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Cases Cited: - Ample Source International Ltd v Bonython Metals Group Pty Ltd (No 6) (2011) 285 ALR 488; [2011] FCA 1484
- Armagas Ltd v Mundogas SA [1985] 1 Ll R 1
- Asia Pacific Joint Mining Pty Ltd v Allways Resources Holdings Pty Ltd (2018) 125 ACSR 227; [2018] QCA 048
- Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
- Byrne v AJ Byrne Pty Limited [2012] NSWSC 667
- Campbell v Backoffice Investments Pty Ltd (2008) 66 ACSR 359; [2008] NSWCA 95
- Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25
- Ebrahimi v Westbourne Galleries Ltd [1973] AC 360
- ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24
- Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (2001) 37 ACSR 672; [2001] NSWCA 97
- Firmtech Aluminium Pty Ltd v Xie; Zhang v Xu; Xie v Auschn Conveyancing & Associates Pty Ltd [2024] NSWSC 1293
- Harding Investments Pty Ltd v PMP Shareholdings Pty Ltd (2011) 282 ALR 229; [2011] FCA 567
- Haycraft v AF1 Services Pty Ltd (2023) 168 ACSR 489; [2023] FCA 774
- Henry Jones Food Pty Ltd v Shepparton Partners Collective KP Pty Ltd [2025] VSC 187- MMAL Rentals Pty Ltd v Bruning (2004) 63 NSWLR 167; [2004] NSWCA 451
- Jolan Pty Ltd v Essential Investments Pty Ltd (No 2) [2021] FCA 1533
- Kiri Industries Ltd v Senda International Capital Ltd and another [2024] SGHC(I) 14
- Kiri Industries Ltd v Senda International Capital Ltd [2025] SGCA(I) 1
- Millsave Holdings Pty Ltd v Connective Group Pty Ltd (2023) 75 VR 239; [2023] VSCA 326
- Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692
- Nassar v Innovative Precasters Group Pty Ltd (2009) 71 ACSR 343; [2009] NSWSC 342
- Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66
- Nguyen v QTQ Mechanical Services Pty Ltd [2019] NSWSC 1629
- Otello Corp ASA v Moore Freres and Co LLC [2020] EWHC 3261 (Ch)
- Pedro-X Pty Ltd v SHRL Ventures Pty Ltd (No 2) [2025] QSC 341
- Ratul v Islam [2023] NSWSC 78
- Re A Company [1983] Ch 178
- Re a Company (1986) 2 BCC 99
- Re Amazon Pest Control Pty Ltd [2012] NSWSC 1568
- Re Aulich Civil Law Pty Ltd (in liq) [2025] FCA 1329
- Re Catombal Investments Pty Ltd [2012] NSWSC 775
- Re CNPR Limited [2018] NSWSC 989
- Re Colorado Products Pty Ltd (in prov liq) (2014) 101 ACSR 233; [2014] NSWSC 789
- Re Crow Inn Pty Ltd (No 2) [2020] NSWSC 1749
- Re Cumana Ltd [1986] BCLC 430
- Re Dawning Investments Pty Ltd and Dawning Developments Pty Ltd (2022) 68 VR 226; [2022] VSC 641
- Re DG Brims and Sons Pty Ltd (1995) 16 ACSR 559; [1995] QSC 053
- Re G Jeffery (Mens Store) Pty Ltd (1984) 9 ACLR 193
- Re Gerringong Storage Pty Ltd [2025] NSWSC 302
- Re Global Mortgage Equity Corporation Pty Ltd (2013) 97 ACSR 30; [2013] NSWSC 1586
- Re Gunyahweh Pty Ltd [2023] NSWSC 1133
- Re Hayes Steel Framing Systems Pty Ltd (admins apptd) [2017] NSWSC 385
- Re Hollen Australia Pty Ltd (2009) 27 ACLC 199; [2009] VSC 95
- Re J & B Oscari Properties Pty Ltd [2024] VSC 389
- Re Lanmar Pty Ltd [2026] NSWSC 674
- Re Lendly Pty Ltd [2024] VSC 540
- Re Mobius Distilling Pty Ltd (in liq) [2025] NSWSC 539
- Re Munja Bakehouse Pty Ltd [2024] NSWSC 6
- Re Natural Raw C Pty Ltd (No 2) [2022] NSWSC 1334
- Re Pure Nature Sydney Pty Ltd [2018] NSWSC 914
- Re QB Foods Pty Ltd [2021] NSWSC 1227
- Re Rafic Pty Ltd [2017] NSWSC 1013
- Re Regional Airports Ltd [1999] 2 BCLC 30
- Re Scientific Management Associates Pty Ltd (2019) 141 ACSR 115; [2019] NSWSC 1643
- Re Spitfire Q Pty Ltd [2021] NSWSC 866
- Re SRD Property Pty Ltd [2023] NSWSC 441
- Read-Zorn v Origin Distillers Group Pty Ltd [2023] FCA 280
- Sangha v Baxter [2009] NSWCA 78
- Snell v Glatis (No 2) [2020] NSWCA 166
- Special Gold Pty Ltd (in liq) v Dyldam Developments Pty Ltd (subject to a deed of Co arrangement) (No 2) [2025] FCA 825
- Strategic Management Australia AFL Pty Ltd v Precision Sports & Entertainment Group Pty Ltd (No 3) [2017] VSC 35
- Sunnya Pty Ltd v He [2025] NSWCA 79
- Tomanovic v Argyle HQ Pty Ltd [2010] NSWSC 152 - Tomanovic v Global Mortgage Equity Corporation Pty Ltd (2011) 288 ALR 310; (2011) 84 ACSR 121; [2011] NSWCA 104
- Tomanovic v One Australia Pty Ltd (2015) 104 ACSR 596; [2015] NSWCA 11
- United Rural Enterprises Pty Ltd v Lopmand Pty Ltd (2003) 47 ACSR 514; [2003] NSWSC 910
- Varma v Varma [2010] NSWSC 786
- Watson v Foxman (1995) 49 NSWLR 315
- Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459; [1985] HCA 68
- WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd [2025] FCA 622
- Yamari Ochre Pty Ltd (in liq) [2025] NSWSC 1498

Category: Principal judgment

Parties: WLLHLL Holdings Pty Limited (Plaintiff)
Martin Drebber (First Defendant)
Peter Charles Kevin O’Connor (Second Defendant)
MDTI Holdings Pty Limited ACN 675 340 995 (Third Defendant)
PCKOC Holdings Pty Limited ACN 670 440 007 (Fourth Defendant)
Lanmar Pty Limited ACN 642 503 375 (Fifth Defendant)

Representation: Counsel:
Mr D Hughes SC / Mr S Odgers (Plaintiff)
Mr J Gooley / Mr P Farrell (First to Fourth Defendants)
Mr J Gooley / Mr R M Higgins (First to Fourth Defendants) (14 May 2025)
Solicitors:
Davidson Legal Consulting Advisory (Plaintiff)
Clyde & Co (First to Fourth Defendants)

File Number(s): 2025/184570

Judgment

Nature of the application

1. By Originating Process filed on 14 May 2025, the Plaintiff, WLLHLL Holdings Pty Limited (“WLLHLL”) sought an order under s 233 of the Corporations Act 2001 (Cth) (“Act”) that the Third and Fourth Defendants, MDTI Holdings Pty Ltd (“MDTI”) and PCKOC Holdings Pty Ltd (“PCKOC”) purchase its shares in the Fifth Defendant, Lanmar Pty Ltd (“Lanmar”) or alternatively an order that Lanmar be wound up. In the course of the hearing, WLLHLL also sought alternative relief, that a receiver be appointed to sell the shares in Lanmar and I address that alternative relief below. By Interlocutory Process filed on 9 July 2025, MDTI and PCKOC in turn sought an order under s 461(k) of the Act that Lanmar be wound up on the just and equitable ground, on the grounds set out in their Cross-Claimants’ Points of Claim filed on the same date. I will use the term “Defendants” in this judgment to refer to the active defendants, Messrs Drebber and O’Connor, MDTI and PCKOC. I recognise that Lanmar was itself a defendant to the proceedings and will be bound by, and have the benefit of, the outcome of the proceedings.

2. By way of background, WLLHLL holds one third of the shares in Lanmar and is a company associated with Mr Drew Landes, and MDTI and PCKOC each hold one third of the shares in Lanmar and are companies associated with Mr Martin Drebber and Mr Peter O’Connor respectively. Messrs Landes, Drebber and O’Connor are the directors of Lanmar, which provides services including engineering, asset management, advisory and consulting services to customers, primarily the Commonwealth of Australia, the Department of Defence and other agencies. Lanmar, rightly, did not take an active role in the proceedings where they involved a dispute between its shareholders.

Affidavit evidence

3. I now turn to the affidavit evidence and cross-examination, although I will deal with the affidavit evidence as to events of particular significance in setting out the chronology of events below. In addressing this evidence, I have regard to the fallibility of human memory which increases with the passage of time, particularly where disputes or litigation intervene: Watson v Foxman (1995) 49 NSWLR 315 at 318–319; Varma v Varma [2010] NSWSC 786 at [424]–[425]. I also have regard to the fact that objective evidence, where available, is likely to be the most reliable basis for determining matters of credit that arise as to the affidavit evidence: Armagas Ltd v Mundogas SA [1985] 1 Ll R 1 at 57; Re Colorado Products Pty Ltd (in prov liq*)* (2014) 101 ACSR 233; [2014] NSWSC 789 at [10] (“Colorado”). I also bear in mind the observations of Bell P (as the Chief Justice then was, with whom Bathurst CJ agreed) in ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24 at [27]–[28]:

“Whilst the quality and accuracy of oral recollection of actual conversations should be treated with care and caution given the fallibility of human memory (of which there has been a growing appreciation within the judiciary in recent decades), oral testimony may still be of value and importance, as was recognised in the nuanced observations of Leggatt J (as his Lordship then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC (Comm) 3560 at [22] (Gestmin):

‘the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.’ [emphasis added]

Documents and events have to be understood in their context, and evidence of context will often be furnished by witnesses in their oral evidence. Documents, moreover, will not always present a complete picture of events. Indeed it would be rare that they do. Nor do contemporaneous documents necessarily or invariably convey or record the background or context in which events took place. That background or context will be familiar to the actors at the time of those events but may not always emerge from documents.”

4. I have here drawn on my summary of the applicable principles in Re Mobius Distilling Pty Ltd (in liq*)* [2025] NSWSC 539 (“Mobius Distilling”) and Yamari Ochre Pty Ltd (in liq*)* [2025] NSWSC 1498 at [2] (“Yamari Ochre”). I have also borne in mind the cautionary observations of Basten JA (Handley JA agreeing) in Sangha v Baxter [2009] NSWCA 78 at [155], applied by Nixon J in Firmtech Aluminium Pty Ltd v Xie; Zhang v Xu; Xie v Auschn Conveyancing & Associates Pty Ltd [2024] NSWSC 1293 at [42], that:

“Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases.

Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, R v Collins [2007] NSWCA 122 at [44].”

5. The parties read voluminous affidavit evidence, large parts of which were plainly inadmissible and were allowed with a limiting order under s 136 of the Evidence Act 1995 (NSW) (“Evidence Act”) as submission and not proof of the fact. Large parts of the submissions made in the affidavits were directed to disputes as to matters which could have no conceivable impact on the outcome of the matter and which it will not be necessary to decide. I largely do not refer to those matters where the proceedings should be determined by reference to admissible evidence and not the witness’ assertions or beliefs as to matters not established by evidence.

6. I have also borne in mind that the allegations made against at least Messrs Drebber and O’Connor in the proceedings and matters emerging in the evidence raise questions of potentially serious contraventions of directors’ duties, which have civil penalty and criminal consequences. I proceed on the basis that the Court should apply the standards set out in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (“Briginshaw”) and its equivalent under s 140 of the Evidence Act in that regard. Where a party advances allegations of impropriety, the Court must take account of the gravity of the matters alleged in deciding whether the inference should be drawn and, although the standard of proof remains proof on the balance of probabilities, the strength of the evidence necessary to establish a given fact to the civil standard may vary according to the nature of what it is sought to be proved. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66 at 449–450; [1992] HCA 66, the plurality observed that:

“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.” [citations omitted]

7. Section 140 of the Evidence Act similarly provides that, in a civil proceeding, the Court must find the case of a party proved if it is so satisfied on the balance of probabilities and that, without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged. I approach the evidence in WLLHLL’s claim on that basis.

8. WLLHLL reads Mr Landes’ first affidavit dated 14 May 2025 originally sworn in support of interlocutory relief in the proceedings. Mr Landes referred to his experience as a naval architect and to Mr Drebber’s and his establishing Lanmar in 2020. He noted that, when Lanmar was established, its initial shareholders were Mr Drebber and his partner on the one hand and Mr Landes on the other, who held an equal number of shares. Mr Landes’ evidence (Landes 14.5.25 [8]) is that, between 2020 and 2024, he and Mr Drebber operated Lanmar on an “informal and collaborative basis” and generally in accordance with “Principals” [sic] agreed in early 2021 (“Lanmar Principles”), which I address below. Mr Landes also referred to the circumstances in which Mr O’Connor, a friend of Mr Drebber, joined Lanmar in 2021 and was issued, through a proprietary company, a third of the shares in Lanmar.

9. Mr Landes’ evidence is also that there were no specified roles and responsibilities for Mr Drebber, Mr O’Connor and Mr Landes; that regular meetings were held on a fortnightly basis between the directors since 2021; and that he had always been “solely responsible” for management of Lanmar’s financial affairs. He retreated from that proposition in cross-examination, although that may partly have reflected a lack of clarity in both Mr Landes’ affidavit and the cross-examination as to what was meant by being “responsible” for managing Lanmar’s financial affairs. Obviously, Mr Landes was not solely responsible, for example, for bringing in Lanmar’s revenue or controlling its costs, which are aspects of the management of its financial affairs in the wider sense. Mr Landes addressed a restructuring of Lanmar in 2024, involving the introduction of holding companies associated with each of Messrs Drebber, O’Connor and Landes, which now hold the shares in Lanmar in equal shares. There is no substantive dispute as to that restructuring.

10. Mr Landes outlined the nature of Lanmar’s business (Landes 14.5.25 [30]ff), which I have addressed above. Mr Landes’ evidence was that he and Mr Drebber, and not Mr O’Connor, introduced the existing clients of Lanmar. There was significant dispute as to matters of this kind in the proceeding, and a substantial collateral dispute as to the adequacy of Mr Landes’ performance of business roles within Lanmar. Mr Landes also there referred to a business planning session on 22 August 2024 and to a meeting on 26 February 2025 (“26 February Meeting”) between Messrs Drebber, O’Connor and Landes and subsequent correspondence, which I address in the chronology below. Mr Landes also addressed WLLHLL’s offer to sell its shares in Lanmar to the majority shareholders and to dealings between Lanmar and Forge Dynamics Pty Ltd (“Forge”) in relation to the provision of services to the Australian Navy, to which I return below. He also addressed a directors’ meeting of Lanmar on 9 May 2025 which involved a comprehensive series of resolutions, substantially all of which were passed by the exercise of the majority directors’ voting power over Mr Landes’ objections.

11. By a second affidavit dated 28 July 2025, Mr Landes addressed multiple financial documents of Lanmar. He expanded upon the nature of Lanmar’s business, although substantial parts of his evidence as to positive aspects of that business were not admissible as hearsay evidence and were not admitted. He took issue with aspects of the Defendants’ Defence and Cross-Claim and addressed disputes as to aspects of the parties’ dealings. I address those matters, so far as necessary, in the chronology below.

12. WLLHLL also relies on a very lengthy affidavit of Mr Landes dated 8 September 2025 which responded to aspects of Messrs Drebber’s and O’Connor’s evidence, including their claims that he has not added value to Lanmar and that they have been dissatisfied with his contribution for four years. Mr Landes also responded to Messrs Drebber’s and O’Connor’s evidence of events since July 2024 as to Lanmar’s financial affairs and dividend policy. A substantial part of this evidence addressed disputes which it is not necessary to resolve where, even if the concerns held by Messrs Drebber and O’Connor as to Mr Landes’ performance and their conviction that they were contributing much and he was contributing little were justified or partly justified, they would not avoid a finding that the conduct which I address below amounted to oppression. I return to this matter below.

13. Mr Landes also there addressed, at length, his contribution to the development of integrated platform management systems used in naval fleet management and the development of “dashboard” systems by which senior naval staff can monitor the use of naval assets. Mr Landes then referred, also at length, to his involvement in steps taken to develop those systems for the Australian Navy from early 2021, including contracts obtained by Lanmar in relation to those matters. He denied claims made by Messrs Drebber and O’Connor that he did not bring independent portfolios to Lanmar, that his sales were poor, that he sourced few contracts for Lanmar and that he failed to develop a portfolio of work or meet critical deadlines for Lanmar. Mr Landes also addressed a dispute, which it is not necessary to resolve, as to the nature of an executive’s role with Lanmar and claimed that Mr O’Connor rather than Mr Landes had limited work in the second half of 2024. Mr Landes there further expanded on events surrounding a business strategy meeting in August 2024, which I address in the chronology below, and then addressed the development of Lanmar’s tender for a Naval Asset Management System Support (“NAMSS”) project between December 2024 and February 2025 and his concern that the status of completion of tasks for the tender as recorded in Lanmar’s information systems, particularly by Messrs Drebber and O’Connor, did not match reality. It is neither necessary nor possible to determine the disputes between the parties as to that question on the evidence as it stands.

14. Mr Landes also there addressed the 26 February Meeting, which I address in the chronology below, and provided a significantly different account of that meeting to that provided by Messrs Drebber and O’Connor. Again, little turns on the dispute as to what was or what was not said at that meeting, or the performance concerns which Messrs Drebber and O’Connor may or may not have had in respect of Mr Landes in the previous four years, where those concerns, and any underlying facts, would not have supported their conduct in issue in the proceedings. Mr Landes also there addressed the previous operation of a short term incentive plan adopted by Lanmar in 2021 which Messrs Drebber and O’Connor had threatened to reintroduce in the course of their dealings with Mr Landes in the first quarter of 2025. He also addressed the question whether the statement as to cash reserves in the NAMSS tender justified the majority directors’ decision not to declare dividends in 2025, to which I return below. Mr Landes also there criticised references to Mr Drebber as “managing director” of Lanmar, although I recognise that there are references to Mr Drebber holding that position in correspondence over a significant period, which suggest that Mr Drebber may have occupied that position in fact although it is not apparent that he was formally appointed to it.

15. Mr Landes also there addressed a conflict of duty and duty affecting Messrs Drebber and O’Connor in their dealings with Forge, which will be important for my findings below. He also responded to an allegation made by Messrs Drebber and O’Connor that he had made unauthorised payments to two contractors to Lanmar, and responded to a claim that he had falsely held himself out as the company secretary of Lanmar in signing a contract for Lanmar. That claim had no proper basis and Mr Gooley, rightly, withdrew a question put to Mr Landes in cross-examination as to that matter when I invited him to identify a proper basis on which it could be put. Mr Landes in turn responded to other allegations raised by the Defendants as to the adequacy of the performance of his role, which it is also not necessary to address.

16. By a fourth affidavit dated 11 September 2025, Mr Landes attached an additional document sent to Lanmar by Origin Securities, a potential financial adviser to Lanmar in respect of a sale process for its shares. By a fifth affidavit dated 26 September 2025, Mr Landes addressed details of the pricing model adopted for the contract between the Commonwealth of Australia and Lanmar for the NAMSS project (“NAMSS Contract”) and referred to a meeting on 1 July 2025 discussing the employment of further staff to carry out the NAMSS Contract and further directors’ meetings on 18 July 2025 and 12 September 2025, which I address below.

17. By a sixth affidavit dated 24 October 2025, Mr Landes responded to two further affidavits of Messrs Drebber and O’Connor dated 10 October 2025. It is plain enough that, by this point, the disputes between the parties had developed a momentum of their own and that, as quickly as further disputes arose, the parties led further affidavits about them in these proceedings. Mr Landes addressed a dispute as to the extent to which he had prepared Tenderers' Data Requirement Lists (“TDRLs”) referred to in Mr Drebber’s evidence and qualified his earlier evidence as to the extent of his responsibility for financial functions for Lanmar, there contending that the financial responsibility for Lanmar was shared equally between the directors. As I noted above, any dispute as to this matter was of little utility where it reflected a lack of clarity in what was meant by either “financial functions” or “financial responsibility” in this context. Mr Landes again addressed the meeting on 1 July 2025 and a directors’ meeting on 12 September 2025, and addressed questions of a profit workbook for the NAMSS Contract and the profitability of that tender, which I address below. Mr Landes also addressed an arid dispute as to whether he or Mr Drebber had relevant relationships with senior officers of the Australian Navy that were said to be important to Lanmar. The aridity of that dispute is emphasised, not least by the fact that the parties now agree that Lanmar should now be wound up, unless the buy-out order sought by WLLHLL is made or I make an order appointing a receiver for the sale of its shares as alternatively sought by WLLHLL. Any relationships of Mr Drebber or Mr Landes with senior officers in the Australian Navy will be of little apparent utility to a company that is then in liquidation, where its contracts with the Commonwealth would likely be terminated on that basis.

18. By a seventh and late affidavit dated 1 April 2026, which WLLHLL was granted leave to read in breach of a qualified guillotine order only because no objection was taken to its lateness by the Defendants, Mr Landes referred to further documents relating to the financial position of Lanmar and made minor corrections, or additions, to his earlier affidavits.

19. Mr Landes was cross-examined at length, perhaps unsurprisingly, given his multiple affidavits on which WLLHLL relies. I refer to significant aspects of that cross-examination in dealing with the chronology of events below, and I have reviewed and had regard to the whole of that cross-examination. Mr Landes was a careful witness, who typically paused before he answered any question, likely to consider its implications. There were areas of Mr Landes’ evidence that seemed to me to be inconsistent with the objective probabilities, including his claim that he had not reduced his level of contribution to Lanmar since the 26 February Meeting, notwithstanding the several occasions on which he has declined allocations of particular tasks to him. I think it likely that Mr Landes’ evidence was significantly influenced by his conviction that he had been unfairly excluded from Lanmar, which is well-founded, and by his hope to obtain an order that WLLHLL’s shares be bought out at a substantial price in these proceedings. I do not treat Mr Landes’ evidence as untruthful, but I approach that evidence with caution.

20. Mr Landes was cross-examined at some length (T86) to establish the fact, which was common ground, that he had received the same earnings as other directors by way of dividends from Lanmar in the period in issue in these proceedings. I bear that fact in mind, but also recognise that there is an issue whether the steps taken by Messrs Drebber and O’Connor in 2025, which would potentially change that position in future, amounted to oppression. Mr Landes fairly accepted (T90) that, until February 2025, he and Mr Drebber signed contracts together on behalf of Lanmar and that regular meetings and informal phone calls took place between Lanmar’s directors. I will refer below to the effect of the withdrawal of unanimous consent to that informal approach below. Mr Landes was also cross-examined (T92ff) as to the process adopted by Lanmar for record keeping, and I accept he had access throughout the relevant period to documents maintained in Lanmar’s records. Mr Landes was also cross-examined (T93ff) about Lanmar’s quality management system, although I do not accept that that system is of particular significance to the questions of corporate governance raised in these proceedings. Mr Landes was cross-examined to seek to establish the proposition that the work done by Messrs Drebber and O’Connor, including in respect of the NAMSS Contract, significantly exceeded his contribution (T105ff) but, unsurprisingly, did not accept that proposition. Mr Landes was also cross-examined (T108ff) as to the constitution of the NAMSS project team. Mr Landes denied that Messrs Drebber and O’Connor prepared most of the content of the NAMSS tender included in the TDRLs. Mr Landes was also cross-examined (T111ff) as to the tender pricing support workbook and recognised that Lanmar would need additional staff to carry out the NAMSS Contract if it was successful in its tender (T114). Mr Landes was also cross-examined (T115ff) as to the extent of his involvement in recruiting employees to perform the NAMSS Contract, although it is not necessary to determine that question. I recognise that the steps to employ those persons were largely taking place after the 26 February Meeting, and after the directors had sought to narrow or prevent Mr Landes from being involved in the NAMSS Contract at an operational level.

21. Mr Landes was also cross-examined as to the practice of contracting parties as to whether they recruited the full number of staff contemplated by a tender. I am inclined to think that, after a complex tender process, the Commonwealth would look at the result as to the continuing performance of the contract, and would be largely indifferent to whether the tendering party was able to perform the work with less or more staff than was anticipated when the tender was made, so long as that did not prejudice the performance of the contract.

22. The Defendants read the affidavit dated 10 August 2025 of Mr Drebber, which was initially prepared in respect of an interlocutory application filed by WLLHLL in early August 2025. Mr Drebber there claimed (Drebber 10.8.25 [40]) that it had “become extremely onerous for [Mr Drebber] to continue to be a director and shareholder” of Lanmar, but acknowledged the work done by Mr Landes in the past as follows:

“The three directors had worked together and rolled their sleeves up for the benefit of Lanmar in the past. This is no longer the situation and Mr Landes has resiled from any active work in the company. Mr Landes states that he is willing to attend board meetings, but all of the work is being performed by Mr O’Connor and I. I now feel that it is just and equitable that [the] company be wound up or its shares/business sold. I wanted to be out of Lanmar.”

23. This evidence is significant for its acknowledgement that, at a previous time, Mr Landes (and other directors) had in fact “rolled [his] sleeves up for the benefit of Lanmar”, from which Mr Drebber sought to retreat in cross-examination. Mr Drebber does not there say when Mr Landes had ceased to cooperate in the conduct of the business in that way, although I recognise that Mr Landes declined to assume responsibility for several matters after the 26 February Meeting to which I refer below. Mr Drebber’s evidence that he (Mr Drebber) “wanted to be out of Lanmar” is plainly inconsistent with the events set out below, which point to the steps that he took towards excluding Mr Landes from Lanmar rather than to any attempts on his part to exit Lanmar, and is also inconsistent with his acknowledgement in cross-examination that he did not wish to sell the shares in Lanmar to a third party, given its prospects for future growth.

24. Mr Drebber also there referred to discussions with KordaMentha in May 2025, relating to a possible acquisition of Lanmar by KordaMentha and to his attitude to retaining Origin Securities to obtain a valuation of Lanmar. He also referred to the position in respect of a subcontract between Lanmar and Forge, and noted that he and Mr O’Connor were directors of Forge, together with Mr Ross-Smith. His evidence is that he and Mr O’Connor disqualified themselves from acting on behalf of Forge, but not Lanmar, in respect of the relevant negotiations. It is not apparent how that partial disqualification addressed their conflict of duty and duty, so far as they continued to make decisions for Lanmar where Lanmar and Forge had differing interests in the negotiation. I return to that matter below. That affidavit addressed other matters relevant to the interlocutory application, although their relevance to the substantive proceedings is not immediately apparent.

25. By a second affidavit dated 25 August 2025, Mr Drebber addressed a range of matters, many of which were tangential to the issues pleaded in the proceedings. Mr Drebber, like Mr Landes, addressed the nature of Lanmar’s business, and there is no substantive dispute between the parties as to the nature of that business. He noted that Lanmar enters into contracts with third parties and that most of Lanmar’s revenue is derived from contracts with the Commonwealth Government and specifically the Department of Defence, and he referred to contracting requirements applicable to contracts with the Commonwealth. Mr Drebber also addressed his background and experience; his professional dealings with Mr O’Connor since 2008; and his subsequent employment with the Department of Defence as a public servant, working with the Royal Australian Navy. He also set out, at length, the several accolades which he received in that role. Mr Drebber also referred to his initial contact with Mr Landes in November 2019 and to discussions between them as to establishing Lanmar in mid-2020. He also addressed subsequent discussions concerning bringing Mr O’Connor into Lanmar as an equal director and shareholder. There is a degree of dispute as to those discussions, which it is not necessary to resolve to determine these proceedings. Mr Drebber also referred to the Lanmar Principles, and I refer to his evidence in that regard below. Mr Drebber also referred to discussions concerning a possible shareholders agreement in early 2022, when a company controlled by a Mr Paesler was a shareholder in Lanmar, and noted those discussions were not finalised and no shareholders agreement was executed at that time. He also addressed a “buy back” of all shares in Lanmar in 2023 in conjunction with the issue of shares in Lanmar to WLLHLL, MDTI and PCKOC.

26. Mr Drebber’s evidence is that there was a “broad understanding” between himself, Mr Landes and Mr O’Connor that Mr Drebber would serve as managing director of Lanmar. While there was a controversy as to whether Mr Drebber was appointed, or formally appointed, as managing director of Lanmar, I accept that the parties appear to have proceeded on the basis that he occupied a role of that character. Mr Drebber also referred to Mr Landes having assumed responsibility for Lanmar’s financial functions, for setting up financial accounts and for a Xero account for Lanmar (Drebber 25.8.25 [74]). Mr Drebber also addressed the somewhat informal way in which Lanmar operated, possibly because Mr Landes was based in Queensland and generally attended meetings by Microsoft Teams or by telephone. Mr Drebber also referred (Drebber 25.8.25 [81]) to the range of meetings held by Lanmar’s management.

27. Mr Drebber also addressed (Drebber 25.8.25 [84]ff) the introduction of a quality management system in Lanmar, aligned to ISO 9001, which is a standard for quality management systems. That quality management system may be relevant to the performance of Lanmar’s services to third parties, although its relevance in these proceedings was more obscure. Mr Drebber advanced criticisms of Mr Landes’ conduct of Lanmar’s financial functions (Drebber 25.8.25 [98], admitted with a limiting order under s 136 of the Evidence Act) and referred to Mr Landes having removed Xero payroll access for Mr O’Connor and himself on 26 February 2025. That was plainly an inappropriate action on Mr Landes’ part, presumably taken in response to the 26 February Meeting. Mr Drebber also addressed a business planning session in August 2024.

28. Mr Drebber also addressed (Drebber 25.8.25 [111]) the manner in which Lanmar entered into contracts at length. The Defendants in turn point to many occasions, before the disputes arose by at least February 2025, on which Lanmar executed documents that had not been authorised by a board resolution. I accept, for example, that, in August 2020, Messrs Landes and Drebber executed a contract with Envoltec without a board resolution (Drebber 25.8.25 [111]; Ex J2, 2079); in April 2021, Mr Landes requested Mr Drebber execute a particular contract without him signing and without a board resolution being passed (Drebber 25.8.25 [111]; Ex J2, 2286); and on 29 April 2021, a tasking statement was executed by Messrs Landes and Drebber without consulting Mr O’Connor and without a board resolution being passed (Drebber 25.8.25 [111]; Ex J2, 2404). I will not multiply examples over subsequent years, which are addressed in the evidence, although I note that, as late as 24 February 2025, another contract was executed by Messrs Landes and Drebber without a board resolution (Drebber 25.8.25 [111]; Ex J2, 5931). The process adopted prior to late February 2025 does not assist the Defendants, where it was arguably available with the shareholders’ unanimous consent, but was not available once Mr Landes withdrew his consent to it.

29. Mr Drebber then addressed (Drebber 25.8.25 [112]ff) a short term incentive plan that was adopted by Lanmar in June 2021, although it appears that plan later passed out of use. He also outlined the circumstances in which Lanmar paid dividends, prior to and after the discussions concerning the introduction of its dividend policy in February 2024 (Drebber 25.8.25 [117]ff). Mr Drebber also addressed contracts entered into by Lanmar, including a Navy Platform Telemetry Analysis System Acquisition Contract (“NMP-1989 Contract”) and the NAMSS Contract. He contended that there were failures by Mr Landes in preparation of the tender for the NAMSS Contract (Drebber 25.8.25 [138]ff). He did not indicate any corresponding concern as to the fact that he and Mr O’Connor had each taken three weeks off at Christmas and New Year during the period in which that tender was to be prepared and left Mr Landes to progress the advancement of the tender in their absence. Mr Drebber also referred to discussions with Mr O’Connor prior to the 26 February Meeting, to that meeting and to Mr Landes’ email dated 3 March 2025 in response to that meeting, which I address in the chronology below.

30. Mr Drebber in turn referred to the fact that working files for the NAMSS tender were stored on Lanmar’s SharePoint system and that directors had access to them (Drebber 25.8.25 [172]). Mr Drebber’s affidavit evidence discloses, although he does not there seek to explain, a delay of nearly a week between Mr Drebber being advised that Lanmar was identified as the preferred tenderer for the NAMSS Contract and his advising Mr Landes of a contract negotiation register created on 27 April 2025, referable to the NAMSS Contract negotiations. Mr Drebber acknowledged that Mr Landes was not involved in the negotiation for the NAMSS Contract (Drebber 25.8.25 [177]), although he sought to justify the position by the submission that Mr Landes “was not integrated into any of the services being provided under the [NAMSS Contract]” and that Messrs Drebber and O’Connor (implicitly without Mr Landes’ involvement) had agreed that Mr Landes:

“was better placed to focus on servicing and building his own portfolio of work, as discussed with Mr Landes at the August [2024] Business Planning Session.”

