In the matter of H&C Investment Holdings Pty Ltd

These proceedings arise out of the affairs of the third defendant, H&C Investment Holdings Pty Ltd (the Company), which carried on a property development business as trustee for the H&C Unit Trust (the Trust).

The first plaintiff, Mr Steven Huang (also known by the Chinese name Huansheng Huang), the second plaintiff Ms Chun Huang, and the fifth plaintiff Mr Qiao Sheng Huang, are siblings. The parties refer to them as Steven, CH, and QSH, respectively. I shall adopt the same conventions. No disrespect is intended. Jiamian (also written as Jia Mian) Huang is the daughter of QSH. She is not a party to these proceedings. The parties refer to her by her first name, Jiamian, and I shall adopt the same convention. Again, no disrespect is intended.

The third plaintiff – S&C Investment Nominees Pty Ltd – is a company owned by QSH, CH, and Jiamian Huang.

The fourth plaintiff – Huafa Development Pty Ltd – is a company owned by Steven and his daughter, Joanne Huang.

The first defendant, Mr Hosea Chan (also known by the Chinese name Shing Ho Chan), is the cousin of Steven, CH, and QSH. The parties refer to him as Hosea. Again, I shall adopt the same convention, without intending any disrespect.

The second defendant – Chan & Hui Investment Nominees Pty Ltd – is a company owned by Hosea and his cousin Mr Chun On Hui, who was belatedly joined to these proceedings as the fourth defendant on 7 June 2024 and who filed a submitting appearance at that time.

Thus, the individual plaintiffs and the first, second and fourth defendants belong to the same extended family group. The first, second and fifth plaintiffs are part of the Huang “side” of the family, and the first and second defendants are part of the Chan “side” of the family.

The plaintiffs and the first, second and fourth defendants were shareholders in the Company at various times relevant to these proceedings. At the time of the commencement of the proceedings, and at the time of the final hearing, the shareholders of the Company were S&C Investment Nominees Pty Ltd (as to 35 per cent), Huafa Development Pty Ltd (as to 15 per cent), and Chan & Hui Investment Nominees Pty Ltd (as to 50 per cent).

At all times relevant to the proceedings, the unit holders in the Trust were Steven, QSH, CH, Hosea and Chun On Hui.

The Company’s only business was the property development business carried on in its capacity as trustee of the Trust. The directors of the Company are Steven, QSH, CH, Hosea and Chun On Hui. Each of Steven, QSH, CH and Hosea were appointed as directors when the Company was incorporated in November 2010. QSH, CH and Hosea have remained directors since that time. Steven ceased to be a director in February 2014, but was re-appointed as a director in July 2016. Jiamian was appointed as a director during that period. Chun On Hui was appointed as a director in February 2012 and has remained a director since that time.

The Company was managed with a degree of informality. No board meetings were convened prior to 2018.

The Company’s activities were funded partly by financial contributions made by or on behalf of unit holders from time to time, and partly by bank loans.

It is common ground that it was agreed towards the end of 2010 between Steven (on his own behalf, and on behalf of QSH and CH) and Hosea (on his own behalf, and on behalf of Chun On Hui) that the parties would share in the profits of any property development project undertaken by the Company in accordance with their respective financial contributions to that project.

The proceedings were commenced by summons filed on 18 May 2022. In their statement of claim filed on 29 June 2022, the plaintiffs’ claims for relief include an order for an account of the income and expenses of the Company as trustee of the Trust and the contributions made by or on behalf of unit holders, and an order for payment to the plaintiffs of such amount as is found due to them on completion of the account, together with interest.

The unit holders to whom the Company is obliged to account as trustee are also the directors who were responsible for managing the Company and the conduct of its business as trustee of the Trust. During their final preparation for hearing, and during the course of the hearing, they reviewed the Company’s financial records and resolved almost all of their disputes concerning their respective financial contributions to the Company, and the income and expenses of the Company. The plaintiffs no longer seek an order for the taking of accounts that would require a further accounting process to be undertaken.

The following matters are now common ground between the plaintiffs and the first and second defendants and, as I have already mentioned, the fourth defendant has filed a submitting appearance:

The plaintiffs contend that, in addition to the contributions totalling $1,932,500 referred to above, CH made a contribution of $30,000 in January 2011 and Steven made a contribution of $76,000 in October 2013. The first and second defendants dispute these additional claimed contributions. The parties ask the Court to make findings resolving that dispute.

The parties agree that the Court’s findings about those two claimed contributions will determine the total amount of the financial contributions made by or on behalf of the plaintiffs (collectively). Subject to the plaintiffs’ further claims to which I refer immediately below, that total contribution, together with the agreed amount of the total contribution made to the Company by or on behalf of the first, second and fourth defendants (collectively), and after allowing for the interim distributions referred to above, will determine the proportions in which the funds presently standing to the credit of the Company are to be distributed by the Company (as trustee) to the plaintiffs (collectively) and to the first, second and forth defendants (collectively) by way of final distribution, in accordance with the parties’ agreement referred to at [16(2)] above. The parties agree that, as unit holders in the Trust, Steven, QSH and CH are entitled to have the Company account for those additional claimed contributions, if they are found to have been made, by factoring them into the calculation of the amounts of the final distribution to be paid to the plaintiffs (collectively) and to the first, second and forth defendants (collectively).

The plaintiffs make further claims in respect of wages and superannuation paid to Hosea out of Company funds during the period from 2012 to 2018, in respect of superannuation payments made for the benefit of other members of the Chan and Huang families during the period from 2015 to 2018, and in respect of a fee of $8,745 paid to Hosea out of Company funds in May 2016 upon the sale of one unit in one of the Company’s property developments.

The plaintiffs contend that Hosea was not authorised by the Company to make the wages and superannuation payments to himself or for his benefit, or for the benefit of other members of the Chan and Huang families who were not employed by the Company. In closing submissions, the plaintiffs sought an order requiring Hosea to account for the wages and superannuation on three alternative bases. As discussed later in these reasons, only one of those bases was pleaded – a claim for an order under s 233 of the Corporations Act 2001 (Cth) requiring Hosea to provide an account of his dealings in respect of the assets and affairs of the Company, and to pay to the Company any amount found to be owing in respect of the monies paid by the Company for wages and superannuation, by way of relief for the allegedly oppressive conduct of the affairs of the Company. Any amount for which Hosea is required to account to the Company pursuant to s 233 will affect the calculation of the final distribution by the Company to unit holders.

The first and second defendants deny the alleged oppression, and object to the plaintiffs being permitted to press their claims in respect of wages and superannuation on any basis that has not been pleaded. Further or alternatively, the first and second defendants contend that the plaintiffs’ unpleaded claims relating to wages and superannuation are time barred.

Insofar as the oppression claim is concerned, the first and second defendants contend that Hosea was authorised to make the payments for his wages and superannuation, and deny that the affairs of the Company have been conducted in a manner that is oppressive within the meaning of s 232 of the Corporations Act.

The plaintiffs also contend that the calculation of the final distribution to be paid by the Company should take into account the allegedly unauthorised payment of the $8,745 fee to Hosea in May 2016. That contention was not pleaded. The first and second defendants did not take any pleading point about it to the extent that it forms part of the account that the plaintiffs contend Hosea should be ordered to make to the Company under s 233 of the Corporations Act as relief for the allegedly oppressive conduct of the Company’s affairs. The first and second defendants objected to the plaintiffs pursuing a claim for an order requiring Hosea to account for that fee on any other unpleaded basis.

Prior to and during the course of the final hearing, the plaintiffs abandoned all claims for relief other than the pleaded and unpleaded claims for Hosea to account to the Company or to the plaintiffs for the allegedly unauthorised payments of wages and superannuation and for the $8,745 fee, and the claim for the Company to account to unit holders by way of final distribution after allowing for the additional claimed contributions of $30,000 and $76,000.

The parties’ legal representatives have helpfully prepared a schedule which sets out the consequences for the calculation of the final distribution to the plaintiffs (collectively) and to the first, second and fourth defendants (collectively) of each potential combination of findings that the Court may make in relation to the disputed contributions of $30,000 and $76,000, and in relation to the plaintiffs’ claims concerning wages, superannuation and the $8,745 fee. That schedule does not take into account the question of the interest that the plaintiffs claim on any amount in respect of which their claims are upheld. The parties have indicated to the Court they will endeavour to agree on any interest calculation that may be required once the Court’s determination of the plaintiffs’ claims is known.

Steven was the principal witness for the plaintiffs. The plaintiffs read affidavits affirmed by Steven on 17 May 2022, 2 November 2022, 17 February 2023 and 10 November 2023. He was cross-examined extensively and gave his evidence through an interpreter.

The plaintiffs did not adduce any evidence from QSH or CH. The plaintiffs did serve affidavits affirmed by each of QSH and CH prior to the hearing. The defendants notified the plaintiffs that QSH and CH would be required for cross-examination. The plaintiffs’ application for QSH and CH to give evidence by audio-visual link from the People’s Republic of China was dismissed prior to the commencement of the hearing. QSH and CH did not make arrangements to travel to Australia to be available for cross-examination. An application made by the plaintiffs during the hearing for an order under r 35.2 of the Uniform Civil Procedure Rules 2005 (NSW) permitting the plaintiffs to tender or read the affidavits of QSH and CH on the basis that they were “not available” to give evidence within the meaning of s 63(1) of the Evidence Act 1995 (NSW), was also dismissed. For reasons published at the time, I held that the plaintiffs had not established that all reasonable steps had been taken to secure the attendance of QSH and CH at the hearing. [1]

The defendants submit that the plaintiffs’ failure to adduce evidence from QSH and CH gives rise to an inference that the evidence they could have given about certain matters would not have assisted the plaintiffs. [2] The plaintiffs dispute that any such inference arises in the circumstances described immediately above.

A party’s unexplained failure to call a witness may, in appropriate circumstances, give rise to an inference that the evidence which the witness could have given would not have assisted that party. [3] As the plaintiffs submitted, the significance to be attributed to the fact that a witness did not give evidence will depend on whether it is to be inferred that the party expected to call the witness feared to do so. [4] In the present case, the witnesses not called – QSH and CH – are two of the plaintiffs. Their failure to give evidence is attributable to their failure to take all reasonable steps to ensure that they were able to travel from China to attend the hearing in Australia, in circumstances where they had been notified that they were required for cross-examination. [5] I do not consider that the circumstances of this case support an inference that the plaintiffs (collectively) feared to call two of the plaintiffs – QSH and CH – to give evidence, and to expose them to cross-examination. It is just as likely that their failure to take reasonable steps to attend the hearing for cross-examination is attributable to a lack of enthusiasm for travelling to Australia for the purpose of proceedings in which very little remains in dispute between the parties in monetary terms.

For those reasons, I do not consider that the failure of QSH and CH to give evidence gives rise to an inference that the evidence which they could have given would not have assisted the plaintiffs’ case. However, their failure to give evidence does mean that certain aspects of Hosea’s evidence are not contradicted by any evidence of any witness called by the plaintiffs.

Hosea was the principal witness for the defendants. The defendants read affidavits affirmed by Hosea on 24 January 2023, 26 September 2023 and 2 November 2023. Hosea was cross-examined extensively. He gave his evidence in the English language.

In addition to the four affidavits of Steven referred to at [26] above, the plaintiffs read affidavits of Mr Xiang Li (the plaintiffs’ solicitor), [6] Mr Doug Chen (an accountant), [7] Mr Ziqi Huang (the son of CH), [8] Ms Xiaochun Chen (the wife of QSH) [9] and Ms Shuling Huang (the sister of CH). [10] None of those witnesses were cross-examined.

In addition to the affidavits of Hosea referred to at [31] above, the defendants read affidavits of Ms Sim Chun Hui (Hosea’s mother), [11] Mr Cheong Wai Chan (Hosea’s father), [12] Mr Ganquan Chen (a relative of both Steven and Hosea), [13] and Mr Albert Yau (a solicitor who formerly acted for Hosea). [14] Sim Chun Hui was cross-examined briefly. None of the other witnesses were cross-examined.

Much of the evidence of those witnesses referred to at [32] and [33] above became irrelevant during the course of the hearing due to the narrowing of the issues in dispute between the parties. To the extent that the evidence of those witnesses remains relevant, I have taken it into account in summarising the evidence and making the findings of fact set out in Section II below.

For the reasons explained below, I have determined that the plaintiffs have failed to establish that CH made a contribution of $30,000, and that Steven made a contribution of $76,000, in addition to the plaintiffs’ contributions totalling $1,932,500. I have further determined that the payment of wages and superannuation to Hosea, the payment of superannuation for the benefit of other members of the Huang and Chan sides of the family, and the payment of the $8,745 fee, were not oppressive within the meaning of s 232 of the Corporations Act. The plaintiffs’ claim for an order under s 233 of the Corporations Act requiring Hosea to account to the Company for those moneys therefore fails. The other claims that the plaintiffs sought to prosecute for an order requiring Hosea to account for those payments to the Company, or directly to the plaintiffs, are outside the scope of the plaintiffs’ pleaded case, and are not claims that the plaintiffs would have standing to bring in any event.

I have considered all of the parties’ written and oral submissions in reaching those conclusions, irrespective of whether those submissions are expressly referred to in these reasons.

