McShelly Pty Ltd & Anor v VHS Holding Company Pty Ltd & Ors [2025] QSC 159

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS - where the second plaintiff, third defendant and fourth defendant, along with their corporate and family trust vehicles, established and operated a medical practice from premises at Ipswich - where the running of the Practice at the Premises was a commercial business venture - where the second defendant is the trustee of a property trust and a business trust through which the Practice and Premises were operated - where the plaintiffs allege, among other things, unfair or oppressive exclusion of the second plaintiff from the Practice and the Premises by the third and fourth defendants - where one of the alternative forms of relief sought is an order for the appointment of a receiver of all of the second defendant's property held in its capacity as trustee - where another alternative form of relief sought is an order winding up the second defendant - where the second defendant has applied for partial summary judgment on the basis that the plaintiffs have no real prospect of success - where the second defendant claims that the Premises, being held on trust, is not susceptible to orders for the appointment of a receiver or for winding up - whether the plaintiffs have no real prospect of success on these parts of their amended claim

PROCEDURE - PLEADINGS - STRIKING OUT - DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE - where, in the alternative to the partial summary judgment application, the second defendants apply to strike out certain paragraphs of the plaintiffs' second amended statement of claim on the basis that the paragraphs disclose no reasonable cause of action - where the impugned paragraphs relate to allegations of oppressive conduct - whether the paragraphs ought to be struck out for disclosing no reasonable cause of action

PROCEDURE - PLEADINGS - STRIKING OUT - DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE - where the third to tenth defendants apply to strike out specific paragraphs of the plaintiffs' second amended statement of claim on the basis that the paragraphs disclose no reasonable cause of action - where the third to tenth defendants submit that the pleading of accessorial liability which attempts to extend liability to the sixth and eighth defendants is deficient - where the third to tenth defendants submit that none of the material facts forming the basis of the allegation of knowledge on the part of the sixth and eighth defendants of their husbands' alleged breaches of directors' duties are pleaded, nor are the facts from which an inference of knowledge could be drawn - whether the paragraphs ought to be struck out for disclosing no reasonable cause of action - whether leave to replead ought to be granted

Civil Proceedings Act 2011 (Qld), s 12

Corporations Act 2001 (Cth), s 79, s 181, s 182, s 183, s 232, s 233, s 234, s 433, s 461, s 1324

Supreme Court Act 1970 (NSW), s 67

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 150, r 171, r 293, r 681

Australia Pacific LNG Pty Ltd v Santos Toga Pty Ltd [2025] QSC 49, considered

Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82, considered

Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20; (2019) 268 CLR 524, considered

Coley v Nominal Defendant [2003] QCA 181; [2004] 1 Qd R 239, considered

David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 108, considered

DGR Global Ltd v PT Limited as trustee of the Armour Energy Security Trust [2024] QSC 90, considered

Equititrust Limited v Tucker and Others (No 2) [2019] QSC 248, considered

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, cited

Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (in liq) [2008] FCA 1920; (2008) 252 ALR 41, cited

In the matter of Crow Inn Pty Ltd [2020] NSWSC 1749, cited

Kizquari Pty Ltd v Prestoo Pty Ltd (1993) 10 ACSR 606, considered

Melrob Investments Pty Ltd v Blong Ume Nominees Pty Ltd (2022) 141 SASR 1, considered

Mirvac Queensland Pty Ltd v Horne [2009] QSC 269, applied

Quinlan v ERM Power Ltd [2021] QSC 35; (2021) 303 IR 200, applied

Re Dawning Investments Pty Ltd [2022] VSC 641; (2022) 68 VR 226, considered

Re Munja Bakehouse Pty Ltd [2024] NSWSC 6; (2024) 384 FLR 176, cited

Rich v CGU Insurance Limited [2005] HCA 16; (2005) 79 ALJR 856, applied

Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53, considered

Trust Company Ltd v Noosa Venture 1 Pty Ltd [2010] NSWSC 1334; (2010) 80 ACSR 485, considered

Wain v Drapac [2012] VSC 156, considered

William John Fletcher and Katherine Elizabeth Barnet as liquidators of Octaviar Administration Pty Ltd (in liquidation) & Anor v Fortress Credit Corporation (Australia) II Pty Limited & Ors [2013] QSC 104, considered

Yorke v Lucas (1985) 158 CLR 661, applied

Aitken Whyte Lawyers for the first and second plaintiffs

Stanton & Associates for the third to tenth defendants

• [1] This proceeding was commenced in October 2024 and emanates from a commercial business venture between the second plaintiff, Dr Singh, the third defendant, Dr Cronin, and the fourth defendant, Dr Smith, and their various corporate and related family trust vehicles, to establish and operate a medical practice from premises at Ipswich in mid-2021. The causes of action alleged by Dr Singh and the first plaintiff (his corporate family trust), against each of the ten defendants are underpinned by allegations of unfair and oppressive exclusion of Dr Singh from the Practice and the Premises by Dr Cronin and Dr Smith in December 2023.
• [2] Defences have been filed on behalf of each of the ten defendants and the proceeding was placed on the Commercial List by the agreement of the parties in late January 2025.[1] Subsequently, directions were made for the filing and serving of various anticipated applications by the second to tenth defendants as the "active defendants" in the proceeding.[2] Pursuant to these directions:

a) The second defendant has applied for partial summary judgment of paragraphs F and G of the amended claim, or alternatively, to strike out certain paragraphs of the plaintiffs' second amended statement of claim; and > > b) The third to tenth defendants have applied to strike out specific paragraphs of the plaintiffs' second amended statement of claim.

• [3] Under r 293 of the Uniform Civil Procedure Rules 1999 (Qld), the Court's discretion to summarily dismiss all or part of a plaintiff's claim only arises once it is satisfied that the plaintiff has no real prospect of succeeding on all or part of the claim; and there is no need for a trial of the claim or part of the claim.[3] The question for the Court's determination is whether the plaintiff has real, as opposed to fanciful, prospects of success.[4]
• [4] Generally, issues are only to be determined in a summary way in the clearest of cases, where there is a high degree of certainty about the ultimate outcome.[5] That is because a party should not generally be denied the opportunity to place their case before the court in the ordinary way.[6] Further, as was observed by Applegarth J in Mirvac Queensland Pty Ltd v Horne [2009] QSC 269, an application for summary judgment is not necessarily the appropriate means by which to determine complex questions of law, which may depend upon a contentious determination of factual issues, in advance of trial.[7]
• [5] Similarly, the Court's power to strike out pleadings must be exercised with great care to ensure that a party is not improperly deprived of the opportunity for trial of a case.[8] The power is discretionary and must be exercised having regard to the function of pleadings and the fundamental principles set out in r 5 of the UCPR.
• [6] With these principles in mind, and those of modern case management, ordinarily a Court ought to be reluctant to spend extensive time and resources debating an application of technical pleading rules.[9] It is only where the criticisms of a pleading significantly impact on the proper preparation of the case and its presentation that those criticisms should be seriously entertained.[10]
• [7] In Equititrust Limited v Tucker and Others (No 2) [2019] QSC 248, Bowskill J, as Her Honour then was, observed:

"...where a court determines on a strike out application that certain claims ought to proceed (or for that matter where there is no challenge to certain claims), it will 'hesitate before [striking out another claim] notwithstanding that the legal basis for it may be doubtful or problematic in circumstances where the court will nevertheless be required to hear and determine substantially the same factual matters in respect of the remaining cause[s] of action'."

• [8] In DGR Global Ltd v P.T. Limited as trustee of the Armour Energy Security Trust [2024] QSC 90, Cooper J stated that:[12]

"...although the Court may determine a difficult question of law on such an application, the power to strike out should not be exercised once it appears that there is a real question to be determined whether of fact or of law and that the rights of the parties depend upon it."

