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[2025] QCA 263
respondent. The appeal was dismissed with costs. Gunderlong’s purported appeal was dismissed because it was not a party to the appeal and had not obtained the liquidator’s consent to prosecute it ([5], [42]).
The Court of Appeal left the trial judge’s findings in place. It accepted that the family had made an overall agreement to break up the business, even though they had not resolved every detail about who would receive every item of equipment. The Court also found no sufficient basis to overturn the trial judge’s ownership findings, which relied on witness evidence and the particular family practice of putting private and business expenses through the company accounts. Faye Simpkin could challenge the agreement finding as a party to that agreement, but the deed did not give her an effective bare right to appeal on Gunderlong’s behalf. The appeal was dismissed with costs.
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2,584 words · generated 07/10/2026
The appeal arose from the collapse of a family business and the related breakdown in family relationships. Reg and Faye Simpkin operated the business through Gunderlong Mackay Pty Ltd for about 38 years, from 1981 to 2019. Their sons, Craig and Troy, were also involved for a number of years. Difficulties emerged from around 2016, and the dispute eventually produced a claim after Reg’s death ([2], [14]).
No linked legislation citations have been extracted yet.
The underlying proceeding combined several kinds of dispute. Gunderlong alleged that Craig and his company, CLP Group Australia Pty Ltd, owed it money. There were also allegations concerning directors’ duties and competing claims about ownership of equipment, from toolboxes to excavators ([2]). Craig’s defence included the position that the family had agreed to end the existing business, divide the equipment and allow Craig and Troy to establish or continue their own businesses ([2], [15]).
A central dispute was whether there had been a concluded agreement, or only proposals that never became binding. The primary judge found an agreement reached in early 2019, partly oral and partly evidenced in writing ([17], [21]). The written evidence included emails from the family accountant, Frank Shepherd. His 28 February 2019 email set out recommendations about ceasing the existing business, establishing separate businesses and dividing equipment. On 1 March, he circulated the proposal to Craig, Troy, Reg and Faye, describing it as a course of action authorised by Reg and Faye ([17]-[19]).
The primary judge also made findings about ownership of numerous items. In doing so, the judge considered company records, witness evidence, the family’s longstanding accounting practices and the circumstances of individual purchases ([28]-[30]). The Supreme Court allowed some parts of the plaintiffs’ claims and rejected many others. Its orders included a payment of $15,352.03 by CLP to Gunderlong, delivery of certain property to Gunderlong, and a declaration about a caravan owned by Faye and Reg ([3]).
Faye Simpkin and Mackay Capital appealed against the agreement finding and selected findings about equipment ownership. Gunderlong was in liquidation and had not obtained its liquidator’s consent to prosecute an appeal. It was not a party to the appeal, and the judgment records that its purported appeal was to be dismissed ([5]). The Court of Appeal dismissed the appeal with costs ([42]).
The Court’s approach was shaped by the nature of the appeal. Bowskill CJ noted that the primary judge had heard evidence over four days and made credibility and reliability assessments after hearing witnesses give oral evidence ([1]). The Court reviewed the evidence and reasons, but applied appellate restraint. It was not persuaded that any challenged finding was “glaringly improbable or contrary to compelling inferences”; instead, it regarded the findings as logical and supported by evidence ([1]).
On the agreement issue, the Court rejected the argument that the finding was inconsistent with Craig Simpkin’s evidence. It considered the finding consistent with that evidence and with the 1 March email ([24]). Importantly, the Court did not treat the email alone as the entire contract. The primary judge had found that the agreement was partly oral and partly in writing. The Court said the email supported an agreement about the overall division of the business, even though there might not have been agreement about every particular item of equipment ([17], [24]).
That distinction mattered. The appeal argument treated unresolved equipment allocations as a reason to characterise the arrangement as only an agreement to agree. The Court’s reasoning was narrower: uncertainty over which particular items Craig or Troy would take did not, in itself, contradict a concluded agreement to divide the business overall. The 28 February email itself anticipated that some items might not be agreed or purchased by one son, in which case the equipment would need to be sold. The 1 March email communicated an authorised course of action and asked for assistance implementing it ([24]).
The ownership grounds also depended substantially on factual re-evaluation. The appellants relied on company records, but the trial judge had found that the family had a practice of placing a mixture of personal and business expenditure through Gunderlong. That history reduced the persuasive force of financial records as evidence of who truly owned an item ([28]-[29]). The judge considered the intention of the parties at the time of a transaction important, and assessed each disputed item individually ([29]-[30]).
The Court accepted that approach for the purposes of the appeal. It noted the primary judge’s finding that Craig Simpkin was, “in the main, an honest and reliable witness”, and concluded that the ownership findings were open on the accepted evidence ([33]). For the Holden FJ utility and Caterpillar 950 wheel loader, the primary judge had considered the records, the history of the items and Craig’s evidence that they were Reg’s property. The Court saw no basis to overturn those findings ([35]-[36]). For the tractors and engines, the judge accepted evidence that Craig had contributed money to purchases and found that the items were jointly owned by Craig and Reg. The appellate court considered the evidence imprecise but did not find the conclusions glaringly improbable or contrary to compelling inferences ([39]-[40]).
For items 69 and 71, the Court accepted the trial judge’s consideration of evidence that Reg kept hobby purchases confidential from Faye and used their joint account as a personal account. The fact that money came from a joint account did not, on the evidence and findings described, require the appellate court to disturb the trial judge’s conclusion ([41]).
