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. The matter was listed today to deal with any dispute as to discovery categories in relation to the remaining issues of valuation and quantification of pecuniary remedies following my judgment on 13 June 2025 in WIJOAV Services Pty Limited v Goldstone Private Equity Pty Limited [2025] FCA 622. I adopt the same abbreviations as in that judgment. The parties have exchanged proposed discovery categories.
2. The Angelis Defendants seek a preliminary determination as to the appropriate date and a deferral of discovery until the valuation date is determined. There is no formal application for the determination of a separate question under r 30.01 of the Federal Court Rules 2011 (Cth) or for a variation to the orders I have already made under r 30.01. That casual approach is itself fatal; however, I will deal with the substance of the matter lest the issue resurface on a formal application in the next few days.
3. The authorities concerning the appropriate date for valuation of shares under a compulsory buyout order for oppression were helpfully and thoroughly reviewed by White J in Short v Crawley (No 30) [2007] NSWSC 1322 at [1237]-[1254]. The overriding requirement is that the valuation should be fair on the facts of the particular case: [1237] and [1246]. The controversy is often between the date of commencement of the proceedings and the date on which the shares are ordered to be purchased, although in the present case, the Angelis Defendants seek an intermediate date.
4. The factors which can affect the selection of the appropriate date include whether the value has fallen since the oppressive conduct or the commencement of the proceedings, whether a company has been reconstructed or its business changed significantly, whether the market generally has risen or fallen, whether the oppressive conduct has caused a depreciation in value, and whether the parties acted reasonably in making or rejecting offers of compromise. In the present case, an additional factor is likely to be the significance of the plaintiffs' contention foreshadowed in their opening submissions, that in the context of private equity investments, generally accepted valuation practice looks to a timeframe of five or so years in the future. Whether that is supported by expert valuation evidence remains to be seen.
5. The Angelis Defendants' argument, in essence, is that if they are correct in submitting that the appropriate valuation date is 1 April 2025, then much of the discovery sought by the plaintiffs will be irrelevant, and problems concerning the confidentiality of documents in relation to Neighbourly and Parabellum will be avoided. There is no evidence supporting the proposition that many of the categories of discovery which are focused on forecasts and plans, or strategies for the future would be irrelevant even if 1 April 2025 were the appropriate date. I do not for my part, as untutored as that may be, see why such documents would be irrelevant to the formation of an expert opinion as to value as at 1 April 2025. There seems to me to be a reasonable basis to think that a willing but not overanxious buyer, as at 1 April 2025, would take an interest in such documents in its due diligence in offering a price for the relevant investment. Further, questions as to confidentiality can be dealt with as they arise, and if not agreed between the parties, then they can be resolved by the court.
6. More fundamentally, as a matter of principle, the appropriate date for valuation depends on fairness, as applied to all the circumstances of the case. Those circumstances point towards a broad rather than a narrow dispute and seem to me likely to include:

(a) questions as to generally accepted valuation methodology in the context of private equity investments, which may well depart in fundamental respects from more typical share valuations;

(b) the role of Ms Commins in generating what was, and would hypothetically have been in the future, the financial position of the Goldstone Fund and its underlying investments; and

(c) the current and likely future movements in the value of the underlying investments, including both general market movements and idiosyncratic factors in relation to the particular investments involved in this case.

1. The Angelis Defendants also admit that unless I determine the valuation date now, the rival experts will proceed on different assumptions and not engage with each other. I reject that submission. Expert evidence can be given on alternative assumptions, and I see no reason why the expert valuers could not do so here.
2. Further, the position advanced by the Angelis Defendants would involve a realistic possibility of an application for leave to appeal from any decision as to the appropriate valuation date, which will likely disrupt my present plans of hearing the remaining questions in the month of November 2025.
3. Accordingly, I reject the Angelis Defendants' submissions as to a separate determination of the valuation date.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.