Tydeman v Asgard Group Pty Ltd, in the matter of Asgard Group Pty Ltd

Relevant background 8 The Fund was established in about May 2002. Its initial sole beneficiary was Catherine, but from 2007 James was also a beneficiary. 9 Tanamerah was the initial trustee of the Fund until, as will be seen, 1 September 2016. 10 Catherine and James were the sole shareholders of Tanamerah, holding one ordinary share each. Insofar as the officers of Tanamerah are concerned: (1) James was the first secretary, but Catherine took over as secretary from 14 May 2002. Catherine was secretary in May/June 2011 when the alleged buy-back of shares in Tibra, to which I will return, occurred. (2) James was the first director, but Catherine took over as director from 14 May 2002. James then became a joint director with Catherine from 7 December 2009. Both Catherine and James were directors in May/June 2011. (3) Catherine ceased being a director on 18 October 2016. James remained as director until Tanamerah was deregistered. 11 Commencing in January 2008, Tanamerah invested in Tibra by purchasing shares in it. By April 2009, after a share split, it owned 231,830 shares as trustee for the Fund. It appears that Tanamerah paid $389,020.30 for the shares. 12 The evidence with regard to what happened in relation to the buy-back of those shares is slim. It is as follows. 13 In his first affidavit in the proceeding, James states that he inspected documents held by the Fund and can confirm that Tanamerah never executed any deed or other type of instrument to grant any agent or attorney power "to Tibra, to any person who was also an officer of Tibra, or to any office of Tibra". Although that sentence in the affidavit does not make grammatical sense, James explained in submissions that there is no power of attorney granted by Tanamerah to Tibra to effect a buy-back of shares from Tanamerah. Although Catherine, who it will be recalled was a director and the secretary of Tanamerah at the relevant time, did not say anything about these matters in her affidavit, she confirmed them from the bar table. There is also correspondence signed by her to the same effect. 14 James also says that he saw an email dated 9 June 2011 which was identified as having been sent from Tibra's company secretary to Tanamerah. He states that in the body of the email a representation was made that the email had attached to it an extract from Tibra's register of members. James did not tender the email, but he tendered the attachment. It reflects that on 9 June 2011 by "Selective Buy-Back" Tanamerah's member's interest of 231,830 shares in Tibra was reduced to nil. On enquiry, James said from the bar table that the email said nothing else of relevance to the proposed claim. 15 The extract from Tibra's register of members records the member in question to be Tanamerah as trustee for the Fund and gives a physical address in Wentworth Falls, New South Wales. That is the same address as recorded for Catherine and James as directors of Tanamerah and for Catherine as the secretary and a member of Tanamerah in the ASIC records for Tanamerah. 16 James then states that he knows or believes that Tibra's register of members shows "false or fraudulent information" because Tanamerah "had remained holding 231,830 fully paid ordinary shares in Tibra after 9 June 2011". No evidence is adduced in support of James's stated knowledge or belief, and it is not revealed what the basis of that knowledge or belief is said to be. The statement is merely a statement of conclusion, not fact. It is not admissible evidence. 17 In his second affidavit, James repeats reference to the 9 June 2011 email and the document said to be an extract from Tibra's register of members referred to in his first affidavit. He then reiterates what in any event appears from the extract from the register of members, namely that the shares were held by Tanamerah on trust for the Fund rather than for itself. 18 The plaintiffs tendered an ASIC Form 281, a "Notice of intention to carry out a share buy-back", which was lodged with ASIC. The form is dated 16 May 2011 and is ostensibly signed by the company secretary of Tibra, Annette Golden. It gives notice to ASIC of a selective buy-back of shares with a proposed date for the buy-back agreement to be entered into and for the resolution to approve the buy-back being 31 May 2011. The copy of the form in evidence was apparently obtained from ASIC because it reflects an ASIC document number 027531508. 19 The plaintiffs also tendered a letter from ASIC dated 10 May 2021 addressed to Catherine. It is an answer to a freedom of information request for: the document setting out the terms of the offer which Tibra had lodged with ASIC under the 'selective buy-back' procedure - that is Tibra's offer document Tanamerah Estates Pty Limited ACN 094 864 089 (Tanamerah) in respect of Tibra's wish to buy 231,830 fully paid ordinary shares held by Tanamerah. 20 The form in which the letter from ASIC was initially sought to be tendered included the redaction of a paragraph of the letter. I accepted the tender of the letter on the condition that the unredacted version would be provided and tendered. No objection was taken to that course, and the unredacted version was subsequently provided to the Court. The paragraph that had been redacted stated as follows: I have understood your request to be for a document that sets out the terms of an offer between Tibra Capital Pty Ltd (Tibra Capital) and Tanamerah. The reference to 'offer' refers to the offer made by Tibra Capital Pty Ltd (Tibra Capital) to buy 231,830 shares held by Tanamerah. Tibra Capital notified ASIC of this buy back in a Form 280 dated 17 May 2011 and received by ASIC on 19 May 2011. The offer is referred to in Paragraph 4 of the Explanatory Memorandum attached to the Form 280 Notification of share buy-back details (document 027531507). 21 That paragraph reveals that a Form 280 was furnished to ASIC by Tibra, and attached to it was an explanatory memorandum. It is not explained why the Form 280 with the attached memorandum were not tendered in evidence. In any event, the answer ultimately given by ASIC in the letter responding to the freedom of information request is that after a search the relevant ASIC team "has not located a document falling within the scope of your request." 22 The plaintiffs also tendered a "Notice of General Meeting and Explanatory Memorandum" of Tibra in relation to a proposed selective share buy-back dated 5 October 2012 for a meeting on 22 October 2012. The plaintiffs offered no explanation of the significance of this document, or any explanation why a document in relation to a meeting in October 2012 might be relevant to a purported buy-back in May or June 2011. 23 The only other evidence possibly bearing on the question of the buy-back is a heavily redacted letter from the solicitors Middletons addressed to Catherine on behalf of Tanamerah dated 19 August 2011 in which the following is stated: "Having reviewed the materials, we could not identify any misrepresentations or misleading or deceptive conduct on the part of Tibra." 24 I should mention that in oral submissions, James stated that Tibra paid for the shares by making an unauthorised electronic deposit into Tanamerah's bank account. That was apparently in the amount of $435,840.40, being some $46,000 more than what Tanamerah had paid for the shares. He says that on the correction of the share register to reflect Asgard as trustee for the Fund as owner, repayment will be tendered less the dividends that should have been but were not paid in the interim. 25 The evidence is that on 1 September 2016, Tanamerah resigned as the corporate trustee of the Fund and James and Catherine resolved to appoint themselves as joint individual trustees. 26 A liquidator was appointed to Tanamerah on 22 November 2016 until 18 November 2020. Tanamerah was deregistered on 20 February 2021. 27 On 9 June 2022, Catherine and James retired as trustees of the Fund and Asgard was appointed as trustee.

Prayer 1: Suppression 28 The first order sought by the plaintiffs is for suppression of any information or evidence "which is protected by client legal privilege." In fact, the evidence adduced by the plaintiffs is heavily redacted in order to remove such evidence in advance of it being tendered. In the circumstances, there is nothing to suppress. The plaintiffs did not press for a suppression order.

Prayer 2: Leave under s 237 of the Corporations Act

Introduction on s 237 29 As a general proposition, proceedings brought on behalf of a company must be brought in the company's name: Corporations Act, s 236(2). The exception to that rule is if the person is, relevantly, a member of the company and has leave to bring the proceeding under s 237: Corporations Act, s 236(1). 30 Section 237(2) of the Corporations Act provides that the Court must grant an application by a member for leave to bring proceedings if it is satisfied of the matters identified in each of the five paragraphs of that subsection. The decision whether or not to grant leave is not discretionary - if the requirements are satisfied, leave must be granted, and if at least one of the requirements is not satisfied, then leave must be refused: Huang v Wang [2016] NSWCA 164; 114 ACSR 586 at [57] and [61] per Bathurst CJ, McColl JA and Barrett AJA agreeing. 31 Leave under s 237 should not be given lightly; applications for leave are not interlocutory, but final; and the applicant bears the onus of establishing all five requirements in s 237(2): Swansson v R A Pratt Properties Pty Ltd [2002] NSWSC 583; 42 ACSR 313 at [24] per Palmer J; Vinciguerra v MG Corrosion Consultants Pty Ltd [2010] FCA 763; 79 ACSR 293 at [15] per Gilmour J. 32 It is convenient to consider each requirement in turn.

(a) the company will not bring the proceedings 33 The requirement of para (a) is, relevantly, that "it is probable that the company will not itself bring the proceedings." 34 On 15 March 2023, a resolution was put to Catherine and James as directors of Asgard that it commence proceedings for the recovery of the 231,830 shares in Tibra irrespective of whether the Court grants leave under s 237 of the Corporations Act. The minute records that Catherine voted in favour of the resolution but James voted against it. The result is that the resolution was not carried. 35 James has explained that he will not vote in favour of Asgard bringing the proceeding because he regards it as contrary to his duties to Asgard. As explained, that is because he regards it as necessary that the company be represented by a lawyer and, as I will come to, the company has been unable to retain a lawyer. However, by seeking leave to bring a derivative action on behalf of Asgard the same result will ensue, ie, the claim will be brought without legal representation and the disadvantages of not having a lawyer will still be present, both with respect to the proper prosecution of the claim and Asgard's potential liability for costs. In the circumstances, the stance taken by James is not as principled as he would make out; rather it appears to be a strategy to set up the application for leave under s 237. 36 The fallacy of James's reason for voting against the resolution is also exposed by correspondence artificially sent by Catherine and James as directors of Asgard in response to a letter from Catherine as beneficiary of the Fund in which she threatened Asgard with a suit for breach of trust if it failed to take steps to recover the shares. The letter from Catherine and James explained that Asgard is prevented from performing its duties as trustee in recovering the shares by lawyers refusing to act for it. Thus, James says that he cannot cause Asgard to bring the proceeding as that would be contrary to his duties to Asgard, yet in the same breath accepts that Asgard is in breach of its duties as trustee in not bringing the proceeding. 37 If this requirement were regarded as satisfied, that would only be because the plaintiffs who have complete control of Asgard have not resolved to cause Asgard to bring the contemplated proceedings. That has a bearing on the next requirement, in particular because Asgard could bring the proceeding and seek dispensation from being represented by a lawyer. It may also be that there is a justifiable reason why no lawyer will apparently take on the case, but I will come to that. 38 For those reasons, I am not satisfied that this requirement is established.

(b) the applicant is acting in good faith 39 The requirement of para (b) is that "the applicant is acting in good faith." One of the factors that a court will have regard to in determining this requirement is whether the applicant seeking to bring the derivative suit has such a collateral purpose as would amount to an abuse of process: Swansson at [37]; Cemcon Constructions Pty Ltd v Hall Concrete Construction (Vic) Pty Ltd [2009] FCA 696 at [15] per Gordon J. 40 In this case, the plaintiffs seek leave to bring a derivative action in the name of Asgard in order to avoid the requirement of r 4.01(2) of the Rules that the company be represented by a lawyer. That is an improper or alternative purpose in that the plaintiffs are seeking to obtain some advantage for which s 237 is not designed or intended, or to gain some collateral advantage beyond what the law offers: Williams v Spautz [1992] HCA 34; 174 CLR 509 at 526-7 per Mason CJ, Dawson, Toohey and McHugh JJ. This demonstrates that the application is not brought in good faith. 41 There is another consideration which is that the plaintiffs were themselves joint trustees of the Fund and could in that capacity have brought the contemplated claim against Tibra in their own names. Instead, they resigned as trustees and appointed Asgard as trustee, and shortly thereafter commenced the current proceeding. It is not explained why they did that. The inference is open that that was in order to avoid any personal liability for costs, although in view of there having been no cross-examination of the plaintiffs and it not having been put to them, I will not draw that inference. Nevertheless, the absence of any explanation as to why they transferred the trusteeship to Asgard and why they did not merely bring the claim themselves, and the fallacy of the explanation for why James voted against the resolution that Asgard bring the proceeding itself (as explained at [35]-[36] above), does support a finding that they lack the requisite good faith in bringing the proceeding. See Swansson at [59]. 42 The basic point is that the plaintiffs have it entirely within their power to cause Asgard to bring the proceeding but for the reasons already canvassed they have not done so. Instead, in order to circumvent the difficulties that Asgard apparently has in retaining a lawyer and, in the absence of a lawyer, having to seek dispensation from r 4.01(2), they seek leave under s 237. They have not been able to point to, and I have not been able to find, any case where the people who are in control of a company have been given leave to bring a derivative action on behalf of the company - the purpose of the section is the opposite, ie, to allow those who do not have control of a company to cause it to bring a claim that those in control will not bring. 43 In the circumstances, this requirement is not established. The plaintiffs do not seek leave under s 237 in good faith within the meaning of the authorities referred to.

(c) it is in the best interests of the company that leave be granted 44 The applicant is required to establish, on the balance of probabilities, that the grant of leave "is in the best interests of the company", not that it may or could be in its best interests. That is a fact which can only be determined by taking into account all the relevant circumstances: Swansson at [55]-[56]. The question of the company's best interests is to a certain extent connected to the strength or otherwise of the case that the plaintiffs wish to advance on behalf of the company: South Johnstone Mill Ltd v Dennis [2007] FCA 1448; 163 FCR 343 at [73] per Middleton J. 45 Given the probable weakness of the contemplated case to be brought in the company's name, which I deal with under the next requirement, it is difficult to see how the granting of leave can be in Asgard's best interests. That is exacerbated by the consideration that Catherine has offered an indemnity for Asgard's potential costs liability to the prospective defendants limited to $25,000. That amount is patently insufficient which means that Asgard will face a potential liability to pay the defendant's costs in the event that the contemplated proceeding fails. The plaintiffs have not offered to be personally liable for the costs of the proposed proceeding, and they have not offered Asgard a full indemnity for costs. 46 In those circumstances, I am not satisfied that this requirement is established.

(d) there is a serious question to be tried 47 There is a debate in the authorities as to the best formulation of this requirement. With reference to the legislative history of the provision, it has been said that the requirement may be equated with that which applies on an application for an interlocutory injunction: South Johnstone at [78]. That is to say, the applicant for leave must make out a prima facie case in the sense that if the evidence remains as it is there is a probability that at the trial of the proposed action the company will be entitled to relief. See South Johnstone at [77]-[80] and Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 at [19] per Gleeson CJ and Crennan J, and [65] per Gummow and Hayne JJ. 48 I have identified above (at [13]-[24]) the evidence that might be said to support the proposed proceeding by Asgard against Tibra. There is little evidence to support the central proposition, which is that Tibra's purported buy-back of the shares held by Tanamerah was unlawful or improper. There is little more than bare assertion. Nevertheless, there is positive evidence that there was no authority given to Tibra, instrument of transfer or buy-back agreement. 49 One might have expected that the officeholders of Tanamerah at the time, being Catherine and James in May/June 2011, would put forward on oath all their relevant knowledge of the buy-back including all relevant correspondence between Tanamerah and Tibra and all relevant documents. Instead, Catherine has said nothing on the subject in evidence, notwithstanding that she was the secretary and a director of Tanamerah at the time, although she was prepared to make the statements in court. I infer that the email referred to by James on 9 June 2011 was addressed to Catherine as secretary or to Catherine and/or James as directors. I also note the common addresses identified at [15] above. Inexplicably, the email has not been tendered. 50 I also observe that many of the documents that have been tendered are partly redacted. It was said that that is because of client legal privilege or to remove irrelevant matter, but as was demonstrated in the case of the letter from ASIC discussed at [19] above, not all redactions could be justified on that basis. For example, the plaintiffs have put up their letters in which they set out a version of events on which they sought advice or representation and responses to those letters, but they have redacted parts of that version or those responses (eg, the correspondence at pages 96-99, 112-118, 122-127, 199-200, 235-238, 268-272 and 290-293 of the court book). Are the redacted parts adverse to their case? There was also reference during argument to other material and facts not put before the Court, such as an explanation that has apparently been given by Tibra in which it has asserted that Tanamerah gave it a power of attorney for the buy-back of the shares in a shareholders' agreement which is said by Tibra to justify the buy-back. 51 Additionally, I note that the underlying dispute about the shares has a long history. It has been litigated at length in the Supreme Court of New South Wales and in special leave applications to the High Court of Australia. The following is a summary of the litigation there as gleaned from the publicly available judgments that have been published. Any findings of fact in those judgments are not admissible as evidence of those facts in this proceeding (Evidence Act 1995 (Cth), s 91(1)). I rely on the judgments only as evidence of the proceedings that have taken place and what was claimed in them. 52 The judgments of the Supreme Court and the High Court appear to be the following: (1) Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2013] NSWSC 36; 272 FLR 365, a judgment of Hallen J delivered on 6 February 2013: Tanamerah and James as first and second plaintiffs respectively brought proceedings against Tibra alleging breach of a shareholders' agreement between Tanamerah and Tibra, among other claims, in connection with Tibra's buy-back of the 231,830 shares. Tibra filed a motion seeking that James be removed as a party on the basis that he personally claimed no relief against Tibra. James opposed the motion and, in the alternative, sought orders dispensing with the requirement that Tanamerah appear only by a lawyer thereby permitting him to appear for Tanamerah. Hallen J concluded that James was not a proper or necessary party to the litigation and was not satisfied that it was in the interests of justice for James to appear on behalf of Tanamerah given the complexity of the case, James' lack of objectivity and litigation experience, the likelihood that James would be a principal witness, the risks to Tanamerah and the likely increase in the costs of the proceeding. Hallen J made orders that James be removed as a plaintiff, that the proceeding brought by Tanamerah be stayed unless a notice of acting was filed by a legal practitioner, and that Tanamerah and James pay Tibra's costs. (2) Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd (No 2) [2013] NSWSC 616, a judgment of Hallen J delivered on 23 May 2013: Tanamerah and James sought to set aside Hallen J's orders of 6 February 2013. Bergin CJ in Eq had granted leave to make an application to Hallen J on the question of costs orders only. Hallen J gave reasons for declining to vary or set aside the costs orders previously made. (3) Tanamerah Estates Pty Ltd as trustee for Alexander Superannuation Fund v Tibra Capital Pty Ltd [2013] NSWCA 266, a judgment of Basten JA and Sackville AJA delivered on 19 August 2013: Tanamerah and James sought leave to appeal from the order of Hallen J of 6 February 2013 that Tanamerah's proceeding against Tibra be stayed, and from the various orders of Bergin CJ in Eq and Hallen J made on 6 February, 8 March and 23 May 2013 with respect to costs. The Court dismissed the challenge to the stay and to the costs orders. The Court ordered that Hallen J's orders of 23 May be corrected under the slip rule so that the orders as entered reflected the substance of Hallen J's judgment. (4) Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2015] NSWSC 1519; 110 ACSR 29, an ex tempore judgment of Black J delivered on 12 October 2015: Tanamerah sought to set aside a creditor's statutory demand served by Tibra for payment of debts arising out of costs assessments pertaining to Tanamerah's previous unsuccessful litigation against Tibra. Tibra applied to stay the proceeding and sought its dismissal failing the appointment of a legal representative within a specified period. Black J did not accept that James was entitled to represent Tanamerah as of right and expressed the preliminary view (pending any application) that dispensation should not be granted for James to represent Tanamerah. Black J made orders staying the proceeding for 28 days to enable Tanamerah to obtain legal representation. (5) Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2015] NSWSC 1708, an ex tempore judgment of Black J delivered on 16 November 2015: Black J gave reasons for making orders that unless a notice of appearance by a legally qualified representative were filed by 4:00pm that day, Tanamerah's proceeding to set aside the statutory demand would be dismissed. On 18 November 2015, Black J ordered that the proceeding be dismissed with costs. (6) Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2015] NSWCA 383, an ex tempore judgment of Leeming JA delivered on 30 November 2015: Tanamerah sought to stay Black J's orders of 16 and 18 November 2015. Leeming JA concluded that Tanamerah failed to discharge its onus that this was an appropriate case for a stay or other interlocutory relief and Tanamerah's motion was refused. (7) Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2016] NSWCA 23, an ex tempore decision of McColl JA and Meagher JA delivered on 1 March 2016: Tanamerah sought leave to appeal from the decision of Black J of 12 October 2015 and from the orders subsequently made by his Honour on 16 and 18 November 2015. In doing so, James submitted that the Supreme Court and Court of Appeal had engaged in "malfeasance" by rejecting his argument that he was not a proper plaintiff and not entitled to act on the company's behalf and made assertions of judicial bullying and bias. Leave was refused on the basis that the proposed appeal did not have any arguable prospects of success. (8) An application for special leave to appeal to the High Court was dismissed: Tibra Capital Pty Limited (S84/2016) [2016] HCASL 147. (9) Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2016] NSWCA 42, judgments of Gleeson JA, Simpson JA agreeing, and Emmett AJA, delivered on 15 March 2016: Tanamerah and James sought orders setting aside the decision of Basten JA and Sackville AJA of 19 August 2013 dismissing an application for leave to appeal from the two decisions of Hallen J (and that of Bergin CJ in Eq concerning costs). The applicants challenged the decision on the basis that the judgment "was given or entered, or the order was made irregularly, illegally or against good faith" within the meaning of UCPR r 36.15(1) and sought declarations that James was a proper plaintiff. The Court found that the applicants were essentially seeking to re-agitate unmeritorious arguments and that the judgment of 19 August 2013 was not irregular or against good faith, and refused leave to re-open that decision. (10) An application for special leave to appeal to the High Court was dismissed: Tibra Capital Pty Limited (S104/2016) [2016] HCASL 148. (11) In the matter of Tanamerah Estates Pty Ltd [2016] NSWSC 1644; 317 FLR 55, a judgment of Black J delivered on 22 November 2016: On the application of Tibra, Black J ordered that Tanamerah be wound up in insolvency and that a liquidator be appointed for failure to satisfy a creditor's statutory demand (in respect of judgment debts for costs owed to Tibra), among other reasons. (12) Tydeman v Tibra Capital Pty Limited (No 2) [2018] NSWSC 884, a judgment of Parker J delivered on 15 June 2018 (this judgment is 'No 2' because Pembroke J earlier in an unpublished decision dismissed an application made by the Tydemans for default judgment): Catherine and James brought proceedings against Tibra impugning the validity of the buy-back of the 231,830 shares and seeking to be paid market value for them, as determined by an independent valuer, less the net asset value already paid. Before Tanamerah was wound up in insolvency, its legal rights and claims were purportedly assigned to the plaintiffs. Tibra sought to have the proceedings summarily dismissed or stayed on the basis that Tanamerah was the proper plaintiff. Parker J summarily dismissed the proceedings, finding that Catherine and James were not entitled to maintain an action at law against Tibra on behalf of the Fund and that Tanamerah's legal right to bring claims with respect to a shareholders' agreement was not capable of assignment without the consent of Tibra. Parker J considered whether to allow James a further opportunity to re-plead the case so as to disclose an arguable basis for a claim by himself and Catherine against Tibra but found "formidable obstacles" to the reframing of the case without reliance on the shareholders' agreement and without confronting the issue of assignability: "if [future claims] are to be litigated they must be litigated in the name of Tanamerah" (see [53]). Parker J also considered Tibra's alternative application for a stay and found that, had it been necessary, he would have stayed the proceeding on the basis that it was an abuse of process, duplicating claims made in previous proceedings. 53 In the circumstances, a few observations are called for. First, I am left with considerable disquiet as to whether the plaintiffs have taken the Court into their confidence and revealed enough of the story for me to properly evaluate whether there is a viable cause of action. It appears that they have been very selective in order to present a narrow case avoiding complexity, which is what they say they have done in order to omit irrelevant matter, but also evidence that might go to showing that there is no viable cause of action. For example, in the last of the Supreme Court judgments referred to above, Parker J refers (particularly at [18]) to provisions in the shareholders' agreement by which Tanamerah purportedly authorised Tibra to act on its behalf in effecting a selective share buy-back in certain circumstances. It may be that all of that is mistaken, but it does show that there is much that the plaintiffs have not told the Court. 54 Secondly, it seems that if Asgard were to advance the proposed case against Tibra, there will be a serious question as to whether such a case is estopped on Anshun grounds (with reference to Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589) or as an abuse of process in view of the previous litigation (with reference to UBS AG v Tyne [2018] HCA 45; 265 CLR 77). I am not in a position to determine those questions on what is before me. That is, in particular, because the plaintiffs say that there were crucial events, or crucial information which only became known to them, after the previous proceedings which would be an answer to any Anshun estoppel or abuse of process defences to a claim brought by Asgard. I have my doubts about that, but I cannot rule it out. 55 The buy-back in question was purportedly a "selective buy-back". With reference to s 257B of the Corporations Act, ss 257D, 257E, 257F, 257G, 257H and 254Y apply to such a buy-back. Most of those provisions refer to a buy-back agreement, the implication being that it is necessary that there be such an agreement for a selective buy-back. James has gone on oath, and Catherine has stated in open court, that there is no such agreement. 56 The plaintiffs also rely on s 1324(1B) of the Corporations Act which relevantly provides that if the ground relied on in an application for an injunction is conduct of a company that is alleged to constitute a contravention of s 257A, the Court must assume that the conduct would constitute such a contravention unless the company proves otherwise. Since the plaintiffs seek a mandatory injunction against Tibra for an alleged contravention of the procedures referred to in s 257A, the rebuttable presumption operates in the plaintiffs' favour. 57 In the circumstances, and in the absence of countervailing evidence and any cross-examination of James and Catherine, I accept that if the evidence remains as it is it might be concluded that there was no valid or authorised buy-back and the shares were not validly cancelled. 58 It follows that despite my misgivings about the proposed case, I am satisfied that on the evidence before me there is a serious question to be tried.

(e) the company has been given notice 59 I am satisfied as to this requirement.

Conclusion as to s 237 leave 60 A number of the criteria for leave have not been established. Leave under s 237(2) must accordingly be refused.

Prayer 3: That the company bring the action 61 The plaintiffs seek a mandatory injunction against Asgard compelling it to bring the contemplated proceeding against Tibra. They say that they require the injunction because, if Asgard is compelled by court order to bring the proceeding then Asgard will not, or cannot, be required to appear by lawyer in that proceeding as otherwise required by r 4.01(2). 62 There is no basis upon which a mandatory injunction can be ordered against the company compelling it to bring the proposed action, in particular in circumstances where the plaintiffs have it entirely within their power to cause the company to bring the action since they are its only shareholders and directors. They have not established that they will suffer grave damage if the injunction is not granted, and they have not offered to put Asgard in funds to bring the action, or to indemnify it against any costs liability that it might thereby incur. Those considerations are all fatal to the relief. 63 Further, the proposition that if Asgard were compelled to bring the proceeding by order of court, it would not be required to be represented by a lawyer in that proceeding is fallacious. There is no reason why such an order would have that effect, and even if it did have that effect that would merely expose the ulterior and improper purpose in seeking such an order, ie, to circumvent r 4.01(2). It would be a matter for the docket judge in the contemplated proceeding, I would expect only after giving Tibra an opportunity to be heard given its obvious interest in the point, whether dispensation from r 4.01(2) would be given under r 1.34. It has long been recognised that the opposing party has a real interest in whether such dispensation is given. See, for example, Damjanovic v Maley [2002] NSWCA 230; 195 ALR 265 at [79]-[80] per Stein JA, Mason P and Sheller JA agreeing; Worldwide Enterprises Pty Ltd v Silberman [2010] VSCA 17; 237 FLR 292 at [37] per Weinberg JA with whom Bongiorno JA agreed; Onesteel Manufacturing Pty Ltd v The Comptroller-General of Customs [2017] FCA 959 at [28] per Rares J. 64 The injunctive relief must therefore be refused.

Prayer 4: The company's right to legal representation 65 By prayer 4, the plaintiffs seek from the Court a process by which they (or Asgard) can compel an otherwise reluctant solicitor to act for Asgard in the contemplated proceeding against Tibra. The process they have suggested be ordered is that they (or Asgard) seek to instruct a solicitor to act and, within a specified timeframe, the solicitor must either accept the instruction or show "just cause" why they do not accept the instruction. Presumably, if the solicitor does not accept the instruction and the explanation is satisfactory then the process can be repeated with another solicitor, and so on. But if the Court is not satisfied that their reason for not accepting the instruction amounts to "just cause", then they will be compelled to act. 66 The factual premise to the relief is that the plaintiffs have been repeatedly rebuffed by innumerable solicitors in their efforts to retain a solicitor for themselves as trustees and subsequently for Asgard as trustee of the Fund to bring the contemplated case against Tibra. The evidence is that since June 2011, the trustees of the Fund from time to time have sought to retain numerous solicitors or law practices for legal assistance in respect of or in relation to the extract from Tibra's register of members. 67 In 2011 and 2012, Tanamerah sought to engage two firms of solicitors without success. More recently, between 2020 and 2022 the Trustees exchanged correspondence with at least 19 different law practices seeking representation in the proposed claim against Tibra, but they were rebuffed on each occasion. The law practices included many well-known national practices. There are several other law practices that the trustees wrote to but received no response. 68 The plaintiffs' argument, which is ingenious and specious in equal measure, proceeds as follows: (1) Section 78 of the Judiciary Act 1903 (Cth) gives to the parties in every court exercising federal jurisdiction the right to appear "personally". (2) That right extends to corporations with reference to s 2C(1) of the Acts Interpretation Act 1901 (Cth) which provides that expressions used to denote persons generally include a body corporate as well as an individual. (3) A corporation appearing in court by a director does not do so by an agent, but does so personally because a director so acting is not acting for the company but is acting as the company; the director is an embodiment of the company: Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 170; Hamilton v Whitehead [1988] HCA 65; 166 CLR 121 at 127. (4) If a corporation is denied the right to appear personally in the form of a director by, for example r 4.01(2), then, also by s 78 of the Judiciary Act, the corporation has the right to appear by a barrister or solicitor. (5) The right to legal representation has its origin in the Constitution as is apparent from the observation of Gleeson CJ and Heydon J in APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; 224 CLR 322 at [30] that "[t]he effective exercise of judicial power, and the maintenance of the rule of law, depend upon the providing of professional legal services so that citizens may know their rights and obligations, and have the capacity to invoke judicial power." In the same case, Gummow J (at [183]) said that "s 78 confers on a party who does not wish to appear in person the right to the services of lawyers who are admitted to practice." Support is also drawn from [329]-[332] per Kirby J (although it is to be noted that his Honour was in dissent). Reference is also made to Brennan J's description of the "cab-rank rule", being the duty of counsel to accept any brief that is offered to them at a reasonable fee provided it is in the field in which the counsel ordinarily practices and they are not otherwise committed, in Giannarelli v Wraith [1988] HCA 52; 165 CLR 543 at 580. (6) Every right has a correlative duty, and the duty that corresponds to a corporation's right to appear represented by a lawyer is the lawyer's duty to represent the corporation. (7) Despite reasonable endeavour, the plaintiffs have failed in their efforts to appoint a lawyer for Asgard because the lawyers have unreasonably refused instructions. (8) There is no mechanism in the law to compel a lawyer to act where they are unwilling to do so. (9) Therefore, the laws of the Commonwealth are insufficient to carry a law of the Commonwealth (being s 78 of the Judiciary Act) into effect, or to provide adequate remedies, within the meaning of s 80 of the Judiciary Act with the result that the common law in Australia, so far as is applicable and not inconsistent with the Constitution, shall govern. Reference is made to Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; 244 CLR 638 at [27]. (10) The common law is deficient in this respect as it also does not provide a remedy to enforce the duty on lawyers, so the gap must be filled by developing the common law in the reasoning of the Court in justifying an order establishing a process by which a lawyer can be compelled to act. 69 As mentioned, the remedy that is sought is that the Court specify a procedure whereby a lawyer can be invited to act and be required to show just cause if they refuse. It is said that the Court can specify such a procedure under r 1.21 of the Rules. That rule provides that a person who wants to start a proceeding, or take a step in a proceeding, may apply to the Court for an order about the procedure to be followed if the procedure is not already prescribed or the person is in doubt about the procedure. 70 The plaintiffs' case for the relief that they seek falls down at a number of steps along the way. It is not necessary to deal with each step. It suffices to deal with a few. 71 First, the right to legal representation in s 78 of the Judiciary Act is a right that operates against the state, ie, the executive government - it means that a person cannot be prevented from being represented by a lawyer in a court of law. It is not a right that can operate against individual lawyers compelling them to act for someone when they do not wish to. The common law of Australia does not recognise a right of an accused person whose liberty is at stake to be provided counsel at public expense: Dietrich v The Queen [1992] HCA 57; 277 CLR 292. There is even less justification for imposing a duty on lawyers to represent a corporation in a dispute about money, even if the corporation is willing to pay. 72 Secondly, even if it did operate against individual lawyers, the remedy that is sought, ie, that the Court set out a procedure for its enforcement rather than seeking an order against an identified lawyer, is beyond the scope of judicial power. Section 80 of the Judiciary Act provides for the picking up and application, as surrogate federal law, of the common law of Australia as modified by the statute law of the relevant State or Territory. It does not give to the Court the power to fill so-called gaps in the common law by, in effect, legislating rules. As explained by Brennan J in Dietrich at 320, "[c]hanges in the common law are not made whenever a judge thinks a change desirable. There must be constraints on the exercise of the power, else the courts would cross 'the Rubicon that divides the judicial and the legislative powers'." 73 Thirdly, there is no statutory rule or common law principle that a solicitor must act when a client seeks their services. There is no equivalent of the "cab rank" principle in the Australian Solicitors' Conduct Rules. See also Arthur Hall & Co v Simons [2002] 1 AC 615 at 677 per Lord Steyn and 714 per Lord Hope of Craighead. Lord Steyn discussed the nature of the cab-rank rule as follows (at 678-679): It provides that barristers may not pick and choose their clients. It binds barristers but not solicitor advocates. ... It is a valuable professional rule. But its impact on the administration of justice in England is not great. In real life a barrister has a clerk whose enthusiasm for the unwanted brief may not be great, and he is free to raise the fee within limits. It is not likely that the rule often obliges barristers to undertake work which they would not otherwise accept. 74 Thus, even if the cab-rank rule were to apply to solicitors, it is not of such a nature that, in practice, lawyers are often (or ever) compelled by a court to accept work they would rather not accept. As observed by Brennan J in Giannarelli at 580, if the cab-rank rule is in decline, it would be the duty of the leaders of the Bar and of the professional associations to ensure its restoration in full vigour. 75 Fourthly, it is not established that the plaintiffs have been unable to obtain legal representation for Asgard because, as they submit, theirs is an unpopular cause. It is true that a substantial number of the law practices that they approached were either essentially unresponsive or declined to act without apparently offering any reason. There are, however, a number of others who did or may have offered a reason but if they did so, what the reason is has been withheld from the Court. The reason may be that the proposed claim is regarded as unmeritorious, or Catherine and James have not accepted the advice of the lawyers, or the law practice may have been put off by the prior judgments canvassed above or, indeed, the law practice may have been put off by the manner in which the plaintiffs engaged with it. An example of the latter possibility is the reason given by a solicitor, after some correspondence with the plaintiffs, for withdrawing his offer to provide legal services: "As you appear to have an excellent grasp of legal principles, our involvement with your problems would appear superfluous." 76 It is certainly counter intuitive, and against one's lived experience in the legal profession over quite a long time, to conclude that no law practice would take on a commercial case that has reasonable merit for a reasonable fee. There would appear to be something else going on here, and it is not apparent that it has anything to do with the plaintiffs' cause being unpopular; there is no reason why if it has reasonable merit it would otherwise be regarded as unpopular. 77 The relief sought in prayer 4 of the originating process must accordingly also be dismissed.

Disposition 78 For those reasons, the proceeding must be dismissed.

Notice of discontinuance 79 Late in the afternoon of Tuesday 16 May 2023, my Associate emailed the plaintiffs advising them that judgment would be delivered at 9.30am on Thursday 18 May 2023. The reasons for judgment were at that stage ready for delivery save for some final proofing to be done during the day on 17 May. 80 On the morning of Wednesday 17 May 2023, my Associate was advised by an officer in the registry of the Court that the plaintiffs had physically lodged for filing at the registry a notice of discontinuance on Form 48 as provided for in r 26.12(1). The document records the following (as written): Catherine Alexis Tydeman and James Scott Tydeman, the Plaintiffs discontinue the whole of the proceeding. Each party consents to the discontinuance. 81 The document is (on the face of it) signed by both Catherine and James in their respective capacities as plaintiffs. It is signed by them again, this time in their capacities as directors of the defendant, Asgard, thereby indicating the defendant's consent to the discontinuance. 82 It not being immediately clear to me that the plaintiffs were entitled to file the notice of discontinuance without the leave of the Court, I directed the Registrar under r 2.27(f) of the Rules that the notice of discontinuance not be accepted for filing without the Court's leave. On my instruction, my Associate then emailed the plaintiffs (at about midday) advising them that I had made that direction and that the matter would be listed for interlocutory hearing at 9.30am the following day (ie, at the time that they had previously been told that judgment would be delivered) at which they were invited to make submissions on the following matters: (1) Why the notice of discontinuance should be accepted for filing, or why leave should be granted for it to be filed. (2) Why the notice of discontinuance is not an abuse of process of the Court within the meaning of r 2.26. (3) Why judgment should not be delivered even if the notice of discontinuance is accepted for filing. 83 The plaintiffs were also invited to put on any explanation by way of affidavit in support of any submissions on those points. 84 On the matter being called, Mr A E Hopkins of counsel appeared for the plaintiffs. He made the following submissions: (1) The plaintiffs are entitled to file the notice of discontinuance because the defendant consented to its filing. The defendant is an "opposing party" (whose consent is required and sufficient) because relief was sought against the defendant. (2) Alternatively, if leave was required it should be granted, essentially for the same reason. Additionally, it was said that there was no purpose in judgment being delivered, which would be the effect of denying leave, when the plaintiffs no longer sought the relief claimed in the originating process and the defendant not only consented but would also not be prejudiced. (3) The notice of discontinuance is not an abuse of process because by its nature it seeks to bring about an end to a proceeding thereby saving further burden on public resources. (4) If the notice of discontinuance is allowed to be filed and is filed, no judgment on the principal case should be made and no reasons should be published. That is because there would no longer be any relief sought on which judgment could be pronounced. 85 On inquiry, Mr Hopkins explained that the reason why the plaintiffs sought to file the notice of discontinuance was because they did not want reasons for judgment to be published and made public. That was said to be for "confidentiality and personal reasons". Mr Hopkins submitted that if I was not satisfied with those reasons as explained by him from the bar-table, the plaintiffs sought an adjournment for a day or two to enable an affidavit to be prepared and filed. 86 It is convenient to deal first with the notice of discontinuance. Rule 26.12 relevantly provides that a party claiming relief may discontinue a proceeding by filing a notice of discontinuance, and that that can be done before judgment has been entered in the proceeding "with the opposing party's consent" (r 26.12(2)(b)) or at any time "with the leave of the Court" (r 26.12(2)(c)). The plaintiffs have sought to bring themselves within the provisions of r 26.12(2)(b) by seeking to file the notice of discontinuance without leave. The question is whether that is correct. 87 In my view it is not because there is no "opposing party" whose consent can enable the filing of the notice of discontinuance without leave. Although Asgard is the named defendant, there are three considerations which tell against it being characterised as "the opposing party" for the purpose of the rule. 88 First, Asgard, as mentioned, filed a submitting notice. The terms of that notice are that Asgard "submits to any order the Court may make in the proceeding" and that it "does not want to be heard on the question of costs". Asgard has not sought leave to withdraw its submitting notice, as it is entitled to do under r 12.01(3). 89 Secondly, the Court is concerned with substance rather than form. In substance, Asgard is owned and controlled by the plaintiffs and, as such, cannot be regarded as being in opposition to them - it merely takes the position that they cause it to take. To characterise Asgard as being opposed to the plaintiffs in the principal relief that they seek would be to perpetuate a fiction. 90 Thirdly, the relief in prayers 2, 3 and 4 is not in substance sought against Asgard but rather for Asgard's benefit. Asgard is the subject of the derivative action relief, but that relief was sought in order to benefit Asgard by enabling it to fulfil its duties as trustee without having to satisfy the requirement of being represented by a lawyer. Although the injunction sought in prayer 3 is nominally against Asgard, that was also sought for Asgard's benefit in order to avoid it having to be represented by a lawyer. The relief sought in prayer 4 was designed and intended to operate against lawyers generally for Asgard's benefit. It was not to operate against Asgard. 91 Asgard not being an opposing party, the Court's leave is required under r 26.12(2)(c) to file the notice of discontinuance. Attention must then turn to whether leave should be granted. 92 With reference to SCI Operations Pty Ltd v Trade Practices Commission [1984] FCA 52; 2 FCR 113 at 142-143 per Sweeney J, 161-162 per Lockhart J and 184-185 per Sheppard J, and Trade Practices Commission v Manfal Pty Ltd (No 3) (in liq) [1991] FCA 831; 33 FCR 382 at 383-384 per Lee J, and more recent cases which I have considered and which do not appear to depart from those cases, the principles applicable to the grant of leave to file a notice of discontinuance can be summarised as follows: (1) The discretion whether to grant leave is wide and unfettered. (2) It is generally undesirable to compel a party to pursue litigation it no longer wishes to pursue. (3) However, consideration should be given to all relevant circumstances. (4) Those circumstances include whether discontinuance against one respondent may impose injustice on another respondent by removing an advantage that respondent may otherwise enjoy in the proceedings. (5) It is relevant to have regard to whether the discontinuance would make any difference to the burden of litigation undertaken by the applicant and whether the application to discontinue results from a conclusion that the litigation cannot succeed or is inspired by other reasons. 93 There are a number of considerations that weigh against leave being granted in this case. 94 First, there is no satisfactory explanation of why the plaintiffs seek to discontinue the proceeding on the eve of judgment being delivered, particularly considering that they have put significant effort into the proceeding since long before it was formally commenced in October 2022, ie, some seven months ago. They have not pointed to any change of circumstances. In bringing the case, there was always the likelihood that it would end with a public reasoned judgment. The explanation that they wish now to avoid that is therefore not compelling. It is also contrary to the principle of open justice as expressed in ss 17 and 37AE of the Federal Court of Australia Act 1976 (Cth). In circumstances where the hearing took place in open court and there was no suppression of any of the evidence that was adduced, it is too late to come after the fact and seek to avoid a public judgment, particularly where no prejudice is identified. 95 It is also to be noted that not only were the plaintiffs content for the matter to be heard in open court, but the same events have been aired on numerous occasions in open court and in numerous previous judgments as detailed above. 96 In the circumstances, the most reasonable and obvious inference to draw is that in the hearing the plaintiffs sensed which way the wind might be blowing on their principal relief and seek by filing the notice of discontinuance to avoid the dismissal of that relief. 97 I interpose to mention that I refuse the application for an adjournment, if that is what it was, to put on evidence on the question of why the plaintiffs seek to discontinue the proceeding. They have had since midday yesterday to do that, or at least to give instructions to counsel what their evidence would be and what prejudice they will suffer. All that counsel was able to tell me is that they do not wish to have a public judgment. That is not enough. This case cannot be kept going on such a flimsy basis. There is also a suggestion that the plaintiffs no longer require the relief because they have now as directors of Asgard resolved that Asgard bring the contemplated proceeding. Even assuming that to be the case, that does not address the other relief which was sought for the benefit of Asgard in the contemplated proceeding. 98 Secondly, the plaintiffs have put the Court to the time and trouble of several case management hearings and a final hearing lasting several hours, and the preparation of extensive reasons for judgment on a number of novel propositions. The constitutional issues they have raised required the filing and service of a notice on all the Attorneys-General under s 78B of the Judiciary Act, which has in turn required staff in the offices of all the Attorneys-General to consider the notice and advise on what course should be taken. As it turned out, no Attorney chose to intervene, but consideration of the issues was required and decisions still had to be made. 99 The point is that this proceeding has imposed upon the time and resources of many people and institutions and a decision is now ready to be published. If leave to discontinue is granted, the issues will remain open and the plaintiffs will be able to start again in one form or another and duplicate the burdens that they have imposed. There is therefore a public interest in leave being refused and judgment being delivered. 100 Thirdly, the plaintiffs in one form or another have also burdened other courts, particularly the Supreme Court of New South Wales, in pursuing claims arising from the same underlying transaction. Some of the history of that is dealt with above where the published judgments are discussed. It is important that any future court that might be faced with another manifestation of the plaintiffs' ongoing obsession with the same underlying dispute has available to it a record of the events of this case. 101 I am, of course, mindful that as a general proposition a plaintiff should not be compelled to continue a case it no longer wishes to pursue. However, the authorities make it plain that other interests also need to be considered. In my view, to allow the proceeding to be discontinued at this late stage and thereby prevent an already prepared judgment from being delivered would be wasteful of the Court's resources and potentially prejudicial to the interests of this and other courts and the prospective defendants in possible future cases. 102 For those reasons I refuse the plaintiffs leave to file a notice of discontinuance. I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.