Haselgrove v Lavender Estates Pty Limited

Haselgrove v Lavender Estates Pty Limited - [2009] NSWSC 1076 - NSWSC 2009 case summary — Zoe

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4402/09 RONALD JAMES CLEVELAND HASELGROVE V LAVENDER ESTATE PTY LIMITED JUDGMENT 1 This is an application under s 233(1)(a) and/or s 463(1)(k) of the Corporations Act 2001, for the winding up of Lavender Estates Pty Limited and for the appointment of Mr Peter Lanthois and Mr Christopher Powell from KordaMentha as liquidators of the company. 2 The application is brought by Mr Haselgrove. He is the holder (as executor and trustee of the estate of the late David William Delmont) of 62.5% of the shares of Lavender Estates. Probate of the late Mr Delmont's will was granted to Mr Haselgrove on 17 June 2008. Mr Haselgrove was appointed a director of Lavender Estates on 21 August 2008. 3 The second defendant, Ms Gibson, is the other director of the company and was, from the date of Mr Delmont's death in January 2007 until Mr Haselgrove's appointment, the sole director of the company. 4 Pitlochry Guesthouse Pty Limited, the third defendant, is the holder of the remaining 37.5% of the shares of Lavender Estates. Ms Gibson is the sole shareholder and director of Pitlochry (as described in a proxy form lodged by Pitlochry for the purposes of a general meeting recently sought to be convened by Mr Haselgrove, that proxy form being part of Annexure B to her solicitor (Mr Maxwell)'s affidavit affirmed 24 September 2009 in these proceedings). Insofar as Ms Gibson's affidavit affirmed 3 September 2009 in these proceedings describes her shareholding in Lavender Estates as 37.5%, this appears, strictly speaking, to be incorrect. Pitlochry is the holder of the minority shareholding in Lavender Estates and Ms Gibson's interest in the company derives from her shareholding in Pitlochry. Pitlochry and Ms Gibson both oppose any orders being made for the winding up of Lavender Estates. 5 The main asset of Lavender Estates is a property known as Broadview Apartments, which comprises a number of units rented out by the company for holiday rentals and a separate cottage on the property. Ms Gibson and the late Mr Delmont had, for a number of years, been involved in the renovation of Broadview Apartments, in the course of which they were pursuing a proposed plan for strata subdivision of the property. 6 The winding up application is supported by Mrs Heather Anne Delmont, the widow and one of the beneficiaries under the will of the late Mr Delmont, in whose favour I made an order for provision under the Family Provision Act 1982 in separate proceedings earlier this year (Gibson v Haselgrove; Delmont v Haselgrove [2009] NSWSC 496). (At the same time, I made an order for provision under that Act in favour of Ms Gibson in separate proceedings which were heard at the same time as the proceedings brought by Mrs Delmont.) I gave leave for Mr Harris SC, who had appeared for Mrs Delmont in the Family Provision Act proceedings, to appear as amicus curiae on this winding up application. 7 In considering this application, I have been conscious of the fact that I have some familiarity with the historical background to this application which derives from my hearing of the respective Family Provision Act proceedings. It was submitted by Counsel for both Ms Gibson and Pitlochry, Mr Hyde, and I accept, that it would be inappropriate and in error for me to have regard to matters or inferences arising from the history of the matter drawn from those proceedings and not in evidence before me in these proceedings. I note, however, that on occasion reference was made in submissions by Counsel to matters relating to those earlier proceedings (and, indeed, some of the evidence put before me on this application relates directly to the evidence adduced in those proceedings). In these reasons I have, therefore, sought to identify where matters put to me in submissions were not referable to matters in evidence before me in these proceedings and I have limited my consideration to the evidence before me on this application. 8 Mr Haselgrove seeks declarations that: · the affairs of the company have been conducted in a manner contrary to the interests of the members as a whole or oppressive to, unfairly prejudicial to, or unfairly discriminatory against a member or members whether in that capacity or any other capacity (for the purposes of s 232(d) and (e) of the Corporations Act 2001); · Ms Gibson has acted in the affairs of the company in her own interests rather than in the interests of the members as a whole and in any manner whatsoever that appears to be unfair or unjust to other members (for the purposes of s 461(1)(e) or (s 461(1)(g) of the Act); and · it is just and equitable that the company be wound up. 9 The three bases on which Mr Haselgrove seeks a winding up order, in summary, are that:

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13 Mr Hyde submits that this is not a case of deadlock between the directors and that there is no evidence from which such a conclusion or inference could properly be drawn. He submits that the evidence shows that at least since 5 June 2009 there has been a degree of cooperation between the directors and shareholders of the company, referring in the main to a consensus apparently reached between Mr Haselgrove and Ms Gibson in August this year as to the manner in which Broadview Apartments should be sold (namely by way of strata sub-division and sale of the subdivided units, which Ms Gibson now firmly believes will maximise the value to the company of the building). Weight is placed by Mr Hyde on a letter dated 12 August 2009 from the solicitors acting for Mr Haselgrove to the solicitors acting for Ms Gibson, Exhibit 3, in which it was noted that agreement in relation to the proposed means of sale had been reached and in which Mr Haselgrove's solicitors expressed the view that it was not in the best interests of the company to have a liquidator appointed (due to the expense likely to be incurred as a result). 14 It is submitted by Mr Hyde that the only reason this application for winding up is being made is that pressure has been applied by Mrs Delmont (or her representatives) and that the executor has formed the view that it is too hard being "in the middle" between Ms Gibson and Mrs Delmont, so to speak. I note that this is a submission not based on any evidence before me in these proceedings but rather on what was said from the bar table on an earlier occasion by Mr Lawson in respect of a motion filed on behalf of Mrs Delmont in the Family Provision Act proceedings for the appointment of a trustee for sale of the shares held by Mr Haselgrove. That motion (which in any event Mr Hyde's clients have asserted is unable to be dealt with as I am are now functus officio having delivered final orders in those proceedings) is not before me at present and I do not think it appropriate to have regard to what was said in that context to draw any inference as to Mr Haselgrove's motivation on the present application, since he was not required for cross-examination and not challenged in this respect on the matters to which he deposed in his affidavit. Issues 15 The issues raised before me are as follows:

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18 Circumstances in which winding up on the just and equitable grounds has been justified include where access to the books and records of the company has been denied or where one shareholder has been excluded from a major decision (McMillan v Toledo Enterprises International Pty Limited (1995) 18 ACSR 603 at 615, 619 per Beazley J as her Honour then was; Stapp v Surge Holdings Pty Limited (1999) 31 ACSR 35 at 44 per Katz J). · Denial of Access 19 Mr Haselgrove is a director and as such has both statutory and fiduciary duties in relation to the affairs of the company. There was (and could have been) no suggestion by Mr Hyde that Mr Haselgrove was not, from the date of his appointment, entitled to access to the books and records of the company. The complaint made by Mr Haselgrove is that, despite various requests for information from Ms Gibson and the individuals to whom she referred Mr Haselgrove (including both the company's former bookkeeper and its accountant), it was not until Mr Haselgrove caused a notice to produce and then subpoenas to be issued in the Family Provision Act proceedings for records from various entities including the company's accountant (Mr Robinson, whom Ms Gibson had put forward as a preferred alternate director for Mr Haselgrove) that any documents of the kind he was seeking were produced. Any documentation produced in that manner would obviously be limited to the time at which it was produced. There is no suggestion that there has been an ongoing production of material of that kind. 20 Mr Haselgrove has deposed (in his affidavit sworn 28 August 2009) to the difficulties perceived by him in attending to his obligations as a director of the company. There can be no real doubt that there have historically been difficulties encountered by Mr Haselgrove in obtaining access to books and records (although part of that difficulty, I would infer from the correspondence, may have been as to the state of the company's records from time to time). 21 A short history of events, as disclosed in the correspondence annexed to Mr Haselgrove's affidavit in these proceedings, demonstrates the problems encountered by Mr Haselgrove. 22 As at 5 December 2007 (before Mr Haselgrove's formal appointment as executor but at a time when it was contemplated that an application for probate would be made), his solicitor was writing to Ms Gibson's solicitors for information in relation to the company and its financial position (Annexure A p 31). 23 A further letter was sent on 10 December 2007 requesting the information, which it was said was necessary in order to finalise the probate application. 24 Financial reports were apparently received from Mr Robinson during January 2008 but as at March 2008 Mr Haselgrove's solicitors were writing again to Ms Gibson's solicitors noting there were some inconsistencies in the documents provided and seeking information as to various financial matters (Annexure A p 43). 25 Several requests were made by Mr Haselgrove from April to November 2008 to each of Ms Gibson, the National Australia Bank (with whom the company had loan arrangements in place) and Mr Robinson to obtain relevant financial information for the company. 26 In June 2008, Mr Haselgrove's solicitors requested information as to the company's business cheque payments and copies of bank statements (Annexure A p 46). 27 In September 2008, Mr Haselgrove was still pressing for advice as to what was happening with production of or access to the company's MYOB files, which he had been told were on Ms Gibson's laptop (Annexure A p 77). By that stage, it seems that he had been sent the 2006 financials and tax return, revised draft 2007 financials and tax returns, and some information in relation to the company's loan position. 28 In October 2008, Mr Haselgrove (Annexure A p 88) requested that Mr Robinson treat as a matter of urgency his request for the 2007/2008 accounts to be prepared. 29 There was a succession of correspondence in October/November 2008 in relation to information sought with regard to the company. Mr Haselgrove's solicitors wrote two letters on 12 November 2008 (Annexure E p 9-11) complaining that the actions of Ms Gibson were not allowing their client to administer his duties as executor and director and noting that advice from the National Australia Bank was that Ms Gibson had refused to sign the bank authority form to enable Mr Haselgrove to have access to the account. 30 Further correspondence was issued on 26 November 2009 and in November 2008, Mr Haselgrove served a notice to produce on Ms Gibson in the Family Provision Act proceedings seeking production of financial information in relation to the company. 31 In December 2008, agreement was apparently reached with Ms Gibson for the production of financials and other information relating to the company and letters were sent requesting information from various entities. Subpoenas were issued in late February 2009 at Mr Haselgrove's request (copies of which are Annexure F) on the bank, Mr Robinson's firm, Ms Gibson and the real estate agents acting in relation to the Broadview Apartments. I can only assume that it was necessary to do so because of concerns that all relevant information may not have been provided by then to Mr Haselgrove.