31. Mr Drebber in turn addressed a proposed bank guarantee to be provided to the Commonwealth in respect of the NAMSS Contract and referred to terms of the NAMSS Contract. He also addressed aspects of a Maritime Advanced Data Analytics strategic project and advanced criticisms of Mr Landes’ role in that project, in evidence largely admitted with a limiting order under s 136 of the Evidence Act as submission and not proof of the fact.

32. Mr Drebber also addressed (Drebber 25.8.25 [226]ff) the relationship between Forge and Lanmar, and issues in respect of the entry into a services agreement with Forge in May 2025. Mr Drebber also addressed an allegation that was at one point made by the majority directors concerning Mr Landes’ authorising payments to a third party software developer, and criticised Mr Landes for paying an invoice issued by that developer which was not approved by Messrs Drebber or O’Connor, notwithstanding his evidence elsewhere of Lanmar’s common practice of entry into contracts and of taking other steps without board approval. It appears this criticism is founded on a resolution passed at a board meeting of Lanmar on the same date as to payment processes.

33. Mr Drebber also addressed (Drebber 25.8.25 [255]) a suggestion by Mr O’Connor to use the quality management system, collective action requests and standard procedures to handle problems and causes, and gave an example of the application of that system to address allegations made by Mr Landes that he and Mr O’Connor were acting in breach of Lanmar’s constitution. He also referred to the implementation of an issue resolution register (Ex J2, 9486) by Mr O’Connor. Where Mr Landes had made clear that he required compliance with Lanmar’s constitution in respect of corporate decision-making and had withdrawn his consent to informal alternatives, it seems to me that the solution to that matter was to comply with the constitution rather than to create an issue resolution register to record and discuss ongoing failures to do so. Mr Drebber in turn referred to a communication from Mr Landes, in late June 2025, indicating that he would not be carrying out specified activities or other activities relating to the acquisition of hardware and software for the NAMSS Contract, which he characterised as Mr Landes declining to “carry out ordinary tasks on behalf of Lanmar” (Drebber 25.8.25 [264]–[265]). By that time, the dispute between the parties was well-advanced and Mr Landes had largely been excluded from any significant role in that contract.

34. Mr Drebber also addressed the breakdown in trust and working relationship between Messrs Drebber and O’Connor on the one hand and Mr Landes on the other, which is now common ground, although his criticisms of Mr Landes’ performance were not admissible and were only admitted with a limiting order under s 136 of the Evidence Act as submission and not proof of the fact. Mr Drebber also addressed the reasons why he and Mr O’Connor did not accept Mr Landes’ offer to sell WLLHLL’s shares in Lanmar to them and criticised aspects of that offer and the time allowed to accept it (Drebber 25.8.25 [277]ff). His evidence in that regard misses the fundamental difficulty that, where a majority seeks to exclude, in substance, a minority, then its doing so without offering to acquire the minority’s shares on reasonable terms will often constitute oppressive conduct. I will return to issues that arise in the proceedings as to the proof of offers made by the Defendants to acquire WLLHLL’s shares.

35. Mr Drebber also gave evidence, by bare assertion, that it was not possible for MDTI, his wife or himself to obtain or service the level of debt that would be required to acquire Mr Landes’ shares at the price he had offered (Drebber 25.8.25 [285]). This evidence was not in admissible form and was admitted with a limiting order under s 136 of the Evidence Act as submission and not proof of the fact.

36. By a third affidavit dated 24 September 2025, Mr Drebber addressed matters relating to the proposed engagement of Origin Securities as a financial adviser in respect of a proposed sale of Lanmar’s shares. He also referred to Lanmar’s earnings as at 30 June 2025 and to its projected earnings for the 2026 financial year. By a fourth affidavit dated 10 October 2025, Mr Drebber responded to Mr Landes’ affidavit dated 26 September 2025, referring to the NAMSS tender pricing workbook (“Tender Pricing Workbook”), a profit workbook and meetings on 1 July, 18 July and 12 September 2025. He also addressed the circumstances in which salary increases had been given to employees of Lanmar, which were the subject of challenge by Mr Landes. By a fifth and late affidavit dated 7 April 2026, which the Defendants were granted leave to read in breach of a qualified guillotine order only because no objection was taken to its lateness by WLLHLL, Mr Drebber gave further evidence that sought to establish his lack of capacity to fund a buy-out of WLLHLL’s shares, at least at the price that Mr Landes had originally offered to sell those shares.

37. Mr Drebber was also cross-examined at length. I address significant aspects of that cross-examination in the chronology below and have had regard to the whole of it. Mr Drebber was cross-examined, inter alia, as to the restructuring of Lanmar and subsequent communications concerning the dividend policy (T170ff); the draft of the NAMSS tender submission, including the tender submission made as to Lanmar’s anticipated growth, which I address in the chronology below (T177ff); and as to a “scalability planning” document that anticipated Lanmar’s substantial growth, which I also address below (T179ff). Mr Drebber was a disciplined witness, who responded directly to questions, often simply denying matters put to him or indicating his lack of recollection of those matters. However, his evidence that he did not recall many matters contrasted with his affidavit evidence, which provided a detailed account of events and conversations and his thinking at particular times. Mr Drebber rarely made concessions as to, and largely denied, the obvious implications of the steps that he had taken, and I am satisfied that he would not have made any concession that he perceived as adverse to his interests in the proceedings. I approach Mr Drebber’s evidence as to disputed matters with scepticism, unless corroborated by documents.

38. The Defendants also read the first affidavit dated 10 August 2025 of Mr O’Connor, also prepared in respect of the interlocutory application filed by WLLHLL in early August 2025. Mr O’Connor there addressed discussions concerning a potential sale of shares in Lanmar to third parties, discussions with KordaMentha, the possible retainer of Origin Securities to advise in relation to a sale and issues in respect of the retainer of a firm of solicitors in the negotiation of the contract between Lanmar and Forge.

39. By a second lengthy affidavit dated 25 August 2025, Mr O’Connor addressed largely the same matters as Mr Drebber’s affidavit of the same date. Mr O’Connor there addressed the circumstances in which he became involved in Lanmar, early discussions as to a shareholders agreement, remuneration of directors and Lanmar’s dividend strategy. He identified the allocation of work between Lanmar’s directors in evidence that was not in admissible form and which was admitted with a limiting order under s 136 of the Evidence Act as submission and not proof of the fact. He also addressed the adoption of a quality management system by Lanmar, also noted by Mr Drebber, the process for meetings between its directors and the employment of staff by Lanmar. He addressed several projects undertaken by Lanmar and relations between Lanmar and Forge in late April 2025. Mr O’Connor also addressed the entry into the NAMSS Contract and the bank guarantee in respect of that contract, and he too referred to the payment of a subcontractor’s invoice by Mr Landes, which he contended (by bare assertion) took place after the board meeting on 9 May 2025.

40. Mr O’Connor also advanced numerous criticisms of Mr Landes’ performance, largely by evidence that was not in admissible form and was admitted with a limiting order under s 136 of the Evidence Act as submission and not proof of the fact. He also addressed the conduct of the 26 February Meeting, without disclosing his and Mr Drebber’s reliance on ChatGPT to develop the strategy adopted at that meeting and subsequently. He, like Mr Drebber, contended that Mr Landes had since declined to perform ordinary tasks for Lanmar and had failed to comply with board resolutions passed by the majority directors over Mr Landes’ objections. Mr O’Connor in turn criticised Mr Landes for threats of litigation against Mr Drebber (O’Connor 25.8.25 [269]ff, admitted with a limiting order under s 136 of the Evidence Act) which would ordinarily be understood, in the context of these proceedings, as Mr Landes properly invoking the Court’s jurisdiction to seek to protect his and WLLHLL’s rights.

41. By a third affidavit dated 10 October 2025, Mr O’Connor addressed substantially the same matters as Mr Drebber had addressed in his evidence of the same date, giving substantially the same evidence in respect of those matters. By a fourth and late affidavit dated 7 April 2026, which the Defendants were granted leave to read in breach of a qualified guillotine order only because no objection was taken to its lateness by WLLHLL, Mr O’Connor gave further evidence that also sought to establish his lack of capacity to fund a buy-out of WLLHLL’s shares, at least at the price that Mr Landes had originally offered to sell those shares.

42. Mr O’Connor was also cross-examined at length. I address significant aspects of that cross-examination in the chronology below and have had regard to the whole of it. He was also cross-examined, inter alia (T287), as to the restructuring of Lanmar in 2024 and the discussions as to dividends at that point; and he, like Mr Drebber, said that discussions as to that policy had been directed to the 23/24 and 24/25 financial years. Mr O’Connor was also cross-examined as to the tender process in respect of the NAMSS contract (T289) and the extent of Mr Landes’ involvement in the preparation of that tender. Both Messrs Drebber and O’Connor were cross-examined, at some length, as to their several discussions with third parties which appear to have touched upon the possibility of a sale of shares in Lanmar, or raising capital to buy out WLLHLL’s shares in Lanmar, although it is not apparent that those discussions were ever significantly advanced.

43. I address the expert evidence led by the parties in dealing with valuation issues below.

The matters in issue and chronology

44. The matters in issue and the extent of the factual dispute emerge from the Amended Points of Claim (“APOC”) filed by WLLHLL on 19 September 2025, the Further Amended Points of Defence of Messrs Drebber and O’Connor, MDTI and PCKOC (“POD”) and the parties’ respective chronologies. The chronology set out below records my findings as to contested facts, referable to the affidavit and documentary evidence and cross-examination.

45. WLLHLL pleaded (APOC [10]) that, since about April 2021, Lanmar’s shareholders (and, implicitly, their controllers) had agreed to conduct themselves, and conducted themselves until about February 2025, in accordance with the Lanmar Principles, which included the agreement that each member would participate in the management of Lanmar. WLLHLL further particularised this allegation by reference to the parties’ conduct, as follows:

“The agreement that each member would be entitled to participate equally in the management of Lanmar is further to be inferred from the parties’ actual conduct, according to which, between about April 2021 until about February 2025, the management of Lanmar was in practice operated by consensus agreement and discussions between Mr Landes, Mr Drebber and Mr O’Connor.”

46. It is common ground that the Lanmar Principles did not have legally binding effect and did not bring about any amendment to Lanmar’s constitution. However, the Defendants fairly accept that they “were broadly agreed to” and “included an inferred agreement that each member would participate in the management of Lanmar”, although they also point to Lanmar’s practices as to the sharing of workload and remuneration. In his affidavit dated 25 August 2025, Mr Drebber recognised that the Lanmar Principles were not a signed agreement (and Mr Landes does not contend to the contrary), but accepted that there was broad agreement on the Lanmar Principles which he characterised as “including equal contribution, performance-based remuneration, and protocols concerning share transfers” (Drebber 25.8.25 [58]).

47. The Lanmar Principles (Ex J2, 2188ff) relevantly recorded that:

“1. LANMAR is founded on trust. Trust the owner the best interests of the business.

2. LANMAR is a low-cost start up company that will grow primarily through organic means.

3. LANMAR is not designed to flip in the short term and is a business the owners are committed to building on strong foundations. …

11. Whilst there is no fixed profit-sharing model, LANMAR owners are to consider the efforts and value brought to the business through the efforts of each owner to assess if profits through distributions, dividend, bonus etc should be skewed/altered to compensate appropriately. As a business founded on trust, honesty and integrity, the owners are to consider this from all perspectives.

12. The split mentioned above should only be necessary in extreme situations as the owners must make efforts to split the work load as evenly as possible. As a start up there is a highly variable and potential skewed income stream until such time as a form of balance is found, and the owners are all LANMAR staff.”

48. Paragraph 17 of the Lanmar Principles in turn recognises that an owner can sell his or its share of the business but records that the owner “must give the other owners fair notice and the first opportunity to buy the share”. That paragraph contemplates that the value of those shares would be agreed by the owners or by averaging the value provided by two independent business owners, and contemplates that a selling shareholder must sell to the other owners at that valuation, even if the selling owner had obtained a higher offer from a third party, unless the shareholders agree to accept that third party offer. There is also a mechanism to buy out a shareholder’s shares on his or her death or incapacitation. These provisions are, of course, not legally binding where it is common ground that the Lanmar Principles were not legally binding.

49. The Defendants placed weight in submission on WLLHLL’s ability to sell its shares to a third party, as recognised by paragraph 17 of the Lanmar Principles and cl 7 of Lanmar’s constitution (Ex J2, 2009) which permits a member to transfer all or any of its shares, subject to the directors’ discretion to refuse to register any transfer of those shares. Mr Landes was cross-examined (T86) as to his ability to sell his shares, under Lanmar’s constitution and the Lanmar Principles, and as to his failure to transfer his shares to someone other than Messrs Drebber’s or O’Connor’s interests. I accept that, under Lanmar’s constitution and the Lanmar Principles, WLLHLL had the legal ability to sell its shares in Lanmar, although there is no reason to think that it had the practical ability to do so, at least after Messrs Drebber and O’Connor commenced the steps that are in issue in these proceedings. However, the Defendants’ reliance on this matter has a fundamental difficulty, of the kind that I noted in Yamari Ochre at [31] and [99]. It may be that, in theory, WLLHLL could sell its shares in Lanmar to a third party which wished to acquire an interest in a closely held company, where a director associated with each shareholder was historically involved in the conduct of its defence consulting business. However, that proposition does not come to grips with the fact that, if WLLHLL sought to sell its shares, it would be apparent to a third party that Messrs Drebber and O’Connor had determined to act together and to use their and their companies’ power as majority directors and majority shareholders so as to dictate the scope of the minority director’s and minority shareholder’s participation in Lanmar. There is no reason to infer, and the Defendants did not seek to establish, that a rational third party purchaser would have any interest in acquiring Lanmar’s shares, still less at fair value, so as to substitute itself for WLLHLL and Mr Landes in that situation.

50. Turning to the issue of the short term incentive plan, Lanmar had adopted an earlier short term incentive plan in 2022 and subsequently ceased to use that plan after Mr Paesler had left, or been forced out of, Lanmar. Mr Landes was cross-examined (T72) as to that earlier short term incentive plan. I recognise that the short term incentive plan likely then operated to increase other directors’ remuneration at the expense of Mr Paesler and likely encouraged Mr Paesler’s exit from Lanmar, and that Mr Landes had participated in or at least benefited from that approach. While that raises the possibility that earlier conduct in respect of Mr Paesler may also have been oppressive, it does not have the consequence that Messrs Drebber’s and O’Connor’s later plan to adopt the same approach in respect of Mr Landes did not constitute oppression.

51. Earlier evidence is inconsistent with the Defendants’ claim that Mr Landes had not significantly contributed to Lanmar over the previous four years. When discussions took place about the short term incentive plan on 27 July 2022 (Ex J2, 3123), Mr Drebber proposed that he would be paid a director bonus of $90,000 and that Mr Landes would be paid a director bonus of $80,000, in comparison with a bonus to Mr O’Connor of $20,000, and emphasised the extent to which his and Mr Landes’ contributions to Lanmar exceeded those of Mr O’Connor’s at that time. He there observed that:

“With [Mr O’Connor], because he has been pretty much exclusively embedded in Ventia, it has impacted the ability to generate new work. Now that he is with us in the main game that will change quickly. Unfortunately, it has been a bit of a satellite to LANMAR.

The reason behind higher bonuses for [Mr Landes] and I is due to the work we have generated as well as the risk we took in establishing [Lanmar].”

52. Mr Drebber was cross-examined (T167ff) as to his assessment of Mr Landes’ contribution at this time. I do not accept his attempt in cross-examination to minimise the first of those factors and the work done by Mr Landes in that period and attribute the higher bonus that he then proposed for Mr Landes only to his role in establishing Lanmar. I accept that, at that point, he considered that Mr Landes was making a substantial contribution to Lanmar. Mr Drebber also responded, in cross-examination, to the proposition that, until early 2026, he and Messrs Landes and O’Connor “rolled up [their] sleeves and did whatever had to be done for the good of the company” (T169), which had been drawn from his first affidavit, with an equivocal answer “within reason” which did not become clearer when he was further cross-examined about it.

53. On 1 January 2024, Lanmar declared a dividend of $100,000 for each shareholder (Drebber 25.8.25 [122]; Ex J2, 3948).

54. WLLHLL pleaded (APOC [11]) that, in early 2024, Messrs Landes, Drebber and O’Connor attended a meeting to discuss a restructure of the shareholding of Lanmar and agreed, amongst other things, that Lanmar would pay a minimum dividend of $100,000 to each member on a 6-monthly basis (“Dividend Agreement”). The Defendants responded (POD [11]) that they:

“a. admit that a meeting between Mr Landes, Mr Drebber and Mr O’Connor occurred to discuss a restructure of the shareholding of Lanmar;

b. say that in that meeting there was a discussion about a minimum dividend of $100,000 payable every six months;

c. further say that to the extent any agreement was reached, which is denied, such agreement was subject to Lanmar’s cash flow requirements and the duty of the directors to act in the interest of Lanmar;

d. otherwise deny the matters alleged.”

It is not necessary to reach findings as to the status of this agreement or any qualifications to it where oppression is plainly established on other grounds.

55. On 21 February 2024, Ms Salvato, Lanmar’s accountant, recommended to Lanmar’s directors that a dividend policy be adopted that provided some consistency for the 23/24 and 24/25 financial years (Ex J2, 4124). On 26 February 2024, Mr O'Connor emailed Ms Salvato, with copies to Messrs Landes and Drebber, stating that "we will double the dividend and our policy is $100k minimum per party on a six monthly basis" (Ex J2, 4123). Mr Drebber accepted that the directors then agreed that Lanmar would pay a $100,000 dividend to each director half-yearly, but only if Lanmar had sufficient cash flow to meet all its obligations (Drebber 25.8.25 [119]–[120]; Ex J2, 3914).

56. On 6 March 2024, Lanmar’s directors resolved to declare a $100,000 dividend to each shareholder (Ex J2, 3940). On 11 March 2024, as part of the restructure of Lanmar’s shareholdings, WLLHLL, PCKOC and MDTI became Lanmar’s shareholders (Ex J2, 7451).

57. On 17 June 2024, Lanmar declared a dividend payment of $100,000 for each shareholder (Drebber 25.8.25 [122]; Ex J2, 4409). On 20 June 2024, Lanmar’s board passed a resolution to pay a $100,000 dividend to each shareholder (Ex J2, 4412).

58. On 31 July and 1 August 2024, Lanmar’s Annual Management Review Meeting was held in Canberra. Mr O’Connor’s evidence is that all directors were scheduled to attend but Mr Landes did not attend (O’Connor 25.8.25 [250]).

59. The Defendants also point to matters which suggest that Messrs Drebber and O’Connor may have carried a heavier workload that Mr Landes, at least at times. On 21 August 2024, Mr O'Connor circulated a draft Lanmar business planning session pack and Mr Landes responded by saying that the Pack “looks good” and that his “main comment is that I think I need to take analytics as I don't see the worksplit as fair on you” (Ex J2, 4740, 7659). Mr Drebber also relies on Mr Landes’ comment on that business planning session pack, in seeking to show that Mr Landes assumed a lesser level of responsibilities within Lanmar than Messrs Drebber or O’Connor (Drebber 25.8.25 [101]). Mr Drebber also refers to a discussion in August 2024 of his expectation that Mr Landes build a portfolio of work customers and contracts and recruit employees to the portfolio to deliver the work, and Mr Landes’ suggested recognition that he had few members of Lanmar’s staff reporting to him (Drebber 25.8.25 [103]). There is a dispute as to whether Mr Landes did so which it is not necessary to resolve. Even if there had been cause for dissatisfaction with Mr Landes’ performance, it does not follow that majority directors or shareholders in a closely held company in which all directors are involved in management, who are dissatisfied with a minority director’s performance, may alter the basis on which a closely held proprietary company is conducted or exclude that minority director and shareholder from management at will.

60. Mr Landes’ evidence (Landes 14.5.25 [40]ff; Ex J2, 4780) is that, on 22 August 2024, Messrs Drebber, O’Connor and Landes attended a business planning session. Mr Landes refers to a set of PowerPoint slides which allocated finance, human resources and industrial resources and secretarial functions to an unspecified director, and recognises that the reference to that director was likely to him. His evidence is that that was not the way in which Lanmar operated following that session and that he did not agree with the proposed allocation of responsibilities at that meeting, and he refers to Mr Drebber’s inconclusive response to his disagreement. Little turns on any dispute as to that matter.

61. On 1 September 2024, Lanmar declared a dividend of $200,000 for each shareholder (Drebber 25.8.25 [124(a)]; Ex J2, 4875).

62. On 31 October 2024, Mr Landes spoke to Ms Tan of the National Australia Bank (“NAB”) concerning a potential bank guarantee for the NAMSS Contract (Ex J2, 5073).

63. On 1 November 2024, Messrs Landes, Drebber and O'Connor adopted recommendations made by Ms Salvato anticipating future dividend payments to shareholders of $60,000 on 1 December 2024, $60,000 on 1 February 2025, $60,000 on 1 May 2025 and $120,000 on 1 June 2025 (Landes 14.5.25 [27]; Ex J2, 5084), Messrs Drebber and O’Connor denied in cross-examination that Lanmar’s directors had a dividend policy, or at least that that extended into 2025.

64. On 1 December 2024, Lanmar declared a dividend of $60,000 for each shareholder (Landes 14.5.25 [28]; Drebber 25.8.25 [124(b)]; Ex J2, 5201). WLLHLL complains that planned dividends for February, May and June 2025 were later not paid in accordance with the November 2024 arrangement.

65. On 6 December 2024, the Department of Defence released a Request for Tender for the NAMSS Contract, including a Statement of Work and conditions of tender involving TDRLs with a submission date of 21 February 2025.

66. Lanmar subsequently held internal meetings as to the tender. On 13 January 2025, a meeting took place between Messrs Landes, Drebber and O'Connor and an executive of Lanmar in relation to the tender (Ex J2, 5320); and a further meeting took place on 14 February 2025 between Messrs O'Connor, Drebber and Flannery (Landes 8.9.25 [247]; Ex J2, 5424, 5606). The status of tasks required for the tender and TDRLs were recorded on Monday.com, Lanmar's work platform (Drebber 25.8.25 [81]–[82], [142]). There is a collateral dispute as to the accuracy of that record, and whether it was over-optimistic, which it is not necessary to resolve.

67. On 16 or 17 February 2025, Lanmar’s directors met in Sydney to prepare the NAMSS tender submission (Landes 8.9.25 [169]–[171]; Drebber 25.8.25 [148]). Lanmar’s response to one of the TDRLs stated that Lanmar would “maintain minimum cash at bank equivalent to 6 x monthly payroll” (Drebber 25.8.25 [151]–[155]). There is a dispute, which it is not necessary to resolve, as to whether that statement might have warranted the non-payment of a dividend later proposed by Mr Landes. I find below that the amendment of Lanmar’s financial modelling, between 13 and 14 March 2025, to remove the proposed dividend payments was, as a matter of fact, not prompted by that matter but by the majority directors’ wish to place financial pressure on Mr Landes.

68. On 20 February 2025, Messrs Drebber and O’Connor exchanged texts (Ex J2, 5612–5613) to which neither referred in their initial affidavits. Mr Drebber observed that “I’m doing my deliverables, because he [Mr Landes] failed to do his and I had to”. I treat that observation as Mr Drebber’s perception, and whether it is correct or not has not been established. Mr O’Connor responded, sympathetically, “awful”. Mr Drebber then referred, with obvious sarcasm, to Mr Landes as “God’s gift to engineering” and then made the short but critical observation that:

“Okay, I think he [Mr Landes] needs to go”.

69. Mr O’Connor responded:

“Let’s talk it over Monday. It needs to be addressed”.

70. Mr Drebber then responded that:

“He’s [Mr Landes] a complete dud”.

71. A subsequent text from Mr Drebber notes that Mr Landes “just called me, sounds like he’s clocking off the tender”. Mr Landes claims that he returned from other work obligations to work on the tender later that day. It is not necessary to resolve that dispute.

72. Mr Drebber denied in cross-examination (T181) that, at the time of the exchange of a text message recording that Mr Landes “needs to go”, he had formed the belief that Mr Landes should cease to be involved in Lanmar; and his evidence was that he was upset at the time. It seems to me, on balance, that Mr Drebber was indeed upset at the time at a perceived lack of contribution by Mr Landes in the late stage of the tender, and that matter combined with his earlier perception as to Mr Landes’ performance prompted a decision, that was seriously made and then carried through, to reduce Mr Landes’ responsibilities in Lanmar, seek to exclude him from operational matters, and ultimately exclude him from Lanmar or substantially limit his involvement in it, in the manner that I set out below. Mr O’Connor acknowledged (T297) that, at the time of the text exchange, he wanted Mr Landes to go as a director of Lanmar, although he possibly then qualified that acknowledgement by then observing that he could not recall what he was thinking at that point.

73. This exchange of texts is obviously significant where Mr Drebber had already plainly formed the view, in private communications with Mr O’Connor, that Mr Landes “needs to go”. Neither Mr Drebber nor Mr O’Connor had there addressed the question whether it was open to two majority directors and shareholders of a company to form that view in respect of a minority director and minority shareholder, without also offering to acquire that minority shareholder’s shares for fair value. The view formed by Mr Drebber at that point explains the steps subsequently taken by Messrs Drebber and O’Connor, prior to the 26 February Meeting, to which I refer below. It might be thought that, when the majority directors and shareholders of a company, in the midst of tendering for a substantial government contract, formed the view that a minority director and a minority shareholder “needs to go”, they would prudently take advice as to how to implement that result in a manner that minimised resulting damage to Lanmar. Here, Messrs Drebber and O’Connor instead obtained the information on which they then relied from ChatGPT.

74. On 21 February 2025, Lanmar submitted its tender for the NAMSS Contract to the Commonwealth and executed the required deed poll in relation to that contract against the possibility that it would succeed in the tender (Landes 14.5.25 [104]; Drebber 25.8.25 [141]ff; O’Connor 7.4.26 at [15]). One of the documents submitted in that tender, TDRL A2, dealt with Lanmar’s “Profile and Past Performance” (Ex J2, 5697) and contained information as to Lanmar, its background and its forecast development, which was verified by Lanmar in the deed poll provided to the Commonwealth. That document recorded that:

“Established in July 2020, LANMAR has grown from a small, specialised team into a multi-disciplinary organisation of 25 staff. We have steadily expanded our services, clientele and technical capabilities over 4 years of operation. …

We provide specialist technical and engineering services to a range of asset-intensive industries. Our specialist advice and service areas cover: asset Management, Engineering, ICT solutions, IT Security, Project Management, Business Optimisation, Risk Management and Quality and Compliance.”

75. Lanmar also advised the Commonwealth as to the extent of its reliance on revenues from the NAMSS Contract, in terms that emphasised its expectations as to future growth in its business, as follows:

“The proportionate value to LANMAR of the [NAMSS] Contract, if the tender was accepted, in relation to our total income and value of work will be approximately 65% in PP1 [first year] and decreasing through PP2 and 3 [second and third years] as LANMAR continues to grow.

Lanmar’s 2024/25 revenue is tracking at ≥ $11.5M with currently contracted work with opportunities for that to increase further. …”

Mr Drebber, perhaps reluctantly, accepted in cross-examination that those observations had a reasonable basis, and Mr O’Connor readily accepted that matter in cross-examination.

76. The Defendants also rely on a statement made in Lanmar’s tender documents as to a practice of maintaining cash at bank equivalent to six times monthly payroll. In his second affidavit, Mr Drebber addressed (Drebber 25.8.25 [138]ff) the execution of a deed poll in respect of the NAMSS Contract and the so-called “minimum cash reserves representation” made in one of the TDRLs relating to the NAMSS tender submission, on which the Defendants rely to support the refusal to declare dividends in Lanmar during 2025. Mr Landes’ evidence in cross-examination (T110) was that he was not aware of that statement or of such a policy. I accept that there is a tension between that evidence and his acknowledgement that he helped prepare that submission and knew of its contents, although I also recognise that that tender was being prepared under time pressure.

77. WLLHLL also relies on communications between Messrs Drebber and O’Connor which preceded the 26 February Meeting and on advice taken by them from (surprisingly) ChatGPT as to the strategy that they should then adopt. As will emerge below, ChatGPT did not prove to be a prudent choice of adviser so far as matters of Australian corporate law were concerned. Regrettably, the steps subsequently taken by Messrs Drebber and O’Connor raised major risks for Lanmar, placing the ongoing value of its business at risk; for Lanmar’s employees, who would potentially lose their jobs if a winding up order is made; for Messrs Drebber, O’Connor themselves and for Mr Landes, from the proceedings and any associated loss of the value of the shares in Lanmar; and for the Commonwealth Government, so far as it was previously obtaining value from Lanmar’s services.

78. Mr Drebber’s evidence is that he had a conversation with Mr O’Connor, apparently prior to the 26 February Meeting, in which he said words to the following effect (Drebber 25.8.25 [160]):

“Drebber: ‘I am really unhappy with [Mr Landes’] performance. We are carrying him and putting a lot of pressure on ourselves. We need to have a meeting with him to discuss his persistent poor performance and address our long-standing concerns.’

O’Connor: ‘I agree.’”

79. At 2.15pm on 24 February 2025, Mr O’Connor emailed Mr Drebber a document (Ex J2, 6208, 6209), prepared with the assistance of ChatGPT, headed “HR problem resolution”. Mr Drebber was cross-examined (T183ff) as to that document, and his evidence in cross-examination (T193) was that he knew that the document provided by Mr O’Connor had been drafted by an adviser, but did not know it was created, or largely created, by ChatGPT, and did not know where it came from. His evidence was also that the approach that he and Mr O’Connor adopted in respect of Mr Landes was “based off experience with [Mr] Paesler and that advice had then been taken”. I take that to be a reference to the steps that were previously taken which led to Mr Paesler exiting Lanmar.

80. Mr O’Connor fairly acknowledged (T298) that the email exchange concerning this document took place from his and Mr Drebber’s private email addresses in order to keep those communications off the books of Lanmar. Mr O’Connor’s evidence in cross-examination was that this document was largely prepared by him, although he had discussions with Mr Drebber before sending it to Mr Drebber (T300, T301); that the first four pages of that document were largely derived from ChatGPT; that the “Plan” on the seventh page of that document had both his and ChatGPT’s input; and that the discussion of “tax implications” in that document was derived from ChatGPT. Mr O’Connor did not accept (T305) that Mr Drebber agreed with the plan set out in this document, but accepted that Mr Drebber agreed with the version of the plan adopted in the discussions with Mr Landes at the 26 February Meeting. Mr O’Connor’s evidence in cross-examination (T313–314) was also that he and Mr Drebber were taking legal advice about how to deal with the dispute with Mr Landes before the 26 February Meeting, but he then said that he could not recall when legal advice had been obtained, although it had been obtained “well before” these proceedings were commenced.

81. By framing the question as an “HR problem”, that document distracted attention from the risk of oppression, for the purposes of the Act, in the course that Messrs Drebber and O’Connor were about to adopt. That document then recorded observations of Mr Landes’ work, presumably input into ChatGPT by Messrs Drebber and O’Connor, by contrast with their self-assessment of their own success. It identified a conflict resolution framework, the last step of which was described as “forcing/commanding”. That step may or may not have been open, in the context of employment law, but plainly did not reflect the relationship between directors or shareholders under Australian corporate law. That document addressed a “START” framework (comprising "situation, task, action, result, target") which was subsequently adopted by Messrs Drebber and O’Connor in dealing with Mr Landes. Mr O’Connor’s evidence in cross-examination was that he had previously used the START framework to address employee issues at an earlier employer.

82. That document expressly contemplated steps which would potentially have contravened Messrs Drebber’s and O’Connor’s statutory directors’ and fiduciary duties, including the diversion of business from Lanmar to other companies that did not include the assertedly underperforming director, essentially isolating his influence from the growing parts of the business. The document also addressed the last step of the “Plan” as follows:

“Preclude the Director from Day-to-Day management

(a) Option: Remove the under-performing director from any daily management or operational responsibilities, essentially making them more of a passive shareholder in the business. This would allow the remaining two directors to steer the day-to-day decisions without interference.

(b) Implementation:

● Clearly outline new roles and responsibilities within the company, with the under-performing director’s role reduced to high-level decision-making rather than operational involvement.

● If this decision is implemented, ensure director is still kept informed about key business decisions (but not actively involved in their execution) and has a stake in overall strategic direction.

(c) Risk: This could lead to feelings of exclusion of resentment if the under-performing director feels their contributions are being under-valued or marginalized. However, if framed as a way to get the business back on track and hold each director accountable, it may be a reasonable solution.”

