Plaintiff v Defendants

PRACTICE AND PROCEDURE - Application to discharge injunction - Plaintiff propounds different case from when injunction originally granted - Prima facie case called into question - Maintenance of status quo a significant factor when injunction granted - Circumstances changed - Injunction discharged.

1 Kim McDonald ('Kim'), Anthony Hoare ('Anthony') and Mathew Hoare ('Mathew') are children of Peter Hoare ('Peter'). Peter Hoare died on 19 May 2011. At the time of his death Peter, either in his own name or through trusts and corporate entities, controlled substantial assets.

2 Annexed to these reasons and marked 'Annexure A' is a diagram prepared on behalf of Anthony which identifies various assets of entities associated with Peter at the time of his death. While it is unnecessary to assess whether the contents of the diagram is accurate or complete, the diagram provides a ready indication of the complexity and the spread of assets and the entities involved in holding those assets on behalf of or in association with Peter at the time of his death.

3 When he died Peter left a Last Will and Testament dated 4 August 1998 ('Will').

4 The executors named by Peter in his Will are his sons Anthony and Mathew, his long time solicitor, Kevin Roache and an accountant, John Nagle (named in a codicil to replace John Nagle's father, Thomas Nagle, Peter's long time accountant).

5 By the Will Peter left $100,000 and all his household furniture and effects to his wife, Dianne. He left the rest and residue of his assets to Amberlowe Pty Ltd (ACN 007 056 742) ('Amberlowe') as trustee for the Hoare Family Settlement Trust ('Hoare Family Trust') with Amberlowe to pay out all liabilities. The Will provided that Peter's shares in Amberlowe would go to the executors of his estate.

6 At all relevant times prior to his death, Peter owned a majority of the shares in Amberlowe and controlled the Hoare Family Trust.

7 The Hoare Family Trust is a trust established by a trust deed dated 24 August 1988 ('Hoare Family Trust Deed'). Clause 16(a) of the Hoare Family Trust Deed is in the following terms:

16. THAT every Trustee which is a company may:

(a) exercise or concur in exercising any discretion or power hereby conferred on the Trustees by a resolution of such corporation or company or by a resolution of its Board of Directors or governing body or may delegate the right and power to exercise or concur in exercising any such discretion or power to a representative appointed for the purpose by its Board of Directors or governing body.

(b) where such Trustee is not a sole Trustee attend meetings of the Trustees by its representatives appointed as provided pursuant to this Deed.

8 The second trust to which reference should be made is the Peter Hoare Family Trust ('Peter Hoare Trust') of which Galaxie Investments Pty Ltd (ACN 005 258 766) ('Galaxie') is the trustee. The Peter Hoare Trust was established by a trust deed dated 20 April 1979 ('Peter Hoare Trust Deed'). Clause 17 of the Peter Hoare Trust Deed is relevantly in the following terms:

(1) THE Trustees if at any time they are more than one shall act jointly and they may in writing delegate the exercise of all or any of the powers or discretionary authorities hereby conferred on the Trustees to a Committee of the Trustees or to one or more of the Trustees.

(2) Any exercise by the Trustees of any power discretion or authority con­ferred on the Trustees by this Deed (including without limiting the generality of the foregoing the making of an appointment pursuant to clause 4(1) hereof and the revocation addition to and variation of the trusts terms and conditions herein contained pursuant to clause 31 hereof) may be made (but without derogating from anything contained in clause 3(2)(g) hereof) -

(a) in writing signed by all (or where sub-clause (3) of this clause applies by a majority of) the Trustees; or

(b) by a resolution duly passed at a meeting of the Trustees; or

(c) as provided in paragraph (c) of sub-clause (3) of this clause; or;

(d) in the case of a sole corporate Trustee in the manner set out in sub-clause (4) of this clause.

(3) In the event of disagreement between the Trustees as to any matter ...

(4) Every Trustee which is a corporation or company may exercise or concur in exercising any discretion or power hereby conferred on the Trustee by a resolution of such corporation or company or by a resolution of its Board of Directors or governing body or may delegate the right and power to exercise or concur in exercising any such discretion or power to a representative appointed for the purpose by its Board of Directors or governing body.

(5) Every Trustee not being a Sole Trustee which is a corporation or company may attend meetings of the Trustees by its representative appointed as provided in sub-clause (4) of this clause.

9 On 6 October 2010, Peter signed a letter entitled 'Testamentary Requests' ('Testamentary Requests Letter'). Peter's requests included that his executors 'be appointed Directors of Amberlowe and other 'Trust Companies' with which [he was] associated.'

10 In his Testamentary Requests Letter Peter requested that Anthony and Mathew be appointed Directors of Hoare Bros. Pty Ltd (ACN 004597979) ('Hoare Bros'), Hoare Bros Fleet Management Pty Ltd (ACN 118 155 712) ('Hoare Bros Fleet') and Deakin Administration Pty Ltd (ACN 065 314 623) ('Deakin Administration') and that 'all reasonable steps be taken to enable them to manage the assets in those Companies and for the boys to work together co-operatively'. The activities of those companies were stated to be 'standalone' and not to be supported by assets or security from any other family or business entity. It was one of Peter's requests that his daughter Kim not have any involvement in those businesses.

11 Another request by Peter was that one third of the shares held by Amberlowe in Hoare Bros, Hoare Bros Fleet and Deakin Administration be transferred to Anthony or as he directs, one third to H4MC Pty Ltd (ACN 139 370 826) ('H4MC') as trustee of the H4MC Trust (a trust associated with Mathew) and the remaining one third be held in a special trust to be appropriated at the discretion of the trustees for the benefit of any of Kim's children. It was Peter's request that an independent valuation be conducted of those assets with the intention his three children receive an equal or near to equal share in value terms as can be arranged subject to some specified financial adjustments relating to Kim. It was Peter's wish that all companies and trusts be organised in such a way that capital gains tax and stamp duty be kept to a minimum.

12 On 14 November 2011 probate of the Will and Codicil was granted to the executors of Peter's estate ('Estate'). Although probate was granted in 2011, the affairs of the Estate have still not been concluded.

13 On 14 August 2017 separate heads of agreement, expressed to be binding on each of the parties to those agreements, were entered into by Anthony and Mathew, by Mr Nagle and Mr Roache by the executors of Peter's estate and by various companies including Hoare Bros, Hoare Bros Fleet, Hoare Bros Plant & Equipment Pty Ltd (ACN 145 175 131), Amberlowe, H4MC, Samworth Pty Ltd (ACN 061 358 067) ('Samworth'), Customline Investments Pty Ltd (ACN 055 931 952) ('Customline') and Wibaho Pty Ltd (ACN 004 837 889) ('Wibaho') ('Separation Agreement').

14 Objectively the intention of all involved in the Separation Agreement was to give effect to Peter's Testamentary Requests Letter with Peter's three children, his estate and the companies and trusts who were parties to the Separation Agreement to be bound by the division of assets and other ongoing arrangements for which the Separation Agreement provided.

15 In December 2017 a further agreement was arrived at between Peter's children and entities associated with them for the distribution of certain assets, including certain assets of Peter's estate. There are two versions of the list of the assets agreed to be divided in December 2017. Anthony was responsible for one of those lists. Mathew was responsible for the other list. While the contents of the two lists is not identical, the intent of both lists is that there be a one third split of assets between Kim, Mathew and Anthony. As is evident from the pleadings in proceedings relating to the December 2017 agreement, no substantive dispute exists between the three siblings about whether or not there was an agreement. The disagreement is about the terms of that agreement and who has and, has not performed it.

16 From late 2017 Peter's children and the companies and trusts associated with them acted, at least in part, to give effect to the Separation Agreement and to the December 2017 agreement.

17 Since at least 2020 Peter's children and entities associated with them have been involved in litigation concerning the Separation Agreement and the December 2017 agreement and concerning family companies and trust assets associated with Peter prior to his death.

18 Until 12 December 2022 when Orders were made discharging Mr Roache and Mr Nagle as executors of Peter's estate pursuant to s 34(1) of the Administration and Probate Act 1958 (Vic) ('Administration and Probate Act') and for their removal as trustees of the estate pursuant to s 51(1) of the Trustee Act 1958 (Vic), all four of the named executors acted in that capacity. Pursuant to the Order made on 12 December 2022 the property and assets held by Mr Roache and Mr Nagle in their capacities as executors and trustees were vested in the remaining trustees of the estate, Anthony and Mathew.

19 Proceeding S ECI 2021 03781, in the matter of Geelong Quarries Pty Ltd ('Oppression Proceeding') was initiated by Anthony on 14 October 2021. The hearing to which these reasons relate was scheduled to hear the application by Mathew to discharge an injunction granted on 8 September 2022 in the Oppression Proceeding ('Discharge Application'). No application in the Oppression Proceeding can be considered in isolation from other proceedings involving the family members and their associated entities. As at 29 January 2025, the Oppression Proceeding is one of four proceedings currently on foot involving Peter's children.

20 In substance, Mathew, Kim and companies associated with them are the defendants in three proceedings initiated by Anthony and companies associated with him prior to December 2024, including the Oppression Proceeding. None of those proceedings, each of which are now quite old, have progressed to trial.

21 At the time the Oppression Proceeding was initiated there were two other proceedings that were current, both of which were initiated by Anthony as plaintiff and both of which are in substance against Mathew and Kim.

22 In reasons refusing to grant leave to appeal from the 8 September 2022 injunction in the Oppression Proceeding, the Court of Appeal described the two earlier proceedings and an earlier proceeding between the siblings dismissed by consent on 25 June 2020:

1. The two other proceedings currently on foot are proceeding S ECI 2020 03342 ('the Separation Proceeding') and S ECI 2020 02806 ('the Distribution Proceeding'). Broadly, the Separation Proceeding involves Anthony (and a related company) seeking to enforce against Mathew (and other involved corporations) a 'Separation Agreement' said to have been reached between mid-2016 and August 2017 concerning one limb of the family business empire, referred to as the PADI 'Hoare Bros Business'. As part of the relief sought in that proceeding, Anthony seeks an order that H4MC Pty Ltd ('H4MC') transfer all of its shares in GQ to Anthony.
2. Anthony is also the plaintiff in the Distribution Proceeding. Mathew, Roache, Nagle and Amberlowe Pty Ltd ('Amberlowe') are the defendants. Amberlowe is the corporate trustee of the Hoare Family Settlement Trust ('the Family Trust'). Amberlowe owned a large number of properties and held cash. Broadly, Anthony alleges that a 'Division of Assets' was agreed in December 2017 and, whereas Mathew and Kim have received their (effectively one third) distributions, Anthony has not.
3. There is a further proceeding, S ECI 2020 01838 ('the First Geelong Quarries Proceeding'), which was issued by Anthony, against Mathew and Kim, in April 2020. That proceeding challenged the appointments of Mathew and Kim as directors of GQ under s 1322 of the Act and sought permanent and interim orders restraining Mathew and Kim from taking various steps concerning GQ, including terminating the quarry agreement between Galaxie Investments Pty Ltd ('Galaxie') and GQ ('the Quarry Agreement'). Galaxie holds the title to 'Liberton', which is a property of about 1800 acres located on the Hamilton Highway at Stonehaven. GQ conducts quarrying operations at Liberton (on a portion of the land) pursuant to an agreement between Galaxie and GQ. By the Quarry Agreement, Galaxie licensed GQ to conduct quarrying operations, and GQ is obliged to pay Galaxie a royalty. GQ holds the work authority under the M_ineral Resources (Sustainable Development) Act 1990 (work authority number 1407)_ ('the Work Authority').
4. The First Geelong Quarries Proceeding was dismissed by Almond J, pursuant to consent orders on 25 June 2020. The 'Other Matters' in the orders record an undertaking by Mathew and Kim not to seek to convene a meeting of GQ to terminate the Quarry Agreement, and an acknowledgement by Anthony that Mathew and Kim were validly appointed as directors of GQ.