There were also two preliminary issues. Faye relied on a deed of assignment from Gunderlong’s liquidator. But the deed expressly excluded any transfer of rights in the company’s goods, plant or equipment, while purporting to give Faye a right to appeal about some items. The Court held that this amounted to an ineffective assignment of a bare right to appeal ([8]-[11]). Faye could nevertheless challenge the agreement finding because she was herself a party to the agreement found by the primary judge. The Court did not need to decide further whether she had standing for ground 2, because that ground failed in any event ([12]).
Finally, the appellants sought to rely on Craig’s earlier affidavit as part of the appeal record. The affidavit had not been tendered at trial, and Craig had accepted the proposition put to him from it. The Court therefore agreed that the affidavit itself was not part of the trial evidence ([13]).
The judgment does not set out a comprehensive account of the law before the appeal, nor does it purport to establish a new general test for contract formation or chattel ownership. Its contribution is principally an application of appellate restraint to the specific factual findings made at trial.
The judgment cites Lee v Lee and Wang v Hur in connection with the restraint applicable when an appeal challenges factual findings affected by the trial judge’s impressions of witness credibility and reliability ([1] and footnote 1). Bowskill CJ’s formulation was that the challenged findings were not glaringly improbable or contrary to compelling inferences, and were instead logical and supported by evidence ([1]). The judgment applies that approach to the credibility-dependent findings about the agreement and ownership of items ([24], [33], [40]-[42]).
The Court also addressed a distinct assignment question. The deed conveyed choses in action, but expressly stated that it did not transfer any right, title or interest in Gunderlong’s goods, plant or equipment. It limited Faye’s interest in certain items to a right to appeal, without a right to deal with the items if successful. In that setting, the Court held the purported assignment of the bare right to appeal ineffective ([8]-[11]). It cited Krishell Pty Ltd v Nilant and Trendtex Trading Corporation v Credit Suisse in connection with the argument about a bare right to litigate ([11] and footnote 3). The judgment does not develop a broader account of those authorities.
On ownership, the judgment records that the appellants did not challenge the primary judge’s stated test that the parties’ intention at the time of a transaction was important to determining true ownership ([31]). The appellate decision therefore did not establish a different ownership test. Rather, it upheld the trial judge’s evaluation of the evidence, including the limited weight given to company accounts where private and business spending had been mixed ([29]-[33]).
After the decision, the specific appeal ended with dismissal and costs. The supplied judgment contains no later judicial treatment of this decision. It therefore does not establish how subsequent courts have interpreted or applied it.
At [1], Bowskill CJ states that none of the challenged findings were “glaringly improbable or contrary to compelling inferences”, and that they were “logical and supported by the evidence”. In plain English, the Court did not consider that the appellants had shown the kind of serious factual problem that would justify appellate intervention, particularly given that the trial judge had heard the witnesses.
At [11], the Court says: “The purported assignment of the bare right to appeal is ineffective.” The context is important. The deed transferred certain choses in action but expressly excluded any interest in the relevant goods, plant or equipment. The Court’s conclusion concerned that deed and the appeal rights it purported to transfer. It did not decide every possible question about assignments of litigation rights.
At [12], the Court distinguishes Faye’s position on ground 1 from her position on ground 2. She was a party to the agreement found by the trial judge, so she could challenge that finding in her own right. The Court did not accept that this also established her standing for ground 2, but did not need to resolve that question because ground 2 failed on its merits.
At [24], the Court explains that uncertainty about the allocation of individual items did not necessarily defeat the finding of an agreement about the overall division of the business. In practical terms, the Court treated the broad business arrangement and the later allocation of particular equipment as analytically distinct issues.
At [29], the primary judge’s approach to ownership is described: the family’s history of mixing private and business expenditure meant that the company’s financial statements were given “some but not a great deal of weight”. The Court later accepted that this approach left the ownership findings open on the evidence ([33], [36]).
At [40], Bowskill CJ acknowledges that evidence about the disputed items was imprecise on both sides, but says the primary judge gave cogent reasons for accepting Craig’s evidence. The significance is not that imprecise evidence automatically resolves a dispute one way or the other. It is that the trial judge’s reasoned assessment and credibility findings were not shown to justify appellate intervention on this record.
The judgment is most relevant to appeals that seek to overturn factual findings made after a trial where the judge heard oral evidence and assessed witness credibility or reliability. Here, the challenged findings about the family agreement and ownership of equipment depended substantially on what witnesses said, and on the primary judge’s view of their reliability ([1], [20]-[24], [30]-[33]).
It is also relevant where a party contends that accounting records conclusively establish ownership, but the evidence indicates that private and business transactions were routinely mixed. The Court did not treat the company’s records as irrelevant. Rather, it upheld the trial judge’s decision to assign them limited weight in light of the family’s practices and to consider the intention behind individual transactions ([28]-[33]).
The agreement reasoning may be relevant where parties dispute whether a broad commercial or family arrangement was concluded despite details remaining to be worked out. The Court accepted that unresolved choices about particular equipment did not necessarily negate an overall agreement to divide the business, especially where the accountant’s email communicated an authorised course of action and contemplated a mechanism for dealing with disputed items ([17]-[24]). The judgment does not, however, state a general contract-formation test or determine that all incomplete arrangements are binding.
The assignment discussion is relevant to a deed that purports to transfer a right to appeal while expressly withholding any interest in the property that is the subject of the appeal. The Court’s conclusion depended on the terms of this deed, including clause 2.3 and the definition of choses in action ([8]-[12]). A different assignment instrument or different underlying rights is not resolved by this judgment.
The supplied judgment was delivered on 19 December 2025 and does not refer to any later decisions applying it. No later treatment can be identified from the material provided.
