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[2026] NSWSC 1181
Supreme Court of NSW
2026-09-29
McGrath J
Original judgment source is linked above.
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 (No 2) [2026] NSWSC 1181
Hearing dates: On the papers
Date of orders: 29 September 2026
Decision date: 29 September 2026
Jurisdiction: Equity
Before: McGrath J
Decision: See [31]
Catchwords: EQUITY — equitable remedies — specific performance — sale of shares pursuant to shareholders agreement — calculation of consideration for sale of shares — HELD — order for specific performance of sale of shares for particular consideration under the shareholders agreement made
COSTS — application by plaintiff for costs to be paid on indemnity basis — HELD — costs to be paid on the ordinary basis
COSTS — application by plaintiff for gross sum costs — HELD — gross sum costs order made
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98(4)(a)
Cases Cited: A.C.N. 627 087 030 Pty Ltd v Poche (No 2) [2026] NSWCA 29
BCEG International (Australia) Pty Ltd v Yu Xiao [2024] NSWSC 922
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Colgate-Palmolive Co v Cussons Pty Ltd Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1998) 81 ALR 397; [1998] FCA 364
Harrison v Schipp (2002) 54 NSWLR 734 at 743; [2002] NSWCA 213
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Category: Consequential orders
Parties: Sibley Investments Pty Ltd (Plaintiff)
Oldfields Advance Scaffold Pty Ltd (Defendant)
Representation: Counsel:
B Koch (Plaintiff)
A d’Arville (Defendant)
Solicitors:
Crawford Legal (Plaintiff)
Hall Partners (Defendant)
File Number(s): 2025/00226387
Publication restriction: Nil
In Sibley Investments Pty Ltd v Oldfields Advance Scaffold Pty Ltd [2026] NSWSC 1021 (Principal Judgment), I found that the plaintiff, Sibley Investments Pty Ltd, was entitled to an order for specific performance requiring the defendant, Oldfields Advance Scaffold Pty Ltd, to transfer the shares it holds in Adelaide Scaffold Solutions Pty Ltd (ASS) to Sibley Investments for the consideration calculated in accordance with the Shareholders Agreement dated 28 January 2005 between them.
This judgment assumes familiarity with and adopts the shorthand expressions and defined terms used in the Principal Judgment.
This judgment is in respect of the form of final orders to give effect to the determinations reached in the Principal Judgment. The primary issues remaining in dispute between the parties are the consideration to be paid by Sibley Investments to Oldfields Advance for its shares in ASS and the basis on which a costs order should be made in favour of Sibley Investments. Unsurprisingly, after giving the parties an opportunity to agree on the outstanding issues, they have been unable to do so. I have received further evidence, competing submissions and proposed orders from them to which I have given consideration.
In short, for the reasons set out below, I have determined that the consideration to be paid by Sibley Investments to Oldfields Advance is the amount of $2,502,738, a gross sum costs order of $135,000 should be made in favour of Sibley Investments and that amount should be set-off from the consideration so that Sibley Investments is required to pay Oldfields Advance the net amount of $2,367,738. I have also made other orders to give effect to the required specific performance of the Shareholders Agreement by Oldfields Advance.
In the Principal Judgment at [31] and [34]–[36], I found that:
Sibley Investments was entitled to issue the Loan Default Notice in accordance with cl 10(a)(ii) of the Shareholders Agreement and it validly did so;
the Loan Default Notice commenced the default sale process in cl 10 of the Shareholders Agreement;
the Loan Default Notice had been validly served by Sibley Investments and had come to the attention of Oldfields Advance;
the identified default in the Loan Default Notice had not been cured; and
Oldfields Advance did not dispute these matters.
In the Principal Judgment at [41] and [46], I found that:
Sibley Investments was entitled to issue the Security Default Notice in accordance with cl 10(a)(i) of the Shareholders Agreement and it validly did so;
the Security Default Notice was valid and had been served on Oldfields Advance;
the Security Default Notice commenced the default sale process in cl 10 of the Shareholders Agreement; and
Oldfields Advance did not dispute these matters.
I also determined that Sibley Investments is entitled to an order for specific performance and an order should be made for Oldfields Advance to pay the costs of Sibley Investments in these proceedings (Principal Judgment at [79]).
The result of my determinations in the Principal Judgment is that under cl 10(c) of the Shareholders Agreement, Oldfields Advance as the “Defaulting Shareholder shall be deemed to have offered his Shares to [Sibley Investments] for 90% of their Fair Market Value as from the date the Default Notice is served” (emphasis added). Clause 1.1 of the Shareholders Agreement defines “Fair Market Value” by reference to the formula “EBITDA x 2.1”, where EBITDA means “Earnings before tax, interest depreciation and amortisation”.
As I recorded in the Principal Judgment at [72]–[73], the evidence of Sibley Investments at the trial was provided in the form of an affidavit made by Michael Ruggiero who provided the following calculations for the purposes of cl 10(c) of the Shareholders Agreement:
the EBITDA of ASS for the 12 months to 31 December 2024 was $2,207,000;
2.1 x 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.
In the submissions by Sibley Investments, the amount of $2,502,738 was again asserted as being the consideration it should pay to Oldfields for its 60% shareholding in ASS.
In the submissions by Oldfields Advance, it accepted that Mr Ruggiero:
applied the correct formula of 2.1 x EBITDA x 90% x 60%; and
adopted the correct valuation period for calculating EBITDA of the 2024 calendar year (1 January 2024 to 31 December 2024).
Oldfields Advance also submits that the EBITDA used by Mr Ruggiero was based on financial statements and a management pack prepared by the former staff of OHL but that the correct figures should come from OHL’s audited financial statements for FY2024 and FY2025, which were published to the market via the Australian Stock Exchange. Oldfields Advance submits that using OHL’s audited and published reports for FY2024 results in the following calculation of the consideration for the purposes of cl 10(c) of the Shareholders Agreement:
the EBITDA of ASS for the 12 months to 31 December 2024 was $2,371,658;
2.1 x EBITDA of $2,371,658 is $4,980,481.80;
90% of $4,980,481.80 is $4,482,433.62; and
60% of $4,482,433.62 is $2,689,460.17, which represents the Fair Market Value of the 60% shareholding of Oldfields Advance in ASS.
In response, Sibley Investments contends that the use of the audited financial statements of OHL for FY2024 is impermissible because they were not in existence at the date the Loan Default Notice was served (28 March 2025).
I agree with the approach of Sibley Investments. Clause 10(c) of the Shareholders Agreement makes it plain that the calculation of the Fair Market Value is to occur “as from the date the Default Notice is served”. The clause does not contemplate that the parties are to await final, audited and published accounts before the calculation is to take place. By directing that the calculation of the Fair Market Value take place as from the date of the Default Notice, the parties clearly intended that it was to be done in a timely way referable to the date of the default, not the date by which statutory accounts were finalised, audited and published. The calculation made by Mr Ruggiero is based on accounts which were in existence at the date of the Loan Default Notice and had been prepared by Oldfields Advance.
I also agree that Mr Ruggiero correctly adjusted the EBITDA amount to exclude rent based on the application of the accounting standard which was in force as at the date the Shareholders Agreement came into effect (28 January 2005) that treats rent as an expense rather than being amortised.
As a result, I accept the calculation made by Sibley Investments that the consideration to be paid to Oldfields Advance for its 60% shareholding in ASS is $2,502,738.
The bases on which Sibley Investments seeks an order for indemnity costs are that:
at the hearing, Oldfields Advance abandoned most of its pleaded defences, admitted that it had breached the Shareholders Agreement as alleged and admitted that Sibley Investments’ default notices were validly issued (relying on the findings in the Principal Judgment at [3], [17], [22] and [36]); and
the only substantive issue at the trial was Oldfield Advance’s argument that specific performance was not the appropriate remedy, which was rejected because the admitted breach was not remedied and there was no evidence of any financial capacity of Oldfields Advance to remedy the breach despite the opportunity given to provide it (relying on the findings in the Principal Judgment at [60]–[62]).
Sibley Investments contends that the pleaded defences were advanced in wilful disregard of the known facts because the relevant conduct was carried out by the employees or agents of Oldfields Advance and clearly documented within its corporate books and records (citing Colgate-Palmolive Co v Cussons Pty Ltd Pty Ltd (1993) 46 FCR 225; [1993] FCA 801, Sheppard J at 233) and Oldfields Advance ought to have known that it had no chance of success (citing Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1998) 81 ALR 397; [1998] FCA 364, Wooward J at 401).
Oldfields Advance resists an order for costs on the indemnity basis by submitting that, based on the principles expressed in Colgate-Palmolive at 233–234, it requires some sufficient or unusual feature justifying departure from the ordinary rule, such as the maintenance of a hopeless case, an improper purpose, the unreasonable refusal of a settlement proposal, misconduct causing unnecessary costs or the undue prolongation of proceedings by groundless contentions. Oldfields Advance says that none of those features are present here because it progressively refined its case as the evidence and issues crystallised, made admissions where appropriate and elected not to read its supplementary affidavit once it became apparent that doing so would simply generate collateral argument. This foreshortened rather than expanded the hearing so that it concluded in one day, not the 2–3 days estimated by Sibley Investments.
I agree with Oldfields Advance that there is no basis on which to depart from the usual order that it pay the costs of Sibley Investments on the ordinary basis. I consider that Oldfields Advance acted reasonably at the hearing to reduce the issues in dispute to their essence, which had the admirable effect of reducing the hearing to the minimum that was required to deal with those issues. Given that the primary purpose of a costs order is to compensate a successful party and not to punish an unsuccessful one (Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, McHugh J at [67]), and this case does not enliven the considerations to which an indemnity costs award are directed, I do not consider that this is an appropriate case to depart from costs being paid on the ordinary basis.
Citing the longstanding principles which I outlined in BCEG International (Australia) Pty Ltd v Yu Xiao [2024] NSWSC 922 at [113]–[119], Sibley Investments seeks a gross sum costs order under s 98(4)(a) of the Civil Procedure Act 2005 (NSW) on the basis that:
for a set-off to be obtained, costs must be promptly quantified, which an assessment process would frustrate;
given the precarious financial position of Oldfields Advance as a result of it having guaranteed the liabilities of OLH and Oldfields Pty Ltd, both of which have been placed in liquidation, Sibley Investments is unlikely recover the balance of any assessed costs;
the costs of the assessment would only add to the prejudice to Sibley Investments;
the proceedings had a relatively narrow compass, such that the assessment would be disproportionate; and
finality is desirable.
Oldfields Advance agrees that this is an appropriate case in which a gross sum costs order should be made.
The only difference between the parties is the quantum of the gross sum costs order to be made.
Sibley Investments provided evidence that it has been billed $186,249.65 for fees and disbursements as at 31 August 2026 and that the work in progress for September 2026 was approximately $5,000, making a total of $191,249.65. A list of all invoices rendered to Sibley Investments (with their dates and amounts), the rates at which each of the solicitors charged and a report of all disbursements have been provided. That evidence also revealed that a calculation of the recovery of those costs on an ordinary basis in an assessment was likely to result in an order for $135,000 if the recovery was 90% for disbursements and 70% for solicitor fees.
Oldfields Advance does not challenge the calculation of any of the costs by Sibley Investments but contends that that they should be discounted to $125,000 by applying an overall discount of 31%.
If the assessment of costs was to take place on an ordinary basis, I am content with the calculation made by Sibley Investments that it is likely to recover in the order of $135,000, which is an amount that can be fixed broadly having regard to the information before the court and after the parties have had an adequate opportunity to make submissions: A.C.N. 627 087 030 Pty Ltd v Poche (No 2) [2026] NSWCA 29, Ward P at [44] citing Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119, von Doussa J at 123. With discounts having been applied to the disbursements and fees to arrive at that sum, I am content that it represents an appropriate amount that I consider is fair between the parties and I have sufficient confidence in that amount based on the available materials: Harrison v Schipp (2002) 54 NSWLR 734 at 743; [2002] NSWCA 213, Giles JA at [22]. I intend to order the amount of $135,000 as the amount of the gross sum costs.
Sibley Investments seeks an order that the amount of the gross sum costs should be set off against the consideration to be paid for the ASS shares so that it is only required to pay a net amount to Oldfields Advance on the basis that the court can reasonably infer that absent such an order, Sibley Investments is unlikely to obtain the benefit of the gross sum costs order because of the guarantee given by Oldfields Advance for the liabilities of OHL and Oldfields Pty Ltd.
Oldfields Advance did not make any submissions contending to the contrary.
I am satisfied that in circumstances where it is unlikely that Sibley Investments would ever recover the amount of any gross sum costs order from Oldfields Advance that I should apply a set-off of the gross sum costs amount against the consideration for the ASS shares.
I make the following orders:
Declare that the contract between the plaintiff and the defendant entered into on or about 28 January 2005 and titled Shareholders Agreement (Shareholders Agreement) is valid and enforceable and ought to be specifically performed and carried into effect.
Order that the Shareholders Agreement be specifically performed by the defendant transferring its 600 ordinary shares (Shares) in Adelaide Scaffold Solutions Pty Ltd (ASS) to the plaintiff in accordance with the orders below.
Declare that the Fair Market Value for the Shares calculated in accordance with the Shareholders Agreement is $2,502,738 (Fair Market Value).
Order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) that the plaintiff is entitled to a specific gross sum in respect of the plaintiff’s costs of the proceedings in the total amount of $135,000.
Order that the costs the subject of order (4) above be set off against the Fair Market Value for the Shares.
Order that, by no later than seven (7) days after the date of these orders, the defendant must execute and deliver to the plaintiff:
(a) the Share Transfer Form to be annexed to these orders transferring the Shares to the plaintiff; and (b) any share certificate or other document of title relating to the Shares in the defendant’s possession, custody or control.
(a) pay to the defendant the amount of $2,367,738 (being the Fair Market Value less the specific gross sum costs amount in order (4) above); and (b) present the executed Share Transfer Form to ASS and request registration of the transfer of the Shares into the name of the plaintiff.
(a) provide a sealed copy of these orders to ASS and seek registration of the transfer in accordance with these orders; and (b) upon application to this court by the plaintiff against ASS, the register of members of ASS will be corrected, pursuant to s 175 of the Corporations Act 2001 (Cth), so that the plaintiff is recorded as the holder of the Shares and the defendant is no longer recorded as the holder of the Shares, with effect from the date of the payment made in accordance with order (8)(a) above.
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Sibley Investments Pty Ltd
Oldfields Advance Scaffold Pty Ltd (No 2)
[1993] FCA 801
[1998] HCA 11
[2026] NSWSC 1021
(1995) 57 FCR 119
(1993) 46 FCR 225
(1998) 81 ALR 397
(2002) 54 NSWLR 734
(1998) 193 CLR 72