In the matter of ASP Aluminium Holdings Pty Ltd [2026] NSWSC 831 | Case summary | Zoe

NSWNSWSC

In the matter of ASP Aluminium Holdings Pty Ltd

[2026] NSWSC 831

Supreme Court of NSW|2026-07-14|Before: Black J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-07-14

Before

Black J

Catchwords

CIVIL PROCEDURE — pleadings — amendment — where amendment and joinder of parties late in hearing — where alternative relief claimed in circumstances that other forms of relief may not be possible or desirable — where existing and new parties can be afforded the opportunity to lead evidence and make submissions as to alternative relief

Source

Original judgment source is linked above.

Catchwords

CIVIL PROCEDURE — pleadings — amendment — where amendment and joinder of parties late in hearing — where alternative relief claimed in circumstances that other forms of relief may not be possible or desirable — where existing and new parties can be afforded the opportunity to lead evidence and make submissions as to alternative relief

Judgment

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

Medium Neutral Citation: In the matter of ASP Aluminium Holdings Pty Ltd [2026] NSWSC 831

Hearing dates: 14 July 2026

Date of orders: 14 July 2026

Decision date: 14 July 2026

Jurisdiction: Equity - Corporations List

Before: Black J

Decision: Orders made granting leave to Plaintiffs to file Second Further Amended Statement of Claim and joining four additional parties to the proceedings

Catchwords: CIVIL PROCEDURE — pleadings — amendment — where amendment and joinder of parties late in hearing — where alternative relief claimed in circumstances that other forms of relief may not be possible or desirable — where existing and new parties can be afforded the opportunity to lead evidence and make submissions as to alternative relief

By Notice of Motion filed, by leave, on 1 July 2026, the Plaintiffs, Villefranche Investments Pty Ltd as trustee for the Gates Family Trust (“VSPL”) and 21 other shareholders in ASP Aluminium Holdings Pty Ltd (“Holdings”) seek an order for leave to amend their Further Amended Statement of Claim (“FASC”), by filing a Second Further Amended Statement of Claim (“2FASC”), and an associated order joining four other parties, Youla Holdings Pty Ltd (“Youla”), Michael Three Pty Ltd (“Michael Three”), Michael Four Pty Ltd (“Michael Four”) (together, “Additional Younes Companies”) and ASP Staff Holdings Pty Ltd (“ASPSH”) as additional defendants in the proceedings, where those additional parties are necessary and proper parties for the additional relief that is sought in the proposed 2FASC.
The existing FASC already seeks, in orthodox form, such further or other orders as the Court thinks fit. The 2FASC now seeks to introduce a specific claim, if a buy-out order is not made against the First Defendant, Holdings, or the Second or Third Defendants, Ms Younes and Lolita Investments Pty Ltd (“LIPL”), for an order appointing a receiver to sell substantially all of the shares in Holdings. I use the phrase “substantially all” because, if the amendment is allowed, about 20 shareholders in Holdings with small holdings would not be party to the proceedings and their rights would not be affected by the proceedings, although their interests might be affected so far as a purchaser of shares in Holdings might later proceed to a compulsory acquisition of their shares under Ch 6 of the Corporations Act 2001 (Cth) (“Act”). The proposed order broadly takes the form of orders made by an English Court in Otello Corp ASA v Moore Freres & Co LLC [2020] EWHC 3261 (Ch) (“Otello”); in similar form by the Singapore International Commercial Court in Kiri Industries Ltd v Senda International Capital Ltd [2024] SGHC(1) 14 (“Kiri”), not challenged on appeal in Kiri Industries Ltd v Senda International Capital Ltd [2025] SGCA(I) 1 at [8]; and (with some differences) on 10 July 2026 by this Court in Lanmar Pty Ltd (No 2) [2026] NSWSC 800 (“Lanmar”). I will return to the significance of recent developments in the case law in this field below.
The issues in respect of the possible appointment of a receiver to sell the shares in Holdings first arose in Holdings’ opening submissions on 5 June 2026, the second day of the hearing, when Mr Withers, with whom Mr Riordan appears for Holdings, emphasised the adverse impact on Holdings of a buy-out order made against Holdings or a winding up of Holdings and likely also its employees, and I drew attention to the fact that alternative forms of relief had been considered in Otello and Kiri, upon which the Plaintiffs now seek to rely to support the appointment of a receiver to sell the shares in Holdings.
Subsequently, on 17 June 2026, the solicitors for Holdings wrote to the solicitors for the Plaintiffs in respect of the matters raised in opening and requested confirmation:

That observation requires qualification. The possibility of the appointment of a receiver and manager to sell a company as a going concern was considered in Re Dawning Investments Pty Ltd (2022) 68 VR 226; [2022] VSC 641, although that order was not made in that case. The possibility of the appointment of a receiver to sell a minority’s shares in a company (rather than all of the shares in the company) was considered in Jolan Pty Ltd v Essential Investments Pty Ltd (2021) 153 ACSR 336; [2021] FCA 747 (“Jolan”), although that order was not made in that case. Since the date on which Ms Russell’s second affidavit was sworn, an order in the form that the Plaintiffs now wish to seek, with some differences of form and one of substance, was made by this Court in Lanmar.
Ms Russell also notes (Russell 7.7.26 [22]) that, as I recognised above, there are some 20 shareholders who are not party to the proceedings and who would not be joined to them by the Plaintiffs’ Notice of Motion. I recognise that matter, but those shareholders would not be bound by any orders made in the proceedings and their rights would not be affected by the relief sought, although I recognise the possibility that they might later be exposed to a compulsory acquisition of their shares. Ms Russell acknowledges Ms Younes’ role in each of Michael Three and Michael Four and identifies Lalspec as the sole shareholder of Michael Three and Michael Four. She also refers to earlier proceedings in which the Takeovers Panel did not make a declaration of unacceptable circumstances in respect of Ms Younes’ interests in Holdings. That position was understandable but does not assist the Defendants or the proposed Defendants here, where the matters raised in that application would be properly determined by a Court in contested proceedings, as is now occurring. Ms Russell also rightly recognises that, although Youla, Michael Three or Michael Four were not joined as parties to the proceedings, where no relief was sought against them, share transactions involving them were in issue in the proceedings. There was of course, no cause to join those parties to the proceedings and no basis to do so until, by the proposed amendment, an order was sought that would affect their rights.
Ms Russell also rightly recognises (Russell 7.7.26 [35]) that the relief previously sought in the proceedings did not contemplate the sale of LIPL’s shares in Holdings or the sale of the shares held by the Additional Younes Companies. She then observes (Russell 7.7.26 [36]) that:

I accept that the amendments raise the possibility that the shares held by LIPL and the Additional Younes Companies would be sold together with the Plaintiffs’ shares in Holdings. I do not accept that the amendments in the proposed 2FASOC materially affect the risk of a winding up order in respect of Holdings, where the Court would likely be obliged to consider making such an order in accordance with the approach taken in Snell, and the making of a winding up order does not require that any shareholder of Holdings be joined as party to the proceedings: Re Ballistic Australia Pty Ltd [2014] NSWSC 1495. I recognise that, in one case, I treated the fact that shareholders were not party to the proceedings as relevant to the exercise of the Court’s discretion, although that decision was directed to the position in a closely-held proprietary company and may give insufficient weight to the fact that those shareholders could not properly have been joined where no relief was sought against them: Re Candy-Vend Pty Ltd [2020] NSWSC 1735.
Ms Russell also indicates that, had the relief that the Plaintiffs now seek been sought previously, Ms Younes and LIPL “may have” conducted the defence of the proceedings differently, by seeking advice as to particular matters, including the financial implications of any en bloc sale of Holdings’ shares or a liquidation, and would have considered leading additional expert evidence. I accept the former is possible, although the latter seems to me to be less likely, where the possibility of a winding up has always existed in the proceedings and was addressed by both the Plaintiffs and Holdings in opening, without Ms Younes or LIPL seeking to lead evidence as to that matter. Ms Russell’s evidence (Russell 7.7.26 [38]) is also that the risk that the majority shares in Holdings owned by LIPL and the Additional Younes Companies will be “lost” was “never considered” by Ms Younes or LIPL as part of this proceeding. I will assume that evidence is correct, where it is given by a solicitor, although it perhaps records a surprising position, given the approach taken by the Court of Appeal in Snell and other parties’ recognition of the risk that a winding up order would be made in the proceedings. That risk is of real significance here, where a winding up order would, as the cases have recognised, potentially be more destructive of value in Holdings than the appointment of a receiver to sell the shares in Holdings. Ms Russell then returned to the possibility that Ms Younes and the Additional Younes Companies would have led additional evidence in the proceedings and the Plaintiffs rightly accept that they should have the opportunity to do so if the amendments are permitted; she again pointed to the existence of other minority shareholders in Holdings, which I have addressed above; and she pointed to possible implications of a sale of shares by a receiver, which is a matter that would be addressed in determining whether such relief should be granted.
Ms Russell refers to the possibility of further evidence that might be led by Ms Younes, LIPL or the Additional Younes Companies, including expert evidence that would overlap with expert evidence already led by Holdings, and I accept that it would be open to Ms Younes and the Additional Younes Companies to lead such evidence. Ms Russell suggests that an expert would be retained to give evidence about the impact of a “fire sale” by a receiver, although any assumed position as to a “fire sale” may be doubtful given the form of the orders made in Kiri and Lanmar; it is unclear what assumptions any expert would make as to, for example, private equity buyers who may be attracted by an apparently well-established and profitable company; and, in any event, the expert with whom Ms Russell has consulted has noted her lack of experience that would likely be necessary to give such evidence. Ms Russell also indicates that evidence might be led as to the financial implications of any en bloc sale of the shares in Holdings for Ms Younes and the Additional Younes Companies; and I also accept that such evidence could properly be led, particularly where the Plaintiffs seek (but Lanmar did not allow) priority as to the distribution of any sales proceeds.
Ms Russell estimates, without further elaboration, that it would take Ms Younes and the Additional Younes Companies between four and five months to prepare and file such evidence. I am not persuaded by that evidence given Ms Younes’ and LIPL’s existing involvement in the proceedings; the substantial overlap between that evidence and evidence already led by other parties; and the fact that the experienced solicitor who has been retained by ASPSH considers that similar evidence could be prepared in a shorter period, although ASPSH (unlike Ms Younes, LIPL and Ms Russell) has had no prior involvement in the proceedings. In any event, this matter can be addressed in a practical way, by allowing a reasonable time for further evidence and then extending that time if it were established, on evidence, that appropriate efforts had been taken to prepare that evidence but that more time was required to do so.
ASPSH in turn reads the affidavit dated 7 July 2026 of its solicitor, Mr Delaney. I can deal with his affidavit more briefly than that of Ms Russell, where it addressed similar issues. Mr Delaney has only recently received instructions to act for ASPSH, after the amendment application was filed. As I noted above, the directors of ASPSH, Ms Younes and Mr Barraket, are both Defendants in the proceedings; and Mr Barraket has given evidence in his defence in the proceedings, although Ms Younes has not. Mr Delaney is not taking instructions from ASPSH’s directors, but from a Mr Lapping, who is a director of another company within the Alspec Group who has apparently been delegated the powers of ASPSH’s directors under s 198D of the Act.
Mr Delaney there refers to ASPSH’s shareholding in Holdings and points to conflicting information as to whether ASPSH holds its shares in Holdings beneficially or non-beneficially. His evidence is that ASPSH is the trustee of a trust; contrary to a possible implication of ASPSH’s name, it appears that employees of the Alspec Group generally are not the beneficiaries of that trust; and there is presently uncertainty as to whether Mr Abraham (who is not a party to these proceedings but has played a significant role in the events which give rise to them), Mr Barraket (who, as I noted above, is a director of ASPSH and a Defendant in the proceedings) and Mr Nakhle (who is the Chief Executive Officer of Holdings and also a Defendant in the proceedings) are the only beneficiaries of that trust.
Mr Delaney also addresses the steps which would need to be taken by his firm to become familiar with the issues in the proceedings, which would likely be more substantial than the work that would be required of Ms Russell’s firm, where the latter already acts for Ms Younes and LIPL in the proceedings. He addresses the scope of evidence which ASPSH might lead in the proceedings, although he fairly recognises that ASPSH may ultimately not take an active role in the proceedings; he notes the possibility that witnesses might need to be recalled for cross-examination; and he notes that ASPSH might take judicial advice as to the course that it should take, although the need for such advice may be less apparent if the only beneficiaries of the trust are persons who are already party to or involved in the events in issue in the proceedings. As I noted above, Mr Delaney contemplates that the steps which ASPSH would be required to take, notwithstanding that it has had no previous involvement in the proceedings, would take two or three months and possibly longer, and that proposition seems to me to be more realistic than Ms Russell’s evidence in that regard.