The cases identified in this judgment are authorities it cites, not later treatment of this judgment. It cites Lee v Lee and Wang v Hur in support of appellate restraint when reviewing factual findings affected by credibility and reliability assessments ([1], footnote 1). It also refers to Krishell Pty Ltd v Nilant and Trendtex Trading Corporation v Credit Suisse in connection with the argument that a bare right to litigate cannot be assigned ([11], footnote 3). The judgment does not provide a detailed account of those cases beyond that context.
For research purposes, the decision’s use should therefore be described as a Court of Appeal application of restraint to the particular findings before it, rather than as evidence of a developed line of subsequent authority. The judgment’s own disposition is clear: the grounds were not made out and the appeal was dismissed with costs ([42]).
The judgment does not determine the full boundaries of when a right to appeal or litigate may be assigned. Its conclusion was tied to a deed that expressly excluded any interest in the underlying goods, plant or equipment while purporting to transfer a right to appeal about certain items ([8]-[11]). The judgment does not analyse how the result might differ where an assignee receives a genuine proprietary or commercial interest connected with the litigation.
The decision also does not determine whether Faye had standing to prosecute ground 2. The Court held that her standing to pursue ground 1 rested on her being a party to the agreement, while her standing for ground 2 could not be justified on that basis. Because ground 2 failed anyway, the Court did not decide the standing issue further ([12]).
The judgment does not supply a general test for distinguishing a concluded agreement from an agreement to agree. It concludes that the agreement finding was open on the particular evidence: the oral discussions, the two accountant emails, the parties’ conduct and the evidence about how the proposed division was implemented ([17]-[24]). It leaves open how a different combination of unresolved terms or different communications might affect that characterisation.
Nor does the judgment establish a universal rule about the evidentiary value of company accounts in ownership disputes. The records were given limited weight because of evidence concerning the Simpkin family’s particular practice of recording private assets and expenses through Gunderlong ([28]-[33]). The assessment remains tied to the circumstances and evidence before the trial judge.
Finally, the decision does not indicate how a later court might treat it. The source text contains no subsequent judicial consideration. Any account of later application would need to be based on later authorities not included in the material analysed here.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Gunderlong Mackay Pty Ltd v Simpkin [2025] QCA 263
PARTIES: GUNDERLONG MACKAY PTY LTD / ACN 010 210 456 (in liquidation) / (first appellant/not a party to the appeal) / MACKAY CAPITAL PTY LTD ACN 659 710 826 as trustee for THE SIMPKIN FAMILY TRUST / (second appellant) / FAYE EMILY SIMPKIN / (third appellant) / v / CRAIG NORMAN SIMPKIN / (first respondent) / CLP GROUP AUSTRALIA PTY LTD / ACN 632 782 131 / (second respondent)
FILE NO/S: Appeal No 1702 of 2025 / SC No 10018 of 2022
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Mackay – [2024] QSC 194 (Crow J)
DELIVERED ON: 19 December 2025
DELIVERED AT: Brisbane
HEARING DATE: 24 September 2025
JUDGES: Bowskill CJ, Bradley JA and Crowley J
ORDER: The appeal is dismissed, with costs.
CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM SUPREME COURT – GENERALLY – where the first appellant is not a party to the appeal, is in liquidation and no consent of the liquidator was obtained to prosecute the appeal – where at the start of the hearing of the appeal it was acknowledged that an order be made dismissing the appeal so far as it was purported to be brought by the first appellant – whether the second appellant has standing to press the grounds of appeal that relate only to the first appellant / APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – OTHER MATTERS – where a breakdown occurred in a family business which had been operated between the parents and two sons – where, after the father’s death, a claim was brought in the Supreme Court by the mother and the family company, against one of the sons and his company – where the claim involved allegations of debts owed by the son and his company to the family’s company, breaches of director’s duties and disputes about ownership of a number of items of property – where the claim was defended on the basis of an agreement said to have been reached between the parents, and their sons, to end the family business, divide up the equipment and enable the sons to set up and continue with their own businesses – where a major issue to be determined at the trial was whether a concluded agreement had been reached – where the primary judge found that there was a concluded agreement that was partly oral, and partly in writing – where the primary judge found that certain items were owned by the first respondent, other items were owned by the father alone, and other items were owned by both the father and the first respondent – where the appellants challenge each of those factual findings – whether the primary judge’s conclusion that there was a concluded agreement between family members about the break up of the family business was incorrect – whether the primary judge’s conclusions in respect of the ownership of certain items were incorrect / Lee v Lee (2019) 266 CLR 129; [2019] HCA 28, cited / Wang v Hur [2024] QCA 126, cited
COUNSEL: L M Copley for the second and third appellants / M T de Waard for the respondents
SOLICITORS: Results Legal for the second and third appellants / Macrossan & Amiet for the respondents
BOWSKILL CJ: This proceeding concerns an unfortunate dispute in the context of a family business that fell apart, taking with it the relationships between the family members. It was a messy, in some respects petty, dispute in respect of which the learned primary judge heard and received evidence over the course of a four day trial in July 2024. His Honour’s reasons record factual findings, taking into account impressions about the credibility and reliability of the witnesses who gave oral evidence before him. The second and third appellants seek to challenge those factual findings in a number of respects. Having conducted the requisite review of the evidence given at first instance, and of the primary judge’s reasons, and adopting the appellate restraint which is called for on an appeal against factual findings which were affected by impressions about the credibility and reliability of witnesses formed by the primary judge, I am not persuaded that any of the challenged findings are glaringly improbable or contrary to compelling inferences. On the contrary, they are logical and supported by the evidence.1 I am not otherwise persuaded the decision below is affected by any of the contended errors, and would therefore dismiss the appeal.