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32 There was further correspondence in March 2009, in which Mr Haselgrove sought production of the documentation and information the subject of the Notice to Produce and subpoena. The response from Ms Gibson's solicitors, in effect, was to assert that all documents had been produced under the Notice to Produce and, rather unhelpfully, that "As we have also pointed out previously, your client is a Director of the Company and is aware of the Company's accountants to whom he has access" (Annexure E p 30). 33 By late March 2009, Mr Haselgrove was still pressing for the signed bank authorities (which Ms Gibson's lawyers suggested had been forwarded with a letter sent by them on 12 January 2009). Mr Haselgrove's solicitors had apparently not received any such authorities (and Mr Haselgrove still maintains that no signed bank authority has been provided to him). 34 By April 2009, Mr Haselgrove's solicitors were again pressing for trading information to be provided in answer to the subpoena. 35 Mr Haselgrove's affidavit filed in support of his winding up application does not detail subsequent requests for financial or trading information, though he does assert (and this does not seem to be denied by Ms Gibson) that he has not been made a signatory to the bank account. Mr Haselgrove has sworn that as at the date of his affidavit Ms Gibson had failed and/or refused to complete the relevant bank forms to make Mr Haselgrove a signatory to the company account. 36 Of particular concern to me are Mr Haselgrove's statements on oath that: (30) To date Ms Gibson has failed and/or refused to complete the relevant bank forms to make me a signatory to the Company accounts. (57) Since my appointment as director to the Company, I have been unable to gain any control over the Company and/or the Company finances and I have been unable to stop Ms Gibson from accessing Company funds for her own personal use. I have no information as to the financial affairs of the Company apart from the information that I have obtained under Subpoenas. I am not kept abreast of expenditure incurred on behalf of the Company, income received by it and I am not in a position to know what the Company's assets and liabilities are at any given time. I cannot therefore, discharge my duties as a director under the current arrangement and I certainly cannot monitor whether or not the Company ever trades whilst insolvent. 37 There are two matters which illustrate the significance of the difficulties encountered by Mr Haselgrove to date in obtaining the financial and other information he has requested. 38 The first is that Ms Gibson has herself acknowledged the difficult (perhaps one might even say precarious) financial position of the company and the second is that Ms Gibson has had sole control over the bank account funds and does not deny that those have been used for mortgage payments in respect of a property occupied by her rent free and owned as to 50% by her and as to 50% by Mr Haselgrove as trustee for the estate. (Insofar as it was submitted by Mr Harris that Ms Gibson's affidavit fails to disclose that she is earning rental from that property, and hence that it is incorrect to assert as she does that there is no other income from which mortgage repayments could be met, there is no evidence before me of those matters in these proceedings and I do not take them into account. It seems to me, in any event, that whether or not Ms Gibson has other income from which she could make the mortgage repayments is irrelevant to the question whether, in utilising company funds to do so, she has acted in her own interests and not in the interests of the company.) 39 As to the first of those matters, I was referred to Ms Gibson's affidavit affirmed 14 November 2008 in proceedings 3063/08 in this Court (Annexure D to Mr Haselgrove's affidavit) in which Ms Gibson deposed as at that date that the company was unprofitable as rental income was not meeting expenses and interest payments (para 64) and that the company overdraft limited was constantly exceeded (para 75). 40 In Ms Gibson's affidavit of 3 September 2009 in these proceedings she deposes that she has used her personal funds in July 2009 to bring the company account back into order (para 7) (and asserts that the company is substantially in debt to her rather than it being the case that she is misusing the financial resources of the company). 41 As to the second of these matters, the intermixing of personal and company funds and liabilities (since Ms Gibson also acknowledges that the company funds are still being used to pay the mortgage repayments over the Nana Street property) is a clear indication in my view of the need for Mr Haselgrove not to be excluded from access to the company's banking arrangements and funds, and for him to have an ability to control or monitor expenditure in a more direct way than simply being provided with bank statements from time to time (which on their face do not seem in each instance to disclose the purpose of the expenditures). 42 It was said by Mr Hyde that it was not open to Mr Haselgrove to challenge the evidence given in Ms Gibson's affidavit as to the purpose of withdrawals from the company bank account (having chosen not to require her for cross-examination). (Similarly, I note that no challenge was made to the evidence of Mr Haselgrove as to the ongoing difficulties he perceives he is experiencing in access to financial or other information in relation to the company other than reference to the provision of bank statements and reliance on Mr Haselgrove's own assertion in correspondence that he is keeping a close record of expenditure. There is no suggestion that Mr Haselgrove has been given access to the bank accounts.)