In about early to mid-2010, Steven, QSH, CH and Hosea agreed to work together to purchase and develop properties in Australia. According to Hosea’s evidence, his parents persuaded him to be part of this business with Steven, QSH and CH on the basis that they (his parents) would fund his investment in it. At the time, Hosea was working full-time as a pastry chef, and had no property development experience.

In about June 2010, Steven and Hosea agreed to purchase a property at 14 Mark Street, Lidcombe, for the family’s property development business. According to Steven’s evidence, he identified this property as a good opportunity for investment and development. Steven and Hosea agreed that the title to the property would be held in Hosea’s name. Settlement occurred on 28 July 2010, and the transfer to Hosea was registered on 30 July 2010. It is common ground that both the Huang and Chan sides of the family contributed the funds required to purchase the property, and that Steven paid $17,120 to renovate the property after settlement so that it could be rented out to a tenant pending development. The property was rented from about January or February 2011 until about March 2012, when it was sold to raise funds required by the Company to purchase a property at 18 Mary Street, Lidcombe.

In November 2010, Steven and Hosea agreed to purchase another property at 16 Mary Street, Lidcombe, for future development.

The Company was incorporated on 12 November 2010 for the purpose of purchasing 16 Mary Street, and for the ongoing conduct of the property development business.

On incorporation, the shareholders were Hosea, Steven, QSH and CH. Between them, Steven, QSH and CH held 75 per cent of the shares, and Hosea held 25 per cent. Steven gave evidence that he requested that the Huang family’s shareholding be reduced because the Huang side of the family thought that they would have to contribute to the Company in proportion to their shareholding and they did not want to have to make 75 per cent of all financial contributions. On 16 November 2010, Hosea signed an ASIC form changing the shareholding so that he held 40 per cent of the shares, Steven held 30 per cent, QSH held 20 per cent and CH held 10 per cent. Hosea attributes these changes to a different request made by QSH that was conveyed to Hosea through his mother.

Nothing turns on the differences between the evidence of Steven and the evidence of Hosea about the reasons for the changes made to the shareholdings in November 2010.

Chun On Hui became a shareholder in the Company in February 2012. The shareholdings of the Company were adjusted so that Hosea held 30 per cent, Chun On Hui held 20 per cent, Steven held 10 per cent, and each of QSH and CH held 20 per cent of the shares.

In February 2014, Hosea and Chun On Hui transferred their 50 per cent shareholding in the Company to the second defendant, Chan & Hui Investment Nominees Pty Ltd. As I have mentioned earlier in these reasons, that company is owned by Hosea and Chun On Hui.

In June 2016, there was a reconfiguration of the Huang family’s shareholdings in the Company, following which Steven owned 15 per cent of the shares and the third plaintiff – S&C Investment Nominees Pty Ltd – owned 35 per cent of the shares. As I have mentioned earlier in these reasons, S&C Investment Nominees Pty Ltd is owned by QSH, CH and Jiamian.

In June 2018, Steven transferred his 15 per cent of shares in the Company to the fourth plaintiff, Huafa Development Pty Ltd. As I have mentioned earlier in these reasons, Huafa Development Pty Ltd is owned by Steven and his daughter, Joanne Huang.

At all relevant times after June 2018, the shareholders of the Company were S&C Investment Nominees Pty Ltd (as to 35 per cent), Huafa Development Pty Ltd (as to 15 per cent), and Chan & Hui Investment Nominees Pty Ltd (as to 50 per cent).

On incorporation, the directors of the Company were Steven, CH, QSH and Hosea.

Chun On Hui was appointed as an additional director of the Company in February 2012, at the same time as becoming a shareholder in the Company.

In February 2014, Steven ceased to be a director and Jiamian was appointed as a director of the Company. It will be necessary to say something further about Steven’s resignation later in these reasons. For present purposes, it suffices to record that both Steven and Hosea gave evidence that Jiamian represented the interests of the Huang family during the period from February 2014 until July 2016, when she ceased to be a director and Steven was re-appointed as a director of the Company.

At all relevant times from July 2016, the directors of the Company were Hosea, Steven, QSH, CH and Chun On Hui.

Hosea has been the secretary of the Company at all times since its incorporation.

The trust deed establishing the Trust was executed on 15 November 2010. The initial unit holdings in the Trust were Steven (10 units), CH (20 units), QSH (20 units), Hosea (30 units), and Chun On Hui (20 units). There is no evidence that the unit holdings changed at any time thereafter.

Clause 4 of the trust deed provides that the trustee (being the Company) holds the Trust Fund – defined as including all moneys paid by unit holders for units, any further cash accepted by the trustee under the trust deed, all investments representing such moneys and cash, the proceeds of sale of investments, and any net income – on trust for the unit holders on the terms of the deed.

Clause 7.1 of the trust deed requires the trustee to manage the Trust Fund and any business carried on by the trustee pursuant to the trust deed, including:

Clause 10 of the trust deed provides for the distribution of the net income of the trust to unit holders in each financial year, including by making interim distributions.

As I have mentioned earlier in these reasons, it was agreed between Steven (on his own behalf, and on behalf of QSH and CH) and Hosea (on his own behalf, and on behalf of Chun On Hui) towards the end of 2010 that the parties would share in the profits of any property development project undertaken by the Company in accordance with their respective financial contributions to that project, irrespective of their respective unit holdings in the Trust and shareholdings in the Company.

It is common ground that the Company’s property development business was conducted in its capacity as trustee of the Trust. There is no evidence that the Company carried on any other business.

The voting entitlements associated with the Huang family’s ownership of at least 50 per cent of the shares at all times, together with the Huang family’s majority of directors on the board at all times, enabled the Huang family members and their associated entities through which they held the shares to control the board of directors, to call any general meeting of the Company, and to control any such general meeting (including through the casting vote of the person elected by the directors to chair the general meeting).

The constitution adopted by the Company on incorporation requires the directors to convene a general meeting of the Company upon receipt of a request made by members with at least 5 per cent of the votes that may be cast at the general meeting, in accordance with s 249D of the Corporations Act. [15] Members are entitled to attend a general meeting in person or by proxy. [16] Two members constitute a quorum. [17] Each member has one vote on a show of hands, or one vote per share on a poll. [18] A poll may be demanded by a member or members representing not less than 5 per cent of the voting rights. [19] In the event of an equality of votes on a show of hands or on a poll, the Chairman has a casting vote in addition to his or her deliberative vote. [20] The Chairman is elected by the directors, either to chair meetings for a period of time, or to chair a specific meeting. If the directors have failed to elect a Chairman, or the Chairman elected by the directors is not available or declines to act for a particular meeting, the members at that meeting must elect a person to chair the meeting. [21]

The constitution provides that the Company will have up to seven directors, who are to be appointed and may be removed by the Company in general meeting. [22] The business of the Company is to be managed by the directors. [23] Any director may convene a meeting of the directors. [24] Any two directors constitute a quorum. [25] Any question arising at a meeting of directors is decided by a majority of votes of those directors present. [26] In the event of an equality of votes, the Chairman has a casting vote in addition to his or her deliberative vote. [27] The Chairman is elected by the directors, either to chair meetings for a period of time or to chair a specific meeting. [28]

The constitution provides that the Company may hold a general meeting at two or more venues using any technology that gives members a reasonable opportunity to participate. [29]

The provisions of the constitution concerning the use of technology for directors’ meetings appear, at first glance, to be inconsistent.

Clause 32 of the constitution provides (emphasis added):

Clause 34 of the constitution provides (emphasis added):

Clauses 32 and 34 fall within the section of the constitution entitled “Proceedings of directors”. Reading those clauses in the context of that section, and in the context of the constitution as a whole, it is my opinion that clause 32 is directed to the means by which notice of a directors’ meeting may be given to directors, and clause 34 is directed to the conduct of directors’ meetings using technology that facilitates participation by directors in different locations.

The constitution provides that a director may, with the approval of the other directors, appoint a person to be an alternate director of the Company in his or her place during such period as he or she thinks fit. An alternate director is entitled to the same notice of meetings as the appointor, and may exercise any powers that the appointor may exercise. [30]

In practice, and as I have already mentioned, the Company operated informally, without holding any general meetings or board meetings prior to 2018. It will be necessary to return to that subject later in these reasons.

The Company exchanged contracts to purchase 16 Mary Street on 17 November 2010. The purchase was completed on 24 January 2011 with funds contributed by the Huang and Chan sides of the family, and a bank loan of $520,000, which was secured by mortgage over 14 Mark Street. Steven gave evidence that the Company purchased 16 Mary Street without any mortgage, and that he was not aware of, and did not consent to, any mortgage over 14 Mark Street. However, the contemporaneous documents identified in Hosea’s evidence establish that the $520,000 borrowed against the security of 14 Mark Street was paid to the vendors of 16 Mary Street on settlement.

I infer from the detailed evidence given by Hosea about the funds that were raised for the Company to purchase 16 Mary Street, and from Steven’s lack of understanding that $520,000 of those funds were borrowed against the security of 14 Mark Street, that Hosea undertook the work required to raise the funds to purchase the property and that Steven had little, if any, involvement in that work.

The financial contributions paid by the Huang and Chan sides of the family towards the acquisition of 16 Mary Street, together with their earlier contributions to the purchase of 14 Mark Street, were recorded in monthly reports that Hosea had been preparing since July 2010.

The monthly reports recorded the amount of contributions, the income received by the Company during the relevant month, and the expenses incurred by the Company during that month. The section of the report recording the amount of contributions listed the names of each contributor. Against each person’s name, the report listed the total amount contributed to date, the amount contributed or withdrawn during the reporting month, and the date of those contributions or withdrawals during the reporting month.

Hosea prepared those monthly reports for the whole of the period from July 2010 until August 2018.

As referred to later in these reasons, there is a dispute about when Hosea provided those monthly reports to Steven and other members of the Huang family. I have found that Hosea provided the monthly reports to members of the Huang family at various times from January 2012, and that Steven received a copy of all monthly reports no later than June 2016, he received a further complete copy of the monthly reports in July 2018, and a further copy in late 2018. [31] Steven’s evidence and the submissions made on behalf of the plaintiffs during the hearing made vague assertions that the monthly reports were inaccurate. Save for the alleged omission of a contribution of $30,000 that CH claims to have made in January 2011 and the alleged omission of a contribution of $76,000 that Steven claims to have made in October 2013, the plaintiffs did not adduce any evidence to prove that the contemporaneous monthly reports were inaccurate in any particular respect.

It is common ground that CH contributed $120,000 to the Company on or about 21 January 2011 when the Company was making arrangements to fund the settlement of its purchase of 16 Mary Street.

The plaintiffs contend that CH should be credited with a contribution of $150,000, rather than $120,000, on that date by reason of the following entries in the monthly report for February 2011:

As I have already explained, CH did not give evidence. When asked about it in cross-examination, Steven could not recall anything about the alleged $30,000 contribution by CH. The February 2011 monthly report is the only evidence on which the plaintiffs rely in support of their contention.

It is clear from the face of the February 2011 report that the $30,000 entries dated 1 February 2011 are adjustments to the manner in which contributions previously made by the Huang side of the family are to be allocated between members of that side of the family. Hosea gave evidence to that effect. The February 2011 report provides no support for the plaintiffs’ contention that there was an additional contribution of $30,000 made by CH on 21 January 2011 or in February 2011. There is no evidence that CH made a contribution of $30,000 that has not been accounted for in the parties’ agreed calculations of total contributions referred to at [16] above.

By the end of 2011, the Company was yet to develop any properties. The Company was receiving the rental income from the property that had been purchased in Hosea’s name at 14 Mark Street in July 2010. The Company had not taken any steps to develop that property. Having purchased 16 Mary Street in January 2011, the Company was still attempting to negotiate the purchase of 18 Mary Street so that it could develop those properties together. Both Steven and Hosea gave evidence that there were discussions in late 2011 about selling 14 Mark Street in order to fund the proposed acquisition of 18 Mary Street and the proposed development of 16-18 Mary Street. It is not necessary to resolve the divergence in the evidence about whether it was Steven’s idea or Hosea’s idea to sell 14 Mark Street at that time.

Hosea’s mother, Sim Chun Hui, gave evidence that QSH called her in late February 2012 saying that Steven had not been paying attention to the Company, and asking if Hosea would be able to “step in and take up the manager role”.

Sim Chun Hui deposed that she then telephoned Hosea and they had a conversation to the following effect:

Hosea gave evidence to similar effect. He deposed that he had a telephone conversation with his mother in February 2012 to the following effect:

At that time, Hosea was still working full time at the Lindt & Sprungli Chocolate factory at Mascot.

Sim Chun Hui deposed that, after her conversation with Hosea, she telephoned QSH and they had a conversation to the following effect:

Hosea deposed that, after his conversation with his mother to which I have referred above, QSH called Hosea and they had a conversation to the following effect:

Sim Chun Hui deposed that QSH telephoned her the day after their last conversation, and they had a further conversation to the following effect:

Hosea gave evidence that, after his conversation with QSH referred to above, he resigned from his job at Lindt & Sprungli and began to work for the Company. He recorded in the monthly reports his wages that he paid out of the Company’s funds.