I now turn to the parties’ submissions which addressed several of the matters relevant to the exercise of the Court’s discretion, including those identified by the High Court in Aon, and summarised by Gleeson J in Tamaya.
No party suggested that the additional relief that the Plaintiffs seek by the amendments was not seriously arguable, and that proposition was plainly not open where an order appointing a receiver for sale of the shares in an oppression case has been made by courts in England and Wales and in Singapore, and now by this Court in Lanmar; and the need to consider a winding up order in proceedings of this kind is identified in Snell. The real issues raised in this application arise from the late stage of the proceedings at which the amendment is sought, a matter that is fairly acknowledged by the Plaintiffs, and from the need to address any prejudice suffered by the Defendants (other than Holdings, which would likely benefit from the amendment so far as it allows alternative relief to a winding up of Holdings if a buyout order is not available) arising from the proposed amendment.
Mr Yezerski, with whom Mr Thomson appears for the Plaintiffs, rightly characterises the amendment application as seeking a new form of relief that was raised in opening submissions, then in response to Holdings’ contention that a winding up offer could not or should not be made in respect of Holdings. Mr Yezerski also points to the desirability of joinder of the Additional Younes Companies and ASPSH, and likely the necessity of such joinder where the relief that is sought by the appointment of a receiver to sell their shares (as distinct from a winding up) affects their rights: John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 at [131]-[132]. Mr Yezerski points out, and I understand it to be common ground that the proposed amendments do not alter the allegations against the existing Defendants in the proceedings, and that the Plaintiffs do not seek to lead further evidence in support of the amendments, which are directed only to expanding the scope of the relief that could be ordered by the Court.
Mr Yezerski rightly acknowledges that the joinder of additional defendants “mid-trial” (and in fact at a late stage of the hearing) is unusual, but he submits that this matter is unusual where “none of the proposed new defendants is truly a stranger to this litigation”. Mr Yezerski also submits that there has been no unexplained delay as to the relief sought by the Plaintiffs, where an order for the appointment of a receiver to sell the shares in a company appears not to have previously been granted by an Australian Court and reflects “recent developments” in overseas jurisprudence. The first proposition requires the qualification noted above in respect of Ms Russell’s evidence to similar effect. I accept that the decision in Otello is not a recent development, although the decision in Kiri is a recent development and the decision in Lanmar is, of course, a very recent development indeed. I accept that, as Mr Yezerski points out, the position here is unusual where Ms Younes is the sole director of the Additional Younes Companies and directly or indirectly holds all shares in those companies; two Defendants, including Ms Younes, are the sole directors of ASPSH; and two Defendants and a person whose conduct is in issue in the proceedings are the only persons identified as possible beneficiaries of the trust of which ASPSH is trustee. Mr Yezerski also submits, and I accept, that application would not come as a “surprise” to the Additional Younes Companies or ASPSH, where each of their directors is party to the proceedings and the possibility of the relief now sought was raised in opening in the proceedings.
As I noted above, Mr Yezerski points to the fact that the possibility of the appointment of a receiver to sell the shares in Holdings was raised in opening submissions, and that the possibility of a winding up order had always existed. He also submits that the risk of prejudice is low where the Additional Younes Companies and ASPSH are linked with the existing parties, as I have noted above, and I give weight to that matter. Mr Yezerski also submits that any prejudice from the proposed amendments can be redressed by appropriate directions as to evidence and submissions, and the Plaintiffs accept that, if leave to amend is granted, the new and existing Defendants should be afforded a fair opportunity to lead new evidence and make submissions as to the new matters raised. Obviously enough, an order for costs thrown away should also be made in respect of the amendment although the amendments would likely not cause any step that has already been taken in the proceedings to be wasted.
