Plaintiff v Defendants

(a) identity, background and ultimate ownership of any proposed buyer of his shares in the first defendant, including the proposed beneficial owner(s) where the proposed buyer is a nominee or a trustee of a trust; and/or

(b) the price or other terms for the proposed sale of those shares.

1. The plaintiff has filed and relies upon the affidavit of Basil Tambanis affirmed 7 November 2025.
2. The defendants have filed and rely upon the affidavit of Antony Rapisarda affirmed 9 January 2026.
3. The parties both referred to a paginated bundle of materials (Bundle) which included the following documents:

(a) OrthoDx Holdings Ltd Shareholders Deed dated 22 June 2023 (Shareholders Deed);

(b) OrthoDx Holdings Resolution dated 2 March 2024 (Special Resolution); and

(c) an email from Mr Tambanis to Mr Rapisarda and others (Email) dated 7 November 2024 attaching a 'shareholders transfer form' (Share Transfer).

1. OrthoDx is a start-up company founded by Mr Rapisarda, 'to commercialise its genomic test to differentiate between joint pain caused by inflammation or infection'.
2. Mr Tambanis is a shareholder, former director and former Chief Operating Officer of OrthoDx.
3. On 22 June 2023, OrthoDx entered into the Shareholders Deed. The application before me proceeded on the basis that Mr Tambanis has rights and obligations under the Shareholders Deed.
4. It is not in dispute that:[1]

[Mr Tambanis] was a participant in OrthoDx's equity incentive plan which provided participants with a loan to acquire unvested A class shares in OrthoDx at an issue price of $0.50 per share (Loan Plan). Under the Loan Plan, a portion of the unvested A Class shares vest after each year of service (or on a proportionate basis based on the number of days of service if the plan participant ceases to be employed before the end of a vesting year). I acquired 5,004,000 unvested A class shares, 3,260,273 of which have vested and converted into ordinary shares in accordance with OrthoDx's constitution (ie I hold approximately 3.2% of the total ordinary shares issued in OrthoDx).

[M]r Rapisarda holds approximately 75% of the ordinary shares in OrthoDx through the second defendant. OrthoDx's remaining shareholders hold only minor shareholdings.

1. On 2 March 2024, the then directors of OrthoDx, being Mr Tambanis, Mr Rapisarda and Mr Ribot de Bressac, passed the Special Resolution which relevantly states:[2]

Disposal of securities

3.1 It is noted that

(1) the directors of the Company have been considering and exploring appropriate options to incentivise shareholders who have made key contributions to the Company to continue to make key contributions to the Company;

(2) as a result of these considerations, the Company considered it appropriate to give these shareholders liquidity around some of the shares they hold in the capital of the Company and allow them to Dispose (as defined in Shareholders Deed) of some of their shares without the need to comply with clause 7 of the Shareholders' Deed;

(3) Antony Rapisarda, Basil Tambanis and Michael Joseph Ribot de Bressac (together, the Plan Participants) currently hold A class shares in the capital of the Company (A Class Shares) issued under the Company's loan funded share plan, adopted on 27 June 2023 (Loan Plan);

(4) Rennes Holdings Pty Ltd (ACN 003 658 071) as trustee for the Cantilla Trust (Rennes Holdings) currently holds ordinary shares in the capital of the Company (Ordinary Shares);

(5) the directors of the Company consider Rennes Holdings (through Antony Rapisarda) and the Plan Participants to be key contributors to the Company and, as such, propose that:

(a) the Plan Participant be allowed to Dispose (as defined in Shareholders Deed) of any Vested A Class Shares (as defined in Loan Plan) that they hold in the capital of the Company; and

(b) Rennes Holdings be allowed to Dispose (as defined in Shareholders Deed) of its Ordinary Shares in the Company,

without the need to comply with clause 7 of the Shareholders' Deed;

(6) clause 6.3 of the Shareholders Deed states that a shareholder may Dispose (as defined in Shareholders Deed) of a security if approved by Special Resolution (as defined in Shareholders Deed) of the board without the need to comply with clause 7 of the Shareholders' Deed;

(7) rule 6.2(1)(b) of the Loan Plan states that participants of the Loan Plan must not dispose of any A Class Share unless the disposal has the written consent of the Company; and

(8) as of the date of this document:

(a) Michael Ribot de Bressac currently holds 833,333 vested A Class Shares and

(b) Basil Tambanis currently holds 2,500,000 vested A Class Shares.

