WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd

JAMES ANGELIS (and others named in the Schedule)

1. Pursuant to rule 39.05 of the Federal Court Rules 2011 (Cth), Order 5 of the orders of Justice Moore made on 7 March 2025, and Order 2 of the orders of Justice Shariff made on 11 March 2025 be vacated.
2. The third and fourth defendants be released from the undertaking recorded in paragraph 1 of the orders of Justice Jackman made on 14 April 2025.

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

Delivered ex tempore, revised from transcript

1. I delivered judgment in this matter on 13 June 2025: WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Limited [2025] FCA 622 (the Principal Judgment). In these reasons I adopt the defined terms used in the Principal Judgment. I found, among other things, that the affairs of Goldstone PE and Goldstone FM had been conducted oppressively and ordered that WIJOAV's shares and Ms Commins' Limited Partnership interests be compulsorily purchased by the Angelis Defendants at a fair value to be determined by the Court.
2. The Angelis Defendants now apply to discharge the interlocutory orders and undertakings made prior to judgment. They are as follows:

(a) Order 5 of the orders made by Moore J on 7 March 2025 (as extended until further order by Shariff J on 11 March 2025), namely, upon the plaintiffs by their counsel giving the usual undertaking as to damages until 4.15 pm on 11 March 2025 or further order of the Court, the defendants be restrained from taking any step to remove or replace the second plaintiff as a director of the first defendant and/or the second defendant or to act upon or give effect to the second plaintiff's purported removal from or purported vacation of the position of a director of the first or second defendant; and

(b) the undertaking to the Court given by the third and fourth defendants on 14 April 2025, as recorded in the orders which I made on that date which, in effect, prevents them, until the determination of the proceedings, from proceeding with certain transactions or resolutions affecting the Goldstone Fund or its portfolio companies (including Neighbourly), including any step that would result in the removal of Ms Commins as a director of Neighbourly without giving prior written notice to the plaintiffs (including specified disclosures) and without obtaining either the plaintiff's written consent or a further of the Court.

1. As I said in the Principal Judgment at [176] and [177], the Goldstone Fund must now be governed by a single decision-making structure. There is a necessity for timely and coherent decision-making in circumstances where there are starkly divergent views between the parties, and decisions must be made in relation to the Goldstone Fund and its portfolio investments which require certainty as to the ongoing ownership of the shares and Limited Partnership interests. I also found that the effect of the 1 April 2025 Resolutions was that Goldstone PE and Goldstone FM (as well as the VCMP) have no meaningful role to perform in the Goldstone Fund structure (see [166]). The Resolutions, while oppressive, were legally valid and remain in place.
2. The Angelis Defendants submit, and I accept, that the relief ordered was intended to produce a clean and final separation of control and ownership subject only to the valuation and damages process. The continued operation of interim governance constraints would frustrate that intention. I should also make clear, contrary to a submission made by the plaintiffs, that I have not myself re-appointed Ms Commins to her role as managing director of Goldstone PE. Rather, I have found that her termination was invalid and, therefore, by operation of law, her Executive Employment Agreement remains on foot. However, Goldstone PE no longer has a meaningful role to perform in the operations of the Goldstone Fund.
3. Contrary to the submission made by the plaintiffs, the preservation of these interim orders and undertakings cannot be justified on the basis that the realisation of Fund assets might affect questions of valuation. I have ordered that the valuation be conducted on the basis of the structure as at 31 March 2025 (Order 6) and I have left the valuation date to be fixed in due course. Any expert engaged in the valuation process will proceed on that basis, regardless of whether actual realisations have occurred. There is no requirement to, in effect, freeze Fund operations pending that exercise.
4. The plaintiffs are not prejudiced in maintaining their position that the valuation should proceed on the basis of a sale in about 2029, merely by the possibility of assets being realised before the valuation hearing has been conducted and decided. Any sale price actually realised this year will not determine the fair value which might have been realised on a more typical private equity realisation timeframe, and whether it has any relevance at all to the fair valuation of Ms Commins' Carry Entitlement cannot be decided in the abstract in advance of the hearing on that issue. Any concern about the timing of the Carry Entitlement has been addressed by the execution of the Deed Poll (Exhibit 7) under which Goldstone Capital has undertaken to pay Carry Entitlements in accordance with the VCLP Deed as and when they become payable.
5. I note also that I have made an express order restraining the defendants from enforcing the restraint of trade provisions in cl 3.4 of the Shareholders' Deed (Order 8) and found that it would compound the oppression which has already occurred if the plaintiffs were not free to deploy their abilities and resources in a substantially similar way in the future (at [184]). Ms Commins is, therefore, no longer restrained from competing with the Goldstone Fund. There is nothing preventing her from establishing or joining another fund consistently with her own investment philosophy or governance preferences. Accordingly, I make the orders in the form set out in the draft orders provided to me by the Angelis Defendants.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.