• [9] The grounds on which a Court may strike out all or part of a statement of claim under the UCPR include that it discloses no reasonable cause of action, or it has a tendency to prejudice or delay the fair trial of the proceeding.[13] As observed by the Court of Appeal in Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53, such a tendency may arise when the pleading is difficult to follow or objectively ambiguous, or creates difficulty for the opposing party insofar as it contains inconsistencies.[14]
• [10] Where the impugned pleading forms part of an extensive document containing multiple causes of action against multiple defendants and extensive particulars, it is necessary to have regard to the context of the pleading as a whole.[15]
• [11] Before applying these principles, it is necessary to understand the facts as they emerge through the prism of the plaintiffs' pleaded case, and as generally agreed for the purpose of these applications.[16]

• [12] Dr Singh, Dr Cronin and Dr Smith are qualified medical doctors who, in mid-2021, decided to go into business together for the purpose of providing medical services to defence force veterans. From late 2022 to mid-2023, the three doctors and their respective family trust companies (the first plaintiff and the ninth and tenth defendants) reduced the terms on which they agreed to conduct and profit from the operation of the Practice at the Premises into a written Heads of Agreement which was never signed.
• [13] The initial structure of the business venture was that the second defendant, VHS Doctors Pty Ltd as trustee of the 3 Wise Monkeys Fixed Unit Trust ("the Property Trust") acquired the Premises for the purpose of leasing it to a tenant controlled by Dr Singh, Dr Cronin and Dr Smith, to carry out the Practice. The second defendant was registered as a company on 4 June 2021 and Dr Singh, Dr Smith and Dr Cronin were each appointed as a director. All three doctors held (and continue to hold) equal shares in the company.
• [14] The unit holders of the Property Trust are (and remain) the respective corporate vehicles of each of the three doctors: that is the first plaintiff, McShelly Pty Ltd as the corporate vehicle of Dr Singh; the ninth defendant, Phantomedical Pty Ltd as trustee of the Tardis Discretionary Trust as the corporate vehicle of Dr Smith; and the tenth defendant, AMCC Property Pty Ltd as trustee for the AMC Property Trust as the corporate vehicle of Dr Cronin.[17]
• [15] The second defendant does not hold any assets or conduct any business in its own right, but as well as being the trustee of the Property Trust it is the trustee of two further trusts: the Veterans Health Solutions Fixed Unit Trust ("the Business Trust"), and the Bad World Discretionary Trust ("the Discretionary Trust").
• [16] The Business Trust is a unit trust and 100% of its units were initially held by the Discretionary Trust. The named beneficiaries of the Discretionary Trust are Dr Singh, Dr Smith and Dr Cronin and each of their wives, together with each of their respective corporate vehicles (being the first plaintiff and the ninth and tenth defendants). Dr Singh's wife, Ms Singh, is not a party to the proceedings but she is a director of the first plaintiff. Dr Cronin's wife, Ms Cronin, is the sixth defendant. Dr Smith's wife, Ms Smith, is the eighth defendant.

• [21] The Practice was restructured in or around late September 2023. Part of this restructure involved VHS Doctors as trustee for the Business Trust assigning the carrying on of the Practice at the Premises to AVHS. There is no allegation that the lease over the Premises was assigned to AVHS as part of this restructure.
• [22] Initially, the Practice and the Premises were operated under separate trusts by the same corporate trustee (VHS Doctors). Later, the Practice came to be "broken off" and was operated by AVHS.[18]
• [23] In September 2023, 100% of the shares in AVHS were sold by the Business Trust to the first defendant. On the plaintiffs' case, this sale was at an undervalue and occurred behind Dr Singh's back.

Overview of the quasi-partnership business relationship

• [24] It is accepted for the purpose of this application that Dr Singh, Dr Cronin and Dr Smith arranged their affairs on the basis that they each shared equally in the participation, management and decision-making of the Practice. Each of them was equally entitled to the capital and to the profit, and to participate in the Practice including in the day-to-day decisions surrounding the making of the Practice. The decision to buy the Premises, and to establish the Practice at the Premises, meant that the three doctors would be able to "vertically integrate the economic interests associated with the Practice up through the landlord", so they would not have to pay a third party.[19] From the plaintiffs' perspective, this meant they would "be participating in the landlord's side of that transaction, and...the tenant's side of those dealings."[20]
• [25] It is also accepted that, in accordance with the above arrangement, Dr Singh, Dr Cronin and Dr Smith "did as they contemplated they would do", including engaging in day-to-day decision-making, having a one-third interest in the capital and the profits, and being involved in the boards of the various entities.[21]
• [26] All this changed in early December 2023 after Dr Singh left to go on a holiday to New Zealand. It is alleged that after saying goodbye to everyone at the office, Dr Singh received an Emergency General Meeting notice with the single item on the agenda being his removal as a director.[22]

• [27] The plaintiffs' case is that as matters transpired, Dr Cronin and Dr Smith moved against Dr Singh with respect to VHS Doctors - the landowner - and with respect to AVHS, the entity that held the Practice. This was said by counsel for the plaintiffs to be because Dr Cronin and Dr Smith were under "no illusions" that they had to get Dr Singh out of all of these entities because "they were interconnected as part of the one quasi-partnership that they'd all embarked upon".[23]
• [28] The plaintiffs allege that, from late 2023, Dr Singh was excluded from the Practice at the Premises in several ways, including that:

a) in early 2024, Dr Singh was removed as a director of the first defendant, the second defendant and AVHS; > > b) in April 2024, the fifth defendant, Australian Veterans Corporation Pty Ltd, was incorporated as a company controlled only by Dr Smith and Dr Cronin, with the seventh and ninth defendants as equal shareholders and Dr Cronin and Dr Smith as its only directors; and > > c) in May 2024, the fifth defendant acquired all the shared in AVHS previously held by the first defendant for consideration based on a valuation obtained from a chartered accountant.

• [29] The plaintiffs' case is that the majority shareholders sold the Practice at an undervalue back to an entity controlled by the majority, meaning that all future dealings and negotiations involving the Premises would be between the majority as landlord and the majority as tenant, to the exclusion of Dr Singh.

• [30] The causes of action against the various defendants can be broadly summarised as follows:

a) Damages for breach of contract against Dr Cronin, Dr Smith and some of the other defendants in the sum of $1,118,604.80; > > b) Contravention of the statutory duties owed by Dr Cronin and Dr Smith as directors of the first defendant (and the involvement of Ms Smith and Ms Cronin in those contraventions); > > c) Contravention of fiduciary duties owed by Dr Cronin and Dr Smith to Dr Singh (and the involvement of the fifth defendant in those contraventions); and > > d) Oppressive conduct under the Corporations Act 2001 (Cth).

