WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Delivered ex tempore, revised from transcript

1. On 13 June 2025, I published my reasons in WIJOAV Services Pty Limited v Goldstone Private Equity Pty Limited [2025] FCA 622 (the Principal Judgment). The defined terms used in this judgment bear the same meaning as in the Principal Judgment. The Principal Judgment dealt with all issues except:

(a) the price of any buy-out order under s 233 of the Corporations Act 2001 (Cth) (Act); and

(b) the quantification of any pecuniary remedies to which the plaintiffs may be entitled.

1. I said at [8] of the Principal Judgment that I anticipated dealing with those remaining matters in November 2025.
2. On 23 June 2025, I made orders for preparing the remaining issues for hearing and listed the matter for hearing in November 2025 with an estimate of three days, being the parties' then estimated length. As soon as I became aware of my Full Court commitments in November, I fixed the matter for hearing for three days commencing 24 November 2025, being dates which suited the convenience of the parties. On 9 July 2025, I ruled on contested discovery applications in relation to the remaining issues.
3. On 26 August 2025, I made orders by consent varying the timetable made on 23 June 2025, such that the dates for:

(a) the filing of the plaintiffs' evidence in chief, including expert evidence, was extended to 18 September 2025;

(b) the filing of the defendants' evidence in chief, including expert evidence, was extended to 21 October 2025;

(c) the filing of the plaintiffs' evidence in reply was extended to 5 November 2025; and

(d) the filing of the parties' written submissions was extended to 13 November 2025.

1. By interlocutory application dated 15 October 2025, the Angelis Defendants seek orders vacating the hearing date and extending the time for the filing of their evidence until 27 February 2026. The interlocutory application does not seek any orders for additional discovery by the plaintiffs.
2. On 18 September 2025, the plaintiffs' solicitors indicated that their evidence was anticipated to be served the following week. On 26 September 2025, just before midnight, the plaintiffs served an affidavit of Ms Commins and an expert report of Mr Eversgerd, and foreshadowed two further expert reports to be filed the following week in relation to the valuation of Ms Commins' shares in Goldstone PE and Goldstone FM and her loss and damage.
3. On 3 October 2025, the solicitors for the Angelis Defendants wrote to the plaintiffs complaining about the plaintiffs' delay and proposed a vacation of the hearing dates in November. On the same day, the plaintiffs served a second expert report by Mr Eversgerd, thereby completing service of their evidence in chief.
4. On 4 October 2025, the plaintiffs' solicitors indicated that they did not agree to the vacation of the hearing dates and proposed an extension to the date for the defendants' evidence to 31 October 2025, with the date for the plaintiffs' evidence in reply to be extended to 7 November 2025, and the date for the parties' written submissions to be extended to 19 November 2025.
5. I was on leave from 29 September to 4 October 2025 and was unable to deal with this matter until today. The matter came before the duty judge in my absence on 20 October 2025, who vacated the orders requiring the defendants to serve their evidence in chief by 21 October 2025 and for the plaintiffs' evidence in reply by 5 November 2025.
6. Mr Storer, the solicitor with carriage of the matter for the Angelis Defendants, says that on 9 September 2025, his firm engaged Mr Andrew Ross to provide expert evidence and Mr Ross estimates that he will require nearly four months to respond to the plaintiffs' evidence after the receipt of certain requested information. Mr Storer's affidavit of 27 October 2025 seeks to explain the fact that the Angelis Defendants waited almost three months from the date when the Principal Judgment was given to engage Mr Ross, despite my indication then (and confirmed by order 8 on 23 August 2025) that I anticipated hearing the remaining issues in November.
7. Mr Storer says that, to the best of his knowledge, a "carried interest" entitlement has not previously been valued for the purposes of an Australian proceeding involving a compulsory purchase order of carried interest under ss 232 and 233 of the Act. He says that in late July 2025 (that is about six weeks after the Principal Judgment was given), he considered a number of decisions in the United Kingdom involving the valuation of carried interest, and instructed an Ashurst lawyer to identify a list of potential expert witness candidates based on expert witnesses who had provided valuation evidence in those decisions. In addition, in early August 2025, Mr Storer conducted his own research in relation to potential expert witness candidates in the UK for valuing "carried interest". In mid-August 2025, the solicitors for the Angelis Defendants arranged conferences with Ms Sue Tilstone, a partner at Deloitte UK, and Mr Ed Higgs, a partner at BDO UK.
8. On about 20 August 2025 (that is, about two months after the Principal Judgment), Ashurst contacted two expert witnesses in Australia, Mr Andrew Ross and Mr Tony Samuel, although the latter had a conflict and was unable to accept an engagement.
9. On 22 August 2025, the solicitors for the Angelis Defendants had a conference with Ms Tilstone and arranged a conference with Mr Higgs to occur on 26 August 2025 (although he did not attend that conference and another partner at BDO UK did so instead).
10. Mr Storer says that ultimately he formed the view that it would be better to engage an expert witness based in Australia with specific experience in relation to oppression hearings, because he was concerned it would be logistically difficult to work with an expert based in the UK, and he considered that an Australian valuation expert could likely address the valuation issues in the case, despite the asserted novel nature of the interest to be valued. Mr Storer also considered that it would be an advantage to engage an expert witness with experience of giving evidence in Australian proceedings and who was familiar with the Australian legal regime for valuations in Australian oppression cases.
11. As indicated above, the Angelis Defendants engaged Mr Ross on 9 September 2025. The legal representatives for the Angelis Defendants had an initial conference with Mr Ross on 15 September 2025, that is about three months after the Principal Judgment had been delivered.
12. I do not regard Mr Storer's explanation as sufficient to establish that he and the Angelis Defendants acted reasonably quickly and efficiently in engaging Mr Ross. In particular, the fact that about three months elapsed between the Principal Judgment and the initial conference with Mr Ross has not, in my view, been adequately justified.
13. Mr Storer also says in his affidavit of 15 October 2025 that the Angelis Defendants were then seeking to obtain expert evidence from a specialist in private equity fund structuring and transactions, and Mr Storer's later affidavit of 27 October 2025 indicates that a communication has been sent to one potential expert but no response had yet been received. The communication was not sent until 24 October 2025, being last Friday.
14. Mr Storer's evidence is also that the Angelis Defendants intend to serve an affidavit from Mr Angelis and that they may call up to six lay witnesses, including Mr Angelis.
15. An affidavit by the plaintiffs' solicitor, Ms Park, indicates that Ms Commins will suffer prejudice if the hearing is delayed. In particular, Ms Commins is currently seeking to re-establish her own private equity fund, AVC Enterprises, and the fact that she remains a party to ongoing litigation negatively impacts her ability to do so because:

(a) until the litigation is concluded, Ms Commins has to commit significant time and resources to the proceedings that she could otherwise commit to re-establishing AVC Enterprises;

(b) the discovery orders of 9 July 2025 require Ms Commins to make ongoing discovery to the Angelis Defendants of documents relating to the re-establishment of her new fund, including correspondence with actual or potential investors, business plans and financial information for the new fund, as and when such documents are created. Ms Commins considers that such documents are commercially sensitive as AVC Enterprises is in direct competition with the Angelis Defendants for capital, investor relationships and future investment opportunities in target investee companies;

(c) Ms Commins is also concerned that the perceived financial and reputational risks associated with ongoing litigation will reduce prospective investors' confidence in the new fund and deter them from investing, and negatively impact potential recruits and new hires for her new fund, and this will further delay her ability to move on and re-establish her new fund.

1. Mr Storer estimates that if the Angelis Defendants are granted the extensions which they seek for their evidence, the hearing will require about ten days. As matters presently stand, I would not be able to hear a matter of that length until the two weeks commencing 11 May 2026.
2. The Angelis Defendants are entitled at least to an extension of time for their evidence beyond the deadline to which they consented on 26 August 2025, corresponding to the delay by the plaintiffs. That delay was a period of eight days for most of the plaintiffs' evidence, and a period of fifteen days for the expert evidence concerning the valuation of Ms Commins' shares in Goldstone PE and Goldstone FM, and her loss and damage. The real question is whether the Angelis Defendants should be granted any further extension, such as would require the hearing date to be vacated. I approach that question bearing in mind the overarching purpose of the civil practice and procedure provisions set out in s 37M of the Federal Court of Australia Act 1976 (Cth), namely, to facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible.
3. As I have indicated above, I do not regard Mr Storer's evidence as to why the Angelis Defendants did not engage Mr Ross until 9 September 2025 as providing an adequate justification. The Angelis Defendants knew from 13 June 2025 that I expected the hearing of the remaining issues to take place in November, which was confirmed by order 8 on 23 June 2025. An expert retained promptly in June 2025 would ordinarily have made very substantial progress in analysing the issues concerning valuation well before seeing the plaintiffs' evidence. Mr Storer's evidence conveyed the impression that Mr Ross would not be able to provide any evidence until February 2026, although I was informed by Senior Counsel during the hearing that in fact Mr Ross could provide his own valuation of the carry entitlement in time for a November hearing.
4. The fundamental problem, it is said by the Angelis Defendants, lies in Mr Ross being able to deal with the potential bolt-on acquisitions by Neighbourly and Parabellum referred to in the plaintiffs' evidence, and it is submitted that even if Mr Ross had been engaged promptly in June 2025, that difficulty would still remain. An email of 14 October 2025 recording comments by Mr Ross to the solicitors for the Angelis Defendants supports that submission, in that Mr Ross is quoted as saying that the largest part of the three to four months is considering the unidentified bolt-ons, referring to there being ninety-three possibilities for the two companies and even considering the strongest ones, there were over twenty entities.
5. It appears to me that the present difficulty for the Angelis Defendants in being able to critique the approach taken by the plaintiffs in their evidence would exist irrespective of what strikes me as unjustified delay by the Angelis Defendants in engaging an expert witness. Even if Mr Ross's estimate of the time required were significantly less than the three months or so presently estimated, it does not appear to me to be realistic to think that such evidence could be prepared in sufficient time for a hearing on 24 November 2025. It would be unsatisfactory for the trial to proceed without the Angelis Defendants having a fair opportunity to undertake that task and to present their evidence in an orderly fashion. I recognise that any delay in the hearing will cause prejudice to Ms Commins which cannot be met by an order for costs, and I take that prejudice into account.
6. In all the circumstances, and with considerable misgivings, in my view, the appropriate course is to vacate the hearing in November and to set the matter down for two weeks, commencing on 11 May 2026.

I certify that the preceding twenty-five 25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.