Gan v Liu [2026] VSCA 24

1. The trial judge set out the relevant factual matters, which included the procedural history, in some detail.[4]
2. The judge concluded that Ms Gan's conduct in the affairs of the company 'amounts to oppressive conduct of the most brazen nature'.[5]
3. There were three aspects of Ms Gan's conduct which led him to this conclusion. The judge said:

First, Ms Gan effectively expropriated Ms Liu's 49% shareholding in the Company and on two occasions without her knowledge and for no payment, on 24 June 2021 and again around 14 February 2025. The latter occurred despite Ms Gan already being held to have been in contempt of court for conduct involving her attempted extirpation of Ms Liu's shares.

Secondly, from around the same time, Ms Gan excluded Ms Liu from any involvement in the Company's affairs whatsoever by failing to, in effect, reinstate Ms Liu's status as a registered holder of 49 shares, notwithstanding court orders made for the purpose of recognising that status on 18 February 2022, 9 February 2024 and 15 November 2024.

Thirdly, for substantial parts of the period from 24 June 2021 onwards until 17 April 2024, Ms Liu was denied access to the Company's financial records, notwithstanding orders requiring the provision of those financial records on 10 March 2022 (by no later than 4 April 2022) and also on 9 February 2024.[6]

1. Some amplification of the judge's conclusion concerning what the judge described as the effective expropriation of Ms Liu's 49 per cent shareholding is necessary.
2. After recording the fact that Ms Gan sold 49 per cent of the shares in the Company to Ms Liu in June 2019, the judge said that some two years later Ms Gan notified Ms Liu by email that she had decided to acquire Ms Liu's shares for $130,000. The judge said that Ms Liu's objections were dismissed by Ms Gan.[7]
3. The judge then said that although no payment was ever made to Ms Liu, Ms Gan lodged a Form 484 with the Australian Securities and Investment Commission ('ASIC') recording the transfer of Ms Liu's 49 shares back to herself, such that Ms Gan was then shown as the holder of all 100 issued shares in the company.[8]
4. The judge then referred to the institution of the proceeding on 19 August 2021 and to orders made in the course of the proceeding on 18 February 2022, 10 March 2022 and 9 February 2024. The orders required, amongst other things, the creation of a register of members (as required by the Corporations Act 2001), showing Ms Liu as the holder of 49 shares and Ms Gan as the holder of 51 shares, and the provision of relevant financial information concerning the Company by Ms Gan to Ms Liu.
5. By a letter dated 12 April 2024, the solicitors for Ms Liu advised Ms Gan that they considered that she had not complied with the orders and advised her that they would be seeking an order that she was in contempt of court.[9] The judge set out Ms Gan's responses which resulted in the Company's accountants providing access to certain financial information but which otherwise asserted that Ms Liu's solicitors ought to help Ms Liu to register her shares.[10]
6. Ms Liu's solicitors then issued a summons for contempt. The trial judge recorded that the hearing of the contempt summons took place on 5 August 2024 and that on 4 October 2024, he had found Ms Gan to be in contempt 'by failing to create a register of members for [the Company] recording that 49 of the shares of the company are registered in the name of Ya Liu'.[11]
7. The judge found that, notwithstanding the finding of contempt and the orders that had been made, 'Ms Gan took no steps to rectify things'. He set out the fact that a further order was then made on 15 November 2024 authorising Ms Liu to lodge with ASIC on behalf of the Company a form recording her as the holder of 49 shares,[12] and that Ms Liu lodged that form on 27 November 2024 pursuant to that order.[13]