23 Proceeding S ECI 2020 01838 ('First Geelong Quarries Proceeding') to which the Court of Appeal referred was founded on the proposition that Anthony had been validly appointed as a director of Geelong Quarries Pty Ltd (ACN 129 611 025) ('Geelong Quarries') and had an interest in Geelong Quarries.

24 In written submissions in advance of the 29 January 2025 hearing Mathew made the following observations concerning the First Geelong Quarries Proceeding:

[that proceeding] against Mathew and Kim challenging their appointments as directors of Geelong Quarries and seeking to restrain Mathew and Kim as directors of Geelong Quarries from taking various steps concerning Geelong Quarries, including terminating the Quarry Agreement between Geelong Quarries and the owner of the quarry, Galaxie Investments Pty Ltd (Galaxie) - Almond, J, dismissed the First Geelong Quarries Proceeding by Orders made on 24 June 2020 and recorded in "Other Matters", inter alia, that Anthony acknowledged Mathew and Kim had been validly appointed as directors of Geelong Quarries.

25 On 24 December 2024, Anthony initiated a new proceeding by originating motion for judicial advice ('Judicial Advice Proceeding').

26 At the same time Mathew's Discharge Application was listed for hearing in the Oppression Proceeding, each of the Judicial Advice Proceeding, proceeding S ECI 2020 03342 ('Separation Proceeding') and proceeding S ECI 2020 02806 ('Distribution Proceeding') were listed for directions.

27 On 17 January 2024 my Chambers forwarded an email to the parties asking them to address certain questions when filing their submissions in advance of the hearing. The email relevantly stated:

When preparing those submissions, the Court would be assisted if the parties could address the following topics:

1. Does Anthony abandon the claims previously made by him in the distribution proceeding and/or the separation proceeding as pleaded prior to the unsuccessful consolidation application?

   1. If so, is there any reason orders should not be made on 29 January 2025 striking out those claims?

   2. If not, why should any claims as pleaded which are inconsistent with the position adopted by Anthony in his affidavit dated 19 December 2024 be permitted to continue?

   3. Does Mathew maintain the counterclaims currently pleaded by him in the separation proceeding and in the distribution proceeding?

   4. Does Anthony maintain the claim made by him for substantive relief in the oppression proceeding?

   5. What steps do the parties say would be required in order for the separation proceeding, the distribution proceeding and the oppression proceeding to be ready for trial by no later than 28 April 2025?

5. What orders do the parties say are required to

1. ensure that Moore Australia have the information needed by them to complete the tax returns and financial accounts which they have been engaged previously to prepare by no later than 3 March 2025; and
2. ensure that PwC will be in a position to provide the advice they were asked to provide on 13 October 2023 by no later than 31 March 2025?

   1. What is the status of any claims against Mr John Nagle and/or Mr Kevin Roache, or the law practice or accounting practice with which they are associated? Is it anticipated that they or the firms of which they were previously members are necessary parties in a trial of the proceedings and is it anticipate that they will be active parties of any such trial?

   2. Is there any reason why a trial of the three proceedings should not be listed on the first available date on or after 28 April 2025, assuming a mediation of the disputes is not successful in resolving those disputes by that date?

8. In relation to the application to discharge the injunction:

1. Anthony should identify what he says is currently his prima facie case in the oppression proceeding in which the injunction was granted;
2. Anthony should address why the injunction should remain in place following the dismissal of the consolidation application; and
3. Mathew should address why the injunction should be discharged if a trial of all proceedings is to occur on or shortly after 28 April 2025.
   1. The evidence proposed to be relied on in the discharge application in the affidavit of Mathew Hoare dated 16 October 2024 and in the affidavit in response of Anthony Hoare dated 19 December 2024 is voluminous. At the time of filing their submissions the parties should list with pinpoint references to paragraph numbers, any other affidavits and the PDF pages of any other exhibits to any affidavits to be relied upon in relation to the discharge application. The same is the case concerning references to the reasons of Justice Button or the Court of Appeal to which reference is to be made.
   2. The judicial advice proceeding appears to represent a further change of position by Anthony Hoare who previously has been content to proceed on the basis of his own view of the issues. In relation to the judicial advice proceeding the parties should provide brief submissions, including referring to authorities about whether in circumstances where there have already been four proceedings between the family members it is appropriate for the Court to be asked to provide judicial advice.

28 As well as advancing substantive arguments in support of their respective positions, the submissions filed in advance of the 29 January 2025 hearing addressed the issues raised in the 17 January 2025 email.

29 The hearing involved two substantive issues: whether the injunction should be discharged, and whether the application for judicial advice made in the Judicial Advice Proceeding should be permitted to go forward with the remaining proceedings put on hold. Both substantive applications and the directions to be made in the other live proceedings also raise issues of case management.

30 In managing the proceedings I am required by s 8 of the Civil Procedure Act 2010 (Vic) ('CPA') to seek to give effect to the overarching purpose in s 7 of the CPA. That section is in the following terms:

(1) The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.

31 When seeking to give effect to the overarching purpose it is appropriate to consider all of the disputes involving the family members, their entities and others on a holistic basis. It is appropriate to do so in light of the issues identified in the existing pleadings in the current proceedings, and the stage each proceeding has reached. As discussed below, the issues that separate the parties on the existing pleadings in both the Separation Proceeding and the Distribution Proceeding are relatively confined. The fact that the pleaded issues are narrow is consistent with the discharge by those previously involved, of the overarching obligation owed by parties and their legal representatives pursuant to s 23 of the CPA to narrow the issues.

32 When determining whether or not to accede to the application by Anthony for the provision of judicial advice in the Judicial Advice Proceeding, in addition to matters of principle raised by the application, one relevant consideration is how the case now proposed to be propounded by him in that proceeding aligns with his pleaded case in the other three proceedings in which he is the plaintiff. In furtherance of the overarching purpose it is appropriate to consider whether there are other alternatives within the framework of Anthony's existing proceedings that might provide a just, efficient, timely and cost-effective opportunity to deal with the issues Anthony now wishes to agitate in the Judicial Advice Proceeding with Mathew and other existing parties acting as the effective contradictors.

33 There is a need to prevent further delay in these disputes being brought to trial. Significant demands have already been placed upon the resources of the Court by the existing proceedings, including in the form of Anthony's Consolidation Application heard and dismissed by me in July 2023 ('Consolidation Application'). Mathew has estimated the time required to hear the substantive proceedings at 15 sitting days.

34 When determining the various issues and the most appropriate way to proceed, the demands that would be imposed on the Court, the delays that would arise in the pre-existing proceedings and the impact upon other litigants if the Judicial Advice Proceeding were to proceed first are relevant.

35 For the reasons that follow, I have determined to discharge the 8 September 2022 injunction and to dismiss the Judicial Advice Proceeding. I have determined to permit Anthony to amend his pleadings in the Separation Proceeding and Distribution Proceeding. I have made Orders enabling the three existing proceedings to be heard at a trial to commence in July 2025.

36 As indicated to the parties during the hearing, if a lengthy proceeding which I am involved settles, I would be available to hear these disputes commencing on 28 April 2025. If that proceeding does not settle, another judge of the Court would be available to hear and determine these disputes commencing on 5 May 2025. While those dates are available, the parties agreed at the hearing that having regard to various commitments of senior counsel for the main protagonists, if the Judicial Advice Proceeding is not to go forward, it is appropriate to make orders to fix the trial of the three existing proceedings to be heard and determined together in July 2025. I have made Orders to that effect.

37 It is relevant to record that on 14 August 2023 the parties participated in a judicial mediation. When I referred the disputes to judicial mediation in July 2023 following the dismissal by me of Anthony's Consolidation Application, I made no order that stayed the operation of any of the existing proceedings initiated by Anthony until the conclusion of the judicial mediation.

38 The judicial mediation was adjourned pending the preparation of financial accounts for various companies and entities by the accounting firm, Moores Australia ('Moores') and the provision of taxation advice from PricewaterhouseCoopers ('PwC'). It is important that the financial information required by Moores to complete the accounts is provided, that the financial accounts are finalised and that the PwC report is provided. I have ordered a directions hearing to facilitate such an outcome.

39 I consider it desirable that the parties have an opportunity to resume the judicial mediation prior to the trial. That is the case even though the parties have mediated on two previous occasions with different mediators and have not had a successful outcome.

40 Anthony holds five shares in Geelong Quarries through a company controlled by him, ET Investments (Vic) Pty Ltd ('ET'). ET was added as a second plaintiff in the Oppression Proceeding by an amended originating process dated 8 September 2022. The reasons for the decision of Button J set out the relief claimed in the originating process.[1] The relief then claimed is identical to the relief now sought in the amended originating process.

41 Each of the siblings, together with their respective shareholding companies, are now parties to the Oppression Proceeding, as is Geelong Quarries itself.

42 Anthony claims as substantive relief in the Oppression Proceeding that Mathew and Kim as directors, and via shares each of them holds in Geelong Quarries (in the case of Mathew, five shares via H4MC and in the case of Kim, five shares via Markee Custodians Pty Ltd), engaged in conduct which is oppressive.

43 The Oppression Proceeding is founded on the proposition that Anthony is validly a director of Geelong Quarries and via ET is validly a minority shareholder.

44 There are no pleadings in the Oppression Proceeding. No substantive steps have been taken by the plaintiffs or other parties to prepare the Oppression Proceeding for trial since the injunction was granted in 2022. That is with the exception of an application for leave to appeal from Button J's decision to grant the interlocutory injunction, for which leave was refused by the Court of Appeal on 5 April 2023.[2]

45 If the Oppression Proceeding is to go to trial in July 2025 it is critical that Anthony and ET promptly provide points of claim setting out clearly the acts of oppression relied on and specifying the substantive relief sought in the proceeding pursuant to the Corporations Act 2001 (Cth) ('Corporations Act').

