Jolan Pty Ltd v Essential Investments Pty Ltd [2021] FCA 747 | Case summary

The claim as pleaded 6 After setting out several introductory matters, the Statement of Claim alleges that certain of the shareholders in Essential Investments, presumably those who were the original shareholders, had entered into a shareholders' agreement (the Shareholders' Agreement) which was, inter alia, to the following effect: (a) that the shareholders would exercise their powers in relation to the company for the purpose of achieving a sale of its shares, an asset sale, merger or initial public offering within two years from the commencement date in around June 2016 (cl 11.1). In effect, the investment by the shareholders was intended to be relatively short term; (b) that each of the five largest shareholders in the company would be entitled to appoint and to replace, from time to time, one director (cl 3.4); (c) that shareholders were entitled, subject to certain conditions, to provide confidential company information to prospective purchasers of Essential Investments' business or shares (cl 12.2(f)); and (d) that if there were any inconsistency between the Shareholders' Agreement and Essential Investments' constitution, the former was to prevail to the extent of any such inconsistency (cl 15.1). 7 By para 7(g) of the Statement of Claim, it is specifically pleaded that, by cl 15.3 of the Shareholders' Agreement: i. each Shareholder undertakes with each other Shareholder and the Company to (inter alia) exercise all its votes, powers and rights under the Constitution so as to give full force and effect to the provisions and intentions of this Agreement; ii. the above obligation includes an obligation to exercise powers both as a Shareholder and through any Director appointed by it. 8 Jolan alleges that, by reason of the content of the Shareholders' Agreement, it had a legitimate expectation that it would have a representative of its choice on the board of Essential Investments, that it would be able to fully participate in the management of the company, that it would be provided with information in relation to the management and finances of the company in a timely manner, and that all reasonable efforts would be made to sell the business within two years of the commencement of the Shareholders' Agreement. 9 It is in the above context that Jolan makes a number of allegations concerning the management of Essential Investments which generally relate to events occurring since about late 2020. 10 Firstly, it is alleged that shortly after Jolan appointed Mrs McWilliam as its nominated director on 6 November 2020, Essential Investments issued a notice of general meeting advancing a proposed resolution to remove her as a director. Ms McWilliam apparently resigned her position shortly thereafter. 11 Secondly, it is alleged that, on 16 December 2020, Essential Investments caused Mr McWilliam to be removed as director of one of its subsidiaries, Essential Coffee Pty Ltd (Essential Coffee), which was one of the company's main operating subsidiaries. Since that time, the company has ceased to provide information regarding the financial performance of that entity to the members of the company's board, thereby depriving Jolan of knowledge of the operations of the entity and, derivatively, of Essential Investments' financial position and operations. 12 Thirdly, it is alleged that on a number of occasions Jolan appointed a director to the board of Essential Investments but the company then moved to cause that person to be removed. In particular, it is alleged that on each occasion when the shareholders voted to remove Jolan's nominated director, Mr Hiscock, Hisco and KPR voted in favour of the resolution. They also voted in favour of a resolution which had the effect of preventing a director who had been removed as such by a vote at a general meeting from being appointed to the board for a period of 12 months. It is also alleged that the issuing of the several notices calling the general meetings at which Jolan's nominated director was removed occurred at the direction or with the encouragement of Mr Hiscock. 13 The foregoing conduct is alleged to have excluded Jolan from the management of Essential Investments and of its business, and constituted a breach by the company, Mr Hiscock, Hisco and KPR of cll 3.4 and 15.3 of the Shareholders' Agreement. It is also alleged to have been contrary to Jolan's legitimate expectations, and, in the premises, was oppressive to, unfairly prejudicial to, or unfairly discriminatory against Jolan within s 232 of the Corporations Act. 14 Fourthly, it is alleged that, since about January 2021, Essential Investments has refused to provide to Jolan with information relating to its participation in the management of the company, the value of its shareholding, and the potential sale of its shares to a third party. This conduct is also alleged to have occurred at the direction or with the encouragement of Mr Hiscock. It is also relied upon as constituting oppressive conduct and a breach of the Shareholders' Agreement. 15 A fifth allegation is that Essential Investments has not sold its business or caused the sale of the shares in it, and no suitable attempt has been made to do so. In relation to this, Jolan also pleads that the company's board has resolved to defer any attempt to do any of these matters for at least 12 to 18 months. Again, this is alleged that this is a breach of the Shareholders' Agreement by the company, Mr Hiscock, Hisco and KPR, contrary to Jolan's legitimate expectations, and oppressive to, unfairly prejudicial to, or unfairly discriminatory against it. 16 Finally, Jolan alleges that, at the direction of Mr Hiscock, Essential Investments has sought to prevent Jolan from selling its shareholding by preventing the provision of financial information to the prospective purchasers, by causing Mr Hiscock to refuse to meet with any prospective purchaser, by refusing to allow third parties to conduct due diligence, and by passing a resolution limiting the information which can be provided by minority shareholder to third parties. In that latter respect, it is alleged that Mr Hiscock, Hisco and KPR voted in favour of the resolution. This conduct is also alleged to have been contrary to Jolan's legitimate expectations, and oppressive to, unfairly prejudicial to, or unfairly discriminatory against it.