For 38 years from 1981 to 2019, the late Reg Simpkin and his wife Faye Simpkin (the third appellant) carried on a successful family business under the company Gunderlong Mackay Pty Ltd (the first appellant). For a number of years, their two sons, Craig Simpkin (the first respondent) and Troy Simpkin, were also actively involved in the business. From about 2016, troubles started to emerge within the family; the business broke down, and the parties became embroiled in a dispute which eventually, after Reg Simpkin’s death, led to a claim in the Supreme Court brought by Gunderlong, Mackay Capital Pty Ltd (the second appellant) and Faye Simpkin, as plaintiffs, against Craig Simpkin and his company, CLP Group Australia Pty Ltd (the second respondent), as defendants. The claim involved allegations of debts owed by Craig Simpkin and CLP to Gunderlong, breaches of director’s duties and disputes about ownership of a large number of disputed items of equipment, ranging from tool boxes to excavators. The claim was defended, in part, on the basis of an agreement said to have been reached, between the parents, Reg and Faye Simpkin, and their sons, Craig and Troy Simpkin, to end the family business, divide up the equipment, and enable Craig and Troy to set up and continue with their own businesses.
Judgment was delivered on 27 August 2024, allowing some parts of the plaintiffs’ claims but rejecting many others. Orders were made on 31 March 2025, as follows:Orders 1 and 2 required CLP Group Australia to pay Gunderlong the sum of $15,352.03, plus interest.Order 3 required Craig Simpkin to deliver up to Gunderlong a number of items of property, and order 4 declared that Gunderlong was the owner of those things.Order 5 declared that Faye Simpkin and Reginald Simpkin were the owners of item 67 as set out in Annexure C to the statement of claim [a caravan]; andOrder 6 required that the three plaintiffs pay 75 per cent of the defendants, standard costs (reflecting the fact that the plaintiffs had been largely, but not completely, unsuccessful in their claim).
“1. The learned trial judge erred in law by finding that there was a partly oral, partly written agreement as to the split up of the family business and plant and equipment as:
the finding is contrary to the evidence of the first respondent;
the finding is contrary to the email of 1 March 2019 that expressly records that the plant and equipment of the first appellant would be hired or sold to the sons; and
the email of 1 March 2019, when considered with the evidence of the first respondent, does not evidence a concluded agreement but rather an agreement to agree.
2.The learned trial judge erred in law by finding that the first respondent [Craig Simpkin] was the owner of items 3, 5, 6, 7, 11, 13, 53, 53A, 53B, 53L and 59, as set out in Annexure A to the amended statement of claim rather than the first appellant [Gunderlong], as the books and records of the first appellant recorded these items as assets.
3.The learned trial judge erred in law by finding that Reginald Simpkin is the owner of items 54 and 56 rather than the second appellant [Mackay Capital], as the books and records of the second appellant recorded these items as assets.
4.The learned trial judge erred in law by finding that the first respondent [Craig Simpkin] and Reginald Simpkin were the owners of items 60, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93 and 94, rather than the third appellant [Faye Simpkin], as:
the first respondent did not produce any document to support his claim that the above items were jointly owned; and
the pleaded defence of the first respondent in respect of each of the items above (other than items 60, 74, 75, 76, 81, 83, 84 and 94) was that they were assets of the estate of Reginald Simpkin.
5.The learned trial judge erred in law by finding that Reginald Simpkin is the owner of items 69 and 71 rather than the third appellant as these items were jointly owned by the third appellant and Reginald Simpkin and upon the passing of Reginald Simpkin ownership passed to the third appellant.”
Gunderlong is not, and should not have been named as, a party to this appeal. It is now in liquidation, and no consent of the liquidator was obtained to prosecute an appeal. It was acknowledged at the start of the hearing of the appeal that an order should be made dismissing the appeal, in so far as it is purported to be brought by Gunderlong.
The issues to be determined are:The first preliminary issue – whether Faye Simpkin has standing to press grounds 1 and 2 of the appeal, which otherwise relate only to Gunderlong (which is not a party to this appeal).The second preliminary issue – whether Mackay Capital and Faye Simpkin can rely on the affidavit of Craig Simpkin sworn 30 August 2022 on the hearing of this appeal.Whether the primary judge’s conclusion that there was a concluded agreement between family members about the break up of the family business was wrong (ground 1).Whether the primary judge’s conclusion that Craig Simpkin owns items 3, 5, 6, 7, 11, 13, 53, 53A, 53B, 53L and 59 was wrong (ground 2).Whether the primary judge’s conclusion that Reg Simpkin owned items 54 and 56 was wrong (ground 3).Whether the primary judge’s conclusion that Craig and Reg Simpkin own items 60, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93 and 94 was wrong (ground 4).Whether the primary judge’s conclusion that Reg Simpkin owned items 69 and 71 was wrong (ground 5).
First preliminary issue
A preliminary issue was raised by the respondents that, since grounds 1 and 2 relate only to Gunderlong, and neither of the other appellants have a right to prosecute those grounds, they should be dismissed.
Faye Simpkin submits that she acquired the right to prosecute those grounds, under a deed of assignment that she, as buyer, entered into with the liquidator for Gunderlong, as seller, on 28 April 2025. Clause 2 of that deed provides:
“2. Sale and purchase
2.1 The seller will sell to the buyer and the buyer will purchase the choses in action, for the purchase price, and on the terms and conditions contained in this deed.
2.2 Upon completion, the seller transfers to the buyer:
2.2.1 the legal right to the choses in action;
2.2.2 all legal and other remedies for the choses in action; and
2.2.3 the power to give a good discharge for the same without the concurrence of the seller.
