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

1. On 1 August 2024, after a hearing on 24 July 2024, her Honour Justice Needham delivered judgment (Norden Holdings Pty Ltd (Trustee) v Martens Investments Pty Ltd (Trustee), in the matter of Amazonia IP Holdings Pty Ltd [2024] FCA 845 (Separate Question Judgment)) on the following Separate Question:

Were the Applicant's shares in the Fourth and Fifth Respondents validly transferred to the First respondent on or about 27 June 2023?

No.

1. There was no appeal from the Separate Question Judgment. Subsequent to that, the parties have amended their concise statements.
2. Norden now brings an application to strike out various parts of the concise statement in response of the First, Second, Fourth and Fifth Respondents filed on 17 March 2025 (Response). For the purposes of this judgment, I shall refer to the First, Second, Fourth and Fifth Respondents as the Respondents. This judgment does not concern the concise statement in response of the Sixth Respondent.
3. The strike out application relies on r 16.21 of the Federal Court Rules 2011 (Cth) (FCR) or the Court's implied powers. The principal basis of the application to strike out is that some of the amendments in the Response seek to revisit and undermine the findings in the Separate Question Judgment. As such, those matters, so the Applicant submits, are an abuse of process and should be struck out.
4. The Respondents seek to resist the strike out application, contending that the Separate Question only determined that the Norden Shares were not validly transferred formally. The Respondents submit that the matters raised in the Response are distinct and concern the enforcement of contractual obligations.
5. The Respondents submitted that this issue should await determination at trial. I disagree. It is appropriate to determine it now to allow the parties to prepare and focus on the real issues at trial.
6. For the reasons given below, I am satisfied that the following paragraphs do seek to re-litigate facts and findings already determined in the Separate Question Judgment. As such, it is an abuse of process for such matters to remain in the Response and must be struck out.

1. As explained in the Central Practice Note: National Court Framework and Case Management (CPN-1) dated 7 February 2025 at [6.8]-[6.10], a concise statement is not intended to be a substitute for a pleading. The concise statement is to bring to the attention of the respondent and the Court the key issues and the key facts.
2. In Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2021) 287 FCR 388; [2021] FCAFC 121 at [140]- [154], McKerracher and Colvin JJ explained the nature and purpose of a concise statement at [140]-[154]. Delor Vue was an appeal from two decisions ([2020] FCA 588 (6 May 2020) and [2020] FCA 1281 (3 September 2020)), each of which occurred after the 2019 Amendment (defined below). Cheeseman J helpfully summarised the considerations and principles from Delor Vue in Chadwick v State of New South Wales (Amendment Application) [2022] FCA 1138 at [14]. From these decisions, the applicable principles can be distilled as follows:

(1) A concise statement:

(a) in contrast to a pleading, is to raise the key issues and key facts at the heart of the dispute and the essential relief sought from the Court (Delor Vue at [140]);

(b) allows the Court to facilitate case management of the proceedings from an early stage, and determine whether pleadings are necessary, to ensure the efficient conduct and disposition of the application (Delor Vue at [141]);

(c) allows issues to be refined, by way of interlocutory processes and other documents ordered by bespoke case management orders, as the concise statements are not a comprehensive statement of all matters to be established, but provide a fair disclosure of the nature of the case with more precise issues disclosed by those other means, in the interests of fairness (Delor Vue at [144]);

(d) is in the context of:

(i) the modern approach of Australian courts, emphasising case management and limiting tactical and technical disputation (Delor Vue at [146]);

(ii) the Court conducting proceedings in a manner consistent with the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA) (Delor Vue at [147]);

(iii) a duty being imposed on parties and their lawyers to assist their client to comply with their duty, in civil proceedings, to conduct proceedings consistently with the overarching purpose: FCA, s 37N (Delor Vue at [147]);

(e) is not to be treated by pleading rules "unaffected by the new context and character of the concise statement" (at [148]).

(f) may require amendment, where a claim which is central to a party's case is not included or not adequately exposed in the concise statement. Such amendment will be dealt with in accordance with established procedural law regarding late amendments to alter a case. However, where the nature of a claim is broadly disclosed, a party cannot sit passively and insist upon some curtailment of the case, based on pleading rules. That is inconsistent with the fundamental new approach to case management and the overarching purpose. Both parties have a duty to expose the real issues. Clarification (which can be achieved in different ways) of an issue may be granted where it is unfair to a party for its forensic preparation for the issue to remain stated broadly (Delor Vue at [149]);

(g) should not be expressed vaguely, imprecisely or contain extraneous matters (Delor Vue at [153]).

Strike out, in the context of a concise statement

1. Norden's application to strike out relies on r 16.21 or the Court's implied powers. Rule 16.21 is contained within Part 16, Division 16.2 of the FCR, which is headed "Pleadings".
2. A concise statement fits within the description of an "alternative accompanying document" in r 8.05(1) and (2) of the FCR. The concept of an alternative accompanying document was introduced in the FCR by the Federal Court Amendment (Court Administration and Other Measures) Rules 2019 (Cth) which commenced on 2 May 2019 (2019 Amendment). Schedule 2 to the 2019 Amendment was headed "Accompanying document for originating applications".
3. Rule 16.01A expressly provides that subject to r 16.13, Division 16.1 does not apply in relation to a pleading that is an alternative accompanying document referred to in r 8.05. Further, r 16.41A expressly provides that Division 16.4 does not apply in relation to a pleading that is an alternative accompanying document referred to in r 8.05. Schedule 1 to the FCR provides a definition of "pleading" and in sub-paragraph (aa) provides that an alternative accompanying document referred to in r 8.05 is a "pleading". This definition in sub-paragraph (aa) was included by the 2019 Amendment.
4. The explanatory statement to the 2019 Amendment (at [8], [11], [13], [15] and [17]) explains that:

(1) subject to the following express exclusions, an alternative pleading process (as it is referred to in the explanatory statement, which is the alternative accompany document) is to be a pleading for the purposes of the FCR;

(2) the express exclusions are, subject to r 16.13, Division 16.1 and 16.4 which do not apply to a pleading that is an alternative accompanying document; and

(3) the requirements for the content and similar of an alternative accompanying document are to be set out in Practice Notes rather than drawn from Divisions 16.1 and Division 16.4.

1. The definition of "pleading" now includes by subparagraph (ca) a concise statement in response and by subparagraph (da) a concise statement in reply. Subparagraphs (ca) and (da) were included in the FCR by the Federal Court Legislation Amendment Rules 2022 (Cth) which commended on 13 January 2023.
2. Therefore, by application of r 16.01A, consideration needs to be given to r 16.13, which provides as follows:

(1) The following provisions apply to an alternative accompanying document referred to in rule 8.05:

(a) paragraphs 16.01(a), (b) and (d);

(b) subrule 16.02(2).

(2) The content of such an alternative accompanying document must also comply with any practice notes issued by the Chief Justice.

1. Rule 16.01(a), (b) and (d) require formal matters to be complied with. Subsection (a) and (b) require the name of the person who prepared the document and a statement that the person did prepare the document. Subsection (d) expressly refers to the alternative accompanying document, which must include the required certificate signed by a lawyer that any factual and legal material available to the lawyer provides a proper basis for the matters set out in the alternative accompanying document. Each subsection refers to a document as a pleading. However, this does not change the nature or the requirements for the content of a concise statement. The principles applicable and content required of a concise statement continue to apply. A concise statement is not a pleading in the traditional sense. However, except where expressly provided by the FCR that the rules do not apply to a concise statement, this document is to be a pleading (so defined) for the purposes of the rules. Therefore, these provisions apply by application of r 16.13 and must be read in that context.
2. Rule 16.02(2), is also referred to by r 16.13 and it provides as follows:

(a) contain any scandalous material; or

(b) contain any frivolous or vexatious material; or

(c) be evasive or ambiguous; or

(d) be likely to cause prejudice, embarrassment or delay in the proceeding; or

(e) fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f) otherwise be an abuse of the process of the Court.

1. Rule 16.02(2) also refers to the document being a pleading. However, again, this does not change the nature or required content of a concise statement, and the application of this rule to a concise statement must be read accordingly.
2. Rule 16.21 is not in Division 16.1 or 16.4; it is contained in Division 16.2. Rule 16.21 applying to a "pleading", reading in the definition from subparagraph (aa), would apply to an alternative accompanying document, in this case being a concise statement. However, its application would necessarily be in the context of applying the applicable principles of a concise statement, noting the different nature, purpose and characterisation of a concise statement. To be clear, matters stated in a concise statement would not be liable to be struck out, merely on the basis of a deficiency measured against the technical requirements of a pleading, in the traditional sense. Matters contained in a concise statement, however, are still liable to be struck out under r 16.21, in the context of and applying the relevant principles of a concise statement.
3. Further, in the context of this application, given the principal argument of Norden, if the passages sought to be struck out are an abuse of process, then such matters would be contrary to r 16.02(2)(f) of the FCR. Rule 16.02(2) is expressly applicable to a concise statement, being the alternative accompanying document, by application of r 16.13. Of course, the Court does also have implicit power to control its own process, which would include being able to strike out matters from a concise statement if such matters were an abuse of process.
4. The Respondents accept that the application to strike out did not rely on technical rules of pleading. It relied on an argument that the matters sought to be raised were seeking to relitigate matters, and if that were so, the Court would have implicit power to be able to strike out those matters from the Response, as an abuse of process.

1. The majority in Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [52]- [53] and [57] stated as follows:
   1. Preliminary questions may be questions of law, questions of mixed law and fact or questions of fact. Some questions of law can be decided without any reference to the facts. Others may proceed by reference to assumed facts, as on demurrer or some other challenge to the pleadings. In those cases, the judicial process is brought to bear to give a final answer on the question of law involved. Findings of fact are made later, if that is necessary. Where a preliminary question is a pure question of fact that, too, can be answered finally in accordance with the judicial process if the parties are given an opportunity to present their evidence and, also, to challenge the evidence led against them.
   2. Special problems can arise where the preliminary question is one of mixed fact and law. As Brooking J pointed out in Jacobson v Ross, it is necessary in that situation that there be precision both in formulating the question and in specifying the facts upon which it is to be decided. His Honour added:

"Care must be taken to ensure that, in one way or another, all the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable ... as facts assumed to be correct for the purposes of the preliminary determination, or as facts which both sides accept as correct, or as facts which are to be judicially determined. Failure to do this, and in particular failure to perceive that the facts alleged in a pleading are some only of the facts relevant to the determination of the preliminary question, may make the order for preliminary determination unfruitful."

Quite apart from rendering the "order for preliminary determination unfruitful", the failure to identify the relevant facts or the means by which they are to be ascertained may result in procedures which do not conform to the judicial process. That is a matter to which it will be necessary to return.

...

1. ... And what is the trial judge to make of the statement that "[t]o the extent that others were involved, they seem to have been acting as mere agents of the government"? Once an issue is determined at the interlocutory stage, and the trial continues, the primary judge's hand is tied in respect of all matters of fact and law involved in that determination. In Fidelitas Shipping Co Ltd v V/O Exportchleb, Diplock LJ pointed out:

"Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to adduce further evidence."

1. The passage from Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at 642, approved by the High Court in Bass, should be emphasised, given the particular circumstances of this case and the Separate Question Judgment. As stated by the majority, "Once an issue is determined at the interlocutory stage, and the trial continues, the primary judge's hand is tied in respect of all matters of fact and law involved in that determination." (emphasis added)
2. As observed above, there was no appeal from the Separate Question Judgment.
3. Dixon J in Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 at 531-532 stated:

A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

... ...

...But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.

[footnotes omitted]

1. The plurality of French CJ, Bell, Gageler and Keane JJ in Tomlinson v Ramsey Food Processing (2015) 256 CLR 507; [2015] HCA 28 at [21], [22], [25] and [26] stated as follows:

[21] Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. Yet its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law.

[22] Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. ... The second form of estoppel is almost always now referred to as "issue estoppel". Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies". ... Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.

... ...

[25] Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

[26] Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.

[emphasis added]

[footnotes omitted]

1. Generally, "it is an abuse of process for a litigant to seek to re-litigate an issue decided adversely to it in earlier proceedings" and "(t)he prospect that inconsistent judgments may bring the administration of justice into disrepute among right-thinking people is a recognised category of abuse of process": Fortescue Metals Group v Warrie (2019) 273 FCR 350; [2019] FCAFC 177 at [560]- [561] per White J; Robertson and Griffiths JJ in Warrie distilled the principles from [373]-[380]. Whether or not any suggested re-litigation rises to the level of an abuse of process is an evaluative exercise, taking into account all of the particular circumstances. Not every attempt to re-litigate necessarily constitutes an abuse of process. However, it can be an abuse of process even though the earlier proceeding did not rise to a res judicata or issue estoppel. A non-exhaustive list of factors to be considered in determining whether re-litigation constitutes an abuse of process were adopted and approved, from the earlier decision of French J in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [70] (which adopted the observations of Giles CJ in State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 (at 64, 089)): Warrie at [375] and [561(ii)].

1. Norden's application to strike out parts of the Response was as follows:

(1) paragraphs 3c to 3e, 17(h) and 18 to 20;

(2) the underlined amendments to paragraphs 4, 5, 7, 10, 13, 14 and 16.

1. Norden contends that at least an issue estoppel arises in respect of the findings of fact from the Separate Question Judgment, by which the parties are bound. These matters, it is submitted, were essential to the determination of the Separate Question Judgment. However, even if that is not accepted, the attempts to re-litigate the issues involved in the Separate Question would constitute an abuse of process.
2. Norden submits that these passages of the Response are seeking to relitigate findings made in the Separate Question Judgment. Norden contends that the parties are bound by the findings in the Separate Question Judgment and therefore the raising of matters again in the Response is an abuse of process, which should be struck out.
3. The Respondents submits that the claims now sought to be advanced are distinct and concern the enforcement of contractual obligations.
4. The Respondents submit that the matters advanced raise distinct and legitimate causes of action in specific performance, declaratory relief, and promissory estoppel, said to be arising from the binding agreement between the parties. The Respondents submit that they do not seek to relitigate or undermine the findings made in the Separate Question Judgment and as such there is no proper basis for invoking issue estoppel, res judicata or alleging an abuse of process. The Respondents submit that any deficiency (which the Respondents reject) could be remedied by further particulars, not by striking out.
5. The Respondents rely on the meaning of res judicata, being that it relates to an entire cause of action, and where the whole of the legal rights and obligations are concluded by the earlier judgment, which may have involved determinations of questions of law as well as findings of fact. Res judicata constitutes an absolute bar to a subsequent suit for the same cause of action. The Respondents emphasised that the passage from Blair refers to matters which are legally indispensable to the conclusion reached.
6. The Respondents sought to place emphasis on the word "validly", in the context of the Applicant's opening, as recorded by Needham J at [3]. It was submitted that an agreement between the parties about the shares did not affect the validity of the transfer. The validity of the transfer was governed by the rules of the companies and the Act. That is why, so the Respondents contended, the word in the Separate Question used was "validly". The Respondents submitted that clauses 7.1 and 7.2 from the Constitution (Separate Question Judgment at [22] and [86]) required that the transfer had to be in writing. In this context, the Respondents accept that the shares were not "validly" transferred.
7. Further, the Respondents submitted that close attention should be given to [61] of the Separate Question Judgment, as the answer to the first question did not impact on the answer to the second question. That is, whether it was answered "yes" or "no" would not have determined the validity issue. The whole validity question, so the Respondents submit, relates to the forms. As such, the Respondents submit that it was not necessary to determine and it was not the central part of the case, what, if anything the parties agreed, for the purposes of considering the question of validity under the Act and the Constitutions of the companies. Consideration and determination of the validity of the Form 484s (as defined below) and the Minutes (also defined below) were all that was necessary to determine the question of whether the shares had been validly transferred. The first question and the third question (numbered (3) and (5) in the Separate Question Judgment) relating to agreements were, the Respondents submit, not necessary to determine the Separate Question.
8. The Respondents further submitted that the ratio decidendi of the Separate Question was the lack of formal validity of the transfer, because the forms (being the Form 484s and the Minutes) were deficient. The Respondents contend that the reasons regarding whether there was an agreement were obiter dicta, as the validity of the transfer of shares had nothing to do with whether there was any agreement as to the transfer of the shares. Therefore, so the Respondents submit, the findings as to any agreement were not legally indispensable in the sense described in Blair and were not res judicata.
9. The Respondents also rely on the General Steel test (General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 at 128-129) and submit that the Court should be cautious about striking out parts of the concise statement.
10. Norden submits that the Respondents' submissions advancing a narrow and confined interpretation of the Separate Question Judgment, should not be accepted. The Separate Question necessarily considered, so Norden submits, other matters including whether the shares were validly transferred as matter of contract. Norden submits that the Respondents focus on the word "validly" and the narrow interpretation sought to be relied on was not the approach taken by the Court in the Separate Question Judgment.

1. Before considering the particular paragraphs and amendments which Norden seeks to strike out of the Response, it is necessary to consider the particular findings of the Separate Question Judgment. Under this heading, in the absence of another specific reference, all of the paragraph references will be to the Separate Question Judgment.
2. Although the Separate Question which was answered is set out above, it is worth restating in the context of the judgment as a whole:

Q-Were the applicant's shares in the fourth and fifth respondents transferred to the first respondent on or about 27 June 2023?

A-No.

1. The Fourth and Fifth Respondents, Amazonia IP Holdings Pty Ltd (IP Co) and Amazonia Group Pty Ltd (Group Co), are the operating companies of the Amazonia Group (the Amazonia Group) (at [20]). Norden owned 30 Shares, being 30% of the total issued shares in Group Co from around 30 June 2014, and 300 shares, being 30% of the total issued shares in IP Co, from around 11 March 2015 (at [23]).
2. By May 2023, evidence was given by the Second Respondent that the Amazonia Group was in serious financial difficulties (at [25]). On 16 June 2023, Mr Martens (the Second Respondent) was seeking professional advice and a quick cash injection from his brother, Wesley Martens (at [28]). Discussions occurred regarding voluntary administration and that Mr Norden (the controlling mind of the Applicant) was intending to resign as a director in any event. However, there was no mention that Mr Martens required the Applicant to "cease its shareholding" or transfer its shares (at [33]). There was an issue of controversary whether Mr Norden did discuss with Mr Martens or Mr Chislett the question of a transfer of the Applicant's shares (at [35]-[37] and [42]-[43]).
3. On 27 June 2023, two ASIC Form 484 Change of company details for IP Co and Group Co (Form 484s) were lodged which recorded that Mr Norden had resigned as a director on 30 November 2021 and that the Applicant's shareholding in each of IP Co and Group Co had been transferred to the First Respondent (at [45]).
4. On 29 June 2023, minutes of meeting (Minutes) were executed by Mr Norden which recorded the change in directorship and shareholders from 30 November 2021 in relation to each of IP Co and Group Co (at [48]-[52]). On 30 June 2023, as the only director, Mr Martens signed minutes of meeting of Group Co (Group Minutes), recording the change in directorship and shareholding and that the shares from Norden to the First Respondent was approved and recorded in Share Certificate 4 (at [53]).
5. It was not in dispute that no meeting occurred on 30 November 2021. Further, the Minutes, the Form 484s and Group Minutes are the only written records evidencing any change of ownership of shares by Norden in IP Co and Group Co (at [54]). Mr Norden kept in contact and made enquiries as to the companies (at [55]-[57]).
6. Around 31 July 2023, Mr Norden became aware of the ASIC change in shareholding and he wrote to Mr Martens stating he had been misled and was taking legal advice (at [59]-[60]).
7. Needham J synthesised the questions to be determined on the Separate Question, as follows (at [61]):

(1) Did Mr Norden agree on behalf of the applicant to transfer its shares in the fourth and fifth respondents to the first respondent?

(2) If no,

(a) do the Form 484s filed with ASIC on 27 June 2023 operate as a valid transfer of the shares in each of the fourth and fifth respondents to the first respondent? and/or

(b) do the Minutes of the meetings purportedly held on 30 November 2021 operate to "cease the shareholding" of the applicant in the fourth and fifth respondents?

(3) If yes, was a binding contract entered into between the applicant and the first respondent?

(4) If so,

(a) do the Form 484s filed with ASIC on 27 June 2023 operate as a valid transfer of the shares in each of the fourth and fifth respondents to the first respondent? and/or

(b) do the Minutes of the meetings purportedly held on 30 November 2021 operate to "cease the shareholding" of the applicant in the fourth and fifth respondents?

(5) In either case, is the first respondent bound by an admission by their then counsel in the course of a hearing before Downes J setting down the Separate Question?

1. At [62], Needham J set out what the First Respondent had to persuade the Court of to answer this first question as "yes". Those cumulative issues required satisfaction that "there was an agreement entered" in relation to the transfer of the shares. At [79]-[80], Needham J relevantly found as follows:

[79] ... I am satisfied that the agreement reached between Mr Norden and Mr Martens was that Mr Norden would resign as a director with effect from 30 November 2021, and that was what he was expecting to sign for when he received the documents from Mr Chislett...

[80] I am accordingly satisfied that there was no agreement between Mr Norden and Mr Martens that Mr Norden would "cease" his shareholding (whether by transfer, forfeiture, or, as noted by Mr Martens in a WhatsApp voice note, cancellation).

1. After concluding that there was lack of an agreement to transfer the shares, Needham J at [81] moved to the next issues, as to whether the Form 484s or the Minutes operated to effect a valid transfer of shares. The Separate Question itself framed the issue in terms of whether the shares were "validly" transferred. At [87], Needham J records the Respondents' emphasis on the word "validly" and that "validly" meant "efficacious" or "having legal force; legally binding". Needham J found that the Minutes had no effect as a transfer (at [90]) and the Form 484s were lodged without a contract underpinning them (at [92]). Therefore, the answer to this second question was "no".
2. On these bases, it was not necessary to answer the next two issues (at [94]-[98]). Needham J also observed that there is no concept in the Act of a cessation of a shareholding, as envisaged by the Minutes (at [97]).
3. Finally, in relation to the last issue, Needham J held that the alleged admission did not give rise to an estoppel (at [100]) and the Applicant would not have succeeded on this alone (at [102]).

What did the Separate Question Judgment determine?

1. The Respondents contend that the Separate Question Judgment only determined, and it was only necessary to determine the question of whether the shares were transferred validly, by way of the formal forms, being the Form 484s or the Minutes. This is based on the actual Separate Question itself and because of the way the issues were framed (Separate Question Judgment at [61]). The answer to the first question, so it is submitted, was not relevant and would not affect the answer to the second question. It is submitted that it was only the second question which was necessary, being indispensable, to determine for the purposes of determining the Separate Question.
2. The first question considered whether there was an agreement to transfer the shares. Needham J found there was no agreement. That finding was based on the evidence and arguments as before the Court on the hearing of the Separate Question. It is apparent that the Court considered the first question necessary in order to answer the Separate Question. Presumably, this was also the approach of the parties at the hearing of the Separate Question, given her Honour's description of the questions to be decided on the Separate Question (at [61]). Where matters did not need to be answered for determination of the Separate Question (Separate Question Judgment at [94]), very short observations were made. However, the question of whether there was an agreement occupied much of her Honour's reasons.
3. The second question then considered whether the Form 484s or the Minutes operate to effect a valid transfer of the shares. This question was not considered in isolation, although that is how the Respondents submitted that the Separate Question Judgment should be read.
4. That the first question, regarding the lack of an agreement, was necessary for the determination of the second question and the Separate Question, is evident by Needham J's finding at [92] that the "Form 484s were lodged, as I have found, without a contract underpinning them, and without a proper instrument of transfer having been delivered to the fourth and fifth respondents" (emphasis added). In the next sentence, her Honour observes that the Form 484s were lodged prior to the signing of the Minutes. Implicit in that observation was that the Minutes were also not a written contract or other written instrument of transfer, as required by the Constitutions or the Act.
5. Furthermore, Needham J records the Respondents' submission in the context of considering the requirements for a valid share transfer (at [85]), that such dealings are subject to the usual laws of contract (and equity). This observation also supports the position that the finding and answer to the first question, regarding the lack of an agreement, was necessary for the determination of the Separate Question.
6. Although Needham J found that question three and four did not need to be answered (at [94]), her Honour's observation at [95] is also instructive of the determination in relation to whether there was an agreement, in the context of considering the second question. Needham J stated:

[95] However, in relation to question three, on my analysis above, there was no agreement between Mr Norden and Mr Martens (on behalf of the applicant and the first respondent respectively) for a transfer of the applicant's shareholdings which found its expression in the lodgement of the ASIC Form 484s and the signature of Mr Norden on the Minutes of 29 June 2023.

1. As such, I do not accept the distinction raised by the Respondents or the submissions advanced seeking to narrowly construe the Separate Question Judgment. This is because, as outlined above, when considering all of the matters of fact and law which were necessary (in terms of being indispensable) to determine the Separate Question, it is clear that whether there was an agreement was a necessary issue which was determined.
2. Therefore, now the "judge's hand is tied is respect of all matters of fact and law involved in that determination". The parties to the suit are bound by the judicial determination of this issue. As was described in Blair, this state of fact or law, being that there was no agreement to transfer the shares (at [79]-[81] and [92] and [95] of the Separate Question Judgment) is a matter necessarily decided in the Separate Question Judgment. I accept that the finding regarding there being no agreement was final and binding on the parties, in the manner described in Fidelitas and Tomlinson. It operates as an issue estoppel, in the sense that it is a "judicial determination directly involving an issue of fact or of law [which] disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies".
3. It is not to the point that the Respondents now seek to cast any contract or agreement argument differently or even to rely on further or different evidence. There was an opportunity to raise such matters on the hearing of the Separate Question. As the second passage quoted from Blair makes clear, a matter cardinal to the latter claim cannot be raised, if to do so is necessarily to assert error in the former decision. The Respondents' remedy, if they sought to contend that there was an error in the Separate Question Judgment, was an appeal potentially with an application to adduce further evidence (Fidelitas as approved in Bass).
4. Finally, the argument regarding the ratio decidendi and obiter dicta of the decision is misplaced. Such concepts are relevant to the doctrine of precedent.

1. The Response in these paragraphs states as follows. Although the chapeau is not sought to be struck out, as it still relates to paragraphs 3a to 3b, it is necessary to include it to understand the context of these paragraphs:
   1. The applicant was a shareholder of the fourth and fifth respondents until 29 June 2023, when its director Christopher Andrew Norden (Norden) executed documents effecting his resignation as director of the fourth and fifth respondent and purporting the transfer of the applicant's shareholding (Documents). The background to the execution of the Documents is as follows:

...

1. Around this time, Mr. Norden was given the choice between exiting the business or continuing his involvement as both director and shareholder. During this period, Norden worked with an independent third-party consultant to mitigate any risks, including (but not limited to) risks associated with the possibility of insolvent trading, liquidation, and/or voluntary administration. In contrast, DMartens was willing to assume all of the risks in exchange for the transfer of applicant's shareholding.
   1. The third-party advisor, Mr. Benjamin Chislett (Chislett), informed both directors about the process and proposed that one of the directors, who had significant personal assets, should resign and divest from the Companies on an 'all-or nothing' basis, which included the surrender of that director's shares in the Companies. The directors, including Norden, agreed that the exiting director would be Norden, as he jointly owned a family home with his wife, which, by his own admission, was his largest financial exposure.
   2. Norden made an informed business decision that resulted in him being released from any liability should the Companies go into liquidation or voluntary administration. In consideration for assuming all of the risks, First Respondent received applicant's shareholdings. Norden has benefited from being absolved of any liability for the costs associated with continuing the business and has otherwise been relieved of any associated risks.

1. The evidence before Needham J included Mr Martens' position that he would only accept the sole directorship if it was accompanied by the cessation and surrender of the Applicant's shares - it was an "all or nothing" situation (Separate Question Judgment at [35]-[36] and [73]). Mr Norden's evidence was that he was unaware of the share transfer until 31 July 2023 (Separate Question Judgment at [59]-[60]). Generally, Needham J did not accept Mr Martens' evidence (Separate Question Judgment at [72]). Needham J accepted and preferred Mr Norden's evidence (Separate Question Judgment at [77]-[78]). As already noted, Needham J found that there was no agreement that the Applicant would "cease" its shareholding. This was whether it was by way of a transfer, forfeiture or cancellation.
2. These paragraphs seek to re-agitate matters which were necessarily determined by Needham J as part of the Separate Question Judgment and are the subject of an issue estoppel. These paragraphs must be struck out.

The underlined amendments to paragraphs 4, 5 and 7 of the Response

1. Norden seeks to strike out the underlined amendments to these paragraphs. For context, I will set out the paragraphs in full:
   1. At paragraphs 9 and 12 of the applicant's Concise Statement (CS), it is acknowledged that Mr. Norden executed the documents which were prepared with his full knowledge and upon his instructions and request in accordance with the agreement with DMartens.
   2. The applicant does not allege that Mr. Norden's signature was vitiated by duress, undue influence, or non est factum. It is noted that Mr. Norden had the opportunity to read the documents but chose not to, which is irrelevant as a matter of law. Further, Norden did open and review the documents, requested amendments (including correcting the spelling of his name), and sent the request for amendments back to Chislett. Norden then received the amended documents with the correct spelling of his name and signed them over a recorded period of 1 minute and 8 seconds (not 10 seconds, as alleged).

...

1. The applicant claims that the provision of the Documents inclusive of share cessation/surrender without prior notice intended to transfer shares was misleading and deceptive. The applicant fails to provide particulars on how the mere provision of documents could be misleading and deceptive.

Such a proposition must be rejected, as both directors are individuals with significant business acumen. Providing the Documents for sign-off, in the context of a general proposition, does not imply that parties to commercial negotiations would ordinarily be entitled to expect that the other party will "explain every conceivable business risk" arising from the proposed dealing.

1. The reference in these paragraphs to "Documents" is defined in paragraph 3 of the Response, which is set out above.
2. Mr Norden's evidence, which was preferred, was that he did not have any discussions regarding a cessation or transfer of the Applicant's shareholding. Further, the agreement reached was that Mr Norden would resign as a director and that was what he was expecting to sign when he received the Minutes from Mr Chislett (Separate Question Judgment at [79]). This finding was after considering the evidence that Mr Norden noted the misspelling of his name which was corrected and that he did in fact sign electronically the Minutes (Separate Question Judgment at [46]-[48]).
3. The amendments to these paragraphs seek to re-agitate matters which were necessarily determined by Needham J as part of the Separate Question Judgment and are the subject of an issue estoppel. The amendments to these paragraphs must be struck out.

The underlined amendments to paragraphs 10 and 13 of the Response

1. Norden seeks to strike out the underlined amendments to these paragraphs. For context, I will set out the paragraphs in full:
   1. The Third Defendant (Chislett) did not have a duty of disclosure ie. to outline the matters contained in the Documents but did advise both parties on 21 June 2023 that the agreement involved a transfer of shares and that the documents would effect this transfer. The specifics of the transaction, including the cessation of directorship and shareholding on an 'all or nothing' basis, were further discussed in a three-way WhatsApp meeting between the Second Respondent, Norden, and Chislett around the 28th of June. The fact that Mr. Chislett prepared the Documents does not render them ineffective.

...

Binding Agreement

1. The parties entered into an binding agreement for the transfer of shares and effecting cessation or surrender of the Applicant's shareholding in the Fourth and Fifth Respondents companies. with The terms of the agreement includeding the applicant's director's wishing decision to resign and the transfer of shares to the first respondent as consideration (Agreement). The First, Second, Fourth and Fifth Respondents consequently plead as follows:

(Specific performance)

1. Regardless of whether the Documents were later found to be ineffective in formally transferring the applicant's shares to the First Respondent, the Agreement remains binding on the parties.

2. The Applicant repudiated the Agreement and, in breach of its terms, demanded share compensation (CS para 20) and/or recognition of its purported membership in the Companies, subsequently commencing these proceedings seeking various remedies, including monetary compensation.

3. As a result of this breach, the First, Second, Fourth, and Fifth Respondents received no benefit from the consideration for entering into the Agreement.

4. Alternatively, due to the Applicant's breach, the fundamental purpose of the Agreement has been entirely undermined. In these circumstances, damages alone cannot adequately remedy the injustice caused to the First, Second, Fourth, and Fifth Respondents.

additionally, or in alternative (Promissory Estoppel)

1. The Applicant agreed to cease/surrender its shares in favour of the First Respondent and to resign as a director of the Companies in exchange for the waiver or indemnification of its liability as a former director by DMartens, as the remaining director of the Companies (the "Promise").
2. The First, Second, Fourth, and Fifth Respondents relied on the Promise and acted upon it by sourcing funding from the Sixth Respondent ("Funding"). Subsequently, to secure the Funding, they entered into convertible note deeds with the Sixth Respondent (Note Deeds, CS para 25.2), assumed liabilities under the Note Deeds, and changed their position by allowing the Sixth Respondent to actively participate in all major decisions of the Companies following the Funding event. This participation included, among other things, the active management of finances, control and oversight of stock and inventory, write-offs, and the negotiation of supplier and customer contracts, as well as engagement with the Companies' creditors.
3. Upon the Companies recovering or temporarily stabilising financially as a direct result of the Funding, the applicant sought to resile from the Promise and Agreement and demanded recognition of its former shareholding in the Companies or, alternatively, sought monetary compensation for those shares.
4. As a result of the applicant's breach of the Promise and Agreement, the First, Second, Fourth, and Fifth Respondents have suffered detriment.
5. It would be unjust and/or inequitable to allow the applicant to renege on its Promise or resile from the Agreement.

1. Norden submits that the "the duty of disclosure" is either again seeking to raise matters relevant to a question of an agreement or to an issue regarding misleading or deceptive conduct. The later matter is no longer pressed by Norden. It is difficult to understand the relevance of the suggested duty by the Respondents in circumstances where they are bound by the finding that there is no agreement to transfer the shares. I accept that it could only be relevant to the issue decided in the Separate Question Judgment and therefore is the subject of an issue estoppel.
2. In relation to paragraph 13, Norden submits that the amendments in the chapeau and the balance of the amendments are all directed to an alleged agreement regarding the transfer of shares and the cessation or surrender of the Applicant's shareholding in IP Co and Group Co. I accept that submission for the following reasons.
3. Paragraph 13a. directly starts from the proposition advanced in submissions by the Respondents. It is seeking to draw a distinction and to raise an issue that there is a binding agreement as between the parties. This is directly contrary to the findings in the Separate Question Judgment. Paragraphs 13b. to 13d. then seek to build upon the agreement, as alleged in paragraph 13a.
4. Paragraph 13e. does similarly as it seeks to advance an agreement that Norden ceased or surrendered its shareholding. Again, paragraphs 13f. to 13i then seek to build upon the alleged agreement, then defined as a Promise, as alleged in paragraph 13e.
5. These matters of fact and law were decided by Needham J in the Separate Question Judgment. Her Honour found that there was no agreement to transfer the shares, whether by transfer, forfeiture, cancellation or cessation. The amendments to these paragraphs seek to re-agitate matters which were necessarily determined by Needham J as part of the Separate Question Judgment and are the subject of an issue estoppel. The amendments to these paragraphs must be struck out.

The underlined amendments to paragraphs 14 and 16 of the Response

1. Norden seeks to strike out the underlined amendments to these paragraphs. For context, I will set out the paragraphs in full:
   1. The applicant's director expressed his wish not to remain director of the Companies if it meant assuming the risks associated with administration or liquidation of the Companies. The second respondent agreed to Mr Norden's resignation only if the applicant also agreed to the transfer of all its shares and ceasing/surrender of the Applicant's shareholding in Companies, without discussing compensation given the shares' nominal value and significant liabilities at the time.

...

1. As a result of the Agreement, all of the Applicant's shares were transferred to the First Respondent. The true record of shareholders, directors, the original share certificates for the shares in dispute and other critical information is held in internal company books, which serve as prima facie evidence of the shareholding interest in the Companies. Any inadvertent discrepancies with the ASIC register are regularly revisited and attended to by the company representatives and/or their accountants. The Applicant does not possess the original share certificates and has not provided any valid basis to support its claim of continued ownership.

1. Norden contends that the words "of the Companies" in paragraph 14 do not add anything to the paragraph and should be struck out. However, the submission focused upon "/surrender of" in paragraph 14, contending that the issue of surrender which is sought to be added is directly contrary to the decision of Needham J. I accept that submission. The issue as to any agreement to surrender the shares seeks to re-agitate matters which were necessarily determined as part of the Separate Question Judgment and are the subject of an issue estoppel.
2. However, although the words "of the Companies" may not add anything, it is a matter for the Respondents (within limits) in how they wish to express their case. These are not contrary to the matters determined in the Separate Question Judgment.
3. The amendments to paragraph 16, Norden submitted, was self-evidently seeking to raise matters of an agreement. Needham J found that there was no agreement to transfer the shares, whether by transfer, forfeiture, cancellation or cessation, in relation to the shares of IP Co or Group Co.
4. The amendments to these paragraphs (apart from the words "of the Companies") seek to re-agitate matters which were necessarily determined by Needham J as part of the Separate Question Judgment and are the subject of an issue estoppel. The amendments (apart from the words "of the Companies") to these paragraphs must be struck out.

1. The Response in this paragraph states as follows. Although the chapeau is not sought to be struck out, as it still relates to paragraph 17(h), it is necessary to include it to understand the context of this paragraph:
   1. The Note Deeds were entered into on commercial terms, reflecting the fair value of the Companies at the relevant times while accounting for the risk undertaken by the Sixth Respondent in advancing Funding to the Companies, which were on the verge of liquidation or voluntary administration. The First, Second, Fourth and Fifth Respondents:-

...

1. deny that they prevented the applicant from exercising or considering exercising any purported right under the Constitution of the Companies. At all relevant times, the applicant raised concerns regarding potential liability for insolvent trading and decided to divest from the Companies entirely. Any suggestion that the applicant would have considered increasing his shareholding in the Companies is inconsistent with the Agreement and the Promise, as well as contradictory with the applicant's intentions and decisions at the relevant time.

1. Norden submit, that apart from sub-paragraph (h), paragraph 17 is generally focused on amending the concise response after delivery of the Separate Question Judgment, so that only the remaining matters in dispute are agitated. However, at least from "At all relevant times", it is contended that those matters seek to re-agitate matters determined in the Separate Question Judgment.
2. The reference in the balance of this paragraph from "At all relevant times" to the Agreement and the Promise pick-up on the terms from paragraph 13. This passage, from "At all relevant times", seeks to re-agitate matters which were necessarily determined by Needham J as part of the Separate Question Judgment and are the subject of an issue estoppel. These amendments must be struck out.

1. Norden seeks to strike out the entirety of paragraphs 18 to 20, being the relief sought by the Respondents. These paragraphs are in the following terms:

Relief sought

1. Orders pursuant to s1322(4)(a) of the Act declaring, that transfer of the applicant's shares to the First Respondent is not invalid by reason of any contravention of a provision of this Act or a provision of the constitution of the Companies.
2. Alternatively, orders for the Agreement be specifically performed by Mr Norden, in his personal capacity and/or as director of the Applicant, and carried into effect;
3. Alternatively, orders for Mr Norden, in his personal capacity and/or as director of the Applicant, be estopped from resiling from the Agreement.

1. Norden submits that each of these paragraphs are based on an alleged agreement regarding the transfer of the shares in IP Co and Group Co.
2. The relief sought in paragraphs 19 and 20 seek to rely on an alleged agreement in circumstances where there is a binding decision of the Court that there was no agreement. These two paragraphs seek to re-agitate matters which were necessarily determined as part of the Separate Question Judgment and are the subject of an issue estoppel.
3. Paragraph 18 seeks to rely on s 1322(4)(a) of the Act for a declaration regarding the transfer of the shares. The Separate Question Judgment determined that the Applicant's shares in IP Co and Group Co to the First Respondent were not validly transferred, whether by agreement, the Form 484s or the Minutes. The declaration sought in paragraph 18 is directly contrary to the issue determined in the Separate Question Judgment. If the Respondents sought to raise such an argument, they should have done so on the hearing of the Separate Question (as discussed in [62] above) or on any appeal. As this issue is the subject of an issue estoppel it cannot be re-litigated.
4. These paragraphs must be struck out as the matters the subject of these paragraphs were necessarily determined in the Separate Question Judgment.

1. The matters that the Respondents seek to raise, as outlined above, seek to relitigate matters that were necessary and were determined in the Separate Question Judgment. Those findings, of fact and law, are the subject of an issue estoppel. The Respondents are precluded from raising this issue. There has been judicial determination directly involving this issue, which disposes of it once and for all, so that the Respondents cannot afterwards raise it again between the same parties, that is, in these proceedings (Tomlinson at [22]).
2. Further and in any event, the approach taken by the Respondents would be to invite the Court to make inconsistent findings with those made in the Separate Question Judgment. That is, to seek positive findings that there was an agreement (or promise) regarding the transfer of shares from the Applicant to the First Respondent. Such a finding would be directly contrary to that made in the Separate Question Judgment. This, as detailed in Warrie, is a recognised category of abuse of process. This is a further and separate basis for which I am satisfied that the contested paragraphs and parts of paragraphs, as I have detailed above ought to be struck out.
3. I will hear the parties on the question of costs.

I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheatley.