgamation of the courts of law and equity. But another approach, in a different legal culture, might be simply to take a less literal view of 'legal' construction and interpret the articles themselves in accordance with what Page Wood V.-C. called 'the plain general meaning of the deed'. Or one might, as in Continental systems, achieve the same result by introducing a general requirement of good faith into contractual performance. These are all different ways of doing the same thing. I do not suggest there is any advantage in abandoning the traditional English theory, even though it is derived from arrangements for the administration of justice which were abandoned over a century ago. On the contrary, a new and unfamiliar approach could only cause uncertainty. So I agree with Jonathan Parker J when he said in In re Astec (B.S.R.) Plc [1998] 2 BCLC 556, 588: 'in order to give rise to an equitable constraint based on "legitimate expectation" what is required is personal relationship or personal dealings of some kind between the party seeking to restrain such exercise, such as will affect the conscience of the former.' This is putting the matter in very traditional language, reflecting in the word 'conscience' the ecclesiastical origins of the long-departed Court of Chancery. As I have said, I have no difficulty with this formulation. But I think that one useful cross-check in a case like this is to ask whether the exercise of the power in question would be contrary to what the parties, by words or conduct, have actually agreed. Would it conflict with the promises which they appear to have exchanged? In Blisset v Daniel the limits were found in the 'general meaning' of the partnership articles themselves. In a quasi-partnership company, they will usually be found in the understandings between the members at the time they entered into association. But there may be later promises, by words or conduct, which it would be unfair to allow a member to ignore. Nor is it necessary that such promises should be independently enforceable as a matter of contract. A promise may be binding as a matter of justice and equity although for one reason or another (for example, because in favour of a third party) it would not be enforceable in law. I do not suggest that exercising rights in breach of some promise or undertaking is the only form of conduct which will be regarded as unfair for the purposes of section 459. For example, there may be some event which puts an end to the basis upon which the parties entered into association with each other, making it unfair that one shareholder should insist upon the continuance of the association. The analogy of contractual frustration suggests itself. The unfairness may arise not from what the parties have positively agreed but from a majority using its legal powers to maintain the association in circumstances to which the minority can reasonably say it did not agree: non haec in foedera veni. It is well recognised that in such a case there would be power to wind up the company on the just and equitable ground (see Virdi v Abbey Leisure Ltd [1990] BCLC 342) and it seems to me that, in the absence of a winding up, it could equally be said to come within section 459. " (at 1100-1102) 421 Although by the time the present appeal came to be argued, Lord Hoffmann's doubt about the wisdom of using the term "legitimate expectation" in the area of the law now in question was well-known to the parties, (a number of their submissions referred to aspects of O'Neill v Phillips), they continued to use the term in both written and oral submissions. It is a convenient shorthand term, so long as Lord Hoffmann's caveat about its proper significance is kept in mind, namely that it is a consequence not a cause of equitable restraint upon legal rights. It seems to me to be a useful label for describing the result of the way in which equitable considerations operate. It is difficult to find a short counterpart for it. I will therefore use it, as counsel did, in the sense defined by Lord Hoffmann. 422 One of the notable features in the long passage I have set out from Lord Hoffmann's opinion in O'Neill v Phillips is his adoption of what Jonathan Parker J said in In re Astec. That adoption and what he himself said in his following paragraph make it clear that the equitable considerations which give rise to a "legitimate expectation" themselves grow out of the relationships and dealings between the parties and the whole of their conduct in regard to one another. This seems to me to support a wider approach to the question whether equitable considerations have given rise to a "legitimate expectation" in a particular case than is recognised by the six propositions which Young J drew from the authorities. 423 I set out those six propositions in par 324. Subject to what I have just said I agree generally with the first five of these propositions, although I think more is to be drawn from the cases than they contain. I have reservations about the sixth. In my view, in some circumstances if it is no longer practicable for the expectation to continue, that may cause it to be lost; but it would all depend on the particular circumstances of the case, and there will be cases where even if it is no longer practicable for the expectation of continuation in management to continue that will not bring the considerations leading to that legitimate expectation to an end. For example, the party enjoying the legitimate expectation will certainly in some such circumstances be entitled to be bought out. 424 Fexuto's legitimate expectation claim was pleaded in par 28C of the final version of the statement of claim as being "a legitimate expectation that its nominee on the Board of Directors, Bob Bosnjak, would be in a position at all material times to effectively participate in the management of Holdings". 425 This was the legitimate expectation for which Fexuto argued at the trial, and also on the appeal. In rejecting the contention at the trial, Young J divided the time from the start of the business in 1955 up to the commencement of the proceedings in 1997 into different periods. Mainly because of the legal controls that were available to the parents, and in particular to Mr S. Bosnjak, both until 1975 and until the death of Mr S. Bosnjak in 1979, Young J thought that no legitimate expectation of the type contended for by Mr Bob Bosnjak had arisen before 1975 or before 1979. 426 I have a different impression of the position from 1955 to 1979. That is that the business was from the beginning a family business, in which the father and the three sons were, as their ages permitted, the active principals. The family worked as a unit and, no doubt, the views of the father were generally adopted. However, specific evidence about what happened before 1975, and indeed 1979, about decision-making and allocation of duties was rather sparse at the hearing and is not enough to justify turning my impression into firm findings. 427 Even on the sparse evidence however, it is clear that all three sons contributed to the fullest extent of which they were capable in running the business and that each by 1975 would have been justified in regarding himself as an integral part of the ownership of the business, subject to the regulation and wishes of the father. But, as I have said, the evidence does not permit any firm finding on this period, beyond noticing the important fact that the business was a completely family business. 428 From 1975 the picture becomes clearer. One factor in this is the re-arrangement of family affairs carried out under the oversight of Mr S. Bosnjak in 1975-77, which set in place a framework for what was to happen from then on. What happened from 1979 onwards must be considered in the light of that framework. 429 The overall plan of the 1975-77 re-arrangement is relatively plain. The plan was based on the expectation that, probably, Mr S. Bosnjak would die before his wife and that they would both die before any of their sons. The plan was to re-arrange the family affairs so that when the eldest member, Mr S. Bosnjak, died, arrangements would be in place for the continuation of the family bus business under the direction of Messrs John, Bob and Jim Bosnjak. Their families would each have the beneficial ownership of two-sevenths of the shareholdings in the company. The presence of Group as one of the two trustees of the shares in the business owned by each family trust meant that there would have to be co-operation between the directors of Group. The same would apply, more simply, to the other seventh of the shareholding directly owned by Group as trustee for Trust No 4. For practical purposes they appear to have treated control as ownership by the particular family group (stirps). I mentioned earlier that it would appear that the wills of both Mr S. Bosnjak and Mrs A. Bosnjak, were part of the overall scheme; that their terms were known to the family at the time of their making; and that their effect was that after both parents were dead their property would pass equally to each of their then surviving sons. While Mr S. Bosnjak lived he could keep control of the business, by means of his wide rights as Governing Director, so long as he wished. This arrangement envisaged a continuing closely knit family, property and business relationship. The directorship of Group would give the family, through the sons, a direct supervising power over each of the four trusts. The transfer of Mrs Anda Bosnjak's shares in Bus Services to Group as Trustee of Trust No 4 left her without any equitable interest in the business. Her only legal interests were her directorship of Bus Services, and after her husband's death, her ownership of one share in Group. It must have been intended that the sons would see she still benefited from the business, perhaps by consultancy fees or other employment, or by loans. In her position as the mother, her wishes would be likely to lead to agreement on major matters, but she would have no part in the day to day management of the business. Upon Mr Simun Bosnjak's death, if he died first, the family of each son would own two sevenths and prospectively one third of the family business and between them the sons would have the management and direction of the business. 430 In view of the history of the family business until that time, there was no reason, upon the death of the father, why the management of the business should not be continued by the three brothers in the way outlined above, the two elder, for some time at least, with their greater experience and longer time in the business, being likely to have the major role in running it. The youngest brother, Mr Jim Bosnjak, was twenty-eight at the time of this family re-arrangement and would be likely to play a larger part in the management of the business as time passed. In time, each of the three would be likely to have an equal voice. What was envisaged was very much a family partnership, but for convenience and for fiscal reasons flowing from the way business is done in these times, regulated by the forms of company and trust law. 431 Although there does not seem to have been much evidence before Young J about the character and activities of Mr S. Bosnjak, or anything specific about his position in the family (it is possible that in the tundra of the appeal papers there is some evidence about this that I have missed) one glimpse of him appears in Mrs Carol Bosnjak's affidavit. Since this does not appear to have been objected to or contradicted it seems safe to use it. She describes the way in which family members were paid during Mr S. Bosnjak's lifetime. She said: " Prior to Simun's death we were all paid wages but those wages were given to Simun who then gave each family a living allowance and paid out bills, I believe from the company. " 432 I mention this because it resembles evidence that was common ground at the hearing, concerning Mr Bob Bosnjak's somewhat similar attention to cash, his daily collecting of the takings from each of the depots, which he did for many years, until prevented by his poor health in 1991. He was not only collecting the money. Until 1994, whenever at the office, he was the one who opened all mail. He was keeping a close eye on the everyday detail, big and small, of the family business. These are examples of the "hands on management" which Young J noted as being the way Mr Bob Bosnjak thought the company should be run. They also indicate his status in the company. 433 In 1979 the expected course of affairs was disturbed by the death of Mr John Bosnjak at the age of forty-four. Following the death of Mr S. Bosnjak three months later, the management of the family business now fell to Mr Bob Bosnjak, aged forty-one, who had been working in it continually since 1955 and Mr Jim Bosnjak, aged thirty-one, whose working time in it had been at least ten years shorter, and whose full time working in the business had, on any view, been somewhat shorter again. 434 Despite the conflicts in the evidence, the overall position seems clear, that from 1979 to 1988 the business grew and was conducted under the direction and management of Mr Bob Bosnjak and Mr Jim Bosnjak. This was the continuing day to day position. Mrs Anda Bosnjak only very occasionally took part, but then her wishes would, in a family manner, be likely to lead to a consensus that what she thought should be done, would be done. In company law language the two brothers were for all practical purposes joint managing directors. In partnership law language they were for all practical purposes partners who had to make joint decisions about partnership business. 435 This quasi-partnership position continued until September 1988, when what turned out to be only a brief interruption occurred. Any major decisions in the business were made by agreement between the brothers. Mr Bob Bosnjak's views usually prevailed in matters when one of the brothers was reluctant to go ahead with a proposal. This mainly happened when Mr Bob Bosnjak did not agree to a proposal of Mr Jim Bosnjak. In the submissions made on behalf of Mr Jim Bosnjak, this was referred to as a veto power. So it was, but it was equally a power which Mr Jim Bosnjak could use. It is an inbuilt ingredient of decision by consensus. If Mr Bob Bosnjak usually prevailed, it was because of the relation in which the two men stood as a result of their age, experience and characters. 436 The position as it was until at least 1988 was described by Mr Jim Bosnjak, in cross-examination, (when he was contrasting it to the position later): " We used to walk into one another's office and talk. ... we spent years together sitting down and walking into one another's offices and trying to come to resolution as to whether we should proceed or not proceed. At this period though there was no formal directors' meeting in writing. The only way to function was for him to walk into my office or for me to walk into his office and discuss these sorts of things. " 437 One element in what happened from 1988 onwards must have been Mr Jim Bosnjak's increasing prestige in the bus industry outside the family business, growing experience and growing wish to turn the family business into what he regarded as a more professional operation. 438 As against this Mr Bob Bosnjak took the view that he should be regarded as the head of the family, at least for business purposes and that the business should continue as a family business. This attitude was clearly shown in conversations he had with Mr Jim Bosnjak of which both gave versions in their affidavit evidence. Mr Jim Bosnjak gave his account in his affidavit of 3 June 1998, Mr Bob Bosnjak in his affidavit of 9 June 1998. Mr Bob Bosnjak denied his brother's version, but went on as follows: " ... in or about May 1988 ... I said words to the following effect: 'As our father was chairman and managing director and John would have been had he survived, I think I should be chairman and managing director and you a director.' Jim said: 'I'll have a think about that and get back to you.' (ii) Shortly thereafter, when we met at the offices of Holdings at Parramatta, Jim Bosnjak said to me words to the following effect: 'I've had a think about what you said and there's no way I want you to be chairman and managing director because that will give you too much control.' I said: 'I am the eldest one in the family and I've worked the hardest and I deserve it. JB: 'Well, I don't agree.' " 439 It is interesting that in Mr Jim Bosnjak's version of these conversations, he reported Mr Bob Bosnjak as saying that if he were managing director, he would not use his casting vote. 440 The evidence all seems to me to show that although Mr Bob Bosnjak wished to be recognised as the head of the family, with the accompanying dignity of the title of managing director, he recognised at all times that the management had to be by consensus. The evidence also shows that Mr Jim Bosnjak had a good deal of respect for his older brother, but that as he became successful in his own right outside the business he became increasingly determined to see that his own ideas about the way in which the company's business should develop and be managed were given greater weight. 441 Mrs Anda Bosnjak occasionally took part in a major decision, but not often. As a widow, she continued to live in the house at 1 Edensor Avenue, with Mr Jim Bosnjak, his wife and their four children, (that is, four of her grandchildren). Mr Jim Bosnjak said she discussed the business daily with him when he went home, but I do not infer from this that she played an active part in management. Rather his evidence on this point indicates that on going home from work each day he would tell his mother anything of interest that had happened during the day. I do not mean to understate the position of the mother in the family. The respect in which she was held is shown by two events in particular, in 1989, which I will come to later, but although she was a considerable force in the family, that does not detract from the fact that from 1979 onwards her two remaining sons were doing all the management work and making virtually all the management decisions in the business. 442 Until 1988, Mr John Bosnjak's widow worked in the business but did not seek to take her husband's former place in a directorial/managerial role. 443 The conduct of all concerned parties from 1975 to 1988 in my opinion showed a set of mutually accepted understandings giving rise to a situation quite like what Lord Hoffmann in O'Neill v Phillips described as the "standard case" which would mean, putting it in terms of the present case, that it would be arguable that it would properly be considered unjust, inequitable or unfair for a majority in Holdings to use their voting power to exclude either Mr Bob Bosnjak or Mr Jim Bosnjak from participation in the management without giving him the opportunity to remove his capital upon reasonable terms. This last aspect of his legitimate expectation was not however something for which Mr Bob Bosnjak contended. His contention was confined to what he had stated in par 28C of the final version of his statement of claim. Nevertheless I think had he contended for such a version of his legitimate expectation, it would have had a serious claim to be recognised. I will explain why I say this. 444 The only difference of any materiality between the main features of the "standard case" where the right, in appropriate circumstances, to be bought out is recognised, and the present case, is that the present case has the further element of the long family presence in the business, so that family relationships both in the business and the family were woven into the relationships that exist between unrelated persons joining together in a continuing business. This extra factor in my opinion increases the weight of the equitable considerations created during the course of the relationship. 445 This additional element is connected with three other considerations that seem to me to be important in the case. The first is that on any view of the facts Mr Bob Bosnjak had played a major part in the building of the business. In lay language he had a very real stake in it. This had been so all his working life. This contributes to my view that he had a significant case for saying that his "legitimate expectation", if he was to be excluded from management, was either that he should be bought out at a fair price or that there should be a division of assets. 446 The second consideration is related to the first. It is the family nature of the business. In my view it is both expectable and reasonable for the main family members working in a family owned business to develop a proprietorial attitude to the business, that is, to regard themselves as the owners or the business and to expect that if the family goes out of the business, the assets of the business will be divided in fair shares between the members of the family who had taken part in the business. This approach may of course vary according to the particular circumstances of the case, but it seems to me to have represented the attitudes of the relevant family members in the circumstances of the present case. 447 The second consideration is reflected in the third, which is that two of the principal parties concerned, Mr Bob Bosnjak and Mr Jim Bosnjak, both thought that a division of assets was an appropriate solution to the disagreements that had arisen in the family. Mr Bob Bosnjak first thought this should be done during the period following the appointment of Mrs Carol Bosnjak as a director in 1988. Mr Jim Bosnjak proposed an asset split in 1991. In 1993 he proposed that legal advice be sought concerning a split or a restructuring. From then on there was continuing discussion about a split. The brothers could never agree about who should take which assets. 448 These additional considerations lead me to think that Mr Bob Bosnjak could well have argued that the legitimate expectation was somewhat wider in the present case than in the "standard" case described by Lord Hoffmann which lacks the first two considerations of the three I have just mentioned, namely an expectation of continuing in direct management, or, being bought out at a fair price or taking a fair share of the assets of the business. 449 Having raised this question about the precise extent of Fexuto's legitimate expectation, I need to consider whether I can pursue it at this stage of my reasoning. This involves looking at the way the matter was dealt with at trial and in the appeal. 450 First, as already mentioned, the legitimate expectation alleged by Fexuto in its statement of claim was that its nominee on the Board of Directors, Mr Bob Bosnjak, would be in a position at all material times to effectively participate in the management of Holdings. 451 The oral submissions to Young J, following the conclusion of the evidence, were not recorded. Extensive written submissions were later filed. In Fexuto's written submissions, under the heading "Legitimate expectation of Management", the history of the growth of the business was set out, including the materials and evidence upon which the assertion of the legitimate expectation was based, and materials supporting the submission, focused on the appointment of Mrs Carol Bosnjak as a director in July 1993 and the consequential change from consensus management to management by board majority, supporting a submission that Mr Jim Bosnjak and Mrs Carol Bosnjak were wrongfully disregarding and overriding the legitimate expectation of Mr Bob Bosnjak/Fexuto to consensus style and direct management. 452 The submissions for the defendants on the other hand (a) first conceded that the Bosnjak Group of Companies had been run as a family partnership, particularly during the 1950s, 1960s and 1970s but (b) then contended that as the business grew that form of management became unworkable and inefficient, (c) said that Mr Bob Bosnjak unreasonably resisted a change to an obviously required board of directors style of management, (d) asserted Mr Bob Bosnjak had insisted upon retaining what the submissions called a veto power and (e) said that the whole history of the business showed that Mr Bob Bosnjak had no legitimate expectation of the so-called consensual method continuing for an indefinite period. The greater part of the remainder of the submission then details what it characterises as Mr Bob Bosnjak's unreasonable opposition to various management decisions proposed by Mr Jim Bosnjak and carried through by majority following the appointment of Mrs Carol Bosnjak as director in 1993, with particular emphasis on Mr Bob Bosnjak's opposition to the appointment of Mr J. Mostyn as CEO and the attitude he displayed towards Mr J. Mostyn after his appointment as CEO in 1995. 453 The main argument about legitimate expectation at the trial thus seems to me to have been whether if the legitimate expectation contended for had existed, had it come to an end? The parties do not appear to have made any direct submissions on the question what consequences followed if Mr Bob Bosnjak succeeded in showing his contended for legitimate expectation had existed, but the defendants showed that it had come to an end. 454 Young J did not need to consider this question because of his primary finding, the reasons for which I have earlier abstracted, that he did not accept Mr Bob Bosnjak's contentions about the coming into existence of the legitimate expectation. Although he did go on to consider whether if the legitimate expectation had existed, circumstances had brought it to an end (which he found), because of his primary finding he needed to go no further and examine the consequences of the legitimate expectation having come to an end. 455 In the appellant's written submissions in the appeal the same legitimate expectation was contended for as at the trial. The submissions were principally aimed at showing that the trial judge's answers to the three questions he had posed under this head were in error. The respondents' written submission answers those of the appellant. Again, no narrower form of legitimate expectation was contended for, nor was there any direct exploration of the question of the consequences of there having been a legitimate expectation such as the appellant had contended for, but that it had come to an end. 456 During oral argument, counsel for the appellant was asked about what Lord Hoffmann had said in O'Neill v Phillips about "the standard case" in which shareholders have contributed capital on the understanding that they will participate in management giving rise to a legitimate expectation of participating in management together with the opportunity to remove their capital upon reasonable terms if excluded from management.37 Counsel replied, " He is obviously not trying to deal with all cases there. There are other statements which suggest that a fair way of dealing with the matter is for the minority to be bought out at a fair price. In this case, my client does not want to be bought out. It doesn't mean, however that there isn't some other answer which he is entitled to have considered. ... There is no doubt on the authorities that the court can, in special cases, order that the majority transfer their shares to the minority. "

