Goulston v Bogasi Pty Ltd; Bogasi Pty Ltd v Sundell; Tamara Jane Goodwin as... [2025] NSWSC 989 | Case summary | Zoe

NSWNSWSC

Goulston v Bogasi Pty Ltd; Bogasi Pty Ltd v Sundell; Tamara Jane Goodwin as Administrator of the Estate of James Ralph Sundell v Bogasi Pty Ltd as Trustee for the James Ralph Sundell Trust

[2025] NSWSC 989

Supreme Court of NSW|2025-08-29|Before: Kunc J

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2025-08-29

Before

Kunc J

Catchwords

EQUITY — Trusts and trustees — Express trusts —
Declaration of trustESTOPPEL — Various types — No issue of
principleLAND LAW — Torrens title — Exceptions to
indefeasibilitySUCCESSION — Construction — Gifts

Source

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Catchwords

EQUITY — Trusts and trustees — Express trusts —Declaration of trustESTOPPEL — Various types — No issue ofprincipleLAND LAW — Torrens title — Exceptions toindefeasibilitySUCCESSION — Construction — Gifts

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Goulston v Bogasi Pty Ltd; Bogasi Pty Ltd v Sundell; Tamara Jane Goodwin as Administrator of the Estate of James Ralph Sundell v Bogasi Pty Ltd as Trustee for the James Ralph Sundell Trust [2025] NSWSC 989

Hearing dates: 8-11,15,18, 22-24, 29, 30 April 2024; 1-2, 6-9, 14 May 2024, 19-20 June 2024; final written submissions 6 November 2024

Decision date: 29 August 2025

Jurisdiction: Equity

Before: Kunc J

Decision: See paragraph [26]

Catchwords: EQUITY — Trusts and trustees — Express trusts — Declaration of trust
ESTOPPEL — Various types — No issue of principle
LAND LAW — Torrens title — Exceptions to indefeasibility
SUCCESSION — Construction — Gifts

Legislation Cited: Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Evidence Act 1995 (NSW)
Family Court Act 1975 (Cth)
Family Law Act 1975 (Cth)
Law Property Act 1936 (SA)
Limitation Act 1969 (NSW)
Probate and Administration Act 1898 (NSW)
Real Property Act 1900 (NSW)
Succession Act 2006 (NSW) Supreme Court Act 1970 (NSW)

Cases Cited: Aerotropolis Pty Ltd v Secretary, Department of Planning and Environment [2023] NSWCCA 195
Akjay v Hickey & Co Pty Ltd [2011] NSWSC 822
Amalgamated Investment & Property Co Ltd (in liq) v Texas Commerce International Bank Ltd [1982] QB 84; [1981] 1 All ER 923; [1981] 2 WLR 554
Arambasic v Veza (No 4) [2014] NSWSC 1109
Ashton v Pratt (No 2) [2012] NSWSC 3
Blair v Curran (1939) 62 CLR 464; [1939] HCA 23
Bluemine Pty Ltd (in liq) v AKA (Civil) Pty Ltd [2022] NSWCA 160
BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401
Bokhari v Bokhari [2014] NSWSC 1474
Break Fast Investments Pty Ltd v Gravity Ventures Pty Ltd (No 1) [2015] VSC 497
Brown v New South Wales Trustee and Guardian [2012] NSWCA 431
Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26
Carter v Federal Commissioner of Taxation (2020) 279 FCR 83; [2020] FCAFC 150
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; [1988] HCA 21
Cherry v Boultbee (1839) 4 My & Cr 442; 41 ER 171
Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295
Claremont Petroleum NL v Cummings (1992) 110 ALR 239
Coles v Wood [1981] 1 NSWLR 723
Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Commissioner of Stamp Duties (NSW) v Bone (1976) 135 CLR 223
Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226
Crawley v Short [2009] NSWCA 410
Dedakis v Deligiannis; The estate of Rebecca Deligiannis (also known as Rebeka Deligiannis) [2024] NSWSC 1018
Dixon v Blindley Heath Investments Ltd [2015] EWCA Civ 1023; [2017] Ch 389
DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) (1982) 149 CLR 431; [1982] HCA 14
Ekes v Commonwealth Bank of Australia [2014] NSWCA 336
Elmzamtar v Bangladesh Islamic Centre of NSW Inc [2020] NSWSC 1161
Estate of the late James Sundell [2019] NSWSC 1108
Falkner v Bourke (1990) 19 NSWLR 574
Federal Commissioner of Taxation v Ramsden [2005] FCAFC 39; (2005) 58 ATR 485
Fell v Fell (1922) 31 CLR 268; [1922] HCA 55
Fielden v Christie-Miller [2015] EWHC 87 (Ch)
Gilbert v Fitzpatrick (1927) 39 CLR 151; [1927] HCA 2
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857
Global Risk Alliance Group Services Pty Ltd v Harmer (No 2) [2024] NSWSC 234
Greater Lithgow City Council v Wolfenden [2007] NSWCA 180
Haiye Developments Pty Ltd v Commercial Business Centre Pty Ltd [2022] NSWSC 937
Hawes v Dean [2014] NSWCA 380
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64
Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46
In re Leach; Chatterton v Leach [1948] 1 Ch 232
In re Wedmore; Wedmore v Wedmore [1907] 2 Ch 277
Irwin v Pamplin (No 4) [2024] NSWSC 73
James v Douglas [2016] NSWCA 178
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kalls Enterprises Pty Ltd (in liq) v Baloglow (No 3) [2007] NSWCA 298
Kanjian Holdings No 1 Pty Ltd v Kanjian [2021] NSWSC 839
Kinch v Walcott [1929] AC 482
Krajovska v Krajovska [2011] NSWSC 1026
Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34
Lehrman v Network Ten Pty Ltd [2024] FCA 369
Li v Tao [2023] NSWCA 310
Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221
Lord v Trippe (1977) 51 ALJR 574
Maddison v Alderson (1883) 8 App Cas 467
Mao v Bao [2021] NSWSC 1096
Mao v Bao (2023) 113 NSWLR 26; [2023] NSWCA 278
McBride v Hudson (1962) 107 CLR 604; [1962] HCA 5
McLean v Commonwealth of Australia (Unreported, Supreme Court of New South Wales, 22 August 1996)
Minero Pty Ltd v Redero Pty Ltd (Unreported, Supreme Court of New South Wales, 29 July 1998)
Moratic Pty Ltd v Gordon [2007] NSWSC 5
Murphy v Zamonex Pty Ltd (1993) 31 NSWLR 439
New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276
Nguyen v Taylor (1992) 27 NSWLR 48
Otis Elevator Co Pty Ltd v Guide Rails Pty Ltd (in liq) [2004] NSWSC 383; (2004) 49 ACSR 531
Pipikos v Trayans (2018) 265 CLR 522; [2018] HCA 39
Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Powercell Pty Ltd v Cuzeno Pty Ltd [2004] NSWCA 51
Re Blackbird Pies (Management) Pty Ltd [1969] Qd R 387
Re Gulbenkian’s Settlement [1970] AC 508
Re Leech; Milne v Daubeny [1923] 1 Ch 161
Re Paradise Motor Co Ltd [1968] 2 All ER 625
Republic of India v India Steamship Co Ltd (No 2) [1998] AC 878
Revenue and Customs Commissioners v Benchdollar Ltd [2009] EWHC 1310 (Ch); [2010] 1 All ER 174
Rinehart v Rinehart [2020] NSWSC 68
Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65
Saravinovska v Saravinovski (No 6) [2016] NSWSC 964
Scott (Trustee), Re (Bankrupt) v Stolyar (No 8) [2025] FCA 20
Screenco Pty Ltd v RL Dew Pty Ltd (2003) 58 NSWLR 720; [2003] NSWCA 319
Short v Crawley (No 30) [2007] NSWSC 1322
Sidle v Queensland Trustees Ltd (1915) 20 CLR 557; [1915] HCA 48
Smith v Coastivity Pty Ltd [2008] NSWSC 313
Street v Luna Park Sydney Pty Ltd [2007] NSWSC 689
Tatham v Huxtable (1950) 81 CLR 639; [1950] HCA 56
Teterin v Linrod Pty Ltd [2024] NSWSC 1635
Theodore v Mistford Pty Ltd (2005) 221 CLR 612; [2005] HCA 45
Thompson v Palmer (1933) 49 CLR 507; [1933] HCA 61
Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406
Wade v Trnka [2006] NSWSC 1097
Waterman v Gerling Australia Insurance Co Pty Ltd (2005) 65 NSWLR 300; [2005] NSWSC 1066
Watson v Foxman (1995) 49 NSWLR 315
Watson v Ralph (1982) 148 CLR 646; [1982] HCA 35
Webster v Strang [2018] NSWSC 495
Wright v Lemon (as executor of the estate of Wright) (No 2) [2021] WASC 159
Yates Property Corporation Pty Ltd v Boland (2000) 179 ALR 664
Ying v Song [2009] NSWSC 1344
Young v Queensland Trustees Ltd (1956) 99 CLR 560; [1956] HCA 51

These proceedings concern the Sundell family. Without disrespect, I shall refer to family members by their given names.
I begin these reasons with a general overview of what follows in much greater detail. In this section, I avoid formality and technicality.
The origins of the Sundell family are in Sweden. The family’s wealth in this country came from the business of the sale of cars, car leasing, finance and construction. Readers of a certain age will recall the Sundell Motors group as a well-known retailer of Holden cars. Today the business is one of diversified investments.
For the purposes of these proceedings, the story begins with two brothers: Jim and Gunnar. They took over a successful family business from their father.
Jim and his wife Janette had three surviving children: Joakim (known as Kim), Anne-Katrine and Brett. Jim died in May 2017. Issues concerning Jim’s estate arise for determination in these proceedings.
Gunnar and his wife Merle had two children: Annmarie and Rickard. Gunnar predeceased Jim, dying in December 2006.
Jim and Gunnar trusted each other implicitly. This meant that not everything between them was formally documented. They established family trusts and a number of companies as the means for generating, holding and distributing the family’s wealth and shared the benefits generally equally between their respective halves of the family. The legal effect (if any) of that practice is another important issue in the proceedings, referred to as the Common Assumption. The Court has concluded that the admitted general practice of such sharing is not clear to the point of creating legally enforceable consequences.
After working overseas, Kim began to work in the family business from about 1996.
In late 1998 and early 1999, Kim negotiated two substantial transactions whereby the family business acquired large property holdings from the Elders Group and the ground leases of a shopping centre in South Australia. This was done using two trusts known as CPT1 and CPT2 (“CPT” standing for “commercial property trust”). The trustee of the trusts was a special purpose company called Elmach Pty Ltd. Of the 100 units in each trust, Jim and Gunnar agreed that Kim (through his private company Josunda Pty Ltd) would have 10 units in each trust in recognition of his central role in the transactions.
Kim is also the registered unitholder of the other 90 units in each trust. This is because, at the time of the transactions, no decision had been made as to how those units would be held. Kim agreed with Jim and Gunnar to “warehouse” those units (which are referred to in these reasons as the Elmach units). Because of what was said to be the absolute trust between Jim, Gunnar and Kim, the issues of for whom the Elmach units were being held, and on what terms, were left imprecise. The only point of clarity was that Kim was not intended to be the beneficial owner of the Elmach units. In the years that followed, it became clear that any inter vivos transfer of the Elmach units from Kim to any other person or company associated with the family business would incur significant stamp duty and capital gains tax (CGT).
Three companies in the family business relevant to these proceedings are Sundell Holdings Pty Ltd (in broad terms, as the name suggests, the holding company), Bogasi Pty Ltd (at the relevant times the trustee of both Jim and Gunnar’s family trusts and the ultimate residuary beneficiary of Jim’s will) and Three Crown Investments Pty Ltd (TCI) (in effect the “bank” of the family business).
Two non-family members are significant figures in these reasons. The first is Mr David Wooldridge. He is a trusted employee, having commenced as Chief Financial Officer of the family business in 1987. The other is Mr Wooldridge’s colleague, Ms Kellie-Anne Francis, who has been Group Accountant since 1999.
In early 2011, Kim commenced Family Court proceedings to divorce his wife Shara. As part of their dispute over what constituted their matrimonial assets, Shara claimed that Kim was entitled to the Elmach units. Jim, Sundell Holdings, Josunda, Bogasi and TCI all became parties to the Family Court proceedings and, with Kim, presented a great deal of evidence in support of the proposition that Kim did not have a beneficial interest in the Elmach units.
The Family Court proceedings were settled during the course of their hearing by C****onsent O****rders made on 26 November 2012. Critically for the case at bar, those orders included D****eclarations that the Elmach units “are held by [Kim] on trust for [Jim] and/or his nominee”.
Another significant issue in this case arises from Kim’s claim that in or about April 2013 Jim verbally nominated Kim as the beneficial owner of the Elmach units pursuant to the Declarations (the N****omination). The Court has concluded that while, as a matter of fact, the Nomination did occur, on the proper construction of the Declarations Kim was not within the class of persons or companies who could be Jim’s nominee. The consequences of this conclusion will be a matter for further argument.
The Court has also been required to resolve a dispute between Anne-Katrine and Elmach over the ownership of Anne-Katrine’s home (the Beecroft property). This was purchased in late 2011 and is held as tenants in common between Anne-Katrine (as to 80%) and Elmach (as to 20%).
Anne-Katrine’s fundamental contention (although given different legal characterisations) is that Jim wanted each of his children to own their own home unencumbered by any debt. In accordance with that intention, Jim caused the Beecroft property to be purchased for her and, insofar as Elmach was put on the title, her case is that she is entitled to Elmach’s 20% interest without any actual cash payment by her.
The Court accepts, as a matter of generality, that Jim wanted to purchase the Beecroft property for Anne-Katrine. However, the Court has also found that due to a cashflow crisis in the family business at the time of the purchase, Elmach provided funds for the purchase, which resulted in it obtaining its share in the Beecroft property absolutely. On any sale of the Beecroft property, Elmach is entitled to a 20% share of the nett proceeds.
The Court has also considered various questions of construction posed about the will made on 9 November 2010. The will has already been the subject of probate proceedings determined by Justice Sackar: Re Estate of the late James Sundell [2019] NSWSC 1108. A present complication is that it is not clear whether the estate is solvent or insolvent (that to some extent being dependent on the outcome of these proceedings, among other things). The solvency of the estate is central to the order of its administration. The construction issue which may have the most significant consequence for the administration of the estate is the Court’s conclusion that after paying Jim’s debts (as strictly understood), the Administrator of the estate is directed to pay out of the estate analogously to Jim’s debts (and before anything else) amounts to Bogasi and other third party creditors of named family members in discharge of their debts to those creditors.
Among the many other issues presented by the parties, the Court has had to engage with two protean expressions: “the Sundell Group” and the Common Assumption.
As to “the Sundell Group”, much attention was devoted to whether or not Elmach was part of “the Sundell Group”. The answer to what was within “the Sundell Group” is “it depends”. If the expression refers to entities that could be called in aid of family members, then Elmach’s involvement in the purchase of the Beecroft property suggests it is. So does its inclusion in Group management reporting (see for example, the “Group Business Review” at [83] below). However, for formal legal and accounting purposes, the Court accepts the evidence of Mr Wooldridge and Ms Francis that the Sundell Group (or the G****roup) was at all material times relevantly the entities identified by Ms Francis in the chart which is Annexure A Annexure A - The Sundell Group at 18 November 2021 (92.1 KB, pdf) Annexure A - Corporate Structure of Sundell Group - text version (14.6 KB, docx) to these reasons and did not include Elmach.
As for the Common Assumption, there was no dispute that expressed at a high level of generality the Group was run by Jim and Gunnar for the broadly equal benefit of their respective sides of the Sundell family. However, as pleaded by Bogasi, the Common Assumption was alleged to be (omitting the particulars):

The Court is not satisfied that the Common Assumption, as a phenomenon with legal significance, has been established on the evidence to have existed.
Before summarising the Court’s findings, it is necessary to say something about how the Court has approached the numerous disputes between the parties. The proceedings occupied 20 hearing days, generated a 26 volume court book of approximately 11,600 pages and approximately 600 pages of closing written submissions. Each party had the full benefit of the skill and ingenuity of experienced solicitors and counsel. It is only to observe, and not criticise, to say that no properly identifiable forensic stone was left unturned and no arguable submission was omitted, left unanswered or not then the subject of detailed reply.
I have endeavoured to set out in what follows the full extent of the arguments presented by the parties. However, it is neither necessary nor practicable to determine every point raised by them. Accordingly, while the Court has carefully considered all of the arguments raised, this judgment records the determination of those matters which in my respectful opinion were dispositive of the issues presented.
With the benefit of this general overview, the Court's conclusions (other than as to the will construction issues) may be summarised as:
Kim is not a reliable witness. His evidence is only accepted if it is inherently probable, against his interest or corroborated by contemporaneous records or other reliable testimony;
The Court accepts Anne-Katrine, Mr Wooldridge, Mr Walker and Ms Francis as reliable witnesses;
While Brett was a credible witness, his evidence was too vague to be of any assistance to the Court;
No Jones v Dunkel inference is drawn arising from Bogasi's failure to call Mr Stell;
The Sundell Group comprises the companies in the table which is Annexure A to these reasons. It does not include Elmach;
On their proper construction, the Declarations do not permit Kim to be the "nominee". That could only be Gunnar or a company in the Sundell Group;
In or about April 2013, Jim purported to nominate Kim as the beneficial owner of the Elmach units, contrary to the terms of the Declarations on their proper construction;
A nomination pursuant to the Declarations did not have to be in writing to be effective;
Given that the Nomination was invalid, the issue of breach of trust as pleaded does not arise. In any event, Jim and Kim did not breach any trust by agreeing to the Consent Orders. It is Kim, however, who committed a breach of trust. He breached the term of the trust as declared in the Consent Orders by failing to act in accordance with its terms. The breach was to treat the Nomination as effective to make him the beneficial owner of the Elmach units;
Kim's defences against Bogasi of conventional estoppel, laches and res judicata, Anshun estoppel and issue estoppel fail;
Bogasi has not established the Common Assumption with the legal consequences for which Bogasi contended;
If it were necessary to decide, Kim is not estopped by convention from denying that he owns the Elmach units to give effect to the Common Assumption;
The issue of fraud on the power does not arise, given the Court's construction of the Declarations. In any event, Jim's entitlement to nominate was not a power that attracts the principles sought to be relied upon by Bogasi;
The question of whether Elmach should be removed as trustee of CPT1 and CPT2 is to be reserved for further submission after the parties have had an opportunity to consider these reasons;
While Jim had the aspiration for Anne-Katrine to own her home completely and free of debt, Anne-Katrine has failed to establish any legal or equitable basis to give effect to that aspiration. Nor is she assisted by cl 4 of the will;
The Beecroft property was paid for as Elmach contends. There was no "instruction" from Jim as to how the Beecroft property purchase was to be effected and, even if there was, Anne-Katrine has not established any legal or equitable entitlement to have any alleged departure from that "instruction" "corrected";
Elmach paid $411,704.07 in return for its 20% share of the Beecroft property and it holds that share absolutely. It does not hold that share on trust for Anne-Katrine. Anne-Katrine does not owe that amount to Elmach. There is no debt or mortgage which would engage cl 4 of the will or be the subject of an equitable mortgage created by deposit of the certificate of title;
Anne-Katrine has not made out any basis on which the Administrator could be compelled to ensure Anne-Katrine has full beneficial ownership of the whole Beecroft property. If Anne-Katrine and Elmach are unable to agree otherwise, the Court will appoint trustees for sale of the Beecroft property and Elmach will be entitled to 20% of the net proceeds of sale;
Bogasi is entitled to pre-judgment interest on Kim's admitted debt to it calculated from the date of commencement of the 2022 proceedings;
By reason of cl 4 of the will, Kim is entitled to the benefit of a set-off (or a process analogous to a set-off) against Bogasi. That set-off or process is that Bogasi must set off against whatever Kim owes Bogasi that amount which the estate pays to Bogasi in satisfaction of Kim's debt to Bogasi from the funds which Bogasi pays to the estate to satisfy Bogasi's debt to the estate;
Jim did not procure or induce a breach of trust by encouraging Kim to agree to the Consent Orders and subsequently purporting to nominate Kim pursuant to the Declarations;
Jim did not breach any fiduciary duty by purporting to nominate Kim pursuant to the Declarations because no such duty was owed to anyone;
The question of whether Bogasi's 2023 Cross-Claim is time barred does not arise; and
The Court's conclusions on the will construction issues are to be found at [1100] to [1102], [1129] and [1142].
Mr A Byrne of Counsel appeared for Anne-Katrine. Ms J Needham of Senior Counsel (as her Honour then was) and Mr S Chapple of Senior Counsel appeared for Kim. Mr M Condon of Senior Counsel and Mr M Cleary of Counsel (as his Honour then was) appeared for Bogasi. Mr P Jammy of Counsel appeared for Elmach. Mr A Cheshire of Senior Counsel and Ms T Catanzariti of Counsel appeared for the Administrator. Mr A Ronayne, Solicitor, appeared for TCI. Mr CP Birtles appeared for Brett on the will construction motions.