• [31] The plaintiffs described the allegations of oppressive conduct as being tied to the exclusion of Dr Singh from the management of the Practice and the Premises, with the remedies addressing the consequences of Dr Singh's exclusion.
• [32] By their amended claim, the plaintiffs seek the following relief against the defendants:
  1. Damages for breach of the Heads of Agreement against the third, fourth, seventh (or alternatively to the seventh, the tenth) and ninth defendants in the amount of $1,118,604.80;
  2. Further or alternatively to (A), orders pursuant to s 1324 of the Corporations Act:

(a) restraining the third, fourth, fifth, sixth, seventh, eighth, and ninth defendants from contravening ss 181-3 of the Corporations Act; and

(b) requiring the third, fourth, fifth, sixth, seventh, eighth, and ninth defendants to do all things necessary to:

(i) reinstate the first plaintiff as a medical practitioner entitled to earn medical practitioner fees within the Practice; and

(ii) grant the second plaintiff a one-third interest in the fifth defendant;

1. In addition to, or in substitution for, the relief sought in (B), an order that the third, fourth, fifth, sixth, seventh, eighth, and ninth defendants pay damages to the first and second plaintiff under s 1324(10) of the Corporations Act;

1. Further or alternatively to the relief sought in (A)-(C), as against the third, fourth and fifth defendants for breach of fiduciary duty:

(a) an order for payment of equitable compensation to the first and second plaintiffs;

(b) an order granting an equitable charge in favour of the first and second plaintiffs against the shares received by the fifth defendant from the first defendant to secure payment of equitable compensation; and

(c) alternatively, and at the plaintiffs' election, an account of profits against the third, fourth and fifth defendants;

1. Further or alternatively to the relief sought in (A)-(D), an order under ss 233(1)(d) and 233(1)(j) of the Corporations Act:

(a) that the third, fourth, seventh, and ninth defendants purchase all shares held by the first plaintiff in the first defendant at a price to be determined by the court; and

(b) that the first defendant do all things necessary to ensure that the share register reflects the transfer of shares contemplated by order E(a);

(C) that the ninth and tenth defendants purchase the first plaintiff's units in the Property Trust and the third and fourth defendant purchase all shares held by the second plaintiff in the second defendant, at a price to be determined by the court; and

(d) that the second defendant do all things necessary to ensure that the register of unit holders and share register reflects the transfer of the units and the transfer of shares, respectively, contemplated by order E(c);

F. Alternatively to the relief sought in (E)(c)-(d), an order under s 233(l)(h) and (j) of the Corporations Act appointing a receiver or a receiver and manager of all of the second defendant's property held in its capacity as trustee of the Property Trust and a further order that the receiver or receiver and manager sell the property (including the Premises) and distribute the net proceeds first to the first plaintiff in the amount determined by the Court, with the balance to be distributed on a pro-rata basis to the ninth and tenth defendant in accordance with their respective unit holdings in the Property Trust;

G. Alternatively to the orders sought in (E)(c)-(d) and (F), an order under s 233(1)(a) of the Corporations Act or, further and alternatively, s 461(1)(k) of the Corporations Act, winding up the second defendant.

Second defendant's application for summary judgment

• [33] The second defendant's application for summary judgment is made on the basis that the plaintiffs have no real prospects of success in obtaining the relief sought in paragraphs F and G of the amended claim because:

a) the relevant property of the second defendant (ie, the Premises) is held on trust, and is not susceptible to orders for the appointment of a receiver or alternatively for winding up of the second defendant under s 233 of the Corporations Act; > > b) the role of the second defendant in its capacity as trustee of the Property Trust was and remains to hold title to the Premises, and to lease it to VHS Doctors as trustee of a different trust; > > c) no facts are pleaded as to the conduct of the second defendant as trustee of the Property Trust which would support an order that it be wound up, in an oppression action or on the just and equitable ground.

• [34] There is some overlap between these grounds, in that they are concerned with the role of a corporate trustee and the meaning of "trust property" in the context of oppression actions.

• [35] The parties initially appeared to maintain diametrically opposed perspectives as to both the existence and the extent of this Court's powers under ss 232 and 233 of the Corporations Act.
• [36] The second defendant's submission that there was no question to be tried on the relief sought in paragraphs F and G of the amended claim was, at least in part, underpinned by the principles enunciated by the High Court in Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20; (2019) 268 CLR 524. That decision concerned issues of corporate insolvency and, in that context, the High Court relevantly observed:

a) that a corporate trustee's right of indemnity against trust property is "company property" because the company has a beneficial interest in the trust assets but that otherwise, trust property is not property of a company that is a trustee of a trust of that property;[24] > > b) that it would be "extraordinary" if property of the company included property of which the company was a trustee, and in which it had no beneficial interest;[25] > > c) that a liquidator must deal with assets held by a company as trustee in accordance with the terms of the trust;[26] > > d) where a company has a beneficial interest in trust assets, the trust assets are property of the company available for the payment of creditors;[27] and > > e) per Gordon J, consistent with the idea that property subject to a trust is not property of a company, that:[28]

"First, and fundamentally, s 433 of the Corporations Act does not purport to change the nature and character of property that falls under control of the receiver as property of the company. Legal restrictions inherent in property must be respected where there is no clear statutory mandate to adopt any other approach. Having regard to the breadth of the definition of "property" in s 9, if the Commonwealth's primary position were accepted (and it should not be), property held on bare trust would be property of the corporate trustee and theoretically available for distribution to all creditors."

• [37] The plaintiffs did not quarrel with the general proposition that property subject to a trust is not property of a company, but submitted that the second defendant suffered a "fundamental misapprehension" of the nature of the plaintiffs' case.[29] In this respect, the plaintiffs submit that their case is not one to be decided under the "liquidation provisions of the Corporations Act", but under the oppression provisions of Part 2F.1.[30] Further, according to the plaintiffs, once the jurisdictional provisions of s 233 of the Corporations Act are triggered by s 232, those provisions are:

"...not concerned then with a legalistic demarcation between what is the company, what are the affairs of the trust, ... and in what precise capacity is a person involved with this particular company or this particular trust."[31]

• [38] The plaintiffs placed some reliance on the decision of Re Dawning Investments Pty Ltd [2022] VSC 641; (2022) 68 VR 226 to support their submission that "the company's property" within the meaning of s 233(1)(h) of the Corporations Act extends to property held by the company as trustee.
• [39] In Re Dawning, a dispute arose between families involved in property investment and development. The interests of those families were held equally in an investment company and a development company, the latter of which was a trustee of a unit trust. The beneficiaries of the unit trust were trustees of family trusts for the benefit of the key parties' respective families. The plaintiff alleged oppressive conduct in relation to the affairs of the companies and sought orders to wind them up under ss 233, 461(1)(f) and 461(1)(k) of the Corporations Act. The plaintiff also sought an order that a receiver be appointed over the assets of the unit trust.
• [40] Ultimately, Hetyey ASJ appointed a receiver and manager over the assets and undertakings of the Unit Trust, of which the development company was trustee, apparently pursuant to ss 232 and (1)(h) of the and/or of the (NSW). These orders were said to have been just and convenient because, among other things:

a) "...there is good authority for the proposition that the statutory oppression provisions may be used to remedy oppression within a trustee company and deal with ... units in a unit trust, so long as there is a rational and discernible link between the remedy and the company in which the oppression has occurred";[34] and > > b) "It is well-established that a receiver and manager may be appointed over trust property to secure the trustee's right of indemnity out of the assets of the trust".[35]

• [41] Counsel for the second defendant submitted that this Court should not follow Re Dawning to the extent it is relied upon by the plaintiffs as authority for the proposition that s 233(1)(h) of the Corporations Act confers a power to make orders over property held on trust by a corporate trustee. For the purposes of this summary judgment application, it is unnecessary to resolve the competing views about this because for the reasons discussed below, I am satisfied that it is at least arguable that such a power exists in the context of oppression proceedings under ss 232 and 233 of the Corporations Act.

The interaction between ss 232 and 233 of the Corporations Act and trust property

• [42] Chapter 2F of the Corporations Act is titled "Members' rights and remedies", with the provisions in Part 2F.1 providing for "Oppressive conduct of affairs".
• [43] Section 233 (in Part 2F.1) of the Corporations Act allows a court to make any order under that section that it considers appropriate in relation to the company. Relevantly, this includes "appointing a receiver or a receiver and manager of any or all of the company's property" under s 233(1)(h).
• [44] The discretion to make orders under s 233 is an extremely wide one, although it is only enlivened when one or more of the grounds in s 232 of the Corporations Act are present. Those grounds are as follows:

The Court may make an order under section 233 if:

(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;

(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.