83. That document identified several of the steps which were later adopted by Messrs Drebber and O’Connor in dealing with Mr Landes, including “[r]emoving existing responsibilities” identifying finance and CRM; removal as a director, which was not implemented although they later discussed seeking to bring about his resignation; and “[r]emoval of Directors remuneration”. First, this observation makes clear that the majority directors and shareholders, or at least Mr O’Connor in retaining that text in the document, were proceeding on the basis that they, inconsistently with the basis on which Lanmar was established and the Lanmar Principles, could specify the minority director’s “new roles and responsibilities within the company” and thereby “reduce” the assertedly underperforming director’s role. Second, while Mr Drebber, Mr O’Connor or ChatGPT may have been right to recognise that Mr Landes might well develop “feelings of exclusion or resentment” by reason that he was to be, and was, excluded from Lanmar’s management, it would have been preferable that they had also recognised the real risks to Lanmar arising from contravention of the oppression provisions in the Act, including the risk that it would be wound up and its value as a going concern destroyed.

84. Mr Drebber’s evidence is that, on 25 February 2025, before he could raise his suggested concerns with Mr Landes, Mr Landes contacted Mr Drebber to request a meeting the following day to “go through the concerns you raised” and stated that “I was not in a good way when you brought them up and haven’t addressed them since” (Drebber 25.8.25 [161]). On 25 February 2025, Mr O’Connor issued a Microsoft Teams Meeting invitation to Mr Landes headed "Performance and Support" to take place on 26 February 2025 (Ex J2, 6247).

85. By a further email at 1.34pm on 26 February 2025 (Ex J2, 6265), shortly before the 26 February Meeting, Mr O’Connor sent a revised version of the “HR Problem Resolution” document (Ex J2, 6250) to Mr Flannery, who provided human resource services to Lanmar, drawing his particular attention to a two-page script for what would be said to Mr Landes at the meeting. The section dealing with “Conflict Resolution Step 4 (forcing/commanding)” was there amended to state that that would occur within six months. That version of the “HR Problem Resolution” document recorded, with some amendments from the earlier version (Ex J2, 6258):

“Removal of Directors remuneration

(a) Option: Reduce the under-preforming director’s salary or compensation to reflect their contribution and performance. Since you’re all equal owners, this option could be framed as aligning the director’s compensation with the value they’re adding to the business.

(b) Implementation:

● Clearly define performance metrics (eg contribution to business growth, quality of work, timely compensation of tasks) that will be used to assess compensation adjustments.

● Let the director know that if performance does not improve, compensation will be adjusted accordingly.

(c) Risk: This may cause tension and could be seen as punitive, so careful communication is necessary to ensure it’s viewed as a fair measure tied to performance.”

86. There were, of course, other risks attached to the matter including that it would give rise to oppression, a winding up of Lanmar and the ultimate destruction of its value, which Messrs Drebber and O’Connor did not acknowledge. That document went on to again address the possibility of issuing performance-based bonuses and, in potential breach of fiduciary and statutory duties, starting new business lines in separate companies so as to divert work from Lanmar to those other companies.

87. In closing submissions, Mr Hughes submitted that, in seeking Mr Flannery’s advice, Messrs Drebber and O’Connor used company resources to advance their position in dealing with Mr Landes and that “[t]he Court ought to find that that was an improper use of the company’s resources to advance the Defendants’ personal interests in respect of a dispute between directors and shareholders”. I do not consider it necessary to reach such a finding, where it would not affect the conclusions that I reach on other grounds in respect of the oppression case.

88. Mr Drebber was also cross-examined as to Mr O’Connor’s email sent to Mr Flannery on 26 February 2025 (Ex J2, 6265). He acknowledged (T185) that he and Mr O’Connor had discussed the two-page document that was drawn to Mr Flannery’s attention prior to the 26 February Meeting and that he and Mr O’Connor agreed with its contents; and denied that he and Mr O’Connor planned to “make life unpleasant for Mr Landes” until he left Lanmar. It seems to me that Messrs Drebber’s and O’Connor’s plan was at least to narrow Mr Landes’ responsibilities, exclude him from significant operational matters, and bring about the position that he was either marginalised in Lanmar or prompted to leave Lanmar as Mr Paesler had done several years before as a result of a similar strategy.

89. WLLHLL pleaded (APOC [12]–[13]) that, on 26 February 2025, Messrs Landes, Drebber and O’Connor attended the 26 February Meeting, and Mr Drebber then informed Mr Landes that he and Mr O’Connor had concerns with Mr Landes’ performance; had lost confidence in Mr Landes; and could “get rid” of Mr Landes. The Defendants admit (POD [13]) the first and second but not the third of these matters. WLLHLL also pleaded (APOC [14]; not admitted POD [14]) that Mr O’Connor informed Mr Landes at that meeting that he and Mr Drebber had decided to place Mr Landes on a “performance management plan” and would require “significant improvement” within 6 months.

90. Mr Landes’ evidence (Landes 14.5.25 [46]) is that Mr Drebber said, at that meeting:

“Drew we have some serious concerns about your performance and we have lost confidence in you. We’ve done our research. We know we can get rid of you.”

Mr Landes also refers to Mr O’Connor’s comment that:

“We have put in place a performance management plan which we expect you to comply with and demonstrate significant improvement within 6 months. Your input is low value. It’s always low value.”

91. Mr Landes’ evidence (Landes 14.5.25 [47]) is that Messrs Drebber and O’Connor had not mentioned any serious or valid concerns with his performance prior to that meeting. There is plainly a degree of ambiguity to that proposition, so far as it leaves open the possibility that they had raised earlier concerns which Mr Landes did not regard as serious or valid. His evidence was that the main complaint at that meeting related to allegations that he had not contributed sufficiently to the tender for the NAMSS Contract. There is a collateral dispute as to that question, which it is also not necessary to determine in the relevant circumstances. Mr Landes was cross-examined as to the 26 February Meeting (T124ff). I am inclined to accept Mr Landes’ evidence that Messrs Drebber and O’Connor did not make many of the statements set out in their affidavits at that meeting, although comments to similar effect were included in the document drawn from the “HR performance” document and projected on screen at that meeting.

92. Mr Drebber’s evidence (Drebber 25.8.25 [164]–[165]) is that the meeting took place in Sydney for about one hour; that he and Mr O’Connor raised concerns as to Mr Landes’ performance; and Mr O'Connor displayed a document on his computer screen which addressed Mr Landes' performance by using the “START” framework. As I noted above, Messrs Drebber and O’Connor had adopted that framework, which was plainly directed to employee relations and not corporate governance, from ChatGPT. Mr Drebber maintained his denial of aspects of Mr Landes’ account of the 26 February Meeting in cross-examination but agreed, in substance, that Mr Landes rejected many of the allegations of non-performance that were put to him at the meeting. Mr Drebber fairly accepted in cross-examination (T227) that he said words to the effect of a threat to “get rid of Mr Landes” at the 26 February Meeting. Mr O’Connor denied, in cross-examination (T323), aspects of Mr Landes’ evidence as to what Mr Landes had said in that meeting but he accepted that Mr Landes had disagreed that there had been performance issues relating to him for the last four years.

93. I am satisfied that words substantially to that effect set out in Mr Landes’ evidence were said at that meeting, and they are of substantial significance. First, it is plain that Messrs Drebber and O’Connor had, prior to that meeting, reached the conclusion that they had lost confidence in Mr Landes and determined that they would dictate the scope of any continuing role that he undertook in Lanmar. Mr Drebber’s reference to “research” and to knowing that they could “get rid of” Mr Landes reflects the “research” that he and Mr O’Connor had undertaken on ChatGPT before the meeting with Mr Landes. They had plainly directed questions to ChatGPT, which it had answered, which wrongly approached the question as one of employment law, rather than by reference to principles of oppression in Australian corporate law. Their research did not extend to taking legal advice, including as to the steps which were necessary to protect Lanmar’s interests against the course of conduct which they proposed, or as to the risks to Lanmar from that course of conduct. They then commenced a course of conduct which exposed Lanmar to the risk that it would be wound up for oppression, and the substantial value of its business as a going concern would be lost, if no reasonable offer to acquire WLLHLL’s shares is made and no other remedy is available.

94. Mr O’Connor then sent an email to Mr Landes (APOC [15]; Ex J2, 6341) that purported to record the discussions held at the 26 February Meeting, although it had in fact been drafted before the meeting. That email commenced by offering details of Lanmar’s EAP [Employee Assistance Provider], an offer which reflected the approach taken by Mr Drebber, Mr O’Connor and ChatGPT, that they were entitled to deal with Mr Landes (and WLLHLL) as though they were his employer and he was their employee, rather than a director and (through WLLHLL) a substantial shareholder in a closely held company formed on a cooperative basis. The email then again recorded, in a format suggested by ChatGPT for the management of employee performance issues, the “START” approach. It recorded the “Situation” as follows:

“Over the past four years, we’ve noticed a recurring issue with your performance in key areas as a Director of LANMAR, including the finance and CRM portfolios. For example, your role in the recent [NAMSS] tender was minimal, where you contributed a minor proportion of the output and failed to complete your allocated tasks, leaving the majority of the responsibility to the other directors, without whom it would have been a poor quality deliverable or not submitted at all, comprising the entire business. In addition, you have failed to contribute equally through building LANMAR’s foundation eg sources of revenue, ADEFCON contracts, Panel Memberships, Management systems (QMS, DISP).”

95. That email referred, under the heading “Task”, to Mr Landes’ role as a “director and owner” in a manner which paid little or no attention to principles of corporate law, and recorded, under the heading “Target”, that:

“We have lost confidence in your ability to contribute equally and perform your duties.”

Plainly, there was nothing equivocal or preliminary about that statement.

96. That email then advised that the majority directors would be “taking the following actions immediately” and identified the matters which would be allocated to Mr Landes and other directors going forward. That allocation of responsibility would have, and ultimately did, exclude Mr Landes from any operational involvement in the NAMSS Contract. That email also stated that Mr O’Connor would distribute a shareholders agreement, employee and service agreements and position descriptions for the directors, which “must” be issued, edited, agreed and approved within 14 days of distribution, and plainly threatened the exercise of the majority directors’ and majority shareholders’ powers as directors and shareholders to depart from the basis on which Lanmar was established as follows:

“If you don’t turn it around, we will consider further actions, including reviewing the LANMAR directorship structure introducing performance-based bonuses.”

The majority directors also there indicated that monthly meetings would be held to review progress and identified the “areas of improvement” they expected in respect of Mr Landes.

97. That email did not record that Mr Landes had not accepted the criticisms of his performance made in the 26 February Meeting and Mr Drebber largely accepted in cross-examination (T187–188) that he had not done so. Mr O’Connor’s evidence in cross-examination was that that document recorded matters which had been discussed at the meeting, although it was prepared before the meeting, but accepted that it was not a complete record of the meeting and did not necessarily record all the important matters that were discussed.

98. Mr Landes’ evidence (Landes 14.5.25 [49]) is that that document was not a record of the meeting but was used by Messrs Drebber and O’Connor to make a “presentation” at that meeting. Mr Landes’ evidence is, and I accept, that he did not agree with several of the matters referred to in that presentation. WLLHLL accepts that the statement that Messrs Drebber and O’Connor had lost confidence in Mr Landes’ ability to contribute equally and perform his duties had been said at the 26 February Meeting. It claims that it had not been agreed at that meeting that Mr O’Connor would take control of the “Finance Portfolio”; and it had also not been agreed at that meeting that Mr O’Connor would shortly distribute a shareholders agreement to be approved within 14 days of distribution, or that Mr O’Connor would distribute employee agreements and position descriptions, including for Mr Landes, to be agreed within 14 days of distribution, or that, if Mr Landes did not “turn around”, Messrs Drebber and O’Connor would “consider further actions including reviewing the LANMAR directorship structure and introducing performance-based bonuses”. It is not necessary to determine the conflict as to what was said at that meeting, where the substance of the position taken by Messrs Drebber and O’Connor emerges from the document they had prepared with ChatGPT’s assistance and put on screen at that meeting.

99. On 26 February 2025, Mr Landes removed Xero Payroll access for Messrs Drebber and O’Connor (Drebber 25.8.25 [98]).

100. On 28 February 2025, Mr Drebber prepared a document titled “Scalability Planning” and placed it on Lanmar’s SharePoint system (Ex J2, 5416). That document is significant for its emphasis on Lanmar’s likely future growth, and is inconsistent with the pessimistic assumptions that the Defendants provided to their accounting expert for the purposes of a valuation of Lanmar. That document observed that:

“Over the past four years, LANMAR has experienced steady growth, moving closer to our goal of owning the enabling system for Navy under the NAMSS ASDF Con Scope. Throughout this journey, we have built a worldclass claim, onboarded key partners … and secured our first ASDEF CON contract covering the entire surface fleet. We have expanded beyond MSD and are positioning ourselves for strategic opportunities, including Submarines.

We sustained momentum and projected near-term growth, we must upgrade our internal systems, processes, and governance structures to match our maturity and expanding capacity. This initiative will ensure that LANMAR remains agile, competitive and well-positioned to capitalise on emerging opportunities.”

That document in turn referred to Lanmar’s core aim to “[d]evelop and implement a scalable, integrated system that empowers a 150-person team to efficiently deliver LANMAR’s core products and services.”

101. Mr Landes was cross-examined as to references to a fast growing 150-person team and accepted the proposition put by the cross-examiner that Lanmar was “hoping over time, as a growth model, to get to that point” (T119). I do not accept Mr Drebber’s attempt, in cross-examination, to treat that document as merely aspirational in character (T244). In cross-examination, Mr O’Connor, like Mr Drebber, characterised (T295) the reference to a 150-person team within Lanmar as an “aspirational goal”. Mr O’Connor also, fairly, pointed to opportunities for growth for Lanmar under the NAMSS contract, because it contemplated the Commonwealth’s ability to request additional work, outside the scope of services provided to the Commonwealth, to be charged at slightly greater rates than the contractual rates. It seems to me that Messrs Drebber and O’Connor then regarded the growth anticipated by that document as achievable, reflected by the efforts taken to plan for its occurrence.

102. On 3 March 2025, Mr Landes wrote to Messrs Drebber and O’Connor (Drebber 25.8.25 [167]; Ex J2, 6619) drawing their attention to the fundamental distinction between the “performance appraisal” of an employee and the dealings between directors (and, I interpolate, shareholders) of a company. He also took issue with the allegations as to his performance in that presentation. By that email, Mr Landes, sharply but correctly as to the scope of his obligations, observed that:

“It appears from your email that you are labouring under the misapprehension that I am employee of [Lanmar]. That much is patently clear from your misguided reference to an “EAP” (which I assume refers to an employee assistance provider), as well as what appears in the balance of the email.

In order that there be no doubt, I am a founding director of Lanmar, bound only to perform my obligations as a director in accordance with the requirements of the [Act]. I confirm that I have at all times complied with such requirements and that I will continue to do so.”

103. Mr Landes there noted he would provide his detailed response to the allegations at the “appropriate time”. The Defendants point out that he did not do so in correspondence between the parties. It seems to me that there is no basis for criticism in that respect, since a detailed response to the majority’s complaints would have promoted, rather than displaced, the error of treating Mr Landes as an employee who must justify the adequacy of his performance to the majority directors. The parties have, at length, addressed the question of that performance in these proceedings, although it will largely not be necessary to determine it.

104. Mr Landes also stated that:

"… your email suggests that you will shortly distribute a shareholders agreement for Lanmar. Until the meeting on 26 February 2025 I was not aware of any shareholder's agreement for Lanmar or any proposal that one be prepared. As a director I am entitled to such information and to participate in all decision making by the company

...I am concerned that actions are being taken by the company without proper authority. I am further concerned that such actions are being taken to my deliberate exclusion and detriment. Such behaviour is not open to [Lanmar] or [Mr O’Connor] and [Mr Drebber] as directors of it.”

105. This observation is also important. As early as 3 March 2025, Messrs Drebber and O’Connor were squarely placed on notice of the risks that the steps that they were taking were oppressive in character and potentially in breach of their directors’ duties. It would have been open to them, at that point, to alter their approach to seek to reach common ground as to the basis on which WLLHLL and Mr Landes could maintain their roles in Lanmar, or to make an offer to acquire WLLHLL’s shares at fair value, taking the approach which the case law has long recognised as likely to be required to avoid oppression, where a majority seeks to exclude minority from a company. Plainly enough, Messrs Drebber and O’Connor and the companies associated with them did not take that approach.

106. In his affidavit evidence, Mr Drebber addressed Mr Landes’ email dated 3 March 2025 in response to that meeting (Drebber 25.8.25 [167]). He does not acknowledge or address Mr Landes’ identification in that email of the differences between a director of a company and an employee. Mr Drebber’s evidence is also that, following the 26 February Meeting, Mr Landes stopped initiating contact with him and the communications between Mr Landes and him since 26 February 2025 have been by email. While there is a degree of dispute as to that matter, I think it likely that Mr Landes did reduce active communication with Mr Drebber in this period, particularly as the dispute widened.

107. Messrs Drebber and O’Connor continued to consult with ChatGPT over time, developing further versions (for example, Ex J2, 6266) of the critique of Mr Landes’ performance which they had used for the 26 February Meeting and their approach to that performance under the so-called “START” framework by adding summaries of the discussions and correspondence between the parties. They included, in that summary, Mr Landes’ email dated 3 March 2025, but it appears they did not then acknowledge the significance of the observation that Mr Landes was a director and not an employee of Lanmar. That document in turn recorded comments apparently made by Messrs Drebber and O’Connor, or possibly ChatGPT, as to the success or otherwise of Messrs Drebber’s and O’Connor’s approach to Mr Landes, none of which sought to address the risk that their conduct might amount to oppression under Australian law. ChatGPT in turn provided advice as to the requirement of Lanmar’s constitution by reference to a clause which did not exist in that constitution and which was presumably drawn from another matter. Mr O’Connor fairly acknowledged in cross-examination (T315) that references in the document (Ex J2, 6330–6334) to the position “post-Drew” reflected instructions that he had given to ChatGPT which contemplated the position after Mr Landes exited the company, as the apparently anticipated result of Messrs Drebber’s and O’Connor’s strategy.

108. Also on 3 March 2025, Mr O’Connor sent an email to Mr Landes which requested that he prepare a measurable plan outlining how he would meet the majority directors’ expectations as set out by them at the 26 February Meeting (Ex J2, 6627).

109. By letter dated 4 March 2025 (Ex J2, 6637), the Department of Defence advised Lanmar that its tender for the NAMSS Contract had been approved for further consideration and invited Lanmar to enter formal contract negotiations. Both Messrs Drebber and O’Connor accepted, in cross-examination, that that step indicated Lanmar was the preferred tenderer for the contract. Oddly, Messrs Drebber’s and O’Connor’s evidence was that they did not become aware of the Commonwealth’s decision until nearly a month later, in late April 2025. It is not necessary to determine the correctness of that evidence.

110. On 4 March 2025, Mr Drebber prepared a document titled “NAMSS People.xlsx” (“Profit Workbook”) (Ex J2, 6643).

111. On 5 March 2025, Mr O'Connor sent an email to Messrs Landes and Drebber (Ex J2, 6679), responding to Mr Landes’ email of 3 March 2025. That email did not address the matters raised by Mr Landes, but sought to maintain the approach of dealing with Mr Landes as though he were an employee of the majority directors. Mr O’Connor there requested that Mr Landes, within a week, prepare a “detailed, measurable plan outlining how you will meet the expectations set out in the previous discussion” and set out what that plan should address, including a request for:

“Rebuttable Evidence Submission - Given the assertions you made in response to our initial discussion, we request that you provide objective evidence supporting your claims.”

112. Mr Landes’ evidence (Landes 14.5.25 [51]) is that, following the 26 February Meeting:

“There has been a deterioration of the relationship between me on the one hand and Mr Drebber and Mr O’Connor on the other, to the extent that there is now no relationship. For my part, I have lost trust and confidence in Mr Drebber and Mr O’Connor.”

113. As I have noted above, it is now common ground that that loss of trust would support an order winding up Lanmar on the just and equitable ground. That, however, does not displace the possibility that, as I will find, the conduct of Messrs Drebber and O’Connor in this period amounted to oppression and that alternative relief should be ordered.

114. Further contentious correspondence followed. On 6 March 2025, Mr Landes sent an email to Messrs Drebber and O'Connor (Ex J2, 6688) responding to Mr O’Connor’s email of 5 March 2025 and stating that Mr O’Connor had failed to respond to the matters raised in Mr Landes’ email dated 3 March 2025. Mr O'Connor then sent an email dated 7 March 2025 to Messrs Landes and Drebber (Ex J2, 6694) repeating the requests he made in his email of 5 March 2025.

115. On 11 March 2025, the Commonwealth emailed Lanmar identifying suggested errors in Lanmar’s pricing workbook in the NAMSS tender submission (Ex J2, 6630). I was not asked to determine and do not determine whether such errors existed.

116. Also on 11 March 2025, Mr O’Connor provided Mr Landes a draft services agreement between Lanmar and Forge (Landes 1.4.26 [31]; Ex J2, 67276). Mr Drebber was cross-examined in respect of the dealings between Lanmar and Forge in respect of the NMP-1989 Contract (T189ff). Mr Drebber’s evidence in cross-examination (T226) was that he took advice, at the time of the dealings between Lanmar and Forge, from lawyers that he had retained in respect of those dealings. Mr Drebber did not seek to tender that advice, waiving legal professional privilege in it, to displace the apparent conflict of duty and duty in that regard. Mr O’Connor was also cross-examined as to negotiations between Lanmar and Forge (T328ff) and to the legal advice that Lanmar had taken in that regard. Messrs Drebber and O’Connor were likely then in a position of material conflict of duty and duty in relation to that agreement, where they were directors of both companies which had opposed interests in that regard, including as to the financial terms of that contract. Mr Landes, who was the only unconflicted director of Lanmar in respect of that subcontract, sent a Teams message stating that “I will engage a law firm to assist in the drafting of the agreements and circulate for review once ready” (O’Connor 25.8.25 [129]).

117. On 11 March 2025, Mr O’Connor sent a signed employment agreement for Mr Burkitt-Doyle to Mr Landes, requesting that he set up a Lanmar account for him (O’Connor 25.8.25 [116]; Ex J2, 6739).

118. By email also dated 11 March 2025 (Ex J2, 5087), Mr Drebber forwarded Mr O’Connor a copy of Ms Salvato’s email dated 1 November 2024, which I noted above, containing the recommendations as to dividends paid in December 2024, February 2025, May 2025 and June 2025. The first of those dividends was paid, and the latter three were not. It seems to me plain that Messrs Drebber and O’Connor were then conscious as to the earlier consensus formed as to that matter, when considering whether to depart from it in February 2025. I do not neglect their claim to have done so by reference to the cashflow representation in the NAMSS tender.

119. On 13 March 2025, Mr Landes sent (Ex J2, 6747) a proposed circular resolution to Messrs Drebber and O'Connor (“March 2025 Circular Resolution”) including a declaration of solvency and recommended the payment of a dividend. Also on 13 March 2025, Messrs Drebber and O'Connor (or possibly only Mr Drebber) prepared a cash flow model for Lanmar which included proposed dividend payments on 31 March 2025 of $120,000; on 29 May 2025 of $120,000; and on 28 June 2025 of $360,000 (Ex J2, 6749). On 14 March 2025, Messrs Drebber and O'Connor amended the cash flow model for Lanmar that they had prepared the day before, including by removing the planned dividend payments (Ex J2, 6753). Mr Drebber was cross-examined (T203) as to the changes between the cashflow documents prepared on 13 and 14 March 2025.

120. Mr O’Connor was also cross-examined as to the change in the cashflows between 13 and 14 March 2025 (T333ff) and his evidence was that it was likely Mr Drebber who made the changes in the cashflow documents at that time, and he could not recall discussing those changes with Mr Drebber. I do not accept that the changes between the 13 and 14 March cashflow models reflected any development in Lanmar’s financial position or planning for the NAMSS tender since the previous day, and I am not persuaded by the suggestion that the change was prompted by the statement made in the NAMSS tender as to Lanmar’s cashflow policy, which was made long before the 13 March cashflow was prepared.

121. I am comfortably satisfied, to the Briginshaw standard, that that change of approach was directed to supporting a withholding of dividends so as to seek to place financial pressure on Mr Landes while he and the majority directors were in dispute, and that step strongly supports WLLHLL’s oppression case. Messrs Drebber and O’Connor subsequently did not support the March 2025 Circular Resolution and that dividend was not paid (Drebber 25.8.25 [125]–[126]).

122. On 14 March 2025, Mr Landes sent an email to Messrs Drebber and O'Connor (Ex J2, 6759) referring to recent engagements of staff and contended that they were hired without his involvement; requested a “properly convened meeting of the Directors and the recording of formal Resolutions”; and contended that any decisions made otherwise were “void and of no effect”. The Defendants contend that board meetings were subsequently conducted in a more formal way (O’Connor 25.8.25 [114]; Drebber 25.8.25 [83], [171]; Ex J2, 6763).

123. On 17 March 2025, Lanmar entered into the NMP-1989 Contract (Landes 8.9.25 [55]; Drebber 25.8.25 [134]; Ex J2, 9188).

124. By email dated 18 March 2025 (Ex J2, 6759), Mr Landes advised Messrs Drebber and O’Connor:

“I refer to my emails dated 3 March 2025 and 6 March 2025 where I indicated that as a director of Lanmar I am entitled to be, and require that I am involved in all decision-making of [Lanmar].

I have become aware that a number of decisions are apparently being made without my involvement and therefore have been made without proper authority. Those decisions include:

1. The recent engagement of the following staff … and

2. The exclusion of me at meetings of directors and staff.

I again put you both on formal notice that I require to be involved in all decision-making of [Lanmar] and to that end am ready and willing and available to attend any properly convened meeting in accordance with the Constitution of [Lanmar] for that purpose. I also put you both on formal notice that I object to being excluded from the decision-making of [Lanmar]. I also note that all decisions made by you both purportedly on behalf of [Lanmar] (which have been without a properly convened meeting of the directors and the recording of formal resolutions) are void and of no effect.” The Defendants point to the previously informal manner in which Lanmar had conducted its operations, for example, without requiring the board to meet to authorise the execution of contracts. I accept that a proprietary company is generally free, by the unanimous consent of its shareholders, to conduct itself in a less formal way. However, it is plain, at least by the date of this email, that Mr Landes and WLLHLL had withdrawn their consent to that approach; unanimous consent to that approach was no longer available; and corporate decisions could thereafter only be made by the mechanisms contemplated by Lanmar’s constitution and corporate law, by directors’ meetings or shareholders’ meetings, or by the exercise of delegated authority by executives, where the relevant delegation had been authorised in accordance with Lanmar’s constitution.

125. On 20 March 2025, a directors’ meeting took place between Messrs O'Connor, Drebber and Landes (O’Connor 25.8.25 [249]; Ex J2, 6829). Mr Landes’ evidence (Landes 14.5.25 [60]) is, and I accept, that Messrs Drebber and O’Connor there asserted that the two of them made decisions on behalf of Lanmar, implicitly to the exclusion of Mr Landes, and Mr O’Connor characterised the requirements of Lanmar’s constitution (to which Mr Landes had referred) as “ridiculous bureaucracy”. Again, I recognise that a company may operate in a less formal manner with the unanimous consent of its shareholders. However, the ability to proceed in that manner lapses when unanimous consent lapses, and a director acting with reasonable care and diligence and in the company’s interests, would take steps to inform himself or herself of that matter and conduct himself or herself accordingly. Mr O’Connor was evasive when cross-examined as to action items in respect of this meeting (Ex J2, 6296; T310) and would not directly acknowledge that the proposed reintroduction of the short term incentive plan was directed to reducing Mr Landes’ remuneration, although he acknowledged that his then view was that Mr Landes was “completely low value” for Lanmar and that the other directors should be paid for work they did.

126. On 24 March 2025, Mr Landes emailed Messrs Drebber and O'Connor (Ex J2, 6859) and complained that they had, without board approval, executed contracts and appointed a new chief operating officer for Lanmar and requested that he be involved in all decision making of Lanmar. Mr Drebber’s evidence in cross-examination was that he regarded it as sufficient to sign a contract that he and Mr O’Connor agreed should be signed (T205). Mr O’Connor also contended, in cross-examination, that two directors could authorise the execution of contracts on behalf of Lanmar, without a resolution of the board, by reference to Lanmar’s previous practice (T337). Mr O’Connor also there maintained the position that one director could sign a contract, based on Lanmar’s practice prior to that time.

127. At a meeting on 25 March 2025 between Messrs O'Connor, Drebber and Landes, Mr O'Connor told Mr Landes that Mr Landes was required to “hand over” management of Lanmar’s Xero accounting and payroll platform to Mr O’Connor (Landes 14.5.25 [64]–[65]).

128. On 14 April 2025, Mr O'Connor sent an email to Mr Landes (Ex J2, 6950) directing him to not proceed with a presentation to a potential client. The basis on which such a direction could properly be given is not apparent and this was a significant further step in the exclusion of Mr Landes from his previous role within Lanmar.

129. On 15 April 2025, despite his conflict of duty and duty in respect of the matter, Mr O'Connor engaged a firm of solicitors, Cornwalls, to provide advice as to Lanmar’s contractual arrangements with Forge, apparently assuming that the conflicted majority directors would provide them instructions (O’Connor 25.8.25 [134]). Also on 15 April 2025, Mr Drebber sent an email to Mr Landes (Ex J2, 6954) directing him to hand over all management responsibilities related to finance to Mr O'Connor and stating that "...this handover is not optional and must be completed immediately…". Mr Drebber accepted in cross-examination that he decided that Mr Landes was to have no involvement in management responsibilities relating to finance because he had lost confidence in Mr Landes (T211). The basis on which such a direction could properly be given is not apparent, and this is also a significant further step in the exclusion of Mr Landes from his previous role within Lanmar.

130. Mr Drebber’s evidence is that, on 22 April 2025, he was “formally” notified that Lanmar was the preferred tenderer for the NAMSS Contract, and he was advised that contract negotiations with the Commonwealth would commence on 30 April 2025 (Drebber 25.8.25 [173]; Ex J2, 6635). That evidence leaves open the possibility that he was informally advised of that matter at an earlier date, after the Commonwealth made its decision in early March 2025, although he did not then advise Mr Landes of that decision.

131. On 23 April 2025 at 8:12am (Ex J2, 6979), Mr Landes sent an email to Messrs Drebber and O'Connor stating that:

“I expect to be fully informed and included in any developments, communications or negotiations arising from the NAMSS tender submission. Should LANMAR be confirmed as the preferred tenderer, I request to be included in all relevant meetings, correspondence, and decision-making activities to ensure appropriate governance and alignment with director responsibilities.

I also require to be fully informed of the terms of the contract and that the terms of the constitution of the company be complied with prior to the execution of ay contract, so as to ensure that the company is properly protected by duly executed and fully enforceable contract.

Your failures in the past to comply with basic requirements for execution of contracts has and continues to put the company at risk vis a vis third parties.”

132. That email was plainly intended to advance Mr Landes’ position in the continuing dispute between the parties. Nonetheless, Mr Landes was entitled to require that he be informed of these developments and that he have an opportunity to participate in any decision to execute the NAMSS Contract, as a director of Lanmar, as a matter of corporate law and by reason of the Lanmar Principles and the common understanding they reflected.

133. On 23 April 2025 at 9.12am, Mr Drebber responded to Mr Landes (Ex J2, 6981), as managing director of Lanmar, stating that he wished to “formally escalate serious concerns regarding [Mr Landes’] ongoing failure to address critical responsibilities”; that he considered that Mr Landes had a “clear and sustained pattern of performance failures”; and that he and Mr O’Connor had:

"lost confidence in your ability to carry out even the most basic responsibilities of your role. We require an immediate and comprehensive response on the following..."

As I noted above, there is a dispute as to whether Mr Landes had agreed to any appointment of Mr Drebber or anyone as managing director of Lanmar, but I accept that earlier emails had adopted the same practice and think it likely that Mr Landes had previously acquiesced in Mr Drebber’s assuming that role.

134. Mr Drebber then sent a further email to Mr Landes at 2.56pm on 23 April (O’Connor 25.8.25 [160]–[161]; Ex J2, 6990) advising that:

“This is to confirm that the Commonwealth has formally advised their intent to enter into contract negotiations relating to NAMSS with LANMAR, commencing 30 April 2025.”

135. Mr Drebber also there indicated his or the majority directors’ position that:

“These discussions will relate to service areas into which you [Mr Landes] are not operationally integrated. As such, you will not be required to participate in the negotiation process itself. However, you will have the opportunity to review and comment on the draft contract once prepared, subject to the process which you are now being tasked to define.”

The reference to Mr Landes not being “required” to participate in the negotiations plainly communicated, in substance, that Mr Landes would not be permitted to participate in those negotiations.

136. Mr Drebber there also claimed to have “reviewed the Corporations Act” and Lanmar’s constitution, and to have been unable to identify any requirement for board approval to enter into a commercial contract. His claim to have reviewed the Act was plainly absurd, although he retreated in his cross-examination to the position that his wife is a lawyer and he asked her what sections to look at that may be relevant (T213). Mr Drebber’s inquiries did not adequately inform him of the consequences of withdrawal of unanimous consent to informal management processes. Mr Drebber again confirmed (T213) his position that he and Mr O’Connor did not need a board resolution to enter into contracts on behalf of Lanmar, and could do so if both of them agreed to it; and Mr Drebber there directed Mr Landes to prepare a quality management system governing the review and endorsement of commercial contracts, together with a “Verification Cross-Reference Metric” which “aligned” the quality management system with “the relevant provisions of the [Act]” and “any other legislative requirements”, to be completed and presented to Messrs Drebber and O’Connor within 7 days. It seems to me that that request was a somewhat spiteful response to Mr Landes’ attempt to require that the majority directors comply with their obligations under Lanmar’s constitution and the Act.

137. On 23 April 2025, Mr O’Connor emailed (from his private and not a Lanmar email address) documents relating to Lanmar, including the Lanmar Principles, to Mr Drebber (also at his private and not a Lanmar email address) and to a solicitor at Cornwalls. Mr O’Connor accepted that the document relating to the earlier short term incentive plan and the Lanmar Principles were made available to Cornwalls (Ex J2, 6984A), with reference to the dispute with Mr Landes. It appears that Messrs Drebber and O’Connor then contemplated retaining Cornwalls to advise them personally, but ultimately did not do so. They later caused Cornwalls to represent Lanmar, for a period, in negotiations with Forge, before Cornwalls ceased to act after complaints by Mr Landes as to that retainer.

138. On 27 April 2025, Lanmar established an NAMSS Contract Negotiation Register (Drebber 25.8.25 [174]; Ex J2, 6998). On 28 April 2025, Mr Drebber advised Mr Landes of the creation of the Contract Negotiation Register (Drebber 25.8.25 [174]; Ex J2, 6997). Of course, there is a real difference between allowing a director access to information that an issue exists in respect of a major contract and allowing him or her to have input into how it is addressed.

139. The contentious correspondence continued between Lanmar’s directors. On 29 April 2025 at 12:14pm, Mr Drebber sent an email to Mr Landes, copied to Mr O’Connor (Ex J2, 7151) claiming that his access to the payroll feature of Lanmar’s Xero accounting system had been removed. At 1:10pm on the same day, Mr Landes sent an email to Mr O’Connor, copied to Mr Drebber (Ex J2, 7115), stating that the NMP-1989 Contract had been entered into by Lanmar without board approval. Mr Landes also contended that Lanmar’s performance of the contract was largely dependent on services to be provided by Forge, and that the fact that no formal agreement had been entered into with Forge presented an unacceptable risk to Lanmar. Mr Landes again requested information in relation to the financial and commercial commitments that had been entered into with Forge. At 2:28pm on the same day, Mr Drebber emailed Mr Landes (Ex J2, 7215) stating that:

" …based on my analysis I can confirm that I can not find any such requirement for a mandatory directors' resolution appears in either the Corporations Act 2001 Cth or our Company Constitution"

140. In cross-examination, Mr Drebber denied that Lanmar’s entry into the contract with the Commonwealth for the NMP-1989 project before Lanmar had negotiated a contract with Forge to secure access to the Telematica software put Lanmar at risk if it could not obtain that contract. His evidence (T206) was that that risk was limited and there was a larger risk in not executing the contract with the Commonwealth. There is force in that view, given the shareholding and commercial relationships between Lanmar and Forge, but that avoids the conflict of duty and duty that Messrs Drebber and O’Connor then faced, or the fact that Lanmar’s subsequent negotiating position would have been substantially weakened by the fact that Lanmar needed the subcontract with Forge to avoid breach of its existing contract with the Commonwealth.

141. On 30 April 2025 at 10.18am, Mr Landes sent an email to Messrs Drebber and O’Connor (Ex J2, 7022), requesting that Mr Drebber inform him how the negotiation team for the NAMSS Contract was selected by Lanmar and by what authority.

142. By a second email dated 30 April 2025 at 11.41am (Ex J2, 7187) Mr Landes recorded, likely accurately, the steps which were then being taken “to endeavour to force [Mr Landes] and WLLHLL out of [Lanmar]” or at least to narrow his role in Lanmar to that which Messrs Drebber and O’Connor were prepared to allow. Mr Landes identified his concern that he had been excluded from negotiations with the Commonwealth in relation to the NAMSS Contract and recognised that, since the 26 February Meeting, “there has been a significant breakdown of our respective relationships”. He again expressed concern as to the manner in which corporate decisions were being made, without involving him, and recorded a concern that:

“You have and continue to exclude me from all of the decision-making processes of [Lanmar].”

143. Mr Landes also, rightly, recognised that Messrs Drebber and O’Connor had then, over a significant period, “failed to acknowledge or recognise that [he was] a director of Lanmar, and [was] not subject to [their] personal direction”. He identified several concerns that he had raised in the previous period and squarely pointed to the Court’s powers under ss 232 and 233 of the Act, which have now been invoked in these proceedings. It is common ground (APOC [17]ff; admitted POD [17]ff; Drebber 25.8.25 [277]) that, also on 30 April 2025, Mr Landes there made an offer (“Offer”) to Messrs Drebber and O’Connor and their companies to sell WLLHLL’s shares in Lanmar to MDTI and PCKOC, or nominees of Messrs Drebber and O’Connor, at fair value, which he assessed as $8,116,666.67, based on a multiple of 6 times EBITDA based on 2025 financials for Lanmar and to resign as a director of Lanmar upon sale of the shares. The Offer was initially expressed to be open until 9 May 2025 but later extended.

144. The Defendants advance criticisms of the Offer, including the amount payable and the time which was allowed to them to consider it. It seems to me that those criticisms miss the most fundamental matter, namely that steps that had by then been taken by Messrs Drebber and O’Connor, and continued thereafter, were so inconsistent with the basis on which Lanmar had been established and Mr Landes’ entitlement to participate in corporate decision-making as a director, once unanimous consent to an informal approach had been withdrawn, that oppression could be established if they failed to make a reasonable offer to buy out WLLHLL’s shares in Lanmar. I address the question of offers made by them below.

145. By a third email dated 30 April 2025 at 11.57am to Messrs Drebber and O'Connor (Ex J2, 7210), Mr Landes contended that Lanmar’s constitution did not allow its directors unilaterally to manage its day-to-day operations without any formal delegation from the board.

146. On 30 April 2025, Mr O’Connor set up a weekly recurring meeting on Microsoft Teams to discuss an issue resolution register and invited Messrs Drebber and Landes to that meeting. Such a meeting took place on 6 May 2026, and Mr Landes attended one later meeting on 17 June 2025 (Drebber 25.8.25 [258], [263]).

147. The Defendants contend that, on 1 May 2025, Lanmar was orally advised by the Commonwealth that it would insist upon the requirement of the $1 million bank guarantee as security for the NAMSS Contract and this was not negotiable (Drebber 25.8.25 [181]). That requirement was recorded in the Contract Negotiation Register on that date (Drebber 25.8.26 [183]). It appears that, prior to 2 May 2025, Mr Drebber instructed Lanmar’s bankers at NAB not to speak with Mr Landes. On 2 May 2025, Mr Landes sent an email to Mr Drebber, copied to Mr O’Connor, stating that he had a telephone discussion with Ms Tan of NAB that day who had advised that Mr Drebber had directed her to talk with Mr O'Connor in the future and not to talk with Mr Landes (Landes 14.5.25 [82]; Drebber 25.8.25 at [184]–[187]; Ex J2, 7309, 7328–7329). Further emails were then exchanged between 2 May and 13 May 2025 between Messrs O'Connor, Drebber and Landes concerning the proposed bank guarantee for the NAMSS Contract (Drebber 25.8.25 [184]–[186]; Ex J2, 7638–7640, 7682–7687).

148. On 6 May 2025, Mr O'Connor emailed Mr Landes, with a copy to Mr Drebber (Ex J2, 7380), in response to the Offer made on 30 April 2026, stating that:

"We do not consider that sufficient time is provided to us to consider the offer and respond to the allegations and assertions contained in your email."

149. Later that day, Mr Landes extended the time to accept the Offer by one week until 16 May 2025 (APOC [19]; POD [19]; Ex J2, 7388). The Defendants did not accept the Offer. As I noted above, I address the question of offers made by them below.

150. On 7 May 2025, Mr O’Connor sent to Messrs Landes and Drebber a notice (Ex J2, 7479) of a directors’ meeting to be held on 9 May 2025 to consider 25 proposed resolutions, without any supporting board papers.

151. Also on 7 May 2025 at 3.57pm, Mr Landes sent an email to Messrs Drebber and O'Connor (Ex J2, 7419) asking how Mr O’Connor was “managing” his conflict of interest in Lanmar’s negotiations with Forge, where he was a director of both companies. Mr O'Connor responded on 8 May 2025 (Ex J2, 7441) stating that "my highlighting both roles in that discussion which related to issues involving both entities is the mitigation". Mr O’Connor may have perceived Mr Landes’ email as just another complaint, but his response involved a fundamental and critical failure, where his obligations at general law and under s 181 of the Act were to avoid a material conflict of duty and duty owed to Lanmar and Forge, and he was not absolved of those obligations by disclosing that conflict, where he could not and did not receive informed consent to it from all of Lanmar’s shareholders or even from all of its directors.

152. A meeting of Lanmar’s directors was held on 9 May 2025 (APOC [21]; admitted as to the fact of the meeting at POD [21]; Landes 14.5.25 [98], [112]; Ex J2, 7479) at which resolutions were carried, on the votes of Messrs Drebber and O’Connor and over Mr Landes’ opposition, including resolutions to review directors’ responsibilities; review directors’ compensation; re-introduce a short term incentive plan and delay bonuses for performance in FY25; defer payment of dividends; confirm an alleged verbal agreement between directors; and resolve to make payments in accordance with alleged in-principle agreements. Mr Drebber addressed (Drebber 25.8.25 [107]–[109]) that board meeting and discussions of Lanmar’s quality management policy at that point. It appears that Mr Landes objected to resolutions concerning that matter. That objection is understandable, if the quality management system was to be understood, as appears from Mr Drebber’s evidence, as displacing Lanmar’s constitution and the Act in respect of the role of Lanmar’s directors and shareholders.

153. Mr Drebber was cross-examined (T219) as to the second resolution put at the meeting on 9 May 2025 and denied that the second resolution set the “groundwork” (in the cross-examiner’s term) to reduce Mr Landes’ remuneration, having regard to the reallocation of work put by Messrs Drebber and O’Connor that Mr Landes had previously been undertaking. It seems to me that that resolution was calculated, in both the objective and subjective senses, to have that consequence; and I do not accept that denial, which is adverse to Mr Drebber’s credit. Mr Drebber was also cross-examined as to the potential difficulties with the third resolution proposed at that meeting and was unable to provide a coherent explanation of that resolution in cross-examination (T218). Mr Drebber denied, in cross-examination, that the tenth resolution proposed at that meeting to defer payment of dividends derived from profits in the previous financial year was intended to “squeeze” Mr Landes (T220). It seems to me likely that a combination of the reallocation of director responsibilities, the proposed reintroduction of the short term incentive plan and the deferral of dividends would, objectively, have that result and that Messrs Drebber and O’Connor plainly recognised that matter. Mr O’Connor was also cross-examined as to the resolution (Ex J2, 7481) to restructure directors’ responsibilities (T352). It was likely that Mr O’Connor had also used ChatGPT to draft the third resolution, since the reference to “he or she” in that resolution neglected the fact that Lanmar had only male directors. Mr O’Connor denied that the proposal to defer payments of dividends was intended to “squeeze Mr Landes financially”, in the language of the cross-examiner (T354).

154. WLLHLL pleaded (APOC [22]–[23]) that Messrs Drebber’s and O’Connor’s conduct in passing the resolution to defer payment of dividends breached the Dividend Agreement and that the conduct of that meeting was a continuation of the exclusionary conduct alleged by WLLHLL. The Defendants support that resolution (POD [22]) on the basis that:

“i. Lanmar had recently successfully tendered for the [NAMSS] Contract;

ii. the terms of that contract required Lanmar provide a bank guarantee in the amount of AUD $1,000,000;

iii. as a part of the tender, Lanmar had represented to the Commonwealth that it would retain cash reserves equivalent to six months’ payroll (approximately AUD $3 million);

iv. Mr Landes was aware of that representation;

v. due to its successful tender, Lanmar needed to hire additional staff and ensure it had sufficient cash balance to meet staffing costs. The costs of these staff were not finalised as at 9 May 2025; and

vi. Lanmar had a bank balance of approximately $2,906,000...”

155. Also on 9 May 2025, Ms Bullock, a solicitor at Cornwalls sent Mr O’Connor, with a copy to Mr Ross-Smith of Forge, an email (Ex J2, 7649) attaching a first draft of a services agreement between Lanmar and Forge. That email referred to an earlier draft services agreement which Mr O’Connor had provided to the solicitors and observed that:

“The profit share arrangement is unusual for a Defence industry sub-contract. We point out that this is a risky arrangement, due to reliance on financial representations and difficulties in access to records. However, you may feel the risk is mitigated by the fact that there is a relationship between the parties. If you are happy to proceed with a profit share arrangement, then ideally more detail should be added about the calculation methodology, in particular how ‘profit’ is to be calculated. This would add more certainty and help avoid disputes in the future.”

It appears that the profit share arrangement contemplated in the then draft of that agreement was not ultimately adopted, and there is a dispute as to whether the final version of that agreement was unduly favourable to Forge, by transferring the profit from the project to Forge and causing the project to be loss-making for Lanmar. It is not necessary to determine that dispute, where it is sufficient that the contract was negotiated for Lanmar and entry into it was authorised by the majority directors in conflict of duty and duty.

156. On 10 May 2025, Mr Landes sent an email to Mr Drebber asking whether the latter had adjusted the pricing of Lanmar’s tender to recover costs of the bank guarantee (Drebber 25.8.23 [193]; Ex J2, 7683). Mr Drebber responded on 12 May 2025 and advised that he would raise a circular resolution “to initiate the application for the $1M bank guarantee” (Ex J2, 7682). Mr Drebber then sent that circular resolution, Messrs Drebber and O’Connor voted in favour of it and Mr Landes sought further information as to the matter (Ex J2, 7704–7706). On 12 May 2025, Mr O’Connor also sent Mr Landes an email requesting that Messrs Drebber and O’Connor be given access to Lanmar’s Xero account in line with resolution 16 passed on 9 May 2025 (O’Connor 25.8.25 at [194]; Ex J2, 7718–7719).

157. By an exchange of texts dated 18 May 2025 (Ex J2, 11278), Messrs Drebber and O’Connor considered the possibility of a sale of all the shares in Lanmar to a third party. One of them observed:

“The other order for us to buy back the shares rather than the company will also need to be fought.

The company needs to buy them back.

Us through of holding companies [sic].

There is another option. We all sell out. Korda Mentha has already expressed interest. It’s not what I want to do, but, is an option. The issue at hand still needs to be resolved either way. But that grub [plainly a reference to Mr Landes] would love nothing more than to deprive us of future success.”

158. The other responded:

“You’re right, he’s a pathological. That’s definitely an option.

He’d drop all grievances of it heavy more cash.

Meant [sic] …

We should push for his resignation.”

159. There was apparent uncertainty, in cross-examination, as to which of Messrs Drebber and O’Connor had made the relevant statements in that exchange. However, if that text uses the same format as other texts, then the first statement above was made by Mr Drebber and the second by Mr O’Connor.

160. On 13 May 2025, Mr Landes, likely inappropriately, rejected Mr O’Connor’s request for Xero access, stating that Mr O’Connor did not “demonstrate any operational need for an uplift” (O’Connor 25.8.25 [195]–[196]). On the same day, Mr Landes voted against the proposed circular resolution concerning the bank guarantee (Ex J2, 7688, 7704).

161. On 13 May 2025, the solicitors acting for Mr Landes and WLLHLL wrote to Messrs Drebber and O’Connor (Ex J2, 7694) articulating, largely accurately, the matters which had by then given rise to oppression in the majority directors’ and majority shareholders’ dealings with Mr Landes and WLLHLL as follows:

“We are instructed that since [the 26 February meeting], you have purported to manage the affairs of Lanmar excluding Mr Landes and contrary to the agreed [Lanmar] Principles to which you agreed to be bound in 2021, including as follows:

(a) You have threatened to “get rid of” Mr Landes;

(b) You reject that the decisions of Lanmar must be made in accordance with its Constitution by the board of Lanmar;

(c) You have purported to make decisions on behalf of Lanmar without Mr Landes’ involvement;

(d) You have deliberately excluded Mr Landes from decision-making processes of Lanmar, in particular:

(i) You have excluded him from making decisions regarding employment of staff which you have done without his knowledge or consent;

(ii) You have allocated titles to staff without his knowledge or consent including a Chief Operating Officer;

(iii) You have executed a significant long-term contract without it having been reviewed by lawyers, without board consideration of its terms, risks and acceptability and without proper board approval;

(iv) You have excluded Mr Landes from the negotiation process concerning [the NAMSS project] and in respect of which Lanmar has been selected as preferred tenderer and have appointed a negotiating team for that project without discussion with Mr Landes;

(v) You have directed Mr Landes to not participate in business development and project execution activities relating to the Telematica product;

(vi) You have unreasonably failed to take into account Mr Landes’ legitimate requests for information at the board meeting on 9 May 2025 where you have made a number of purported resolutions invalidly;

(vii) You have apparently reached an agreement with [Forge] on behalf of Lanmar without providing Mr Landes with requested information concerning the terms of that agreement;

(viii) You have resolved [Forge] a significant sum based on an alleged oral agreement, the details of which you have not provided to Mr Landes;

(ix) You have sought that Mr Landes approve a resolution for the provision of a $1 million bank guarantee to the Commonwealth of Australia by Lanmar without providing Mr Landes with requested information concerning the need and timing for such bank guarantee;

(x) You have requested [NAB] not to deal with Mr Landes and to deal only with Mr O’Connor in relation to Lanmar’s accounts;

(xi) You have failed to resolve for Lanmar to pay a dividend for March 2025 quarter in accordance with the agreed dividend policy;

(xii) You have purportedly resolved to implement a bonus scheme by which you intend to pay yourselves bonuses at the end of financial year 2025 in circumstances where Lanmar has not resolved to allocate any funds for that purpose; and

(xiii) You have purportedly resolved to lease office space and enter into employment contracts without having provided any information as to the likely costs and reasons for doing so.”

Mr Landes’ and WLLHLL’s solicitors also there sought undertakings as to several matters.

162. In cross-examination, Mr Drebber conceded (T227ff), as he had to, that most of these matters had occurred. He denied that he had, in terms, threatened to “get rid of” Mr Landes, but accepted that words to that effect had been said at the 26 February Meeting. He relied on Lanmar’s previous practice to support execution of contracts without board authority. However, once Mr Landes and WLLHLL had withdrawn consent to that practice, it could no longer be supported by unanimous consent. Mr Drebber denied excluding Mr Landes from decision-making, but accepted the several steps that had been taken which amounted to that exclusion. He accepted that Lanmar had executed the NMP-1989 contract with the Commonwealth without legal advice and that Mr Landes had been excluded from the negotiating team for the NAMSS Contract, and agreed that Mr Landes had been directed not to participate in meetings with a potential client regarding the Telematica software. It is significant that these matters had all been identified nearly 12 months ago, and no substantive step has since been taken by the majority directors or majority shareholders to remedy them. Mr Drebber accepted, in cross-examination, that the giving of those undertakings would have caused no difficulty for Lanmar, other than in respect of the bank guarantee for the NAMSS Contract (T231ff), and I recognise that negotiated undertakings were later given in the course of these proceedings.

The commencement of these proceedings, the proposed 15 May 2025 directors’ meeting and subsequent events

163. On 14 May 2025, WLLHLL commenced these proceedings and, at about 4pm that afternoon, Messrs Drebber and O’Connor were served with the Originating Process and other documents relating to the proceedings (APOC [24]–[25]; admitted POD [24]–[25]).

164. At about 5.25pm that afternoon, Messrs Drebber and O’Connor gave notice of a directors’ meeting to be held at 7.30am on 15 May 2025 (“14 May notice”), to approve a $1 million bank guarantee to be given by Lanmar in relation to the NAMSS Contract (APOC [26]; partly admitted POD [26]; Ex J2, 7731–7732). Mr O’Connor denied that the notice of the meeting for the early morning of 15 May was given to seek to avoid the risk that Mr Landes would first approach the Court (T359). I am unable to accept his evidence in that respect.

165. The Defendants responded (POD [26]) that:

“i. on 30 April 2025 negotiations with the Commonwealth for the [NAMSS] Contract commenced;

ii. on 1 May 2025 Lanmar was advised by the Commonwealth of the requirement for a $1m bank guarantee;

iii. Lanmar had been informed by NAB that the guarantee would take a week to process;

iv. Mr Landes was aware of this fact;

v. on 4 May 2025, in the expectation that the guarantee would be applied for promptly, Mr Drebber advised Department of Defence that the estimated date of delivery for a bank guarantee being in place was 16 May 2025;

vi. a resolution had been proposed at the 9 May board meeting in identical terms to that subsequently proposed in the 14 May 2025 notice;

vii. the effect of this resolution was to deposit $1 million in a bank account that could then subsequently be used to issue a bank guarantee against, not to issue a guarantee to the Commonwealth;

viii. the vote on that resolution was put on hold at the request of Mr Landes to afford Mr Landes additional time to consider;

ix. additional information was provided to Mr Landes;

x. on 12 May 2025, a circular resolution to apply to NAB for a bank guarantee was issued;

xi. Mr Drebber and Mr O’Connor voted in favour of the circular resolution;

xii. on 13 May 2025, Mr Landes voted against the circular resolution, with the effect that the resolution was not passed;

xiii. on 14 May 2025 the Commonwealth advised that the bank guarantee had to be in place by 23 May 2025 and provided a letter to that effect;

xiv. in these circumstances, Mr Drebber and Mr O’Connor convened an urgent board meeting on at 7.30 am on 15 May 2025 and the 14 May notice was issued seeking to pass a resolution in the same terms as that previously deferred at the 9 May 2025 board meeting.”

166. I accept the accuracy of aspects of this chronology, but there was then no apparent commercial urgency in approving the bank guarantee immediately before the Court hearing early on 15 May 2025. These matters do not displace the obvious inference that the meeting was called in this manner so as to seek to frustrate the grant of relief by the Court.

167. WLLHLL then pleaded (APOC [27]–[28]; denied in substance POD [27]–[28]) and I accept that, at the time of the 14 May notice, Mr Landes had been excluded from negotiations for the NAMSS Contract; he was then not aware of the proposed final terms of that contract; he was not in a position to properly consider the proposed resolutions; and the 14 May notice did not identify any circumstance of urgency justifying calling a board meeting to be held early the next morning, and there was no good reason for such short notice. WLLHLL also pleaded (APOC [29]; denied POD [29]) and I have no doubt that the true reason why Messrs Drebber and O’Connor sought to call that meeting at that time was to pass the proposed resolution before WLLHLL’s application for interlocutory relief was determined. This allegation was denied by the Defendants when Messrs Drebber and O’Connor must have known it to be true, and that denial was maintained by both Messrs Drebber and O’Connor in cross-examination. This was not an incidental matter, where it involved an attempt to avoid the exercise of the Court’s power to grant interlocutory relief; Messrs Drebber and O’Connor cannot have innocently forgotten that attempt; and the false denial of that attempt is not an error, but deliberate deceit in an important matter. WLLHLL also pleaded (APOC [30]; denied POD [30]), and I accept, that that conduct continued the exclusionary conduct which it alleges.

168. On 14 May 2025 at about 8.30pm, the Court made further interlocutory orders restraining the Defendants from passing any resolution at the proposed meeting on 15 May 2025 (APOC [31]; admitted POD [31]) and, on 16 May 2025, the Court made continuing interlocutory orders by consent (APOC [32]; admitted POD [32]). On 16 May 2025, the directors of Lanmar ultimately signed a circular resolution relating to the bank guarantee (Ex J2, 7737).

169. On 27 May 2025, the Commonwealth sent the final proposed NAMSS Contract to each of Lanmar’s directors (Ex J2, 7829). On 28 May 2025, Mr Drebber sent a circular resolution to Mr Landes approving Lanmar’s entry into the NAMSS Contract by Lanmar which Mr Landes signed (Landes 28.7.25 [126]; Ex J2, 7930). On 30 May 2025, Lanmar entered into the NAMSS Contract (Drebber 25.8.25 [208]; Ex J2, 8209).

170. There were subsequent discussions as to a possible third party acquisition of the shares in Lanmar and as to obtaining independent advice as to a sale process which, perhaps regrettably, did not reach a resolution.

171. On 11 June 2025, the parties attended a mediation of these proceedings which was not successful. It appears that the Defendants made a without prejudice offer to acquire WLLHLL’s shares in the course of the mediation. The question whether that offer could be tendered by the Defendants in these proceedings, under an exception to s 131 of the Evidence Act, was referred to another judge. In Re Lanmar Pty Ltd [2026] NSWSC 674 (“Lanmar No 1”), Brereton J held that that offer was not admissible under s 131 of the Evidence Act and under the terms of the mediation agreement, so the terms of that offer are not known. I return to this matter below.

172. On 12 June 2025, Lanmar’s directors signed a document authorising the release of the bank guarantee as to the NAMSS Contract to the Commonwealth (Ex J2, 9451).

173. By an exchange of texts on 13 June 2025 (Ex J2, 11276), Mr O’Connor observed that:

“We could also potentially be transparent at the right time with Korda Mentha or Deloitte and strike a deal that sees us able to pay an agreed buy out.”

Mr Drebber responded:

“Interesting thought. We should put some thought into how we broach selling to KM [Korda Mentha] before Wednesday’s meeting.”

174. On 17 June 2025, at a meeting between Messrs Landes, Drebber and O'Connor, Mr Drebber alleged that Mr Landes had made unauthorised payments to a third party external service provider to Lanmar (Landes 28.7.25 [209]ff; Ex J2, 9527). The Defendants do not plead or seek to establish the truth of that allegation in these proceedings. Likely in response to that allegation, on 23 June 2025 at 11.12am, Mr Landes advised Mr O’Connor that he would not be carrying out certain activities referred to in Mr O’Connor’s email dated 20 June 2025 or “any other activities relating to the acquisition of hardware and software for the NAMSS Contract” (Drebber 25.8.25 [264]–[265]; Ex J2, 9598); then, on 23 June 2025 at 3.22pm, that he would “take no further action to get Lanmar onboarded to the new MSP (Amentum) suppliers list and it is now for [them] to complete the activity to ensure there is continuity of that profitable work for Lanmar” (Drebber 25.8.25, [266]; Ex J2, 9656); and also on the same day at 8.25pm, that he would “no longer be paying the Lanmar bills and expenses, effective immediately” and that “there is a tax bill currently due that you need to attend to urgently” (Drebber 25.8.25 [267]; Ex J2, 9663). Mr Landes also insisted, reasonably enough, on compliance with the previous orders made by the Court on 16 May 2025 (Ex J2, 9663), and then also advised Messrs Drebber and O’Connor in his email of the same day at 8.28pm that he would “no longer be operationally involved in Lanmar as a result of the Supreme Court proceedings” (Drebber 25.8.25 [268]; Ex J2, 9667). Mr Landes denied, in cross-examination, that he ceased to become operationally involved in Lanmar from 23 June 2025, or earlier or at all (T140). I am inclined to think a combination of the majority directors’ conduct and Mr Landes’ unwillingness to accept the particular tasks they sought to allocate to him did have substantially that result.

175. On 25 June 2025, Mr Landes circulated (Landes 28.7.25 [77]; Drebber 25.8.25 [131]; Ex J2, 9757) three resolutions of Lanmar’s directors as to declarations of solvency and the payment of dividends. Neither Mr Drebber nor Mr O’Connor signed the circular resolutions. Also on 25 June 2025, Mr O’Connor sent Messrs Landes and Drebber a notice of a directors’ meeting to be held on 1 July 2025 with attachments (Ex J2, 9765).

176. On 26 June 2025, Mr Drebber sent Mr O’Connor a text message (Ex J2, 9973) stating that:

“My initial thinking, we file our affidavit and cross seeking winding up orders and then go Sicilian style at 4.2m with terms. Paid out of Company money”.

Mr O’Connor responded “$4m was my thinking too. Good plan.” Neither Mr Drebber nor Mr O’Connor provided a particularly convincing explanation of what was intended by the reference to “Sicilian style” in that exchange in their cross-examination. Mr O’Connor’s evidence is that the reference to use of Lanmar’s funds to buy out WLLHLL in that exchange was Mr Drebber’s perspective and he did not share that view (T361). Mr O’Connor initially said he “hadn’t thought about [using Lanmar’s funds to buy out WLLHILL]”, before retreating when his attention was drawn to his observation that it was a “good plan” (T362). This exchange suggest that, even if Messrs Drebber and O’Connor and their companies could not have afforded to acquire WLLHLL’s shares in Lanmar, as they contend, they could have made an offer that Lanmar do so, subject to Mr Landes’ consent to that approach. I address the offers that they made in that regard below.

177. At a directors’ meeting held on 27 June 2025, Lanmar’s board resolved, with Mr Landes abstaining, to give equal access to the three directors to Lanmar’s Xero accounting and payroll system, and to give all directors administrator access to NAB Connect, which holds the company accounts. On 28 June 2025, Mr Landes wrote to Mr O’Connor (Ex J2, 10124) regarding the proposed contract with Forge in respect of the NMP-1989 project, and claimed that his earlier comments on the draft contract did not appear to have been considered and the proposed contract would result in a loss to Lanmar from the NMP-1989 project. Mr O’Connor denied in cross-examination that the effect of the contract between Lanmar and Forge was to divert Lanmar’s profit from the NMP-1989 Contract to Forge (T364). It is not possible to determine, on the evidence, whether the subcontract had that consequence, by comparison with the position had it been entered on different terms.

178. On 30 June 2025, Messrs Drebber and O'Connor caused Lanmar to terminate or not extend its contract with Project Axel, Lanmar’s IT and cyber security services provider, without informing or discussing that matter with Mr Landes (Landes 28.7.25 [251]; Ex J2, 10691). On the same day, they also caused Lanmar to terminate its contract with an independent contractor, HS Invention, also without informing or discussing the issue with Mr Landes (Landes 28.7.25 [255]; Ex J2, 10509). Both of these matters were of a character that required board approval, absent unanimous consent to a different approach. It was plain that WLLHLL had withdrawn consent to any different approach. This conduct further excluded Mr Landes and WLLHLL from real participation in Lanmar’s management.

179. Immediately after, at a board meeting on 1 July 2025 (Ex J2, 10339), Messrs Drebber and O’Connor voted in favour of resolutions to employ six staff to work on the NAMSS project, and Mr Landes abstained from voting on that resolution. On 14 July 2025, Mr O’Connor sent Messrs Landes and Drebber a notice of a directors’ meeting to be held on 18 July 2025 and attachments (Ex J2, 10819). At a further board meeting on 18 July 2025, Messrs Drebber and O’Connor voted in favour of resolutions regarding another five employment contracts for individuals to work on the NAMSS project, over Mr Landes’ opposition. There was again no market information before the board as to appropriate salary levels (Landes 28.7.25 [202]; Ex J2, 10851).

180. By email dated 3 July 2025 (Ex J2, 10691), Mr Landes sought information as to who was performing security officer, IT and cyber security functions, after Project Axel’s engagement was terminated or not extended beyond 30 June 2025. Mr Drebber responded on 4 July 2025 (Ex J2, 10690-10691) as follows:

“Perhaps you could assist in the area and perform these 2 functions.

[Mr O’Connor} and I are unclear what you are doing and what you think you are responsible for. Please confirm you will assist and take on these duties.”

181. Mr Landes replied on 7 July 2025 (Ex J2, 10690) that:

“Noting that;

1. There are presently Court proceedings on foot against you in which I seek that my company’s shareholding be bought by you at fair value;

2. You have stated that you have lost confidence in me, including your statement that ‘I must reiterate that we have lost confidence in your ability to carry out even the basic responsibilities of your role’;

3. You have falsely accused me of manipulating Lanmar’s cyber controls without approval thereby putting the company’s DISP status at risk, and have otherwise made vague assertions that I have behaved dishonestly;

4. I do not hold the requisite training/accreditation required to hold the Security Officer role for Lanmar; and

5. The fact that you have created an unproductive and trustless environment between us;

It is inappropriate that I take on those roles.

I remain ready and willing to participate in any properly convened board meeting of [Lanmar]”.

182. Mr Landes’ evidence in cross-examination that, notwithstanding this and later correspondence, he is still fully performing executive responsibilities within Lanmar was unconvincing. Little turns on that matter where, since the 26 February Meeting, the majority directors and shareholders had expressed their lack of confidence in Mr Landes and narrowed and sought to dictate the scope of his role, and it is hardly surprising that his day-to-day involvement with Lanmar’s business has narrowed in those circumstances.

183. By letter dated 15 July 2025 (Ex J2, 10676) Mr O’Connor advised Mr Ross-Smith of Forge that:

“Because Martin Drebber and I are also directors of [Forge] we have recused ourselves from [Forge’s] commercial decision-making on the questions presented herein.”

That letter also referred to the background to Forge’s engagement to perform software development required under the NMP-1989 Contract; noted that Mr Landes had asked that other approaches be evaluated, such as utilising Lanmar software developers with Mr Ross-Smith’s individual support; and requested Forge’s response. Mr Landes initially understood that letter to indicate that Messrs Drebber and O’Connor had disqualified themselves from making decisions for both Forge and Lanmar in the matter, where they owed conflicting duties to the two companies. It subsequently emerged that that was not the case.

184. On 22 July 2025, Messrs Drebber and O'Connor amended the Profit Workbook in relation to the NAMSS Contract (Ex J2, 9473, 11072).

185. A company-wide meeting took place on 24 July 2025 (Ex J2, 11096), which provided an overview of Lanmar’s business and emphasised its growth as follows:

“1. LANMAR was incorporated in July 2020.

2. Our core focus is industrial engineering: the field focused on designing, improving and implementing integrated systems that involve people, materials, information, equipment and energy.

3. We have grown from 3 to about 40 employee[s] in 5 years and have secured long-term Defence contracts.

4. Most of our projects are within Defence, however, we have had projects in Health, transport and Infrastructure.”

186. The presentation for that meeting identified Lanmar’s current and future projects as follows:

“Current projects

● NMP 1989 EMETERY A analytics

● NAMSS

● CASG BMS E & T

● ERP Process Modelling

● Regional Maintenance Centre Contract Management

● Future projects

● Military planning and operations – software planning tool

● Space division – launch and landing telemetry

● Frigit CLCM

● ASCA – Battlefield decision-making

● Australian Submarine Agency

● Collins class Submarine telemetry”.

187. The presentation for that meeting also provided an overview of the NAMSS project and outlined Lanmar’s approach to delivery of the NAMSS Contract before dealing with more detailed matters. It is common ground that Messrs Drebber and O’Connor did not inform Mr Landes of, or invite him to, that meeting. This conduct was a significant exclusionary step.

188. On 25 July 2025, Lanmar’s directors attended a meeting with Cornwalls in relation to the proposed services agreement with Forge. Mr Landes subsequently contended that this matter involved a breach of the Court’s orders made on 16 May 2025 and that Cornwalls should cease to act or only take instructions from Mr Landes (Drebber 25.8.25 [236]). At least the latter course would have been prudent where the majority directors owed conflicting duties to Lanmar and Forge in respect of the proposed agreement. On 25 July 2025, Cornwalls terminated their engagement with Lanmar in relation to the Forge Subcontract Agreement by reason of the matters raised by Mr Landes (O’Connor 25.8.25 [151]).

189. At a directors’ meeting on 4 August 2025, the conflicted majority directors resolved, over Mr Landes’ opposition, that Lanmar execute a subcontract with Forge for the delivery of the NMP-1989 project. On 5 August 2025, Lanmar executed the Forge Subcontract Agreement (O’Connor 25.8.25 [152]). At a further directors’ meeting on 5 August 2025, Lanmar’s directors unanimously resolved to enter into the NAMSS Contract. A resolution was also passed, over Mr Landes’ opposition, as to the entry into a lease arrangement for further property.

190. On 18 August 2025, Mr Landes sent Mr Mattiussi of Origin Securities, copying Messrs Drebber and O’Connor, an email (Ex J2, 11510) containing information as to revenue from Lanmar’s major contracts, including the NAMSS Contract and the NMP-1989 Contract, and other current contracts, in preparation for a proposed meeting to discuss a possible sale process for all shareholders’ shares in Lanmar. That sale process ultimately did not proceed. At about the same time Mr Landes was promoting the engagement of Origin Securities to conduct a sale process, Messrs Drebber and O’Connor were investigating the possible sale of shares in Lanmar to a third party, as they accepted in cross-examination (T247, T372, T375), but they did not want to sell their shares in Lanmar and were concerned as to the effect of a change of control provision in the NAMSS Contract on a sale process.

191. Prior to 8 September 2025, Mr Drebber sent a text message to Mr O'Connor which suggested that "we should push for [Mr Landes’] resignation" (Landes 8.9.25 [396]; Ex J2, 11278).

192. WLLHLL pleaded (APOC [32A]) that, at a meeting of Lanmar’s directors held on 8 September 2025 (Ex J2, 11752), a resolution was carried on the votes of Messrs Drebber and O’Connor, without sufficient notice of the proposed resolution being provided to Mr Landes, to change the roles and increase the remuneration of certain current employees of Lanmar to the detriment of and without benefit to Lanmar. WLLHLL also pleaded (APOC [32B]–[32D]; partly denied POD [32B]–[32D]) that the effect of that resolution was to increase the remuneration for those employees to correspond with the estimated costs supplied in the Tender Pricing Workbook. This claim was not pressed in closing submissions.

The NAMSS Business Case and claim for breach of directors’ duties

193. On 5 September 2025, Mr Drebber sent Mr O’Connor a draft of a document titled “NAMSS Business Case”, which Mr O’Connor revised and sent back to Mr Drebber on 7 September 2025 (Ex J2, 11718).

194. On 8 September 2025 at 8:46pm, WLLHLL’s solicitors emailed its evidence in reply in these proceedings to the Defendants’ solicitors (Ex J2, 11812), with expert valuation evidence being the next stage in the proceedings. Shortly afterwards, at 9:01pm on 8 September 2025, Mr O’Connor sent an email to Messrs Landes and Drebber (APOC [32E]; partly admitted POD [32E]; Landes 26.9.25 [61]–[62]; Ex J2, 11818, 11569) attaching the “NAMSS Business Case” and a notice of a directors’ meeting to occur on 12 September to approve the NAMSS Business Case. There was a dispute, which it is not necessary to resolve, as to whether that timing was merely coincidental. Mr Landes had not previously been provided with a draft of that document or been informed that it was being prepared. The NAMSS Business Case contained estimated costs of funding certain support functions under the NAMSS Contract (APOC [32F]; admitted POD [32F]), including proposed costs of executive management, an HR Manager, a staff development program, governance oversight, DISP requirements, R&D innovation and information technology over three years of the NAMSS Contract (Ex J2, 11570). Mr Drebber accepted, in cross-examination, that it was not there necessary to provide for costs of information technology which were to be funded by the Commonwealth as an “excluded Service” under the NAMSS Contract.

195. At the board meeting on 12 September 2025, Messrs Drebber and O’Connor voted in favour of, and Mr Landes voted against, adopting the NAMSS Business Case (Landes 26.9.25 [69]; Ex J2, 11883), as follows:

“that the Board approves the proposed Business Case with the exception of the sections of the Business Case titled “Staff Development Program” and “R&D Programme”, including the estimated funding commitments within the proposed Business Case, resolving to commit the estimated funding as a future liability.”

196. There was a lack of clarity in the effect of the resolution, including the intent and effect in economic or accounting terms of “commit[ing]” estimated funding as a “future liability”. It seems likely that, as Mr Drebber claimed in cross-examination, the approval of the proposed NAMSS Business Case had no immediate effect on Lanmar’s financial position, as it would not be reflected in its accounts for the 25/26 financial year, but was in the nature of a budget process. It also seems likely that Messrs Drebber and O’Connor intended that the approval of that business case would allow them and their associated companies to point to future approved expenditures as contemplated by that business case, so as to seek to reduce the value that would have been attributed to Lanmar had those expenditures not been budgeted.

197. Mr Drebber denied in cross-examination (T260, T265) that the “provision” as to future costs of the NAMSS project was made to support an assumption to be given to the valuation expert retained by Messrs Drebber and O’Connor and their companies that would reduce the value of Lanmar. It is not necessary to decide that question, although such an assumption was given to that valuation expert.

198. The Defendants in turn pleaded (POD [32E(f)-(h)]) that:

“the NAMSS Business Case contained the proposed costs of Lanmar in the delivery of executive management, HR, staff development, governance oversight, DISP Requirements, R&D Innovation, IT (Infrastructure and Support), IT (Equipment per employee) and set out the allocation for General and Administrative (G&A) costs for labour as represented in the Tender Pricing Workbook for which the Commonwealth agreed to pay an additional 13.9% in addition to the Core Service Fee paid to Lanmar under the [NAMSS] Contract;

the G&A labour costs relate to the following support services:

i. Executive management;

ii. Human resources;

iii. Governance oversight;

iv. Staff development program;

v. Defence Industry Security Program requirements;

vi. IT infrastructure and equipment; and

vii. Research and Development Innovation

… the NAMMS-Business Case document was prepared in good faith by Mr Drebber and Mr O’Connor, as directors of Lanmar, who believed that the creation and contents of the Business Case document was in the best interests of Lanmar and was made for a proper purpose so as to enable Lanmar to properly administer the [NAMSS] Contract and the ongoing commercial relationship with the Department of Defence.”

199. WLLHLL then pleaded (APOC [32G]; denied POD [32G]) that:

“There was and is no requirement under the [NAMSS] Contract for Lanmar to spend the full amounts estimated in the Tender Pricing Workbook. To the extent that Lanmar can provide the necessary support functions at a lower cost, that will increase the profitability of the [NAMSS] Contract to Lanmar.”

I accept that proposition, which appeared to be common ground between the witnesses, but that does not advance the question whether the estimate of future costs in the NAMSS Business Case was well-founded.

200. WLLHLL also pleaded (APOC [32H]) that:

“The estimated commitments in the NAMSS Business Case greatly reduce the profitability of the [NAMSS] Contract when compared with the profit estimate calculated by Mr Drebber and Mr O’Connor in the Profit Workbook.”

201. The Defendants denied this contention and pleaded (POD [32H]) that:

“a. the purpose of the NAMSS Business Case relates to the allocation of G&A labour costs required to establish the necessary support functions for Lanmar to service the [NAMSS] Contract;

b. the Profit Workbook relates to tracking LANMAR’s aggregate labour costs;

c. neither document relates to the profitability of the [NAMSS] Contract; and

d. the NAMMS-Business Case document was prepared in good faith by Mr Drebber and Mr O’Connor, as directors of LANMAR, who believed that the creation and contents of the Business Case document was in the best interests of LANMAR and was made for a proper purpose so as to enable LANMAR to properly administer the [NAMSS] Contract and the ongoing commercial relationship with the Department of Defence.”

202. WLLHLL’s allegation as to the profit impact of the estimate in the NAMSS Business Case is not established. An estimate of future costs has no impact on the profitability of the NAMSS Contract, unless and until those costs are incurred, and that is not a merely technical proposition. I recognise, of course, that the adoption of a forecast of future costs to be incurred in a major contract does affect a company’s forecast (as distinct from its actual) profitability, so that an overstatement of estimated future costs will depress its forecast profitability. However, little turns on that matter here where the valuation of Lanmar would be, and was, the subject of expert evidence which would presumably scrutinise the future costs to be incurred in respect of the NAMSS project, or would not be accepted if it made an assumption as to those costs which was not established as a matter of fact.

203. WLLHLL then pleaded (APOC [32I]) that the purpose of Messrs Drebber and O’Connor in passing the resolution on 8 September 2025, and in proposing the resolution in support of the NAMSS Business Case, and in provisioning for and committing as a future liability the amounts referenced in the NAMSS Business Case in Lanmar’s accounts, was artificially to reduce the profitability of the NAMSS Contract in Lanmar’s accounts for the purposes of lowering, in these proceedings, the calculation of the fair value of WLLHLL’s shares in Lanmar for the purpose of the buy-out order sought by WLLHLL. This is obviously a very serious allegation and it is, fairly, fully particularised as follows:

“The purpose is to be inferred from:

the matters pleaded at paragraphs 32C and 32G (the steps are not required under the [NAMSS] Contract);

the difference between the methodology for assessment of the profitability in the Profit Workbook (which contains Mr Drebber and Mr O’Connor’s genuine estimate of the profitability of the [NAMSS] Contract) and the approach now adopted in the NAMSS Business Case, the provisioning of which would greatly reduce the forecast profitability of the [NAMSS[ Contract, and so would reduce the fair value of [WLLHLL’s] shares in Lanmar;

the resolution pleaded at paragraph 32A, which will reduce the profitability of the [NAMSS] Contract when compared with the Profit Workbook without benefit to Lanmar in relation to the staff already engaged at the levels of remuneration identified in the Profit Workbook; and

the connection with these proceedings is further to be inferred from the fact that the NAMSS Business Case document was, according to its properties, created at 8.55 pm on 8 September 2025, being 9 minutes after [WLLHLL] served its evidence in reply in these proceedings, and the notice of meeting referred to at paragraph 32E hereof was given 6 minutes later, at 9.01 pm, within the procedural context where the next procedural step is for each party to serve expert valuation evidence by 4 pm on 26 September 2025.”

204. The Defendants denied this allegation (POD [32I]) and pointed to the business purpose of the NAMSS Business Case and again asserted good faith on the part of Messrs Drebber and O’Connor, without acknowledging the material conflict of interest and duty that then affected them.

205. WLLHLL then pleaded (APOC [32J]) that these actions were conduct by each of Messrs Drebber and O’Connor in the exercise of their powers and discharge of their duties as directors of Lanmar that was not in good faith in the best interests of Lanmar; was not for a proper purpose; and was in breach of s 181 of the Act. The Defendants denied this allegation and responded that (POD [33]):

“[WLLHLL] has not applied to the Court pursuant to s 237 of the [Act], for leave to pursue a cause of action against Mr Drebber and Mr O’Connor under s 181 of the [Act].”

206. WLLHLL does not require such leave since it does not seek to pursue such a cause of action, but only to establish, as a matter of fact and law and an element of its oppression case, that Messrs Drebber and O’Connor breached their statutory duties in respect of these matters. That allegation can be made, and that finding can be made, in an oppression claim without such leave, where it is potentially relevant to the value of WLLHLL’s shares in Lanmar. WLLHLL does not itself seek any compensation that would properly be payable to Lanmar rather than to it as a result of the alleged contravention.

207. Section 181 of the Act requires a director or officer of a corporation to exercise his or her powers and discharge his or her duties in good faith in the best interests of the corporation and for a proper purpose. I summarised the relevant principles in respect of that section and the broadly corresponding general law duty in Colorado at [419]–[421] as follows:

“In Chew v R (1991) 4 WAR 21; 5 ACSR 473 at 499, Malcolm CJ summarised the requirements of that duty as being that directors (1) must exercise their powers in the interests of the company, and must not misuse or abuse their power; (2) must avoid conflict between their personal interests and those of the company; (3) must not take advantage of their position to make secret profits; and (4) must not misappropriate the company’s assets for themselves.

The case law is divided as to whether a contravention of s 181(1)(a) of the Corporations Act requires that it be established that a director engaged deliberately in conduct which he or she knew was not in the company’s best interests: for example, Forge v Australian Securities and Investments Commission (2004) 213 ALR 574; [2004] NSWCA 448at [245] per McColl JA (with whom Handley and Santow JJA agreed); Holyoake Industries (Vic) Pty Ltd v V-Flow Pty Ltd above at [150], varied on appeal on another point in V-Flow Pty Ltd v Holyoake Industries (Vic) Pty Ltd above. In Westpac Banking Corporation v Bell Group Ltd (in liq) (No 3) (2012) 44 WAR 1; 89 ACSR 1; [2012] WASCA 157, the Court of Appeal of the Supreme Court of Western Australia unanimously held that the corresponding general law duty to act in good faith in the company’s best interests was subjective and would be complied with if directors honestly believed they acted in the company’s best interests (at [923] per Lee AJA, at [1988] per Drummond AJA, at [2027], [2772], [2795] per Carr AJA). The alternative view is that a contravention of that limb of s 181 can be established if the law objectively considers that what the director did was improper, even if the director subjectively believed that he or she was acting in the company’s best interests: see, for example, Australian Growth Resources Corporation Pty Ltd (recs and mgrs apptd*) v Van* Reesema (1988) 13 ACLR 261at 270–1; 6 ACLC 529 per King CJ; Mernda Developments Pty Ltd (in liq*) v Alamanda Property Investments No 2 Pty Ltd (formerly known as* Dollarforce Financial Services Pty Ltd) (2011) 86 ACSR 277; [2011] VSCA 392 at [32]–[33]. The difference in those approaches does not seem to me to be material for the purposes of this case. The section may be contravened if a director promotes his or her personal interest in a situation where there is a conflict or real or substantial possibility of a conflict between those interests and the company’s interests: Australian Securities and Investments Commission v Adler above at [735]; Parker above at [72].

A contravention of s 181(1)(b) may also be established if a director does not exercise his or her powers for the purpose for which they were conferred or exercised them for an improper purpose, and the bulk of authority indicates that question is to be determined objectively: Permanent Building Society (in liq) v Wheeler (1994) 11 WAR 187; 14 ACSR 109 at 137 per Ipp J (with whom Malcolm CJ and Seaman J agreed); Australian Securities and Investments Commission v Adler above at [738]–[739]; Parker above at [73]. In Westpac Banking Corporation v Bell Group Ltd (in liq) (No 3) above, the majority held that whether a director acts for an improper purpose, for the purposes of the corresponding general law duty, is determined objectively involving an assessment by the Court of what was reasonable in the circumstances (at [933] per Lee AJA, at [1988], [2027], [2073] per Drummond AJA). By contrast, Carr AJA held that the test whether directors had acted for an improper purpose was primarily subjective, although a decision would be voidable if directors acted in good faith for a purpose that was beyond their powers or for a collateral purpose (at [2923]).”

208. The significance of the question whether the duty to act in good faith in the company’s best interests was subjective or objective was doubted by Basten J in Sunnya Pty Ltd v He [2025] NSWCA 79 at [29] and again in Special Gold Pty Ltd (in liq*) v* Dyldam Developments Pty Ltd (subject to a deed of Co arrangement) (No 2) [2025] FCA 825 at [77]–[78] and that distinction would not be material in this case.

209. It seems to me that the manner in which the NAMSS Business Case was prepared and adopted, without an adequate opportunity for involvement or substantive comment by Mr Landes, further excluded Mr Landes and WLLHLL from participation in Lanmar’s management. However, I am not satisfied that any breach of directors’ duties is established in this regard, where I cannot find that those proposed expenditures would not have been reasonable in the relevant circumstances. In any case, unless and until those expenditures are incurred, that matter has no immediate financial impact upon Lanmar, whether on a cashflow or balance sheet basis

Subsequent events

210. A further contentious directors’ meeting took place on 28 October 2025 (Ex J2, 12094).

211. On 11 November 2025, Mr O’Connor sent Mr Drebber a document (Ex J2, 12590, 12579), again partly derived from ChatGPT, which addressed issues relating to a possible buy-out of WLLHLL’s shares in Lanmar on an earn-out basis. That document identified relevant options, including earn-out arrangements, a buy-out over an extended period, a sale to a third party or a winding up, which was identified, partly accurately, as the:

“Worst financial outcome, but strong pressure lever. Useful to show plaintiff his downside if intransigent”.

Mr O’Connor also there sought advice from ChatGPT as to how an escrow on shares would be modelled, for a buy-out of WLLHLL’s shares at the price sought by Mr Landes with an extended earn-out of three years, and ChatGPT provided an apparently sophisticated answer to that question, with the important warning that “ChatGPT can make mistakes. Check important info”. That warning might more usefully have been given when Messrs Drebber and O’Connor used ChatGPT to develop the ill-advised strategy which they adopted at the 26 February Meeting and thereafter.

212. Further directors’ meetings took place on 29 December 2025, 15 January 2026 and 11 February 2026 (Ex J2, 12659, 12748, 13048). On 13 February 2026, Lanmar held a directors’ meeting to instruct Cardell Accounting to rectify the FY24/25 financial report of the company, income tax return and supporting schedule to accrue an invoice from Forge (Ex J2, 13096). The conflicted majority directors approved that resolution over Mr Landes’ opposition (Drebber 7.4.26 [36], admitted with a limiting order under s 136 of the Evidence Act; Ex J2, 13096).

213. On 26 February 2026, Lanmar’s board of directors passed a resolution providing for the payment of a dividend of $688,487.25 to each shareholder (Landes 1.4.26 [24]; Ex J2, 13305). Subsequent directors’ meetings have taken place and the Commonwealth has been notified of these proceedings.

Offers made by the Defendants to acquire WLLHLL’s shares in Lanmar

214. It is convenient now to address the evidence as to offers made by the Defendants to acquire WLLHLL’s shares in Lanmar, which gave rise to a degree of procedural complexity in the proceedings.

215. At the risk of some oversimplification of a complex history, the Defendants initially tendered no evidence of any offers that they had made to acquire WLLHLL’s shares in Lanmar. In closing submissions on 13 and 14 May 2026 (which, would have been the last days of the hearing, but for the developments that I now address), Mr Hughes submitted that the Court could infer that no reasonable offer had been made by the Defendants, because no offers from the Defendants were in evidence. I then gave leave to the Defendants to reopen to tender evidence as to several offers that they had made from December 2025 in response to that submission. I also held that, although those offers had been made on a “without prejudice” or “without prejudice except as to costs” basis, they were admissible under the exception in s 131(2)(g) of the Evidence Act, given the submissions that had been made by WLLHLL.

216. Mr Hughes then advanced a submission as to the lateness of those offers and the Defendants sought to reopen again to tender a without prejudice offer that it appears was made at the mediation on 11 June 2025, to which I referred above. I referred that application to Brereton J since it might require the review of that offer; WLLHLL then indicated that it withdrew the submission that had prompted that application; and, in Lanmar No 1, Brereton J held that, if WLLHLL obtained leave to withdraw that submission, the Defendants were not able to tender the offer made at the mediation by reason of s 131 of the Evidence Act and the mediation agreement. I put aside the question of any leave to withdraw the submission since it is not apparent to me that the withdrawal of a submission that was not in the nature of an admission requires leave.

217. Without any disrespect to the complex submissions that the parties made as to this matter, it seems to me that the resulting position as to any without prejudice offer made at the mediation is straightforward. First, I must determine the proceedings by reference to the evidence before me and I make no assumption that that evidence is complete. There are many occasions on which incomplete evidence is led before a Court, including where a witness is not available to give evidence or chooses not to give evidence; or where documents are not tendered; or where documents are not admissible by reason of legal professional privilege or without prejudice privilege. No doubt, if such evidence was led, a matter might present differently, but the Court must decide any proceeding on the basis of the evidence before it, not on the basis of evidence that might have been before it had the proceedings been conducted differently. This position seems to me to be a commonplace. For example, if the Court were determining a question as to the costs of proceedings, it could have regard to any offers of settlement that were in evidence at that point, including any offers made on a “without prejudice except as to costs” basis; it generally could not have regard to “without prejudice” offers; and it is not prevented from determining the question on the evidence before it, because such other offers might exist.

218. Here, the Defendants made an offer in the context of a mediation. They could have made any such offer or a parallel offer on an open basis, before the mediation, or at any time between the mediation and the point at which the issue arose in the proceeding, or even when the issue had arisen, but they did not do so. I recognise that such an offer may in fact have been made, but I cannot have regard to its terms where it is not in evidence in the proceedings, and the resolution of the proceedings on the evidence before the Court does not depend on any assumption that all available evidence is before the Court. I am reinforced in that view where, in the context of an oppression case, any different view would lead to an absurd result. It can hardly be the case that, if a defendant excludes a plaintiff from a company entirely and makes no open offer to acquire the plaintiff’s shares, but says that it made a without prejudice offer that is not in evidence (which might, so far as the Court knows, be an offer to acquire those shares for $1.00 or for consideration payable in 100 years’ time), that defendant is protected from any finding that no reasonable offer had been made to acquire the plaintiff’s shares and that oppression is established in consequence.

219. I now turn to the later offers made by the Defendants to acquire WLLHLL’s shares in Lanmar. In mid-December 2025, several months after the exclusionary conduct in respect of Mr Landes to which I have referred above, and after these proceedings were well advanced and after the large part of lay and expert evidence had been filed in them, the Defendants made several offers to acquire WLLHLL’s shares in Lanmar. Those offers were made in the context of offers to settle the proceedings, and largely on a “without prejudice save as to costs” basis. Their existence only emerged on the second day of closing submissions on 14 May 2026, when the Defendants sought and obtained leave to reopen their evidence to tender the communications. The parties did not rely on without prejudice privilege in respect of those communications, by contrast with the position of the offer made at the mediation where WLLHLL successfully relied (before Brereton J in Lanmar No 1) on the exclusion of evidence of settlement negotiations under s 131 of the Evidence Act. Both Mr Hughes and Mr Gooley made detailed submissions as to these offers, which I need not summarise although I have carefully considered them. Where neither party has established the value of WLLHLL’s shares in Lanmar, for the reasons noted below, then WLLHLL cannot establish that these offers were not reasonable in amount.

220. By a letter dated 12 December 2025 which attached a draft Deed of Settlement and Release (Ex D6), the Defendants proposed that Lanmar would purchase WLLHLL’s shares, for an initial purchase payment of $500,000 and additional earn-out payments calculated under a relatively complex regime, conditional upon Lanmar achieving specified levels of EBITDA at the end of FY 26, 27 and 28, and on the basis that WLLHLL would transfer its shares in both Lanmar and Forge to the Defendants and resign as a director or officer of Lanmar on receipt of the first payment. I recognise that the earn-out mechanism adopted in this offer may have reflected a response to the Defendants’ claimed inability to purchase WLLHILL’s shares for their value, or at least a price close to the value that Mr Landes attributed to them. I nonetheless find that this was not a reasonable offer, where the initial payment was well below the amounts at which the Defendants had previously contemplated, WLLHLL would be required to transfer the shares and Mr Landes would cease his role as a director before the later payments were made, and WLLHLL would be exposed to credit, performance and earnings manipulation risks in respect of the future payments for several years, while Lanmar was under the Defendants’ management. It is not necessary to decide whether, as Mr Hughes contends, the maximum amount payable under that offer was too low; or whether a failure to pay WLLHLL’s costs of the proceedings was unreasonable; or whether it was also unreasonable to require the transfer of the shares in Forge in this offer, and there is force in the Defendants’ submission that the parties could not sensibly be left in a continuing commercial relationship in that company.

221. About three months later, and several months after the exclusionary conduct to which I have referred above, by an offer of compromise dated 21 March 2026 (Ex D7), the Defendants proposed that Lanmar would pay WLLHLL an amount of $6,488,838 by several instalments payable in the period to 30 September 2027, which would not be paid if the NAMSS Contract was terminated or its scope was reduced by 20%. That offer required the transfer of WLLHLL’s shares in Lanmar and Forge and Mr Landes’ resignation as director within seven days of the acceptance of the offer and the execution of a Deed of Settlement and Release. The actual value of that offer would be less than its face value, where it would have been necessary to discount the payment offered to its present value. I again recognise that the instalment mechanism adopted in this offer may also have reflected a response to the Defendants’ claimed inability to purchase WLLHILL’s shares for their value, or at least a price close to the value that Mr Landes attributed to them. However, I also find that this was not a reasonable offer, where WLLHLL would again be required to transfer the shares and Mr Landes would lose his role as a director before the later payments were made, and WLLHLL would again be exposed to credit, performance and earnings manipulation and contract scope risks in respect of the future payments for at least 18 months, while Lanmar was under the Defendants’ management.

222. By a letter of the same date (Ex D8), the Defendants set out their response to WLLHLL’s claims in the proceedings, at some length, and proposed that Lanmar pay WLLHLL an increased amount of $7,500,000 by several instalments payable in the period to 30 September 2027, again on the basis of a transfer of shares in Lanmar and Forge and the execution of a Deed of Settlement and Release. Again, the face value of that offer would need to be discounted to determine its present value. I find that this was also not a reasonable offer for the same reasons that the offer of compromise of the same date was not a reasonable offer.

223. Finally, by a letter dated 14 May 2026 (Ex D9), sent while closing submissions were taking place in the proceedings, the Defendants reiterated the second offer made on 21 March 2026. I find that this was also not a reasonable offer for the same reasons that the offer of compromise of the same date was not a reasonable offer. I will return to the significance of these offers below.

WLLHLL’s oppression claims

224. I now turn to WLLHLL’s oppression claim. In closing submissions, both Mr Hughes and Mr Gooley addressed the well-established principles applicable in oppression cases generally, including in “quasi-partnership” cases. These principles are well-established, and I have drawn my summary of them from my judgments in Re Gunyahweh Pty Ltd [2023] NSWSC 1133 at [130]ff (“Gunyahweh”), Re Gerringong Storage Pty Ltd [2025] NSWSC 302 at [175]ff (“Gerringong”) and Yamari Ochre at [74]ff.

225. Section 232 of the Act provides that the Court may make an order under s 233 if:

“(a) the conduct of a company’s affairs; or

(b) an actual or proposed act or omission by or on behalf of a company; or

(c) a resolution, or a proposed resolution, of members or a class of members of a company;

is either:

(d) contrary to the interests of the members as a whole; or

(e) oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity.”

226. Section 53 of the Act in turn identifies the “affairs of a body corporate” for several provisions of the Act, including s 232, as including the “promotion, formation, membership, control, business, trading, transactions and … dealings of the body” (s 53(a)) and “the internal management and proceedings of the body” (s 53(c)). The orders which may be made include, relevantly, an order for the purchase of any shares by any member (s 233(1)(d)).

227. Section 232 of the Act and its predecessors extend to conduct involving “commercial unfairness” or where the conduct complained of involves a visible departure from the standards of fair dealing and a violation of the conditions of fair play, or a decision has been made so as to impose a disadvantage, disability or burden on the plaintiff that, according to ordinary standards of reasonableness and fair dealing, is unfair: Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 at 704; Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459; [1985] HCA 68. Conduct may be oppressive even when a defendant believes that he or she is acting for proper purposes: Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 at [176] (“Backoffice”).

228. The principles applicable to a claim for oppression were summarised by Austin J in Tomanovic v Argyle HQ Pty Ltd [2010] NSWSC 152 at [39] (“Tomanovic v Argyle HQ”) and the Court of Appeal noted the parties did not challenge that summary of the applicable principles in Tomanovic v Global Mortgage Equity Corporation Pty Ltd (2011) 288 ALR 310; (2011) 84 ACSR 121; [2011] NSWCA 104 at [140] (“Tomanovic CA”). Austin J there observed that:

“(a) consistent with the principle that the purpose of relief is to terminate the effects of oppression, relief will generally be inappropriate as a matter of discretion if there is no continuing oppression: [Backoffice] at [182];

(b) unfairness is assessed by reference to whether “objectively in the eyes of a commercial bystander, there has been unfairness, namely conduct that is so unfair that reasonable directors who consider the matter would not have thought the decision fair”: eg, Campbell v Backoffice Investments Pty Ltd (2008) 66 ACSR 359, per Basten JA at [181]; [2008] NSWCA 95;

(c) while it is recognised that conduct may be oppressive if inconsistent with the “legitimate expectations” of shareholders, expectations are not immutable. The non-fulfilment of expectations will not establish oppression, if there has been some good reason for the extinguishment of the expectation: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (2001) 37 ACSR 672, at [85], [86], [175]; [2001] NSWCA 97; Nassar v Innovative Precasters Group Pty Ltd (2009) 71 ACSR 343, at [96]; [2009] NSWSC 342 per Barrett J;

(d) “it is important when assessing corporate activities to see if there has been oppression that judges do not remain in their ivory tower”: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1988) 28 ACSR 688, Young J at 739; [1998] NSWSC 413;

(e) a particular matter which will be taken in account in assessing the gravity of any allegation of oppression, is the extent to which the minority shareholder has “baited” the majority shareholder to act in an oppressive manner: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1988) 28 ACSR 688, at 741; [1998] NSWSC 413 …”

229. In the ordinary course, a refusal by a majority shareholder to assist a minority shareholder in extracting his or her capital out of a company by purchasing his or her shares does not, without more, amount to conduct which is prejudicial or discriminatory against that shareholder or to oppressive conduct: Re A Company [1983] Ch 178; *Re G Jeffery (*Mens Store) Pty Ltd (1984) 9 ACLR 193 at 199; Byrne v AJ Byrne Pty Limited [2012] NSWSC 667 at [46]ff (“Byrne”). The emergence of irreconcilable differences between shareholders also does not on its own necessarily establish oppression: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (2001) 37 ACSR 672; [2001] NSWCA 97 at [89] (“Fexuto”); Tomanovic CA at [199].

230. However, exclusion from participation in a company’s management may be oppressive when combined with a failure to make a reasonable offer to buy the plaintiff’s shares: O’Neill v Phillips [1999] 1 WLR 1092 at 1104 (“O’Neill”); Nassar v Innovative Precasters Group Pty Ltd (2009) 71 ACSR 343 at [109]–[110]; [2009] NSWSC 342 (“Nassar”); Tomanovic v Argyle HQ at [42]. For example, in Tomanovic CA, the Court of Appeal held that oppression was established where the parties had agreed but failed to implement an arrangement for separation of their respective interests so that the value of one party’s equity was locked in the companies, the income attributable to that equity had ceased, there was no ready prospect that that party could sell that equity to anyone else for fair value and the resumption of cooperation between the parties was not possible. Relevantly for this case, Campbell JA (with whom Macfarlan and Young JJA agreed) there observed (at [234]–[235]) that:

“… the application of s 232 is not properly approached by seeking to create rules containing terms that are not found in the legislation, like “exclusion from management” and “reasonable offer”.

Further, it is not as though “exclusion from management” and “absence of a reasonable offer” are elements of a cause of action, so that a plaintiff in an oppression suit (or, perhaps, in the sub-species of oppression suits in which exclusion from management is a prime element in the oppression alleged) has the onus of proving absence of a reasonable offer. Rather, the making of a reasonable offer is merely one factor that, in some (but not all) types of situations where oppression is alleged can be relevant to whether oppression is made out. A party who wished to assert that a reasonable offer had been made would bear an onus of adducing evidence of the making of an offer, and an onus of persuading the court that it was reasonable, and that because it had been made there was no oppression.”

231. The elements of a claim in oppression have also been summarised by Stewart J in Re Aulich Civil Law Pty Ltd (in liq*)* [2025] FCA 1329 at [94]ff and by Jackman J in WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd [2025] FCA 622 at [151]ff in terms consistent with the approach I have noted above. In the latter case, his Honour observed that “commercial unfairness" should be assessed on an objective standard and from the perspective of a commercial bystander and (at [156]) that:

“The onus is on the plaintiff in an oppression suit to show that they have been unfairly treated in the relevant sense, as opposed to having been merely “prejudiced” or “discriminated” against … Whether conduct is fair or unfair requires weighing conflicting interests of different groups within the company; it is not assessed simply from one member’s point of view …. The conduct of the aggrieved member may (i) render the impugned conduct not unfair, or (ii) affect the nature of the relief, but there is no overarching “clean hands” requirement … In assessing the gravity of any allegation of oppression, the extent to which the minority shareholder has “baited” the majority shareholder to act in an oppressive manner is also relevant …”. [citations omitted]

232. Jackman J also there observed (at [159]) that:

“a timely, unconditional offer by the majority to purchase the minority’s shares at fair value, supported by an independent valuation, may negate oppression, particularly in quasi-partnership cases where there has been a breakdown in the parties’ relations: O’Neill at 1105–1107; Tomanovic at [226]–[237].”

233. WLLHLL pleaded (APOC [16]) that, since the 26 February Meeting, Messrs Drebber and O’Connor excluded Mr Landes from participation in Lanmar’s management and particularised that allegation by reference to numerous matters, which I will address below. Mr Hughes submitted, in closing submissions, that, at the 26 February Meeting and thereafter:

“…Mr Drebber and Mr O’Connor purported to change the basis of their association, and reallocate management functions between the directors, without Mr Landes’ consent. Thereafter, they acted on the basis that Mr Landes should have no involvement in the affairs of the company that they had allocated to themselves …;

on and from 26 February 2025, Mr Drebber and Mr O’Connor excluded Mr Landes from participating in the management of Lanmar (including by excluding him from meetings of directors and staff, key employment decisions, negotiations with clients and business partners, and engaging with Lanmar’s bankers and lawyers);

on and from 26 February 2025, Mr Drebber and Mr O’Connor prevented the distribution of dividends to members, contrary to the agreement described above … and including in relation to the profits of the 2023/2024 financial year.”

234. The Defendants responded (POD [16]) that they:

“(a) deny Mr O’Connor and Mr Drebber ever excluded Mr Landes from participation in the management of Lanmar;

(b) say Lanmar had a history and practice of directors making informal business decisions that did not always notices of and resolutions with all other directors, including decisions made by Mr Landes;

(c) say not long after the 26 February Meeting, Mr Landes ceased regular communication with Mr O’Connor and Mr Drebber. Mr Landes did so by cancelling the monthly directors catch up meetings and Mr Landes stopped calling Mr O’Connor and Mr Drebber;

(d) say that Mr Drebber and Mr O’Connor were required to make decisions in the best interests of Lanmar in accordance with their duties as directors even if Mr Landes declined to participate in those decisions;

(e) admit the Defendants’ prepared the document called “NAMSS Business Case” which was first provided to Mr Landes on 8 September 2025; and

(f) otherwise deny the allegations contained in paragraph 16.”

235. Several of these matters relate to the exclusion of Mr Landes from aspects of Lanmar’s business operations and decision-making and I will deal with these matters together, by reference to the factual findings that I have reached above. I recognise that Mr Gooley made detailed submissions as to these and other matters on which WLLHLL relied to establish oppression. I have had regard to the entirety of these submissions in reaching the findings of fact above and now in dealing with the question of whether oppression is established. These submissions generally sought to justify particular steps taken by Messrs Drebber and O’Connor, largely in isolation from other steps that they had taken, and with limited regard to the overall effect of their conduct; and that conduct must be assessed as whole.

236. The first of the matters on which WLLHLL here relies is that Messrs Drebber and O’Connor made decisions to employ staff (including Mr Burkitt-Doyle, Mr McBurney, Mr Londt and Mr Liam Drebber) and appoint a “Chief Operating Officer” without involving Mr Landes in the decision-making process. This allegation has been established. The second is that Messrs Drebber and O’Connor held meetings of directors and staff that excluded Mr Landes. This allegation has been established including, importantly, in respect of the NAMSS staff meeting on 24 July 2025. The third matter on which WLLHLL relies is that, on about 30 March 2025, Messrs Drebber and O’Connor met with Mr Landes, rejected his demand to remain involved in the management of Lanmar, and told him that “the two of us can make decisions”. I have found above that, throughout the relevant period, Messrs Drebber and O’Connor exercised their majority power to implement decisions that had been made prior to board meetings, including important decisions that were made in actual and material conflicts of interest and to Lanmar’s detriment.

237. The fourth and fifth matters on which WLLHLL rely is that, Messrs Drebber and O’Connor excluded Mr Landes from attending or participating in negotiations with the Australian Navy in relation to the NAMSS Contract which was signed without Mr Landes’ knowledge or approval; and excluded Mr Landes from attending or participating in negotiations with the Australian Navy in relation to that contract. That allegation is established, at least from February 2025, although I think it probable that Mr Landes later largely withdrew from remaining operational matters in relation to Lanmar, in consequence of the steps the majority had taken, by the second half of 2025. The sixth matter is that Messrs Drebber and O’Connor excluded Mr Landes from participating in business development and project execution activities relating to Telematica software. That allegation is established, at least by the direction given to Mr Landes not to participate in meetings with a potential client regarding the Telematica software.

238. The seventh and eighth matters are the two 23 April 2025 emails to which I referred above. The ninth matter is the denial of Mr Landes’ access to staff at Lanmar’s bank, NAB, and the tenth is Mr Landes’ exclusion from the company-wide meeting to which I referred above. The eleventh matter is an allegation that Messrs Drebber and O’Connor ended contractor services without consultation with Mr Landes (Landes 28.7.25 [251]ff) and the twelfth is an allegation that Messrs Drebber and O’Connor did not invite Mr Landes to meetings with the company’s solicitors, Cornwalls and Kingston Reid (Landes 28.7.25 [175] [267(a)-(b)]). The thirteenth matter is an allegation that Messrs Drebber and O’Connor did not invite Mr Landes to client meetings, including the meeting with Commonwealth representatives in June 2025 regarding a submarine contract or other meetings with clients and potential clients referenced in the Lanmar Presentation on 24 July 2025 (Ex J2, 11096). The fourteenth matter is an allegation that Messrs Drebber and O’Connor held meetings about the management of Lanmar to which Mr Landes was not invited (Ex J2, 9564). These matters, if each taken alone, may well not have established oppression, but I have regard to them in the context of the wider pattern of exclusion and the narrowing of Mr Landes’ role, which I address below.

239. The fifteenth matter on which WLLHLL relies is an allegation that Messrs Drebber and O’Connor conducted negotiations between Lanmar and Forge, where Messrs Drebber and O’Connor were directors of both companies, and excluded Mr Landes from those negotiations. Mr Hughes submitted that:

“causing Lanmar to enter into a contract with [Forge], substantially diverting the profits of the [NMP-1989] Contract to [Forge], also involved an oppressive course of conduct to devalue Lanmar and prevent [WLLHLL] and Mr Landes from receiving fair value for its shareholding.”

240. It seems to me that this is a significant matter, given the importance of the contract with Forge to Lanmar, the fact that Lanmar was left in a position of vulnerability to Forge in these negotiations where it had not obtained a right to use the Telematica software before contracting with the Commonwealth, and the adverse effect on Lanmar of reaching an arrangement with Forge which deprived Lanmar of much of the economic benefit of the contract.

241. The sixteenth matter is an allegation that Messrs Drebber and O’Connor prepared or arranged for the preparation of the NAMSS Business Case, which was provided to Mr Landes on 8 September 2025, without informing Mr Landes of that document, or involving him in the decision to prepare it or in its preparation. That allegation is established, although I did not find above that that conduct gave rise to a contravention of s 181 of the Act.

242. WLLHLL then pleaded (APOC [33]) and further particularised its oppression claim as follows:

“The conduct of the first to fourth defendants pleaded at [APOC] [16] to [32J] … was conduct that is oppressive to, unfairly prejudicial to, or unfairly discriminatory against WLLHLL within the meaning of section 232 and 233 of the [Act].

Particulars

In circumstances where the members of Lanmar, and those standing behind them, have entered into association upon the understanding that each of them who has ventured his capital will also participate in the management of the company, it is unjust, inequitable and unfair for the first to fourth defendants, constituting a majority, to use their voting power as directors and members to exclude WLLHLL and Mr Landes from participation in the management of the company without giving WLLHLL the opportunity to remove its capital upon reasonable terms.

Further, the breach of the Dividend Agreement, together with passing of resolutions 2 and 3 at the meeting of 9 May 2025 (reviewing directors’ compensation, implementing an incentive plan, and delaying bonuses) involved an oppressive course of conduct to prevent WLLHLL and Mr Landes from benefiting from the profits of Lanmar.

Further, the passing of the resolutions at the meeting on 8 September 2025 (changing the roles and remuneration of employees of Lanmar so as to bring Lanmar’s costs in relation to the NAMSS Contract in line with the costs assumed by Lanmar at the time of submitting its tender for the NAMSS Contract in the Tender Pricing Workbook involved an oppressive course of conduct to devalue Lanmar and to prevent WLLHLL and Mr Landes from receiving a proper amount for its shareholding.

Further the calling of a meeting for 12 September 2025 for the purposes of resolving to commit the estimated funding set out in the NAMSS Business Case as a future liability of Lanmar involved an oppressive course of conduct to devalue Lanmar and prevent WLLHLL and Mr Landes from receiving a proper amount for its shareholding.”

243. It is convenient to address WLLHLL’s oppression claim by reference to the matters that it has particularised, in turn, although I recognise that these matters must be addressed as a whole. The first is, in substance, an allegation that WLLHLL and Mr Landes were excluded from participation in Lanmar’s management without WLLHLL being given the opportunity to remove its capital upon reasonable terms. That allegation invokes the principles in O’Neill, Nassar and Tomanovic v Argyle HQ to which I have referred above. I am comfortably satisfied that WLLHLL has established that Mr Landes was excluded from participation in Lanmar’s management in the period after the 26 February Meeting, given the findings which I have reached above.

244. In closing submissions, Mr Hughes submitted that:

“First, in circumstances where the members of Lanmar, and those standing behind them, have entered into association upon the understanding that each of them who has ventured capital will also participate in the management of the company …, it is unjust, inequitable and unfair for the Defendants, constituting a majority, to use their voting power as directors and members to exclude [WLLHLL] and Mr Landes from participation in the management of the company … without giving [WLLHLL] the opportunity to remove its capital upon reasonable terms ….

Secondly, the Defendants’ conduct was specifically designed by Mr Drebber and Mr O’Connor to cause, and in fact has caused, Mr Landes to leave the company …”

245. In closing submissions, Mr Gooley also addressed the matters said to amount to the exclusion of Mr Landes and WLLHLL from Lanmar’s management, at considerable length. I recognise that the Defendants rely on the alleged underperformance of Mr Landes, to which Messrs Drebber and O’Connor referred at the 26 February Meeting and after that meeting, in order to justify the exclusion of Mr Landes from Lanmar’s management or at least the substantial narrowing of the areas in which he was permitted to be involved. In closing submissions, Mr Gooley submitted that:

“The First to Fourth Defendants’ case is that Mr Landes is the catalyst for the breakdown in relationship. Mr Landes’ prolonged performance failures dating back to 2021, and the escalation of these failures in 2024, effectively triggers the breakdown. After the First and Second Defendants justifiably brought these matters to a head in February 2025, Mr Landes embarked on a destructive and divisive campaign against them, seeking to undermine their ability to run the business for the purposes of extracting an inflated buyout from them. He held the company to ransom by refusing to even vote in favour of a resolution allowing it merely to apply for a bank guarantee that was necessary to ensure entry into the largest contract it had ever won. He ultimately withdrew entirely from the operational management of the company and for the most part has not participated in the day to day operations for more than a year. Despite this, he reaps the rewards of the successful business built by the First and Second Defendants, while continuing to obstruct the running of the business on an almost daily basis.”

246. Mr Gooley also submitted that:

“The Defendants’ case is that Lanmar was founded on a basis of mutual trust, and there has been a breakdown of that trust. However, the evidence will show that this breakdown was driven by Mr Landes’ poor performance, and the ultimate confrontation of that poor performance by Mr Drebber and Mr O’Connor led to the breakdown…”

247. Mr Hughes responded in closing submissions to the several criticisms of Mr Landes’ performance in the Defendants’ submissions. Mr Hughes also submitted, with considerable force, that aspects of those criticisms, in the period after the 26 February Meeting, wrongly assume that Mr Landes had particular responsibility for particular items, where Messrs Drebber and O’Connor had purported to allocate the responsibility for those matters to him, without his consent, as the dispute developed.

248. I accept that, as at the 26 February Meeting, Messrs Drebber and O’Connor likely genuinely held the beliefs as to Mr Landes’ underperformance which prompted the exclusionary conduct which followed that meeting, to which I have referred above. I do not accept the Defendants’ further criticisms of Mr Landes’ conduct after the 26 February meeting, which seems to me largely to have involved his insisting, as he was entitled to do, on proper corporate governance within Lanmar and his involvement in decisions that were properly made by Lanmar’s board, absent unanimous consent of shareholders to a less formal approach. In any event, Messrs Drebber’s and O’Connor’s perception as to Mr Landes’ underperformance, or the fact of underperformance, did not provide a basis for his substantial exclusion from participation in Lanmar without a reasonable offer to buy out WLLHLL’s shares at fair value: compare Harding Investments Pty Ltd v PMP Shareholdings Pty Ltd (No 2) (2011) 282 ALR 229; [2011] FCA 567 at [52] .

249. I have addressed the complexities that arose in respect of evidence of offers made by the Defendants to acquire WLLHLL’s shares in Lanmar above. As I have noted above, it appears that an offer was made at a mediation in June 2025 that could not be admitted in evidence in the proceedings, by reason of s 131 of the Evidence Act and the terms of the mediation agreement. Commencing in mid-December 2025, and after these proceedings were well advanced and after the large part of lay and expert evidence had been filed in them, the Defendants made several offers to acquire WLLHLL’s shares in Lanmar in increasing amounts that were to be payable over an extended period and subject to conditions. I have addressed the detail of these offers above.

250. Mr Gooley submitted that WLLHLL had not pleaded the absence of any offers made by the Defendants to acquire WLLHLL’s shares or led evidence as to that matter. It did not need to do so, as noted in Tomanovic CA at [235] above, and I have regard to all of the evidence that has been led in the proceedings as to this matter, including the evidence subsequently led by the Defendants of the several offers they had made from December 2025. Mr Gooley also submitted that unfairness generally does not lay in exclusion from management alone, but only in exclusion without a reasonable offer to buy a plaintiff’s shares. I do not accept an exclusion from management within a closely held company may not amount to oppression, without more, but it is not necessary to proceed on that basis here where it was combined with the absence of a reasonable offer to buy WLLHLL’s shares, for the reasons noted above.

251. In supplementary submissions on 7 July 2026, Mr Gooley also pointed to earlier attempts between the parties to explore a voluntary sale process for all of the shares in Lanmar in early August 2025. The parties did not reach agreement as to that sale process and it ultimately did not proceed. I recognise that this matter was addressed in the affidavit evidence and documents relating to it were tendered and there was some cross-examination as to relevant matters. I proceed on the basis that that process failed, and it is neither necessary nor possible on the evidence to attribute fault for that failure to either party, where they took different views as to how that process should proceed. This matter did not cure the exclusion of Mr Landes from management of Lanmar in the circumstances that I addressed above, nor did Mr Landes’ conduct in respect of this sale process prevent WLLHLL from obtaining relief in these proceedings.

252. Mr Gooley submitted that, if one of the Defendants’ offers now in evidence are found to have been reasonable, the Plaintiff’s case on oppression fails. I have not reached that finding, so it is not necessary to consider whether that consequence would have followed. Mr Gooley also submitted that if the Court finds that none of those offers was reasonable, the Plaintiff cannot positively prove that the Defendants never made an offer which was reasonable. I do not accept that submission where, as I have noted above, the Court can properly determine the proceedings by reference to the evidence that is before it. I need not have regard to evidence that was not admissible or was not admitted and, to the extent the Defendants sought to rely on an offer that they had made to displace the finding of oppression that would otherwise follow from their conduct, it was a matter for them to establish the fact of and terms of that offer.

253. Where neither party has established the value of WLLHLL’s shares in Lanmar, for the reasons noted below, then WLLHLL cannot establish that these offers were not reasonable in amount. However, as I noted above, the structure of those offers, involving extended periods for payment and contingent payments, or both, exposed WLLHLL to substantial performance and credit risks that were not reasonably imposed on it, as to whether the payments would be made and as to whether their amounts would be reduced by manipulation of Lanmar’s earnings or a reduction of those earnings by adverse developments in its business under the Defendants’ management. I am comfortably satisfied that the offers that are in evidence do not constitute reasonable offers to acquire WLLHLL’s shares, so as to avoid a finding of oppression arising from Mr Landes’ exclusion from a substantive role in Lanmar and the events to which I have referred above, and any offers that are not in evidence cannot assist the Defendants. For completeness, Mr Landes’ exclusion from management continues and the oppression arising from that exclusion also has a continuing character.

254. WLLHLL’s second particularised allegation as to oppression is directed to the alleged departure from the parties’ earlier understanding as to the payment of dividends. In closing submissions, Mr Hughes submitted that:

“Where a payment of low or no dividends is part of a larger plan of majority shareholders to conduct the company in their own interests, it can be unfair, which is particularly the case where payments are made to the majority shareholder or its interests to the exclusion of the other shareholders: Re National Protective Services Pty Ltd [2025] VSC 486 at [200]-[201].

In Slea Pty Ltd v Connective Services Pty Ltd (No 9) [2022] VSC 136 at [593], Robson J stated the following (citations omitted):

‘While a dividend policy may be fixed for justifiable commercial reasons, a failure to reconsider the dividend policy in light of the company’s changed circumstances may be oppressive, particularly where directors have taken steps to review their own remuneration.’”

255. Mr Hughes also submitted that:

“the failure to pay dividends in accordance with the Dividend Agreement and the November 2024 Dividend Agreement, together with passing resolutions 2 and 3 at the meeting of 9 May 2025 (reviewing directors’ compensation, implementing an incentive plan, and delaying bonuses) involved an oppressive course of conduct to prevent [WLLHLL] and Mr Landes from benefiting from the profits of Lanmar … Ceasing dividends had no real, commercial purpose and was designed to cause a “liquidity strain” on [WLLHLL] in order to achieve the cessation of these proceedings and force [WLLHLL] to sell its shares at a price significantly below fair value.”

256. Mr Gooley responded that a failure to pay dividends, even when they are able to be paid, does not in itself constitute oppression: Re DG Brims and Sons Pty Ltd (1995) 16 ACSR 559 at 588; [1995] QSC 053; Re Hollen Australia Pty Ltd (2009) 27 ACLC 199; [2009] VSC 95 at [75] (“Hollen”); Nguyen v QTQ Mechanical Services Pty Ltd [2019] NSWSC 1629 at [32]. Mr Gooley also submitted that any agreement as to the payment of dividends was not enforceable and addressed the circumstances in which dividends were not paid. The Defendants contended that the failure to pay dividends was commercially justified on the basis that Lanmar had represented to the Department of Defence in its tender for the NAMSS Contract that Lanmar maintained minimum cash at bank equivalent to six times monthly payroll. I broadly accept WLLHLL’s submission that dividends were not withheld for that reason where, as Mr Hughes submitted in closing submissions:

“The Defendants have now sought to justify their failure to pay dividends on the basis that Lanmar had represented to the Department of Defence in its tender for the NAMSS Contract that Lanmar maintained minimum cash at bank equivalent to 6 times monthly payroll. This was not the true reason that Mr Drebber and Mr O’Connor failed to pay dividends. In the first place, the statement in the tender submission formed no part of Lanmar’s contract with the Commonwealth and was based on Lanmar’s practice at the time … Secondly, this reason was not given at the time that dividends were discussed in March and May 2025, and was instead first raised at the end of August 2025. Thirdly, the non-payment of dividends continued long after Lanmar’s cash holdings exceeded 6 months of payroll. The more likely explanation for the refusal to pay dividends is found in the ChatGPT plan of 24 February 2025, as part of a strategy to force Mr Landes’ exit.”

257. In reply, Mr Hughes responded to the Defendants’ submissions in respect of failure to pay dividends as follows:

“Whilst it is accepted that a failure to pay dividends does not, in and of itself, constitute oppression, the Defendants’ failure to pay dividends does constitute oppression, [where] … the parties had agreed to reduce their remuneration ‘on paper’ because they had agreed that the balance would simply be paid to them by way of dividends; and … at the same time as the Defendants caused Lanmar to fail to pay dividends, they sought to implement a [short term incentive plan] for the purpose of paying themselves more than Mr Landes.”

258. It is not necessary to decide whether the NAMSS Contract required, as a contractual term, that Lanmar maintain minimum cash at bank equivalent to six times monthly payroll, where Lanmar had represented that it was its practice to do so in the tender documents. That representation does not justify the departure from the parties’ understanding as to the payment of dividends, so as not to pay any dividend for the extended period from March 2025 to February 2026, for the third reason put by Mr Hughes, as noted in paragraph 256 above. I am satisfied that oppression is also established on this basis, in the context of the other matters discussed at the meeting of 9 May 2025. It is plain that, taken as a whole, those matters were directed to removing the income that would be received by WLLHLL and other shareholders by way of dividends, while reserving the ability of Messrs Drebber and O’Connor to receive additional income, reflecting their self-assessment of their larger contributions to Lanmar’s business. I do not accept that that conduct was justified by developments in respect of the NAMSS Contract, where the majority directors and shareholders made no attempt to assess the extent to which dividends could properly be paid to all shareholders, while complying with any commitments that were to be made to the Commonwealth under that contract. The fact that Messrs Drebber and O’Connor plainly then contemplated the fact that additional payments could be made to them by way of directors’ compensation or under the short term incentive plan, to Mr Landes’ exclusion, is plainly inconsistent with the suggestion that dividends could not have been paid to shareholders by reason of the then dealings with the Commonwealth. It is no answer to this claim that, after proceedings intervened, additional payments were not made to Messrs Drebber and O’Connor, or that further dividends were paid to the shareholders in early 2026. I am satisfied that oppression is also established on this basis.

259. Mr Gooley also submitted in closing submissions that there is no basis for an order under s 233 of the Act, where the relevant oppression had been brought to an end: Backoffice at [182]. In particular, Mr Gooley submitted that:

“If the Court were to find that the failure to issue a dividend in 2025 was oppressive, a dividend has now been issued. That dividend was for a sum considerably more than Mr Landes would have received had dividends been paid in accordance with the alleged agreement. His position is now no worse than it would have been had dividends been paid in 2025. In these circumstances, the oppression has ended and if this is the extent of the oppression found by the Court, then it should refuse to make any buyout order.”

260. Mr Hughes responded that:

“It is no answer that the Defendants did not in fact, after the commencement of these proceedings and under the eye of the Court, implement the [short term incentive plan] and pay themselves more than Mr Landes. The Court ought to find that that was what they proposed to do right up until these proceedings were commenced … and, in all likelihood, but for the commencement of these proceedings they would have done so. …

261. It seems to me that this principle has no application here. The fact that a dividend was ultimately paid in February 2026 does not bring the relevant oppression to an end, where the majority directors and shareholders retain the ability, which they have shown themselves willing to use, to delay the payment of dividends in a manner that places financial pressure upon WLLHLL and Mr Landes.

262. The third particularised claim of oppression relates to the change in the roles and remuneration of employees made at the 8 September 2025 meeting, which reflects allegations that are no longer pressed by WLLHLL, as I noted above, and this clam is not established.

263. The fourth particularised claim of oppression relates to preparation of the NAMSS Business Case, dealt with at the meeting on 12 September 2025. In closing submissions, Mr Hughes submitted that:

“… resolving to commit the estimated funding set out in the NAMSS Business Case as a future liability of Lanmar involved an oppressive course of conduct to devalue Lanmar and prevent the plaintiff and Mr Landes from receiving fair value for its shareholding…”

264. It seems to me that, even if Messrs Drebber’s and O’Connor’s intention in preparing the NAMSS Business Case was to provide a basis for contending, in these proceedings, that WLLHLL’s shares in Lanmar had a lesser value, the mere preparation of that business case could not and did not adversely affect the value of those shares. This matter does not rise to the level necessary to establish oppression.

265. In the result, WLLHLL’s claim in oppression is established, by reference to the substantive exclusion of Mr Landes from performing a real role in Lanmar from February 2025 onwards, without the Defendants making a reasonable offer to acquire WLLHLL’s shares in Lanmar; and the majority directors’ and shareholders’ conduct, at least from 9 May 2025, in respect of the payment of dividends, combined with the other steps taken so as to place them in a position where they could remunerate themselves rather than Mr Landes or WLLHLL in respect of Lanmar’s profits. I now turn to the question of relief in respect of oppression.

WLLHLL’s claim for an order that MDTI and PCKOC buy out its shares in Lanmar and issues as to their capacity to do so

266. As I noted above, WLLHLL sought an order that MDTI and PCKOC purchase its shares in Lanmar at a value set so as to compensate it for the alleged oppression which has taken place. In closing submissions, Mr Hughes submitted that Courts have commonly ordered a majority shareholder which has been found to have oppressed a minority shareholder to buy out the minority shareholder’s shares, and referred to cases including Fexuto and Re QB Foods Pty Ltd [2021] NSWSC 1227 at [132] in that regard. Mr Hughes rightly recognised that Lanmar is solvent and an apparently successful company, putting aside the breakdown of the relationship between its directors and shareholders, and I recognise that these are matters that would tend strongly against a winding up order, if any other order were available. Mr Hughes also fairly recognised that a winding up order may nonetheless be made, including in respect of a solvent company, where the evidence does not allow a determination of the value of a company’s shares: Ratul v Islam [2023] NSWSC 78 at [39]; Gunyahweh at [157].

267. Mr Huges also submitted that a buy-out order is the least intrusive remedy that would bring an end to the alleged oppressive conduct and that:

“The Company is profitable and employs at least 40 individuals. The parties’ experts value the company in the range of $16.3 - $44.04 million. The value in the business is not substantially realisable (e.g. it does not own substantial real property) and is instead anchored in its goodwill and expected future earnings connected to its long term contracts with its clients, including the Commonwealth of Australia.

… the evidence demonstrates that the Defendants’ net assets exceed $37 million and they are, therefore, able to pay a substantial buyout order. Equally, and connectedly, the expected earnings of Lanmar show that a buyout order is within the ability of the Defendants. To the extent the Court has any doubt about the Defendants’ capacity to obtain a loan or fund a buyout order, the Court should draw an adverse inference from the Defendants’ forensic decision not to lead evidence about those matters.

Moreover, the mere fact that the Defendants have gestured towards an alleged inability to pay does not place a new onus on the Plaintiff to demonstrate, as a precondition to a buy-out order, that the Defendants have a provable ability to purchase [WLLHLL’s] shares at fair value. The authorities show that the Court’s remedial powers in relation to curing oppression are more flexible than that.”

268. There are issues between the parties as to whether MDTI and PCKOC, with Messrs Drebber’s and O’Connor’s assistance, or the Defendants generally, have the capacity to buy out WLLHLL’s shares in Lanmar; and as to whether that matter is relevant and, if so, who has the onus of establishing that the Defendants had or did not have that capacity. I will address these issues, although it is not necessary to decide it where, for the reasons to which I will turn, I am not able to determine the price at which any buy-out order should be made or make such an order.

269. WLLHLL here had the opportunity to lead evidence as to MDTI’s and PCKOC’s capacity to buy out its shares in Lanmar, where the Court had made discovery orders as to that matter on 17 February 2026 on WLLHLL’s application. It largely chose not to lead such evidence, despite documents produced by the Defendants on discovery. The Defendants then led late affidavit evidence as to whether Messrs Drebber and O’Connor had capacity to fund a buy-out of WLLHLL’s shares in Lanmar, which was filed shortly before the commencement of the proceedings and admitted where WLLHLL did not object to its lateness.

270. Mr Gooley pointed out that, in its pleaded case, WLLHLL sought buy-out orders against MDTI and PCKOC, the companies associated with Messrs Drebber and O’Connor, rather than against Messrs Drebber and O’Connor personally. Mr Gooley also submitted, and I accept, that MDTI and PCKOC each have limited assets, putting aside any financial support which may be available to them from Messrs Drebber and O’Connor respectively. Mr Gooley submitted that:

“In these circumstances, the Court cannot be satisfied that either [MDTI or PCKOC] have the capacity to buy out [WLLHLL], even at the lowest price. It is difficult to see what would be achieved by a [buy-out] order apart from the inevitable liquidation of [MDTI and PCKOC].”

271. Mr Gooley also submitted that, where buy-out orders were not sought against Messrs Drebber and O’Connor, their capacity to comply with such orders was of little relevance and that the evidence established that they did not have the capacity to buy out WLLHLL’s shares in Lanmar in any event.

272. Mr Hughes responded that Messrs Drebber and O’Connor had not taken into account their indirect ownership of shares in Lanmar in assessing their net worth; and, perhaps more significantly, that MDTI and PCKOC respectively own those shares. I recognise, however, that the value of those shares has not been established, for the reasons noted below and, in any event, it cannot be assumed that those shares are liquid or could be readily or promptly sold to a third party in order to fund a purchase of WLLHLL’s shares in Lanmar. Mr Hughes also pointed out that Messrs Drebber and O’Connor have not taken into account their indirect ownership of a portion of shares in Forge, also directly owned by MDTI and PCKOC, but it also cannot be assumed that those shares could readily or promptly be realised to fund a buy-out of WLLHLL’s shares in Lanmar. Mr Hughes also referred to the possibility that funds could be raised by borrowings by MDTI and PCKOC to buy out WLLHLL, a possibility that Mr Drebber fairly acknowledged in cross-examination (T269), and to earlier discussions between the Defendants and third parties including KordaMentha, to which I have referred in the chronology above.

273. Mr Hughes also submitted that no evidence was led by the Defendants about the potential for the Defendants to “strike a deal” with a third party that would enable a buy-out of WLLHLL or about their capacity to use Lanmar’s cash at bank to fund a buy-out. This submission again emphasises the absence of evidence in WLLHLL’s case to establish that MDTI and PCKOC had the capacity to fund a buy-out, although Mr Hughes does not accept that WLLHLL bears any evidentiary or legal onus in that regard. Mr Hughes also rightly recognised that an order for a buy-out could be made on terms that allowed a period for its implementation, possibly with interest payable, on a basis which addressed the possibility that a winding up order could be made if the buy-out did not proceed because the majority shareholders did not have the means to purchase the minority shareholder’s shares.

274. Turning now to the applicable legal principles, Mr Hughes submitted that the impecuniosity of an oppressing party is not a relevant factor in ordering the purchase of the oppressed party’s shares, where that would allow an oppressing party who claimed to be unable to afford to acquire the oppressed party’s shares (or, I interpolate, was in fact unable to do so) to remain in control of the business. Mr Hughes relied, inter alia, on Re a Company [(1986) 2 BCC 99 (“Re a Company”) and Hollen at [88]–[89] for that proposition. In the latter case, Robson J observed that:

“The impecuniosity of the oppressor should not be a relevant factor in ordering the purchase by him of the oppressed party’s shares. In [Re a Company*]* Vinelott J considered that if the company were wound up the respondent oppressor (who was seeking such an order on the ground that he could not afford to purchase the shares of the oppressed) would be in a position to appropriate substantially the whole of the business of the company for himself, since he had always dealt with the company’s suppliers and customers the senior members of staff would follow him and there would be no one to outbid him if he made an offer to the liquidator for the right to use the company’s name and logo. Justice Vinelott said:

‘The result, it seems to me, would be far more unfair to Mr Lewis [the oppressed] than a compulsory order for the acquisition of the shares by Mr Bolton [the Oppressor]. It would be unfair that he should be deprived of a share in the “going concern” value of a company in the formation of which he participated and to the establishment of a business of which he made a significant if not indispensable contribution.’

Accordingly, the following appear to be the relevant principles:

(1) Generally, the purpose of granting a remedy under s 232 is to bring an end to the oppression and to fairly compensate the person oppressed.

(2) Typically, the oppression can be ended and the oppressee properly compensated by the oppressor being ordered to acquire the oppressee’s shares at a fair value.

(3) Generally, the order should seek to put the company back on the rails and avoid the causes of conflict and oppression.

(4) Winding up is a remedy of last resort.

(5) Winding up a profitable and operating company is an extreme step and requires a strong case to be make.

(6) In choosing a remedy under s 233 the Court is exercising a discretion.

(7) In exercising that discretion, the Court should keep in mind the above principles.

(8) Bearing in mind those principles, circumstances may dictate that the most appropriate remedy to bring an end to oppression and to fairly compensate the person oppressed is a winding up. (emphasis added).”

275. In closing submissions, Mr Gooley responded that the principles in Re a Company and Hollen are not applicable here and that this is not a case where one party, having dealt with the clients, would have the advantage over the other in the event of a liquidation. He also addressed other case law directed to the relevance of the oppressing party’s capacity to complete a buy-out, which I will address below. It seems to me that the observations of Vinelott J in Re a Company, as applied in Hollen, were plainly directed to the facts of that case and do not establish a general principle of law. There is no reason to think, here, that a third party would not or could not outbid Messrs Drebber and O’Connor to acquire Lanmar’s business from a liquidator of Lanmar, where there have been preliminary discussions with third parties as to a sale of the business, and the evidence indicates that Messrs Drebber and O’Connor have limited resources to fund a purchase of the business.

276. The views expressed in Re a Company and Hollen were noted in Snell v Glatis (No 2) [2020] NSWCA 166 at [42] (“Snell”), where Leeming JA observed that neither the observations of Vinelott J in Re a Company nor the reasoning of Robson J in Hollen was readily applicable to a case where a company’s main assets were tenanted property and loans which may be more or less readily realised by a liquidator. His Honour did not there address the cogency of those views in respect of a trading company or a services provider such as Lanmar. The view expressed in Hollen was also accepted, without detailed analysis, in Pedro-X Pty Ltd v S**HRL Ventures Pty Ltd (No 2) [2025] QSC 341.

277. I have reservations as to the views expressed in Re a Company and Hollen, although it is not necessary to reach any final determination of their correctness here. I can accept that it is unattractive that a buy-out order could not be made, where an oppressing party does not have the capacity to perform it, with the result (unless the alternative order that I address below is made) that the company, the oppressed party and interested persons are exposed to a winding up order which will likely depress the value of the company’s business and have adverse impacts on its employees and third parties. However, it is not apparent to me that there is utility in making a buy-out order directed to a party which cannot comply with it, and neither Re a Company nor Hollen undertake any detailed analysis of what would occur when that order was not complied with, because the impecunious party to which it was directed could not comply with it.

278. Mr Hughes submitted that, in that situation, the oppressed party could seek equitable execution of a buy-out order, including the appointment of a receiver to the assets of the oppressing party that had not complied with that order. That possibility was also noted by Leeming JA in Snell where his Honour observed (at [47]) that he regarded it as “not free from complexity”, although his Honour did not expand on the nature of that complexity. It seems to me that equitable execution of such an order would have potential difficulties. The most obvious difficulty is that a buy-out order made in an oppression case contemplates that the buying party will make payment in exchange for the transfer of the shares to it. It is not apparent to me that a party to which a buy-out order was directed would be under an obligation to pay for the shares until the selling party is ready and able to transfer them to the buying party, but the selling party would presumably be reluctant to deliver those shares to an impecunious party that it expected could not pay for them. It is also not apparent to me that a receiver would be appointed, by way of equitable execution of a buy-out order, where the buying party had not paid for the shares because the selling party had not or would not transfer them.

279. On the other hand, several other cases have recognised the relevance of shareholders’ capacity to pay the price set for a buy-out in determining whether a buy-out should be ordered: Ample Source International Ltd v Bonython Metals Group Pty Ltd (No 6) (2011) 285 ALR 488; [2011] FCA 1484 at [331]–[344] (“Ample Source”); Snell at [41], [45], in the context of an asset holding company; Re Crow Inn Pty Ltd (No 2) [2020] NSWSC 1749 at [269], [271] (“Crow Inn”); Re SRD Property Pty Ltd [2023] NSWSC 441 at [87]; Gunyahweh at [143].

280. In Snell, the Court of Appeal considered the comparative merits of a buy-out order and a winding up, in the context of an asset-holding company, where there was an issue as to whether the defendants could comply with a buy-out order. Leeming JA (with whom Bell P and Meagher JA agreed) there held that an order made by the trial judge for the defendant to buy out a plaintiffs’ minority shareholdings in a group of companies should not have been made, notwithstanding the trial judge’s review of the authorities supporting that approach, where there was insufficient evidence that the defendant could comply with that order within the specified timeframe, the company was not running a business but collecting rents on leased property, and winding up was a realistic means of securing, to the plaintiffs, their share of the value of the group and of preventing ongoing oppression. The first of these factors arises here, where the Defendants deny they have capacity to perform a buy-out order. The second does not, where Lanmar is a trading business which likely has greater value as a going concern. Bell P (as the Chief Justice then was) also there observed (at [6]) that:

“Although statements may be found in the authorities that winding up is a last resort remedy in a case where oppression is found … the context in which the particular company or companies operate together with their structure and history will always be relevant to the fashioning of appropriate discretionary relief and generalised statements as to, for example, the inappropriateness of ordering winding up in cases of oppression other than as a last resort do not mean that that remedy should not be considered, in an appropriate case, even if neither party in fact seeks it.”

281. In submissions in reply, Mr Hughes sought to limit the observations in Snell to a company that is not “actively trading” and emphasised the disadvantages of a winding up order in respect of a company which is actively trading and has substantial goodwill associated with ongoing contracts. I accept that those disadvantages are real and that the Court would only here make a winding up order where no real alternative exists to doing so.

282. In Crow Inn, Rees J referred to Leeming JA’s observation in Snell that the circumstances in which a shareholder must realise assets in order to meet a buy-out order lend themselves to the appointment of a liquidator for the purposes of ensuring that occurs independently of the parties. Although each party had there sought buy-out orders, Rees J instead ordered that the companies be wound up.

283. Turning now to the financial position of the Defendants, it seems to me that there is at least a real possibility that MDTI and PCKOC could, with the assistance of Messrs Drebber and O’Connor, have complied with such an order. Each of Messrs Drebber and O’Connor have interests in property which likely could be realised or used to raise finance, and Mr O’Connor also holds funds at bank which could be applied to provide assistance to MDTI and PCKOC to acquire WLLHLL’s shares. Lanmar also has significant assets and likely has the capacity to lend funds to MDTI and PCKOC to permit an acquisition of WLLHLL’s shares without breach of the prohibition on financial assistance in the Act.

284. It also seems to me that the Court could have made a buy-out order, had it been possible to determine the value of Lanmar’s shares, even if there is some risk that MDTI and PCKOC could not comply with it. Such an order would have operated fairly in the circumstances, given the range of possibilities that would follow from it. The first possibility is that MDTI and PCKOC would comply with it, where (as I noted above) the evidence indicates a real possibility that they could raise the relevant funds to do so with financial assistance from Messrs Drebber and O’Connor and Lanmar, and they may prefer that outcome to the loss of value in Lanmar that would likely arise in a liquidation. The second possibility is that they could not or did not do so, and WLLHLL chose to transfer its shares in Lanmar to them, before taking steps to enforce their obligation for payment. That possibility was contemplated by a form of orders proposed by WLLHLL. There would be no unfairness in that result, because MDTI and PCKOC would then acquire WLLHLL’s shares in Lanmar at fair value, and WLLHLL would assume the risk of obtaining further relief in respect of the amount then due to it. The third possibility is that WLLHLL would seek to enforce an order for payment without transferring its shares in Lanmar to MDTI and PCKOC. It seems to me that WLLHLL would likely fail in such an application, because it would have no entitlement to payment for the shares unless it had transferred, or was willing and able to transfer those shares to MDTI and PCKOC. There is here no significant risk that MDTI and PCKOC would be held liable for contempt with non-compliance with the order, at least if they had taken genuine steps to seek to obtain funding to comply with the order and had been unable to do so. Had I made a buy-out order, I would likely have also made an order in the form made in Re Lendly Pty Ltd [2024] VSC 540, for a winding up if that buy-out order was not complied with in a specified time.

285. It is ultimately not necessary to address these complexities further, or to determine the question of which party bears any onus of proof as to MDTI’s and PCKOC’s capacity to buy WLLHLL’s shares, because the Court could only have made a buy-out order if the value of the shares in Lanmar had been established by the expert evidence. It has not been, for the reasons to which I now turn.

Issues as to valuation of Lanmar’s shares

286. In closing submissions, Mr Hughes also addressed the principles applicable to the valuation of a minority’s shares for the purposes of a buy-out order as follows:

“… The Court has a broad discretion as to the mode of valuation in an oppression case, and the Court’s task is to fix a price that is fair in all the circumstances having regard to the value that the shares would have had but for the oppressive conduct…. In selecting the date at which the shares are to be valued, the overriding consideration is fairness ...

… While there is no fixed rule, often it is most appropriate that the fair value of the shares that are subject to the compulsory purchase order should be assessed at the date of the order. ...

…

Where oppression has been found, it is generally not appropriate to apply a minority discount to the value of the minority shareholder’s shares...” [citations omitted]

287. I should also address these principles, and I have here drawn on my summary of those principles in Yamari Ochre at [102]ff. I bear in mind the nature of a “market value” test as described in MMAL Rentals Pty Ltd v Bruning (2004) 63 NSWLR 167; [2004] NSWCA 451 at [55], where Spigelman CJ (with whom Mason P and Hodgson JA agreed) observed that:

“A test of a “market value”, whether in a statutory or contractual context, usually invokes the test long established and frequently applied in Spencer v The Commonwealth of Australia (1907) 5 CLR 418 esp at 432 and 440–441 of a willing but not anxious purchaser and vendor, bargaining with each other. This approach was most recently expressed in a joint judgment of three judges of the High Court in Marks v GIO Australia Holdings Ltd [1988] HCA 69; (1998) 196 CLR 494 at 514:

‘… The value … is to be identified according to what price freely contracting, fully informed parties would have offered and accepted for it.’”

288. In Tomanovic v One Australia Pty Ltd (2015) 104 ACSR 596; [2015] NSWCA 11 at [180]–[188], Bathurst CJ set out the principles governing the valuation of company shares and observed, inter alia, that “[t]he process of valuation may produce a range of results from different judges valuing in accordance with accepted principle and making no error of law”.

289. I also bear in mind that the Court has a broad discretion as to the mode of valuation in an oppression case, and the Court’s task is to fix a price that is fair in all the circumstances, having regard to the value that the shares would have had but for the oppressive conduct: United Rural Enterprises Pty Ltd v Lopmand Pty Ltd (2003) 47 ACSR 514; [2003] NSWSC 910. In Strategic Management Australia AFL Pty Ltd v Precision Sports & Entertainment Group Pty Ltd (No 3) [2017] VSC 35 at [34]–[35], Sifris J observed that:

“The granting of appropriate relief requires the Court to fix a price which is fair in all the circumstances. The value that is fair is a value which the shares would have had, had it not been for the oppressive conduct.

The price to be paid is compensatory in nature and is aimed at redressing the wrong done (the oppressive conduct). Consequently the price to be paid will not always reflect the actual or real worth of the shares that might be obtained on the open market. Further, ‘the method of determining the price is not confined to ordinary valuation principles’. The relevant question is what is a ‘fair value’ to be attributed in all the circumstances and there is room for different approaches as to valuation. As the Full Court of the Federal Court stated in Dynasty Pty Ltd v Coombs [(1995) 59 FCR 122; (1995) 138 ALR 64] [“Dynasty”], it is not just a question of value; it is a matter of fixing a price that should be paid.” [footnotes omitted]

290. In Re Scientific Management Associates Pty Ltd (2019) 141 ACSR 115; [2019] NSWSC 1643, Rees J similarly observed that the basic requirement in an oppression suit is that “the valuation must be fair on the facts of the particular case” and will be determined as a “price that is fair in all the circumstances having regard to the value that the shares would have had but for the oppressive conduct” and that:

“The price to be paid is compensatory in nature, aimed at redressing the wrong done, so the price is not confined to ordinary valuation principles and will not always reflect the real worth of the shares …”

291. I now turn to the valuation and other expert evidence led by the parties in respect of Lanmar’s shares. WLLHLL relied on the expert reports of Mr Nguyen dated 7 November 2025 (Ex P1) and 6 February 2026 (Ex P2); the Defendants relied on the expert report of Mr Mullins filed on 7 November 2025 (Ex D1); and the experts also prepared a joint report dated 4 March 2026 stating their areas of agreement and disagreement (Ex J1). The Defendants also relied on a report of Mr Allan, who has experience in respect of defence contracting, which addressed, inter alia, the Commonwealth’s ability to terminate the NAMSS Contract for convenience, bringing about the immediate termination of that contract. The matters dealt with in that report and Mr Allan’s cross-examination (with one exception that I note below) appeared largely to be uncontroversial and of limited significance to the determination of the proceedings.

292. In closing submissions, Mr Hughes helpfully summarised the valuation evidence led by the parties as follows:

| Fair value of Lanmar’s shares as at dates | 30 June 2024 | 30 June 2025 | 7 November 2025 | | Mr Nguyen | [not addressed] | $11.404-$13.164 million (Ex P1, [2.2.6]) | $12.704-$14.681 million (Ex P1, [2.24]) | | Mr Mullins | $3.701-$5.442 million (Ex D1, [2.3.3]) | $5.409-$7.569 million (Ex D1, [2.4.2]) | [not addressed] |

293. As the table above indicates, Messrs Nguyen and Mullins valued Lanmar at different dates, in accordance with their instructions, with one overlapping date. They agree as to some questions of methodology and both adopt, broadly, a capitalisation of earnings methodology, in the absence of reliable long-term cash flow forecasts for Lanmar (Ex J1, [3.1.4]), and apply a multiple to EBITDA in order to do so (Ex J1, [3.1.6]–[3.1.11]), although they differ as to how that multiple is to be derived and its amount.

294. In closing submissions, Mr Gooley rightly noted that Mr Nguyen had been instructed to assume the facts set out in several of Mr Landes’ affidavits, including forecasts prepared by Mr Landes as to Lanmar’s prospective results for FY26. He also rightly pointed out that Mr Landes’ evidence as to those matters was not admissible, and was not admitted as proof of the asserted facts, and that undermines the basis on which Mr Nguyen undertook his assessment of the value of Lanmar as at 30 June and 7 November 2025, which was by reference to, inter alia, Mr Landes’ forecasts of Lanmar’s future maintainable earnings. Mr Gooley also submitted that the assumptions made by Mr Nguyen which underpin his assessment of Lanmar’s future maintainable earnings, the multiple to be applied, the enterprise and equity value of Lanmar and the value of WLLHLL’s shares in Lanmar as at 30 June and 7 November 2025 were not established by admissible evidence. There would be real force in that submission if no other evidence was available as to Lanmar’s financial performance into FY26 beyond the forecasts made by Mr Landes which were not admissible to prove the fact. In submissions in reply, Mr Hughes submitted that Mr Nguyen did not merely adopt Mr Landes’ forecasts, but also assessed whether they were reasonable. That does not advance WLLHLL’s position where, irrespective of any review of the forecasts by Mr Nguyen, they were not admissible and were not admitted to prove asserted facts.

295. However, other evidence was available as to Lanmar’s financial performance into FY26. As Mr Hughes pointed out in closing submissions, Lanmar’s actual trading income from 1 July 2025 to 31 January 2026 was $7.292 million (Ex J2, 13548) and the payment of a further dividend in February 2026 relied on a cashflow forecast for Lanmar (Ex J2, 13130) prepared by its accountant, on instructions from Messrs Drebber and O’Connor, which forecast trading income of $7.87 million for Lanmar from February 2026 until the end of June 2026. In reply, Mr Hughes also submitted in reply that:

“as at February 2026, Lanmar’s expected revenue for FY26 was on track to achieve Mr Landes’ [forecasts]. The Defendants have not, and could not sensibly, challenge the evidence that, as at February 2026, Lanmar’s expected revenue for the financial year ending 30 June 2026 was approximately $15 million and significantly above Mr Nguyen’s expectation of $12.4 million … such that, if anything, Mr Nguyen’s valuation understates the value of the plaintiff’s shares.”

296. Mr Hughes also expanded on that proposition in oral closing submissions, by reference to the evidence of Lanmar’s earnings in FY26. I accept that this evidence sufficiently supports those earnings; but little turns on this matter given the issues as to the multiples and methodology adopted by Messrs Nguyen and Mullins, which I address below.

297. Mr Nguyen adopted the multiple that he applied to EBITDA by reference to the transaction date for businesses that have comparable risks and growth prospects as Lanmar (Ex J1, [4.1.17]), although he adopted a very broad concept of comparability in that respect and, as I will find below, did not adequately address the client concentration risk inherent in Lanmar’s business model. He referred to some 58 other transactions involving engineering, consulting and software development businesses, information technology consultancy businesses and defence contractors, with a very wide range of multiples between 8.75 to 21.42. One of those transactions, in respect of Air Affairs Australia Pty Ltd, related to a company that specialises in providing engineering services to the Australian defence force, and had an EBITDA that was similar to Lanmar’s EBITDA, although a lesser profit margin than Lanmar. Mr Nguyen’s evidence was that the multiple range of 6 to 7 that he adopted represented a 23% to 77% discount on the observed market data (Ex J1, [4.1.19]–[4.1.27]) and that his approach was supported by International Valuation Standards (Ex J1, [4.1.23], [4.1.25]; T414). Mr Mullins responded, in the joint report, that the businesses identified by Mr Nguyen were not sufficiently comparable with Lanmar’s business. There was substantial force in that criticism, although I recognise that Mr Nguyen in turn responded (T413–415) that comparability is a question of degree and that the benchmark data that he used reflects market-based pricing information from companies which, in whole or in part, shared common features and characteristics to Lanmar.

298. Mr Mullins derived his multiple, not from market transactions, but from a so-called “first principles” approach. In support of that approach, Mr Mullins referred to a presentation by Professor Aswath Damodaran which referred to that and may other topics, and to a paper authored by Mr Mercer dealing with the position as to businesses that have stable growth. Mr Nguyen responded (Ex J1, [4.1.29]; T408), and I accept, that Mr Mullins’ approach is not one commonly applied by valuers. Mr Nguyen also pointed out, and I accept, that the so-called “first principles” approach required Mr Mullins to make significant assumptions (Ex P2, [3.5.13]; T407) which were unsupported by evidence. In particular, in order to adopt the “first principles” approach, Mr Mullins assumed that Lanmar had reached a stable level of maturity and will have a low growth rate from 30 June 2025 of 1% real growth per year (Ex J1, [4.1.30(i) and (k)]). Mr Nguyen contested that assumption, on the basis that Lanmar’s “business is at a stage of growth where it can continue to grow, so, in my opinion, the foundation assumption does not hold in relation to Lanmar” (T411). It seems to me that Mr Mullins’ assumption of constant, low growth for Lanmar as at 30 June 2025 was inconsistent with the evidence, where Lanmar itself projected, and had achieved, significant revenue growth in FY26 (Ex J2, 5700, 13130, 13305, 13553, 13548; T177–178, 294, 372). The failure to establish that assumption is sufficient, without more, to displace the basis of the so-called “first principles” approach.

299. Mr Nguyen was not alone in his criticisms of the so-called “first principles” approach, which had been treated with caution by Croft J in Henry Jones Food Pty Ltd v Shepparton Partners Collective KP Pty Ltd [2025] VSC 187. Croft J there reviewed, at length, the criticisms of the so-called “first principles” approach, as there adopted by an expert from the same firm as Mr Mullins, made by Mr Ross, the other accounting expert who gave evidence in that case. His Honour noted (at [158]) that Mr Ross had raised issues as to whether the “first principles” approach was an accepted valuation methodology. His Honour noted that Mr Ross there accepted (as Mr Nguyen also accepts) that there was a theoretical relationship between discount rates and earning multiples, and that firms with higher risk should trade at lower EBIT multiples while those with lower risk and more reliable financial information would command higher multiples; but had also emphasised the importance of market-based valuation methods, as reflected in the International Valuation Standards, which emphasise that price information from an active market is the strongest evidence of value. Croft J also pointed (at [196]) to Mr Ross’s observation that Professor Damodaran’s paper (on which Mr Mullins also relies) did not support widespread acceptance of the “first principles” approach within the valuation community and also noted (at [204]) issues as to the assumed zero long term growth rate in that case, which I have also noted above. His Honour there observed (at [232])) that:

“The various criticisms made by Mr Ross, outlined above, cast sufficient doubt on the assumptions and methodology adopted, and conclusions reached, by [the expert who applied the “first principles” approach] that I am unable to accept his evidence on the balance of probabilities.”

300. While I recognise that Croft J’s observations were directed to the evidence before him in that case, it seems to me that similar difficulties arise in this case, for the reasons noted above.

301. On the other hand, the Defendants rely on a brief observation in one decision of this Court which appears to have accepted the so-called “first principles” approach. In Re Natural Raw C Pty Ltd (No 2) [2022] NSWSC 1334 at [33], Peden J observed, of that approach as adopted by Mr Mullins in that case, that:

“Mr Mullins then allowed for the risk of not achieving the FME [future maintainable earnings] in determining a “weighted average cost of capital”, which he calculated using the “First Principles” approach, which is a highly regarded formula to determine the “relationship between the value of a firm assuming stable growth and the firm’s expected free cash flow”: Professor Aswath Damodaran, “Valuation Multiples: First Principles”, Stern School of Business …”

302. I do not share that view on the evidence led before me, and I am not persuaded that the so-called “first principles” approach is sufficiently widely-used or sufficiently based on objective market data to give it significant weight.

303. There is a further and fundamental difficulty with the expert reports which undermined the cogency of those reports. In his first expert report (Ex P1, [5.5.41]), Mr Nguyen applied an EBITDA multiple range of 6–7 times forecast EBITDA to assess the value of Lanmar’s shares as at 30 June 2025 and the date of his report. He also addressed (Ex P1, [5.5.42]) issues as to the nature of Lanmar’s business and, somewhat obliquely, the client concentration risk in that business; and identified implied discounts in the mid-point of his assessed valuation multiple range of 6.5 times forecast EBITDA to multiples in other transactions. He observed that:

“(i) The business provides highly specialised services which will enable it to continue growing secured long term revenue streams and continue to grow market share. …

(iii) The business has recently won a significant long term Government contract with a secure revenue stream for the next three years, with options to extend the contract for periods up to a further four years, which, if exercised, are likely to give rise to similar annual revenues as the initial three year term for the periods of any extension. The contract win also enables the business to leverage over this contract to win further work within the broader Government and defence sector.

(iv) Lanmar’s business has focus on Government clients and the defence industry which, on my analysis, is expected to continue to exhibit strong industry growth as demand for Lanmar’s services can be expected to grow with the industry. …

(vi) The business also has future growth potential by way of entering new markets and securing new clients outside the Defence industry.

(vii) In assessing the multiple range, I have also taken into account the smaller size, less diversified nature of the business, and riskier profile of Lanmar as compared to the larger benchmark companies in the software development and defence industries I have considered.”

304. Plainly, this analysis involved several assumptions as to matters which are not within Mr Nguyen’s expertise as an accountant. Mr Nguyen there assumed that Lanmar will be able to continue growing long term revenue streams which will be “secure” and will continue to grow its market share, although that is plainly a question of fact rather than a matter for expert accounting evidence. Mr Nguyen also assumed that the NAMSS Contract is “long term” and that its revenue stream is “secure”, although it is open to the Commonwealth to terminate that contract for convenience. He assumed that the existence of that contract will allow Lanmar to obtain further work within the “broader Government and defence sector”, although that is also plainly a matter of fact and not a matter within his expertise. He referred, with a degree of understatement, to the “less diversified nature of the business”, where its client base is highly concentrated in its work for the Commonwealth of Australia. Importantly, while Mr Nguyen there indicated that he had taken the smaller size and less diversified nature of the business and its “riskier profile” into account in assessing the multiple range he had adopted, he did not explain how or why the implicit discounts in his multiples adequately adjusted for those matters. Notwithstanding that Mr Nguyen’s wider methodology is in common use, it is not apparent to me that his multiples adequately address this issue.

305. Mr Mullins provided a fuller analysis of the risks in Lanmar’s business, particularly by way of client concentration, and observed (Ex D2, [6.5.18], see also [7.6.26]) that:

“The assessment of an additional risk premium (for size and company specific risk) is subjective and requires a degree of professional judgment. In my experience, the risk profile of Lanmar is characterised by its history of rapid growth, significant reliance on a single client with the ability to unilaterally vary or terminate contracts, and the absence of guaranteed future work beyond the current contracted pipeline is broadly comparable of an early stage or start-up business. In such circumstances, discount rates typically start at say 25%. … I have adopted additional risk premium of 25%, resulting in a WACC [weighted average cost of capital] of approximately 25%.”

306. Mr Mullins also referred (Ex D2, [7.6.13]) to “customer concentration” and observed that:

“While Lanmar has entered into multiple contracts (time and materials and fixed fees), the revenue is ultimately sourced from a single customer being the Australian Government. In my opinion, this represents a key risk to the business operations of Lanmar ie, a loss of this customer would likely have a material impact on the financial performance and in turn valuation. …”

I broadly accept Mr Mullins’ identification of the nature of this risk, although the other difficulties with his methodology to which I referred above have the consequence that I cannot accept his wider valuation.

307. The experts return to this issue in the joint report, where they observed (Ex J1, [2.3.16]), by reference to Mr Mullins’ opinion, that:

“Additionally, the Government retains unilateral termination rights and may terminate the [NAMSS] contract at its discretion. In Mr Mullins’ opinion, this significantly increases the risk profile of Lanmar. The CE [capitalised earnings] method assumes that maintainable earnings will continue into perpetuity. In circumstances where a substantial portion of revenue is dependent upon a single contract [which] may terminate at any time, in Mr Mullins’ opinion this assumption is subject to considerable uncertainty and risk.”

308. The joint expert report also identified (Ex J1, [4.1.44(b)]) Mr Nguyen’s response to Mr Mullins’ observation as to concentration risks in Lanmar’s business, namely that:

“Lanmar has a mix of different contract types with different counterparties. Further, having one large contract provides significant contract and revenue certainty enabling the business to pursue other clients to general incremental revenue.”

309. The joint report also noted (Ex J1, [4.1.44(h)]), in an observation that was outside the scope of an accountant’s expertise, that:

“Mr Nguyen does not agree that any meaningful analysis can be derived from Mr Mullins’ over simplification of Lanmar’s portfolio of contracts by asserting that there is only one customer being the entire Australian Government. Further, there is no evidence of any examples over the 5-year period of Lanmar operation, of a contract being unilaterally terminated by the Australian Government. In Mr Nguyen’s opinion, the fact that Lanmar has been able to grow every year over 5 years indicates that whatever alleged risks Mr Mullins believes exists with working with the Australian Government, that risk has been well-managed by the business.”

310. It seems to me that an arm’s length purchaser of the business would not be as relaxed as Mr Nguyen as to the concentration of Lanmar’s business in a single client, or as to the risk that its major NAMSS Contract could be terminated by the Commonwealth for convenience, and would potentially further discount the multiple applied to Lanmar’s earnings to address that risk.

311. In closing submissions, Mr Gooley referred, by reference to Mr Mullins’ expert report, to the risks in Lanmar’s business and submitted that:

“Mr Mullins arrives at his conclusion on value, particularly considering the risk due to the uncertain nature of the NAMSS contract, and the risk that the Commonwealth could terminate, change or not renew, such that the company’s earnings could materially decline. His conclusion is that there is a significant risk that the NAMSS contract is not a certainty into the future or that its term could conclude early or be varied.”

312. Mr Gooley also relied on Mr Allan’s evidence (to which I referred above) to submit that:

“The Court should be cautious about prescribing the value sought by Mr Landes to [Lanmar], in circumstances where [Lanmar’s] contracts with the Commonwealth may well be at risk of termination as a result of these proceedings, and are plainly on precarious footing.”

313. I recognise that, despite the existence of termination for convenience clauses in Lanmar’s contracts with the Commonwealth, Mr Allan expressed the view in cross-examination that it was unlikely that Lanmar’s contracts with the Commonwealth would be terminated (T464–465). Mr Gooley responded that:

“[WLLHLL] seeks to rely upon answers given in cross-examination by Mr Allan about the rarity of termination for convenience, and how it would be troublesome for the Commonwealth to change software systems to suggest that this is incorrect. … Ultimately, the Court must assess for itself the existence of a risk of termination in these circumstances particularly given the existence of wide termination clauses in relevant contracts.”

314. I give no weight to that view, which was not supported by assumed facts or any relevant expertise that would qualify Mr Allan to predict the Commonwealth’s future decision-making.

315. While I generally prefer the approach adopted by Mr Nguyen to that adopted by Mr Mullins, as a matter of methodology, I am not persuaded by the valuations that he derived either as at 30 June 2025 or as at 7 November 2025, which seem to me to give too little weight to the real risk attached to Lanmar’s dependence on the Commonwealth of Australia as its major client, the Commonwealth’s entitlement to terminate contracts with Lanmar for convenience and Lanmar’s present dependence on the NAMSS project for a significant part of its revenue. It seems to me that a purchaser of Lanmar’s shares would significantly discount the price that it would be prepared to pay, beyond the discount allowed by Mr Nguyen in determining his multiple, for the risk of contraction of Lanmar’s business if the Commonwealth terminated existing contracts for convenience, or following the completion of the NAMSS project. I cannot accept Mr Mullins’ valuation of Lanmar’s shares as at 30 June 2024 or 30 June 2025, given the difficulties with his methodology to which I have referred above, and valuations as at those earlier dates are also of little assistance in determining the value of Lanmar’s shares at the time a buy-out order would take effect.

316. I have not neglected the fact that both expert valuers recognise that Lanmar has real and likely substantial value, although they differ as to the amount its valuation. I have given consideration to whether, doing the best I can, I can adjust for these matters, in circumstances where I am unable to accept the valuations reached by either expert. I have ultimately concluded that I cannot do so. I am not satisfied that Mr Nguyen’s report adequately addresses the client concentration risk in Lanmar’s business, but any attempt on my part to identify a lesser earnings multiple that would do so would be no more than guesswork, and I have pointed to the difficulties with Mr Mullins’ approach above. In these circumstances, the expert evidence does not permit a valuation of Lanmar’s business or WLLHLL’s shares to allow a buy-out order to be made. For completeness, I note in paragraph 343 below, but do not accept a submission made by Mr Hughes in supplementary submissions on 7 July 2026, as to two alternatives that I could adopt if I reached that view.

317. For completeness, WLLHLL also sought, in closing submissions, an order that Lanmar purchase its shares. Mr Hughes submitted that Brereton J had made such an order in Re Rafic Pty Ltd [2017] NSWSC 1013 at [57] (“Rafic”), although a claim for that order had been pleaded in that case. Mr Gooley rightly distinguished the position in Rafic from the present case, where the company in that case owned substantial real property which would likely assist in funding a buy-out order, and that company had appeared in the proceedings by the same solicitors who represented the shareholders against which a buy-out order was sought. By contrast with the position here, the making of a buy-out order there did not deprive that company of procedural fairness in respect of the proceedings.

318. Mr Gooley also submitted that:

“Lanmar has been unrepresented in these proceedings as no orders were sought against it. Had a buyout order been sought against Lanmar, the position may have been very different. Indeed, the evidence shows that Lanmar as a company has engaged solicitors to advise on issues arising from these proceedings. On 15 January 2026, the board passed a resolution to engage legal representation for this purpose. Mr Landes voted against it. On 6 March 2026, the directors voted unanimously to extend [a firm of solicitors’] retainer in relation to this. It is likely that had relief been sought against [Lanmar], [Lanmar] would have been given legal advice about the matter, and is likely to have sought to appear in the proceedings.

There may also have been evidence about the capacity of Lanmar to meet that order.”

319. In reply, Mr Hughes responded that the Court should not impose “judge-made limitations” on the Court’s powers under s 233 of the Act and referred to authority for that uncontroversial proposition, including Millsave Holdings Pty Ltd v Connective Group Pty Ltd (2023) 75 VR 239; [2023] VSCA 326 at [1024]. I do not doubt that proposition but the determination whether a buy-out order can properly be made in a particular case, or whether relief which is not sought cannot be granted in a manner that would deprive affected parties of procedural fairness, does not involve the imposition of a judge-made limitation on the Court’s power under the section.

320. I do not doubt that such a buy-out order could be made against the relevant company in an appropriate case, where it would not deprive the relevant company of procedural fairness, which is an essential aspect of the just resolution of proceedings. That is not the position here. I would not make that order, where that relief was not pleaded and Lanmar has not appeared in the proceedings, where no relief was sought against it, and where it has not been afforded procedural fairness in respect of such an order. I do not accept that that difficulty is avoided by the fact that Lanmar’s shareholders are party to the proceedings, where a company’s interests are potentially different to its shareholders’ interests in respect of the making of such an order. In any event, a buy-out order also could not be made against Lanmar here, where the expert evidence does not permit a valuation of Lanmar’s business or WLLHLL’s shares.

Appointment of a receiver to sell the shares in Lanmar

321. WLLHLL alternatively sought an order, in closing submissions, which was not expressly identified in its pleaded case, for the appointment of a receiver and manager (whether to Lanmar or its shares) to sell Lanmar as a going concern or to sell its shares. In closing submissions, Mr Hughes initially submitted that an order under s 233(1)(h) of the Act for the appointment of a receiver and manager to sell the company as a going concern was considered in Re Dawning Investments Pty Ltd and Dawning Developments Pty Ltd (2022) 68 VR 226; [2022] VSC 641 (“Dawning”), although it was not made in that case, and submitted that such an order was made by the Singapore International Commercial Court (“SICC”) in Kiri Industries Ltd v Senda International Capital Ltd and another [2024] SGHC(I) 14 (“Kiri Industries”).

322. WLLHLL subsequently refined that submission, consistent with Kiri Industries, to limit the alternative order to seek that a receiver be appointed for the sale of all the shares in Lanmar, which would not require that a receiver and manager be appointed to conduct Lanmar’s business, unless the parties failed to cooperate in that sale process. I recognise that that order was not specifically sought in the Originating Process, but it falls within the scope of a claim in the Originating Process for such other order as the Court sees fit and, in any event, the Court can, including in an oppression case, grant relief that is not sought in the pleadings, after affording procedural fairness to the parties in respect of that relief: Rafic at [57]. WLLHILL here tendered a consent of Messrs Krejci and Keenan of BRI Ferrier to appointment as receivers. That order was initially opposed by the Defendants until, in supplementary oral submissions on 7 July 2026, Mr Gooley indicated that they would consent to the making of that order, but not to the further order sought by WLLHLL that it have priority in respect of a fixed amount of the proceeds of such a sale. That consent, like the consent of the parties to such an order in other cases that I address below, likely reflects the recognition that, if a buy-out cannot be ordered, a sale of shares in a company by a receiver is more likely to preserve the value of an otherwise viable business than a winding up order. Notwithstanding the common ground that has developed between the parties, I will address this issue in some detail.

323. It is plain enough that the Court has power to appoint a receiver for the sale of shares in Lanmar where oppression is established, since s 233(1) of the Act confers upon the Court the power to “make any order … that it consider appropriate” where one or more of the grounds in s 232 of the Act is present, and the list of the types of possible orders in s 233(1) is non-exhaustive. The existence of that power is supported by several cases that have considered the possibility of making such an order, or a wider order for the appointment of a receiver and manager to a company’s business, to which I now turn.

324. The possible appointment of a receiver to sell shares in a company was considered in two earlier English decisions in Re Cumana Ltd [1986] BCLC 430 (“Cumana”) and Re Regional Airports Ltd [1999] 2 BCLC 30 (“Regional Airports”), which were noted in Kiri Industries. Those decisions expressed concerns as to the practical difficulties in overseeing such orders, particularly where one party is unwilling to cooperate. In Cumana, the majority shareholder appealed an order to buy out the minority’s shares, and contended that more appropriate orders were available, including an order for the sale of the company’s shares managed by an independent third party such as a receiver and manager of the company. Nicholls LJ observed (at 444) that:

“The possibility of a sale following sealed bids was not put before the judge, but I think that this possibility suffers from similar defects to the successive options formula. Again, in the absence of co-operation from Mr Bolton (which the judge thought would not be forthcoming on a sale of the shares), I am not persuaded that entrusting sale of the shares in Cumana to an independent third party would be likely to provide a satisfactory solution.”

That decision is distinguishable where, as I note below, there is no reason to think that the parties would not cooperate with a sale here or that, if that occurred, it could not be addressed by expanding the receiver’s role to a receivership of Lanmar’s business, thereby placing the company’s management under the receiver’s control.

325. In Regional Airports, where a proposed rights issue was found to be unfairly prejudicial to the minority shareholder, a contention was made (at 81) that an order for the sale of all the shares in the company should be made if a share buy-out order was not complied with. Hart J did not order (at 82) that relief on the basis that:

“…there would be enormous practical difficulties (recognised by the Court of Appeal in [Cumana]) in the way of the successful execution of any escape clause which sought to provide for the sale of his shares in default of his being willing to purchase those of the petitioners at the price fixed by the court.”

Those practical difficulties do not arise here for the reasons noted above, to which I also return below.

326. On the other hand, an order for the appointment of a receiver for the sale of a company’s shares was considered in Otello Corp ASA v Moore Freres and Co LLC [2020] EWHC 3261 (Ch) (“Otello”). In that case, the first defendant, MFC had blocked the sale of the minority’s, Otello’s, shares in the second defendant company to a third party. The High Court held that this conduct amounted to unfair prejudice, ordered a buy-out of the minority’s shareholding and also made a further order appointing a receiver to sell the company’s shares if the majority defaulted on the buy-out order. The parties there agreed that there should be a direction for the sale of the company’s shares if the majority failed to comply with the buy-out order, although there was a dispute as to who should conduct that sale of the shares. Edwin Johnson QC held (at [317], [319]–[321], [323]) that a receiver should be appointed to conduct the sale of the shares, although I recognise that that order was there directed to a position of default in a sale process conducted by the oppressor.

327. Turning now to several Australian cases, in Ample Source, a receiver was not appointed where Robertson J decided that a sale of the minority’s shares would achieve a depressed price, since the purchaser would be vulnerable to oppression. That question does not arise here, where all of the shares in Lanmar will be sold. In Jolan Pty Ltd v Essential Investments Pty Ltd (No 2) [2021] FCA 1533, Downes J also noted the possibility of appointing receivers to sell a minority’s shares in a company rather than all the shares in the company. Her Honour held (at [375]–[380]) that that order was not appropriate in the circumstances, observing that:

“At trial, all parties accepted that the Court has a “wide” or “broad” discretion as to the appropriate relief. Subject to one matter which was raised by the defendants and which is addressed below, the parties then made submissions as to the types of orders which would be appropriate.

The defendants submitted that “there is [no] reason in principle why the Court could not, if it considers it appropriate, make an order appointing a receiver to sell [the minority’s] shares in the Company on the open market”. This was in similar terms to the open “offer” which was made by the defendants during the trial.

However, no details were provided by the defendants as to who the receiver would be, how this process would be facilitated, whether the pre-emptive provisions in the shareholders’ agreement would apply and the nature of the information and assistance which would be provided to the receiver by the Company. This last issue is of particular concern having regard to the Company’s conduct in the past.

Further, no submissions were made by the defendants about whether the Company would be prepared to bear the receiver’s costs, or to support a submission that [the minority] should bear these costs. If, for example, the receiver was required to return to Court for assistance in obtaining information from the Company to facilitate a sale, and there was a factual dispute about the Company’s conduct, the receiver’s costs could prove to be significant.

A further problem with the remedy proposed by the defendants is that the publication of this judgment could have a negative impact on the ability of a receiver to find a purchaser of [the minority’s] shares, either at all or on the price which a purchaser would be prepared to pay. This would mean that [the minority] could be prejudiced by reason of its success in this litigation, which would defeat the purpose of the judicial remedy.

For these reasons, I do not accept that the remedy proposed by the defendants, being the appointment of a receiver to sell [the minority’s] shares, is an appropriate one.”

328. Her Honour there made an order for a buy-out, with a winding up to follow if the buy-out was not implemented. The position differs here where the order for the appointment of a receiver to sell the shares is sought by the oppressed party, it extends to all the shares in the company and it addresses the matters that were not addressed in that case. While I would also not have made an order on the Defendants’ application that only WLLHLL’s shares be sold, that is not the form of order that is in question here. I also recognise that there would be little or no utility in making an order here for a buy-out, to be followed by a winding up it was not implemented, where the Defendants have repeatedly asserted their incapacity to buy-out WLLHLL’s shares, so that that order would likely bring about a winding up.

329. In Dawning at [173]–[177], Hetyey AsJ considered whether an alternative and less drastic remedy to a winding up was available in an oppression case, such as the appointment of a receiver and manager to facilitate a sale of the companies’ assets. Neither party supported that relief in that case. Hetyey AsJ recognised a possible benefit of such an order, observing that the appointment of a receiver and manager “may be able to achieve a structured sale of the relevant assets without creating a perception of a ‘fire sale’”. He did not make that order, where he found that it was not more appropriate in the circumstances, because a liquidator would be better placed to investigate the relevant companies’ affairs, including potentially improper transactions. Hetyey AsJ also observed that:

“… the appointment of a receiver and manager is itself an extraordinary and drastic remedy, although it may, in some cases, be preferred over liquidation because it would not necessarily cause the same degree of damage to the goodwill of the company’s business and would allow the continuation of the business as a going concern. Here, however, there is no goodwill or business to preserve. The very limited nature of the Companies’ present activities and the real risk of further oppression in the form of a sustained deadlock between the parties are factors that favour the appointment of a liquidator. The assets of the Companies must be sold, the debts of the Companies paid and any residual value of the members’ equity distributed.

Thirdly, although receivership is a very flexible equitable remedy and not strictly limited to the interim preservation of assets, a receiver and manager has a limited and relatively mechanical function when compared to a liquidator and may need to seek guidance from the Court on the scope of his/her functions and powers. A receivership would also not result in a moratorium on actions against the Companies in the same way as would a liquidation under s 471B of the [Act].” [citations omitted]

330. The position differs here where WLLHLL seeks the appointment of a receiver for the sale of the shares in Lanmar, which is a narrower remedy than the appointment of a receiver and manager to the business; Lanmar here has an ongoing and apparently profitable business which there would be value in preserving; and there is no apparent need for a moratorium against actions by its creditors.

331. In Re J & B Oscari Properties Pty Ltd [2024] VSC 389 at [59]–[61], Irving AsJ considered the appointment of a receiver to sell a company’s only asset, real property, but did not take that course where the plaintiff had acknowledged her statutory and fiduciary obligations and undertaken not to sell the property for less than the sworn valuation amount. By contrast with the position here, that decision relates to the sale of a company’s assets rather than its shares, and no such alternative remedy was offered by the Defendants here.

332. In Kiri Industries, the SICC ordered a sale of all a company’s shares and appointed a receiver for that sale following non-compliance with an earlier buy-out order. The SICC noted (at [34]) that, by contrast with the position originally taken by the Defendants here, the plaintiff and defendants both agreed to a sale of all the shares in the company. The SICC addressed the concerns raised in the earlier cases as to issues of practicality and observed (at [32]) that:

“While concerns of practicality are always relevant, such concerns do not mean that the court should never make such an order – whether or not an order is appropriate is a question to be determined on the facts of each case, taking all circumstances into account. Furthermore, the objection that such an order should not be made because the oppressor would not likely cooperate is difficult to understand, given that an oppressor would be no more (or less) cooperative in the usual situation where it is ordered to purchase the minority’s shares. In any event, as we will elaborate below, any concerns over cooperation may be addressed through further orders such as the appointment and empowerment of a receiver to effect such a sale or authorising a court officer to execute the necessary documents.”

333. The SICC there concluded that a sale of all the shares in the company was the preferable relief on the bases, that, first, it would be undesirable to wind up the company, given it was “very much a viable company” and there is a “strong preference for orders which would address the oppression without leading to a winding up of [the company].” The court noted this was the same consideration it had regard to when making the original buy-out order (at [35]). These matters are also of significance in this case. Second, the SICC noted (at [36]) that such an order “would give effect to the original decision insofar as it would give the [minority shareholder] an exit from [the company] through a purchase of its shares – the same result intended in the buy-out order – with the difference being that the purchase would not be by the [majority shareholder], but potentially by a third party”. That matter is also significant, with the difference here that a buy-out order is resisted by the Defendants on the basis that they cannot afford to buy WLLHLL’s shares. Third, the SICC indicated that it was “satisfied that such a sale would be feasible given that [the company] had a successful and viable business and [was] a market leader in the … industry” (at [36]). Here, Lanmar also appears to have a very successful business, although within a specialist market. Fourth, the SICC noted (at [36]) that such an order “would allow [the minority] to exit from its current situation whilst allowing [the company] to continue as a going concern with minimal risk of insolvency”, and that is here a significant advantage of such an order over a buy-out funded by a company or a winding up. The SICC also noted that such an order was (at [37]) a better option than the minority’s initial proposal for a staged buy-out, which had “significant difficulties”, including the fact that the defendants may not have sufficient liquid assets to buy out the shareholding, the risk that the company may become insolvent as a result, and the potential prejudicial impact of a large debt on the company’s creditors who had presumably entered into dealings with the company for the purpose of growing its business, not for financing a large buy-back and (at [38]) that (also by contrast with the position originally taken by the Defendants here) the parties were “broadly on the same page” that a share sale was the “best option for all parties”.

334. The SICC then considered whether an independent investment bank or financial advisor on the one hand or a receiver on the other should be appointed to conduct the sale process. The SICC there distinguished between a receiver which was appointed for the purpose of facilitating and executing a sale of the shares and a receiver appointed to manage and control the company generally. That distinction is significant here where WLHLL seeks the former, and narrower, appointment. The SICC observed (at [41]–[42]) that:

“The distinction between a receiver for this purpose as opposed to a receiver and manager over [the company] is a matter of fundamental difference for two reasons. First, the appointment is as regards different underlying assets – the company in one case and its shares in the other. Accordingly, a receiver appointed to effect the sale of [the company’s] shares has no relevance to [the company’s] business, and vice versa. Second, a receiver and manager is quite different from a receiver in terms of powers. The distinction is described in the following terms in Thomas Robinson & Peter Walton, Kerr & Hunter on Receivership and Administration (Sweet & Maxwell, 21st Ed, 2020) at paras 2–1, 2–2 and 2–9:

2-1 Overview  A court-appointed receiver is:

(a)  an impartial individual, independent from the parties to a dispute;

(b) appointed by the court on the application of a party;

(c) before proceedings, during proceedings, or after judgment;

(d)  to collect, protect, and receive assets of the respondent.

2-2 A receiver appointed by the court is not an agent for any of the parties, but is an officer of the court. …

2-9 Court-appointed receivers distinguished from managers  A court-appointed receiver is also to be distinguished from a manager. A receiver properly so-called does not have authority to carry on a business. If a receiver is appointed over property which includes a business, his role is to cease trading, collect debts, and realise assets. In contrast, a manager has power to continue a business. … If it is necessary for a business to continue trading, a receiver and manager should be appointed. It is commonplace for the same person to be appointed to both roles.

It is apparent from the passage above that a court-appointed receiver is typically appointed for the limited purpose of collecting and realising assets. In the context of the present case, such a court-appointed receiver over the shares in [the company] would simply be tasked to hold [the minority’s] and [the majority’s] shares and to take the necessary steps to realise the value of these shares through an en bloc sale. Such a receiver would have no power over [the company] and its affairs. Conversely, a receiver and manager appointed over [the company] would have the power to take control of and manage its business. However, the receiver and manager appointed over [the company] would have no power over shares in [the company].”

335. The SICC concluded (at [46]) that it would be appropriate to appoint a receiver for the sale of all the company’s shares and directed the parties to submit nominees for appointment as receiver. Neither the SICC’s decision to order a sale of the shares nor the decision to appoint receivers of the shares for the purpose of managing the sale was in issue in the subsequent appeals in Kiri Industries Ltd v Senda International Capital Ltd [2025] SGCA(I) 1 at [8].

336. The question of the appointment of a receiver to undertake the sale of the shares in Lanmar arises here, in the context that the Defendants have made several previous offers to acquire WLLHLL’s shares on terms that I have held were not reasonable, which they contend reflect their inability to fund a purchase of those shares, unless over an extended period; they do not seek an order to buy those shares and they contend they could not comply with such an order, as I noted above; a winding up would have significant disadvantages for a solvent and successful company; but it would be wholly inappropriate to leave WLLHLL locked in as a minority shareholder in Lanmar and exposed to a continuance or recurrence of the conduct I have noted above, including the failure to pay dividends.

337. Turning now to the parties’ submissions, Mr Hughes submitted, and I accept, that a sale of Lanmar’s shares by receivers is more likely to preserve the value of Lanmar than a winding up, or, at least, less likely to destroy the value of Lanmar’s business as a going concern. I also accept that the appointment of a receiver in respect of the sale of those shares will raise a lesser risk for existing employees of Lanmar than a winding up, because the business could continue under the parties’ (or the Defendants’) control while the receiver undertakes the sale process for the shares, unless any party takes steps to frustrate the sale process which might well lead to the appointment of a receiver and manager to the business. It can hardly be said that the appointment of a receiver for the sale of all of the shares, including the Defendants’ shares, is unreasonably prejudicial to the parties, where the Defendants themselves had sought a winding up of Lanmar with all the associated consequences. I return to that question in dealing with the Defendants’ submissions below.

338. I recognise that, as Mr Gooley pointed out before the change in the Defendants’ position as to this relief, concerns have been raised in earlier English cases including Cumana and Regional Airports as to whether a party would cooperate with a sale of shares by a receiver as a matter tending against the appointment of a receiver for sale of the shares. Those concerns were given less weight in the later decision in Otello which I addressed above. I do not consider those concerns are significant here. First, there is no reason to think that WLLHLL would not comply with a sale process that it has sought; second, the Defendants did not suggest that they would not cooperate with the sale of the shares and their change in position, to consent to the making of such an order, suggests they would comply with it; third, it is in all shareholders’’ economic interests to comply with that sale process, to maximise the amount they will receive on a sale of the shares; and, fourth, the Court has ample power to address such non-cooperation by extending the appointment of the receiver for sale of the shares to appointment as receiver and manager to the business if it is necessary to do so.

339. Mr Gooley also submitted, again before the change in the Defendants’ position as to this relief, that the Court in Kiri Industries did not make an order for the appointment of a receiver until after it became apparent that a buy-out order could not be performed. It seems to me that distinction has no significance here, where there is little or no utility in making a buy-out order that the Defendants have repeatedly contended they do not have the capacity to comply with and are unlikely to comply with. Second, and again before that change in position, Mr Gooley raised the possibility that Mr Landes or WLLHILL would not cooperate with a sale by a receiver. As I have noted above, that seems to me unlikely, where Mr Landes and WLLHILL have themselves sought that relief, in the apparent absence of any other viable relief; and, if it occurs, the Court can readily address that position by then making the winding up order which WLLHILL seeks in the alternative and that the Defendants had sought as their primary relief. Third, also before that change in position, Mr Gooley submitted that the sale of Lanmar’s shares represented “acute commercial risks” that bear on the realisation of value, because the NAMSS Contract contains a change of control condition that would give the Commonwealth a right to terminate that contract in that situation. I give little weight to that proposition, because the Commonwealth already has the right to terminate that contract for convenience, and it is hardly more likely that the Commonwealth would terminate that contract if a receiver was appointed to sell the shares in Lanmar, than if a liquidator was appointed as the Defendants had sought. There is no reason to think that that risk or the risk of damage to Lanmar’s business generally is greater where a receiver is appointed to sell the shares than in a liquidation.

340. Here, as in Kiri Industries, it seems to me that the appointment of a receiver to sell the parties’ shares in Lanmar is an appropriate order, where the Defendants assert their inability to comply with a buy-out order and I cannot be satisfied that they could or would comply with such an order. Here, as was also the position in Kiri Industries, the fact that Lanmar is an apparently viable company, at an operational level, is a matter that tends strongly to support the appointment of a receiver to sell the shares other than a receiver and manager to the company or a liquidator to the company, again subject to the parties not taking steps to frustrate such a sale process. I am satisfied that such an order is the best of the available alternatives and should be made. There is no need to address the position of creditors of Lanmar, at this point, because the appointment of a receiver to sell the shares in Lanmar will not prevent Lanmar continuing as a going concern and paying its creditors in the ordinary course. The receivers’ costs should be paid from the sale proceeds, consistent with the usual position in respect of a Court-appointed receiver. I would have made an order appointing a receiver for the sale of all parties’ shares in Lanmar over the opposition of the Defendants, had they not reversed their position in supplementary oral submissions; but I can, of course, now more readily make that order where WLLHLL seeks it and the Defendants do not oppose it.

341. WLLHLL also sought, in supplementary submissions, an unpleaded order in a form which was made in Otello (at [324(3)]) and in Kiri Industries (at [61]–[62]), that it be paid the fair value of its shares, as determined by the Court, in priority to any payment to the oppressors from the proceeds of the sale of the parties’ shares in the company. I am not persuaded that such an order should be made here. First, such an order would be inconsistent with a significant benefit of a sale by a receiver of the shares in Lanmar, namely that all parties will derive the value of their shares as determined by a sale process that is open to third party purchasers and has at least a prospect of realising a market price for those shares. Second, I cannot see a basis, in principle, for allowing WLLHLL a disproportionate share of the sale proceeds of the shares in Lanmar or immunising it from market risk in a sale process, when it would have been exposed to that risk had the parties voluntarily sold the shares, even if, as Mr Hughes contended, that sale is prompted by the need for relief against oppression. Third, I am reinforced in that view by Leeming JA’s observation in Snell that the ordinary position, both on a voluntary sale of the shares in Lanmar and on a liquidation, would be that contributories would share the proceeds available, following payment of Lanmar’s debts, proportionate to their interests, although I recognise that the Singapore Court of Appeal gave less weight to that matter in Kiri Industries. I would have declined WLLHLL’s claim to priority over the sale proceeds for these reasons alone.

342. There is a further reason to decline that relief here. It is not possible to make the order sought by WLLHLL by reference to any known value of its shares, where the valuation evidence has not established the value of those shares, for the reasons noted above. By contrast with the position in Otello (at [97]), there is here no injustice in WLLHLL receiving a smaller amount than any known value of its shares, because the value of its shares will be established by the result of a sale by the receivers on the market. For the same reason, no question arises as to any need to address any sale price achieved in excess of a determined value of the shares, because that value will be determined by that sale price.

343. In supplementary submissions on 7 July 2026, Mr Hughes submitted that, if the Court were to find that the value of the shares in Lanmar had not been established, it should not treat that as a matter that prevented Mr Landes from having priority over the proceeds of sale of the shares in Lanmar, but should instead adopt the midpoint of the two valuations, by reference to a mechanism contemplated by the Lanmar Principles for a sale of the shares, or now appoint a referee to determine the value of the shares. I would not adopt the former approach, because the parties could have but did not invoke the mechanism for sale of the shares under the Lanmar Principles, which has no application to the determination of the value of the shares in these proceedings. I would not take the second approach, first, because these have been lengthy and likely expensive proceedings and it would not promote their just, quick and cheap resolution to now initiate a reference directed to determining a matter that has not been established by the expert evidence; and, second, because there is no reason to think that a referee would be better placed than the experts to determine Lanmar’s value, given the difficulty arising from the fact that Lanmar is largely dependent on the Commonwealth and defence work for its future earnings. I would also not adopt either approach where, even if the expert evidence had established a value for WLLHLL’s shares, I would not have ordered that WLLHLL have priority over the sale proceeds of the shares for the three reasons noted in paragraph 341 above.

The claim for winding up on the just and equitable ground

344. WLLHLL had also sought a winding up order in respect of Lanmar since these proceedings were commenced on 14 May 2025, and that relief is now sought in the alternative (APOC [35]). Mr Hughes submitted, in closing submissions:

“In the further alternative, and with considerable reluctance, if no other remedy is available, [WLLHLL] seeks an order that Lanmar be wound up pursuant to either ss 233(1)(a) or 461(1)(k) of the [Act], having regard to the oppression and in circumstances where there has been an irretrievable breakdown in the relationship between the members of Lanmar (which is common ground on the pleadings), such that it is just and equitable for Lanmar to be wound up.”

345. The Defendants admitted (POD [36]), WLLHLL’s claim that there has been an irretrievable breakdown in the relationship between the shareholders in Lanmar and that trust and confidence between them has been lost, such that it is just and equitable for Lanmar to be wound up under s 461(1)(k) of the Act. By their Cross-Claim filed on 9 July 2025, MDTI and PCKOC as Cross-Claimants also sought an order for the winding up of Lanmar on the just and equitable ground under s 461(1)(k) of the Act. By WLLHLL’s Defence to the Cross-Claim, it admitted that each of WLLHLL on the one hand and MDTI and PCKOC on the other, have lost trust in each other and accepted that, if relief is not granted under s 233 of the Act, then it is just and equitable for Lanmar to be wound up under s 461(1)(k) of the Act and that Lanmar should be wound up. As I noted above, it is now common ground between the parties that Lanmar should be wound up on the just and equitable ground, unless other relief was granted. In the event, I have ordered the appointment of a receiver to sell the shares in Lanmar, where that is likely to maximise the return to the shareholders from the sale of their shares and be less damaging to the business and its employees than a winding up order, and where the Defendants now consent to that order.

346. For completeness, little turns on whether a winding up order could be made on the ground of oppression where it is common ground that such an order could properly be made under s 461(1)(k) of the Act. The “just and equitable” ground for winding up a company under that section is not limited by particular categories: Re CNPR Ltd [2018] NSWSC 989 at [8]; Re Spitfire Q Pty Ltd [2021] NSWSC 866 at [12]. Where a company was established on a basis of relationships of mutual confidence, a winding up order may be made on the just and equitable ground under s 461(1)(k) of the Act where irreconcilable differences emerge between its members: Fexuto at [89]; Nassar at [97]–[98]. In Re Catombal Investments Pty Ltd [2012] NSWSC 775 at [19], Brereton J identified several common situations in which a winding up order may be made under s 461(1)(k) of the Act; and also observed at [20] that the term “just and equitable” in that section is broad and a party may seek an order under that section where there is something affecting that party in its relations with the company or shareholdings, at least so long as those circumstances have a direct and immediate relationship to, or bearing upon, the management or administration of the affairs of that company or the conduct of its business.

347. Such an order may more readily be made where a company is in the nature of a quasi-partnership and there has been a loss of trust and confidence in respect of the entities: Ebrahimi v Westbourne Galleries Ltd [1973] AC 360. There are here various indications of the fact that Lanmar was in the nature of a “quasi-partnership”, including the terms of the Lanmar Principles and the fact that each of Messrs Landes, Drebber and O’Connor became directors and each of their companies held an equal number of shares in it. A breakdown of relations or loss of confidence between a company’s members may also support a winding up on the just and equitable ground where it frustrates the commercially sensible operations of the company in accordance with the incorporators’ expectations and any loss of confidence is justified: Tomanovic v Argyle HQ at [49]–[51]. The Court may make a winding up order under s 461(1)(k) of the Act in circumstances that do not amount to oppression, although a person who is themselves responsible for the breakdown of the relationship is less likely to be afforded relief: Nassar at [90], [96], [117]. In Haycraft v AF1 Services Pty Ltd [2023] FCA 774 at [73]ff, Stewart J similarly observed that:

“… the existence of irreconcilable differences among persons involved in what is, in effect, a partnership, will destroy the personal relationship involving mutual confidence that lies at the heart of the partnership analogy; the destruction of the personal relationship establishes a basis for granting relief: [Fexuto] at [89] per Spigelman CJ.”

348. Section 467(4) of the Act applies where a winding up order is sought on the just and equitable ground, and requires the Court to have regard to the availability of some other remedy and whether a plaintiff would be acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy. However, there is no absolute rule that the Court will not wind up a solvent company, although winding up is a last resort: Re Pure Nature Sydney Pty Ltd [2018] NSWSC 914 at [76]; Snell at [6]). I have here drawn on my summary of the applicable principles in Gerringong at [194]ff.

349. I would have made a winding up order on the just and equitable grounds, given the failure of the relationship between Lanmar’s directors and shareholders and the fact that a buy-out order cannot be made for the reasons noted above, had I not concluded that the appointment of a receiver to sell the shares in Lanmar would be preferable, for the reasons noted above. For completeness, Mr Gooley fairly acknowledged, in closing submissions, that it is the Court’s usual practice that, all things being equal, it will appoint the plaintiff’s nominee as liquidator where a winding up order is made: Re Hayes Steel Framing Systems Pty Ltd (admins apptd*)* [2017] NSWSC 385 at [46]. I recognise that that principle has a less straightforward application where both WLLHLL, and the Defendants and Cross-Claimants here sought a winding up order, which was not the primary relief sought by WLLHLL, but was the primary relief sought by the Defendants and Cross-Claimants. Nonetheless, it seems to me that, had I made a winding up order, there would have been no reason here to depart from that usual practice, and I would have appointed WLLHLL’s nominee as liquidator to Lanmar.

Whether this judgment should be stayed for a short period for further negotiations

350. The Defendants initially raised the possibility that the Court should stay any winding up order for a period after judgment, to allow an opportunity for further discussions between the parties, but ultimately did not seek such an order. I have made such an order in some other cases, but it now seems to me that such an order has a significant risk of creating a perverse incentive for the parties not to resolve the proceedings prior to judgment, in the hope that one or other of them may be advantaged by that judgment. Here, the parties had ample opportunity to resolve matters between themselves, including in the period between the close of evidence and closing submissions and the further period between closing submissions and supplementary submissions. No doubt, if the parties reach a resolution that would avoid or minimise the costs of a receiver attending to the sale of the shares, then they may approach the Court to have the appointment of that receiver set aside or suspended.

Orders and costs

351. In closing submissions, Mr Hughes submitted that the Court should also make a declaration that Messrs Drebber and O’Connor (or possibly their respective companies) had engaged in oppressive conduct within the meaning of s 232 of the Act and had contravened s 181 of the Act*,* and pointed to cases in which such a declaration had been made, at least on the application of a regulator, to advance a public interest. I do not consider that I should make such a declaration where the findings that I have reached as to the conduct in issue are adequately recorded in this judgment, and that declaration would otherwise have no legal consequences. For the reasons noted above, I will order the appointment of a receiver to sell all parties’ shares in Lanmar. I will hear the parties as to costs.

352. I make the following orders:

1 Order under s 233(1) of the Act that:

(a) The Shares are to be sold en bloc in accordance with this Order and within such period as the Court may determine in accordance with paragraph ‎(d) below;

(b) Peter Krejci and Jonathon Keenan of BRI Ferrier are appointed as joint and several receivers (collectively, the Receivers) over the Shares to manage and control the Shares to the extent necessary for the purpose of the en bloc sale and are empowered to:

i. execute all documents necessary for the purposes of the en bloc sale;

ii. give such directions to the Plaintiff and Defendants (including in their capacity as directors of the Fifth Defendant (“Company”)) as may be necessary to facilitate the en bloc sale; and

iii. engage such professionals and advisors as may be appropriate in the Receivers’ judgment to advise and assist the Receivers with the en bloc sale;

(c) the Receiver’s reasonable remuneration and disbursements shall be paid from the proceeds of sale, subject to any interim payments ordered by the Court and to the Court’s approval as to the final amount payable by way of remuneration;

(d) by 4pm on 24 July 2026, the Receivers shall notify the Court and the parties as to how much time they require to advise on the en bloc sale and the estimated period required to enter into an en bloc sale;

(e) the proceedings be listed at 9.15 am on 28 July 2026 with a view to fixing the time within which the Receivers shall notify the Court and the parties as to the estimated period they require to enter into an en bloc sale, and following notification and after hearing from the parties the Court shall fix the date by which the en bloc sale is to be completed;

(f) the Plaintiff and First to Fourth Defendants shall cooperate with the Receivers and render all such assistance as the Receivers may require for the purpose of the en bloc sale including, but not limited to, the provision of information and documents; the procuring of all necessary approvals; and the execution of all necessary documents for this purpose;

(g) if the Receivers form the view that any party is or may be in breach of paragraph (f), the Receivers are to inform the parties of this matter and the parties are to relist the matter before the Court within two business days; and.

(h) in this order, Shares means all the issued shares in the Company and En bloc sale means the execution of a binding and enforceable sale and purchase agreement for all of the Shares.

2 Direct the parties to send to the Associate to Black J, by 4pm on 24 July 2026, agreed orders as to costs or, if there is no agreement, their respective draft orders as to costs and submissions not exceeding eight pages in Arial font 12 in one and a half spacing as to the differences between them, indicating if an oral hearing as to costs is requested; and to send to the Associate to Black J, by 4pm on 31 July 2026, their submission in reply as to costs not exceeding four pages in Arial font 12 one and a half spacing.

3 The exhibits be returned; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

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Amendments

12 July 2026

Correction to misprints in dates in orders.

13 July 2026

Correction to name of law firm for plaintiff.