8. The judge then said: 'Notwithstanding the orders and lodgement, on or about 14 February 2025, Ms Gan lodged a form with ASIC which purported to effect a change to ASIC's records so as to show that Ms Gan was once again the owner of all the shares in the Company'.[14]
9. The judge said that the matter returned to the Court on 7 March 2025 where orders were made substantially to the same effect as the orders made 15 November 2024, together with a further order restraining Ms Gan from lodging with ASIC any form which stated or purported to state that the membership of the Company was anything other than that contemplated by the various orders.[15]
10. The judge set out the terms of s 232 of the Corporations Act and the legal principles which apply.[16]
11. The judge addressed the matters which he said had been raised by Ms Gan in opposition to Ms Liu's complaints.
12. He said that Ms Gan had sought to justify her conduct on the basis Ms Liu had been unwilling to do the training necessary to satisfy the franchisor of the Tatts Lotto part of the relevant business conducted by the Company. The judge did not accept that any lack of commitment by Ms Liu had been established but found that, in any event, such a lack of commitment 'does not entitle Ms Gan to acquire Ms Liu's shares at a time and place of her choosing'.[17]
13. The second matter which the judge said that Ms Gan had raised was that she had always been willing to buy Ms Liu's shares for $130,000 or to sell her own shares to Ms Liu for $154,000. In his recitation of the facts, the judge had set out the attempts which had been made to settle the matter, observing that it was 'not entirely clear' what caused the settlement to fall apart, but that it seemed that Ms Gan was not happy with an element of Ms Liu's proposal that the parties jointly instruct an accountant to determine the Company's profit.[18] In the context of the matters raised by Ms Gan as justification for her conduct, the judge observed that Ms Gan's original 'offer' (a reference to the $130,000 in the emails of June 2021) was 'something of a fait accompli', and that Ms Gan soon afterwards dropped the price substantially, and as at the time of the trial 'professes a complete unwillingness to pay anything to Ms Liu for her shares'.[19]
14. The judge found that it was 'tolerably clear' that Ms Gan will continue to exclude Ms Liu from any operation of the Company.[20] The judge observed that it was 'difficult to imagine clearer conduct of an oppressive nature'.[21]
15. The judge addressed the question of relief, stating that a buyout is the most common remedy ordered in oppression cases of this kind.[22] He addressed the evidence given by Mr Ferrier who had assessed the value of Ms Liu's shares at $170,300. He concluded that the appropriate order in this case was that Ms Liu's shares be acquired by Ms Gan for $170,300.[23]
16. The judge addressed the question of costs. He concluded that in the particular case, in the exercise of his discretion, an order for indemnity costs was appropriate. He reached this conclusion because he considered Ms Liu's claim to be one which 'on any objective view of things' would succeed, and on the basis of Ms Gan's conduct during the course of the litigation.[24]
17. On 26 June 2025, the trial judge made orders giving effect to his reasons. Relevantly, he ordered that Ms Gan pay Ms Liu $170,300 and that within two business days of receipt of that sum, Ms Liu was to provide to Ms Gan various documents, including a share transfer form.[25]

1. Ms Gan's application for leave to appeal contains five proposed grounds. The proposed grounds as written are as follows:

(1) The basis for a finding that there was a misapplication for s 232 of the Corporations Act.

(2) The remedy of a buyout would be inappropriate.

(3) The applicant was denied procedural fairness.

(4) The relevance of the settlement negotiations and prior acceptance of offer.

(5) An indemnity costs order is inappropriate and disproportionate in the circumstances.

