Sibley Investments Pty Ltd v Oldfields Advance Scaffold Pty Ltd [2026] NSWSC 1021 | Case summary

Sibley Investments Pty Ltd v Oldfields Advance Scaffold Pty Ltd [2026] NSWSC 1021 | Case summary | Zoe

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-08-26

Before

McGrath J

Catchwords

CONTRACT — construction — shareholders agreement — whether a loan default notice has been served in accordance with the shareholders agreement — whether there is a requirement for a further notice of default after a failure to remedy the breach within ten days — HELD — no requirement for a further notice of default — loan default notice was served in accordance with the shareholders agreement CONTRACT — construction — shareholders agreement — where a security default notice was served in respect of shares provided as security to a third party in breach of the shareholders agreement — whether a deed poll purporting to remedy that breach extinguished the right to acquire shares under the shareholder agreement as a consequence of the security default notice — HELD — the right to acquire shares as a consequence of the security default notice arose immediately upon the breach and did not provide a period within which it may be remedied before the default arose CONTRACT — construction — shareholders agreement — where the shareholders agreement provided that it would be automatically terminated upon the commencement of certain proceedings against the company — whether proceedings commenced against the company caused the shareholders agreement to be automatically terminated — HELD — on its proper construction, the proceedings commenced against the company were not proceedings that triggered the automatic termination of the shareholders agreement EQUITY — equitable remedies — specific performance — the right of one shareholder to purchase shares of another shareholder under shareholders agreement to obtain controlling interest — where the shares are not freely or readily available on the open market — whether damages an adequate remedy — HELD — specific performance of right to acquire shares granted

Source

Original judgment source is linked above.

Catchwords

CONTRACT — construction — shareholders agreement — whether a loan default notice has been served in accordance with the shareholders agreement — whether there is a requirement for a further notice of default after a failure to remedy the breach within ten days — HELD — no requirement for a further notice of default — loan default notice was served in accordance with the shareholders agreement CONTRACT — construction — shareholders agreement — where a security default notice was served in respect of shares provided as security to a third party in breach of the shareholders agreement — whether a deed poll purporting to remedy that breach extinguished the right to acquire shares under the shareholder agreement as a consequence of the security default notice — HELD — the right to acquire shares as a consequence of the security default notice arose immediately upon the breach and did not provide a period within which it may be remedied before the default arose CONTRACT — construction — shareholders agreement — where the shareholders agreement provided that it would be automatically terminated upon the commencement of certain proceedings against the company — whether proceedings commenced against the company caused the shareholders agreement to be automatically terminated — HELD — on its proper construction, the proceedings commenced against the company were not proceedings that triggered the automatic termination of the shareholders agreement EQUITY — equitable remedies — specific performance — the right of one shareholder to purchase shares of another shareholder under shareholders agreement to obtain controlling interest — where the shares are not freely or readily available on the open market — whether damages an adequate remedy — HELD — specific performance of right to acquire shares granted

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Sibley Investments Pty Ltd v Oldfields Advance Scaffold Pty Ltd [2026] NSWSC 1021