QSH did not give evidence.

In cross-examination, Steven denied that QSH had wanted Hosea to work full-time for the Company, and denied that QSH had agreed that Hosea should be paid net wages of $700 per week. The basis of Steven’s denials is unclear. Steven did not claim to have had any discussions with QSH at the time about the basis on which Hosea was to be expected to continue managing the Company’s books and records, as he had done in the past, in addition to undertaking work required for the Company’s Mary Street development. As discussed later in these reasons, QSH and CH were not playing an active role in the management of the Company and Steven’s capacity to do so was constrained by his limited ability to communicate in English. [32]

Sim Chun Hui’s evidence in cross-examination was consistent with the substance of her affidavit evidence about the conversations referred to above. Ms Hui said that QSH had told her that he would like Hosea to “take over as general manager” because Steven “has never been paying attention to the company”. Ms Hui said that she passed a message on to Hosea, and Hosea got in touch with QSH. Later, QSH called Ms Hui and told her that he had agreed with Hosea on the payment of $700 per week.

Hosea maintained in cross-examination that he had the discussion with QSH referred to above in February 2012. Hosea did not have any discussion with CH or with Steven about working for the Company or being paid wages. Hosea said that he didn’t mention his wages to Steven because the arrangement had been confirmed between Hosea and QSH. As I understood his evidence, Hosea believed that QSH had been speaking on behalf of the Huang side of the family. Hosea also gave evidence that he did not have a good working relationship with Steven at this time. Hosea denied that he didn’t mention his wages to Steven because he had never made any agreement about wages with QSH.

I accept the plaintiffs’ submission that the evidence of Hosea and Sim Chun Hui given in 2023 of the conversations that they say they had with QSH some eleven years earlier must be assessed bearing in mind the well-known fallability of human memory of what was said in a conversation, particularly after significant time has passed, and particularly where litigation has intervened in the meantime. [33] However, Hosea and Sim Chun Hui have each given evidence of the effect of the conversations that they say they recall. Nothing turns on the precise words used in any such conversations. It is the substance of the alleged conversations that is relevant to the plaintiffs’ oppression claim in these proceedings.

I accept the evidence of Hosea and Sim Chun Hui. I find that, in February 2012, QSH and Hosea had a conversation in which they agreed, in substance, that Hosea would work for the Company full-time and would be paid a wage of $700 net per week. It is inherently probable that QSH initiated the conversations described by Sim Chum Hui and Hosea in February 2012. At that time, QSH had reason to be dissatisfied with the Company’s lack of progress in developing any property more than a year after it had been incorporated for the very purpose of carrying on a property development business as trustee of the Trust. It is probable that QSH perceived that something needed to change, and there is no evidence suggesting that he or CH were prepared to become actively involved in the management of the Company. [34] Contrary to the plaintiffs’ submissions, it is probable in those circumstances that QSH approached Hosea to “step up”, despite Hosea’s lack of prior experience in property development or project management. It is not to the point that little had been required by way of project management in the period up to February 2012. That state of affairs reflected the very lack of progress with which QSH was dissatisfied, according to Sim Chun Hui’s evidence. The Company was a small business owned by and for the benefit of members of the same extended family. It is inherently probable that QSH preferred to approach Hosea to manage the Company, rather than to engage an independent, experienced manager. According to Hosea’s evidence the wage of $700 net per week was agreed on the basis that it would compensate Hosea for giving up his existing paid employment, and not by reference to the salary that an experienced manager would be likely to demand. If the Company had engaged an independent, experienced manager in February 2012, this would probably have required increased financial contributions from the Huang and Chan sides of the family long before the Company was in a position to generate any profit from property development. As the plaintiffs submitted, the Company later employed an experienced project manager for the construction of the Mary Street development in order to satisfy the requirements imposed by the Commonwealth Bank when it agreed to finance the construction of that development in about July 2014. [35] Contrary to the plaintiffs’ submissions, this does not render the evidence of Hosea and Sim Chun Hui about the substance of their conversations with QSH in February 2012 any less plausible. Having regard to the informal manner in which the Company was managed as a family-owned enterprise, it is not surprising that QSH and Hosea did not document the agreement that they made about wages. I reject the plaintiffs’ submission that the absence of documentation indicates that no agreement was made. The evidence of Hosea and Sim Chun Hui about their conversations with QSH is consistent with the fact that Hosea did in fact undertake the majority of the work required for the management of the Company from about February 2012, as I have found for the reasons explained at [153] to [171] below. For the reasons there explained, I reject the plaintiffs’ submission that Steven had a significant role in the management of the Company until about May 2013.

I accept Hosea’s evidence that he resigned from his full-time employment with Lindt & Sprungli and commenced working for the Company shortly after this conversation in February 2012. I reject Steven’s assertion that Hosea was fired from Lindt & Sprungli. That assertion lacks credibility because it was not mentioned in any of Steven’s affidavits, and emerged for the first time in cross-examination during a series of argumentative answers in which Steven was claiming that Hosea did not really do any work, or was only doing “email related work”, for the Company. I have rejected those aspects of Steven’s evidence for the reasons explained at [153]-[171] below.

The monthly reports record that the Company commenced paying wages to Hosea in July 2012.

It is necessary to address two remaining elements of the plaintiffs’ submissions.

The plaintiffs submitted that Hosea’s evidence about the alleged agreement lacks credibility because he failed to provide any member of the Huang family with copies of the monthly reports in which he recorded the amounts paid for his wages until May 2015, almost three years after he started paying wages to himself in July 2012. [36] As I understand it, the plaintiffs submit that this gives rise to an inference that Hosea deliberately sought to conceal the wages payments by withholding the monthly reports from the Huang family directors of the Company. I reject that submission. The evidence does not support an inference that Hosea held any such dishonest intention. The monthly reports were documents that Hosea took it upon himself to prepare from July 2010. If Hosea had intended to conceal from the Huang family the wages payments made to himself, it is highly improbable that he would have recorded them in the monthly reports at all.

The plaintiffs submitted that Hosea consistently paid himself an amount equivalent to only $300 per week for wages during the period from July 2012 to June 2014, as evidenced by his own monthly reports. The plaintiffs submit that this fact is inconsistent with Hosea’s claim to have agreed on an amount of $700 per week net with QSH. [37] I reject that submission, and accept Hosea’s evidence that the Company paid him less than the agreed $700 per week during the period up to June 2014 due to cash flow constraints. Hosea’s evidence is consistent with the absence of evidence that the Company had generated any revenue in the period up to June 2014, with the exception of some rental income from 14 Mark Street before that property was sold in early 2012. [38] Hosea also gave evidence that the Company ceased making any wages payments to him after June 2014 due to insufficient cash flow. Again that is consistent with the evidence of the status of the Company’s projects at that time. [39] After cash flow improved, Hosea paid lump sums to himself in 2017 and 2018 for his accrued but unpaid wages since June 2014. Hosea made a contemporaneous record of those lump sum payments in his monthly reports. Hosea has calculated that the total amount of wages and superannuation paid to him is $262,290.94, and that he is owed a further amount of $61,353.91. Hosea does not pursue a claim for unpaid wages and superannuation in these proceedings. The plaintiffs submit that Hosea has made a minor arithmetical error in calculating the total wages paid, as recorded in the monthly reports, as $262,290.94. The plaintiffs submit that the correct figure is $265,890.94. [40] It is common ground that the Company paid an additional sum totalling $34,518 to the Australian Taxation Office, being tax withheld from Hosea’s wages.

I did not understand the plaintiffs to maintain in closing submissions the contention that was repeatedly put to Hosea in cross-examination that he was in fact paid an amount of $45,000 per annum as recorded in the Company’s tax returns and financial statements. If I have misunderstood the plaintiffs’ submissions in this respect, then I reject that contention, which is inconsistent with the plaintiffs’ submissions referred to immediately above. As counsel for the first and second defendants submitted, the financial statements and tax returns are prepared on an accruals basis, whereas the monthly reports are a contemporaneous record of the amounts in fact paid to Hosea.

After completing the purchase of 16 Mary Street, the Company embarked on a campaign to acquire the neighbouring property at 18 Mary Street with a view to developing the two parcels of land together. It is common ground that Hosea and Steven were both involved in the Company’s efforts to acquire 18 Mary Street during 2011, including instructing an agent to act on behalf of the Company and subsequently negotiating directly with the owner of 18 Mary Street.

As referred to at [79] above, there were discussions in late 2011 about selling the 14 Mark Street property to fund the proposed acquisition of 18 Mary Street and to allow the Company to focus on the proposed development of 16-18 Mary Street. Contracts for the sale of 14 Mark Street were exchanged in about early 2012, and the sale was completed in about March 2012. The Company had not developed the 14 Mark Street property since purchasing it in July 2010.

The Company ultimately exchanged contracts to purchase 18 Mary Street in November 2012. The Company then commenced planning work for a development of 23 residential units at 16-18 Mary Street.

Steven gave evidence that he attended five or six meetings with architects and with Auburn City Council in relation to the Mary Street development during the development planning stage from November 2012 until about 2014. In cross-examination, Steven accepted that those meetings were conducted in English. Steven had given evidence earlier in cross-examination that he speaks only a little bit of English, and he can read and write a little bit of English only at “very basic level”. Steven accepted that Hosea had also attended the meetings with the architects and the council. Steven said that, despite his limited ability to speak and read English, he had been able to participate in these meetings because, when the architect was discussing floor plans, “we could communicate with just pointing at specific areas. Then I could understand that, even though my English was not so good.”

I do not accept that Steven was able to meaningfully participate in meetings with the council and the architect concerning the Mary Street development by pointing at areas on plans. I find that Hosea took the lead role on behalf of the Company in those meetings to progress the plans for the Mary Street development. I reject Steven’s evidence given later in his cross-examination that it was Steven who was “in charge” of dealings with the architect, that Hosea’s role was limited to “email related work”, and that it was “nonsense” for Hosea to suggest that he did a lot of work. At that point in the cross-examination, I formed the impression that Steven was changing his earlier evidence referred to immediately above in order to overstate his own role, and to downplay Hosea’s role, because he thought that would support the plaintiffs’ claim in these proceedings in relation to the wages and superannuation paid to Hosea.

In May 2013, the Company completed its purchase of 18 Mary Street with funds contributed by all unit holders. Planning work for the Mary Street development was still in progress.

Commencing in November 2013, the Company entered into contracts to purchase three properties at 22, 24 and 26 Ann Street. The Huang and Chan sides of the family each made a financial contribution of $220,000. The contracts were exchanged on 7 November 2013 (22 Ann Street), 5 December 2013 (24 Ann Street) and 2 April 2014 (26 Ann Street).

There was no challenge to Hosea’s evidence that, in mid-late 2014, he negotiated the loan from the Commonwealth Bank that funded the Company’s purchase of 24 Ann Street. The loan was approved in November 2014, and the Company then completed its purchase of 24 Ann Street in December 2014.

The purchases of 22 Ann Street and 26 Ann Street were not completed until May 2016.

Steven gave evidence that Hosea asked him to contribute an additional $76,000 in October 2013 to enable the Company to pay its expenses and commence work on the Ann Street project. Steven deposed that he made that additional contribution by drawing a cheque linked to his home loan account and providing the cheque to Hosea. Hosea gave evidence that neither he nor the Company received the sum of $76,000 from Steven, by cheque or otherwise, on or about 22 October 2013.

The plaintiffs tendered a Westpac statement addressed to Steven in respect of a linked investment loan account and deposit account for the period from 14 October to 14 November 2013. The statement records that the sum of $76,000 was drawn down under the investment loan on 22 October 2013. The statement does not record that any cheque in the amount of $76,000 was drawn on the investment loan account or on the deposit account.

In cross-examination, Steven acknowledged that the Westpac statement does not record any cheque being presented against his investment loan account or his deposit account in the sum of $76,000. Steven nevertheless insisted that he had given Hosea a cheque for $76,000. Steven said he had not kept the cheque book containing the stub for the $76,000 cheque that he says he drew, and he had been unable to obtain any information from his bank other than the statement referred to immediately above. Steven said that he asked the bank to provide information, but “the bank said it’s a very long time ago, the bank could only produce the statement I just showed you”. Steven denied that it was possible that he was mistaken about giving a cheque for $76,000 to Hosea. It was then put to Steven that he was unable to point to anything showing that a cheque for $76,000 had been deposited into the Company’s bank account, or into Hosea’s bank account. Steven answered: “I don’t have evidence for that, however, I did receive a call from my bank. The bank said they already gave cash – given cash”. That answer is irreconcilable with Steven’s earlier answer that the bank had been unable to provide any information other than the statement, as the transaction had occurred such a long time ago. I accept the submission made by the first and second defendants that Steven’s answer about cash was a lie that he made up in the witness box in order to try to support his claim in relation to the $76,000, when it was put to him squarely that his bank account statements do not record any cheque being drawn on his account, and that there is no evidence of any such cheque having been paid into any bank account of the Company or Hosea.

For those reasons, the evidence does not establish that Steven made a $76,000 contribution to the Company in October 2013.

