Federal Court of Australia Coeur De Lion Investments Pty Limited v The President's Club Limited (No 2) [2020] FCA 1705 File number(s): QUD 79 of 2020 Judgment of: GREENWOOD J Date of judgment: 25 November 2020 Date of orders: 23 November 2020 Catchwords: CORPORATIONS – consideration of a proposed set of arrangements for the resolution of the proceeding and other proceedings related to this proceeding including, in particular, proceeding QUD 734 of 2019 – consideration of the proposed orders to be made in this proceeding – consideration of, and discussions with, the parties in Court as to changes to the proposed orders – consideration of the relationship between the various proceedings resolved by operation of a Deed of Settlement, orders as varied and changes to the Deed of Settlement having regard to changes to the orders as proposed – the Court making orders in final form – consideration of ss 232 and 233 of the Corporations Act 2001 (Cth) – consideration of ss 33V, 33X and 33Y of the Federal Court of Australia Act 1976 (Cth) Legislation: Corporations Act 2001 (Cth), ss 232 and 233 Federal Court of Australia Act 1976 (Cth), ss 33V, 33X and 33Y Cases cited: Australian Securities and Investments Commission v Richards [2013] FCAFC 89 Blairgowrie Trading Ltd v Allco Finance Group Ltd (No 3) (2017) 343 ALR 476 P Dawson Nominees Pty Ltd v Brookfield Multiplex Limited (No 4) [2010] FCA 1029 Modtech Engineering Pty Ltd v GPT Management Holdings Limited [2013] FCA 626 Williams v FAI Home Security Pty Ltd (2000) 180 ALR 459 Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 59 Date of hearing: 23 November 2020 Solicitor for the Plaintiffs: Alexander Law Counsel for the Defendants: Mr R Newlinds SC with Mr G Handran Solicitor for the Defendants: McBride Legal ORDERS QUD 79 of 2020 BETWEEN: COEUR DE LION INVESTMENTS PTY LIMITED ACN 006 334 872 First Plaintiff PALMER LEISURE COOLUM PTY LTD ACN 146 828 122 Second Plaintiff AND: THE PRESIDENT'S CLUB LIMITED ACN 010 593 263 (and others named in the Schedule) First Defendant order made by: GREENWOOD J DATE OF ORDER: 23 NOVEMBER 2020 THE COURT NOTES THAT: 1. Orders 3, 4, 8-13 are made by consent; and 2. Orders 1, 2 and 5-7 are, as made, not opposed. THE COURT ORDERS THAT: 1. The Second Plaintiff must within 7 days of the date of this order make an offer to every Member of the First Defendant (other than a member that is the Second Plaintiff or an associate (as that term is defined in the Corporations Act 2001 (Cth) (the "Act") of the Second Plaintiff) (Member) to purchase all of their right title and interest in their shares in the First Defendant (Shares) and the corresponding stapled villa interest (Villa Interest). (Collectively are the Stapled Interests). 2. The Second Plaintiff's offer shall constitute an offer to purchase the Stapled Interests which Stapled Interests shall not constitute an interest in an unregistered managed investment scheme regulated under Chapter 5C of the Act. Such offer must be and is in accordance with the following terms: (a) is an unconditional offer to purchase; (b) $65,000 for each Villa Interest and $1 (one dollar) for each stapled Share of the defendant to which the offer to purchase relates, making a total of $65,013 for each Stapled Interest; (c) has an expiry date for acceptance of the offer being on or before 30 days from the date of these orders; (d) not be an offer to acquire shares or interests in a registered managed investment scheme within the meaning of section 92(3)(a) of the Act. 3. McBride Legal must within 2 days of the date of these orders give a copy of each member's address to Alexander Law to send a copy of this order to every Member forthwith. 4. Every Member has liberty to apply within 21 days of the date of this order, in respect only of matters relating to the beneficial ownership of the Member's Stapled Interest as set out in order 6. Where a Member has applied under this order 4, the Second Plaintiff shall not become the beneficial owner of that Members Stapled Interest as set out in order 6 pending the final hearing and determination of the Member's application. 5. The Second Plaintiff shall make the offer (referred to in order 2 above) and complete the purchase of the Stapled Interests by paying into Court the sum of $20,804,160 (being $65,013 x 320 Member Stapled Interests) not earlier than 15 days nor later than 21 days after the making of these orders. 6. Upon the Second Plaintiff paying into Court the sum of $20,804,160 referred to in order 5: (a) All offers or requirements to make a bid by the Second Plaintiff for shares in the First Defendant are deemed to have been validly made and completed in accordance with the Act; (b) The Second Plaintiff shall be the beneficial owner of all of the Stapled Interests (other than any Stapled Interest which is the subject of an application under order 4); (c) the share register of the First Defendant must record that the Second Plaintiff as the legal and beneficial owner of the Shares (other than any Shares which are the subject of an application under order 4); (d) all directors and the secretary of the First Defendant shall cease to be officeholders of the First Defendant; (e) the Second Plaintiff shall cause consenting persons to be appointed as officeholders of the First Defendant; (f) the second, third, fourth, fifth and sixth defendants must deliver to the Second Plaintiff the company register and all corporate books, records, and other property of the First Defendant. 