Hearing dates: 3 – 4 August 2026

Date of orders: 26 August 2026

Decision date: 26 August 2026

Jurisdiction: Equity

Before: McGrath J

Decision: Specific performance of right to acquire shares granted

Catchwords: CONTRACT — construction — shareholders agreement — whether a loan default notice has been served in accordance with the shareholders agreement — whether there is a requirement for a further notice of default after a failure to remedy the breach within ten days — HELD — no requirement for a further notice of default — loan default notice was served in accordance with the shareholders agreement
CONTRACT — construction — shareholders agreement — where a security default notice was served in respect of shares provided as security to a third party in breach of the shareholders agreement — whether a deed poll purporting to remedy that breach extinguished the right to acquire shares under the shareholder agreement as a consequence of the security default notice — HELD — the right to acquire shares as a consequence of the security default notice arose immediately upon the breach and did not provide a period within which it may be remedied before the default arose
CONTRACT — construction — shareholders agreement — where the shareholders agreement provided that it would be automatically terminated upon the commencement of certain proceedings against the company — whether proceedings commenced against the company caused the shareholders agreement to be automatically terminated — HELD — on its proper construction, the proceedings commenced against the company were not proceedings that triggered the automatic termination of the shareholders agreement
EQUITY — equitable remedies — specific performance — the right of one shareholder to purchase shares of another shareholder under shareholders agreement to obtain controlling interest — where the shares are not freely or readily available on the open market — whether damages an adequate remedy — HELD — specific performance of right to acquire shares granted

Legislation Cited: Corporations Act 2001 (Cth), s 588FA

Cases Cited: BTR plc v Westinghouse Brake & Signal Co (Aust) Ltd (1992) 34 FCR 246
Charter Pacific Corporation Ltd v Securicom (NSW) Pty Ltd [2018] NSWSC 1246
Dewhirst v Edwards [1983] 1 NSWLR 34
Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303 Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457; [1933] HCA 25 REW08 Projects Pty Ltd v PNC Lifestyle Investments Pty Ltd (2017) 95 NSWLR 458; [2017] NSWCA 269 Rossi Recycling Pty Ltd v Buckland Valley Pty Ltd (2022) 165 ACSR 332; [2022] VSC 467 Santangelo v Yates Holdings Victoria Pty Ltd [2022] NSWSC 397 Stern v McArthur (1988) 165 CLR 489; [1988] HCA 51 Wong v Van Vlymen [2016] NSWSC 161

Read the judgment on NSW Caselaw

Parties

Applicant/Plaintiff:

Sibley Investments Pty Ltd

Respondent/Defendant:

Oldfields Advance Scaffold Pty Ltd

Legislation Cited (1)

Cited:** Corporations Act 2001(Cth)

Cases Cited (14)

The plaintiff, Sibley Investments Pty Ltd, has brought these proceedings against the defendant, Oldfields Advance Scaffold Pty Ltd, in essence seeking an order for specific performance of the obligation of Oldfields Advance in the Shareholders Agreement dated 28 January 2005 between them for Oldfields Advance to transfer its shares in Adelaide Scaffold Solutions Pty Ltd (ASS) to Sibley Investments for the consideration calculated in accordance with the Shareholders Agreement.
Sibley Investments alleges that Oldfields Advance has breached the Shareholders Agreement by causing ASS to make unauthorised loans to related companies of Oldfields Advance which have not been repaid and by granting security over its shares in ASS so as to engage the right of Sibley Investments to require Oldfields Advance to transfer its interest in ASS to Sibley Investments.
By the time of the hearing before me, Oldfields Advance admitted that the Shareholders Agreement had been breached by it in the manner alleged, that it had failed to remedy its breach in respect of the unauthorised loans and that these loans remain outstanding (T28). Oldfields Advance maintains that Sibley Investments is not entitled to the specific performance of the obligation under the Shareholders Agreement for the transfer of its shares in ASS that Sibley Investments seeks, arguing that damages are an adequate remedy and that the decree of specific performance should be refused as a matter of discretion on the basis that Sibley Investments does not have “clean hands” (T35).
In my view, none of the grounds submitted by Oldfields Advance as a basis on which specific performance should be refused have any substance.
I have determined that Sibley Investments is entitled to specific performance of the obligation of Oldfields Advance to transfer its shares in ASS to Sibley Investments in accordance with the Shareholders Agreement. The remaining issue of the precise form of orders to be made which give effect to the specific performance will require further submissions from the parties.

