Plaintiff v Defendants

1 On 19 August 2021 Create Environment Pty Ltd brought an application to wind up Renex Founder Hold Co Pty Ltd ('Founder') pursuant to s 462 of the Corporations Act 2001 (Cth) ('the Act'), relying upon ss 461(1)(c), (f) and (k) of the Act. The application is supported by an affidavit of Domenic Pulitano affirmed 18 August 2021 and of Adam Nahum Ayliffe affirmed 30 September 2021.

2 The shares in Founder are held equally by the plaintiff, Create Environment Pty Ltd, a company associated with Mr Pulitano, and by the second defendant, MSA Renex Corp Pty Ltd, a company associated with Marinos Angelodemou.[1]

3 Founder holds 100,000 shares in Renex Hold Co Pty Ltd. 4,480 shares in that company are held by Artis Parra Pty Ltd, a company associated with Anish Chandy. In turn, Renex Hold Co holds all the shares in Renex Op Co Pty Ltd, Renex IP Co Pty Ltd and Renex Land Co Pty Ltd. Mr Angelodemou is the sole director of each of those companies and of Renex Hold Co.[2]

4 There have been a number of disputes between Mr Pulitano and Mr Angelodemou in relation to the Renex group of companies ('Renex Group'). There has been litigation in this Court in a number of proceedings concerning the Renex Group, including proceeding S ECI 2021 00336 and proceeding S ECI 2021 00269.[3] The level of mistrust between the parties cannot be understated.

5 This proceeding came before the Court for first directions on 1 October 2021. In substance, the plaintiff submitted the Court should make orders for an independent valuation of Founder by a business valuer, and for a property valuer to value real property at 109-131 Ordish Road Dandenong South Victoria owned by Renex IP Co. In aid of the business valuation, the proposed orders included orders for the inspection of books of the Renex Group as defined in s 9 of the Act.

6 The affidavit in support of the application referred to a 16 September 2019 share sale agreement pursuant to which the Angelodemou interests agreed to buy out the Pulitano interests for $18.5 million and that conditions precedent in that sale agreement had not been satisfied. The affidavit says that agreement was terminated by the plaintiff on 14 January 2020. The affidavit also referred to a second valuation, one obtained by or on behalf of Mr Angelodemou in the context of a separate proceeding brought pursuant to s 1322 of the Act[4] where, in the context that the plaintiff was alleged to be in default of the shareholder agreement, a value of $3.2 million was put on the plaintiff's shares.[5]

7 In written submissions filed prior to the hearing the second defendant opposed orders for the appointment of valuers and for access to the books of Renex Group. It was submitted that timetabling orders should be made for the filing of affidavits and submissions and for the hearing of the winding up application. In support of its position the second defendant relied on affidavit of its solicitor, Mr Sise.[6]

8 During the hearing it was agreed by the representatives of the parties that it was desirable that there be points of claim and points of defence in the proceeding so as to better define the issues. In the course of discussion of that subject matter, and of the likely issues, the Court was informed that the second defendant contended for a valuation of the Renex Group pursuant to the shareholder agreement between the plaintiff, MSA Renex Corp Pty Ltd, Founder and Mr Angelodemou dated 18 December 2015,[7] with the valuer to carry out that valuation to be appointed by the CEO of the time being of the Australian Disputes Centre as provided for in the shareholders agreement.

Jurisdiction to order a valuation of the company

9 The submissions on behalf the second defendant included that the Court lacked jurisdiction to make orders for valuation of the company and for access to the books of the company pursuant to s 274A of the Act in aid of that valuation as sought by the plaintiff. That was said to be so whether under the Act or pursuant to the case management powers of the Court under the Civil Procedure Act 2010 (Vic).

10 The initial part of the hearing on 1 October 2021 canvassed the question of jurisdiction and whether, because there was no precedent for making an order for a valuation or for inspection of documents in a winding up proceeding that relies on in s 467(1)(c) of the Act, the Court has no power to make such an order.

11 As discussed during the hearing I consider there are two separate sources of power that enable the Court to order a valuation of the company; the first being s 467(3)(f) of the Act and the second, the Civil Procedure Act 2010 (Vic) ('the CPA').