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43 Accepting that the expenditure in the bank statements was for the purposes stated by Ms Gibson, the fact remains that unless Mr Haselgrove is a joint signatory on the bank account he has no means of directly approving or monitoring expenditure out of the company's funds as it occurs. 44 Ms Gibson's affidavit raises a (quite proper) concern on her part as to the suggestion, which emerged from earlier correspondence, that Mr Haselgrove intended to use funds in the company's account to pay his legal fees (in the order of about $3,500) incurred in connection with the administration of the estate. (This, of itself, would seem to exhibit a recognition on Ms Gibson's part, or that of her lawyers, that the conduct of either director in attending to payment out of company funds of personal expenses, whether or not those be incurred for the benefit of the estate, is not appropriate.) 45 I note that there is no suggestion in the correspondence that, issue having been taken by Ms Gibson's lawyers in relation to any such expenditure, Mr Haselgrove intended to persist in such a course of conduct if made a signatory to the account and it would be extraordinary were he now to do so. 46 The gravamen of Ms Gibson's refusal to permit Mr Haselgrove access to or any direct control over the company's bank account seems to me to emerge from the statement made in her affidavit that "If both Mr Haselgrove and myself were authorised to sign cheques individually I would have no control over the conduct of the company's business". 47 Therein, as I see it, lies the nub of Ms Gibson's position, as it emerges from her own affidavit, in relation to the state of affairs of the company. Ms Gibson does not see it as "logical" for Mr Haselgrove to manage the affairs of the company (which she considers she is in a better position to do), nor can she see any reason why Mr Haselgrove would need to utilise the company funds "other than for his own benefit". 48 Reliance was placed by Mr Hyde on a letter dated 12 August 2009 (Ex 2) from Mr Haselgrove's solicitors in which they asserted, to the solicitors acting for Mrs Delmont who had apparently expressed concerns as to Ms Gibson's control over the company, that he continued to keep a close record of the company's expenditure. Apart from the fact that it is by no means apparent to me how Mr Haselgrove thought he could make such an assertion at a time when, at the very most, what he seems to have had access to were bank statements showing deposits and withdrawals (the purpose for which was not necessarily apparent on the face of the statements), insofar as it may be suggested by Ms Gibson that he should be satisfied with that limited information, I do not agree. 49 In the circumstances outlined above, where there is (on Ms Gibson's own evidence) a concern as to the ability of the company to keep its overdraft within approved limits, apparently necessitating the injection by her of personal funds to do so, I think it is undesirable that sole control of the company's funds be in the hands of only one of the company's directors and that a refusal to permit Mr Haselgrove access thereto does smack of oppression of the interests of the majority shareholder and/or conduct prejudicial to the interests of the members as a whole. · Exclusion from Management 50 The correspondence annexed to Mr Haselgrove's affidavit similarly sets out a sorry saga of complaints in relation to Mr Haselgrove's perceived exclusion from the management of the Broadview Apartments. 51 Mr Haselgrove complains that Ms Gibson has, from time to time, taken unilateral decisions in relation to the management of the company - including listing the property for sale or entering into marketing agreements in relation to the property. While Ms Gibson, for her part, maintains that she is the most logical person to make such decisions, that involves a clear disregard of Mr Haselgrove's understandable concern to be in a position to comply with his duties as a director. 52 Mr Lawson pointed to correspondence in late July 2008 in which Ms Gibson was indicating her rejection of offers on behalf of the company without any consultation with Mr Haselgrove as her co-director (Annexure A p 6). Mr Lawson also points to Annexure A to Mr Maxwell's 4 September 2009 affidavit, which is a copy of a letter dated 13 July 2009, as showing a meeting in relation to proposed strata sub-division of the property - a meeting at which Mr Haselgrove was not present. However, it is not clear to me from the evidence whether Mr Haselgrove was or was not given notice of that meeting. 53 Ms Gibson refused to consent to the appointment of the alternate director proffered by Mr Haselgrove (he being the deceased's brother-in-law) for reasons she does not appear to have explained in any detail. (Although Ms Gibson did indicate she would consent to Mr Robinson's appointment as alternate director, it might be thought to be understandable in light of the difficulties Mr Haselgrove had already experienced in obtaining information from him that Mr Haselgrove would press for the appointment of an alternate director in whom he had perhaps more confidence and who might be seen as more independent from Ms Gibson.) 54 By letter dated 7 October 2008 (Annexure A p 58) Ms Gibson's lawyers made it clear that she would not consent to the appointment of the alternate director and would not attend any meeting called for approval for his appointment (asserting that any resolution passed at any such meeting would be ineffective). While it may readily be acknowledged that Ms Gibson was entitled to act in accordance with her legal rights, and not approve Mr Haselgrove's alternate or attend a meeting if she so chose (just as Ms Gibson has been in a position properly to raise procedural issues in relation to at least one other meeting called by Mr Haselgrove), it does highlight the apparent willingness of Ms Gibson, at least on one occasion when it so suited her personal interests, to frustrate an attempt by the majority shareholder (and her co-director) to take action with which Ms Gibson did not personally agree. 55 Mr Lawson relies on this as indicating the potential (were Ms Gibson to choose in the future to be uncooperative) for Ms Gibson to cause difficulties in the ongoing management of the company. The submission made is that, given the Articles of Association, which require a quorum of two members personally to be in attendance for a general meeting of the company, if Ms Gibson wished to take action to frustrate the majority shareholder taking a particular course of action then it would be easy for her to do so simply by not attending the meeting. 56 I note that there was a notice of meeting issued by Mr Haselgrove, after this application had been commenced, to consider a special resolution to wind up the company. It was noted by Ms Gibson's lawyers that less than the requisite notice of a meeting under s 249H had been given but that Ms Gibson had nevertheless submitted a proxy for that meeting (not taking any point as to the requirement for personal attendance under the Articles, but nevertheless asserting the invalidity of the meeting by reason of the lack of sufficient notice). 57 I do not place weight on the possibility that, if she were to choose to do so, Ms Gibson might be in a position to frustrate attempts by the majority shareholder to convene a general meeting of the company in the future. This seems to me to be an exercise in speculation. (I note, however, that the import of what Ms Gibson says in her latest affidavit in effect as to her superior experience or ability in management of this company compared with that of Mr Haselgrove, and the history of the communications between them or their lawyers as evident in the material annexed to Mr Haselgrove's affidavit, might lead to some scepticism as to the willingness of Ms Gibson to work consultatively with Mr Haselgrove in future at least if she disagrees with any course he might propose to take.) 58 I am satisfied on the evidence that Mr Haselgrove has been impeded from inclusion in the day to day management of the company to date and, were that to continue, this would be a ground on which it would be appropriate to wind up the company. Exclusion from important management decisions relating to the proposed strata title subdivision and/or sale of the principal asset of the company would in my view be oppressive and prejudicial to his interests as the majority shareholder and not in the interests of the company as a whole. (Ms Gibson's conduct, for personal reasons, in opposing the appointment of an alternate director who would seem to be in a position to assist Mr Haselgrove in participation in management in a cost effective manner is also a matter of some concern to me but not one which would lead me to consider that the company should be wound up.)

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(iii) Diversion of funds for Ms Gibson's own benefit 59 Where a director has been shown to prefer his or her own interests to those of a significant section of the members, then there is authority that the director has not been acting in the interests of all of the members and thus cannot be said to have been acting in the interests of the members as a whole (Bowen CJ in Eq in Re Cumberland Holdings Limited (1976) 1 ACLR 361). 60 Ms Gibson's affidavit evidence was not challenged in relation to the transactions shown in the company's most recent bank accounts and I accept that she is not utilising company funds for payment of any personal expenses other than the Nana Street mortgage repayments. However, it is clear from Ms Gibson's affidavit that she is continuing to divert money from the company to payment of amounts for the Nana Street mortgage and there is no evidence before me as to any arrangement reached by her with Mr Haselgrove which would authorise such expenditure. 61 Ms Gibson's affidavit justifies this expenditure on the basis that there is no other way for her to meet those payments (para 6), that she has contributed time and money to the company and that there is some benefit to the estate in her so doing. In that regard, Mr Harris submits that, as the orders made in the Family Provision Act proceedings brought by Ms Gibson (which orders are reproduced in Mr Haselgrove's affidavit in these proceedings) allow Ms Gibson the opportunity to have the Nana Street property transferred to her, any money paid by the company for that mortgage is effectively a payment out for Ms Gibson's benefit. There is some force in that submission but in any event the real difficulty I have with Ms Gibson's conduct in this regard is that there is no evidence of any arrangement by which, as a director of the company, she has been authorised to expend payment of company funds at least partially for her own benefit. The fact that she has contributed her time and money to the company does not alter that position. 62 It is submitted by Mr Hyde that this could be regularised by means of the establishment of a company loan account. There may be a number of ways in which arrangements could be put in place to justify such payments out. However, there is no evidence that the payments have been authorised by reference to the establishment of a company loan account in Ms Gibson's favour or that any other arrangement permitting her to do so has been agreed. 63 In the absence of evidence of an appropriately agreed and recorded arrangement which has been put in place with the company in relation to those payments, it is a matter of concern that Ms Gibson, as a director, has sole control of the company's bank account and is continuing to divert company funds for her own use. (In relation to the moneys she has advanced to the company in recent months in the order, as I understand it, of $8,000, it is similarly of concern that there is no evidence as to the terms on which any loan, assuming that it be a loan to the company, is repayable to Ms Gibson.) 64 It is submitted that it is clearly contrary to the interests of the members as a whole for Ms Gibson to divert money out of the company. I agree. On its own, this would be sufficient to justify the making up of a winding up order. (iii) Deadlock 65 Another of the principal categories in which relief under the just and equitable ground has been given is where there is a deadlock between the members or controllers of the company (eg Kelson Investments Pty Limited v KGE Electric Pty Limited (1993, SC NSW unreported); Ebrahimi v Westbourne Galleries Pty Limited [1973] AC 360 at 383; Re Yenidje Tobacco Limited [1916] 2 Ch 426).