Sim Chun Hui gave evidence that she had a conversation with Steven in about early 2014, in which he told her that he was having “some legal trouble” with his wife. Steven asked Sim Chun Hui to tell Hosea that he (Steven) needed to resign from the Company, and that he might also need to transfer his shares to Jiamian. Sim Chun Hui then told Hosea that she had visited Steven, and that Steven had told her that “he’s in legal trouble and will need to resign from the company” and that “he might transfer his shares to your wife too”. These aspects of Sim Chun Hui’s evidence were not challenged in cross-examination.

At the time of these conversations, Hosea was married to Jiamian.

Hosea gave evidence describing a conversation with Sim Chun Hui in early 2014, in which she told him that Steven had said to her that he would resign as a director of the Company and transfer his shares to Jiamian because he was “in legal trouble”. Hosea deposed that Steven’s resignation and Jiamian’s appointment as a director of the Company took effect on 10 February 2014, and that he signed the documents notifying ASIC of the resignation and appointment on 24 February 2024. Steven did not transfer his shares to Jiamian.

In his affidavit affirmed on 2 November 2022, Steven gave evidence that he did not resign as a director of the Company, and that he did not agree to the appointment of Jiamian as a director of the Company, in February 2014. Steven deposed that he had merely considered and discussed with Jiamian the possibility of transferring to her his shares in the Company to hold on his behalf temporarily. Steven deposed that he first became aware that he was no longer a director of the Company in about late 2014, when he asked to inspect the Company’s books and Hosea told him that he had no authority to do so as he was no longer a director. Steven gave evidence that he immediately asked Jiamian to “give my directorship back”. Jiamian agreed to do so, and the Company’s accountant told Steven in late 2014 that Jiamian had signed the necessary forms, and that he was “awaiting Hosea’s confirmation”. Steven gave evidence that he did not follow up the matter further after that, and that he later became aware from ASIC’s records that he was not re-appointed as a director until July 2016.

When his signed resignation letter was put to him in cross-examination, Steven acknowledged that he signed the letter in February 2014, and that he understood at the time that the letter said that he resigned as a director of the Company. Steven subsequently sought to resile from his evidence that he had understood that he was resigning as a director when he signed that letter in February 2014. Steven said that he had not intended to resign as a director, that he was “very confused during that period”, that he did not know what had happened when he signed the resignation letter, and he did not know why he had signed it. When pressed later in the cross-examination about his understanding of the resignation letter at the time that he signed it, Steven sought to avoid answering the question, saying that a lot of things were happening in his family at that time, he had a headache, he was confused, and he didn’t think it through carefully before signing the letter. The cross-examiner then asked Steven whether his evidence was that he could read and understand the letter, but he had not thought the decision through carefully before signing the letter because he had a headache. Steven answered: “Maybe”.

Steven’s attempts to resile from his clear answer early in his cross-examination that he understood the resignation letter when he signed it in February 2014, lack credibility. Based on my observation of Steven giving evidence at the time, he told the truth in his early answer, but subsequently regretted it because he perceived that his conduct in knowingly resigning as a director in February 2014 might not assist the plaintiffs’ claim in respect of the wages and superannuation paid to Hosea. I find that Steven knowingly and intentionally resigned as a director of the Company in February 2014.

It follows that Steven’s affidavit evidence denying any knowledge in February 2014 that he had ceased to be a director of the Company, cannot be accepted. Nor can I accept Steven’s affidavit evidence that he was refused access to the Company’s books and records in late 2014 – which Hosea denies – and that this led to him discovering for the first time that he was no longer a director of the Company.

Nor do I accept Steven’s evidence about demanding to be re-appointed as a director from late 2014. The reason that Steven gave in his affidavit for allegedly making that demand in late 2014 – being that Steven first became aware that he was no longer a director in late 2014 – was false. Steven advanced a different reason in cross-examination, saying that he had asked to be re-appointed as a director one or two months after his resignation in 2014 because he had learned that “Hosea and my niece get up and have affairs” and “they made a mess of the company business”. Steven went on to say that: “Hosea delayed my request. He didn’t want to give consent to my request”. I reject that evidence, which is inconsistent with Steven’s affidavit both as to the timing and the claimed reason for his alleged demand to be re-appointed as a director. It appeared to me to be made up by Steven on the run in cross-examination in an effort to claim that he played, or at least sought to play, a role in the management of the Company after his resignation as a director in February 2014, because he considered that this would assist the plaintiffs’ case in relation to the wages and superannuation paid to Hosea. Steven’s new story is uncorroborated by any objective evidence that Hosea and Jiamian had “made a mess of” the Company’s business in 2014.

Hosea gave evidence that he regarded Jiamian as the director who was “representing the Huang family” during the period of her directorship. Steven gave evidence to the same effect in cross-examination.

The Company completed its planning work for the residential unit development at 16-18 Mary Street at about the end of February 2014.

In about July 2014, the Commonwealth Bank approved a loan to fund the construction of the Mary Street development.

In August 2014, Hosea and Jiamian signed the building contract with the builder engaged by the Company for the Mary Street project. Steven gave evidence that he identified and recommended the builder to Hosea. In cross-examination, Steven said that the builder had been recommended to him by a friend. There is no evidence that Steven did anything more than pass on to Hosea the details of the builder that he received from his friend.

The Company engaged a project manager for the construction of the Mary Street development, in compliance with conditions imposed by the Commonwealth Bank. Construction commenced in 2015.

Steven gave evidence that he and Hosea attended fortnightly meetings at the construction site with the project manager and the builder. Those meetings were conducted in English. Steven’s evidence that he attended those meetings is difficult to reconcile with his evidence in cross-examination that he was less involved in the Company’s affairs by about 2014. If Steven did attend those meetings, I infer that Hosea took the lead role in the meetings due to Steven’s limited ability to communicate in English. [41]

In about May 2015, Hosea informed Steven that the Company required approximately $200,000 from unit holders for the ongoing construction of 16-18 Mary Street. Steven gave evidence that CH contributed the whole of those funds.

The Mary Street development was completed in about April 2016. All of the units in the development had been sold by about September 2016.

Shuling Huang, the sister of CH, purchased unit 10 in the Mary Street development. Hosea caused the sum of $8,745 to be paid to himself out of the Company’s funds on 20 May 2016 as a fee in relation to unit 10. In his affidavit affirmed on 24 January 2023, Hosea deposed that: “At the time, CH & QSH had agreed that my family would be entitled to an agent fee.” That was the extent of Hosea’s affidavit evidence about the $8,745 payment. In cross-examination, Hosea gave the following evidence about the payment:

Hosea was asked in re-examination about the circumstances surrounding the payment. He gave the following answer:

I accept that Hosea was giving truthful evidence that reflected his understanding at the time unit 10 was sold, which remains his understanding now, that he was entitled to pay the sum of $8,745 out of the Company’s funds to himself. Taking Hosea’s evidence at its highest, that understanding was based on what he recalls his parents telling him at the time, although he is no longer able to give a detailed account of that conversation with his parents. Hosea does not recall participating himself in any conversation with any member of the Huang family about the payment. Hosea’s parents – Sim Chun Hui and Cheong Wai Chan – both gave evidence in these proceedings. Neither of them mentioned the payment, or any conversation that they had about it at the time. QSH and CH did not give evidence.

In my opinion, in the absence of any evidence from QSH, CH, Sim Chun Hui, and Cheong Wai Chan, there is no sufficient basis to make any finding about whether Hosea was in fact authorised by the Company, or by the Huang side of the family, to cause the Company to make the $8,745 payment on 20 May 2016.

The payments made by the Company in respect of Hosea’s wages (including tax) and superannuation are referred to at [98] above.

Hosea gave evidence that, for the 2015 to 2018 financial years, the Company also recorded an accrued liability for wages to other members of the Huang and Chan families. This occurred because Hosea and Jiamian agreed and proposed to the Company’s accountant that three members of each side of the family should accrue wages. According to Hosea’s evidence, QSH, Chen Xiao Chun (who is married to QSH), and Ziqi Huang (who is the son of CH) signed tax file number declaration forms. QSH did not give evidence. Chen Xiao Chun gave evidence that the payee’s signature on the form bearing her name is not her signature, and that she did not sign the form. Ziqi Huang gave evidence that he signed the form in blank at Jiamian’s request. He did not provide the form to Hosea or the Company. The forms all appear, to my untrained eye, to have been completed in the same handwriting. There is no evidence identifying the person who completed the forms.

The Company recorded the following wages payments or liabilities in the 2015 to 2018 financial years:

The Company has not paid those wages, except to the extent that wages have been paid to Hosea as referred to at [98] above.

With the exception of Hosea, there is no evidence that the Company employed any of the persons in respect of whom it recorded accrued wages liabilities.

Although the Company has not paid the wages, the Company did pay:

The plaintiffs contend that Hosea had no authority to cause the Company to make those payments.

On 11 July 2016, Steven was re-appointed as a director of the Company and Jiamian ceased to be a director. I have rejected Steven’s evidence that he had been demanding to be re-appointed as a director since shortly after his resignation in 2014. [42] Hosea gave evidence in cross-examination that he signed the documents for Steven’s reappointment after the Company’s accountant notified him that Steven was coming back on the board. Hosea didn’t hesitate to do this, or even think much about it, because Steven had previously been a director and still had his money in the Company.

As I have already mentioned, the Company completed its purchase of 22 Ann Street and 26 Ann Street in May 2016. In July 2016, Hosea signed a building contract on behalf of the Company for the construction of residential units on its three Ann Street properties. The Company began selling units in that development off the plan. Hosea instructed the Company’s selling agent in relation to the prices at which the units were to be sold, after consulting with Steven. It is not necessary to address the divergence between the evidence of Hosea and Steven about the timing and substance of their discussions in relation to the selling prices.

On about 30 September 2016, the Company repaid the bank loan that it had taken out to complete its purchase of 24 Ann Street. The mortgage over that property was discharged.

Steven gave evidence that he continuously asked Hosea to pay distributions to unit holders after completion of the sale of the units in the Mary Street development in September 2016, but the net sale proceeds of those units were used to fund the construction of the Ann Street development instead. Steven was angry with Hosea about this, including because he believed that Hosea had set the sale price for the Ann Street units too low.

The Ann Street development was completed, and all units sold, by about February or March 2018.

The Company did not undertake any further developments after completing the Ann Street development.

Although they were directors of the Company, QSH, CH and Chun On Hui played no role in the management of the Company and its business. It is common ground that no board meetings were convened prior to 2018. Nor is there any evidence that any general meeting of the Company was convened prior to 2018. It appears from the evidence given by Steven and by Hosea that matters concerning the acquisition and development of properties, and the funding of those activities, were discussed and agreed between Steven and Hosea, with Steven consulting QSH and CH, and Hosea consulting Chun On Hui, about those matters as each of them saw fit from time to time.

Although no board meetings and no general meetings were in fact held prior to 2018, Hosea signed the following documents purporting to be minutes of meetings at which he was present together with Steven, QSH, CH and Chun On Hui:

In cross-examination, Hosea said that each of those documents that he signed had been prepared by the Company’s accountant. Hosea accepted that no meeting had taken place, and no resolution had been passed at any such meeting, on any of the occasions purportedly recorded in those documents. Hosea accepted that, to that extent, the minutes were false.

Hosea asserted in cross-examination that all of the resolutions were in fact passed when he signed the documents purporting to be the meeting minutes, which had been provided to him by the Company’s accountant. Hosea made that assertion under questioning about the reasons why he had relied on the signed minutes in his defence filed in these proceedings, and in his affidavits, without disclosing that the meetings purportedly recorded in those documents had not in fact taken place. I do not accept that assertion as truthful evidence of Hosea’s state of mind. It is inherently improbable that Hosea believed that corporate resolutions were validly passed by his signing of documents purporting to be minutes of meetings that he must have known when he signed each document had not in fact taken place. Hosea’s assertion that the resolutions were in fact passed by his signing of those documents seemed to me to be a false answer given in an attempt to deflect this line of questioning, in circumstances where the cross-examiner had not been content to let the matter rest with Hosea’s earlier answers that the accountant had prepared the minutes and provided them to Hosea for signature.

Although I have rejected Hosea’s evidence that he believed the resolutions were passed by his signing of the minutes, the evidence does not support any finding that he signed the minutes with the intention to achieve any benefit for himself or to cause detriment to the Company, to any other director or shareholder of the Company, or to any unit holder of the Trust. As counsel for the first and second defendants submitted, the plaintiffs, having had ample opportunity prior to the hearing to examine the financial reports referred to in the purported minutes, have not adduced evidence of any material errors in those reports.

I accept Hosea’s denials in cross-examination that he deliberately withheld the truth from the Court by referring to the purported minutes of meeting in his defence and in his affidavits. In cross-examination, Hosea accepted without hesitation that the meetings purportedly minuted did not take place. That candour is inconsistent with an intention to mislead the Court. It is more probable, in my opinion, that Hosea failed to pay sufficient attention to the substance of the parts of his defence and affidavits referring to the meetings when he verified his defence and affirmed his affidavits. That lack of attention to detail is wholly unsatisfactory, but it does not constitute a deliberate attempt to mislead or withhold the truth from the other parties and the Court.