2.3 The seller does not sell, and the buyer does not acquire, any right, title or interest in goods, plant or equipment of the company (or the proceeds thereof). The buyer’s interest is limited to:
2.3.1 the right to appeal with respect to items 5, 13 and 53B as described in the fourth amended statement of claim, but not the right to deal with those items in the event of a successful appeal;
2.3.2 items 3, 6, 7, 11, 53, 53A, 53L and 59 as described in the fourth amended statement of claim filed in the Proceeding; and
2.3.3 the benefit of costs orders made in the Proceeding or in any appeal arising from the Proceeding.”2
"1.All rights and claims held or exercisable by the company and made in the Proceeding.
2.Subject to clause 2.3, the benefit of any judgment in the Proceeding; and
3.The right to appeal against, or defend, as the case may be, any judgment made in the Proceeding.”
The purchase price was $22,000.
The respondents submit that the deed purports to assign a bare right to litigate (not any interest in the property the subject of the litigation) which is not permitted as a matter of law. Counsel for Faye Simpkin attempted to argue that the right to litigate was annexed to a right of property which was also assigned, and so was effective.3 But clause 2.3 of the deed is directly inconsistent with that proposition. The purported assignment of the bare right to appeal is ineffective.
However, Faye Simpkin is a party to the agreement which was found to have been made as between Reg and Faye Simpkin and Craig and Troy Simpkin. Accordingly, she is able to challenge that aspect of the decision in her own right, without needing to rely upon any assignment from Gunderlong. I proceed on that basis, in so far as ground 1 is concerned. Faye Simpkin’s standing to prosecute ground 2 cannot be justified on this basis. But as will become apparent, the ground is not made out in any event, and so it is not necessary to dwell further on this point.
Second preliminary issue
Ground 1
Cracks began to emerge in the family’s business arrangements from about 2016 or 2017. Craig Simpkin had worked in the business as a plant operator. His brother, Troy Simpkin, was the accountant to the family business, but also performed hands on work. Both brothers wanted to step back from the family business, and do their own thing. That was not an easy process.
One of the major issues to be determined at the trial was whether there was a concluded agreement reached, to break up the family business, as Craig Simpkin alleged; or whether there was only a proposal to do so without any agreement being reached, as Faye Simpkin and Troy Simpkin alleged.
The particular relevance of this argument concerned a loan of $77,000 from Gunderlong to Craig Simpkin’s company, CLP Group. Part of the proceeding below was a claim by Gunderlong to recover that money from CLP. That claim was defended by CLP on the basis that the loan to CLP was made on the condition that the money would only become repayable if and when Craig Simpkin’s share of the plant and equipment owned by Gunderlong was transferred to him,4 pursuant to the agreement which Craig contended had been made between Reg and Faye Simpkin, and Craig and Troy Simpkin.
The learned primary judge found that there was a concluded agreement reached, in early 2019. The agreement was found to be partly oral and partly in writing. In so far as it was oral, the agreement was found to have arisen through discussions between Reg and Craig Simpkin as to the split up of the family business and the plant and equipment.5 In so far as it was in writing, it was found to be evidenced in two emails from Mr Frank Shepherd, an accountant.6 The first email, dated 28 February 2019, was from Mr Shepherd to Reg and Faye Simpkin. The subject line of the email is “Simpkin Decision time”, and the email sets out Mr Shepherd’s advice and recommendations about how to go about ceasing the Simpkin Haulage business “as it is now”, the steps required to enable Craig and Troy to operate their own businesses, and how to go about dividing up the equipment. The email ended by saying:
“Please advise if you wish to make any changes or add further information to this email. It will be necessary obviously to inform all parties of your decisions. We will send emails to Troy and Craig once you have reviewed and given approval to the matters raised.”
“Please find below an email that has been authorised as a course of action by Reg and Faye. The hardest thing is making a decision and sticking to it.
Everyone’s assistance in implementing this would be appreciated.”
“evidences that Reg and Faye Simpkin had accepted the advice of Mr Frank Shepherd, authorised him to send that email to Craig Simpkin and to Troy Simpkin. It was also sent to Mrs Faye Simpkin and so everyone knew that the course of action recommended by Frank Shepherd was authorised. The agreement was accepted and acted upon by Craig and acted upon by Troy in setting up his own business.”7
“[25] The second defendant, CLP Group Australia Pty Ltd (CLP) was incorporated on 8 April 2019 with its sole director and shareholder being Craig Simpkin. Craig Simpkin then began to conduct his own business, I find, with the knowledge, approval and consent of Reg and Faye Simpkin and without any objection being raised by Troy Simpkin as per a partly oral, partly written contract.
[26] In paragraph 34 of the plaintiff’s written submissions it is conceded that ‘Reg was the main decision maker for Gunderlong.’ As Faye Simpkin conceded at T1-45, lines 5 to 15, when asked how a decision would be made with respect to decisions the business was making about buying or selling something or entering into a contract that ‘Generally it wouldn’t be my decision. It wouldn’t --- I never got much say…’. Faye Simpkin conceded that Reg made business decisions for Gunderlong.
[27] Mrs Simpkin’s repeated evidence was that there was no concluded or final agreements reached. As Mrs Simpkin said at T1-46, lines 1-2, it was not only Craig that wanted the business split between Craig and Troy, it was also ‘… Well it was me in the end.’