12 In written submissions filed prior to the hearing the second defendant submitted the Act does not empower the Court to make the proposed order for a valuation because there do not appear to be any cases where the Court has made interlocutory orders for a valuation or inspection of documents in a winding up proceeding pursuant to its powers under s 467(1)(c). Assuming no such orders have previously been made, the absence of precedent does not bear on the question of the power of Court to order a valuation. The Court's power depends upon proper construction of s 467(1)(c) of the Act.

13 Relying on the decision of Hansen J in Host-Plus Pty Ltd v Australian Hotels Association,[8] it was submitted on behalf of the second defendant that where the applicant seeks a winding up order only, it is not until the Court has made a finding pursuant to s 467(4) that consideration can be given to whether some other remedy is available to the applicant, and that in any case it is only open to the Court to make an order that the shares of the party that brings the winding-up application be acquired, and not vice-versa.

14 Two things may be said about the decision in Host-Plus in terms of the Court's power to make orders relating to a valuation. First, Hansen J was concerned with the position at trial, not with the Court's power to make orders including procedural directions pursuant to s 467(3)(f) of the Act at an interlocutory stage. Section 467(3)(f) is an express power for the Court to give such directions as to the proceeding as it thinks fit. Second, Hansen J took a wide view of the scope of the power to make orders at trial pursuant to s 467(4), finding it unnecessary to consider the separate basis the exercise of jurisdiction in s 467(1)(c) the Act:

67. In so far as the matter of power is concerned, I am of the view that "other remedy" in s 467(4) is not restricted to a legal remedy in the sense of a cause of action but is to be understood in the wider sense of a course of action otherwise open to the party. This interpretation accords, in my view, with the nature of the ground, the flexibility desirable in the resolution of such cases, and is consistent with the dictionary meaning of the word "remedy". In the particular circumstances of this case "other remedy" would, in principle, extend to acquisition of the AHA shares, and constitutional change.

68. I note the general acceptance by counsel of the power under s 467(1)(c). I do not consider it necessary to examine that power or its relationship with s 467(4). It is sufficient to note that s 467(4) deals with the just and equitable ground and, to the extent that it does, directs how the Court is to proceed in such cases.

15 I do not consider there is anything in the decision in Host-Plus that support the proposition that the power of the Court to give a direction, including as to the valuation of the company which is the subject matter of the dispute, is limited in the manner contended for on behalf the second defendant. The power in s 467(1)(c) is appropriately exercised having regard to the observations of Sifris J (as his Honour then was) said in Peter Extons & Anor v Extons Pty Ltd & Ors:[9]

Courts are "extremely reluctant to wind up a solvent company" [International Hospitality Concepts Pty Ltd v National Marketing Concepts Inc [No 2] (1994) 13 ACSR 368, 372 (Young J)] As the Court of Appeal has observed, "[i]t is well accepted that the winding up of a solvent and flourishing company should be a last resort" [French v Smith [2004] VSCA 207 at [122] per Charles and Chernov JJA and Harper AJA; Sassine v Ray & Sons Construction Pty Ltd [2012] NSWSC 307 at [21] per Black J]. Courts will consider whether any other relief would be preferable to a winding up order [Turner v Ulicorp Pty Ltd [2007] NSWSC 206 at [24] per Barrett J; Host-Plus Pty Ltd v Australian Hotels Association [2003] VSC 145 at [67] per Hansen J].[10]

16 The power to give directions in s 467(3)(f) must be read as a power that extends to giving directions that would or may facilitate consideration ultimately by the Court of whether other relief would be preferable to a winding up order. There is no basis to read down the exercise of the power and to approach the question of whether a valuation should be ordered or not as a question that the Court only has power to consider pursuant to s 467(4) at the end of the hearing. Directions as to the valuation of a company, and the provision of documents to enable the effective conduct of such a valuation prior to trial and as part of the management of the dispute between the parties, are directions that properly fall within the power in s 467(3)(f) of the Act.

17 Separately, the parties and the court have an overarching obligation pursuant to ss 22 and 23 of the CPA to use reasonable endeavours to resolve the dispute by agreement between the persons in dispute, and to use reasonable endeavours to resolve by agreement any issues in dispute that can be resolved in that way. In circumstances where there was previously an agreement for the purchase of the plaintiff's shares, where there have previously been a valuation of the company, albeit in a different context, and where both parties, but by different routes, seek an order for valuation, it is an entirely appropriate exercise of power under the CPA to make an order for valuation pursuant to that Act.

18 While the question of jurisdiction was argued during the hearing on 1 October 2021, ultimately that issue was not pressed.

19 In initial submissions on 1 October 2021, the plaintiff contended for a valuation of the Renex Group pursuant to a Court order. The second defendant contended for a valuation of the Renex Group based on the process provided for in the shareholder agreement. The question arose whether there was any material difference in the valuation to be carried out under the two different processes. After some discussion of that issue, the matter was stood down in order that the parties could obtain instructions concerning a valuation of Renex Group and, if there was to be a valuation, as to the materials that should be made available to the valuer for that purpose.

20 When the matter resumed, counsel for both parties indicated agreement that a business valuer be appointed by Court order. The objection of jurisdiction on behalf the second defendant was not pursued.

21 It was accepted that it was desirable the business valuer have the ability to appoint a valuer of the real property and that for the purposes of the valuation it was appropriate that an order be made pursuant to s 247A of the Act permitting the plaintiff and one representative of each of its legal and accounting advisers to inspect books of Renex Group. That is, so as to enable submissions to be made on an informed basis on behalf of that party to the business valuer. It was agreed that the date of valuation is appropriately 1 October 2021 and that the valuer should be appointed by the CEO for the time being of the Australian Disputes Centre, being the person charged with determining the identity of a valuer pursuant to the shareholders agreement.

What "books" should be made available to the plaintiff in connection with the valuation of the company?

22 The remaining contest between the parties was whether what should be made available for inspection was all 'books' as defined in s 9 of the Act or whether there should be some, and if so what, limitation upon the materials made available for inspection and copying. The parties filed written submissions and provided draft orders on 6 October 2021 dealing with that subject matter.

23 On 7 October 2021, having considered those submissions and draft orders, the Court provided a draft form of order to the parties which, so far as the books to be made available is concerned, as specified in Annexure A to that order, largely reflected the form of order contended for on behalf of the plaintiff ('7 October 2021 draft orders').

24 So far as the business valuation process is concerned, using the plaintiff's draft order as a starting point, I included in the 7 October 2021 draft orders provisions from the second defendant's draft order so as to ensure that the books made available for inspection may only be used by the inspectors for the purposes of the proceeding. I also made orders as contended for on behalf of the second defendant designed to ensure that all communications by either the plaintiff or second defendant with the business valuer are shared and, if not shared, are promptly provided to the party not previously copied to that communication.

25 At the time the 7 October 2021 draft orders was provided to the parties, my associate informed them that I would provide reasons should either party require that be done. Subsequently, the second defendant requested reasons.

26 As a key difference between the parties concerns the scope for books to be made available as provided for in draft orders submitted by both parties, it is necessary to deal with the reasons that underpin Annexure A to the 7 October 2021 draft orders. Before turning to the detail, it is appropriate to refer to the authorities concerning s 247A of the Act, including some of the authorities upon which the second defendant relied in its submissions.

27 It may be accepted as submitted that s 247A of the Act requires an applicant seeking to inspect books of the company to satisfy the court that the person is acting in good faith and that the inspection is for a proper purpose.[11] In Smartec Capital Pty Ltd v Centro Properties Ltd & Anor,[12] Barrett J said as follows:

66. The relevant boundary is suggested by a comparison of cases in which proper purpose has been established and those in which it has not. These are conveniently collected in an article by Christos Mantziaris, "The member's right to inspect the company books: Corporations Act , s 247A" (2009) 83 ALJ 621 quoted by Le Miere J in Snelgrove v Great Southern Managers Australia Ltd [2010] WASC 51 at [66]:

"The court has recognised the following purposes as proper inspection purposes:

1. To allow a member to investigate prima facie irregularities in the company's financial accounts or transactions - for example, the creation of parallel financial records ( Vinciguerra v MG Corrosion Consultants Pty Ltd [2007] FCA 503; (2007) 61 ACSR 583), or a loan transaction between companies with a large number of common directors (Cescastle Pty Ltd v Renak Holdings Ltd (1991) 6 ACSR 115).

2. To allow a member to investigate the conduct of the directors in relation to 'the whereabouts and commercial benefit [to] the company of the profit and cash flow' of the company for a certain periods (United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 404 at [27], [29]-[30]; Vinciguerra v MG Corrosion Consultants Pty Ltd [2007] FCA 503; (2007) 61 ACSR 583 at [57] -[59], [64], [66]).

3. To allow a member to investigate other reasonably suspected breaches of duty (Barrack Mines Ltd v Grants Patch Mining Ltd (1987) 12 ACLR 357 (affirmed Barrack Mines Ltd v Grants Patch Mining Ltd [No 2] [1988] 1 Qd R 606); McNeill v Hearing & Balance Centre Pty Ltd [2007] NSWSC 942 at [17]; Humes Ltd v Unity APA Ltd [No 1] [1987] VicRp 42; [1987] VR 46 7; [1987] VicRp 42; (1986) 11 ACLR 641).

4. To allow a member to value the members' shares, so as to: (i) negotiate a fair exit price from the company (Tinios v French Caledonia Travel [1994] FCA 1154; (1994) 13 ACSR 658), or (ii) to examine the effect of a corporate debt transaction on the value of the shareholding (United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 404 at [20]- [23]; see also United Rural Enterprises Pty Ltd v Lopmand Pty Ltd (2003) 45 ACSR 271; [2003] NSWSC 405.

Further, that the applicant for inspection is entitled to do so because the information sought relates to matters that it, as a shareholder, should be informed by the company.[13]

28 There can be no contest here that the applicant for inspection of the books is acting in good faith and that the purpose is a proper purpose. Amongst the purposes identified to which Barrett J referred, based on precedent, is so as to allow the member to value the member's shares.

29 It may also be accepted, as submitted on behalf of the second defendant, that s 247A does not allow a general inspection of the company's books. Instead, such an order allows inspection of books that bear on and may be relevant to the purpose for which the inspection is sought.[14]

30 The submissions on behalf the second defendant say that the purpose for which the plaintiff ought be permitted to inspect books of Renex Group is not any of the following:

(a) the plaintiff conducting a forensic accounting exercise to verify the accuracy of the financial statements of the Group;

(b) the plaintiff conducting its own valuation of Founder and then seeking to foist that valuation upon the valuer;

(c) the plaintiff conducting a general investigation of entities in the Group for some undisclosed purpose;

(d) the plaintiff conducting some quasi-discovery exercise.

31 Here the purpose of an order pursuant to s 247A is to enable the plaintiff to make properly informed submissions and to present material to the independent valuer in relation to the valuation of the Renex Group. The order regarding the books of the Renex Group needs to be framed so as to ensure the plaintiff is given proper access to all materials that may be relevant to that purpose. If the plaintiff proposes to conduct its own valuation of Founder and to put that forward in submissions to the independent valuer, that is a matter for the plaintiff. It is not for the second defendant to circumscribe the use to which the books required to be made available for inspection are to be put, except that the use in question must be for the purpose of making submissions and presenting material to the independent valuer.

32 The submissions on behalf the second defendant include a submission that there has been an event of default under the shareholders agreement concerning Renex Hold Co Pty Ltd ('Hold Co'). It is submitted that as a result, Founder's shares in Hold Co are to be purchased by Artis Parra Pty Ltd or brought back by Hold Co at a price determined by an independent valuer in accordance with the terms of the shareholders agreement. It is submitted this process is mandatory. In those circumstances it is submitted that clause 1.2 of schedule 4 to the shareholders agreement both set out the valuation process for Founder, in that that by those clauses the shareholders agreement allows the parties to make submissions to the valuer and requires them to provide the valuer with information and assistance as is reasonably required by the valuer. It is submitted that schedule 4 does not provide the plaintiff the extensive access to the documents that it seeks.

33 The problem about that submission is that it assumes the position of the second defendant, which is in contest in the proceeding, is correct. Whether or not that is the case is a matter for trial. The submission also assumes that the valuation process and what is made available to the plaintiff and what is to be provided to the valuer is governed by the shareholders agreement. That is not the case. The Court has ordered a valuation of the Group in the exercise of jurisdiction pursuant to the Act and the CPA. The order for the provision of books of the Group for inspection is an order made in reliance upon s 247A of the Act in support of the valuation orders. It is not appropriate to approach the question of what books should be made available on the basis of schedule 4 of the shareholders agreement.

34 The draft order provided on behalf of the second defendant contained a helpful schedule setting out in respect of each category of books sought to be made available for inspection by the plaintiff, the second defendant's position on that category. The discussion that follows assumes a familiarity with the numbering in the plaintiff's draft order as reproduced in that schedule.

35 Categories 1, 2, 4, 10, 12, 23, 36, and 37 are either agreed by the second defendant or partly agreed. It is unnecessary to say further about those categories, with the exception of category 23, which is discussed at paragraph 42 below.

36 Category 5 in the plaintiff's draft is appropriately disallowed on the basis submitted on behalf the second defendant.

37 Category 15 is appropriately disallowed on the basis that categories 11-14 are sufficient to provide all information that might be relevant to either the preparation of submissions in respect of the valuation of Renex Group or for the making of a valuation of Renex Group. In the case of those categories what was sought on behalf of the plaintiff has been restricted to such documents being subcategories of financing and banking records for the period from 1 July 2019, being a period likely to be material to a valuation of Renex Group as at 1 October 2021. The draft order on behalf the plaintiff did not, in respect of categories 13 and 14, specify a date range and in respect of category 11 requested the provision of bank statements from 1 July 2018. These categories were revised in the 7 October 2021 draft orders to limit the period for documents to the period commencing 1 July 2019. That is, taking into account and accepting the submission of behalf of the second defendant that to require those categories as originally described in the plaintiff's draft, without appropriate date limitation of the categories would be oppressive. The provision of documents in those categories for the period commencing 1 July 2019 will ensure both the provision of relevant financing and bank records and also that what is required to be made available is not oppressive. The second defendant submitted that the plaintiff had not demonstrated why documents in these categories are relevant. I do not accept that to be the case.

38 Category 3 concerns income tax returns. When one is seeking to value a business what has been disclosed by law in the tax returns of that business or the companies that comprise it is a matter of fundamental importance. The same is the case in relation to category 9, audit reports, to the extent such audit reports exist. If there are audit reports and they are unqualified, that is one matter, if the audit reports are qualified, that may cast an entirely different light on the company relevant to the valuation of it. The submission that the provision of these two categories of documents is unnecessary and oppressive is rejected. In addition, taxation records of the Group for the last three years as provided for in categories 16-19 are relevant and likely to be of assistance in understanding the financial position, performance and obligations of the company.

39 With regard to category 6, projections and budgets are relevant to the anticipated future financial performance of Renex Group. Anticipated future financial performance is an obvious consideration when it comes to valuing the Renex Group. A Business valuer would be expected to require such documents. In order that a party might make informed submissions to the valuer, is appropriate they be made available by the plaintiff and the inspectors as provided for in the order.

40 Categories 7 and 8 are date limited to the most recent financial year end and the date of valuation. The ageing of debtors and creditors may be material when determining the value of the business and is a matter which it is appropriate a person making submissions as to value is in a position to be apprised of.

41 Categories 20-22 concern intellectual property of the Group and agreements and licenses relating to that subject matter. If a business has intellectual property rights, trade marks or patents or is licensed in respect of particular intellectual or other property. It will be relevant to know the identity of the intellectual property in question and the terms that apply in respect of the use of or rights to it when seeking to determine the value of the business that has those rights. It is not oppressive to require the inspection of such documents.

42 Categories 23 and 24 concern the relationship between the business and its customers and suppliers. As drafted on behalf of the plaintiff, there was no date restriction which, unless imposed, would have made the provision of such documents oppressive. It is appropriate to restrict this category of documents to such documents from 1 July 2019 onwards. The same is the case in relation to agreements with respect to property, appropriately limited to 1 July 2019. An understanding of such agreements and relationships is material when valuing a business such as Renex Group.

43 Category 25 concerns the sale and purchase of any properties, which is material when valuing a business such as that conducted by the Renex Group. It is appropriate, as above, to limit this category to the period beginning 1 July 2019.

44 Category 26, if capable of being generated from the accounting systems of or available to Renex Group, deals with margins. Restricted to 1 July 2019, this category of books is material when seeking to assess the profitability or otherwise of a business enterprise.

45 Given the nature of the business conducted by Renex Group, categories 27-31 are relevant to a consideration of risks to the business, and conditions on its operation which may impact on its value.

46 Categories 32-37, concerning employment and shareholder records, as originally drafted by the plaintiffs are too broad. Where not otherwise specified in the 7 October 2021 draft orders, such documents are to be provided from 1 July 2019 or, such as in the case of item 36, from an earlier date if such agreements remain current. An understanding of the employees of the business, their remuneration and of matters such as the security or otherwise of arrangements concerning key employees are important when coming to value the business. They are similarly important so as to put the plaintiff in a position to make informed submissions likely to be of assistance to the valuer about those matters. Similarly, Worksafe history is relevant given the nature of the business of the Renex Group and the consideration of risks material to its valuation.

47 Categories 38-42 are material. They relate to assets used in the business and, in respect of category 42, any valuation of the business which may provide guidance to a party wishing to make submissions the independent valuer. It may be the case for example that independent valuations referred to in item 42 are being used and relied on in support of finance facilities for the Group or for other purposes. Such documents are relevant and likely to be material.

48 Category 43 has been added to the draft by the Court as it is likely that an insurance schedule relating to the Group will provide a convenient listing of assets used in the business and their value for insurance purposes.

49 The 7 October 2021 draft orders do not provide expressly, as submitted on behalf of the second defendant should be the case, that the business valuer be given access to Founder's officers and senior employees. It is a matter for the business valuer whether she or he wishes to interview officers and senior employees of the Renex Group. It is sufficient that the order provides that each party must comply with the written request of the business valuer, including for the provision of any information or documents. It is a matter for the business valuer to determine how she or he goes about seeking information and as to the manner in which such information is most helpfully provided to the valuer.

50 The 7 October 2021 draft orders expressly provide the ability for the business valuer and for the property valuer to apply to the Court should they need to do so. The parties also have liberty to apply.

51 For the reasons stated above, I will make orders in the form of the 7 October 2021 draft order.

[1] Plaintiffs, affidavit of Domenic Pulitano affirmed 18 August 2021, [3], exhibit DJAP-3.

[3] See MSA Renex Corp Pty Ltd v Create Environment Pty Ltd (Unreported, Supreme Court of Victoria, Efthim AsJ, 13 April 2021); MSA Renex Corp Pty Ltd v Create Environment Pty Ltd [2021] VSCA 178; Create Environment Pty Ltd v Renex Land Co Pty Ltd & Anor [2021] VSC 317; Create Environment Pty Ltd v Renex Land Co Pty Ltd & Anor (Unreported, Supreme Court of Victoria, Delany J, 14 July 2021); Create Environment Pty Ltd v Renex Land Co Pty Ltd & Anor (Unreported, Supreme Court of Victoria, Delany J, 28 July 2021).

[4] Proceeding S ECI 2021 00336, which was dismissed on 3 August 2021.

[5] Plaintiffs, affidavit of Domenic Pulitano affirmed 18 August 2021, [9]-[10] (exhibit DJAP-9), [32] (exhibit DJAP-20, 218).

[6] Second Defendant, affidavit of Peter Sise affirmed 30 September 2021.

[7] Plaintiffs, affidavit of Domenic Pulitano affirmed 18 August 2021, [7], exhibit DJAP-8.

[8] [2003] VSC 145.

[9] [2017] VSC 14; (2017) 53 VR 520.

[11] Praetorin Pty Ltd v TZ Ltd [2009] NSWSC 1237; (2009) 76 ACSR 239, 36.

[12] [2011] NSWSC 495; (2011) 83 ACSR 461.

[14] Engel v National Biodiesel [2015] FCA 1114, 10.