Counsel then sought to support the proposition that his client was entitled to an order that all other shares in the company be sold to it at a fair valuation because Mr Jim Bosnjak and Mrs Carol Bosnjak were no longer involved in Holdings. He then submitted that the legitimate expectation could not be brought to an end by unilateral action by one of the parties and said that the only way to resolve what had happened was " either a split of the assets, or he [ie Mr Bob Bosnjak] buys them out ". 457 A little later, after the court had raised with counsel for the appellant possible consequences of the denial of the legitimate expectation asserted by the appellant in the case, counsel said: " But if what happened was, as we put it, a denial of his legitimate expectation then it is ... a reason why certain orders ought to be made to deal with that position. " 458 So far as I can recall or see in the transcript of argument, this was the basis upon which both sides, pro and con, argued this aspect of the case in the remainder of the oral argument. 459 The result is that I do not think it is open to this court, in considering whether the appellant had established a legitimate expectation, to consider any other legitimate expectation than the one which was pleaded and fought at trial. That is, I do not think it is open to the court to consider whether the content of the legitimate expectation was the one which I have earlier described as worthy of consideration or very arguable (had it been raised). 460 Nevertheless it seems to me that the ideas lying behind that possible formulation of the legitimate expectation are relevant to the decision of the appeal. However, the appropriate place for them to be dealt with is when the court considers what the remedy should be in the circumstances. Although the subject was not explored in the same depth in the appeal as many of the other topics, consideration of it seems to me to be required because the question of the consequences of denial of the legitimate expectation as pleaded was directly raised by the submission that the remedy the appellant was seeking was either the appellant's entitlement to buy out the remaining shareholders in Holdings, or "a split" of the assets. 461 In dealing with the legitimate expectation arguments in the case, I will therefore confine myself to the legitimate expectation as claimed by the appellant and will deal with the questions of purchase or split when considering the appropriate remedy in the case. 462 Various strands of materials in the case lead me to conclude that it was Mr Jim Bosnjak who was the moving force in changing the management of Holdings from consensus style direct management by two directors to majority decision management by three directors and then the cessation of any direct management by directors at all. 463 Looking back to 1988 it is my view that the appointment of Mrs Carol Bosnjak as a director in that year was at least in part a result of the growing resolve of Mr Jim Bosnjak to change the company's approach to management, which meant he had to reduce his brother's powerful position. Mr Bob Bosnjak correctly saw that her appointment would reduce his practical power in the company. He persuaded his mother to get Mrs Carol Bosnjak to resign her directorship in June 1989. The position then returned to what it had been before the appointment of Mrs Carol Bosnjak, although on a more uneasy basis than before, because of Mr Bob Bosnjak's suspicious resentment of Mr Jim Bosnjak's increasing assertiveness. Nevertheless important decisions were made by consensus (though awkwardly achieved) and the business grew and prospered. 464 I mentioned earlier two events in 1989 which showed the respect in which Mrs Anda Bosnjak was held in the family. One of these was her asking Mrs Carol Bosnjak to resign her directorship in June 1989. This seems to me to provide powerful support for Mr Bob Bosnjak's view that the consensus style management of himself and his brother was recognised as appropriate in the family, notwithstanding the diminishing acquiescence in that situation by Mr Jim Bosnjak. Mrs Anda Bosnjak must have known that her intervention was against the wishes of Mr Jim Bosnjak, her youngest son, with whom she had shared a household for the whole of his life. She must have thought it was necessary to take the step that she did in what she thought to be the best interests of the family and the family business. 465 The point is that although Mrs Anda Bosnjak was the principal party in bringing about the resignation, it was acquiesced in by the members of the family, even if that acquiescence was reluctant on the part of Mr Jim Bosnjak and Mrs Carol Bosnjak. (If Mrs Anda Bosnjak had relied on her legal position, she could not have forced Mrs Carol Bosnjak to resign as a director.) That is, it was a family decision, and it restored the position as it had been since 1979, of two active directors of Holdings (de facto joint managing directors, as they were sometimes called) managing all the affairs of the business by agreement between themselves, subject only to the possibility of participation by Mrs Anda Bosnjak in a major decision such as the Calabro purchase, which is the second of the two events I mentioned earlier, and which itself again demonstrated the family nature of the business. The continuing growth of the business shows that this system worked, in a rough sort of way, until Mrs Anda Bosnjak's death. 466 In my opinion the position concerning legitimate expectation remained the same after 1989 as it had been before then, until the death of Mrs Anda Bosnjak in late 1992 and then until the next important event for this aspect of the case, the appointment of Mrs Carol Bosnjak as a director, for the second time, in 1993. That is, both Mr Bob Bosnjak and Mr Jim Bosnjak, in the light of all that had gone before, were entitled to take an equal part in direct management by consensus. 467 For the respondents, it is argued that the legitimate expectation which Fexuto contended for, did not exist in 1993, or at any previous time. Their first submission is that the legal position under the company law statutes and the memorandum and articles of association excluded any such legitimate expectation. They point to the stress laid by Lord Wilberforce in Ebrahimi and by Lord Hoffmann in O'Neill v Phillips upon the prima facie position created by the statutory and contractual arrangements for the running of a company and the need for "something more" of a significant kind arising from the earlier relations between the relevant parties, before the court will impose any restriction upon the exercise of their legal rights by the parties complained of as oppressors. They say the "something more" did not exist in the present case. Their second submission is that even if a legitimate expectation of taking an equal part in management had existed, it could not be expected to last indefinitely. 468 I do not agree with the first submission. Looking at the position as it existed until the appointment of Mrs Carol Bosnjak as director in 1993, for the reasons already outlined, I think that a legitimate expectation of taking an equal part in a consensus style management with Mr Jim Bosnjak existed, in the same way as it had since 1979. I agree with the second submission, that the legitimate expectation could not be expected to last indefinitely. That does not say very much however. It raises the question, in the present case, of what could bring the legitimate expectation to an end, and how that had happened in the present case. I think that some help can be obtained, in considering these questions, from looking at analogous situations in partnership law. 469 Another strand of the materials which throws useful background light on the way in which the two brothers operated until 1993 is that which shows the different views which each had of the part played by himself and the other in the growth of the business. 470 Their beliefs on these matters appear clearly from assertions and counter assertions in their affidavits. In Mr Jim Bosnjak's affidavit of 3 June 1998 he said he became involved in the business on a full time basis in 1965, that it was jointly managed by the father and the brothers, always in consultation with the mother and that Mr Bob Bosnjak and he worked together in an effort to promote expansion. He said this was the case until the deaths of the father and the oldest brother in 1979. He then outlined the growth of the business. 471 Mr Bob Bosnjak replied to Mr Jim Bosnjak's affidavit in an affidavit he swore on 9 June 1998. He answered Mr Jim Bosnjak's affidavit paragraph by paragraph. With reference to par 8 he denied that Mr Jim Bosnjak "assisted to any significant extent with the promotion and expansion of the business from 1965 to 1979". 472 However, Mr Jim Bosnjak had asserted in par 11 of his affidavit that in 1973 he was instrumental in establishing the coach business of Bosnjak Coach Lines Pty Ltd and was responsible for its operations. Mr Bob Bosnjak did not answer this paragraph. 473 In par 12 of Mr Jim Bosnjak's affidavit he asserted that he was involved in the acquisition of the three bus businesses which were acquired between 1974 and 1976. Mr Bob Bosnjak denied that Mr Jim Bosnjak assisted in the acquisition of those businesses but said, "He has participated to an increasing extent since 1976 and up to the present time". 474 In par 18 of Mr Jim Bosnjak's affidavit he said that Mr Bob Bosnjak and he were equally involved in the acquisition of the two bus businesses that were acquired in 1981 and 1983. Mr Bob Bosnjak did not answer this paragraph. 475 Paragraphs 24 and 25 of Mr Jim Bosnjak's affidavit were as follows: "24 I believe that the Bosnjak Group is recognised as a leading transport company. Westbus Pty Limited is now the largest private bus operator in Australia. The Bosnjak Group of Companies were the first companies to introduce the Red Arrow Express and other cross-regional bus services. Westbus was the first to introduce high-frequency 'hail and ride' minibus services in Australia, to introduce an electronic stored value ticket, to participate in 'Night Ride' services, to introduce gas-powered bus chassis and to introduce twin deck coaches. Westbus Pty Limited was the first private bus operator in Australia to negotiate an enterprise bargain with its workers in 1993 and, in more recent times, the first to introduce an express bus service on the M2 to the city and to introduce low floor disabled access vehicles. Apart from the gas powered bus chassis and the twin deck coaches, which were initiated by my brothers John and Bob respectively, I initiated and supervised all initiatives referred to above. 25. As set out in paragraph 20, I have held a number of positions on committees and boards, mainly in transport, tourism, economic development and education and training. I believe the profile I have achieved in the transport industry, particularly as a result of my position as President of the Bus & Coach Association, has assisted the Bosnjak Group of Companies. " 476 Mr Bob Bosnjak did not take issue with either of these paragraphs. In view of the care with which he answered the affidavit of his brother, I do not think that it was oversight that caused him not to take issue with the paragraphs he did not answer. Rather, it seems to me, he was recognising the part played by Mr Jim Bosnjak in the business. He himself had been in the business longer, he had been much more of a "hands-on" manager than Mr Jim Bosnjak, but it seems to me that it is to his credit that despite his many criticisms of his brother's actions from 1993 onwards, he did not dispute that Mr Jim Bosnjak had an increasing role in the business from 1976, had had ideas which were acted on which were beneficial to the business and had himself become well-known in the industry, which was likely to have been advantageous to the business. The fact was that their consensus style management had been successful. Although in the end bad feeling developed between them, looked at from a distance they were a good combination. 477 The impression given by Mr Jim Bosnjak's own account of himself, which fits in with the evidence in the case, is that as he grew older, more successful, more experienced and with greater recognition in the industry, he moved towards the quite sensible objective of being the type of business manager who sat on boards, kept in touch with the business of the particular company through the reports of managers, kept in touch with the industry and the economy generally through networking and general knowledge, generated ideas himself and got projects under way through the Board of the company. This was in marked contrast to Mr Bob Bosnjak's ideas of how the family business should be run. 478 Mr Jim Bosnjak moved close to his objective in 1993, with the appointment of Mrs Carol Bosnjak as a Director. This step enabled him to reach his objective completely in January 1995 with the appointment of a CEO. The procedure for appointing the CEO began soon after the addition of Mrs Carol Bosnjak as a Director in 1993. 479 In bringing about or assisting in the appointment of Mrs Carol Bosnjak as a Director in the way in which it happened, Mr Jim Bosnjak seems to me to have been the main mover in the majority acting against Mr Bob Bosnjak/Fexuto in an unfairly prejudicial way. 480 In reaching this conclusion I attach somewhat more importance than Young J did to two matters. One of these is the making in 1992 by Mrs Anda Bosnjak of her new Will, the other is the manner of the appointment of Mrs Carol Bosnjak as a Director. 481 The significance of Mrs Anda Bosnjak's 1992 will does not depend on the outcome of the as yet unresolved proceedings about its validity. On the assumption that the Will was in all respects valid, the position remains that Mr Jim Bosnjak knew that his mother was changing her will; he knew that the making of her 1977 Will had been part of the overall plan for the management of the family's affairs and the family business initiated by his father and acted on first by the three brothers until the death of John and then by Mr Bob Bosnjak and himself for the next thirteen years. Mr Bob Bosnjak was not told of the making of the second Will. Mr Ash knew about it as well as Mr Jim Bosnjak, although it may be that Mr Ash had no direct knowledge of the significance of the change. It seems unlikely also that Mr Jim Bosnjak at that time had any idea of the precise significance of his mother's ownership of the share in Group but, on the other hand, it seems to me that he would probably have had a broader understanding, that the change would be likely to improve his family's position in regard to the business. For him to stand by and allow this to happen without notice to other members of the family seems to me to have been contrary to the original family understanding, and the way it was acted on until his mother's death. This was not part of the conduct of affairs of Holdings or something done on behalf of Holdings and was therefore not itself within the reach of s 260(1) but was conduct by Mr Jim Bosnjak ancillary to his purpose of changing the consensus style of direct management to the kind of management he wanted and illustrates that his conduct in pursuit of his objective was not always straightforward. 482 As to the matter of Mrs Carol Bosnjak's appointment as a Director in July 1993, Young J did not attach a great deal of significance to it because Mr Bob Bosnjak subsequently acquiesced in her acting as a Director. This may have been because he did not become aware that he could challenge the validity of that appointment until much later. It may be however also that, as Young J appears to have accepted, he took the simple position that it was fair that his late brother's widow whose family had an equal interest in the ownership of the business to his own, should, if she wished, be a Director. His only proviso was that she should be independent. 483 This however to my mind does not reduce the significance of the actions of Mr Jim Bosnjak and Mrs Carol Bosnjak in securing her appointment in the way in which it was done. It was argued for the appellant that the clear inference from the activity of the accountants and lawyers who were working to investigate the mechanism stipulated by the Articles of Holdings for general meetings is that they were aware that the four sevenths interest controlled by Mr Jim Bosnjak and Mrs Carol Bosnjak fell just short of the sixty per cent required for business to go forward at a general meeting (see par 234 above) and that the further inference should be drawn that Mr Jim Bosnjak was also aware of this at the time of the meeting. I set out what Young J said about this in par 310. What he said appears to me to have been a polite way of saying that Mr Jim Bosnjak had not satisfied him that he did not know of the position his accountants were fully aware of. There was in evidence the following internal note of Price Waterhouse. The Margaret to whom it was addressed was Margaret Gibson: " Margaret - In a nutshell, to pass anything at the meeting on 19/7/93 we need 60% of voting rights present. Carol & Jim have 57.14% between them really need Anda's votes to avoid a tie or to have Carol/Jim as chairman and able to cast a deciding vote. Chairman can be chosen by directors or members (refer Cl 52) on simple majority. Quorum = 2 members (no other conditions) 14 days notice needed for B.G. P/L meeting to appoint proxy. not likely, as Bob is listed 1st on will. " 484 Two members of Price Waterhouse were present at the meeting on 19 July 1993, the minutes of which recorded Mr Jim Bosnjak as saying that a quorum was present. Like Young J I find it difficult to understand how the appointment could have gone forward in this fashion in light of the memorandum to Margaret set out above. There are documents in the appeal papers from which it appears the author of the memorandum was Margaret Gibson's assistant, who did some of her drafting work. It seems to have got into evidence without objection, and must be presumed to be authentic. From the opening sentence it seems quite plain that it was in existence before the meeting of 19 July 1993. Its terms lead me to think that Young J's observations set out in par 310, can only mean that he did not accept Mr Jim Bosnjak's denials of being aware of the position at the time of the meeting. Mr Ash was also cross-examined about this matter at the time of the meeting and also denied then having any knowledge of it. It would seem to me extraordinary if Price Waterhouse, having realised the difficulty of getting a valid quorum at the meeting in the absence of Mr Bob Bosnjak did not make that difficulty known to their clients. 485 Whatever else may be said about the appointment, the facts remain that the appointment was invalid and that it was only by its having been made that the circumstances were created making possible the later appointment of Mr J. Mostyn as CEO, with the authority to exclude Mr Bob Bosnjak from taking part in direct management. 486 Thus the manner of the appointment seems to me to have been unfairly prejudicial, even if it were assumed that Mr Bob Bosnjak would have acquiesced in the appointment had it been regularly done. 487 The appointment of Mrs Carol Bosnjak as a director in 1993 was decisive for the management of the company. It was the end of consensus style management. Young J thought it was the end of Mr Bob Bosnjak's legitimate expectation. That is so, in fact, but a question remains about what the consequences of its being brought to an end should be. I will leave this to be dealt with when I come to consider appropriate remedies in the case. 488 The history of the business, the part played in its management and growth by Mr Bob Bosnjak, the history of his relationship with other family members and in particular Mr Jim Bosnjak and the actual way the business had been managed from 1975 to 1993 seem to me definitely to amount to the "something more" required in Ebrahimi as later adopted in the oppression cases culminating in O'Neill v Phillips. Further, in my opinion the circumstances brought about the situation where it was inequitable for Mr Bob Bosnjak to be relegated to the position in which he found himself from 1993 onwards 489 This conclusion under the "legitimate expectation" heading is tantamount to saying that under that heading alone Fexuto established a case under s 260(2). However, the conclusions I have reached under the Tabcard and NBC headings, yet to be explained, are material to my overall view about Fexuto's s 260(2) case my statement of which I will leave until I have dealt with those two matters. 490 Transcard. Transcard was an issue on which the appellant substantially succeeded before Young J, except that the remedy ordered by the judge was less than the appellant claimed. The remedy is one subject of the appeal. However, I will deal with the Transcard matter in slightly more detail than is necessary simply for the consideration of the appellant's submissions about a more far reaching remedy, because it seems to me to throw a little more light on the management of the business and the conduct of its two de facto managing Directors in the period from 1991 onwards. I will deal with the Transcard matter now because its story began earlier than the NBC story and later went forward in parallel with it. 491 The documentary evidence shows that the Transcard project first came to Mr Jim Bosnjak's attention in early April 1991. He was sent a facsimile, addressed to him as managing director of Bosnjak Group Pty Ltd dated 10 April 1991, by Mr Kermode of Cabcharge Australia Pty Ltd ("Cabcharge"). The facsimile explained the project and invited the participation of Holdings. Mr Jim Bosnjak in a letter dated 23 July 1991 to Mr Kermode mentioned that they had recently had discussions and enclosed a revised proposal. His letter ended by asking Mr Kermode to call either Robert Ash or him to discuss the matter further. Mr Ash wrote a letter to Cabcharge's financial controller on the same day, also making proposals about how the project would go forward. 492 The correspondence on Holdings' side was mostly on Westbus letterhead. It shows that discussions concerning the project went forward, with Mr Ash doing most of the work for Westbus. One of his letters, dated 20 January 1992, shows that at that stage it was hoped the project would have "an introduction date of 1 April". This became postponed to 1 February 1993. This was later again postponed. 493 On the evidence there was nothing untoward concerning the project to this point. The material shows that it was a part of Holdings' business which was being attended to by Mr Ash under the supervision of Mr Jim Bosnjak. There was good reason for thinking there was a real possibility the project could be worthwhile from Holdings' point of view. 494 By 1993 the project's scope had grown from the provision of cabcharge-type facilities on buses to the merging of payment and ticketing systems for use on all modes of passenger transport. The project was to be carried out by Transcard Australia Pty Ltd ("Transcard"). 495 In July of 1993 Transcard proposed that a partnership should be formed between it and Westbus which would use Transcard Australia Pty Limited to pursue the project. Mr Jim Bosnjak became a director of Transcard and attended a meeting of Directors on 11 August 1993. Mr Roger Graham who had also been involved in the project also became a director. At this time he was receiving consultancy fees from Holdings of up to $100,000 a year. (There was a suggestion that he was Mr Jim Bosnjak's nominee as a director.) On the same day a deed was executed between Mr B. Alcorn (a solicitor) and Mr Jim Bosnjak pursuant to which Mr Alcorn declared himself the trustee for Mr Jim Bosnjak of 15,000 shares in Transcard. This made him a 50% beneficial shareholder. He paid for the shares with his own funds, and concealed his ownership from the board of Holdings. This took place while Mr Bob Bosnjak was overseas and about three weeks after the appointment of Mrs Carol Bosnjak as a director. 496 From a shareholder's deed bearing date 8 December 1994 between Cabcharge and Mr Jim Bosnjak, it appears that at that stage Tabcard needed further funds. The deed provided that each of Cabcharge and Mr Jim Bosnjak would subscribe for a further 150,000 one dollar shares in Tabcard and each lend $200,000 to Tabcard. 497 When Mr Jim Bosnjak was cross-examined about these events he agreed that Mr Ash had been closely involved in the Transcard matter from the early 1990s and right through and that he was aware of what Mr Jim Bosnjak was doing in August 1993. In fact, it emerged from the cross-examination of Mr Ash that he had prepared the memo to Mr Jim Bosnjak's solicitors to organise the taking up of the first issue of 15,000 shares in August 1993, and that later Mr Jim Bosnjak had asked him not to disclose either to Mr Bob Bosnjak or Mrs Carol Bosnjak the fact of Mr Jim Bosnjak's beneficial ownership of half the shares in Transcard. Mr Ash did not give the information either to the Board of Holdings or Mr Bob Bosnjak on at least two occasions when I would have thought it his reasonable duty to do so. He either dissembled or remained silent. He said he thought that it was up to Mr Jim Bosnjak to disclose it, not him. Mr Mostyn was never told the true situation either. 498 When it was put to Mr Jim Bosnjak in cross-examination that he had taken a 50% shareholding in Transcard for his own benefit and had concealed his beneficial interest from Westbus, the gist of his answer was that he had done what he had done for the benefit of Westbus. Earlier he had admitted that (in hindsight) what he had done had been dishonest. A little later he had agreed that he did not reveal his shareholding to either Mr Bob Bosnjak or Mrs Carol Bosnjak until the proceedings had begun. He still claimed he had been acting for Westbus. He gave other reasons in defence of his actions. Young J did not accept these explanations and held that what Mr Jim Bosnjak had done was both a breach of fiduciary duty and an act of oppression. 499 The only submission made for Fexuto in regard to the order Young J had made concerning Transcard was that it should be amplified to make it clear that the accounting it required took into account both the first issue of 15,000 shares to Mr Jim Bosnjak's nominee and also the second issue of 150,000 shares to the same nominee. 500 It seems to me that the order made by Young J covers the matter which concerns Fexuto, but before considering this matter further, I will note the submissions made by the respondents as cross-appellants in regard to Transcard. 501 For the respondents no attempt was made to dispute Young J's findings of fact. It was accepted that Mr Jim Bosnjak kept his involvement in Transcard a secret not only from Mr Bob Bosnjak but also from Mrs Carol Bosnjak and that his conduct was dishonest and in breach of his fiduciary duty to Holdings. It was further accepted that if Mr Jim Bosnjak had made any profit from his involvement in Transcard he ought to account to Holdings for the profit. 502 Two arguments however were advanced to support the submission that Young J's order that Mr Jim Bosnjak account for any profits should be set aside. First, it was said that Mr Jim Bosnjak's actions did not have the character of an act of oppression; the incident was an isolated one involving one shareholder or director. The second argument was that s 260 did not authorise the making of the order to account, that is, that in the proceedings as they were constituted before Young J the remedy he granted was simply not available. 503 The first, and to my mind more important of these submissions is the assertion that the conduct of Mr Jim Bosnjak in regard to Transcard was not oppressive or unfairly prejudicial to or unfairly discriminatory against a member or contrary to the interests of the members as a whole and did not fall within s 260(1), so that the remedies for which s 260(2) provided never came into question at all. 504 The requirement stated in s 260(1)(a)(i) is that "Affairs of the company are being conducted in a manner that is oppressive or unfairly prejudicial etc". That means that the actual conduct of the affairs of the company must be looked at; what was being done rather than why it was being done. 505 What Holdings was doing in relation to Transcard was committing significant funds to its development, committing itself to future actions in regard to Transcard which would cost money and organising an expensive trial of Transcard. Although only Mr Jim Bosnjak and Mr Ash knew it, these activities, while being conducted for the benefit of Holdings, were also being conducted for the benefit of Mr Jim Bosnjak, a half owner of Transcard. Leaving aside any questions about whether Holdings should be regarded as having notice through Mr Jim Bosnjak himself of the truth about his interest, Holdings was in fact carrying on the Transcard project partly for the benefit of Mr Jim Bosnjak, without the knowledge of Holdings' other directors or the shareholders. This seems to me to be a conducting of the affairs of the company which is obviously unfairly prejudicial to members of the company. It is also in my opinion contrary to the interests of the members as a whole. 506 The second submission goes to the form of the proceedings and seeks to say that s 260(2) had not done away with derivative proceedings and that the reasons for insisting on the limitations upon derivative proceedings remain compelling. 507 At this point I say no more than that the remedy supplied by s 260(2) and the way it was used by Young J in making his orders seem to me entirely appropriate for the kind of conduct which Mr Jim Bosnjak was found to have carried on in regard to Transcard. I will explain why I think this when dealing with the same argument of the respondents directed at Young J's orders concerning an accounting for the NBC shares. 508 Thus I think Young J had power to make the orders he did in regard to Transcard. I have earlier mentioned Fexuto's concern whether the order is sufficiently expressed to ensure that the accounting is a full and proper one and that it seems to me to be sufficient; however, since I will be proposing that the parties bring in short minutes of the orders that the court should make to give effect to the court's decisions, I would give Fexuto leave to include in the draft, for the court's consideration, a form of order for the Transcard accounting which in its view would leave no doubt about the scope of that accounting.