[28] One of the difficulties with Faye Simpkin’s evidence whilst she asserted that no concluded agreement had been reached, she did not provide evidence as to what was actually said to indicate whether there was in fact an agreement reached or whether there were merely proposals put. Faye Simpkin had not been doing accounting work for the business for several years by 2018 and I accept her evidence at T1-45, lines 5-10 that in respect of business decisions she did not have much say, they were not her decisions, and I infer the decisions were made by Reg on behalf of Faye and Reg. I accept Craig Simpkin’s evidence that an agreement was in fact reached but ‘It never ended up coming up signed properly… No, there was an agreement. There was an agreement between my father and myself.’ It was put to Craig Simpkin that no agreement was actually reached with reference to paragraph 163 of an earlier affidavit of his8 in which he said ‘Unfortunately an agreement was never reached in relation to this as to what was to happen.’
[29] Craig Simpkin did accept that that statement still stands as correct. On behalf of the plaintiffs it is argued that the evidence of Craig Simpkin at T4-77, lines 5-10 makes it clear that an agreement had not been reached. I do not accept that submission as I accept the evidence of Craig Simpkin as set out at T4-76 that in fact there was an agreement, however it was not placed in a formal written contract. I also consider that Reg Simpkin, as had always been his practice, entered into that agreement on behalf of Gunderlong and with Faye Simpkin’s consent and in accordance with the long standing practice of Reg being the decision maker for Gunderlong.
[30] The email of Mr Shepherd of 1 March 2019 which partly evidences the agreement was expressly authorised by not only Reg but also Faye Simpkin.”
“[33] … there was an agreement reached as and from 1 April 2019 that he [Craig] was to receive 50% of the plant and equipment of Gunderlong to be utilised in the businesses he was going to undertake with CLP which related to the ash work and other work of Gunderlong (and Troy was going to take 50% of the plant and equipment to be used in doing the Andrews tramline work). The agreement had been reached and McKays Solicitors had been instructed to draw up a formal written contract, however, the formal written contract was never drawn. That does not mean that a contract was not entered into; it merely means unfortunately it was not placed entirely in writing.”
“The acceptance of Craig Simpkin’s evidence in relation to the agreement, means that in terms of the $77,000 that it was to be repaid in full from a bank loan to CLP which would be obtained after CLP had received the transfer of machinery from Gunderlong that had been agreed to enable CLP to perform the ash contract and other Gunderlong work including haulage, McGrath work and Racecourse Projects work but not the Andrews tramline work. However, Gunderlong did not fulfill its side of the agreement as it did not transfer the necessary 50% of machinery to CLP. The late Reg Simpkin through his conversations with Faye Simpkin as to the repayment of the $77,000 in the very short term of perhaps a few weeks, and the direction, which I accept, that Reg Simpkin gave to Craig Simpkin to have CLP bill the $30,659.31 for work the subject of Exhibit 70 on 9 July 2019 for the express purpose of getting the money back to Gunderlong is also consistent with the terms being agreed as to the time for repayment of the $77,000 loan. It seems to me therefore as the terms being agreed as to the repayment of the $77,000 have not been fulfilled, the $77,000 loan is not repayable. As Craig Simpkin said at T4-74, as he did not have the agreed equipment CLP could not operate so he had to go to the mines to obtain income.”
By ground 1 of the appeal, Faye Simpkin challenges the finding that a final agreement was reached as to the split up of the family business on the basis that:the finding is contrary to the evidence of Craig Simpkin;the finding is contrary to the email of 1 March 2019; andthe email of 1 March 2019, when considered with the evidence of Craig Simpkin, does not evidence a concluded agreement but rather an agreement to agree.
I am not persuaded that the primary judge was wrong to reach the conclusion that he did about the agreement. As to (a), the finding was consistent with Craig Simpkin’s evidence; as to (b) the finding is supported by the email of 1 March 2019; and as to (c), the primary judge did not conclude that the email itself evidenced the agreement – rather, his Honour concluded that the agreement was partly evidenced by that email. There may not have been agreement about which particular items of plant and equipment were to be taken by Craig or Troy, but that does not undermine the conclusion that an agreement in terms of the overall division of the business was reached. That is what was communicated in the email of 1 March 2019, with a request for all concerned to assist in implementing it. Indeed, the fact that there would be common pieces of equipment, that both Troy and Craig may want, was expressly contemplated in the email of 28 February 2019, which was then forwarded to all parties on 1 March 2019. As Mr Shepherd said to Reg and Faye Simpkin in the first of those emails:
“You can only do your best to make the division as equitable as possible. If it can’t be agreed upon or purchased by one of them or the other, you need to sell the equipment. Their demands or desires should not be your problem.”
Ground 2
By ground 2, Faye Simpkin challenges the finding made by the primary judge that Craig Simpkin was the owner of items 3, 5, 6, 7, 11, 13, 53, 53A, 53B, 53L and 59, rather than Gunderlong.
In the case of some of these items, the argument is a barren one, because:item 5 was acknowledged at trial to be Gunderlong’s asset,10 and has already been returned to Gunderlong;item 13 was also acknowledged at trial to be Gunderlong’s asset and had already been retrieved by Gunderlong prior to the trial;11 anditem 53B was not found to be owned by Craig, but was found to “remain the property of Gunderlong”.12
In so far as the other items are concerned, the argument under this ground is that these items were recorded in Gunderlong’s books and records as its assets; by operation of s 1305(a) of the Corporations Act 2001 (Cth) that was prima facie evidence of the fact of ownership by Gunderlong.13 Troy Simpkin gave evidence about the care he took in preparing the books of Gunderlong, and it was an error for the primary judge not to have accepted that evidence, and to have favoured Craig Simpkin’s evidence instead.
The primary judge found that:
“[2] Prior to the Simpkin family ‘troubles’, the Simpkin family had operated as a family unit, utilising and acting upon the advices of Mr Frank Shepherd, accountant of Shepherd and Dudley, to conduct their businesses in a tax efficient manner in order to create significant asset wealth. This appeared to work well when the Simpkin family were functioning as a family unit.
[3] The evidence shows that the tax efficiency extended to motor vehicles and their associated expenses, telephones and electronic devices being purchased through the company but being used by individual Simpkin family members as they saw fit. Assets such as several vintage tractors, trucks and motors were purchased through the first plaintiff [Gunderlong] with the result that the GST was refundable. There was therefore, for many years, a mixture of personal and business expenditure on both capital assets as well as ordinary expenses, placed through the accounts of the plaintiff company [Gunderlong].”
“[97] … In respect of the issue of who owns a chattel and where it is located, I place some but not a great deal of weight upon the financial statements, as the Simpkin family appear to have a long-standing practice of mixing private and business expenditure and placing it through their company, Gunderlong. In addition, Craig Simpkin and other members of the Simpkin family have from time to time put money into Gunderlong in respect of assets and in my view it is the intention of the parties at the time of the transaction that is important in determining who has the true ownership of the asset.
[98] In terms of the location of the chattel, as Reg died on 16 May 2022, the evidence can really only come from Troy Simpkin and Craig Simpkin. I accept Troy Simpkin’s evidence as to the status of the assets when he visited the shed at 678 Barry Lane between July 2019 and July 2021. There is no evidence contradicting Craig Simpkin of what assets were located on that property after July 2021, as Troy Simpkin has not had access to the shed. The late Reg Simpkin, on the evidence, had access to the shed to a time proximate to his passing away on 16 May 2022. In the period it seems from July 2019, Craig Simpkin has been largely working away at the mines, but at times at the shed, and I accept that he has the best evidence of what is located at the shed. Each asset the subject of dispute, however, needs to be considered.”
His Honour then proceeded to painstakingly go through all the items of property and make findings about ownership, in many cases on the basis of accepting the evidence of Craig Simpkin.
There is no challenge to the correctness of the legal test articulated by the primary judge, that it is “the intention of the parties at the time of the transaction that is important in determining who has the true ownership of the asset”.
Counsel for Faye Simpkin submits the primary judge erred in making the factual findings as to ownership; the error being to accept Craig Simpkin’s evidence over accepting “contemporaneous documentary evidence”, namely, the books of the company.
Given his Honour’s findings about the approach which the members of this family took to the accounts of the company, Gunderlong, from which it followed that the books of the company were not persuasive evidence as to ownership, and the fact that his Honour found Craig Simpkin to be “in the main, an honest and reliable witness”,14 I do not accept that the primary judge’s conclusion as to ownership of these items was affected by appealable error. On the contrary, the conclusions were plainly open, on the evidence which was accepted and other findings which were made.
Ground 3
The complaint under this ground is that the primary judge erred in finding that Reg Simpkin is the owner of items 54 and 56, rather than Mackay Capital (the second appellant), because the books and records of Mackay Capital recorded these items as assets.
The primary judge said this about items 54 and 56:
“[142] Item 54, is a Holden FJ utility. The FJ utility is not in the asset schedule of Exhibit 86 the 2012 financial statements, nor is it in exhibit 59, the 2013 financial statements for Gunderlong. In the plaintiff’s written submissions, it is submitted that the Holden FJ utility is included in the 2022 financial statements for the Simpkin Family Trust, however, in the 2022 financial statements of Gunderlong which are contained at pages 1866-1885 of Exhibit 59, I cannot locate the FJ utility. Given the pre-disposition of the Simpkin family to include private assets within the company accounts, even if the FJ utility were included in a financial statement, I would accept that as only the slightest evidence that the company owned that asset.
[143] Craig Simpkin’s evidence concerning the Holden FJ utility is contained at T4-39 and is that the old Holden FJ utility was his dad’s ute as long as he could remember from when he was a ‘little kid’. Although the precise date is not in the evidence, it seems Craig Simpkin was born in 1979 or 1980, that is prior to Gunderlong coming into existence on 9 March 1981. The FJ vehicle has the old style registration plate Q 663392 as shown in Exhibit 58 pages 132-133. The style of the numberplate suggests that the vehicle was registered decades ago. The FJ utility is a collector’s item and is in keeping with Reg Simpkin’s deep interest in mechanical engines and vehicles as shown in the many photographs and Reg’s numerous antique tractors that the FJ ute is Reg’s old ute. I accept Craig Simpkin’s evidence that the FJ utility is Reg’s vehicle and not an asset of the plaintiff.
[144] Item 56 is a Caterpillar 950 wheel loader. This piece of machinery is not in the 2012 financial statements, exhibit 86. Nor is it included as an asset in the 2013 financial statements, exhibit 59 pages 631-654. Curiously, however, repairs and maintenance for the 950 wheel-loader are claimed as expenses both in the 2012 and 2013 financial years. As the wheel loader is not included in the depreciation schedule for the company, it seems to me that this is another example of private expenditure being included as an expense of the company to calculate the company’s taxable profit. That practice appears to have continued over the years. For example, in 2021 repairs and maintenance were claimed on the 950 wheel loader in Gunderlong’s financial statement in Exhibit 59 pages 1565-1870. While the plaintiff’s submission refers to the Cat 950 loader being included in the 2022 financial statements of the Simpkin Family Trust, it is not included in the depreciation schedules to that return (see Exhibit 59, pages 1875-1881).