For the purposes of this Part, a person to whom a share in the company has been transmitted by will or by operation of law is taken to be a member of the company."

• [45] As the summary judgment application was argued before me, the divergence in views about the nature and extent of the relief available under s 233 was ignited by the statement in the second defendant's outline of submissions that "[t]here is an ongoing debate as to the extent to which relief under s 233 of the Corporations Act is available where the company in question is acting as the trustee of a trust."[36] Counsel for the plaintiffs maintained "there is no debate".[37]
• [46] After I reserved my decision, the second defendant requested and was granted the opportunity to provide written submissions to the Court further addressing this issue following the decision of the New South Wales Court of Appeal in David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 108, which was delivered on 23 May 2025.[38]
• [47] It is fair to say that some of the earlier decisions took a narrow view between the property and affairs of a trust and company property.[39] But the recent decision of David & Ros Carr Holdings makes it "tolerably clear" that "a company's affair" under s 232(a) of the Corporations Act includes the affairs of a trustee company in executing a trust, and its business in conducting the operation of the trust and administering the trust.[40]
• [48] This decision, which is analysed in more detail below, extinguishes the idea that there is an ongoing debate about whether relief is available under of the where the company in question is acting as the trustee of a trust. It does not, however, resolve the debate about the extent of the relief available in such a circumstance. Critically, the decision re-emphasises the broad and extensive nature of the powers under and of the .

• [49] The facts of this case can be summarised as follows. The Carr and Ritossa families were associated through Mr Carr and Mr Rittosa whilst both men held senior roles at different banks in Singapore.[41] The families discussed buying rural property in Australia to diversify their investment portfolios, and as investors they sought advice on the specific structure by which they might hold rural property.[42]
• [50] The structure adopted by the Carrs and Ritossas involved a single corporate trustee (Darbalara Holdings Pty Ltd) to hold the rural properly investment subject to a unit trust (the Darbalara Properly Trust).[43] Mr and Ms Carr and Mr and Ms Ritossa were the four directors of the corporate trustee, Mr Carr and Mr Ritossa were the two equal shareholders, and the units were split evenly between the Carrs and Ritossas.[44] The Carrs and Ritossas intended to (and did) delegate the operation of the agricultural business on the rural property to professionals.[45]
• [51] Legal proceedings were brought by the Carrs, who sought relief under ss 232 and 233 of the Corporations Act based on a deadlock in the management of the corporate trustee.[46] The Carrs wished to terminate the unit trust, while the Ritossas wished to continue their investment.[47] The Carr's oppression claim was characterised as being based on a "mere deadlock" which was found not to be sufficient to establish oppression under s 232.[48]
• [52] In considering the interaction of ss 232 and , the Court of Appeal (constituted by Leeming JA, Stern JA and Griffiths AJA agreeing) referred to the text, legislative history and the authorities as "all point[ing] to being treated as exhaustive of the circumstances in which an order under can be made." In making these observations, the Court also recognised that the construction of and has produced a divergence of authority in two ways: first, as to the scope of "a company's affairs" in , and second, as to the power in to make an order "in relation to the company".

a) endorsed the wide reading of "in respect of" enunciated by Ferguson J in Wain v Drapac [2012] VSC 156 at [287], recognising the difficulties for a structure comprising a mixture of companies and trusts if s 233 was given a limited application; > > b) reiterated the need for caution in limiting the scope of the types of orders that can be made "in relation to the company", including where the company is a trustee;[54] > > c) noted that the power of a superior court should be exercised judicially and construed as liberally as its terms and context permit; and > > d) considered that such a broad power extended to orders requiring, for example, one beneficiary to acquire the units of another.

• [55] In its analysis of the extent of the power s under s 233, the Court approved the observations of Bleby JA (Lovell and David JJA agreeing) in Melrob Investments Pty Ltd v Blong Ume Nominees Pty Ltd (2022) 141 SASR 1 about the power to make an order regulating the conduct of the company's affair in the future being a species of order in relation to that company, on the basis that it:[55]

"...speaks strongly against there being a strict division between orders 'in relation to the company' and orders regulating the company's affairs. Those affairs include, for example, the dealings conducted by the company, and property it holds, in its capacity as trustee."

• [56] The second defendant focused on the Court's finding in David & Ros Carr Holdings that there was was no power in the inherent jurisdiction, or under s 67 of the Supreme Court Act 1970 (NSW),[56] to appoint a receiver over trust property merely because there had been a breakdown in mutual trust and confidence;[57] and that the appointment of a receiver under the inherent jurisdiction could not be used to achieve what could not be done by the trustee under the terms of the trust.[58] I accept, of course, that those were the findings of the Court. But the present case is not one where the plaintiffs seek relief under this Court's inherent jurisdiction or under the equivalent power in the Civil Proceedings Act 2011 (Qld), nor is it a case concerning a "mere deadlock".
• [57] The second defendant also submitted that two other aspects of the Court's decision in David & Ros Carr Holdings were relevant to the present case.
• [58] The first is that the Court did not consider the interpretation of s 233(1)(h) of the Corporations Act, as the appellant had not relied on it. This is not strictly correct, because in referring to the conferral of power being expressed very broadly under s 233, the Court expressly recognised that the power included one for the appointment of a receiver of any or all of the company's property under But, I accept that on the facts as they were in , the Carrs sought the winding up of the trust, not the trustee, so it was unnecessary for the Court to analyse that provision further. Relevantly, however, the Court:

a) reiterated the well-established difference between companies and trusts, with the former being a legal person and the latter a relationship;[61] and > > b) considered the appointment of a receiver to perform the "equitable equivalent" of winding up as inappropriate and contrary to principle.[62]

• [59] The second aspect said to emerge from David & Ros Carr Holdings was in relation to a shareholder of a company claiming oppression in their capacity as a discretionary object to a family trust, which in turn holds units in a trust of which the company is trustee. In that case, the shareholders of Darbalara Holdings Pty Ltd were Mr Carr and Mr Ritossa, however, the Carr Family Trust held "their" units in the Darbalara Property Trust, and Mr Carr was a beneficiary of that trust.[63] The Court held that, in principle, it "could contemplate circumstances in which [a shareholder] might be able to" claim to have sustained oppression in their capacity as a discretionary object of a family trust which, in turn, holds units in a trust of which the company is trustee.[64]
• [60] However, the oppression action failed on this point because the Court held that there was no evidence about the operations and activities of the Carr Family Trust.[65] In addition, the Court considered that when assessing oppression, it is not wrong to hold parties to a structure which they had adopted, stating:[66]

"...not lightly will a court disregard the elaborate structure to which the Carrs have subjected themselves, in order to treat them as if they had established a partnership which was dissoluble at will, or a private company in which as members they could readily fall within s 232(d) or (e)."

