Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd

1. The application was filed prior to receiving any advice from a Mr Joseph Box, which the Applicant seeks leave to brief and retain to provide the further expert report. This is in a context where previous orders have been for the parties to brief and rely on a joint expert, Mr John McGuiness (Joint Expert). As the argument and evidence evolved on the hearing of this application, it became apparent that any expert report from Mr Box would not be available until the end of February 2026. This would affect the relief sought in paragraph 1 of the application, and the Applicant must necessarily seek to file any further expert report by 27 February 2026. This would also impact on the proposed dates of any adjourned trial, as sought in paragraph 5 of the application. The time which flows from this, by way of further delay is important.
2. Further, all parties accepted that given the history of this matter, it was no longer preferable to order that the parties attend another mediation. An earlier mediation has already taken place prior to the hearing of the Separate Question Judgment on 17 June 2024, before a Judicial Registrar. The parties are all well represented, and if they so choose to organise and attend another mediation then they can do so, but the relief as sought in paragraph 4 of the application was no longer sought.
3. Paragraphs 2 and 3 of the application seek to vacate previous orders setting the matter for trial, mediation, and providing relevant trial directions.
4. In short, the Applicant is not satisfied with the Joint Expert report. The Applicant submits that this is on the basis of an error, or at least a real possibility of error, that there are methodological issues with the underlying basis of the Joint Expert report, not simply on the basis that the Joint Expert report has provided a valuation, at the various dates, of zero. To support the position the Applicant advances, it has obtained a short report by Mr Box dated 18 November 2025 (Box Report).
5. An applicant/plaintiff is no longer to be afforded every single opportunity to advance their case. The requirements of s 37M of the Federal Court of Australia Act 1976 (Cth) (the Act) require consideration of matters to facilitate the just disposition of disputes according to law as quickly, inexpensively, and efficiently as possible.
6. It is important, as was emphasised by Justice Edelman, then of this Court, in Lowden v Elliott Harvey Securities Ltd (No 3) [2016] FCA 869 at [11], that there is no doubt that considerations of speed, expense, and efficiency are extremely important in the resolution of disputes, but the resolution to which s 37M refers is a "just" disposition.
7. For the following reasons, the application will be allowed, and I will hear from the parties at the end of these reasons as to the precise form of orders.

1. Following the Separate Question Judgment, the parties amended their concise statements. The concise statements are the relevant pleadings as defined in the Federal Court Rules 2011 (Cth) (FCR): see also Norden (No 3) at [17]. On 20 November 2024, Needham J ordered the Third Respondent to cease to be part of these proceedings. Relevantly, the Sixth Respondent was also joined to the proceedings on that date. On 27 November 2024, the Applicant filed an amended originating process, which also sought relief against the Sixth Respondent. Also on 27 November 2024, the Applicant filed an amended concise statement.
2. On 19 March 2025, the Sixth Respondent relevantly filed a consent statement in response, and the Applicant filed a concise statement in reply on 31 March 2025. This is to be regarded as the relevant date of the close of the pleadings.
3. Many steps have occurred in these proceedings. However, in the context of this application, the following has occurred. This is not meant to be an exhaustive description of every step, hearing, matter or issue which has occurred. On 7 May 2025, the parties were ordered to appoint and rely on a single common valuation expert, being the Joint Expert. By those 7 May Orders, that report was to be provided by 4 August 2025. The 7 May Orders also listed the matter for trial, commencing on 15 September 2025. On 18 June 2025, the parties agreed to appoint the Joint Expert. On 20 June 2025, the September trial was vacated. The parties were ordered to participate in a mediation before a Judicial Registrar, which ultimately became a private mediation, in the week of 15 September 2025. The trial was again set down to commence on 8 December 2025. The 7 May Orders also required, by 28 May 2025, that the First to Fifth Respondents were to provide the Applicant and the Joint Expert with certain documents.
4. On 27 August 2025, the Applicant filed an interlocutory application seeking, amongst other things, direct access to the financial management system used by certain identified companies, and, further, orders in relation to specific types of documents within certain categories of documents. That document and access application was heard on 5 and 15 September 2025. On 17 September 2025, I delivered ex tempore reasons for judgment: Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia IP Holdings Pty Ltd (No 6) [2025] FCA 1212, on that application. For the most part, the relief sought was obtained, and the Applicant was granted direct access to the financial management program, and further orders were made regarding the provision of documents. The parties were heard as to the appropriate form of orders, and the ultimate orders were made on 19 September 2025. Pursuant to those orders, further documents were to be provided to the Joint Expert on 26 September 2025.
5. On 10 November 2025, the parties were provided with a copy of the Joint Expert report. On 11 November 2025, the Applicant cancelled the then-scheduled mediation. On 12 November 2025, the Applicant filed this interlocutory application to seek leave to rely on a new expert report to be prepared by Mr Box, and with the consequential vacation of the December trial dates. On 14 November 2025, the interlocutory application was listed for case management, and the hearing was listed for 24 November 2025. That was the first available date where all parties could appear on the application. Given the relief that was sought, there was obviously some urgency to hearing the application.