[145] Craig Simpkin’s evidence concerning the 950 wheel loader at T4-39 is that Reg bought the 950 wheel loader years ago:
‘…I was a little kid when he bought that loader. I remember it turning up, and I just assumed it was dad’s, dad wanted me to keep it. He sort of loved that loader and --- and I just assumed it was dad’s. … Well, before he died he wanted me to keep the loader and look after it for him but now I don’t know how that works. But yeah.’
[146] I accept Craig Simpkin’s evidence in this regard that his father had a sentimental attachment to the loader which he bought years ago when Craig Simpkin was very young and that it is not an asset of Gunderlong but rather an asset of Reg’s. Gunderlong has had numerous pieces of machinery, at one stage 6 or 7 excavators, but Reg’s attachment to the 950 wheel loaded supports the finding of Reg’s ownership.”15
Ground 4
Ground 4 seeks to challenge the finding that Craig Simpkin and Reg Simpkin were the owners of a number of items (60, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93 and 94), rather than Faye Simpkin.
In part, the argument under this ground is that the primary judge’s conclusion was inconsistent with Craig Simpkin’s pleaded case, which was that, save for items 74, 75, 76, 81, 83 and 84, these items were owned by Reg Simpkin and formed part of his estate, not that Reg and Craig owned them jointly.
The primary judge found:
“[149] Item 59 is a Super Dexter V8 petrol powered tractor. By the defendant’s pleading, it is located on Craig’s land and is owned by Craig personally. Craig Simpkin’s evidence is at T4-40. Craig’s evidence is as follows:
‘I didn’t really keep a record of any of them things. Dad was loving buying tractors and I love tractors as well, especially the track machine and dad asked me for some money at times to help buy some and if I liked one I would give him some money to get them … because he was spending his super money and he didn’t want to keep spending it all.’
[150] Craig Simpkin explained that the tractors never got used, they would just sit in the shed, that they were his father’s hobby and he would take tractors away for ‘tractor treks’. Craig Simpkin said that his brother Troy was also part of it, but he wasn’t as interested in tractors. Craig Simpkin said, and I accept that he gave his father money to buy that tractor, that is the Super Dexter V8 petrol powered tractor. According to Craig Simpkin’s evidence, and I accept his evidence, he put in roughly $100,000 to tractors over the years, pulling money off his home loan and giving cash to his father to buy the tractors and his father bought many tractors. I accept Craig Simpkin’s evidence that ‘And one time dad had a road train and went away and picked up a big heap of tractors and yeah, I helped him bring it back.’
[151] Exhibit 71, the video evidence at the trial showed at least 14 antique tractors in Craig Simpkin’s shed. I accept that the purchase of the Super Dexter V8 petrol powered tractor and the tractors the subject of Items 60 the Ferguson grey and gold tractor, Item 72 the McCormack F12 black tractor, Item 73 the Twin City tractor, Item 74 the Fordson Major Half Track tractor, Item 75 the Fordson Major County Full Track crawler tractor, Item 77 the McCormack W12 tractor, Item 78 the Fordson Diesel steel wheel tractor, Item 79 the McCormack Deering 1020 dark blue tractor, Item 80 the Chamberlain 40 KA tractor, Item 81 the Landz Bulldog blue tractor, Item 82 the Hart Parr 18-28 Oliver tractor, Item 83 the Field Marshall green tractor cartridge start, Item 84 the John Deere 60 tractor, Item 85 the McCormack Deering red W30 tractor, Item 86 the Case Steel Wheels, Item 87 the little Fordson N ACCO tractor, Item 88 the Little Green cork (back ACCO) tractor, Item 92 the 1920s Hart Parr 18-36 tractor, Item 93 the red tractor McCormack Farmall (Sid painted) and Item 94 the Fowler Dozer DK green tractor all fall into the same category. I similarly find that Items 89 the Big Lister stationary antique engine, Item 90 the Ronaldson and Tippet stationary antique engine and Item 91 the Imperial stationary engine also fall into the same category. That is, the tractors and machines were owned by Reg and Craig Simpkin.”16
Ground 5
Orders
As none of the grounds of appeal have been made out, I would dismiss the appeal, with costs.
BRADLEY JA: I agree with the reasons of the Chief Justice and with the order her Honour proposes.
CROWLEY J: I agree with Bowskill CJ.
Lee v Lee (2019) 266 CLR 129 at [55]; Wang v Hur [2024] QCA 126 at [23] and [24]. ↩
Underlining added. ↩
Citing Krishell Pty Ltd v Nilant (2006) 32 WAR 540 at [77] and Trendtex Trading Corporation v Credit Suisse [1982] AC 679 at 703. ↩
Defence at [14] (AB 104). ↩
Reasons at [21] and [22]. ↩
Reasons at [23], exhibit 65 (AB 378-380). ↩
Reasons at [24]. ↩
This is the affidavit the subject of the second preliminary point. ↩
Reasons at [88]. ↩
Reasons at [101]. ↩
Reasons at [107]. ↩
Reasons at [113]-[118]. ↩
Reference was also made to ss 84 and 102 of the Evidence Act 1977 (Qld). ↩
Gunderlong Mackay Pty Ltd
Simpkin [2025] QCA 263
(2019) 266 CLR 129
(2006) 32 WAR 540
The appeal was dismissed with costs. Gunderlong’s purported appeal was dismissed because it was not a party to the appeal and had not obtained the liquidator’s consent to prosecute it ([5], [42]).
Faye Simpkin and Mackay Capital Pty Ltd appeal against the judgment (save for orders 1, 2, 3 and 4, which are in their, or Gunderlong’s, favour) on the following grounds:
Reasons at [9]. ↩
Underlining added. ↩
Underlining added. ↩
Reasons at [71]. ↩
See [60] of the respondent’s submissions. ↩