3.2 IT IS RESOLVED, as a Special Resolution (as defined in Shareholders Deed) of the board, that:

(1) in order to incentivise Rennes Holdings and the Plan Participants to continue to make key contributions to the Company, it is in the best interest of the Company to allow:

(a) the Plan Participants to Dispose (as defined in Shareholders Deed) of any Vested A Class Share (as defined in Loan Plan) that they hold in the capital of the Company; and

(b) Rennes Holdings to Dispose (as defined in Shareholders Deed) of its Ordinary Shares in the Company,

without the need to comply with clause 7 of the Shareholders Deed;

(2) any Disposal (as defined in Shareholders Deed) by any Plan Participant of any of their Vested A Class Shares (as defined in Loan Plan) be approved and consented to by the Company in accordance with clause 6.3 of the Shareholders Deed and rule 6.2(1)(c) of the Loan Plan;

(3) any Disposal (as defined in Shareholders Deed) by Rennes Holdings of any of its Ordinary Shares be approved by the Company in accordance with clause 6.3 of the Shareholders Deed;

(4) the Company will accept repayment of the loan attached to any A Class Shares by a Plan Participant in part or in full at any time on or prior to their disposal by the Plan Participant;

(5) the Company deliver to each of the Plan Participants a notice consenting to the disposal of their Vested A Class Shares pursuant to these Resolutions, along with instructions on how to repay the loan attached to their Vested A Class Shares; and

(6) the Company do all such things as are necessary to register and give effect to a Disposal by Rennes Holdings or any Plan Participant referred to above, including entering such transfer in the register of members of the Company without need for any further resolution of the Board provided such Disposal otherwise complies with the Shareholders Deed.

1. It is common ground that the relationship between Mr Tambanis and Mr Rapisarda deteriorated. The cause of the deterioration is disputed.
2. On 4 November 2024, Mr Tambanis agreed to transfer 250,000 of his ordinary shares to Amegus Pty Ltd as trustee for the Turner Discretionary Trust. Mr Tambanis and Mr Turner (on behalf of Amegus Pty Ltd) both signed the Share Transfer.
3. On 7 November 2024, Mr Tambanis sent the Email to Mr Rapisarda, Mr Ribot and David Buckmaster (a director of OrthoDx) (Mr Buckmaster) notifying them that he wanted to sell 250,000 of his ordinary shares to a 'reputable purchaser'. The Share Transfer was attached to the Email. Mr Tambanis requested confirmation of the bank account details for repayment of the loan attached to the shares and confirmation that OrthoDx would register the Share Transfer.
4. Mr Tambanis contends that despite extensive correspondence since November 2024, OrthoDx continues to refuse to facilitate the sale of his shares or confirm bank account details.
5. On 7 November 2025, the plaintiff commenced these proceedings by way of originating process seeking orders under ss 232 and 233 of the Corporations Act 2001 (Cth) (Act) in respect of the conduct of OrthoDx as being contrary to the interests of its members or, alternatively, oppressive to or unfairly discriminatory against him.
6. Mr Tambanis alleges that:

(a) as his relationship with Mr Rapisarda deteriorated, he was left out of 'key discussions and information was withheld from [him]';

(b) by the Email, he notified Mr Rapisarda and other directors that he wanted to sell 250,000 ordinary shares to a purchaser. He contends that the refusal to facilitate the transfer and sale of his shares amounts to obstructive and/or oppressive conduct made against him by OrthoDx;

(c) OrthoDx have engaged in other acts of oppression against him, including:

(i) by not providing him with his share certificate;

(ii) by being made redundant in circumstances that were not 'genuine'; and

(iii) by not being given the opportunity to participate in equity capital raising during Series B funding rounds on 22 July 2024.

(a) Mr Tambanis was included in all discussions pertaining to his role;

(b) the accounts provided by Mr Tambanis in relation to his share transfer are 'inaccurate'. He contends that the notice provided by Mr Tambanis for the disposal of shares was insufficient and invalid as Mr Tambanis had ceased to be a director or officer of OrthoDx as at 7 November 2024. He disputes the claim that OrthoDx refused the facilitation of Mr Tambanis' shares;

(c) on 9 January 2026, Mr Tambanis was provided with his share certificate; and

(d) Mr Tambanis was not entitled to participate in the Series B funding rounds as this was offered to ordinary shareholders. Mr Tambanis was an A Class shareholder and therefore excluded.