• [61] By analogy to the present facts, the second defendants referred to there being no pleading of any operations or activities of the McSingh Family Trust, nor of the Property Trust, which might support any arguable case that Dr Singh has been oppressed in his capacity as a discretionary object of the McSingh Family Trust_._ The evidence instead is that the first plaintiff has a right to redeem its units in the Property Trust for "the redemption price", defined as the net asset value of the Property Trust less transaction costs, divided by the number of units.[67]

• [62] It has been said that it is a "truth, universally acknowledged" that ss 232 and 233 of the Corporations Act are to be read broadly, and that the "imposition of judge-made limitation on their scope is to be approached with caution."[68]
• [63] Counsel for the second defendant sought to distinguish some of the cases relied upon by the plaintiffs on the basis that those authorities concerned the administration by the company of the trust, and none supported the proposition that "trust property can be treated for all intents and purposes as company property," nor that the Court could make orders under s 233 going beyond the powers of the company as trustee.[69] However, the second defendant conceded that if the plaintiffs could point to some conduct in the administration of the Property Trust that was oppressive, relief could follow under s 233 which might, for example, require a person not to continue that conduct; or the court could order the sale of the units in the unit trust as ancillary relief.
• [64] The second defendant also conceded that an order for the appointment of a receiver could potentially be made in support of orders for the winding up of a trustee company under s 233, since the legal basis for the appointment of a receiver is to protect the right of indemnity of the company. However, the second defendant argued that on the latest iteration of the plaintiffs' claim (unlike the previous version) this was not such a case, as the order for winding up that is currently sought is in the alternative to the order for the appointment of a receiver. The second defendant described it is "incoherent" for the plaintiffs to be seeking to effectively wind up the Premises but not the Practice. The plaintiffs' explanation as to why a winding up was not sought in conjunction with an order for the appointment of a receiver was to the effect of there is nothing to wind up, as the Practice has been sold to AVHS and it is this "conflict sale" that is at the centre of the oppression action by the plaintiffs. I accept the second defendant's submission on this point, that the fact of that sale does not necessarily mean that an accompanying winding up order of the second defendant could not have been sought and AVHS joined as a party. But that is a matter for the plaintiffs and not the Court on this summary judgment application.

a) The Carrs and Ritossas were investors - they were not agricultural industry experts or professionals seeking to establish a quasi-partnership through interlocking horizontal corporate structures to conduct a joint business enterprise; > > b) There was no suggestion in that case that the rural property held by the corporate trustee subject to the unit trust was part of a broader quasi-partnership involving, for example, joint obligations and rights of management by the Carrs and Ritossas in the day-to-day operations of an agricultural business from that property;[72] > > c) There was no suggestion that a majority of the directors conspired to oust the minority director and then sell the business enterprise at an undervalue to an entity that they controlled (as is alleged by the plaintiffs in the present case); and > > d) It is at least arguable that the allegations of oppression pleaded in the present case extend well beyond a "mere deadlock" between the directors, as was found to be the case in David & Ros Carr Holdings.

• [66] The second defendant also submitted that s 233 of the Corporations Act should not be construed as authorising the Court to make orders to destroy a trust relationship, and that if the company had no power to appoint a receiver of the trust under the Trust Deed, then the Court does not have the power to appoint a receiver under s 233. But such a case is not currently pleaded by the second defendant. Any construction of the Trust Deed to such an effect is a matter for a pleaded defence, and ultimately, for trial.
• [67] The second defendant further submitted that the first plaintiff still holds all the rights associated with the units in the Unit Trust, and that there is no complaint pleaded as to mismanagement of the Property Trust, that is, the lease of the Premises where the Practice operates. The second defendant argued that there are therefore no facts to support either the orders sought for the appointment of a receiver, or alternatively a winding up of the second defendant on just and equitable grounds.
• [68] In my view, this submission oversimplifies the issue by seeking to place a line of demarcation between the Property Trust and Business Trust in what is a factually complex case. As the Court observed in David & Ros Carr Holdings:[73]

"Parties may combine as partners or unincorporated joint venturers or through a company or through a trust in order to operate a business. The fact that in all cases the goal is to operate a commercial enterprise does not detract from the proposition that the different structures carry with them quite different ways in which the parties' interests may be separated."

• [69] The effect of the plaintiffs' pleaded case as to oppression is that:

a) Dr Smith and Dr Cronin excluded Dr Singh from the management of the Premises by removing him as a director of VHS Doctors; and > > b) this exclusion was part of a wider campaign by Dr Smith and Dr Cronin as the majority to exclude Dr Singh from all aspects of the management and control of the quasi-partnership.

• [70] More broadly, the plaintiffs' case is that Dr Singh was not a property investor but rather a doctor who went into a quasi-partnership with two other doctors on the basis that all three of them were to control the property - namely the Premises and the Practice. The plaintiffs argue that Dr Singh was ousted with the economic unity destroyed in circumstances where he had understood he would be participating in decision-making as landlord, whilst also participating in decision-making with respect to the Practice as the tenant.
• [71] In this case, the second defendant does not challenge that the Court may find that the oppression jurisdiction is enlivened, but seeks to be excused from further appearance or participation in the proceeding in respect of the relief sought in paragraph [E(d)] of the amended claim. In doing so, the second defendant said it would make a submitting appearance and in effect, take all steps necessary to give effect to any judgment transferring units or shares. In support of its application for summary judgment, the second defendant submitted that otherwise, no further costs need to be incurred by it.
• [72] Given the overlap in issues and the interconnection between all the defendants in this case, a consideration of the costs to be saved by the second defendant in isolation is, in my view, artificial and not particularly persuasive or relevant to the issues for my determination.

Conclusion: Is this an appropriate case for summary judgment?

• [73] In deciding the present application, it is relevant to consider whether the determination of difficult questions of law will facilitate the just and expeditious resolution of the real issues in the proceeding at a minimum of expense, bearing in mind that what may appear as pure questions of law may involve questions of fact.[74]
• [74] As the analysis above reveals:

a) The factual matrix in this case is complicated, with intertwining parties, issues and relief. There are also aspects of the case which are puzzling. For example, it is not entirely clear why an order for the winding up of the second defendant is not also sought along with the appointment of a receiver, as opposed to in the alternative; and > > b) The questions of law raised are difficult and will, to some degree, turn on findings of fact.

• [75] Whilst I have some concern about the prospects of the plaintiffs obtaining the relief sought in paragraph [F] or, alternatively, [G] of their amended claim, I am satisfied that their case on these points is arguable.
• [76] It follows that I am not satisfied that the plaintiffs have no real prospect of succeeding, or that there is no need for a trial on this part of their claim.

• [77] It was accepted by the second defendant that, broadly speaking, its strike-out application followed the summary judgment application with a few nuances. Given the dismissal of the summary judgment application, it is convenient to now turn to those nuances. The second defendant maintained that certain paragraphs should be struck out in the alternative to the primary relief sought on the summary judgment application, on the basis they do not disclose a reasonable cause of action.

• [78] Paragraph [120] of the second amended statement of claim pleads that the conduct referred to in paragraph [108], including each subparagraph, constitutes "conduct" in the affairs of the second defendant. The second defendant submitted that this represents over-inclusiveness in the pleading, when it ought to only refer to the conduct in paragraphs [50] to [63] (as cross-referenced in paragraphs [108(d)] and [108(e)]).
• [79] In my view, this submission overlooks that the plaintiffs' case is not confined to the matters pleaded in [108(d)] and [108(e)]. Rather, the oppression case is multifaceted and is premised on Dr Singh being removed as a director of the second defendant within the context of oppressive conduct his by quasi-partners - which includes the conduct set out in the balance of paragraph [108].
• [80] It follows that I do not accept the second defendant's complaint about this aspect of the pleading.
• [81] The same complaint is made about paragraph [121], and it follows that the same ruling applies.