1. Ms Gan's application set out submissions in support of the proposed grounds which the written case repeated without relevantly amplifying them.
2. Ms Gan's application and written case contended in relation to proposed ground 1 that the trial judge had failed to properly consider the 'commercial context' of the parties' shareholding and the regulatory requirements governing lottery businesses. Ms Gan submitted that she had 'in good faith' attempted to preserve the viability of the business in the light of Ms Liu's failure to comply with training obligations. Ms Gan contended that the trial judge did not address or give weight to the legitimate business justifications for Ms Gan's conduct and that, in the context, her conduct was not unfair in the sense that it was not a clear departure from commercial standards.
3. In relation to proposed ground 2, Ms Gan contended that the trial judge had given no proper consideration to Ms Liu's conduct in failing to complete the Tatts Lotto training and in engaging in 'unauthorised' financial instructions and other conduct. Ms Gan contended that the judgment wrongly relied on the expert evidence of Mr Ferrier, that Ms Gan had not been in a position to challenge his evidence or tender competing evidence, and that his methodology had not been subjected to cross-examination. She submitted further that the trial judge had made factual findings adverse to Ms Gan without fully examining the fact that her conduct was 'temporary and intended to preserve the business pending [Ms Liu's] compliance'.
4. In relation to proposed ground 3, Ms Gan contended that she had been denied procedural fairness as she had represented herself and findings of facts had been made without fully testing the evidence against her or fully considering her version of events. She submitted that she had not been afforded a proper opportunity to submit evidence.
5. In relation to proposed ground 4, the negotiations towards the settlement were relied upon and in particular, an offer made by Ms Liu to acquire Ms Gan's shareholding.
6. In relation to proposed ground 5, it was submitted that the trial judge had erred in awarding costs on an indemnity basis and that the circumstances of the case did not warrant such an exceptional order.
7. The respondent in her written case submitted that leave to appeal should be refused. She submitted the judge had characterised the position accurately when he found that Ms Gan's conduct 'amounts to oppressive conduct of a most brazen nature', and that it was 'difficult to imagine clearer conduct of an oppressive nature'.[26]
8. As to the asserted failure to consider the necessity of preserving the franchise licence, and the asserted failure to consider the refusal to complete required training, the respondent submitted that the judge had addressed those matters and had found against Ms Gan.[27] As to the complaints as to Ms Liu's conduct, the respondent submitted that these matters were not established by any evidence, and could not be reconciled with the judge's finding that Ms Gan had excluded Ms Liu from any involvement in the company's affairs.[28] In any event, the respondent submitted that none of the matters referred to could overcome the judge's characterisation of Ms Gan's own conduct and, in particular, her two attempts to appropriate Ms Liu's shares.
9. As to the buy-out order, the respondent referred to the opportunities given to Ms Gan to file expert evidence, which she did not take up, and to the opportunity given to her at trial to cross-examine Mr Ferrier, which she did take up. The respondent submitted Ms Gan cannot rely on her own decision to represent herself, and submitted that the judge assisted Ms Gan in the trial as much as he properly could.
10. As to the assertion of a denial of procedural fairness, it was submitted by the respondent that this was revealed to be without substance by the steps taken by the judge to ensure that Ms Gan understood the case against her, and by the timetabling and other orders made in the course of the proceeding.
11. As to the settlement negotiations, the respondent submitted that the judge had addressed those matters.
12. In relation to the proposed fifth ground, concerning costs, the respondent submitted that the judge had amply justified his order for indemnity costs in accordance with applicable authorities, and in particular the decision in Ugly Tribe Co Pty Ltd v Sikola.[29]
13. In the course of the oral hearing, I asked Ms Gan to address three issues. I asked her to explain the basis upon which she could succeed given her two attempts to take Ms Liu's shares from her; I asked her how her appeal in relation to the buy-out order could succeed given that there was no expert evidence before the trial judge, other than that given by Mr Ferrier; and I asked her why leave should be granted in relation to the costs order, given the court's traditional reluctance to grant leave to appeal in relation to costs orders.
14. Ms Gan is not easy to understand. She was assisted by her son. The matter that she particularly wished to emphasise in response to the matters I raised was that Ms Liu's conduct, and in particular her refusal to undertake the necessary training, had imperilled the business and that she had received a 'breach notice'. She said that she had not intended to take Ms Liu's shares from her but was simply 'suspending' her. She asked rhetorically what choice she had had.
15. In relation to Mr Ferrier's report, she said that Mr Ferrier had not properly considered the lease and that his report was 'ridiculous'.
16. In relation to the costs order, she referred to settlement offers which had been made.
17. Counsel on behalf of the respondent responded. He referred to the fact that the trial judge had found that the evidence did not establish that there had been any lack of commitment by Ms Liu in relation to the training but that, in any event, even if that circumstance did exist, that did not entitle Ms Gan to take Ms Liu's shares.[30]
18. In relation to Mr Ferrier's valuation, it was submitted that his valuation was entirely orthodox and that the judge had assessed Mr Ferrier's valuation in detail.[31]
19. In relation to the application concerning the costs order, it was submitted that no error of the kind referred to in House v The King had been identified.
20. I can only grant leave to appeal if I am satisfied that the appeal has a real prospect of success. In my opinion, the proposed appeal does not have a real prospect of success. Leave to appeal must, accordingly, be refused.
21. In my opinion, there is no real prospect of Ms Gan succeeding on an appeal in relation to the judge's finding that her conduct was oppressive in the relevant sense. Her two attempts to expropriate Ms Liu's shares, the second of which was undertaken in defiance of court orders, makes her position in that regard untenable. She has no prospect, in my opinion, of overturning that conclusion. Even if all Ms Gan's complaints about Ms Liu were accepted, that could not justify her conduct in this respect.
22. In relation to the buy‑out order, in my opinion Ms Gan has no real prospect of overturning the judge's conclusion to order a buy-out on the basis of Mr Ferrier's report. The order made by the judge was entirely unremarkable in a case of this kind and the only expert evidence before him as to value was the evidence from Mr Ferrier. Ms Gan chose not to rely on any expert evidence of her own. She had the opportunity to cross-examine Mr Ferrier, which she did.[32]
23. In relation to the indemnity costs order, in my opinion the order made by the trial judge was amply justified by the matters which he set out. In any event, there has long been a reluctance to entertain appeals against costs orders.[33] In the circumstances, in my opinion leave to appeal the costs order should be refused.
24. At the conclusion of the oral hearing, I expressed the view that if leave to appeal were granted, the costs ought to be reserved and, if it were refused, the costs should be paid by the applicant. I heard the parties on that tentative view. Counsel for the respondent agreed. Ms Gan expressed opposition to any order against her.
25. I advised the parties that I would hand down judgment on 26 February 2026 and that their attendance would not be required, although they could attend if they wished.
26. As the application for leave to appeal has failed, the costs should follow the event.
27. I will, accordingly, order that the application for leave to appeal is refused and that the applicant is to pay the respondent's costs.