1. There was no dispute as to the appropriate legal principles to be applied. The overarching purpose of civil practice and procedure provisions from Pt VB of the Act, including s 37M, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Section 37M(2) provides that the generality of s 37M(1) is not limited, but includes the objectives from subs (2)(a) to (e). It will involve a balancing of the competing interests in the particular circumstances of a case. As outlined in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [102] (Gummow, Hayne, Crennan, Kiefel and Bell JJ), not every application for amendment should be refused because it involves the waste of some costs and some degree of delay. Much will depend on the position that the litigation has reached; however, delay and costs are to be regarded as important considerations.
2. Further, from Aon, Gummow, Hayne, Crennan, Kiefel and Bell JJ referred to what could be summarised as the following four matters which should be taken into account when a discretion is to be exercised regarding an adjournment:

(1) an explanation for the adjournment (Aon at [108]);

(2) the detriment to the other parties (Aon at [114]);

(3) the detriment to other litigants (Aon at [114]); and

(4) the parties' choices to date in the litigation as to the claims to be made and how they were framed (Aon at [112]).

1. To this can also be added the observations of French CJ, Aon at [5]:
   1. In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. The discretion of the primary judge miscarried.
2. That is, costs are not the "panacea" they once were: see Aon at [18] and [99] to [101]; see also ANZ v Mio Amico Pty Ltd [2013] NSWSC 716 at [59] (Davies J).
3. Finally then, regard should also be had to the observations in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 at [57] to [58] (French CJ, Kiefel, Bell, Gageler and Keane JJ), in relation to an equivalent provision of the Civil Procedure Act 2005 (NSW):
   1. That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice.

The orders which should have been made

1. In addition to the general powers it gives to courts, the CPA also provides some more specific powers. The relevant power here is to be found in s 64 of the CPA, entitled "Amendment of documents generally", which appears in Div 3 of Pt 6 (Other powers of court). Section 64(1)(a) empowers the court, at any stage in the proceedings, to order that any document in the proceedings be amended. Section 64(2) then provides that, subject to s 58 (the dictates of justice):

"all necessary amendments are to be made for the purpose of determining the real questions ... correcting any defect or error in the proceedings and avoiding multiplicity of proceedings."

The direction which the Supreme Court should promptly have made in this case was to permit Norton Rose to amend the Lists of Documents, together with consequential orders for the return of the disks to enable the privileged documents to be deleted. Such a direction and orders would have obviated the need to resort to the more complex questions concerning the grant of relief in the equitable jurisdiction. It would have served to defuse the dispute and dissuaded the Armstrong parties from alleging waiver. It accords with the overriding purpose and the dictates of justice.

1. With these principles firmly in mind, I will consider the arguments raised by the Respondents.

1. The Respondents opposed the application for the Applicant to be able to appoint another expert and the consequential vacation of the trial commencing on 8 December. They did so on the following 10 bases, some of which are related.
2. First, the Applicant made a deliberate decision and agreed to the briefing of the Joint Expert. Effectively, the Applicant is simply "expert shopping" at a late stage of litigation. The Applicant should not be permitted to depart from this course now. There was always an inherent risk for any of the parties that the Joint Expert report might be unfavourable to any of them. That it has manifested, so the Respondents submitted, was no reason to permit the Applicant to depart from this course.
3. Second, and related to the first, that the way forward applying the informed decision of the parties to agree to the appointment of the Joint Expert, should be similar to the position which would result if the appointed expert had been a Court appointed expert, which is to allow all parties leave to cross-examine the Joint Expert. This is on the basis that the Applicant can seek concessions and further evidence by that cross-examination.
4. The First to Fifth Respondents submitted that the evidence of Mr Box was only that if he was given an opportunity to provide a report, he might express a different opinion to that of the Joint Expert. The effect of this submission was that it was too uncertain to support the Applicant's application.
5. It was accepted by all of the parties that it was not appropriate at this stage of the proceeding to delve too deeply into any of the expert materials or opinions or to form any view of that evidence. That evidence has not been tested by cross-examination, nor can it be seen in the context of the evidence as a whole, including the final submissions after trial. As such, the following observations are simply high-level observations for the purposes of this interlocutory application, and not any final findings of fact.
6. The Box Report can be described as an overview of the work done by the Joint Expert. Before setting out some of the observations, I should expressly observe that Mr Box was only engaged on 11 November 2025 and only provided the Box Report on 18 November 2025. This is relevant because the Joint Expert took five months to produce a lengthy report. The obvious difference in time available to each of those experts to produce the reports they have is apparent.
7. By way of summary, Mr Box concludes at [17] to [18]:

Major Areas of Agreement

1. From my review of the Report prepared by Mr McGuiness, I substantially agree with the conclusions reached in relation to value at 30 June 2023, 1 August 2023 and 21 December 2023.

18. Where:

• the financial performance of the business at these dates as detailed in the McGuiness Report;
• the concerns in relation to solvency that appeared to exist,
• those concerns being justifiable;
• there being no indications of an improvement of financial performance at the valuation dates;
• there being no plan or strategy to improve that financial performance.

I consider it would be unlikely that the Group would have a value at those dates.

Major Areas of Concern and Disagreement

1. I have a number of concerns with Mr McGuiness' Report and disagree with the value conclusion at 30 June 2025 and 30 September 2025. My concerns are:

• The lack of financial analysis
• The lack of industry analysis and comparable company analysis
• The conclusion as to a significant loss of cash flow in FY25 and Sept 25
• The Valuation Premise and Valuation Approach
• The lack of application of an Income Based Approach to Value

1. That is, it appears that the Joint Expert's approach to conducting the valuations on the 2025 dates has been conducted on a winding-up basis rather than on a "going concern" basis.
2. It does not appear, and I was not taken to one in the course of argument, that the Joint Expert has provided any alternative analysis, for example, on a multiples of EBITDA, or on an income-based approach to the valuation. That is, if ultimately at trial the Court finds that the appropriate valuation is one not to be done on a winding up basis (but say, on an income-based approach), it may be that there is no evidence from the Joint Expert on which to arrive at an appropriate conclusion as to the value of the shares. That is, the shares by which, in the Separate Question Judgment, were determined to not have been validly transferred on or about 27 June 2023 (Shares).
3. If the Joint Expert's report is not accepted, then the Court is potentially left in a position of not having any evidence as to the valuation of the Shares. This could lead to the trial being split. Of course, it goes without saying that it is not possible to know at this stage whether the Joint Expert evidence will be accepted. The Joint Expert was agreed to by all parties as being an appropriately qualified expert to provide the relevant report.
4. The Sixth Respondent submitted that such evidence, which the Court may need if the basis of the report was not accepted, could be obtained by way of cross-examination of the Joint Expert during the course of the trial. That is, by putting various propositions to the Joint Expert in the witness box, seeking, potentially, concessions or acceptance of various propositions, the Applicant may be able to obtain the necessary evidence, or at least some evidence, to support a submission in relation to a different basis for evaluation at the end of the trial.
5. Further, the Sixth Respondent submitted that the Applicant could retain what was referred to as a "dirty expert" to assist and formulate the cross-examination and propositions that could be put to the Joint Expert. In relation to the concept of a "dirty expert", I gratefully adopt the description provided by Murphy J in Gall v Domino's Pizza Enterprises [2019] FCA 1799 at [41], as follows:

[41] It is appropriate to include in this category both independent experts who are engaged for the purpose of providing a report and testifying in the proceeding, and also independent experts engaged as consultant or so-called "dirty" experts, engaged to advise and assist the applicant's lawyers on technical matters. In relation to the latter, the applicant's counsel said that it might be decided to provide discoverable documents to a consultant academic industrial expert to obtain advice on the transmission of business and the application of awards and industrial agreements. Domino's accepted that consultant experts should be treated the same as testifying experts for the purposes of any confidentiality regime.

1. Although Murphy J made that observation in the context of considering a confidentiality regime for documents, his Honour's description of the "dirty expert" is apt.
2. The difficulty in relation to both of these submissions advanced by the Sixth Respondent is that the Joint Expert has taken some five months to prepare his report and therefore it may be unrealistic to expect that a "dirty expert" now would be in a position to be able to properly advise the Applicant of the matters which should be put to the Joint Expert by way of cross-examination. That is, by way of cross-examination, alternative scenarios or propositions between now (or even 10 November 2025) and when the trial was due to commence (8 December 2025). Furthermore, given the time taken to prepare the Joint Expert report, I am not confident that the Joint Expert, if presented with different scenarios or propositions in cross-examination, would be able to properly consider those and form any view that may be of assistance, in the witness box, during the trial. Further, in fairness to all parties, such expert evidence should not be obtained for the first time in cross-examination, that is, if it even can be obtained in cross-examination.
3. Of course, in making that observation, I also recognise that the Joint Expert may be able to properly respond. It is unknown. However, it would not be unreasonable for the Joint Expert to require time to consider such alternatives or scenarios. This is why, when experts are ordered to prepare a joint report, they are given time to do so. Such a process is usually not done during the trial. That process, by giving the experts time to consider the others experts' opinions and coming together to provide a joint report, provides the most assistance to the Court and to the parties in advancing their respective clients' position in the trial. That is, to have the considered positions of the experts and the parties prior to trial. Then to have such evidence tested by way of cross-examination. Further, what is implicit in the Sixth Respondent's submission is that the Joint Expert report does not contain any further or alternative evidence upon which the Court could rely as to the valuation. This is so because, if the Joint Expert evidence is not accepted because of the methodological issues identified, then the only other way to obtain such evidence, other than by way of the applicant's proposal, is to obtain such evidence by cross-examination. In this context, this is an unsatisfactory way to proceed.
4. The Sixth Respondent did accept that conducting the trial in this way - by putting scenarios, alternatives or such matters to the Joint Expert - may take longer than the currently allocated hearing dates. Of course, this creates difficulties and may also result in a spilt trial.
5. The First to Fifth Respondents also accepted that such a course may result in evidence being given "on-the-fly" - that is, on the run during the trial - and that it may be a safer option, or it may see a split trial in any event.
6. At first blush, there is some attraction to the submission that the Applicant is simply expert shopping. It was probably unforeseen that the valuation would be zero at the dates inquired. However, if that was the only matter that was raised, the application which was advanced by the Applicant may have had very limited prospects of success. Simply referring to the outcome of the Joint Expert report or the quantum of that report was likely to result in an acceptance of the submission that the Applicant was expert shopping.
7. Before considering that issue further, it is appropriate to outline the alternative dates for the valuation. I do so because of the observations of Mr Box set out earlier in these reasons:

(1) 1 July 2023, being the time of the wrongful transfer of shares;

(2) 1 August 2023, being the time for when the Sixth Respondent made a first payment or investment;

(3) 21 December 2023, being the commencement of the proceedings; and then

(4) the 2025 dates, being the date of trial.

1. Of course, the relevant date of the valuation in oppression proceedings is a matter for the Court, as was stated by Gordon J, then of this Court, in Harding Investments Pty Ltd v PMP Shareholding Pty Ltd (No 3) (2011) 285 ALR 297; [2011] FCA 1370 at [7] and [12], with reference to, amongst other decisions, Campbell v Backoffice (2009) 238 CLR 304; [2009] HCA 25 at [178] (Gummow, Hayne, Heydon and Kiefel JJ):

Valuation of Lotic

[7] As was stated in Harding Investments (No 2) at [55]:

[55] ...The Corporations Act does not identify the basis upon which the price for shares is to be fixed if an order for compulsory purchase is made. As the High Court said in Campbell v Backoffıce at [178]:

"Although s 233(1)(d) gives the court power to make an order for the purchase of shares by a member, the Corporations Act is silent about the terms on which such A sale may be ordered. In particular, the Corporations Act does not identify the basis upon which the price for the shares is to be fixed if an order for compulsory purchase is made. Under earlier forms of the oppression provisions of companies legislation, orders were made for the compulsory sale of shares by one member to another at prices to be fixed according to various criteria. In some cases [footnote omitted] the price has been fixed at the value the shares would have had at the commencement of the proceedings but for the effect of the oppressive conduct. In other cases [footnote omitted] a date other than the date of commencement of the proceedings has been fixed. Again, there is no reason to give the present oppression provisions some narrower construction. In particular, the power given to the court by s 233(1)(d) should not be hedged about by implied limitations [footnote omitted] ..."