NBC. 509 On the facts found by Young J it seems to me that it was inevitable that he would hold, as he did, that Mr Jim Bosnjak and Mrs Carol Bosnjak had taken for themselves a business opportunity which belonged to Westbus. This opportunity was of considerable potential value. It was translated into their ownership through their holding of all the shares in NBC. 510 In fact, in my opinion more facts were available to Young J than he relied on in support of his conclusion that Mr Jim Bosnjak and Mrs Carol Bosnjak were in breach of their fiduciary duty in taking advantage for themselves of the business opportunity offered to Holdings to tender for the Victorian bus contracts. It is not necessary to detail these in regard to Young J's findings of breach of fiduciary duty, because they simply reinforce those findings. The facts are however also relevant to the extent of the oppression that took place, so I will mention the main points briefly. 511 So far as Holdings and Mr Jim Bosnjak were concerned, their knowledge that the Victorian Minister for Public Transport was calling for Expressions of Interest from parties interested in operating bus services then provided by the MET came from Mr Roger Graham who was advising the Minister in a consultant capacity. This was in March 1993. At that time Mr Graham was providing services as a consultant to Holdings. Mr Jim Bosnjak, when asked in cross-examination whether Mr Graham was then being paid figures like $100,000 a year, replied that that was possible and that it depended on how much timetable work he did. 512 Mr Graham caused the Minister's department (the Victorian Department of Transport (DOT)) to send a facsimile of the advertised call for Expressions of Interest to fourteen specific persons or companies, including Mr Jim Bosnjak of Westbus Pty Limited. Mr Jim Bosnjak received the facsimile early in March. He did not cause a copy of it to be shown to Mr Bob Bosnjak. He went to Melbourne on 16 March 1993 to a briefing session and while there gathered information useful for the tendering and contracting process. 513 By letter dated 13 April 1993 on Holdings' notepaper, but with its usual address blacked out and showing Mr Jim Bosnjak's Edensor Park home/office address, an Expression of Interest document was submitted to DOT. This contained copies of "the group's balance sheets and profit and loss statements" for the three preceding financial years, and described the operations of Holdings' business in some detail. It also gave particulars of the "more senior group personnel". These included Mr Jim Bosnjak, Mr Debono (then Holdings' Planning Manager, later, against Mr Bob Bosnjak's opposition, General Manager) and Miss Debbie Bosnjak. Mr Bob Bosnjak was not mentioned. Significant knowledge and skill were required for the preparation of the document, which was principally drafted by Mr Ash. 514 The document was not shown to Mr Bob Bosnjak. When cross-examined about this Mr Jim Bosnjak said it was impossible for him to speak to Mr Bob Bosnjak at that time because Mr Bob Bosnjak simply was not prepared to listen to anything about following up the possibility of obtaining the Melbourne business. However, he had to agree in cross-examination that there was nothing to prevent him sending copies of relevant documents to Mr Bob Bosnjak. 515 In the covering letter to DOT which enclosed the Expression of Interest the final paragraph was as follows: " For the purpose of this expression of interest details have been provided in respect of the Bosnjak Holdings Pty Limited 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. "

It was not disputed that this document was prepared entirely by Holdings' personnel and sent to DOT as an expression of interest by Holdings. 516 By letter dated 20 April 1993 DOT wrote to Mr J. Bosnjak of Bosnjak Holdings Pty Limited at 1 Bosnjak Avenue, Edensor Park inviting him to submit a conforming tender for the contract to operate particular bus services and enclosed a full Tender form. Completed Tenders had to be submitted by 28 May 1993. The letter and Tender form were not shown to Mr Bob Bosnjak. 517 Before the incorporation of NBC on 7 May 1993 Mr Jim Bosnjak spent a number of days in preparation for submitting a tender to the DOT. Mr Ash began working on the tender, in early May, according to an answer he gave in cross-examination. He said he took a fortnight to three weeks in preparing the tender. He also said that there was involvement by other employees of Holdings in the preparation of the tender: Mr Jim Bosnjak, Mrs Gloria Bosnjak, Miss Debbie Bosnjak, Mr Debono and Mr Scott McDonald. He said they all went to Melbourne for a couple of days to assemble data. 518 A Tender was finished on the morning of 28 May 1993. Miss Debbie Bosnjak flew to Melbourne and lodged it herself. In her affidavit of 2 June 1998 she gave details of the time she spent in Melbourne preparing for the tender and of other Holdings' employees who went to Melbourne for the same purpose. She also detailed payments that had been made to her by NBC for being an alternate director for her mother at board meetings of NBC and for helping her mother as a director of NBC. The first of these payments was made on 14 October 1995. 519 The tender itself is a lengthy and impressive document. It makes heavy and continued reference to the Bosnjak group of companies, the history and size of Westbus and the connection of Mr Jim Bosnjak and Mrs Carol Bosnjak with Holdings and Westbus. In its opening paragraphs it was made clear that Mr Jim Bosnjak and his family owned one third of the Bosnjak group of companies and that Mrs Carol Bosnjak and her family were one third shareholders in the Bosnjak group of companies. No reference was made to Mr Bob Bosnjak. (I am not suggesting that the mistaken reference to one third shareholding instead of two sevenths was deliberate; the three principal family members (for these purposes) all seem to have assumed that they (or their families) had a one third shareholding until a date much later than this; there is significance in this, in that it points up that the three families were expecting that upon Mrs Anda Bosnjak's death the one seventh shareholding held by Group as trustee would be divided equally amongst the three families; at the stage of the lodgment of the tender, Mrs Anda Bosnjak's 1992 will had not yet been read.) 520 Early in the Tender the following appeared: " As indicated in the Expression of Interest (which was lodged in the name of Bosnjak Holdings Pty Limited), it was intended that a new company structure be developed for the Melbourne services, separate from the existing Westbus Company structure. Consequently, National Bus Company Pty Limited has been formed and this tender is lodged in that company's name. " 521 At p 32 of the Tender it was said that the livery of NBC's buses would be the "current bright and attractive Red and yellow used by Westbus". At p 35, dealing with the capability of the tenderer to operate buses, the Tender said "twenty-five years of experience and the success of the bus services operated by the principals in NSW would ensure that the areas incorporated in this tender will be provided with a superior service ...". Details were then given about Westbus. It was said the principals of NBC had a 67% shareholding in Westbus which operated five bus depots and two coach depots in the Sydney Metropolitan Area. The seven depots were then named and the number of vehicles and drivers attached to each, listed. Details of the entire Westbus coach and bus fleet were then given and what had been said in the Expression of Interest about "the group's management personnel" and their years of experience was reproduced and the same details of the more senior group personnel given. 522 Further references to and reliance upon Westbus's operations and experience appeared in numerous places throughout the Tender. 523 The completed Tender was not shown to Mr Bob Bosnjak. 524 Mr Ash was the principal draftsman of the Tender. At the time, he was employed by Holdings and being paid by Holdings. Mr Jim Bosnjak, in his evidence said he was leaving open the possibility until very late in the preparation of the tender that Mr Bob Bosnjak might, however reluctantly, agree to it being submitted by Holdings. (This no doubt accounts for it reading in some parts very like a Holdings' document.) 525 I earlier set out (in paragraph 343) the finding, favourable, on first reading, for the defendants, made by Young J when he accepted that the work Mr Ash did for NBC was work on his own time for which he regularly sent NBC invoices, which were paid. Young J's acceptance of this evidence was based "on the balance of probabilities", not on demeanour or credibility. I do not know whether this finding by Young J was intended to go as far as embracing the weeks in May 1993 when Mr Ash was preparing the Tender, but I doubt it. I would not draw that inference. This is because the first invoice from Mr Ash to NBC is dated 16 August 1994. I infer from what he said about preparation of the Tender in his evidence and particularly in cross-examination, and further in light of the possibility that Mr Jim Bosnjak was holding open, that the Tender might go in as a Holdings' Tender in any event, that the work Mr Ash did in preparing it was done at Holdings' premises during his ordinary hours of employment. Thus he did the work while he was an employee of Holdings and being paid by Holdings. I do not think that an invoice sent to and paid by NBC over a year later can have any real impact on the inference that the NBC Tender was prepared in May 1993 entirely at the expense of Holdings. 526 The substantial defence of Mr Jim Bosnjak and Mrs Carol Bosnjak (put into various legal shapes) was that they were entitled to do what they had done and had not been in breach of any duty to the company because Mr Bob Bosnjak had said he did not think Westbus should have any part in the Melbourne tender and had said to them that if they wanted to do it they should go ahead on their own. They also said that Fexuto was not entitled to raise their breach of fiduciary duty "within the confines of an oppression suit". 527 As to the last matter Young J held that s 260 was intended to be, and was, sufficiently flexible to allow the claimed breaches of fiduciary duty to be dealt with pursuant to it. In this I think he was clearly right. In my view the text of s 260, as it had evolved, calls for such an interpretation; it requires no straining or forcing of the words; indeed to someone not acquainted with the rule in Foss v Harbottle or the accumulated case law about derivative actions, I think it would be surprising if the section were to be understood in any other way. When the history of the section's evolution is also taken into account, that understanding of the words seems to me to be considerably reinforced. The Jenkins Committee Report in 1962 led to legislation in the United Kingdom and other common law countries showing a clear intention to enable courts to do exactly what Young J did in the present case, notwithstanding barriers which common law judges, for reasons which no doubt seemed good to them at the time, had created to prevent such a result. The history of this legislative effort has been documented in numerous academic commentaries.38 528 In adopting Young J's position about the operation of s 260 I have in mind that, relevantly for present purposes, it authorises at least two things. It permits a member of a company to carry on the equivalent of a derivative proceeding, and in my opinion to do so either within or concurrently with an oppression case, under par (g) and, quite separately, under the opening words of subs (2) and then par (e), gives a remedy for oppression by the ordering of a sale of shares, which must enable the court to state the basis on which the shares are to be valued, and in doing so take into account the consequences of the breaches of fiduciary obligation established in the proceedings. 529 The other questions which Young J then had to decide were whether the defence of consent (to call it that for shortness' sake) had been made out and if not, what remedy was appropriate to be granted to Fexuto. These two questions are closely linked. 530 In this court the opposing parties repeated the arguments they had put to Young J, except that Fexuto took the view that the sale by Mr Jim Bosnjak of all the shares in NBC to NEG created difficulties for the declaration of constructive trust which had earlier been sought and instead, as its primary claim for relief, asked that NBC pay to Holdings an amount equivalent to the value of its assets (not taking into account its shares in Holdings and any costs of acquiring them) as at (i) the date of this court's judgment; or (ii) 4 November 1998; or some date no earlier than the date of commencement of the proceedings at first instance; or some date later than 10 January 1994.39 531 I said earlier that the substantial defence of Mr Jim Bosnjak and Mrs Carol Bosnjak had been put into various legal shapes. They all seem to me to be, in the context of the present case, different ways of asserting consent. The term consent was used in argument, as also were the terms election, no reprobation after approbation, waiver and estoppel. The primary inquiry in the present case is substantially a factual one and I think it will be sufficient to deal with the various ways in which the respondents sought to put their case under the general heading Consent. 532 On the question whether consent had been made out, Young J did not accept that there had been a fully informed consent by Mr Bob Bosnjak. This finding, which seems to me to have been justified, was sufficient to put an end to the consent defence, in any of its forms. 533 It is quite plain that Mr Bob Bosnjak knew that Mr Jim Bosnjak and Mrs Carol Bosnjak were intending to try to secure the Melbourne contracts for themselves. It is also quite clear that he was very concerned that if they sought to obtain the contracts they should not involve Holdings or Westbus in any way, that is he did not want Holdings or Westbus to be exposed to any liability whatsoever as a result of what the other two did in Melbourne, and he was also concerned that no financial or other business information confidential to Holdings and Westbus should be disclosed to the Victorian Government which was going to award the contracts. Although he did not put it in these terms, this was a concern about possible competition, and therefore, conflict of interest on the part of Mr Jim Bosnjak and Mrs Carol Bosnjak. (This concern was well founded; there were possible contracts in Adelaide and Sydney for which both NBC and Holdings might well have tendered.) 534 The evidence seems to be moderately clear that what became the NBC operation did not expose Holdings or Westbus to any financial risk or obligation. There was an issue before Young J about the extent of information disclosed to the Victorian Government but Young J does not seem to have made any clear finding on that issue. However, the Expression of Interest had contained considerable financial information and the tender document considerable operational information about what the documents called the Bosnjak Group of Companies. 535 What Young J appears to have taken as the basis for his finding that there had been no informed consent by Fexuto/Mr Bob Bosnjak, and in my opinion correctly so, was the extent to which the resources of Holdings had been used first in preparing the Expression of Interest document and next in preparing the Tender which was successful, taken with Mr Bob Bosnjak's lack of knowledge of these things at least until after the tender had been lodged. There was no evidence that Mr Bob Bosnjak turned his mind to these matters and no evidence that he was told by anyone at the time of the extent to which personnel of Holdings and Westbus took part in the preparation of the two major documents, the Expression of Interest and the Tender, and then later took part in the work preliminary to getting the NBC business up and running. Young J said the Tender was made with "apparent stealth" which he described as "something furtive" (as I set out in an earlier passage).40 536 The Expression of Interest was actually submitted as Holdings' Expression of Interest, and, as earlier touched on, the Tender gives distinct signs of having originally been prepared as Holdings' Tender and as having been changed to become NBC's Tender after the incorporation of NBC and after Mr Jim Bosnjak and Mrs Carol Bosnjak had taken the view that Mr Bob Bosnjak's attitude and conversations made it legitimate for them to have NBC make the Tender. My reference to the NBC Tender having obviously been until a very late stage drafted as a Holdings' Tender is not intended to suggest that in form the Tender somehow remained a Holdings' Tender; it seems to me that in its changed form it was clearly, from the recipient's point of view an NBC Tender, although with very heavy reference to Holdings and Westbus material; I mention the matter because in my view it supports a finding that there was heavy use of Holdings' personnel in the preparation of the Tender in the same way as they were used for the preparation of the Expression of Interest. 537 As I have said, Mr Bob Bosnjak seems to have known of none of this before he went overseas in July 1993 and did not become aware of the extent of it until later. 538 However, in a related finding, Young J had also been of the view that the time came when Mr Bob Bosnjak knew enough about what Mr Jim Bosnjak and Mrs Carol Bosnjak had done in regard to NBC for him then to have been able either to commence proceedings or cause proceedings to be commenced to correct the position, or alternatively to give what would have been regarded as a sufficiently fully informed consent. In his view, it was at that time that Fexuto's remedy became available to it, and at that date that any remedy's value should be calculated. Young J put the date as being 10 January 1994. Fexuto's primary argument in its appeal in this respect was that the court should make orders as asked for in par 7A of its final amended notice of appeal. 539 Thus a main issue in the appeal became whether the date at which the value of the NBC shares should be calculated should be taken, as Fexuto contended, at a date much later than the 10 January 1994 date ordered by Young J. The point was argued in the appeal at some length. In order to consider it I need to go over in somewhat greater detail some ground that has earlier been partly covered. 540 It seems to be common ground that Mr Bob Bosnjak did not know the substance of how the Expression of Interest was prepared, how Holdings came to be invited to tender, or how the tender was prepared, before he went overseas on 17 July 1993, or that he gained any knowledge of these matters while he was away. When he returned in late August he heard of the success of NBC's tender which had been announced on 23 August 1993. 541 Some contemporary documents appear to show the line of his enquiries at the time. A letter from the Parramatta office of Price Waterhouse dated 30 August 1993 addressed to him marked "private and confidential" reads as follows: " Dear Bob, Further to our telephone conversation this morning, I confirm that in relation to an engagement undertaken by us for the directors of National Bus Company Pty Limited, no financial or other client confidential information is (sic) respect of Westbus Pty Limited or any other company in the Bosnjak Group was released by Price Waterhouse as part of our assignment. Yours sincerely Willie Seaton Partner " 542 At a meeting of Directors on 31 August 1993 Mr Bob Bosnjak gave to Mr Jim Bosnjak and Mrs Carol Bosnjak and also to Mr Ash who was present by invitation a questionnaire asking four questions. He asked each of them to write their answers on the questionnaires. The questions were "(1) whether any balance sheets or any other financial documents were supplied to MET for contracts relating to Westbus or Bosnjak Holdings or any of our associated companies; (2) did any monetary transactions take place from Westbus and/or any associated companies for deposits to MET or for any other purpose relating to the tender; (3) were there any balance sheets or any other financial documents produced to any suppliers here or overseas relating to Westbus or Bosnjak Holdings or any of our associated companies which would secure the tender; and (4) a complete outline of any repercussions or any liability against the assets of Westbus or any associated companies and a commitment of such that none has been taken by any directors or management, in particular regards to the MET tender". Neither Mr Jim Bosnjak nor Mrs Carol Bosnjak wrote anything on their questionnaires. Mr Ash did not answer questions (1) and (2) but signed his name under them. Under question (3) he wrote "No" and signed his name. Under question (4) he wrote "I am not aware of any such repercussions". 543 The minutes of the meeting recorded this part of it as follows: " melbourne bus operation : Bob presented draft letters to Jim, Carol and Robert and requested that they be signed. Jim and Carol refused to sign the letters. Jim and Carol stated however that: (a) Whatever they had done in Melbourne had no connection whatsoever with Westbus, Bosnjak Holdings or any other company in the group. (b) No money had been taken from the group. (c) Very little time would be required. Bob then asked RA to sign. This was done. " 544 What Mr Ash said about this in cross-examination again raises doubts about his trustworthiness as an employee of Holdings as distinct from an ally of Mr Jim Bosnjak; the episode also shows the situation of conflict in which he too was placed: " A. I read the questions and he just kept on insisting 'I want you to sign it', 'I want you to sign it'. So I looked at the questions and saw whether I had any concern about them. The first two I didn't have a concern about. The second two I wanted to put specific comments against. Q. Well, the first one you have put your signature against it but no comment: 'Were there any balance sheets or any other financial documents supplied to Met for contracts relating to Westbus or Bosnjak Holdings or any of our associated companies'. Remember that? A. Yes. Q. You are saying you had no concern in answering that 'yes'? A. I didn't provide any information. I didn't provide the financial statements that went into the expression of interest. [objection] [hearing adjourned to next day] ELLICOTT: Q. At the adjournment yesterday I asked you these questions, remember I had before you those two pieces of paper that Bob Bosnjak produced at the meeting of 31 August? A. Yes, I didn't have them before me but you showed them from there, yes. Q. I asked you these questions. Well, the first one you have put your signature against it but no comment? A. Yes. Q. 'Were there any balance sheets or any other financial documents applied to Met for contracts relating to Westbus or Bosnjak Holdings or any of our associated companies?' I said, 'remember that?' You said, 'yes'. 'You are saying you had no concern in answering that 'yes'?. I must say I meant to ask you, 'you are saying you had no concern in answering that "no"?'. Let me just read your answer: 'I didn't provide any information. I didn't provide the financial statements that went into the expression of interest'? A. Yes. HIS HONOUR: At that stage Mr Pembroke objected. We didn't know what he objected to, so we stood it over to this morning. ELLICOTT: Q. Do I understand you to be saying this: That you didn't mind signing that, meaning to say that you didn't supply anything and therefore you could honestly answer it 'no'. Is that what you meant? objection (pembroke) PEMBROKE: Could the witness have the document before him (shown to the witness).