1. On 11 December 2025, Caporale JR made orders including that there be a Judicial Mediation by 31 March 2026 and a further directions hearing on 23 April 2026.
2. On 3 March 2026, I heard the defendants' Summons.

1. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd,[3] French CJ, Kiefel, Bell, Gageler and Keane JJ explained what was required by courts in order to give effect to s 58 of the Civil Procedure Act 2005 (NSW) (NSW CPA), which is expressed in similar terms as s 7 of the CPA:

That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the [NSW CPA] can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the [NSW CPA] assume that its purpose, to a large extent, will coincide with the dictates of justice.

1. Practice Note SC CC 8 (PN) describes the procedure to be followed for oppressive conduct applications made pursuant to s 233 of the Act.
2. Item 4.3 of the PN provides:[4]

The [Oppression Proceeding Program (OPP)] is designed to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute in applications under s 233 of the Act. In particular, the OPP promotes the parties exploring resolution of the dispute through mediation at a very early stage of the proceeding before significant costs have been incurred.

The Court expects that prior to the Initial Conference the parties will give consideration to at least the following procedural steps required to facilitate listing the matter for mediation: the filing of any further affidavits; identifying the manner in which books and records of the company are kept and how access will be facilitated; identifying a valuer and the matters required for valuation; and what, if any, other documents are required for mediation.

The Court is of the view that generally in OPP matters, an order pursuant to s 247A of the Act is an efficient way for all parties to have access to documents necessary for the purpose of preparation of a valuation and mediating the dispute. When appropriate, orders may also be made for the exchange of 'critical documents' under s 26 of the [CPA].

1. The Court encourages the parties 'to adopt a pragmatic and collaborative approach to identifying any necessary preliminary steps'.

1. Part 4.3 of the CPA deals with disclosure and discovery.
2. The general principles applicable to discovery are:[6]

(a) the documents required to be produced directly relate to a question or fact in issue;

(b) the power to order discovery is discretionary; and

(c) the discretion is to be exercised having regard to the just, timely and cost effective conduct of the proceedings.

1. Section 55(1) of the CPA provides that a court may make orders or give directions in relation to discovery that it considers appropriate. Section 55(2) sets out orders that may be made under s 55(1).
2. In Regent Holdings Pty Ltd v Victoria (Regent Holdings),[7] the Court of Appeal held that it was not improper for a judge to make orders for particulars and discovery calculated to facilitate a mediation, having regard to the self-evident desirability of settlement and the provisions of the CPA. In rejecting a submission that orders for discovery and particulars risked undermining the consensual process which mediation entails, the Court said:[8]

Of course, mediation should be conducted without prejudice. But that does not mean that it should be conducted in ignorance. Court ordered mediation is not a game of bluff and bluster in which one party is free to mislead another to conclude that a claim is worth more than it is. It is designed to be an exercise in rational bargaining between relatively well-informed parties aimed at providing just compensation for worthy claims. The more accurate and complete the available information as to quantum, the more likely that rational settlements will be achieved. Where a party seeks the court's assistance to obtain further information which ex facie will facilitate a court directed mediation process, cogent submissions are required to demonstrate that the provision of that assistance will undermine the process.

1. In Agnello v Heritage Care Pty Ltd; Fotiadis v St Basil's Homes for Aged in Victoria (No 2),[9] Keogh J held it was doubtful the Court had power to order discovery of documents that are not relevant to any fact in issue in the proceedings. His Honour held the powers conferred by s 55 of the CPA were not 'at large' but were limited by the requirement that discovery relate to the real issues in dispute between the parties. Applying these principles, his Honour dismissed an application for discovery of insurance policies and financial records concerning the capacity of defendants to satisfy a judgment in the proceedings.

1. Section 26 of the CPA provides:

(1) Subject to subsection (3), a person to whom the overarching obligations apply must disclose to each party the existence of all documents that are, or have been, in that person's possession, custody or control -

(a) of which the person is aware; and

(b) which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.

(2) Disclosure under subsection (1) must occur at -

(a) the earliest reasonable time after the person becomes aware of the existence of the document; or

(b) such other time as a court may direct.

...

(4) The overarching obligation imposed by this section -

(a) is an ongoing obligation for the duration of the civil proceeding; and

(b) does not limit or affect a party's obligations in relation to discovery.

