Supreme Court New South Wales Medium Neutral Citation: In the matter of Tzavaras & Sons Pty Ltd [2022] NSWSC 359 Hearing dates: 27 – 30 July 2021; 5 – 6 August 2021 Decision date: 05 April 2022 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Dismiss the plaintiff's claims for the winding up of the first defendant with costs. 2. Order pursuant to s 66G of the Conveyancing Act 1919 (NSW) that Brian Raymond Silvia and Geoffrey Peter Granger be appointed as trustees for the sale of the property referred to in these reasons as the Maroubra Property, such transfer to be to the third defendant for no consideration but subject to the existing encumbrances. 3. Order the plaintiff to pay the third defendant's costs of the application pursuant to s 66G of the Conveyancing Act, 1919 (NSW) other than the costs (if any) of the trustees for sale appointed pursuant to order 2 (with a view to those costs being borne jointly by the plaintiff and the third defendant). Catchwords: CORPORATIONS — Oppression — Where first defendant company formed by plaintiff's deceased father and managed (following his death) by plaintiff and his two brothers — Where plaintiff alleges he was excluded from the management, business and affairs of defendant company — Where plaintiff "severed ties" with the company CORPORATIONS — Winding up — Court ordered winding up — Just and equitable — Where plaintiff alleged irremediable breakdown of relationship of quasi-partnership — Whether quasi-partnership principles applicable to company established by different persons than those who suffer a breakdown of a personal relationship LAND LAW — Co-ownership — Statutory trust for sale — Where plaintiff made part payment of the purchase price — Where plaintiff's deceased father made part payment of the purchase price — Presumption of advancement — Whether repayment of plaintiff's contribution to purchase price by second defendant amounted to purchase of plaintiff's interest in property LAND LAW — Co-ownership — Rights between co-owners — Occupation fee Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Conveyancing Act 1919 (NSW), ss 54A, 66F, 66G Corporations Act 2001 (Cth), ss 53, 232, 233, 234, 461, 467 Supreme Court Act 1970 (NSW), s 67 Cases Cited: Amirbeaggi, in the matter of Simpkiss Pty Ltd (in liq) [2018] FCA 2121 Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Australian Securities and Investment Commission v Storm Financial Ltd (2009) 71 ACSR 81; [2009] FCA 269 Australian Securities and Investments Commission v Green Pacific Energy Ltd (2006) 59 ACSR 142; [2006] FCA 1254 Australian Securities and Investments Commission v Letten (No 10) [2011] FCA 498 Backoffice Investments v Campbell (2007) 61 ACSR 144; [2007] NSWSC 161 Biviano v Natoli (1998) 43 NSWLR 695 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Burwood Council v Visy Paper Pty Ltd [2021] NSWSC 565 Campbell v Backoffice Investments Pty Ltd (2008) 66 ACSR 359; [2008] NSWCA 95 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 Cassegrain v CTK Engineering Pty Ltd [2005] NSWSC 495 Cremin, in the matter of Brimson Pty Ltd (in liq) (2019) 136 ACSR 639; [2019] FCA 1023 Darrington v Caldbeck (1990) 20 NSWLR 212 Delehunt v Carmody (1986) 161 CLR 464; [1986] HCA 67 Doyle v Australian Securities and Investments Commission (2005) 227 CLR 18; [2005] HCA 78 Dyer v Dyer (1788) 2 Cox Eq Cas 92 Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 Ehsman v Nutectime International Pty Ltd (No 2) [2009] NSWSC 1096 ES Gordon Pty Ltd v Idameneo (No 123) Pty Ltd (1994) 15 ACSR 536 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (2001) 37 ACSR 672, [2001] NSWCA 97 Fexuto v Bosnjak Holdings Pty Ltd (1998) 28 ACSR 688; [1998] NSWSC 413 Forgeard v Shanahan (1994) 35 NSWLR 206 Foundas v Arambatzis [2020] NSWCA 479 Gartside v Inland Revenue Commissioners [1968] AC 553 Guirguis v Girgis [2021] NSWCA 156 Hancock Family Memorial Foundation Ltd v Porteous (1999) 32 ACSR 124 Hughes, in the matter of Substar Holdings Pty Ltd (in liquidation) (2020) 149 ACSR 185; [2020] FCA 1863 Hunter v Organic and Natural Enterprise Group Pty Ltd (2012) 92 ACSR 183; [2012] QSC 383 Hunter v Organic and Natural Enterprise Group Pty Ltd [2013] QCA 331 In Re a Company (No 00709 of 1992); O'Neill v Phillips [1999] 2 All ER 961; [1999] UKHL 24 In the matter of AJ Roberts Removals & Storage Pty Ltd [2017] NSWSC 1054 In the matter of Amazon Pest Control Pty Ltd [2012] NSWSC 1568 In the matter of Catombal Investments Pty Ltd [2012] NSWSC 775 In the matter of Computer Room Solutions [2021] NSWSC 845 In the matter of Crow Inn Pty Ltd (No 2) [2020] NSWSC 1749 In the matter of Glenvine Pty Limited (in liquidation) [2020] NSWSC 866 In the matter of Ledir Enterprises Pty Ltd (2013) 96 ACSR 1; [2013] NSWSC 1332 In the matter of Matrix Global Investment Group Sydney Pty Ltd (ACN 614 718 399) [2021] NSWSC 80 In the matter of Scientific Management Associates Pty Ltd (2019) 141 ACSR 115; [2019] NSWSC 1643 John J Starr (Real Estate) Pty Ltd v Robert R Andrew (Australasia) Pty Ltd (1991) 6 ACSR 63; (1991) 9 ACLC 1,372 Leigh v Dickeson (1884) 15 QBD 60 Luke v Luke (1936) SR (NSW) 310 Martin v Australian Squash Club Pty Ltd (1996) 14 ACLC 452 McMillan v Toledo Enterprises International Pty Ltd (1995) 18 ACSR 603 Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 Munstermann v Rayward [2017] NSWSC 133 Napier v Public Trustee (WA) (1980) 32 ALR 153 Nassar v Innovative Precasters Group Pty Ltd (2009) 71 ACSR 343; [2009] NSWSC 342 Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25 Nullagine Investments Pty Ltd v Western Australia Club Inc (1993) 177 CLR 635; [1993] HCA 45 Re Dernacourt Investments (1990) 20 NSWLR 588 Re Straw Products Pty Ltd [1942] VLR 222; [1942] ALR 361 Roberts v Walter Developments Pty Limited (1997) 15 ACLC 882 Ryan v Dries (2002) 10 BPR 19,497; [2002] NSWCA 3 Scottish Co-operative Wholesale Society Ltd v Meyer [1959] AC 324 Shelton v National Roads and Motorists Association Ltd (2004) 51 ACSR 278; [2004] FCA 1393 Snell v Glatis (No 2) [2020] NSWCA 166 Thomas v HW Thomas Ltd (1984) 2 ACLC 610; [1984] 1 NZLR 686 Thomas v McKay Investments Pty Ltd (1996) 22 ACSR 294 Tomanovic v Argyle HQ Pty Ltd [2010] NSWSC 152 Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 6) (2014) 102 ACSR 130; [2014] WASC 278 Vigliaroni v CPS Investment Holdings Pty Ltd (2009) 74 ACSR 282; [2009] VSC 428 Wayde v NSW Rugby League Ltd (1985) 180 CLR 459; [1985] HCA 68 Williams v Legg (1993) 29 NSWLR 687 Woodson (Sales) Pty Ltd v Woodson (Aust) Pty Ltd (1996) 7 BPR 14,685 Texts Cited: JD Heydon, MJ Leeming, PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed, LexisNexis, 2014) Category: Principal judgment Parties: John Tzavaras (Plaintiff) Tzavaras & Sons (First Defendant) William Tzavaras (Second Defendant) Peter Tzavaras (Third Defendant) Representation: Counsel: J Baird (Plaintiff) JC Kelly SC with Mr L Katsinas (Defendants) Solicitors: Carneys Lawyers (Plaintiff) Antonenas Legal Pty Ltd (Defendants) File Number(s): 2020/251170 Publication restriction: Nil Judgment 1. HER HONOUR: This matter involves two separate disputes between members of the Tzavaras family. First, an application by the plaintiff (John Tzavaras) for orders for the winding up, pursuant to s 233(1)(a) of the Corporations Act 2001 (Cth) (Corporations Act), or alternatively under s 461(1)(e) and/or s 461(k) of the Corporations Act, of the first defendant (Tzavaras & Sons Pty Ltd) a family company in which John and his brothers (the second and third defendants, namely William (known as Bill) and Peter Tzavaras), together with their mother, Giannoula (known as Jenny), are shareholders. Second, a claim by John for the appointment, pursuant to s 66G of the Conveyancing Act 1919 (NSW) (Conveyancing Act), of trustees for sale of a property at Maroubra (the Maroubra Property) of which John and Peter are the registered proprietors. 2. For convenience, and without intending any disrespect, I will refer to the Tzavaras brothers (and other family members) by their first names. Bill is the eldest of the three sons and John is the youngest. Their father, Nicholas (or Nick), who is now deceased, established Tzavaras & Sons in March 1985. Tzavaras & Sons is the trustee of a discretionary family trust, the Nicholas Tzavaras Family Trust (Family Trust). John also seeks an order that a receiver be appointed to the Family Trust. 3. At the hearing, John abandoned an alternative claim for relief pursuant to s 233(1)(d) of the Corporations Act that Bill and/or Peter purchase John's shares in Tzavaras & Sons at a price to be determined by the Court. John also abandoned a claim for an account in relation to a shareholder's loan account (see T 245-6; thus not pressing [24] of the amended statement of claim). Background 1. As noted above, Bill, Peter and John are brothers, the three children of Nick (who is now deceased) and Jenny. Jenny was diagnosed with dementia in 2010 and, as at the time of the hearing, resided in a nursing home aged in her late 80s. 2. The first defendant, Tzavaras & Sons, as noted above, is a company that was established by Nick on 22 March 1985. Until his death on 2 September 2001, Nick was a director and shareholder of Tzavaras & Sons and was substantially responsible for its management and the conduct of its affairs. Since 25 November 1994, each of the three sons has also been a director of Tzavaras & Sons. 3. The issued share capital of Tzavaras & Sons is comprised of four $1.00 ordinary shares, held as to one share each by: Bill; Peter; John (who purchased his share from Jenny in 1994); Nick (until his death in 2001); and, after Nick's death, Jenny. Since 17 June 1985, Bill has been the secretary of Tzavaras & Sons. Bill's wife, Kylie Tzavaras, has been and is the company's bookkeeper. For some time Mr George Ferizis (who gave evidence in John's case) was the accountant for Tzavaras & Sons, the Family Trust and a company controlled by Bill (Northmead Auto Centre Pty Ltd, to which I refer below). Mr Ferizis is now only John's accountant; another accountanting firm (Lime Street Wealth, where both Mr Jim Dionysatos and Mr Chris Dionysatos provide accounting services to the defendants) has been engaged on behalf of Northmead Auto Centre and Tzavaras & Sons (and associated entities). 4. Tzavaras & Sons does not itself trade or conduct any business. It operates solely as the trustee of the Family Trust, which was created by deed dated 13 May 1997 (Trust Deed). The income and corpus beneficiaries of the Family Trust include each of Bill, Peter and John. 5. Tzavaras & Sons, in its capacity as trustee of the Family Trust, is the registered proprietor of two properties: a property in Northmead NSW (the Northmead Property), purchased in 1997 and valued as at 10 December 2020 at approximately $7,600,000 (a more recent valuation obtained by John, which was dated 29 June 2021 but not served until 12 July 2021, was rejected – see the debate at T 31), which is subject to a mortgage to AMP Bank Ltd (AMP Bank), with a debit balance of $2,394,809 as at 30 June 2020 (AMP Mortgage); and a unit in Surfers Paradise, Qld (the Surfers Paradise Unit) purchased in 2003 for $650,000 (and now valued at approximately $700,000). 6. The sole source of income for Tzavaras & Sons (and through it the Family Trust) is the rental income it receives from the Northmead Property and the Surfers Paradise Unit. The upper level of the Northmead Property is leased by Tzavaras & Sons to 7 Eleven Stores Pty Ltd (for a rental by the time of the hearing at approximately $434,000). The lower level of the Northmead Property has been occupied by Northmead Auto Centre Pty Ltd (Northmead Auto Centre) as trustee of the Northmead Auto Centre Trust (NAC Trust) (of which John is not a beneficiary) since at least 2015. Bill is the sole director, secretary and shareholder of Northmead Auto Centre, which was incorporated in 2013 (a fact relevant to certain of the complaints made by John on the oppression application). 7. Northmead Auto Centre operates an automotive mechanics workshop and repair business from that part of the Northmead Property that it occupies. It does not pay any rent or fee to Tzavaras & Sons for its use and occupation of the lower level of the Northmead Property. John says that the estimated present rental value of the lower level of the Northmead Property is approximately $50,000 to $56,000 per annum (relying on a real estate appraisal to which I will refer in due course). On that basis John argues that the value of the lower level of the Northmead Property is approximately $869,000 (saying that this is the market range as at 10 December 2020). 8. John points to the operating profit after income tax of the NAC Trust for FY16 to FY20 and notes that the financial statements for the NAC Trust for FY20 record that the total income available for appropriation (after application of carried forward tax losses) of $36,458.38 was distributed to NAC Trust, recorded as "beneficiary loan". It is noted by John that the NAC Trust is not an income beneficiary of the Family Trust. Complaint is made that John has received no part of the profits from Tzavaras & Sons as trustee of the Family Trust (despite the profits as recorded in the relevant financial statements) and that those profits have been offset against tax losses (see T 3.10-40). John's two principal complaints as to alleged financial mismanagement (which I address in due course) are as to the reduction in the joint shareholder loan account and the failure of Tzavaras & Sons to distribute profits of the trust (although no breach of trust is here alleged) (see T 3.38), but there is also a complaint as to an increase in the loan account for Northmead Auto Centre (which it is contended is part of the distribution of the profits of the Family Trust – see T 3.42). 9. The Family Trust has net assets which have been valued by the Court appointed single expert, Ms Fiona Bateman of Dolman Bateman Chartered Accountants, as at 30 June 2020 at $5,766,000 (Ms Bateman's report dated 1 April 2021 was adopted by the Court – see the orders of Black J of 26 April 2021 – and marked Exhibit A at the final hearing). Those assets comprise: the Northmead Property ($7,600,000); the Surfers Paradise Unit ($700,000); a loan to NAC Trust (valued at $593,761), which John notes represents an increase from $486,490 as at 30 June 2019); a loan account in the name "N, G, W, P, J Tzavaras" ($209,370) (the Shareholders' Loan Account), which John notes represents an increase from $191,870 as at 30 June 2019; and the amount recorded as a beneficiary loan in relation to NAC Trust of $36,458 (that amount being the subject of an entry "Distribution to beneficiaries, Northmead Auto Centre Trust" and then an entry under the heading Financial Liabilities, as a current unsecured liability, reading "Beneficiary loan Northmead Auto Centre Trust" – from which it appears that there was a notional distribution to the trustee of the NAC Trust and a loan back to Tzavaras & Sons) (see T 254.18-36). 10. It is relevant to note at the outset (since John's complaints seem largely to derive from a misunderstanding of this distinction) the distinction between the position of Tzavaras & Sons (i.e., the company) as trustee of the Family Trust and the position of the Family Trust (in which the relevant assets are held) itself. John sees himself as having an entitlement to one quarter of the assets of the Family Trust because he holds one quarter of the issued share capital of Tzavaras & Sons. Thus, it is said that "an integral part of the mathematics" in the present case is that one-quarter of the valued assets of the Family Trust is $1.44 million (see T 4.29-31). The difficulty which the defendants here emphasise (and by defendants I refer to Bill and Peter, since those are the relevant contradictors to the claims by John in relation to Tzavaras & Sons) is that what John has is one ($1) share in a trustee company, which itself has no relevant assets; he is only a discretionary object (as are they) of the Family Trust and would not be entitled to call for one-quarter of the assets of the Family Trust. 11. Indeed, in closing submissions it was accepted that Ms Bateman had valued the company and the trust as one, rather than separately valuing a 25% shareholding in the company and then an expectancy as a beneficiary of a discretionary trust (see T 258.14-23); and hence that if any order for the compulsory purchase of John's share in Tzavaras & Sons (which is not the relief he is now seeking in any event) were to be made then there would be no evidence as to the value of his minority share (and it was suggested that in that case were such a valuation to be necessary there might be a fresh referral out to determine the value of John's minority share in Tzavaras & Sons and/or interest as a discretionary object of the Family Trust). 12. Moreover, a winding up of the trustee of the Family Trust (i.e., Tzavaras & Sons) would bring into operation provisions of the Trust Deed as to the ongoing management of the Family Trust (see below), which would not necessarily result in John obtaining a one-quarter share of the assets of the Family Trust. 13. Insofar as John complains of the reduction in the shareholder loan account (which he accepts is a joint loan account), his complaint is not as to the "legitimacy" of the making of withdrawals from that account (which I note have included some not insubstantial payments made by the defendants for the benefit of Jenny's needs); rather, the complaint of oppressive conduct in this regard is as to the perceived unfairness of John's treatment (i.e., that the shareholder loan account has been reduced by some $1.1 million – $1,125,527 – for the benefit of the other three named owners of that loan account, in a period of in excess of three years, with no part of that money being paid to or for his benefit between 1 July 2012 and 30 June 2020) (see T 252.28-31; T 256.11-17). Chronology of events Establishment of Tzavaras & Sons and acquisition of Northmead Property 1. Nick established the family company (Tzavaras & Sons) in 1985, and the Family Trust in May 1997. 2. The Northmead Property was acquired by Tzavaras & Sons, expressly as trustee for the Family Trust, in 1997 for the sum of $654,000. The transfer was registered on 23 July 1997. It was encumbered by a mortgage (dated 11 July 1997) in favour of St George. The family business 1. Each of Nick's sons appears to have worked at various times as a motor mechanic in what was started by Nick as the family business. Relevantly, from 2000 until about 2012, John worked (his consistent complaint in this proceeding being that this was without wages) as a mechanic at the Northmead Property. The evidence is nevertheless to the effect that the sons, including John, were able to draw on funds from time to time by way of use of the company cheque book – and John seems to accept that from time to time he did indeed have use of the cheque book to pay for tools or other items for his own benefit (see T 92.9-50, 93.1-11). John also made use of the lower part of the Northmead Property for some time, storing one or more racing cars on that part of the premises for no cost (see T 93.34-41, 94.1-23). Establishment of Northmead Auto Centre 1. I interpose here to note that Bill's company, Northmead Auto Centre, was incorporated on 15 October 2013. Until then, the "Northmead Auto Centre" business was apparently conducted by Tzavaras & Sons. Hence the defendants say that the allegation at [13A] of the amended statement of claim to the effect that John worked as a mechanic for Bill or Northmead Auto Centre for the period from 2002 to 2012 is factually incorrect. Departure of John from family business 1. In 2012, John ceased working at the Northmead Property and (on his own evidence) left those premises permanently. John says that his main complaint at that stage was as to non-payment of wages (see T 262.8-14). John commenced his own business at or about this time. In closing submissions, John emphasises the distinction between the business of Northmead Auto Centre, i.e., the business conducted by Bill from the lower level of the Northmead Property; and the assets and affairs of the Family Trust (see at T 261.47-50, 262.1-2), John maintaining that what happened in 2012 was that John ceased to work for or in Bill's business but that this did not mean he had absented himself from the affairs of Tzavaras & Sons and the Family Trust (and see for example the submissions at T 281.10-11). However, as at 2012, Bill's company did not exist; rather, the business conducted at the Northmead Property seems to have been the family business through Tzavaras & Sons. 2. In his (third) affidavit, sworn 27 July 2021, John deposes to a conversation that he says he had with Bill in about March or April 2012 at the time he "left the Northmead Auto Centre site permanently" (and immediately following which he says he handed Bill the keys to the workshop) to the following effect: John: Bill, can we have a chat. I've had enough. I can't do this anymore. I want out. I want you and Peter to buy me out. Bill: Well, what's your number? Obviously you've got a number in your head. John: Four million. Bill: No way. One million for everything, including Maroubra. [This being a reference to the property jointly owned by Peter and John – see below] John: No way. That's not enough. 1. John deposes that the conversation was in the presence of the brothers' uncle (Bill Coundrelis). No evidence was called by either side from the uncle. 2. Bill denies that this conversation took place (at [4] of his affidavit affirmed 29July 2021). 3. By letter dated 30 July 2012, John's solicitor (Mr Titus of Carneys Lawyers) wrote to Bill, Peter and Mr Ferizis (Annexure "A" to Bill's affidavit of 29 July 2021) stating that John "did not work for the Company from 2007 to 2010"; that John "walked out on 13 July (or 20 July) [sic] 2012"; and that John "wishes to sever his ties with the Company and for [his solicitors] to advise in relation to his rights as a shareholder in the Company". 4. On any view of the matter, this letter must have been referring to Tzavaras & Sons (not Northmead Auto Centre) since John was a shareholder in (and director of) that company (not Bill's company). Furthermore, what is abundantly clear from this correspondence is that John did not wish to continue in the management of Tzavaras & Sons and that he wanted to be bought out of the company. 5. The defendants point out that the letter made no complaint as to the exclusion of John from management of Tzavaras & Sons. The 30 July 2012 letter referred to John not being paid a salary (although the company "pays his tax") but that he was a director. The letter also noted that "the Directors have income from other sources". The defendants point out that, in John's case (see [14] of his affidavit of 25 August 2020), Nick left him a takeaway fish and chip shop at Lethbridge Park, including the unencumbered land and business; an unencumbered industrial unit at Mount Druitt, which was leased to a business named "Car Batteries"; a one third interest in a shopping centre at Georges Hall; and a bank account in Greece containing $120,000. 6. Pausing here, while I accept that John's share in Tzavaras & Sons was not acquired (and thus he was not ever "bought out"), and he remained as a shareholder and director (hence he did not sever his ties completely with the company), the position there conveyed by John's solicitors in July 2012 makes it difficult – to say the least – for John now to contend, as he does, that he was excluded from management of the company. Rather, John chose to withdraw from involvement in Tzavaras & Sons (albeit remaining as a director and shareholder). The distinction sought to be drawn in oral submissions on behalf of John (between saying that he wished to sever his ties and saying that he had severed his ties) seems to me to be a matter of semantics; in the context of this family company, what John was clearly conveying was that he did not wish to take any active part in the ongoing management of the company. Consistent with that expressed wish is the fact that John did not thereafter seek to take any part in the management of the company (and did not complain about receipt of notices of meetings or financial statements of the company nor did he seek to attend any such meetings) for a lengthy period. This is not to gainsay that, as a director and shareholder, he was entitled to receive notices of meetings and the like. However, it is difficult to see any oppression arising where the remaining directors and shareholders simply acceded to John's expressed wishes. Further, it is evident that from time to time documents in relation to Tzavaras & Sons were supplied to John (albeit, at least at times, indirectly through a conduit). Complaint is nevertheless made that, so long as he was a director of the company, John was entitled to receive and continue to receive notices and financial statements of the company (see T 264.1-5). 7. It is not disputed that John has not attended any meeting of directors of Tzavaras & Sons since at least 2012. John maintains that there has been an irretrievable breakdown in the personal relationship between the brothers since 2012 (noting the evidence of both Bill and Peter to the effect that they had not spoken with John since 2012; although there was some evidence from them to the effect that they had attempted to contact John but he had not taken or returned their calls). For John's part, it seems to be accepted that he has not attempted to contact his brothers. That said, and somewhat surprisingly given the adamance with which John asserts that there has been an irretrievable breakdown in the relationship with his brothers such as to warrant the winding up of Tzavaras & Sons and the appointment of a receiver to the Family Trust, as noted above there is evidence that the brothers inherited from Nick a shopping centre at Georges Hall and there is no suggestion that they have been unable to operate that business, through their joint ownership of the property, in the years since Nick's death in 2001. John's automotive repair and service centre business 1. John deposed (at [13] of his affidavit of 25 August 2020) that in 2010 he started his own automotive repair and service centre business, trading as Norwest Automotive at Seven Hills, which he managed until it ceased trading in 2013. In cross-examination, John accepted that this was incorrect in that the relevant date was not 2010 it was 2012 (see T 82.8-24). The defendants point out that John's email address as at 27 July 2012 was "norwestauto" (see Bill's 29 July 2021 affidavit, annexure A). Further, the defendants argue that it is clear from T 82.29-30 that John's business did not cease trading until 2013 when "it went broke". Maroubra Property 1. As to the chronology of events in relation to the Maroubra Property (which is the subject of the separate claim by John), it was acquired at auction on 20 January 1997 for the price of $610,000. Settlement of the purchase occurred on 25 June 1997 (which was at around the same time that the Northmead Property was acquired by Tzavaras & Sons). 2. There appears to be no dispute that, when the Maroubra Property was acquired, John contributed a sum of $125,000 towards the purchase price; Peter contributed a sum of $90,000; Nick (or perhaps, according to Bill, Nick and Jenny out of their joint funds) contributed around $195,000; and there was a loan taken out from Westpac Banking Corporation (Westpac) by John and Peter secured by mortgage over the property in the sum of around $200,000 in relation to the balance. 3. In oral evidence, Bill was adamant that he had also contributed to the Maroubra Property, saying that "we sold a family property and paid off the property" (T 208.33-35). Bill clarified this by saying that he put his money into the property "when the property got sold and paid it off" (T 208.49). As far as I can glean, Bill was referring to amounts paid at the time of the refinancing of the property but this was not altogether clear (see below as to Bill's evidence in cross-examination). 4. The title to the Maroubra Property was (and remains) in the name of Peter and John as tenants in common in equal shares (and it is now subject to the AMP Mortgage). Peter and John together occupied the Maroubra Property for about a year after it was purchased before John moved back into his parents' home (he says to look after his ailing mother, Jenny). The Maroubra Property has been occupied since about 1997 exclusively by Peter and his family (and John complains in this proceeding that no rent or occupation fee has been paid to him in respect of Peter's occupation of the property since 1997). 5. In 1999, the St George Bank mortgage to Tzavaras & Sons in relation to the Northmead Property was refinanced with Westpac, the mortgage being stamped as at 27 March 1999 on the basis that the amount secured was $680,000. 6. On 27 January 1999, a second mortgage was granted to Westpac over the Maroubra Property, securing the sum of $1.9 million as collateral security for an increased loan by Westpac to Tzavaras & Sons for the development of the Northmead Property. 7. There were thus two separate mortgages to Westpac over the Maroubra Property (one relating to the initial purchase price and one which was collateral security for the Westpac loans in relation to the Northmead Property redevelopment). Bill's evidence in cross-examination, questioned as to the two separate mortgages, was somewhat confused. At first, Bill's evidence was that the mortgage over the Maroubra Property (here meaning I think the initial mortgage that was refinanced in January 1999 but not granted as collateral security for the Northmead Property redevelopment finance) was paid out by the sale of a factory unit (T 206.35-38). Bill then appeared to accept the proposition put to him (T 206.40-47) that there were two separate mortgages before again giving evidence as to his understanding that the indebtedness over the Maroubra Property as at 2002 (see T 207.15-19) was that the property was paid out and it was only the mortgage to the service station. Bill also said that he knew about the $1.9 million but not the $200,000 mortgage (and said "I'm pretty sure that we would've sold the property by then") (T 209.1-5). 8. It is not disputed that in 2002, there was some discussion between John and Peter in relation to John's interest in the Maroubra Property. (There are, however, competing versions of what was said and whether it was in one conversation or two – see John's oral evidence at T 68-78 and Peter's oral evidence at T 126-131). 9. On John's version of the conversation, Peter was angry when John said to him "Peter, I want to buy my own home. Would you agree to sell Maroubra, or buy my share of Maroubra". (The defendants say that why anyone would become angry in response to such a question is unexplained.) John deposes that Peter said "I'm not selling. I'm not buying you out. If you go legal against me, I'll put a bullet in your fucking head" but that (shortly after this and in the same conversation) Peter then said "I can only pay you $125,000" and that he, John, responded to this "Ok, give me the $125,000 and we can sort the rest out later" (it being left unclear what was contemplated by sorting the rest out later or whom that might be). 10. At that time (the end of 2002) the $1.9 million AMP Mortgage was on the title to the Maroubra Property to secure the funds advanced to construct the new service station at the Northmead Property. The defendants say that it is inherently more probable that Peter said (as he has deposed) "[w]e can't (sell the Maroubra Property) as you know its tied up as security for the petrol station". On Peter's version of the conversations about this topic, he says that a few days later he agreed that he would repay to John the amount he had contributed to the purchase price and his evidence is that this was in effect in satisfaction of any claim by Peter to the property (T 126.14-19). 11. Bill's version in his affidavit was that he said words to John to the effect "[b]oth our houses are mortgaged over the Northmead Property. We can't just remove one of them without reducing the loan or replacing it with another property" but in cross-examination he said that it was Peter who had had that conversation with John and he could not remember if he (Bill) had had such a conversation with John (see T 209.43-49). When I tried to clarify this with Bill, he said that "when all this was said, the discussion was brought in front of me and me and Kylie are the ones that transferred the money to John's account". Bill was initially adamant that he heard John say "I want my original amount that I put in and I will walk away from the house" (T 210.7-9) but pressed in cross-examination on this Bill said that he could not remember exactly, then said he did remember the conversation but did not remember when and where it was (see T 210.26-50, 211.1-16). 12. The defendants submit that John's version is not plausible, i.e., that Peter would start making threats and then shortly after agree to pay all the money that he then had as a part payment for a larger sum which was not discussed, let alone agreed. 13. It is not disputed that on 23 January 2003, the sum of $125,000 was paid to John. On Bill's evidence, this payment was made by him and his wife Kylie on behalf of Peter (T 210.19-23). Bill was adamant that the payment was for the house "and for John to move on" (T 211.46-47). With the ring of truth, Bill asked rhetorically "[w]hy would Peter give him 125 if he was going to come after him again?" (T 212.3-4). 14. In 2011, the Northmead Property was refinanced with AMP Bank Ltd (AMP Bank). The two mortgages to Westpac over the Maroubra Property were discharged (see 4 August 2011 discharge of mortgage) and a fresh mortgage over the Northmead Property was granted to AMP Bank (dated 5 August 2011), securing the amount of $2,118,000. The Maroubra Property was provided as collateral security for AMP Bank's loan to Tzavaras & Sons secured over the company and the Northmead Property (as also was Bill's own home). On or shortly prior to 5 August 2011, at the request of Bill, John signed the mortgage to AMP Bank over the Maroubra Property as registered proprietor and co-mortgagor together with Peter. 15. In 2019, Bill requested that John sign a personal guarantee in relation to a proposed refinance of the Northmead and Maroubra Properties. John refused to do so. Bill accepted that there were discussions at that time with Peter, Kylie and Mr Ferizis, and that there were some documents that emanated from AMP Bank that were required to be signed (T 212.46-48). AMP Bank wanted a personal guarantee from the three brothers and Bill accepted that he had asked John to sign the mortgage (T 213.43-44) and that John had refused to do so (T 214.33-35). Bill understood that this was because John's name was still on the title to the Maroubra Property (T 214.41-44). However, Bill clarified that evidence by adding that "I didn't ask John to sign nothing over the Maroubra property" (T 214.37-39), saying that the request was through an intermediary (a Mr Manolis) (T 215.6-16, 35-47). (That evidence is consistent with the evidence on both sides that there have not been personal communications between Bill and John since 2012.) Pleaded claims 1. In prayers 1, 2 & 3 of the initial Originating Process filed on 28 August 2020, John sought: an order pursuant to s 232 of the Corporations Act declaring that Bill and Peter's conduct of the affairs of Tzavaras & Sons is and has been oppressive to, unfairly prejudicial to or unfairly discriminatory against him; an order pursuant to s 233(1)(a) of the Corporations Act, that Tzavaras & Sons be wound up; and, in the alternative, an order pursuant to s 233(1)(d) of the Corporations Act that Bill and/or Peter purchase his shares in Tzavaras & Sons at a price to be determined by the Court. As noted, the relief sought in prayer 3 (the compulsory purchase order) was not ultimately pressed. 2. In prayers 4-12 of the initial Originating Process, John also sought orders for the appointment of trustees for sale of the Maroubra Property under s 66G of the Conveyancing Act. 3. On 15 October 2020, Black J ordered that the matter proceed on pleadings. A statement of claim was filed on 1 December 2020. In the statement of claim, John pleaded claims of oppressive conduct under five headings: exclusion from the management of Company affairs; shareholder loans and dividends; Northmead Auto Centre claim; misuse of Company funds (relating to the failed acquisition of the trucking business); and the Surfers Paradise Unit claim (in relation to unpaid holiday rent). 4. In summary, those oppression claims are as follows. 5. The exclusion from management claim (pleaded at [12]-[13]) involves an allegation that John has "taken no part in" the management of the company's (Tzavaras & Sons) affairs and business, received no notice of any annual general meeting of the company or its board of directors and has not been provided with any minutes of meetings or financial statements or other information about the company's financial or taxation affairs. 6. The claim as to the Shareholders Loan Account and non-payment of dividends (pleaded at [14]-[24]) is an allegation that John did not receive repayment from the joint Shareholder Loan Account (referred to above) owned by Nick, Jenny, Bill, Peter and John; and that John was not paid any dividend by Tzavaras & Sons. (I note that the Shareholder Loan Account was established by Mr Ferizis, on instructions from Nick, in 1998 – see Mr Ferizis' evidence at T 115.22-25.) 7. The Northmead Auto Centre claim (pleaded at [25]-[26]) is an allegation that Bill and/or Peter have preferred their own interests to those of Tzavaras & Sons by allowing Bill to use the workshop under the service station for motor vehicle repairs, without Bill's operating company (Northmead Auto Centre) being required to pay rent. The claim is for a 25% share of rent alleged to be properly assessed at a rate of $50,000 per annum (for an unstated number of years). 8. The misuse of company funds claim (pleaded at [27]-[35]) relates to a loss sustained when a proposed acquisition of a trucking business did not proceed (apparently due to the fraud of the prospective vendor). At [34], it is pleaded that "[t]he proposed acquisition of the trucking business did not proceed, but the Company was unable to recover the ... sum of $825,400 from the putative vendor and that sum was lost to the Company". In essence it seems to be submitted by John that negligence in relation to this transaction is an indicium of mismanagement or misuse of company funds (see T 260.50, 261.6-10). 9. The Surfers Paradise Unit claim (pleaded at [36]-[38]) is an allegation as to unpaid holiday rental for the property owned by Tzavaras & Sons as trustee for the Family Trust. At [37], it is alleged that since about 2003 Bill has occupied the Surfers Paradise Unit from time to time "without however paying any rent or other amount to the Company for or in connection with the same". 10. At the commencement of the hearing, there was an application for leave to amend the Originating Process (an amendment that had first been foreshadowed on or about 22 July 2021, i.e., about a week before the hearing was to commence). The application was opposed. The principal amendment sought was to add as an alternative prayer for relief a claim for the winding up of Tzavaras & Sons pursuant to s 461(1)(e) and/or (k) of the Corporations Act (John referring in that context to the decision of Rees J in In the matter of Crow Inn Pty Ltd (No 2) [2020] NSWSC 1749 (Crow Inn (No 2))). It was contended that the alternative ground did not expand the evidence that was required, since the same conduct that was relied upon as constituting oppression was also relied on in order to found the claim for winding up on the just and equitable ground (namely, the relationship between the parties; the "deadlock" between them; and the irretrievable breakdown of the relationship between them – see T 13.14-22). This was put as an alternative or fallback to winding up under the oppression ground. 11. Also sought by way of amendment was a prayer for the appointment of a receiver to the trust (with the ancillary powers specified in the draft amended originating process), to deal with the consequences of Tzavaras & Sons being a trustee of a trust; and an amendment to prayer 3 (which sought a compulsory purchase order in relation to the company shares pursuant to s 233(1)(d)) to add "including his interest in the Nicholas Tzavaras Family Trust". Reference was made in that context to In the matter of Glenvine Pty Limited (in liquidation) [2020] NSWSC 866 per Black J (at [37]-[43]); Hughes, in the matter of Substar Holdings Pty Ltd (in liquidation) (2020) 149 ACSR 185; [2020] FCA 1863 per McKerracher J (at [27]-[28]), referring to the position where a corporate trustee is removed by operation of a disqualification clause in the trust deed and the right of indemnity or exoneration persists; Cremin, in the matter of Brimson Pty Ltd (in liq) (2019) 136 ACSR 639; [2019] FCA 1023 per Moshinsky J; and Amirbeaggi, in the matter of Simpkiss Pty Ltd (in liq) [2018] FCA 2121 per Markovic J, where a receiver was appointed and an order made that the liquidator could distribute the assets of the trust. 12. In summary, it was submitted that the proposed amendment (though late) was "not too late"; that it "exposed no further ambit" of the evidence than was already encompassed by the oppression case; and that it raised purely a point of law, such that (having regard to s 56 of the Civil Procedure Act 2005 (NSW)), it was just that the amendments be allowed in order that all legal issues between the parties be ventilated at the one hearing. 13. The principal complaint by the defendants to the proposed amendment (noting that there had been no explanation for the delay in this regard, contrary to the requirement for a satisfactory explanation as made clear in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [5] (Aon Risk Services)) was the absence of any proposed amended statement of claim to make clear the basis on which the amended relief was sought. 14. As to the amendment to the relief sought to add a winding up on the just and equitable ground, complaint was made that there was nothing in the existing pleading as to the concepts of "deadlock" or "irretrievable breakdown of the relationship"; and the defendants maintained that evidence would need to be adduced in relation to those matters (including as to the history of the manner in which the affairs of Tzavaras & Sons had been conducted over several years – such as the co-operation between the directors in the passing of circular resolutions and the like). Complaint was made that there would need to be a properly pleaded and particularised claim in that regard and it was foreshadowed that the defendants would need to adduce further evidence. 15. As to the amendment in relation to the appointment of a receiver to the Family Trust, it was noted that the order proposed was to be sought pursuant to s 67 of the Supreme Court Act 1970 (NSW) and/or s 233(1)(h) of the Corporations Act but that those two heads of claim, although stated in the alternative, have a different threshold. The defendants submitted that, insofar as the power under s 67 was invoked, it could not be said that the appointment of a receiver was merely ancillary, for the reason that one of the grounds upon which it had been suggested that such a claim would be made was to support or enable an outgoing trustee to exercise its lien or right of exoneration over trust assets to any extent that the trustee has unpaid debts or liabilities. The defendants maintained that, again, it would be necessary for there to be a properly pleaded and particularised basis for the claim (noting that such a claim was predicated upon the assumption that there was going to be an outgoing trustee). 16. The prejudice identified in this regard was the scope of the order and the absence of any pleaded basis for it (see T 16.27-36); the defendants noting that there was no allegation or evidence justifiying realisation of the assets of a solvent trust; and that John is a mere discretionary object of the trust with no proprietary interest (just a contingent future interest or expectancy) (see T 17.1-4), thus raising the spectre of the need for a different class of expert evidence. 17. After an adjournment to obtain instructions on the amendment application, it was pressed by John. Accordingly, I directed that an amended draft pleading be served, properly particularised, with an affidavit explaining the delay, and deferred ruling on the application that day. When the matter resumed on the second day of the hearing, the application for leave to amend was pressed (albeit not in relation to the proposed amendment to add the relief as to the powers of a receiver appointed to the Family Trust). The explanation proffered for the delay in the amendment application was to lay the blame at the feet of Counsel for the plaintiff (it being said that the alternative ground of relief in respect of the winding up occurred to him when drafting the submissions for the hearing). Reliance was placed on Aon Risk Services at [102]-[103]; and to a decision of Henry J in Burwood Council v Visy Paper Pty Ltd [2021] NSWSC 565 (at [55]) in support of the application to amend. 18. Ultimately, after some debate, I allowed the amendments in relation to the alternative basis for the winding up order that had been sought (but not the application for amendment in relation to the proposed relief by way of an order for the acquisition of John's interest in the Family Trust) and ordered the plaintiff to pay the costs thrown away by the amendment including any vacated hearing dates. I permitted the defendants time to adduce further evidence on the just and equitable ground issue that had belatedly been raised (see T 45.39-41). This had the unsatisfactory consequence of extending the hearing time (and requiring the reallocation of other matters in the Court). Issues 1. The following issues thus arise for determination: first, whether there has been oppressive conduct by Bill and Peter within the meaning of s 232 of the Corporations Act; second, if so, whether an order for the winding up of Tzavaras & Sons should be made pursuant to s 233(1)(a) of the Corporations Act; third, and alternatively, whether Tzavaras & Sons should be wound up on the just and equitable ground pursuant to s 461(1)(e) and/or s 461(k) of the Corporations Act; third, whether some alternative remedy should be granted under s 467(4) of the Corporations Act; and, finally, whether an order should be made under s 66G of the Conveyancing Act appointing trustees for the sale of the Maroubra Property (and, if so, on what terms). Evidence 1. Affidavit evidence was adduced from John (three affidavits sworn on 25 August 2020, 11 February 2021 and 27 July 2021, respectively) and from Mr Ferizis (an affidavit sworn 15 October 2020, and a further affidavit sworn 27 July 2021), who, as noted above, is the former accountant for Tzavaras & Sons. Much of the evidence on which John relied was documentary, such as the financial statements and records of the Family Trust, particularly since 2015. 2. The defendants adduced affidavit evidence from each of Bill and Peter (each of whom affirmed an affidavit on 7 December 2020, with Bill affirming an additional affidavit on 29 July 2021), from Bill's wife (Kylie) (being an affidavit affirmed 7 December 2020) and from their current accountant (Mr Chris Dionysatos) (being an affidavit affirmed 7 December 2020). 3. As noted above, a joint expert report dated 1 April 2021 by Ms Fiona Bateman as to the value of Tzavaras & Sons "as trustee" of the Family Trust adopted on 26 April 2021, by consent, by Black J was tendered in evidence (marked Exhibit A). The report concluded that the value of Tzavaras & Sons (i.e., the company) as trustee of the Family Trust was $5,766,000 (that being the sum of the net assets of the Family Trust). The report did not value the interest of a minority shareholder in a company in its capacity as trustee of the Family Trust; nor did it value the interest of a beneficiary object under that discretionary trust. With no disrespect to Ms Bateman (since her report was addressing the questions asked and on the assumptions with which she was provided), ultimately this report was of little assistance since it seems to have been premised on an incorrect assumption that the interest of a shareholder in a trustee company (that shareholder being no more than a discretionary object under the trust of which the company is trustee) has a proportionate share (in this case one quarter) of the assets of the trust. It is unfortunate, to say the least, that time and expense was wasted by the parties on this misconceived exercise. Lay witnesses 1. As to the respective lay witnesses, the following submissions as to credit were made. John Tzavaras 1. John submits that he should be accepted as a truthful witness, even if a little naïve and stubborn at times. It is noted that John is not well educated, having left school before completing his HSC and is a car mechanic (not a mechanical engineer); and it is said that he is not a sophisticated person (noting that his evidence was that he did not understand what a trust was (T 80.18-23). 2. John's evidence is to the effect that, until Nick's death in 2001, John had been content to leave Tzavaras & Sons in Nick's hands; and that, after Nick's death, Bill assumed the management of the company's affairs and John trusted Bill, until at least 2018. 3. Much complaint is made by John to the effect that John had worked in the workshop at the Northmead Auto Centre (a business said to be owned and conducted through Bill's company and effectively Bill's business but – as the defendants point out – this was not the case until 2013, after John had left) from at least 2000 until 2012, without receiving a wage. The significance attributed by John to the non-receipt of a wage by him over this period is that it informs the oppression claim. Perhaps ironically, in circumstances where John himself seems not to have understood the import of the distinction between a company and a discretionary trust – nor even the nature of a trust – John says that Bill conflates the business of Northmead Auto Centre or the NAC Trust and the business of Tzavaras & Sons or the Family Trust. 4. For John, it is said that it was hardly surprising that, in 2012, shortly after John became married in 2010, he should desire to start his own business and to cease working (for no payment) at the Northmead Auto Centre. It is said that much of John's attitude can be explained by his resentment at his treatment by Bill (including the refusal of Bill and Peter to buy out his interest in Tzavaras & Sons or the Family Trust at a fair price). Pausing here, whether or not John felt justifiably resentful of his treatment by his brothers is not to the point when assessing his credit as a witness (which is the context in which John here raises this). It simply indicates to my mind that caution should be exercised in accepting John's account of events in circumstances where that is likely to have been influenced, subconsciously or otherwise, by his admitted feelings of resentment, 5. My impression of John in the (virtual) witness box was that he has a genuine sense of grievance as to the matters of which he complains but that he has a misguided sense of his entitlements (hence, his belief that he is entitled to a payout of a quarter of the net assets of the trust) and that this (perhaps understandably) has influenced his perception or recollection of events. The complaint about oppression in relation to the Shareholders Loan Account is one such example. The fact is that there were not insignificant sums paid for the benefit of his elderly mother (who as noted is suffering from dementia) yet no account seems to have been made for this in John's perception of events. Further, John's evidence is not always reliable such as the date on which he commenced his own service station operation. More relevantly, for example, the complaint as to non-payment of wages by Bill's company is untenable in circumstances where Bill's company was not incorporated at the time (though I accept that it may perhaps be explicable on the basis that John's understanding was that Bill was in control of the business from the family perspective). 6. The concession by John's Counsel that John might be seen as stubborn was borne out by John's unwillingness in the witness box to concede that any relief other than the (draconian) step of winding up Tzavaras & Sons (and/or the Family Trust) would satisfy him. It is abundantly clear that what John wants is to be bought out of the family company (and trust) at a sum that reflects the one quarter share of the assets of the trust to which John believes he is entitled. John's evidence as to how he determined in his own mind the figure of $4 million (that he says he put to Bill in the disputed conversation in 2012) is revealing in this context (see at T 83.28-46). 7. John complains of exclusion from management yet is clearly not interested in any resolution of the matter which might see him take on a meaningful role as director of the family company (his apparent belief that to do so would require him to work as a mechanic for Bill's company for no wage is in my opinion untenable); and John's focus on benefits obtained by his brothers (such as their use of the Surfers Paradise Unit for brief periods – a trivial complaint at best – or the occupation at no rent of the lower level of the Northmead Property, when he too used the property for a time at no cost to store and work on his racing cars) as amounting to oppression does him little credit. There is thus no little force in the suggestion put by the defendants that the application for orders to wind up Tzavaras & Sons is no more than an attempt to secure a buy-out of John's shares at a substantial price. 8. Thus, I am cautious about adopting John's evidence of conversations and events where there is no independent corroboration; and I would place more weight on contemporaneous documentary evidence (such as the assertions made – and those not made – in John's solicitors' correspondence in July 2012). Bill Tzavaras 1. John refers to the following evidence of Bill: that the NAC Trust occupied the lower level of the Northmead Property without paying rent to Tzavaras & Sons (at T 198.33-36); his description of himself as a caretaker (at T 198.43-49); and Bill's acceptance that John was not paid any wages for working in the Northmead Auto Centre workshop from 1998 to 2012, and that this was probably a source of complaint by John to him (at T 217.14-20). It is further noted that Bill agreed (T 215.31-33; T 222.42-43) that he had not himself spoken with John since John's departure in 2012. I pause here to note that Bill says at T 239.34-35 that "John's never been kicked out of the place. He, he was welcome to come up any time he wants" and Bill was emphatic in his denial (which I accept) that this was on the proviso that John came back to work at the Northmead Auto Centre. 2. It is said for by John (and I agree) that Bill's recollection in the witness box as to John's exit from the Maroubra Property (see T 209.19-21; T 211.13-16) was poor. Similarly, it is said that Bill's recollection of the conversation or conversations he had with John around the time of John's departure from the Northmead Property in 2012 was less than clear (T 218.23-221.50). John says that his own evidence should be preferred in this regard (and that he was clear in his recollection at T 83.25-49, T 90.1-29). 3. The submission that Bill's evidence was less than clear is an understatement – Bill's recollection on many matters was poor. Nevertheless, the argument that John's evidence should be preferred because he was clear in his recollection seems to me to beg the question – there is little doubt that John has a firm belief in the merits of his claim but the fact that he has (or has convinced himself that he has) an entitlement to the relief he seeks does not make his evidence inherently more reliable. 4. John notes that Bill was unable to point to any notices of meetings of directors of Tzavaras & Sons or of annual general meetings of Tzavaras & Sons that he, as secretary, had sent to John (see T 223-224); and John says that his own evidence (that until 2018 at least John had received no such documents from Tzavaras & Sons) is to be preferred. (I agree.) 5. It is noted that, at T 226.32-34, Bill agreed that he had relied on Kylie to maintain the books of Tzavaras & Sons and the Family Trust on its MYOB software. Bill said that he left the bookkeeping for the Family Trust to Kylie and to Tzavaras & Sons' accountant (T 233.36-37). It is said that, beyond that, Bill was basically unaware of the detail of those financial records (T 233.15-17) and that he again relied on Kylie and Tzavaras & Sons' accountant (T 235.42-44). Further, it is noted that (see T 239.23-25) Bill accepted that NAC Trust's loan account in the Family Trust amounted to approximately $593,000. 6. As indicated above, there is no doubt that Bill's recollection of events in the (virtual) witness box was extremely poor. His constant refrain was that he could not remember things or did not know things about which he was questioned. In stark contrast to this was his adamance ("[t]hose words are 100%" – see T 211.42-47; and "those words never leave your mind" – see T 212.6-8) that John had said in his presence in relation to the Maroubra Property that "I just want the 125,000, and I'll do my own thing. I want nothing to do with Maroubra. You guys worry about that". 7. Although I had some concern that Bill was being unco-operative or obstructive in the witness box (having regard to the succession of answers to the effect that he did not know or did not recall – and his professed inability to remember almost anything), ultimately I formed the view that Bill was simply a laconic and not particularly sophisticated witness who was not prepared to speculate; and that it was not implausible that he simply had a poor memory of events. At some points in the cross-examination it was clear that Bill had difficulty understanding the particular question (see for example at T 207.5-8). In those circumstances, again, I exercise caution in accepting his affidavit evidence as to conversations or the like; and would prefer to find corroboration for his evidence of conversations or events in contemporaneous documents (if there are any). That said, his account of John's statement that he wanted nothing to do with the Maroubra Property rang true and is consistent with John's subsequent conduct in that regard. Kylie Tzavaras 1. As to Kylie's evidence, John notes that Kylie accepted the accuracy of the financial records of the Family Trust shown to her in every respect; that Kylie gave evidence of the system that operated from 2001 to 2020 in relation to maintenance of the financial records of Tzavaras & Sons and the Family Trust and in relation to the preparation, finalisation and approval of the financial statements and tax returns, as between Kylie and Tzavaras & Sons' accountants. 2. It is noted that: Kylie agreed that all of the payments recorded as shareholder drawings represented personal payments to the shareholders (at T 184.10-13); Kylie could not recall any request from John for payment by the Family Trust of a personal expense for John (at T 184.33-35); and Kylie agreed that Tzavaras & Sons had not paid any money to or for the benefit of John in recent years (at T 185.37-38). 3. At T188.33-37, Kylie agreed that, as a result of a discussion between Tzavaras & Sons' accountant, Bill and herself, the decision was made to distribute the Family Trust's total available profit for FY20 of approximately $36,000 to Northmead Auto Centre. John points to Kylie's explanation (at T 189.16-190.13) that this was in the best interest of everything as a whole, because NAC Trust had losses which that income could be written off against, so that there was no tax paid. 4. I considered Kylie in general to be a co-operative witness when giving evidence as to her role in the book keeping and administrative matters in relation to the company. I have little doubt that Kylie relied on accounting advice in relation to the preparation of the relevant company documents. More problematic was her evidence (see T 155-158) as to her inability to recall much, if any, of a telephone conversation that Mr Ferizis asserts that he had with Kylie on 18 June 2015 and that is recorded in Mr Ferizis' contemporaneous file note of that conversation. Telephone attendance upon Kylie regarding yesterday's call to Bill which unsettled her greatly. Outlined potential and quite real issues with ATO audit on $387,000.00+ loss by the business in just 7 months' trading in 2013-2014. Pointed out above loss is before wages and market rent. Current lessee (7/11) is paying $300,000.00 in rent as well as substituted wages. Closing stock explanation of being out of date and unsaleable not good enough. The business was trading daily and turning over stock constantly up to date of cessation of business. This stock could/should have been sold at wholesale prices to a third party or taken downstairs for use in Northmead Auto business. Advising that the stock was thrown out does not go down well, especially due to question marks about ATO Benchmarking Variances saying that it was Peter's fault because he did not care does not absolve everyone else. These are serious issues which could/are likely to come back to bite you big time from the ATO and other interested parties such as John, who could argue that money had been misappropriated. Your response that John is not entitled to anything might not be appropriate. If this matter went before a Judge, my gut feeling is that John would end up with between 0% and 40% of the assets, more likely around 33%. Emotional outbursts about John not being worthy might not be even considered by a Court of law dealing with his share of entitlement under equity principles. Saying that John will be dead and Bill in jail before any Court decision is simply outrageous and not helpful. Also, all cars and equipment should be moved from Tzavaras & Sons to Northmead Auto as it is the latter using them. she said the cars are not worth much at all and equipment is… 1. One would think that if such a conversation had taken place Kylie would have remembered it; but it may simply be that things were said in the heat of the moment that did not stick in Kylie's memory. The note, from its language, was clearly written after the telephone conversation (not during it) and could well have involved Mr Ferizis' interpretation of what was said. That said, I see no reason not to accept that Mr Ferizis' note was his contemporaneous understanding of what had been said to him on that occasion. 2. What it does, however, indicate is that Mr Ferizis has seemingly taken on the role of advocating for John's position and hence has moved beyond the role of a non-partisan independent adviser. Peter Tzavaras 1. Reference is made by John to the following evidence given by Peter in cross-examination. 2. First, at T 122.46-48, that the $200,000 Nick had put towards the purchase of the Maroubra Property he regarded as a "helping hand", not a gift; and (at T 128.25-28, said that the $200,000 was his mother's money as well). It is noted that (at T 131.4-7) Peter agreed that at the time of paying $125,000 to John in January 2013 he did not ask John to sign any document in relation to the Maroubra Property, nor any transfer; and that Peter agreed that it was just a verbal agreement (T 131.4-20). 3. Second, that (at T 135.25-27) Peter agreed that he had not spoken a single word to John since about 2012. 4. Third, that (at T 137.33-35), Peter agreed that Tzavaras & Sons had paid personal expenses on his behalf; that (at T 138.24-26) Peter agreed that he relied on Kylie to keep the books of Tzavaras & Sons accurately; and (at T 139.22-31) that John had not received any amounts debited to the Shareholders' Loan Account since 2015, whereas Peter and Bill had. John says that Peter's question (at T 144.24-25) "[w]hich business are we talking about? Northmead Auto Centre, that's part of Tzavaras & Sons" reveals the blurring in his mind of the two distinct corporate entities. It is submitted that the use of the term "the family business" also conflates these two entities into one. Further (and consistent with John's emphasis on this issue) that (at T 146.31-33), Peter agreed that neither he nor John got a wage from Northmead Auto Centre. 5. John notes Peter's evidence (at T 147.38-39) that the arrangement was that, in exchange for occupying the lower part of the Northmead Property without paying rent, Bill would maintain the property; that Peter was unaware that there was a loan account of NAC Trust with the Family Trust (at T 149.24-26); and that Peter said he had no knowledge of NAC Trust owing the Family Trust $593,000 (at T 150.1-24). 6. My impression of Peter in the witness box was that he too was a laconic and not particularly sophisticated witness. Peter made no pretence of any involvement in the financial or accounting matters involving Tzavaras & Sons and I have no difficulty accepting that he relied on Bill and others for that side of things. Peter no longer works in the Northmead Auto Centre business (for health reasons) but clearly had no issue with the manner in which the business was operated by Bill (Peter's evidence is consistent with the operation of the business being on a relatively informal basis with drawings as and when needed and with little emphasis on technical corporate requirements, no doubt as would not uncommonly be the case with many small family businesses). 7. As to Peter's evidence of the disputed conversation(s) in relation to the Maroubra Property, I address this in due course. Mr Ferizis 1. Mr Ferizis deposed in his affidavit sworn 15 October 2020 that, when Nick purchased the Northmead Property in 1997, he gave instructions that Tzavaras & Sons was to operate for the benefit of his three sons equally, regardless of the contribution they had made to the purchase of the property. Mr Ferizis' evidence was that, at that time, he created a loan account of a joint shareholder or beneficiary variety, so that all shareholders would have an equal entitlement to receive repayments from Tzavaras & Sons, despite the fact that Nick had contributed the majority of the funds (at T 115.16-20). 2. Mr Ferizis deposed that he had concerns with respect to the management of Tzavaras & Sons by Bill and Kylie. He deposed to the "misuse" of company funds by virtue of the failed investment (made by Bill and George) in the amount of $825,000. Mr Ferizis further deposed to the fact that John had not received any amounts from Tzavaras & Sons in respect of his share of the shareholder loan repayments. 3. It seemed to me apparent from Mr Ferizis' evidence that he is partisan to John's position (and hence I am cautious when approaching his evidence in general). There is no doubt that Mr Ferizis disapproved of the way in which he accounts were prepared (and made that clear in his affidavit evidence) and he has in effect adopted a role of advocating for John's position with the other members of the family. There is nothing in the evidence that tends to show that the new accountants (Jim Dionysatos and Chris Dionysatos) take issue with the manner in which the accounts have been prepared, which may be telling. Oppression claims John's submissions 1. John submits that the conduct of the affairs of Tzavaras & Sons by Bill and/or Peter is and has been oppressive to, unfairly prejudicial to and/or unfairly discriminatory against him and he seeks the relief set out in prayers 1-3 of the amended originating process, namely that the company be wound up. Consequential orders are sought that the liquidator(s) also be appointed as receiver(s) of the Family Trust with the necessary powers, as set out in the amended Originating Process. 2. As to the principles applicable when considering the issue of oppression, John notes that the test of oppression is an objective one of unfairness (see Wayde v NSW Rugby League Ltd (1985) 180 CLR 459; [1985] HCA 68 at 472-473 per Brennan J (Wayde); Munstermann v Rayward [2017] NSWSC 133 at [22] per Stevenson J (Munstermann)): whether objectively in the eyes of a commercial bystander there has been unfairness, namely conduct that is so unfair that reasonable directors who consider the matter would not have thought the decision to be fair (see Campbell v Backoffice Investments Pty Ltd (2008) 66 ACSR 359; [2008] NSWCA 95 at [181] per Basten JA (Campbell v Backoffice Investments NSWCA)). It is noted that this does not necessarily entail a finding of breach of fiduciary duty on the part of directors of the company, nor does it involve application of the Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw) standard of proof (the standard of proof being the balance of probabilities). 3. It is accepted by John that, in a family situation, fairness must be considered against the background of the fair treatment of the whole body of shareholders, in the light of the history of the company and the family and the purpose for which the company was formed (see In the matter of Ledir Enterprises Pty Ltd (2013) 96 ACSR 1; [2013] NSWSC 1332 at [178] per Black J (Ledir Enterprises)). 4. John notes that conduct of a company's affairs may be oppressive even though the conduct is otherwise lawful; and that improper diversion of corporate business and unauthorised payment of funds in breach of fiduciary duty may also constitute oppressive conduct for the purposes of s 232; and may amount to exclusion from management (at least where there is an expectation of participation in management). 5. The principal basis on which the allegation of oppression is made is the assertion by John that, since the death of Nick on 2 September 2001, he has been excluded by Bill and Peter from the management, business and affairs of Tzavaras & Sons. John contends that, since 2001, the affairs of Tzavaras & Sons and its business have been exclusively managed by Bill and Kylie; that he has been excluded from, and has taken no part in, the management of the company's affairs and business (though I would interpose here to note that this seems to have been at his own instigation – see the evidence below), and in particular that this has been the case since 2012; that he has not received notice of the convening or holding of any annual general meeting or general meeting of Tzavaras & Sons and has not attended any annual general meeting or general meeting of the company; that he has not received notice of the convening or holding of any meeting of directors of Tzavaras & Sons and has not attended any meeting of directors of the company; that he has not received minutes of any meeting of directors of Tzavaras & Sons or of any annual general meeting or general meeting of the company; and that he has not received from Bill, Peter or Kylie any financial statements of Tzavaras & Sons or information as to its financial or taxation affairs. Complaint is made that, since 1994, there has been no declaration of any dividend to shareholders nor has John received any dividend from the company. At [13] of their defence filed on 16 December 2020 there is a general denial of these allegations by Bill and Peter. 6. As noted, John also complains that he was not paid any wages by Northmead Auto Centre while working "in the family business" at the Northmead Property (in submissions and in his affidavit he places this as during the period from 2000 to 2010. It is clear that his departure from the "family business" was not until 2012 and in any event, for the reasons that I explain in due course, the relevance of this in my opinion to the oppression claim is moot). 7. Further, it is noted that the jurisdiction to order winding up on the just and equitable ground may become exercisable in circumstances that do not amount to oppression, unfair prejudice or unfair discrimination. John points out that the existence of irreconcilable differences among persons involved in what is in effect a partnership will destroy the personal relationship involving mutual confidence that lies at the heart of the partnership analogy. It is noted that this analogy has been applied both to applications for winding up on the just and equitable ground and also to oppression suits; and that irreconcilable differences may establish a basis for winding up, even if they do not of themselves constitute oppression or unfair prejudice. Factual findings sought by John 1. John contends for the following factual findings, about most of which there appears to be no dispute (although the significance of those matters is disputed). 2. First, as to the unequal treatment of the Shareholders' Loan Account, that the credit balances of the Shareholders' Loan Account for the period 2001 to 2020 recorded in the Financial Statements of the Family Trust (following amounts paid in the respective financial years to Bill and/or Peter which were debited to the Shareholders' Loan Account in the total amounts there specified) decreased as follows: 1. for FY12 (after amounts totalling $67,135), a decreased credit balance from $1,334,897 to $1,267,759; 2. for FY13 (after amounts totalling $132,090) a decreased credit balance from $1,267,759 to $1,135,669; 3. for FY14 (after amounts totalling $67,819) a decreased credit balance from $1,135,669 to $1,067,850; 4. for FY15 (after amounts totalling $120,837.13 by way of shareholders' drawings debited to the Shareholders' Loan Account, and amounts totalling $86,761) a decreased credit balance from $1,067,850 to $981,089; 5. for FY16 (after amounts totalling $91,556.02 by way of shareholders' drawings were debited to the Shareholders' Loan Account, and amounts totalling $545,856, including the amount of $91,556.02) a decreased credit balance from $981,089 to $435,233; 6. for FY17 (after amounts totalling $128,057.80 were paid by the Trust) a decreased credit balance from $435,233.00 to $307,175.20; 7. for FY18 (after amounts totalling $115,305.39 including shareholders' drawings of $84,556.96, which amounts were debited to the Shareholders' Loan Account) a decreased credit balance from $307,175.30 to $191,869.21; and 8. for FY19 (after a debit for shareholders' drawings of $71,560.34) the amount standing to the credit of the Shareholders Loan Account increased by $17,500.21 from $191,869.81 to $209,370.02. 1. Thus, John says that, between 1 July 2012 and 30 June 2020, the amount standing to the credit of the Shareholders' Loan Account was reduced in total by $1,125,527 from $1,334,897 to $209,370 (one quarter of which he notes is $281,382). 2. There is no dispute, as I understand it, that there was a reduction in the amount standing to the credit of the Shareholders' Loan Account over the period here mentioned (nor, for that matter, is there any dispute as to the arithmetical calculation of a one quarter share of the total amount distributed from the account). 3. Second, that no part of the said total sum of $1,125,527 was paid to or for the benefit of John between 1 July 2012 and 30 June 2020. Again, I do not understand there to be any dispute as to this. 4. Third, that the net profits of the Family Trust from FY15 to FY20 recorded in the financial statements of the Family Trust were respectively as follows: in FY12, $850,387; in FY13, $325,308; in FY14, $173,854; in FY15, $191,277; in FY16, $231,271; in FY17, $218,714.15; in FY18, $237,634.03; in FY19, $263,933.20; and no part of the net profits of the Family Trust for the period from 1 July 2014 to 30 June 2020 was distributed to John or has been received by him. Again, I do not understand this to be in dispute. 5. Fourth, that in FY20 the net income of the Family Trust available for distribution to beneficiaries was $36,458.38; and that the entire amount available for distribution by the Family Trust to beneficiaries of $36,458.38 in that year was distributed to NAC Trust which lent the said sum of $36,458.38 back to the Family Trust, recorded as "beneficiary loan". This is evident from the financial statements and again does not appear to be disputed. 6. Fifth, that (by the adoption of the Bateman Report) the value of Tzavaras & Sons as trustee for the Family Trust was $5,766,000 as at 1 April 2021, including the following: the Northmead Property as an asset valued at $7,600,000; the Surfers Paradise Unit as an asset valued at $700,000; the loan to NAC Trust as an asset valued at $593,761; the loan account entitled "N, G, W, P, J Tzavaras" as a liability of $209,370; and the beneficiary loan from NAC Trust as a liability of $36,458. 7. As to this, the report of Ms Bateman speaks for itself but it should be noted that this was based on the instructions that Ms Bateman was given. Ms Bateman valued the company (Tzavaras & Sons) as the value of the net assets of the Family Trust; thus it would be more accurate to say that Ms Bateman was valuing the net assets of the trust. The company itself was not beneficially entitled to those assets; and hence I have some difficulty in making the finding here sought. Further, as was accepted in the course of submissions, Ms Bateman did not purport to value the interest of a minority one-quarter shareholder in Tzavaras & Sons nor the interest of a discretionary beneficiary under the Family Trust – both matters that would make difficult any order for the compulsory purchase of John's share in Tzavaras & Sons (and the recognition of which no doubt led to the abandonment by John of that claimed alternative relief). 8. Sixth, that the debit balances of the NAC Trust loan account recorded in the financial statements of the Family Trust from 1 July 2014 to 30 June 2020 were respectively as follows: as at 1 July 2013, nil; as at 30 June 2014, $292,820; as at 30 June 2015, $297,668; as at 30 June 2016, $367,536; as at 30 June 2017, $396,300; as at 30 June 2018, $440,999.45; as at 30 June 2019, $486,489.59; and as at 30 June 2020, $593,760.64. This accords with the records and I so find. 9. Seventh, that Northmead Auto Centre or NAC Trust presently occupies (and has since about 2015 occupied) the lower level of the Northmead Property as a workshop; that there is not a written lease from Tzavaras & Sons for the lower part of the Northmead Property; and that Northmead Auto Centre and NAC Trust do not pay any rent or any use and occupation fee to Tzavaras & Sons in respect of the occupation of the lower level of the Northmead Property. There is no dispute that Northmead Auto Centre, as trustee for NAC Trust, occupies and has occupied the Northmead Property on the lower level for no rent or occupation fee and does so without a written lease; and I so find. 10. Eighth, that the commercial value of the use of the lower level of the Northmead Property by Northmead Auto Centre/NAC Trust is approximately $50,000 per annum. This is more problematic. The only evidence of this is an opinion of value attached to Ms Bateman's report but not itself the subject of expert evidence in accordance with the Expert Witness Code of Conduct. I treat it as no more than an indication of rental value (but ultimately nothing turns on this). 11. Ninth, that as at 30 June 2012 Tzavaras & Sons had two loans from AMP Bank Ltd (accounts ending #2015 and #2035) for $649,814 and $109,385 respectively; and that, by 30 June 2013 the amounts of the said loans had increased to $1,234,814.18 and $448,661.10, respectively. Again there is no dispute as to this. 12. Tenth, John seeks an inference to be drawn that the purpose for which the two loans from AMP Bank were increased was in order to recoup to Tzavaras & Sons the amount of $825,400 it had lost in connection with the proposed acquisition of the trucking business from Doumit. The increase in the loans certainly coincided (from a temporal perspective) with the increase in the AMP Bank loans. Whether the facilities were drawn down to recoup those losses is less clear. 13. As to the above matters, where they are not in dispute (as indicated above) I make the relevant findings. Where there is an issue (as noted above), I decline to make the findings sought. 14. John also seeks findings that he has (since 2001, and especially since 2012) been excluded from the management of the affairs of Tzavaras & Sons in the respects that he has contended, namely that: since Nick's death in 2001 the affairs of Tzavaras & Sons have been exclusively managed by Bill and Kylie; John has not received notice of the convening or holding of any annual general meeting or general meeting of Tzavaras & Sons, nor any meeting of directors, since 2001; John has not attended any annual general meeting or general meeting of Tzavaras & Sons, nor any meeting of directors, since 2001; John has not received minutes of any meeting of directors of Tzavaras & Sons or of any annual general meeting or general meeting of Tzavaras & Sons since 2001; John has not received (from Bill, Peter or Kylie) any financial statements of Tzavaras & Sons or information as to its financial or taxation affairs since 2001; John was not consulted by Bill or Peter prior to the purchase of the Surfer's Paradise Unit in May 2004; John was not consulted by Peter or Bill in relation to the proposed purchase of the trucking business from Doumit in 2012 nor the payment of $825,400 in relation thereto; John has taken no part in the management of the affairs of Tzavaras & Sons since 2001, and in particular since 2012; and John was not paid any wages by Northmead Auto Centre while working "in the family business" at the Northmead Property from 2000 to 2010. 15. Those matters are dealt with in the consideration below of the five separate allegations of oppression. 16. Finally, as to the irretrievable breakdown in the relationship between John and his brothers, John seeks a finding that he has not spoken with either Bill or Peter since leaving the Northmead Property for the final time in 2012 (which it is noted was accepted by Bill at T 215.31-33 and by Peter at T 135.25-27). John says that it is immaterial which version is preferred of the conversation between John and Bill at the time of John's departure from the Northmead premises in 2012, but, rather, that the irretrievable breakdown in their relationship occurred in the period following that conversation. 17. I accept that the evidence from both sides is that John has not spoken with either of his brothers (nor they with him) since John left the Northmead Property in 2012; and it would seem that to all intents and purposes the breakdown in their personal relationship could be described as irretrievable (though it is not unheard of for there to be family reconciliations after many years of estrangement). Presumably, the current litigation will not have assisted in this regard. However, whether there has been an irretrievable breakdown in the professional relationship between the brothers is another issue altogether. They certainly seem to have been able (albeit perhaps through intermediaries) to continue in joint ownership of the shopping centre at Georges Hall which was bequeathed to them jointly by Nick; and the evidence is that Tzavaras & Sons has been able to operate (again albeit with circular resolutions and the like) even though John has absented himself from active management in the company. Thus, I am not persuaded that there has been an irretrievable breakdown in the requisite sense. Defendants' submissions 1. At the outset of their submissions, the defendants emphasise the following matters. 2. First, that John has eschewed any remedy which is less intrusive than the winding up of the company and/or the appointment of a receiver, even though any such order will ipso facto cause Tzavaras & Sons to lose office as trustee of the Family Trust (and it is said that such an order would have no utility other than as an inducement to Bill and Peter to buy John out). 3. Second, that, as a specified beneficiary and object of a discretionary trust, John has no legal entitlement to demand and receive payment of the income or capital of the Family Trust, or an exercise of discretion in his favour (see Gartside v Inland Revenue Commissioners [1968] AC 553 at 602, 606 (Gartside); JD Heydon, MJ Leeming, PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed, LexisNexis, 2014) at [4-075]). 4. Third, that none of the pleaded grounds alleges any breach of trust, breach of duty or unlawful act on the part of the defendants. It is noted, in particular, that it is no part of John's case that the discretion to distribute income miscarried. While accounting matters have been raised, it is noted that there is no allegation of any accounting irregularity. 5. Fourth, that all of the pleaded grounds distinguish themselves by their longevity and the absence of any relevant complaint by John before he chose to bring the present proceeding in 2020. It is noted that, on John's own evidence, until 2018 he believed that Bill was managing the company in its best interests and in the best interests of the shareholders (see at [67]) and that what changed in 2018 was that John "simply wanted out of the company" (T 51.50-52.1). Reference is made to the 30 July 2012 letter from John's solicitors in which they advised that John wished to "sever his ties with the Company". The defendants say that this is precisely what John proceeded to do (by absenting himself from the business and affairs of the company; ceasing all contact with his fellow directors; and paying only lip-service to his duties as a director by receiving and signing documents through intermediaries, including circular minutes of meetings of directors and the like). 6. Indeed, the defendants say that, if there is any oppressive conduct in this case, it is the conduct of John towards Tzavaras & Sons and its other shareholders and directors by his wholesale failure to attend to his duties as a director. It is noted that on John's own evidence, he did not familiarise himself with the nature of the company's business when he became a director (T 55.3-5) and he did not know that the company was the trustee of a trust nor what that means (T 55.19-21). It is said (with some force in my opinion) that John was the author of the misfortune of which he now complains. Particular allegations of oppression 1. It is relevant at this stage to address each of the five heads of oppression relied upon by John as contained in the pleading. Exclusion claim John's submissions 1. As indicated above, John contends that he has been excluded from the company's affairs (since 2002 – indeed he says in his oral evidence from "day one", but in particular since 2012 (see T 87.45-50)); his complaint being as to the matters referred to above including that he was not sent any financial statements for Tzavaras & Sons or the Family Trust or minutes of meetings from 2012 until Mr Ferizis "started asking questions on his behalf" in 2018. 2. As to the proposition by Bill and Peter that they would welcome John back "to the family company", John says that this should not be accepted, noting that the brothers have not spoken for almost 9 years. John argues that this amounts to no more than a requirement that John should return to working for Bill in the business of Bill's company, Northmead Auto Centre, as he did before 2012 for no wages and would in effect be the enforcement of a contract for personal service. 3. Pausing here, as already indicated, that contention to my mind is not tenable (even apart from the factual inaccuracy it involves, in that Bill's company was not incorporated until after John left the "family business"). What is clearly being proffered by the defendants is that John (who made it very clear back in 2012 that he wished to have nothing to do with Tzavaras & Sons) can resume his duties as a director if he now wishes to do so (and can thus take on a managerial position in relation to the company that the defendants say he has, to date, abdicated). On no sensible view of things does that amount to a requirement that John resume working as a motor mechanic for Northmead Auto Centre (whether with or without pay). 4. Even apart from the fact that I am not aware of any proposition that a director is obliged to perform the underlying workplace roles involved in the performance of a company's business (a director of a large banking institution is not, for example, required to perform tasks as a bank teller), this in my opinion illustrates the difficulty with much of John's contentions in the present case – in that John is here conflating the position of Tzavaras & Sons (and the Family Trust, of which the company is trustee) and the position of Northmead Auto Centre (and NAC Trust of which Northmead Auto Centre is the trustee). John's position is as a director of the former company; whereas the motor mechanic business is now conducted by the latter company. So even if a resumption of directorial duties involved working for the trustee company in some capacity, it would not involve working as a motor mechanic for another company (i.e., Bill's company). 5. Moreover, as I have noted above, the suggestion that there has been an irretrievable breakdown in the relationship between John on the one hand and Bill and Peter on the other (at least in terms of any working relationship, as opposed to a personal relationship) is belied by the fact that they have apparently jointly owned a retail shopping centre (and presumably in that context have been able to work together to the necessary extent) throughout the whole of the period in which John complains that he was excluded from management and subjected to oppressive conduct in relation to the affairs of Tzavaras & Sons. Defendants' submissions 1. The defendants say that the plaintiffs' exclusion claim (pleaded at [12]-[13]) is factually incorrect. It is said that (like many small family companies) the business and affairs of Tzavaras & Sons were conducted with minimum formality and that, although John absented himself for long periods of time (as and when he chose), John's own evidence is that "Bill's practice was to bring me documents relating to the financial and accounting affairs of the company and request that I sign the documents". 2. The defendants say that Tzavaras & Sons relied on its accountants to attend to prepare minutes of meetings, accounts, taxation returns and the like. (Mr Ferizis being the company accountant until 2018; Mr Jim Dionysatos and Mr Chris Dionysatos (from Lime Street Wealth) having been the company's accountant since 2019). The defendants further say that if John now wishes to do his duty as a director and participate in the management of the company, they would be happy to ensure that he was given all necessary notices of any meeting and had access to any business records in their possession. 3. It is noted that there are passing references in John's evidence to superannuation, wages and insurance premiums but that there is no pleaded claim in relation to any of those matters. The defendants emphasise that John was not employed by Tzavaras & Sons; rather, he worked as a mechanic for Northmead Auto Centre. Accordingly, the defendants say (and I agree) that the evidence in relation to John's wages and insurance is irrelevant to the oppression claim in relation to the conduct of the affairs and business of Tzavaras & Sons. 4. Insofar as John alleges that he has "taken no part" in the management of the affairs and business of Tzavaras & Sons, the defendants say that it is plain from John's evidence that he did take part (as a director), by signing minutes of meetings of directors and other documents relating to the financial and accounting affairs of Tzavaras & Sons, except during those periods when he chose to absent himself. It is noted that John was a signatory on the company cheque book for at least a decade (T 92.26-31); that John drew cheques as and when he wished to do so (it being "common practice, if we needed a cheque ... (to) go upstairs and write a cheque out for whatever it may be, a part or a delivery, everything come out of the one cheque book that was kept behind the counter in the petrol station" (T 93.4-7); and that one of the things for which John used the cheque book was to buy tools for himself, over a period of time, after some of his tools were stolen (see his affidavit of 11 February 2021 at [7]; T 93.9-11). 5. The defendants say that there is no evidence of any exclusion by them of John from the management of Tzavaras & Sons (reference being made to the 30 July 2012 letter from John's solicitors (see above)). It is noted that, at T 87.38-40, John confirmed that he wished to sever his ties with the company as at 30 July 2012; and, at T 87.42, John said he "was unhappy and wanted to get out". 6. The defendants point out that there is nothing in the letter of 30 July 2012 by way of complaint that John had been excluded from management of the company in the 18 years he had by then been a director. The defendants say that John's evidence (at T 87.47) that "I've been excluded from day one", should be rejected because it is inconsistent with John's free use of the company cheque book and his evidence that "Bill's practice was to bring me documents relating to the financial and accounting affairs of the company and request that I sign the documents" ([66] of his affidavit sworn 25 August 2020). 7. It is noted that, at T 59.22-29, John agreed with the proposition that the part that he played in the management of the company since 2001 was as a director, including the signing of important company documents prepared by its accountant such as minutes of meetings of directors and that, at T 59.35-47, John agreed that a possible explanation for the statement in [25] of his affidavit of 25 August 2020 that he had "taken no part in the management of the company" was that he had taken no part in the "day to day admin of the company" because he was a motor mechanic and "never had to do" any business administration (T 60.4-9). 8. Similarly, it is said that John's affidavit evidence (see [67] of his affidavit of 25 August 2020) that up until about 2018 he believed that Bill was managing the company in its best interests and in the bests interests of the shareholders, and that he relied on Bill to manage the company and to keep him informed as to its affairs, does not sit comfortably with the fact that John avoided contact with and did not speak to his brothers after 2012. The defendants say that John made it plain (at T 51.3-5, 51.48-50, 52.1-2) that he believed that Bill was managing the company "in its best interests" and "for all of us"; that there was no incident in 2018 which changed the fact that he "believed that Bill was managing the company in its best interests and in the best interests of the shareholders"; and that he simply "decided that [he] wanted out of the company". 9. The defendants emphasise that no complaint was made by John or his solicitors about John being excluded from management or about any other aspect of the business and affairs of the company in the quarter of a century in which John had been a shareholder and director of the company, until these proceedings were commenced in 2020. 10. The defendants maintain that there is nothing oppressive, prejudicial or discriminatory to a shareholder or director of a company who, with the assistance of his solicitor, chooses to sever his ties with a company. It is said that in such a case, the consequences of such a choice are of the shareholder's own making; that they are not the result of any overbearing act or attitude on the part of an oppressor (in the sense discussed by Young J, as his Honour then was, in John J Starr (Real Estate) Pty Ltd v Robert R Andrew (Australasia) Pty Ltd (1991) 6 ACSR 63; (1991) 9 ACLC 1,372 at 1375-1376 (John J Starr). Reference is also made in this context to Hunter v Organic and Natural Enterprise Group Pty Ltd (2012) 92 ACSR 183; [2012] QSC 383, where Dalton J refused to order a winding up on the basis that the breakdown in the relationship between the shareholders and her exclusion from management were brought about by the plaintiff (upheld in Hunter v Organic and Natural Enterprise Group Pty Ltd [2013] QCA 331). 11. Insofar as it is alleged (at [13A] of the amended statement of claim) that between about 2000 and 2012 John worked as a mechanic for Bill or Northmead Auto Centre at the Northmead Property without receiving a wage, the defendants say (as adverted to above) that this is not factually correct; nor does it enliven s 232 of the Corporations Act pointing to the facts that the "Northmead Auto Centre" business was conducted by Tzavaras & Sons in 2012 (not by Bill); and that Bill's company, Northmead Auto Centre Pty Limited was not incorporated until 15 October 2013. Moreover, it is said that none of the directors was paid a wage; rather, that the directors worked for the benefit of the company in which they were all shareholders. The defendants say that there is nothing oppressive, prejudicial or discriminatory in such an arrangement; that it was an arrangement put in place by Nick and continued after his death; and that all three sons benefited considerably from Nick's business skill. 12. It is noted that (at [13B] of the amended statement of claim), John pleads that: in or about March or April 2012, John had a dispute with Bill; departed the Northmead Property; has not returned to the Property; and has not spoken to his brothers ever since. The defendants say that there was no dispute with Bill in an real sense; rather, at its highest, the brothers could not agree on a price for the sale of John's share when John decided to sever his ties with the company. It is said that John may well have departed the property permanently but that there is no evidence of any argument in that regard, nor of any irretrievable breakdown of the relationship between the three brothers in any relevant respect. It is said that John wanted Bill and Peter to buy him out but Bill and Peter were not interested in purchasing the share of the property at the price John wished to be paid (and whether that be $1 million or $4 million is immaterial). 13. The defendants say that lack of interest in a buy-out (at what they maintain is too high a price) is not oppressive, prejudicial or discriminatory, especially in a context in which John, as the object of a discretionary trust, has no property to sell other than his $1 share in the trustee company (again citing Gartside at 602, 606). 14. Insofar as it is alleged (at [13C] of the amended statement of claim), that there has been an irretrievable breakdown in the relationship between the three brothers, the defendants say that the fact that John has decided to absent himself from the Northmead Property and not talk to his brothers is not evidence of any such breakdown. 15. Further, it is said that this is not a quasi-partnership case; that the brothers did not go into business together – rather, they were placed in the company and the Family Trust by their late father, back in the 1980s and 1990s, respectively. The defendants say that it does not follow that, should one of the sons wish to sever his ties with the others or with the family company, there is a breakdown of any relationship relevant to the administration of the Family Trust (and see also the submissions referred to below in relation to the just and equitable ground for winding up). 16. The defendants say that the quasi-partnership cases are those in which the original association is formed on the basis of a personal relationship of mutual trust and confidence, which may preclude insistence upon strict legal right (see Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 (Ebrahimi v Westbourne Galleries) at 379-380 per Lord Wilberforce, Viscount Dilhorne, Lords Pearson and Salmon agreeing) but that the present is not such a case, nor does this case give rise to any consideration of the exercise or non-exercise of strict legal rights. It is said that all that has here happened is that John simply decided that he "wanted out" of the company (T 51.48-50, 52.1-2). 17. Further, it is said that if there were to be a finding of oppression in relation to the day-to-day management of Tzavaras & Sons, it does not follow that winding up is the appropriate remedy. It is submitted that such a remedy would be out of all proportion in the circumstances. It is noted that s 233(1)(c) empowers the Court to make orders regulating the conduct of the affairs of the company in the future. The defendants submit that the appropriate form of order to remedy this type of oppression would be a regime for calling and holding regular meetings of directors. 18. The defendants also point out that, on Nick's death in 2001, the three sons inherited a one third share each as tenants in common of the shopping centre property at Georges Hall (see cl 4 of the Will), which property (containing 13 shops) the three brothers have held for some 20 years. It is submitted that this tends to suggest that the brothers can have a working relationship with property if John wishes to do so. Shareholder loans and dividends John's submissions 1. This allegation of oppression relates to the shareholders' loan account recorded in the books and financial records of the Family Trust in the name of "N, G, W, P, J Tzavaras". John says that he is, and has been since 2001, a co-owner as to a 25% share, together with Bill, Peter and Jenny, of the debt owed by the Family Trust to its shareholders constituted by the Shareholders' Loan Account. (In oral submissions, it was accepted that this account is a joint shareholders' account, each shareholder jointly owning with the others the whole of the account. John relies on the unequal treatment of the Shareholders' Loan Account and the non-distribution of profits as amounting to financial oppression.) 2. John points to the credit balances of the Shareholders' Loan Account for the period 2001 to 2020 as recorded in the books of the Family Trust, noting that: between 1 July 2012 and 30 June 2020 the amount standing to the credit of the Shareholders' Loan Account was reduced by $1,125,527 from $1,334,897 to $209,370 (a quarter share of which is $281,382). John complains that between 1 July 2012 and 30 June 2020 John did not receive from Tzavaras & Sons or the Family Trust any or any part of the amount by which the Shareholders' Loan Account was reduced. 3. It is noted that since 2012 Tzavaras & Sons has not declared any dividend out of its profits to shareholders nor has the plaintiff received any dividend from Tzavaras & Sons or any distribution from the Family Trust. It is said that between 2015 and 2019 no profits were distributed by the Family Trust to any beneficiary by reason of the Family Trust utilising carried forward losses arising from a loss of $825,400 in FY13. 4. John also points to the financial statements for the Trust for FY20 which record that the net income available for distribution to beneficiaries (after application of the balance remaining of carried forward losses) for that financial year was $36,458.38. It is noted that in 2020 all available profits of the Family Trust after carried forward losses had been fully utilised, namely $36,458.38, were distributed to NAC Trust, and that sum was then lent back to the Family Trust, thereby making NAC Trust a creditor of the Family Trust. 5. It is asserted that, by this conduct, Bill and Peter have preferred their own interests to those of Tzavaras & Sons and its members (including the plaintiff) and have conducted the affairs of Tzavaras & Sons in a manner prejudicial to John and to his detriment; complaining as to the unequal treatment of the Shareholders' Loan Account (see Vigliaroni v CPS Investment Holdings Pty Ltd (2009) 74 ACSR 282; [2009] VSC 428 at [79]-[83] per Davies J (Vigliaroni)). 6. It is noted that, at [9](a) of their defence, Bill and Peter assert that the Shareholders' Loan Account is a "joint loan account upon which any of the joint owners is entitled to draw regardless of contributions". John says that it is not the entitlement of the drawer that is at issue; rather, he argues that the mere fact of the unequal drawings against the credit loan account amounts to oppressive conduct, particularly having regard to the large amounts that have been drawn since 2012, irrespective of the entitlement of the drawer; and complains about the fact that there has been no distribution of the substantial profits of the Family Trust to John since at least 2015. 7. It is said that, when making their determination as to distribution of the profits of the Family Trust for FY20, the defendants as directors of Tzavaras & Sons failed to consider John as a potential beneficiary to receive any part of that distribution. 8. John points to the "ever increasing" payment of expenses by Tzavaras & Sons for NAC Trust, recorded as debits to the loan account of NAC Trust in the Family Trust, commencing in 2014 and reaching its zenith of $593,760.64 by 30 June 2020, as evidence that the interests of one director, namely Bill, were preferred over those of Tzavaras & Sons. John says that there is no evidence as to the ability of NAC Trust to repay this debt to the Family Trust; nor is there any evidence as to the authority of the directors of Tzavaras & Sons to lend such amounts to a related entity, without security. It is said that it also demonstrates the "blurring" of any distinction between the affairs of Tzavaras & Sons and the Family Trust on the one hand and the affairs of Northmead Auto Centre and NAC Trust on the other by Bill and Peter. 9. John claims that he has also suffered loss and damage in that he has not received or been paid his 25% share of the amount of $1,125,527 by which the Shareholders' Loan Account was reduced between 1 June 2012 and 31 July 2020 (namely, $281,382). It is said that Bill and Peter have accordingly received for themselves the benefit of John's 25% share of the reduction of the Shareholders' Loan Account to which John was entitled (namely, $281,382). Defendants' submissions 1. As to this allegation of oppression, the defendants say that their understanding of the position is that, when distributions were made out of the Family Trust during the following 20 years after the loan account was established, they were credited to the Shareholders' Loan Account; and when funds were required by the Trust, they were debited to that account. The defendants accept that no dividends were ever paid by Tzavaras & Sons. The defendants contend that Mr Ferizis is in the best position to explain the operation of the Shareholders' Loan Account since he managed all of the accounting and tax related affairs of the Family Trust from 1998 to 2018 (when a dispute arose in relation to alleged over-charging). (It is noted that Mr Ferizis exercised a lien over the books and records of the Family Trust and retains the relevant records.) 2. The defendants say that if John (or any other shareholder) is owed money by the Family Trust, the remedy is a claim for a liquidated debt or demand against the company; that the mere existence of a debt on a shareholder loan account is not oppressive; and that the test is whether there is conduct which is objectively unfair (citing Wayde at 472 per Brennan J). 3. As adverted to above, the defendants say that it is common ground that the account is a joint shareholders' loan account properly so called; that is, an account in which the funds are owned by all of the named account holders jointly, whereupon any joint holder is entitled to draw on the account, regardless of his or her contribution (in contrast to separate or individual accounts, exemplified by the shareholder loan accounts established for the purpose of the Family Trust). In this regard, the defendants note that, although John's evidence at [32] of his affidavit sworn 25 August 2020 suggested that he might not understand the difference between a joint account and separate accounts (insofar as he deposed to his belief that after Nick's death the loan account was owned by the four individuals as to 25% each; i.e., allocating a one quarter interest to each of the survivors), in cross-examination (at T 96.3-40) John made it clear that his understanding was that the account styled "N, G, B, P, J Tzavaras" was a joint account properly so called, on which any joint named holder was at liberty to draw: Q. Is this right? You understand that there is a difference between something which is described as a joint account and something that might be described as a separate account, correct? A. Yes. Q. Just to make sure we're speaking the same language, if you and your wife went along to the bank, you might, if you wished, open two bank accounts, one in each of your names, that they would be separate bank accounts or individual bank accounts-- A. Yes. Q. --correct? A. Yes. Q. Whereas if you and your wife went along to the bank and you opened one bank account in each of your names, that is to say one bank account with the name of each of you on it, that might be more accurately described as a joint bank account, correct? A. Yes. Q. It's your understanding that where one has a joint account, any of the account holders is at liberty to use and draw on the account? A. Yes. Q. Equally, moneys from either of them were open to be deposited into the joint account, correct? A. Yes. Q. If you have a joint account that's owned by one, two, three, four, five individuals and one of them dies, it's your understanding that because it is a joint account, the four who survive are then the owners of all that remains. Is that your understanding? A. Yes. Q. That's what you're saying here in this sentence, that is to say it's your understanding that this account NGWPJ Tzavaras was always a joint account, meaning joint account in the way that you've described, correct? A. Yes. Yes. 1. The defendants point to the evidence of Mr Ferizis (at [8] of his affidavit sworn 15 October 2020) to the same effect and note that in cross-examination (at T 114.6-50) Mr Ferizis said: Q. You say in that paragraph 8 that you created a joint shareholder loan account? A. Yes. Q. Do you see that? A. Yes. Q. By a joint shareholder loan account, you mean, I take it, a joint loan account, properly so called, where each of the named accountholders jointly owned the entirety of the value in the account? A. That is correct, yes. Q. As distinct from your setting up a number of individual loan accounts where each named accountholder owns the moneys recorded in the account, correct? A. That is, that is correct, yes. Q. You recall, do you, that the particular joint shareholder loan account that you were entering into the books of the trust for the first time on this occasion was a loan account styled NGWPJ Tzavaras? A. Correct. Q. That of course stood for Nick, [Jenny], Bill, Peter and John Tzavaras as the named joint shareholder? A. That is correct. Yes. Q. There's no particular reason why you called it a shareholder loan account as distinct from a beneficiary loan account, that's the same thing in this context, isn't it? A. That is correct, yes. Q. I take it that you received some instructions to set up the account in this way? A. Yes. Q. May we take it that you received those instructions from the board of directors of the trustee company, Tzavaras & Sons Pty Ltd? A. No, we received those instructions from Nicholas Tzavaras. Q. He was the chairman of the board, wasn't he, at the time? A. Yes. Q. And, in effect, the managing director of the company? A. Correct. Q. And the source from whom you received instructions from time to time? A. Correct. 1. The defendants point out that the pleaded claim in relation to the Joint Shareholders' Loan Account does not allege oppression, prejudice or discrimination by reason of the establishment of the Joint Shareholders' Account; or the fact that distributions from the Family Trust or other moneys were paid into the Joint Shareholders' Loan Account from time to time; or that drawings and other payments out were made. It is noted that John's evidence at T 101.9-47 was: Q Well, just look at your paragraph 32, subparagraph F [of the affidavit of 25 August 2020]. A. Yes. Q. Do you see that it records a credit balance of 1.34 million at the end of the financial year 09? A. Yes. Q. Then look at your next line, G. A. Yes. Q. Do you see that it records a credit balance in the same joint account as at the end of the financial year 2012 of 1.334 million? A. Yes. Q. Do you see that? A. Yes. Q. So it's your understanding, isn't it, that those two figures show that between the end of the 09 financial and the end of the 12 financial year that the balance in that joint account owned by the four people you describe has gone down by some $8,000? A. Yes. Q. Now, you don't, in fact, have any complaint about that, do you? A. No. Q. All that tells you is that more money has been paid out of that account than went into it during those three years? A. Yes. Q. So if that was a year in which a cheque was drawn on the company chequebook to buy some tools, $8,000 worth of tools, for example, that would be the sort of explanation that you would expect for that reduction in the balance? A. Yes. Q. So too as you look at various other movements up or down, really you've got no particular complaint about any of them. A. No. 1. Rather, the pleaded complaint in relation to the Joint Shareholders' Loan Account is that between 1 July 2012 and 30 June 2020 the amount standing to the credit of that account was reduced by a total of $1,125,527 by way of "shareholder drawings" and that John did not get "his 25%" of those drawings, namely, $281,381.25" (at [22] of the amended statement of claim); that Bill and Peter are alleged to have "received and converted to their own use that part of the Shareholders' Loan Account to which [John] was entitled, namely, the sum of $281,381.25" (at [23]); and that, by reason of those matters, Bill and Peter (not, it is noted, Tzavaras & Sons) are claimed to be liable to account and pay John 25% of the $1,125,527 they are alleged to have received, namely, $281,381.25 (at [24]). 2. The defendants say that it is not alleged that Bill and Peter were not lawfully entitled to drawings from the Joint Shareholder Account (for example, that there is no suggestion that the joint ownership of the funds in question was severed at any time – though it is noted that arguably the claim for conversion encompasses a claim that Bill and Peter were not lawfully entitled to receive that amount). Further, it is noted that John has not ever demanded payment of any part of the money standing in credit in the Joint Shareholders' Loan Account (T 102.12-18). The defendants say that the only claim is for 25% of the reduced credit balance which John claims Bill and Peter have received by "preferring their interests to the interests of the Company and its members including himself" (at [22] of the amended statement of claim); and that such a claim is fundamentally misconceived. It is said that Bill and Peter are joint owners of the funds standing in credit in the Joint Shareholders' Loan Account; and entitled to make drawings (as are Jenny and John); and that on making drawings, Bill and Peter cannot be said to have received and converted any part of the Shareholders Loan Account to their own use. It is submitted that it is their money; it is not money of which John has a 25% share. 3. In any event, it is said that if there is oppression in this regard, the remedy does not lie in winding up. It is submitted that if any particular entry in any particular account is found to have been made in some way that is held to be an act of oppression, the appropriate order to redress that act would be an order that Tzavaras & Sons take steps to repay or recover the amount in question under s 233(1)(j). Northmead Auto Centre claim John's submissions 1. This relates to the complaint that, since 2015, Northmead Auto Centre (itself or as trustee of the NAC Trust) has not paid any rent, fee or any other amount to Tzavaras & Sons in respect of its exclusive occupation and use of the lower level of the Northmead Property (which it is alleged was done with the knowledge and consent of Bill and Peter but not that of John). It is said that Bill and Peter have thereby preferred the interests of Bill to those of Tzavaras & Sons and its members (including John) and preferred Bill's interests to those of the Family Trust, to the detriment of Tzavaras & Sons and John. 2. Reference is made to the valuation attached to Ms Bateman's report (an Opinion of Value of Ray White Commercial NSW – Western Sydney), which estimates the rental income (excluding outgoings and GST) of the lower level of the Northmead Property to be $50,000 per annum. 3. John asserts that Tzavaras & Sons has suffered loss and damage by the loss of the rental income that it ought to have received since about 1997 from the use and occupation by Northmead Auto Centre of the lower level of the Northmead Property. John has calculated that, from 2015 to 2020, at the rate of $50,000 per annum that lost rental income amounts to approximately $300,000 (which it is said continues at the rate of $56,000 per annum). Defendant's submissions 1. As to the Northmead Auto Centre claim, the defendants say that there is no evidence to prove that $50,000 per annum or any other sum is a fair market rent. Further, they say that it is not oppressive for the trustee of a discretionary trust to allow a beneficiary to use trust property in specie, especially where, as here, Bill provided caretaker services and secured the site. 2. The defendants point to the definition of the term "Beneficiaries" in Schedule 4 to the Trust Deed of the Family Trust namely, that "'Beneficiaries" means the persons referred to as Beneficiaries in Schedule 2; and note that the persons referred to as Beneficiaries in Schedule 2 include "Named Person or persons" being "Tzavaras, Bill"; "Tzavaras, Peter" ; and "Tzavaras, John"; the "Spouse", "Child", "Lineal issue" and "Other relatives" of the named persons; "[a]ny company in which a share is held for the time being by any of the persons referred to above"; any trusts "under which [a named person or company] … has or have any interest"; the trustee of various charitable trusts; and the company (being Tzavaras & Sons). Thus, it is noted that Northmead Auto Centre is a Beneficiary of the Family Trust (being a company the sole shareholder of which is Bill). 3. Clause 10 of Schedule 3 of the Trust Deed provides that the trustee shall be entitled to exercise any of the powers hereunder, including the power to: Allow any one or more of the Beneficiaries to occupy, have custody of, or use any property forming part of the Trust Fund on such terms and conditions in all respects as the Trustee deems fit. 1. Thus the defendants maintain that Tzavaras & Sons, as trustee, is and always has been entitled to allow Northmead Auto Centre, as a Beneficiary, to use and occupy the Northmead Property on such terms as it thinks fit, including without the need to pay rent. The defendants say that there is nothing unfair about Tzavaras & Sons exercising the power in cl 10 in favour of Northmead Auto Centre or in not requiring Bill's company to pay rent. It is said that the power contemplates that the Trustee may do just that; noting also that Tzavaras & Sons allowed John to use and occupy the workshop by storing his racing cars, parts, engines and tools on those same premises for many years before 2012 (see the transcript extracted below) and pointing to Bill's evidence that services are provided to keep the site secure. 2. The evidence of John to which the defendants refer in this regard is (T 94.17-39): Q. When were you drag racing using equipment that was in this workshop from time to time? What years? A. 2002 to 2003. Q. The cars that you refer to in your paragraph 7(c) have been there from 2002, 2003 right through until 2012? A. Yes. Q. It's the case, isn't it, that Bill and Peter never required you to pay rent for any part of the workshop that you were using for that purpose? A. No, but my cars would advertise the, the workshop's name. Q. What's that got to do with anything? A. Well, they should pay me. Q. The truth of this matter is that between yourself and your brothers, the company permitted each of you to use the company cheque book to make payments, correct? A. Yes. Q. And permitted each of you to use the Surfers Paradise unit for no rent as and when you thought fit? A. Yes. Q. And to use this workshop as and when you thought fit? A. Yes. 1. Pausing here, the assertion by John that Bill and Peter should pay him for advertising the workshop on his racing cars (volunteered somewhat defensively in the witness box) is telling insofar as it does not conform with the deprecation by John of the services that Bill provides in a practical sense by securing the lower level of the premises. 2. In any event, the defendants again submit that if this ground of oppression were to be upheld it does not follow that an order winding up Tzavaras & Sons ought to be made. It is said that the appropriate order would be an order restraining Tzavaras & Sons from letting trust property other than on commercial terms, save where cl 10 of Schedule 4 of the Trust Deed applies. Misuse of Company funds John's submissions 1. This complaint of oppressive conduct relates to the unsuccessful attempt by the defendants, in the period 1 July 2012 to 30 June 2013, to acquire a trucking business, including trucks, for the sum of approximately $825,400, which sum was paid to the purported vendor of the trucking business. The proposed acquisition did not proceed and Tzavaras & Sons was unable to recover the sum that it had paid (this amount being recorded in the books of the Company as at 30 June 2013 as "Embezzlement – $825,400"). 2. John points to the increase in the loan facilities held by Tzavaras & Sons with AMP Bank Ltd (accounts ending #2015 and #2035) from $649,814 and $109,385, respectively as at 30 June 2012 to $1,234,814 and $448,661, respectively by 30 June 2013. As noted above, John contends that the increase in the said loans was in order to fund the proposed trucking business acquisition. 3. John's complaint is that Bill and Peter did not inform him of the proposed acquisition of the trucking business nor of the increase in the company's loans from AMP Bank to finance this; and it is said that Bill and Peter thereby excluded John from the company's affairs and mismanaged its affairs, to the detriment of members of the company including himself. John submits that it is verging on inconceivable that competent directors of a company, properly advised, could part with $825,400 of a company's moneys without obtaining anything in return and without there being any documentary record of the transaction. Defendants' submissions 1. The defendants point out that this loss has been recorded in the books of Tzavaras & Sons every year since 2013. It is noted that it is not alleged that anyone within the company embezzled or misused the funds in question; rather, the pleaded case is that Bill and Peter did not inform John of the proposed acquisition or of an increase in the AMP Bank loan to finance the acquisition (see at [34] of the amended statement of claim). The defendants say that it is common ground that Tzavaras & Sons was the victim of a fraud by a third party who was paid for the purchase of a trucking business but did not deliver. 2. The defendants cavil with the proposition that Bill and Peter did not inform John of the proposed acquisition; and with the assertion that the AMP Bank loans were increased to pay for it before the transaction happened. Peter's evidence is that John was aware that Tzavaras & Sons wished to invest in the trucking business and that, when told this in April 2012, John said "[d]o what you like, I don't care" (see [32]). It is noted that this was around the time (in March or April of 2012) that John says he asked Bill to buy him out for $4 million. The defendants say that, although there is a dispute about the timing of that conversation and whether or not $4 million was ever mentioned, there is no dispute that John walked out of the business in July 2012 (and that John's case is that he did not speak to his brothers after that). 3. The defendants suggest that it is implausible in this context that Bill and Peter should still have kept John informed of this transaction, noting John's evidence at T 105.17-50, 106.1-16 that: Q ... what you're complaining about (is) that Peter was a victim of a confidence trick. A. No, my complaint is I knew nothing about this. Q. Let me understand. Your only complaint is that you weren't told, you say, about what happened as moneys were progressively paid for what turned out to be a non-existent trucking business, is that right? A. That's my main complaint. Q. So you have another complaint? A. Well, one, they didn't ask me. One, they didn't ask me. Q. What difference would asking you have made? A. I would have objected. Q. But you had already indicated you'd already gone off to set up a business of your own and left the company, you say, as early as the beginning of the calendar year 2012, don't you? A. Yeah, but like I said before, I didn't stop caring about the company. Q. You just left-- A. It's still my, it's still my interest. Q. Well, were they supposed to run after you up to Seven Hills and report to you? Is that what you say? A. I'm sure they could get a message to Uncle Bill. Q. Is your complaint that they didn't tell somebody else who might have then told you after you had decided that you wanted to, what's the word used by your solicitor in his letter, after you had decided to sever your ties with the company? A. My complaint is they did whatever they wanted with the funds without asking me. Q. After you had severed your ties with the company? A. After I had left the company ..(not transcribable)... Q. Is that your complaint-- A. Left working there. Q. --that after you'd left this company, after you'd made it plain by your solicitor's letter that you wish to sever your ties with the company, you say that Peter and Bill should still have run after you and consulted you about company transactions? A. Why would I be okay with that, giving money away like this, when I'm trying to ask them for money to buy me out? Q. So you would have preferred them to give money to you or buy you out rather than buy a trucking business? Is that what it boils down to? A. Definitely. 1. The defendants submit that, even if John did not comprehend what he was told in 2012, it is clear, that within a short time thereafter, he became aware of the transaction and the loss it caused, referring to John's evidence a conversation with "Uncle Bill" Coundrelis (see at [46] of John's affidavit sworn 25 August 2020), said to have taken place in 2014, in which he said John says he asked his uncle "Bill, have you heard anything of these trucks that my brothers tried to purchase?". It is noted that, by then, John had become aware of the failed acquisition (because his question assumes that knowledge) but that he did nothing and six years passed without any complaint before this proceedings was commenced and "misuse of company funds" was first raised. 2. The defendants submit that it is probable that John was informed of the proposed transaction and brushed it aside (as Peter says); and that, had John had not been informed of it until 2014 (when he spoke with Uncle Bill), the probability is that he would not have ignored it for six years. 3. Reference is made to Peter's evidence in cross-examination on the topic (at T 141.20-50, 142.1-10) that: Q. In December of 2012 you made a fraud report to the police, right? A. Correct. Q. Prior to that time, you hadn't had any discussions with John about the proposed purchase of the trucking business from Mr Doumit at all, had you? A. John was aware. Q. Could you answer my question, please? You would have had no - you, yourself, had-­ A. No. Q. -- no discussions with John about that proposal, right? A. I had discussions with him. Q. Prior to December 2012, you say that-- A. I-- Q. --you had had a discussion with John about the proposed business of the trucking business? That's right. A. Not, not exactly sure what date it was, but we had - I had discussed it with John. Q. Before you paid out the money? A. Yes. Q. What did he say to you? A. "Do whatever you want. I don't care." Q. Well, I'm putting to you, Mr Tzavaras, the only conversation that you had with your brother John was after the event, right? A. Incorrect. Q. At that time he made known to you that he was very unhappy about it. A. No, he didn't really care. Q. $825,000 lost to the company and you're saying he didn't care? A. No, he walked away saying he doesn't care. He's walked away so many times. He's not interested. Q. Is that why you don't want him back? A. No, he's quite welcome to come back. The doors are open. 1. The defendants say that this evidence narrows the issue of when John first learned of the transaction to a shorter time frame but that, on any view, it was no later than 2013 (eight years or so before the present proceeding was commenced). 2. The defendants say that Peter and Tzavaras & Sons were cheated by the putative purchaser but that falling victim to a fraud is not oppression within the meaning of s 232 of the Corporations Act nor does it justify winding up the company. Surfers Paradise Unit Holiday Rental John's submissions 1. Finally, complaint is made in relation to the Surfers Paradise Unit, which was purchased by Tzavaras & Sons on 28 November 2003 for $650,000 and is now estimated to be worth $700,000. The complaint by John is not as to the acquisition of the property per se (although his oral evidence he made it clear that he did not agree with the acquisition and would have preferred to have the money to acquire his own property: see John's affidavit sworn 25 August 2020 at [69]); rather, it is that, since about 2003, Bill has occupied the Surfers Paradise Unit on numerous occasions (as has Peter from time to time) without paying any rent or other amount to Tzavaras & Sons (see at [37] of John's affidavit of 25 August 2020). 2. John points out that the Surfers Paradise Unit is rented out for most of the year. By reference to the rental statement for the Surfers Paradise Unit (exhibited at Exhibit GF1 to the affidavit of Mr Ferizis of 15 October 2020) for FY17, it is noted that the net rental income from the Surfers Paradise Unit for that year was approximately $27,000 per annum. John's complaint is that only minimal rental income was recorded during the month of January 2017 (this apparently being peak holiday season on the Gold Coast). 3. John asserts that Bill and Peter have thereby preferred their own interests over those of Tzavaras & Sons, and have conducted the affairs of the company for their benefit and to the detriment of the company and its members (including himself) by their use of the Surfers Paradise Unit without payment to Tzavaras & Sons for the same. Defendants' submissions 1. The defendants point out that Bill and Kylie have a unit of their own in the same building in Surfers Paradise but their evidence is that they stay in the company unit in alternative years when they paint the unit and attend to other maintenance. It is noted that other members of the family have stayed in the company unit without payment of rent, including John. 2. The defendants' evidence is that when the unit was acquired, it was discussed with John and agreed that all family members may holiday in the unit rent free. It is submitted that there is said to be nothing oppressive in Bill having done so; nor is there any evidence of what time was spent, or what a fair market rent might be, especially when maintenance was also carried out by Bill. 3. The defendants refer to John's evidence (at T 62.43-50, T63.1-21): Q. You say, don't you, that you've stayed in this unit on one occasion, for a week, with your wife? A. Yes. Q. Are you sure it was only the one occasion? A. Yes. Q. That was in 2009, was it? A. Best of my memory, yes. Q. The company had had this unit for six years by then, had it not? A. Yes, yes. Q. You stayed there for that week without being called upon to pay for it? A. Yes. Q. You knew that your brother, Peter, had stayed there from time to time, without being called upon to pay for it? Yes, is that your answer? A. Yes, sorry, yes, yes. Q. By 2009 you were aware that your brother, Bill, had also stayed from time to time without being called upon to pay for it? A. Yes. Q. The first time you've made any complaint to anybody about any of the three of you, with or without other members of your family, staying at this unit without having being called upon to pay for it, is when these proceedings have commenced in 2020, correct? A. As I said before, I've had conversations with my brothers regarding the unit. 1. The defendants say that there is no question that Tzavaras & Sons, as trustee of the Family Trust, is entitled to allow Beneficiaries (such as Bill, Peter and John) to use and occupy trust property on whatever terms it thinks fit, including use the Surfers Paradise Unit rent free. It is said that there is nothing in this head of claim to support a finding that, in allowing Bill to do so, the business and affairs of Tzavaras & Sons were conducted in a manner that oppressive to, prejudicial to, or discriminatory so far as John was concerned. 2. The defendants say that John's real complaint is that the Unit was purchased in 2003 when he thinks money would have been better spent buying him a house, but they point out that this is not the pleaded case, nor does it justify an order for winding up. It is noted that John was aware of the acquisition for over 20 years before the proceeding was commenced and occupied the Unit rent free himself, more than ten years beforehand. (The defendants say that bringing and persisting with this head of claim does John no credit at all.) Relief John's submissions 1. John's submission is that s 232 Corporations Act has been enlivened and he seeks as his principal relief an order pursuant to s 233(1)(a) of the Corporations Act that the company be wound up so as to put an end to the ongoing oppression. (As noted, John no longer seeks, by way of relief, a compulsory purchase order.) 2. John maintains that it is not unreasonable (within the meaning of s 467(4) of the Corporations Act) for him to seek the winding up of the company. John says in that regard that no evidence has been brought forward of any offer to acquire John's interest in Tzavaras & Sons or the Family Trust at any price "let alone a reasonable price". (That ignores the contested conversations as to a buy-out – see above – but I accept that any offer there made is not now on the table.) John says that there is no alternative remedy available to the winding up of the company, noting the observations of Leeming JA at [39]-[40] in Snell v Glatis (No 2) [2020] NSWCA 166 (Snell v Glatis (No 2)). 3. Insofar as the defendants have suggested that John's interest is worth only a quarter of $1.00, (see defendants' submissions) John says that it is hardly reasonable to expect John to sell his share in Tzavaras & Sons, and hence his interest in the Family Trust, for that price having regard to the assets of the Family Trust as valued by Ms Bateman (see above); nor is it reasonable to require John to return to working for Bill or Northmead Auto Centre as he did prior to 2012. (I have already dismissed the latter suggestion; and the former suffers from the problem, with which John does not seem to have grappled, that his interest in the Family Trust is an interest as a discretionary object of that trust; he is not entitled as of right to a quarter share of the assets of that trust.) 4. John submits that the solvency of Tzavaras & Sons, as a non-trading property holding company, is no impediment to its being wound up. (In the event that a winding up order is made, John seeks consequential orders that the liquidators also be appointed as receivers of the Family Trust with the necessary powers as set out in prayers 2B, 2C and 2D of the amended originating process.) I interpose to note that this does not take into account the provisions of the Trust Deed which apply in the event of liquidation of the trustee (being cl 10 of the Trust Deed), namely that the office of the trustee "shall ipso facto become vacant" (which would then require the appointment of a new trustee). Defendants' submissions 1. The defendants say that none of the pleaded heads of claim has been made good and therefore there is no basis on which the requirements of s 232 of the Corporations Act have been satisfied, or on which a winding up order under s 233(1)(a) or any other form of relief under s 233(1) should be granted. (It is noted that the same grounds are relied on for an order for winding up under s 461(1)(e) or (k) and for the appointment of receivers and that, absent those grounds, the alternative basis for relief should also fail.) 2. The defendants say that as a matter of principle, where oppression is established, the least intrusive form of relief should be granted (citing Ehsman v Nutectime International Pty Ltd (No 2) [2009] NSWSC 1096 at [87]-[88] per Gzell J); and, even then, only to provide relief against the oppression as found, not to serve another purpose (citing Re Dernacourt Investments (1990) 20 NSWLR 588 at 620 per Powell J (Re Dernacourt); Campbell v Backoffice Investments NSWCA at [121] per Giles JA). 3. It is submitted that in the present case, winding up would·be unjustified because Tzavaras & Sons and the Family Trust are solvent and that the effect of a winding up order, or the appointment of a receiver, would not only be futile because either would lead ipso facto to the removal of Tzavaras & Sons from the office of Trustee by operation of cl 10 of the Trust Deed (and the appointment of a new trustee) but that it would also be harmful to the credit of Tzavaras & Sons and the Family Trust. It is noted that there are mortgages over the Northmead Property and the Surfers Paradise Unit. The defendants say that the appointment of a liquidator or receiver would have an obvious impact on those credit facilities. 4. The defendants note that it has been said that an order for winding up a solvent company should be avoided if at all possible (citing John J Starr; that the powers under s 233(1) are intended to bring the oppression to an end, so the "appropriate" order under s 233(1) is one which serves that purpose, nothing more or less (citing Re Dernacourt, cited with approval in Campbell v Backoffice Investments NSWCA at [121); and noting Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 (Campbell v Backoffice Investments HCA)). 5. The defendants also say that the position of the general body of beneficiaries is also relevant; that John (incorrectly) treats the Family Trust as though he has a one third share of the capital; and that if a liquidator or receiver were to be appointed, the interests of other beneficiaries would be adversely affected (since, if nothing else, the expense of liquidation would consume a considerable part of the trust property). 6. As to the (now abandoned) claim for a compulsory purchase order, the defendants say that no purpose would be served by ordering that Bill and/or Peter purchase John's share in Tzavaras & Sons since the company is a trustee and has no assets of its own. The defendants accept that s 53 of the Corporations Act has the effect that, where a company is a trustee, the "affairs" of the company for the purpose of s 232 include the affairs of the trust of which it is trustee, but they say that it does not follow that the fair value of a share in the company should be measured by reference to the value of the assets in the Family Trust. It is said that if the company has no assets of its own, then the value of a share in the company is nominal. 7. The defendants accept that the fact that a company is a trustee and its shares have no value does not mean that orders cannot be made to remedy any oppression that might otherwise be found. It is noted that in an appropriate case, an order may be made regulating the future affairs of the company under s 233(1)(c) (for example by requiring meetings to be called and properly conducted) or an order restraining a threatened breach of trust under s 233(1)(i) (see Vigliaroni, concerning the buyout of units in unit trust); but they submit that this is not such a case. It is noted that the relief claimed here is limited to winding up or an order that Bill and/or Peter buy John out of Tzavaras & Sons, not the Family Trust (which in any event is a discretionary trust, in which the objects of the discretion have no saleable interest). 8. The defendants also note that John has made it clear in his evidence that he has no interest in any of the heads of claim on which he relies as a form of oppression, unfair prejudice or discrimination being remedied by any form of order other than winding up. Reference is made to the evidence (at T 108.33-45) where John rejected a suggestion that an order requiring formal notice of meetings might provide relief against his complaint about not being included in management: Q. ... are you saying to this Court that what you would prefer instead of a circular resolution such as that, you would prefer to have received a formal notice of a meeting and then have an occasion when the three directors get together around the board room table and have a meeting of the board of directors? Is that what you would prefer? A. That sounds a bit formal. We're just three brothers. I would have liked to have been informed. Q. I'm talking about going into the future. As an alternative to wrecking the company and the trust, would you be satisfied if a regime is put in place for the holding of formal meetings and the giving of formal notices and the typing of resolutions? Would you be satisfied with that? A. I'm sorry, I'm not looking to the future. 1. The defendants say that, in a case such as the present, where on any view John is using the proceeding to encourage Bill and Peter to buy him out, John's refusal to countenance any alternative form of remedy is a factor which justifies exercise of the discretion not to wind up the company (noting that, were that not so, the proceeding might itself become an instrument of oppression in John's hands). 2. Thus, as to any relief, the defendants say that no oppressive, unfairly prejudicial or unfairly discriminatory conduct within the meaning of s 232 of the Corporations Act has been proved and, accordingly, the jurisdiction to make an order under s 233 has not been enlivened and this head of claim should be dismissed, but that even if the jurisdiction has been enlivened the relief sought for the winding up of the company should not be made. Determination of oppression claim Relevant Provisions 1. Section 232 of the Corporations Act provides that: The Court may make an order under section 233 if: (a) the conduct of a company's affairs; or (b) an actual or proposed act or omission by or on behalf of a company,· or (c) a resolution, or a proposed resolution, of members or a class of members of a company; is either: (d) contrary to the interests of the members as a whole; or (e) oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity. For the purposes of this Part, a person to whom a share in the company has been transmitted by will or by operation of law is taken to be a member of the company. 1. Subsections 233(1) and (2) of the Corporations Act provide that: (1) The Court can make any order under this section that it considers appropriate in relation to the company, including an order: (a) that the company be wound up; (b) that the company's existing constitution be modified or repealed; (c) regulating the conduct of the company's affairs in the future; (d) 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; (e) for the purchase of shares with an appropriate reduction of the company's share capital; (f) for the company to institute, prosecute, defend or discontinue specified proceedings; (g) authorising a member, or a person to whom a share in the company has been transmitted by will or by operation of law, to institute, prosecute, defend or discontinue specified proceedings in the name and on behalf of the company; (h) appointing a receiver or a receiver and manager of any or all of the company's property,· (i) restraining a person from engaging in specified conduct or from doing a specified act; (j) requiring a person to do a specified act. (2) If an order that a company be wound up is made under this section, the provisions of this Act relating to the winding up of companies apply: (a) as if the order were made under section 461; and (b) with such changes as are necessary. 1. There is no doubt that John has standing pursuant to s 234 of the Corporations Act to make an application for an order under s 233. 2. Section 53 of the Corporations Act defines the term "affairs" of a company when used in ss 232 and 233; and (as adverted to above) includes in subsection (b) a company that is a trustee. 3. Section 467(4) of the Corporations Act also requires consideration as to whether some other remedy is available rather than a winding up order and whether the applicant is behaving unreasonably in seeking to have the Company wound up instead of pursuing that other remedy. Applicable principles 1. In Campbell v Backoffice Investments HCA, the High Court made clear (see at [176]) that s 232 should not be construed narrowly and that exclusion from management may be a form of oppression. The principles applicable to oppression suits have been summarised in a number of cases and I do not here repeat them in any detail (see, for example, Tomanovic v Argyle HQ Pty Ltd [2010] NSWSC 152 at [37]-[46] per Austin J (Tomanovic); Campbell v Backoffice Investments NSWCA per Basten JA at [181]; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (2001) 37 ACSR 672, [2001] NSWCA 97 at [85], [86], [175] per Spigelman CJ (Fexuto); Nassar v Innovative Precasters Group Pty Ltd (2009) 71 ACSR 343; [2009] NSWSC 342 at [96] per Barrett J, as his Honour then was; Munstermann per Stevenson J at [21]-[22]). 2. Whether oppression is established is to be determined by reference to the nature of the business carried on by the company and the nature of the relations between participants, and "whether objectively in the eyes of the commercial bystander, there has been unfairness, namely conduct that is so unfair that reasonable directors who consider the matter would not have thought the decision fair" (see Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 per Young J, as his Honour then was, at 704). As Black J noted in In the matter of Computer Room Solutions [2021] NSWSC 845 (at [89]), each case must be considered on its own facts and circumstances, and by reference to the conduct as a whole. Determination 1. In the present case, the history of the formation of Tzavaras & Sons as a family company; and its limited role as trustee of the Family Trust should be noted. I accept that, as recognised by Rees J, in In the matter of Scientific Management Associates Pty Ltd (2019) 141 ACSR 115; [2019] NSWSC 1643, at [191]-[192], a closely-held company or quasi-partnership has features that may form a species of oppression claims (her Honour there citing In Re a Company (No 00709 of 1992); O'Neill v Phillips [1999] 2 All ER 961; [1999] UKHL 24 at 970 per Lord Hoffman, with whom Lords Jauncey of Tullichettle, Clyde, Hutton and Hobhouse of Woodborough agreed); and I note that in Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 6) (2014) 102 ACSR 130; [2014] WASC 278 Kenneth Martin J said at [91]: I should say at the outset that, in my view, it would be incorrect in legal principle to approach this issue on a basis that there is some unlegislated category of corporation, whether one terms it a 'close held family company' or otherwise, the conduct of whose affairs can never be oppressive or which fall to be assessed at some lesser standard. The day-to­day experience of the courts rather suggests that loose or informal management practices, underlying personal relationships and frequently uncommercial conduct or decision making (from a company perspective) routinely characterise the operations of family companies. Yet these circumstances are highly conducive to the manifestation of corporate oppression scenarios. 1. Nevertheless, it is pertinent that the company here in question was set up as trustee of a discretionary family trust and has not (since at least 2013) carried on a business of itself; it clearly being intended to control the family trust but not (since that time) having the management or conduct of the operation of the family business. 2. In Shelton v National Roads and Motorists Association Ltd (2004) 51 ACSR 278; [2004] FCA 1393 (Shelton v NRMA) Tamberlin J stated: [23] It is not practicable to delineate the numerous ways in which oppressive conduct may be established. The Court will generally look at the overall course of conduct and consider whether it is so unfair that reasonable directors would not consider it fair. If directors exercise a power so as to impose a disability or burden on a member that is unfair according to ordinary standards of reasonableness and fair dealing, then such conduct may be described as oppressive. The question is one of fact and degree for the Court to determine, having regard to the view the directors have formed themselves, and allowing for any special skill or knowledge possessed by the directors. The test of unfairness is objective: see Wayde v NSW Rugby League Ltd (1985) 180 CLR 459 at 472 ("Wayde") per Brennan J; Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573. The Court should not take a narrow approach to cases of oppression. It is necessary for the Court to come to a conclusion that there has been conduct unfairly prejudicial to or unfairly discriminatory or oppressive to a member before it makes an order to this effect: see John J Starr (Real Estate) Pty Ltd v Andrew (Australasia) Pty Ltd (1991) 6 ACSR 63, and the authorities there collected at 65–67. [my emphasis] 1. Whether the company's conduct was contrary to the interests of the members as a whole or oppressive is based on the objective facts (Wayde at 472 per Brennan J), although in Doyle v Australian Securities and Investments Commission (2005) 227 CLR 18; [2005] HCA 78, it was said that, even though subjective intention or purpose is not a necessary ingredient in determining improper use of position, the presence of such an intention or purpose may be relevant in assessing impropriety (at [41] per the Court). Further, fairness under s 232 must not be assessed in a vacuum (Thomas v HW Thomas Ltd (1984) 2 ACLC 610; [1984] 1 NZLR 686 at 694). 2. The motivation or bona fides of the company or its officers does not preclude the availability of the remedy (Campbell v Backoffice Investments HCA), it not being to the point that the directors may not have intended to deal inappropriately with the assets of the company. 3. Turning to the particular instances of oppressive conduct, I find as follows. 4. First, as to the complained of exclusion from management, I cannot accept that it is oppressive conduct for directors of a company not to involve in the day-to-day meetings (or even annual meetings) of the company a person who has made clear that he has no wish to be involved in the management of the company. John's solicitors could not have made his position any clearer. John wished to sever his ties with the company. John literally walked away not only from the family business but also from the company (i.e., Tzavaras & Sons). John was apprised from time to time of matters on which his consent or approval was required but otherwise (in accordance with his stated wishes) he seems to have been left alone. It is to my mind wholly unreasonable, against that background, for John now to seek the winding up of Tzavaras & Sons for failure of the remaining two directors to send him notices of meetings that (on his stated position) it surely cannot be expected that he would have attended and about the non-receipt of which he did not for many years complain. When John (finally) sought information in relation to the company it appears that it was provided to him. 5. I find that the conduct complained of was not in all the circumstances oppressive but that, if that conclusion be wrong, the appropriate relief (see below) would not be for the winding up of the company; rather, it would be for a direction that John be provided with notice of meetings in future and the company material of which he complains he has not received in the past years. 6. Second, as to the complaint in relation to the Shareholders' Loan Account, I consider that, again, there has been no oppressive conduct. John does not have an entitlement to a one-quarter share of this loan account balance – he and the other account holders were entitled jointly to the whole of the balance. True it is, that John has not drawn down on the account over the years – this is because he absented himself from the company and its affairs; and made no request for any such drawings. John has abandoned his claim for a shareholders' accounting in respect of the Shareholders' Loan Account. Moreover, John surely cannot (at least from a moral perspective as her son) complain as to the disbursement of expenses referable to Jenny's maintenance and support out of the account (particularly when it appears that the history of the family company was that expenses of this kind were met out of company profits by way of drawings). 7. I accept that a failure to pay dividends may be oppressive (Roberts v Walter Developments Pty Limited (1997) 15 ACLC 882); and this may particularly be the case where the payment is to some but all of the shareholders. However, here there has been no payment of dividends to any of the shareholders (and the use of profits to offset tax losses has a rational explanation which to my mind tells against oppression, in the sense that, on the balance of probabilities, a commercial bystander would not be satisfied that this offsetting of profits against losses was or is unfair in the sense of oppression (see Cassegrain v CTK Engineering Pty Ltd [2005] NSWSC 495 at [84] per White J as his Honour then was). 8. Third, as to the Northmead Auto Centre claim, there is no dispute that Tzavaras & Sons (as trustee of the Family Trust) was authorised to permit Northmead Auto Centre to occupy the property and to do so at no cost. I accept that this has been to the benefit of Bill's company, at the expense of the Family Trust (in the sense that the Family Trust has therefore missed out on the income that might have been earnt). Further, it is accepted that conduct by majority members of a company, or by its directors, taking a benefit at the expense of the company may constitute oppression (Fexuto at [505] per Priestley JA). 9. Nevertheless, there is at least some benefit obtained by the security and caretaking role performed by Bill (even if, as said by John, a commercial tenant would likely have had obligations under its lease to maintain and secure the premises). It is to my mind also relevant to note that the establishment of Tzavaras & Sons was in the context of a family business in which the three sons and other beneficiaries were ultimately to have a potential interest. It seems inherently unlikely that Nick would have expected the occupation of the Northmead Property (as it related to the family business that was continued on by Bill's company) to be on the same basis as a third party commercial entity. In any event, even if there be oppression in this context, the remedy in my view would not be to wind up Tzavaras & Sons. Rather, as the defendants submit, it would be to direct Tzavaras & Sons, as trustee of the Family Trust, not to permit beneficiaries to use trust property without a commercial rent. 10. As to the fourth matter relied upon, the misuse of company funds, the complaint is again not made good. The evidence suggests no more than that Peter, and Tzavaras & Sons, were victims of a financial fraud. I do not see this as part of a pattern of conduct (neglect or otherwise) that could be said to be oppressive; nor do I consider that it is reasonable for John to have expected that (having expressed emphatically through his solicitors his wish to sever his ties with the company) John would be consulted on the proposed acquisition of the trucking business. 11. Finally, as to the Surfers Paradise Unit, again the complaint of oppression is not made good. There is nothing to prohibit the trustee from permitting occupation of the Unit (rent free) during the holiday season to Bill and/or Peter. John himself has occupied the Unit on the same basis as the others (albeit that he has availed himself of that opportunity only once). If John has a complaint as to unequal usage of the Unit then this should be taken up with his brothers at the company level. It does not amount to oppression. 12. Thus I consider that the oppression claims have not been made good. Relief 1. Had oppressive conduct under s 232 of the Corporations Act been established, John invokes what was said by Bell P, as his Honour then was, in Snell v Glatis (No 2) at [6]: Although statements may be found in the authorities that winding up is a last resort remedy in a case where oppression is found (see, for example, Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [1998] NSWSC 413; (1998) 28 ACSR 688 at 742; Tomanovic v Argyle HQ Pty Ltd [2010] NSWSC 152 at [46]; Munstermann v Rayward; Rayward v Munstermann [2017] NSWSC 133 at [22]), the present case highlights the fact that the context in which the particular company or companies operate together with their structure and history will always be relevant to the fashioning of appropriate discretionary relief and generalised statements as to, for example, the inappropriateness of ordering winding up in cases of oppression other than as a last resort do not mean that that remedy should not be considered, in an appropriate case, even if neither party in fact seeks it. The present was, in my opinion, an appropriate case. It would also have secured the cessation of oppression "going forward" which was the legitimate concern referred to by the primary judge at [296] of her reasons. 1. John places weight on the observations by Leeming JA in Snell v Glatis (No 2) at [39]-[40] that: 39 It is a noteworthy feature of the SMA group of companies that they were not only solvent but in very large measure non-trading. Their assets substantially comprised real estate (much of which was leased to tenants) and debts (some secured, some unsecured). The purpose which is achieved by a buyout order is to return to a minority shareholder the value of his, her or its shareholding. In a case such as the present where the corporate assets were substantially realisable and there was very little active trading, many of the usual considerations tending against ordering winding up did not apply. 40 ... In the present case, where the companies were for the large part not running a business, but rather collecting rents on leased property and repayments of secured and unsecured loans, winding up was a realistic means of securing to the plaintiffs their share of the value of the SMA Group, which would also prevent ongoing oppression. (See also the observations of Bell P at [5]-[7] and Leeming JA at [42], [51] in that case.) 1. Further, it is noted that in Vigliaroni, Davies J found at [68] that, by reference to s 53, the court's jurisdiction and powers under the statutory oppression provisions were not circumscribed in respect of a trustee company. Thus, the court had power to make orders under s 233, including an order that the company be wound up, if the appropriate circumstances were established, including where the company acted as trustee and the oppression related to the affairs of the trust (points by way of example to Crow Inn (No 2) per Rees J at [284], [287]-[288]). 2. In the present case, however, I consider that it is unreasonable for John (having stood back and permitted Tzavaras & Sons to operate as it has over a significant number of years) now to seek to wind up the company (and trust) when I consider that there are other avenues of relief available which should put an end to any alleged oppression (such as the inclusion of John in the management as a director of the company). 3. As noted, there was no application for a compulsory purchase order. Had there been such an application, then, when valuing the oppressed shareholder's interest in the determination of the relief to be awarded for oppression, the aim is to put the applicant in the position as if there had been no oppression, as stated by Young J (as his Honour then was) in ES Gordon Pty Ltd v Idameneo (No 123) Pty Ltd (1994) 15 ACSR 536 at 540. The general principle, when determining relief for oppression, was said (in Scottish Co-operative Wholesale Society Ltd v Meyer [1959] AC 324 at 364, per Lord Keith) to be to determine "what would have been the value of the shares at the commencement of the proceedings had it not been for the effect of the oppressive conduct of which complaint was made" (an exercise that it was said was clearly not a matter on which a calculation can be made with mathematical accuracy or by the application of strict accounting principles) (see also Lord Denning, at 369). 4. I accept that the aim is to fashion relief which removes the adverse effects of the oppression has also been recognised in Shelton v NRMA, at [26], cited by Bergin J (as her Honour then was) in Backoffice Investments v Campbell (2007) 61 ACSR 144; [2007] NSWSC 161 at [93], and reaffirmed in Campbell v Backoffice Investments NSWCA at [195], [332], which was not questioned in the High Court's decision in this matter, Campbell v Backoffice Investments HCA. 5. Further, the remedy chosen should be the least intrusive (Martin v Australian Squash Club Pty Ltd (1996) 14 ACLC 452 at 475 per Hodgson J (as his Honour then was); Fexuto v Bosnjak Holdings Pty Ltd (1998) 28 ACSR 688; [1998] NSWSC 413 at 742 per Young J (as his Honour then was)) (even accepting that this does not preclude the winding up of a solvent company in appropriate circumstances). 6. In the present case, where John's share in Tzavaras & Sons does not entitle him automatically to a one quarter share of the net assets of the trust, and where liquidation of the trustee will have consequences for the ongoing administration of an otherwise solvent trust, I do not consider that winding up would be an appropriate remedy. At most, I would have contemplated a referral out for the valuation of John's contingent interest as a discretionary object under the Family Trust though I would have had real doubt as to whether the expense of this would be warranted in circumstances where the parties have already had ample opportunity to obtain expert evidence. Claim for winding up on the just and equitable ground 1. In the alternative, John seeks a winding up of Tzavaras & Sons on the just and equitable ground pursuant to s 461(1)(e) and/or s 461(1)(k) of the Corporations Act. 2. Sub-section 461(1)(e) of the Corporations Act provides that the Court may order the winding up of a company if the directors have acted in affairs of the company in their own interests rather than in the interests of the members as a whole, or in any other manner whatsoever that appears to be unfair or unjust to other members. Sub-section 461(1)(k) of the Corporations Act provides that the Court may order the winding up of a company if the Court is of the opinion that it is just and equitable that the company be wound up. 3. It is noted that an order for winding up under the just and equitable ground may be made by reason of mismanagement, misconduct or lack confidence in the conduct and management of the company's affairs (see Australian Securities and Investments Commission v Letten (No 10) [2011] FCA 498 at [13] per Gordon J, sitting in the Federal Court as her Honour then was); and also, if a company was based on an association formed on the basis of a personal relationship involving mutual confidence, where that confidence has broken down (see Ledir Enterprises at [251] per Black J); or where a shareholder has been denied access to information or excluded from major decisions (McMillan v Toledo Enterprises International Pty Ltd (1995) 18 ACSR 603 at 619 per Beazley J, as Her Excellency then was). John relies upon the same evidence in this context as is relied upon in relation to his primary oppression claim. 4. The defendants say that the alternative basis for the winding up claim also fails since it is based on the same grounds that are here relied upon as for the oppression claim. Further, as adverted to above, the defendants say that this is not here truly a quasi-partnership since, when Tzavaras & Sons was established by Nick, he had control of the company (and the sons have in effect simply acquired their interests in the father's company). That is, the defendants say that the company was not formed on the basis of a relationship of mutual trust and confidence as between the Tzavaras brothers but, rather, was formed by their father, Nick; and that the brothers' relationship only took on importance vis-à-vis the company following Nick's death. 5. In Ebrahimi v Westbourne Galleries at 374, 379 Lord Wilberforce said the following as to the principles applicable to winding up on the just and equitable ground: … [T[here has been a tendency to create categories or headings under which cases must be brought if the clause is to apply. This is wrong. Illustrations may be used, but general words should remain general and not be reduced to the sum of particular instances.…It would be impossible, and wholly undesirable, to define the circumstances in which these considerations may arise. Certainly the fact that a company is a small one, or a private company, is not enough. There are very many of these where the association is a purely commercial one, of which it can safely be said that the basis of association is adequately and exhaustively laid down in the articles. The superimposition of equitable considerations requires something more, which typically may include one, or probably more, of the following elements: (i) an association formed or continued on the basis of a personal relationship, involving mutual confidence — this element will often be found where a pre-existing partnership has been converted into a limited company; (ii) an agreement, or understanding, that all, or some (for there may be "sleeping" members), of the shareholders shall participate in the conduct of the business; (iii) restriction upon the transfer of the members' interest in the company — so that if confidence is lost, or one member is removed from management, he cannot take out his stake and go elsewhere. 1. Following Lord Wilberforce's pronouncements in Ebrahimi v Westbourne Galleries, domestic jurisprudence on the just and equitable ground has made it clear that a court's power to make a winding up order on the just and equitable ground is not to be limited to particular closed categories of case (see Thomas v McKay Investments Pty Ltd (1996) 22 ACSR 294 at 300 per Owen J (Thomas v McKay Investments); Australian Securities and Investment Commission v Storm Financial Ltd (2009) 71 ACSR 81; [2009] FCA 269 at [65] per Logan J; In the matter of Amazon Pest Control Pty Ltd [2012] NSWSC 1568 at [17] per Black J). An applicant may rely on all relevant circumstances of justice or equity that affect the applicant's relationship with the company in support of the application for winding up on the just and equitable ground (In the matter of Catombal Investments Pty Ltd [2012] NSWSC 775 at [20] per Brereton J as his Honour then was; In the matter of AJ Roberts Removals & Storage Pty Ltd [2017] NSWSC 1054 at [72] per Black J (AJ Roberts Removals)). 2. This is not to say that there are no archetypical examples of case in which an order for winding up on the just and equitable ground may be justified. It has also been recognised that there is utility in discussing the cases that fall within these recognised categories when considering making an order for winding up in novel circumstances (as long as it is borne in mind that this does not constrain the discretion to make the order in other categories of cases - see Re Straw Products Pty Ltd [1942] VLR 222; [1942] ALR 361 at 363 per Mann CJ). 3. The irremediable breakdown of the relationship between persons in control of a company is a common instance in which the discretion to make an order for winding up on the just and equitable ground will be enlivened. Such a breakdown must generally be of a nature or degree that it materially frustrates the commercial operations of the company (see Tomanovic at [50]). A useful discussion of the circumstances attending an irremediable breakdown of a personal relationship between shareholders may be found in the judgment of Black J in AJ Roberts Removals at [72]: Such an order [pursuant to s 461(1)(k) of the Corporations Act 2001 (Cth)] can be made where a company was formed on the basis of a personal relationship involving mutual confidence or requiring material co-operation between the shareholders, and that confidence or co-operation has broken down: Ebrahimi v Westbourne Galleries Ltd [1973] AC 360; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd above; Re Amazon Pest Control Pty Ltd [2012] NSWSC 1568 at [17]–[19]. In Re Catombal Investments Pty Ltd [2012] NSWSC 775 at [19], Brereton J observed that a deadlock or disagreement in the management of the company's affairs was a common case for a winding up on this basis, and also that the words "just and equitable" were general words and an applicant could rely on any circumstances of justice or equity that affect him or her in his or her relationships with a company in support of such an application. 1. In the cases in which a winding up order has been made on the basis of the breakdown of a personal relationship, particular emphasis has been placed on the formation of the company on the basis of that personal relationship (see, for example, In the matter of Matrix Global Investment Group Sydney Pty Ltd (ACN 614 718 399) [2021] NSWSC 80 at [41] per Williams J; AJ Roberts Removals at [72] per Black J). While generally the relevant personal relationship has existed at the time of the formation of the company in question, and has been integral to that formation, (and bearing in mind that the categories of case in which an order on the just and equitable ground may be made are not closed). I do not consider that the power to make such an order would not be enlivened (in otherwise appropriate circumstances) simply because the relevant relationship (and its bearing on the company) emerged subsequent to the formation of the company. Rather, the task of the court is to examine the entirety of the factual matrix in order to form a view as to whether it is just and equitable (in all the circumstances) for the company to be wound up (see Australian Securities and Investments Commission v Green Pacific Energy Ltd (2006) 59 ACSR 142; [2006] FCA 1254 at [139] per Greenwood J). 2. It is, however, worth nothing that relief is less likely to be granted on the basis of the just and equitable ground where the person was and himself or herself responsible for the breakdown of the relationship. In Fexuto Spigelman CJ said at [90]: There will be circumstances in which the emergence of irreconcilable differences will cause the court to conclude that an understanding or expectation as to participation in management should be taken to have ceased, in a manner not entitling the person excluded from such participation to relief under the statutory provisions. That would be so where the Court decides that it is the person excluded who is responsible for the breakdown in the relationship. 1. I accept that there has been a breakdown in the personal relationship between the brothers and that John wishes (and has since 2012 expressed the wish) to "sever his ties" with Tzavaras & Sons, and wishes to be bought out of his interests in the company and the Family Trust (albeit at a price that he considers reflects his entitlements). I do not suggest by this that John is the cause or sole cause of the breakdown in the brothers' relationship. Nevertheless, it seems on the evidence that he is at least equally complicit in the determination in their personal relationship remaining unrepaired (since he seems to have no interest in any form of reconciliation with his brothers). 2. However in circumstances where there is no position of deadlock in the company; and John seems to have been able to co-exist in joint ownership of the Georges Hall Shopping Centre for some time. I do not consider that the position (in light of all the circumstances) is such that a winding up order is here warranted. At most I would have referred the matter to a referee for a determination as to the amount at which John's interest would be valued and would order a buy out of his interests on that basis. In circumstances where that seems unlikely to produce a substantial result for John (and he has eschewed a compulsory purchase order) I do not consider the expense of such a process is warranted (especially where the parties have already incurred expense in a valuation exercise of that kind). 3. Therefore, I dismiss the claim for a winding up order on this alternative ground. Section 66G claim 1. As to the separate claim under s 66G of the Conveyancing Act in respect of the Maroubra Property, as noted above John and Peter are the registered proprietors of the Maroubra Property as tenants in common in equal shares. The Maroubra Property was purchased at auction on 20 January 1997 for the price of $610,000. Settlement occurred on 25 June 1997. John says that he contributed $125,000 from his own funds towards the purchase price; that Peter contributed $90,000; that a loan was obtained from Westpac for $200,000 (secured by mortgage over the property); and that Nick contributed the balance of $195,000. 2. Also as noted above, on 23 January 2003, Peter made a payment in the sum of $125,000 to John. John asserts that the payment of $125,000 was only a partial payment by Peter towards John's interest in the Maroubra Property. Peter, on the other hand, asserts that the payment was in full satisfaction of John's interest and has not paid any further amount to John since that date. 3. John says that he has never signed (nor has he been requested to sign) any document to transfer his interest in the Maroubra Property to Peter (reference being made to s 54A of the Conveyancing Act in this regard) and notes that he remains registered on its title. (As noted above, John has signed the mortgage to AMP Bank as co-registered proprietor.) 4. John submits that the surrounding facts and circumstances support John's version of these events (rather than Peter's). John says it was quite clear in his mind, and he made it known to Peter, that he regarded half of the monies provided by his father of $200,000 as his. John maintains that he had a share or interest in the Maroubra Property above that of the $125,000 that he himself had provided towards its purchase price, by reason of Nick having provided the sum of approximately $200,000 towards its purchase. (John consistently maintained this stance in cross-examination.) 5. John says that the sum of $200,000 provided by Nick should be regarded as a gift, in equal measure, to his sons Peter and John. It is noted that, according to Peter's evidence he regarded this as something provided by his father "to help towards the house". John says that there is no evidence that Nick retained any interest in the Maroubra Property by way of resulting trust (and even if there were, that presumption is rebutted by the evidence that his father intended it to help towards the house). It is submitted that half of the sum of $200,000 (namely $100,000) was a gift to him by his father (and thus in effect he maintains that he contributed some $225,000 to the house purchase). John submits that he is therefore the equitable owner of a one-sixth share of the Maroubra Property (reflecting the $100,000 given to him by his father as a gift, which represented one sixth of the purchase price of the Maroubra Property). 6. It is submitted that the surrounding and subsequent facts are consistent with John's evidence and support the inference that Peter and Bill recognised that John had a continuing interest in the Maroubra Property. For these reasons it is submitted that John's evidence is to be preferred to that of Peter. 7. From this, it is said that it follows that John's equitable interest in the Maroubra Property was not extinguished in 2003 by the payment of $125,000 to him by Peter; and, accordingly, John retains an equitable interest to support his legal interest as registered proprietor of the Maroubra Property as tenant in common with Peter, which in turn supports his application for orders under s 66G of the Conveyancing Act. 8. John seeks, pursuant to s 66G of the Conveyancing Act, the orders in prayers 4-11 of the amended originating process for the appointment of trustees for sale of the Maroubra Property and consequential orders. John further seeks an order in prayer 12 of the amended originating process that Peter pay mesne profits in respect of his occupation of the Maroubra Property, at the rate of $1,400 per week since 2014 (or in such other amount as may be determined), 50% thereof to be payable to John. 9. John says (and I accept) that there is very little discretion when an application is made under s 66G of the Conveyancing Act and that, in general, a co-owner of property may use the s 66G procedure to realise his or her interest irrespective of the wishes of the other co-owner. John says that there is no general discretion to refuse an application on such grounds as hardship or unfairness; and that, unless it is shown that it may involve a breach of a fiduciary obligation, breach of trust or breach of a contractual obligation on the part of the applicant, an order under s 66G should not be refused. Defendants' submissions 1. As to the s 66G claim, the defendants do not cavil with the principles applicable on such an application but they say that the issue here is whether the interests that Peter and John held in the Maroubra Property were settled by agreement between them in 2002 when Peter "bought out" John's interest in that investment. 2. The defendants accept that John contributed $125,000 towards the purchase price of the Maroubra Property in 1997 and that title was taken by Peter and John as tenants in common in equal shares. It is noted that John proposed that the Maroubra Property be sold in 2002, which Peter declined because the property was used as security for borrowings by Tzavaras & Sons to fund the development of the Northmead Property. 3. The defendants say that the issue is whether the brothers settled their differences on terms that Peter would pay John his $125,000 contribution and obtain all of the beneficial interest in the house. Peter's evidence is that John said "Just give me the money I put into the property ... Just give me my money, that's all I want. The house is all yours"; that Peter paid John the $125,000; and that Peter has resided in the house ever since. 4. It is noted that the legal title to the Maroubra Property is still in the names of Peter and John, but that it is subject to the AMP Mortgage to support borrowings by Tzavaras & Sons. It is said that, if John is not prepared to honour his agreement with Peter, then it is appropriate to appoint trustees of the Maroubra Property under s 66G of the Conveyancing Act upon terms that the property be conveyed to Peter subject to the existing encumbrance. It is said that the costs of the application, including any costs of the trustees, should be paid by John. Insofar as prayers 11 and 12 of the originating process seek orders that Tzavaras & Sons pay John an amount equivalent to half the amount required to discharge the AMP Mortgage and that Peter pay John mesne profits in respect of his sole occupation of the Maroubra Property, the defendants say that no basis for either of those claims has been pleaded (so it is assumed that they have been abandoned) but that, if that assumption be incorrect, the claims fail for lack of legal basis and evidence in support. 5. The defendants say that Peter's evidence of the conversation concerning the Maroubra Property should be preferred to the evidence of John not only because they submit Peter was the more credible witness but also because of what they maintain is the sheer improbability that the transaction which undoubtedly occurred on the occasion in question (the payment of $125,000) was not a transaction in which Peter paid $125,000 to buy his brother out of their jointly owned property but rather was a transaction in which Peter did nothing more than make part payment of a price (which John himself says had not been agreed). 6. It is noted that, on John's version of the conversation, Peter's alleged response to a (relatively anodyne) question from John as to the Maroubra Property was an extraordinary response. It is said that this is especially so in a context in which John then deposes that the conversation proceeded (very shortly afterwards) to the point at which Peter then said he could only pay $125,000 and John accepted this (albeit that John says he added "we can sort the rest out later"). 7. Noting that at that time (the end of 2002) the $1.9 million mortgage was on the title to the Maroubra Property to secure the funds advanced to construct the new service station, the defendants say that it is inherently more probable that Peter said "We can't (sell the Maroubra Property) as you know its tied up as security for the petrol station". 8. The defendants say that there is no doubt that John was wanting to get his money out of the Maroubra Property (there being a very large mortgage on that property and with John not living in Maroubra) and that it is highly likely that John would have been prepared to compromise his claim and take what he could get for his interest in the property, since otherwise his $125,000 might be tied up for years while Tzavaras & Sons paid off the cost of developing the Northmead Property. 9. It is submitted that Peter's evidence that there were two conversations (not one) is also more probable than one conversation in which an angry man went from threatening murder to handing over all the money he said he could within the one short conversation. Peter's evidence is that, a week later, John said "Just give me the money that I put into the property" to which he responded "If I give it to you, you are just going to waste it on racing cars". Peter says that John then said "Just give me my money, that's all I want. The house is all yours". It is noted that at the time John was 33, living at home with his mother and was pursuing his hobby of racing cars; and Peter had been living in the Maroubra Property since 1997. Therefore, it is submitted that it is highly likely that John would have wanted to take his investment out of Maroubra and put it to use elsewhere. 10. The defendants say that the fact that nearly 20 years went by without either of Peter or John revisiting the matter, strongly suggests that a concluded deal had been done in 2002, not a deal in which a part payment had been made in relation to some other unascertained sum. 11. Thus, while John is still on the title to the Maroubra Property and therefore a co-owner at law, Peter says that the effect of the agreement that was reached is that John has released any claim to the property in favour of Peter. Accordingly, it is said that the terms on which it has now become necessary for a trustee for sale to be appointed should include provision for a transfer to Peter subject to the existing encumbrance, or other terms which are moulded to give effect to the agreement. Determination Relevant legislative provisions 1. Section 66G(1) of the Conveyancing Act provides as follows: (1) Where any property (other than chattels) is held in co-ownership the court may, on the application of any one or more of the co-owners, appoint trustees of the property and vest the same in such trustees, subject to incumbrances affecting the entirety, but free from incumbrances affecting any undivided shares, to be held by them on the statutory trust for sale or on the statutory trust for partition. 1. "Co-owner" is defined in s 66F to mean a co-owner of either a legal or equitable interest. A person must be a co-owner at the time of making the application (see Darrington v Caldbeck (1990) 20 NSWLR 212 at 215 per Young J, as his Honour then was). 2. It is now clear (despite earlier authority to the contrary) that s 66G imposes no obligation upon a court to make an order for sale (or partition) but rather is discretionary in nature (see Forgeard v Shanahan (1994) 35 NSWLR 206 at 213 per Kirby P, as his Honour then was (Forgeard v Shanahan); Williams v Legg (1993) 29 NSWLR 687 at 692-693 per the Court). 3. Peter (as the party opposing the sale) bears the onus of dissuading the Court from ordering such a sale (see Woodson (Sales) Pty Ltd v Woodson (Aust) Pty Ltd (1996) 7 BPR 14,685 at 14,701). Relevant principles 1. The principles in relation to resulting trusts are well known (see the summary in Amit Laundry Pty Ltd v Jain [2017] NSWSC 1495 at [145]-[168]; and see Guirguis v Girgis [2021] NSWCA 156 at [53] per White JA by reference to Foundas v Arambatzis [2020] NSWCA 479 at [47]-[50]). 2. Of the types of resulting trust, here what is involved is what is commonly referred to as a purchase money resulting trust (see Hancock Family Memorial Foundation Ltd v Porteous (1999) 32 ACSR 124 at [68] per Anderson J). The purchase money was contributed from a number of sources (not only John and Peter – in differing amounts; but also Nick, perhaps jointly out of funds held with Jenny; and also Tzavaras & Sons via the finance it obtained). The property was registered in the names of John and Peter only. The classic authority for this type of resulting trust is Dyer v Dyer (1788) 2 Cox Eq Cas 92 at 93 per Eyre LCB: The clear result of all the cases, without a single exception, is, that the trust of a legal estate, whether freehold, copyhold, or leasehold; whether taken in the names of the purchasers and others jointly, or in the name of others without that of the purchaser; whether in one name or several; whether jointly or successive, results to the man who advances the purchase money. This is a general proposition supported by all the cases, and there is nothing to contradict it; and it goes on a strict analogy to the rule of the common law, that where a feoffment is made without consideration, the use results to the feoffor. 1. That this is the position in contemporary Australia has been confirmed by the High Court in Napier v Public Trustee (WA) (1980) 32 ALR 153 (per Aickin J). As to the position vis-à-vis contribution to the purchase price by two or more people in circumstances where the property is conveyed in the name of only some of the purchasers, see Delehunt v Carmody (1986) 161 CLR 464; [1986] HCA 67 at 472–3 (per Gibbs CJ). 2. Therefore, the application of the presumption of a resulting trust (unless rebutted by evidence of actual intention or excluded by operation of the presumption of advancement) would be that John and Peter hold their respective interests in the property on resulting trust for themselves and the other contributors in the proportions in which they each contributed to the purchase price. 3. The presumption may be rebutted by evidence as to actual intentions (though not yielding to slight circumstances); and a presumption of advancement may well also apply (see Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25 at 584 per Toohey J that "the presumption of advancement between father and child remains intact", in that case the Court recognising the presumption of advancement as between a mother and her adult children). 4. It does not appear to be disputed that Nick (and/or Jenny) wished to assist Peter and John to buy the Maroubra Property (in which they were at that stage both to live). However, there may be a difference between whether the $200,000 was a gift to Peter and John (notionally contributed by each to the purchase price) – such that Peter would be said to have contributed $90,000 + $100,000 (being $190,000) and John $125,000 + $100,000 (being $225,000). This, it seems is the basis of the calculations put forward by John. Alternatively, it could be approached on the basis that Nick (and/or Jenny)'s contribution gave rise to a presumption of advancement so as to rebut the presumption of resulting trust that would otherwise arise; such that as between the parents and their sons the title would remain as it is (though this does not take into account the interest of Tzavaras & Sons). 5. I do not include any reference to Bill's alleged contribution of moneys he says were paid when a family home unit was sold because that evidence is vague and it seemed to relate to the time at which the mortgage(s) were discharged or refinanced. 6. Whatever the position as to John's interest prior to the arrangement with Peter (when John was paid the sum of $125,000), the real question is what was the tenor of that arrangement. This turns on whose version of the conversation(s) is to be accepted. 7. John's version suffers from the implausibility to which the defendants point (that Peter went from threatening to put a bullet in John's head to offering within a short time in the same conversation to pay a sum of $125,000 and to "sort things out later"). (This version of the conversation is vague to say the least.) It is possible that a person of volatile personality might swing between two such extremes but Peter's demeanour in the witness box was laconic and not suggestive of this. 8. I agree that it is more likely that there were two conversations, though ultimately it is not necessary to make such a finding. 9. The real issue is whether the agreement was that Peter would pay $125,000 as some kind of part payment or "stop gap" arrangement until such time that the brothers were able to sort things out as to the balance of any sum to reflect any additional interest by John in the property beyond the amount he personally contributed. It is not implausible that there could have been some sort of stop gap arrangement put in place (for example, to placate John and stop him pressing for sale at that stage, when that would presumably have required discharge or valuation of the mortgage which was collateral security for the borrowings in respect of the Northmead Property). However, what is implausible is that, if this was the case, John then did nothing to "sort things out" for many years. 10. In contrast, it is not implausible that no steps were taken to remove John's name from the title to the property – since this would presumably have required the mortgagee's consent (and the family members seem hardly to have been concerned about formal documentation of arrangements in that regard). 11. Peter's version makes more sense logically, i.e., that this was a means of buying John out of the Maroubra Property to recompense John for his cash contribution (and without the parties seemingly referring to the contribution by Nick). (Indeed, though I do not place weight on this, it might be said to be consistent with John's behaviour in relation to the family business itself – i.e., that he would simply be prepared to walk away from it altogether.) 12. The fact that John took no steps whatsoever to press for a resolution of the claimed part payment still to be made (or, indeed, even agreed) is in my view a telling indication that this was not the arrangement. The fact that John's signature was later required on mortgage documents or the like is consistent with him simply remaining on the title in a legal sense and recognising that he had no more than bare legal title at that point. John certainly did not consider himself obliged to join in the personal guarantees sought by AMP Bank in 2019, though I note that John did provide a persona guarantee in 2011. 13. Accordingly, I find that on the balance of probabilities, Peter's version of the conversation is to be preferred and hence that the orders for sale should largely be as the defendants suggest; that is, that the property be conveyed to Peter subject to the existing encumbrance for no consideration. As to the costs of the s 66G application, I accept that those costs should be paid by John as he has substantially failed in what was sought but I consider that the costs of the trustees for sale (if any) should be jointly borne by Peter and John (since they are necessitated by the fact of the joint ownership of the title and not the application per se), on the assumption that those costs would be limited to matters such as preparation of the transfer and obtaining any necessary consent from the mortgagee. 14. Further, as to the claim for an occupation fee or mesne profits (which does not appear to have been pressed), had it been maintained it would have failed for the following reasons. 15. The overarching principle of co-ownership is that each co-owner has unity of possession and is entitled to occupation of the whole land (Nullagine Investments Pty Ltd v Western Australia Club Inc (1993) 177 CLR 635; [1993] HCA 45). On this basis, a co-owner who exercises its right to use and occupy the land cannot be held liable to pay an occupation fee to a non-occupying co-owner merely because the non-occupying co-owner has declined to do so itself (Forgeard v Shanahan at 221-223 per Mahoney JA). 16. The relevant exception is where there has been an ouster of the non-occupying co-owner from the premises by the occupying co-owner (Forgeard v Shanahan at 223). This requires the non-occupying co-owner to have been wrongfully excluded from exercising its own right of occupation. In other words, there must be conduct sufficient to infer a denial of the non-occupying owner's title (Luke v Luke (1936) SR (NSW) 310; affirmed in Biviano v Natoli (1998) 43 NSWLR 695 at 701 per Beazley JA (as Her Excellency then was) (Biviano v Natoli)). 17. Thus, ouster may either be "actual", in the sense that a co-owner is physically excluded from the property (e.g., by violence, threats or denial of access (see Ryan v Dries (2002) 10 BPR 19,497; [2002] NSWCA 3)), or "constructive", as in the express denial of the co-owner's interest in the property (see, for example, Biviano v Natoli at 703). 18. Further, where there is an actual agreement that an occupying co-owner will pay an occupation fee or rent, clearly the general principle is overridden, and the occupying co-owner has incurred a personal liability (Leigh v Dickeson (1884) 15 QBD 60). 19. The evidence does not support a claim for an occupation fees or mesne profits on any of the bases considered above as there has been no ouster, whether actual or constructive; and no agreement for any such liability. Conclusion 1. For the above reasons, I make the following orders: 1. Dismiss the plaintiff's claims for the winding up of the first defendant with costs. 2. Order pursuant to s 66G of the Conveyancing Act 1919 (NSW) that Brian Raymond Silvia and Geoffrey Peter Granger be appointed as trustees for the sale of the property referred to in these reasons as the Maroubra Property, such transfer to be to the third defendant for no consideration but subject to the existing encumbrances. 3. Order the plaintiff to pay the third defendant's costs of the application pursuant to s 66G of the Conveyancing Act, 1919 (NSW) other than the costs (if any) of the trustees for sale appointed pursuant to order 2 (with a view to those costs being borne jointly by the plaintiff and the third defendant). ********** Amendments 05 April 2022 - Addition of counsel on coversheet 11 April 2022 - [211] - (non abandoned) amended to (now abandoned) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2022