7. By the second plaintiff paying into Court the sum of $20,804,160 referred to in Order 5, and by complying with these orders, the first defendant is not engaged in the operation of an unregistered managed investment scheme pursuant to section 601ED(6) of the Act. 8. Alexander Law must within 21 days of the date of these orders: (a) give to every Member such instruments of transfer and other documents as prepared by Alexander Law as may be required to enable transfer from such Member to the Second Plaintiff (Transfer Documents) of all their right title and interest in their shares in the First Defendant (Shares) and the corresponding villa interest (Villa Interest) (collectively the Shares and Villa Interest are the Stapled Interest); (b) request that the Member sign and return the Transfer Documents to Alexander Law. 9. If a Member has not applied under order 4 and has not returned the properly executed Transfer Documents to McBride Legal within 14 days after the Transfer Documents are despatched to the Member, McBride Legal must promptly advise Alexander Law and any member of the firm of Alexander Law is appointed to sign the Transfer Documents forthwith as attorney of the Member and Alexander Law must sign the relevant Transfer Documents as attorney. 10. Where Alexander Law signs any Transfer Documents in accordance with order 9, Alexander Law must register the relevant power of attorney in the Department of Natural Resources which will enable registration of the transfer of the Stapled Interest. 11. Upon Alexander Law being in possession of properly executed Transfer Documents in respect of any Stapled Interest (including Transfer Documents in respect of the Villa Interest which, other than stamping, is in a form capable of immediate registration in the Department of Natural Resources other than a release of any mortgage) and having provided evidence to the Second Plaintiff confirming such matters, Alexander Law must apply to and obtain payment out of court of the sum of $65,013 and where there is no mortgagee or encumbrance, must pay that amount to the relevant Member (i.e. the Member in respect of which Alexander Law is in possession of the Transfer Documents) or where there is a mortgagee or encumbrance, pay to the mortgagee or encumbrance such amount as is properly payable to the mortgagee or encumbrance in exchange for a release of the mortgage or encumbrance and the balance, if any, to the Member. 12. The parties shall have liberty to apply in respect of any matter set out in parts (a) and (b) below, the subject of these orders including, without limitation: (a) the disbursement of the sum of $65,013 in respect of each Stapled Interest, including disbursement to any mortgagee or other encumbrance in respect of the Stapled Interest; (b) the disbursement back to the Second Plaintiff of the balance of the sum of $20,804,160 which has not been paid out of Court in accordance with order 11 within 12 months of the date of these orders. 13. Upon receipt of confirmation referred to at order 11, the Second Plaintiff must pay the amount of stamp duty and registration fees properly payable in respect of Transfer Documents for a Villa Interest from a Member to the Second Plaintiff. McBride Legal, upon the receipt of registration fees from Alexander Law must take all necessary and reasonable steps to cause the transfer of all of the Villa Interests to be registered in the Department of Natural Resources and to keep the Second Plaintiff informed in respect thereof including providing regular reports regarding the transfers and a registration confirmation statement to the Second Plaintiff following registration of the transfer of each Villa Interest. 14. These proceedings be otherwise dismissed. 15. There shall be no order as to costs. 16. These orders are subject to the supervision of the Court so as to ensure that all those members who have transferred their share in the first defendant and the corresponding stapled villa interest pursuant to the offer and these orders, receives the agreed purchase price of $65,013. 17. Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these reasons for judgment in support of the orders made on 23 November 2020 are published from Chambers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GREENWOOD J: 1 These proceedings are immediately concerned with two interlocutory applications in two proceedings: QUD 734 of 2019 and QUD 79 of 2020. The first concerns an application in a matter commenced by Ian Lewis Consulting Pty Ltd ("Lewis Consulting") against Coeur De Lion Investments Pty Limited ("Investments") and four other companies, Palmer Leisure Australia Pty Ltd ("PLA"), Palmer Leisure Coolum Pty Ltd ("PLC"), Closeridge Pty Ltd ("Closeridge"), Palmer Coolum Resort Pty Ltd ("PCR") and Mr Clive Frederick Palmer ("Mr Palmer"): QUD 734 of 2019. For present purposes, it is sufficient to note that all of the corporations are controlled ultimately by Mr Palmer. 2 In order to understand the interlocutory application made in QUD 734 of 2019 and its relationship with QUD 79 of 2020, it is necessary to briefly explain the nature of the QUD 734 of 2019 proceeding in which the application is made, some of the foundation facts and the relief claimed in that action. 3 The second application is an application made in this proceeding commenced by Investments and PLC against The President's Club Limited ("the Club Entity") and Mr Patrick Kelly, Mr Ian Lewis, Mr Bruce Wallis, Mr Colin Owen and Ms Maree Frecklington. Those individuals are the directors of the Club Entity: QUD 79 of 2020. 4 Although the interlocutory applications of immediate relevance are concerned with the two proceedings just mentioned, making orders as sought in each proceeding will have consequences for a range of other proceedings engaging the participants in QUD 79 of 2020 and QUD 734 of 2019. 5 In particular, the orders in each application will have consequences for other Federal Court proceedings described as follows: QUD 801 of 2018 (the "winding up proceedings"); QUD 6 of 2020 (the "special levy proceedings"); QUD 52 of 2020 (the "special levy appeal"); and QUD 287 of 2020 (the so-called "new proceedings"). 6 As to these other proceedings mentioned in [5] of these reasons, the orders to be made in QUD 6 of 2020; QUD 287 of 2020; and QUD 801 of 2018 include orders that each proceeding is dismissed in its entirety with particular orders about costs. In relation to QUD 52 of 2020, that proceeding is to be dismissed in its entirety and an injunction order made on 7 April 2020 is to be vacated. In proceeding QUD 801 of 2018, the directors are to be released from an undertaking they gave to the Court on 10 December 2019. The orders made in each proceeding are interdependent in the sense that each order in each proceeding is made on the footing that orders be made in each of the other proceedings as described and as reflected in the proposed orders put to the Court by agreement between the parties. As to that, as the orders show by way of a note, Orders 3, 4, 8-13 in QUD 79 of 2020 are made by consent and Orders 1, 2 and 5-7 are not opposed by the respondents. 7 It can be immediately seen that the sequence of interdependent orders taken together with the two applications in QUD 79 of 2020 and QUD 734 of 2019 represent a set of arrangements for the resolution of a wide-range of litigation between these various participants. Apart from the proceedings already mentioned, the set of arrangements will also resolve proceedings (mentioned later) before the Supreme Court of Queensland and the Queensland Court of Appeal. 8 At the centre of all of these proceedings is a dispute between the persons and entities described above controlled by Mr Palmer (and Mr Palmer) on the one hand, and the Club Entity, the directors of the Club Entity and a group of investors (members) in what I will call the Coolum Resort Development (or the "resort"), on the other hand. 9 It is necessary to explain a little of the background to these disputes. 10 By about 1989, Investments had developed a resort at Coolum on 150 acres of land which comprised a hotel, a golf course and a number of particular facilities called "The President's Site" (made up of 80 accommodation villas in the "Golf Village" and 64 villas in the "Tennis Village"); a "Regency Site" comprising six accommodation units; and the "Ambassador's Site" comprising 18 villas and six residences. The resort provided exclusive resort membership and a time-share and letting pool scheme to be conducted on The President's Site on a basis described shortly. The villas comprised about 44% of the accommodation available to guests at the resort. 11 The Club Entity was incorporated on 16 August 1985 to provide its members with a bundle of rights by way of access to, and use of, the villas and to enjoy the income from subletting their entitlement to access and use of the villas (and resort facilities). For all relevant periods, the Club Entity had more than 50 members and its capital was divided into 7,488 fully paid ordinary shares (or 576 "Share Parcels") and five subscriber shares. It was the lessee of all villas in the resort until 20 December 2068 and as lessee it was entitled to peaceably possess and enjoy each villa and permitted to use the villas for the purpose of providing resort accommodation and related matters. 12 It also had the benefit of an option to extend the lease for a further 80 years. 13 Membership of the Club Entity had a number of features. 14 Each member held one or more Share Parcels and for each Share Parcel each member held a corresponding one quarter interest (13/52) as tenants-in-common in a villa subject to the Club Entity's lease (otherwise called a "villa interest"). The constitution of the Club Entity provided that membership was conditioned upon each member owning a corresponding villa interest by requiring members and any transferee to own one or more villa interests and by linking or "stapling" each Share Parcel to a villa interest. Members, their family, guests and invitees could occupy or sublet the member's corresponding villa for 13 specific weeks in a calendar year and use all resort facilities in the resort. 15 Members shared common expenditure by being obliged to pay levies issued by the Club Entity for particular subject matter and to pay amounts payable by the Club Entity to the "Resort Administrator" under a "Resort Administration Agreement" (the elements of which do not need to be set out here) and to provide working capital. No member could exercise any rights or privileges of membership while levies were due but unpaid or if a member ceased to hold a "villa interest". 16 As to the 7,488 ordinary shares issued in the Club Entity, Investments owns 3,003 shares or 40.1% of the ordinary shares. PLC owns 221 ordinary shares or 2.95% of the issued ordinary shares in the Club Entity. 17 Until about 31 January 2005, the Club Entity was exempt from any requirements of s 601ED of the Corporations Act 2001 (Cth) (relating to a Managed Investment Scheme regime). On 31 January 2005, the Australian Securities and Investments Commission ("ASIC") granted the Club Entity, Investments and the Resort Administrator an exemption from the requirements of s 601ED of the Act. That exemption was, in part at least, granted on the footing that members not associated with Investments and the Resort Administrator held at least 90% of the voting power in the Club Entity, or by 31 January 2005, Investments had covenanted in a form acceptable to ASIC to restrict its voting power to no more than 10% of the votes actually cast in the Club Entity except on a winding-up resolution or with ASIC's consent. 18 Investments gave ASIC a deed poll dated 31 January 2005 by which Investments covenanted that any voting rights held by it or any related entity would not be exercised in excess of 10% of the votes that may be cast on a resolution by members of the Club Entity other than with ASIC's written consent or in relation to a resolution to wind up, among other things. 19 Proceeding QUD 734 of 2019 is a proceeding brought under Part IVA of the Federal Court of Australia Act 1976 (Cth) (the "FCA Act") by Lewis Consulting on its own behalf and on behalf of a closed class of people who held one or more parcels of 13 fully paid ordinary shares in the Club Entity on 20 March 2012 or alternatively acquired one or more such Share Parcels after 20 March 2012 and in either case remained holding those Share Parcels when the proceeding was commenced and who suffered loss and damage as a result of particular contended conduct of entities controlled by Mr Palmer (including Mr Palmer personally) in connection with the resort (and the capacity and entitlement of members to exercise rights in relation to the interests they held in the Club Entity and associated villa interests). The closed class excluded interests related to Mr Palmer as relevantly defined for the purposes of the proceedings. 20 In the proceeding, the applicant, on behalf of the class members, claims that Mr Palmer and his associated interests engaged in conduct characterised as oppression. Mr Palmer is described as a director, the controlling mind and the ultimate beneficial owner of PLA, PLC, Closeridge, Investments and Coeur De Lion Holdings Pty Ltd ("Holdings") which owns all the shares in Investments. On or about 1 July 2011, Mr Palmer beneficially acquired 98% of the ordinary shares in Holdings. Closeridge acquired the remaining 2%. The applicant claims that the acquisition was an "illegal takeover". 21 The applicant claims that in that context Investments, on 15 September 2011, unlawfully notified ASIC of its intention to revoke the deed poll in 180 days. That step is said to have been unlawful on a number of grounds which do not need to be recited here. 22 The applicant says that PCR and/or Investments terminated a management agreement by which an entity within the Hyatt Group managed the resort. 23 The applicant also says that the Palmer interests notified the Club Entity that they did not intend to continue to comply with the Resort Administration Agreement and thereby repudiated the agreement. 24 The applicant says that PLC engaged in "bidder contraventions" in connection with an unconditional bid for all shares in the Club Entity and corresponding villa interests. 25 The applicant says that the Palmer interests took steps to degrade the standard of the 18 hole golf course associated with the resort without the consent of the Club Entity or members and placed a number of life-size plastic dinosaurs on the golf course land. 26 The applicant also says that power and utility services to the President's Site were disconnected on or about 25 July 2012. 27 The applicant also says that Investments, by conduct in April 2013, engaged in false or misleading conduct in its dealings with members. 28 The applicant contends that Investments purported to exercise voting power for an improper purpose and it claims that Investments and the Resort Administrator closed the resort, failed to operate the resort, failed to market the resort, failed to maintain the resort in a five star and first class condition and failed to maintain the buildings including the villas in a first class condition. 29 Other claims are made in relation to unlawful demands made by Investments on members, and the consequences for the Club Entity due to Investments and PLC failing and refusing to pay levies. 30 The applicant sets out matters relating to the vulnerability of the members, Mr Palmer's knowledge about particular matters and asserts that the conduct was undertaken by Investments and the Palmer interests to exert pressure on the directors of the Club Entity and members not associated with the Palmer interests so as to enable the Palmer interests to gain control of the Club Entity. 31 The applicant asserts that the conduct of the respondents is unconscionable conduct and a range of relief is claimed in relation to all of these matters. 32 As to all of these conduct allegations, Mr Palmer and the Palmer entities deny the allegations and they say they have a good defence to the allegations and the claims for remedial relief. 33 As to relief, the applicant says that neither the time-share scheme nor the letting pool has operated since April 2012 and, notwithstanding that, the members have incurred levies with respect to villa interests in the Golf Village ($16,531.80) and in relation to villa interests in the Tennis Village ($17,262.09). 34 The applicant also says that had the Palmer interests not engaged in the contended oppression and/or unconscionable conduct, the applicant and each group member would have sold their respective Share Parcels and associated villa interests to PLC for $65,013 (and in the result they would not have incurred levies after that date). Moreover, the applicant says that the interests of the applicant and each group member in their respective Share Parcels and associated villa interests would have been valued at no less than $65,013. 35 There are two other important contextual aspects of the litigation between these various participants that need to be mentioned. 36 The first is that by proceeding QUD 801 of 2018, Investments sought an order for the winding up of the Club Entity under s 461(1)(g) ("oppression") and/or s 461(1)(k) (the "just and equitable" ground) of the Act. That application was made on a number of factual grounds including that the Club Entity had become moribund, was not operating and was incapable of performing its essential function and ought to be wound up. Moreover, the central elements of the time-share scheme were said to constitute an unlawful "managed investment scheme" for the purposes of the Act. That application was resisted on a number of grounds including the proposition that as the Palmer interests were said to be responsible for the state of the Club Entity, an order ought not to be made on the just and equitable ground as the applicant was the author of the problems confronting the Club Entity. The Club Entity denies that it was, or is, conducting an unlawful managed investment scheme. 37 In that proceeding (QUD 801 of 2018), the Club Entity cross-claimed for damages. 38 However, on the hearing of the application and the contest as to a number of the various factual matters recited above, the Club Entity was compelled to abandon the cross-claim on the footing that it had no standing to maintain a claim for losses caused by the contended conduct, as the losses had been incurred by those persons or entities who had taken up investments and become members of the Club Entity with stapled villa interests. In the result, aspects of all of the factual contentions about the conduct, the resort and many of the matters described above, were heard in the winding-up proceeding and judgment reserved. In abandoning the cross-claim, the legal representatives for the Club Entity advised that they held instructions to act on behalf of a member, Lewis Consulting, to bring a representative proceeding on behalf of a "closed class". The affidavits relating to that matter referred to great lengths which had been taken to obtain the consent of a member to act as a representative applicant. The proposition was put that the representative proceeding ought to be heard, in effect, as a surrogate or substitute cross-claim in place of the abandoned cross-claim. Judgment was reserved on the principal proceeding with directions orders made about the conduct of the class claim. Ultimately, much discussion occurred about seeking to resolve the way in which findings in the winding-up proceeding would be treated as binding in relation to related proceedings. 39 The second thing that needs to be noted is that in order to fund the representative proceeding, the Club Entity took steps to issue levies and in order to secure the consent of the representative applicant, an indemnity of a limited kind was given to that applicant, Lewis Consulting. Those steps became subject to challenge by the Palmer interests on the footing that using the levies mechanism to raise money to fund a proceeding, together with related steps, against entities in the Palmer camp which were also members of the Club Entity involved a contended breach of the constitution of the Club Entity and involved the Club Entity funding the acquisition of shares in itself in contravention of the Act. That latter proposition was the subject of a contested interlocutory application, a judgment, an application for leave to appeal and the subsequent hearing of the contentions in that proceeding in a final sense. That matter is presently reserved. 40 The representative proceeding (being the de facto or substitute cross-claim by those withstanding to make such a claim) was to be heard commencing on 23 November 2020. However, an application was made by the applicant to vacate those dates having regard to a number of matters one of which was the difficulty confronting the applicant of being able to progress the litigation in the context of available funds and orders made in QUD 52 of 2020 on 7 April 2020 (see [6] of these reasons). 41 In the result, due to case management hearings concerning the various proceedings, it became apparent that certain steps might be able to be taken which might result in a set of arrangements being reached which would have the effect of resolving all of these contentious matters. At the heart of the potential resolution was the proposition that as the members and holders of the stapled interests had quantified the diminution in the value of the per quarter share interest in the Club Entity at (no less than) $65,013 and the Palmer interests were willing to entertain a settlement on the basis that the non-Palmer interests be paid $65,013 for that interest as claimed, the proceedings might be capable of resolution if related matters upon which such a proposal might be conditioned could be worked out. 42 Without examining the detail of the intervening steps and the discussions with the parties by the Court in, in effect, case management mode, it is sufficient to note that what emerged is a set of proposals framed in QUD 79 of 2020 by which an unconditional offer would be made to every member of the Club Entity (other than those associated with the Palmer interests) to purchase the members' interest in their shares in the Club Entity and the corresponding stapled villa interest (that is, each per quarter stapled interest) for $65,013 which would be open for acceptance for 30 days from the date of the orders. 43 The total value of the interests is $20,804,160 (in respect of 320 stapled interests). 44 The proposal is that that sum be paid into Court. 45 The notion is that the orders will reflect and recognise that the acquisition of the stapled interests and payment of the monies according to the program is in accordance with the Act. 46 The second notion is that one of the Palmer entities would, under the program, become the beneficial owner of the stapled interests and the Share Register would reflect that circumstance but subject to a right in a member to apply to the Court. 47 The proposed orders then set out a sequence for the particular implementation of the offer, acceptance and securing, by the relevant Palmer entity, of transfer documents from the member, and the drawdown from the Court, ultimately in favour of each member, of $65,013 for the transfer of their interest. In some cases, the interest may be subject to a security in which event the mortgagee would receive the relevant monies. 48 The orders also provide for applications to be made to the Court in respect of any matter concerning the disbursement of the $20,804,160. 49 Aspects of the orders were the subject of discussion between the Court and the parties on 23 November 2020 with the result that the offer is to be made within seven days and the relevant member has 21 days to make application to the Court to contest the relevant subject matter as described in the orders: see Orders 4, 6, 12 and 16. Moreover, an amendment was made to Order 7 of the orders so as to recognise that the payment of the settlement monies and the mechanism adopted for effecting it does not render the first defendant the operator of an unregistered managed investment scheme under the Act. 50 The orders, as proposed, were also amended with the support of Mr Palmer to provide (by Order 16) that the orders are subject to the supervision of the Court so as to ensure that all those members who have transferred their share in the first defendant and the corresponding stapled villa interest pursuant to the offer and the orders, receives the agreed purchase price of $65,013. 51 Those orders are supported by the Club Entity and supported by the applicant in the closed class proceeding subject to the Court being satisfied that the Court's jurisdiction is engaged: see [56]-[58] of these reasons. 52 However, in order to resolve all of these interrelated matters and secure the benefit of the payment of the acquisition price to each (non-Palmer) member for their respective interests, it is necessary for the applicant in the closed class proceeding to seek and obtain an order that, pursuant to s 33V of the FCA Act, the representative proceeding be discontinued; that pursuant to s 33X(4) of the FCA Act, the need for notice to be sent to group members pursuant to s 33X(1) be dispensed with; that pursuant to s 33Y, the applicant forward a notice in a particular form to each group member; and that there be no order as to costs. 53 A resolution of the representative proceeding by securing the leave of the Court to discontinue the proceeding is an essential element of the integrated settlement of all of the controversies earlier described. Section 33V(1) of the FCA Act provides that a representative proceeding may not be "settled" or "discontinued" without the approval of the Court, and s 33V(2) provides that if the Court gives such approval, it may make such orders "as are just with respect to the distribution of any money paid under a settlement or paid into Court". If the proposed "settlement" (engaging a "discontinuance" of the proceeding), is to attract the approval of the Court, the Court must be satisfied that the settlement is a fair and reasonable compromise of the claims made in the proceeding. In reaching a decision that the settlement of the proceeding is fair, reasonable and just, I have taken into account these considerations: (1) I have taken into account the composition of the class and the identification of the total field of non-Palmer members (class and non-class members) described by Mr Joshua Robson, the solicitor for the applicant, in his affidavit sworn 22 November 2020. (2) In deciding whether the settlement (and discontinuance) is fair, reasonable and just, the Court adopts a protective role consistent with the object and purpose of the section. (3) The offer will be made to all non-Palmer members, not just the class members. (4) As to the claims made in the proceeding, although the applicant contends that the diminution in the value of the stapled interest is no less than $65,013 (which suggests that the applicant seeks to agitate a case for a greater sum), the offer is made at the full amount of that part of the claim at $65,013. The ultimate remedy sought by the representative applicant under s 233(1) of the Act is an order that the Palmer interests, by their relevant entity, be ordered to acquire the interests of the class members who, by reason of the contended conduct, are now said to be the holders of interests which are worthless as there is no market for the interests. The settlement effects a transfer of the stapled interests to the relevant Palmer entity (in effect, as sought) at the amount nominated as the amount for which they say they would have sold their stapled interests but for the contended conduct, that is, $65,013: see the earlier discussion of the claims. The class members also claim the amounts described earlier in relation to levies they say they have paid after the moment in time when the resort ceased operating. There is also a claim for interest and, of course, a question in relation to costs. (5) The prosecution of the class action has proved to be a very difficult matter. There was great difficulty in finding and ultimately securing the consent of a member to act as applicant in the proceeding. No other member apart from Lewis Consulting could be found to take the proceedings. In the result, Lewis Consulting only agreed to be a representative applicant on particular terms which included a limited indemnity. The availability of funds necessary to prosecute the proceeding is seriously in question. (6) Some of the factual questions in issue in the representative proceeding will be determined in the course of delivering judgment in the winding up proceeding. However, there are other matters of fact and law to be determined consequent upon hearing the representative proceeding. There are procedural questions to be addressed and the capacity of the representative applicant to properly prepare the representative proceedings for final hearing is in doubt. So much so that the representative applicant moved to adjourn the hearing of the representative proceedings as set down for 23 November 2020. (7) The proposed settlement goes a substantial way towards providing the class members and other members with an opportunity to obtain an amount which reflects the postulated diminution in the value of the stapled interest (at least as pleaded in the class action) as a result of the contended conduct. Other aspects of the claim are not significant enough to call into question the fairness and reasonableness of the proposed settlement. The proposed settlement is in the sense contemplated by s 33V "just" in all the circumstances of the representative proceeding and its relationship with the other Federal Court proceedings. (8) The controversy between the various participants to the various proceedings has attracted significant publicity and has been a matter of great concern to all sides for many years. The present collection of Federal Court proceedings have been, in substance, the subject of hearings from late 2019 through the course of this year to try to bring many of the issues to a head. There are other proceedings touching the same issues in the Supreme Court of Queensland which will also be resolved by the settlement: in particular, Queensland Court of Appeal proceeding CA 10278 of 2019 (there is also Supreme Court proceeding BS 5746 of 2012). (9) In determining whether the proposal is fair, just and reasonable, I have had regard to the amendments to the proposed orders discussed by the Court with the parties on 23 November 2020 and mentioned earlier in these reasons which provide the class members and all members with a more accommodating timetable to make decisions and also provide for the continued supervision by the Court of the mechanisms under the orders so as to ensure that those members wishing to receive the proposed settlement monies do so (which, no doubt, will be the class members and, in all probability, each and every non-class member). (10) I have also taken into account the complexity of the various proceedings and the interdependent nature of the various proceedings including the representative proceeding. (11) I have also had regard to the Federal Court Class Actions Practice Note (GPN-CA) and the following authorities: Australian Securities and Investments Commission v Richards [2013] FCAFC 89 and, in particular, [7]-[8]; Blairgowrie Trading Ltd v Allco Finance Group Ltd (No 3) (2017) 343 ALR 476 at [81]-[84]; Modtech Engineering Pty Ltd v GPT Management Holdings Limited [2013] FCA 626; Williams v FAI Home Security Pty Ltd (2000) 180 ALR 459; P Dawson Nominees Pty Ltd v Brookfield Multiplex Limited (No 4) [2010] FCA 1029. (12) I have also had regard to a confidential advice of senior counsel for the representative applicant who takes the view that the proposed settlement is fair and reasonable for the purposes of s 33V of the FCA Act. I do not propose to engage in any discussion of the elements of the confidential advice. 54 Weighing all of these factors in the balance, I am satisfied that the proposed settlement is fair, reasonable and just. 55 Section 33X(4) of the FCA Act provides that unless the Court is satisfied that it is just to do so, an application for approval of a settlement under s 33V must not be determined unless notice has been given to group members. By Order 2 of the proposed orders in QUD 734 of 2019, the applicant seeks an order pursuant to s 33X(4) that the requirement to give notice of an application for approval of a settlement under s 33V, be dispensed with. I am satisfied that it is just to dispense with notice of the application for approval of the settlement as I am satisfied that the settlement is fair, just and reasonable; that each member (other than interests held by the Palmer entities) of the Club Entity (whether a member of the closed class or not) is provided with an opportunity to apply to the Court in accordance with the orders according to the subject matter of the orders and, in particular, in relation to the matters falling within Orders 4, 6, 12 and 16; that the Court continues to exercise a supervisory role and jurisdiction as to such an application; that the Court continues to exercise a supervisory role and jurisdiction so as to ensure that all of those members who have transferred their share in the Club Entity together with the corresponding stapled villa interest pursuant to the offer and the orders, receives the agreed purchase price of $65,013; and that a notice is to be sent in the form of Exhibit 1 in QUD 734 of 2019 to each group member explaining the elements of the settlement and particularly its interrelationship with the other proceedings. 56 The remaining question concerns the jurisdictional basis upon which the proposed orders might be made. 57 The Palmer entities and Mr Palmer contend that the Court has jurisdiction to make all of the proposed orders in reliance upon s 233 of the Act, as s 232 of the Act is engaged. In the representative proceeding, the applicant expressly relies upon s 233(1) as the source of the power to make orders sought in that proceeding as to the transfer of the stapled interest on the footing that s 233(1) is engaged by reason of s 232 of the Act. 58 Section 232 of the Act provides that the Court may make an order under s 233 if the conduct of a company's affairs is "contrary to the interests of the members as a whole": s 232(a) and (d). Having regard to the state of affairs in which the Club Entity finds itself, I am satisfied that the conduct of the company's affairs is contrary to the interests of the members as a whole. The company cannot continue in its current state notwithstanding where the ultimate merits might lie in relation to the contentious questions on the facts. Being satisfied of that matter, the Court may make "any order under [s 233] that it considers appropriate in relation to the company" including (but not exhaustively) an order for the purchase of any shares by any member or person to whom a share in the company has been transmitted by will or by operation of law: s 233(1)(d). The Court may also make an order requiring a person to do a specified act: s 233(1)(j). The powers conferred upon the Court under s 233 are very broad and include the power to make any order that the Court considers "appropriate" "in relation to" the company including the range of enumerated possible orders reflected at s 233(1)(a) to (j). I am satisfied that the proposed orders are appropriate having regard to the conduct of the company's affairs and the interests of the members as a whole, particularly having regard to the history and subject matter of the various proceedings and the contextual matters I have described. 59 Accordingly, orders will be made in QUD 79 of 2020 in the form ultimately agreed between the parties at the hearing on Monday, 23 November 2020, having regard to these reasons. Orders will also be made in QUD 734 of 2019 as sought by the applicant having regard to these reasons. Orders will also be made in QUD 6 of 2020, QUD 52 of 2020, QUD 287 of 2020 and QUD 801 of 2018 as proposed by the parties consistent with the terms of the settlement and the Deed of Settlement varied as agreed between the parties at the hearing having regard to the changes made to the orders initially proposed in QUD 79 of 2020. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood. Associate: Dated: 25 November 2020 SCHEDULE OF PARTIES QUD 79 of 2020 Defendants Second Defendant PATRICK JOHN KELLY Third Defendant IAN GEORGE LEWIS Fourth Defendant BRUCE MURDOCH WALLIS Fifth Defendant COLIN WAYNE OWEN Sixth Defendant MAREE KAY FRECKLINGTON