WITNESS: I didn't actually answer the question. It does not particularly read well. ELLICOTT: Q. You just put your signature and you didn't intend to convey anything about it? A. That is right really, because the question does not read particularly well and I really can't determine what he was trying to get at. What I was happy with was the fact I hadn't actually attached any financial statements to the expression of interest although there was some there provided to me, by Jim Bosnjak . (underlining added) Q. You are saying to his Honour that the information that was there was provided by Jim Bosnjak not by you? A. As to the financial statements, yes. Q. And as to any information that was in the tender that was provided by National Bus Company and Jim Bosnjak and Carol Bosnjak, is that right, not by you? A. Except to the extent I did some calculations. Q. Yes, but is the point - when I say the point - is the point you want to make that you didn't provide the information, any financial information or any of the other information in either the tender or the expression of interest? A. Insofar as they were not lodged by me, they were lodged by Carol Bosnjak in relation to the tender, yes. Q. Consistent with what you had said about revealing what had happened in relation to Transcard which actually occurred a few weeks before, if anybody was going to make any statements about what had been said in either document or provided in relation to the National Bus Company tender to Met, as it is called, then that was a matter for Jim and Carol Bosnjak? A. Yes, it was. Q. And that was your attitude at the time? A. Yes. " 545 By letter dated 3 September 1993 Mr Bob Bosnjak wrote to the Victorian Minister for Transport as follows: " Dear Sir, I have read a press release that Westbus are involved in a successful tender for P.T.C. Buses in Melbourne. I as the Managing Director of Westbus wish to advise you that this company is not involved in this tender and seek your assurance that they have not been nominated to secure the tendering company in any way. As a matter of interest, I would like to inquire how a new company with no financial history can support a contract of the size nominated. Please address your reply to 6 Parkwood Place, North Rocks, NSW, 2151. " 546 A reply came from the Secretary of Transport dated 15 September 1993 in the following terms: " Dear Mr Bosnjak, With reference to your letter of 3 September addressed to the Minister for Public Transport concerning the tenders for those bus services currently provided by the Public Transport Corporation. I am able to confirm that the National Bus Company Pty Ltd - a stand alone entity - was recommended by independent evaluators Price Waterhouse (Victoria) as the preferred tenderer for the Clifton Hill, Ringwood and Templestowe areas. The Department of Transport is currently negotiating contracts with both the Public Transport Corporation and the National Bus Company. The attached media release provides additional information which you may find of interest and trust this assists to clarify matters. " 547 A non-committal letter also came back from the Premier's Department dated 21 September 1993, in which the writer explained why the Premier could not reply to particular questions. 548 A letter was also written to Mr Bob Bosnjak dated 22 September 1993 from Messrs Hunt & Hunt, Lawyers, on the instructions of NBC and Mr Jim Bosnjak. They had become aware of the letter of 3 September 1993 to the Victorian Minister of Transport. The main point of the letter was to warn Mr Bob Bosnjak not to make damaging statements about NBC. However, for present purposes the material part of this letter was as follows: " As you are aware, prior to our client's departure for overseas, you questioned him in relation to the bid by the National Bus Company Pty Ltd in Melbourne. We are instructed that he advised you at that time that Westbus through Bosnjak Holdings Pty Ltd has no involvement whatsoever in that bid. " 549 Before Young J Mr Bob Bosnjak was cross-examined extensively about why he had distributed the questionnaire at the directors meeting on 31 August 1993. It was suggested to him that the questions asked were inconsistent with his assertion that the only information he possessed at that time was that Mr Jim Bosnjak had won the tender. 550 Young J said that his answers in this part of his cross-examination were unconvincing. Young J thought that the press release of the Victorian Minister of Transport which Mr Bob Bosnjak had either shortly before 31 August or shortly afterwards showed that Mrs Carol Bosnjak was involved in NBC. Young J then added that he thought Mr Bob Bosnjak knew far more about the involvement of Westbus in the NBC expression of interest and tender by January 1994 than he asked the judge to believe. He further said that Mr Bob Bosnjak was amassing material about the Melbourne deal in the period up to 10 January 1994 when a board meeting was held at which the matter of Mr Jim Bosnjak's involvement and Mrs Carol Bosnjak's involvement in the Melbourne operations was clearly raised. Young J also added that Mr Bob Bosnjak knew no later than 2 August 1995 that Holdings' financial accounts had been utilised to facilitate the Expression of Interest. He finally expressed the opinion that there were sufficient facts available to Mr Bob Bosnjak by 10 January 1994 for him to assess whether he would challenge Mr Jim Bosnjak and Mrs Carol Bosnjak over NBC or not. 551 In the appeal these conclusions of Young J were criticised by counsel for the appellant. 552 First, for the appellant it was submitted that before Mr Bob Bosnjak could raise a challenge in regard to NBC on the basis which Young J eventually upheld, he needed to know at least that an invitation to tender was given to Holdings based on an expression of interest prepared by its employees and using its information and further that a tender was lodged by NBC in its own name prepared in a similar way. It was then submitted that Mr Bob Bosnjak did not know those facts until after the proceedings commenced. 553 Young J's finding about the state of Mr Bob Bosnjak's knowledge in January 1994 was then criticised on two grounds: first, it was submitted that the finding did not specify what knowledge it was that Young J thought Mr Bob Bosnjak then had; it was said that he seemed to be directing his mind more to Mr Bob Bosnjak's knowledge of Mrs Carol Bosnjak's participation in the NBC venture about which there was no dispute than to anything else, and that for the finding to be of any real materiality it would have had to specify that Mr Bob Bosnjak knew at least in substance about how and by whose efforts the Expression of Interest had been prepared, then invitation to tender obtained, and then the Tender prepared and submitted (which I will call "the essential matters"). The second ground was that there was no evidence that in January 1994 Mr Bob Bosnjak had any knowledge of the essential matters. 554 It seems to me that there is force in these criticisms. I cannot find any basis in the evidence for the trial judge's conclusion that by January 1994 Mr Bob Bosnjak knew far more about the essential matters than he professed. Assuming that Young J meant, when he said that Mr Bob Bosnjak's answers in this part of his cross-examination were unconvincing, that he did not believe those answers, that of itself does not permit an inference to be drawn about what his positive knowledge was. The minutes of the directors' meeting of 10 January 1994 under the heading "Melbourne" show that Mr Bob Bosnjak's concern was then directed to the time being spent by Mr Jim Bosnjak and Mrs Carol Bosnjak "in Melbourne" and "on the Melbourne operation", that is, on NBC matters and that they should not be doing NBC work on time being paid for by Westbus. 555 For the appellant it was submitted that Mr Bob Bosnjak did not begin to have any knowledge of the essential matters until, pursuant to an application made under the Freedom of Information Act, he received on or about 2 August 1995 a bundle of documents in relation to the tender by NBC for the bus routes in Melbourne, and that what he then got was still not sufficient for him to understand the full involvement of Holdings and Holdings' personnel in the obtaining of the opportunity to tender and the Tender itself and what happened afterwards. 556 In Mr Bob Bosnjak's affidavit sworn 28 August 1997 he referred to the Freedom of Information Act bundle and exhibited 240 pages of what he had received. He also described under four headings the documents exhibited. I need only mention the first two. The first was "Tender by Bosnjak Holdings Pty Ltd dated 13 April 1993", the second "Copy of Tender Document dated 20 April 1993". These were misdescriptions. The 13 April 1993 document was the Expression of Interest of 13 April 1993. The 20 April 1993 document was the DOT standard form for Tender which had been furnished to Holdings as described in par 516 above. 557 The documents did not include the invitation to tender addressed to Holdings nor did they include NBC's Tender. It was submitted for the appellant that Mr Bob Bosnjak did not get those documents until after the proceedings commenced. 558 The proceedings commenced on 28 August 1997, the date of the swearing of the affidavit. Counsel for the appellant drew the court's attention to the first statement of claim filed in the proceedings, on 20 November 1997. In that document the same misunderstanding of the documents dated 13 April 1993 and 20 April 1993 which was shown in Mr Bob Bosnjak's affidavit of 28 August 1997 was shown, in pars 68 and following. These paragraphs asserted that the document of 13 April 1993 was NBC's Tender. It was then alleged that it was this tender which was successful with the Victorian Government. 559 It was submitted for the appellant that it was only in the course of discovery following the filing of the first statement of claim that Mr Bob Bosnjak (and Fexuto) became aware of the DOT invitation to tender directed to Holdings dated 20 April 1993 and the Tender itself. It was submitted that Mr Bob Bosnjak's knowledge of the essential matters for him to know before he could reasonably cause proceedings to be commenced alleging breach of fiduciary duty by Mr Jim Bosnjak and Mrs Carol Bosnjak was not complete until after he obtained these last two documents after the commencement of the proceedings. (The statement of claim in its final form and as litigated was amended consistently with a proper understanding of the documents.) 560 I accept so much of these submissions for the appellant as asserts that until Mr Bob Bosnjak obtained the bundle of NBC documents under the Freedom of Information Act application he had insufficient knowledge of the facts concerning the taking up by NBC of a business opportunity of Holdings to warrant the making of a claim for breach of fiduciary duty against Mr Jim Bosnjak and Mrs Carol Bosnjak on the grounds on which he succeeded before Young J. 561 I have set out the most relevant parts of the documentary evidence indicating his state of knowledge concerning the NBC venture from August 1993 until January 1994. This material indicates that his concerns were that Holdings should not be connected with NBC, that its information should not be given to NBC and that Mr Jim Bosnjak and Mrs Carol Bosnjak should not do NBC work on Holdings' time. The material is consistent with his statement in evidence that as at January 1994 he had no knowledge of essential matters upon which his case, in this respect, later succeeded before Young J. I can see nothing in his cross-examination or elsewhere in the evidence indicating that he had any knowledge of those matters before receipt of the material obtained under the Freedom of Information Act application. That is the part of the submission for the appellant which I accept. 562 The part of the appellant's submission which I do not accept is that Mr Bob Bosnjak was not in a position to cause proceedings for breach of fiduciary duty to be brought against Mr Jim Bosnjak and Mrs Carol Bosnjak until he obtained the complete relevant documentation after commencement of the proceedings in August 1997. Although the argument that he did not have the missing documents available to him until that time seems to me to be quite plausible, I differ from the submission in that it does not seem to me to have been necessary for those documents to have been available before Fexuto could commence proceedings. In my view, once Mr Bob Bosnjak had available to him the Expression of Interest dated 13 April 1993 Fexuto had a sufficient basis for commencing proceedings for breaches of fiduciary duty against Mr Jim Bosnjak and Mrs Carol Bosnjak. Although the documentation was not complete, Mr Bob Bosnjak knew the following two facts: Mr Jim Bosnjak had caused the Expression of Interest of 13 April 1993 (which Mr Bob Bosnjak mistakenly thought was a tender) to be lodged with DOT in the name of Holdings; and the end result, which was that NBC, owned by Mr Jim Bosnjak and Mrs Carol Bosnjak had succeeded in obtaining the contracts. It seems to me these bare facts would be enough to make a prima facie case.

