Tzavaras v Tzavaras & Sons Pty Ltd [2023] NSWCA 168

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tzavaras v Tzavaras & Sons Pty Ltd [2023] NSWCA 168 Hearing dates: 14 February 2023 Decision date: 25 July 2023 Before: Gleeson JA; Adamson JA; Griffiths AJA Decision: (1) Refuse leave to include proposed grounds 3A and 3B. (2) Appeal allowed in part, only in respect of part of ground 1. (3) That pursuant to s 233(1)(c) of the Corporations Act 2001 (Cth), the first defendant shall not allow or permit the beneficiaries of the Tzavaras Family Trust to use or occupy the trust property for commercial purposes without paying to the Company the commercial value of the use or occupation of such property. (4) The appeal is otherwise dismissed. (5) In the absence of agreement as to final orders as to costs of the appeal and in the Court below, direct each party, within five weeks hereof to file and serve submissions not exceeding three pages in length in support of the final orders proposed by that party, with the intention that final orders will be made on the papers and without a further oral hearing. Catchwords: APPEALS – Appeal from decision of Supreme Court regarding winding up of family company – Where no error of kind in House v The King established – Where primary judge determined other relief suitable CORPORATIONS – Oppressive conduct – Where appellant severed ties with company – Where appellant nonetheless continued to be director of company – Whether appellant had been excluded from company management, business and affairs in a manner that was oppressive CORPORATIONS – Oppressive conduct – Whether Court should order buy out of appellant's company share under s 233(1)(d) of the Corporations Act – Where nature of interest in company and associated family trust unable to be valued CORPORATIONS – Winding up – Whether company should be wound up under ss 232(e) or 461(1)(e) of the Corporations Act where other relief more suitable – Where liquidation of company would have consequences for otherwise solvent trust of which it is trustee Legislation Cited: Conveyancing Act 1919 (NSW) s 66G Corporations Act 2001 (Cth) ss 52, 232, 233, 234, 461 Cases Cited: Asia Pacific Joint Mining Pty Limited v Allways Resources Holdings Pty Limited (2018) 3 Qd R 520; [2018] QCA 48 BAM Property Group Pty Ltd as trustee for BAM Property Trust v Imoda Group Holdings Pty Ltd [2019] FCA 1192 Campbell v Backoffice Investments Pty Ltd [2008] NSWCA 95; (2008) 66 ACSR 359 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 Cassegrain v CTK Engineering Pty Ltd [2005] NSWSC 495; (2005) 54 ACSR 249 CIP Group Pty Ltd v So [2022] FCA 1490; (2022) 164 ACSR 566 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [1998] NSWSC 413; (1998) 28 ACSR 688 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [2001] NSWCA 97; (2001) 37 ACSR 672 Gerard Cassegrain & Co Pty Ltd v Cassegrain [2011] NSWSC 1156 House v The King (1936) 55 CLR 499; [1936] HCA 40 Hunter v Organic and Natural Enterprise Group Pty Ltd & Ors [2012] QSC 383; (2012) 92 ACSR 183 Hunter v Organic and Natural Enterprise Group Pty Ltd [2013] QCA 331 In the matter of Crow Inn Pty Limited (No 2) [2020] NSWSC 1749 In the matter of Ledir Enterprises Pty Ltd [2013] NSWSC 1332; (2013) 96 ACSR 1 In the matter of Tzavaras & Sons Pty Ltd [2022] NSWSC 359 John J Starr (Real Estate) Pty Ltd v Robert R Andrew (Australasia) Pty Ltd (1991) 6 ACSR 63; (1991) 9 ACLC 1372 Joint v Stephens [2008] VSCA 210; (2008) 26 ACLC 1467 LPD Holdings (Aust) Pty Ltd v Phillips [2013] QSC 225; (2013) 281 FLR 227 Martis Cork & Rajan v Benjamin Corporation Pty Ltd [2004] FCAFC 153; (2004) 207 ALR 136 Munstermann v Rayward; Rayward v Munstermann [2017] NSWSC 133 Nassar v Innovative Precasters Group Pty Ltd [2009] NSWSC 342; (2009) 71 ACSR 343 Patterson v Humfrey [2014] WASC 446; (2014) 291 FLR 246 Re A Company; Ex parte Shooter (No 2) [1991] BCLC 267 Re Brenfield Squash Racquets Club Ltd [1996] 2 BCLC 184 Re Enterprise Gold Mines NL (1991) 9 ACLC 168 Re Five Minute Car Wash Service Ltd [1966] 1 WLR 745 Re Quest Exploration Pty Limited (1992) 6 ACSR 659 United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWCA 910; (2003) 47 ACSR 514 Vigliaroni & Ors v CPS Investment Holdings Pty Ltd [2009] VSC 428; (2009) 74 ACSR 282 Wayde v NSW Rugby League Limited (1985) 180 CLR 459; [1985] HCA 68 Texts Cited: Hardingham and Baxt, Discretionary Trusts (2nd ed, 1984, Butterworths) Category: Principal judgment Parties: John Tzavaras (Appellant) Tzavaras & Sons Pty Ltd (First Respondent) William Tzavaras (Second Respondent) Peter Tzavaras (Third Respondent) Representation: Counsel: CRC Newlinds SC / J Baird (Appellant) JC Kelly SC / L Katsinas (Respondents)