• [82] The first complaint about paragraph [122] is that it does not separate out what is said to be the oppressive conduct in relation to each claim for oppression. For example, at paragraph [122(a)], the issue is that the first plaintiff is not a member of the second defendant. Rather, the shareholder of the second defendant is Dr Singh personally. This complaint again overlooks the plaintiffs' argument which is premised on there not being a strict division between the company and the affairs of the company in a case which is dominated by trusts.[75] Accepting that the scope of s 233 of the Corporations Act as contended for by the plaintiffs is arguable, it follows that it is open that the first plaintiff may be found to be a member because it is a member of the first defendant, who is one of the members of the quasi-partnership, a beneficiary of the Property Trust, and Dr Singh's corporate vehicle in the quasi-partnership.
• [83] The second complaint about paragraph [122] is that it is not clear on what basis it is said that Dr Singh is entitled to be a director. I do not accept that submission - rightly or wrongly, the pleading states that Dr Singh's entitlement to be a director is pursuant to the quasi-partnership and Heads of Agreement.

Overview of the outcome of the second defendant's applications

• [84] It follows from the above that paragraphs [1] and [3] of the second defendant's application filed 21 March 2025 are dismissed.
• [85] The order sought in paragraph [2] of the application, that the second defendant be excused from further appearance or participation in the proceeding in respect of the plaintiffs' claim against the second defendant as advanced by paragraph [E(d)] of the amended claim, is not opposed by the plaintiffs. I will, however, hear further from the parties as to whether this order ought to be made given my rulings.

• [86] Costs follow the event, although they remain within the discretion of the Court.[76] In the circumstances of this case, my preliminary view is that the appropriate order for costs is that the second defendant pay the plaintiffs' costs of the second defendant's application for summary judgment and strike-out filed on 21 March 2025. I will, however, allow the parties the opportunity to be heard on this issue if necessary.[77]

• [87] I will hear from the parties on the issue of costs and about the form of orders to be made following my rulings, including directions about the further conduct of the proceeding.

Third to tenth defendants' strike-out application

• [88] By their application filed 24 March 2025, the third to tenth defendants apply to strike-out parts of the plaintiffs' second amended statement of claim.
• [89] The third to tenth defendants' complaints are set out in three parts:

a) Part A contends that the pleadings are deficient insofar as they rely on a breach of contract because there is no proper pleading as to how the contract was formed; > > b) Part B contends that the pleading of accessorial liability which attempts to extend liability to the wives of Dr Cronin and Dr Smith is deficient; and > > c) Part C identifies other deficiencies in select paragraphs of the pleading.

• [90] During the hearing, I made oral rulings on the deficiencies (as they were pressed by the defendants) raised in Parts A and C of the third to tenth defendants' complaints. The only remaining complaints to be addressed therefore are those contained in Part B.

The "involvement" of Ms Cronin and Ms Smith in the breach of statutory duties

• [91] The third to tenth defendants apply to strike out paragraphs [111(b)], [111(d)] and [112] of the second amended statement of claim on the basis that the pleading fails to disclose a reasonable cause of action against the sixth defendant, Ms Cronin, or the eight defendant, Ms Smith.
• [92] Before addressing these complaints, it is convenient to recall who these parties are in the context of the plaintiffs' case. Ms Cronin is married to Dr Cronin (the third defendant) and she was the sole director of the seventh defendant, Cronin Subsidiary, which was wholly owned by the tenth defendant, Cronin Holding. Ms Cronin was also one of two directors of Cronin Holding, the other director being Dr Cronin. Dr Cronin and Ms Cronin owned 100% of the shares in Cronin Holdings.
• [93] Ms Smith is married to Dr Smith (the fourth defendant). She was one of two directors of the ninth defendant, Smith Holding, the other director being Dr Cronin. Dr Smith and Ms Smith owned 100% of the shares in Smith Holdings.
• [94] Ms Smith and Ms Cronin were not directors of the first, second or fifth defendants.

The pleaded case of "involvement" against Ms Cronin and Ms Smith

• [95] Paragraph [112] of the second amended statement of claim contains the critical allegation against Ms Cronin and Ms Smith as follows:

"In the premises of the matters pleadings in paragraph 111, Cronin Subsidiary, Smith Holding, Ms Cronin, Ms Smith and Veteran Corp were involved in the contravention of the Statutory Duties within the meaning of section 79 of the Act inasmuch as each of them:

(a) aided, abetted, counselled or procured the contravention;

(b) was in any way, by act or omission, directly or indirectly, knowingly

(c) conspired with others to effect the contravention."

• [96] The "Statutory Duties" are pleaded at paragraph [106] as the duties in ss 181-3 of the Corporations Act. The "contravention of the Statutory Duties" is pleaded at paragraph [108] as Dr Cronin and Dr Smith each authorising and facilitating the Veterans Sale (when VHS Holding sold all shares in AVHS to Veterans Corp, and Veterans Corp bought all shares in AVHS from VHS Holding) in the circumstances pleaded in paragraphs [38] to [80].
• [97] As can be seen, the circumstances of the authorisation and facilitation of the Veterans Sale are pleaded rather broadly. The "involvement" allegations levelled against Ms Cronin and Ms Smith, however, are narrower. At paragraph [111(b)], the plaintiffs allege that Ms Cronin and Ms Smith participated in the breaches of Statutory Duties in that they caused or permitted the seventh and ninth defendants respectively to do the matters pleaded paragraph in [111(a)]. Read together, that amounts to an allegation that Ms Cronin and Ms Smith caused the seventh and ninth defendants to:

a) "become shareholders of Veterans Corp"; > > b) "appoint Dr Cronin and Dr Smith to the Board of Veterans Corp"; > > c) "authorise Veterans Corp to make the Offer to [VHS Holding]"; > > d) "authorise the payment of the Offer price to [VHS Holding] for the transfer of the AVHS shares and control of the Practice"; and > > e) "stand to benefit from the carrying on of the Practice at the Premises".

• [98] At paragraph [111(d)], the plaintiffs allege that both Ms Cronin and Ms Smith had actual knowledge of thirteen separate matters.

Accessorial liability under s 79 of the Corporations Act

• [99] Section 79 of the Corporations Act requires a person alleged to have been involved in a contravention to have been an intentional participant in that contravention. In this case, the alleged contravention is breach of directors' duties in ss 181-3 of the Corporations Act, as pleaded at paragraph [108] of the second amended statement of claim.
• [100] It is well established, and the plaintiffs accept, that to form the necessary intent, a person must have had knowledge of the essential matters which go to make up the contravention in question.[78]
• [101] The third to tenth defendants submitted that the pleading of "involvement" as articulated in paragraph [111(b)] and [111(d)] does not meet the requirements of s 79 in three critical ways, each of which are dealt with in turn below.

• [102] The third to tenth defendants' first complaint is that paragraph [111(b)] does not inform Ms Cronin and Ms Smith as to how they are said to have had knowledge of the essential matters which make up the contravention in question, in circumstances where the matters pleaded in paragraph [111(b)] do not align with the pleaded contravention in paragraph [108]. For example, there is nothing pleaded in support of the bare allegation that Ms Cronin and Ms Smith caused the seventh and ninth defendants to "become shareholders of the [fifth defendant] Veterans Corp"[79] or to "appoint Dr Cronin and Dr Smith to the Board of Veterans Corp"[80] so as to demonstrate that either Ms Cronin or Ms Smith had knowledge of the essential matters which are pleaded as constituting their husbands' contravention of their duties as directors of the first defendant.
• [103] It is in this context that the third to tenth defendants submitted that these paragraphs not only fail to satisfy the requirement in s 79 of the Corporations Act but also the requirements of r 150(1)(k) of the UCPR which expressly provides that knowledge must be specifically pleaded.
• [104] The plaintiff categorised the suggestion that Ms Cronin (as sole director of the seventh defendant) and Ms Smith (as a co-director of the ninth defendant) did not cause or permit their companies to do the things alleged in subparagraph [111(a)] as "remarkable".[81] That might be true, but this submission misconstrues the third to tenth defendants' complaint.
• [105] There are many matters pleaded in paragraphs [111(a)] and [111(b)], but none that demonstrate or link Ms Smith and Ms Cronin to knowledge of the essential matters which are pleaded in paragraph [108] as constituting their husbands' contravention of their duties as directors of the first defendant. The pleading of involvement ought to align with the pleading of the principal contraventions. There must be an act or omission on the part of the alleged secondary participant which shows or connects their act or omission with the contravention. I accept that, as it currently stands, the pleading of involvement in paragraph [111(b)] does not do that.