A case has been raised against the three proposed defendants 21 As the recitation of the allegations in the Statement of Claim make clear, Jolan has alleged that much of which it claims was oppressive conduct was undertaken by or participated in by Mr Hiscock, Hisco and KPR. Their involvement in the allegedly oppressive conduct is said to arise in two ways. Firstly, that they engaged in the acts of the company in their capacity as shareholders. Secondly, and more directly, that their acting in breach of the Shareholders' Agreement with the support of Essential Investments also constituted oppressive conduct. In addition, particular allegations are made to the effect that Mr Hiscock directed or encouraged the conduct of which Jolan complains. Although it is true, as Mr Peden QC for Essential Investments submitted, that no relief is sought by way of a declaration that Mr Hiscock, Hisco and KPR breached the terms of the Shareholders' Agreement, that is beside the point. The claim is based on conduct which is alleged to be oppressive, unfairly prejudicial, or unfairly discriminatory against Jolan and, in that context, the breaches by Mr Hiscock, Hisco and KPR are important integers. As was submitted by Mr Webster for Jolan, as the case is currently pleaded, one of the steps along the way to establishing that the proposed defendants engaged in conduct within the scope of s 232 of the Corporations Act is to identify that they acted in breach of the Shareholders' Agreement and deprived Jolan of its rights as a shareholder. It is undoubted that Mr Hiscock, Hisco and KPR have an interest in whether those findings are made. They are of a serious nature and, if they are made out, they have the potential consequence of orders being made requiring those parties to purchase Jolan's shares. 22 Mr Peden QC submitted that no causes of action were properly pleaded against the proposed defendants and that was an insurmountable barrier to them being joined. That submission should not be accepted. As the above analysis of the pleading demonstrates, a prima facie case has been advanced that Mr Hiscock, Hisco and KPR were engaged in conduct which is characterised as being oppressive, unfairly prejudicial, or unfairly discriminatory. It may well be that the initial pleading focused on the overall conduct and characterised it as being that of Essential Investments. However, the specific attribution of conduct to the proposed defendants and the allegations that it amounted to oppressive conduct is sufficient to raise valid claims against them for the purposes of ss 232 and 233 of the Corporations Act. On the basis of the allegations alone, it is fairly obvious that Mr Hiscock, Hisco and KPR ought to have been made parties to the proceedings from commencement of the action and, therefore, the power in r 9.05(1)(a) to join them is enlivened. 23 It should be added that the pleading against the proposed new parties may require some refinement or elaboration. In this respect, there is force in Mr Peden QC's submission that, to the extent to which allegations are made against those entities, they are somewhat general. Be that as it may, there is sufficient to raise a prima facie pleaded case, even if it is appropriate that the plaintiff provide greater specificity in respect of some pleaded allegations. 24 It was also submitted that Mr Hiscock only had limited control of Essential Investments as a result of his shareholding being around 23%, whereas the resolutions of which complaint is made were passed by approximately 80% of the shareholders. It is said that there is a factual hiatus between what occurred and what Mr Hiscock was able to do to cause the company to engage in the conduct which it did. Whilst it can be accepted that, at a granular factual level, that submission has some force, nevertheless, the pleaded allegations are that Mr Hiscock was engaged in encouraging or directing the company to act as it did. It may be that they require some particularisation in order to demonstrate with greater precision how Mr Hiscock caused the company to act as it did. Nevertheless, the allegations are sufficient to raise a case on the pleading. It can also be observed that, although Mr Hiscock may not have power through his personal shareholdings to require directors or entities such as Hisco or KPR to act in a particular way, that is not the totality of the necessary consideration. From the allegations made, and supported by the evidence of Mrs McWilliam adduced on the hearing, it is apparent that Hisco and KPR are closely associated with Mr Hiscock and have acted consistently with his actions in the disputation with Jolan and Mr and Mrs McWilliam. It is far from impossible that it may be inferred at the hearing that Mr Hiscock had de facto control of those other entities or that they were acting in concert with him. No such finding is made here. It is only identified that such a conclusion is not wildly hypothetical or speculative. 