[12] The question of what date should be used to value Lotic's shares is a matter for the court. It is the responsibility of the court to fix a price for the shares that represents a fair value in all the circumstances of the case: Dynasty Pty Ltd v Coombs [1995] FCA 1447; (1995) 59 FCR 122 at 143; 138 ALR 64 at 85 (Dynasty). In Dynasty, the court stated at FCR 143-[1899] ArgusLawRp 32; 5; ALR 85-6 that:

... It was the responsibility of the learned trial judge to fix a price for the shares that represented a fair value in all the circumstances of the case. [The trial judge] approached that task by referring to the remarks of Lord Denning in Scottish Co-operative Wholesale Society v Meyer at 369. The relevant passage from his Honour's reasons for judgment reads as follows:

"To arrive at a fair value to be paid now by valuing the shareholding at some date in the past and by adding to that value an allowance for the fact that the shareholder has Been kept out of the enjoyment of that value in the meantime, to borrow the words of Lord Denning, is to give to the oppressed shareholder 'what is in effect money compensation for the injury done to [the shareholder]: but I see no objection to this. The section gives a large discretion to the court and it is well exercised in making an oppressor make compensation to those who have suffered at his hands'."

The appellants complained that Lord Denning alone had addressed this notion of compensation; they said that the correct approach was that of Lord Keith of Avonholm who had said (at 364):

"Lord Sorn [in the court below] has, in my opinion, approached this matter on a correct principle, by considering what would have been the value of the shares at the commencement of the proceedings had it not been for the effect of the oppressive conduct of which complaint was made."

While Lord Denning speaks of "a fair value to be paid now" and Lord Keith makes reference to the value of the shares at the commencement of the proceedings, Lord Denning essentially is describing a methodology by which the value of the shares might be assessed. The date at which shares are to be valued in oppression cases varies having regard to all relevant circumstances. The remarks of Nourse J in Re London School of Electronics Ltd [1986] Ch 211 at 224 are apposite:

"If there were such a thing as a general rule, I myself would think that the date of the order or the actual valuation would be more appropriate than the date of the presentation of the petition or the unfair prejudice. Prima facie an interest in a going concern ought to be valued at the date on which it is ordered to be purchased. But whatever the general rule might be it seems very probable that the overriding requirement that the valuation should be fair on the facts of the particular case would, by exceptions, reduce it to no rule at all. That that is so is already suggested by such authorities as there are on this question. In Scottish Co-operative Wholesale Society Ltd v Meyer the shares were ordered to be purchased at the value which they would have had at the date of the petition if there had been no oppression. In Re Jermyn Street Turkish Baths Ltd [1970] 1 WLR 1042; [1971] 3 All ER 184 the order of Pennycuick J discloses that the assets, undertaking and goodwill of the company were to be valued on an inquiry as at the date of the master's certificate. In Re A Company (No 002567 of 1982) [1983] 1 WLR 927; 2 All ER 854 Vinelott J held that the shares of a petitioner who had unreasonably rejected previous fair offers to purchase them ought to be valued at the date of the valuation and not at the date when he had been excluded from participation in the affairs of the company. However, Vinelott J said that he could conceive of many cases where, in an application under s 75, fairness would require that the valuation should relate back to an earlier date such as, in that case, the exclusion of the petitioner: see Re A Company at 937D-E; 862-863. That observation was approved by Mervyn Davies J in _Re OC (Transport) Services Lt_d [1984] BCLC 251 at 258, where he held that the facts required the valuation to be made at a date earlier than the date of the petition, in fact at the date when the unfair prejudice had occurred. Finally, in Re Bird Precision Bellows Ltd [1984] Ch 419; [1984] 3 All ER 444; the valuation was made as at the date of a consent order that the shares should be purchased at such price as the court should thereafter determine. That case is not of any real assistance on this point, because the date was no doubt implicit in the terms of the consent order."