• [106] The third to tenth defendants' second complaint concerns the allegations in paragraph [111(b)] of the second amended statement of claim which picks up paragraphs [111(a)(iii)] and [111(a)(iv)].
• [107] The third to tenth defendants submitted that this aspect of the pleading is confusing and inconsistent with the allegations in paragraphs [75], [78(b)] and [111(d)]. In those paragraphs, the plaintiffs plead that Dr Cronin and Dr Smith were the "directors and controlling minds" of the fifth defendant, and, as directors of the fifth defendant, caused it to make an offer to the first defendant for all shares in AVHS, and to buy all shares in AVHS from the first defendant. The third to tenth defendants argued that those allegations are inconsistent with the allegations in paragraphs [111(a)(iii)], [111](a)(iv)], and [111(b)] of the second amended statement of claim that Ms Cronin and Ms Smith caused the seventh and ninth defendants to authorise the fifth defendant to make the offer to the first defendant, and also caused the seventh and ninth defendants to authorise the payment of the offer price to the first defendant for the transfer of the AVHS shares.
• [108] I accept the third to tenth defendants' complaints in this regard. While it is a matter for the plaintiffs, it may be that this could be rectified by casting the pleading in the alternative.

• [109] The third complaint of the third to tenth defendants is that paragraph [111(d)] of the second amended statement of claim pleads a bare allegation that Ms Cronin and Ms Smith had "knowledge" of thirteen matters, but fails to plead or particularise any of the material facts forming the basis of the allegation of knowledge, nor the facts from which an inference of knowledge could be made, as required by rr 150(1)(k) and 150(2) of the UCPR. For example, there is a bare plea that Ms Cronin and Ms Smith knew that Dr Singh was removed at an Extraordinary General Meeting but there is no link to another part of the pleading nor any facts pleaded as to how this knowledge might be inferred.[82] Another more obvious example is the allegation that Dr Crown and Dr Smith had access to the Calculation Report by reason of their roles as directors of the first defendant, without a specific plea of the material facts on which it could be found or inferred that Ms Cronin and Ms Smith held the requisite knowledge.[83]
• [110] The plaintiffs described the suggestion that Ms Cronin and Ms Smith would not know the matters pleaded in paragraph [111(d)] as "puzzling", and submitted further that to allege that Ms Cronin and Ms Smith "did not know those matters, given their roles as directors, would be a serious slight against those individuals" and a potential failure to discharge their duties as directors.[84]
• [111] I accept that there might be inferred knowledge of some of the matters pleaded in paragraph [111(d)] from Ms Smith and Ms Cronin's position as directors. But it remains the case that to comply with r 150 of the UCPR, there must be a plea about how each of these matters are said to be known. The requirement to "spell out" the precise manner in which underlying facts are to be deployed in a case was emphasised by Bowskill J (as her Honour then was) in Quinlan v ERM Power Ltd (2021) 303 IR 200:[85]

"It is incumbent on the plaintiff to be specific about the basis upon which he alleges the motive, intent or other state of mind was held by each particular defendant. Contrary to the plaintiffs submissions, what r 150(1)(k) and (2) UCPR require is the 'explicit linking' of facts to inferences; the drawing of an inference is not a matter of law for the court, but a matter of fact; and a party is required to 'spell out in the statement of claim' the precise manner in which underlying facts are to be deployed so as to establish a matter alleged to be available as a matter of inference from those facts. That is the point of r 150(2)."

• [112] I accept Her Honour's statement of the law, from which it follows that paragraph [111(b)] and the references to Ms Cronin and Ms Smith in paragraph [111(d)] of the second amended statement of claim are struck out.
• [113] The third to tenth defendants do not oppose leave to re-plead being granted to the plaintiffs, and I am satisfied that leave ought to be given.

Overview of outcome of third to tenth defendants' application

• [114] At the hearing, the parties were requested to bring in orders to reflect my rulings on Part A and Part C. It was, however, agreed that these orders could wait until I had determined the issues in Part B, which I have now done.

Costs on the third to tenth defendants' application

• [115] The third to tenth defendants have been almost entirely successful on their strike-out application. My preliminary view is that the appropriate order for costs is that the plaintiffs pay the third to tenth defendants' costs of the third to tenth defendants' application filed 24 March 2025. I will, however, allow the parties the opportunity to be heard on this issue if necessary.[86]

• [116] I will hear from the parties on the issue of costs and about the form of orders to be made following my rulings, including directions about the further conduct of the proceeding.

[1] Separate defences have been filed on behalf of the first and second defendants who are represented by the same legal firm and the third to tenth defendants who are represented by another legal firm and counsel.

[2] The first defendant's position is that it will abide by the order of the Court.

[3] Uniform Civil Procedure Rules 1999 (Qld) r 293(2).

[4] DGR Global Ltd v P.T. Limited as trustee of the Armour Energy Security Trust [2024] QSC 90 at [17] (Cooper J); citing Deputy Commissioner of Taxation v Salcedo [2005] QCA 227; [2005] 2 Qd R 232 at 234-7 [11]- [17] (Williams JA), 242 [47] (Atkinson J).

[5] Rich v CGU Insurance Limited [2005] HCA 16; (2005) 79 ALJR 856 at 859 [18] (Gleeson CJ, McHugh and Gummow JJ), quoting Agar v Hyde (2000) 201 CLR 552 at 575-6 [57] (Gaudron, McHugh, Gummow and Hayne JJ).

[6] Agar v Hyde (2000) 201 CLR 552 at 575-6 [57] (Gaudron, McHugh, Gummow and Hayne JJ).

[8] Coley v Nominal Defendant [2003] QCA 181; [2004] 1 Qd R 239 at 246 [23] (McMurdo P, Jerrard JA agreeing); citing General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130 (Barwick CJ); Noble v State of Victoria [1999] QCA 110; [2000] 2 Qd R 154 at 162 [26] (McPherson JA).

[9] See Barclay v Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 at [4]- [12] (Martin CJ), see also Equititrust Limited v Tucker and Others (No 2) [2019] QSC 248 at [15]- [17] (Bowskill J, as her Honour then was), citing Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [13]; Williams & Humbert v W & H Trade Marks (Jersey) Ltd [1986] 1 AC 368 at 435-4 (Lord Templeman).

[10] See Barclay v Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 at [4]- [8] (Martin CJ).

[11] At [18], quoting Imobilari Pty Ltd v Opes Prime Stockbroking Ltd (in liq) [2008] FCA 1920; (2008) 252 ALR 41 at [19] (Finkelstein J); Johnson Tiles Pty Ltd v Esso Australia Ltd (No 2) [2000] FCA 212; (2000) 97 FCR 175 at [4]; Wickstead v Browne [1992] NSWCA 272; (1992) 30 NSWLR 1 at 5-6 (Kirby P, as His Honour then was).

[12] At [18], citing Equititrust Limited v Tucker and Others (No 2) [2019] QSC 248 at [11] (Bowskill J, as Her Honour then was); General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129-30 (Barwick CJ); Theseus Exploration NL v Foyster [1972] HCA 41; (1972) 126 CLR 507 at 514-5 (Barwick CJ); Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91 (Dixon J).