46 During the hearing senior counsel for Anthony and ET informed the Court that if required to do so, Anthony and ET could file and serve points of claim in the Oppression Proceeding by 19 February 2025.

Mathew's application to discharge the injunction in the Oppression Proceeding

47 On 8 September 2022 Button J made an Order in the Oppression Proceeding that until the determination of the Consolidation Application or further order of the Court, or agreement between the parties, Mathew and Kim are restrained from calling or participating in any meetings of Geelong Quarries (or voting on any resolutions) for the purpose of terminating the contractual arrangements between Hoare Bros and Geelong Quarries.

48 On 12 December 2022 I made an Order extending the operation of that Order. I reserved liberty to apply to any party on five business days' notice.

49 On 16 October 2024 Mathew filed a summons seeking orders that the interlocutory injunction be discharged. In addition Mathew seeks orders that the plaintiffs pay damages to be assessed in relation to the loss sustained by the defendants and/or Geelong Quarries by reason of the injunction. The Discharge Application is supported by an affidavit of Mathew dated 16 October 2024 and the affidavit of Gregory John Farrell dated 16 October 2024.

50 It is important to say something about Hoare Bros, the company with whom Geelong Quarries had or has the contractual arrangement referred to in the 8 September 2022 Order.

51 Hoare Bros was incorporated in 1964. Anthony has been a director of Hoare Bros since 4 April 1990 and the secretary of that company since 29 August 2011. He is and at the time of the 2022 hearing, was the sole director and secretary of Hoare Bros. Peter was a director of Hoare Bros from 19 October 1992 until his death in May 1911. Mathew was a director of Hoare Bros between 8 December 1987 and 19 October 1992.

52 There are 20,000 A class ordinary shares issued in Hoare Bros and 2000 B class ordinary shares. 5000 A class shares are held by Wibaho, 6667 A class shares are held by Amberlowe, 5000 A class shares are held by Anthony and 3333 A class shares are held by the executors of Peter's estate. 1000 B class shares are held by Wibaho and 1000 B class shares are held by Anthony.

53 In support of the Discharge Application Mathew gives the following evidence by way of a summary:

(a) The injunction was granted in September 2022 to protect the status quo for what was believed to be a relatively short time. The status quo was that Hoare Bros, would continue to carry out quarrying operations on behalf of Geelong Quarries Pty Ltd at a quarry known as Liberton owned by Galaxie Investments Pty Ltd (Galaxie), Geelong Quarries having an agreement with Galaxie to quarry product in return for payment of a royalty.

(b) Hoare Bros, since around 2013 pursuant to an unwritten and therefore informal agreement had carried out the quarrying operations for Geelong Quarries, including extracting, where necessary processing and delivering product to customers of Geelong Quarries and invoicing and collecting sales proceeds for Geelong Quarries.

(c) My sister Kim and I are directors of Geelong Quarries (along with Anthony) and Kim and I as directors of Geelong Quarries have had serious concerns as to the manner in which Hoare Bros, carried out the business of Geelong Quarries for Geelong Quarries since 2017 and also at earlier times.

(d) The subpoenaed documents, inspection of which was vigorously opposed by Anthony,[3] discloses the following:

(i) Under cover of the injunction Anthony and Hoare Bros, in 2023 migrated all of the customers of Geelong Quarries to be customers of Hoare Bros. (GQ customers) and in effect stole its business.

(ii) Both prior to the grant of and under the cover of the injunction Anthony and Hoare Bros, have diverted sales from various customers of Geelong Quarries and former customers of Geelong Quarries to Hoare Bros, have paid Geelong Quarries falsely reduced amounts for product and sold Geelong Quarries product through Hoare Bros, to GQ customers at significantly higher prices and retained the profit.

(iii) Prior to the grant of and under cover of the injunction Anthony and Hoare Bros, have taken product from the quarry, not paid for it, sold it for significant profits to customers and former customers of Geelong Quarries, retained the proceeds of sale and in some cases billed Geelong Quarries for cartage of that product.

(iv) Prior to the grant of and under cover of the injunction Anthony and Hoare Bros, deliberately failed to keep proper, or indeed any, production records for the quarry, failed to create or keep proper accounting records and failed to report sales of Geelong Quarries products or to account for the proceeds.

(v) Prior to the grant of and under cover of the injunction appropriated the cash sales of Geelong Quarries product to its customers and GQ customers to Hoare Bros.

(vi) Prior to the grant of and under cover of the injunction refused to permit Kim and I, directors of Geelong Quarries, access to the Geelong Quarries site.

(vii) Under cover of the injunction failed to prepare or keep accounts for Geelong Quarries or to provide Geelong Quarries with the information it requires to satisfy its obligations to the Australian Taxation Office and failing or refusing to allow access to Kim and I both to the quarry site and such (grossly deficient) accounts of Geelong Quarries as he causes to be prepared.

(viii) Under cover of the injunction in addition to appropriating the GQ customers to Hoare Bros, appropriating the Geelong Quarries telephone number and post office box to Hoare Bros.

(ix) Prior to the grant and under cover of the injunction to effectively strip Geelong Quarries of its business and transfer it to Hoare Bros, whilst at the same time billing Geelong Quarries for deliveries of product for which Geelong Quarries was either not paid or not properly paid and leaving Geelong Quarries to pay royalties on that product to Galaxie Investments Pty Ltd.

(x) Prior to the grant of and under cover of the injunction depriving Galaxie Investments Pty Ltd and the Peter Hoare Family Trust of royalty income it was entitled to by appropriating product without paying for it and deliberately failing to record product produced and taken from the Geelong Quarries site.

54 The Discharge Application is opposed. In opposition to the Discharge Application Anthony relies on an affidavit made by him dated 19 December 2024 and on the second affidavit of Aleksander Kuraica dated 24 December 2024.

55 Anthony does not dispute much of the substance of the factual matters relied on by Mathew in support of the discharge application. He has an explanation for the events that have occurred.

19. Even though:

(a) ...

(b) Galaxie owned Liberton,

Peter, Mathew and I agreed sometime in the mid-2000s that:

(i) instead of Hoare Bros (which ran a successful business) or Galaxie (which owned significant real property assets), a separate entity that held no assets should be incorporated for risk management purposes to hold the relevant permits, authorities and approvals once those requirements had been satisfied;

(ii) Hoare Bros would perform all of the extractive and administrative services, the latter of which it was performing to all of the individual companies within the Hoare Bros Business; and

(iii) Hoare Bros would earn all of the revenue of the quarry business, so that revenue and income was isolated from any potential claims against Geelong Quarries.

(Geelong Quarries Arrangement)

1. For these limited purposes, Geelong Quarries was incorporated on 8 February 2008.
2. Geelong Quarries was always intended to be part of the Hoare Bros Business, in which Hoare Bros used the extracted and crushed rock for its purposes and made sale of that material to its customers. It was never intended that Geelong Quarries operate its own separate business, other than as necessary to provide risk-management protection.

57 Concerning the alleged diversion of the Geelong Quarries business Anthony repeatedly gives evidence in his 19 December 2024 affidavit to the following effect:

I say in response that Geelong Quarries was designed to minimise profit to have less assets and profit in case of legal actions taken against it. It was not designed to make profit and had been operating in this manner since 2013. Hoare Bros was entitled to make a profit as it had since 2013.

58 In opposition to the Discharge Application, it is Anthony's evidence that:

1. Since purporting to assume roles as directors of Geelong Quarries, Mathew and Kim have:

(a) Disrupted the quarry business and the way in which business has been conducted since its commencement in 2013;

(b) Sought to terminate the quarrying operations at Liberton; and

(c) Drawn Geelong Quarries and Hoare Bros into dispute.

1. This was never what my father had intended, and what Mathew and I had agreed to prior to his death.

2. The breadth of these attempts at disruption are recorded in the 11 October Anthony Affidavit, including:

(a) purporting to terminate the Quarry Agreement;

(b) Purporting to terminate the Hoare Bros Agreement;

(c) Refusing to pay the HB Invoices for services rendered; and

(d) Engaging in skirmishes to increase the legal and compliance costs of operating the quarry business at Liberton.

...

1. In order to circumvent the dispute over the HB Invoices, reduce legal compliance costs, and to ensure that its business operations could continue, I caused Hoare Bros to change the manner in which invoices were paid.

...

1. The sole difference to the old procedure is that, instead of directly invoicing the customer, Hoare Bros purchases the Product from Geelong Quarries and sells it to the customer to ensure it is being paid the full amount of its services. From the customer's perspective, there is no difference aside from the name written on the invoice.

...

1. I reject Mathew's assertion that the new procedure diverts existing customers from Geelong Quarries to Hoare Bros. Those customers are customers of the Hoare Bros quarry business that my father, Mathew and I had agreed to establish.

59 In the context of a prospective 28 April 2025 trial date, while continuing to press for the discharge of the injunction, senior counsel for Mathew and counsel for Kim informed the Court that if the injunction were to be discharged, they would not take steps to remove and replace Hoare Bros as the quarry operator at Liberton until the hearing and determination of the proceedings. That is, provided various documentary and other reporting mechanisms and a surveillance regime were to be put in place at the Liberton property.

60 Before considering the disposition of the Discharge Application it is necessary to say something about the other proceedings between Anthony and his siblings, what has occurred in those proceedings since September 2022, including Anthony's Consolidation Application to which the Order made by Button J refers, and the current status of the various proceedings.

61 The first of the current proceedings in time, the 'Distribution Proceeding' is a proceeding in which Anthony seeks to enforce an agreement alleged to have been made in December 2017 with Mathew and Kim to divide his deceased father's assets. In substance, Anthony alleges that his siblings received their (effectively one third) distributions of assets but that he, Anthony, has not received his one third distribution. Claims are also made by Anthony in the Distribution Proceeding against Mr Roache and Mr Nagle.

(i) Mathew Hoare;

(ii) Amberlowe;

(vi) Kevin Roache;

(vii) John Nagle.

63 The following are the current pleadings in the Distribution Proceeding:

(a) Writ and statement of claim dated 1 July 2020;

(b) Mathew's defence dated 17 August 2020;

(c) Mr Roache's defence dated 17 August 2020;

(d) Amberlowe's defence dated 18 August 2020;

(e) Mr Nagle's defence dated 31 August 2020;

(f) Mathew's defence and counterclaim dated 11 November 2020;

(g) Anthony's reply and defence dated 10 February 2021;

(h) Mathew's reply to defence to counterclaim dated 7 April 2021; and

(i) Amberlowe's defence to counterclaim dated 23 February 2021.