ASS was incorporated on 5 November 2004. Since that time, ASS has carried on a business hiring and selling scaffolding and providing scaffolding services in South Australia and Western Australia. Currently, ASS has a turnover of about $11 million per year, with around 55 to 60 employees.
The shares in ASS are held by Oldfields Advance (600 shares or 60% of the issued share capital) and Sibley Investments (400 shares or 40% of the issued share capital).
Oldfields Advance is a wholly owned subsidiary of Oldfield Holdings Ltd (OHL). OHL was listed on the Australian Stock Exchange. In February 2026, OHL was placed into liquidation pursuant to the order of the Federal Court of Australia following a winding up application brought by the Australian Taxation Office (ATO). Another subsidiary of OHL, Oldfields Pty Ltd, is also in liquidation pursuant to a winding up application brought by the ATO. As at August 2025, approximately 50% of the issued shares in OHL are held by EQ****M Holdings Pty Ltd.
Luke Sibley is a director of Sibley Investments and at all times since 31 January 2005 he has been a director of ASS. Mr Sibley is also employed by ASS as its general manager, having signed his employment contract on 15 February 2005. Mr Sibley commenced employment with OHL and its related companies (together, Oldfields) in 1990. In about 2004, Mr Sibley was approached by Anthony Mankarios, the then Chief Executive Officer (CEO) of Oldfields, to set up a new joint venture in South Australia, which subsequently became ASS. Originally, Sibley Investments paid $330,000 for a 25% shareholding in ASS and has subsequently paid further sums to Oldfields to acquire further shares in ASS so that its shareholding in ASS now stands at 40%.
At the time that ASS was established, Mr Mankarios was the CEO of Oldfields, which he remained until he left in about 2010.
When Mr Mankarios left Oldfields in 2010, he was replaced as the CEO of Oldfields by Tony Grima, who remained the CEO of Oldfields until late 2016.
In about December 2016, Richard Abela commenced as the CEO and managing director of Oldfields and he was also appointed a director of OLH and ASS on 12 December 2016. Mr Abela ceased being the CEO of Oldfields in about mid-2022, but remained a director of OLH and ASS until 9 September 2022.
In about mid-2022, Michael Micallef became the CEO of Oldfields and was also a director of OLH and ASS from 5 August 2022. He ceased being a director of ASS on 23 January 2024. He ceased being the CEO of Oldfields and a director of OLH on 30 April 2025.
From about 2014 to 2019, Greg Parker was the Chief Financial Officer (CFO) of Oldfields. From 2019 to March 2024, Alan Lee was the CFO of Oldfields. Paul Ryan then replaced Mr Lee as CFO of Oldfields.
Other relevant directors of OLH and ASS were as follows:
David Baird was a director of OLH and ASS from 18 June 2020 until 30 April 2025;
Joseph Screnci was a director of OLH and ASS from 1 December 2023 to 30 April 2025;
Frank Lesko has been a director of OLH since late 2023 and a director of ASS since 30 April 2025; and
James Stavroulakis has been a director of OLH since late 2023 and a director of ASS since 30 April 2025.
Wayne Ding (also known as Mr Ma) is a representative of EQM, the largest shareholder of OLH. Mr Ding has not been appointed a director or employee of OLH or EQM.

As the table reveals, prior to August 2020, there was a modest intercompany loan balance between ASS and Oldfields, with ASS owing money to Oldfields generally arising from Oldfields paying for stock imported by ASS, which ASS would pay all in cash every quarter.
On several occasions prior to mid-2020, Mr Park as the CFO of Oldfields, spoke to Mr Sibley about Oldfields needing cash and proposing that a larger-than-usual dividend be declared and paid by ASS for the purpose of improving Oldfield’s cash position, a proposal with which Mr Sibley typically agreed. On other occasions, Mr Park proposed to Mr Sibley that ASS also make a short-term loan to Oldfields, including the payment of interest on one occasion, which was also agreed between them. Although these loans did not involve a formal resolution of ASS approving them, the agreement between Mr Sibley and Mr Park about the loans and the terms on which they occurred achieved the same practical result. Mr Sibley does not complain about any aspect of them other than to contrast the position up to mid-2020 with what occurred after that time.
In August 2020, as the table set out above indicates, there was a dramatic change in the inter-company loan position between ASS and Oldfields, with the consistent position from August 2020 to April 2025 being that Oldfields owed significant amounts to ASS. As Oldfields had access to the bank account of ASS, funds were more regularly and in higher amounts transferred from the bank account of ASS to Oldfields. In the period from 2020 to 2025, Mr Sibley consistently and repeatedly raised his objections to the practice by Oldfields with Mr Abela, Mr Lee, Mr Baird and Mr Micallef in numerous emails, including ones in which he asserted they were acting in breach of the Shareholders Agreement. The complaints made by Mr Sibley included discussions in early 2022 with Mr Ding as the Australian-based representative of the largest shareholder of OLH, EQM, but those communications were to no avail.
The inter-company loan balance showed that in August 2020, Oldfields owed $59,238 to ASS, by February 2021 it had grown to $661,830, by the end of 2021 it was at $1,295,124, by May 2024 it had climbed to $1,805,933 and it peaked in February 2025 at $1,957,804.20.
In summary, Mr Sibley’s uncontested evidence is that in respect of advances from ASS to Oldfields in the period after mid-2020, the consent of Sibley Investments was not sought for the advance of funds from ASS’s bank account prior to the advance being made, Sibley Investments did not consent to the advances, there were no resolutions of the shareholders of ASS in relation to the advances, there was no agreement of Sibley Investments to the commercial terms for a short-term loan and Oldfields did not undertake a quarterly reconciliation of loan balances or make cash payments to clear the balance owing. It is abundantly clear that Sibley Investments did not consent to or acquiesce in any practice of Oldfields causing ASS to advance large sums of money to Oldfields. I am satisfied that the advances made from August 2020 onwards were done without the approval of Sibley Investments.
Just after the time of the peak amount of the inter-company loan balance in February 2025, Mr Micallef raised with Mr Sibley the urgent need of Oldfields for cash, a proposal for Mr Sibley to acquire an interest in OLH and an additional interest in ASS, the risk of insolvency for Oldfields if it did not raise short-term funding of $1.5 million and a proposed capital raise of $5 million. At about the same time, Oldfields had not paid as superannuation to employees for the previous quarter, was six weeks away from having to pay the next superannuation contribution and ASS had a tax instalment liability of about $370,000, which it was required to pay in January 2025.
On 28 March 2025, Sibley Investments served the Loan Default Notice at the registered office of Oldfields Advance in the following form:

The matters recited in the Loan Default Notice constitute a breach of cl 2.3(c) of the Shareholders Agreement because Oldfields Advance caused ASS to loan more than $50,000 to Oldfields Advance and, as a Major Matter defined in Schedule 1 to the Shareholders Agreement, it required a 75% vote of the shareholders of ASS for such loans to be authorised and no such resolution was passed. Oldfields Advance failed to repay the money required of it to remedy the breach of cl 10(a)(ii) of the Shareholders Agreement within 10 days of the Loan Default Notice. Sibley Investments was therefore entitled to issue the Loan Default Notice in accordance with cl 10(a)(ii) of the Shareholders Agreement, and it validly did so.
On 2 May 2025, Mr Sibley sent an email to Mr Lesko (at that time a director of Oldfields Advance and a director of ASS) (2 May 2025 Email) in which he made an offer on behalf of Sibley Investments to purchase the ASS shares of Oldfields Advance but also reiterated that the Loan Default Notice (as well as the Security Default Notice, dealt with below) had been issued and he intended to complete the process for the sale of those ASS shares to Sibley Investments.
On 19 May 2025, the solicitors acting for Sibley Investments (Crawford Legal) sent a letter to Oldfields Advance (19 May 2025 Letter) in which they reiterated that Sibley Investments had exercised its rights to purchase the ASS shares of Oldfields Advance under cl 10(c) of the Shareholders Agreement and enclosed a share transfer form for execution by Oldfields Advance on or before 23 May 2025.
The Loan Default Notice is accepted as having commenced the default sale process in cl 10 of the Shareholders Agreement for each of the following reasons:
It meets the description of a “notice in writing setting out the default” as required in cl 10 (b) of the Shareholders Agreement, as do the 2 May 2025 Email and the 19 May 2025 Letter. The loan default notice was served at the registered office of Oldfield’s Advance and each of the 2 May 2025 Email and the 19 May 2025 Letter were issued by email, all of which were permitted as the means of service of a notice pursuant to cl 16 of the Shareholders Agreement.
Although the form of the notice required by cl 10(b) is not prescribed, interpreting the Loan Default Notice objectively and in accordance with business commonsense, the content of it is sufficiently clear to a reasonable person in the position of Oldfields Advance who has knowledge of the terms of the Shareholders Agreement and taking into account all the surrounding circumstances: Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303, McColl JA (with whom Ipp and Tobias JJA) at [148]–[151], citing Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749. The context of the Loan Default Notice was that Mr Sibley was communicating with the various representatives of Oldfields Advance about the process by which Sibley Investments would acquire the ASS shares of Oldfields Advance, namely the compulsory process in the Shareholders Agreement or through negotiation.
On the proper construction of cll 10(a)(ii) and 10(b) of the Shareholders Agreement, there is no requirement for a second notice of default beyond the Loan Default Notice to be served by Sibley Investments following the failure of Oldfields Advance to remedy the identified default within ten days after receiving it.
It is clear that the Loan Default Notice has been served in accordance with cl 16 of the Shareholders Agreement and has come to the attention of Oldfields Advance. The identified default in the Loan Default Notice has not been cured.
Oldfields Advance does not dispute that the Loan Default Notice is a valid notice which was sent to Oldfields Advance in respect of a default by Oldfields Advance which has not been remedied (T28).

Specific performance is an equitable remedy requiring a contracting party to carry out one or more contractual obligations resting on that party, with the discretionary factors to be addressed dependent on the circumstances of a particular case: Rossi Recycling Pty Ltd v Buckland Valley Pty Ltd (2022) 165 ACSR 332; [2022] VSC 467, Connock J at [564]–[566].
As stated in Rossi at [566], those discretionary factors may include the following:
whether there is an enforceable agreement;
whether there has been a breach of the agreement;
whether any issue of impossibility of performance arises;
whether damages are an adequate remedy;
whether the plaintiff has demonstrated, at least at the time when any order is to be made, it is ready, willing and able to perform all other substantial obligations;
whether there is mutuality in the sense that it is possible to award the remedy against both parties;
the plaintiff’s conduct and whether the plaintiff comes to equity with clean hands;
hardship to the defendant of awarding specific performance;
the involvement or impact from third parties; and
laches or delay.
Such of those matters as are relevant in the present case are addressed below.
The enforceable agreement which I have found to be breached in this case is the Shareholders Agreement. For the reasons set out above, Oldfields Advance was in default under cll 10(a)(i) and 10(a)(ii) of the Shareholders Agreement.
No issue of impossibility of performance arises in the present case.
Damages are an inadequate remedy in the present case. The starting point is that specific performance should be ordered for contracts for the sale of shares in a private company (such as ASS) because they are not readily obtainable in the market and it is very difficult to prove the value of such shares: Wong v Van Vlymen [2016] NSWSC 161, Stevenson J at [33]; Charter Pacific Corporation Ltd v Securicom (NSW) Pty Ltd [2018] NSWSC 1246, Stevenson J at [110]–[111].
Oldfields Advance argues that damages are an adequate remedy in the present case and the general rule expressed in Wong does not apply because the Shareholders Agreement provides a specific mechanism for determining the fair market value of the shares of ASS and that this value would be determined by the auditors of ASS if the parties could not agree (T31–33). I reject this argument because it does not take into account the full value of the shares in ASS which would be acquired by Sibley Investments that would result in it holding 100% of the shares in ASS. Sibley Investments currently holds 40% of the shares in ASS. By acquiring the 60% shareholding of Oldfields Advance in ASS, Sibley Investments would obtain control of ASS. The concept of a “control premium” beyond the fair value of a share is well known to the law in the context of takeovers. It is aptly described in BTR plc v Westinghouse Brake & Signal Co (Aust) Ltd (1992) 34 FCR 246 by Lockart and Hill JJ at 262 as follows:

Unfortunately, there was no basis on which it has been suggested that Oldfields Advance would have the financial capacity to make the proposed payments contemplated by these proposed orders. There is no evidence of the ability of Oldfields Advance to fund the proposed payments. This is despite the directions I made during the hearing on 3 August 2026 for such evidence, in the form of a proposed undertaking by Pure Asset and evidence to support the financial standing of Pure Asset to satisfy that undertaking, to be filed and served by 5pm that day. When the hearing resumed on 4 August 2026, Oldfields Advance made it clear that it did not rely on any further evidence (T48).
The evidence is that OHL, the only shareholder of Oldfields Advance, is in liquidation. There must be a real risk that any payment made to Sibley Investments which is sourced from or by Oldfields Advance is likely to be clawed back by a liquidator pursuant to a claim under s 588FA of the Corporations Act 2001 (Cth). This prospect is exacerbated by the existence of the Deed of Cross Guarantee dated 3 April 2012 to which Oldfields Advance is a party and in which cl 3.1 provides that Oldfields Advance (as one of the Group Entities defined in Part 1 of the Schedule to the Deed) covenants to pay any Creditor in full for any Debt owing on the winding up of all other Group Entities. Two of the Group Entities (OHL and Oldfields Pty Ltd) are already the subject of winding up orders for unpaid taxes.
A further problem with the orders is that they have the significant potential to create further dispute, there being no statement of the amounts which would be paid in accordance with proposed order 1. I agree with Sibley Investments that these proposed orders have the real capacity to give rise to satellite litigation in circumstances where the relationship of Sibley Investments and Oldfields Advance has fundamentally broken down (T39–40).
In short, the proposed orders do not assist Oldfields Advance as a means by which it will remedy the breach of the Shareholders Agreement. As Oldfields Advance readily accepted during submissions, because I am not satisfied that the proposed orders will remedy the breach of the Shareholders Agreement, then its argument based on alleged unconscientious conduct by Sibley Investments does not go anywhere (T34).
Sibley Investments has demonstrated that it is ready, willing and able to perform its obligations under cl 10(c) of the Shareholders Agreement by arranging finance for the acquisition of the 60% shareholding in ASS by way of a loan from Westpac.
I do not consider that an order for specific performance of the sale of ASS shares held by Oldfields Advance would involve any difficulties in ongoing supervision from the court. This is a separate question from the exercise of the court’s broad powers in connection with ordering specific performance, which may make the remedy conditional and give consequential directions, including making directions regarding the machinery to ensure that the decree is carried out, and making detailed orders about how the decree is to be carried into effect: Rossi at [567].
In Santangelo v Yates Holdings Victoria Pty Ltd [2022] NSWSC 397, Slattery J at [79]–[80] outlined the nature of the relief which should be granted in circumstances where the court maintains supervision over the performance of a contract as follows:

As for whether or not Sibley Investments has clean hands, not every act of wrongful conduct by a plaintiff gives rise to this defence because for the impropriety to be relevant it must have an immediate and necessary relation to the equity sued for: REW08 Projects Pty Ltd v PNC Lifestyle Investments Pty Ltd (2017) 95 NSWLR 458; [2017] NSWCA 269, Macfarlan JA (with whom Beazley P and Gleeson JA agreed) at [37], citing Dewhirst v Edwards [1983] 1 NSWLR 34 at 51.
Oldfields Advance argues that Sibley Investments’ failure to refer the dispute with Oldfields Advance for expert determination in accordance with cl 14(b) of the Shareholders Agreement is a matter which I should take into account in determining whether to order specific performance, while making no allegation that Sibley Investments had breached the dispute resolution procedures in cl 14 (T38). In my view, this submission is misplaced. It cannot constitute a lack of clean hands on the part of Sibley Investments so as to disentitle it to the remedy of specific performance for it to make the election not to refer the dispute to expert determination in its unfettered discretion, for which cl 14(b) provides. The parties have chosen in their bargain not to curtail the absolute discretion which cl 14(b) establishes (in contrast to the mandatory language in cl 14(a)) and there can be no criticism of the conduct of Sibley Investments to exercise that discretion in whichever way it chooses for whatever reason it wants. This includes by commencing these proceedings and seeking the remedy of specific performance against Oldfields Advance.
Oldfields Advance also submits that there is a lack of clean hands on the part of Sibley Investments by its failure to adhere to the procedure in cl 10 of the Shareholders Agreement in the calculation of the Fair Market Value of the ASS shares which it seeks to acquire from Oldfields Advance (T35–38).
The Security Default Notice states that the Fair Market Value of the ASS shares held by Oldfields Advance was calculated as $2,501,604. This amount is based on the following steps:
Clause 1.1 of the Shareholders Agreement defines Fair Market Value as being 2.1 times earnings before interest, tax, depreciation, and amortisation (EBITDA);
The EBITDA of ASS for the 12 months to 31 December 2024 was $2,207,000;
2.1 times EBITDA of $2,207,000 is $4,634,700;
90% of $4,632,000 is $4,171,230; and
60% of $4,171,230 is $2,502,738, which represents the Fair Market Value of the 60% shareholding of Oldfields Advance in ASS.
This calculation is supported by the affidavit of Michael Ruggiero sworn 1 October 2025, who explains that he is the Chairman of Partners of Bentleys SA/NT, he has been providing business advisory services to Sibley Investments and that these calculations were made under his instruction using the Income Statements for ASS for the period ending 31 December 2023 and the financial year ending 30 June 2024 and unaudited management accounts for the period from 1 July 2024 to 31 December 2024.
Oldfields Advance says that these calculations are erroneous because (T37–38):
the calculations for the 12 months ending 31 December 2024 are for the wrong time period and the correct time period is 12 months ended on the date of the Security Default Notice (28 March 2025);
the calculations are based on unaudited management accounts; and
the calculations are based on the operation of accounting standard AASB 117 (which requires the lease of business premises to be treated as an operating lease with rent payable as an expense) but should be based on accounting standard AASB 16 (which requires rent payable on real property leases to be represented by amortisation and interest expense, the right of use as an asset and the future lease payments as a liability) which came into operation on 1 January 2019.
I do not consider that by making a contested set of calculations Sibley Investments has engaged in any form of misconduct which would be classified as it lacking clean hands. It simply means that the parties are in dispute over a contestable matter which would be better determined by the court as part of the mechanics involved in the making of directions regarding the machinery to ensure that the decree of specific performance is carried out.
Oldfields Advance also criticises Sibley Investments for its failure to engage the auditors in making the calculation of the Fair Market Value (T37), relying on the portion of that definition which states:

Sibley Investments Pty Ltd v Oldfields Advance Scaffold Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

Parties

Legislation Cited (1)

Cases Cited (14)

JUDGMENT

INTRODUCTION

RELEVANT FACTS

Parties and people

Shareholder Agreement

Service and Licence Agreement

ISSUE 1: LOAN DEFAULT NOTICE

ISSUE 2: SECURITY DEFAULT NOTICE

ISSUE 3: ALLEGED TERMINATION OF THE SHAREHOLDERS AGREEMENT

ISSUE 4: SPECIFIC PERFORMANCE

ORDERS