The starting point of the litigation is proceedings 2019/390407 (2019 proceedings) which is Anne-Katrine’s claim about the Beecroft property. This claim produced three cross-claims.
Anne-Katrine’s Further Amended Statement of Claim seeks various declarations and orders directed to ensuring that she obtains the complete unencumbered legal and beneficial ownership of the Beecroft property. Anne-Katrine claims that the Beecroft property was purchased for her by Jim as a gift with the intention that she own it outright.
The relief sought by Anne-Katrine is opposed by the Eighth Defendant, Elmach because it asserts that it has a 20% beneficial interest in the Beecroft property on the basis that it provided funding for the purchase.
Pursuant to the First Cross-Claim in the 2019 proceedings (2019 First Cross-Claim) Elmach seeks an order that trustees for sale be appointed to the Beecroft property pursuant to s 66G(1) of the Conveyancing Act 1919 (NSW) (CA) with consequential orders to facilitate its sale. It is accepted this relief is contingent on Anne-Katrine failing to establish that she is entitled to the unencumbered legal and beneficial ownership of the entire Beecroft property.
The second cross-claim in the 2019 proceedings (2019 Second Cross-Claim) and the third cross-claim in the 2019 proceedings (2019 Third Cross-Claim) concern the dispute between Bogasi and Kim as to who is the legal and beneficial owner of the Elmach units in the unit trusts known as CPT1 and CPT2. Elmach is the trustee of CPT1 and CPT2.
Kim is the cross-claimant in the 2019 Second Cross-Claim. Kim claims that in April 2013, pursuant to a power of nomination recorded in the Consent Orders Jim made the Nomination. The 2019 Second Cross-Claim seeks declarations that Kim has been since April 2013 the legal and beneficial owner of the Elmach units. If the nomination was not effective at law, Kim seeks a declaration that Bogasi is estopped from denying that Kim is the legal and beneficial owner of the Elmach units.
Bogasi denies that Jim made the Nomination and contends that the objective evidence does not support the existence of that Nomination. Bogasi also asserts that no estoppel should be recognised for four reasons. First, a proper construction of the Consent Orders does not permit Jim to nominate Kim to be the full legal and beneficial owner of the Elmach units. Second, there is no nomination in writing, as would be required by s 23C of the CA. Third, any disclaimer of the interest by Jim was not effective because it was made before Jim accepted his interest in CPT1 and CPT2. Fourth, any such nomination would constitute a breach of fiduciary duty on the part of Jim with such duty being a duty owed to the members of the Sundell family for whose benefit the Elmach units were being held on trust or, alternatively, any such nomination was a fraud on the power.
The cross-defendants to the 2019 Second Cross-Claim are Anne-Katrine (First Cross-Defendant), Ms Tamara Jayne Goodwin in her capacity as Administrator of the estate (Second Cross-Defendant), Elmach (Third Cross-Defendant), Bogasi in its capacity as trustee of the JRS Family Trust (Fourth Cross-Defendant) and TCI (Fifth Cross-Defendant).
In parallel with its defence to the 2019 Second Cross-Claim, Bogasi is the cross-claimant in the 2019 Third Cross-Claim which seeks relief including:
A declaration that the Elmach units were held on trust for Bogasi or Jim and the legal representative of Jim’s brother, Gunnar or TCI before the making of the Consent Orders;
A declaration that Jim did not make any nomination pursuant to the Consent Orders;
A declaration that any nomination was ineffective;
A declaration that upon Jim’s death any rights of nomination under the Consent Orders lapsed;
A declaration that the nominee pursuant to the Consent Orders could only be an entity within the Sundell Group or someone else who would hold the benefit of the Elmach units on trust for an entity in the Sundell Group and/or members of Jim’s and Gunnar’s families;
Declarations in relation to the interpretation of the Consent Orders;
Declarations that if Jim did exercise the power of nomination in favour of Kim he acted in breach of fiduciary duty and any such nomination would constitute a fraud on the power;
An order that Kim restore the assets of CPT1 and CPT2 together with all profits made to Elmach as trustee;
An order that Kim provide an account for any profits he has earned as the purported owner of the Elmach units;
A declaration that Kim is estopped from denying the Common Assumption; and
An order that Kim be removed as trustee of the Elmach units and that Elmach be removed as trustee of CPT1 and CPT2.
Kim adopts a consistent position across the 2019 Second and Third Cross-Claims. That position can be summarised as:
There is objective evidence Jim nominated Kim to receive the benefit of the Elmach units and that from 2013 they both (and Bogasi) conducted their affairs on that basis;
The Consent Orders are clear on their face and place no fetters on the ability of Jim to nominate a beneficiary of the Elmach units;
Neither Bogasi nor TCI sought, in the Family Court proceedings, to achieve the result which is now being sought in these proceedings and they in fact consented to the Consent Orders;
Jim had no overriding fiduciary obligations deriving from any asserted ‘common assumption’;
There is no need for a nomination or an assignment to be in writing by reason of s 23C of the CA because the nomination (or disclaimer) was not an assignment of an equitable interest within the meaning of that section;
After April 2013, Kim, Jim and Bogasi conducted their affairs on the basis that Kim was the legal and beneficial owner of the Elmach units such that Bogasi is now estopped from denying that state of affairs; and
In any event, Bogasi is guilty of laches in bringing a claim to recover the beneficial interest in the Elmach units in circumstances where it acquiesced in distributions being paid to Kim during Jim’s lifetime. It was only after the death of Jim (prejudicing Kim in his ability to call Jim as a witness) that Bogasi advanced a claim to the Elmach units.
The Cross-Defendants to the 2019 Third Cross-Claim are Kim (First Cross-Defendant), Elmach (Second Cross-Defendant), the Administrator (Third Cross-Defendant) and TCI (Fourth Cross-Defendant).
The 2022/96516 proceedings (2022 proceedings) are a dispute between Bogasi as trustee for both the James Ralph Sundell Family Trust (the Old Jim Trust) and the JRS Family Trust (the New Jim Trust), and Kim. Pursuant to an Amended Statement of Claim Bogasi seeks judgment against Kim for $13,964, 189.36 plus interest in the amount of $12,746,436.32 pursuant to s 100 of the Civil Procedure Act 2005 (NSW) (CPA). The money sought to be recovered is said to be money advanced to Kim by Bogasi as trustee for the two trusts.
By the time of closing submissions, there was no dispute that Bogasi was owed the principal amount of $13,946,189.36. The only outstanding issues related to whether Bogasi’s claim for interest was contrary to written agreements between Kim and Bogasi, whether Kim has a right to a set off having regard to cl 4 of the will.
The 2023/157660 (2023 p****roceedings) are a dispute between the Administrator and Bogasi in its capacity as trustee of the Old Jim Trust. The Administrator’s Amended Statement of Claim seeks orders for payment and declarations in relation to amounts said to be owing to the estate from distributions from both the Old Jim Trust and the New Jim Trust.
Bogasi, in its capacity as trustee of the Old Jim Trust, has also filed an Amended Cross-Claim in the 2023 Proceedings (2023 Cross-Claim), which traverses many of the issues addressed in the 2019 Second and Third Cross-Claims. Specifically, it seeks declarations that the Elmach units were held on trust for Bogasi or Jim and the legal representative of Gunnar or TCI before the making of the Consent Orders. It also seeks declarations that if Jim did exercise a right of nomination in favour of Kim in accordance with the Declarations, then Jim procured breaches of trust by Kim and/or that nomination constituted a breach of fiduciary duty. If those claims were made out, Bogasi sought an order that the Administrator restore the Elmach units to the current trustee of CPT 1 and CPT 2, Elmach, in accordance with the terms of a Master Trust Deed dated 21 December 1998.
On 12 February 2024, I made orders that only the prayers for relief in the 2023 Cross-Claim concerning whether Jim was liable for a breach of trust and whether the Administrator should restore the units to Elmach (if I accepted the Nomination had taken place) should be heard in these proceedings. The Administrator’s Amended Statement of Claim and all issues of quantum in Bogasi’s claim against the Administrator are to be determined after the hearing which is the subject of these reasons.
On 19 March 2024, I granted leave to Bogasi to amend the 2023 Cross-Claim by adding a claim, if the Nomination had occurred, alleging fraud on the power by Jim. I also heard this claim. However, the date from which that amendment took effect was left open for argument.
After the conclusion of the hearing of the three proceedings, the parties also requested the Court to resolve several issues relating to the construction of the will. A regime was put in place for any party who wanted a construction issue to be resolved by the Court to file and serve a notice of motion and for parties to file submissions in relation to the issues raised to the extent they wished to do so. Brett is not a party to any of the three proceedings but is a beneficiary of the estate. As such it became necessary to join Brett as a respondent to any motion concerning the construction of the will.
The first construction motion was filed by Kim on 1 July 2024 and sought a determination as to whether the effect of sub-cl 4(a) of the will is that any debts owed by any beneficiaries of the will to Bogasi as trustee of the family trusts are debts which Jim intended would be paid by his estate or are debts which need to be paid back by the beneficiary debtor.
The second construction motion was filed on 17 October 2024 by the Administrator. That motion raised three issues: first, whether sub‑cl 4(b)(ii) of the will required the Administrator to pay out the mortgage of Brett‘s principal place of residence; second, a determination concerning if the Administrator was required to pay a legacy pursuant to sub‑cl 4(a) or 4(b)(ii), how those legacies were to be paid; finally, the Administrator also sought advice on the question of if the estate became insolvent as a result of paying a debt pursuant to sub-cl 4(a) or 4(b)(ii) of the will, whether the Administrator would be justified in applying all assets of the estate, including Jim’s interest in a farm at Booral (Brett’s principal residence) towards payment of the estate’s liabilities, including any debts payable pursuant to sub-clauses 4(a) and 4(b)(ii) and whether any debts payable pursuant to sub-clause 4(a) or 4(b)(ii) are to be paid rateably according to value.
The third construction motion was filed by Bogasi on 22 October 2024. That motion asked the Court to determine whether on its proper construction cl 6 of the will required Jim’s interest in the “Booral Farm” devised to Brett to be limited only to Jim’s interest as a tenant in common of two of the parcels of land that formed part of the Booral Farm.

| NAME: | ROLE: | | PERSONS: | | Edward De La Sala | • Current director of Bogasi | | Kellie-Anne Francis | • Direct report of David Wooldridge and accountant for the Sundell Group | | Tamara Goodwin | • Solicitor • Administrator of the Estate of the Late James Sundell | | Anne-Katrine Goulston (nee Sundell) | • Daughter of Jim Sundell • Sister of Kim and Brett Sundell • Alternate Director of Elmach for Jim Sundell– 2013-2017 • Current director of Bogasi | | Peter Muldoon | • Sundell Group employee | | Dean Stell | • Sundell family solicitor – Willis & Bowring solicitors | | Brett Sundell | • Son of Jim Sundell • Brother of Anne-Katrine and Kim Sundell. | | Daisy Khoury-Sundell | • Kim’s second wife • Elmach Director – since June 2018 | | James (Jim) Sundell | • Brother of Gunner - died 22 May 2017 • Father of Anne-Katrine, Brett and Kim • Director of Elmach – 1998-2017 | | Janette Sundell | • Mother of Anne-Katrine, Brett and Kim • Wife of Jim Sundell | | Joakim (Kim) Sundell | • Son of Jim Sundell • Brother of Anne-Katrine and Brett Sundell • Director of Elmach since 1998 • Ex-husband of Shara Sundell | | Merle Sundell | • Married to Gunnar Sundell • Mother of Annmarie and Rickard Sundell • Bogasi director between 24 January 2007 to 26 July 2017 | | Shara Sundell | • Ex-wife of Kim Sundell. • Respondent in the Family Court proceedings brought by Kim Sundell. | | Thor Rickard Gunnar Sundell | • Brother of James Sundell • Married to Merle Sundell • Father of Annmarie and Rickard Sundell • Died on 23 December 2006 • Director of Elmach – 1998-2005 | | Christopher Walker | • Director of Bogasi from 2013. • Friend of Jim Sundell | | David Wooldridge: | • Director of Elmach – 2006-2019 • Current director of Bogasi and longtime Chief Financial Officer | | COMPANIES AND TRUST****S | | Bogasi Pty Ltd | • Trustee of Old Jim Trust and New Jim Trust • Former Trustee of TRGS Family Trust and TRG Sundell Family Trust (until 20 August 2020) • Owns a 50% interest in Sundell Holdings (as trustee of the Old Jim Trust) | | CPT1 | • Settled in 1998 • 119 Units on issue; 90 units held by Kim; 10 units by Josunda; 16 units by Crown Financial; and three units by TCI. | | CPT2 | • Settled in 1998 • 100 units on issue; 90 units held by Kim and 10 units held by Josunda. | | Crown Financial Pty Ltd | • Received 16 units in CPT1 on 29 June 2010 to discharge a loan and satisfy Division 7A income tax obligations. | | Elmach Pty Ltd | • Current Trustee of CPT1 and CPT2 • Sole shareholder of Elmach is Kim • The directors of Elmach were Kim, Gunnar (until his death in 2006), Mr Wooldridge (from 2006-2019) and Jim (until his death in 2017) | | Finclear Pty Ltd | • Company incorporated by Kim in 2015 as a corporate vehicle for a venture which provided trading infrastructure, services and technology solutions. • Not part of Sundell Group | | James Ralph Sundell Family Trust | • Old Jim Trust | | JRS Family Trust | • New Jim Trust | | Josunda Pty Ltd | • Company wholly-owned by Kim | | Skiida Pty Ltd | • Trustee since August 2020 of TRGS Family Trust and TRG Sundell Family Trust | | Sundell Holdings Pty Ltd | • Parent company of the Sundell Group | | Three Crowns Investments Pty Ltd | • Subsidiary of Sundell Holdings. • Funded the CPT1 and CPT2 transactions in 1998. • Received 3 units in CPT 1 on 17 June 2011 to discharge a loan and satisfy Division 7A obligations. |

On 27 July 1994, Jim revoked his 16 August 1979 will and made a new will.
Kim commenced working for the Sundell Group in 1996. According to Kim, he was asked by Jim to return from overseas to work for the family.
In June 1998, the Sundell Group completed a real property transaction known as the Elders Deal through T.I.T.E.S Pty Ltd (standing for “This is the Elders Sale”). The transaction involved the purchase from and lease-back to Elders of a number of properties. T.I.T.E.S was wholly owned by TCI. The transaction was a long term, 16 year investment deal with a maturity date in 2013, by which time that the assets would be owned by the Sundell Group unencumbered.
After the Elders Deal, another opportunity to acquire real property on a sale and lease-back basis was presented to the Sundell Group. Jim, Gunnar, Kim and Mr Wooldridge discussed the Sundell Group entering into what would become the CPT1 T****ransaction at the end of 1998. The meeting took place at Jim and Gunnar’s office at the Sundell Motors dealership at Chatswood.
At the meeting, it was discussed that the Sundell Group would retain ownership of the investment. Six months after the Elders Deal, Elders had approached the Sundell Group with an invitation to tender for a similar transaction relating to properties in Elders’ Queensland network. For each of the transactions, the representatives of Elders came to Kim in his capacity as Chief Investment Officer of the Sundell Group. Kim deposed in his affidavit in the Family Court proceedings (his evidence on this not being seriously challenged) that he had a discussion with Mr Wooldridge, his uncle Gunnar and Jim and that it was agreed at this meeting that Kim would take a 10% interest in the investment as a reward and that a trust would be established known as CPT1. Kim established Josunda, of which he was sole director and shareholder, to take his 10% share.
On 1 October 1998, Elmach was incorporated. Kim, Jim and Gunnar were appointed initial directors. Gunnar and Jim remained directors until each of their respective deaths, on 23 December 2006 and 22 May 2017. Mr Wooldridge was also a director from 23 December 2005 until 2 December 2019. Kim’s second wife, Daisy, was appointed as a director on 18 June 2018. Ms Francis and Mr Hogan were appointed as alternate directors on 27 May 2023. Kim is the sole shareholder of Elmach.
On 21 December 1998, the CPT1 Unit Trust (originally known as the Elders Property Trust No 1) came into existence pursuant to a Master Trust Deed, which was made on 21 December 1998 between Elmach (its name from 23 May 2001) as trustee and Josunda as manager. The next day, 90 ordinary units were issued to Kim and 10 to Josunda.
On 23 December 1998, the CPT1 Transaction settled. It is convenient to record that Bogasi alleges the CPT 1 Transaction was undertaken to give effect to the Common Assumption. The relevant particulars from the 2019 Third Cross-Claim are:

[48] On 21 December 1998 Clayton Utz settled the Unit Trust so that CPT1 had 1 unit issued to me. On 22 December 1998 Clayton Utz issued 90 units in the trust to me and 10 units to my company Josunda. When they did this they then cancelled the first unit issued to keep the units issued to only 100 units. I had power of attorney as trustee for Elmach Pty Ltd for the purposes of settlement and was the only officer of the company in attendance as witnessed on the document. My father was not in attendance on the day of settlement with me, although he did execute various documents as a counterpart to effect settlement. Hereunto annexed and marked with the letter “I(2)” a true copy of the offer of facility from Adelaide Bank dated 22 December 1998 addressed to me. This document was forwarded to Clayton Utz by Adelaide Bank on 22 December 1998 by facsimile and was executed by me and returned by Clayton Utz on 23 December 1998**. Given that my father had not decided which entity would hold the remaining 90 units, I agreed to ‘warehouse’ the units in my name personally but at all times the agreement between my father and I was that I held them on trust for an entity nominated by my father and my uncle as controllers of the Sundell Group. Clearly I was not going to be the owner of the units as 100% of the moneys borrowed to complete the settlement was arranged by Three Crowns Investments on behalf of the Sundell Group.** I was also aware that there would have been a personal income tax liability of approximately $5 million accruing over a period of 15 years, which could not be serviced from the rent derived from assets due to the various bank covenants and the debt repayment schedule requiring in excess of 90% of the rent received to be applied to loan repayments, and which otherwise prevented the purchaser from selling the properties, as well as obligations under the lease agreement to Elders. Erroneously, we thought that the value of the units would be only $90 and that there would be no tax or stamp duty consequences of issuing the units in my name and later transferring them to another person or entity. Had I known of those consequences, I would have ensured that the Sundell Group had made a decision as to the owner of the remaining units prior to settlement. No other officer other than me was able to attend to the matter at the closing stages of the transaction.

In April 2006, Kim received advice from PricewaterhouseCoopers about the tax implications of transferring the Elmach units from himself into hypothetical companies. The advice confirmed that this would lead to both CGT and stamp duty liabilities being created. The advice recorded as part of the “background”, that “[CTP1] has approximately $13 million in unrealised capital gains”.
In August 2006, Kim and Mr Wooldridge sought advice from Antunes Lawyers regarding the restructure of the Sundell Group’s holding of the assets held within CPT1 and CPT2.
On 11 September 2006, Bogasi purchased the Point Clare property.
On 23 December 2006, Gunnar died. On the same day, Mr Wooldridge was appointed a Director of Elmach. In due course, Jim as executor obtained probate of Gunnar’s will.
At this point, it is appropriate to record that in his defence to the 2019 Third Cross-Claim, Kim pleads that up until Gunnar’s death in December 2006, each of Jim and Gunnar exercised control in respect of the companies comprising the Sundell Group; that Jim and Gunnar operated the companies as an extension of their personas; says that a motivation of each of Jim and Gunnar but not the sole motivation, was to operate the companies comprising the Sundell Group so that support could be provided to, and benefits could be conferred upon, members of their respective families; says that at all times, Jim and Gunnar considered that they had and that they exercised, absolute discretion in relation to making provision for beneficiaries of the various trusts of which they exercised control; says that each of Jim, Gunnar and Kim trusted each other but otherwise denied the existence of any common assumption for the Sundell Group’s wealth to be shared equally between the families.
On 24 January 2007, Merle (Gunnar’s widow) was appointed as a director of Bogasi.
In May 2007, Mr Wooldridge consulted with Mr Alan Blaikie of Clayton Utz regarding a proposed restructure of the CPT1 and CPT 2 property portfolios. Written advice was prepared by Mr Blaikie and was addressed to Mr Wooldridge as “Chief Financial Officer of the Sundell Group”. The restructure never occurred.
According to Kim’s affidavit sworn on 23 December 2021, in 2007 Kim says he tried to raise the issue of whether the Elmach units should be transferred out of his name with Gunnar and Jim on multiple occasions. He says whenever he raised the issue that Gunnar would tell Jim “That’s your problem, Jim. You sort it out. It’s between you and Kim. It’s got nothing to do with me.” This evidence is not corroborated and is therefore not accepted.
On 5 February 2008, Kim sent an email to Mr Wooldridge attaching a document entitled “Actions for Bogasi”. Kim’s evidence was that he drafted this document as notes for himself. He sent it to his wife on 15 March 2008. Amongst the actions contemplated was:

The general ledger for CPT1 records that on 7 December 2011, $580,000 was credited for payment entitled “JRS Family Trust top up for Beecroft Settlement”. According to Ms Francis’ affidavits sworn in these proceedings, Crown Financial lent $580,000 to the New Jim Trust, which then lent those funds to Elmach (as trustee for CPT1), as a contribution to the purchase of the Beecroft property.
On 8 December 2011, a series of payments was recorded as being debited on the CPT1 general ledger:
$40,000 for ‘Primac Elders’ payment;
$800,000 for ‘Anne-Katrine Goulston;
$654,816.32 for ‘Anne-Katrine Goulston; and
$769.33 for ‘Anne-Katrine Goulston’.
The purchase of the Beecroft property was completed on 8 December 2011. The settlement statement records that the “total amount required for settlement (to be confirmed)” was $1,819,482.06. A transfer for the Beecroft property was signed by the vendor to Anne-Katrine for consideration of $1,900,000.00. A further transfer was also signed with Anne-Katrine as the transferor, transferring the property to Anne-Katrine Sundell (as to 80%) and Elmach (as to 20%) as tenants in common in unequal shares. Anne-Katrine and Elmach, as mortgagors, executed a mortgage to Adelaide Bank over the Beecroft property.
On 9 December 2011, Shara filed a third amended response to Kim’s initiating application in the Family Court proceedings. That response now joined Josunda, Crown Financial and Bogasi to the proceedings. The property orders in relation to CPT1 and CPT2 were the same as in the second amended response (see [156] above).
On 19 December at 4:41pm, Ms Francis emailed Mr Wooldridge asking him to look at the attached balance sheets for the New Jim Trust and confirm that they were accurate. The attached balance sheet is stated to be as at 19 December 2011 and records $1,606,816.32 as “Loan – JRS re AKS mortgage” with the annotation “80% Beecroft”.
On 20 December 2011, Mr Wooldridge emailed Ms Francis about the Beecroft property (“F/T” being a reference to “family trust”)

[206] On 21 December 1998 CPT1 was established by a unit trust creation notice from Josunda Pty Ltd to ACN 084568829 Ltd [Elmach], so that CTP1 [sic] had 1 unit issued to me. On 22 December 1998 Clayton Utz issued 90 units in the trust to me and 10 units to my company Josunda Pty Ltd. When they did this they then cancelled the first unit issued to keep the units issued to only 100 units. I had power of attorney as trustee for Elmach Pty Ltd for the purposes of settlement and was the only officer of the company in attendance at settlement as witnessed on the document. I did not have delegated authority to act on behalf of any other entity. My father was not in attendance on the day of settlement with me, although he did execute various documents as a counterpart to effect settlement. Exhibited to me and marked “JJS23” is a true copy of the offer of facility from Adelaide Bank dated 22 December 1998 addressed to me. This document was forwarded to Clayton Utz by Adelaide Bank on 22 December 1998 by facsimile and was executed by me and returned by Clayton Utz on 23 December 1998. Given that my father and uncle had not decided which entity would hold the remaining 90 units and upon identifying in February 1999 that there was a potential stamp duty and capital gains tax liability, in the event the 90 units were transferred to an entity nominated by the Sundel****l Group, I agreed to ‘warehouse’ the units in my name personally but at all times the agreement between my father and I was that I held them on trust for an entity nominated by my father as controllers of the Sundell Group. I can recall saying to my father in or about February 1999 words to the effect “Dad, Clayton utz have identified a problem in terms of the transfer of the units which is going to stick us with an additional half a million dollar stamp duty problem”. My father then said to me “that’s bloody ridiculous they are worth $100, go and sort the problem out and fix it”.” (Emphasis added)

Kim’s submissions challenged the evidence provided by Brett on the basis that it was too vague to be of any utility. It was submitted he was someone who had no involvement in the operation of the Sundell Group and no understanding of the entities in which his father had an interest.
The one conversation which Brett dates as occurring between February 2012 and September 2013 was submitted to be equivocal. In response to a request by Brett for the Ipswich property (an asset of CPT1), Jim responded that none of the "kids" would be getting "Ipswich" and that it was "staying in the company". Kim submitted that, on one view, the fact that Ipswich was to remain an asset of Elmach was entirely correct. On another view. it may very well have been an example of Jim deflecting Brett's request and avoiding a discussion he did not want to have (recalling that Jim did not permit any family member other than Kim to see his will). On either analysis, it was contended that the conversation sheds little light on whether Jim exercised a right of nomination in April 2013 (which, more likely than not, Kim submitted occurred after the conversation to which Brett refers).
Kim argued that the precision of Brett’s recollection was questionable, and he had little knowledge of the manner in which "the company" (to use his language) conducted its business. According to Kim, Brett’s evidence demonstrated that he:
Was not sure where his father's property in Booral was located (Tcpt, 9 April 2024, p 130(36));
Was not sure who owned the Booral properties (Tcpt, 9 April 2024, p 130(48));
Was not sure how Bogasi or his father came to be an owner of the Booral properties (Tcpt, 9 April 2024, p 131(16));
Was not aware that he received funds that were debited to a loan account in his name (Tcpt, 9 April 2024, p 133(46));
Did not recall signing a Deed of Acknowledgment in relation to his loan account (Tcpt, 9 April 2024, p 135(8)); and
Had no recollection of anyone discussing loan payments with him (Tcpt, 9 April 2024, p 135(18)).