64 In his statement of claim Anthony pleads that in accordance with the terms of the Will the executors of Peter's estate took control and became the directors of Amberlowe. He pleads that Amberlowe, either itself or through entities owned or controlled by it, owned real property at various locations, including Liberton. He pleads the assets of the estate were valued by Mr Nagle at approximately $34 million net together with other assets of more than $1.7 million.

65 The key allegation by Anthony in paragraph 22 of his statement of claim, is that in or about December 2017, for the purposes of carrying out the 'Distributions Request', a reference to the Testamentary Requests Letter which the statement of claim alleges to be a codicil to Peter's Will, the directors of Amberlowe agreed to a division of some of the real property assets amongst the beneficiaries namely, Kim, Mathew and Anthony. Amongst other things, the agreed division of assets provides for Mathew and Anthony to each receive 50% of Liberton together with other specified assets.

66 Contrary to Anthony's pleaded case, as recorded by the Court of Appeal, the objective fact is that Galaxie owns the Liberton property and as trustee of the Peter Hoare Trust.

67 Anthony pleads an agreement that assets were to be divided in the manner shown in his December 2017 document titled 'Hoare Estate Division of Assets'.

68 Anthony alleges that Mathew and Kim received distributions of their designated assets under the Distribution Agreement but that he did not. Anthony alleges that he 'understands' that the Hoare Family Trust (of which Amberlowe is trustee) paid all taxes and duties payable in respect of the transfers of property to Kim or to her interests, and to Mathew or his interests.

69 Anthony alleges, although the statement of claim does not clearly say why, or allege a term of the Distribution Agreement to that effect, that he is entitled to a transfer from the Hoare Family Trust of the specified real property assets listed to be allocated to him 'free of expenses duties or taxes'.

70 The relief sought by Anthony in the Distribution Proceeding includes the distribution by Amberlowe of the trust and company assets which Anthony alleges were agreed to be distributed to him pursuant to the 'division of assets agreement'.

71 Mathew's defence in the Distribution Proceeding admits the key allegation, the agreement pleaded by Anthony at paragraph 22 of the statement of claim with one exception. The exception concerns a property at Boundary Road, Newcomb Victoria which Mathew pleads was later agreed to be allocated to Anthony. The defences filed by Amberlowe and by Kim also admit the allegations in paragraph 22 of the statement of claim, subject to the exception concerning the Newcomb property. The defences filed by Mr Roache and Mr Nagle adopt the same position.

72 While there is no contest on the pleading about the making of the Distribution Agreement, in his defence Mathew denies the allegation that certain trust and company assets were owned by Amberlowe, including Liberton. Mathew pleads that various assets which were agreed to be divided pursuant to the Distribution Agreement were owned by Galaxie (including Liberton), Bellada Pty Ltd ('Bellada') and Fourth Lendale Pty Ltd the companies that distributed those assets to Mathew and Kim.

73 In substance Mathew's pleading alleges that the Distribution Agreement was part-performed years ago by the transfer of designated properties to each of Kim and Mathew or at their direction, and by Anthony taking control of his designated properties. Although Anthony has not taken a formal transfer of the properties which he alleges he is entitled to pursuant to the Distribution Agreement, it is common ground that since around December 2017 Anthony has enjoyed occupancy of those properties, he has derived income from them and from time to time has used them, or some of them as security for borrowings by him or interests associated with him.

74 Mathew pleads that he (not Amberlowe) paid taxes and duties in respect of transfers of property to him or to entities associated with him. Separately Mathew alleges that Anthony represented or otherwise induced him to believe that he, Anthony, would pay for and would be legally responsible for paying any expenses, duties and taxes arising from the transfer of assets to Anthony to which he was entitled pursuant to the agreement. Mathew further pleads that it would be unconscionable for the defendants to be required to pay expenses, duties and taxes arising from the transfer of assets to Anthony and that Anthony is estopped from asserting that they are obliged to do so.

75 As appears from this discussion of the pleadings, Anthony has not taken a transfer of the properties to which he is entitled under the December 2017 agreement upon which he relies. That is because he seeks to have others pay the costs of transfer and any CGT payable on the transfer of the designated properties to him. CGT over the period from 2013 (being the last time by which the properties could be transferred without CGT) is now likely to be very considerable.

76 Mathew submits and I accept that Anthony's claim in the Distribution Proceeding as currently pleaded is founded on the proposition that the siblings validly agreed with the executors and the trustees of the relevant trusts that properties would be divided between the siblings in the agreed manner and that pursuant to that agreement, assets were distributed to the siblings.

77 Based on the pleadings the issues that separate the parties in the Distribution Proceeding are quite narrow.

78 As mentioned earlier, the Distribution Proceeding includes claims by Anthony against Mr Roache and Mr Nagle. Anthony alleges that if Amberlowe as trustee of the Hoare Family Trust has insufficient assets to meet the expenses duties or taxes payable associated with transferring the properties to him, then Mr Roache and Mr Nagle as directors of Amberlowe breached their duties pursuant to s 180 of the Corporations Act.

79 There are some significant complications and difficulties concerning the claims made by Anthony against Mr Roache and Mr Nagle in the Distribution Proceeding to which reference should be made.

80 During the hearing on 29 January 2025 counsel appearing separately for Mr Roache and for Mr Nagle submitted the claims against their respective clients should be dismissed, including in the case of Mr Nagle because the statement of claim in the Distribution Proceeding fails to disclose a cause of action against him and lacks any proper basis.

81 On 20 December 2022, Mr Roache was declared bankrupt. Pursuant to s 58(3) of the Bankruptcy Act 1966 (Cth), no person can take a fresh step in a proceeding against Mr Roache unless leave is given by the Federal Court.

82 On 10 August 2023, Justice Hespe granted leave for Anthony to continue and take fresh steps as against Mr Roache in the Distribution Proceeding 'for the purpose of the mediation'.[4] In her Honour's reasons she noted conceptual difficulties with the claim against Mr Roache:[5]

While the applicant's claim against Mr Roache is for unliquidated damages, there is some uncertainty as to the precise claims being made against Mr Roache in the proceedings. Mr Hoare's claim for damages in the Distribution Proceeding appears to be based on breach of Mr Roache's duties as a director of the trustee. The basis on which Mr Hoare seeks to make a claim against Mr Roache in respect of the other proceedings is not clear.

83 Her Honour has ordered that if the mediation fails Anthony will need to seek a further grant of leave to proceed with his claim against Mr Roache.

84 As mentioned during the hearing on 29 January 2025, I share Justice Hespe's concerns about the validity of the claim against Mr Roache. I invite Anthony to discontinue his claim against Mr Roache when filing and serving amendments to his pleadings in the Distribution Proceeding, due to be filed and served by no later than 24 February 2025 pursuant to the case management orders that I made on 7 February 2025.

85 In advance of the hearing, submissions filed on behalf of Mr Nagle stated:

The existing claim is for damages for breach of director's duties owed to Amberlowe Pty Ltd, measured by the tax and duties that Mr Anthony Hoare has to pay on his share of the assets under the "distribution agreement". It is an alternative claim that could factually arise only if it emerged both that:

a) Amberlowe was bound by a distribution agreement to pay them on Mr Anthony Hoare's behalf; and

b) Amberlowe has insufficient assets to pay them.

1. If it is not struck out, Mr Nagle seeks to have the matter proceed to trial as soon as possible after 28 April 2025.
2. The only step required on Mr Nagle's part is the opportunity to file evidence, including responsive material if the reports being prepared by Moore Australia and PWC Australia are relevant to the damages claim.

87 I consider the statement of claim does not disclose a cause of action by Anthony against Mr Roache or Mr Nagle. It does not do so because it does not allege an agreement between relevant persons that Anthony's expenses, duties or taxes would be paid by Amberlowe. Even if there were such an agreement alleged, any cause of action for breach of directors' duties by Mr Roache and/or Mr Nagle is Amberlowe's cause of action, not Anthony's. There is no application by Anthony for derivative leave. By making that observation I do not wish to suggest that when amending his pleadings Anthony should seek derivative leave. I invite Anthony to discontinue his claim against Mr Nagle when filing and serving any amended pleadings on or before 24 February 2025.

88 The second of Anthony's current proceedings in time, the 'Separation Proceeding, is a proceeding in which Anthony seeks to enforce an agreement reached between mid-2016 and August 2017 concerning what is referred to in the pleading as the 'Hoare Bros Business'.

89 As part of the relief sought in that proceeding Anthony seeks an order that H4MC transfers all of its shares in Geelong Quarries to him.

90 The following are the current pleadings in the Separation Proceeding:

(a) Anthony and Customline's writ and statement of claim dated 20 August 2020;

(b) Mathew, Amberlowe, Samworth, Wibaho and H4MC's defence and counterclaim dated 12 November 2020;

(c) Anthony and Customline's reply and defence to counterclaim dated 9 February 2021; and

(d) Mathew's reply to defence to counterclaim dated 7 April 2021.

91 The issues in the Separation Proceeding are narrow. The pleadings in the Separation Proceeding disclose there is no dispute that a Separation Agreement was made and part-performed. As submitted by Mathew, what is disputed is whether Geelong Quarries forms part of the Hoare Bros business and various alleged breaches of the Separation Agreement.

92 Anthony alleges in paragraph 13 of his statement of claim that between 15 June 2016 and August 2017 the parties to the proceeding, or alternatively Anthony and Mathew personally entered into an agreement pursuant to which Mathew would exit from the 'Hoare Bros Business', which he alleges includes Geelong Quarries, and that Anthony would continue to provide various benefits to Mathew and/or his related entities through the Hoare Bros business**.**

93 The relief sought by Anthony includes a declaration that the Separation Agreement is binding and an order for specific performance of the agreement, and an order that H4MC transfer its shares in Geelong Quarries to Anthony or his nominee.

94 In his defence Mathew denies the agreement alleged by Anthony in paragraph 13 of the statement of claim. Mathew denied that Geelong Quarries forms part of the 'Hoare Bros Business'. Mathew pleads that on around 15 June 2016 and August 2017 Anthony and Mathew agreed to the terms set out in two documents titled 'heads of agreement'. In his reply and defence to counterclaim Anthony admits the heads of agreement entered into by the parties to those agreements. These are the August 2017 documents referred to at paragraph 13 above.

95 Mathew and companies associated with him counterclaim in the proceeding. Amongst the relief claimed in the counterclaim Mathew claims damages for breach of the Separation Agreement as he defines that agreement, alternatively for specific performance of the Separation Agreement. In addition, Mathew seeks orders for the taking of accounts in relation to Geelong Quarries.