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66 Mr Harris submits that the evidence shows a clear deadlock as to whether and how Broadview Apartments should be sold and as to the future of the company. Mr Hyde denies that there is an available inference (or any evidence) of a deadlock and points to the evidence of what he describes as "a degree of" co-operation between Ms Gibson and Mr Haselgrove since June 2009 as establishing that there is no deadlock. 67 What the evidence in my view shows in this regard, at best, is that in or about August 2009 consensus was reached between Mr Haselgrove and Ms Gibson as to the steps proposed to be taken for the Broadview Apartments to be sold. (It seems not to be disputed that it is necessary for the company to sell the building and to be wound up in due course. The issue seems to be whether the company should first pursue a strata title application and then sell the individual units as Ms Gibson suggests as opposed to the sale of the building in one line.) It is not suggested by Mr Hyde that any such consensus is or was binding on Mr Haselgrove. 68 The subsequent conduct of Mr Haselgrove in commencing proceedings for the winding up of the company (in advance of any subdivision process) and in purporting to call a general meeting to consider and, if thought fit, pass a special resolution for the winding up of the company in my view gives rise to the irresistible inference that Mr Haselgrove (whether rightly or wrongly in Ms Gibson's view; and whether as a result of pressure from Mrs Delmont, as suggested by Mr Hyde, or because of factors connected with the proposed sub-division, which might conceivably include the potential length or uncertainty of the sub-division process and cost of any sub-division) has now changed his mind. No other inference seems to me to be possible, since it cannot sensibly be thought that a company in liquidation would be in a position to pursue the strata title sub-division application and carry out the work involved therein. 69 Mr Hyde says that all the evidence shows is that there was an historical failure to provide information and that Ms Gibson had historically been acting on her own behalf in relation to the disbursement of company funds but that there is no evidence to show a change of mind on the part of Mr Haselgrove in relation to what is to be done with respect to the Broadview Apartments and that it was incumbent on Mr Haselgrove to put that evidence before the court. 70 Mr Hyde is critical of the fact that Mr Haselgrove's affidavit does not elucidate the reasons for any such change of mind (nor does he in terms say that he has changed his mind in that regard). (On that matter it might be thought that had Ms Gibson chosen to attend the general meeting convened for the purposes of considering the winding up resolution she could have ascertained directly from Mr Haselgrove his position in this regard.) 71 Reliance is also placed on Exhibit 3 to show that as at 12 August 2009 it was Mr Haselgrove's view that it was not in the company's best interests for a liquidator to be appointed, having regard to the cost involved. That may well be the view Mr Haselgrove then had. However, it cannot seriously be suggested that the conduct of Mr Haselgrove (in now pursuing the opposite course) does not clearly evidence a change of position on his part. 72 It is submitted by Mr Hyde that this is not a case of deadlock between directors but of deadlock between the beneficiaries under the late Mr Delmont's will (including, as I understand it, Ms Gibson who, though not a beneficiary, has an order in her favour for provision out of his estate). There may well be a deadlock at both levels but, as Mr Hyde noted, the circumstances of the Family Provision Act proceedings are not those which are before me on this application. 73 At the very least there is a clear difference of opinion between the two directors (and between the majority and minority shareholders) as to whether or not the company should now be wound up. That seems to me to be a sufficiently fundamental disagreement between the members to justify an order winding up the company. It goes to the heart of whether the company should continue to trade and carry on business. It cannot sensibly be suggested that there are not irreconcilable differences between the members (and the directors) in those circumstances. (I also think it would be somewhat disingenuous if it were to be suggested that, in circumstances where the minority shareholder's representative (and co-director), Ms Gibson, has firmly expressed the view (in paragraph 14 of her affidavit) that it is in the best interests of the shareholders of the company that the apartments be sold after the approval of a strata sub-division of the property but the majority shareholder and co-director proceeds, in light of that stated view (and no doubt having had regard to Ms Gibson's solicitor's affidavit which sets out a financial analysis as to why the sale in one line is not in the interests of the shareholders or beneficiaries), to seek an order winding up the company, an inference should not be drawn from those circumstances that there is now a deadlock as to the optimum process to be adopted for the sale of the Broadview Apartments, whatever the position may once have been. Clearly, it is open to the parties to change their minds in that regard, since I note that Ms Gibson's stated view in 2007 was that a sale in one line was the best course to follow.) 74 The stance taken by Ms Gibson in this regard can be tested by reference to the recognition by Mr Hyde, when I posed this hypothetical scenario, that if a notice of meeting had been sent out in relation to the issue of sale of the property (not the winding up of the company) and there was then a deadlock, Ms Gibson might support a winding up application. 75 It is hard to avoid the conclusion that if it was truly thought that there was no deadlock or potential deadlock between the directors/members on this issue then Ms Gibson would have made herself or her legal representatives available to attend or discuss her position in relation to the sale of the Broadview Apartments at the meeting convened by Mr Haselgrove (or done so thereafter through her lawyers) rather than waiting for the hearing of this application and then, in effect, submitting that any application is premature because there is no deadlock (there not having been a meeting formally to consider the strata subdivision and sale of the Broadview Apartments). 76 I consider that the inference is open to be drawn on the evidence before me that there is a deadlock between the shareholders (and directors) of the company as to the course now to be taken by the company and I so find. (iv) Failure of substratum 77 Reliance was also placed by Mr Lawson, in support of the application for winding up, on Strong v Brough & Son (Strathfield) (1991) 5 ACSR 296 at 300 in which Young J (as his Honour then was) said: … if a company is formed for one purpose and one purpose alone, and if that purpose is accomplished, or, alternatively, if its accomplishment has become impossible, then the shareholders are entitled to a winding up and a return of their investment. 78 In determining whether a company was formed for one purpose, the court may have regard to the constitution and other evidence going to the understanding of the members. In International Hospitality Concepts Pty Limited v National Marketing Concepts Inc (No 2) (1994) 13 ACSR 368 at 370, Young J held that the purpose of a company in those circumstances was to be established objectively. 79 Mr Lawson notes, by reference to the company's Memorandum and Articles of Association (Annexure B to Mr Haselgrove's affidavit), and it is not disputed, that Lavender Estates was initially formed in 1956 for the object of carrying out printing and advertising activities, and other related or incidental activities (and not for the purposes of property development or the leasing of holiday rental properties, that being the enterprise in which the company is now involved). 80 Ms Gibson's affidavit deposes to the fact that the only business of Lavender Estates is the rental of the Broadview Apartments. Ms Gibson says she has been involved in the management of those apartments since they were renovated and made available for letting by Lavender Estates (a fact on which she relies for her conclusion that it is logical that she should manage the affairs of the company, rather than Mr Haselgrove who she says has no experience at all in relation to the business). 81 Although there has clearly been a change in the underlying business of the company from that contemplated when it was established, it is recognised that the intentions and understandings of members of a company may change over time (Santow J in Re NRMA Limited (No 1) (2000) ACSR 595 at 619-620).

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(v) Should Lavender Estates be wound up? 83 I have no doubt that the historical conduct of Ms Gibson in denying or obstructing access by Mr Haselgrove to financial information in relation to the company of which he is a director and in excluding him effectively from the day to day management of the company would have provided a basis on which to wind the company up, whether pursuant to the oppression provisions relied upon or under the just and equitable ground. It cannot be the case that it is appropriate for Mr Haselgrove, as he has been in the past, to be forced to rely upon the coercive powers of the court in order to obtain information as to the company of which he is director. There is also sufficient evidence to warrant a finding that Mr Haselgrove has been improperly excluded from the management of the company and that his attempts to become involved have been met with obstruction from Ms Gibson. 84 It is said, however, that this conduct is purely historical and that since the judgment was handed down in the Family Provision Act proceedings there has been a "degree" of cooperation between Ms Gibson and Mr Haselgrove. 85 It is submitted by Mr Hyde, and I accept, that the historical conduct alone would not permit a finding that there is presently any oppressive conduct or unfairly prejudicial or discriminatory conduct. That said, Mr Haselgrove has deposed, albeit in general terms, to his perception as to continuing difficulties in the provision of information and exclusion from management and there appears to be a continued denial to give him access to the company's bank accounts (by the refusal or failure to make Mr Haselgrove a signatory to the bank accounts), which is the only practical way in which he might be in a position to exercise some control over the disbursement of funds. 86 As to the continuing diversion of funds from the company in order to meet Ms Gibson (and the estate)'s obligations under the Nana Street mortgage, in the absence of appropriate arrangements to permit that to continue (to which Mr Haselgrove would have to be a party) it must follow that Ms Gibson continues to act in her own personal interests and not in the interests of the company as a whole. It is said by Mr Hyde that since the judgment was handed down in the Family Provision Act proceedings, the only money that has been withdrawn from the company in Ms Gibson's own interest is money for mortgage payments made in respect of the Nana Street property in which Ms Gibson resides, whereas Ms Gibson has paid a significant sum of money into the bank account of the company and in fact that the company is likely to owe her money. 87 The fact that Ms Gibson may have no means personally by which to meet such repayments out of her own funds (or that Mr Haselgrove as executor of the estate may have no funds himself to meet the estate's share of those payments) is not to the point. Absent proper arrangements being put into place, then the consequence of any default under the mortgage must lie where it falls. The situation at present seems to be that Ms Gibson (just as she seemingly took the action initially complained of by Mr Haselgrove in expending company funds on the renovation of the Nana Street property and continued to incur expenses on the Broadview Apartments in face of his correspondence objecting thereto - Annexure A p 13) has formed the view that she is justified in expending company funds in this fashion and will continue to do so. 88 Those matters, in combination with the deadlock between the members of the company as to the future fate of the company, in my view justify the making of a winding up order. My view is strengthened by reference to the fact that there continues to be doubt as to the financial solvency of the company and the uncertainty as to what may be the company's obligations in relation to the deposit of Ms Gibson's own funds said to be necessary to bring the overdraft into order. 89 It is said by Mr Hyde that from the date of the judgment there has been a measure of co-operation between Ms Gibson and Mr Haselgrove and, as I understand it, that "processes" (by which I understand Mr Hyde to refer to the processes for the carrying through of the strata titles subdivision, since no other processes were identified by Ms Gibson) are in place in order to allow the orderly sale of the Broadview Apartments and the winding up of the company to occur over time. 90 It was also suggested (in response, as I recall, to a question posed by me) that if a notice of meeting to consider a resolution as to how to proceed in relation to the Broadview Apartments had been sent and a general meeting held and there was then a deadlock, that might support an application for winding up (but it was submitted that there was no basis on which I could infer at this stage that there was a deadlock). 91 I note that, while the discretion to wind up on the just and equitable ground is of a very wide nature, it is also a drastic remedy, which may well have an adverse impact on the value able to be realised from the sale of the company's assets (a matter addressed in Mr Maxwell's affidavit in these proceedings). 92 While I do not accept that there is not already a deadlock between the parties, I am concerned that the bulk of the matters of which complaint has been made by Mr Haselgrove relate to the so-called 'historical' dealings between the parties and that there would be other relief I could grant (in the way of orders designed to secure Ms Gibson's co-operation at least in relation to the bank account and financial information) which could potentially remedy the situation going forward without the need for the company to be wound up. That, however, will only be a band-aid solution if, as I consider, there is a true deadlock between the parties in relation to what is to be done with Broadview Apartments. 93 There have been cases in which the making of a winding up order has been deferred in order to allow parties the opportunity to see if agreement can be reached to obviate the need for a winding up (say whether a purchase of the minority's shares could be effected) (Re Wondoflex Textiles Pty Ltd [1951] VLR 458; Re Tivoli Freeholds Ltd [1972] VR 445; Re City Meat Co Pty Ltd (1983) 8 ACLR 673). I raised, though only briefly, during submissions with Counsel whether relief might be crafted in such a way as to give the parties the opportunity to put to the test once and for all whether there is a deadlock between them. While Mr Hyde considered that would be a novel approach, and it is fair to say that it was not welcomed with enthusiasm by Mr Lawson, it seems to me that this is a case where this would be appropriate. 94 Ms Gibson, through her Counsel, says it was incumbent upon Mr Haselgrove to explain why (if that be the case) he changed his mind in relation to the Broadview Apartments sale. Mr Haselgrove, for his part, relies upon the failure of Ms Gibson to attend the general meeting convened by him as indicative of an ability to frustrate the ongoing management of the company. I think it is appropriate that there be a final opportunity for the shareholders to consider the position in relation to the proposals for sale of Broadview Apartments, failing agreement on which the differences between the parties would seem to me to be stark and irreconcilable and it would be just and equitable for the company to be wound up. 95 Accordingly, I propose to make the winding up order which has been sought but to stay its operation for a period of, say, 30 days in order to allow a general meeting to be convened to consider and if thought fit pass the necessary resolution either for Broadview Apartments to be marketed and sold as soon as possible in one line or for the strata title subdivision to be pursued and the individual apartments sold on terms satisfactory to the directors of the company. If agreement is reached on either process, then I will vacate the winding up order and make, instead, orders intended to redress the difficulties Mr Haselgrove has experienced in relation to the conduct of the affairs and management of the company. If not, the winding up order will come into effect automatically on the expiry of that time period.

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Appointment of Liquidator 96 There was a further dispute between the parties (notwithstanding the spirit of co-operation said to have come into existence since June 2009) as to who should be appointed as liquidator in the event that I were to appoint a liquidator to the company. 97 The liquidator put forward by Mr Haselgrove (who himself resides in Adelaide) is a liquidator based in the Adelaide office of KordaMentha, a firm which also has offices in Sydney and elsewhere. It was submitted that this meant that the liquidator could more readily obtain instructions from Mr Haselgrove and that this would be cheaper then having a liquidator appointed from Sydney. 98 Mr Hyde had tendered a consent to act as liquidator from a Mr Andrew Purchas who was based in Sydney and whose firm's schedule of hourly rates was marginally less than that of KordaMentha. 99 Mr Harris sought to tender a signed consent to act as official liquidator and/or receiver and/or manager of the company dated 24 September 2009 by Mr Jamieson Louttit, an official liquidator, but I rejected the tender on the objection thereto by each of Mr Lawson and Mr Hyde (on the basis that Mrs Delmont was not a party to the proceedings and had no standing to nominate her preferred liquidator). That consent was subsequently handed up to me as an aide memoire, in order to demonstrate, as I understand it, that there are other liquidators whose hourly rates are less than those of the liquidators put forward by each of the parties to the proceedings. In circumstances where Mrs Delmont is neither a party to these proceedings nor a contributory of the company (she being a beneficiary under the will and entitled under my existing orders in the earlier proceedings to provision out of the estate) and where an aide memoire has no evidentiary status, I have not had regard to Mr Louttit's hourly rates in considering who it is should be appointed as liquidator. 100 For the reasons indicated below, it seems to me that standard hourly rates can be no more than a guide as to the fees likely to be charged by any liquidator appointed (since much will necessarily depend on the level of seniority at which the work is done and I would hope that there could be costs savings to be achieved in staffing the work appropriately). 101 Mr Lawson submits that, as the executor of the estate and holder of the 62.5% interest, the nomination of Mr Haselgrove should be given weight. It was submitted that in terms of the charges there was not only very little between the hourly fees nominated by KordaMentha and those by Mr Purchas but also the capabilities suggested of the staff in the hourly rates was such that it might well turn out to be cheaper for KordaMentha to carry out the tasks involved in the liquidation (at least insofar as tasks of analysis could be performed at the lower hourly rate of an analyst) with that firm than by Mr Purchas (or indeed Mr Louttit) at the higher hourly rate of a partner. 102 Further, it was suggested that if there was potential for the liquidator to bring proceedings against Ms Gibson it would be inappropriate for her nominated liquidator (Mr Purchas) to be appointed. 103 Finally, it was submitted that at the end of liquidation an approval would need to be sought for fees and charges and the impact of the slightly higher hourly rate could be considered at that time. 104 I consider that there is force in the submission by Mr Lawson that a bare comparison of hourly rates does not provide a complete picture since that would not be determinative of the overall fees. Having in mind the fact that KordaMentha has offices in Adelaide where Mr Haselgrove is based as well as Sydney and will presumably bring to bear the synergies of a national organisation, I think it appropriate to follow what I understand to be the ordinary course of appointing the liquidator nominated by the applicant in circumstances where the parties are not agreed between themselves as to the identity of the liquidator and where no other considerations militate otherwise. I have taken into account, but do not place much weight on, the possibility that the liquidator might need to consider any causes of action against Ms Gibson, not least because of the orders I made in the Family Provision Act proceedings in regard to benefits obtained by Ms Gibson personally out of the company funds and also because Mr Purchas has confirmed in his signed consent that he is not aware of any conflict and I assume he would have done so having regard to the possibility that claims might arise in the course of the liquidation. Orders 105 I propose to make the following declarations and orders but will hear submissions as to the final form thereof:

At a glance

Court

Decision date

Before

Source

Judgment (41 paragraphs)

Parties

Cases Cited (1)

Cited By (2)