Bogasi submits that Kim was neither an honest nor credible witness and his evidence on critical issues should be wholly rejected, except to the extent that it constitutes admissions against his own interest.
Bogasi described Kim as conducting himself as an advocate, in distinction to a witness who was attempting to assist the Court, who was prone to avoiding answering questions and making long, non-responsive answers. It also contended that he was quick to volunteer information which was objectively improbable. For example, on more than one occasion he stated that his affidavits did not include information because of the choices made by his lawyers.
In closing oral submissions, Mr Condon SC also said that Kim’s affidavits in these proceedings contain embellishments which indicate he was trying to reconstruct events. For example, Mr Condon SC drew attention to Kim’s affidavit sworn on 17 December 2020 where he alleges that in the April 2013 conversation he had with his father, that Jim told him that the lawyers had effectively given unqualified advice that Kim could be the nominee. That same affidavit also contains an alleged conversation that Kim had with Mr Wooldridge in approximately April 2013. Mr Condon SC noted that Mr Wooldridge could not recall any conversation with Kim about the Elmach units before 2015 and therefore submitted this evidence was an uncorroborated conversation which Kim had in fact manufactured.
Kim challenges Bogasi’s purported attempt to rely on credit findings made by Sackar J in the probate proceedings to impugn Kim’s credit in these proceedings. Bogasi submits it is not relying on the adverse findings made by Sackar J but is instead relying on the evidence before the Court of Kim’s evidence being tested and the conclusion which can be reached objectively from the transcripts that he lied about the circumstances of the handwritten amendments to the will and the reasons for them.
In reply, Kim also submitted that Bogasi’s contention that he was neither an honest nor credible witness was inconsistent with Bogasi’s attempt to rely on his affidavits from the Family Court proceedings. It was further submitted by Kim that his position is corroborated by the documentary record and the actions taken by Mr Wooldridge and himself in relation to the Nomination. Kim’s submissions suggested that to assert that he should be disbelieved on these fundamental aspects of the case because of some “long, non-responsive answers and possible infelicities makes a mockery of the Court’s fine task of fact-finding which must take into account all of the evidence” (Kim’s closing submissions in reply, paragraph 55).

I accept Bogasi’s characterisation of Kim as a witness for the reasons advanced by Bogasi. My general impression of him was that he was an argumentative witness who was advocating, sometimes strenuously, for his position rather than doing his best to assist the Court irrespective of the consequences of an answer for his case. It is not necessary for the Court to identify specific untruths in his evidence, but there was certainly exaggeration as part of his advocacy. For the purposes of fact finding, the Court will only accept Kim’s evidence on any critical issue if it is inherently likely, against interest or corroborated by contemporaneous written evidence or other reliable testimony. The reasons for this conclusion may be summarised as:
I have reached my conclusion independently of, and without regard to, Sackar J’s findings about Kim in the probate judgment (at [145]). The same applies to the conclusions I have reached about Anne-Katrine and Mr Wooldridge as witnesses. I accept Bogasi’s submission that it was not seeking to deploy his Honour’s finding about Kim in and of itself to support a similar finding in this case. However, it was entitled, as it did, to traverse the material in the probate proceedings in these proceedings to cast doubt on Kim’s credit. Most tellingly, Kim did accept (Tcpt. 24 April 2024, p 736(16)) that his denial of dishonesty before Sackar J was incorrect insofar as he now accepted that the strategy of putting assets beyond Shara’s reach was “partially dishonest”. The qualification “partially” exemplifies Kim’s unwillingness to make proper concessions and does him no credit.
Consistently with the last observation, there were many occasions where Kim resorted to accepting propositions “in part” (for example Tcpt, 29 April 2024, p784(47); Tcpt, 29 April 2024, p 821(9); Tcpt, 29 April 2024, p 845(26); Tcpt, 29 April 2024, p 848(1)) or took spurious technical points when shown documents or accounts (for example, “callable” vs “repayable” (Tcpt, 24 April 2024, p 772)).
When lacunae in his evidence were drawn to his attention, he would resort to saying that his lawyers knew about the relevant matter or conversation. An important example of this concerned evidence of conversations about the Elmach units which were in his affidavits in these proceedings but were not in his affidavits in the Family Court proceedings (Tcpt, 22 April 2024, p 503(26)). He often gave non‑responsive answers where it was obvious he did not wish to answer the question (e.g. Tcpt, 23 April 2024, p 564(39); Tcpt, 23 April 2024, p 572(10); Tcpt, 23 April 2024, p 580; Tcpt, 23 April 2024, p 626(35)-727(12); Tcpt, 24 April 2024, p 650; Tcpt, 24 April 2024, p 743(21)).
Some of his explanations were evasive and clearly not credible. For example, his statements that the shares in Bogasi were “of no economic value” were completely unpersuasive as a reason for his assertion they were irrelevant to his dispute with Shara and notwithstanding his insistence they be included in the will (Tcpt, 22 April 2024, p 525(48) and Tcpt, 22 April 2024, p 528)). Similarly, his attempts to explain what he understood would be the consequences of a successful application to set aside the Consent Orders culminated in the fanciful assertion (which he had to withdraw) that “I did not really have a lawyer per se” (Tcpt, 20 April 2024, p 897(5)).
His willingness to tailor evidence to his advantage appears from the difference between two affidavits, the first sworn for the probate proceedings and the second in these proceedings. In the first, Kim deposes to a conversation with Jim in which he (Kim) says of the Beecroft property that Anne-Katrine “has about $3,000,000 in equity in her home”. In the second, the same conversation is recorded as Kim saying to Jim “her house is worth about $3,000,000 and she has 80% of that”.
His evidence of “multiple conversations” with Jim and Gunnar about the funding of CPT1 and CPT2, none of which were referred to in his evidence in the Family Court proceedings betrayed at least an unreliable memory assuming the evidence to be correct (Tcpt, 22 April 2024, p 500-503).
I do not accept Kim’s evidence that Gunnar simply “walked away” from the CPT1 and CPT2 investments, given Gunnar’s file notes referred to in [89] and [92] above.
Kim’s evidence about his remuneration at various times was incomplete with no satisfactory explanation (see, for example, Tcpt, 22 April 2024, p 573 and Tcpt, 22 April 2024, p 586(37)). I conclude the omissions were part of his advocate’s approach to his evidence, to bolster his case that part of the reason for the Nomination was to reward him for years of lower remuneration than the results he achieved for the Sundell Group deserved.
On an application to Westpac in 2004, Kim had listed the Elmach units as his asset at a time when he knew he did not own them beneficially and they were of no value to him (Tcpt, 23 April 2024, p 583).
On the critical issue of the Nomination, Kim’s evidence was inconsistent in its essentials. His affidavit evidence was that there was one conversation with Jim in April 2013. However, in the witness box he said there were two conversations and then later recalled a third. This casts real doubt on the reliability of his memory and again exposes at least a tendency to embellish and reconstruct as part of his advocacy for his cause.
Kim was taken to multiple references in his affidavits in the Family Court proceedings where he referred to it not being decided which “entity of the Sundell Group” would hold the Elmach units. In these proceedings, Kim sought to explain those references as an “error” of some kind which he had not picked up (for example, Tcpt, 29 April 2024, p 789). I reject his attempted explanation of “error” as completely unconvincing and starkly demonstrative of the deep self-interest which to my observation infected Kim’s evidence before me. He clearly understood that those references ran contrary to what he now says occurred in relation to the Nomination.
Kim was completely unconvincing when it was put to him that something did not assist his case and he would respond that he did not understand why that to be so (see, for example, Tcpt, 30 April 2024, p 898(20)). Whatever else may be said about Kim, he is plainly an intelligent man who is well capable of understanding what would and would not be of assistance to the case he advances in these proceedings.

This evidence was also submitted to make no reference to Ms Hawes’ file note and the qualifications and cautions that Mr Blaikie had provided in his advice.
Bogasi contended that Mr Wooldridge was generally an unpersuasive witness. His recollection was submitted to be poor and he presented as someone who failed to make obvious enquiries or take obvious steps. As an example, Bogasi submitted that the Court should not accept that his approach to the ATO’s questionnaire in 2015 was so perfunctory as to justify his evidence that he was unaware of why the ATO had issued it and what it was seeking through its questions.
Bogasi accepts that rejection of part of a witness’s evidence does not justify rejecting all of it (Kuligowski v Metrobus (2004) 220 CLR 363, [60] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ). However, when a party calls testimony known to be false, this conduct can amount to an implied admission or circumstantial evidence permitting an adverse inference (Lehrman**n v Network Ten Pty Ltd [2024] FCA 369). Bogasi asks the Court to draw an adverse inference on the basis that Mr Wooldridge’s evidence cannot extend so far as to recall accurately the events of 2012 and 2013.
In reply, Kim submitted that no adverse finding of credibility can be drawn against Mr Wooldridge for his failure to inform Gunnar’s side of the family about the Nomination. This submission was said to be premised upon an incorrect assumption that Mr Wooldridge had, or considered that he had a positive obligation to convey that information, a premise for which Kim submits there was no evidence. According to Kim, the evidence demonstrates that Mr Wooldridge was discrete in discussing Jim's business affairs with family members. Mr Wooldridge’s evidence was that his discussion with Jim about the Nomination was personal between himself and Jim (Tcpt, 7 May 2024, p 1298(49)). Mr Wooldridge's evidence, which was unchallenged, in [54(e)] of his affidavit sworn 23 March 2021 was that "[t]he family trusts were also run very confidentially so that historically no beneficiary was aware of what had been provided to the others. This was the way it had always been". This extended to Jim's personal matters. Anne-Katrine's evidence was that when she asked Mr Wooldridge for a copy of the will in 2015, he responded that he would not give her a copy without first speaking with Jim. Similarly, Bogasi’s reliance on the fact that Mr Wooldridge did not tell Anne-Katrine about the conversation that he had with Jim was said to suffer from the same problem.
Kim also rejects Bogasi’s submission that Mr Wooldridge’s recollection of the conversation with Jim in April 2013 was “too good to be true”. He contended that it is entirely plausible that Mr Wooldridge would have a strong and precise recollection of the substance of that conversation. It followed a lengthy process in which Mr Wooldridge had obtained advice from Clayton Utz and Mr Campton over several months and culminated in a discussion with Jim in which Mr Wooldridge questioned and challenged Jim. It was submitted to be precisely the type of conversation of which Mr Wooldridge might be expected to have a better recollection, than other events that had less context or importance.
Finally, Kim refutes Bogasi’s assertion that Mr Wooldridge was a partisan witness, who presented material in a way that best protected Kim's interest in the litigation. It was argued by Kim that it does not follow from the fact that Mr Wooldridge's evidence did not assist Bogasi's case that he has an interest in assisting Kim's case. It was submitted there was no evidence that Mr Wooldridge has anything to gain by assisting Kim, and nothing to that effect was suggested to him in cross-examination.
Kim submitted it was noteworthy that Mr Wooldridge gave evidence in the probate proceedings which was read in Anne-Katrine's case and was harmful to the case advanced by Kim. Indeed, Mr Wooldridge remains the Chief Financial Officer of the Sundell Group, and therefore it was contended to be more likely that Mr Wooldridge had little to gain and much to lose in giving evidence in the way in which he did. Finally, Kim’s submissions observed that Mr Wooldridge has also sworn evidence on behalf of both Bogasi and Kim in these proceedings. He remains a director of Bogasi. Therefore, to suggest that there is a degree of partisanship in Mr Wooldridge's evidence is entirely without basis.

I have carefully considered Bogasi’s detailed criticism of Mr Wooldridge’s evidence. Some of that criticism has force. However, none of the criticism is sufficient to deflect me from the overall assessment I formed watching him give evidence during the trial, and again on review of the transcript and submissions, that, while his evidence was unsatisfactory in some respects, Mr Wooldridge was an honest witness upon whose evidence the Court could rely on critical issues. Insofar as his demeanour was concerned, he presented as a professional person who was a thoughtful witness doing his best to answer the questions put to him.
Moving past my direct observations of Mr Wooldridge, my assessment of him is that, for the reasons advanced by Kim recorded in [365] to [366] above, I take his evidence to be that of a non-partisan witness. This lends credibility to his evidence. There are two aspects to that description of “non-partisan”.
First, there is no evidence, and it was not put to him, that he stood to make any personal gain from the outcome of the proceedings (or that he was at risk of any retribution). This puts him in stark contrast to Kim, who has much to gain from this litigation.
Second, Mr Wooldridge did not present as having any particular loyalty to any one or more individuals (whether that be Kim, Anne-Katrine or anyone else) as opposed to loyalty to perform his job and loyalty to the Sundell family members (both sides) generally. It would be remarkable if he did not have that more generalised loyalty after more than 30 years of employment by the Sundell Group which, in practical terms, meant employment by the Sundell family.
I have reached my overall assessment of Mr Wooldridge notwithstanding taking into account three matters, in particular, which I found troubling at the conclusion of Mr Wooldridge’s evidence.
The first matter was his rigorous compartmentalisation of information. This was particularly evident in what I thought was his unnecessary obfuscation in the face of Mr Walker’s direct inquiries as a fellow director of Bogasi about the ownership of the Elmach units (see [316] above). My first impression was that behaviour did Mr Wooldridge no credit. However, I have concluded it must be remembered that whatever his closeness to Jim, Mr Walker was not a member of the Sundell family, and I formed the clear view, which is not a criticism of him, that whether by disposition or experience, or a combination of the two, Mr Wooldridge practised a high degree of discretion about the affairs of the companies and Sundell family members, both as against the world and as between themselves. In this respect I accept Kim’s submissions in [363] above and conclude that his discretion satisfactorily explains Mr Wooldridge’s failure to tell Merle, Mr Walker or Anne-Katrine of the Nomination.
As to discretion between family members in particular, reflection suggests it could not be otherwise. Mr Wooldridge first had to deal with the two, strong heads of the Sundell family, Jim and Gunnar, and then Kim (who is also a forceful individual based on my observation of him in the witness box). They were the controlling minds. But then he had to deal with the individual family members, who had been raised in an environment that whenever money or some other practical assistance was required, all they had to do was “ring the office”. I intend no disrespect by making that observation.
As a matter of ordinary human experience, I have no difficulty in concluding that Mr Wooldridge’s position would have been untenable if he had freely shared the business of one family member with another. I therefore accept that he only disclosed what he regarded himself as authorised to disclose by one Sundell to another. That Mr Wooldridge has been, and continues to be, in the Sundells’ employ after so many years bespeaks confidence by his employers in his discretion and efficiency.
The second matter is that, on the assumption that the Nomination was made, Mr Wooldridge did not take steps either to deal with any CGT liability Jim may have had or stamp duty liability that Kim may have had. I accept that failure, on one view, strongly supports the conclusion that there was no Nomination. However, given the personalities I have described, I accept that in relation to Jim, Mr Wooldridge did not pursue the CGT issue because Jim, in essence, regarded the Nomination as a complete answer, not least because Jim saw it as confirming what on the papers was the status quo. While that view was idiosyncratic and legally wrong, Jim was Mr Wooldridge’s ultimate “boss”.
As for Kim’s potential stamp duty issue, I conclude that it is plausible that Mr Wooldridge closed his eyes to the problem as “too hard”. He may, I speculate, have sought to take comfort in the absence of a written record of the Nomination. Whatever Mr Wooldridge’s internal justifications, his inaction is a failure on his part, but does not bespeak dishonesty that would cast doubt on my assessment of his basic truthfulness.
The third matter is Mr Wooldridge’s evidence before Sackar J in the probate proceedings. The issue arises from this paragraph of an affidavit made by Mr Wooldridge in the Family Court proceedings in a section headed “Control of Bogasi Pty Ltd” (what was the third line in the text is here emphasised in the light of Mr Wooldridge’s explanation set out in the next paragraph):

Kim submitted that Mr Wooldridge’s explanation should be accepted because Mr Wooldridge had understood the question in the light of Mr Meek SC’s prefatory words “aside from the issue of the majority of units in CPT1 and CPT2 to Kim” and in the context of the probate proceedings which concerned the shareholding in Bogasi and the effect of Jim’s handwritten amendments, and not the ownership of the Elmach units. I accept that submission because of my overall assessment of Mr Wooldridge as a truthful witness and because I have come to the view that his explanation is a plausible one. If Mr Wooldridge had given his answer to a question from Mr Meek SC that was clearly directed in terms to the then current beneficial ownership of the Elmach units, then my view of the forensic significance for these proceedings of such an exchange would have been quite different.
I have also considered the other criticisms made by Bogasi of Mr Wooldridge’s evidence. Of these, the most potentially potent were in relation to Mr Wooldridge’s evidence about two conversations.
The first was his conversation (set out in [214] above) with Jim on the morning of 28 November 2012, after receiving Mr Blaikie’s email of 8:25am that morning (set out in [213] above).
The effect of Mr Wooldridge’s cross-examination was that, in the witness box, he had no actual recollection of the conversation. When it was put to him that he also had no recollection of the conversation when he prepared his affidavit in 2021, Mr Wooldridge said ((Tcpt, 2 May 2024, p 1174(12)) “I recalled I had a conversation, and I had the benefit of the [Mr Blaikie’s] email and look, I may have had some other notes at the time, like, I, I can’t recall.”
I accept Mr Wooldridge’s evidence that he spoke to Jim shortly after the receipt of Mr Blaikie’s email. This is because it is inherently plausible given that the advice was received and the Consent Orders were about to be sought. However, I do not accept Bogasi’s submission that Mr Wooldridge’s credibility should be adversely judged because he purported to give evidence of a conversation he could not then recall in the witness box. I find that the evidence of the conversation is a reconstruction based upon the email. However, a lay witness may well honestly say they recall something after looking at a document. It may have reminded them of something they had forgotten or, having no actual recollection, they will in fact have reconstructed it (“I would have said that”). A well drawn affidavit should expose what is the witness’ actual, unaided recollection (if any) and what the witness now actually recalls after looking at a document to refresh their memory. The evidence should go no further, because after that it becomes reconstruction. The way in which Mr Wooldridge’s affidavit is drawn (and his evidence in cross-examination) does not permit the Court to conclude that he was intending to mislead the Court by purporting to give evidence of a conversation of which he had no recollection even after refreshing his memory from Mr Blaikie’s email.
The second was his conversation set out in [249] above in May 2015 with Kim shortly before Jim was to undergo surgery. In his cross-examination Mr Wooldridge candidly accepted that, as he sat in the witness box, he could not remember that conversation. He did recall it once his recollection was refreshed by reading the conversation set out in his affidavit. However, he denied that in preparing his affidavit he had invented the conversation by reference to his email of 6 May 2015 (set out in [250] above). He adhered to his evidence that he had had that conversation and I accept that was the case.

Bogasi submits Mr Walker was a truthful witness. On the other hand, Kim asks the Court to find that Mr Walker is not a reliable witness. It was submitted that Mr Walker was not a prudent and diligent director of Bogasi. Kim relies on evidence adduced in cross-examination that prior to 2017, Mr Walker did not seek to review the financials or accounts underlying the proposed distributions at each meeting (Tcpt, 10 April 2024, p 228(7)) and generally “rubberstamped” the resolutions (Tcpt, 10 April 2024, p 228(28)). It was also contended that Mr Walker has benefitted financially from his directorship by charging exorbitant director’s fees. Finally, it was also submitted that Mr Walker has reconstructed the existence of a “common assumption” from reading affidavits in the Family Court proceedings despite being told by Mr Wooldridge that Kim owned the Elmach units. The documentary and circumstantial evidence viewed as a whole is said to contradict the existence of a “common assumption” and therefore provides the Court with a basis to make adverse credit findings against Mr Walker.
In his reply submissions, Kim further submitted that Mr Walker is a partisan witness. Particular concern was raised about Mr Walker’s apparent belief that Brett and Anne-Katrine’s loans were never meant to be repaid but Kim’s were (see Tcpt, 11 April 2024, p 318-319).
Kim also submitted that Mr Walker was prepared to swear to matters as they suited his purpose at particular times. Kim alleges that in the 2019 proceedings, he took the view that Brett’s and Anne-Katrine’s loans were not repayable, but was prepared to swear in an interlocutory application before Rees J that one of the “potentially ruinous effects” of the hiving off of Gunnar’s trusts to an independent trustee was the repayment of loans by beneficiaries – a position which was diametrically at odds with the position taken in these proceedings.
Contrary to Bogasi’s submission that contended that Mr Walker’s belated discovery of handwritten notes was to his credit (“honest and candid”), Kim submitted that it demonstrates the opposite – that Mr Walker did not produce his notes when required during the discovery process and only produced them when he felt he was being pressed on whether the shareholders’ meeting actually occurred. Putting to one side the fact that those notes do not support his contention, his belated production is, at the very least, said to be disturbing.

Bogasi submitted that the principles applying to the construction of express inter vivos trusts are the same as those applied to contract: Byrnes v Kendle (2011) 243 CLR 253, [2011] HCA 26 [102] (Heydon and Crennan JJ). Therefore the terms of the trust can be established by oral statements intended by the parties to form terms of the trust. This includes consideration of surrounding circumstances and subsequent conduct which provides evidence of the basis upon which the trust was formed (see Brynes at [110] to [113]). Bogasi submitted that the surrounding circumstances which the Court should take into account were the facts deposed in the affidavits read in the Family Court proceedings.
Bogasi submitted that the Court should find that the state of affairs in relation to the ownership of the Elmach units was:
There was no need for Jim to nominate an equitable owner (as an existing beneficiary of the units) if he could, in the ordinary course, assign his beneficial interest;
In substance, the Family Court was concerned with whether Kim was the beneficial owner of the Elmach units (as Shara contended) or not. There was no issue between the respondents as to who, within the Sundell Group, was the owner; and
The affidavits filed in the Family Court proceedings frequently referred to a nominee in a specific context.
Due to the issues which the Court was required to consider at the time of the Family Court proceedings, Bogasi submits that the Court never had to concern itself with which entity within the Sundell Group was the beneficial owner of the units. The only issue was whether Kim was the beneficial owner or not. In other words, the Family Court proceedings were conducted on the basis that Kim lacked both an immediate right to the Elmach units and any expectation of receiving them in the future. It was presumed that an entity within the Sundell Group would be the true nominee. It was certainly never advanced in the Family Court proceedings for Kim or any of the other parties opposing Shara’s claim that the Elmach units could become available to Kim as some time in the future.
Bogasi contended that evidence adduced during the Family Court proceedings demonstrated that the Elmach units would be held on trust for an entity within the Sundell Group. For example:
In his affidavit sworn on 15 September 2011, Kim gave evidence that “given that my father had not decided which entity would hold the remaining 90 units, I agreed to ‘warehouse’ the units in my name personally but at all times the agreement between my father and I was that I held them on trust for an entity nominated by my father and my uncle as controllers of the Sundell Group”;
In the same affidavit he said “it was not decided prior to settlement which entity of the Sundell Group would acquire the other 90 units. It was agreed that some entity or person other than me or my company, Josunda, would acquire those units”;
In his statement of financial circumstances (see [128] above), Kim asserted that the beneficial owner of the units was initially intended to be a “Sundell Group entity”; and
In his affidavit sworn on 28 February 2012, Kim deposed that “… Given that my father and uncle had not decided which entity would hold the remaining 90 units and upon identifying in February 1999 that there was a potential stamp duty and capital gains tax liability, in the event the 90 units were transferred to an entity nominated by the Sundell Group, I agreed to ‘warehouse’ the units in my name personally but at all times the agreement between my father and I was that I held them on trust for an entity nominated by my father as controller of the Sundell Group.”
In addition to the affidavits in the Family Court proceedings, the following documentary and circumstantial evidence was contended to support a finding that the nominee was always intended to be a member of the Sundell Group:
The parties to the arrangement were not merely Jim and Kim. Gunnar was intimately involved in the discussions; Kim was involved as Chief Investment Officer of the Sundell Group; and TCI assisted with the provision of finance;
During cross-examination, Kim accepted that in the context of discussions he had with Shara in 2008, he was warehousing the Elmach Units for an entity nominated by his father (Tcpt, 23 April 2024, p 623 (14)). He also accepted “in part” that TCI might be such an entity (Tcpt, 23 April 2024, p, 595 (39));
Gunnar’s diary notes from 2004 and 2005 indicate that he thought TCI should be the owner of the Units (see [89] and [92] above); and
The email which Kim sent to Mr Wooldridge on 5 February 2008 attaching a document entitled “Action for Bogasi” which contemplated “Elmach issuance [sic] of units to Bogasi” (see [101] above).
In the alternative, Bogasi submitted that:
The word “nominee” referred to an entity within the Sundell Group or someone else who would hold the benefit of the Elmach units on trust for an entity in that group and/or members of the families of Jim and Gunnar; and
Further or in the alternative, it was the term of the trust that any valid nomination was subject to the condition that the nominee agree to accept the Elmach units on the basis that he/she:

This statement contains no reference by Jim to Bogasi or TCI. Kim submitted that Jim’s evidence demonstrates that the manner in which the trusts were funded reflected the beneficial ownership (“it was on this basis that I allowed other entities within the Sundell Group to advance funds to allow the transaction to complete”). That was submitted to be consistent with the evidence of later discussions between Gunnar and Jim, and finance extended by Jim’s side of the trusts (and not Gunnar’s) after 2002.
Kim also relies on Jim’s evidence that he (Jim) had a conversation with Kim and Gunnar in which it was agreed that "… that the units issued in his name should have been issued to me or entities under my control” and further that "[w]e agreed that an option agreement would effectively ensure that I had control over those units even if they notionally remained in Kim's name".
It was argued on Kim’s behalf that there is nothing in Jim’s evidence that suggests he felt somehow constrained in how he could deal with the Elmach units. The declaration that the units were held by Kim for “Jim and/or his nominee” simply reflected this unfettered discretion and was submitted to be consistent with the evidence which suggests the Sundell Group was run as an extension of Jim’s persona.
Three reasons were submitted on behalf of Kim as to why a proper construction of the Declarations allows Kim to be the nominee of the units.
First, the Declarations appear to be clear on their face and do not contain any express or implied restriction on Kim being the nominee. They did not identify all of the terms of the trusts, and the Family Court did not adjudicate upon any matters relating to the equitable rights otherwise attending the ownership of the Elmach units.
Kim rejects Bogasi’s submission that the term “nominee” referred to in the Family Court orders can only be a reference to an entity within the Sundell Group of companies or someone else who would hold the benefit of the units in CPT1 and CPT2 on trust for an entity in the Sundell Group and/or members of Jim’s and Gunnar’s families.
It was contended this submission is premised on Bogasi proving the existence of the “common assumption” which Kim says may have been a guiding principle for how business was conducted but was not binding on how Jim and Gunnar could run their businesses. Furthermore, it is also contended that the legal advice from Clayton Utz and Mr Campton ‘suggest unequivocally’ that the units were beneficially owned by Jim and he was not restricted in whom he might nominate as a beneficiary. I interpose that while it was unequivocal as to the first issue, the advice as to the second issue was less clear and, at times, contradictory.
Second, Kim’s ability to be the nominee is said to be supported by the way the orders reflect the evidence of how the units were legally held at the time the Consent Orders were made. In particular, the orders were contended to crystallise in writing the evidence that Kim had provided in his affidavits during the Family Court proceedings that he was simply “warehousing” the units subject to a direction by his father (see, for example [79] above). The Option Agreement was evidence that Kim was already subject to Jim’s direction for how the units were held, which is reflected in the terms of the order. The fact the Option Agreement was between Jim and Kim was also said to be consistent with the affidavit evidence that Gunnar believed issues concerning ownership of the units were for Jim to deal with (see [85] to [86] above). It was also submitted to support the proposition that Jim nominating Kim to be the owner of the Elmach units was not a breach of trust.
The evidence of the conversation that Jim, Gunnar and Kim allegedly had in 2002 (and which the Court does not accept occurred) was outlined in Kim’s affidavit sworn on 23 December 2021 at [25]. According to Kim, words were said to the effect of:

Kim submitted that even though he took steps with Mr Wooldridge to try to find a way to transfer the units without incurring stamp duty, when the issue was raised with Gunnar, he allegedly said “That’s your problem Jim. You sort it out. It’s between you and Kim. It’s got nothing to do with me”. This evidence (which the Court does not accept) was used by Kim throughout his submissions to contend that there was never a “common assumption” for the units to benefit the entire family as Gunnar had effectively conceded his interest in the units to Jim during the 2002 conversation.
Third, that the Declarations permitted Kim to be the nominee was also submitted to be consistent with the evidence that was already before the Family Court. Kim relies on Jim’s affidavit filed in the Family Court proceedings on 22 September 2011 where Jim deposed that he had discussions with Kim and Gunnar and that “[d]uring those discussions, Kim agreed with me that the Elmach units issued in his name should have been issued to me or entities under my control” (see [143] above). It was suggested this showed the Family Court was aware that Gunnar and Jim agreed that arrangements regarding the units were Jim’s responsibility. In light of this evidence and the ownership of the Elmach units being a fact in issue as a result of the orders being sought in the Family Court proceedings, Kim submitted that this is not a case where the Declarations were made without consideration of the underlying facts. It was also submitted that because Bogasi was a party to the proceedings, the Consent Orders preclude it from contending for a construction which is inconsistent with the evidence put before the Family Court.
During closing submissions, Ms Needham SC also submitted on Kim’s behalf that the purpose of the Declarations was not prescriptively to resolve all issues regarding the ownership of the Elmach units. Instead, it was required to address the more limited issue of whether the units at the time of the proceedings were Kim’s or not for the purposes of determining if Shara was able to obtain a property order against the units. Therefore, the Court should simply define the term ‘nominee’ in its ordinary terms.
This interpretation was also submitted to be consistent with the terms of the proposed orders sought by Jim in the Family Court proceedings including “A declaration that the units held by Applicant Husband in CPT1 and CPT2 are held for the benefit of Mr James Sundell, the Third Respondent in these Proceedings, or as he may direct.” The use of the word ‘direct’ was submitted by Ms Needham SC to be significant because it was said to reflect that Jim wanted the Court to provide him with a prospective power to nominate someone rather than for the Court to declare a trust pursuant to a set of pre-existing circumstances.
Ms Needham SC also relied on Jim’s affidavit in the Family Court proceedings sworn on 22 September 2011 where at paragraph [28] he deposed that “it was my intention, at the time of the transaction, that the property assets secured in the Elders deal would be held for the benefit of me or Gunnar or both of us.” Ms Needham SC conceded that does not indicate Jim intended for the Elmach units to be held by a natural person other than Jim and Gunnar, but submitted that needs to be read in the context of the 2002 conversation with Gunnar which effectively provided the scope for Jim to deal with the units as he pleased.
If Kim was found to be the nominee, his submissions record his consent to an order that he make a disclosure to the Queensland Revenue Office (or other appropriate revenue authority) and pay any duty which was subsequently assessed to be due and payable on the Nomination. It was submitted on Kim’s behalf that the Administrator should likewise be subject to such an order in relation to any CGT which may be properly payable on the Nomination.

For the following reasons, the Court concludes that on their proper construction, the trust declared by the Declarations does not allow Kim to be the nominee and that the “nominee” means Gunnar or a company within the Sundell Group.
The orders do not create the relevant trusts. They declare in a way binding upon the parties to the Family Court proceedings a pre-existing state of affairs.
It is pellucidly clear from the evidence in the Family Court proceedings which has been set out above that the thrust of Kim’s case (and of those in like interest to him on this point) was to establish that Kim did not have, and never had, anything more than the legal title to the Elmach units and had no expectation of anything more, and that the beneficial owner was Jim. So much is apparent from the declarations sought in the various originating processes, including the declaration sought by Jim in his Amended Response (see [183] above). However, whatever its forensic purpose, the evidence in the Family Court proceedings is not to be read down because of the purpose: it must be accepted, having been relied upon again in these proceedings, in accordance with its terms.
However, it was also at least implicit and, in my view, explicit in Kim’s case that he personally could not in future have anything more than the legal title. So much is apparent from the evidence that he led as to the circumstances in which the trusts were created. That evidence makes it clear that from the time the trusts the subject of the Declarations were created, Kim was not ever intended to be the beneficial owner. There was no suggestion of him ever being the nominee.
This at least implicit basis of the case is also apparent from the fact that Shara agreed to the Consent Orders. It would be remarkable for her to have done so had there been any suggestion that a moment after the orders were made, Jim could vest the beneficial ownership of the Elmach units in Kim.
In my respectful opinion, the matters in the two previous paragraphs are part of the surrounding circumstances which the Court can take into account in construing the Declarations which I set out in what follows.
It is true that the Consent Orders do not identify all of the terms of the trust. However, that again is irrelevant to the task of construing the term that is the subject of the Declarations.
There is an issue, more theoretical than real, as to whether this Court is construing the Declarations as orders of the Family Court or as the terms of a trust. It is more theoretical than real because, as I shall next discuss, whatever the taxonomy, all roads lead to the Court having to consider the evidence given in the Family Court proceedings, in particular as to what was said and done around the time the Elmach units were purchased.
The principles for construing court orders were conveniently summarised by Markovic J in Scott (Trustee), Re (Bankrupt) v Stolyar (No 8) [2025] FCA 20 at [33] –[34]:

To the extent that ambiguity is required, I do not accept Kim’s submission that the Declaration is unambiguous. The fact that advice was sought as to whether Kim could be the nominee demonstrates that the content of the term “nominee” was reasonably open to more than one construction. That is ambiguity.
There is no judgment to be the “primary point of reference” in construing “nominee”. The Consent Orders were made without argument before the Family Court. Had there been any argument, I am confident it would have been recorded in Mr Campton’s reporting letter to Clayton Utz (see [215] above). What would have happened if the Court had required to be taken to evidence to warrant the making of the Declarations by consent, as it at least good practice and, in my respectful view, a requirement in the case of admissions or where there has been no pleading (as was the case here), is impossible to know: see BMI Ltd v Federated Clerks Union of Australia (1983) 51 ALR 401 at per Keely and Beaumont JJ at 412-413; Akjay at [7] to [9]; Bokhari v Bokhari [2014] NSWSC 1474 at [7] per White J (as his Honour then was). It might be that “the bastard conjunction ‘and/or’” (see P Herzfeld and T Prince, Interpretation (3rd ed, 2024, Thomson Reuters) at [5.270]) might have been avoided (although one of the few things not in issue in these proceedings) or some explication of “nominee” been given.
In the absence of a judgment and pleadings, it is the evidence to which the Court must have reference.
The same outcome follows if the declaration is construed as a term of the trust, invoking the principles of interpretation of contracts. The Court may have regard to the surrounding circumstances, whether or not an expression is ambiguous: Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295. Again, in the present case it is the evidence which provides the surrounding circumstances, being what was known to the settlor (Jim) and the trustee (Kim).
Kim and Jim’s evidence of what occurred at the times of acquisition of the Elmach units (see, for example, at [74], [75], [79], [139] and [143] above) was that the units were to be held for the benefit of the Sundell family, which was by Jim or Gunnar or a company within the Sundell Group. That is because assets held by any of them were generally applied for the benefit of the whole family. That evidence was also explicit that it was not intended that Kim would be the beneficial owner of the Elmach units. Kim was, as Mr Wooldridge told Ms Hawes in 2011 (see [136] above], “fairly new” to the business at the time the units were acquired, and was therefore not someone who obviously fell within the category of persons or entities that would ensure equality of benefit between the two sides of the Sundell family. With the passage of time, it is clear that Jim came to regard Kim as such a person by the time of the Nomination.
This outcome is also informed by another important surrounding circumstance being, as Kim accepts, that “in general terms” the business of the Sundell Group was conducted with the “common assumption” of equality of benefit between Jim and Gunnar’s families. The Court accepts the evidence of Jim and Mr Wooldridge to that effect in the Family Court proceedings in [177] and [178] above. However, it also accepts Mr Wooldridge’s characterisation that “in practice, this may not always occur but it is my [Mr Wooldridge’s] underlying intention that it occur, as far as it is possible to do so”.
The Court finds that the means of that outcome being achieved at the time the Elmach units were acquired was by assets being under the control of Jim, Gunnar or a company in the Sundell Group, where those companies were really an extension of the brothers’ personas. This does not involve a finding that Bogasi’s pleaded Common Assumption existed, but accepts a more general practice that informed how the brothers operated, relevantly at the time of the purchase of the Elmach units.

Kim submits that there is both clear independent and documentary evidence as well as several pieces of direct and circumstantial evidence which support the contention that Jim did nominate Kim to be the beneficial owner of the Elmach units.
The following pieces of evidence were said to corroborate independently and provide documentary proof that Jim did nominate Kim.
First, the alleged nomination is consistent with Jim wanting to ensure that Kim would settle the Family Court proceedings and that he would not incur significant financial hardship as a result of that settlement. Six reasons were advanced in support of this proposition:
It was submitted, that Jim was very concerned that the Family Court proceedings was placing assets of the Sundell Group at risk and wanted the proceedings to be settled. This is supported by Shara’s responses to the Family Court application seeking property that was the Group’s property;
The evidence demonstrates that Kim was extremely reluctant to settle the proceedings. This is amply demonstrated by Clayton Utz’s 9 November 2012 letter to Mr Wooldridge (see [200] above) informing him that Kim’s lawyers indicated Kim was prepared to go trial if he did not obtain an acceptable settlement regardless of the cost, and was not willing to reach an agreement despite the settlement offers at the time only being $500,000 dollars apart. Kim’s reluctance to settle was further demonstrated by Kim’s 20 November 2012 offer which reiterated he would only pay Shara $3,000,000 and his instructions to his lawyers on 22 November 2012 to drop the offer by $50,000 every day the amount was not accepted. This was followed by Kim’s lawyers writing to him on 23 November 2012 (see [204] above) that he should accept the offer as it is at the ‘extreme low end of the range of entitlements that Shara might expect to receive’. Kim’s reluctance to settle was submitted to explain why Jim would be willing to promise Kim the Elmach units to settle the proceedings;
In his settlement offer to Shara dated 26 November 2012, Kim tells Shara this offer has the “‘support of my dad” (see [205] above). It was contended this email demonstrated Jim was heavily involved in negotiating and approving the settlement. Therefore, there is a basis for the Court to infer that Jim promised to nominate Kim in exchange for him settling the proceedings;
Kim’s updated Financial Statement corroborated Kim’s’ claim that he told his father that the settlement would “wipe him out”. That updated financial statement (see [180] above) indicated that as at 15 March 2012, Kim had gross assets of $352,232 and liabilities of $8,359,859;
Mr Walker’s evidence that ‘he never knew of an instance where he [Jim] willingly or knowingly put a family member into financial difficulties’ is consistent with Kim’s evidence that after the Family Court proceedings were settled Jim stated that “when this is all over I am giving you the Elmach units.” Kim asks the Court to believe this conversation occurred in light of Kim being strongly encouraged to settle the Family Court proceedings by his father even though Kim had limited means to pay the settlement himself; and
Mr Wooldridge asked Ms Francis around the time of the conversation to move all of the legal expenses incurred by Elmach from Elmach’s loan account with Bogasi to Kim’s personal loan account. The evidence demonstrates that $629,922.92 was debited to Kim’s loan account with the Old Trust (see [223] above).
Second, Kim submits that the documentary evidence shows that Jim and Mr Wooldridge sought legal advice as to whether Kim could be the nominee in accordance with the Declarations:
In particular, advice was sought on 27 November 2012 by Mr Wooldridge from Mr Blaikie as to “the retrospective effect (if any) of making the nomination declarations in paragraphs 18 and 19 of the Family Court orders and whether Kim himself could fall within the description of Kim’s nominee” (see [207] above). The evidence of the advice is at [209] above. Whilst this advice indicates that Mr Blaikie did not believe that Kim could be the nominee, that conclusion was said to be irrelevant as to whether Jim did nominate Kim. It was submitted to be enough that the evidence demonstrates Jim was clearly thinking about making the Nomination and did subsequently make the Nomination; and
Further advice was sought on 4 December 2012 by Mr Wooldridge from Kim’s family law barrister Mr Campton about whether Kim could be the nominee (see [217] above). Mr Campton’s advice was provided on 7 December 2012 (see [219] above). Kim accepts that Mr Campton’s advice is on its face not responsive to whether Kim could be the nominee, which explains why Mr Wooldridge sought further confirmation from Mr Campton. Mr Campton’s follow up advice provided on 10 April 2013 (see [227] above) said that he was “...not aware of any impediment to preclude the nomination being considered” but that “differing issues attach to the date, form and terms of the nomination as to how it is recorded and any limitations or restrictions.” While again this advice does not confirm that the nomination could occur, it was contended to show that Jim was clearly considering nominating Kim under the Consent Orders.
Third, Kim submitted that Mr Wooldridge’s evidence during cross-examination was substantially consistent with his affidavit evidence that after receiving the advice from Mr Campton, notwithstanding the concerns expressed by Mr Wooldridge, Jim was satisfied that he could nominate Kim pursuant to the Declarations to be the beneficial owner of the Elmach units. This was contended to corroborate Kim’s evidence that Jim did nominate him to be the holder of the units. When asked to “exhaust his memory” in relation to the conversation he had with Jim (see [229] above), Mr Wooldridge provided the following evidence:
Jim did not obtain further advice because he had lost confidence in lawyers’ opinions (Tcpt, 6 May 2024, p1240(6));
In response to surprise expressed by Mr Wooldridge, or a request for clarification, Jim reiterated his trust in Kim that he would do the right thing by the family if the need arose (Tcpt, 6 May 2024, p 1240(24-28));
Jim thought the nomination of Kim was right and fair because all of the costs of Kim’s divorce had been put to Kim’s account (Tcpt, 6 May 2024, p 1240(29));
In response to Mr Wooldridge’s concern that Jim’s approach could be contrary to what was said in the Family Court proceedings, Jim said that everyone has different opinions and that he would worry about it when he needed to worry about it (Tcpt, 6 May 2024, p 1240 (39)); and
Jim having “picked up” an idea that the Family Court had “superpowers” and he had “picked up” the idea that any nomination could be retrospective, notwithstanding that he had not had legal advice that the nomination itself could be retrospective (Tcpt, 6 May 2024, p 1241 (1-40)).
Ms Needham SC submitted that this evidence was substantially consistent with the recollection of the conversation which Mr Wooldridge deposed to in his affidavit evidence.
Finally, there is the evidence from Kim himself that the Nomination occurred after Jim’s discussion with Mr Wooldridge. Kim’s evidence in his affidavit sworn on 17 December 2020 is that Jim said the following words at the time of the Nomination:

Fourth, the ATO Private Group Structure Questionnaire which Jim was required to complete in 2015 was submitted to indicate that Jim had no interest in the units in CPT1 and CPT2 (see [247] above). This was suggested to be further documentary proof that Kim was the beneficial owner of the Elmach units.
Fifth, the evidence of Mr Wooldridge’s conversation with Kim in 2015 about the will was also submitted to confirm Kim’s position as the owner of the units. This conversation was contended to be demonstrated by Mr Wooldridge sending a copy of the will to Kim on 6 May 2015 (see [250] above) and Kim’s response on 11 May 2015 (see [252] above) which includes Kim inquiring “does Dean [Stell] need to redraw Dad’s will reflecting his wishes the transfer of share in Elmach to me in the event of his death or we don’t bother as they are already registered in my name.”
It was submitted that although Kim referred in this email to “the Elmach Share” currently in his name, he could only be referring to the units in CPT1 and CPT2 owned by Elmach because, first, at the time, Kim was already the owner of the only share in Elmach, and, second, his use of the plural in the final line would make sense only if he was referring to his units in CPT1 and CPT2 of which Elmach was trustee.
Finally, Kim submitted that the Nomination was corroborated by Anne-Katrine also having knowledge of the Nomination. Anne-Katrine’s knowledge was submitted to be established from two sources.
First, it was submitted that Mr Wooldridge informed Anne-Katrine that Elmach was Kim’s after she apparently asked Mr Wooldridge in 2017 “[w]hat’s going on with Elmach?” In response to Anne-Katrine asking how that happened Mr Wooldridge supposedly suggested “[t]hat’s between Kim and your father” (see [272] above). Kim submitted that a comfortable inference can be drawn from the fact that Anne-Katrine asked what was “going on” with Elmach that she was aware that Kim was the owner of more than one property that had been acquired by Elmach, and was in fact the owner of the whole of the units in CPT1 and CPT2. It was argued she was not questioning the fact of Kim’s ownership but was seeking an explanation from Mr Wooldridge as to how that occurred.
Second, in the probate proceedings, Anne-Katrine swore an affidavit where she noted that Kim told her that he “got the property from the Elders deal” (see [248] above). This evidence was apparently relied on to support a contention that the Bogasi’s shareholding was diversified in the will so that Kim was removed from control of the family trusts. The Court is asked to draw an implication that this evidence was used in the probate proceedings to underline that Kim had been provided for otherwise (“sorted”) by way of the property “from the Elders deal”.
Based on the facts set out above Kim submitted the Court can be comfortably satisfied that Jim did, in fact, exercise his rights under the Declarations to nominate Kim as the beneficial owner of the Elmach units.

Bogasi also rejects that there is objective evidence capable of establishing that Jim was motivated to compel his son to settle the Family Court proceedings. According to Bogasi, Kim’s submissions do not refute the objective evidence that Shara’s application in the Family Court never asserted any claim directly targeting the Point Clare property, and at worst only sought a distribution from Bogasi pursuant to prayer 34A of her Fourth Amended Response (see [176] above). Bogasi relies on the evidence that Jim at the time did not understand that Bogasi was the owner of the Point Clare property and Kim’s inability to recall any of his then lawyers warning him that the property was at risk.
Additionally, Bogasi denies the characterisation that Kim was reluctant to settle the proceedings. It is submitted that the fact that Kim had made substantial offers to Shara from late March 2012 falsifies two propositions implicit in the agreement Kim now seeks to prove: that he did not want to settle and that settlement only occurred because of an agreement made in November 2012 between Jim and Kim that if Kim settled the proceedings, Jim would nominate him as the owner of the Elmach units
The correspondence in early November 2012 between Kim and Shara’s legal representatives was contended to be only capable of being read as indicating that Kim was prepared to settle without the inducement of the alleged promise. For example, at the mediation on 2 November 2012, he offered to pay $3.5 million subject to Shara paying expenses such as school fees and the children’s medical insurance. On 8 November 2012, he propounded two offers, one being for $3.5 million split over two instalments, with the parties equally bearing the costs of education. That Kim’s solicitors noted in their 23 November 2012 letter that Kim had resiled from the 8 November 2012 offer (see [204] above) was also submitted to be inconsistent with Kim acting on Jim’s insistence to settle the proceedings.
Kim’s affidavits also failed to explain why he made the offers on the terms he did. For example, it was unexplained why Kim’s 28 March 2012 offer involved an increase of $2 million from the offer communicated the day before (see [188] above). Bogasi asks the Court to draw an inference that the offer was precipitated by Kim’s experience of being cross-examined on 27 and 28 March 2012 and his fear that some of his testimony would expose unfavourable facts.
Bogasi disputes Kim’s submission that the evidence of Jim obtaining advice about the Nomination, proves the existence of the Nomination. Bogasi submits that Kim’s submissions leave unaddressed why Jim embarked on a course of action which he had been expressly told would attract CGT. It also submits that all of the advice shows that Jim was aware that lawyers believed the Nomination created risks. Bogasi submits it is unclear why Jim would proceed to ignore such advice.
Jim’s predisposition not willingly to put any family member into financial difficulties was also contended by Bogasi to have no bearing on whether the Nomination was made. It was suggested that Kim’s submissions fail to address that the evidence in the Family Court proceedings demonstrates that the circumstances in which the Elmach units were acquired meant that it was known by Jim, Gunnar and Mr Wooldridge that the units were intended to be for the benefit of the Sundell Group. Jim alleviated Kim’s financial difficulties by causing Bogasi to pay his legal fees which were put on his loan account, and the will on one construction provides for a form of repayment of Kim’s loan account.
Bogasi also refutes that the Nomination not being in writing or recorded was a further manifestation of the informal way in which Jim conducted business. Bogasi relies on the following extract from Mr Wooldridge’s cross-examination as evidence that Jim was generally quite diligent in the way that dealings about the units were recorded (Tcpt, 6 May 2024, p1229(18)):

Bogasi submitted that Kim had adduced no evidence as to why he had received those distributions. In the absence of such evidence, Bogasi contends the Court cannot determine what, if anything, had changed by way of motivation for the distributions.
To the contrary, Bogasi argues these distributions are consistent with the terms of the Master Trust Deed for the units in CPT1 and CPT2. Clause 7.2 provides that no notice of any express or other form of trust will be entered in the register of unit holders and that the registered owner “will be the only person recognised by the Trustee as entitled to the Units registered in that person’s name…”. Clause 10.1 stipulates that a “Trustee will, in each Accounting Period, apply or set aside the whole of the Net Income to or for the benefit of the Unitholders in proportion to the number of Units registered in their name”.
Bogasi submits that these clauses demonstrate the distributions are not the product of a discretionary exercise on the part of Elmach’s directors, but occur simply by reference to the number of units registered in the name of the unitholder. Bogasi argued that it is for Kim to establish that Elmach recognised a different state of affairs after 2013. The distributions are no more than an acknowledgment of the state of the register that was unchanged after April 2013.
Relatedly, Bogasi submits that Kim cannot ask the Court to draw an inference about Jim’s state of knowledge of the distributions in the absence of any direct evidence on this topic such as resolutions of Elmach’s directors. Kim has failed to demonstrate that any knowledge Jim had of the distribution was an exercise of Jim’s discretion as a director of Elmach rather than a distribution referable to cl 10.1 of the Master Trust Deed.
Bogasi also denied that the email Kim sent to Mr Wooldridge in 2015 about his father’s will provides evidence that the Nomination occurred (see [252] above). It is argued that the email would have referred to the Nomination had it in fact occurred rather than referring to a “wish”. Kim’s request for the transaction to be documented was also said to be inconsistent with the advice relied on that the Nomination did not need to be in writing and the apparent inclination of Jim to accept such advice.
In reply, Bogasi also denied that Anne-Katrine can be taken as having knowledge of the Nomination. The affidavit Anne-Katrine swore in the probate proceedings, which Kim now relies on to establish her knowledge, is submitted to not identify which “property” Kim apparently received in the Elders deal. This imprecision was submitted to show that the evidence cannot establish Anne-Katrine’s knowledge of the Nomination.
Finally, Bogasi denied that the ATO questionnaire supports Kim’s claim to the Elmach units because the evidence suggests no one turned their minds to the status of the units having regard to the Consent Orders. Bogasi submitted that the evidence did no more than demonstrate Mr Wooldridge was “sloppy” in settling the document.
During closing oral submissions, Mr Condon SC submitted that Gunnar’s diary notes in 2004 and 2005 where he was considering the ownership structure of the units (see [89] and [92] above) were inconsistent with Ms Needham SC’s submission that Gunnar relinquished his interest in the units in 2002. Mr Condon SC also refuted that the large difference in Kim’s settlement offers to Shara was explained by Jim pressuring Kim to settle. Instead, the difference was submitted to be explained by Kim having been cross-examined in the witness box in the days before the final settlement. Kim’s experience in the witness box was contended to be the more likely reason for the settlement rather than pressure from Jim to settle the proceedings.

As I have already recorded, Bogasi’s primary case is that the conversations asserted by Kim never occurred. As the alleged nomination will derogate from the assets the estate, Bogasi submitted (and the Court accepts) that the Court will need to scrutinise the evidence very carefully to see whether it is true or untrue (see GLJ v Trustees [61]). It was also correctly submitted that Kim bears the onus of demonstrating that there was a Nomination.
Bogasi contends that the matters identified in Watson v Foxman (1995) 49 NSWLR 315 at 318-9 have only limited relevance where Bogasi contends that Kim and Mr Wooldridge have given knowingly false evidence. However, they otherwise have relevance. For example, even if Jim did discuss the alleged nomination with Mr Wooldridge, the Court would need to be satisfied that the words uttered constituted an immediate and unqualified assignment of the equitable interest in the Elmach units.
It was submitted on behalf of Bogasi that the Court would be cautious with the evidence provided by Kim and Mr Wooldridge because:
They are not credible witnesses;
Kim’s case and evidence is inherently subject to self-interest;
Mr Wooldridge had a poor recollection of events and conversations about the Nomination and it is inherently improbable that his recollection could be as certain as his affidavit evidence suggests; and
Given neither Jim nor Kim was spending much time in the Sundell Group’s office, doubt must attend whether any discussions took place as now alleged.
Given that the conversations are uncorroborated, particular significance attaches to the likelihood, or otherwise, that Jim made the Nomination. Three reasons were put forward as to why the Nomination is inherently unlikely:
First, the Nomination had the effect of removing Gunnar’s side of the family from having any financial benefit in relation to the Elmach units and the transfer would have represented a complete and unexplained betrayal of trust owed to Gunnar’s side of the family;
Second, it exposed Jim to a likely CGT liability and Kim to a possible liability for stamp duty. Bogasi submitted that no proper explanation has been given as to why, suddenly, Jim acted heedless of the tax consequences of the transfer when the evidence demonstrated that tax implications of deals was often a significant consideration for how Jim conducted his business; and
Third, it conferred property on Kim worth at least $20 million at the time. It was submitted to be difficult to understand why Kim would receive such a large benefit when he already had the benefit of Bogasi funding his payments to Shara following the Family Court proceedings and his lawyers for those proceedings.
Bogasi also rejects Kim’s claim at [19] of the 2019 Second Cross-Claim that he was promised the Elmach units after he had suffered significant detriment. Three submissions were made in response to this proposition:
First, Bogasi refutes Kim’s contention that he was underpaid when he initially returned from overseas to work for the Sundell Group. Bogasi submitted that it was disingenuous for Kim to rely only on the formal income that he received without including the benefits he was obtaining from a tax-effective loan account with Bogasi. It was submitted that even Kim acknowledged the benefits of this loan account in his affidavit sworn on 28 February 2012 in the Family Court proceedings where he deposed having the following conversation with Shara:

Second, Bogasi denied that there was an agreement to resolve the Family Court proceedings “at the request of Jim and at the personal cost of Kim”; and
Third, the fact that Bogasi lent money to Kim to pay his legal costs was submitted to militate against ‘an additional act of bounty’ [being the Nomination] rather than justifying it.
Bogasi also challenges Mr Wooldridge’s evidence as a “reconstruction” that the legal advice Jim received in relation to the Consent Orders empowered Jim to nominate Kim. To the contrary, that evidence was submitted to demonstrate objectively that Jim had received advice that any such nomination was fraught with legal risk. For example, Bogasi relied on Mr Blaikie’s communication of 28 November 2012 (see [213] above) which warned strongly against a nomination as being a fraud on the Family Court and stated that “it is best not to follow this course of conduct without specific favourable advice from [Kim’s] family lawyer.” Further, Mr Campton’s communication of 10 April 2013 (see [227] above) specifically warned that differing issues attached to the date, form and terms of the nomination, especially as to how it was recorded and any limitations or restrictions. The implications of those words are considered below.
Bogasi also rejects that there is any evidence corroborating Kim’s contention that the Nomination was made orally on two occasions. The first conversation was one alleged to have occurred between Jim and Mr Wooldridge in April 2013 where Jim purportedly exercised his right of nomination pursuant to the Declarations. The second conversation was also said to have occurred between Jim and Kim in April 2013 in which Jim informed Kim of the nomination.
For the following seven reasons, Bogasi submitted that these conversations never occurred. First, in cross-examination, Kim gave evidence that he had three conversations about the nomination in April 2013. Kim gave evidence that he had two conversations in April: the first April 2013 conversation at the North Sydney office for the Sundell Group (Tcpt, 23 April 2024, p 635(32)), and the second at lunch on Blues Point Road (Tcpt, 23 April 2024, p 646(13)). They were separated by a couple of weeks. The third conversation occurred earlier in March 2013 (Tcpt, 23 April 2024, p 644(36)). This further conversation was not referred to in Kim’s 17 December 2022 affidavit. The inconsistency between Kim’s affidavit evidence and oral evidence on such a critical issue as to when the Nomination occurred would lead the Court to conclude that no nomination happened.
Second, there is no written evidence corroborating the alleged nomination. No written file note or diary note was recorded by Kim, Mr Wooldridge or Jim (Tcpt, 23 April 2024, p 636(11)). Kim also agreed he never told Mr Walker about these conversations in April 2013, or Brett or Anne-Katrine (Tcpt, 23 April 2024, p 636(38)). It was submitted to be remarkable that no contemporaneous note was prepared recording the Nomination given the value of the Elmach units and the significance of the transaction to the Sundell Group’s businesses.
Third, Bogasi submitted that doubt must attend whether these meetings ever actually occurred. The evidence adduced during cross-examination was that by 2013, Jim was attending the office once every three or four weeks. Kim was attending only one or two days a week.
Fourth, the contemporaneous written communications indicate that there was no nomination. First, Kim’s email dated 11 May 2015 to Mr Wooldridge inquiring whether the will needed to be updated never mentioned the Nomination. The reference to “wishes the transfer of share in Elmach to me in the event of his death…” was also said to be instructive. It postulates a transfer upon Jim’s death and not one that had already occurred. Second, the responses submitted to the ATO’s questionnaire in 2015 are also inconsistent with the exercise of any right of nomination on the basis that Jim did not disclose any liability for CGT.
Fifth, the fact of the Nomination was never communicated to anyone else. Kim’s evidence during cross-examination was that he told neither Mr Walker nor Mr Stell (a solicitor) about the alleged nomination (Tcpt, 23 April 2024 p 636(38)); and he could not recall whether he had told Anne-Katrine by 2015 (Tcpt, 23 April 2024 p 637(22)).
Sixth, for the reasons submitted at [361] above, Mr Wooldridge is submitted to not be a witness of credit. The high point of Mr Wooldridge’s evidence was that he was not at liberty to tell anyone else about the Nomination. Six reasons were advanced to refute this proposition:
Mr Wooldridge conceded in cross-examination that no such requirement of secrecy existed (Tcpt,7 May 2024, p 1299(3));
The evidence goes no further than to suggest that Jim did not feel the need to document the Nomination;
It was the practice of the Sundell Group that transactions of this nature would be documented. This was submitted to be corroborated by the document entitled “Issue of Units to TCI in satisfaction of Div 7A loan repayment by CPT1 to CW”;
It is inherently unlikely that the Nomination would not be communicated to Sundell family members when Mr Wooldridge’s role required him to safeguard the interests of all of the family members and Mr Wooldridge understood that Jim was liable for CGT by reason of the assignment;
It is inherently unlikely that the Nomination would not be communicated or otherwise spoken about when any nomination would have affected the responses provided to the ATO questionnaire and Mr Walker was making direct inquiries about the transaction in 2019, founded upon what had been asserted in the Family Court proceedings; and
Mr Wooldridge asserted that he never discussed with Kim his potential liability for stamp duty despite knowing any such liability would be in the millions of dollars and advice on stamp duty had been obtained approximately only one year beforehand (Tcpt, 2 May 2024, p 1120(23)).
Seventh, Bogasi also contends that Kim’s request to his solicitors on 14 August 2013 to file an application pursuant to s 79A of the Family Law Act 1975 (Cth) is inconsistent with the alleged nomination. It was submitted to be inconceivable that Kim would seek to revoke the orders pursuant to which the alleged nomination had been made.
Bogasi further contended that Kim’s case required him to persuade the Court that Jim acted in defiance of repeated advice that the Nomination could not and should not be retrospective and that he did so with the intent of evading CGT or otherwise acted recklessly with his obligations as a taxpayer. Bogasi put forward four reasons why the Court should not accept these premises:
First, the Court would be cautious in finding that Jim was someone who would willingly risk being found liable for tax evasion. It was also submitted to be inconsistent with Jim’s general willingness to act upon advice from professional advisers;
Second, they are inconsistent with the manner in which Jim presented his case to the Family Court, namely that Kim had no extant rights to the Elmach units;
Third, the effect of the Nomination vesting the Elmach units in Kim alone is inconsistent with the evidence showing that the Sundell Group’s assets would be made available for the benefit of both sides of the family (the Common Assumption); and
The Nomination had the effect of bringing about a commercial outcome that is absurd: namely where Kim was receiving substantial benefits to discharge his liabilities to Shara he would also receive the Elmach units valued in the order of $20million.
Kim’s evidence during cross-examination was also submitted to reflect that he was incurious about recording the alleged nomination. He accepted in cross-examination that, as at 2015 when he sent the email to Mr Wooldridge about the will, he expected the Nomination to have been documented (Tcpt, 29 April 2024, p 823(38) and 824(39)).
The informal and oral nature with which the Nomination was made was also submitted to be inconsistent with the potential CGT consequences of the Nomination. For example, the 30 August 2011 letter from Watts McCray to Shara’s solicitors attaching a document prepared by Mr Wooldridge estimated that approximately $5.5 million in CGT would be payable if the option in the Option Agreement was exercised.
There is no evidence of anyone making any enquiries of Jim about who should bear the CGT tax liability. Kim also never asked his accountants to consider the CGT tax consequences and was submitted to have falsely asserted that Clayton Utz might have done so (Tcpt, 29 April 2024, p 824(44), 825(38) and 826(15)). This assertion was said be unsustainable in circumstances where Kim accepted that he did not know of any conversation that Jim or Mr Wooldridge had with those lawyers (Tcpt, 29 April 2024, p 826(20-38)).
Bogasi also submitted that the following explanation Kim provided as to why he did not ask for the Nomination to be recorded was ‘facile’ (Tcpt, 29 April 2024, p 827):

In summary, these paragraphs were said to record that around the time of the Family Court proceedings, Jim was takings steps to diversify the control of Bogasi away from Kim. These paragraphs were also submitted to indicate that Jim was well-used to documenting legal matters. This was inconsistent with the informal way the Nomination occurred despite it being a multi-million dollar transaction.
Bogasi rejects Kim’s contention that the catalyst for the Nomination was an agreement between Kim and his father to the effect that Jim would look after Kim in return for Kim settling the Family Court proceedings. Bogasi contends that the Court cannot find the conversation took place in the terms alleged in the absence of any evidence corroborating the conversation.
Bogasi submitted it was significant that no legal representative has been called to give evidence to the effect that the pressure for the settlement came from Jim. Elmach’s solicitor, Mr Bloemendal, acted for Kim and the Sundell Group companies including Bogasi in the Family Court proceedings. He was not called to give evidence. Therefore, Bogasi asks the Court to draw a Jones v Dunkel inference that Mr Bloemendal’s evidence would not have assisted Kim.
Bogasi submits that the real motivation behind Kim settling the Family Court proceedings was the effect of Kim’s cross-examination from Shara’s counsel which was submitted to expose Kim’s evidence as being false in material respects and in part motivated to mislead his wife and the Court.
Bogasi further submitted that the legal advice Mr Wooldridge and Jim received makes it inherently improbable that any nomination occurred. Mr Blaikie’s 28 November 2012 advice (see [213] above) was said to indicate that Jim would be the beneficial owner of the relevant units and if the units needed at some point to be vested in someone other than Jim there would be a need to use the nomination power. Furthermore, there would be a potential CGT event arising when Jim disposed of the units unless it was as a result of his death and the disposition of the units in his will to some other member of the family. Bogasi submitted it was inconceivable that Mr Wooldridge and Jim did not discuss the significant tax consequences of the Nomination, yet no mention of any such discussions was to be found in the evidence.
Bogasi also refutes Kim’s contention in cross-examination (Tcpt, 2 May 2024, p 1109(46)) that he had never seen Mr Campton’s advice dated 10 April 2013 (see [227] above). This was said to be unlikely given his evidence that in his conversation with Jim in April 2013 he had been told there was “no impediment” to making the Nomination. The use of the word “impediment”, being a word used in Mr Campton’s advice, was submitted to indicate that term had been taken from Mr Campton’s advice and used in his affidavit evidence.
Mr Campton’s advice was also submitted to be incapable of being read as saying that the Nomination could be made. To the contrary, it was submitted a reasonable reader of the advice would have understood that Mr Campton was concerned about the date any nomination should take effect from, how it was to be expressed and whether the nomination should be qualified, by reference to the prior dealings between Jim and Gunnar.
It was submitted to be inherently unlikely that the Nomination was made in the face of the appropriately cautious legal advice referred to above. As well, it is inherently unlikely it occurred because the same tax issues (CGT and stamp duty) that bedevilled discussions about transferring the Elmach units over the years since 1999 still persisted in April 2013 (as was made clear by Mr Blaikie and Mr Campton).

In reply, Kim submitted that the email correspondence between Kim and Mr Wooldridge in 2015 does not suggest that the Nomination never occurred. The absence of a reference to the Nomination in that email was submitted to be unsurprising given the email was between two persons who knew about the Nomination and refers to, but does not summarise, a conversation they just had which was allegedly about that very topic.
Kim also refutes Bogasi’s contention that it was unlikely the Nomination would have occurred because Jim was “disappointed with Kim for dragging Bogasi into the Family Court proceedings.” Kim relies on Jim’s Family Court affidavit sworn on 23 September 2011 where he made references to “trusting Kim’s ability and skill” (at [18]) and at [33] “I am proud that Kim was able to demonstrate such business acumen…” These statements are said to be inconsistent with Bogasi’s characterisation of their relationship.
Kim also rejects that the Court should find the Nomination did not occur because it is unlikely that Jim would have ignored legal advice concerning the potential tax risks associated with the Nomination. Kim submitted that Bogasi’s argument is premised on an assumption that Jim slavishly and unwaveringly followed the tax advice he received. It was suggested this ignored that Jim was the subject of an investigation in 2010 in the context of the Project Wickenby task force. Moreover, it was contended that Bogasi’s case relies on Jim accepting and acting upon the advice of Mr Blaikie. However, on any analysis, Jim did not do so. Even on Bogasi’s case, assuming that Jim continued to be the owner of the Elmach units, he failed to disclose the income received on his tax return, an act which was in itself contrary to Mr Blaikie’s tax advice.
Kim also rejects Bogasi’s contention that it was ‘remarkable’ that Mr Wooldridge did not discuss with Kim his potential liability for stamp duty if the nomination was to be made. This submission was contended to assume wrongly that Mr Wooldridge had a positive obligation to discuss Kim’s personal tax affairs with him, in circumstances where Kim was privy to the same advice about stamp duty. That Mr Wooldridge did not interfere in Kim’s tax affairs in circumstances where Kim was a sophisticated man of business was submitted to be entirely plausible.
Kim also asked the Court not to accept Bogasi’s assertion that the failure by Mr Wooldridge to obtain a record of the Nomination in writing speaks to the falsity of his evidence as to the Nomination having occurred for three reasons:
Mr Campton was asked squarely to provide an opinion as to whether any nomination had to be in writing. With the benefit of hindsight, Kim’s submissions concede it is apparent that Mr Campton’s answer did not respond directly to the question that Jim asked. However, contrary to what is asserted, it was not suggested to Mr Wooldridge that he considered he had received an inconclusive answer about the requirement of writing in 2013;
Mr Wooldridge raised squarely with Jim how he wished to document his nomination. According to the account of the conversation he had with Jim, Mr Wooldridge deposed in his affidavit that Jim responded by saying that nothing needed to be documented because there was nothing to change "[b]ased on the fact that Kim is already recorded as the unit holder and everything goes to his account"; and
It was submitted on Kim’s behalf that the fact that the issue of units to TCI was recorded in writing was in an entirely different context (the creation of new units, as opposed to the nomination of Kim as owner which required no change to the unit holder records) and so no inference can be drawn about the absence of the Nomination in writing.
Kim also refutes Bogasi’s submission that Mr Wooldridge’s evidence in the probate proceedings supports a conclusion that Jim made no nomination. It will be recalled that Mr Wooldridge was referred to his affidavit where he observed that, aside from the issue of the majority of units in CPT1 and CPT2 to Kim, "[a]t no other time during my engagement or involvement with the Sundell family have significant commercial or business assets been placed solely whether legally or beneficially under the control of any single member of the Sundell family" and that position held true until Jim's death.
Kim rejects that this evidence suggests the Nomination never occurred. It was submitted that the answer needs to be read in the context of Senior Counsel prefacing the question with “aside from the issue of the majority of units in CPT1 and CPT2” and that Mr Wooldridge himself says he did not believe that he was being asked to consider the legal or beneficial ownership of CPT1 or CPT2. The explanation was submitted to be entirely plausible having regard to the opening words of Senior Counsel’s question, and the subject matter of the probate proceedings (which was concerned with the shareholding in Bogasi and the effect of Jim’s amendments to his will, and not with the ownership of CPT1 and CPT2).
Kim also contends that Bogasi’s argument that the 2015 ATO questionnaire is not consistent with Kim being the nominee is circular because the questionnaire also clearly records Kim as the legal and beneficial owner of the units in CPT1 and CPT2. Kim suggests that for Bogasi’s argument to be correct (that because Jim had received tax advice three years earlier that a disposition of those units would likely result in a CGT liability the fact that no CGT liability was recorded in the ATO questionnaire means that the Nomination did not occur), the ATO questionnaire would have to have recorded Jim as the legal and beneficial owner of the units in CPT1 and CPT2 (because, on Bogasi’s case, that is the only basis upon which no CGT would be payable).
In closing submissions, Ms Needham SC noted that Mr Blaikie on 27 November 2012 informed Mr Wooldridge that if Jim was to be the beneficial owner of the Elmach units that he would have to declare future tax returns to reflect this position. The absence of any future returns by Jim declaring an interest in the units, and the responses provided to the 2015 ATO questionnaire, were submitted to be further evidence that the Nomination occurred.
Kim argues that the underlying problem with Bogasi’s submissions concerning the ATO questionnaire is that they ignore that Kim is recorded as the owner of CPT1 and CPT2, when this was the subject of careful review. Implicit in Bogasi's submission is that this must have been an error. The basis for this conclusion is that CGT would undoubtedly have been recorded. However, Kim submits there are alternative explanations:
Jim disclosed no taxation liability at all in the schedule when there can be no doubt that he would have had at least some future income tax liability – it is conceivable that Jim did not include any future uncrystallised taxation liabilities in the schedule; and
Bogasi's submission assumes that Jim accepted that he had a CGT liability. Mr Wooldridge's evidence is that, rightly or wrongly, Jim did not consider that he had such a liability. During closing submissions Ms Needham SC explained this position on the basis that all of the advice Jim had received to date informed him that if the legal ownership of the Elmach units changed then there would be a CGT event. Even if an erroneous understanding, Jim believed that the units remaining with Kim signified that no CGT would be paid on the units and none needed to be declared in the questionnaire.
Kim also refutes Bogasi’s submission that it was unlikely that the Nomination occurred because it would have exposed Jim to a likely CGT liability and Kim a possible liability for stamp duty. Kim submitted that the risk of him having to pay stamp duty is not a proper basis for the Court to draw an inference that the Nomination had not occurred because the benefit Kim would receive from obtaining the Elmach units would outweigh any possible stamp duty.
Kim submits the Court should accept Mr Wooldridge’s evidence that Jim believed the units were Kim’s and that because the units were already registered in his name nothing needed to be changed in order to give effect to the nomination. This rationale was also submitted to explain Jims’s position that no CGT needed to be paid (and whether or not it was correct as a matter of law should not influence findings as to Jim’s underlying intention).
Bogasi’s submission that the Court should not lightly infer that the Nomination occurred because the Nomination conferred a substantial benefit on Kim was submitted to be lacking context. In reply, Kim reiterated that the substantial benefit arose in the context of Kim suffering significant detriment including:
The advice given to Kim to resolve the Family Court proceedings was premised on the fact that Shara’s application to include Sundell family assets in the matrimonial asset pool may be successful, such that the settlement exceeded Kim’s gross assets (and far exceeded his nett assets which after making the settlement payment to Shara would have put him in a position where his liabilities would have exceeded his assets by at least $8,000,000). The provision to Kim of the units in CPT1 and CPT2 was Jim’s method of ‘sorting Kim out’ as he had promised prior to the making of the Consent Orders;
The fact that Jim had altered his will so that Kim no longer received the shares in Bogasi. This act was submitted to be inconsistent with the previous representations he had made to Kim and the basis on which Kim had returned to work in the Sundell Group;
The enormous wealth that Kim created for the Sundell Group, such that the total equity of Sundell Holdings grew from approximately $25.5 million to $45.5 million between 1999 and 2018; and
The benefits that other members of the family, specifically Anne-Katrine had received.
Kim further refutes that Jim had no intention of nominating Kim to be the owner of the Elmach units due to the allegedly fractious state of their relationship at the time of the alleged nomination. Kim submitted that any attempt by Bogasi to rely on findings of Sackar J from the probate proceedings, including as to the nature of Jim’s relationship with Kim, would be impermissible pursuant to s 91 of the Evidence Act 1995 (NSW). To the contrary, Kim reiterated that the evidence demonstrates their relationship was positive. For example:
In his Family Court affidavits, Jim deposed that “Kim is very entrepreneurial and has a vast network of business contacts which he utilises to great effect”. Jim commented that he had full trust in Kim and reiterated that he trusted his “ability and skill in sourcing potential investment opportunities”.
Mr Wooldridge’s evidence in the Family Court proceedings was that “…there has always been an unwavering level of trust existent between Kim, Jim and Gunnar”.
Although it was accepted Jim amended his will to diversify the shareholding in Bogasi, Kim highlighted that Jim made no changes to his executors, reinforcing the continued level of trust that he had in Kim.
Kim also refutes Bogasi’s contention that it was unlikely that Jim would have acted in contravention of the “appropriately cautious” legal advice that he received. It was submitted that the evidence instead revealed that Jim was determined to obtain advice about the nomination of Kim in the face of what Jim believed was obfuscation by his lawyers. That conclusion is supported by the following:
Prior to the making of the Consent Orders, Mr Wooldridge requested, on behalf of Jim, advice in relation to the effect of the Declarations, including whether Kim himself could fall within the description of Jim’s nominee;
Mr Blaikie advised orally that he did not consider that Kim could be the nominee, and confirmed in an email on 28 November 2012 that “… it is best not to follow this course of conduct without specific favourable advice from his family lawyer”;
Jim did not accept Mr Blaikie’s advice as resolving the question of his ability to nominate Kim. Mr Wooldridge, on behalf of Jim, then asked Clayton Utz to obtain advice from Mr Campton (Jim’s family lawyer as suggested by Mr Blaikie) as to whether there was anything that precluded any family member, including Kim, being Jim’s nominee. This was submitted to demonstrate a determination to obtain advice as to the Nomination, and a reluctance to accept Mr Blaikie’s opinion; and
Ultimately, Mr Campton responded that he was “… not aware of any impediment to preclude the nomination being considered” (the reference to the “nomination being considered” presumably being a reference back to the nomination of Kim referenced in the email to which he was responding). Mr Campton added caveats at the conclusion of his email, but those caveats did not detract from his opinion that he was not aware of any impediment to the nomination of Kim.
Contrary to Bogasi’s submission that Mr Campton’s advice was “cautious”, it was submitted by Kim that this advice in fact supported Jim’s ability to nominate Kim. Jim’s persistence in obtaining the advice from Mr Campton despite his (Mr Campton’s) delayed response was submitted to reflect a determination on the part of Jim to nominate Kim as the beneficial owner and sits comfortably with the conversation that Mr Wooldridge had with Jim in April 2013. Ms Needham SC argued that the persistence of Jim demonstrated by his frustration towards the advice he was receiving from his lawyers, and his cavalier attitude towards the potential tax implications are a complete answer to Bogasi’s contention that the advice received and that the tax risks make it improbable that Jim did nominate Kim.
Ms Needham SC also argued that it is incorrect for Bogasi to assert that the Court would find it improbable the Nomination occurred on the basis that Jim would want to ensure that he was fulfilling all of his tax obligations. This was submitted to be a misplaced assumption on the basis that he was the subject of the Project Wickenby tax investigation and had to pay penalties associated with having offshore tax accounts.
During closing submissions, Ms Needham SC also submitted that no adverse inference could be drawn by the Court on the basis that no member of Gunnar’s family, or Anne-Katrine or Brett was informed about the Nomination. This non-disclosure was submitted to be consistent with the way that Jim ran the Sundell Group. For example, he directed that only Kim and David could see his will and Anne-Katrine and Brett both gave evidence that they were unsure where their personal funding from the Sundell Group came from.

The Court also finds that this is the nomination for the purposes of the Declarations, informing Kim as trustee that he now held the Elmach units beneficially. That, on its proper construction, the Declaration did not permit Kim to be the “nominee” is a different issue.
I have made this finding conscious of the degree of scrutiny that a claim of this kind requires where the other interlocutor is deceased. Had the only evidence of this conversation been Kim’s, then the Court would not have been satisfied to the requisite degree, both because of the scrutiny required and the view which I have taken about Kim’s credit.
The finding is made because Kim’s account is corroborated by these matters:
Most importantly, Mr Wooldridge’s conversation with Jim set out in [229] above. The Court accepts Mr Wooldridge as a reliable witness (see [367] to [385] above) and finds that conversation occurred. Having observed Mr Wooldridge giving his evidence, I am unable to conclude that he would lie about something so important. Nor do I assess him as someone who has, in good faith and with the passage of time, simply persuaded himself that the conversation occurred; and
The fact that advice was sought in the months before April 2013 about whether the Nomination needed to be in writing and whether Kim could be the nominee.
In reaching this conclusion I have kept in mind the following matters in particular, which I consider to be what weigh most heavily against the conclusion I have reached:
The absence of the Nomination being in writing. This is explained by the evidence of the advice sought at the time, which was that there was no requirement for writing. Jim’s view that no writing was required because the units were already registered in Kim’s name is plausible as the view of a lay person;
Mr Wooldridge’s evidence in the probate proceedings. I have dealt with this in [377] to [380] above;
Kim’s email of 11 May 2015 (see [252] above). It was sent in the exigent circumstances of Jim’s hospitalisation. The confusion or ambiguity in the reference to the Elmach Share (which Kim already held) is such that I do not find Bogasi’s submissions sufficiently persuasive to alter the view to which I have come; and
The CGT and stamp duty implications. The Court accepts the evidence that Jim was frustrated with what he saw as the pettifogging and prevarications of lawyers. His view that the Consent Orders were some kind of “magic bullet” was eccentric and legally wrong, but the Court accepts he held that view and it is a sufficient explanation in the circumstances to negative this factor as weighing against the Court’s conclusion.
Finally, it is necessary to consider the matters raised by Bogasi in [494(1) and (3)] above – the “betrayal” of Gunnar’s family and allegedly unwarranted benefit conferred on Kim. These matters are, in my respectful view, related for reasons which I will next explain, arising from the fact that it is clear from the evidence of Jim, Kim and Mr Wooldridge that the Sundell Group operated on the basis that assets, whether held by Jim, Gunnar or a Group company were there to be deployed for the benefit of both sides of the family where possible.
Assuming, contrary to the view I have expressed, that the 2002 conversation (see [85] above) took place, two things can be said. First, Gunnar’s statement is premised on his apparent belief that the units were not “worth anything”. Second, he was not completely abandoning his interest in them given that he said, “if we can transfer them down the track, we can look at it again”. It appears he was leaving the “problem” of the transfer to Jim and Kim. However, I do not accept that by those conversations Gunnar was abandoning the benefit that his side of the family might get from the Elmach assets as part of how the Sundell Group operated.
So understood, neither Gunnar’s September 2004 (see [89] above) nor April 2005 file note (see [92] above) is inconsistent with the 2002 conversation. Nor is Jim’s evidence in the Family Law proceedings that he had conversations with Kim and Gunnar where it was agreed that the Elmach units should have been issued to Jim or entities under his control. That statement does not mean that the Elmach units would then be solely for the benefit of Jim’s side of the family.
The same point can be made about Bogasi’s argument that the Nomination is unlikely to have been made because it would have been an “unwarranted benefit” to Kim. That submission assumes that Jim subjectively intended to give Kim the Elmach units free of at least the moral obligation to support both sides of the Sundell family. That Jim did not have that intention is apparent from Jim’s statement to Mr Wooldridge, which the Court accepts was said, that “I am comfortable with it because I trust Kim and feel that if and when any funds or support is required from Kim to support the family he will do the right thing”. Having listened to the protagonists over many days, I have no doubt that at the heart of this litigation is the fact that other family members do not consider Kim has done “the right thing”. In Anne-Katrine’s case, for example, Kim should have ensured she has the benefit of the full value of the Beecroft property free of any claim by Elmach without actual cost to her. The assertion of the Common Assumption is the means by which Jim’s expectation, which the Court accepts Jim had of Kim, is sought to be given legal effect.

Kim rejects Bogasi’s submission that any nomination by Jim was a “disposition” of equitable title in the Elmach units and was therefore required to be in writing. Kim argues this submission assumes that that any nomination by Jim was a “disposition” of equitable title in the Elmach units for the purpose of s 23C(1)(c).
However, Kim submits the Nomination was a disclaimer of Jim’s interest in the units. A disclaimer of a present entitlement operates by way of avoidance, rather than by way of disposition: Re Paradise Motor Co Ltd [1968] 2 All ER 625*;* Carter v Federal Commissioner of Taxation (2020) 279 FCR 83; [2020] FCAFC 150 at [109] (this principle unaffected by the reversal of Carter in the High Court: (2022) 274 CLR 304; [2022] HCA 10). In this case, the effect of the disclaimer would be to unite the legal and beneficial interest in Kim. Therefore, there would be no need for writing under s 23C(1)(c) because there was no disposition of Jim’s interest.
It is submitted to be no answer that Jim had already accepted the beneficial interest and could not subsequently disclaim it. That is because a right of nomination must recognise the fact that Jim had not yet accepted the beneficial interest in the units. It was argued that to construe the Declarations otherwise would result in the word “nominee” (a deliberate choice) being construed as a synonym of “assignee”. That would render the words “and/or his nominee” otiose.
In the alternative, if s 23(1)(c) were to apply, Kim contends that s 23E(d) would apply. This provides that nothing in s 23C of the CA affects the operation of the law relating to part performance. The effect of s 23E(d) is that if a party alleging an oral disposition of an equitable interest that is required to be in writing by reason of s 23C(1)(c) can show that it performed acts which are “unequivocally, and in their own nature, referable to some such agreement as that alleged” then a court of equity will recognise the interest: Maddison v Alderson (1883) 8 App Cas 467 at 479; Pipikos v Trayans (2018) 265 CLR 522; [2018] HCA 39; Li v Tao [2023] NSWCA 310 at [55].
It is submitted that the conduct of both Kim, Jim and Bogasi is referrable to the Nomination, meaning no evidence of the Nomination in writing was necessary. The following evidence was contended to establish this proposition:
As submitted at [461] above, following the making of the Consent Orders, Elmach continued to declare distributions from CPT1 and CPT2 in favour of Kim and, since then, no distribution has ever been declared in respect of the units in favour of Jim and Bogasi;
As submitted at [462] above, Kim applied a portion of the distributions that he received from CPT1 and CPT2 to reduce his loan accounts with the trusts of which Bogasi was trustee. It was contended that if the distributions had belonged to Jim or Bogasi (rather than Kim as presently propounded) it would have been wrong for Bogasi to apply those payments to reducing Kim’s loan accounts;
Kim declared the distributions as part of the personal income that he received from CPT1 and CPT2 and paid income tax on that income. Jim and Bogasi have not declared those distributions as income;
As recorded at [463] to [464] above, Kim was apparently assisted in making his tax payments by Bogasi when it advanced funds to the ATO on behalf of Kim and then debited those payments to Kim’s loan account; and
Jim represented to the ATO in 2015 via the ATO questionnaire that Kim was the owner of the units.
In the alternative, even if the Nomination was required to be in writing, Kim submits the conduct of Jim, Kim, Elmach and Bogasi is unequivocal in the way in which it reflects Kim’s legal and beneficial ownership of the units.

In reply Bogasi submits that Kim’s contention that the Nomination was a disclaimer assumes two things: first, that Jim was the beneficial owner of the units and, second, that he was free to dispose of the units as he saw fit. Bogasi denies that Jim was free to dispose of the units as he saw fit because the units were for the benefit of the Sundell Family.
Five further reasons were submitted in reply as to why there could be no disclaimer and any nomination had to be in writing:
Bogasi submitted that at law an effective disclaimer operates retrospectively, and not merely from the time of disclaimer: Federal Commissioner of Taxation v Ramsden [2005] FCAFC 39; (2005) 58 ATR 485, [30]. Thus, the effect of the disclaimer would be to defeat the expectations of, inter alios, Gunnar as to his family’s interest in the Elmach units;
S 23C(1)(c) of the CA is enlivened by a “disposition” of an equitable interest. Section 7 defines a “disposition” to include a “disclaimer” and a “release”;
Kim’s denial that Jim did not dispose of his interest in the units because he was not yet the owner of the beneficial interest in the units is inconsistent with the pleaded admissions of Kim’s defence to the 2019 Third Cross-Claim made by Kim that Jim was the beneficial owner of the Elmach units (see [553] above);
A disclaimer is constituted by an absolute rejection of the gift. The evidence adduced by Kim (if accepted) does not bespeak any such intention on the part of Jim. He did not (on this premise) reject the beneficial interest. Rather, he was purporting to exercise rights conferred under the trusts so declared and not in defiance of them. In short (again on this premise), he sought advice about the operation and effect of the terms of the trust; and
The Consent Orders did not purport to create any new right on Jim’s part. Consistently with the affidavits relied upon in the Family Court proceedings, those orders were declaratory of the position existing from the time of the acquisition of the Elmach units. To the extent that Jim derived rights at the time, more than a reasonable period of time had elapsed by April 2013. More importantly, he could not assert a disclaimer when he (and others on the part of the Sundell Group) had sworn numerous affidavits to the effect that he (amongst others) was the equitable owner of the Elmach units. The case was fought on a basis entirely antithetical to the proposition that Jim had disclaimed the gift.
In support of proposition (5), Bogasi relied on Carter, where the Full Court held at [109]:

As part of identifying the content of a nomination, an important element is that it must be a nomination (from the Latin verb "nominare", meaning "to name" or "to call by name") to someone. In this case it must be a nomination to the trustee, because it is axiomatic that the trustee must know to whom the trustee owes their duties as such. For this reason, in my respectful view, “his nominee” in the Declarations (or as a term of the trust) has its ordinary meaning of a person identified by Jim to the trustee for the purpose of informing the trustee to whom the trustee owed their duties as such. This is no different to the conveyancing context where the purchaser informs the vendor of the purchaser’s nominee so the purchaser knows to whom title should be transferred. An uncommunicated nomination, or one made to someone other than the trustee, would not, on this analysis, confer on someone the status of the “nominee” for the purposes of the trust as declared.
In addition to the fact that the words used are “his nominee”, there are two other textual reasons why I have reached this conclusion.
First, the expression “and/or” in this context means to be held on trust for Jim and his nominee, or to be held on trust for Jim’s nominee alone. The fact that Jim could nominate that the Elmach units were being held for him and another person does not bespeak a nomination as effecting the transfer of any kind of interest. That possibility accords much better with the analysis that the purpose of the nomination was to inform the trustee of the identity of the beneficiary or beneficiaries.
Second, “nominee” and “assignee” are not naturally synonymous. While I accept there may be contexts in which “nominee” might be construed as including an “assignee”, this is not one of them. The fact that the declaration was framed by lawyers who would undoubtedly have been aware of the difference supports the conclusion that a distinction was intended.
Turning to the CA, s 23C provides:

(a) By 30 June 2001, Bogasi had a total exposure by way of unsecured loans to CPT1 and CPT2 of $1,414,000. Consistent with the content and timing of the asserted conversation between Jim and Gunnar, by 30 June 2002 that risk transferred from Bogasi (which was the trustee of the trusts for both sides of the family) and was assigned to Jim’s side of the family (specifically Kim), resulting in Kim becoming a creditor in the sum of $1,936,360 (comprised of $1,152,007 owed by CPT1 and $784,352 owed by CPT2). The funds advanced to Kim came from the Old Trust and were classified as a loan to Kim of $1,936.360; (b) In the 2003 financial year, the directors undertook a valuation of properties in CPT1 based on a proposed sale price, which resulted in additional equity of $4,000,000. That additional equity was assigned to Jim. That equity was later assigned to a revaluation reserve, but the fact that it was initially assigned to Jim (and not to Jim and Gunnar, or to Bogasi) was submitted to be “instructive”; (c) In the 2005 financial year, the loan owed to Gunnar by CPT2 was increased to $105,834.83. It appears that this was an error, which is clear from the journal entry correcting the entry on 13 March 2006 (“GJ1005 wrong s/b [should be] JR Sundell ft fixed 06”. That loan was then allocated to the Old Jim Old Trust; and (d) If CPT1 or CPT2 required funds, and Jim’s side of the family did not have ready access to those funds, rather than Gunnar’s side of the family lending money to CPT1 or CPT2, Gunnar’s side would lend to Jim’s side, which would then loan money to CPT1 or CPT2. By way of example, in the 2009 financial year, Gunnar’s old trust loaned a sum of $701,220.78 to the New Jim Trust to allow the New Jim Trust to loan money to CPT2. The narrative in the CPT2 accounts is “TGRS FT lend JRS FT funds to repay current yr CPT2” and “TGRS FT lend JRS FT funds to repay CPT2 Avalon”. Admittedly, this occurred after Gunnar’s death (albeit before the Family Court proceedings) but reflects a consistent theme that Jim’s side of the family was responsible for CPT1 and CPT2. (e) From 2002, CPT1 and CPT2 were used as vehicles to purchase the following properties which would only benefit Jim’s side of the family:

All of the parties in these proceedings consented to the making of the Consent Orders, including the Declarations; and
The Nomination was made after Jim sought legal advice.
Second, Kim submits that Bogasi’s claim that the Nomination constituted a breach of fiduciary duty is premised on Bogasi successfully proving the existence of the Common Assumption. There are three reasons why, according to Kim, there was no Common Assumption:
It is inconsistent with the terms of the power of nomination which allowed Jim to determine unilaterally who could be the beneficial owner of the units;
There is no basis to assert that Jim and Gunnar considered themselves irrevocably bound to the Common Assumption. To the contrary, they maintained and exercised an absolute discretion. This is evidenced from the 2002 conversation, the Option Agreement and the way Jim acquired the liability for the units; and
To the extent that Jim and Gunnar attempted to give effect to the Common Assumption, it was submitted that equalisation was achieved by manipulating the loan accounts between the trusts, and of the beneficiaries.
Kim accepts that Jim and Gunnar generally tried to benefit both sides of the family equally but argued the question the Court needed to answer was whether ‘this customary method of operation’ bound Gunnar and Jim, and after Gunnar’s death, Jim in his own capacity and as executor of Gunnar’s will, in such a way that there were no circumstances in which they were permitted to depart from it, or to conduct business in some other way if circumstances warranted. The following evidence was submitted to demonstrate the discretion which Jim and Gunnar retained:
The terms of the Old Jim Trust provided the trustees with an absolute and unfettered discretion to advance income and capital to any of the General Beneficiaries of the trust included family members from both sides of the family. A similar term was contained within the terms of the New Jim Trust;
The “Advisory Directions to Bogasi Pty Ltd” which were prepared by Gunnar and Jim in 1973 (see [59] above) which expressly noted that the memorandum was a guide and was not intended to fetter the discretions conferred upon Bogasi;
The 1994 “Memorandum of Wishes” (see [64] above) which stated ‘It is to be clearly understood that whilst in principal the income should be divided equally the thrust is to encourage the talented and family supportive members to achieve results to the benefit of the family trust as well as their personal benefit”; and
The evidence of Anne-Katrine, who accepted that she had personal living, medical, childcare and other household expenses paid by the ‘family business’. These payments self-evidently would have no benefit for Gunnar’s side of the family.
Kim also contended that equality was not achieved by precise and equal splits of assets and distributions. Rather, equalisation was undertaken by way of adjustments to loan accounts. That occurred in two main ways:

For example, in relation to Kim’s failed investment in Coastalwatch LLC, Jim mandated that the losses would be attributed to Kim’s loan account (such that he took financial responsibility for the losses) and Gunnar’s side of the family were not impacted by the losses.
It was submitted on behalf of Kim that it was fatal to the narrative advanced by Bogasi that Kim granted the option to acquire the Elmach units only to Jim, and not to Jim and Gunnar (or to Bogasi or to TCI). Jim was granted the option because the funds that had been invested in Elmach had been advanced from the Old Jim Trust and New Jim Trust (and not from the trusts that benefitted Gunnar’s side of the family). Kim relied on Mr Wooldridge’s evidence from the Family Court proceedings where he explained that CPT1 and CPT2 was a “net borrower” of funds from the Sundell Group, and more specifically the trusts associated with Jim (and not Gunnar). Thus, Jim’s trusts (and not Gunnar’s) were creditors of CPT1 and CPT2 in the amount of approximately $8.5 million.
This arrangement was submitted to be consistent with the documentary evidence. Gunnar's side of the trust was not a substantial creditor from 2002. In contrast, the loans all rested with Jim's side of the family. Ms Francis’ affidavit sworn on 22 December 2021 explains that from at least 2010 onwards, the Old Jim Trust and New Jim Trust were significant creditors of CPT1 and CPT2. It is for this reason that Jim received the benefit of the option and that, when discussing the issue of CPT1 and CPT2, Gunnar observed to Jim that the transfer of the CPT1 and CPT2 units was Jim's problem and it was "… between you and Kim. It's got nothing to do with me".
In the alternative, even if Jim was bound by a Common Assumption to deal equally between the two families, Kim also contends that Bogasi is also required to show that Jim was required to deal equally within his own family. He argues no such finding can be made from the evidence.
Kim also attacks the probative value of the evidence which Bogasi relies on to support the existence of the Common Assumption. The claim principally rests upon references to each side of the family being benefitted equally in Family Court affidavits. While Mr Walker indicated (Tcpt, 10 April 2024, p 210(3)) that there were “documents which demonstrate … that the CPT units are owned, held for the whole family” (Tcpt, 10 April 2024, p 210(3)) no other documents were produced in response to a Notice to Produce issued by Kim.
Furthermore, the fact that Bogasi is no longer the trustee of Gunnar’s trusts is said to hinder Bogasi’s ability to establish that the Elmach units should be returned to Bogasi due to the existence of the Common Assumption. Gunnar’s side of the family would continue to have no interest in the trust. It is only if Bogasi were successful in having the units declared to be held by TCI, would Gunnar’s side of the family have a 50% interest in them.
Were the Common Assumption binding on Jim and Gunnar, Kim argues the Court should have expected to have heard from the new trustee of Gunnar’s trust, Skiida, or Gunnar's wife (or her estate) and children in vocal support of that claim. As with Merle, neither of their children Annemarie or Rickard has been called. Their silence, in the face of knowing of the proceedings, was suggested to be instructive. Their silence was submitted to confirm the position that Gunnar was happy for Jim to shoulder the burden and, later, the benefit of the CPT1 and CPT2 transactions, and that while he may have later, privately, reconsidered this, he did nothing to unravel that position during his lifetime.
Kim also refutes Bogasi’s reliance on Jim’s statement in his affidavit at [5] in the Family Law proceedings dated 1 March 2012 to prove the existence of the Common Assumption:

In the alternative, Bogasi relies on [34] of its pleading in the 2019 Third Cross-Claim which pleads that Kim remained the registered owner of the Elmach units for the benefit of the members of Jim and Gunnar’s families; to give effect to the Common Assumption; and, subject to the direction of Jim and Gunnar. Therefore, Bogasi argues its claim does not require it solely to prove the existence of the Common Assumption but can also be established because the evidence shows Kim agreed to warehouse the units for the benefit of both sides of the family.
Bogasi also argues that Kim’s submissions mischaracterise the effect of the Common Assumption. Bogasi does not assert that Jim had to distribute the Elmach units, for example, absolutely equally between the two sides of the family, let alone equally within the families. Instead, the Common Assumption was submitted to merely require that Jim ensured the units remained an asset available to be shared, directly or indirectly to the benefit of the families.
In reply, Bogasi refutes for the following reasons that the evidence relied by Kim disproves the existence of the Common Assumption:
The terms of the Nomination are not inconsistent with the Common Assumption. It is unreasonable to expect that the Declarations would specify all of the terms of the power conferred on Jim and Kim;
Kim’s submissions do not acknowledge the matters which indicate that the relevant participants considered the Elmach units to be, effectively, owned 50/50 by the two sides of the family. In addition to Mr Wooldridge’s concession as to what he understood the position to be immediately prior to the making of the orders (see paragraph [472](3) above), reference can be made to Gunnar’s notes, which referred to Kim holding the units in CPT1 on behalf of TCI and that Kim held those units “(as trustee) half of value!! Put in 50/50 Jim & G Family Trust”;
The terms of the discretionary trusts do not preclude the Common Assumption operating to affect or inform the exercise of Bogasi’s discretions conferred thereunder. There is a distinction between fettering a trustee’s discretion, on the one hand, and merely disabling it from exercising it in respect of a particular asset: Fielden v Christie-Miller [2015] EWHC 87 (Ch), [89]; and
The “Advisory Directions to Bogasi Pty Ltd” which Kim relies on to refute the existence of the Common Assumption played no role in the circumstances surrounding the acquisition of the Elmach units. The directions were never mentioned in the Family Court proceedings. The establishment of CTP1 and CPT2 reflected that the opportunity had been introduced to Jim and Gunnar by Kim acting as Chief Investment Officer of the Sundell Group (see paragraph 44 of Jim’s affidavit sworn on 15 September 2011); that Jim and Gunnar provided the financial support “and the ownership of the investment, irrespective of what structure was adopted to the transaction” (see paragraph 14 of Mr Wooldridge’s affidavit sworn on 25 September 2011); and Jim and Gunnar’s strongly expressed intention that at all times a portion be ultimately held for the benefit of the Sundell family (see paragraph 22 of the same affidavit).
Bogasi also denies that the Option Agreement is dispositive proof that the Common Assumption does not exist. Five reasons were submitted in support of this proposition:
The genesis of the Option Agreement was Ms Chick’s advice that “the most effective way [to manage the stamp duty problem] is through granting an option to give security back to the group”;
Jim and Gunnar were not fastidious when it came to identifying the legal owner of any particular asset, as emerged from Mr Wooldridge’s evidence (Tcpt, 2 May 2024, p 1099(42));

Much, if not all, of this issue falls away because the Court has concluded that the Declarations, properly construed, do not permit Kim to be the nominee. Accordingly, Jim’s nomination of Kim was invalid and, subject to issues of estoppel, Kim continues to hold the Elmach units on trust for Jim’s estate and should account for any benefits he has received.
Insofar as this issue focusses on Jim’s conduct in making the Nomination, the language of breach of trust is inapt given that Jim was the beneficiary of the trust. On the view the Court has taken, Jim’s nomination of Kim was invalid. If the Court were to persist with the analysis in terms of breach, it is Kim who breached the trust because a fundamental duty of a trustee is to act in accordance with the terms of the trust. By, in effect, accepting the Nomination as having given him full beneficial ownership of the Elmach units (as opposed to having rejected the Nomination as invalid), Kim breached the trust, with any remedy for that breach being at the suit of Jim as the beneficiary. While not the subject of submissions, I do not see how any suit could be brought by any person or entity who could have been the subject of a valid nomination, given whether and, if at all, any of them became a valid nominee was entirely in Jim’s discretion.
The next matter is Bogasi’s suggestion that Kim acted in breach of trust by consenting to the Consent Orders. The allegation is made by reference to a trustee’s obligation to take reasonable steps to secure and retain control of trust assets. It depends upon the Court accepting Bogasi’s contention that the beneficiaries of the trust were Bogasi, or TCI, or Jim and Gunnar’s legal representative. However, on the Court’s construction of the Declarations, Kim could not have committed the alleged breach of trust (being to consent to the Consent Orders), because the class of possible nominees does not include Kim, but otherwise includes Gunnar (or his legal representative) and the entities of the Sundell Group.
Finally in this section, I turn to the Common Assumption. The use of the word “assumption” may have led to some confusion, given its association with the law of estoppel. However, it was not deployed in that way. Bogasi’s written submissions refer to it as “an important, but not determinative aspect” of the 2019 Third Cross-Claim, in which the Common Assumption is pleaded as:

This pleading demonstrates another way in which the term Common Assumption is apt to confuse: it does not plead an assumption as such, or that anyone held it. It is really an assertion of how Jim and Gunnar ran the Sundell Group.
Kim accepts that in broad terms that is how the Sundell Group was operated. The Court so finds based upon the evidence of Mr Wooldridge and Ms Francis referred to in [178] and [610] above. That finding has informed, as a surrounding circumstance, the Court’s construction of the Declarations insofar as Jim, Gunnar and (at their behest) the companies in the Sundell Group gave effect to that way of operating the Group. However, tied up in it were the overall general discretions of Gunnar and Jim and, as Mr Wooldridge said and the Court accepts, the need from time to time to act in accordance with the realities of a particular situation.
The difficulty for Bogasi according to Kim (and whose submission on this the Court accepts), is that Bogasi appears to wish to elevate the Common Assumption into something akin to a legally binding obligation. I am satisfied that rather than “assumption” it is better described as a shared precatory “aspiration”. The Court was not presented with any satisfactory formulation of the Common Assumption in the nature of a universally applicable standard or rule. That should not be surprising. The law well understands that family relationships based on mutual trust and affection can give rise to longstanding arrangements with substantial financial and other consequences, but which are not capable of enforcement by reference to some cause of action or another, not least because they are incapable of sufficiently certain expression.
Bogasi submitted that the Common Assumption informed the construction of the Declarations. The Court has accepted that proposition only to the extent to which Kim has accepted that is how Jim and Gunnar ran the Sundell Group. However, for the reasons in the previous paragraph and by reference to the evidence which the Court has accepted as to how Kim came to hold the Elmach units, Bogasi’s submission that, as part of the terms on which Kim came to hold those units, Kim agreed to hold them to give effect to the Common Assumption (as alleged by Bogasi) is rejected. Kim held the Elmach units on the trust declared by the Declarations properly construed. Other terms will be implied into that trust by statute or the general law of trusts. However, both its inherently uncertain form of expression and the actual evidence, do not support a term of the trust being application of the Elmach units or their income in accordance with the Common Assumption as pleaded by Bogasi.

While detriment is an element of conventional estoppel, there is no requirement that either party must have induced, or acquiesced in, the adoption of the assumption by the other, and in particular there is no requirement that either know that the other may incur detriment by reliance on the assumption: Moratic at [37].
In this case, Kim submits the following facts establish that after the making of the Consent Orders, Jim did not intend to claim the beneficial interest in CPT1 and CTP2 for himself and instead wished for Kim to have the benefit of the Elmach units. This evidence was submitted to establish the existence of a conventional estoppel:
The payment of distributions to Kim by Elmach (of which Jim was a director) after April 2013;
Kim’s payment of those distributions to Bogasi to reduce his loan account, with narratives entered in Bogasi’s ledgers that clearly indicated the source of the funds. Of particular relevance was Bogasi’s act of recording those payments as a debit on Kim’s loan account. If those distributions belonged to Jim or Bogasi, it would have been wholly incorrect to record those payments in that way. Bogasi’s method of accounting was suggested to be consistent only with a belief by Bogasi (and by Jim, as the controlling mind) that Kim was the beneficial owner of the units;
Payments by Bogasi of tax on behalf of Kim that were referable to his ownership of CPT1 and CPT2 and debited to Kim’s loan account with the Old Trust; and
The completion of the 2015 ATO Questionnaire, which indicated that at the date of the document, Jim had no interest in the units and that Kim was the beneficial owner.
Kim’s own conduct is also contended to indicate that he considered himself to be the legal and beneficial owner of the Elmach units. Kim relies on the evidence that he declared income he received from the units as part of his taxable income, the alleged conversations he had with Mr Wooldridge in 2015 about reflecting the nomination in the will, and a conversation he had with Anne-Katrine where he stated to her that he received nothing in the will because he “… got the property from the Elders deal”.
Kim’s ownership of the Elmach units was also said to be well-known within the Sundell Group (particularly Mr Wooldridge and Ms Francis) and the Sundell family. Kim relies on an alleged conversation in 2017 between Anne-Katrine and Mr Wooldridge where she asked about Elmach, and Mr Wooldridge stated that it was Kim’s. When asked how it happened, Mr Wooldridge responded that it was “… between Kim and your father.”

In reply, Bogasi submits that the evidence reflects that Kim had a fixed and unshakeable position in relation to the Elmach units. Reliance was placed on Kim’s affidavit sworn on 17 December 2020 in these proceedings where he deposes that had anyone asked him to transfer the Elmach units to anyone, he would have refused as Jim had given them to him. In these circumstances, Bogasi argues that it is difficult to see how anyone could have caused Kim to renounce his claims to ownership of the units absent proceeding to judgment. Bogasi suggests that the evidence indicates that Kim’s position is founded unequivocally in what occurred in April 2013 and as such, events thereafter had no bearing on Kim’s thinking. Therefore, Kim’s estoppel claim is submitted to be artificial.
In reply, and in furtherance of its closing submissions in chief, Bogasi provided further submissions denying that Kim has suffered any detriment by Bogasi now seeking to resile from its alleged acknowledgement that Kim was the owner of the Elmach units:
Bogasi relies on the evidence that Kim was prepared to offer Shara a substantial cash component as part of his settlement proposal for the Family Law proceedings well before his alleged agreement with his father in mid-November 2012 to settle the proceedings on terms including that he pay Shara $3 million (which Kim contends he did not have the means to pay) in exchange for Jim promising to nominate him as owner of the units. Kim’s affidavits do not explain why these previous cash offers were made. Bogasi again submits that they were likely a consequence of Kim’s cross-examination;
Kim’s oral evidence was that he settled the litigation without Jim saying exactly how he would “sort Kim out”. That exchange, if it is accepted it occurred, cannot found any basis to assert detrimental reliance that he settled the proceedings after being promised that he would receive the Elmach units;
The evidence that Jim said to Anne-Katrine that “I have sorted him” when amending his will around the time of the Family Court proceedings provides no basis for the Court to assume that Jim “sorted Kim out” by promising him the beneficial ownership of the units. Bogasi contends that comment is equally consistent with Jim likely being disappointed with how his son had behaved during the Family Court proceedings, and his concern (expressed by Janette and Anne-Katrine at the time) that Kim was being overly antagonistic to family members. Furthermore, there is no evidence that Jim had mentioned to Mr Wooldridge at the time he amended his will that he would be compensating Kim in some other way following Jim’s diversification of the shareholding in Bogasi;
Bogasi also contends that Kim’s claim that he was underpaid is merely an assertion. The only evidence to establish this is merely Kim’s belief that he was underpaid. Bogasi argues that it is not self-evident that Kim was underpaid. Through Josunda he received the benefit of 10% of the units issued in CPT1 and CPT2. He also received the distributions and the use of a loan account which he perceived to be tax effective. This perception was reflected in his affidavit sworn on 25 September 2011 where he deposes to telling Shara the following:

Kim’s contention that he was underpaid is also submitted to not be established by the evidence. According to Bogasi, since 2001 Anne-Katrine has received distributions of $2,789,135.99 and Brett has received distributions of $2,295,368.38 and Kim has received distributions from CPT1 and CPT2 of approximately $40 million; and
Whilst Kim claims he has suffered a detriment as a result of not receiving distributions from Bogasi, Bogasi contends that there is no evidence as to why no distributions were made and the Court should not draw an inference as to the reasons for that. Bogasi submitted that Mr Walker was not cross-examined on this issue and Mr Wooldridge provided no evidence on the matter despite being present at every Bogasi directors meeting. Bogasi therefore submitted that a Ferrcom inference should be drawn: Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418 (per Handley JA).
Bogasi submits that Kim receiving distributions from the Elmach units does not assist Kim’s claims for a conventional estoppel for two reasons. First, Bogasi claims that Kim had been receiving distributions for approximately 10 years preceding 2013 and therefore these distributions were a continuation of the status quo. Second, the distributions he received were as a result of the operation of the Master Trust Deed and not any discretionary consideration by the directors of Elmach.
It was stated that the law requires any representation or assumption founding an estoppel to be clear and unequivocal: Waterman v Gerling Australia Insurance Co Pty Ltd (2005) 65 NSWLR 300; [2005] NSWSC 1066 at [91]. Bogasi rejected that the continuation of the payment of distributions simply carrying on that which had occurred before 2013 constitutes any such representation.
Bogasi also rejects that the ATO questionnaire provides support for Kim being the beneficial owner of the Elmach units. Bogasi submits it is relevant that Kim never pleads that he was aware of the contents of the questionnaire. His affidavit evidence does not assert that he became aware of the questionnaire's contents, let alone what it represented about the Elmach units. At paragraph [125] of his affidavit sworn on 17 December 2020, he simply deposes to becoming aware that the ATO had requested a further audit; states that he was not involved in the preparation of the information for the reply; and attributes to his father a statement that says nothing about what was in the questionnaire. In paragraph [126], he does no more than identify and annex the completed questionnaire. His affidavit does not otherwise suggest he has read the questionnaire.
Bogasi submits that the Court can conclude that Kim’s silence as to whether he read or understood the contents of the questionnaire indicates that he feared to say anything on the topic and a Ferrcom inference can be drawn that any testimony on this point would have exposed facts unfavourable to him.
Bogasi also relies on Kim’s oral evidence where he stated that:
He could not recall when he read the document; (Tcpt, 30 April 2024, p 962 (22));
He did not discuss its contents with Jim:((Tcpt, 30 April 2024, p 962 (30)); and
Whenever he read it, he could not recall drawing anything about Elmach from the annexures to the questionnaire, saying "I recall that Elmach wasn't included in these documents": (Tcpt, 30 April 2024, p 964(30)).
For the reasons set out above as to his credit, Bogasi submits that Mr Wooldridge’s evidence as to the alleged conversations he had with Jim about the Nomination cannot be accepted.
Bogasi also contends that Kim’s conventional estoppel claim is effectively shut out by the competing estoppel constituted by the Common Assumption. Additionally, as a party to the Consent Orders, Bogasi submitted that Kim cannot rely on an estoppel as an alternative means to obtain the Elmach units, absent an express nomination as required by the Declarations.
The circumstances which were submitted to make it unlikely that the Nomination ever occurred were also submitted to be relevant to showing that there was never an assumption that Kim was the owner of the units.
Finally, it was also submitted that there were four reasons why Kim cannot establish that he will suffer a detriment as a result of Bogasi contending the units are not owned by him (see Thompson v Palmer (1933) 49 CLR 507).
First, Bogasi argues that it was both telling and a point adverse to Kim’s credit that notwithstanding that he pleads that a departure from the alleged mutual assumption would cause him detriment because Jim never made any other inter vivos property provision for Kim and his claim that he resolved the Family Court proceedings to his detriment at his father’s request, Kim never discussed this material in his affidavits. Bogasi relies on the following exchange to demonstrate that Kim was intending to be an advocate, rather than a witness, avoiding answering a question he appreciated would undermine his case (Tcpt, 30 April 2024, p 969(4)):

Second, all of the matters that Kim contends would cause him a detriment are incapable of causing him a detriment because all the matters pleaded predate 2013, before the Nomination was alleged to have occurred.
Third, contrary to Kim’s submissions, Bogasi contended that:
Kim was not underpaid for his work at the Sundell group. His evidence was said to be unreliable and inadequate in the absence of expert evidence as to what appropriate remuneration he should have obtained. To the contrary, Bogasi contends that he was well remunerated for his work;
Second, Bogasi contends that Kim did receive inter-vivos benefits through the use of a loan account from which obtained tax benefits; and
Finally, Bogasi submits that Kim did not settle the proceedings as a result of an agreement with his father but the settlement was instead due to a strategic decision made after his cross-examination by Shara’s counsel.
Fourth, Bogasi submits that even where there are alleged acts of detriment which occurred after April 2013, these cannot be substantiated:
Kim’s assertion that he continued to work for TCI and later as the Managing Director of the Sundell Group without seeking an increase in remuneration was contended to be bad in form. He has failed to establish whether any increase sought was in fact justifiable and whether he had a real opportunity to obtain that increase;
Similarly, despite his contention that he refrained from calling for any distribution by Bogasi, Kim failed to prove that he deliberately chose not to take such a step;
Kim’s claim that his professional expertise increased the value of CPT1 and CPT2 is not established by any evidence of how his expertise was gainfully employed or expert evidence establishing the increase in value of the trusts; and
Finally, Bogasi submitted that Kim’s contention that he held his investment in Finclear through CPT1 and CPT2 and other activities consequential thereon was said to assume that he could have borrowed money from TCI.
In relation to (4), Bogasi submitted that Kim’s evidence was vague as to whether he could obtain financing from TCI and at odds with the assertion in his affidavit evidence that he would have been able to obtain such a loan (Tcpt, 1 May 2024, p 1039(18)):

According to Kim, Jim’s reference to Kim’s compensation was in the context of the wealth that Kim had generated. That Jim appreciated this was submitted to be evident from other sources, most notably the portions from Jim’s own affidavit as to the appreciation he had of Kim bringing in business to the Sundell Group.
Kim refutes Bogasi’s submission that there is insufficient evidence on which the Court can base a finding that Kim understood he was the owner of the Elmach units and reiterates that the following documentary evidence is consistent with Kim’s belief he was the owner of the units:
The payment of distributions to Kim by Elmach (of which Jim was a director) after April 2013;
Kim’s payment of those distributions to Bogasi to reduce his loan account, with narratives entered in Bogasi’s ledgers that clearly indicated the source of the funds; and
Payments by Bogasi of tax on behalf of Kim that was referable to his ownership of CPT1 and CPT2, and debited to Kim’s loan account with the Old Trust.
Kim also denies that this documentary evidence reflects a position that had existed prior to April 2013. Kim argued this submission ignored that in November 2012 the Family Court had provided clarity as to who owned the Elmach units and the fact that Kim received the dividends prior to April 2013 was emblematic of the confusion which existed as to the legal status of the units. That confusion was said to be resolved after the Nomination. It was further submitted that Jim was left in no doubt by Mr Blaikie that he was entitled to receive distributions from CPT1 and CPT2, and was advised that he should have received them historically, and certainly should declare them in the future.
In this context, it was submitted that the payment to Kim of distributions from CPT1 and CPT2 after April 2013, the recording by Kim of that income in his tax returns, and the failure by Jim to record that income in his tax returns, cannot be dismissed as simply a continuation of the status quo. It reflected a deliberate decision made by Jim, which is consistent with him having made the Nomination.
It was also argued by Kim that Bogasi’s submission that the distributions paid to Kim were decisions taken by Elmach and not by Jim and Kim cannot be accepted on the basis that:
Jim and Kim were both directors of Elmach;
Bogasi itself (of which Jim was the controlling mind) recorded payments by Kim in its accounts that clearly referred to the source of the funds being distributions from CPT1 and CPT2; and
Bogasi made payments to the ATO on behalf of Kim that were referable to his ownership of CPT1 and CPT2, and debited to Kim’s loan account with the Old Jim Trust.
Bogasi also put forward five further submissions why, as a matter of law, Kim cannot rely on the doctrine of conventional estoppel:
The doctrine cannot operate partially to repeal the Statute of Frauds: Powercell;
It is necessary that both parties to the estoppel must be aware that the other has made the same, common assumption: Republic of India v India Steamship Co Ltd (No 2) [1998] AC 878, 913. Here, Kim’s case must fail if there was no communication of the mutual assumption between himself and Jim;
It is necessary that the party asserting the estoppel must have relied upon the common assumption and not merely its own independent view of the matter: see, for example, Revenue and Customs Commission v Benchdollar Ltd [2009] EWHC 1310 (Ch); [2010] 1 All ER 174, [52] (Briggs J, as his Lordship then was), approved in Dixon v Blindley Heath Investments Ltd [2015] EWCA Civ 1023, and followed in Webster v Strang [2018] NSWSC 495, [252] (Kunc J) and Wright v Lemon (as executor of the estate of Wright) (No 2) [2021] WASC 159, [449] (Le Miere J). It follows that Kim can only succeed when he relied upon any representations emanating from, or on behalf of, Jim, rather than merely upon his own independent view;
Fourth, reliance must occur in connection with some mutual dealings between the parties: see Benchdollar, [52]. No such mutual dealing occurred between Jim and Kim. Any dealings in relation to the distributions were between Elmach and Kim. The questionnaire did not involve Kim. Bogasi, not Jim, advanced the monies to fund Kim’s payment of income tax (and in any event), there is no evidence that Bogasi was acting on the common assumption where:

Kim submits the following demonstrates that Bogasi knew or ought to have known that Kim was asserting ownership of the Elmach units, as early as 2013:
Bogasi, Jim and TCI (among others) were parties to the Consent Orders;
The payment of distributions to Kim by Elmach after 2013 in circumstances where Jim was a director of both Elmach and Bogasi, and was also the controlling mind of the Sundell Group;
The payment by Kim to Bogasi of distributions received in respect of CPT1 and CPT2, and Bogasi recording those payments in its ledger as debits to Kim’s loan account with narratives that made clear the source of the payment;
Bogasi advancing funds to the ATO on behalf of Kim in circumstances where those payments were referable to the income earned by Kim from distributions received in respect of CPT1 and CPT2; and
Mr Walker became a director of Bogasi in 2013. The evidence demonstrates that he commenced his investigations into CPT1 and CPT2 no earlier than 2017 (and after Jim’s death). Kim submits Mr Walker could and should have taken steps to investigate the ownership of the units prior to 2017. Instead, it is suggested that he failed in his duty as a director in that he did not acquaint himself with the accounts of Bogasi beyond voting to adopt the usual annual reports and distributions provided to him at annual general meetings ([25] of affidavit of Christopher Walker 7 May 2020). He did not have any discussions with Jim about the ownership, structure, or administration of the trusts of which Bogasi was a trustee (see Tcpt, 30 April 2024, 294(9)) nor did he seek to gain any understanding while Jim was alive of the history of assets held by the various companies in the Sundell Group or of the Elmach units held by Kim (see Tcpt, 30 April 2024, p 294(18)).
Furthermore, it is argued that whether Mr Walker had actual knowledge of the Nomination is irrelevant. It is Bogasi’s knowledge that is key. As Kim maintains the evidence shows Jim (as the controlling mind of Bogasi) made the Nomination and allowed Bogasi to make payments consistent with that Nomination, he argues Bogasi had knowledge of the Nomination. Mr Walker is taken to have constructive knowledge as a director of Bogasi given he failed to take basic steps to acquaint himself with the assets of the trusts of which Bogasi was a trustee.
Kim contends that as a result of the delay, he is prejudiced because key witnesses who he could otherwise have called to support his case, namely Jim and to a lesser extent Merle, are no longer available to give evidence. It was submitted that Jim’s evidence would undoubtedly have cast a different complexion on the matter. Jim could have provided evidence about whether he intended Kim to be the owner of the Elmach units. He could have provided evidence about whether Kim was intended to have received distributions from those units. Bogasi’s own evidence is that up until May 2017, Jim attended and participated actively in all Bogasi directors’ meetings. During his lifetime, Jim had the discretion to make decisions with regard to investments and provision for beneficiaries and there was no occasion when the board made a decision against his wishes.
That prejudice is unconscionable because Bogasi had previously acquiesced over many years to Kim receiving the benefit of the Elmach units and had conducted its affairs since 2013 on the basis that Kim was the legal and beneficial owner of those units.

Bogasi contends it is merely vindicating a right to have the trust assets returned, as Kim is not entitled to the Elmach units. Therefore, the doctrine of laches would not apply.
In the alternative, to the extent that the doctrine has any practical application, the Court must examine all of the circumstances to determine where the balance of justice lies. That determination involves an assessment of, inter alia, the degree of change which has occurred, the degree of diligence which might reasonably have been required and whether the balance of justice or injustice is in favour of granting the remedy, or withholding it: see, P Young, C Croft & M Smith, On Equity (2009, Thomson Reuters) at [17.120] p1166.
Bogasi denies that the matters relied upon by Kim constitute a legitimate laches defence. As previously submitted, the payment of distributions, and the consequential arrangements made to pay the tax thereon, had commenced in about 2003. The degree of diligence expected of someone such as Mr Walker, is to be judged against the fact that the situation had not altered after April 2013. Merle’s death cannot be a disadvantage, because she died in 2024 and Kim could have obtained evidence from her. Jim’s death would not be a disadvantage to the extent that he was acting in breach of duty.
Bogasi further denies that Mr Walker should have taken further steps to acquaint himself with the true position as to the ownership of the Elmach units. This was submitted to be an unrealistic expectation for the following reasons:
Mr Walker was not involved in the Family Court proceedings and knew nothing, until much later, about the evidence adduced therein;
Kim’s own submissions acknowledge that Bogasi’s affairs were conducted with a degree of secrecy and often to the exclusion of independent directors;
The reluctance of Mr Wooldridge to disclose information to Mr Walker when he eventually requested it (see correspondence at [316] above) and Mr Wooldridge’s evidence about the source of his reluctance to disclose information, means it is likely Mr Walker may not have obtained any answers even if he did conduct any investigations (Tcpt, 7 May 2024, p 1308(24)):

Kim argues that this is not a case where “the fact that a judgment is entered by consent may … make it hard to say what was necessarily decided by the judgment”: Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 508 per Dean, Toohey and Gaudron JJ (see also Kanakaridis v Westpac Banking Corporation [2015] FCA 1146 at [62] per Beach J; State of Western Australia v Fazeldean on behalf of the Thalanyji People (No 2) [2011] FCAFC 156 at [21] per Allsop CJ, Marshall & Mansfield JJ; Bryant v Australia & New Zealand Banking Group Ltd [1995] FCA 755 per Lindgren J). The order eventually made being, relevantly, the Declarations, was sought in Jim’s application, and all parties (including Bogasi) consented to that specific order as to the ownership of the Elmach units being made.
The second element that must be satisfied is that the ‘cause of action' adjudicated upon in the Family Court proceedings must be identical in substance with that propounded in the later one: Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 at 41. In the Family Court proceedings, the cause of action arose under Part VIII of the Family Law Act. Under that Part, the Family Court had (and has) power to declare the title or rights that a party has in respect of particular property (s 78), and to make orders altering property interests (s 79). Kim submits that it is clear from the terms of the Consent Orders that the parties (including Jim and Bogasi) were concerned with determining their respective entitlements to the Elmach units. Thus, Kim submits, the proceedings were concerned, in part, with determining and adjusting the parties' interests in respect of those units and Bogasi cannot now use these proceedings as an attempt to amend the determination made in the Family Court pursuant to the Consent Orders.
In the alternative, Kim claims that Bogasi is estopped from denying Kim’s entitlement to the units on the basis of an Anshun estoppel. An Anshun estoppel arises where the matter relied upon in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. Kim submits that Bogasi’s claim to the Elmach units was directly relevant to the Family Court proceedings and should have been raised in those proceedings.
Kim also argues that the Consent Orders also operate as a contract between the parties: Minero Pty Ltd v Redero Pty Ltd (Unreported, Supreme Court of New South Wales, 29 July 1998). The parties (including Kim, Jim and Bogasi) agreed to conduct their affairs with each other on the basis of the facts assumed in the Consent Orders, including that the Elmach units were held on trust for Jim and/or his nominee. They are all (including Kim, the estate, and Bogasi) estopped from denying that fact: Con-Stan Industries.
Where a cause of action has been the subject of final determination, the determination of issues that are its essential foundation may be the basis of an issue estoppel if another cause of action is set up. The principle was explained by Dixon J in Blair v Curran (1939) 62 CLR 464. His Honour observed at 531:

An initial point is that the claim against TCI must fail, insofar as the conventional estoppel claim is concerned, and I have already noted it is pleaded as between Kim and Jim personally. There is no suggestion anything Jim did was as a director of TCI. As for the more general plea in paragraph 119, the particulars refer to paragraphs 1-20 of the 2019 Second Cross-Claim, which in paragraph 19A includes a cursory allegation of knowledge and acquiescence on the part of TCI because Jim was a director of TCI. However, there is no allegation that anything Jim is alleged to have done was done in his capacity as a director of TCI. It follows that to the extent that TCI is sought to be estopped, that case fails.
Kim’s claim fails because it does not satisfy the third element of Brereton J’s summary in Moratic: that the assumption must be mutual by reason of communication as such and that the parties have conducted their relationship based on that mutual assumption. I accept Mr Condon SC’s submission that there is a complete absence of evidence of mutual communication of the assumption and a relationship based on that assumption, referred to in the authorities as the requirement of mutual dealing.
As to the issue of a mutual assumption, there can be no question that as a result of the Nomination each of Jim and Kim independently believed that Kim was the legal and beneficial owner of the Elmach units. However, I accept Bogasi’s submission that there is no evidence of communication between them as to that assumption, which was not the same thing as the making of the Nomination itself.
A conventional estoppel only applies for the purposes of the transaction or relationship in which the convention was adopted: P Keane AC KC, Estoppel by Conduct and Election, (2023 Thomson Reuters, 2023) at 8-018. That can only be the relationship between Jim and Kim personally. In my respectful opinion, Mr Condon SC is correct to point out that none of the matters particularised in paragraph 18 of the pleading set out in [688] above concern subsequent dealings between Jim and Kim. There is no transaction between them which Kim can identify that would be subject to the alleged convention. Insofar as, for example, Elmach as trustee made distributions from CPT1 and CPT2 to Kim on which he has paid tax, Kim has not demonstrated any basis on which Elmach could be bound by and said to be acting in accordance with the alleged convention.
Were it necessary to consider the question of the detriment alleged by Kim upon a departure from the assumption, I would have concluded that nothing he has pleaded (even if proven) as such (see paragraph 19 of the 2019 Second Cross-Claim) would constitute relevant detriment such as to render a departure from the convention by the estate, as successor to Jim, unconscionable. I also accept Bogasi’s submissions set out in [643] to [647] above as to Kim not having demonstrated any detriment.
I should add for completeness, that even if the estoppel had been made out, that would not necessarily have been the end of the matter. The Court has found the Nomination was ultra vires and therefore the estate is entitled, subject to any defences, to the Elmach units. Whether in those circumstances it would be unconscionable for the estate to seek to recover more than just the Elmach units (for example, past distributions to Kim in respect of them) is not a matter that has been argued. Nor has another potentially available contention, being that any detriment to Kim by departure from the convention can be cured by permitting him to retain those benefits while being required to give up the Elmach units.
In relation to laches, the Court accepts this is relevant only as a defence to Bogasi’s claim in the 2019 Third Cross-Claim. This defence fails for the reasons advanced by Bogasi (subject to one qualification which I deal with in what follows).
First, the Court accepts that if Bogasi is correct, it is seeking to vindicate its rights as a beneficiary against a bare trustee or, if it is wrong (as the Court has found) it is, as the ultimate residuary beneficiary, nevertheless vindicating the rights of the estate (in lieu of the Administrator taking such action) as the beneficial owner of the Elmach units (due to the invalidity of the Nomination). So understood, laches has no application.
Second, even if the doctrine applied, the Court does not accept that the prejudice advanced by Kim is sufficient to enliven the defence. The submissions summarised in [667] to [669] above are accepted. Furthermore, if there had been any mutual dealings which could have supported Kim’s allegation of a conventional estoppel, he must necessarily have been involved in them and could have given evidence of them.
The qualification to which I refer in [695] above is that irrespective of the consequences of Jim’s knowledge, I do not accept Bogasi’s submission that Mr Wooldridge’s knowledge of the Nomination would not be attributed to it. In my respectful opinion, it would be attributed for the reasons advanced by Mr Cheshire SC set out in [1066] below. However, this conclusion does not assist Kim because I remain of the view that the unavailability of Jim does not cause Kim unconscionable prejudice by reason of Bogasi’s delay. This is so for three further reasons:
As the course of the case has demonstrated, Kim has been able to satisfy the Court that the Nomination was made;
The starting point of Bogasi’s case is that on their proper construction the Declarations do not permit Kim to be the nominee. Jim’s evidence would have been irrelevant to this question.
More generally, Jim’s evidence of his subjective intentions in nominating Kim would be either irrelevant or of very little weight.
Turning to res judicata, Anshun estoppel and issue estoppel, the Court accepts Bogasi’s submission that because these defences were not pleaded, Kim should not be permitted to rely on them because Bogasi may have taken a different forensic approach in relation to the evidence which it might have called.
In any event, none of those defences would have assisted Kim, for the reasons advanced by Bogasi.
In particular, I accept the submission that what is in issue in these proceedings (which start with and primarily turn on an event which post-dates the Family Court proceedings, being the Nomination) is different to the cause of action in the Family Court proceedings, being the allocation of property interests as between Kim and Shara. The issue in relation to the Elmach units in those proceedings was whether or not Kim was their beneficial owner. A declaration could just have been made that Kim was not the beneficial owner. It was not essential as between Kim and Shara to determine who the beneficial owner was: what was essential was to determine who it was not.
Next, I accept the submission that res judicata and issue estoppel, and by parity of reasoning I would add Anshun estoppel, cannot arise between parties who were in the same interest in the Family Court proceedings (here Bogasi and Kim). The law was summarised by Goldberg J in Yates Property Corporation Pty Ltd v Boland (2000) 179 ALR 664:

A conventional estoppel was said to arise here on the basis that both parties have adopted the same assumption as the conventional basis of their relationship. In this case the Common Assumption as pleaded by Bogasi was the assumption which formed the basis of the relationship: Ryledar at [119] to [200].
Whilst detriment is an element of conventional estoppel, Bogasi submitted that unlike other estoppels, there is no requirement that either party induced, or acquiesced in, the adoption of the assumption by the other, and there is no requirement that either knew the other may incur detriment by reliance on the assumption: Moratic at [37].
Bogasi contends that the asserted estoppel in this case is closely aligned with, and gives effect to, the basis upon which Kim came to become the legal owner of the Elmach units. The trust arose to protect the interest of the Sundell Group, as manifested through Jim and Gunnar. Bogasi submits there is no evidence that purpose ever changed and its existence was instead reinforced by the evidence propounded in the Family Court proceedings. It was submitted to be significant that the Declarations were only possible because of the evidence adduced in those proceedings.
Further, it was contended that neither Jim nor Kim had the authority, or power, to alter that purpose, partly because the purpose benefited Gunnar's descendants, and partly because by April 2013, the board of Bogasi included other persons. There was also clear detriment on the basis that if Kim was allowed to depart from the Common Assumption, then Jim and Gunnar’s estates would lose a significant income producing asset.
In reply, Kim submits that even if it can be established that there was a mutual assumption that somehow fettered the power of Jim (or Jim and Gunnar) to deal with their own assets, it is not enough for Bogasi to ‘assert’ detriment being the loss of the value of the asset. There must be a relevant connection to the mutual assumption in that the detriment must arise from the reliance on the mutual assumption. That detriment is not a result of any reliance upon the mutual assumption.

Relying on the Common Assumption to ground an estoppel highlights the difficulties which have already led the Court to reject Bogasi’s case in relation to it (see [620] to [624] above). However, the use of that expression and “the mutual assumption” also raises another caution. While definitions are a useful drafting technique, the repeated use of such defined terms, especially when capitalised, risks giving them a weight or reality that can distract from the Court’s task of establishing whether they in fact existed. With no disrespect intended to anyone in this case, constant invocation of a defined term can subtly (or not so subtly) slip into an ipse dixit. It is the evidence underlying the definition to which the parties and the Court must attend.
Turning to the elements of the alleged mutual assumption:
The evidence, primarily that led in the Family Court proceedings, establishes that Jim, Kim and Gunnar understood or agreed (nothing turns on that description for present purposes) that Kim was not the beneficial owner of the Elmach units;
That same evidence does not support an assumption that “the beneficial owner of [the Elmach units] was any of Bogasi or TCI (neither of which is expressly referred to in that evidence, but which it may be accepted fell within the possible class of a Sundell Group entity that Jim could nominate) nor for Jim and Gunnar (rather than Jim alone). Furthermore, the fact that Bogasi has had to apply the expedient of pleading the beneficial owner in the alternative bespeaks exactly the lack of certainty in the evidence that means the Court cannot be satisfied to the requisite standard of an assumption in terms of any of the alternatives; and
The third and fourth elements both rely on the Court accepting the Common Assumption had the binding character asserted by Bogasi. For the reasons given in [620] and [624] above, the Court has not found the Common Assumption as pleaded.
It follows that the claim must fail because three of the four elements of the alleged mutual assumption have not been made out.
There are three other reasons why the claim fails. First, insofar as Bogasi contends that the parties bound by the alleged convention are Jim, Kim and Gunnar, no mutual dealing subject to the convention has been identified. Second, the Court accepts Kim’s submission set out in [711] above. Third, to the extent detriment is required, the pleaded detriment (2019 Third Cross‑Claim, par [104]) to “the families of Jim and Gunnar [suffering] a significant disadvantage, in that they would not have access to the income generated by the aforesaid units or the units themselves” is too vague or indistinct to be detriment of the kind that would engage a conventional estoppel.

Bogasi submits that if Jim did nominate Kim to be the owner of the Elmach units pursuant to the Declarations, then that nomination would constitute a fraud on the power*.* This was so irrespective of whether the power was fiduciary: Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421, 471. Nevertheless, Bogasi’s primary position is that the power was fiduciary in light of the Common Assumption and the circumstances in which the units came to be acquired for the benefit of the Sundell Group.
Bogasi pleads that Jim was obliged to exercise the power of nomination in good faith and without regard to his own interests. The purpose for which the power was conferred can be ascertained by reference to extraneous evidence. This circumstantial evidence is especially relevant in the absence of any documentary evidence as to the terms of the power.
For the reasons submitted in support of proving the Common Assumption, Bogasi submits that the scope and purpose of the power of nomination was directed to benefitting the Sundell Group and both sides of the Sundell Family.
Bogasi submits that Jim nominating Kim as the owner of the Elmach units would constitute a fraud on the power because it would provide Kim with the beneficial ownership of the units without any accommodation being made for Gunnar’s side of the family or the Sundell Group more generally and would have no regard for the Common Assumption.
It was also contended to be relevant that, on Kim’s case, the power was exercised to compensate him for the personal disadvantage he faced by having to settle the proceedings, including bearing the legal costs of the other Sundell Group parties. This was demonstrated by many of the matters which Kim identified as the justification for the Nomination in the 2019 Second Cross-Claim, being matters which speak to his personal interest: the fact that Jim had made no provision in his will for Kim; and that Jim had to pay the legal costs of companies within the Sundell Group. Satisfaction of those needs did not advance any interest of the Sundell Group. To the contrary, on Kim’s case, he received the benefit of the Elmach units because of his assisting the Sundell Group.
Bogasi submits that the power of nomination, properly exercised, required Jim to survey the range of objects and possible beneficiaries who might take the Elmach units pursuant to the exercise of that power. For the same reason, he was obliged to consider that the opportunity to acquire the Elmach units belonged to Bogasi and was bound to exercise the power of nomination in good faith and without regard to his own interests.
The fact that (assuming it occurred) Jim acted in defiance of concerns expressed by his lawyers, and assuming (on the evidence provided by Mr Wooldridge) he had a power to alter the equitable rights retrospectively, only serves to reinforce the Nomination being a fraud on the power. Bogasi relies on Mr Wooldridge’s evidence where he allegedly told Jim that a retrospective nomination contradicted what the Family Court had been told and Jim purportedly saying ““well, I guess there could be a different opinion. Just look at lawyers they always have different opinions, so I’m not worried about it.” This evidence indicates that Jim was acting in defiance of legal advice which would suggest his actions constituted a fraud on the power.
Bogasi relies on the following excerpt from Mr Wooldridge’s cross-examination to establish that he exercised the nomination for an ulterior purpose (Tcpt, 6 May 2024, p 1241(1)):

Goulston v Bogasi Pty Ltd; Bogasi Pty Ltd v Sundell; Tamara Jane Goodwin as Administrator of the Estate of James Ralph Sundell v Bogasi Pty Ltd as Trustee for the James Ralph Sundell Trust

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English brief of this case

Catchwords

Judgment

JUDGMENT

A. Overview

B. The three proceedings

C. Dramatis personae

D. The facts

E. Legal principles – fact finding, credit and claims against estates

F. Credit findings

Anne-Katrine

Disposition

Brett

Disposition

Kim

Disposition

Mr Wooldridge

Disposition

Mr Walker

Disposition

Ms Jennings-Jones

Ms Francis

The absence of Mr Stell

G. Bogasi’s and Kim’s Cross-Claims: Do the Declarations permit Kim to be the nominee?

Bogasi’s submissions

Kim’s submissions

Bogasi’s submissions in reply

Administrator’s submissions

Disposition

H. Did Jim nominate Kim to be the owner of the Elmach units in April 2013?

Kim’s submissions

Bogasi’s submissions in reply to Kim

Bogasi’s submissions in chief

Kim’s submissions in reply to Bogasi

Disposition

I. To be effective, did the Nomination have to be in writing by reason of s 23C(1)(c) of the CA

Bogasi’s submissions

Kim’s submissions

Bogasi’s submissions in reply

Disposition

J. Does any Nomination constitute a breach of trust?

Bogai’s submissions

Kim’s submissions

Bogasi’s submissions in reply

Disposition

K. Is Bogasi estopped or otherwise precluded from denying that Kim is the beneficial owner of the Elmach units?

Conventional Estoppel

Kim’s submissions

Bogasi’s submissions

Laches

Kim’s submissions

Bogasi’s submissions

Res Judicta, Anshun Estoppel and Issue Estoppel

Kim’s submissions

Bogasi’s submissions

Disposition

L. Is Kim estopped by convention from denying that he owns the Elmach units to give effect to the Common Assumption?

Bogasi’s submissions:

Disposition

M. Was the nomination by Jim (assuming it occurred) a fraud on the power?

Legislation Cited (26)

Cases Cited (67)