96 As submitted by Mathew in advance of the 29 January 2025 hearing, the claim by Anthony in the Separation Proceeding is founded on the proposition that each of Anthony and Mathew acquired (from Peter's estate and from the Hoare Family Trust of which Amberlowe was and is the trustee) an interest in the Hoare Bros business, and that Mathew agreed to transfer his interest in the Hoare Bros business to Anthony.

97 On 22 December 2022 Anthony filed a summons in the Separation Proceeding seeking orders to consolidate his then existing proceedings. On 21 July 2023 I dismissed the Consolidation Application.

98 In opposition to the Consolidation Application in submissions dated 19 July 2023 Mathew made a number of observations concerning Anthony's changed position as embodied in the proposed consolidated statement of claim including as follows:

Distribution Proceeding (S ECI 2020 02806)

1. By Writ and Statement of Claim issued in the Trusts Probate and Equity List on 1 July 2020, Anthony seeks distribution of assets that were agreed to be provided to him by the Executors and Trustees. The claim is relatively straightforward with Anthony seeking to enforce a partly performed agreement for the distribution of assets from his late father's estate (Distribution Agreement). More specifically, Anthony claims:

   1. an order that Anthony receive his asset entitlements under that agreement; and
   2. that Amberlowe Pty Ltd pay any expenses, taxes and duties arising from those asset transfers.

2. The existence of a binding agreement for the distribution of assets has never been disputed in this proceeding. It was admitted by Mathew from the outset. In fact, Mathew brought a Counterclaim in which he also sought distribution of the remaining assets to be distributed to him under the Distribution Agreement (e.g. cash, assignment of loans and the half interest in Liberton).

3. The proposed "consolidated " statement of claim ("PCSOC") directly contradicts Anthony's Defence to Counterclaim which admits the existence of a Distribution Agreement see [2] and [23] of Reply and Defence to Counterclaim dated 10 February 2021. No application has been made by Anthony to amend the Defence to Counterclaim and the admissions made therein.

4. The agreed distributions were implemented between 2012 and 2019, save that Anthony did not take a transfer of his real estate assets as he insisted on the Trust paying the stamp duty and transfer costs. He did, however, receive control, occupation, rent estimated to be $2.5 million in total and other benefits as if his properties had been transferred to him.1 Mathew over many years in reliance on the validity of the agreed distribution sold some of his properties, purchased other properties in reliance on the sale proceeds of distributed properties, made substantial improvements to/development of properties; used properties to secure loans and paid rates/outgoings/taxes including capital gain tax. 2 Kim who received her properties between 2012 and 2015 has sold some of them.

5. After three years of litigation to enforce the Distribution Agreement, by the "PCSOC" Anthony now wishes to effectively abandon the claims made in the Distribution Proceeding. Instead, Anthony now wants to claim that the Distribution Agreement was invalid/unenforceable and assets previously distributed must be disgorged by Kim and Mathew. The new position is completely inconsistent with the claims brought and pursued in the Distribution Proceeding as well as admissions made by the parties.

...

Anthony's disingenuous hybrid approach

1. In earlier iterations of the PCSOC Anthony's primary position was that the Letter of Instruction dated 6 October 2010 (Anthony revised bundle (ARB) 469-470) was not a codicil to the Will and was not binding on the Executors. Anthony and his advisers, presumably having reflected on this, now include as an alternative that the Executors could act on the Letter of Instruction. That is presumably because Anthony obtains the benefit of the stipulation in the Letter of Instruction that Kim is not to have any interest in Hoare Bros, which is to go to Anthony, Mathew and Kim's children. Anthony exited Kim's children, James and Daniel, both from their employment by and their one third equity interest in Hoare Bros left to them under the Letter of Instruction4. Anthony subsequently exited Mathew from Hoare Bros being the subject matter of the Separation Proceeding.

...

1. It is no part of Anthony's case that Hoare Bros is an asset of the Hoare Family Trust or that it should be sold or disgorged or that he should give an account of profits to the Hoare Family Trust. Neither does Anthony suggest that he should disgorge the properties ascribed to him under the Distribution Agreement or that he should account for the rent and profits received by him from them. Further it is no part of Anthony's case in the PCSOC that Mathew and Kim will each be entitled to a one third interest in Hoare Bros or that Kim's children should have their interest in Hoare Bros reinstated.

...

1. The entirety of the evidence offered by Anthony in support of his application for leave to rely on the PCSOC and to be permitted to effect the U-turn is set out in paragraphs [22]-[24] of his 22 September 2022 affidavit, and is as follows:

"From the outset, Mathew, Roache and Nagle took the lead in administering Peter's Estate. At all time times, I relied upon their advice. I did not complete secondary school, have no tertiary education and limited reading and writing skills. I have worked in the family business, the Hoare Bros Business, since I was thirteen years old. My co-executors are aware of these matters. It has now been confirmed to me (through the Estate Legal Files which are explained below at paragraphs 38 and 39), that Mathew, Roache and Nagle held meetings without me, made decisions in my absence, and circulated correspondence between each other that was not provided to me.

1. Notwithstanding the relatively straight forward terms of the Will, the Estate has not been administered in accordance with the Will, and despite the passage of time, the Estate has not been finalised.

2. To the best of my knowledge and for reasons that are entirely inexplicable to me, the liabilities of the Estate were not called in and the residue has not been paid to Amberlowe and held by it pursuant to the terms of the Family Trust."

...

1. The PCSOC fails to grapple with the fundamental problem that Anthony seeks to reverse the distributions to Kim and Mathew whilst retaining the benefit of property and entities including Hoare Bros he received as a result of the same conduct he now complains of.

2. The PCSOC fails to grapple with the inconsistency between his pleading that the division of the assets was done without his informed knowledge and consent when he particularises under [224] that of the seventeen (17) minuted executors' meetings between June 2012 and November 2018, he attended thirteen (13) and his solicitors met with and negotiated direct with the solicitors for the Estate.

3. The PCSOC whilst seeking to have reversed the one third distributions to each of Mathew and Kim, contains at [282] a claim by Anthony of a one third interest in what he says was an interest in various joint ventures owned by Amberlowe.

4. The PCSOC fails to grapple with the fact that the primary claim in the Distribution Proceeding to reverse the distributions, if successful, would entirely deprive Anthony of his interest in Geelong Quarries and therefore his ability to make the oppression claim and his interest in Hoare Bros and therefore his ability to make the Separation Proceeding claims.

...

1. A further element of considerable prejudice is that if the PCSOC is permitted and the claims pleaded in it in relation to the distributed properties are successful, those properties will fall back under the control of Amberlowe and Galaxie as trustees of their respective Trusts. The trustees will then be obliged to consider how to exercise the discretions reposed in them and the likely, if not inevitable, outcome will be that the trustees will resolve to distribute the properties they hold or the proceeds of sale of those properties equally to the siblings, thereby rendering the claims made in relation to the Distribution Agreement inutile, and potentially leaving the three siblings co-owners of some of the properties with the potential for a new round of disputes in the future. Costly, time consuming, complex and lengthy litigation which may produce no better or different outcome but at vast expense and delay is not an appropriate use of the Court's or the parties resources.
2. Each of the current proceedings is capable of being tried and determined when ready for trial. If leave to rely on the PCSOC is granted, as a matter of logic the Distribution Agreement claims in it need to be determined in order to ascertain whether it is Anthony or the Trust which has any interest in Geelong Quarries and whether it is Anthony or the Trust which has any interest in Hoare Bros. Until those issues are determined, the Separation Proceeding and the Oppression Proceeding cannot be determined. This converts three proceedings based on the single premise that the Distribution Agreement is valid, capable of being tried and determined as soon as they are ready, into one proceeding likely to have to be dealt with in at least two stages, if not more.

99 The reasons the Consolidation Application was dismissed appear from the transcript of the hearing on 21 July 2023. They include that the form of the proposed consolidated statement of claim was manifestly deficient. By way of example, claims were included for alleged breach of directors duties owed to Amberlowe and Galaxie for which derivative leave would need to have been granted in Anthony's favour but the pleading did not plead out an alleged basis for the grant of leave.

100 The proposed consolidated pleading included proposed claims against Mr Roache, an existing defendant in the Distribution Proceeding who, by the time the hearing in July 2023 had occurred, had been made bankrupt, and in respect of whom no application had been filed by Anthony and no order had been made by the Federal Court permitting leave to proceed against his bankrupt estate.

101 The proposed consolidated pleading included approximately 40 pages of what might be described as either particulars or evidence but pleaded as material facts.

102 Importantly, the proposed consolidated pleading involved material departures of substance from the position previously contended for by Anthony in pleadings previously filed by him and which remained extant in the Distribution Proceeding. Those same claims had been and continue to be relied on by Anthony to lodge and maintain caveats over titles to a number of parcels of real property. The Consolidation Application was founded on the proposition that no sibling had any valid interest in Hoare Bros, any of the real estate assets, or Geelong Quarries, and contended that those assets should be sold and the net proceeds of sale transferred to Amberlowe, trustee of the Hoare Family Trust.

103 The proposed consolidated statement of claim sought to unwind all of what had occurred pursuant to agreements relied on by Anthony in existing proceedings and to have the assets dealt with in a manner that Anthony now wished to contend was in accordance with Peter's Will. Anthony now contends that the Will required that all the assets be sold and that the proceeds form part of the Hoare Family Trust of which Amberlowe was trustee.

104 In his submissions dated 22 January 2025 Mathew described the Consolidation Application in the following terms:

The consolidated statement of claim in effect sought to unwind the Distribution Agreement and the Separation Agreement and have all of the assets which once comprised assets of Peter's estate and/or family trusts set up by Peter transferred back in to the estate to be dealt with in accordance with Peter's will.

105 By the time of the Consolidation Application Mathew and Kim and their respective interests had owned properties distributed to them pursuant to the 2017 agreements for many years, and some of those properties had been sold. Although Anthony and his interests were not yet registered on the title to the properties to be distributed to him, Anthony had full control of those properties. As earlier mentioned, Anthony has renovated some of them, used or rented all of them and mortgaged one or some of them as security for significant loans. In addition, Anthony had operated Hoare Bros as his own business for a number of years after 'exiting' Mathew.

106 Mathew submitted that the proposed consolidated statement of claim:

referred to but failed to grapple with the issues arising in respect of the Peter Hoare Family Trust of which Galaxie was trustee and which trust owned the Liberton quarry land and many other properties, none of which formed part of the Estate and many of which have already been transferred to Mathew and Kim.

107 Following the refusal of the Consolidation Application on 21 July 2023 there have been no fresh pleadings filed by Anthony in the Distribution Proceeding or in the Separation Proceeding. No steps have been taken by Anthony to advance either of those cases to trial.