Mr Yezerski also submits that Holdings, Ms Younes and LIPL have submitted that the Court should consider all available remedies under s 233 of the Act and that the relief that is sought would advance that objective. I accept those submissions were made, in circumstances that Ms Younes, LIPL and Holdings respectively contend that a buy-out order should not be made against any of them and Holdings contends that a winding up order also should not be made, and that places real focus upon the availability of alternative relief. This matter seems to me to be less significant in respect of the Plaintiffs for the same reasons; and, so far as Ms Younes and LIPL contend that they did not consider the possibility that an order might be made that caused the loss of their shares, that contention should be given limited weight where a winding up order was always a realistic possibility in the proceedings, given the decision in Snell.
Mr Yezerski also makes an important point which arises from the circumstances in which similar relief was granted in Otello and Kiri. Mr Yezerski submits, and I accept, that there is a real risk that these issues would need to be agitated later, if they are not agitated now, if buy-out orders made by the Court are not complied with. That occurred in both Otello and Kiri, where such buy-out orders were made but not complied with, before the Court ultimately made orders in the form now sought by the Plaintiffs in those proceedings. The same risk was addressed in Lanmar, by the making of orders for sale of the shares rather than a buy-out order, as the Plaintiffs now wish to seek in the alternative here.
Mr Fitzpatrick in turn draws attention to the scope of the relief sought by the Plaintiffs in their Amended Statement of Claim filed on 24 April 2024. He notes that the Additional Younes Companies were not then joined as party to the proceedings; however, that was a proper course where no relief was then sought against them, although there was reference to their shareholdings in the pleadings. Mr Fitzpatrick also points to the Further Amended Statement of Claim filed by the Plaintiffs, by leave, on 30 March 2026 which introduced additional Plaintiffs, a new claim for compensation against several Defendants and new allegations. Mr Fitzpatrick rightly points out that this hearing commenced on 4 June 2026 and is ongoing and that lay evidence had been completed (subject to documentary tender) and cross-examination of the expert witnesses had begun by the time this amendment application was brought by the Plaintiffs. I give weight to these matters and recognise that the proposed amendment is, on any view, a late amendment. Mr Fitzpatrick also points to Ms Russell’s evidence as to the way in which these issues emerged in the proceedings.
Mr Fitzpatrick submits that the proposed amendments are significantly prejudicial to Ms Younes, LIPL and the Additional Younes Companies, because the possible relief has radically changed. I accept that the addition of an application to appoint a receiver to sell those parties’ shares is a significant, or even a radical, change to the relief sought, where that order was not previously sought, and likely could not be sought, without joining the affected parties to the proceedings. However, I have to balance that matter against the fact that, first, a winding up order would likely be more disadvantageous to those parties than the order that is now sought by the Plaintiffs; and second, the fact that the interests of justice would not be served if the Court was ultimately in a position where it accepted submissions that a buy-out order should not be made; the unpleaded and generalised possibilities raised by the Defendants of a constitutional amendment or other relief were not sufficient to address any oppression that was established; and the Court was left only with the alternatives of granting no relief or making a winding up order.
Mr Fitzpatrick’s also submits that the “worst case scenario” previously envisaged for Ms Younes or LIPL was only that they may be forced buyers of minority interests at an “unpalatable or impossible price”. I do not accept that submission, where their “worst case scenario” was likely that the Court would apply Snell and make a winding up order if no other relief would adequately address any oppression which it had found was established.
Mr Fitzpatrick also points to a potential adverse impact upon Ms Younes, LIPL and the Additional Younes Companies of the orders that the Plaintiffs seek for payment to the Plaintiffs in priority to other shareholders. Whether such an order is made would be determined on the merits, if the amendment is allowed; such an order was not made in Lanmar, although it was made in Otello and Kiri; and, even if such an order were available in principle, there would be an open question as to whether it should extend to parties which are not implicated in any oppression. Mr Fitzpatrick also points to Ms Russell’s evidence as to the potential financial impact of a priority order, but that evidence is primarily relevant to whether such an order should be made on its merits, rather than to the amendment application. Mr Fitzpatrick also rightly points to the significance of forensic prejudice of a non-tangible kind and financial prejudice including the waste of costs in an application of this kind, but fairly recognises that the lateness of an application may be curable, if the Court makes ancillary orders to reduce forensic prejudice to other parties: Fay v Moramba Services Pty Ltd (No 3) [2008] NSWSC 1037 at [3]ff.
In summary, Ms Younes, LIPL and the Additional Younes Companies submit that the amendments should not be permitted; that no explanation had been provided for not joining the Additional Younes Companies at an earlier point; and that the prejudice to Ms Younes, LIPL and the Additional Younes Companies of having to address the new relief cannot be cured by a costs order. I am not persuaded by the second of those submissions where the Additional Younes Companies would not properly be joined as parties to the proceedings until relief was sought against them; any issue as to the enforcement of a buy-out order against Ms Younes or LIPL, if such an order was made, likely did not arise until her departure for Lebanon; and, third, as I noted above, the decision in Lanmar accepting that the relief sought could be granted under Australian law was delivered while this application was on foot. I do not accept the third submission where any prejudice can be addressed by case management, and I do not accept the first submission which is consequential on the second and third submissions. Ms Younes and LIPL and the Additional Younes Companies alternatively submit that, if the amendments are permitted, the proceeding would need to be adjourned for a “substantial period” and an order for costs thrown away should be made. I accept that is the likely consequence of the amendments, although I do not accept that the adjournment would be for the longer period sought by Ms Russell’s evidence.
Ms Whittaker, with whom Ms Szabo appeared for ASPSH, submitted that, as the Plaintiffs accept, ASPSH is a necessary party to proceedings seeking the proposed amended relief, at least where an order is sought that a receiver sell its shares. Ms Whittaker also submitted, and I accept, that Mr Delaney’s affidavit shows a careful attempt to assess the time likely to be required to protect ASPSH’s interests in the proceedings. I accept that substantial weight should be given to that evidence in determining the period to which the proceedings would need to be adjourned if the amendments are allowed. Ms Whittaker also points to the scope of the evidence which ASPSH might lead, although she also acknowledges that ASPSH has not yet reached a decision whether such evidence would be required. Understandably, Ms Whittaker also submits that any order that the Plaintiffs paid from the sale proceeds in priority to other shareholders would be adverse to the interests of ASPSH and would be a matter about which ASPSH might wish to lead evidence or make submissions.
I granted leave to the parties to make further submissions as to any implications of the decision in Lanmar for this application*.* Mr Yezerski submits that that decision confirms the Court’s power to appoint a receiver to sell shares en bloc as a form of relief for oppression, but had not granted priority to the oppressed party in respect of the sale proceeds. It seems to me that those issues will ultimately need to be addressed on the merits if the amendment is allowed. Mr Fitzpatrick in turn points to the decision in Jolan, to which I have referred above, and emphasises that a 90 day sale period sought by the Plaintiffs would potentially depress the value of all of the shares in Holdings in a sale process. That, of course, would depend upon whether the Court imposed such a time limit in any sale orders that were ultimately made, and is a matter that is of limited significance to the amendment application. Mr Fitzpatrick also rightly emphasises that the Court had not accepted that the plaintiff in Lanmar should have priority over sale proceeds and rightly points out the position of other shareholders who were not party to the proceedings did not arise in Lanmar. These matters would also need to be addressed on their merits if the amendment is permitted. Ms Whittaker did not make further submissions as to this matter.
The Fifth to Seventh Defendants in turn indicated that they neither consented to nor opposed the Plaintiffs’ amendment application, but were concerned that an adjournment of the hearing might allow the Plaintiffs (and, by extension, other parties) to lead new evidence, and that the amendment should only be allowed on the basis that the Plaintiffs do not seek to take advantage of the adjournment to expand the case they have presented. I accept that that is a reasonable concern for all parties to have, although not one that is limited to the Plaintiffs’ case, and that concern was shared by several Defendants. Although I am sympathetic to the concern raised by the Fifth to Seventh Defendants, I see no basis to make an order that prevents only the Plaintiffs, and not other parties, from taking advantage of any adjournment to lead new evidence. It seems to me that the preferable position is to recognise that the evidence has closed, other than for remaining documentary tender, and that any party that seeks to lead new evidence outside the scope of the amendments will likely have difficulty in obtaining leave to do so. I should not impose a condition upon the amendments, limited to the Plaintiffs alone, where any attempt to reopen evidence by any party should be assessed on its merits, at the time that it is made, having regard to the considerations normally applicable in such an application.