Overview of oppression - remedy . 563 My view that Fexuto established oppression in this case, as at the date of commencement of the proceedings, has been formed against the background that the Bosnjak bus business was a family business from the time it began in 1955 until 1995, in a full sense, and until well past 1995, in the more restricted sense that all the shares in Holdings were held by the family. 564 From 1955 until 1979 Mr S. Bosnjak, Mr John Bosnjak and Mr Bob Bosnjak, and then in the latter part of this period, Mr Jim Bosnjak, provided the minds and the energy which got the business going, ran it, and caused it to grow. Mrs Anda Bosnjak knew what was going on in the business and played a part in some of the major decisions; however, she spent by far the greater part of her time in the home and was not herself active in the business. During his lifetime, Mr S. Bosnjak appears to have been the patriarch of the family to whom his three sons deferred. The three men of the family, and later the four, seem to have worked as a unit with Mr S. Bosnjak having been the controlling mind in the period to the mid seventies, but he was continuing to run his market farm at Bonnyrigg and the bulk of the work, both day to day, and more particularly for present purposes, the organisation and growth side of the business, must have been mainly carried out by the two older brothers with the youngest gradually playing an increasing part. 565 Then, with the reorganisation of the legal side of the family situation in 1975-1977 a basis was laid down for the three sons to continue running the family business after the parents died. 566 From 1979 after the early death of the eldest brother the two remaining brothers ran the business and caused it to grow very much in the way of a two person partnership. Apart from the period in 1988-1989 when Mrs Carol Bosnjak was a director, this remained the position until after the death of Mrs Anda Bosnjak in 1992. From 1979 she had been respected as the remaining parent and oldest member of the family, but her position remained the same as before in that she did no active work in the business. 567 A matter to which I have not previously particularly referred but which became an important aspect of the running and the building of the business was its property side. In the beginning, it may have been accidental or it may have been far-sightedness, when a bus business was bought, the bus depot that usually came with the business comprised land which later became suitable for development. In time, land development became a considerable part of the business. From the fact that, when discussions took place between Mr Bob Bosnjak and Mr Jim Bosnjak about splitting the assets of the business between the three family groups, Mr Jim Bosnjak proposed that Mr Bob Bosnjak take the property side of the business, and from other material in evidence, I infer that Mr Bob Bosnjak must at least have played a large part in developing that side of the business as well as the bus side. 568 I have earlier mentioned the only two occasions of any significance in which Mrs Anda Bosnjak took part in decision making in the family business, of which there was any evidence. One of those occasions, the Calabro purchase, was represented by the defendants as the outvoting of Mr Bob Bosnjak by majority vote. It seems to be better understood as family acquiescence in doing what the eldest member thought best, even although Mr Bob Bosnjak's acquiescence was very grudging, and he did not change his own opinion. Both this and the resignation of Mrs Carol Bosnjak in 1989 were examples of mutual cooperation (even if not everybody was happy with what was decided) not the exercise by one person of some superior authority, or a simple majority decision. 569 What happened from 1993 onwards was a change achieved principally by Mr Jim Bosnjak from the way in which the affairs of Holdings had until then been conducted. The quasi-partnership, direct management by the partners disappeared. There was oppression at that stage. The final step was the appointment of Mr Mostyn as CEO in 1995. 570 In considering the oppression as it was in 1993, it is relevant to take into account what I described in par 460 as the ideas lying behind the possible formulation of the legitimate expectation which I dealt with in pars 443-461. It seems to me preferable in considering those ideas to do so without reference to legitimate expectation at all but to seek what help can be obtained from the kind of partnership analogies drawn on in such cases as In re Yenidge Tobacco Company, Limited [1916] 2 Ch 426. Lord Hoffmann recognised the continuing validity of this approach in O'Neill v Phillips with his reference to company law having developed seamlessly from the law of partnership and to its principles having, with appropriate modification, been carried over into company law.41 The quasi-partnership in the present case was not as simple as the one in Yenidge Tobacco Company in that the company law rights of Mrs Carol Bosnjak's family had to be respected when she wished to become a director. However, in my view, she had acquiesced in the family style consensus type of management of the business, passively perhaps from 1979 to 1988, but then consciously from 1989 when family, not legally enforceable, pressure led to her resignation as a director. 571 Put in quasi-partnership terms, what happened was that from 1993 onwards the majority of the directors changed the previous management regime against the opposition of the minority director Mr Bob Bosnjak. As in Yenidge this in my opinion entitled Mr Bob Bosnjak to a remedy. In an ordinary partnership this would have been dissolution of the partnership. Upon such a dissolution the partnership property after payment of debts would have to be sold if the partners could not agree on its distribution among themselves. That is because there was no power in the chancery jurisdiction to compel agreement or order sharing of the assets remaining after payment of partnership debts. The court in this case has the power to order what could not be ordered under ordinary partnership law. The occasion for the remedy is closely similar in both cases but the range of remedies is wider under s 260, and would justify, in the present case, the making of an order for what was called a split of the assets. 572 There were suggestions in parts of Young J's reasons that he thought some acts either oppressive or contributing to oppression were no longer operative in regard to oppression extant at the time when Fexuto commenced proceedings. The way it seems to me is that right up to the time when he commenced the proceedings Mr Bob Bosnjak was asserting and attempting to exercise what he regarded as his right to participate directly in management, notwithstanding the disappearance of the consensus system. What eventually led to the commencement of the oppression proceedings was the proposed amalgamation of Holdings with NBC and the proposal that the new structure should be "Bob-free". Faced with the position that he might be excluded altogether from any kind of management of what had been the family business, he gave up the fight to assert what he considered were his direct management rights and sought relief from the court.

What are appropriate orders . 573 The relief Fexuto principally seeks is that a sale be ordered to it of Fexule and Feyama's four sevenths of the shares in Holdings. I do not think it is entitled to such an order. Fexuto's next claim is for a split of the assets. In my opinion this is an appropriate order. In explaining these opinions I will deal first with the latter of the two. 574 One main reason for thinking an order for a division of assets should be made is that Mr Bob Bosnjak played a considerable part in building up Holdings' business. Against the background discussed in the previous section it seems appropriate that one of the principal builders of the business should be able to have a fair share of the assets of the business when the previous quasi-partnership through which the business was run has disappeared. 575 A further important reason, to my mind, is that Mr Bob Bosnjak and Mr Jim Bosnjak both thought that a division of assets was an appropriate solution to the disagreements that had arisen in the family. Mr Bob Bosnjak first thought this should be done during the period following the appointment of Mrs Carol Bosnjak as a director in 1988. Mr Jim Bosnjak proposed an asset split in 1991. In 1993 he proposed that legal advice be sought concerning a split or a restructuring. From then on there was continuing discussion about a split. The brothers could never agree about who should take which assets. Although it seems to me that a division of assets could present commercial and legal complications, I do not think that these would be insuperable. Nor did either of the brothers ever raise objections of that kind to the split. Since they were agreed on a split, but not on how it should be done, I think at this stage the relevant parties should be given a opportunity of seeing whether they can agree (that is, if Fexuto chooses this option) on an appropriate division of assets, and if they cannot, then it will be for the court to decide for them. 576 Young J did not see any merit in ordering a split; his reasons were that the two brothers could not agree on an appropriate division; he thought Mr Bob Bosnjak's proposals were nebulous and found the evidence of Mr Gotze to be of little value. Having read that evidence for myself, I think it carries significant weight. Mr Gotze seems to me to be a genuine expert in his field, and it does not strike me that the value of his expertise is geographically limited in the way the trial judge thought it was. His evidence seems to me to show a division of assets could be done. 577 The present shareholding in Holdings is: NBC, four sevenths; Fexuto, two sevenths; and Group as trustee for Trust No 4, one seventh. A division of assets was one of the orders sought by Fexuto in its statement of claim and in its notice of appeal. All parties interested in NBC, Group and Trust No 4 have been fully aware at all relevant times that Mr Bob Bosnjak was seeking a division of the assets as one of the remedies for the oppression he alleged. I do not see that there is any prejudice or unfairness either to NBC or Trust No 4 in the making of the orders I propose. 578 My reason for not thinking that the present holders of Fexule and Feyama's four sevenths of Holdings shares should be ordered to sell them to Fexuto is connected with my view about the division of assets. Stated at its simplest, I think Fexuto/Mr Bob Bosnjak is entitled as a matter of fairness to a proportionate part of the business, but not to a further four sevenths more than his share, even paying a fair price, against the will of parties themselves entitled to do what they like with their shares (whether those parties are Fexule and Feyama or purchasers from them). Mr Bob Bosnjak has a good claim to part, but not to nearly all. 579 I also think Fexuto is still entitled, if it chooses to sell its shares, to have an order that they be bought by Mr Jim Bosnjak and Mrs Carol Bosnjak at a valuation taking into account the results of the inquiries as to value on the basis I have earlier mentioned. 580 The result of my conclusions about appropriate orders in this case would be that Fexuto would have a choice of remedy: it could take two sevenths of the assets of Holdings or if it chose not to accept that remedy, it could compel Mr Jim Bosnjak and Mrs Carol Bosnjak to buy its shares at a fair valuation. Either remedy will make it necessary to decide what the assets of Holdings are or what the value of two sevenths of the shares in Holdings is. The working out of either decision will be affected by what is the appropriate remedy for the breaches of fiduciary duty of Mr Jim Bosnjak and Mrs Carol Bosnjak concerning NBC. 581 Before Young J, Fexuto contended that the proper relief was that the shares in NBC should be held on constructive trust for Westbus. Young J rejected that submission but in his further reasons of 4 November 1998 accepted Fexuto's alternative submission that the profits made through the breaches of fiduciary duty were the full value of the shares in NBC less the subscription price of $2, but qualified that conclusion by saying that that capital value of the shares in NBC was to be taken as at 10 January 1994. Fexuto's submission in the appeal was the same as that accepted by Young J at the trial, but did not accept his qualification to it. 582 I do not think anything has been raised by the respondents in the appeal which shows any error on the part of Young J in his acceptance of Fexuto's proposition that the profits from the breaches of fiduciary duty were the full value of the shares in NBC. Nor on the other hand do I think that the appellant has succeeded in disturbing Young J's conclusion that, on the basis of what was said by the High Court in Warman International Limited v Dwyer (1995) 182 CLR 544 the value so found must be reduced by an appropriate allowance in order to prevent Fexuto's claim extending "further than the justice of the case demands".42 583 I have explained why I do not agree with the date chosen by Young J as at which the NBC shares should be valued, but my conclusion that Fexuto could have commenced proceedings by the end of August 1995 does not necessarily mean that that should be the date of valuation. It seems to me there is a choice to be made between August 1995 or the date of the commencement of the proceedings. In my view it would be simpler and fairer to take the date of the commencement of the proceedings and leave the justice of the case to be determined by the extent of the allowance to be made as a deduction from the valuation figure. In regard to the calculation of the allowance, Young J made no decision. Having got to the point that there must be a determination of an appropriate allowance he said he would not proceed further about that matter at that point, but that the defendants should isolate the matters which they said were proper matters for an allowance; the plaintiff could then indicate its attitude to those claims and an assessment could then be made. What the precise orders in that respect should be was apparently never crystallised because of the intervention of the appeal proceedings. The process directed by Young J should now be reactivated and the draft minutes of orders which I suggest should be brought in in light of the court's decision should make provision for the settlement of a procedure for assessment. 584 In my opinion orders should be made to the following effect: (1) Fexuto should be given the option of receiving two sevenths of the net assets of Holdings; the ascertainment of such assets should take into account the amount found to be the value of NBC's shares at the date of the commencement of the proceedings, less a just allowance and any amount found in regard to Transcard as indicated in Young J's orders; (2) In the event Fexuto does not choose the option in (1) it is to have an order that Mr Jim Bosnjak and Mrs Carol Bosnjak buy its shares and to have fourteen days from the date of such order to elect whether it will sell its shares to them; (3) If it does so elect the value of its shares is to be calculated in the manner proposed by Young J, but as at the date of the commencement of the proceedings, for the valuation of the NBC shares, and as indicated by Young J for Transcard. From the valuation of the NBC shares a just allowance is to be deducted. (4) Fexuto is to have its costs of appeal and cross-appeal and two thirds of its costs below; (5) Short minutes of the orders are to be brought in and should include a statement of the matters which are proper matters for determining a just allowance to be deducted from the valuation of the NBC shares. 585 As agreement between the parties at this stage seems unlikely both Fexuto and the respondents should file what they separately contend are appropriate orders for implementing this court's decision, within fourteen days of the date of publication of the court's reasons. 586 FITZGERALD JA: The circumstances giving rise to this appeal are carefully and comprehensively set out in the reasons for judgment of Priestley JA. His Honour's reasons enable me to explain my opinion more briefly. For the most part, I have adopted the abbreviations used by his Honour. 587 Broadly stated, Bosnjak Holdings Pty Ltd (Holdings)43 was the holding company for the group of companies which own the business interests of the family of the late Simun Bosnjak and his deceased wife Anda. Simun and Anda Bosnjak had three sons, John, Bob and Jim, each of whom married and had one or more children. John is dead but is survived by his wife Carol and their daughter, Deborah. The relationship between Bob and Jim broke down and they could not work together. Carol sided with Jim. Bob alleges that Jim and Carol breached fiduciary duties to Holdings and that its affairs were conducted in a manner that was oppressive or unfairly prejudicial to him and contrary to the interests of its members as a whole.44 588 During his lifetime, Simun Bosnjak was the Governing Director of Holdings and held what was called the Governor's share. Under its Articles, Simun had absolute control of Holdings. 589 In the mid-1970s, Holdings was restructured. The Board of Directors of Holdings was expanded to include the 3 sons in addition to Simun and Anda. Further, the shares in Holdings, other than the Governor's share, were transferred to 4 companies. Each of Fexule Pty Ltd (Fexule), Fexuto Pty Ltd (Fexuto) and Feyama Pty Ltd (Feyama) became the holder of 2/7 and Bosnjak Group Pty Ltd (Group) became the holder of 1/7 of the issued ordinary shares in Holdings. 590 The directors of Fexule were John and Carol Bosnjak and its shareholders were John and Group as trustees of the John Bosnjak Trust. The directors of Fexuto were Bob Bosnjak and his wife Dragica and its shareholders were Bob and Group as trustees of the Bob Bosnjak Trust. The directors of Feyama were Jim Bosnjak and his wife Gloria and its shareholders were Jim and Group as trustees of the Jim Bosnjak Trust. Despite Group's involvement, it has been accepted throughout that each of Fexule, Fexuto and Feyama is effectively controlled by its directors, and it is unnecessary for the most part to distinguish between Bob and Jim and Carol and the corporate entities which held (and in Bob's case hold) their respective share interests in Holdings. 591 Group held its shares in Holdings as trustee for the Anda Bosnjak Trust. Simun, John, Bob and Jim each held one share in Group and were its directors. The "Primary Beneficiaries" of the Anda Bosnjak Trust were described in the trust deed as "The children of the sons of Simun Bosnjak and Anda Bosnjak" and the "General Beneficiaries" were described as "The sons and the children of the sons of Simun Bosnjak and Anda Bosnjak. 592 John Bosnjak died in July 1979. Control of Fexule and its 2/7 shareholding in Holdings and John's share in Group passed to his widow, Carol. 593 Simun Bosnjak died in October 1979. Under his will, his estate including his share in Group passed to his widow, Anda. The office of Governing Director of Holdings lapsed, and Simun's Governor's share became a preference share. 594 As a result of the deaths of Simun and John Bosnjak, Bob and Jim were the only directors of Group, and Bob and Jim and their mother Anda were the only directors of Holdings. 595 While Bob and Jim and Anda were the directors of Holdings, Bob and Jim managed Holdings and the businesses conducted by it and its subsidiaries. Bob's evidence was that Jim and he made all decisions jointly and that if they could not agree no action was taken. Their mother, Anda, lived with Jim and his family, and he gave evidence that he discussed the business with her every day after he arrived home from work. The trial judge found that Anda participated in business decisions to the extent stated by Jim and that, in the period between Simun's death and Anda's death, sometimes broke deadlocks between Bob and Jim. However, his Honour also found that, when Anda, Bob and Jim were the only directors of Holdings, Bob tended to get his own way. Unless Bob agreed, no action was taken. Bob could effectively veto any proposal either by disagreeing or by refusing to discuss what was proposed. Later, his Honour concluded that although "Bob and Jim …. had day to day management and control of Holdings" after Simun's death, "that fact alone [was] insufficient from which to construct a legitimate expectation … by Bob" that he would permanently share in the day-to-day management of Holdings. 596 At a meeting of the directors of Holdings on 12 September 1988, Anda and Jim appointed John's widow, Carol, a director of Holdings over Bob's strong opposition. Bob said that he considered Carol's appointment unnecessary. The trial judge found that the main reason for Bob's opposition to Carol's appointment was that it altered the balance of power. Bob anticipated that "if Carol was appointed as a director of Holdings she would in all likelihood vote in support of Jim and thereby reduce the extent to which [Bob] would, in the future, be able to provide management and direction of the day to day operations of the business" Time proved Bob to be correct. Carol commonly supported Jim when he and Bob disagreed. With one exception, Carol voted with Jim on every resolution proposed at directors' meetings. Major decisions were taken over Bob's opposition by Jim and Carol, sometimes with Anda's support. 597 Bob deeply resented his loss of power. He was no longer "the boss". He proposed that Holdings' assets should be divided, but the parties have never been able to agree how that should be done. The trial judge found that Bob became "obsessed … seeing a conspiracy in almost everything that was done in [Holdings]". Bob's "resentment led to [him] opposing virtually every proposal that was put to the board". 598 In an unsuccessful effort to ease the conflict between her sons, Anda Bosnjak persuaded Carol to retire as a director of Holdings in June 1989. 599 In 1991, Cabcharge Australia Pty Ltd wrote to Jim proposing a joint venture involving the use of a stored value "Transcard" to pay fares in taxis and on Holdings' buses. The events at that time are referred to in paras. 491-493 of Priestley JA's judgment. Although the proposal had potential benefits for Holdings, I do not agree with his Honour's statement that there was "nothing untoward concerning the project to this point." Jim should not have withheld all knowledge of the proposed joint venture from Bob. I will come back to Transcard in due course. 600 By 1991, the relationship between Bob and Jim was very poor. Another proposal for division of the assets was made that year, this time by Jim. Again, agreement proved impossible. 601 In a will which Anda Bosnjak had made in the mid-1970s during the restructure of Holdings, she had provided for her estate to be divided equally between those of her sons who survived her. On 27 April 1992, she was admitted to hospital. Two days later, she made a new will appointing Bob and Jim and Mr Robert Ash, the Financial Controller of Holdings, her executors and bequeathing her estate to her six grandchildren. 602 Anda died in October 1992. Her will of 27 April 1992 gave $50,000 to each of her four grand-daughters, Deborah (the daughter and only child of John and Carol), Sandra (the daughter and only child of Bob and Dragcia) and Marie and Julie (the daughters of Jim and Gloria). Anda's grandsons, Jim's sons, Simon and James, received the residue of her estate, including her share in Group. 603 Anda's change of will was very significant. On her death, Bob and Jim became the only directors of Holdings. They were already the only directors of Group. If they continued to disagree, Bob could continue to obstruct Jim. If Jim controlled Anda's share in Group, his position would be greatly strengthened and Bob's position would be severely weakened. Provided that he also had Carol's support, Jim could control general meetings of Group and Holdings and appoint additional directors to each of those companies. Under Holdings' Article 62, Fexule, Feyama and Group's shareholdings were even sufficient to remove Bob from the Board at a general meeting of Holdings. Similarly, if Jim controlled Anda's share in Group, he could with Carol's support remove Bob as a director at a general meeting of the shareholders of Group. 604 On 10 March 1993, the Victorian Government had advertised for expressions of interest in the acquisition of a substantial part of the Public Transport Corporation's Melbourne bus services. Jim Bosnjak was interested in tendering but Bob was totally opposed to Holdings' involvement. Nonetheless, Jim lodged an Expression of Interest in Holdings' name on 13 April 1993. 605 Jim's home address, not Holdings' usual address, was shown as its address in the Expression of Interest. The covering letter stated: "For the purpose of this Expression of Interest details have been provided in respect of the Bosnjak Holdings 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." 606 National Bus Company Pty Ltd (NBC) was incorporated on 7 May 1993 without Bob's knowledge to tender for the contract with the Victorian Government. Jim and Carol were NBC's shareholders and directors. 607 Jim arranged an overdraft and leasing facilities for NBC with the National Australia Bank and it lodged a tender of 28 May 1993. The tender stated that the shareholders in NBC were the owners of the majority interest in Holdings and provided some information in relation to Holdings. The circumstances which led to Jim's knowledge of the Victorian Government proposal and the preparation and lodgment of NBC's tender are described in paras. 511-524 of Priestley JA's judgment. As Priestley JA states in para. 519 of his judgment, NBC's tender is a lengthy and impressive document. 608 The trial judge accepted Jim's evidence that, shortly before the time for tenders expired, he told Bob that most of the papers were ready for a tender to be lodged and inquired whether Bob had given the matter any more thought and Bob replied: "I told you before that I'm not going into this with you or anybody else. If you want to go for it, you go for it - I don't want anything to do with you. Get out of here and don't come back." 609 Although Jim and Mr Ash knew that Anda had changed her will, Bob was unaware that she had done so until June 1993. Although he joined in a request for probate of the will Anda had made in April 1992, he later commenced a proceeding in the Equity Division in which he sought revocation of the grant. Jim's sons brought a separate proceeding in the Equity Division to obtain a grant of probate in solemn form. Neither proceeding in relation to Anda's will had been determined when the present proceeding was tried. 610 In July 1993, Bob was still unaware of the Transcard project, which, by then, had expanded to include the merger of payment and ticketing systems for use on all types of passenger transport. The project was to be carried out by a joint venture company, Transcard Australia Pty Ltd (Transcard Australia). 611 On July 1993, Carol Bosnjak was reappointed a director of Holdings while Bob was overseas. The trial judge held that Carol's appointment was "invalid or irregular" but that "Bob Bosnjak in due course recognized Carol as a director". His Honour found "… that the reason for the appointment of Carol was not any conspiracy against Bob Bosnjak, but an attempt to break the deadlock which was being caused by Bob not attending directors' meetings". 612 Bob gave evidence that "… the circumstances surrounding the preparation and execution of the will caused an exacerbation of the tensions between" Jim and himself which "increased further as a consequence of the appointment of Carol Bosnjak as a director of Holdings on 19 July 1993 and the events surrounding the successful tender by NBC…". 613 On 23 August 1993, the Victorian Government announced that NBC had succeeded in its tender and the contract was entered into on 26 September 1993. Considerable work had been needed to obtain the Victorian contract for NBC. Bob was unaware that Holdings' employees had been involved in that work. 614 Bob remained unaware of Transcard. Neither he nor Carol knew of Transcard before this proceeding was commenced. Jim became a director of Transcard Australia and a shareholder through a nominee. Holdings entered into a service agreement with the Transcard company. Holdings' money and its employees' time were used in promoting Transcard. There was no board authorisation for these undisclosed activities and expenditure. Ultimately, the joint venture turned out to be unprofitable, and Cabcharge bought out Jim's interest in Transcard Australia for a little over the amount of $900,000 which he owed for his share of the development costs. More detail on these matters is contained in paras. 495-498 of Priestley JA's judgment. 615 The trial judge found that, although Jim utilised skills which were gained from Holdings in gaining the Victorian contract for NBC, his expertise was his own and his use of it was not a use of Holdings' property. Further, Jim and Carol had financed NBC from their own resources; Holdings' money had not been used. Jim withheld information from Bob because he did not want Bob to sabotage NBC's bid rather than to deprive Holdings or Bob of involvement. Although the services of senior staff of Holdings had been utilised to do work on its behalf, NBC's use of Holdings' employees "only occurred to a minimum extent" and was "not a significant factor in this case." 616 However, his Honour held that the opportunity to tender which NBC had exploited belonged to Holdings. His Honour also considered that there was a real possibility of competition between Holdings and NBC despite steps taken by Jim to reduce that possibility as a practical matter. Although NBC had incurred losses for about 3 years as projected in its tender, it was or would soon become quite profitable. 617 His Honour concluded that the NBC transaction breached Jim and Carol's fiduciary duties to Holdings, Bob did not give his informed consent to those breaches on behalf of Holdings, and Holdings did not otherwise lose its right to complain of those breaches. Jim and Carol's exploitation of Holding's commercial opportunity was oppressive to its "members as a whole". An "actual or notional accounting for monies which should be returned to Holdings" by NBC was called for. His Honour's orders took into account his finding that Bob knew sufficient by 10 January 1994 to enable him to decide then whether or not to commence proceedings against NBC and Jim and Carol. 618 The trial judge held that the Transcard joint venture also involved a breach of Jim's fiduciary duty and significant oppression and that again there would need to be an accounting in favour of Holdings. 619 In late 1993, Bob and Jim agreed that Holdings could not continue to operate under the circumstances which then existed and that legal advice should be obtained about dividing its assets or restructuring. However, they could not agree upon a satisfactory division. While unproductive discussions on division of Holdings continued, the relationship between Bob and Jim worsened. 620 The trial judge found that Bob was critical of not only Jim and Carol but also senior and middle level managers whom Holdings employed. On the other hand, Bob had some cause for complaint. For example, his Honour found that Mr Ash ".. did act partially in Jim Bosnjak's interest and tended to by-pass Bob." 621 In late November 1994, Mr John Mostyn was appointed by the Board of holdings to carry out a review of its operations. Subsequently, on 16 January 1995, he was appointed Chief Executive Officer (CEO) of Holdings for six months. In May 1995, his appointment as CEO was made permanent. The appointment had first been proposed at a Board meeting on 26 October 1993. Bob opposed the proposal then and continued to do so. When Mostyn came to Holdings, Bob told him that he was not going to help him, that he did not want him there and that he did not trust him. There were constant clashes between them and each sued the other for defamation. Jim and Carol authorised the use of Holdings' funds for Mostyn's defamation action against Bob. 622 The trial judge found that Mostyn became Jim's right hand man who regularly disagreed with Bob. Bob was forbidden to give instructions to employees or to take any part in management except through the Board of Holdings or Mostyn. Jim gave evidence that he was in the same position as Bob in that direct management was carried out by Mostyn and middle managers. The trial judge found that Mostyn would confer with Jim and Carol and tell them his recommendations and obtain their reactions before directors' meetings. Although his Honour did not consider that this led to predetermination of Board decisions, he was critical of the "predigestion" which occurred. His Honour also found that Jim's management decisions were effectively implemented because Mostyn took notice of his wishes on the basis that he represented the majority of the Board. 623 Although the trial judge found that Bob's difficulties with Mostyn were more the product of Bob's attitude to the diminution of his influence than any act or planning by Jim or Carol to belittle or humiliate him, his Honour also concluded that from May 1995, Mostyn, encouraged by Jim and Carol Bosnjak, deliberately ensured that Bob had a minimal role in the day-to-day management of the business.