108 Prior to Peter's death the Hoare Family Trust in its own right or through entities owned or controlled by it owned substantial real estate at various locations mainly in and around Geelong in Victoria valued for probate at approximately $34 million net.

109 Pursuant to an Order made on 12 December 2022 in the Distribution Proceeding, such Order to also stand as an Order made in the Oppression Proceeding and in the Separation Proceeding, Mr Wells of counsel and Ms Wright of FTI Consulting were appointed to prepare an independent expert report concerning the true asset and liability position of Peter's estate both as at his date of death and as at 31 December 2022.

110 The independent experts completed their report on 4 April 2023. They reported:

2.5. It is critical to note that the Appointment Orders required us to determine the true asset and liability position of the deceased estate of Peter Hoare as at the date of his death and as at 31 December 2022. As explained further, in this regard, assets held on trust by a deceased, and companies in which the deceased held some (or even all) of the shares, but which companies acted only as trustees, are not assets of the estate of the deceased.

2.6 It is apparent from the schedules and documents provided to us, that in addition to assets in which the deceased had a beneficial interest, the deceased was a shareholder in the following companies which acted only as trustee of trusts established inter vivos by Deed:

a) Amberlowe Pty Ltd, which is the trustee of trust known as "The Hoare Family Settlement";

b) Galaxie Investments Pty Ltd, which is the trustee of the trust known as "The Peter Hoare Family Trust";

c) Brylou Pty Ltd, which appears to be the trustee of the trust known as the Barwon Superannuation Trust (being a superannuation trust in which the deceased held a member entitlement at the date of his death);

d) Deakin Administration Pty Ltd, which it is asserted was the trustee of the Featherock Trust; and

e) Fourth Lendale Pty Ltd, which it is asserted was the Trustee of the Dennis Daniel Hoare Unit Trust.

2.7 We have also noted that pursuant to clause 4, the Will of the deceased, the deceased specifically devised his shareholding in Amberlowe to his executors and trustees, to hold until such time as Amberlowe either ceases to be the trustee of the Hoare Family Settlement Trust, or until that trust is vested, whichever occurs first. Further by clause 6 of the Will, the residue of the deceased's estate, is to pass to Amberlowe ".... pursuant to the terms of the Deed in existence at the date of my death".

2.8 Again, however, the mere fact that Amberlowe (in its capacity as trustee) is effectively the sole residual beneficiary of the assets of the deceased's estate, does not of course alter the nature of the assets of the deceased's estate.

2.9 The assets that Amberlowe (and the other trustee companies listed above) holds are not estate assets, they are assets of each of those trusts and must be held, and dealt with, pursuant to the terms of their relevant trust deeds. Whilst the disposition of deceased's shareholding in those trustee companies may be effective to pass control of those trusts and the powers and discretions that the trustee of each of those trusts has, they are not dispositions of any of the property held by the trusts.

111 Having regard to their treatment of trust assets the independent experts concluded the following represents the true value of the estate of Peter as at 19 May 2011:

112 The independent experts concluded that they were unable to provide an opinion concerning the true asset and liability position of the estate as at 31 December 2022, other than to state:

a) That significant assets appear to have been distributed out of the Estate to the beneficiary entitled under the terms of the Will (Amberlowe)...;

and

b) We have not been provided with any information enabling us to determine what if any income and expenses have arisen in the Estate from the date of death of the deceased up to 31 December 2022, and whether or not all of such net income has been distributed to the beneficiary of the Estate (Amberlowe Pty Ltd).

113 While the independent experts were unable to determine the position as at 31 December 2022, table 4 in their report reported as to what had become of certain assets previously those of the estate:

114 On 21 July 2023 each of the then extant proceedings were referred to judicial mediation before Associate Justice Efthim.

115 At the time of referral to mediation I anticipated the potential resolution of the dispute between the family members and their related entities may be informed by the independent expert's report dated 4 April 2023.

116 On 14 August 2023, the parties attended a mediation before Associate Justice Efthim which was adjourned part heard.

117 The further conduct of the mediation was deferred until the receipt of valuations of land, in particular, of 'Liberton', and the provision of advice from PwC concerning tax and duty consequences of various acquisitions and disposals of assets by parties in the proceedings. Advice was sought from PwC on behalf the parties by letter dated 13 October 2023.

118 As required by Orders made in the Distribution Proceeding and adopted in the other related proceedings, since the disputes were referred to mediation the parties have regularly updated the Court concerning the preparation of accounting reports all information and expert reports, the completion of which the parties agree is desirable prior to the mediation being reconvened. The most recent update to Chambers was on 18 October 2024 pursuant to my Order of 15 August 2024.

119 The ability of PwC to provide advice depends amongst other things upon the completion of outstanding financial statements and tax returns for the financial years ending 30 June 2018 - 30 June 2023 inclusive for the following entities, such accounts to be prepared by Moores jointly engaged by Anthony and Mathew to undertake that work:

(a) Amberlowe as trustee for the Hoare Family Settlement;

(b) Galaxie as trustee for the Peter Hoare Family Trust;

(c) ME Hire Pty Ltd (ACN 055 779 774);

(d) Maukad Holdings Pty Ltd (ACN 009 536 672);

(e) Bellada; and

(f) Ozenka Pty Ltd (ACN 008 164 770).

120 The preparation of financial accounts for those entities by Moores remains outstanding. There are disputes between the parties concerning the provision of information to enable that work to be done.

121 Separate to the mediation process and steps associated with that process including the preparation of accounts, there has been very little activity in any of the proceedings since July 2023. The exception is that on 2 August 2023 Mathew issued a series of subpoenas in the Oppression Proceeding directed to the following former customers of Geelong Quarries:

(a) TLC Concreting and Earthworks (ABN 99 295 961 218);

(b) Simon Weisse T/A Simo's Concrete and Excavations (ABN 47 716 940 611);

(c) Hosey Earthworks Pty Ltd (ACN 634 488 421);

(d) Jadeho Pty Ltd (ACN 120 295 909);

(e) Decmil Southern Pty Ltd (ACN 005 412 466);

(f) Daly's Constructions (Aust) Pty Ltd (ACN 091 546 735);

(g) Creek Plumbing & Excavations Pty Ltd (ACN 109 572 447);

(h) Porter Constructions (Vic) Pty Ltd (ACN 109 608 853);

(i) Dirt Shift Enterprises Pty Ltd (ACN 116 071 419); and

(j) Applied Installations Pty Ltd (ACN 138 847 855).

122 On 17 August 2023, Anthony filed a confidential letter of objection objecting to the subpoenas on various grounds.

123 Mathew issued a further series of subpoenas on 14 September 2023 to Applied Installations Pty Ltd (ACN 138 847 855) and Decmil Southern Pty Ltd (ACN 005 412 466) to which Anthony objected to in a confidential letter from his solicitors filed on 4 October 2023. Mathew issued a subpoena to Deja Eight Pty Ltd on 9 October 2023 to which Anthony objected on 19 October 2023.

124 On 27 October 2023, Mathew filed an affidavit in response to Anthony's objections. The objections were heard by Associate Justice Barrett on 14 March 2024. On 29 April 2024 his Honour dismissed the subpoena objections.[6]

125 On 24 December 2024 Anthony issued the Judicial Advice Proceeding.

126 By an originating motion in which Mathew is named as the sole defendant, Anthony identifies certain questions for judicial advice. In framing the questions for advice, the terms used in the originating motion correspond to terms in Anthony's statement of claim in the Distribution Proceeding.

127 The questions set out in the originating motion are in the following terms:

Pursuant to s 34 of the Administration and Probate Act 1958 (Vic), s 63 of the Trustee Act 1958 (Vic), r 54.02(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) or otherwise, the Plaintiff seeks answers to the following questions (Questions) concerning matters that have arisen in the administration of the Estate of Peter Leo Hoare, deceased:

1. Have the trustees and executors of the Estate been authorised, at any time, by reason of the:
   1. Will executed by Peter Leo Hoare on 4 August 1998 (see SoC, [13]); and/or
   2. document headed "Testamentary Requests" signed by the Deceased on 6 October 2010 (see SoC, [14]); and/or
   3. document(s) headed "Division of Assets" (see SoC, [22]); or otherwise,

1.1. to appoint directors of, issue/transfer shares in, or otherwise distribute/transfer assets held by, the entities in the table, exhibited to the Affidavit of David Alexander Grant sworn 20 December 2024, at pages [313] to [340] of exhibit "DAG-1"??

1.1.1. if yes, was such authority subject to the passing of a written resolution, executed by a validly appointed director(s)?

1.2. to distribute or transfer assets held on trust, including for the Hoare Family Trust and the Peter Hoare Trust, by the entities in the table, exhibited to the Affidavit of David Alexander Grant sworn 20 December 2024, at pages [313] to [340] of exhibit "DAG1"?

1.2.1. if yes, was such authority subject to:

1.2.1.1. acting in accordance with the express terms of the relevant trust deeds?

1.2.1.2. not overriding the entitlement of specified beneficiaries of such trusts?

1.2.1.3. passing a written resolution, recording the exercise of a discretion by the relevant trustee and executed by a validly appointed director(s)?

128 Both questions 1.1 and 1.2 refer to the authority of those involved to make decisions to appoint directors, issue or transfer shares and distribute/transfer assets, the detail of which is set out in a table exhibited to the affidavit of Mr Grant. That table which appears at pages 313 - 340 of the exhibit to the affidavit of Mr Grant appears to attack the validity of many of the decisions and actions referred to because there is 'no written resolution identified'.

129 In the course of oral submissions senior counsel for Anthony stressed what he submitted was a failure on the part of those involved in decision-making to document by resolution the decisions given effect by what might broadly be described as the part performance of the Distribution Agreement.

130 As submitted by senior counsel for Mathew, as appears from clause 16 of the Hoare Family Trust Deed, reproduced at paragraph 7 above, the word 'may' where it appears in the chapeau to the clause, may be significant when it comes to deciding whether or not a written resolution is required, as now seems to be the main case propounded by Anthony, or whether the clause is merely permissive or facilitative. It is also relevant as submitted by senior counsel for Mathew that the trustee when making a decision or exercising a discretionary power has power to delegate the decision-making process to others. Again, a power prefaced by the word 'may' in clause 16(a) of the Hoare Family Trust Deed. So far as the Peter Hoare Trust Deed is concerned, clause 17, reproduced at paragraph 8 above, uses the word 'may' when describing what the trustees from time to time may do and how the trustees from time to time might make decisions. That trust deed also includes a power to delegate.

131 It is unnecessary to answer questions concerning the proper construction and effect of these clauses. However, it is important to recognise that whether a resolution is required for actions taken to be valid and binding is very much a live question and one which separates the key protagonists in the positions which they now adopt.

