FEDERAL COURT OF AUSTRALIA KTC v David (Summary Dismissal) [2020] FCA 1012 File number: NSD 555 of 2019 Judge: PERRAM J Date of judgment: 17 July 2020 Catchwords: PRACTICE AND PROCEDURE – application for leave to file and serve further amended statement of claim – where proposed pleading is third attempt against Fourth and Fifth Defendants – where allegations made that Fourth and Fifth Defendants liable under second limb of Barnes v Addy (1874) LR 9 Ch App 244 – whether pleadings sufficiently allege dishonest and fraudulent designs – whether pleadings sufficiently allege knowledge of Fourth and Fifth Defendants – where Fourth and Fifth Defendants challenge pleading of underlying fiduciary duties – where Fourth and Fifth Defendants oppose granting leave to replead Legislation: Federal Court Rules 2011 (Cth) r 16.02(1)(d) Cases cited: KTC v David (Pleadings) [2019] FCA 1566 KTC v Singh [2018] NSWSC 1510 Date of hearing: 20 December 2019 Date of last submissions: 12 February 2020 (Plaintiff) Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 43 Counsel for the Plaintiff: Mr P Collinson QC with Ms M Loughnan QC Solicitor for the Plaintiff: HWL Ebsworth Lawyers Counsel for the First Defendant: Mr J A Hogan-Doran Solicitor for the First Defendant: Aitken Lawyers Counsel for the Second and Third Defendants: Mr R A Jedrzejczyk Solicitor for Second and Third Defendants: Ashurst Australia Counsel for the Fourth and Fifth Defendants: Mr A J L Bannon SC with Mr G E S Ng Solicitor for Fourth and Fifth Defendants: YPOL Lawyers ORDERS NSD 555 of 2019 BETWEEN: KTC Plaintiff AND: RODRIC DAVID First Defendant NAVEEN DAVID SINGH Second Defendant XALT PTY LTD ACN 147 571 033 (and others named in the Schedule) Third Defendant JUDGE: PERRAM J DATE OF ORDER: 17 July 2020 THE COURT ORDERS THAT: 1. The Plaintiff's interlocutory application of 5 November 2019 be dismissed. 2. The Plaintiff pay the Fourth and Fifth Defendants' costs as taxed, agreed or assessed. 3. The proceeding against the Fourth and Fifth Defendants be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PERRAM J: 1 The Plaintiff applies for leave to file a further amended statement of claim. The proposed further amended statement of claim was Exhibit 1 on the application. On 24 September 2019 I dismissed an earlier application by the Plaintiff to file a further amended statement of claim on the basis that the proposed pleading was not adequate. Since there appeared to me that there might be a case secreted somewhere inside the earlier pleading I granted the Plaintiff a further opportunity to put the pleading in order. The present application is the result of that attempt. 2 The background to the case appears in the earlier judgment and need not be repeated here: KTC v David (Pleadings) [2019] FCA 1566 ('First Reasons'). These reasons assume a working familiarity with the First Reasons. A description of the transactions leading to the present litigation appears in the First Reasons at [4]-[12] and the broad structure of the predecessor pleading at [13]-[16]. 3 The most recent application to amend was opposed substantively, as it was on the last occasion, by Gilbert + Tobin ('G+T'). Throughout these reasons references to G+T should be taken to include Mr Bullock. There are three broad topics: (1) Whether, as against G+T, the David GRL Share Conduct and the RAAL GRL Share Conduct have been adequately pleaded; (2) Whether, as against G+T, the David ECL Share Conduct and the RAAL ECL Share Conduct have been adequately pleaded; and (3) Whether, as against G+T, the RAAL and David Constructive Trust Fraudulent Scheme have been adequately pleaded. 4 These dense expressions are defined terms in the pleading now under consideration. Some light is thrown on them in what follows. 5 In relation to each of the topics G+T submits that if Exhibit 1 were a filed pleading then the allegations it contains against G+T would be struck out so that leave should not be granted to amend. For the reasons which follow, I agree. Issues Relating to GRL AND ECL SHARE CONDUCT 6 According to Exhibit 1, GRL is a company registered pursuant to the law of the Cayman Islands (§17(a)). Initially it had two shareholders, the joint venture vehicle Emergent (80 shares) and Mr Singh's company, SIL (20 shares) (§17(b)). On or about 21 January 2009 GRL acquired all of the share capital in GRA (§17(e)). GRA was the holding company of a group of companies which owned and operated the Eastern Creek waste management facility in Sydney (§14). As at 21 January 2009 the joint venture vehicle Emergent was equally held by the Kazals (through their vehicle KTC) and Mr David (through his vehicle RAAL) (§13(b)). 7 On 22 April 2010 the directors of GRL (being Mr Singh and Mr David) resolved to issue 60 ordinary shares in GRL to SIL (§41) ('the GRL Share Resolution'). The shares were issued on 30 July 2010. On 23 April 2010 Emergent and SIL entered into a shareholders' agreement. The basic allegation KTC makes against Mr David and Mr Singh is that these GRL shares were allotted for no consideration (§44). It is then said that the transaction diluted Emergent's interest in GRL (and consequently Emergent's interest in the waste management facility) from 80% to 50% thereby divesting Emergent of a 30% interest (§46). In effect the 80:20 joint venture between the Kazals and Mr David, on the one hand, and Mr Singh, on the other, became a 50:50 joint venture. 8 Because Mr David is the owner of RAAL the pleading makes parallel allegations against the entity which are structurally identical. Except where the context otherwise demands, I will dispense with any further reference to RAAL as the analysis for present purposes is the same as that which obtains in the case of Mr David. 9 The pleading alleges that Mr David's role in procuring the issue of the 60 ordinary shares in GRL to Mr Singh's company SIL was a breach of fiduciary duty which constituted a fraudulent and dishonest scheme (§§78, 82). That fiduciary duty is alleged to have been owed to KTC (§18). Relief is sought against Mr Singh (and a company associated with him XALT Pty Ltd), Mr David and G+T. In the case of Mr Singh relief is sought on the basis that he knowingly assisted in Mr David's fraudulent and dishonest scheme (§§65, 87, 88). His company XALT Pty Ltd is said to be liable as a knowing recipient in relation to certain funds (§§90-96). 10 In relation to G+T the case is that it knew that it was engaged in conduct to further Mr David's dishonest breach of fiduciary duty in causing GRL to issue the 60 shares to SIL (§99). That allegation is linked back to §§74, 75 and 76. §74 concerns allegations of the knowledge of Mr Bullock and §75 and §76 allege that this knowledge had certain qualities. One of the pleadings under attack, §74(m), is therefore concerned with that part of the case in which it is sought to demonstrate that Mr Bullock knew of certain matters. 11 Particular (ii) to §74(m) alleges that Mr Bullock advised upon two shareholders' agreements between Emergent and SIL. The first of these was dated 24 November 2009 ('the First Purported GRL Shareholders' Agreement'). Its existence is not pleaded as a material fact but its contents are described in the particulars to §62(n). §62(n) alleges that Mr Singh knew that SIL paid no consideration for the issue of the shares or alternatively only paid colourable or illusory consideration. The particulars to §62(n) are a complex pleading in themselves and really have no place in particulars. Their bottom line is this: the First Purported GRL Shareholders' Agreement between Emergent and SIL of 24 November 2019 provided for the issue to SIL of redeemable preference shares but this was unlawful because it had not been authorised by Emergent's board. On or around 23 April 2010 that agreement was then replaced by the second shareholders' agreement ('the Second Purported GRL Shareholders' Agreement') which made no reference to the redeemable preference shares. It is not alleged that the issue of the 60 ordinary shares occurred pursuant to the second shareholders' agreement only that the agreement 'refers' to the issue. The actual dispositional event in relation to the 60 ordinary shares is the GRL Share Resolution of 22 April 2010 with the allotment envisaged by the resolution occurring on 30 July 2010 ('the GRL Share Issue'). 12 It is alleged by KTC that the allotment of shares was for no consideration or a consideration which was illusory or colourable. It is alleged that Mr David and Mr Singh breached fiduciary duties in resolving to allot the 60 shares and that this was part of a dishonest design. Part of the design involved the alleged fact that the allotment of the shares to Mr Singh's company, SIL, was for no consideration or for a consideration which was illusory or colourable. For the balance of these reasons I will only refer to this allegation as an allegation that the allotment was for no consideration since for present purposes there is no difference between no consideration or consideration which is colourable or illusory. The dishonest design culminated in the allotment whose effect was to increase Mr Singh's interest in GRL (through his entity SIL) from 20% to 50% and to decrease Emergent's interest from 80% to 50%. 13 G+T is alleged to have acted for GRL, Emergent (the joint venture vehicle between Mr David and the Kazals), Mr David and his entity RAAL. G+T is alleged to have participated in Mr Singh and Mr David's dishonest design with the requisite degree of knowledge to be liable as an accessory. Two particular allegations which are made against G+T are that: (1) it advised that the allotment of the 60 shares to SIL was lawful (§72(e)); and (2) it knew that the allotment had been for no consideration (§74(m)). 14 G+T submits that the manner in which these two allegations have been particularised are not adequate. KTC alleges that the fact that G+T advised that the allotment would be lawful can be inferred from two facts (found in the particulars to (§72(e)): (1) G+T had been retained to advise in relation to and draft a series of transaction-related documents which preceded the allotment; and (2) One of those documents, 'the Second Purported GRL Shareholders' Agreement' referred to the issue of the GRL shares. 15 G+T submits that such an inference cannot be drawn from these two facts. It is necessary to deal with the transactional documents laid out in the particulars of §72(e) individually before assessing the validity of the submission. There were seven of the documents as follows, including the two shareholders' agreements I referred to above: (1) The 6 January 2009 Draft Terms Sheet. KTC alleges that this document embodied the actual way in which Emergent and SIL had been conducting the business of GRL since January 2009 (§62(n) particular (v)). The pleading does not allege what the arrangement embodied in this document was; (2) The later Draft GRL Shareholders' Agreements. These too are alleged to be the documents which embodied the actual way in which Emergent and SIL had been conducting the business of GRL since January 2009 (§62(n) particular (v)). As in the case of (1) the pleading makes no allegation about the content of these agreements nor does it indicate how they differed from the document in (1). From a pleading perspective (1) and (2) appear to be identical and I will treat them as such; (3) The April 2009 Draft GRL Shareholders' Agreement. The only allegation that the pleading makes about this document is that it was put before the board of Emergent on 13 November 2009 who resolved to fast track and finalise the review and signing of it (§62(n) particular (ii)). In particular, the pleading makes no allegation about the contents of this document; (4) The First Purported GRL Shareholders' Agreement. KTC alleges that this document was purportedly executed by Mr David, on behalf of Emergent and GRL on 24 November 2009 and that it differed from the document in (3) (§62(n) particular (iii)). This document is alleged to have contained a cl 9 which conferred upon SIL an entitlement to redeemable preference shares in GRL. It is alleged (§62(n) particular (iii)) that this agreement was not authorised by the board of Emergent and that no independent advice was given to the board; (5) The March 2010 Draft GRL Shareholders' Agreement. KTC alleges that in or around March 2010 a further draft shareholders' agreement was prepared. It is alleged that it contained a recital 1A (§62(n) particular (iv)). It is alleged recital 1A of this document had referred to the document in (4) as a prior agreement between the parties but that this had been expressly deleted and replaced instead with an assertion that Emergent and SIL had been conducting the business under 'an existing shareholders' agreement' since the completion of the purchase of GRL in January 2009. However, §62(n) particular (v) asserts that there was no such existing shareholders' agreement, only documents (1) and (2) above; (6) The Second Purported GRL Shareholders' Agreement. The pleading alleges that on 23 April 2010 Emergent and SIL purported to execute a further shareholders' agreement (§62(n) particular (vi)). It is alleged that this agreement did not confer any entitlement on SIL to redeemable preference shares and made no reference to the first shareholders' agreement in (4). It is also alleged that like the document in (5) it incorrectly referred to the fact that the business was being conducted under an 'existing shareholders' agreement' since January 2009. At §72(e) particular (ii) it is also alleged that this document 'refers' to the fact of the allotment of the 60 shares although the pleader goes no further than saying it is referred to. It does not allege, for example, that the allotment was required under the agreement; and (7) The GRL Share Issue. This is alleged to be the issue of the 60 ordinary shares on 30 July 2010 (§41). As such it is not a document but rather an event recorded, presumably, in the records of GRL. 16 On the assumption that G+T was retained in relation to each of the above documents and advised upon them, G+T submits that it is not possible to infer that G+T gave advice that the allotment was lawful as the pleading alleges at §72(e). The only documents which the pleading alleges actually involve the allotment of the 60 ordinary shares are documents (6) and (7), that is to say, the Second Purported GRL Shareholders' Agreement executed on 23 April 2010 and the GRL Share Issue itself. As I have noted, an additional fact alleged about the Second Purported GRL Shareholders' Agreement is that it 'refers' to the allotment of the 60 ordinary shares. I do not see conceptually how documents (1)-(5) can throw light on the question of whether G+T gave advice about an allotment of shares to which none refers or any envisions. Without knowing what the document in (6) actually says about the allotment of the 60 shares (beyond the fact it 'refers' to it), I do not see how advice about that document or the preparation of it could support an inference that advice would have been proffered by G+T that such an allotment would be lawful. 17 Making the assumption that G+T were asked to advise on and draft documents (1) to (7), I do not see how it can be inferred from them that G+T would have advised that the allotment was lawful. I do not think that the situation becomes any better considering (6) and (7) cumulatively or even, most beneficially, as somehow informed by the back history which was (1) to (5). If (1)-(7) were the facts found at trial I would commit appellable error if I inferred from them that G+T advised that the allotment was lawful. 18 KTC submitted that its argument about what could be inferred from the drafting of the documents by G+T could be aided by the fact that Mr Bullock was an expert in the area of mergers and acquisitions and the head of G+T's corporate advisory team and had been responsible for drafting the documents. But the drafting of the documents goes nowhere and the fact that Mr Bullock is a subject-matter expert does not really improve the situation. 19 I accept G+T's submission that §72(e) is not adequately supported by the subscribed particulars to it. I should add for completeness that as I note below the pleader appears to have overlooked including the allegation that G+T advised on and drafted the GRL Share Resolution (that is the directors' resolution to allot the shares on 22 April 2010). I say overlooked because that allegation is included as one of the particulars to §74(m). Assuming for the sake of argument that the GRL Share Resolution was taken also to be a particular to §72(e), it does not alter the analysis. The fact that G+T was retained to prepare and advise on the GRL Share Resolution does not permit one to infer what aspect they were asked to advise upon or what their advice was. 20 Dealing then with KTC's allegation that G+T knew that the allotment had been for no consideration, this appears at §74(m) of the pleading. It is supported by two particulars. The first of these is that G+T had been retained by GRL and advised GRL and Emergent on GRL's funding by RAAL and KTC. The pleading does not specify what was involved in 'GRL's funding by RAAL and KTC' but it is clear from several places that it assumes that KTC and RAAL did provide funding to GRL. For example, at §38(d) it is said in some particulars that GRL was at risk in November 2009 of being wound up unless KTC and RAAL provided funding. At many places it is alleged that Mr Bullock was advising GRL in relation to these funding activities: §62(g) particular (iii), §62(h) particular (iii), §62(i) particular (iii), §74 (the particulars of many sub-paragraphs including (m)). I do not see how the fact that Mr Bullock was providing advice to GRL on the continuation of funding from KTC and RAAL can rationally advance a case that G+T knew that a subsequent allotment of the 60 ordinary shares by GRL to SIL was for no consideration and I therefore do not accept that particular (i) to §74(m) can sustain the allegation in support of which it is proffered. 21 Turning then to the second particular for the allegation that G+T knew the allotment had been for no consideration, the pleader essentially repeats the same matters as was said to support the contention that G+T had advised that the allotment was lawful. There is a qualification to that. The particulars to that allegation did not allege that G+T had been retained to draft and advise upon the GRL Share Resolution of 22 April 2010 which had authorised the allotment although it had alleged that G+T had been retained to draft and advise upon the allotment itself (although what that drafting involved was unclear). It will be recalled that my analysis of §72(e) above proceeded on the assumption that this was an oversight. In this section of the pleading the polarity is reversed and it is now alleged that G+T advised upon and drafted the GRL Share Resolution but not the allotment, that is, the GRL Share Issue. I am going to treat this as an example of the pleader being caught by his or her own defined terms and proceed on the basis that it was intended to refer to both the resolution and the allotment for both sets of allegations. 22 I am prepared to do this as it makes no difference. Just as I cannot see how an inference can be drawn from these matters that G+T advised that the transaction was lawful, I cannot see how an inference could be drawn that G+T knew that the allotment was for no consideration. My reasons for this in the case of §74(m) are the same as those I have given in relation to §72(e). 23 KTC submitted that the situation was helped by the fact that §74(m) cross-referenced the particulars to §62(n) but this is merely the allegation that Mr Singh knew there was no consideration for the share allotment. It is true that there are subscribed to §62(n) an elaborate series of 'particulars' which explore the theory that the consideration for the 60 ordinary shares was Mr Singh's forbearance on the entitlement of SIL to the redeemable preference shares. The particulars to §62(n) in fact just recite the very same documents set out above so even if it were permissible to have recourse to these particulars, they are in fact the same as the particulars to §74(m). In any event, the pleading of §62(n) wholly fails to observe the distinction between allegations of material fact and particulars which is not a question of taste but a legal requirement this pleading repeatedly flouts: Federal Court Rules 2011 (Cth) r 16.02(1)(d). For completeness, KTC's written submissions advanced an argument at [19]-[20] that the first and second shareholders' agreements were not valid because entry into the first shareholders' agreement had not been authorised by Emergent's board. KTC contended that Mr Bullock must have known that the Emergent board had not authorised entry into the first agreement and therefore that SIL acquired no rights under it or the second shareholders' agreement that replaced it. I am not prepared to read a cross-reference at the end of one set of particulars to another set of particulars as including central allegations of material fact. 24 I therefore accept G+T's submission that the allegation that G+T knew that there was no consideration for the allotment is not maintainable. The parties both proceeded on the basis that the issues which arose in relation to the ECL Share Conduct were the same. I will act on that assumption too. Whether the pleading of the Constructive Trust Fraudulent Scheme is adequate 25 At §145 is it alleged against G+T that by giving the 'G+T Legal Advice', by giving the advice that it was lawful to make the Emergent and GRL share issues and by assisting in preparing the documentation to effect those transactions, G+T assisted RAAL with 'the Constructive Trust Fraudulent Scheme'. The consequence of the conclusions in the preceding section is that the allegation that G+T advised that the Emergent and GRL share issues were lawful is not maintainable. Consequently, an assessment of §145 must proceed on the basis that those two allegations are not present. 26 The allegation is therefore reduced to one where it is said that G+T assisted RAAL with the Constructive Trust Fraudulent Scheme only because it gave the G+T Legal Advice and prepared the documentation to effect the Emergent and GRL share issues. 27 What was the Constructive Trust Fraudulent Scheme? §129 tells one that the scheme was the one described in §128. Here one must return to the Emergent share issue to understand what the pleader is driving at. That share issue is at the heart of the shareholder dispute between the Kazals and Mr David in the affairs of their joint venture vehicle, Emergent. As I explained in my earlier reasons, Mr David was putting money into Emergent but the Kazals allegedly were not and, in due course, this generated some tension between them. On or around 20 January 2010 Emergent and Mr David's company RAAL executed a loan agreement that recorded that RAAL had leant Emergent $5,837,009.04 (§25). KTC alleges that this was done without the Kazals being informed that this was to occur and in circumstances where they disputed that those funds had been advanced by RAAL (§26). On 21 January 2010 RAAL demanded payment of $54,016 (USD49,900) from Emergent (as part of the amount owed) and indicated that if that sum were not paid within seven days it would accept USD49,900 worth of fully paid ordinary shares in Emergent in satisfaction of that sum (§27). 28 On 22 January 2010 Mr David called a meeting of the directors of Emergent. KTC alleges that they were not told about the loan agreement or the letter of demand (§29) although it does not say that they were not told about the meeting. The meeting occurred on 28 January 2010 but the Kazals did not attend (§§30-31). At the meeting, the two directors present – Mr David and a Mr Mavromanolakis – voted in favour of issuing the 49,900 ordinary shares to RAAL (§31). The effect of this was to turn what had been a 50:50 joint venture vehicle into one where Mr David controlled (through RAAL) 99.9% of the shares in Emergent with the Kazals controlling 0.1% (§39). It is this transaction which the pleader refers to as the Emergent share issue. 29 KTC's primary case is that this has caused it loss. However, at §125 it pursues a case in the alternative which is premised upon a contention that the shares in Emergent that RAAL obtained as a result of the Emergent share issue were held by it as a constructive trustee for KTC. At §127 it is then said that RAAL, as a constructive trustee, was obliged to transfer the 49,900 shares to KTC and not to use its ownership of those shares to the detriment of KTC. In various ways, including by not transferring the shares and by allowing the GRL share issue to proceed, RAAL is said to have breached these duties (§128). 30 Although the allegations of breach are not alleged to be dishonest in §128 the pleader doubles back at §129 and alleges that they constituted a dishonest and fraudulent design. In the same paragraph the pleader then christens these events the Constructive Trust Fraudulent Scheme. At §§131-133 Mr David is said knowingly to have assisted in the scheme. Mr Singh suffers the same fate at §§134-136 and one of his companies (XALT Pty Ltd) is alleged to have been in knowing receipt of trust property at §§137-143. 31 Which brings one back to G+T and Mr Bullock who at §§144-147 are said knowingly to have assisted in the scheme. On the present application G+T continued to rely upon the apparent inconsistency between alleging that G+T had advised the Emergent share issue was lawful whilst simultaneously alleging that it was part of a dishonest design in which the solicitors were complicit. However, as I have already indicated, having been persuaded that the allegation that G+T advised that the Emergent share issue was lawful cannot be maintained, that argument drops away. 32 It is an interesting question whether the claim of knowing assistance which is left – based only on the G+T Legal Advice and the preparation of the transactional documents – can succeed. However, G+T made no submission about this. 33 The G+T Legal Advice is set out at §23. In essence it is that Mr Bullock and G+T advised RAAL and Emergent and their directors (aside from the Kazals) that Mr David had to do everything possible to protect Emergent so as to protect RAAL's investment in Emergent, that RAAL had to demand repayment of its loans to Emergent and if Emergent did not meet the demand then it had to dilute KTC's shareholding in Emergent; also, that this was the right and legal thing to do. This is the assistance alleged to have been given together with the drafting of the documentation. 34 At §146 it is then alleged that Mr Bullock and G+T knew of the Constructive Trust Fraudulent Scheme and knew they were involved in dishonest breaches of trust as part of the scheme. Why? Because of the matters in §§74-76. 35 G+T complain about two aspects of this. First, they submit that some attention has to be given to the role of Mr Mavromanolakis. He was the director who with Mr David voted at the directors' meeting of Emergent in favour of the Emergent share issue. He was appointed to the board of Emergent on 13 November 2009 (§22). At §38(d) it is said that Mr David procured Mr Mavromanolakis' support for the Emergent share issue. It is alleged that Mr Mavromanolakis was told that Emergent faced an urgent funding crisis and was at risk of being wound up if RAAL ceased to provide financial support. 36 G+T points out that it is not alleged that this information provided to Mr Mavromanolakis was false or that Mr Mavromanolakis had acted improperly in voting in favour of the Emergent share issue in reliance upon it. G+T asks rhetorically how can the scheme have been fraudulent when it is neither alleged that Mr Mavromanolakis was lied to nor that he was involved in the fraudulent scheme? 37 Although this seems like a small point when cast against the maelstrom of allegations made in Exhibit 1, I am inclined to accept that it is a sound one and that much of the maelstrom serves only to distract attention from the central allegation which inevitably involves Mr Mavromanolakis. The short of the allegations is this: there were three directors of Emergent, one of the Kazals, Mr David and Mr Mavromanolakis. Mr David and one of the Kazals were each representing their 50% interest in the joint venture embodied in Emergent and Mr Mavromanolakis was an independent director. As at November 2009 Mr David was complaining that Emergent owed him money and that the Kazals were not putting in their fair share. Although it is alleged that the debt Mr David claimed was disputed, it is not disputed that he was complaining about it. A board meeting was held. The Kazals did not attend. It is not suggested that they were prevented from attending. Mr David had previously told Mr Mavromanolakis that he was no longer willing to fund Emergent and if he withdrew his funding Emergent might be wound up. KTC says it was not told that this proposal was on the table. Again, however, that does not prove dishonesty. It was raised at a board meeting to which they were invited. Perhaps in retrospect the Kazals regret the decision not to attend that board meeting but that sense of regret cannot impermissibly be conflated with the proposition that Mr David had acted dishonestly in not telling them he was going to raise it. And even if it could, it is rendered irrelevant by the events at the meeting. 38 Mr David suggested to Mr Mavromanolakis that he should agree to meet the RAAL demand for payment by issuing the shares in Emergent. The decision to issue the shares may well have involved a breach of fiduciary duty (as the Grand Court of the Caymann Islands concluded in related proceedings) but it is hard to describe what happened as dishonest. Highhanded perhaps, aggressive certainly, but dishonest it does not appear to me to be. If it were alleged that Mr David had duped Mr Mavromanolakis then a case of dishonesty might come into view. But that is not alleged. If Mr David in fact had had no intention of winding up Emergent similar considerations might have arisen. But all Mr David is alleged to have done, when all is said and done, is to use his status as a substantial (although on the pleadings, disputed) creditor to strongarm Mr Mavromanolakis into a provocative debt for equity swap. Although I would not describe that as nice, I am unable to see how it was dishonest. 39 Once that conclusion is reached, the fabric frays from the edge as the thread comes undone. The board meeting is the centre piece of the Emergent share issue; it is not peripheral. If there was a dishonest scheme (as opposed to a brutal one) then its critical element was the board meeting for everything else flows from it. Once control of Emergent was delivered to RAAL by the events of the directors' meeting, what occurred with GRL follows trivially. Maybe Mr David used his control to effect the transaction with Mr Singh which delivered an increased share of GRL to SIL. Maybe this was a further outrage on KTC. But on the hypothesis that Mr David had obtained control of Emergent by brutal rather than dishonest means (and accepting for the sake of argument that it most likely involved a breach of fiduciary duty) it is impossible coherently to imagine what was dishonest in using that power in relation to GRL. Granted that the Emergent share issue is a transaction which is apt to raise eyebrows, the problem is that I cannot understand how it can be said to be a dishonest scheme unless Mr Mavromanolakis is said to have been lied to or, alternatively, himself to have been in on it. But neither allegation is made. 40 It follows that I accept G+T's submission that the dishonest scheme alleged by KTC is fundamentally incoherent. I do not accept KTC's submission that the dishonesty of Mr David (and implicitly of G+T) is to be assessed against what is alleged against them rather than by reference to Mr Mavromanolakis. That submission seeks to reduce the role of Mr Mavromanolakis in the dishonest scheme and to make him a non-essential or at least peripheral participant. In fact, the entire scheme hinged on him. If the scheme was not dishonest in relation to Mr Mavromanolakis then the rest of KTC's case makes no sense. Nor is it to the point that it is alleged that G+T knew that Mr David had procured Mr Mavromanolakis's support. Again this brings into focus the critical issue which is not whether Mr David procured Mr Mavromanolakis' support but how he did so: did he do it with deceit or blunt force? There is no allegation of deceit and every appearance of blunt force. 41 In that circumstance, I do not need to deal with G+T's submission that it is not alleged that G+T knew that the value of the Emergent shares was far in excess of the US$49,900 that Mr David appears to have paid for it. 42 I am not satisfied that I should grant leave to KTC to rely upon Exhibit 1 and I refuse it leave to do so. Insofar as G+T and Mr Bullock are concerned, KTC has had three attempts at pleading this case. After the first attempt, Kunc J gave them one more opportunity; I declined that opportunity but afforded them one final chance. KTC's continuing inability to plead the case is a potential marker that it does not have a case against G+T. Accordingly, I dismiss the proceeding against them. KTC is to pay G+T's costs as taxed, assessed or agreed. 43 At the hearing KTC sought to rely upon some of the documents referred to in the pleadings which was opposed by G+T. I propose to admit those documents in what is an interlocutory hearing but I have not found it is necessary to refer to them. The pleading stands or falls on its terms. G+T sought to rely upon the reasons for judgment of White J on KTC v Singh [2018] NSWSC 1510 at [32] to prove that $678,333.33 of outstanding fees owed to SIL under a consultancy agreement would be treated as a shareholder loan by SIL to GRL. This was said to aid the contention that the consideration for the GRL share issue did not merely consist of the surrender by SIL of its entitlement to the redeemable preference shares. G+T was not a party to that determination, the determination was interlocutory and the material before White J was not the material before this Court. I obtain no assistance from this submission. An attempt to tender the material which had been before White J to remedy the last problem was misconceived. As G+T correctly submitted when its eye was on the ball, the present debate is about the adequacy of a pleading. I reject the tender. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 17 July 2020 SCHEDULE OF PARTIES NSD 555 of 2019 Defendants Fourth Defendant: D.T GILBERT & W.R SPAIN & C.G CONDOLEON & ORS TRADING AS GILBERT + TOBIN ABN 88 775 098 848 Fifth Defendant: ANDREW BULLOCK