I should have regard to the nature and importance of the amendment to the party applying for it, here the Plaintiffs. It seems to me that the amendments that the Plaintiffs seek is important to them and is also important in the public interest. If a buy-out order could not be made against Holdings, because of its adverse financial impact on Holdings; and a buy-out order could not or would not be made against Ms Younes or LIPL, either because, as they contend, they could not afford to buy the shares in Holdings or because the Court could not or would not make that order if it could not practically enforce it against Ms Younes, who (it appears) travelled to Lebanon shortly before the hearing commenced and has not yet returned, then there is a greater risk that a winding up order would be the only effective relief, although such an order would plainly be disadvantageous to Holdings, its employees and the community, where the Alspec Group operates a viable business. The remedial flexibility allowed by the possibility of appointing a receiver for the sale of the shares in Holdings, recognised in Lanmar, would provide a possible solution to those difficulties, and that would be important for the Plaintiffs, Holdings and the public interest if it minimises the risk of a winding up of a viable company.
I should also have regard to the significance of delay and the importance of an explanation for delay in making an amendment. I recognise that the Plaintiffs do not address that matter by direct evidence; but the absence of that evidence seems to me to be less significant in the unusual circumstances of this application. First, the recent development of Ms Younes’ departure for Lebanon will potentially impact on whether the Court could or would make a buy-out order against Ms Younes or LIPL, since a buy-out likely could not proceed unless the Court could require Ms Younes to fund it and such an order likely could not be enforced against Ms Younes while she remains in Lebanon. I recognise that, as Mr Fitzpatrick points out, the Plaintiffs did not place significant weight on that matter, where they still press for a buy-out order against Ms Younes; but the Court must give it greater weight where it would generally not make orders that it cannot enforce. Second, while the possibility of making an order appointing a receiver to the shares in Holdings was raised in opening submissions as an alternative to a winding up order, the Court only recently delivered its judgment in Lanmar which held that such an order could properly be made in a case of this kind, in somewhat similar circumstances, where the defendants in that case contended they could not afford to buy out the plaintiff’s shares and a winding up order would there would have had a significant adverse impact on an otherwise viable business and on its employees. It seems to me that that was a significant development; it occurred while the application was on foot; and the Plaintiffs might well have been permitted to amend at an even later stage of the proceedings, given the significance of that development.
I have regard to the risk of prejudice that ordinarily follows from a late amendment, and which is here shown in respect of the proposed amendments. I recognise that the alternative relief that the Plaintiffs now seek is significant, although likely to be less detrimental to the parties than a winding up of Holdings. I nonetheless accept that the amendments may here give rise to potential or actual prejudice for all parties, so far as it will delay the determination of the proceedings and increase their costs; and it will likely be advantageous to the Plaintiffs and Holdings so far as it allows an alternative to a winding up order, which the Court would likely be required to consider in any event. However, any disadvantage to the Additional Younes Companies and ASPSH may be mitigated by allowing a reasonable time for them to lead evidence in response to the amendment.
I also recognise the relevance of the parties’ choices to date in the litigation and the consequence of those choices, and I have addressed the parties’ submissions as to those matters above. I also recognise that the allocation of additional hearing days would involve some detriment to other litigants in the Court, but that detriment is limited where the need to allow time to affected parties and the Additional Younes Companies to lead any additional evidence would mean the proceedings would be deferred to a time where the Court can readily list them, in the final quarter of this year. I have also referred above to the real public interest in avoiding a winding up of a viable company if it is possible to do so, and the alternative relief which is now sought by the Plaintiffs provides a real possibility of avoiding the need to make a winding up order against Holdings, if it is not appropriate that the Plaintiffs be left to the risk of continued oppression, which was the view taken by the Court in Lanmar and a buy-out order cannot be made for the reasons noted above.
In summary, I accept that these amendments are significant and are made late in the proceedings. However, I am comfortably satisfied that allowing them will promote at the interests of justice, where they will allow an additional remedial option, beyond a winding up order that likely was already available, and reduce the risk that either a viable company will be wound up, to the disadvantage of its employees and the community, or no relief would be available that would address any oppression that is established. It seems to me that any prejudice to Ms Younes, LIPL and the Additional Younes Companies, and to ASPSH, arising from the amendments may be addressed by allowing a reasonable time to lead evidence in response, although likely a lesser period than Ms Younes, LIPL and the Additional Younes Companies had sought, and deferring closing submissions until after that evidence is addressed. I will also make an order for costs thrown away. I expect these matters will not prejudice the quick resolution of these proceedings, at least in relative terms, where a hearing should be completed and judgment should still be delivered in the last quarter of this year.

In the matter of ASP Aluminium Holdings Pty Ltd

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