132 In addition to identifying questions for judicial advice, the originating motion seeks what are described as 'ancillary orders' as follows:

1. That pursuant to order 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), alternatively section 63 of the Trustee Act 1958 (Vic) the Court give such directions as are necessary for the management of the Estate, the Hoare Family Trust and the Peter Hoare Trust.
2. That the Defendant be removed forthwith as a director of Amberlowe and Galaxie and as a trustee and executor of the Estate.

1. Further and in the alternative, leave be granted to the Plaintiff, to bring and defend claims, for and on behalf of the Estate, the Hoare Family Trust and the Peter Hoare Trust, in respect of any distribution or transfer of properties or cash holdings made otherwise than in accordance with the Will, the Hoare Family Trust deed and the Peter Hoare Trust deed.

1. That upon the relief in paragraph B being granted (and if as required by the Court, the Plaintiff be given leave to resign as a director of Amberlowe, and Trustee and Executor of the Estate), that an independent trustee or receiver of the Hoare Family Trust, the Peter Hoare Trust, and the Estate be appointed to act upon the directions as to the further management of the Hoare Family Trust, the Peter Hoare Trust, and the Estate, as set out in paragraph A above.
2. Declarations that the Plaintiff, with respect to the subject matter of the Questions:

(i) pursuant to section of 67 of the Trustee Act 1958, be excused from any breach of trust and relieved wholly for any personal liability;

(ii) pursuant to section 1318 of the Corporations Act 2001, be excused from any negligence, default or breach as a director;

(iii) be relieved of any liability under the Administration and Probate Act 1958.

1. That the independent solicitor and independent accountant appointed by the Court as special referee pursuant to the Order made 12 December 2022 provide advice to the Court as required.

133 Mathew opposes the Court providing judicial advice. He submits that by the originating motion Anthony seeks to achieve the same outcome as the failed Consolidation Application but by a different means.

134 Anthony submits that judicial advice should be provided without him being required to abandon or make an election concerning his existing proceedings, including his case for oppression.

135 Anthony relies on the affidavit of Mr Grant in support of his originating motion. Paragraphs 18-22 of Mr Grant's affidavit follow the heading 'change in position'. Anthony has not filed any affidavit himself to explain, support or substantiate his 'change of position'.

136 Mathew submits the application for judicial advice represents a u-turn by Anthony but without any adequate explanation. He submits the explanation in the affidavit of Mr Grant for the 'change in position' is unsatisfactory. It ignores the fact that Anthony wishes to continue his existing cases based on agreements made by him, including in the capacities in which he seeks advice.

137 Anthony submits the application for judicial advice raises confined and readily answered questions, which amongst other things, will impact upon the ongoing mediation. He submits the provision of such advice is necessary because the executors and beneficiaries are not ad idem as to the validity of past transactions.

138 Anthony submits he has a 'statutory entitlement' to judicial advice and that the questions that are sought to be answered are typical of questions for judicial advice. Whilst in his written submissions Anthony referred to a 'statutory entitlement' to judicial advice, in the course of the hearing senior counsel for Anthony accepted that the Court has a discretion to provide or not to provide judicial advice.

The application to discharge the injunction: consideration

139 At the time the injunction was granted in September 2022 Anthony was proceeding on the basis that the shares held in Geelong Quarries and the directors of that company were validly appointed. The First Geelong Quarries Proceeding challenged the appointment of Mathew and Kim as directors. When that proceeding was dismissed in June 2020, the 'Other Matters' in the Order record an acknowledgement by Anthony that Mathew and Kim were validly appointed.

140 Anthony's existing pleadings in the Distribution Proceeding, unchanged since the injunction was granted on 8 September 2022, are consistent with the proposition that he, or more particularly ET, has standing to bring the Oppression Proceeding.

141 However, Anthony's position in the Judicial Advice Proceeding, as was his position when he sought to propound his proposed consolidated statement of claim in July 2023 in the Consolidation Application is that distributions which he pleads as having been made pursuant to the agreement upon which he relies in the Distribution Proceeding should be reversed. If he is correct in that view, ET has no standing to bring the Oppression Proceeding, let alone to seek injunctive relief against Mathew and Kim.

142 Of itself, and without more, this fundamental change in position, described by Mathew in his submissions as a 'u-turn', requires the injunction be discharged. A person who has no standing to bring a proceeding, as is the consequence of the change in position for which Anthony contends, if accepted as correct, is not in a position to make out a prima facie case.

143 That is not the only reason the injunction must be discharged.

144 There has been a material change of position 'on the ground' so far as the quarrying operations at Liberton are concerned. When the injunction was granted, Geelong Quarries was invoicing customers for product from the quarry and Hoare Bros was providing the quarrying services. Geelong Quarries had its own telephone number and post office box. Adopting the language of senior counsel for Mathew, since the injunction was granted the telephone number and post office box, along with Geelong Quarries' customers have been 'hijacked' by Hoare Bros.

145 When the injunction was granted a material consideration was the preservation of the status quo. [7] The steps that have been taken by Hoare Bros under the control of Anthony of which Mathew complains, including those referred to in the summary part of his affidavit, do not represent a continuation of the status quo but rather a departure from it. Although Anthony in his affidavit provides an explanation for that conduct, it is not seriously in contest that the conduct of which Mathew and Kim complain has taken place.

146 If Anthony is correct in his assertion that it was never intended the Geelong Quarries operate its own separate business and that the customers were in fact customers of the Hoare Bros quarry business that he, Mathew and Peter had agreed to establish, a matter that may need to be determined at the trial of the proceedings, there might be some justification for the steps that he has taken since September 2022. However his case about these issues is a case with which Mathew and Kim disagree. Although there might be some basis for complaint by Anthony about Mathew and Kim's interference in the business operations, if Anthony had a concern about them refusing to pay invoices and disrupting the quarry business he should have approached the Court rather than take matters into his own hands and change the status quo in response to those issues as seems to be the thrust of his evidence.

147 There is validity in the submission on behalf of Kim that Anthony's behaviour in resisting the subpoenas issued by Mathew on the grounds the subpoenas were fishing and an abuse of process and were not for a legitimate forensic purpose is consistent with Anthony wanting to hide the migration of customers and the other steps that Hoare Bros has taken since 2022 to change the then status quo.

148 I am in no doubt based on Anthony's changed position and the evidence concerning what has happened 'on the ground' at Liberton as revealed by the documents produced on subpoena, the production of which was opposed by Anthony, that the injunction must be discharged.

149 A practical issue potentially arises from the discharge. That is, if the injunction is discharged, it would be open to Mathew and Kim to take steps to have Geelong Quarries resolve to remove Hoare Bros as the provider of quarrying operations. That is, to undertake the very steps the injunction restrained taking place. However, I was informed by counsel for those parties that they have no intention of taking steps to interfere with the provision of quarrying services by Hoare Bros, noting the trial of the proceeding will now take place commencing in July 2025.

150 As suggested by counsel for those parties I included a notation in 'Other Matters' to the Order that notwithstanding the discharge of the injunction, Mathew and Kim do not propose to take action to terminate the contractual arrangements between Hoare Bros and Geelong Quarries prior to the determination of the proceeding by trial in 2025. That is, on the basis that additional orders are made substantially as proposed by Mathew, that ensures transparency in the quarrying operations and the regular provision of information to Mathew. As discussed during the hearing, I made those orders, including orders for surveillance.

151 I have ordered that the assessment of damages, if any, suffered by the defendants or any of them, by reason of the injunction is to be heard and determined on a date to be fixed not before July 2025. I have in mind that any assessment of damages will follow the hearing and determination of issues at the trial of the three proceedings.

152 I ordered Anthony and ET to pay Mathew's costs in the Discharge Application and the costs of all other parties of and incidental to that application limited to those parties who made submissions either in writing or at the hearing in support of the Discharge Application.

The application for Judicial Advice: Consideration

153 I have dismissed the originating motion in the Judicial Advice Proceeding. There are a number of reasons why to do so is the only appropriate course.

154 The first reason, although the proceeding is described as one for judicial advice, in addition to seeking answers to questions Anthony seeks substantive relief in what is described as 'ancillary orders'. He does so in circumstances where persons who are necessary and appropriate parties to any proceeding in which such orders might be made are not parties to the proceeding.

155 By way of example, proposed order E proposes the Court grant a declaration that Anthony is excused from breaches of trust and relieved wholly from any personal liability, pursuant to s 1318 of the Corporations Act, is excused from any negligence, default or breach as a director and is relieved of any liability under the Administration and Probate Act . That is, with respect to 'the subject matter of the questions'.

156 What is being sought under the guise of 'ancillary orders' is a declaration that, if made, would relieve Anthony from liability for actions taken by him, including actions taken to implement the Separation Agreement and the Distribution Agreement. By way of example, Kim would at least arguably be shut out from any action against Anthony personally if the declaration sought were to be made, yet Kim is not a party to the Judicial Advice Proceeding.

157 The conduct in respect of which Anthony seeks to be excused by declaration includes conduct which he now contends amounts to breach of trust in respect of the affairs of the Hoare Family Trust of which Amberlowe and Galaxie are trustees but neither company is a party to the Judicial Advice Proceeding.

158 The second reason is judicial advice is only as good as the evidence or matters upon which it is based. Question 1.1 in the originating motion concludes with the words 'or otherwise'. In circumstances where the parties have engaged in litigation over several years, all of which has been initiated by Anthony, in considering whether the trustees and executors of the estate been authorised to undertake the actions referred to in 1.1 or 1.2, to provide meaningful, helpful and informative advice, if otherwise appropriate, the Court would need by reference to the words 'or otherwise' to investigate and understand matters such as the Distribution Agreement and the Separation Agreement. The Court would need to understand whether estoppels arise against Anthony such as or similar to those pleaded in the Distribution Proceeding and whether there are estoppels that mean that the trustees and executors of the estate if not otherwise authorised are to be treated as if authorised. To provide judicial advice in circumstances where matters such as the existence of the Distribution Agreement and estoppels to which I have referred would need to be considered as a result of the words 'or otherwise' in the originating motion would likely result in a substantive proceeding, and would likely take up significant time and resources of the court and the parties.

159 The third reason, related to the second, such a proceeding is not a proceeding of the type contemplated by the statutory provisions and the rule on which the application is founded, including specifically r 54.02(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

160 When the prospect of the judicial advice not being available without requiring consideration of the broader issues was raised with senior counsel for Anthony, his response was to submit that the words 'or otherwise' should be deleted from the originating motion. To proceed on that basis would be to provide advice in a vacuum. It would not address the circumstances of these disputes where Peter died in 2011 and, based on the current pleadings the relevant family members and entities associated with them who came to agreements in August and December 2017 and who have acted upon and implemented those agreements since 2017.