25 It was further submitted that Jolan would not be able to make out a case at trial against the proposed new defendants. This was advanced on the basis that Jolan had already filed its material for the hearing and that, taken at its highest, there is insufficient evidence to establish liability against them. In this regard, reference was specifically made to specific paragraphs of the affidavit of Mrs McWilliam of 18 June 2021. However, when that affidavit is read in its totality rather than limiting consideration to those parts referred to by Essential Investments, substantial support can be discerned for the pleaded allegations against the proposed defendants. It is, however, not necessary to reach any conclusion at this stage as to whether any such claim would succeed. The narration of facts by Mrs McWilliam is sufficient to establish, at least by inference, that Mr Hiscock had a central involvement in the conduct of the company which is the subject of Jolan's complaint. For a period of time, he was the Chairman of the company's board of directors and CEO of its major operating subsidiary, Essential Coffee. It is also apparent that there was a breakdown in the relationship between Mr and Mrs McWilliam on the one hand and Mr Hiscock on the other. On the basis of the evidence, which was before the Court on the interlocutory hearing (and accepting that the defendant has not filed responsive evidence), it can be accepted, without finally deciding, that an inference arises that Mr Hiscock exercised some dominion or control over the actions of Hisco and KPR and that he did so in relation to the conduct alleged in Jolan's Statement of Claim. It cannot not be regarded as being a matter of pure coincidence that companies with which he is associated adopt the same position as he has taken in relation to the dispute with Mr and Mrs McWilliam and Jolan. In this respect, it is probably also not irrelevant that Mr Hiscock executed the Shareholders' Agreement on behalf of himself, Hisco and KPR. 26 Ultimately, it is not necessary to reach any conclusion as to whether there is presently sufficient evidence to make out a case at trial. This action was commenced in April of this year and is being expedited so as to achieve a resolution as soon as possible. The trial remains some months off and it is likely that Jolan will seek to supplement the evidence which it has already filed with additional and more specific evidence directed towards the conduct of the proposed new defendants. 27 Mr Peden QC also submitted that there was no need to join the proposed defendants to the proceedings at this stage as it would be sufficient to join them once the Court has made a determination as to whether any oppressive conduct occurred. If that conclusion is reached, so the submission goes, the parties can give notice to each of the other shareholders who may be interested in any order which the Court might make. In particular, some shareholders may seek to protect or to exercise their rights of pre-emption in respect of Jolan's shares. If the Court were minded to make an order that Essential Investments acquire the shares with a concomitant reduction in its issued share capital, notice would have to be given to major creditors in any event: see the observations of von Doussa J in Coombs v Dynasty Pty Ltd (1994) 14 ACSR 60 (Coombs) at 101 - 102 [25.1]. 28 Although it may be appropriate at the conclusion of a hearing on liability in relation to the alleged oppression, and before any orders are made, to order that other shareholders or major creditors be given notice of the proceedings or joined as parties, that approach is not appropriate in respect of shareholders of whom it is alleged engaged in the oppressive conduct and against whom orders might be sought. Such persons have an entitlement to defend the allegations against them which may found the making of orders against their interests. Here, the proposed amendments seek orders that Mr Hiscock, Hisco or KPR acquire Jolan's shares in Essential Investments, and those entities are entitled to challenge the factual allegations on which Jolan relies to support the making of such orders. Clearly enough, they are not able to do that unless they are parties to the action at the liability stage of the proceedings. 29 In support of his submission that the proposed defendants should not be joined, Mr Peden QC sought to rely upon the decision of Debelle J in Acehill Investments Pty Ltd v Incitec (No 2) (2002) 85 SASR 452 (Acehill). There, the plaintiff company, Acehill, held approximately 20% of the shares in Incitec, Orica Ltd held 77% and 1,400 others each held relatively miniscule parcels of shares. Orica, which exercised control over Incitec through its ability to appoint directors, sought to restructure that company. Acehill commenced proceedings claiming that the affairs of Incitec were being conducted in a manner which was contrary to the interests of the members as a whole and prejudicially and oppressively towards it. It also sought orders for the removal of Incitec's directors who were said to have conflicts of interest. Orica sought to be joined as a defendant to the action on the basis that its interests were being affected. It claimed that its ability to appoint directors was being undermined, that it may be ordered to acquire Acehill's shares in the company, and that allegations had been made against Orica. Debelle J held (at 456 - 457 [18] - [19]) that, although the orders which might be made could directly affect the interests of Orica, it ought not to be joined as no allegations of oppression were made against it, but only against Incitec. As to the protection of Orica's interests, his Honour said (at 457 [20]): If Acehill succeeds, the appropriate course for the court to adopt would be to refrain from ordering any relief until all those affected by the orders which Acehill seeks are before the court. Orica may then, if it wishes, renew its application to be joined. Alternatively, an order may be made at this stage that Orica be joined but only be heard on the relief which should be granted to Acehill if it should succeed. The latter appears to be the preferred course. ... 