624 Information was sometimes withheld from Bob. For example, a report concerning renovations at Holdings' Northmead depot was withheld and on occasions information which Bob requested was refused. In 1995, he requested that an accountant be given access to the detailed financial records of Holdings so that he could formulate a proposal for a fair division of Holding's assets. Bob's request was refused, which led to litigation in the Federal Court. In August 1995, it was agreed that certain information would be provided. After further undertakings were given, the Federal Court proceedings was dismissed by consent in September 1996. The trial judge held that Bob should have been provided with information which had initially been refused. 625 On 10 July 1997, NBC's solicitors wrote to Bob setting out a proposal for the merger of NBC and Holdings which would then be floated as a public company in which the Bosnjak family would hold 60 per cent. Bob was not to be a director of the public company. Jim's evidence was that he had been advised by the proposed underwriters that the float would not succeed if there were dissident directors but Bob's omission from the Board was intended to be temporary only. NBC's solicitors' letter of 10 July 1997 proposed as an alternative to the merger and public float that Jim and Carol buy Fexuto's shares in Holdings at valuation. Bob was given until 18 July 1997 to indicate whether or not he accepted either proposal. He rejected the both. 626 On 28 August 1997, Fexuto commenced the present proceeding. 627 On 24 November 1997, a second proposal was presented to Bob and he was given 3 days to make his decision. This proposal was considered by the directors of Holdings on 27 November 1997. Mr Oliver, the Manager of NBC, told Holdings' Board that the report embodying the proposal had taken him and Mr Ash 4 weeks to prepare. Bob requested a 7 to 14 day adjournment of the meeting because he had had the proposal and associated information for only 3 days. His motion for the adjournment of the meeting was not seconded and failed. Jim and Carol then voted to accept the proposal over Bob's opposition. Various associated motions were passed by the same majority. Transfers of Fexule's and Feyama's shares in Holdings to NBC were approved. 628 On 16 December 1997, a consent order was made in the Equity Division which restrained any implementation of the resolutions of the directors of Holdings on 27 November 1997 until further order. Paragraph 5 of the final orders made on 4 November 1998 discharged the "undertakings and orders made on 16 December 1997 … as from 4 November, 1998". No appeal or cross-appeal was brought from that order, and Fexule's and Feyama's shares in Holdings were transferred to NBC. 629 Bob alleged that Jim and Carol's proposal to amalgamate NBC and Holdings was driven by financial difficulties in NBC which had arisen in late 1996, necessitating a substantial injection of capital into NBC. He also alleged that the proposal had been prepared using Holdings' employees and expertise, and complained of the actions taken by Jim and Carol Bosnjak to accept the proposal and transfer their shares in Holdings to NBC. 630 The trial judge found that the proposals for amalgamation had arisen from severe liquidity problems in NBC and that, although there were very real benefits to Holdings, the true purpose of the merger was to benefit NBC and/or to rid Holdings of Bob. His Honour concluded that "…. the principal aim of the proposed amalgamation was to exclude Bob Bosnjak's influence even further". A submission that the amalgamation of NBC and Holdings was not an act in the affairs of Holdings was rejected. However, his Honour considered that the injunction granted on 16 December 1997 had put an end to any potential oppression from the merger proposal and noted that Bob no longer seemed to object to a merger provided that he was entitled to a 1/3 interest in the corporation which resulted from the merger. 631 From the time Fexuto commenced this proceeding until the day the trial began, Holdings participated in the proceedings to oppose Fexuto. The trial judge rejected submissions that Holdings did no more than it was entitled to do to protect its own interests. His Honour noted that a full defence was prepared by Holdings' solicitors and that counsel were paid thousands of dollars preparing for the hearing to oppose Fexuto. Reference was made to Holdings' participation in a number of vigorously contested interlocutory proceedings. At least 1/3 of Holdings' costs "were incurred to support the majority." His Honour held that a majority is not permitted to authorise a company to spend shareholders' funds in opposing minority suits under s260 of the Corporations Law and that Holdings' role in the litigation "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 [Holdings] for the unauthorised expenditure … ." 632 A broad summary of the trial judge's conclusions is contained in the following passage from his Honour's principal reasons for judgment, which were published on 9 September 1998. "There is no doubt in my mind that the attempts to create a 'Bob free environment' by the majority did affect Bob's rights as a member of the company even putting aside any legitimate expectations of management. Bob's general attitude may have been seen by the majority as meaning that they could not work together. However, contributory negligence is no defence to oppression. The majority must respect the rights of the minority no matter how difficult or trying they might consider that to be. Looking at the conduct of the majority as a whole, I must ask myself whether there has been conduct of the affairs of Holdings and Westbus which is unfair to Bob judged from the point of view of the reasonable observer. In my view the conduct does step over the mark. Bob Bosnjak, despite his personality was entitled to be consulted much more than he was. Despite his propensity for abusing people who approached him, there was no reason why at least key proposals could not have been submitted to him in writing. His views as to the change from management by the directors to management by executives and to the use of consultants were entitled to be given greater heed than they were. However, for reasons which follow, I consider that the appropriate remedy for the oppression is, if Bob Bosnjak so wishes, his shares be purchased by the majority after there has been an actual or notional accounting for monies which should be returned to Holdings. " 633 After further submissions in relation to the form of the orders to be made and costs, the trial judge made formal orders and published additional reasons on 4 November 1998. 634 On 11 September 1998, 2 days after the trial judge's principal reasons for judgment were published, Bob learned of a proposal that an unnamed "interested party" might provide a capital injection or take up an equity position in NBC. Bob had no knowledge of the MOU between Jim and NEG at that time. 635 Bob applied for an injunction to restrain NBC from any agreement relating to dealings in its shares. On 2 October 1998, Jim, Carol and NBC gave undertakings to the Court not to enter into any such agreement. Those undertakings were subsequently extended up to and including 29 October 1998, which was the date fixed for oral argument concerning the form of the orders to be made in this proceeding and costs. 636 On 13 October 1998, Bob obtained a copy of a Memorandum of Understanding (MOU) which had been entered into between Jim and an English corporation, National Express Group PLC (NEG), together with copies of related communications. 637 On 23 October 1998, Fexuto's solicitors wrote to NEG. The letter informed NEG of various matters, including the nature of the present proceeding, the relief sought by Fexuto (which included an order that the other shareholders in Holdings sell their shares to it) and the position the proceeding had reached at the date of that letter. Copies of the principal pleadings and the trial judge's principal reasons for judgment were enclosed. NEG was informed that it was likely that there would be an appeal against the trial judge's final orders and the possibility of an application for special leave to appeal to the High Court was mentioned. Presciently, the letter pointed out that this proceeding might not be finally resolved for a considerable period of time. It also referred to the undertakings which had been given to the Court by Jim and Carol and NBC, asserted that entry into any agreement pursuant to the terms of the MOU would breach Holdings' rights and stated that, if NEG acquired a shareholding in NBC pursuant to the MOU, Fexuto would take any necessary steps to obtain the transfer of NEG's interest to Holdings or other appropriate relief. The letter also complained of negotiations which had been conducted between Jim and NEG, and alleged that Jim had misinformed NEG that NBC's CEO, Oliver, was acting on behalf of both NBC and Holdings. The letter concluded by suggesting a meeting between Bob and NEG prior to the further hearing which took place on 29 October 1998. 638 Paragraph 11 of the orders made by the trial judge noted an "Independent Directors Agreement" which his Honour initialled and placed with the papers. That agreement, which had been made between Holdings, Jim, NBC, Bob, Fexuto and Gloria Bosnjak, provided for two independent directors to be appointed until 31 March 1999 to consider a proposal for an amalgamation of the businesses of Holdings and NBC. Only Bob and the two independent directors were to vote on the amalgamation proposal. Jim and Gloria were not to vote. 639 The independent directors were appointed, but they resigned after Holdings' Board resolved on 29 March 1999 not to take further action on the amalgamation proposal. 640 During the course of this proceeding, Fexule and Feyama sold their shares in Holdings to NBC, Jim bought Carol's shares in NBC, and Jim's wife, Gloria, replaced Carol as a director of Holdings. 641 In May 1999, NEG purchased the entire issued capital of NBC from Jim. NBC's assets include a 4/7 interest in Holdings. NEG's acquisition of the issued capital of NBC of course does not affect the orders which can be made against NBC, which is and throughout has been a party to this proceeding. 642 At a meeting of the Board of Holdings on 17 May 1999, two new Directors were appointed to Holdings to represent NEG. Jim and Gloria Bosnjak voted in favour of those appointments which were opposed by Bob. 643 On 11 June 1999, Fexuto commenced a second proceeding under s260 of the Corporations Law alleging oppression. 644 Fexuto's claim for interlocutory relief in its second oppression proceeding was resolved on terms which are recorded in a letter dated 21 June 1999 to its solicitors. The letter denied that there had been any oppressive conduct and recorded an agreement between the parties to the second oppression proceeding as follows: "1. The members meetings of the Bosnjak companies convened for 23 June 1999 will lapse with the agreement of all shareholders. This will mean the shareholders will not attend personally, or by proxy or by representative, the meetings of the Bosnjak companies convened for 23 June 1999 or any adjournment thereof.

2. The effect of the lapse of the meetings will be that the current composition of the boards is not changed and our client reserves its rights to remove Mr Bob Bosnjak as a director of the various Bosnjak companies, but shall give your client 4 weeks notice. 3. The recommendations of the directors in relation to the dividend policy stand. That is to say, no dividends will be paid in the year commencing 1 July 1999 unless the directors otherwise decide.

4. Messrs White and Bosnjak will meet on 22 June 1999 to discuss the costs of the proceedings, your client's salary package, management systems, and board structure, including the resignation or removal of Mrs Gloria Bosnjak as a director of the Bosnjak companies. To avoid any misunderstanding, this paragraph does not mean the outcome of those discussions must be to the satisfaction of Mr Bob Bosnjak, but rather that the parties meet and hold those discussions in good faith. 5. The notice of motion will be dismissed with costs reserved.

6. The plaintiff will not in the present proceedings (save as to the question of costs) pursue the issues of whether; -- the removal of Mr Bob Bosnjak from the boards of the Bosnjak companies or the prevention of Mr Bob Bosnjak remaining as a director on those boards in his capacity as a nominee of the plaintiff at the meetings convened on 23 June 1999 is oppressive; and

-- the taking of any steps to avoid the declaration of any dividend a further dividend in the Bosnjak companies in respect of the financial year ending 30 June 2000 is oppressive. " 645 At a General Meeting of Holdings on 8 February 2000, the number of Directors was increased from 5 to 8. Bob and Jim Bosnjak remained Directors and 3 Directors were appointed to represent NEG. 646 In about May 2000, the Bosnjak name commenced to be removed from the buses operated by Holdings and its subsidiaries. 647 In summary, Fexuto is now a minority shareholder in Holdings and Bob is only 1 of 8 Directors on Holdings' Board. 648 Broadly stated, the respondents contend that there has been no oppression and no breach of fiduciary duty. Fexuto's broad contention is that Jim and Carol breached their fiduciary duties and that those breaches formed part, but only part, of the oppression suffered by Bob. Great importance was placed upon what was said to be his impermissible exclusion from the "day to day management" of Holdings, which was contrary, it was submitted, to his "legitimate expectation" that he "would be in a position at all material times to effectively participate in the management of Holdings".

Oppression etc 649 The concept of "legitimate expectation" seems to me unhelpful in this context. It tends to distract attention from the central issue, which (oversimplified) is whether or not oppression is established. Circumstances can make it oppressive for one party to use his or her legal power to the disadvantage of another. When the present proceeding was commenced, Holdings was in substance a corporate "partnership" between Bosnjak family members, including Bob. The exercise of legal power in such a company to the disadvantage of one of the "partners" inconsistently with the conventional understanding on which their relationship is based constitutes oppression unless what is done is justified in the circumstances. 650 One of the disadvantages of the use of "legitimate expectation" in this context is that it can lead, as it did in this case, to a debate concerning whether, and if so why, any legitimate expectation which had existed had come to an end. The issue seems to me always to remain whether, in all the circumstances including the conventional understanding on which the parties' relationship was based, conduct engaged in was oppressive. That requires consideration of all circumstances, including the material conduct of all parties, including the party alleging oppression. 651 It cannot be determined whether conduct is oppressive (or unfair) because it departs from a conventional understanding without an accurate perception of the conventional understanding from which the conduct is alleged to depart. The legitimate expectation asserted by Bob was an entitlement "to effectively participate in the management of Holdings". Effective participation in management is capable of a variety of meanings. For example, management can include day-to-day administration and ultimate authority for decisions. Decision-making by a majority after discussion is different from "consensus style" decision-making without any mechanism for resolution in the event of disagreement or decision-making by a "boss" with the right to decide in the event of disagreement and/or a right of veto. 652 In his reasons for judgment,45 Priestley JA states that "… it is clear that all three sons contributed to the fullest extent of which they were capable of running the business and that each by 1975 would have been justified in regarding himself as an integral part of the ownership of the business, subject to the regulation and wishes of the father." That seems to me to be an appropriate starting point. 653 Between 1975 and 1977, the shareholdings of the 3 Bosnjak sons, John, Bob and Jim, and their wives were equalised so that each son's family held 2/7 of the issued shares in Holdings through Fexule, Fexuto and Feyama respectively. Further, the sons ceased to be mere employees when each was appointed a director of Holdings on 31 December 1975. Each son had then, and/or was acquiring additional, management responsibilities. However, their father, the founder of the business, Simun, retained ultimate control. Simun was the Governing Director and held the Governor's share in Holdings. Under Holdings' Articles, he had not only total control but also the power to appoint his replacement as Governing Director during his lifetime or by his will. If Simun did not appoint a replacement Governing Director, his executors could do so within a specified period. Under Article 12(i), a Governing Director appointed by Simun or his executors was entitled to "enjoy the right to the whole management and control of the company and be clothed with all the powers, authorities, rights and discretions, whether general or special which by these Articles or the Memorandum of Association are excercisable by … Simun Bosnjak as Governing Director". 654 The Articles of both Holdings and Group provided for majority decisions (subject to the "powers authorities, rights and discretions" or Simun or any other Governing Director) and (subject to Board consent) permitted the transfer of shares. If, as seems likely, it was assumed at the time of what Priestley JA has described as the "1975-1977 re-arrangement"46 that all 3 sons would survive their parents, majority decisions would have been anticipated after Simun's death unless he or his executors appointed another Governing Director. After Anda died or if she abstained from voting during her lifetime, two of the brothers would be able to outvote the third at meetings of Holdings' directors or shareholders except on those decisions for which Article 62 required a 60% majority at a general meeting. If the brothers were divided, Group's vote would determine whether a resolution requiring a 60% majority passed or failed. Two brothers would also be able to outvote the third at a general meeting or a meeting of the directors of Group unless the dissentient was supported by Anda or (after her death) whoever inherited her share in Group. While the wills which Simun and Anda made during the 1975-1977 arrangement envisaged all surviving sons receiving the share in Group which was held at the time by Simun and after his death by Anda, testamentary changes by elderly people are commonplace, and there is nothing to suggest any understanding that Simun or Anda would not exercise that right. The Governing Director provisions in Holdings' articles clearly suggest that Simun would not have given such a commitment. 655 Any conventional understanding which constrained the exercise of legal rights after the deaths of John and Simun must be derived from the family relationship between the parties with its implications of reciprocal respect and cooperation, the formal business links between family members established by the 1975-1977 rearrangement, the history of the family business and aspirations for its future success for the benefit of those members of Simun and Anda's family who chose to continue to be involved in it and their families. 656 However, there was no requirement that a shareholder proposing to dispose of shares first offer them to other shareholders, and Bob did not claim that he had any "legitimate expectation" that shares would be offered to other shareholders or family members before being disposed of to outsiders or that Holdings would remain a Bosnjak family company. Any conventional understanding that Bob would be entitled to "effectively participate in management" must have been subject to limitations; for example, any such understanding must have assumed Holdings' continuation as a family company, Bob's continued shareholding in Holdings and his continued effective participation in Holdings' affairs. Importantly, Bob's claimed entitlement to "effectively participate" in the management of Holdings carried with it a correlative obligation to do so "effectively". In other words, the parties' conventional understanding was that Bob would cooperate in the management of Holdings in its best interests. 657 Hindsight demonstrates that Bob and Jim were unable to share control of Holdings. That does not justify imputing foresight to them and their deceased parents and brother and on that false hypothesis attributing a common understanding as to what was to occur if, as has eventuated, Bob and Jim were unable to agree after their parents and older brother had died. It is more likely that the parties did not anticipate what has occurred or turn their minds to possible solutions. A common expectation (or at least hope) of cooperation cannot be translated into mutual understanding that each, or one or other, of Bob and Jim would have a right of veto or other control or that one or other would use his power to exclude his brother from the family business. 658 Simun and Anda's eldest son, John, died in July 1979, a few months before his father Simon, who was then aged about 75 years. There is no direct evidence or other evidentiary basis for an inference that a change in the parties' mutual understanding occurred at that time. Put shortly, there was no significant alteration in the parties' relationship or dealings except that Carol replaced John as a shareholder in Group. Otherwise, matters went on as before but without John's involvement. Bob and Jim would have had more responsibility but Simun remained in control. 659 Bob and Jim obviously assumed even more responsibility when Simun died. However, Anda remained a director of Holdings and Anda and Carol remained shareholders in Group. Majority decisions were still feasible. For example, Anda supported Jim when Carol was appointed a director of Holdings and when Calabro Bros. was purchased over Bob's opposition. (Carol, who was a director of Holdings at the time also supported the Calabro Bros. purchase). 660 Although there were some majority decisions in the period of about 13 years between Simun and Anda's deaths, Bob and Jim had the "day to day management" of Holdings and, for the most part, were in effective control. While many decisions might have been consensual, when there was disagreement Bob tended to get his way. It was he, not Jim or he and Jim jointly, who was the "boss". Bob's dominant role and the significance of their family relationship to the parties was dramatically demonstrated in 1989 when Anda persuaded Carol to resign from Holdings' Board less than a year after she had been appointed because of Bob's continued opposition. More detail is to be found in paras. 434, 435 and 438-440 of Priestley JA's judgment. 661 Later, in another context, his Honour has referred to the family relationships which were woven into Holdings' business,47 the proprietorial attitude which the main family members working in a family owned business reasonably develop and their expectation that if the family goes out of the business the assets will be divided in fair shares between the members of the family who took part in the business,48 Bob's "working life" in the business and the major part he played in building the business49 and the common view of Bob and Jim that a division of assets was an appropriate solution to the disagreements that had arisen in the family.50 662 However, Jim's deference to Bob for a period cannot be erected into a new understanding that Bob was "boss" from which Jim could not conscientiously depart. Jim's acquiescence in Bob's wishes, when that occurred, was voluntary. Neither the terms of the 1975-1977 re-arrangement, any family understanding or expectation nor Jim's acquiescence imposed an obligation on Jim to continue to defer to Bob and his views. Significantly, neither parent had preferred Bob over Jim although Bob was considerably older. Neither Simun nor his executors appointed Bob Governing Director of Holdings and, after Simun's death, Anda was prepared to support Jim over Bob in at least some of their disagreements, including Carol's appointment as a director, and, later, by a new will. 663 Anda's occasional support for Jim and her general beneficent influence came to an end with her death in October 1992. Earlier that year, she had changed her will in favour of Jim's sons. 664 Bob was aged about 54 and Jim was aged about 44 when Anda died. Both had been involved in the management of Holdings for years. Jim, the younger brother, had ceased to be willing to permit Bob to be "boss". Their personal relationship was poor and their opinions on the Holdings' business and its future activities were strongly opposed. Broadly stated, Jim wanted to expand Holdings' business operations and build up its management strength with a skilled CEO and other senior executives. Bob wanted the existing business to continue under family management in which he was an active, and indeed dominant, participant. While control was equally divided between them, the status quo gave effect to Bob's view. Jim could not achieve his objectives while control was equally shared. 665 Subject to one important qualification, I agree with paras. 475-477 of Priestley JA's judgment. I do not agree with the last two sentences in para. 476.51 The success which Holdings enjoyed cannot be attributed to "consensus style management". Holdings was successful despite Bob and Jim's inability to agree, which to a considerable degree stultified initiatives proposed by Jim. Nonetheless, each brother contributed significantly to the success which was achieved. 666 By the time Anda died, Bob and Jim had effectively ceased to make decisions by consensus. However, each remained a long-term employee and manager, a director and one of the major shareholders of Holdings and a son of the founder of its business. Each remained entitled to participate in management as an executive director of Holdings, subject to his correlative obligation to participate "effectively", i.e., to cooperate with his brother and genuinely consider his views. 667 Except for Jim's secrecy in relation to Transcard, there is no basis for a conclusion that the affairs of Holdings were conducted in a manner that was oppressive or unfairly prejudicial to Bob or in a manner which was contrary to the interests of its members as a whole (which included Group) prior to Anda's death. Particular business decisions which were taken over Bob's opposition, even if ill-advised, do for that reason satisfy the statutory test. The trial judge correctly rejected Bob's complaints concerning a miscellany of decisions taken before and after Anda's death with which he disagreed. 668 After Anda's death, it was legitimate for Jim to seek control in order to break the deadlock which Bob routinely imposed. Without the support of the holders of the share in Group which Anda had left to his sons in her will of 29 April 1992, Jim could not legally do so. Nonetheless, Jim and Carol (by their respective companies Feyama and Fexule) reappointed Carol a director of Holdings on 19 July 1993, while Bob was overseas. Except for the last sentence in para. 484, I agree with what Priestley JA has said on this matter in paras. 482-485 of his judgment. 669 It is not clear why, but Bob accepted Carol as a director of Holdings. Her reappointment meant that Bob could no longer block every initiative, but it did not necessarily mean that Jim would thereafter control Holdings. However, that is what eventuated. More accurately, Jim controlled Holdings with Carol's support. 670 By 19 July 1993, when Carol was reappointed a director of Holdings, not only was Jim involved in Transcard (unbeknown to Carol), he and Carol had caused the incorporation of NBC and submitted a tender for the Victorian Government contract in its name. Bob had not long discovered that his mother had altered her will to benefit Jim's sons, but was still unaware of Transcard. When Bob ascertained in August or September 1993 that NBC had been awarded the Victorian Government contract, he still did not know of Transcard or the use which had been made of Holdings' employees in connection with both NBC and Transcard. 671 Thereafter, Bob's role as a director and his managerial function were eroded. He was denied information and excluded from administration and effective participation in decision-making. Senior employees, especially Mostyn and to a lesser extent Ash, acted on Jim's instructions and, with Jim's encouragement, Mostyn treated Bob without respect. 672 In determining whether Bob was oppressed, it is necessary to consider not only his treatment but also his actions and conduct. It would be unrealistic to seek to allocate all blame for the breakdown which had occurred between Bob and Jim to either of them, and it is now impossible to determine what part of the conduct of each of Bob and Jim was reactive to the conduct of the other. Their shared history was so long and the breakdown in their relationship so complete that each probably saw whatever the other did or said through a prism of anger which distorted what he perceived and what he in turn did and said. However, Bob's actions and attitudes provide an essential context for a consideration of Jim's and, later, Carol's actions. 673 The trial judge held that, because Bob was unable to work in harmony with Jim and Carol, Bob's involvement in management was unworkable irrespective of who was at fault, and, if Bob had had any legitimate expectation of an ongoing role in Holdings' management, that had come to an end. His Honour considered that his conclusion that any legitimate expectation which Bob had had of a continued role in Holdings' management had ended was also supported by the growth of Holdings, which had made family management of the business impractical. 674 The latter proposition cannot be sustained. It was not open to Jim to use Holdings expansion against Bob's wishes to deny him a managerial role. In any event, the evidence does not justify a finding that, as a result of Holdings' growth Bob was unsuited to an executive director position, for example with managerial responsibility for one of Holdings' divisions or premises. 675 Similarly, his Honour's conclusion that Bob was no longer entitled to a managerial role because he could not work with Jim and Carol "whoever was at fault" cannot be accepted. Bob obviously could not fairly be excluded if Jim and Carol were "at fault". 676 Bob's real difficulty stems from adverse findings which the trial judge justifiably made of his unreasonable, aggressive, and abusive behaviour and his obsessional obstruction of "virtually every proposal that was put to the board" by Jim. Nonetheless, on the evidence, Bob remained willing, and indeed anxious, to continue to participate in day-to-day management. 677 The critical question is whether, in the circumstances, including the conventional understanding which underlay Holdings' structure and traditional management and Bob's conduct, including conduct which was inconsistent with his obligations, the affairs of Holdings were conducted in a manner that was oppressive or unfairly prejudicial to Bob or in a manner which was contrary to the interests of its members as a whole, including Group (which holds 1/7 of the shares in Holdings as trustee for the grandchildren of the late Simun and Anda Bosnjak). 678 The derogation from Bob's previous management responsibilities and authority after Mostyn's appointment as CEO, the refusal to provide Bob with information, his exclusion from discussion and decision-making and his humiliating treatment by both directors and senior staff with their approval were indefensible even when his difficult personality and demeanour are considered. Although Bob was not removed as a director, he was substantially ignored. He was denied his entitlement as a director and major shareholder of Holdings to have his views genuinely considered. That was neither necessary nor reasonable. On the contrary, it was oppressive and unfairly prejudicial to Bob. 679 Other matters support that conclusion. 680 Jim's involvement in Transcard of course could not be justified. No real attempt was made to do so. The respondents' submission that Jim's conduct in relation to Transcard was not conduct in the affairs of Holdings disregards Jim's practical control of Holdings and its involvement in the Transcard project, which involved use of its staff and expenditure of its funds. I agree with Priestley JA that the respondent's submission on this point should be rejected, and generally with para. 505 of his Honour's reasons. 681 I also agree with Priestley JA that the trial judge's conclusion that NBC's use of Holdings' employees "only occurred to a minimum extent" and was "not a significant factor in this case" cannot be sustained. It is sufficient for me to record my agreement with paras. 517 and 525 of Priestley JA's reasons for judgment. 682 As Priestley JA has stated in paras. 526 and 531 of reasons for judgment, the respondents submitted that, nonetheless, Bob had insisted that Holdings not be involved in the Victorian Government proposal and effectively invited NBC to tender.52 Bob in turn challenged the trial judge's findings that he had made the statements which were attributed to him. However, there was ample justification for his Honour's preference for the evidence which he accepted on those issues and for the conclusion which he formed. This issue is discussed at length in paras. 106-115 of the Chief Justice's reasons for judgment. 683 Once again, the respondents' problems were created by their secret use of Holdings' resources, including its confidential information, business history and reputation and employees. Bob was not informed of obviously relevant matters. Although it might not be necessary to go so far, I consider that those matters plainly might, and probably would, have caused Bob to refuse to agree to what was done by Jim, Carol and NBC. I agree with the other members of the Court and the trial judge that the necessary informed consent to NBC's acquisition of the Victorian contract was not obtained from Bob for the reasons set out in paras. 532 - 537 and 540 of Priestley JA's reasons for judgment. 684 Jim, Carol and NBC's exploitation of Holdings' commercial opportunity, confidential information, reputation and employees without Bob's informed consent was additional conduct which was oppressive and unfairly prejudicial to Bob (Fexuto) and contrary to the interests of Holdings' members as a whole (including Group). It was also conduct which entitled Holdings to equitable compensation or other relief for breach of fiduciary duty53 in an appropriate proceeding. I will come back to the question of relief. 685 After Bob became aware, in August or September 1993, that NBC had obtained the Victorian Government contract, he sought to ascertain whether, despite his opposition, use had been made of Holdings' property or employees. His inquiries and their purposes are discussed in detail in paras. 540-562 of Priestley JA's reasons for judgment. 686 The trial judge held that Bob had "adequate knowledge" concerning NBC "to commence proceedings by 10 January 1994." I agree with Priestley JA that, for the reasons given by his Honour, that finding is unsustainable. 687 The trial judge also found that on 2 (or perhaps 5) August 1995 Bob obtained information under the Victorian Freedom of Information Act which revealed that Holdings financial information had been used to support NBC's Expression of Interest. Priestley JA has concluded that Bob then had sufficient knowledge for Holdings to commence proceedings for breach of fiduciary duty. Fexuto submitted that, even when Bob received information under the Freedom of Information Act in August 1995, he did not know the full extent of Holdings' and its employees' involvement in NBC's acquisition of the Victorian Government Contract. It was submitted that Bob did not receive copies of the invitation to Holdings to tender and NBC's tender until discovery in the course of this proceedings, and that until then he was not fully cognisant of the extent of Holdings' involvement and the extent to which its resources and opportunity had been misused. 688 Priestley JA considers it "plausible"54 that Bob did not have the invitation to Holdings to tender and NBC's tender until he received copies of those documents in the course of discovery, but that "those documents were not necessary before Fexuto could commence proceedings." In his Honour's view "…once Mr Bob Bosnjak had available to him the Expression of Interest …. Fexuto had a sufficient basis for commencing proceedings for breaches of fidiciary duty against Mr Jim Bosnjak and Mrs Carol Bosnjak. Although the documentation was not complete, Mr Bob Bosnjak knew the following two facts: Mr Jim Bosnjak had caused the Expression of Interest …. to be lodged … in the name of Holdings; and the end result, which was the NBC, owned by Mr Jim Bosnjak and Mrs Carol Bosnjak had succeeded in obtaining the contracts."55 It seemed to his Honour that those "… bare facts would be sufficient to make a prima facie case."56 689 While I agree with Priestley JA that Bob had sufficient knowledge for Fexuto to commence proceedings on 2 / 5 August 1995, when the Freedom of Information Act material became available to him, the significance of that conclusion remains to be considered in connection with the orders which this Court should make. 690 Shortly before Bob obtained the Freedom of Information Act material, Mostyn's appointment as CEO had been made permanent. Thereafter, conduct which was oppressive and unfairly prejudicial to Bob and contrary to the interests of the members as a whole continued up to and part of the commencement of this proceeding. Information was withheld from Bob and Mostyn, encouraged by Jim and Carol, ensured that Bob had a minimal role in the day-to-day management of Holdings. Shortly before the commencement of this proceeding, an attempt was made to merge NBC and Holdings with Bob excluded from the Board of the new corporation. The purpose of the merger was to ease NBC's liquidity problems and principally, as the trial judge found, "to exclude Bob Bosnjak's influence even further." Attempts were made to buy Bob's shares. On 10 July 1997, he was given 8 days to make up his mind. On 24 November 1997, he was given 3 days. Holdings' funds were used to finance opposition to this proceeding. 691 There is a compelling case that Holdings' affairs were conducted in a manner that was oppressive and unfairly prejudicial to Bob and contrary to the interests of its members as a whole (including Group), and that Jim and Carol also breached their fiduciary duties to Holdings was clearly established. I agree with Priestley JA that Fexuto is entitled to relief.

Relief 692 When this proceeding was commenced, Holdings had 4 shareholders, Fexule (Carol), Fexuto (Bob), Feyama (Jim) and Group. Initially, Fexuto did not request an order that Holdings be wound up, and in this Court its application for leave to amend to seek a winding-up order was refused. 693 Subject to that, the trial judge had, and this Court has, a wide discretion to make such "order or orders as it thinks fit"57 within the boundaries of the relief sought by Fexuto. As in equity,58 the Court's duty is to make orders which are practically just. 694 The trial judge's orders gave Fexuto a choice of two alternatives. 695 If Fexuto elected to sell its shares in Holdings,59 Orders 2 and 3 ordered that Fexule and Feyama purchase those shares at their fair value 14 days after his Honour's orders on the basis that fair value was to be "ascertained without regard to the [Fexuto's] shares being a minority interest in [Holdings] and on the basis that the accounting referred to in Order 8 had taken place and the amounts to be found to be due be paid to [Holdings] on 18 November 1998." 696 If Fexuto did not elect to sell its shares in Holdings, Order 8 ordered Jim to "account to any profits made by reason of his involvement in the Transcard Transaction", Jim, Carol, Feyama and Fexule to "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 $2.00", and Jim, Carol, Feyama, Fexule and NBC to "account for any monies paid to solicitors and Counsel for [Holdings] in these proceedings over and above those reasonably necessary for the protection of the interest of [Holdings]". Order 8 contained two provisos. If in the 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 $2.00", Jim, Carol, Feyama and Fexule "show that any just allowance should be made for [their] risks, skill and expertise and other expenses such allowance must be made". Further, "the inquiry shall also deal with the amount of interest, if any, that should be paid on monies to be paid to [Holdings]." 697 Three issues can be conveniently disposed of briefly in order to simplify the remaining discussion. 698 The respondents (including Holdings) submitted that, in a proceeding under s260 of the Corporations Law in which it was found that its affairs were conducted in a manner that was oppressive and unfairly prejudicial to a member and contrary to the interests of the members as a whole, equitable relief could not be ordered in favour of Holdings for breaches of fiduciary duty involved in that conduct. At least when equitable relief in favour of the company in which the oppression occurred is not the only relief sought or ordered, the language and purpose of s260 and the history of developments in this area of the law are against the respondent's submission. I will postpone consideration of the question whether any and if so what equitable relief should be ordered in favour of Holdings, i.e., whether Order 8 should be set aside or varied. However, Order 8 was not beyond power. 699 Secondly, the trial judge was correct to refuse an order for a division of Holdings' assets, particularly since Group is not a party to this proceeding but would necessarily have to be involved in what would likely be a complex, expensive inquiry to decide how a division should be effected and potentially costly transactions, perhaps involving significant revenue liabilities, to give effect to any division ordered. Bob and Jim's periodic unsuccessful attempts to negotiate a division provide some insight into the difficulties which would be involved. The objections to a division of assets are more fully explained in paras. 201-214 of the Chief Justice's reasons for judgment. 700 The trial judge was also correct to give Bob an option to sell Fexuto's shares in Holdings. Further consideration of his Honour's Orders 2 and 3 can be conveniently left until later. 701 Bob would prefer not to sell his shares in Holdings but to buy the shares in Holdings which Jim and Carol (Fexule and Feyama) owned when this proceeding was commenced. Those shares are now held by NBC, which is, and from the commencement of this proceeding was, a party against which relief was sought. However, NBC is no longer Jim and Carol's, or Jim's, company. The issued capital of NBC is now owned by NEG. 702 Holdings' Articles did not contain any rights of first refusal and Bob did not allege in this proceeding that the disposal of a majority interest in Holdings outside the Bosnjak family without first offering the shares to the other shareholders at the time, i.e., Fexuto and Group, was oppressive. However, in determining what is practically just the Court is entitled to take into account that, after the commencement of this proceeding and while Bob was seeking an order entitling him to purchase the shares in Holdings which Jim and Carol transferred to NBC, Jim instead transferred control of those shares, which constitute a majority interest in Holdings, outside the Bosnjak family. No opportunity to purchase the shares in Holdings which had belonged to Fexule and Feyama was given to either Bob or Group. There were left as minority shareholders in Holdings in "partnership" with a stranger. The purchaser, NEG, acquired its shares in NBC with comprehensive knowledge of the dispute between Bob and Jim and Carol and knew that Bob was seeking an order in these proceedings entitling Fexuto to acquire the shares in Holdings which are now owned by NBC. 703 Many of the factors which Priestley JA considers justify an order for the division of Holdings' assets justify an order entitling Bob to purchase NBC's shares in Holdings. Since the other members of the Court propose to refuse such an order, I will not discuss this issue in detail. However, brief comment on some matters of principle discussed in the Chief Justice's judgment on this aspect of the matter (paras. 156-199) is appropriate. 704 The Chief Justice has described an order allowing an oppressed minority to purchase an oppressor-majority's shares in a corporation as "extraordinary". In his Honour's opinion: "166 It is only a systematic course of improper conduct on the part of the majority that would justify an order that the minority [be entitled to] acquire, by compulsion of the Court, the shares of the majority. …." 705 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. 706 The Chief Justice's judgment contains a substantial discussion of the consequences of the circumstance that NBC is now a subsidiary of NEG. Consistently with his Honour's opinion concerning the significance of "[c]ommercial reality", paras. 179 and following of his judgment treat NEG as the effective owner of NBC's shares in Holdings and an order entitling Fexuto to purchase NBC's shares as an order obliging NEG "to dispose of its property".60 In para. 174, his Honour has stated: "… the real commercial interest in the shares is completely different from what it was when the proceedings were brought or the appeal instituted. Commercial reality must be the primary, indeed determinative, focus for the exercise of the discretion to grant relief under s260." 707 The change in the "real commercial interest" in the shares in Holdings owned by NBC was deliberately effected by Jim, the oppressor, with the informed cooperation of NEG. Further, while "[c]ommercial reality" is an appropriate consideration when determining what is practically just, I do not accept that it is the determinative, or even a primary, factor. Nor do I agree with the statement in para. 190 of the Chief Justice's judgment that, in the circumstances, "if Fexuto had wished to maintain the option of acquiring the whole of the shares in Holdings it had to seek and be granted an injunction preventing dealings in NBC shares. …" 708 I agree with the Chief Justice's view61 that the question whether Fexuto is entitled to purchase NBC's shares in Holdings does not fall to be determined as a contest between competing equities although similar considerations might be significant. If NEG's position is material, the question to which it is relevant is whether, in the circumstances, NEG's involvement disentitles Fexuto to relief to which it would otherwise be entitled. 709 Finally, I do not agree with the Chief Justice's opinion (paras. 194-199) that an order cannot be made against a party, NBC, because its shareholder, NEG, is not a party even though NEG acquired its shareholding in NBC during the proceeding with knowledge of the issues is dispute. 710 Although Fexuto's further Amended Notice of Appeal referred to a wide variety of possible orders to give effect to Holdings' equitable rights against Jim, Carol, their companies and NBC, including declarations of various constructive trusts and orders for the transfer of specific property, ultimately what was sought was a money payment. The respondents (including Holdings) denied that Holdings is entitled to any payment. There were further disputes concerning how any amount to which Holdings is entitled should be calculated. 711 Broadly stated, Fexuto claimed that there should be paid to Holdings (with interest):

(a) (i) the value of NBC's assets as at one or other of a number of specified dates, excluding its shares in Holdings and the cost of acquisition of those shares; or

(ii) the profits made by NBC "from the National Bus Company Pty Limited transaction", with a direction that that profit be the value of the shares in NBC as at one or other of a number of specified dates "less $2.00"; and

(b) (i) an order that Jim Bosnjak "account for any profit made by reason of his involvement in the Transcard transaction";62 and/or

(ii) an order that "Jim Bosnjak hold upon trust or transfer to Bosnjak Holdings any interest or rights in relation to shares or other property (including options) arising out of or in relation to his dealings over Transcard;63 and

(c) an order that the respondents other than Holdings "account for any monies paid to solicitors and counsel for [Holdings] in these proceedings over and above those reasonably necessary for the protection of the interests of [Holdings]".64 712 No basis which would warrant this Court setting aside or varying the trial judge's orders in relation to Transcard or Holdings' costs was established. 713 The trial judge's order in relation to the breach of fiduciary duty to Holdings involved in NBC's acquisition of the Victorian Government contract was set out in para. 8(b) of his Honour's orders, namely, an "account of the profit made as at 10 January, 1994, being the value of the shares in [NBC] as at that date less the sum of $2.00" subject to "any just allowance [which] should be made for [Jim and Carol's] risks, skill, expertise and other expenses…. ." 714 Although the trial judge might have limited Holdings' equitable relief consequent upon Jim and Carol's breach of fiduciary duty in respect of NBC's acquisition of the Victorian Government contract to compensation for the use of Holdings' goodwill, confidential information, property and employees and any loss, I agree with Priestley JA that the trial judge's order for an account of NBC's profits was appropriate. I also agree with Priestley JA that, while the Victorian Government contract was NBC's only business, its profits from that business and the amount subscribed for its shares will be reflected by the value of its assets. Further, provided that NBC's shares in Holdings and the cost of acquisition of those shares are disregarded, there will be little, if any, significant difference between the net value of NBC's assets on a particular date and the value of its shares on the same date less the amount subscribed for those shares. 715 The trial judge's selection of 10 January 1994 as the date at which NBC's shares were to be valued was based upon an erroneous finding that Bob then had "adequate knowledge to commence proceedings" for breach of fiduciary duty by that date. As earlier indicated, I accept Priestley JA's view that the date by which Bob had enough information to establish a "prima facie case" of breach of fiduciary duty was 2/5 August 1995. It does not follow that that is the date at which NBC's profits should be assessed as the basis of a payment to Holdings for Jim and Carol's breach of fiduciary duty. 716 This proceeding was not commenced by Fexuto until 28 August 1997. The issue for present determination may be framed by asking what equitable relief Holdings would have been entitled to in respect of NBC's acquisition of the Victorian Government contract if Holdings had commenced a proceeding alleging breach of fiduciary duty on that date. Although Bob was the only director of Holdings other than those engaged in the breach of fiduciary duty until after the commencement of this proceeding, Group, as a shareholder in Holdings, is also potentially affected by the determination of that issue. 717 In Warman International Ltd v Dwyer,65 the High Court said:66 "In the case of a business it may well be inappropriate and inequitable to compel the errant fiduciary to account for the whole of the profit of his conduct of the business or his exploitation of the principal's goodwill over an indefinite period of time. In such a case, it may be appropriate to allow the fiduciary a proportion of the profits, depending upon the particular circumstances. That may well be the case when it appears that a significant proportion of an increase in profits has been generated by the skill, efforts, property and resources of the fiduciary, the capital which he has introduced and the risks he has taken, so long as they are not risks to which the principal's property has been exposed. Then it may be said that the relevant proportion of the increased profits is not the product or consequence of the plaintiff's property but the product of the fiduciary's skill, efforts, property and resources. This is not to say that the liability of a fiduciary to account should be governed by the doctrine of unjust enrichment, though that doctrine may well have a useful part to play; it is simply to say that the stringent rule requiring a fiduciary to account for profits can be carried to extremes and that in cases outside the realm of specific assets, the liability of the fiduciary should not be transformed into a vehicle for the unjust enrichment of the plaintiff. 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 … Whether it is appropriate to allow an errant fiduciary a proportion of profits or to make an allowance in respect of skill, expertise and other expenses is a matter which will depend on the facts of the given case. …. However, as a general rule, in conformity that a fiduciary must not profit from a breach of fiduciary duty, a court will not apportion profits in the absence of an antecedent agreement for profit-sharing but will make allowance for skill, expertise and other expenses." 718 Earlier,67 the High Court had said: "Ordinarily a fiduciary will be ordered to render an account of the profits made within the scope and ambit of his duty … . … . The conduct of the plaintiff may be such as to make it inequitable to order an account. Thus a plaintiff may not stand by and permit the defendant to make profits and then claim entitlement to those profits….. . It is necessary to keep steadily in mind the cardinal principle of equity that the remedy must be fashioned to fit the nature of the case and the particular facts." 719 The basis for the trial judge's selection of the date when his Honour considered that Bob Bosnjak had sufficient knowledge to commence proceedings for breach of fiduciary duty as the date for an assessment of the profits which were to be accounted for to Holdings was explained in the following terms: "… . ….. I consider that Jim Bosnjak (and, a fortiori, Carol Bosnjak) 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 sizable allowance would need to be made to the erring fiduciaries for their efforts. …… . No [Holdings'] money went into NBC, Jim and Carol Bosnjak financed the acquisition from their own resources, they bore all the financial risk, NBC was for a while, unprofitable, but became profitable by a renegotiation with the Victorian Government independent of [ Holdings] and day to day managerial success was achieved not through [Holdings], but primarily through the skill of [NBC's CEO] Mr Oliver. … …. Bob Bosnjak waited quite a time before commencing these proceedings. He waited until after NBC started to become profitable and then asked for a 1/3 share, even though he had the opportunity to object sooner. …. … . I …. found … that Bob Bosnjak had adequate knowledge to commence proceedings by 10 January, 1994. Although Bob Bosnjak mounted Federal Court proceedings in 1995 to force disclosure of more documents and kept up his suggestion for an asset split, he only became interested in becoming involved in NBC in January, 1997. The present proceedings were not commenced until late August, 1997. I realise that, apart from Bob Bosnjak, the 1-7th interest of Anda Bosnjak's estate [Group] is also affected. However, that estate is not a claimant, and I do not consider I need examine when its controllers had sufficient knowledge of the matter. 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 [Holdings] because they utilised the time and information of [Holdings] in connection with the acquiring of the NBC franchise for the Melbourne bus operations up to 10 January, 1994." 720 It might be added that, if Bob had known what Jim and Carol were doing, he would have insisted that they stop, not that any tender submitted be submitted on behalf of Holdings. 721 Taking all these matters into account, as well as the provision for just allowances, the earliest possible date, consistently with the High Court's judgment in Warman,68 for the assessment of NBC's profits for the purpose of Jim and Carol accounting to Holdings for their breach of fiduciary duty is January 1997. In the circumstances, I agree with Priestly JA that an appropriate date is the date of commencement of this proceeding on 28 August 1997. 722 Three matters remain for consideration. 723 The trial judge ordered that, if Fexuto elected to sell its shares in Holdings, it was to be paid their fair value "ascertained without regard to [Fexuto's] shares being a minority interest in [Holdings] and on the basis that … the amounts found to be due to [Holdings]" for breach of fiduciary duty had been paid. That was the correct course. 724 If Fexuto elects to purchase NBC's shares in Holdings at a fair price, the amounts found to be due to [Holdings] for breach of fiduciary duty should be disregarded but the price paid by NBC to Fexule and Feyama for their shares in Holdings and to Jim by NEG in respect of NBC's shares in Holdings should be available to be taken into account. 725 The final issue concerns costs. The trial judge awarded Fexuto only 50% of its costs; i.e., although it was successful it was deprived of half its costs. Broadly stated, his Honour was influenced by Fexuto's failure on some issues and its failure to obtain the relief which it primarily sought. Its position has been improved in this Court although it still has not succeeded on all issues or obtained the order which it sought for a division of Holdings' assets, which it put at the forefront of its claims. 726 There is no reason whatever for an order for indemnity costs in favour of Fexuto. Bob and Jim were both obdurate and the intransigence of each unnecessarily complicated and lengthened the litigation. Nonetheless, in legal terms Bob won and Jim lost. On the broad approach which is inevitable, I accept Priestley JA's view that Fexuto should be awarded 2/3 of the costs of the proceedings other that the proceedings in this Court.

Addendum 727 The Court: We are agreed that the appeal should be allowed and that cross-appeal dismissed. Further, although our conclusions differ in some material respects, there is a majority opinion in relation to each aspect of the relief sought by the appellant, Fexuto Pty Ltd. 728 A majority have decided that the assets of Bosnjak Holdings Pty Ltd and its subsidiaries should not be split between its shareholders. A different majority have decided that Fexuto should not have an option to purchase National Bus Company Pty Ltd's shares in Holdings. Those orders will therefore be refused. 729 All members of the Court agree that Fexuto should have an option to sell its shares in Holdings and that the shares should be valued for that purpose on the basis provided for in the trial judge's orders of 4 November 1998 except that the date specified in paragraph 8(b) of those orders should be varied. A majority of the Court consider that the date 27 August 1997 should be substituted for the date 10 January 1994 in paragraph 8(b) of those orders. 730 All members of the Court agree that an appropriate order for the costs of the proceedings in this Court is that the respondents should be ordered to pay 2/3 of the appellant's costs, including the costs of the cross-appeal. 731 The Court's orders are:

3. Orders of trial judge dated 4 November 1998 varied as follows: (a) Substitute the date 42 days from the date of formal entry of these Orders for the date 18 November 1998 wherever it appears in Orders 2 and 3. (b) Substitute the date 28 August, 1997 for the date 10 January 1994 in Order 8(b).

4. Orders of trial judge of 26 November 1998 varied by substituting 2/3 for 50 percent in Order 1.

5. Order the respondents to pay 2/3 of the appellant's costs of the appeal and cross-appeal. _______________________

1 For those interested in how private bus routes were controlled at that time, it is all explained in Bosnjak's Bus Service Pty Ltd v Commissioner of Motor Transport (1970) 92 WN (NSW) 1003, and the related unreported decision of Mahoney J in Calabro Bros Pty Limited v Commissioner of Motor Transport (6 April 1973). (These cases incidentally show the rivalry between the Bosnjak and Calabro families which later played a part in the history of the present case.) 2 Alleged in the Statement of Claim and not contested in the defence. 3 The section has since been put in a somewhat different form: it became s 246A and was later divided into ss 232 and 233. 4 Introduced in the UK in 1947 and in New South Wales by the Uniform Companies Act 1961 as s 186. 5 [1959] AC 324. 6 In s 260 they are in subsection (1)(a)(i). This amendment was made in 1980 in the UK and in 1983 in Australia. Other amendments were made later. 7 Par 121 of final Statement of Claim. 8 The daughter of Mrs Carol Bosnjak. 9 [1973] AC 360. 10 [1987] BCLC 8. 11 Posgate and Denby was one of these cases. The decision was made by Hoffmann J sitting in the Chancery Division. Later, in the Court of Appeal, he explained the idea more fully in Re Saul D Harrison & Sons plc [1995] 1 BCLC 14.He gave a further exposition, in the House of Lords, later than Young J's decision in the present case: O'Neill v Phillips [1999] 1 WLR 1092. 12 [1987] BCLC at 14. 13 [1987] BCLC at 14. 14 [1987] BCLC 585. 15 (1968) 1 ACLR 489 at 492. 16 In the amended notice of appeal subsequently filed by leave of the court there was a claim for winding up, but counsel for Fexuto acknowledged it could not be pursued in the appeal. 17 Further Amended Notice of Appeal, Order 12. 18 Further Amended Notice of Appeal, Order 12. 19 Further Amended Notice of Appeal, Order 14; cp Trial judge's Orders, para. 2. 20 Further Amended Notice of Appeal, Order 7A. 21 Further Amended Notice of Appeal, Order 20; cp Trial judge's Orders, paras. 8(b) and (d). 22 Further Amended Notice of Appeal, Order 10. 23 Trial judge's orders, para. 8(a). 24 Further Amended Notice of Appeal, order 13. 25 Trial judge's orders, para. 8(c). 26 Further Amended Notice of Appeal, Orders 14A and 14B. 27 Further Amended Notice of Appeal, Order 2. 28 [1987] BCLC 585; see text at fn 14. 29 [1999] 1 WLR1092; Lord Hoffmann's was the leading opinion; the other four Law Lords all agreed with him. 30 At 1102. 31 [1995] 1 BCLC 14. 32 At 1102. 33 At 1098. 34 At 1098. 35 (1853) 10 Hare 493; 68 ER 1022. 36 [1951] VLR 458. 37 [1999] 1WLR at 1102. 38 Report of the Company Law Committee (Cmnd 1749, 1962) (The Jenkins Committee Report); of the many articles, I mention only " Oppression or Unfairness by Controllers " J.F. Corkery (1983-1985) 9 Adel LR 437; " A Fresh Approach to Section 320 " D. Wishart (1987) 17 UWAL Rev 94; " Protecting Minority Shareholders and Reasonable Expectations " J. Hill (1992) 10 C & SLJ 86; this does not downgrade any of the others; there are simply too many to sift and evaluate comparatively. 39 See par 7A of the orders sought in the final amended notice of appeal. 40 See par 351 above. 41 See text at footnote 34. 42 Phipps v Boardman [1965] Ch 992 at 1000. 43 Formerly Bosnjak Bus Service Pty Ltd. 44 Corporations Law , s260(1)(a)(i). 45 Para. 427. 46 Para. 429. 47 Para. 444. 48 Para. 445. 49 Para. 445. See also paras. 563, 564, 567. 50 Para. 447. 51 See also paras. 566, 568 and 569. 52 I will assume that, despite Group's shareholding, there would have been no breach of fiduciary duty or conduct which was oppressive, unfairly prejudicial or contrary to the interests of Holdings' members as a whole if Bob had given his informed consent to what occurred notwithstanding that Holdings' other 2 directors, Jim and Carol, were party to NBC's conduct and stood to benefit from it. 53 See, for example, Furs Ltd v Tomkies (1936) 53 CLR 583; Warman International Ltd v Dwyer (1995) 182 CLR 544; Maguire v Makaronis (1996) 188 CLR 549. 54 Priestley JA's reasons for judgment, para. 562. 55 Priestley JA's reasons for judgment, para. 562. 56 Priestley JA's reasons for judgment, para. 562. 57 Corporations Law , s260(2). 58 Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102; Maguire v Makaronis (1996) 188 CLR 449. 59 No consideration has been given to an order that Group's shares in Holdings be purchased if it wishes to sell. 60 Para 179. See also para. 180. 61 Paras 181-183 . 62 Trial judge's orders, para. 8(a). 63 Further Amended Notice of Appeal, order 13. 64 Trial judge's orders, para. 8(c). 65 (1995) 182 CLR 544. 66 (1995) 182 CLR 544, 561-562. 67 182 CLR 544, 559. 68 182 CLR 544. **********

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