161 The fourth reason is that Anthony is in a fundamental position of conflict when seeking judicial advice such that judicial advice should not be given. Anthony seeks judicial advice to the effect that agreements made and actions taken by him were agreements made and actions taken by him and by others in breach of duty. How Anthony would propose to proceed if the advice he seeks were to be given is unclear. That is, what happens next? Does Anthony bring a proceeding against himself for breach of duty? Not so if he were to be granted the declaratory relief including that in paragraph E of the "ancillary orders". Anthony's position of conflict is both unsatisfactory and unexplained by any evidence from him.

162 The fifth reason, it is inappropriate for the Judicial Advice Proceeding to go forward in circumstances where the Distribution Proceeding, the Separation Proceeding and the Oppression Proceeding all remain on foot. In each of those proceedings Anthony contends for relief based upon the proposition that agreements previously entered into upon which he relies and actions previously taken by him and others in part performance of those agreements were valid and binding upon all concerned. That is the opposite of the position for which he now wishes to contend in the Judicial Advice Proceeding. Yet, Anthony resists the proposition he should be required to elect between prosecuting his Judicial Advice Proceeding and abandoning his existing cases. Anthony's position is that the Judicial Advice Proceeding should be heard and the advice provided, with the existing three proceedings in which he puts a totally contrary position remaining on foot. To permit the Distribution Proceeding, the Separation Proceeding and the Oppression Proceeding to remain and to be held in abeyance while the Judicial Advice Proceeding is heard and determined would be contrary to the overarching purpose to which I am required to give effect.

163 The sixth reason, as the High Court made clear in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand,[8] it is now too late for Anthony to seek judicial advice. For the Court to embark upon the provision of judicial advice now would undermine the basis on which the three existing cases have been brought forward and maintained for years by Anthony. There is no explanation by Anthony on affidavit for his change of position. I do not accept those parts of Mr Grant's affidavit relied on provide a sufficient or adequate explanation for what is a very substantial change of position. The evidence that 'it was assumed that any distributions could be effected in a similar manner to the distributions to Mathew and Kim' 'gives the game away'. It is because Anthony does not wish to pay taxes and duties on assets agreed to be distributed to him that he has decided to change his position and to undertake the ' u-turn' of which Mathew complains.

164 The reference by Anthony in submissions to the utility of the Judicial Advice Proceeding in aid of the ongoing mediation suggests that Anthony seeks to gain some form of strategic advantage from the Judicial Advice Proceeding. That is not a valid or proper reason for permitting that proceeding to go forward.

165 I do not accept the submission that judicial advice is necessary because the executors and beneficiaries are not ad idem as to the validity of past transactions. The fact they are not ad idem based on Anthony's changed position means there are ready contradictions to his changed position. Those contradictions are existing defendants in the three substantive proceedings initiated by him.

166 The issues in the Distribution Proceeding and the Separation Proceeding are narrow. Those cases can readily be tried. If Anthony wishes to change his position, he can do so by amending his pleadings in the Distribution Proceeding and in the Separation Proceeding. Whether he will be able to continue with the Oppression Proceeding in light of those amendments remains to be seen, but he needs to decide the case he wants to prosecute to trial. It is not for the Court to give him that advice.

167 In the course of the hearing his senior counsel indicated amended pleadings could be provided in the Distribution Proceeding and the Separation Proceeding by 19 February 2025. I have ordered that any amended pleadings by Anthony be provided by 24 February 2025 in those proceedings. This will likely require Anthony to effectively 'elect' whether he wishes to proceed with his existing cases as pleaded in those proceedings or whether he wishes to amend to put a totally contrary case. As discussed during the hearing, in light of the position for which he now wishes to contend, he may wish to seek declaratory relief to the effect that the agreements upon which he currently relies are not binding. If in response to any such claim issues of standing are raised by the defendants, those issues can be resolved as part of the substantive trial. A trial on the substantive merits is important to bring these longstanding conflicts to a resolution.

168 Finally, the seventh reason. There is a discretion to provide judicial advice.[9] In the exercise of that discretion, it is not appropriate to grant judicial advice or to permit the originating motion which seeks such advice and 'ancillary orders' to progress. To enable the Judicial Advice Proceeding to continue in the context of the existing litigation which remains on foot between the parties would be contrary to the overarching purpose and the obligations in the CPA.

169 As I trust will be obvious, my concern is to have a trial of all issues that impact family members and their associated entities in July 2025 and to be in a position at that time to give all parties a fair hearing in relation to all substantive issues of concern. I consider that the option afforded to Anthony of amendment to his pleadings within the framework of the existing proceedings will enable all issues to be heard and determined expeditiously and efficiently. Proceeding in this way means that there is no need to pause proceedings which are already too old while judicial advice is provided.

170 For the reasons previously discussed, I do not consider the case an appropriate one for the provision of judicial advice. Nor do I consider the orders sought in the originating motion described as 'ancillary orders' as orders of that character.

171 The appropriate order is to dismiss the originating motion seeking judicial advice. I have ordered that Anthony pay the costs of all parties opposed to the provision of judicial advice whether that opposition was expressed either before or at the hearing on 29 January 2025.

172 I have recorded in 'Other Matters' that counsel for Mathew and his related entities as well as counsel for the Kim and her related entities have advised the Court that should the injunction granted on 8 September 2022 be discharged, their clients will not terminate the contractual arrangements between Hoare Bros and Geelong Quarries prior to determination of this proceeding.

1. By no later than 12 February 2025 the parties will provide all documents as may be required by Moore Australia, in their respective possession, custody or control as soon as is reasonably possible and where such documents must be created or finalised and the respective parties are able to create or finalise such documents they must do so and provide them as soon as is reasonably possible.

2. The injunction made by the Honourable Justice Button on 8 September 2022 and extended on 12 December 2022, be discharged.

3. The question of what damages if any should be paid by any and which persons under the undertaking as to damages given in part D of the Other Matters recited in the orders of the Honourable Justice Button made on 8 September 2022 is adjourned for directions on a date to be fixed not before 16 July 2025.

4. From 10 February 2025 until the hearing and determination of this proceeding:

(a) Anthony and Hoare Bros shall make and keep a full record of all extraction, production, removal from the site and sale of all quarry products at the property known as Liberton which are to be shared with Mathew;

(b) Mathew and his advisers are to be given unfettered and unhindered access to the land known as 'Liberton'.

(c) Anthony shall ensure that Mathew is given a copy of the following documents by 14 February 2025 and at the end of every month thereafter, all documents relating to production and removal of quarry products at 'Liberton' since 1 July 2020 and into the future including:

i. extraction records;

ii. crushing and production records; and

iii. sales records relating to the sale of product by the parties, including delivery dockets and weighbridge records and correspondence with customers,

irrespective of whether those documents currently exist or are otherwise in the possession or control of Mathew personally, Hoare Bros Pty Ltd or any other person; and

(d) Mathew is not to be hindered or obstructed in any way from installing and maintaining surveillance equipment at Liberton at the points of entry/exit and on the weighbridge and the first plaintiff and Hoare Bros shall take all reasonable steps to ensure such equipment is safeguarded, preserved, and able to operate.

5. By 4:00pm on 24 February 2025, Anthony and ET are to file and serve points of claim in the Oppression Proceeding together with any amended pleadings by Anthony in the Separation Proceeding and the Distribution Proceeding.

6. By 4:00pm on 3 March 2025, the defendants are to file and serve points of defence in the Oppression Proceeding and defences to any amended statements of claim in the Separation Proceeding and in the Distribution Proceeding.

7. By 4:00pm on 8 March 2025, Anthony and ET are to file and serve any reply to the points of defence in the Oppression Proceeding and to any amended defences in the Separation Proceeding and the Distribution Proceeding.

8. The Oppression Proceeding, Separation Proceeding and Distribution Proceeding are set down for trial on 15 July 2025 on an estimated duration of 15 days.

9. Subject to an order of the trial judge, the evidence in each of the Oppression Proceeding, Separation Proceeding and Distribution Proceeding, is to be evidence in each of the other proceedings.

10. The plaintiffs, being Anthony and ET, are to pay to the costs of the Mathew's application dated 16 October 2024 to discharge the injunction and the costs of all other parties to that application limited to those parties who made submissions either in writing or at the hearing on 29 January 2025 in support of that application.

11. Costs are otherwise reserved.

12. To the extent applicable these Orders are also to stand as Orders in proceedings S ECI 2021 03342, S ECI 2020 02806 and S ECI 2024 07059, save that in S ECI 2020 02806 paragraph 6 of this Order is limited to only the first to second defendants being required to file a defence to any amended statement of claim by no later than 4:00pm on 26 February 2025.

13. The proceeding be listed for further directions on 7 March 2025.

174 As mentioned above, I have also ordered Anthony's application for judicial advice be dismissed and that he pay the costs of all parties in the Oppression Proceeding, Distribution Proceeding and Separation Proceeding, opposed to the provision of judicial advice, whether that opposition was expressed either before or at the hearing on 29 January 2025.

AMBERLOWE PTY LTD (ACN 007 056 742) (AS TRUSTEE FOR THE HOARE FAMILY SETTLEMENT TRUST)

GALAXIE INVESTMENTS PTY LTD (ACN 005 258 766)(AS TRUSTEE FOR THE PETER HOARE FAMILY TRUST)

AMBERLOWE PTY LTD (ACN 007 056 742) ATF THE HOARE FAMILY SETTLEMENT TRUST

AMH PROPERTIES PTY LTD (ACN 155 604 818) IN ITS OWN RIGHT AND AS TRUSTEE FOR THE AMH PROPERTY TRUST

DEAKIN ADMINISTRATION PTY LTD (ACN 065 314 623) IN ITS OWN RIGHT AND AS TRUSTEE FOR THE FEATHEROCK TRUST

GALAXIE INVESTMENTS PTY LTD (ACN 005 258 766) ATF THE PETER HOARE FAMILY TRUST

[1] Re Geelong Quarries Pty Ltd [2022] VSC 528 [9].

[2] Hoare v Hoare [2023] VSCA 73 (Beach, T Forrest and Sifris JJA).

[3] Re Geelong Quarries Pty Ltd (Subpoena Ruling) (28 April 2024, unreported).

[4] Hoare v Giasoumi, in the matter of the Bankrupt Estate of Roache [2023] FCA 949, order 1.

[5] Hoare v Giasoumi, in the matter of the Bankrupt Estate of Roache [2023] FCA 949 [15].

[6] Re Geelong Quarries Pty Ltd (Subpoena ruling) (29 April 2024, unreported).

[7] Re Geelong Quarries Pty Ltd [2022] VSC 528 [39].

[8] Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; 237 CLR 66 ('Macedonian Orthodox Church') 278 [106].

[9] Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; 237 CLR 66 268 [61].