30 Later in his reasons, his Honour referred (at 457 - 458 [23]) to the nature of an oppression action and the appropriate parties to it: First, the essence of the action is that the affairs of the company are not being managed in the interests of the members as a whole. Thus, in the ordinary course, the parties will be the plaintiff shareholder or shareholders and the company. While the determination of the question whether there has been oppressive conduct requires the court to weigh the interests of different shareholding interests within the company, it is not necessary that all the shareholders be joined. The action is between the plaintiff shareholder and the company and it is for the plaintiff to show that the conduct offends s 232. … Section 232 does not contemplate that all shareholders will be parties to an action for oppression. If that were so, all actions under s 232 would require all shareholders to be joined. There will be cases when it is appropriate to join other shareholders because their interests will be affected. But this is not such a case. (Citations omitted). 31 However, that is not to say that a plaintiff is debarred from joining as defendants in the action the shareholders who, either directly or indirectly through their control of directors, have caused the company to be conducted in a manner which is oppressive to the plaintiff. That is especially so where specific relief is sought against those shareholders: Acehill at 457 - 458 [23]. Otherwise, it is generally a matter for the plaintiff to choose the defendants against which it seeks to litigate and in respect of whom relief is sought: Acehill at 458 [25]. 32 In addition, no allegations had been made against Orica in Acehill, whereas in the present matter specific allegations are made that the conduct of the three proposed defendants was oppressive or constituted an essential part of the oppressive conduct on which the claim is made. This is a substantial distinguishing feature. 33 There is nothing in Acehill which assists Essential Investments in its opposition to the orders which Jolan seeks. Indeed, it tends to support an order for joinder in this case. It was, in any event, concerned with a shareholder seeking to interpose itself in the litigation. Moreover, in that case, Acehill had expressly disavowed any intention of seeking orders that Orica acquire its shares in Incitec and that was an important part of Debelle J's consideration. Here, the amendments sought to be made by Jolan specifically seek to required Mr Hiscock, Hisco and KPR to acquire its shares. Although there may be restrictions in the Shareholders' Agreement which arise from the granting rights of pre-emption to other shareholders, it should be accepted that the power of the Court under s 233 is not fettered or limited by the rights agreed between the shareholders: Coombs at 102 [25.3]; Re Dalkeith Investments Pty Ltd (1984) 9 ACLR 247 at 254; Re North Coast Transit Pty Ltd [2013] NSWSC 1119 [23]. It follows that, as direct relief is sought against the proposed defendants, it is not inappropriate that they be joined to the action. Their concerns are substantially more than a "commercial interest" in the outcome of the litigation. 34 Finally, Mr Peden QC submitted that it was not explained why, if it is appropriate to join the proposed defendants to the proceedings, it was not also appropriate that other shareholders in Essential Investments be joined as well. That submission depended, in part, on Jolan's case being that the proposed defendants were in breach of the Shareholders' Agreement by voting for particular resolutions. It was said to follow that all other shareholders who voted for those resolutions would also be in breach and therefore ought to be joined. This submission too must be rejected. As was mentioned above, it is generally a matter for a plaintiff to choose the defendants against which it seeks to litigate and in respect of whom relief is sought. Here, the Statement of Claim does not raise any allegation that the other shareholders have breached the Shareholders' Agreement or engaged in conduct for the purposes of s 232 of the Corporations Act. More importantly, Jolan also does not seek any relief against them pursuant to s 233 based upon their having engaged in any such conduct. This is an obvious explanation for why they were not sought to be joined. Furthermore, as was accepted above, it may be appropriate that notice be given to those shareholders before any orders are made pursuant to s 233 insofar as their interests may be affected by those orders. However, even in that case, it would generally be up to the individual shareholders to determine whether they seek to be joined to the proceedings in circumstances where no order is sought against them.

Jolan Pty Ltd v Essential Investments Pty Ltd

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (2)

Cases Cited (5)

Cited By (1)