In cross-examination, Hosea denied deliberately giving false evidence referring to the purported minutes of meeting dated 20 February 2014 in order to give the false impression that Steven’s resignation had been accepted. I accept that denial for the reasons I have explained above, and for the further reason that Hosea would have had no reason to give deliberately false evidence about the directors having resolved to accept Steven’s resignation. I have found that Steven did resign as a director of the Company in February 2014 by notice in writing. [43] His resignation was effective immediately pursuant to clause 28 of the constitution of the Company. As counsel for the first and second defendants submitted, nothing in the constitution required the board to accept the resignation before it took effect.

As Steven accepted in cross-examination, both he and Hosea initially played some role in the day-to-day management of the Company’s business.

Hosea gave evidence that Steven had greater involvement than Hosea until the Company purchased 16 Mary Street and was trying to purchase 18 Mary Street. In cross-examination, Hosea initially put the timing of that change at about May 2013. Hosea subsequently gave evidence that he had been mistaken about that timing, and that he had started to manage the Company’s business full time from about February 2012 after he had the conversation with QSH about wages. For the reasons explained above, I have accepted the substance of Hosea’s evidence about that conversation. [44]

I accept that Hosea was mistaken when he said in cross-examination that it was in May 2013 that the Company had purchased 16 Mary Street and was trying to purchase 18 Mary Street. The contemporaneous documentary evidence shows that the Company purchased 16 Mary Street in January 2011 and had exchanged contracts to purchase 18 Mary Street by November 2012. [45] The Company was trying to purchase 18 Mary Street from at least late 2011. Both Steven and Hosea gave evidence of the decision made at that time to sell 14 Mark Street in order to free up funds for the Company to purchase 18 Mary Street. [46] It was in May 2013 that the Company completed its purchase of 18 Mary Street. [47]

There is no evidence that the Company carried on any development activities until it succeeded in purchasing 18 Mary Street. It had not developed 14 Mark Street. [48] As I understand the evidence, the Company’s intention to develop 16 Mary Street, which it had acquired in January 2011, was conditional on acquiring the adjacent property at 18 Mary Street. It was only after exchanging contracts for 18 Mary Street in November 2012 that the Company commenced planning a residential unit development to be constructed on 16-18 Mary Street. [49]

Steven claimed in cross-examination to have been “fully responsible for looking for all the property and for the rebuild of the properties”. When pressed about his role in the “rebuild of the properties”, Steven clarified that he had been referring to the fact that a friend of his had referred him to the builder that the Company engaged to carry out the development at 16-18 Mary Street. Later in his cross-examination, Steven said that his friend had also referred him to the architect engaged by the Company for the Mary Street development.

Steven and Hosea both attended meetings with the architects and with Auburn City Council during the planning stage of the Mary Street development in the period from November 2012 until early 2014. I have found that Hosea took the lead role on behalf of the Company in those meetings due to Steven’s limited ability to communicate in English. [50]

It will be recalled that Steven had resigned as a director of the Company in February 2014. On Steven’s own evidence, he became less involved in the running of the Company by about 2014. That timing coincides with the completion of the planning stage of the Mary Street development. [51] Hosea was cross-examined on the basis that he had managed the Company’s business on a full-time basis from 2014.

I have found that Hosea negotiated the bank loan that the Company required to complete its purchase of 24 Ann Street in December 2014. [52]

I have found that Hosea took the lead role on behalf of the Company in any meetings with the project manager and builder during the construction phase of the Mary Street development, which commenced in 2015. [53]

Hosea was not challenged on his answer given in cross-examination that, even after Steven was re-appointed as a director in July 2016, he was not involved in the management of the Company. According to Steven’s own evidence, he “didn’t involve a lot with the company business” in 2016 although he continued to pay attention to what the Company was doing because he had made large financial contributions.

As referred to at [141] above, Hosea signed the building contract for the Ann Street development on behalf of the Company in July 2016, and instructed the agent in relation to the selling prices for the units sold off the plan in that development.

In relation to the financial and administrative aspects of managing the Company’s business, Steven accepted in cross-examination that Hosea managed the books and records of the Company at all times. Hosea was responsible for calculating the financial contributions that the Company required for its operations. Hosea was also responsible for keeping track of what bills the Company needed to pay at any given time, and Hosea in fact managed those payments for the Company. Steven gave evidence in cross-examination that the Company had many bills to pay, that he knew that Hosea was making those payments out of the Company’s bank accounts, and that he was content for this to occur for “small” payments but he believed that “big” payments required either board approval or Steven’s approval, and that cheques required both his and Hosea’s signatures.

The Company had a Commonwealth Bank cheque account and savings account for the Mary Street project, and a Commonwealth Bank cheque account and savings account for the Ann Street project. The Company also had a St George Bank cheque account with an overdraft facility. In addition, Hosea used an HSBC account and a Westpac account, both of which were opened in his name in 2010 before the Company was incorporated, for transactions relating to 14 Mark Street and certain other Company transactions. Hosea gave evidence that he did not make any personal transactions using the HSBC and Westpac accounts.

The plaintiffs contend that Hosea did not have authority to operate the Company’s bank accounts without Steven’s co-signature or co-authorisation. Steven’s evidence about authority to operate the Company’s Commonwealth Bank and St George Bank accounts was hopelessly inconsistent. The plaintiffs expressly pleaded that, during the period from the incorporation of the Company until at least February 2022, Hosea had authority to operate the Company’s bank accounts. [54] That pleading is consistent with evidence given by the plaintiffs’ solicitor in these proceedings concerning his instructions about Hosea’s authority to operate the Company’s Commonwealth Bank and St George Bank accounts. The plaintiffs have never sought leave to amend that aspect of their pleading, which is contrary to the plaintiffs’ contention propounded at trial that Hosea’s payments of his wages and superannuation out of the Company’s accounts were unauthorised because, inter alia, he was not authorised to make any payment out of the Company’s accounts without Steven co-signing or co-approving the payment.

The plaintiffs did not tender any Commonwealth Bank document recording the terms on which the Company’s Mary Street accounts could be operated. The plaintiffs did tender a Commonwealth Bank document relating to the Ann Street cheque account, which recorded that it was to be operated on the same basis (both online and otherwise) as the Mary Street cheque account. Upon being shown that form in cross-examination, Hosea accepted that two signatories were required to operate the Mary Street cheque account opened prior to 2013, and the Ann Street cheque account opened in September 2013. Having regard to the specific parts of the form to which Hosea’s attention was directed before giving that answer, it is unclear whether he was referring to signatures for cheques, or signatures or approvals for any transaction including transactions conducted on the Commonwealth Bank’s online banking platform.

Steven gave evidence that he had a password to access the bank accounts through the Commonwealth Bank’s online banking platform, but he did not use this and did not monitor the Company’s accounts online. Steven gave evidence that he did not know how to use a computer. He accessed the accounts online once or twice with Hosea’s assistance soon after the accounts were opened, but his attempts to do so by himself failed. In his affidavit affirmed on 2 November 2022, Steven deposed that he thought he might have remembered the passwords incorrectly. In cross-examination, Steven suggested for the first time that Hosea might have changed the password. He downplayed the possibility that he had misremembered the password, as he had said in his affidavit, by claiming that he had written down the password that he had been given. In any event, Steven did not ask Hosea about the password, and nor did he contact the bank. Steven did not make any further attempts to access the accounts online. Statements for the Company’s bank accounts were mailed to Hosea’s home, and Steven did not receive or request copies of those statements.

Despite his claimed belief that “big” payments required board approval or the approval of both Steven and Hosea, Steven does not claim to have made any complaint about Hosea managing all of the Company’s payments – big or small, without board approval and without another director approving or co-signing the payments – until 2015. Steven’s claim to have made such complaints from 2015 was not mentioned in any of his affidavits, and emerged for the first time in cross-examination. His evidence about the alleged complaints in cross-examination was vague, internally inconsistent, and replete with assertions that Steven then had to back away from when the cross-examiner interrogated them.

It is inherently improbable that Steven made any complaints about Hosea paying the Company’s expenses out of its bank accounts for at least four reasons. First, Steven was not a director of the Company in 2015, [55] and so had no basis at that time to consider that he should be co-signing or co-approving any payments by the Company. Moreover, the notion that “big” payments required board approval is inconsistent with the reality that the business of the Company was conducted without board meetings and without board resolutions at all times until 2018. Second, Hosea continued to manage all of the Company’s payments at all relevant times after 2015. If Steven and the Huang side of the family had in fact objected to this, it was well within their power to prevent Hosea from doing so given that they controlled the board. [56] As Steven admitted in cross-examination, they took no steps to remove Hosea as a director of the Company. There is no evidence that Steven or any other member of the Huang family took any steps at any time from to February 2022 to cause the board to pass a resolution to require Hosea to obtain board authorisation or another director’s signature for Company payments. The Company had ceased trading by February 2022. Third, as Steven ultimately reluctantly admitted in cross-examination, members of the Huang family continued to make significant financial contributions to the Company during and after 2015 at the time that Steven claims to have been complaining about Hosea making all of the Company’s payments. It is inherently unlikely that they would have done so if any member of the Huang family had been expressing concerns or complaints about the manner in which payments were being made out of the Company’s accounts. Fourth, Steven admitted in cross-examination that he allowed Hosea to continue making the Company’s payments because the Company needed to operate. It is difficult to see how the Company could have operated efficiently if Steven’s approval had been required for the many payments that the Company needed to make. According to Steven’s own evidence, he did not know how to use a computer. He had been unable to access the Company’s bank accounts online without assistance, and had shown no interest in learning how to do so.

For those reasons, I reject Steven’s evidence that he or any member of the Huang family complained in 2015, or at any time prior to the commencement of these proceedings, about Hosea attending to payment of the Company’s expenses without board approval or the approval or authorisation of Steven. I find that no such complaints were made at any time while the Company was trading, and that Steven and the other Huang family members involved in the Company were content for Hosea to manage payment of the Company’s expenses without seeking their agreement or approval.

Considered as a whole, my findings at [153] to [171] about amount to this: Hosea undertook the majority of the work required for the management of the Company from about February 2012, including taking the lead role on behalf of the Company in dealings with architects, local councils, builders and other third parties to progress the Company’s property developments, in addition to raising the funds required for those projects, attending to payment of the Company’s expenses, and keeping the Company’s financial records.

I note that my findings are consistent with the submission made on behalf of the plaintiffs in opening that Hosea had de facto day-to-day management of the Company and its developments.

Hosea gave evidence that, in January 2012, he provided paper copies of the monthly reports for the period from July 2010 to December 2011 to Chun On Hui and to QSH during a trip to China. According to Hosea, he gave three copies of the reports to QSH and asked him to pass on one copy to each of Steven and CH. The first and second defendants tendered as an admission part of QSH’s affidavit affirmed on 3 November 2022, in which QSH deposed that Hosea gave him three copies of the monthly reports for 2010 and 2011 when Hosea visited him in China in about 2012.

Steven gave evidence that he did not receive copies of the monthly reports from QSH in 2012. There is no evidence that Steven expressed any interest in reviewing any financial records of the Company at this time. On the basis of the evidence of Hosea and QSH referred to immediately above, I find that Hosea did provide three copies of the 2010 and 2011 monthly reports to QSH in about January 2012. I also infer from Hosea’s provision of three copies of those documents to QSH that Hosea intended and requested QSH to provide a copy of the reports to each of Steven and CH.

Hosea gave evidence that, on 11 May 2015, he emailed a copy of the monthly reports up to that date to Jiamian, who was the director of the Company treated as representing the Huang side of the family at that time. A copy of the email was tendered. According to Hosea’s evidence, Jiamian was travelling in China at the time. A short time after he sent the email, he had a telephone call with Jiamian in which he asked her to show the reports to her family in case they had any questions about the payments or records of the Company. According to Hosea, Jiamian replied: “Okay”. Jiamian was not called to give evidence. QSH and CH did not give evidence about whether Jiamian showed those reports to them. Steven was not a director of the Company at this time.

I reject the plaintiffs’ submission that Hosea did not intend for Jiamian to pass the reports on to the Huang family directors of the Company. Jiamian was the director of the Company who was treated as representing the Huang family at the time, [57] but there is no evidence that she played any active role in the management of the Company. There is no evidence of any reason for Hosea to email the reports to Jiamian if he did not intend her to review them and to show them to the Huang family directors for their review. Hosea’s evidence that he asked her to do so is therefore inherently probable, and I accept that evidence. There is no evidence to the contrary, as the plaintiffs did not adduce any evidence from Jiamian.

QSH visited Australia in June 2016. Hosea gave evidence that, during that visit, he gave QSH four folders containing copies of the monthly reports up to that time, together with bank statements and invoices paid by the Company for each project. Contrary to his affidavit evidence in which he deposed that he had not received any monthly reports until late 2018, Steven agreed in cross-examination that he did receive these documents from QSH in 2016. Steven then made inconsistent assertions that there were some bank statements missing from the material, and that the material contained no bank statements at all. I reject those assertions, which lack credibility due to the inconsistencies. Steven’s evidence in his 17 May 2022 affidavit that he did not receive any monthly reports for the Company until late 2018 is plainly wrong, and cannot be accepted. I accept Hosea’s evidence, and find that Hosea provided four copies of monthly reports, bank statements and invoices to QSH in June 2016 with the intention that QSH would pass copies on to the other Huang family directors.