1. In Mullett v Nixon (Mullet),[10] the Court of Appeal stated:

[Section 26(1)] is to be interpreted in the context of the whole of the [CPA] and in accordance with its purposes. The overarching purpose is to 'facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute'. The overarching obligations under that Act are directed to fulfilling that purpose, focussing not only on determination of civil disputes at trial but also on earlier resolution through appropriate dispute resolution. For example, s 22 mandates the use of reasonable endeavours to resolve a dispute by agreement between the parties in dispute.

Against that legislative backdrop, appropriate content has to be given to the words 'critical to the resolution of the dispute' in s 26(1). That language is in contrast to the language in r 29.01.1(3). The Rule uses different concepts as well as different language - concepts of reliance and whether the document affects or supports a party's case. The Rule is broader in scope. Not every document which might support or adversely affect a party's case to a slight degree on any issue, no matter the significance or otherwise of the issue, will necessarily be 'critical to the resolution of the dispute'. To this extent, in our view the critical documents which are required to be disclosed under s 26 of the [CPA] are likely to be a subset of those required to be discovered by a party under r 29.01.1(3) of the [Supreme Court (General Civil Procedure) Rules 2015 (Vic)] (those discoverable documents being documents that are relied upon or which affect or support a party's case). The 'critical' documents are those which are crucial to each party's case and which, on this basis, if produced to the opposite party, are the most likely to lead to resolution of the dispute either by early settlement or at trial.

A Shareholder may Dispose of a Security if approved by Special Resolution of the Board without the need to comply with clause 7 (Rights of refusal).

7.1 Exceptions

Clauses 7.2 to 7.8 do not apply to a Disposal of a Security in accordance with:

(1) clause 6.3 (Disposal with Board Approval);

(2) clause 8 (Tag along rights);

(3) clause 9 (Drag along rights);

(4) clause 11 (Events of Default);

(5) clause 12 (Exit);

(6) the terms of any Equity Incentive Scheme; or

(7) pursuant to any other provision of this Deed which expressly permits the Disposal of Securities by that Shareholder without compliance with clauses 7.2 to 7.8.

7.2 Notice of Sale

(1) A Shareholder who wants to Dispose of Securities (Seller) to any person (whether or not a Third Party) must first serve a notice (Notice of Sale) on the Company and the other Shareholders specifying:

(a) the number and class of Securities of which it wishes to Dispose (Sale Securities) and the percentage that those Sale Securities represent as a proportion of all Securities of the same class then on issue;

(b) the sale price per Sale Security in Australian dollars (Transfer Price);

(c) all terms of the proposed Disposal; and

(d) the identity, background and ultimate ownership of any proposed buyer of the Sale Securities[11] (including the proposed beneficial owner(s) where the proposed buyer is a nominee or a trustee of a trust),

and, if applicable, attaching a copy of any offer to purchase the Sale Securities received by it from the proposed buyer.

(2) A Notice of Sale appoints the Company as the agent and attorney of the Seller under clause 15 for the sale of the Sale Securities at the Transfer Price and on the terms set out in the Notice of Sale.

7.3 Right of first refusal

Within five Business Days of receipt of the Notice of Sale, the Company must give a "Right of First Refusal Offer", being an offer of the Sale Securities, to each Shareholder (other than the Seller) by written notice (ROFR Offer) that attaches a copy of the Notice of Sale and includes a statement that the Shareholder may, by written notice received by the Company on or before the date that is 15 Business Days after the date of the ROFR Offer (ROFR Closing Date), agree to buy some or all of the number of Sale Securities stated in the Notice of Sale on terms matching those set out in that Notice of Sale.

7.4 Shareholder's option to buy Sale Securities

Following receipt of a ROFR Offer, a Shareholder may serve on the Company (on behalf of the Seller) a notice that it wishes to acquire a specified number of Sale Securities (Purchase Offer). The notice must be given on or before 5.00pm (Sydney time) on the ROFR Closing Date to be effective.

7.5 Notice

(1) Within 5 Business Days of the ROFR Closing Date, the Company must give notice of the total number of Sale Securities for which Purchase Offers have been received to the Seller.

(2) If the Seller receives Purchase Offers in accordance with clause 7.4 to acquire less than the total number of Sale Securities required to be sold and referred to in the Notice of Sale, then the Seller may within 5 Business Days of being given notice from the Company under clause 7.5(1), give notice to the Company that the Seller elects not to sell the Sale Securities under clauses 7.2 to 7.7, in which case the Seller may proceed to sell the Sale Securities in accordance with clause 7.8.