[1] Liu v Gan (No 2) [2025] VSC 372 ('the primary judgment').

[2] See Kennedy v Shire of Campaspe [2015] VSCA 47 at [6]-[13].

[3] Liu v Gan [2024] VSC 566 and the order of M Osborne J made 4 October 2024.

[7] Primary judgment [5]. The relevant emails on 23 and 24 June 2021 are at pages 31 to 37 of exhibit YL1 to an affidavit of Ms Liu sworn 4 November 2021 which formed part of the evidence before the trial judge.

[8] Primary judgment [6]. The lodging of the form was deposed to by Ms Liu in an affidavit of 19 August 2021 at [5] which formed part of the evidence before the trial judge.

[9] Primary judgment [27]-[28]. Ms Liu's solicitor's letters are in the court book which was before the trial judge at pages 396-400.

[10] Primary judgment [29]-[30]. Ms Liu's solicitor's letters and Ms Gan's responses are in the court book which was before the trial judge at 396-403.

[25] The sequencing in the order as made was different to that foreshadowed in the primary judgment.

[26] Citing primary judgment [56], and [65].

[28] Citing primary judgment [57], [59], [64], [68].

[29] [2001] VSC 189.

[31] See primary judgment [71]-[80] and 85.

[33] Etna & Anor v Arif & Ors [1999] VSCA 99; [1999] 2 VR 353; A Team Diamond Headquarters Pty Ltd & Anor v Main Road Property Group Pty Ltd & Ors [2009] VSCA 208; (2009) 25 VR 189; Commissioner of the Australian Federal Police v Opal Storm Pty Ltd & Ors [2018] VSCA 301.