Hosea gave evidence that, on 4 July 2016, he emailed to Jiamian a copy of all the monthly reports up to that date. A copy of the email was tendered. According to Hosea’s evidence, he had a conversation with Jiamian in person after sending the email, in which he told her that he had sent her the latest version of the Company’s reports, and he asked her to show them to her family in case they wanted to review them. Jiamian replied: “Okay”. For the same reasons that I have explained at [177] above, I reject the plaintiffs’ submission that Hosea did not intend Jiamian to show the reports to the Huang family directors, and I accept Hosea’s evidence that he did intend and request Jiamian to do so. QSH and CH did not give evidence about whether Jiamian passed the reports on to them. Steven denies receiving the reports from Jiamian in or about July 2016. Nothing turns on that, given that Steven had received monthly reports from QSH in June 2016, as referred to above.

Hosea gave evidence that he gave to CH in July 2018 a USB containing the monthly reports up to that time, copies of the Company’s bank statements, and settlement statements for each of the Company’s property developments. Hosea deposed that he asked CH to pass on the USB to Steven, because it was at about this time that Steven began requesting to see the Company’s financial records.

In cross-examination, Steven accepted (contrary to his affidavit evidence) that CH had given this USB to him in July 2018. Steven then made a series of inconsistent assertions about the USB, claiming that it was a “fake” USB which contained no documents, before asserting that it contained some documents but was missing other (unspecified) documents.

On 11 August 2018, Hosea received an email from Steven, which stated:

On 13 August 2018, Hosea exchanged the following text messages with CH:

According to Hosea’s evidence, the “him” referred to in the text messages is Steven. Hosea sent an email to Steven on 27 August 2018 stating that he had confirmed with CH that she had received all of the Company’s bank statements on the USB provided on 16 July 2018, and that CH had confirmed to him that the USB had been provided to Steven. Hosea’s email also noted that, as directors of the Company, Steven, QSH and CH were perfectly entitled to obtain any information about the Company directly from its accountant, from banks, or from any consultant.

The 11 August 2018 email referred to above strongly suggests that the only documents that Steven believed were missing from the USB that Hosea provided to CH in July 2018 were the bank statements demanded in the email for the period from 2013 to date. The text messages exchanged between Hosea and CH on 13 August 2018, and Hosea’s subsequent email sent to Steven on 27 August 2018, suggest that those bank statements were included on the USB. Steven gave evidence in cross-examination that he gave the USB to his accountant after he received it from CH. He had not sought to retrieve the USB from his accountant for the purpose of tendering it in these proceedings in support of the plaintiffs’ allegations (as part of their oppression claim) that Hosea had failed to provide them with certain bank statements for the Company accounts. There is therefore no direct evidence of the contents of the USB that Hosea provided to CH, and that CH passed on to Steven, in July 2018. The plaintiffs are the parties who were in a position to adduce that evidence by taking steps to retrieve the USB from Steven’s accountant. I place no weight on Steven’s inconsistent assertions in cross-examination about what the USB did or did not contain. Those assertions lack credibility due to the inconsistencies, and because, until he was cross-examined, Steven denied having received the USB at all. As I have already mentioned, his affidavit evidence that he did not even receive monthly reports for the Company until the occasion in late 2018 referred to below was plainly wrong.

If bank statements had not been included on the USB, it would have been open to Steven, QSH and CH, as directors of the Company, to obtain copies of the statements directly from the relevant banks. There is no evidence that they took any steps to do so. Nor is there any evidence that they ever requested Hosea or the relevant banks to provide copies of the Company’s bank statements for any period prior to 2013.

For those reasons, I find on the basis of Hosea’s evidence and the contemporaneous email and text messages referred to above that the USB provided in July 2018 did contain the monthly reports up to that time, the Company’s bank statements for the period from 2013, and the settlement statements for each of the Company’s property developments.

In late 2018, Hosea provided to Steven’s solicitor another USB containing all monthly reports prepared up to that time, copies of the Company’s tax returns and financial statements for the 2011 to 2018 financial years, and bank statements.

According to Steven’s evidence, he and the other directors of the Company left it to Hosea to manage the Company’s books and records at all times. [58] In summary, I have found for the reasons explained above that Hosea provided copies of the monthly reports to the Huang side of the family via QSH in January 2012, via Jiamian in May 2015, via QSH in June 2016, via Jiamian in July 2016, via CH in July 2018 and via Steven’s solicitor in late 2018. The information provided in June 2016 also included bank statements and invoices. The information provided in July 2018 also included bank statements for the period from 2013 to July 2018, and settlement statements for the Company’s projects.

The plaintiffs submitted that Hosea did not provide the monthly reports, bank statements, financial reports and other (unspecified) financial information concerning the Company’s affairs in a regular or timely way.

The erroneous premise implicit in that submission is that the Huang family directors of the Company were wholly reliant on Hosea to provide them with financial information about the Company, both as to the substance of the information and the timing of it being provided to them. I accept that the timing of Hosea’s provision of financial information to his co-directors was sporadic. However, as the first and second defendants submitted, it was open to the Huang family directors to request information from Hosea, or to inspect the Company’s books and records, at any time. There is no evidence that Steven, or any other member of the Huang side of the family, requested copies of the Company’s financial records, or expressed any interest in reviewing those records, at any time prior to July 2018. [59] As Steven accepted in cross-examination, he could have obtained information about the Company’s affairs from the Company’s accountant at any time, and he could have approached the banks to obtain a copy of the Company’s bank statements at any time. The same is true of each other director of the Company, including QSH and CH. The absence of any evidence that they took any steps to obtain information about the Company’s financial affairs prior to July 2018 points strongly to the conclusion that Steven, QSH and CH were content to leave it to Hosea to manage the Company’s financial records and payments, and that they were satisfied with the frequency and contents of the financial information provided by Hosea as referred to at [174] to [186] above, and I so find.

In 2018, Hosea calculated that the Huang and Chan sides of the family had contributed a total sum of $4,526,592.55 to the Company, of which the Chan side of the family had contributed $2,594,092.55. The amount of the Chan family contribution is no longer in dispute. The only issue in dispute is whether the Huang side of the family contributed $1,932,500 or $2,038,500. That dispute turns on the plaintiffs claims that the Company has not accounted for the contribution of $30,000 that CH claims to have made in January or February 2011 and the contribution of $76,000 that Steven claims to have made in October 2013. [60] On 13 March 2018, Hosea caused the Company to draw a cheque for $1,685,671.23 to repay contributions made by him and by Chun On Hui.

On 26 March 2018, Hosea transferred the sum of $302,572.55 from the Company’s account to himself by way of further repayment of the contributions made by him and by Chun On Hui.

On 18 May 2018, Hosea caused the Company to draw cheques totalling $1,500,000 payable to Steven, QSH and CH. This was in addition to payments totalling approximately $328,528 that Hosea had made out of Company funds at the direction of and for the benefit of Huang family members in 2016.

On 9 August 2018, Hosea caused the Company to make a further payment of $587,848.77 to reimburse contributions made by the Chan side of the family and a further payment of $220,000 to reimburse contributions made by the Huang side of the family. According to Steven’s evidence, he was dissatisfied with the amount paid to him and requested copies of the Company’s financial records. I have set out my findings concerning the provision of those records at [174] to [191] above.

Steven’s review of the material contained on the USB provided by Hosea in late 2018 gave rise to a dispute about whether Hosea had recorded all of the contributions made by the Huang side of the family, a dispute about whether the Chan side of the family had in fact made all of the contributions that Hosea had recorded in the monthly reports and financial statements, and a dispute about certain transactions recorded in the monthly reports and other financial records. Despite the concerns expressed by the Huang family at the time about the accuracy of the Company’s financial records, the plaintiffs did not appoint an auditor or cause the company to appoint an auditor to audit the accounts. By the time of the hearing, the scope of the matters in dispute had narrowed considerably following the directors’ review of the Company’s financial records and the parties’ review of the evidence served in these proceedings, as I have explained in Section I of these reasons.

On 28 January 2022, Steven, CH and QSH issued a notice of meeting of the directors of the Company to be held on 3 February 2022 to vote on the following resolutions:

On 2 February 2022, Mr Albert Yau, the solicitor then acting for Hosea, sent an email to the plaintiffs’ solicitor referring to the notice of meeting and stating:

The directors’ meeting proceeded on 3 February 2022. The minutes record that Steven and CH were present, and that notice of the meeting had been given to QSH, Hosea and Chun On Hui. The minutes record that Steven and CH were satisfied that the notice given was sufficient because Hosea and Chun On Hui had responded to the proposed resolutions through their solicitor.

The minutes record that four resolutions were passed at the 3 February 2022 meeting in exactly the same terms that had been proposed in the notice of meeting referred to above.

On 5 May 2022, Steven sent an email to Hosea attaching a notice of meeting of the directors of the Company to be held by Zoom on 20 May 2022 to vote on resolutions to appoint solicitors to represent the Company to commence and prosecute proceedings against Hosea, and to authorise Steven to provide instructions to those solicitors on behalf of the Company. The notice of meeting enclosed a copy of the proposed letter of retainer, which described the scope of the retainer as being to act on behalf of the Company in relation to its dispute with Hosea, “including breach of director’s duties, negligence or misconducts [sic] as a director of the Company, and other wrongs done to the Company.”

On 16 May 2022, Clayton Utz wrote to Steven advising that they were acting for Hosea and Chan & Hui Investment Nominees Pty Ltd. Clayton Utz’s letter complained that the allegations against Hosea referred to in the proposed retainer letter were serious allegations devoid of any specificity and supporting evidence. The letter stated that it would be contrary to the commercial morality, and possibly contrary to Steven’s own duties as a director of the Company, to cause Company funds to be expended in prosecuting such allegations. The letter stated that Hosea was more than willing to defend any proceedings that Steven may wish to commence, but that he was not prepared to agree to the Company paying for such proceedings. Finally, the letter set out Hosea’s instructions concerning the Huang and Chan families’ respective contributions to the Company and their entitlements to the Company’s remaining funds. According to those instructions, the Chan side of the family was entitled to be paid at least a further sum of $1,737,379.57, and claimed to be entitled to a further amount of $239,410.90 which the Huang family disputed. The letter stated that Hosea intended to withdraw the sum of $1,737,379.57 on 18 May 2022, and to pay the sum of $239,410.90 into Clayton Utz’s trust account where it would be held for three months to allow Steven to commence any proceedings that he wanted. The letter sought an undertaking that the notice of meeting would be withdrawn.

Steven’s solicitors replied to Clayton Utz on 18 May 2022, advising that they were also acting for CH. The letter disputed Hosea’s entitlement to make the withdrawals notified in Clayton Utz’s letter on the grounds that the directors had not made any determination under the constitution to pay dividends, and on the grounds that the withdrawals would be contrary to the resolutions passed on 3 February 2022. The letter sought an undertaking from Hosea and Chan & Hui Investment Nominees Pty Ltd that they would not cause the Company to make the withdrawals notified in Clayton Utz’s letter, and would not otherwise deal with the Company’s funds except in accordance with the 3 February 2022 resolution. The letter denied that the allegations made against Hosea, Steven and CH were unsubstantiated, but declined to substantiate the allegations because “ultimately it will be a matter for the directors as to whether they resolve to commence proceedings”.

On 18 May 2022, Steven, CH, S&C Investment Nominees Pty Ltd and Huafa Development Pty Ltd commenced these proceedings by summons against Hosea, Chan & Hui Investment Nominees Pty Ltd and the Company. The plaintiffs sought orders on an interim and final basis restraining Hosea and Chan & Hui Investment Nominees Pty Ltd from making payments out of the Company’s funds, or causing the Company to do so, except in accordance with the 3 February 2022 resolution. By way of final relief, the plaintiffs also sought an order under s 233 of the Corporations Act or in equity for the taking of an account “in respect of the affairs” of the Company, and an order that Hosea pay to the Company any amount found to be owing by him after such an account.

On 20 May 2022, the Court noted an undertaking given by the defendants, without admissions and without prejudice to their rights, not to cause the Company to disburse its funds until further order of the Court, except with the plaintiffs’ written consent. Orders were made for the filing of a statement of claim and defences.

The payments foreshadowed in Clayton Utz’s 16 May 2022 letter were not made.