[13] See Uniform Civil Procedure Rules 1999 (Qld) r 171; Australia Pacific LNG Pty Ltd v Santos Toga Pty Ltd [2025] QSC 49 at [8] (Cooper J).

[14] At [16] (White JA, Margaret McMurdo P and Fraser JA agreeing), see also Australia Pacific LNG Pty Ltd v Santos Toga Pty Ltd [2025] QSC 49 at [12] (Cooper J).

[15] William John Fletcher and Katherine Elizabeth Barnet as liquidators of Octaviar Administration Pty Ltd (in liquidation) & Anor v Fortress Credit Corporation (Australia) II Pty Limited & Ors [2013] QSC 104 at [29] (Boddice J).

[16] I acknowledge that some of these facts may be contentious moving forward.

[17] The first plaintiff, McShelly Pty Ltd, has as its two directors Dr Singh and Ms Rebecca McLeod Singh. The first plaintiff is the trustee for the McSingh Family Trust and in this capacity, is the holder of one-third of the units in the Property Trust.

[18] As characterised by the plaintiffs' counsel in oral submissions: Transcript of hearing p 1-17, line 28.

[19] Transcript of hearing p 1-17, lines 40-42.

[24] See Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20; (2019) 268 CLR 524 at 541-2 [26]- [27] (Kiefel CJ, Keane and Edelman JJ), 568 [95]-[96] (Bell, Gageler and Nettle JJ).

[25] Ibid at 541 [26] (Kiefel CJ, Keane and Edelman JJ), citing Re Stansfield DIY Wealth Pty Ltd (In liq) [2014] NSWSC 1484; (2014) 291 FLR 17 at 22 [16] (Brereton J).

[26] Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20; (2019) 268 CLR 524 at 542 [27] (Kiefel CJ, Keane and Edelman JJ).

[27] Ibid at 541 [26] (Kiefel CJ, Keane and Edelman JJ), citing Re Stansfield DIY Wealth Pty Ltd (In liq) [2014] NSWSC 1484; (2014) 291 FLR 17 at 22 [16] (Brereton J).

[28] Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth [2019] HCA 20; (2019) 268 CLR 524 at 585 [157].

[29] Transcript of hearing p 1-16, lines 23-4.

[32] Re Dawning Investments Pty Ltd [2022] VSC 641; (2022) 68 VR 226 at 280 [178].

[36] Outline of submissions of second defendant, filed 22 April 2025 at [10].

[37] Transcript of hearing p 1-16, line 33.

[38] The second defendant's further submissions were filed on 3 June 2025, and the plaintiffs' submissions in reply were filed on 9 June 2025.

[39] See, eg, Kizquari Pty Ltd v Prestoo Pty Ltd (1993) 10 ACSR 606 at 612 (Young J); Trust Company Ltd v Noosa Venture 1 Pty Ltd [2010] NSWSC 1334; (2010) 80 ACSR 485 at 514-6 [101]- [105] (Windeyer AJ).

[40] David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 108 at [106]- [108] (Leeming JA, Stern JA and Griffiths AJA agreeing), citing Vigliaroni v CPS Investment Holdings Pty Ltd [2009] VSC 428; (2009) 74 ACSR 282 at 304-3 [63] (Davies J), approved in Tzavaras v Tzavaras & Sons Pty Ltd [2023] NSWCA 168 at [62] (Gleeson and Adamson JJA, Griffiths AJA), see also Melrob Investments Pty Ltd v Blong Ume Nominees Pty Ltd (2022) 141 SASR 1 at 24-31 [98]-[127] (Bleby JA, Lovell and David JJA agreeing).

[41] See David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 108 at [6] (Leeming JA, Stern JA and Griffiths AJA agreeing).

[52] Ibid, endorsing the comments of Black J in Re Munja Bakehouse Pty Ltd [2024] NSWSC 6; (2024) 384 FLR 176 at 196 [58], made with reference to Melrob Investments Pty Ltd v Blong Ume Nominees Pty Ltd (2022) 141 SASR 1 at 29 [113] (Bleby JA, Lovell and David JJA agreeing).

[53] David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 108 at [110]- [111] (Leeming JA, Stern JA and Griffiths AJA agreeing).

[54] Ibid at [111], quoting Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 at 334 [72] (French CJ), 360-61 [178] (Gummow, Hayne, Heydon and Kiefel JJ).

[55] David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 108 at [109], quoting Melrob Investments Pty Ltd v Blong Ume Nominees Pty Ltd (2022) 141 SASR 1 at 29 [114] (Bleby JA, Lovell and David JJA agreeing).

[56] Which is in materially identical terms to the Civil Proceedings Act 2011 (Qld) s 12.

[57] See David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 108 at [186]- [254] (Leeming JA, Stern JA and Griffiths AJA agreeing).

[63] See ibid at [123]. This was relevant as only shareholders have standing under s 234 of the Corporations Act to seek relief for oppression under s 233, albeit it is sufficient under s 232(e) if the shareholder has suffered oppression "in any other capacity."

[64] David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 108 at [123] (Leeming JA, Stern JA and Griffiths AJA agreeing).

[67] Affidavit of CA Petersen filed 21 March 2025, Exhibit CAP-3 at pp 72-7.

[68] Melrob Investments Pty Ltdv Blong Ume Nominees Pty Ltd (2022) 141 SASR 1 at [113] (Bleby JA, Lovell and David JJA agreeing).

[69] See Transcript of hearing p 1-12, lines 14-20. The cases relied upon by the plaintiffs included In the matter of Crow Inn Pty Ltd [2020] NSWSC 1749 (Rees J); Re Munja Bakehouse Pty Ltd [2024] NSWSC 6; (2024) 384 FLR 176.

[72] I note, however, that the appellants did argue that the primary judge erred by failing to find that a receiver could be appointed under the Court's inherent jurisdiction to wind up trusts where there had been an irretrievable breakdown in mutual trust and confidence between unit holders who were quasi-partners. This quasi-partnership was said to arise from the close association between the unit holders: see, eg, David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 108 at [190]- [191] (Leeming JA, Stern JA and Griffiths AJA agreeing).

[73] David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 108 at [38] (Leeming JA, Stern JA and Griffiths AJA agreeing).

[74] See Mirvac Queensland Pty Ltd v Horne [2009] QSC 269 at [23] (Applegarth J).

[75] See Melrob Investments Pty Ltd v Blong Ume Nominees Pty Ltd (2022) 141 SASR 1 at 28-9 [110]-[111] (Bleby JA, Lovell and David JJA agreeing).

[76] Uniform Civil Procedure Rules 1999 (Qld) r 681(1).

[77] Subsequently after hearing oral argument on behalf of the parties on 22 July 2025, the costs orders reflected on the cover page of this judgment were made.

[78] Yorke v Lucas (1985) 158 CLR 661 at 667, 670 (Mason ACJ, as His Honour then was, Wilson, Deane and Dawson JJ).

[79] See second amended statement of claim filed 17 March 2025 at [111(a)(i)], [111(b)].

[80] See ibid at [111(a)(ii)], [111(b)].

[81] See plaintiffs' outline of submissions opposing the third to tenth defendants' strike out application, filed 22 April 2025 at [48].

[82] See second amended statement of claim filed 17 March 2025 at [111(d)(iii)].

[84] Plaintiffs' outline of submissions opposing the third tenth defendants strike out application, filed 22 April 2025 at [49].

[86] Subsequently after hearing oral argument on behalf of the parties on 22 July 2025, the costs orders reflected on the cover page of this judgment were made.