1. All the parties quite properly accepted that the date for the valuation was a matter for the Court. Obviously, the parties will assist the Court by making submissions in relation to the appropriate date for that valuation. However, ultimately it is for the Court to determine in all of the circumstances: see also Smith Martis Cork & Rajan Pty Ltd v Benjamin Corporation Pty Ltd (2004) 207 ALR 136; [2004] FCAFC 153 at [70] to [78] (Wilcox, Marshall and Jacobson JJ).
2. The deliberate choice about how the Applicant was proceeding to advance its case is a relevant matter to consider. However, the Applicant submits that it could not foresee that the Joint Expert would make an error as to the methodology. I cannot accept that submission that the Joint Expert did make such an error. That would involve a proper consideration of the Joint Expert report, which cannot be done on this interlocutory application. However, in light of the evidence of Mr Box, it is at least possible that there is an error, and I accept that the Applicant could not foresee that possibility. On becoming aware of this possibility, the Applicant has acted quickly. The Joint Expert report was received on 10 November, and this application was filed on 12 November. The Respondents did not suggest that there had been any delay in this regard by the Applicant.
3. In all of these circumstances, where there is a possibility that the trial may be longer than initially anticipated due to more extensive cross-examination; where the trial may be split because of the evidence that is or is not available at the time of the trial, and that the Court will be assisted by allowing further evidence to be obtained so that, at the trial, the alternatives can be properly tested, explored and submissions made on all of the evidence, are all relevant and weigh heavily in favour of exercising of the discretion.
4. Third, it was submitted that the trial should not be adjourned, applying the relevant principles from Aon. Some of these matters, as have been outlined in the principles above, overlap with other points which are considered below. Insofar as that occurs, I will deal with those matters under the separate issues. In terms of what was described as the first issue, being an explanation for the adjournment, this is not a case of seeking to amend the Applicant's case. However, it is one which seeks, as a consequence of seeking further expert evidence, that the trial be adjourned. The explanation is that the Applicant could not foresee the error in methodology by the Joint Expert, or more properly described as a possible error in relation to that methodology. The possibility of that error, as I have already indicated, can be accepted.
5. The Sixth Respondent submitted to the Joint Expert in relation to the 2025 valuations that a going concern methodology should be applied. Of course, that is not determinative of whether or not that is the appropriate basis upon which the valuation should have been conducted, but it is relevant to consider in the context of this application. It is incumbent upon the Joint Expert to form his own view, and there may well be a proper basis for the Joint Expert arriving at the opinion. As I have already indicated, I am not in a position to - nor should I - make any final findings about that on this interlocutory application. All that can be observed is that this approach was not taken by the Joint Expert, and if found at trial to be appropriate in the absence of the suggested cross-examination, which, as I have already indicated, I have concerns about, the Court may be left in a position where it does not have evidence in relation to the valuation of the Shares. That is, in relation to the Applicant's explanation for the position it has taken, I accept that the possibility was unforeseen.
6. Fourth, that this would be, if granted, the second time that the matter has had trial dates vacated, was submitted to be relevant in the circumstances. The Respondents accepted, quite properly, that the first vacation of trial dates was not a matter which can be attributed solely to the Applicant. It was a combination of factors, including that the Joint Expert report was taking longer than anticipated. As a fact, it can be accepted that this is the second time that the trial is to be adjourned. Of course, that is not to be encouraged or favoured. However, there are particular circumstances of this case which have meant that this matter is in the position it currently is in. There was the delay of the Joint Expert being able to provide his report. There was the delay in the provision of documents, including to the Joint Expert, which I have outlined above, by way of the document and access application.
7. The first trial was set down for 15 September 2025, and it was adjourned until 8 December 2025, a period of only three months later. It is relevant that the first adjournment is not to be attributed to any of the parties and that the adjournment was relevantly short. The matter would not have been ready for hearing on 15 September 2025.
8. The Joint Expert report was received on 10 November 2025. Although it is relevant that this is the second time that the matter is to be adjourned, as the first adjournment is not attributable to any of the parties, including the Applicant, and was relatively short, I do not regard it as weighing heavily against the Applicant.
9. Fifth, it was submitted that if the Applicant is permitted to brief an additional expert with the consequential adjournment of the trial, that will result in real prejudice to the Respondents, sounding primarily in costs. Furthermore, that it is in circumstances where the Applicant is unlikely to be able to meet a costs order.
10. Related to the fifth is the sixth point; that is, it was submitted that the "price to be paid" for this proposed course by the Applicant was at least to pay the costs thrown away. These costs should be ordered now and fixed and payable forthwith. The ordering of these costs, it was submitted, should not be dealt with later, not even on 8 December, being the date of the commencement of trial, such that those hearing dates are still usefully occupied by these proceedings.
11. Those costs could then be quantified (on a lump-sum basis), fixed and payable forthwith at another hearing on 8 December 2025. However, it was submitted that such costs thrown away or wasted should be ordered now. It was submitted that the absence of an offer of costs thrown away or wasted by the Applicant should weigh against the granting of its application.
12. It is clear that costs are not the "panacea" that they once were. Costs are not to be regarded as the "panacea that heals every sore in litigation": Aon at [18].
13. The Applicant properly accepted that there will be further costs if its proposed course of retaining another expert is allowed and the trial adjourned. The Sixth Respondent identified in its written submissions at least the following costs:

(a) the costs thrown away by the aborted mediation;

(b) the costs thrown away by this application;

(c) the costs thrown away by the adjournment of the trial;

(d) the additional costs of the proposed new expert;

(e) the costs proposed by the applicant to be borne by the respondent only in responding to the proposed new expert; and

(f) the costs of any conclave between the experts.

1. The First to Fifth Respondents advanced similar submissions that the resulting prejudice was primarily in costs.
2. This process as proposed and advanced by the Applicant will undoubtedly result in additional costs. Given the estimate of costs that has been provided by the parties, it is likely that these costs will be significant. This is important. There are some orders for security for costs which have already been made in these proceedings. There are also the outstanding applications for further security by the Sixth Respondent and the First to Fifth Respondents. At the second security for costs application, being in Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia IP Holdings Pty Ltd (No 4) [2025] FCA 662, at [23], I stated:

[23] Norden, at the commencement of argument, accepted that it does not have the means to pay a costs order.

1. There is some evidence by the Applicant that further funds or funding is being obtained. This needs to be properly considered at the further security for costs applications. Furthermore, the Respondents can seek to protect themselves by consideration of Pt 25 of the FCR; however, such protection may offer little comfort to the Respondents if the Applicant itself is unable to pay any adverse costs amount at the end of the trial.
2. There are also costs orders in the Applicant's favour. These have not been quantified or finalised such that any amounts are not currently due or payable; however, they are relevant in the context of considering this issue of costs in the proceedings.
3. It is likely that there are some costs thrown away; however, in the time available for this hearing, given that there was a need to hear this application quickly, I have not received fulsome submissions on this issue. This observation is not meant by way of criticism. It is simply a result of bringing on the substantive issue quickly. It may be the position that some of the costs at this stage appear to be "thrown away" or "wasted", but ultimately, that may depend on the result at trial. However, some costs, for example, the cancelled mediation, appear to have been wasted. The Applicant accepted that there might be some preparation for trial at this stage, which can be properly regarded as wasted.
4. In this context, the Applicant submitted that it was not at fault, for the course that was now being proposed and that should be taken into account in relation to any order for costs which may result at this stage. The Applicant accepted that by way of the proposed course, it was seeking an indulgence. In Riviera Holdings Pty Ltd v Fingal Glen Pty Ltd (in liq) (No 3) (2013) 120 SASR 515; [2013] SASC 107 at [18], Nicholson J outlined the relevant principles (from previous decisions), as follows:

[18] ...it is usual for a party seeking an indulgence to pay the costs of the application: Golski v Kirk [1987] FCA 200; (1987) 14 FCR 143 at 157; Re Australasian Memory Pty Ltd; Brien v Australasian Memory Pty Ltd [2000] NSWSC 333; (2000) 34 ACSR 158 at 160. But, it is not an invariable rule...The usual principle, that the person seeking the indulgence pays the costs, might be inappropriate in the circumstances of a particular case.

1. As observed, the usual principle is that the person seeking the indulgence pays the costs might be inappropriate in the circumstances of a particular case.
2. Given all of these issues as to costs and that such considerations on the questions of costs being the exercise of a judicial discretion, the preferable position is to afford all parties an opportunity to be heard and to consider such costs at a separate time, either together with the security for costs applications or shortly thereafter. As such, I propose at this point to reserve the question of costs, and I will hear further from the parties.
3. Costs are an important consideration; however, just as they are not the "panacea" they once were, they are also not to dictate what is in the interests of justice. Costs are a factor to be considered, but not the only or even the primary consideration. That they are important does not elevate them to such a consideration. It remains the just determination of the proceedings before the Court, which is the primary consideration.
4. Seventh, if a mediation is still going to be required, it was submitted that that will further delay the proceedings. As I have observed earlier, this matter can be dealt with shortly, as by the end of the submissions at the hearing, all of the parties agreed that the Court should no longer order an attendance at a mediation. The parties are able to avail themselves of undertaking such a mediation, should they so wish, but as such, provisioning such a step will not result in further delay.
5. Eighth, a vacation of these hearing dates, it is submitted, will result in a waste of court resources and undermine public confidence. That is contrary to the public interest and should weigh against the orders sought by the Applicant.
6. The Court is mindful of the use of court resources. Some of the hearing time that was allocated to the trial will be usefully used for the security for costs applications by each of the First to Fifth Respondents and the Sixth Respondent. It has not yet been possible to allocate hearing times for these applications, despite them being filed on 3 September 2025 and 26 August 2025, respectively.
7. Further, subject to hearing from the parties, I would propose a further hearing on the issues of costs to hear any application any party may wish to make regarding costs. That is, applications may wish to be made on costs thrown away because of this application or otherwise. I do not mean to constrain what the parties may seek to be heard about in that respect, but I also do not seek to force the parties to bring another application, which will invariably increase the costs further. I will hear from the parties about that, as the Court does have hearing time available, and it can be utilised in this way.
8. Furthermore, other litigants will have the benefit of the Court having additional judgment writing time, which would not have been available had this trial been heard. That is not to prefer one judicial task over another. It is simply to recognise that the absence of this time will not see judicial resources wasted; it will simply see them directed to other tasks. In terms of public confidence, it can reasonably be expected that the public would not view this consequential adjournment as a waste of Court resources but as a reallocation of Court resources.
9. In the Federal Court, hearing time is not divided into criminal sittings or civil sittings. The docket system allows each judge the flexibility to allocate, apart from the appeal sittings, hearing dates for case management hearings, interlocutory hearings and trials as they see fit. This also includes allocation of judgment writing time, which is usually allocated in a judge's calendar. In these circumstances, no other party could be prejudiced by this adjournment.
10. Ninth, all of the Respondents will suffer, they submit, the inevitable prejudice of delay. This can be accepted. McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 at 552, although in the context and with reference to limitation periods, made the following observations which are relevant in relation to an overarching principle of the prejudice of delay:

The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.

(footnote references omitted)

1. All parties, including the Applicant, are affected by the delay. However, it is one factor which must be considered in the circumstances of this oppression proceedings, where the Applicant has the determination in its favour of the Separate Question Judgment and where the close of pleadings has only occurred relatively recently, in March of 2025. The interests of justice are better served by having a single trial, not a split trial, and not one where parties are potentially caught by surprise by evidence being advanced for the first time in cross-examination. A trial where all of the remaining issues can be heard and determined will best facilitate the just resolution of this dispute.
2. Tenth, the Sixth Respondent submits that he will suffer specific prejudice. That specific prejudice was said to be as follows:

(a) it may deprive the sixth respondent from being able to capitalise on his investment in money and time in attempting to resurrect the business from its dire financial position.

(b) it may mean, depending on the final decision as to the relevant valuation date, that the applicant receives a windfall from the sixth respondent's investment of its time and money. Such windfall will never be recoverable by the sixth respondent from the applicant.

(c) there will be further delay in making operational and strategic business decisions in circumstances where those decisions are currently on hold, pending the outcome of this proceeding; and

(d) the business may be deprived of additional funding, which it appears to require.

1. In relation to these submissions, it appears to be suggested that the Sixth Respondent is delaying in making operational and strategic business decisions relating to the business operated by the entities to which the Shares in issue relate (paragraph (c) above). That submission is not advanced as a possible position, unlike the others. This seems a difficult submission to reconcile in the context of oppression proceedings. I am not in a position to be able to make any findings, of course, in relation to what conduct the Sixth Respondent may or may not be engaging in relation to the business. Without attempting to pre-empt any of these matters, if the value of the business was or is affected, it is likely that the parties would make relevant submissions for whatever appropriate adjustments were said to be necessary at the trial. The remaining submissions of prejudice to the Sixth Respondent are advanced as a possibility by use of the word "may". These matters are uncertain at this time but may, however, be possible.
2. Insofar as other decisions are currently on hold, as I have already observed, there is a certain tension in relation to that submission with respect to the specific prejudice which is said to be suffered by the Sixth Respondent. It is not appropriate, however, to engage in any further consideration of that now.
3. This is an interlocutory application for the appointment of an additional expert and the consequential adjournment of the trial. Such matters, as regards the valuation business conduct of all the parties, will be relevant at the trial. Those matters may result in adjustments to the valuation in a positive or a negative fashion, and that is the appropriate time at which such matters should be considered, with the benefit of all of the tested evidence and submissions.

1. In all of the circumstances, and balancing all of the matters that I have outlined above, it is appropriate to permit the Applicant to brief a separate expert and adjourn the trial.

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheatley.