Plaintiff v CRYPTAI PTY LTD

2 The Company is a passive investment vehicle whose primary asset is its shareholding in US based artificial intelligence company Rain Neuromorphics Inc (RAIN). The Company intends to hold a general meeting of its members (convened by notice dated 3 April 2025) at which, relevantly, resolutions will be proposed:

(a) to consider and if thought fit resolve by ordinary resolution that the Company sell its RAIN shares to Bruno Bowden on the terms proposed by Mr Bowen (Resolution 1);

(b) if Resolution 1 does not pass, to consider and if thought fit resolve by ordinary resolution that the Company sell its RAIN shares to Alloy Consulting Pty Ltd on the terms proposed (Resolution 2);

(c) If Resolutions 1 and 2 do not pass, to consider and if thought fit to resolve, by special resolution, that the Company enter liquidation, appointing David Coyne of BRI Ferrier as liquidator (Resolution 3).

3 The plaintiff seeks interlocutory injunctions[1] restraining the Company from convening the Meeting the subject of the 3 April notice; alternatively, restraining the Company from proposing Resolutions 1 and 3. The Meeting was fixed for 24 April 2025. The plaintiff's application was heard on 23 April 2025. I ordered on that day that the Meeting not proceed until the determination of the plaintiff's application. The first defendant made arrangements accordingly that if the Meeting were to proceed it would occur on 28 April 2025.

4 For the reasons that follow the injunction respect of Resolution 1 is refused. The injunction in respect of Resolution 3 is granted but only until 5pm on 7 May 2025.

5 It is relevant (for reasons set out later) to understand how the plaintiff's application has evolved. Resolution 1 concerns an offer by Bruno Bowden to buy the Company's shares in RAIN. The plaintiff is not seeking to buy the Company's RAIN shares but recently made successive offers to acquire from other shareholders, shares in the Company which it characterises as 'competing' with the Bowden offer. The plaintiff's offers did not require a resolution of the Company, but were conditioned (among other things) on the Company not having agreed to sell its shares to another party, whether to Bowden or otherwise.

6 The plaintiff issued its application on 17 April 2025, requesting a hearing on 23 April 2025, the day before the date fixed for the Meeting. The application in respect of Resolution 1 was concerned with the plaintiff's offer made to shareholders on 28 March 2025 (plaintiff's First Offer, also described as the 'Compound Cubed Offer') as set out in the plaintiff's solicitor's supporting affidavit. The plaintiff said that the Company had taken steps to prevent its offer from being properly considered and the proposal of Resolution 1 would be contrary to the interests of members as a whole (within the meaning of s 232(d) of the Corporations Act 2001 (Cth)) because the plaintiff's offer was more favourable to shareholders.[2] The second ground for opposing Resolution 1 was that the plaintiff and other shareholders have not had reasonable notice of the terms of the offer by Bowden to buy the Company's RAIN shares.

7 The day after the application was issued the plaintiff's sole shareholder (Gabriel Govinda) made an offer to shareholders in his personal capacity to acquire their shares in the Company on very similar terms at a slightly higher offer price per share than the plaintiff's First Offer (i.e. it was on its face a better offer, from a different party who is the plaintiff's sole owner). The plaintiff made a Second Offer on 22 April 2025 at the same price as the Govinda offer on substantially similar terms whereupon Govinda withdrew his offer. The plaintiff provided a proposed amended statement of claim (ASOC) just before the hearing of its application. The newly added claims were concerned with conduct of the Company said to have limited shareholders' opportunity to consider the plaintiff's Second Offer (and the reasonable notice ground). The application proceeded on that basis.

8 On 25 April 2025, while judgment on this application was reserved, the parties emailed chambers stating that the plaintiff had withdrawn the Second Offer that morning and that Govinda had circulated a further offer to shareholders in his own name, and that if directed to do so the correspondence in which the offers were made and withdrawn would be provided. No orders were sought. The plaintiff was directed to inform my chambers whether it was still purporting to press that part of the application concerned with the shareholders' consideration of its Second Offer. The plaintiff said that that part of its application was no longer pressed. The further Govinda offer was not in evidence and was not the subject of this application.

9 The plaintiff contends that Resolution 3 is unfairly prejudicial to or discriminatory against it in circumstances where in this proceeding it seeks to set aside the issue of shares by the Company in June 2024 (June Share Offer) which had the effect of diluting the plaintiff's shareholding and was the result of allegedly oppressive conduct by the Company. Before those shares were issued the plaintiff held 36.7% of the Company's shares. With that interest the plaintiff's vote alone could defeat a special majority (more than 75%) required for the passing of Resolution 3. The plaintiff intends to vote against Resolution 3.

10 This is the second application for injunctive relief made in this proceeding. In June 2024 the Company attempted to conduct a capital raise by offering 1,500,000 fully paid ordinary shares at $0.75 (i.e. the June Share Offer). In August 2024 the plaintiff sought an interlocutory junction restraining the continuation of the capital raise, contending the share offering was made for the dominant purpose of diluting the plaintiff's shareholding, and at a price below the true value of the shares. I accepted that there were serious questions to be tried that the shares were offered at a value below their true value and that the dominant purpose of the capital raise pursuant to the June Offer was to dilute the plaintiff's shareholding. I granted the application, restraining the Company until the determination of the proceeding, from proceeding with the June Share Offer (which meant, practically, a restraint against the offer by the Company of any more shares under the terms of the June Offer, beyond those that had been issued at time of the application). The plaintiff seeks final relief in the proceeding setting aside the issue of any June Offer shares.[3]

11 The plaintiff's application was to enjoin the meeting or the proposing of Resolutions 1 and 3 absolutely, without any time limitation. In the course of argument the plaintiff's Senior Counsel said that in the exercise of the Court's discretion the better course would be to order a 'shorter injunction to maintain the status quo' for a period of two weeks, preventing the proposal of Resolutions 1 and 3 from occurring until 7 May 2025, the day after the mediation fixed in this proceeding. The plaintiff did not amend the application as such but the plaintiff's Counsel said that responsibly, that was the better course. The confinement of the application to a two week period was expressly made in relation to each of Resolutions 1 and 3.

12 The plaintiff accepted that the relief sought in relation to the Meeting did not materially add to the relief sought in respect of the Resolutions.

13 The plaintiff read the affidavit of David Burstyner dated 17 April 2025 and the affidavit of Andrew Jones dated 23 April 2025. The defendant read the affidavit of Louie Simens dated 21 April 2025 and tendered a bundle of correspondence.

PART B: GOVERNING PRINCIPLES - INTERLOCUTORY INJUNCTION

14 The principles governing the grant of an interlocutory injunction can be stated as follows for present purposes:

(a) An applicant for an interlocutory injunction must show that there is a serious question to be tried by making out a prima facie case in the sense of demonstrating that there is a sufficient likelihood of success at trial to justify the preservation of the status quo pending the determination of the parties' rights at trial, in the circumstances. This does not mean that the applicant has to establish that it is more likely than not that it will succeed at trial. How strong the probability needs to be depends upon the nature of the rights asserted and the practical consequences likely to flow from the relief sought.[4]

(b) The applicant must also establish that the balance of convenience favours the granting of an injunction. The Court should take whichever course appears to carry the lowest risk of injustice, should it turn out to have been wrong in the sense of granting an injunction to a party who fails to establish its right at trial or failing to grant an injunction to a party who succeeds at trial.[5]

(c) Incorporated within the consideration of 'balance of convenience', or sometimes considered as a separate matter, is the question whether damages would be an inadequate remedy, were the injunction refused.[6] One must also consider the adequacy of the applicant's undertaking as to damages. There is no inflexible rule that the plaintiff should be denied interlocutory relief unless it can give a meaningful undertaking,[7] but the adequacy of the undertaking will be a relevant factor to be taken into account in weighing the balance of convenience, particularly in cases involving the protection of commercial interests.[8]

(d) These principles are not to be applied in isolation from one another, but must be considered together. In considering where the lower risk of injustice lies, all relevant factors are to be weighed in the balance. The strength of the applicant's case and their chances of success may be a relevant matter when assessing the balance of convenience.[9]

PART C: FACTS AND CIRCUMSTANCES

15 The contest largely concerned the significance of the relevant events and not whether they occurred. Simens gave evidence of certain decisions made by the directors and concerning his evaluations relevant to the course of action taken (i.e. his state of mind), among other things. He referred to the decisions taken by himself and his fellow director Bill Koutlis, jointly. The central circumstances and events were as follows (the significance of which is addressed largely in Part D below).

16 The Company is an investment vehicle that does not generate revenue from trading operations. Its only substantive asset is 1,577,363 'common' shares in RAIN.

17 The Company' sole present objective is to achieve a liquidity event by selling the Company's RAIN shares at an acceptable price.

18 The Company has been seeking to place itself in a position to sell its RAIN shares.

19 In the First Injunction Ruling, I found that the Company had as at August 2024 incurred about $100,000 in legal fees in relation to this proceeding and such funds that it had at that time were likely to be substantially eroded by the need to funds its defence and for its ordinary business expenses. I found that it would incur some costs in pursuing an opportunity to sell its RAIN shares. The Company was not restrained from fundraising generally, just from pursuing the June Share Offer.

20 In its December 2024 update to shareholders, the Company told shareholders that as a result of defending the proceedings it was effectively out of funds and that if it could not gain access to further funding the Company would become insolvent, given the estimated costs of conducting the proceedings. The update conveyed the directors' view that at that time, appointing an administrator or liquidator would be a poor outcome for the company as the Company's interest in RAIN would likely be sold in a 'fire‑sale'. The Company made a request for funding of up to $400,000 by the issue of a secured loan facility, in order to fund the costs associated with engaging advisors to arrange for the disposal of the Company's interest in RAIN and to meet the Company's ongoing costs of the litigation brought by the plaintiff. They said that in order to avoid a fire‑sale, the Company must move to liquidate the RAIN shares at the best possible price.

21 In its explanatory statement to its notice of general meeting dated 25 February 2025,[10] the Company told shareholders that its December 2024 fundraising request has received only one response, from Govinda, but that the Company had not reached any arrangement with him. The Company's available funds to defend the proceedings had been exhausted. It had legal bills in excess of $100,000 which it had no ability to pay. It said that without further funding or a sale of its assets the directors would need to place the Company in the hands of administrators or liquidators. In order to avoid the prospect of an immediate liquidation the Company had sought to negotiate a sale of RAIN shares. At that time the Company had received an offer from Bowden. The directors said that if the transaction to sell the RAIN shares was not approved the directors would consider the Company to be insolvent.

22 In March and April 2025 some shareholders provided funding in response to the December 2024 debt facility offer (in the amount of $142,000). The call for funding remained open. In its 31 March 2025 shareholder update the Company stated that it held $142,000 in secured loans raised pursuant to the debt facility.

23 The Company presently now has secured debt of $142,000 and unpaid legal bills of $64,266 which amount does not include legal fees incurred but not yet billed.

24 Simens' evidence was that it is his opinion that if the Company's ability to sell its RAIN shares is restrained it is unlikely that shareholders will advance further funds because the Company could not credibly advise them how the money could be repaid. Simens' opinion was also that without liquidity he and Koutlis will be forced to place the Company into administration or liquidation. His evidence was that:

Mr Koutlis and I have formed the view that the Second Bowden Offer[11] should be put to the company's members as an alternative to liquidation on the basis that to our knowledge it is the only currently available and reasonably credible proposal that would result in the liquidation of the Company's assets and a meaningful return to shareholders and creditors without holding out for a further offer or imposing a liquidator on the Company.

If the meeting does not proceed, or it proceeds and the Company's shareholders do not resolve to sell the RAIN shares to Mr Bowden and the liquidation resolution does not pass, I anticipate that Mr Koutlis and I will have no real choice as directors of the Company but to appoint an administrator. The Company simply does not have any more runway left if it cannot sell the RAIN shares.

25 RAIN is an early start‑up company. According to publicly available documents it has not generated any revenue or profit from operations. It has never paid a dividend to the Company. RAIN is not listed on any share index. The Company's investment in RAIN is properly described as illiquid. According to publicly available documents RAIN's common stock was valued for RAIN's internal purposes at USD $1.04 per share in September 2022. The Company has 'common stock' in RAIN. There are at least four classes of preferred stock ahead of common stock which, based on the September 2022 valuation, has been valued at significantly less than other stock. It was not contended that the publicly available September 2022 valuation was current.

26 On 7 August 2024 this Court ordered that an independent valuation of the Company be completed by 22 November 2024. The independent valuer (Daniel Van Aswegen of Market Line) sought information from RAIN for the purposes of the valuation. The requests were passed on to RAIN by the Company's solicitors. RAIN did not substantively respond. The plaintiff sought and was granted an extension of time within which to seek to obtain material from US attorneys and other persons who it said it had engaged to contact RAIN and seek further information. That exercise produced nothing save four publicly available articles about RAIN. Mr Aswegen concluded in his report that because of a lack of information about RAIN, he was unable to value the Company (whose value is dependent upon the valuation of RAIN, on the basis that investment holding companies are usually valued by assessing the aggregate value of their individual assets and liabilities).

27 RAIN's 'by‑laws' provide that no shareholder may sell, transfer or otherwise dispose of any shares of RAIN without RAIN's prior written consent, which RAIN may withhold for any legitimate corporate propose, as determined by its board of directors. A shareholder must give first give written notice of is intended transfer of shares to the corporation, and the corporation may pre‑emptively purchase the shares on the terms in the notice, within 30 days.

28 Simens' evidence was that the Company considered in December 2024 that it had to locate a purchaser who would acquire the RAIN shares for value and who would be approved by RAIN. As noted, the Company had limited resources and no apparent source of funds, the December 2024 offer of debt funding not having been taken up at that time. As the directors told the shareholders in their February 2025 update, the Company faced 'significant headwinds' in seeking to find a purchaser given it must not only find a willing purchaser but a buyer approved by RAIN.

29 The Company was in possession of a copy of RAIN's shareholder list, with contact details. The directors considered that the most efficient and sensible way to achieve a timely sale of the Company's RAIN shares in the circumstances was to approach the current shareholders of RAIN on the basis that they had already invested and as such were qualified, and may be attracted to a further investment if they believed in RAIN's prospects. On 18 December 2024, before seeking to contact shareholders, the Company's solicitors Mills Oakley spoke by telephone with RAIN's solicitors Cooley LLP.[12] Mills Oakley told Cooley LLP that the Company intended to contact all of RAIN's shareholders proposing to sell its share in RAIN. Cooley LLP's representatives said in response that it was RAIN's express wish that the Company not contact RAIN's shareholders directly and that RAIN itself would consider which shareholders might be appropriate purchasers and that RAIN would connect the Company with those shareholders.

30 Simens' evidence was that he would have preferred that the Company contact all RAIN shareholders in the first instance in order to obtain the widest potential range of offers for the Company's shares in RAIN, if any were forthcoming, as Mills Oakley had proposed to RAIN. However, given that RAIN held what Simens understood to be in substance a right of a veto over any transaction involving the Company's shares, and the Company's limited financial ability to deal with any dispute if RAIN were to reject a proposed share sale (whether rightly or wrongly), he and Mr Koutlis made the decision that it was in the Company's best interests to accede to RAIN's request and not to approach all of RAIN's shareholders directly, as to do so would be contrary to the wishes of RAIN and potentially result in RAIN refusing to approve or otherwise attempting to prevent the transaction, thereby stymying the Company's efforts to realise the value in the RAIN shares before the Company 'ran out of oxygen'.

31 Simens spoke with William Passo, the CEO of RAIN, about the Company's desire to dispose of its shares in RAIN. In early January 2025, Passo introduced Simens to Bowden on the basis that Bowden was an interested party who might seek to acquire the Company's shares in RAIN. Simens had not previously met or heard of Bowden. Simens had a number of calls with him during January 2025 about a potential sale of the Company's shares in RAIN.

32 On 23 January 2025, the Company received from Bowden an offer to acquire the Company's shares in RAIN at a price of $1.09 USD per share, subject to approval from the board of RAIN and by a majority of the Company's shareholders. The offer was to be funded from cash reserves and was not subject to finance (First Bowden Offer). Bowden's letter stated that the offer was to be legally binding only upon the execution of a purchase agreement to be prepared by Bowden's lawyers. The offer included a 'no‑shop' exclusivity period until 28 March 2025. The offer was open until 28 January 2025. Bowden required the existence and terms of the offer to be kept confidential. The Company's directors understood that the transaction with Bowden was approved by RAIN.

33 In January 2025 during a video call, Bowden showed Simens and Koutlis an extract of his bank statement which satisfied the directors that Bowden had sufficient cash reserves personally to complete the transaction contemplated in his offer.

34 Although approval by the Company's shareholders was a term of the offer, Simens and Koutlis had agreed that in any case, because of their involvement and the Company's involvement in this proceeding, any transaction in which the Company's RAIN shares were to be sold should be put to a shareholder's vote.

35 On 26 February 2025, the Company issued a notice calling a general meeting of its members to be held on 19 March 2025, proposing approval of the transaction with Bowen which had, by that time, been reduced to a written share sale agreement. Shareholders were told that they could view the agreement subject to executing a confidentiality deed. As noted earlier, it was proposed in the alternative that the Company enter liquidation. Simen's evidence was that the second resolution was proposed on account of the fact that the Company could not continue operating if the transaction wasn't approved. The documents were provided to the plaintiff's solicitors, Adley Burstyner, on the day the notice was issued.

36 On 4 March 2025, Bowden, through his lawyers, informed the Company's solicitors Mills Oakley, that he wished to change the terms of his offer, so that on revised terms Bowden would acquire an option to purchase the Company's RAIN shares, on payment of a non‑refundable option fee. More particularly the terms were that:

(a) Bowden will pay the Company a $350,001.08 USD Initial Fee in consideration of which the Company will grant Bowden an option to acquire the Company's shares in RAIN at a price of $1.09 USD within 6 months of the execution date of the agreement;

(b) in the event that Bowden exercises the option within the option period he will then make a further completion payment of $1,369,324.59 USD (total payment $1,719,324.59 USD);

(c) in the event that Bowden does not exercise the option within the option period he will forfeit the $350,001.08 USD payment to the Company and the Company shall be entitled to dispose of its RAIN shares elsewhere;

(d) the Company will grant security over its RAIN shares in favour of Bowden to secure his ability to exercise the option; and

(e) Bowden will pay the option fee to the trust account of the Company's solicitors on signing of the document, to be held pending a shareholder resolution approving the transaction,

(the Second Bowden Offer).

37 Simens' assessment was that the apparent reason Bowden changed the terms of his offer was the drastic change in global and US financial conditions since Bowden made his first offer in January 2025. Simens understood that RAIN was at that time trying to raise capital but had been unable to do so. Bowden conveyed to Mills Oakley that the change was due to the fact that he considered there was 'currently material uncertainty about whether Rain can raise further capital to continue operations beyond June.' He said that, 'if it can't raise capital, or is sold, then (depending on the sale price) Crypt[ai] and other common stock holders would likely get nothing'.

38 Mills Oakley responded on 4 March 2025, indicating that the Company was agreeable to the new terms, subject to Bowden agreeing to waive the confidentiality requirement covering the transaction so the Company could confer with its shareholders and that Bowden waive the 'no‑shop' condition of his offer so that the Company could offer its RAIN shares to the shareholders of RAIN or the Company, on terms as good or equal to the terms of Bowden's offer. Bowden agreed to those terms.

39 On 6 March 2025, Mills Oakley wrote to RAIN's lawyers Cooley LLP noting Bowden's concessions and requested the contact details of any other of RAIN's shareholders who may wish to acquire the Company's shares on terms which were as good, or better than those currently proposed by Bowden. Mills Oakley also asked whether RAIN would permit the Company to sell its RAIN shares to the Company's shareholders on the basis that any transaction be on terms which are as good, or better than those currently proposed by Bowden. Cooley LLP indicated that they would discuss with RAIN and revert, but RAIN did not respond to the request.

40 Between 31 March to 16 April 2025, the Company and Bowden negotiated and finalised a 'Stock Option and Transfer Agreement' (STA) providing for the Second Bowden Offer (to which the Company, Bowden and RAIN will be parties), which was sent to RAIN for their review and approval on 16 April 2025.

41 It will be recalled that the Company had given notice of a general meeting of its members to be held on 19 March 2025. On 13 March 2025, the Company received an offer to purchase the Company's RAIN shares from one of its own shareholders, Alloy Consulting Pty Ltd, the terms of which were that Alloy would acquire the shares at $1.44 USD per share, subject to conditions that the transfer of shares satisfied RAIN's by‑laws, the transaction was approved by a majority of the Company's shareholders, and that the purchase price, less $250,000, be held in a controlled money account in the names of Mills Oakley and Adley Burstyner pending the hearing and determination of this proceeding (Alloy Offer).

42 On the same day as the Alloy Offer was received, the Company's solicitors received a demand from the plaintiff that the resolutions proposed for the 19 March meeting not be put, threatening an injunction. The plaintiff's solicitors' letter said that if the resolution in respect of the Bowden offer was passed, members would not be afforded the opportunity to consider and if thought fit, to pass a resolution approving the Alloy Offer. It was put that the Alloy Offer was more favourable to the Company and its members than the Bowden offer. After considering the Alloy Offer and taking advice, Simens and Koutlis determined to adjourn the meeting scheduled for 19 March to allow further consideration and investigation of the offer.

43 In later correspondence (on 18 April 2025) Govinda (the plaintiff's sole shareholder) revealed that he was the 'financial backer' of the Alloy Offer.

44 Mills Oakley sought from RAIN's lawyers RAIN's indication as to whether it would be prepared to approve the transaction contemplated by the Alloy Offer.

45 On 14 March 2025, the Company issued a shareholder update, advising of the terms of the Alloy Offer, stating that the directors were considering the offer and that they considered that the shareholders' best interests would be served by adjourning the meeting until 24 April 2025 (and proposing resolutions to that effect). The directors invited offers from any other shareholders who may wish to furnish an offer to acquire the Company's shares in RAIN, on terms as good or better than those proposed by Alloy, to do so by no later than 21 March 2025.

46 The Company's solicitors wrote to Andrew Jones, director of Alloy on 14 March 2025, asking questions about the requirement to quarantine the funds from the sale, and seeking information to facilitate approval by RAIN of Alloy as a potential transferee. The Company told Jones that RAIN required certain information about Alloy in order to consider whether to approve the proposed transfers if they were accepted by the Company's shareholders, and that RAIN's lawyers had said that if Gabriel Govinda or entities associated with him were to have an interest in RAIN shares upon completion of the transaction the RAIN board would likely not approve the proposed Alloy acquisition. Two days before the offer was due to lapse, Jones told the Company that he would only deal with RAIN directly regarding the information RAIN required, and indicating that documents confirming Alloy's financial position would be provided once a deed of confidentiality was agreed. Disputes ensued about confidentiality which Jones and the Company's directors had not resolved before the offer expired. Alloy did not seek to renew the offer.

47 On 28 March 2025, the Company received a letter setting out a written offer from Compound Cubed Pty Ltd, addressed to the Company's shareholders seeking to purchase their shares in the Company. The offer was communicated under cover of an email from Adley Burstyner to Mills Oakley. The email stated that it attached 'an offer which has been made to purchase your client's respective shares in CrytAI' with a request that it be passed on to all shareholders through the Company's directors, and observed that it appeared to represent excellent value. The offer letter was signed by Andew Jones as director of Compound Cubed. It will be recalled that Jones is also a director of Alloy. The offer was addressed to 'Dear Shareholder' and stated that,

Compound hereby offers to purchase your shares held at the time of this Offer for the price of AUD $2.70 per share, subject to the following conditions:

(i) that the proposed transactions with Mr Bowden and Alloy Consulting Pty Ltd not proceed;

(ii) following any pre‑emptive process required by the Company's constitution that the plaintiff receives acceptances such that it owns a majority of the shares in the Company;

(iii) that the shareholders vote in favour of resolution to remove the current directors and replace them with Andrew Jones or another nominee approved by the plaintiff;

(iv) the Company's debts, excluding legal costs, did not exceed $100,000; and

(v) the Company does not issue any other shares between the date of the offer and the date which is 14 days after conditions (i) and (ii) above are satisfied.

The offer must be accepted in writing by email to andrew@alloyconsulting.com.au by 5pm on 15 April 2025 after which it will lapse.

48 The offer was said to extend to all shares held by shareholders including those purchased pursuant to the offer made by the Company on 26 June 2024.

49 An ASIC search undertaking by the Company's solicitors revealed that the offer was in fact made by the plaintiff. Simens' evidence was that he had not heard of Compound Cubed and did not appreciate at the time of receiving the offer that it was in fact an offer made by the Plaintiff which had on 28 March 2025 (the same day the offer was made) changed its name from Govinda Freedom Fund Pty Ltd and appointed Jones as director in place of the previous director. Adley Burstyner's letter did not advise Mills Oakley of that fact and did not say that the offer was made by the plaintiff.

50 After reviewing the offer Simens instructed the Company's solicitors to make contact with the new offeror to obtain more information about it. The Compound Cubed Offer required that the Company not accept the Alloy Offer which was still open at the time. On 31 March 2025, the Company's solicitors wrote to Jones requesting that Alloy extend the time for the acceptance of the Alloy Offer to 15 April 2025 (the same date as the Compound Cubed Offer) and offering that the Company would sign a confidentiality deed so that documents regarding Alloy's funding capacity could be provided.

51 While the Compound Cubed Offer was an offer to the Company's shareholders and did not in itself require input from the Company, given that the offer was expressed as competing with Bowden's offer, Simens and Koutlis took the view that they were required to consider the impact of the Compound Cubed Offer on the Company's affairs. Simens concluded that the Compound Cubed Offer was incapable of acceptance at the time that it was made because the Company had debts in excess of $100,000.

52 Simens' evidence was that he had 'serious concerns about the bona fides of the offer' and because of those concerns he was reluctant to invest significant time or Company resources into consideration of the Compound Cubed Offer until such time as he received comfort that the plaintiff had the capacity to perform in accordance with its offer. His evidence was that he had formed that opinion because of a number of circumstances, including:

(a) the fact that the Compound Cubed Offer potentially required the plaintiff to pay up to $2,842,441 in respect of shares in the Company, whereas he had no reason to believe that the plaintiff has the ready capacity to pay that amount. Among his reasons for reaching that view was the fact that in the plaintiff's statement of claim in this proceeding the plaintiff admitted that it did not have the resources to complete the 2024 June Share Offer (the subject of the plaintiff's first injunction proceeding) which required the plaintiff to pay $413,385, significantly less resources than the Compound Cubed Offer);

(b) his suspicion that Gabriel Govinda, the sole shareholder of the plaintiff, had a strong desire to obtain control of the RAIN shares, and would seek to prevent any transaction by which those shares were sold to an unrelated person such as Bowden;

(c) in his view the unusual and opaque way that the Compound Cubed Offer had been presented (by not identifying that it was in fact an offer from the plaintiff,);

(d) his opinion that the plaintiff had previously expressed its interest in acquiring shares under the June Share Offer, and in funding the Company in December 2024, but had had not proceeded with those transactions;

(e) what he had learned about Govinda from public statements by ASIC to the effect that Govinda had previously been convicted of 42 charges of market manipulation under sections 1041B and 1041D of the Corporations Act, including the making of dummy bids and the coordinated use of multiple trading accounts in the names of third parties to manipulate share prices and increase the price of shares in which he had an interest (for which Govinda was sentenced to imprisonment and is currently released on recognisance);[13] that Govinda had publicly written prior to his conviction that "dummy bids are all part of the fun and games and cat and mouse of the stockmarket!".[14]

53 Simens' assessment of Bowden's revised offer at the time was that it was less attractive than Bowden's previous offer (there was no guarantee that the option would be exercised) but the offer terms still represented the best terms available to the Company and guaranteed it a return of at least $350,000 USD. The unconditional receipt of $350,000 USD as an option price would be a meaningful benefit to the Company and its members in circumstances where the Company is presently in significant debt and has no cash to meet its debts or to fund its activities. Simens' evidence was that he believed that the Second Bowden Offer would have the clear commercial benefit of solving the Company's immediate cash needs, ensuring that the Company's debts to its creditors could be paid, with the prospect of a meaningful return to members on the assumption that Bowden exercises the option to purchase the RAIN shares.

54 On 31 March 2025 the Company issued a further shareholder update. Relevantly, the Company told shareholders:

(a) That the Company had received an offer from Compound Cubed which was in fact the new name for the plaintiff. The key terms of the offer were set out, including that the Company's liabilities (excluding legal costs) must not exceed $100,000. The Company said that,

Presently, the conditions contained in the offer from CC/GFF would prevent the offer from being accepted as the Company has liabilities of more than $100,000. The directors intend to engage with CC/GFF on this issue and will provide the shareholders with an update in due course.

The directors note, with caution, that CC/GFF has previously made commitments to the Company which have not been honoured. This includes when GFF subscribed for shares in the June 2024 capital raise, and separately, when GFF agreed to provide funding to the Company in December 2024. Given this, the directors will seek comfort from CC/GFF regarding the bona fides of this offer.

The directors are encouraged by this development and continue to engage with all parties with a view to achieving the best result for shareholders.

(b) The Alloy Offer expired on 31 March 2025 and the directors have written to Alloy seeking information including confirmation of capacity to complete and requested an extension of time to complete. The Company received a partial response to its request for information. The Company notes that there appears to be a relationship between Alloy Consulting and the plaintiff in that Andrew Jones, the sole director of Alloy, is now also the sole director of the plaintiff.

(c) Bowden has advised the Company that he has withdrawn his original offer and is going to proposed alternate terms to the Company. Once those terms are finalised the Company will share them with shareholders.

(d) As part of the legal proceedings brought by the plaintiff a valuation of the Company was ordered. The valuer's opinion was that he could not form a view of the value of the Company's shares because of the paucity of information available from RAIN.

(e) The Company has previously written to shareholders on a number of occasions about its financial position. The Company sought to raise funding in December 2024. Despite initial agreement from Gabriel Govinda/the plaintiff, funding was not received from either of those parties. The funding challenges faced by the Company precipitated its desire to engage with third parties on the sale of the RAIN shares. Whilst that process was ongoing, the Company has raised funds from shareholders on the terms set out in the December 2024 call for funding.[15] The Company currently holds $142,000 in secured loans raised pursuant to the debt facility referred to in the shareholder update on 10 December 2024. This funding remains open to all shareholders.

55 On 1 April 2025, Mills Oakley wrote to Adley Burstyner asking for details of the assets and liabilities of the plaintiff and of any other resources from which it proposed to fund the acquisition of shares contemplated by its offer to buy shares in the Company. Mills Oakley said that that information was required in order for the Company to recommend the offer to shareholders. It said that if the information was not forthcoming the Company would need to tell shareholders that the plaintiff had not been forthcoming with its information and that there was a material concern that if accepted, the offer may not be completed.

56 The Company sent out a notice to shareholders on 3 April 2025 calling a meeting of the Company's members on 24 April 2025 at which (as noted earlier) the proposed resolutions addressed both the Bowden offer and the Alloy Offer.

57 On 4 April 2025, Adley Burstyner wrote to Mills Oakley saying that if the Company and its directors would sign a confidentiality deed then the plaintiff would provide evidence of its financial capacity to perform the Compound Cubed Offer.

58 Between 4 and 7 April 2025, Adley Burstyner and Mills Oakley conferred on the confidentiality deed, which was then signed. Between 9 and 11 April the parties' solicitors corresponded about the resources available to the plaintiff to complete its offer (addressed further below).

59 On 14 April 2025, Adley Burstyner asked Mills Oakley to provide to it any revised offer that Bowden had made, noting that in the shareholder update of 31 March 2025 the Company had advised that Bowden had withdrawn his offer. By reply on 15 April 2025 Mills Oakley said that Bowden had amended his offer, and that the Company and its directors were engaging with him in relation to that offer and expected to be able to update shareholders by the end of that week.

60 On 15 April 2025, Adley Burstyner wrote to Mills Oakley saying that the Company had not informed shareholders of the total amount of its liabilities and all that had been said is that its debts exceeded $100,000, and that not providing that information was oppressive and a basis for further injunctive relief. Mills Oakley replied saying that the request for details of the Company's debt position was relevant only to the plaintiff's offer and that there was no utility in engaging on the terms of that offer in circumstances where the plaintiff did not have the resources to complete the offer. The Company said it would convey details of its debts to the plaintiff when that information was conveyed to all shareholders.

61 On 16 April 2025, Adley Burstyner wrote to Mills Oakley seeking undertakings that the meeting to be held on 24 April would not proceed and that the proposed resolutions would not be put, and otherwise threating proceedings. The matters subsequently made the subject of the injunction application (save for the plaintiff's Second Offer which had not been then made) were set out in the letter. The undertakings were not given (with Mills Oakley stating its position by letter of 16 April).

62 On 17 April 2025, the Company provided a shareholder update in which it discussed the Second Bowden Offer, the Compound Cubed Offer, the Alloy Offer and the threatened injunction. In relation to the Second Bowen Offer the Company said,

After initially providing an offer to acquire the Company's shares Mr Bowden advised the Company that he wished to revise the terms of his offer. As the offer had yet to be put to a meeting of members and approved Mr Bowden was entitled to amend the terms of his proposal.

Mr Bowden has amended the terms of his proposal as follows:

The transaction between the Company and Mr Bowden will a [sic] stock and option transfer agreement whereby:

1. Mr Bowden will pay the Company a $350,001.08 USD Initial Fee where the Company will grant Mr Bowen an option to acquire the Company's shares in Rain at a price of $1.09 USD within 6 months of the execution date of the agreement.

2. In the event that Mr Bowden exercises the option to acquire the Company's shares in Rain within the option period he will then make a further completion payment of $1,369,324.59 USD (total payment $1,719,324.59 USD).

3. In the event that Mr Bowden does not exercise the option within the option period he will forfeit the $350,001.08 payment to the Company and the Company shall be entitled to disclose of its Rain shares elsewhere.

4. The Company will grant security over its Rain shares in favour of Mr Bowden to security [sic] his ability to exercise the option.

5. Mr Bowden will pay the option fee to the trust account for the Company's solicitors on signing of the document, to be held pending a shareholder resolution approving the transaction.

Shareholders will note that the above proposal is different to the initial transaction in that rather than a sale of all shares, the Company is granting an option to sell the shares with a transaction to potentially occur later in the year.

The Company understands from Mr Bowden that the changed position is on economic concerns which could impact Rain.

Whilst the directors of the Company acknowledge that the terms of the Bowden offer are less advantageous than those previously offered by Mr Bowden, this offer represents the only serious, bona fide offer received by the Company which is capable of acceptance and which the Company has confidence that, if accepted, will complete.

Mr Bowden has provided the directors of the Company with sufficient comfort regarding his ability to fund the above transaction.

63 In relation to the Compound Cubed Offer (a copy of which was enclosed with the update) the Company said that the headline price for the offer was in the directors' view, attractive. However, the offer contained other terms which made it incapable of acceptance, including with respect to its debt position. It also said that,

The directors were cautious in relation to this offer given its [sic] was provided by a party who the directors consider to be unreliable on account of a history of promising to provide funding to the Company and then failing to honour those promises. For example:

a) In the June 2024 capital raise, Compound Cubed (previously Govinda Freedom Fund) executed documents confirming it would participate in the capital raise and then failed to complete.

b) In December 2024, Compound Cubed (previously Govinda Freedom Fund) confirmed that it would lend money to the Company as part of a secured debt arrangement, but then sought to materially alter the terms of the proposed arrangement.

Given this, the directors sought comfort from Compound Cubed that it had the resources to complete the transaction if approved by the requisite number of shareholders.

After reviewing the material provided by Compound Cubed's solicitors, the directors of the Company came to the view that Compound Cubed had failed to provide any information by which the directors could be satisfied that it had any assets to complete the transaction. This information is the subject of a confidentiality agreement, and the directors are not able to disclose any details of what was provided to them.

Since confirming the position above to Compound Cubed it has not sought to provide any further material to allay the Company's concerns regarding its resources.

Accordingly, for the reasons set out above, the directors formed the view that the Compound Cubed offer, even if amended to remove terms preventing completion, was not bona fide as Compound Cubed lacked the resources to complete the transaction.

64 In relation to the Alloy Offer (a copy of which was enclosed with the update) the Company said that the offer price was superior to that offered by Bowden, and that the Company had sought to engage with Alloy with limited success. Alloy had not provided the information required for RAIN to consider its offer and the offer had lapsed before the directors were able to consider information about Alloy's ability to complete the transaction.

65 The directors summarised their views, saying that Bowden's offer remained the only bona fide offer which was capable of acceptance by the Company. The change of position by Bowden meant uncertainty in terms of a disposal of the Company's assets, but it was nevertheless the directors' view that it was in the best interests of shareholders to accept that offer. It was said that, 'in light of the difficult economic climate and financial conditions faced by the Company, acceptance of Mr Bowden's offer is likely to provide a better outcome to shareholders than the alternative, which is the liquidation of the company. The other offers ... (for the reasons set out) are in the Company's view illusory and do not provide for a realistic opportunity for the Company to sell its shares in RAIN or for the shareholders to exit the Company.'

66 On 18 April 2025, Simens received a letter by email from Gabriel Govinda that was addressed to 'the shareholders, directors and solicitors for the Company'. In that letter, Govinda described himself as the 'financial backer' of the Alloy Offer, which had lapsed. Govinda made an offer in his own name to purchase any or all of each shareholder's shares in the Company at a price of AUD $2.72 per share, subject to a series of terms, relevantly that:

(a) the Second Bowden Offer is rejected;

(b) the Company has not entered any agreement to sell its RAIN shares;

(c) Govinda obtain acceptances sufficient to obtain a majority shareholding in the Company;

(d) that the Company disclose its debt position and that debt not exceed $158,213; and

(e) no other Company share transactions occur prior to the completion of the Govinda's offer.

67 On 18 April 2025, certain shareholders (including those associated with the directors) who represented 42.19% of the issued shares in the Company, responded to Govinda's offer, on an open basis, stating the terms on which those parties would agree to sell their shares to Govinda, including that:

(a) they would agree to sell their shares at a price of $2.72;

(b) subject to the pre‑emptive regime in the Company's constitution, one or more of Govinda, Compound Cubed or Alloy Consulting Pty Ltd undertake to acquire those shares at $2.72 per share;

(c) the transaction complete by 28 May 2025;

(d) these proceedings be dismissed, with there being no order as to costs;

(e) there be full and final releases as between the parties to the litigation, including as between the Company and its directors;

(f) in the event that the shares are offered for sale and any party who undertakes to acquire them fails to complete that transaction then:

(i) Compound Cubed will immediately confer on the Company's directors a binding, irrevocable authority to vote its shares in any shareholder meeting relating to the sale of the Company's shares in RAIN;

(ii) Compound Cubed will undertake not to commence proceedings in relation to any such sale of the RAIN shares, and that Compound Cubed and Govinda will provide an indemnity to the Company in relation to the costs of any such proceedings;

(iii) Compound Cubed will undertake to offer to sell its shares to the Offer Shareholders, following the process set out in the Company Constitution, for $0.75 per share.

(g) the shareholder loan owed by the Company, in the amount of $142,000, would be forgiven and the parties making the offer will reimburse the Company for any other outstanding legal bills;

(h) a prior transaction whereby the plaintiff was selling some of its shares in the Company to other shareholders of the Company, which had yet to complete, not be finalised and that the funds held by the Company for that transaction be returned to the respective shareholders;

(i) the above agreement needed to be recorded in writing and signed by the parties by 22 April 2025.

68 On 20 April 2025, the Company sent a copy of the sale agreement in respect of the Bowden offer, together with the copy of the related security agreement, to Adley Burstyner. They said in their email to Adley Burstyner that the agreement was presently with RAIN's lawyers to confirm that RAIN was content with its terms, and that subject to receiving that confirmation the agreement could be executed.

69 The counteroffer was rejected in a letter from Adley Burstyner to Mills Oakley on 21 April 2025, which proposed that the parties agreed to adjourn the Meeting fixed for 24 April and the injunction application for a month. That proposal was rejected on 22 April. On 22 April 2025, the plaintiff made a further offer (i.e. the plaintiff's Second Offer) to purchase shares in the Company, addressed to all shareholders, with an offer price of AUD $2.72 per share and a requirement that the Company's debts not exceed $142,000 (excluding moneys owed to the Company's lawyers) on the date payment of the offer price is due (on or before 30 May 2025). The offer was on substantially the same terms as its previous offer, including the requirement that the plaintiff receives acceptance of that number of shares such that it would hold a majority shareholding in the Company. The offer was expressed to be open until 5 May 2025. Some thirty minutes later Govinda withdrew his extant offer, on the premise that he would be financing the plaintiff's offer. The plaintiff's Second Offer was withdrawn on 25 April 2025.

70 The resources available to the plaintiff to complete offers it has made is relevant to the evaluation of the balance of convenience on the application to restrain Resolution 3.

71 The plaintiff's offers were conditioned upon the plaintiff achieving a majority of shares in the Company and in order to acquire a majority of shares the plaintiff would need funding of $1,031,000. To acquire all shares held by other shareholders (as offered) the plaintiff would require approximately $2,886,000.

72 On 9 April 2025, Adley Burstyner told Mills Oakley that the plaintiff had access to the following resources to complete its offer:

If this offer is accepted, Compound will complete the transaction with the following assets and facilities

Liquidation of ASX shares as per attached GBA capital report dated 9 April 2025 (today), in name of Gabriel Govinda $883,600.82

Loan from GBA Credit secured against real property (valued at $2.13 million)

$1,229,520.00

Cash in Great Southern Bank per attached printout,

$106,660.00

Shares in Double view Gold Corp (invested in CAD, company listed on TSX in Canada), being a holding of 125,000 shares, with the attached screenshot showing current value per share. Shares are in the name of related company, Bull Equities Pty Ltd, where Gabe Govinda is 100% shareholder

$101,425.32

Compound Cubed Pty Ltd's ASX shares valued 8 April 2025 at $149,615.30, in 32 ASX listed companies, in particular AEE ($88,641.45), and MSI ($35,000). NB - some small shareholdings have not been accounted for at this stage (they would increase the value)

$149,615.30

To the extent necessary, other loans as required and secured by

1. Real property valued at least $750,000 and in the name of Gabriel Govinda (being property other than the real property that will secure the loan set out at paragraph 3(b) above); plus

2. Shares valued at $1,812,500 beneficially owned by Gabriel Govinda and in escrow until Q3 2025 calendar year (being 62.5m ordinarily fully paid ASX shares in Trigg Minerals LTD TMG issued 7 February 2025)

$1,300,000.00

1. By email on 10 April 2025, Adley Burstyner stated that its client had access to resources ('cash, shares and finance') amounting to $3,770,881 which was, I infer, a reference to the items set out in the email of 9 April.
2. Mills Oakley responded saying that on the face of the plaintiff's email there appeared to be a significant funding shortall (setting out the basis for its view) and there was no verifiable evidence, beyond assertion from Adley Burstyner, that the plaintiff had any assets. Mills Oakley said that the funding shortfall was an issue for the Company if it was going to recommend the transaction to shareholders because the plaintiff's offer would preclude acceptance of Bowen's offer and if the plaintiff failed to complete and shareholders wished to sue to enforce, there would be no assets against which to enforce a judgment. Bowden, by contrast, had shown that he had that resources to complete the transaction he had proposed. As such, if the Company were to reject Bowden's offer so its shareholders could proceed with the plaintiff's offer, the Company and its directors would have to be sure that the plaintiff had the capacity to complete.
3. Adley Burstyner responded, denying that there was a funding shortfall. Mills Oakley replied on 11 April 2025, stating,

You referred to a loan from GBA Credit but provided no documents to evidence the existence of that facility, whether it has been drawdown and who the borrow [sic] is;

You provided a screenshot of the Doubleview Gold Corp share price but provided no documents which supports that shares are held in that entity by Bull Equities Pty Ltd;

You did not provide a portfolio statement, or any other documents, which evidence that CC owns shares in 32 ASX listed companies worth $149,615.30; and

You did not provide any detail to support that there are other loans in the amount of $1.3 million over properties valued at $750,000 owned by Mr Govinda or shares valued at $1,812,500 beneficially owned by Gabriel Govinda and in escrow until Q3 2025 calendar year (including evidence that these shares are actually owned by Mr Govinda).

76 The plaintiff did not respond substantively to those matters.

77 On 22 April 2025, the plaintiff circulated an affidavit proposed to be sworn by its director, Andrew Jones (later sworn and read on this application). On the question of the plaintiff's assets Jones said only that in addition to the shares that the plaintiff has in the Company, the plaintiff owns two real properties located in South Australia and shares in 32 companies listed on the ASX valued at $131,462 as of 22 April 2025. Jones deposed that the plaintiff has no liabilities apart from potential invoices not exceeding $15,000. Jones did not address the question of the plaintiff's resource to complete the transaction.

78 On 22 April 2025, Govinda emailed Mills Oakley and others (who I infer may be shareholders) regarding his financial capacity to complete the offer - meaning, I infer, capacity to fund the offer on behalf of the plaintiff. Jones did not exhibit that correspondence to his affidavit (the plaintiff did not rely on it; the Company tendered it). Govinda referred to various items including 'bank balances' of 'circa $96,000, $69,000 and $10,000', 'approved pending loans circa $1.3 million pending singing of standard finalisation documents', 'cira $280,000 worth of the TSX/Canadian listed shares ISO (held on trust by a third party) and DGB held by Bull Equities Pty Ltd of which I am sole shareholder)', '0.52 Bitcoint HitBTX valued at $70,000 and available to liquidate pending ID verification', '95% ownership stake in Bob the Horse, prizemoney to date over $180,000 value conservatively circa $40,000', 'sports cards stored mostly in a USA vault by Fanatics Collect', an antique car collection, unencumbered Australian properties (identified only by the State in which they were said to be located, said to have a 'total minimum value, $400,000), 'unencumbered international rental properties'. A handful of screenshots and website captures were attached to the email.

79 The plaintiff was well aware that the issue of its ability to complete the transactions contemplated by its offers to shareholders was an issue of serious concern to the Company when making recommendations to shareholders. Its ability to complete was interrogated by the Company's solicitors. It was given the opportunity to put to the Company such information it wished in order to establish its financial capacity. It did not do so in any substantive way. In short:

(a) the plaintiff did not seek to establish that it would have recourse to the assets of Govinda to meet a judgment in the event it was pursued by shareholders whose offers it did not complete;

(b) even accepting the availability of cash and the ability to liquidate shares held on the ASX at the prices nominated (assets of Govinda) there was a significant funding shortfall;

(c) the remaining assets and resources of Govinda were variously, on the face of the information provided, contingent, held by third parties, in some instances not ascribed with any particular value or not demonstrably liquid, and not described with sufficient detail to provide a reasonable basis on which to conclude that the offer could or would likely be completed. The existence of the claimed assets was asserted, not substantiated. The directors' assessment that they could not be satisfied that the plaintiff had sufficient assets to complete the transaction was, on the basis of the evidence on this application, reasonable;

(d) on this application the plaintiff's director did not seek to establish the plaintiff's ability to complete the offer by any evidence from Jones. The Jones evidence referred only to the plaintiff's assets in shares in ASX‑listed companies to the value of $131,462 and to two properties whose value was not in evidence, and not to Govinda's assets or to any binding arrangement between the plaintiff and Govinda that would give the plaintiff recourse to Govinda's assets.

(e) The plaintiff sought to rely on the value of its shares in the Company. There is an inherent circularity in the plaintiff's contention that it can offer its shares in the Company as security against any default in its agreement to acquires shares from other shareholders who would be (by definition) seeking to liquidate their shares. The inadequacy of the plaintiff's shares for that purpose is emphasised by the fact that there is no proven market for the Company's shares (being a private company whose primary asset is illiquid).

PART D: PLAINTIFF'S CLAIMS AND ANALYSIS

80 The plaintiff having withdrawn that part of its application depending upon consideration by shareholders of its now withdrawn Second Offer, I have not considered the matters alleged in its proposed ASOC at paragraphs [46]-[50] (alleged misleading conduct by the Company) and [51]-[56] (alleged non‑disclosure of the Company's debt position), which allegations are only directed to Resolution 1 and have fallen away with the withdrawal of the offer.

81 The remaining ground of the plaintiff's application in respect of Resolution 1 is that there is a serious question to be tried that the Company's proposal of Resolution 1 would be contrary to the interests of members as a whole within the meaning of s 232(d) of the Corporations Act because there is insufficient notice of the terms of the Second Bowden Offer; and oppressive of, unfairly prejudicial to or unfairly discriminatory against the plaintiff within the meaning of s 232(e) in circumstances where the shareholders who are the directors or their controlled entities have had reasonable notice of its terms and the plaintiff and other shareholders did not have reasonable notice of its terms.

82 The plaintiff submitted that the Company did not provide the plaintiff with Bowden's actual offer until 20 April 2025, and until then had simply summarised the terms of the offer. By contrast, it may be inferred that the Company disclosed the offer to other shareholders - in particular Koutlis who is a shareholder and the fourth and fifth defendants who are associated with the Company's directors. The plaintiff intends to vote against the Second Bowden Offer. The plaintiff's submissions did not identify any respect in which the disclosure of the terms of the offer on 17 April 2025 were incomplete or misleading, whether positively or by omission.

83 The Company accepted that it has a duty to disclose the substance of resolutions for consideration by its members. However, the authorities establish that shareholders do not need every single piece of information known to directors; rather it is necessary that the Company disclose all information material to the question whether the transaction should be approved. The material terms were disclosed to shareholders in the shareholders update on 17 April 2025. As explained in the Simens evidence, the substantive terms have been incorporated into the STA which was sent to RAIN's lawyers for RAIN's approval on 16 April 2025. On 20 April 2025 the plaintiff's solicitors were given a copy of that document, together with a Security Deed which will secure Bowden's payment under the agreement pursuant to the terms of the Second Bowden Offer. The STA reflects the terms of the Second Bowen Offer accurately, in terms advised to shareholders, and supplies the mechanical provisions that would put the agreement embodying the substantive terms of the Second Bowden Offer into effect, if approved by shareholders. If there were a divergence between what appears in the STA and the terms advised to shareholders there would be an issue, but no such divergence had been identified. The STA is still with RAIN's lawyers awaiting final approval and as Simens said in his evidence, is otherwise ready to be executed by Bowden.

84 In Fraser v NRMA Holdings,[16] the Full Court of the Federal Court considered a directors' recommendation to shareholders in respect of a members' vote on a proposed transaction to demutualise two companies. In discussing the director's duty of disclosure the Full Court relevantly said,[17]

A duty to make disclosure of relevant information arises as part of the fiduciary duties of the directors to the company and its members in relation to proposals to be considered in general meeting under s 1022 of the Law in respect of the content of a prospectus. The fiduciary duty is a duty to provide such material information as will fully and fairly inform members of what is to be considered at the meeting and for which their proxy may be sought. The information is to be such as will enable members to judge for themselves whether to attend the meeting and vote for or against the proposal or whether to leave the matter to be determined by the majority attending and voting at the meeting....A proper discharge of the duty may require that the directors take reasonable steps to ascertain relevant information for communication to members if that information is not known to the board. Directors must not consciously refrain from seeking relevant information or turn a blind eye to relevant material in order to avoid placing before members information which may contradict or qualify any particular position taken or advocated by the directors or a majority of them;

The need to make full and frank disclosure must be tempered by the need to present a document that is intelligible to reasonable members of the class to whom it is directed, and is likely to assist rather than to confuse see Devereaux Holdings Pty Ltd v Pelsart Resources NL (No 2) (1985) 9 ACLR 956 at 959; Re Dorman Long & Co Ltd [1934] 1 Ch 635 at 665‑666. In complex cases it may be necessary to be selective in the information provided, confining it to that which is realistically useful.[18]

85 ENT v Sunraysia[19] concerned the sale by a company of a subsidiary requiring shareholder approval, in which it was contended that the company had not made full disclosure in its explanatory memorandum to shareholders. Austin J summarised the relevant principles in the following terms:[20]

(a) the directors owe a duty to the shareholders of the company to provide such material as will fully and fairly inform the shareholders of what is to be considered at the meeting and enable them to make a properly informed judgment in the matters in question, including an assessment of the financial effect of the sale proposal on the company and on their interest in the company. This duty is sometimes called 'the Bulfin v Bebarfald's duty', identifying the leading judgment by Long Innes CJ in Eq, Bulfin v Bebarfalds Ltd [1938] NSWStRp 28; (1938) 38 SR (NSW) 423;

(b) the obligation to make full and fair disclosure does not oblige the directors to give shareholders every piece of information that might conceivably affect their voting. The adequacy of the information provided in documentation is to be assessed in a practical, realistic way having regard to the complexity of the proposal: Fraser v NRMA Holdings Ltd (1995) 55 FCR 452;

(c) the question is not whether the explanatory documents provided to the shareholders could have been drafted differently, but what effect the documents will have on 'the ordinary shareholder who scans or reads the document quickly, not as a lawyer, but as an ordinary man or woman in commerce or as an ordinary investor': Devereaux Holdings Pty Ltd v Pelsart Resources NL (No 1) (1985) 9 ACLR 956 at 958.

The shareholders do not need to have all of the information required by the primary decision‑makers, the directors. For example, they do not need to be presented with information about the range of alternative proposals that would need to be considered before a particular transaction is chosen. Reviewing all the alternatives is a task for the primary decision‑makers. The shareholders' task is limited to approving or rejecting the particular proposal that the directors present to the meeting, and it is not their role to choose or advocate a transaction of some other kind. The question for the shareholders is not whether the directors have selected the best possible transaction, but whether the transaction they have selected should be approved. However, the shareholders are entitled to receive all of the information that is material to the question whether the transaction proposed by the directors should be approved, including all the commercial information that is material to that question. This includes the material commercial information known to the directors, and also other commercial information that is material and accessible to the directors even if they are not aware of it.[21]

87 The plaintiff has not established a serious question in relation to the disclosure of the Second Bowen Offer. I have reached that conclusion for the following reasons.

88 The plaintiff's contention about inadequate disclosure rested on the fact that the STA had not been provided to the plaintiff until 20 April 2025 (it was unclear whether it had been provided to other shareholders). The contention was that the whole of the document should have been provided and that a 'summary' of the material terms was not sufficient. The disclosure that was made for the purposes of the vote on Resolution 1 was only said to be inadequate because the document had not been provided (or provided within time).

89 The contention did not engage with the principle that the director's duty is to provide such material as will fully and fairly inform the shareholders of what is to be considered at the meeting and enable them to make a properly informed judgment on the matters in question. It may be accepted as a matter of principle that the disclosure of terms said to be of commercial importance might be rendered incomplete or misleading by the omission of other terms to be incorporated into a contract, speaking generally. However, it does not suffice to say generally that shareholders should 'have the whole agreement'. Where disclosure has been made in respect of a transaction that shareholders are asked to approve, the question is whether that disclosure is such as will fully and fairly inform them of what is to be considered at the meeting and enable them to make a properly informed judgment on the matters in question. It is not self‑evident that where commercial terms are formally documented in an agreement, shareholders will not be fully and fairly informed unless they are provided with the document embodying the agreement as opposed to being advised of the substance of the terms. Whether or not shareholders have been fully and fairly informed will depend upon the transaction, disclosure and agreement in question.

90 The resolution on which shareholders will be asked to vote is that the Company sell its RAIN shares to Bruno Bowden on the terms proposed by Mr Bowden. The STA sets out the substantive commercial terms of the Second Bowden Offer. There is no appreciable difference between those terms as set out in the 17 April disclosure and as set out in the STA. The STA supplies further terms including as to timing for approvals and payment, warranties, conditions to closing, waivers, amendment, governing law and like provisions.

91 The plaintiff did not identify any provision of the STA that, because it had not been disclosed, made the disclosure that was made, incomplete or misleading for the purpose in issue, which is, as understood by the authorities, to make a properly informed judgment on the matters in issue; to assess the effect of the transaction on the Company and on their own interests. It did not identify a single matter that was omitted (by failure to provide the STA itself) which, as a result, meant shareholders could not reasonably make an informed judgment in considering Resolution 1. When asked, Counsel for the plaintiff did not identify any such omission.

92 The same may be said of the Security Deed, which was (briefly and faintly) the subject of oral submissions. The 17 April disclosure stated that the Company would grant security over its RAIN shares in favour of Bowden, to secure his ability to exercise the option. The security deed facilitates that term. Its effect is accurately described in the 17 April disclosure. The plaintiff did not contend to the contrary. The plaintiff did not identify a single provision of the Security Deed that, because it had not been provided, made the disclosure that was made, incomplete or misleading. It did not identify a single matter that was omitted (by failure to provide the Security Deed itself) which, as a result, meant shareholders could not reasonably make an informed judgment in considering Resolution 1.

93 Provision of the STA and Security Deed to shareholders was not necessary in order to fairly inform the shareholders of what was to be considered at the meeting - that the Company sell its RAIN shares to Bruno Bowden on the terms proposed by Mr Bowden - and to enable them to make a properly informed judgment, including an assessment of the financial effect of the transaction on the Company and on their interest in the Company.

94 The directors provided relevant commercial context in the 17 April update, specifically stating that the offer was less advantageous than the previous Bowden offer, and that it was the grant of an option, not a straight sale of shares. The plaintiff made no complaint about the directors' recommendations concerning the Bowden offer. It had complained about one aspect of the directors' statements about the plaintiff's First Offer which was subsequently overtaken by the Second Offer which was itself subsequently withdrawn.

95 Disclosure to shareholders on 17 April 2025 occurred within a relatively short period of time before the proposed Meeting (then proposed for 24 April and deferred by Court order until delivery of this Judgment on 28 April) but given what was disclosed and how it was disclosed I do not consider that there is a serious question that shareholders have had insufficient time to consider the Bowden offer. The form of the disclosure was plain and readily understood. It was not said to have been complex or confusing. It occurred against a background of previous disclosure of Bowen's first offer and of the Company's several communications to shareholders about its intended sale of its RAIN shares and its rationale for seeking to do so. It was not said that the 17 April disclosure was made by a method that was unlikely to reach shareholders quickly. It was not alleged that the timing of the convening of the meeting involved bad faith or an improper purpose.

96 The plaintiff itself has determined not to accept the Bowden offer and did not contend that it required more information or further time to consider the STA or Security Deed in order to fairly make that decision.

97 The plaintiff has not established a serious question in relation to the Company's disclosure being unfairly discriminatory against the plaintiff. By way of example, Koutlis is a director and shareholder. It follows that he will have known of the Second Bowden Offer before that offer was advised to other shareholders. That circumstance was unavoidable unless the offer was communicated to shareholders instantaneously or immediately after being made. However, the mere fact that certain shareholders are also directors or are controlled or owned by directors does not without more, establish unfair discrimination. The question is whether the shareholders who did know of the terms of offer in advance (because of their association with the directors) had an unfair advantage. No unfair advantage was established.

98 Because I have found that no serious question arises, the plaintiff's question in respect of Resolution 1 should be rejected.

99 The plaintiff's application linked the disclosure about the Second Bowden Offer to the various contentions concerned with the consideration of the plaintiff's Second Offer. The plaintiff's written submissions described the disclosure about the Second Bowden Offer as an aspect of the Company's 'taking steps to prevent the plaintiff's offer from being accepted by its shareholders'. The argument addressed to the balance of convenience if Resolution 1 were not restrained, was that,

Were the meeting to proceed, and were shareholders to vote in favour of Mr Bowden's proposal, shareholders would be deprived of an opportunity of accepting a further offer from the plaintiff which is clearly superior to the Bowden proposal.

100 Differently put, the plaintiff sought to weigh on the one hand, the risk of restraining voting on Resolution 1 (should it turn out that on a final basis, shareholders were not shown to have been inadequately informed) against the loss of an opportunity to vote on a better offer, on the other. That analysis is now otiose, the plaintiff's offer having been withdrawn.

101 The evaluation of a contention that shareholders have not been adequately informed for the purposes of the exercise of a vote in general meeting sits somewhat uncomfortably in a serious question framework. To my mind, if the Court is satisfied that there is a real risk that shareholders are not properly informed a restraint ought follow. As I have said, I am not satisfied that that is so.

102 I will in any case address the considerations advanced on the balance of convenience issue, noting the context in which they were made.

103 As set out earlier, how strong the probability that the plaintiff will succeed at trial needs to be, depends on the nature of the rights asserted and the practical consequences likely to flow from the relief sought. In considering where the lowest risk of injustice lies, all relevant factors are to be weighed in the balance. The strength of the applicant's case and their chances of success may be a relevant matter when assessing the balance of convenience. The adequacy of the undertaking as to damages is a relevant factor to be taken into account in weighing the balance of convenience, particularly in commercial cases. Assuming there is a serious question (contrary to my view), I consider the plaintiff's case to be weak, for the reasons I have given.

104 As to the plaintiff itself, there could be no injustice in refusing the injunction to defer the vote on Resolution 1. The plaintiff's offer having been withdrawn, the only question is one of adequate notice of the Bowden offer. The plaintiff accepted that further or different disclosure about the Bowden offer was immaterial to it. The plaintiff is determined to vote against Resolution 1, come what may. To the extent that the plaintiff sought to advocate for the position of shareholders generally, it did so in order to allow further time for consideration of its own (now withdrawn) offer, as its written submissions made clear.

105 The plaintiff submitted on the subject of balance of convenience that deferral of the Meeting (especially if it is deferred for a period of two weeks) could not be assumed to result in harm to the Company: there is no evidence that the Bowen offer will not be re‑put. The STA has not yet been executed and negotiations are ongoing. The STA requires the directors to make reasonable endeavours to obtain shareholder approval by 28 April 2025 but deferral by Court order will not cause a breach of that term, self‑evidently.

106 The Company correctly said that the STA requires that the Company obtain shareholder approval[22] of the transaction and the STA by 28 April 2025 (the 'sunset date'), without which the initial payment to be made by Bowden (the option fee) must be refunded.[23] The initial payment is to be in the sum of $350,001.18 USD ($0.22189 USD per share). That represents a tangible commercial benefit - a cash payment of funds that are, in the Company's circumstances, of considerable value. On the question whether a failure to obtain shareholder approval by 28 April 2025 would result in the loss of the bargain in the circumstances, the Company submitted that the terms put forward are the only ones that have been agreed. As the Simens evidence establishes, Bowden is ready to execute the STA, subject to RAIN executing the document. The directors understand that RAIN has approved the transaction itself.

107 The STA is not yet executed. If the agreement is not in fact executed there will obviously be no requirement for Bowden to perform it, including making the initial payment. The Company's counsel accepted that there would be 'problems' if execution of the STA had not occurred by the 'sunset date' of 28 April 2025. The initial payment by Bowden is to occur within 2 days of the effective date (which is the execution date).[24] Provided the STA is executed by 28 April and shareholder approval is obtained by that date, Bowden would be obliged to make the initial payment and the Company would be entitled to release of those funds to it. I accept on the evidence that the Company reasonably expects that it will be executed imminently (i.e. that was its expectation at the time this application was heard on 23 April).

108 The plaintiff correctly said that the STA requires shareholder approval of the STA and the transactions contemplated by it and of the Security Deed. The implications of that requirement were not addressed clearly in the plaintiff's submission. As I apprehend it, the point went to the balance of convenience. Although not put in these terms, the substance of the point was that if the STA required a different form of approval by shareholders than that which was sought by Resolution 1, the deal with Bowden may fall over in any event. In those circumstances no harm would flow from an adjournment of the Meeting and restraining voting on Resolution 1.

109 The Company said that what was being sought from shareholders was their approval to the sale of its shares in RAIN. It is in that sense that the Company is seeking approval of an agreement, the material terms of which had been disclosed. The entry into an agreement with Bowden and RAIN and the execution of documents embodying that agreement are matters for the Company, as determined by its directors. I accept the Company's submission.

110 I also accept that the evidence establishes the existence of a real, tangible opportunity that the Company reasonably expects will materialise, in the form of the receipt of the initial payment (non‑refundable once it has been released) and the opportunity for the Company to sell its RAIN shares to Bowden if he decides to exercise the option, where he is incentivised to do so by the initial payment term. The opportunity is real and tangible, even accepting there are hurdles to it materialising.

111 The terms that have been proposed and which the Company expects will be executed, require shareholder approval to be obtained by 28 April 2025. I accept that while it is possible that Bowden and RAIN might be prepared to agree to a different sunset date, there is, on the evidence, in view of the proposed terms and Simens' evidence that Bowden has agreed to those terms and that no others are proposed, a risk that that might not occur. The plaintiff bears the onus of establishing that the balance of convenience lies in favour of the relief it seeks. It is not entitled to speculation in its favour.

112 The same may be said of the plaintiff's submission that 'there is no reason to suppose that even if the Company were to lose the Bowden option proposal, it would be unable to sell its RAIN shares to anybody else', and the plaintiff's speculation about the quantum of the Company's loss, if the Bowden offer were to fall over.

113 Furthermore, the plaintiff has established that it has assets to the value of $131,462 (with current liabilities of about $15,000). It made no attempt to establish the value of its real properties, on this application. The plaintiff submitted that the value of its shares in the Company should be taken into account in assessing its assets available to support an undertaking as to damages. Should the Company suffer loss because it loses the Bowden deal, it will have lost Bowden as a potential buyers for its RAIN shares. The proposition that a liquidity event might occur by another RAIN shareholder (or some other person) making an offer to buy the Company's RAIN shares is speculative. If the Company's principal asset remains illiquid, the prospect that the plaintiff can readily liquidate its own shares in the Company in order to meet its undertaking as to damages is also speculative. The plaintiff's lack of available assets is a factor, among others, that tells against the grant of an injunction.

114 On balance, I am not satisfied the balance of convenience favours the grant of an injunction in respect of Resolution 1. That part of the plaintiff's application is refused.

115 In the First Injunction Ruling, I accepted that there were serious questions to be tried that the shares offered and issued by the Company in the June Share Offer were offered at a value below their true value and that the dominant purpose of the capital raise pursuant to the June Share Offer was to dilute the plaintiff's shareholding. The plaintiff seeks final relief in the proceeding setting aside the issue of any June Share Offer shares. Before those shares were issued the plaintiff held 36.7% of the Company's shares, with which entitlement the plaintiff's vote alone could defeat a special majority (more than 75%) required for the passing of Resolution 3. The plaintiff intends to vote against Resolution 3.

116 The plaintiff said that on the offer of shares at an under‑value the serious question was now fortified by the offers that had occurred since that time, both in respect of the Company's RAIN shares (Bowden's offer at $1.09 USD/share) and in respect of the shares in the Company itself. The Company said that the fact that the independent valuer could not value the Company undermined the conclusion in respect of the serious question.

117 Neither of those matters takes the issue very far. Recent offers for the Company's shares subsequent to June Share Offer (or for the Company's RAIN shares) could only inform the serious question analysis to the extent that they informed the value of the shares when the June Share Offer was made. That issue was not addressed in submissions. Furthermore, the recent offers for the Company's shares, made by related parties, have been withdrawn or allowed to expire without having been accepted, or have been rejected. The inability to place a value on shares might itself affect their perceived value but necessarily, by itself, does not permit a conclusion about whether the June Share Offer was made at an undervalue.

118 Separately, those matters were not said to inform the distinct basis for the finding in the First Injunction Ruling that there was a serious question that the shares had been offered for the dominant purposes of diluting the plaintiff's shareholding.

119 I will proceed on the basis that the plaintiff has established a serious question in respect of that part of its application that concerns Resolution 3.

(a) The plaintiff expects that its shareholding will increase in value over time. The plaintiff will be irreversibly denied that opportunity (for its shares to increase in value in the ordinary course, with the Company continuing) if shareholders are permitted to vote to appoint a liquidator. If that is allowed it will occur in circumstances where, but for the dilution of the plaintiff's shares by reason of the June Share Offer, it could have voted to defeat a resolution to appoint a liquidator.

(b) If a vote on Resolution 3 is restrained it is accepted that the management of the Company's affairs will be 'frustrated' in the sense of shareholders not being permitted to vote on a resolution proposed by the directors, but it is significant that there is in fact no evidence of any urgency for the shareholders to vote on appointing a liquidator, particularly not between now and the date fixed for mediation (a 2 week period). If the Company's directors genuinely consider that the Company is insolvent or likely to become insolvent they can resolve to appoint a voluntary administrator without the need for a resolution of members. That they have not done so is telling. The Company is not trading; its only activity apart from this litigation is to passively hold its investment in RAIN. There can be no doubt that the Company's assets well exceed its liabilities.

(c) It cannot be confidently concluded that the Company will not be able to obtain further funding should it require or desire it.

(d) Allowing the opportunity for shareholders and other interested parties to negotiate and to seek to obtain the best result for shareholders is demonstrably in the best interests of shareholders, particularly where it is apparent that negotiations and offer are occurring 'in real time'. The offers made by Govinda and the plaintiff evidence that the issues may resolve and that opportunity should not be denied.

121 The plaintiff accepted that if a liquidator were appointed its entitlement to any net proceeds could be adjusted by Court order to account for the June Share Offer, if the plaintiff establishes that its shareholding was diluted in circumstances involving oppressive conduct of the Company's affairs, as alleged. Returns to shareholders would, however, be eroded by the costs of liquidation.

(a) To restrain the Company from proposing any special resolutions pending determination of the plaintiff's claim (on the basis of maintaining the plaintiff's putative voting entitlements, assuming the plaintiff's claim were to succeed) cannot be a proportionate or workable approach;

(b) It cannot be oppressive or contrary to the interests of members as a whole to give them a voice on the question of liquidation by permitting them to vote on Resolution 3.

(c) If a liquidator is appointed the liquidator's task will be to sell the Company's RAIN shares for the best value. There would be costs incurred in the liquidation but if members take the view that they wish to appoint an independent person to realise the plaintiff's assets, that is not a circumstance that can be reasonably considered to be contrary to the interests of members. By contrast, the continuation of the Company will inevitably mean that the Company will be required to raise funds that it has demonstrated it does not presently have.

(d) The plaintiff's failure to substantiate the availability of assets to support an undertaking as to damages is a glaring omission in the circumstances, and should count against the grant of an injunction.

123 The Company's circumstances, as established by the evidence discussed in Part C, are that it presently has secured debt of $142,000 and unpaid legal bills of $64,266, not accounting for further fees which have been incurred on this litigation (including this application) but not yet billed. The Company does not have a ready or apparent source of funding. An offer to members to provide debt‑funding under an interest bearing facility attracted some limited interest. It cannot be reliably assumed that the Company will continue to attract funding from its members, sufficient to enable it to continue to defend these proceedings and to explore options to obtain a buyer at the best price for its RAIN shares.

124 The Company's RAIN shares are illiquid in the sense and for the reasons discussed. The prospect of another approved buyer for the RAIN shares being found within a reasonable time (or within any particular timeframe) cannot be determined, and it cannot be reasonably assumed that that will occur.

125 The Company's call for offers from shareholders produced offers from Alloy, Govinda and the plaintiff. The Alloy Offer was to be funded by the plaintiff. It lapsed without acceptance in circumstances where there was, at the least, difficulty in the directors obtaining information required for RAIN to consider. Govinda who is, on the plaintiff's case, funding the plaintiff's offers, made his own offer 'competing' with the plaintiff's first offer. Govinda's offer was withdrawn upon the plaintiff making its Second Offer. That second offer is now withdrawn. The successive making and withdrawal of offers by Govinda and entities associated with him is apt to create the illusion of a flurry of interest in the Company from competing parties. In reality, Govinda is in effect bidding against himself, to express the situation colloquially. That said, it remains the fact that on 18 April 2025 a group of shareholders associated with the directors, representing 42.19% of the issued shares of the Company responded to Govinda's offer, counteroffering to sell their shares at the price Govinda had offered but on different terms. That counteroffer rejected. The plaintiff's offers have not been supported by demonstrated, available assets, as discussed earlier.

126 I consider that the balance of convenience favours a limited injunction only, for the period the plaintiff specified, namely until 7 May 2025. In particular,

(a) There is clearly a rational case in favour of the Company's winding up, in circumstances where it has no funds and the prospect of it finding funds to pursue its one objective (realising its RAIN investment) and to continue to defend this litigation, is speculative. Govinda might offer to fund the Company but tellingly, he has not said in evidence (or in any submission put on the plaintiff's behalf) that he will do that.

(b) However, a short deferment of the members' ability to appoint a liquidator will not cause the Company or its members any appreciable harm.

(c) The offers that the Company has attracted in respect of its RAIN asset and its own shares are limited in the respects discussed. But given the events that have occurred in March and April 2025 I cannot exclude the possibility that an outcome will be reached between now and the date fixed for mediation, that will result in an acquisition of the Company's shares on terms that resolve the issues currently plaguing the Company, without the need to appoint a liquidator.

(d) That opportunity should be preserved, for a limited time. The status quo can in this respect be preserved at no real cost to the Company. It may well be lost if a vote is permitted to proceed now.

127 The analysis would be quite different had the plaintiff pressed for an indefinite restraint on a members' vote on Resolution 3. The plaintiff assumes that if the Company continues its life the value of its shares will increase, to the benefit of all. There is considerable speculation entailed in that assumption. As I have said, if the Company were to continue to pursue its one objective it will needs funds to do that, and funds to continue to defend these proceedings. It presently has no funds and the prospects of it continuing to find funds is speculative. It is true that the directors can appoint an administrator. They have not done so presently because they have been seeking to find a buyer for the Company's primary asset. There is, however, in my view a strong likelihood that any steps taken by the directors towards external administration will result in further litigation by the plaintiff who is implacably opposed to that course, with resulting further costs. If an indefinite injunction were granted shareholders would be ongoingly denied the opportunity to vote on the question posed by Resolution 3.

George Stoimenovski as trustee for the Stoimenovski Family Trust

[1] By interlocutory process dated 17 April 2025.

[2] The plaintiff's claims are more specifically described below.

[3] In the Matter of Cryptai Pty Ltd [2024] VSC 460 (First Injunction Ruling).

[4] ABC v O'Neill [2006] HCA 46; (2006) 227 CLR 57, 68 [19], 82 [65].

[5] Bradto Pty Ltd v State of Victoria [2006] VSCA 89; (2006) 15 VR 65.

[6] Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148, 153.

[7] See for example, Varley v Varley [2006] NSWSC 1025, [62].

[8] See for example, Enertek AU Pty Ltd v 8Starenergy Pty Ltd [2022] VSC 544, [18].

[9] Bradto Pty Ltd v State of Victoria [2006] VSCA 89; (2006) 15 VR 65.

[12] Mr Simens gave evidence about what occurred in that call, on information and belief, having been informed by the Company's solicitors.

[13] Those matters were not contested in the First Injunction Ruling.

[14] The plaintiff did not respond to that evidence on this application.

[15] Relevantly, the loan facility bore an annual interest rate of 20%, and loans were repayable from the proceeds of the sale of the Company's shares in RAIN.

[16] Fraser v NRMA Holdings Ltd (1995) 55 FCR 452.

[17] Fraser v NRMA Holdings Ltd (1995) 55 FCR 452, 466.

[18] Fraser v NRMA Holdings Ltd (1995) 55 FCR 452, 467-8.

1. [19] ENT Pty Ltd v Sunraysia Pty Ltd [2007] NSWSC 270; (2007) 61 ACSR 626.

[20] ENT Pty Ltd v Sunraysia Pty Ltd [2007] NSWSC 270; (2007) 61 ACSR 626, [14]-[22]. That summary has been subsequently adopted in Stratford Sun Ltd v OM Holdings Ltd (No 5) [2011] FCA 1275; (2011) 198 FCR 372, [85], Snowside Pty Ltd v Boart Longyear Ltd [2017] NSWSC 756; (2017) 121 ACSR 377, [14]-[17], and Kahler v Castle Hill Country Club Ltd [2017] NSWSC 85, [32]-[39].

[21] ENT Pty Ltd v Sunraysia Pty Ltd [2007] NSWSC 270; (2007) 61 ACSR 626, [25].

[22] 50% of votes cast by shareholders present and voting at a general meeting of shareholders.