McMillan v Coolah Home Base Pty Ltd (No 4) [2022] NSWSC 584

Supreme Court New South Wales

Medium Neutral Citation: McMillan v Coolah Home Base Pty Ltd (No 4) [2022] NSWSC 584 Hearing dates: 30, 31 August; 1, 2, 3, 8, 9, 10, 13, 14, 15, 16, September; 9, 10 November 2021 Date of orders: 13 May 2022 Decision date: 13 May 2022 Jurisdiction: Equity Before: Parker J Decision: See [656]-[664] Catchwords: REAL PROPERTY – caravan park with long-term cabin sites subject to company title – claim by purchasers of shares to equitable interests in cabin sites as well – whether purchase contracts included interests in land – specific performance – resulting trust – proprietary estoppel CORPORATIONS – oppression – company owning caravan park with long-term cabin sites subject to company title – ownership company's finances and operations managed by separate company controlled by directors – ownership company placed in administration by directors following contested application by shareholders for access to company documents – land sold to another company controlled by directors following adoption of deed of company arrangement proposed by directors – whether oppressive conduct by directors – relief CONSUMER PROTECTION – misleading or deceptive conduct – unconscionable conduct – undue harassment or coercion – conduct "in trade or commerce" – contravention – loss and damage – purchase of company title shares in caravan park with long-term cabin sites – disappointment and distress CORPORATIONS – voluntary administration – caravan park with long-term cabin sites subject to company title – claim by shareholders against administrators for compensation for loss arising out of sale of land pursuant to deed of company arrangement – whether administrators owed common law duty of care to shareholders – whether administrators negligent in discharge of their duties – causation – Insolvency Practice Schedule s 90-15 – whether unconscionable conduct by administrators – whether administrators "involved in" oppressive conduct by directors Legislation Cited: Australian Consumer Law, ss 18, 21, 50 Civil and Administrative Tribunal Act 2013, Sch 4, Cl 5(3) Conveyancing Act 1919, s 66G Corporations Act 2001 (Cth), ss 9, 179, 180, 181, 182, 183, 232, 233, 236, 237, 238, 239, 240, 241, 242, 247A, 293, 437A, 437B, 438A, 438D, 439C, 440D, 442C, 444E, 445D, 1314, 1324 Insolvency Practice Rules (Corporations) 2016 (Cth), rr 75-140, 75-225 Insolvency Practice Schedule (Corporations), s 90-15 Limitation Act 1969, s 15 Residential (Land Lease) Communities Act 2013 Retirement Villages Act 1999 Uniform Civil Procedure Rules 2005, Pt 54 Cases Cited: Australian Securities and Investment Commission v Kobelt (2019) 267 CLR 1 Baltic Shipping Co v Dillon (1993) 176 CLR 344 Cadwallader v Bajco Pty Ltd [2002] NSWCA 328 Campbell v BackOffice Investments Pty Ltd [2008] NSWCA 95 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Correa v Whittingham (2013) 278 FLR 310 Eastlake v Eastlake [2015] NSWSC 1772 Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [2001] NSWCA 97 Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1 Jarvis v Swan Tours Ltd [1973] 1 All ER 71 John Alexander's Clubs Pty Ltd v White City Tennis Club (2010) 241 CLR 1 Little v Law Institute of Victoria [1990] VR 257 LPD Holdings (Aust) Pty Ltd v Phillips (2013) 281 FLR 227 Macks v Viscariello (2017) 130 SASR 1 McMillan v Coolah Home Base [2020] NSWSC 935 McMillan v Coolah Home Base (No 2) [2020] NSWSC 1243 McMillan v Coolah Home Base (No 3) [2020] NSWSC 1325 McMillan v Coolah Tourist Park Pty Ltd [2021] NSWCATAP 73 Metropolitan Gas Co v City of Melbourne (1924) 35 CLR 189 National Australia Bank Ltd v Clowes [2013] NSWCA 179 Ngurli Ltd v McCann (1953) 90 CLR 425 New South Wales v Fahy (2007) 232 CLR 486 NSW Lotteries Corporation Pty Ltd v Kuzmanovski (2011) 195 FCR 234 Re Dernacourt Investments Pty Ltd (1990 20 NSWLR 588 Re Smith [2006] NSWSC 780 Sullivan v Moody (2001) 207 CLR 562 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: Austin, R P and Ramsay I M, Ford, Austin and Ramsay's Principles of Corporations Law (17th ed, 2018, LexisNexis Butterworths Heydon, J D, Leeming, M J and Turner, P G, Meagher Gummow & Lehane's Equity: Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths) Category: Principal judgment Parties: Geoffrey Ian McMillan (First Plaintiff) David Arthur Darch (Second Plaintiff) Helen Dawn Waugh (Third Plaintiff) Margaret Joy Vale (Fourth Plaintiff) Jill Cook (Fifth Plaintiff) Lee Marilyn Tait (Sixth Plaintiff) Jennifer Sue Axtell (Seventh Plaintiff) Sietske Elisabeth Brown (Eighth Plaintiff) James Terence James (Ninth Plaintiff) Neville John Kelly (Tenth Plaintiff) Susan Anne Kelly (Eleventh Plaintiff) Christine Margaret McMillan (Twelfth Plaintiff) Janne Marnie Robertson (Thirteenth Plaintiff) John Daniel Sheahan (Fourteenth Plaintiff) Richard Jim Squire (Fifteenth Plaintiff) Susan Janet Squire (Sixteenth Plaintiff) Leslie Townsend (Seventeenth Plaintiff) Allana Mary Townsend (Eighteenth Plaintiff)