(3) If the Seller does not give notice under clause 7.5(2) within the time required, then the Sale Securities must be allocated and sold in accordance with clause 7.6 and 7.7.

(1) Notwithstanding any other clause of this Deed, the Board may only register a person as a Shareholder if that person:

(a) if not already a party to this Deed:

(i) is acceptable to and approved by the Board (in its absolute discretion); and

(ii) has entered into an Accession Deed Poll in accordance with clause 10.2; or

(b) is already a Shareholder.

(2) Clause 10.1(1) applies to any Disposal of Securities and to any issue of Securities under this Deed.

1. The context of the defendants' application is explained in the following extract of the letter from Gilbert & Tobin to Hall & Wilcox dated 6 February 2026:

(6) As our clients understand it, your client proposes to sell 250,000 of his shares to a company, Amegus Pty Ltd atf the Turner Discretionary Trust. Other than its name, our clients know very little about that proposed buyer, or its directors and shareholders. Our clients also do not know the price per share that your client has negotiated with the proposed buyer, nor any other terms of the proposed disposal of his shares. Those details are relevant to the relief sought at [3(b)(i)] and [3(c)], and to the valuation of your client's shareholding more generally.

(7) Our clients have repeatedly requested that your client provide further information about the proposed buyer of his shares and the terms of the proposed sale to that purchaser, for the purpose of the processes set out in the Shareholder's Deed [sic] at cl 7 (Rights of refusal) and cl 10 (Incoming shareholders). Clause 7.2 requires disposing shareholders to give notice of the "identity, background and ultimate ownership of any proposed buyer of the Sale Securities (including the proposed beneficial owner(s) where the proposed buyer is a nominee or a trustee of a trust)", as well as "the sale price per Sale Security in Australian dollars (Transfer Price)" and "all terms of the proposed Disposal". In practical terms, information of that nature must also be provided to the Board, for the purpose of the Board's approval, pursuant to cl 10.1.

(8) In the context of this proceeding, our clients have requested the production of all documents containing that information, as critical documents for the purpose of s 26 of the CPA.

(9) Your client has refused to disclose that information. On your client's case, the procedures set out in cl 7 and 10.1(1)(a)(i) of the Shareholder's Deed [sic] do not apply to his disposal of shares. Accordingly, your client says he is not obliged to provide information concerning the identity, background and ultimate ownership of the proposed buyer, the Transfer Price or the terms of the proposed sale to that buyer, and they are not relevant to resolving the dispute.

(a) information concerning the 'identity, background and ultimate ownership' of the proposed buyer of shares is relevant to the relief sought and to the valuation of the plaintiff's shareholding;

(b) the plaintiff has withheld 'critical' information concerning the proposed buyer of shares despite repeated requests for the purposes of board approval pursuant to cl 10.1 of the Shareholders Agreement. Without such information, the board cannot determine whether the incoming shareholder is 'acceptable';

(c) the plaintiff is only entitled to dispose of his shares upon following procedures contained within cl 7 of the Shareholders Agreement and obtaining board approval and the Special Resolution did not waive this requirement; and

(d) there is limited utility in granting the relief as sought by the plaintiff.

(a) the defendants' application for disclosure is inconsistent with the PN and premature;

(b) the documents 'required' by the defendants are not 'critical' or 'relevant' to the issues in dispute by force of the Special Resolution. Namely, cl 10.1 of the Shareholders Agreement is contrary to the Special Resolution as:

(i) OrthoDx (by the Special Resolution) has bound itself to give effect to and register any transfer made by him pursuant to cl 3.2(6) of the Special Resolution; and

(ii) the Special Resolution is not expressed to be subject to the defendants 'knowing' the 'identity, background and ultimate ownership of the proposed buyer';

(c) the central allegation of oppression concerns the defendants' 'persistent refusal' to abide by the Special Resolution. This allegation, if established, would enliven the Court's discretion as to remedy, which gives utility to the relief sought;

(d) the documents sought are not logically probative of the value of the shares in OrthoDx; and

(e) by force of the Special Resolution, Mr Tambanis is not subject to following the procedures set out in cl 7 of the Shareholders Agreement. Clause 10.1(1)(a) also does not apply for similar reasons.

1. The defendants seek orders under s 26 of the CPA for production by the plaintiff of 'all documents disclosing' the identity, background and ultimate ownership of any proposed buyer of his shares, including the proposed beneficial owner(s) where the proposed buyer is a nominee or a trustee of a trust, the Transfer Price, and/or the terms of the proposed disposal.
2. Adopting the language of the Court of Appeal in Mullett, a central question in the resolution of the application before me is whether the documents sought to be disclosed are crucial to either party's case and, if produced to the opposite party, are most likely to lead to resolution of the dispute either by early settlement or at trial.
3. Having regard to the correspondence between the solicitors for the parties, it is apparent that the plaintiff has not sought to disclose documents meeting the description of those sought to be disclosed. The plaintiff does not say that he is not in possession of documents falling within that description. He contends the documents sought are irrelevant to the issues in the proceeding and neither discoverable nor critical to the resolution of the dispute.
4. The defendants contend that the documents sought are critical to:

(a) the resolution of the question of whether there has been oppressive conduct within the meaning of s 232 of the Act;

(b) the discretion to grant relief under s 233 of the Act on the establishment of oppression; and

(c) a negotiated resolution at the Judicial Mediation scheduled for 30 March 2026.

1. The starting point is to identify the issues in the proceeding.
2. Mr Tambanis' originating process is made under ss 232 and 233 of the Act.
3. Section 232 of the Act provides for the grounds upon which the Court may make an order under s 233 of the Act.
4. Section 233 of the Act provides for the orders that the Court can make, namely any orders it considers appropriate in relation to a company.
5. The acts of oppression alleged by Mr Tambanis are the conduct of Mr Rapisarda and Mr Ribot de Bressac by:

(a) failing to register and facilitate the Share Transfer to the transferee nominated by the plaintiff, including by making all necessary changes to the Company share register to reflect the transfer;

(b) refusing to provide the plaintiff with his share certificate despite 'numerous written requests since November 2024';

(c) being made redundant due to financial constraints in circumstances where, during the plaintiff's notice period, Mr Rapisarda appointed 'his close friend (Mr Buckmaster) as director' who undertook activities which '[Mr Tambanis] had previously been responsible for'. It is alleged that the plaintiff's redundancy was not genuine and caused him to lose an opportunity for the balance of 1,743,727 unvested A class shares to be vested and converted into ordinary shares;

(d) not being notified of, or given, the opportunity to participate in the Series B funding round on 22 July 2024; and

(e) permitting OrthoDx's funds (that would have otherwise been used for business operations) to be used to acquire shares in Mr Rapisarda's personal name in 2021 and 2022, without board resolution or shareholder approval.

(a) a declaration that the third defendant and fourth defendant have conducted the affairs of the Company in a manner contrary to the interests of the Company's members as a whole and unfairly prejudicial to and unfairly discriminatory against the plaintiff;

(b) an order pursuant to s 233(1)(j) requiring the Company, the third defendant and the fourth defendant to take all steps as are necessary to:

(i) register and facilitate the transfer of 250,000 ordinary shares held by the plaintiff in the Company to the transferee nominated by the plaintiff, including by making all necessary changes to the Company's share register to reflect the transfer; and

(ii) convert the plaintiff's 1,743,727 unvested A class shares in the Company to ordinary shares.

(c) alternatively to 3(b) above, an order pursuant to s 233(1)(d) that the second defendant purchase 250,000 ordinary shares held by the plaintiff for $705,000;

(d) alternatively to 3(b) and 3(c) above, an order pursuant to s 233(1)(a) that the Company be wound up.

1. The first ground for disclosure is that the documents sought are (or ought reasonably to be considered) critical to the resolution of the dispute having regard to the issue of whether there has been oppressive conduct within the meaning of s 232 of the Act.
2. There is a dispute between the parties as to the proper interpretation and operation of cll 6.3 and 10.1 of the Shareholders Deed. The nub of the dispute concerns the question of whether the plaintiff is entitled to registration of the Share Transfer 'as of right' by reason of the Special Resolution (and cl 6.3), or whether the board retains a role in approving the transfer of shares pursuant to cl 10.1 of the Shareholder Deed.
3. It is important to note that the plaintiff did not submit that the defendants' construction of cl 10.1 of the Shareholder Deed was unarguable - such that the disclosure sought was irrelevant (or not critical) on that basis alone.
4. I accept the plaintiff's contention that the production sought would not affect the determination of how the Special Resolution operates and, consequently, whether the third and fourth defendants' refusal or failure to abide by the Special Resolution was oppressive in the relevant sense.
5. Nevertheless, the defendants contend the Special Resolution does not remove the board's discretion under cl 10.1 to ensure that the transferee 'is acceptable to and approved by the Board (in its absolute discretion)'. The plaintiff's claim for an order that the Company 'register and facilitate the transfer' is not limited by the terms of the originating process to the scenario where cl 6.3 operates in the manner contended by it. The originating process leaves open the claim that the plaintiff has been oppressed by the board's refusal to register the transfer, even where the board's approval was required under cl 10.1.
6. Despite this, the board's conduct would be judged by reference to the facts known to it - which include the limited information having been provided concerning the identity of the buyer. The third and fourth defendants would not be judged by reference to information and documents that the plaintiff has not disclosed. It follows that the disclosure sought is not relevant to the question of establishing oppressive conduct for the purposes of s 232 of the Act, and it is not a matter that the plaintiff ought reasonably to consider to be critical to the resolution of the dispute on that ground alone.

Discretion to grant relief under ss 232 and 233

1. The next ground for disclosure is that the documents sought are (or ought reasonably to be considered) critical to the resolution of the dispute, having regard to the discretion to grant relief under s 233 of the Act.
2. In WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd,[12] Jackman J explained the principles and considerations that inform the Court's discretion under s 233 of the Act:

In exercising the discretion under s 233, the purpose of relief is to end the effects of oppression; the remedy chosen will depend on the conclusions drawn as to what the oppressive conduct was, and the Court will choose the remedy which is least intrusive: Zong v Lin [2022] NSWCA 136 at [79] (Gleeson JA, with whom Leeming and Kirk JJA agreed); Millsave Holdings Pty Ltd v Connective Group Pty Ltd [2023] VSCA 326; (2023) 75 VR 239 at [1024] (McLeish and Macaulay JJA) (Millsave Holdings). The fundamental principle has been said to be that the remedy under s 233 must be calculated to alleviate the consequences of the oppressive conduct and no more; that is, to place the oppressed party in a position equivalent to that in which it would have been but for the oppression, but not to improve its position over and above that which would have prevailed but for the oppression: Re North Coast Transit Pty Ltd [2013] NSWSC 1119 at [24] (Brereton J).

1. The plaintiff submitted the facts and matters relevant to the discretion to grant relief were confined to those that established the oppression itself and not extraneous matters. He contended that as the documents sought were irrelevant to the establishment of oppression, it followed that they were irrelevant to the exercise of the discretion.
2. While the facts and matters that establish oppression are likely to be centrally relevant in the exercise of the Court's discretion to grant relief under s 233 of the Act, I do not accept the contention that the Court's exercise of discretion is limited to those matters. A remedy that is calculated to alleviate oppressive conduct might require consideration of matters external to the oppressive conduct itself.
3. In a scenario where the Court determines that the board retains a discretion under cl 10.1 to ensure that the transferee 'is acceptable to and approved by the Board (in its absolute discretion)', it would be relevant, or arguably relevant, for the Court to consider the identity, background and ultimate ownership of any proposed buyer of his shares, because those matters might bear upon the relief to be granted. For example, if the transferee were a person who had a central interest in a direct competitor, that might be relevant to the relief sought of facilitating the registration and transfer of shares. It would be relevant to the question of whether the relief would put the plaintiff in a position equivalent to that in which it would have been but for the oppression.
4. Further, because of the centrality of those questions to the dispute between the parties and to any negotiation between the parties, I consider that a reasonable person in the position of the plaintiff ought to have considered that the disclosure was critical to the resolution of the dispute.
5. The relief sought by the plaintiff is not confined to the registration of the Share Transfer. He seeks, in the alternative, an order pursuant to s 233(1)(d) of the Act that the second defendant purchase 250,000 ordinary shares held by the plaintiff for $705,000. That claim puts in issue in the proceeding the value of the shares the subject of the Share Transfer.
6. I do not accept the plaintiff's submission that the terms of the agreement between the plaintiff and the purchaser, or other details sought by way of disclosure, are irrelevant to the determination of the value of the shares the subject of the Share Transfer.
7. In Sentinel Orange Homemaker Pty Ltd v Bailey (No 2) (Sentinel Orange),[13] Stewart J surveyed the authorities concerning the relevance and admissibility of unaccepted offers to purchase property, including the High Court decision in McDonald v Deputy Federal Commission of Land Tax (NSW),[14] a decision to the effect that an unaccepted offer is not admissible as direct evidence of value. His Honour's summation of those authorities was as follows:

It is difficult to extract a coherent set of principles from the matrix of case law on this question that has sought in various ways to restrict the absolute terms of the statements by Isaacs J in McDonald. However, in this Court, with reference to the Full Court decisions in Cordelia and Expectation, and the other intermediate appellate court decisions in MMAL Rentals and McKay, as well as to compelling logic, I accept that a genuine unaccepted offer to purchase or to sell the subject property can be evidence of a floor or a ceiling, respectively, of market value, but that the weight to be given to that evidence will depend on all the circumstances in which the offer was made.

1. One of the authorities surveyed was the New South Wales Court of Appeal decision in MMAL Rentals Pty Ltd v Bruning (MMAL),[15] which concerned the relevance of an offer by the majority shareholder for the purchase of shares from the minority. In that case, Spiegelman CJ (Mason P and Hodgson JA agreeing) held that in an exchange bargain test of market value, offers to purchase and sell the very property under consideration may be relevant and admissible in fixing a range and in establishing a floor to value.
2. In the present case, the relevance of the Share Transfer is arguably stronger than in Sentinel Orange and MMAL because the offer by the plaintiff for the shares was (apparently) accepted by the proposed transferee. Documents recording the identity, background and ultimate ownership of the buyer of the shares, together with price and terms, have the potential to bear upon the question of what amount a willing buyer and seller would agree to in an arm's length transaction. They may identify any special interest that the buyer had in purchasing the shares. Once again, they are matters that have central significance to the resolution of the present dispute.
3. In the circumstances of the present case, I consider that the matters identified above lead to the conclusion that the documents sought to be disclosed are ones that a reasonable person in the position of the plaintiff ought to have considered were critical to the resolution of the dispute.

1. The next ground for disclosure is that the documents sought are (or ought reasonably to be considered) critical to the resolution of the dispute because they are required 'practically' as a step towards seeking an agreed resolution. Having regard to my conclusions with regard to relevance and criticality of the documents in relation to the discretion to grant relief, it is unnecessary for me to reach a concluded view on the question of criticality on this ground.
2. It is possible that there are cases where documents sought are (or ought reasonably be considered) critical to the resolution of a dispute even without satisfying the test of relevance in a discovery sense. The Full Court decision in Mullett left open that possibility by use of the word 'likely' in the passage highlighted above.
3. Even if the documents sought to be produced were relevant to the issues in dispute (in a discovery sense) but not ones the plaintiff ought to have considered to be critical, I would nonetheless order their discovery under s 55 of the CPA on the basis that discovery of that limited class of documents, in this case ahead of the mediation, is expedient. As was the case in Regent Holdings, in my view such discovery would facilitate a mediation furthering the self-evident desirability of settlement consistently with the CPA.

1. In the premises, I consider the plaintiff ought to have considered that the documents sought to be disclosed were critical to the resolution of the dispute and, therefore, required to be disclosed pursuant to s 26 of the CPA. I will make orders in the terms of order 1 of the Summons.

2. My provisional view is that the plaintiff should pay the defendants' cost of and incidental to the Summons on a standard basis. I will fix a time for a short oral hearing on costs if either party seeks a different order as to costs.

RENNES HOLDINGS PTY LTD (ACN 003 658 071) AS TRUSTEE FOR THE CANTILLA TRUST

[1] Affidavit of Basil Tambanis affirmed 7 November 2025, [7]-[8].

[3] [2013] HCA 46; (2013) 250 CLR 303, [57].

[6] Agnello v Heritage Care Pty Ltd; Fotiadis v St Basil's Homes for Aged in Victoria (No 2) (2023) 72 VR 143, [31].

[7] [2012] VSCA 221; (2012) 36 VR 424, [20].

[8] [2012] VSCA 221; (2012) 36 VR 424, [23].

[9] (2023) 72 VR 143, [55].

[10] [2022] VSCA 174, [85]-[87] (citations omitted, emphasis and further emphasis added).

[12] [2025] FCA 622, [169].

[13] [2022] FCA 1200, [22].

[14] [1915] HCA 54; [1915] 20 CLR 231.

[15] [2004] NSWCA 451; [2004] 63 NSWLR 167.