The board meeting called by Steven for 20 May 2022 did not proceed. The plaintiffs’ submissions identified two different reasons for this. First, the plaintiffs adduced evidence that Clayton Utz had notified the plaintiffs’ solicitors that Hosea did not consent to the meeting being conducted by Zoom. Second, the plaintiffs submitted that the meeting was unable to proceed because the plaintiffs were unable to serve the notice of meeting on Chun On Hui. The Court was not referred to any evidence in support of that proposition. The 3 February 2022 meeting minutes to which I have referred above, recorded that Steven and CH were satisfied that sufficient notice of the meeting had been given to Chun On Hui. Their reliance on the 3 February 2022 resolution in their solicitors’ correspondence of May 2022, and in the terms of the interim and final relief sought in the summons filed on 18 May 2022, indicates that Steven and CH had no reason to doubt the correctness of the view that they formed on 3 February 2022 that Chun On Hui had been given sufficient notice of that meeting. There is no evidence of any reason why they could not have notified him of the proposed 20 May 2022 meeting by the same means that they had notified him of the 3 February 2022 meeting. Nor is there any evidence of any reason why Steven or CH could not have requisitioned Hosea, as secretary of the Company, to convene a meeting of directors pursuant to clause 32 of the constitution for the purpose of voting on the proposed resolution for the Company to commence proceedings. There is no evidence to suggest that Hosea would not have known where to send a notice of meeting to ensure that it came to the attention of his uncle, and fellow shareholder and director of Chan & Hui Investment Nominees Pty Ltd, Chun On Hui. [61]

I return to the first reason propounded by the plaintiffs for the directors’ meeting not proceeding on 20 May 2022, and for the fact that the directors have never met to vote on a resolution for the Company to commence the proceedings against Hosea that Steven foreshadowed in May 2022, or to amend the pleadings in these proceedings to incorporate those foreshadowed claims by the Company against Hosea. I accept that clause 34 of the constitution precluded the directors’ meeting convened for 20 May 2022 from proceeding using the Zoom platform without Hosea’s consent. [62] However, there is no evidence of any reason why the Huang family directors of the Company could not have convened a meeting of the directors in accordance with the constitution to vote on a resolution for the Company to commence proceedings against Hosea, either by QSH and CH travelling to Australia to attend the meeting in person and by giving sufficient notice to Chun On Hui to give him the opportunity to do the same, or by QSH and CH appointing alternate Australian-resident directors pursuant to clause 36 of the constitution to attend and vote at any such meeting. There is no evidence of any reason why such steps could not have been taken prior to or within a reasonable time after the commencement of these proceedings. The Huang family directors would have controlled the outcome of votes at any such meeting, [63] and it would then have been open to the plaintiffs to apply to amend their pleadings to include any claims that the directors resolved for the Company to make against Hosea.

The plaintiffs bear the onus of proving that CH made the alleged contribution of $30,000 in January or February 2011, both for the purpose of their claim that the Company (as trustee) is liable to account to the plaintiffs (as unit holders) for that alleged contribution when calculating the final distributions, [64] and for the purpose of the plaintiffs’ oppression claim.

The plaintiffs have failed to discharge that onus for the reasons explained at [75] to [78] above.

The plaintiffs also bear the onus of proving that Steven made the alleged contribution of $76,000 in October 2013, both for the purposes of their claim for the Company to account for that contribution, and for the purpose of their oppression claim.

The plaintiffs have failed to discharge that onus for the reasons explained at [109] to [112] above.

In prayers 11 and 12 of the claims for relief in their statement of claim filed on 29 June 2022, the plaintiffs seek an order for the taking of an account of the income and expenses of the Company as trustee of the Trust, and the contributions paid by or on behalf of each unit holder of the Trust. The plaintiffs seek an order that “the defendants paid to the plaintiffs such sums as are due to the latter upon the completion of the account, together with interest thereon”. There is no dispute that the third defendant – the Company (as trustee) – is an accounting party vis-à-vis the plaintiffs (as beneficiaries). As the first and second defendants submitted, the statement of claim does not plead the elements of any fiduciary or accounting relationship between the first and/or second defendant – Hosea and Chan & Hui Investment Nominees Pty Ltd – and the plaintiffs in relation to the business of the Company. [65]

Thus, understood by reference to the pleading as a whole, prayers 11 and 12 are claims by the plaintiff unit holders for an account from the Company as trustee of the Trust, and for payment of such amounts as may be due from the trustee to the plaintiff unit holders. As I have explained earlier in these reasons, the plaintiffs no longer seek orders in those terms as the parties have substantially undertaken the accounting process themselves prior to the commencement of the final hearing.

Prayers 11 and 12 of the statement of claim are not claims for an order requiring Hosea to account to the Company for the wages and superannuation paid to him, for the superannuation paid for the benefit of other members of the Huang and Chan families, or for any other amount.

As the first and second defendants submitted, the plaintiffs’ pleaded claims in relation to the wages and superannuation is limited to:

The claim for relief in prayer 16 of the statement of claim is expressed as a claim under s 233 of the Corporations Act “or alternatively in equity”. However, as the first and second defendants submitted, the facts pleaded in the statement of claim do not include any allegation that the payments of wages and superannuation constituted a breach of any fiduciary duty or other equitable obligation owed by Hosea to the Company, or any equitable duty or obligation owed by Hosea to the plaintiffs. The plaintiffs do plead that those payments contravened ss 181 and 182 of the Corporations Act, as stated above.

As the first and second defendants submitted, it is clear from the provisions of s 1317J of the Corporations Act that the plaintiffs have no standing to claim compensation under s 1317H for alleged contraventions by a director of the Company of ss 181 and 182. The plaintiffs did not seek leave to prosecute that claim on behalf of the Company pursuant to s 237 of the Corporations Act. The claim for compensation under s 1317H of the Corporations Act must be dismissed for that reason. As the plaintiffs submitted, and as counsel for the first and second defendants accepted, the alleged contraventions of ss 181 and 182 of the Corporations Act remain potentially relevant to the oppression claim. Conduct that constitutes a contravention of s 181 or s 182 of the Corporations Act may, but will not necessarily, constitute oppression within the meaning of of s 232(d) of the Corporations Act. [66] However, as discussed below, the plaintiffs’ submissions did not address the alleged contraventions of ss 181 and 182 in any meaningful way. [67]

Before addressing the pleaded oppression case, it is necessary to say something about two alternative ways in which the plaintiffs sought to put their claim for an order requiring Hosea to account to the Company, or to the plaintiffs directly, for the wages and superannuation paid to him, and for superannuation paid to others, allegedly without authorisation.

Referring to Torlonia v Wright, [68] the plaintiffs submitted that, because Hosea had in fact been in control of the Company, the plaintiffs were entitled to have Hosea account to the Company in respect of the wages and superannuation before the Company accounted to the plaintiffs in the manner described at [14]-[18] above.

Torlonia v Wright turned on its own facts, and is not authority for the general proposition that the plaintiffs seek to extract from it.

The defendant, Mr Wright, was the financial and commercial adviser of the plaintiff, Ms Torlonia. On the defendant’s advice, certain mining royalties that the plaintiff was entitled to receive were paid by her direction to the trustee of a discretionary trust and credited within the accounts of the trust as loans by the plaintiff to the trust. The plaintiff and various relatives of the plaintiff were the beneficiaries of the discretionary trust. The defendant had incorporated a company called Leccino Pty Ltd, and had established the trust with Leccino as the trustee. The defendant was the sole director, secretary and shareholder of Leccino at the time of the events and transactions giving rise to the proceedings.

Under the control of the defendant, Leccino made payments from the trust bank accounts, being the accounts into which the plaintiff had directed her mining royalties to be paid by way of loan to the trust. Some of those payments out of the trust bank accounts were made to, or at the direction of, the plaintiff. Other payments were made to, or at the direction of, other beneficiaries of the discretionary trust. All such payments were debited to the plaintiff’s loan account, irrespective of whether the payment had been directed or authorised by the plaintiff.

The plaintiff sought an order that the defendant account to her for the mining royalties received during the period in which he was a director of the trustee of the trust. The defendant resisted such an order on grounds that included that he was not a trustee for the plaintiff in respect of the mining royalties, and so there was no accounting relationship between him and the plaintiff personally. The defendant submitted that, if he had any liability to account, it was to Leccino, and not to the plaintiff.

The plaintiff had pleaded that: (1) her relationship with the defendant was one in which he was her professional business and financial adviser, accountant and tax agent, in whom she reposed trust and confidence; (2) that the defendant had “de facto control”, on behalf of the plaintiff, of the receipt and application of the mining royalties to which she was entitled; (3) that the defendant was obliged to act in the plaintiff’s interests; (4) that the defendant was a trustee for the plaintiff of the royalties to which she was entitled that came into his control; and (5) that the defendant was liable to account for the royalties received by him on behalf of the plaintiff. Brereton J (as his Honour then was) held that, although the pleading did not expressly allege a fiduciary relationship between the plaintiff and the defendant, it did allege all of the material elements of a fiduciary relationship – vulnerability, trust and confidence, a duty to act in the principal’s interest, and control of the principal’s property. His Honour held that a case that the defendant was personally liable to account to the plaintiff was open on that pleading. Indeed, his Honour considered that to be the only sensible reading of the pleading, which sought relief against the defendant only. [69]

Brereton J held that the plaintiff did in fact repose trust and confidence in the defendant, and relied heavily on his advice. The defendant’s control of Leccino and the trust was a fundamental feature of the structure described above that had been established on the basis of the defendant’s advice to the plaintiff. [70] Acknowledging that the relationship between accountant and client is not one of the classic fiduciary relationships, Brereton J held that the relationship was a fiduciary one in the particular circumstances of that case, and that the defendant was liable to account to the plaintiff for the receipt and application of the mining royalties which he effectively controlled. [71] His Honour said: [72]

The facts of the present case bear little resemblance to the facts in Torlonia v Wright. In the present case, Hosea was one of several unit holders in the Trust and (initially) shareholders in the Company. He was one of the five directors of the Company. The Huang family directors took no active role in the management of the Company, choosing to leave it to Hosea to manage the Company’s affairs. This appears to have been a matter of convenience for the Huang family directors. Hosea did not have any qualifications or prior experienced that equipped him to manage the Company’s affairs better than any other director. The Huang family directors controlled the board, and the Huang family shareholders effectively had the power to control the Company in general meeting, at all relevant times. [73] It was open to the Huang family directors to obtain financial information about the Company through several means at any time. There is no evidence that they took any steps to do so. I have found that they were content with the financial information that Hosea provided to them from time to time. [74]

More importantly, as the first and second defendants submitted, the plaintiffs in the present case have not pleaded that there was a fiduciary relationship between Hosea and any or all of the plaintiffs. Nor have the plaintiffs pleaded that any of the material elements of a fiduciary relationship referred to by Brereton J in Torlonia v Wright existed between the plaintiffs (or any of them) and Hosea. Indeed, the plaintiffs have not even pleaded that Hosea owed any fiduciary duty to the Company that was breached by the payment of wages and superannuation out of the Company’s funds.

For those reasons, Torlonia v Wright does not support the plaintiffs’ submission that, because Hosea was in control of the Company, the plaintiffs are entitled to have him account to the Company before the Company (as trustee) accounts to the unit holders by paying final distributions to the plaintiffs (collectively) and the first and second defendants (collectively) in accordance with the parties’ agreement explained in Section I of these reasons. [75] The contention in the plaintiffs’ opening submissions that Hosea is obliged to account to the Company on the basis that the payment of wages and superannuation constituted a breach of fiduciary duties owed by Hosea to the plaintiffs, or a breach of fiduciary duties owed by Hosea to the Company, is outside the scope of the plaintiffs’ pleaded case. The pleaded case is limited to the allegation that Hosea’s conduct in causing the Company to pay wages and superannuation to him, in circumstances where Hosea knew that the Company had not authorised those payments, contravened ss 181 and 182 of the Corporations Act and was oppressive.

The second alternative way in which the plaintiffs sought to put their claim for an order requiring Hosea to account to the Company, or to the plaintiffs directly, for the wages and superannuation paid out of the Company’s funds, emerged for the first time during closing submissions. The plaintiffs submitted that Hosea is an accounting party vis-à-vis the Company and the plaintiffs by reason of the profit-sharing agreement made in 2010, which the plaintiffs submitted was akin to a partnership or joint venture agreement. [76] That contention, too, is beyond the scope of the plaintiffs’ pleaded case.

The first and second defendants object to the plaintiffs seeking to pursue a case which they have not pleaded in relation to wages and superannuation. As I have said at [218] above, the plaintiffs’ pleaded case for compensation under s 1317H for alleged contraventions of ss 181 and 182 of the Corporations Act cannot succeed. The plaintiffs’ pleaded oppression case requires them to establish, on the balance of probabilities, that the affairs of the Company, including the payment of wages and superannuation, were conducted in a manner that was objectively unfair. [77] By the two unpleaded contentions referred to above, the plaintiffs have sought to cast the onus on Hosea to prove that the Company authorised the payment of wages and superannuation, failing which the plaintiffs say that Hosea must account to the Company (or to them personally) for the wages and superannuation, irrespective of whether or not the affairs of the Company were conducted in a manner that was oppressive within the meaning of s 232 of the Corporations Act. In my opinion, Hosea would be denied procedural fairness if the plaintiffs were to be permitted to depart from their pleaded case in this way without notice to him prior to the opening submissions (in the case of the first unpleaded alternative referred to at [220] to [229] above) and prior to the closing submissions (in the case of the second unpleaded alternative referred to at [230] above).

Even if the plaintiffs had pleaded that the payments of wages and superannuation were made in breach of fiduciary duties owed by Hosea to the Company, and had sought an order requiring Hosea to account to the Company for those moneys as a remedy for such alleged breaches (that is, independently of the oppression claim), it would have been necessary for the plaintiffs to demonstrate that there were special circumstances that warranted Steven, QSH and CH, as unit holders in the Trust, taking such proceedings into their own hands. As Gleeson CJ, Gummow and Hayne JJ said in Alexander v Perpetual Trustees WA Limited, [78] the general principle is that: [79] .

The only “special circumstance” identified in the plaintiffs’ closing submissions was the fact that the 20 May 2022 board meeting did not proceed. For the reasons that I have explained above, that does not establish that the trustee was not ready or not willing to proceed with an action against Hosea of the kind referred to in the materials accompanying the notice of meeting issued by Steven on 5 May 2022. Steven, QSH and CH simply failed to take the steps that were available to them to validly convene a directors’ meeting to vote on the proposed commencement of proceedings against Hosea, or the amendment of the claims in these proceedings to include those proposed claims by the Company against Hosea. Steven, QSH and CH (or any alternative directors appointed by them) would have been in the position to cast the majority of votes able to be cast on such a resolution at any duly convened meeting of the board. [80]

It is not necessary for me to determine whether, if the requisite special circumstances had existed, the plaintiff unit holders would have required leave in order to bring any derivative claim against Hosea for alleged breaches of fiduciary duty owed to the Company (if such a claim had been pleaded, which it was not).

I now turn to the pleaded oppression claim.

The question whether the conduct of a company’s affairs, an actual or proposed act or omission by or on behalf of a company, or a resolution or proposed resolution, is contrary to the interests of members as a whole (s 232(d)), or oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members (s 232(e)), is determined objectively.

The expression “oppressive to, unfairly prejudicial to, or unfairly discriminatory against” is a compound expression that is concerned with commercial unfairness. [81]

In cases such as the present involving allegations that the affairs of a family-owned company have been conducted oppressively, the question of 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”. [82] The conduct of the affairs of a family-owned company must be understood against the background that dealings between family members are often informal. [83]

In Tzavaras v Tsavaras & Sons Pty Ltd, [84] the Court of Appeal cited with approval the following summary of the applicable principles by Stevenson J in Munstermann v Rayward; Rayward v Munstermann: [85]

In relation to principles 8 to 13, the only remedy for which the plaintiffs press in respect of the alleged oppression is an order under s 233 of the Corporations Act requiring Hosea to account to the Company, and to pay any amount found to be owing by him to the Company, in respect of wages and superannuation. [86] As I understand the plaintiffs’ submissions, they also seek an order under s 233 that Hosea account to the Company in respect of the $8,745 fee paid to him in May 2016 in connection with the sale of unit 10 in the Mary Street development to Shuling Huang. This claim was not pleaded. However, as noted earlier in these reasons, the defendants did not take any pleading point about the inclusion of the $8,745 fee in the plaintiffs’ oppression claim.

As the defendants submitted, the grant of relief under s 233, if oppression is established, is discretionary. The question is what relief is appropriate to put an end to the particular oppressive conduct that has been established. As submitted by the plaintiffs, and accepted by the defendants, the scope of relief that the Court may grant extends to an order requiring a defendant found to have engaged in the relevant oppressive conduct to account to the company. [87]

The plaintiffs pleaded that the affairs of the Company have been conducted in a manner that is contrary to the interests of the members as a whole, and that is oppressive to, unfairly prejudicial to, or unfairly discriminatory against those plaintiffs who are members of the Company, by reason of:

The plaintiffs’ closing submissions emphasised that the allegedly unauthorised payments in respect of wages and superannuation, and the proposed payment of $1,737,379.57, occurred in circumstances where the plaintiffs submitted that: (1) the information that Hosea provided to them was “often false or incomplete” until late in these proceedings, after evidence had been served, subpoenas issued, and discovery administered; and (2) the plaintiffs had been “prevented from using their voting power to rectify this issue”. The plaintiffs’ submissions went so far as to assert that the directors other than Hosea had been effectively excluded from the management of the Company, although no such allegation had been pleaded.

The assertion that Hosea provided false or incomplete information to his co-directors was a theme running through the plaintiffs’ submissions. I have rejected Steven’s evidence that the information provided by Hosea in June 2016 and July 2018 was incomplete. [88] The plaintiffs did not adduce any other evidence in support of their assertion. I therefore reject the assertion that Hosea had provided false or incomplete information to his co-directors about the financial affairs of the Company.

For the reasons explained at [39] to [52], [59] to [68] and [196] to [208] above, I also reject the submission that the plaintiffs were prevented from using their voting power in relation to any deficiency that they may have perceived in the information provided to them, or, indeed, in relation to any other “issue” pertaining to the Company.

The first and second defendants objected to the plaintiffs relying on their unpleaded contention that Hosea effectively excluded them from the management of the Company. Even if the plaintiffs had pleaded that contention, I would have rejected it for the following reasons.

The evidence discloses that, from the time the Company was incorporated in 2010 until about 2018, the directors engaged in a pattern of conduct whereby they treated one director from each side of the family as representing all directors from that side of the family, and they made decisions by discussion between one director from each side of the family on the basis that each of those directors would consult their co-directors from that side of the family as they considered appropriate. [89] The directors chose to operate in this way without holding board meetings, and without the Company holding any general meetings, until about 2018. However, it was open to any shareholder to require the directors to convene a general meeting, and it was open to any director to require Hosea as secretary to convene a directors’ meeting, at any time. [90] If the plaintiffs had exercised their rights to require such meetings to be convened, they would have controlled the outcome of any matter put to a vote at the meeting. [91]

From the outset, the plaintiffs were content to leave it to Hosea to manage the Company’s books and records, to calculate the financial contributions required for the property development business, and to keep track of the expenses that the Company needed to pay at any given time. I have found that Hosea attended to paying the Company’s expenses, and that he did so with Steven’s knowledge and without any complaint made by Steven at the time. I have found that Steven and the other Huang family directors of the Company were content for Hosea to attend to paying the many bills that the Company was required to pay in the course of its business. [92] The plaintiffs pleaded that Hosea had authority to operate the Company’s bank accounts. The evidence that they sought to adduce to demonstrate otherwise during the final hearing, without seeking leave to amend their pleading, was equivocal and did not establish on the balance of probabilities that Hosea lacked authority to operate those accounts. [93]

Hosea prepared monthly reports recording the contributions and income received by the Company, and the expenses paid by the Company. I have found that he provided those monthly reports, together with bank statements and other financial records of the Company, to his co-directors periodically from January 2012 onwards. They did not request information more frequently. Nor did they seek financial information pertaining to the Company from the Company’s accountant or from the banks with which the Company held accounts. [94]

I have found that, in February 2012, QSH asked Hosea to manage the Company on the basis that he would be paid a net wage of $700 per week. Hosea agreed. I have found that Hosea did in fact undertake the majority of the work required for the management of the Company and its property developments from February 2012. [95] Steven continued to have some role in the property developments until about early 2014. [96] There is no evidence that QSH or CH played any active role in the management of the Company at any time prior to 2018, when they began to convene and participate in directors’ meetings. There is no evidence that Jiamian played any active role in the management of the Company during her directorship, other than to receive financial information from Hosea to be passed on to the other Huang family directors, [97] and to join with Hosea in proposing to the Company’s accountant that the Company should record wages and superannuation in its accounts for family members who do not appear to have been employed by the Company, and to procure tax file number declarations from some of those family members. [98]

Considering all of those matters as a whole, it might be said that, during the period up to 2018, QSH, CH and Steven abdicated their responsibilities as directors of the Company, which was charged under the trust deed with the obligation to manage the property development business of the Trust. [99] It cannot be said that Hosea excluded QSH, CH or Steven from the management of the Company at any time.

Turning to the first element of the plaintiffs’ pleaded oppression claim, I reject the submission made on behalf of the first and second defendants that it was within the scope of Hosea’s power, as the director who was left with the management of the Company, to cause the Company to pay wages to himself and to make superannuation payments for his benefit. The authorities referred to by counsel for the first and second defendants concerning the circumstances in which an authority to act as managing director might be implied from the conduct of the other directors do not support the submission that the scope of any such implied authority extends to a managing director making payments to themselves out of company funds without being expressly authorised by the company to do so.

Hosea’s evidence about his reasons for causing the Company to pay his wages and superannuation was not that QSH’s request for him to take on the role of manager in February 2012, or the conduct of the other directors in leaving the management of the Company to him in the period up to 2018, implied that he was authorised to pay wages to himself. On the contrary, Hosea gave evidence, and I have found, that he requested and QSH agreed for the Company to pay his wages in the amount of $700 per week net. Hosea believed that QSH was speaking on behalf of the Huang side of the family in requesting Hosea to take on the role of manager and in agreeing that the Company would pay those wages. [100] That belief was reasonable, having regard to the pattern of conduct to which I have referred at [247] above. In June 2016, QSH and Steven received a copy of the monthly reports that Hosea prepared for the period from 2010 up to that time. [101] Those monthly reports recorded the wages that Hosea caused the Company to pay to him. [102] There is no evidence that QSH or Steven asked any question, or made any complaint, about the wages payments recorded in those monthly reports. That strongly suggests that Hosea’s belief that he was entitled to wages of $700 per week net was consistent with the understanding of Steven and QSH at the time, and I so find.

For those reasons, I accept the submission made on behalf of the first and second defendants that it was not oppressive in the sense referred to at [236]-[239] above, for Hosea following his conversation with QSH in February 2012 during which he believed that QSH was speaking on behalf of the Huang side of the family, to cause the Company to pay net wages in the amount of $700 per week as and when it could afford to do so, and to cause the Company to comply with its legal obligations to remit the tax withheld from those wages to the Australian Taxation Office and to pay superannuation for Hosea’s benefit. I arrive at this conclusion more comfortably having regard to the facts that the total amount of wages in fact paid was less than Hosea would have earned from the job that he gave up in order to manage the Company, and that the total amount paid to and for the benefit of Hosea represents something less than 5 per cent of the $8,099,966 profits generated by the Company for the benefit of the unit holders in the Trust through the business that Hosea managed from February 2012.

The first element of the plaintiffs’ pleaded oppression claim also impugned Hosea’s role in causing the Company to record accrued liability for wages in respect of other members of the Huang and Chan families, and to pay superannuation for the benefit of those family members. [103] There are real questions about whether there was any proper basis for the Company to take this course, in circumstances where there is no evidence that the Company actually employed the persons in respect of whom wages were recorded and for whose benefit superannuation was paid. However, I accept the first and second defendants’ submission that this was not oppressive in the sense referred to at [236]-[239] above. It was an arrangement jointly proposed and agreed by Hosea and Jiamian, who were the directors treated as representing the Chan and Huang sides of the family respectively. The wages have not in fact been paid. The superannuation payments that have been made have benefitted each side of the family approximately equally. There is no evidence that the Huang family recipients of the superannuation payments have taken any action to disclaim an entitlement to superannuation and to cause those moneys to be repaid to the Company.

For completeness, I note that the plaintiffs’ pleaded allegation that the wages, associated taxation, and superannuation payments contravened s 181 and s 182 of the Corporations Act was not meaningfully pressed in closing submissions. The plaintiffs did not address any of the elements of either of those statutory provisions. By way of example only, the plaintiffs did not identify the purpose for which they contend that Hosea caused the Company to pay his wages and superannuation. I do not consider that the evidence would support a finding that the payments were made for any purpose other than to compensate Hosea for the work that he was asked to undertake, and did undertake, on the terms that he believed had been agreed in February 2012. Although I have not been assisted by any submissions from the plaintiffs about this issue, it does not seem to me that such a purpose would not be a proper purpose within the meaning of s 181, or that payments made for such a purpose would involve an improper use of Hosea’s position as a director within the meaning of s 182, in all the circumstances of this case.

The plaintiffs have failed to prove the factual bases of the second, third, and fourth elements of their pleaded oppression claim.

In relation to the second element, I have accepted Hosea’s evidence that he provided monthly reports and bank statements to QSH in 2016. There is no evidence that those bank statements omitted the period prior to 30 June 2013. Even if the evidence had established that Hosea neglected to provide bank statements for the period prior to 30 June 2013, I would not have held that this was oppressive in the sense referred to at [236]-[239] above in the absence of any evidence that any director of the Company requested a copy of the bank statements for that period from Hosea prior to the commencement of these proceedings, and having regard to the fact that any director would have been entitled to obtain a copy of those bank statements from the relevant bank if they had wished to do so.

In relation to the third element, the plaintiffs have not adduced evidence of any inaccuracies or absent records that have precluded them from approving the Company’s tax returns for the 2019 to 2023 financial years. I repeat my observations at [244] above.

The fourth element of the pleaded oppression claim fails by reason of the plaintiffs’ failure to prove the alleged $30,000 and $76,000 contributions for the reasons explained at [75] to [78] and [109] to [112] above.

In relation to the fifth element of the pleaded oppression claim, Hosea’s conduct in signing the false minutes was improper, but I do not accept that it was oppressive in the sense referred to at [236]-[239] above in circumstances where his co-directors were content to leave it to Hosea to manage the Company’s financial records, there is no evidence that Hosea intended to benefit himself or to harm the Company or any other person by signing the minutes, and the plaintiffs do not now contend that the financial statements that those false minutes purported to approve were inaccurate in any material respect. [104] The false minutes relating to Steven’s resignation as a director are inconsequential because Steven did in fact resign as a director, and his resignation was effective irrespective of whether the directors decided to accept it. [105]

In relation to the sixth element of the pleaded oppression claim, I do not consider that Hosea’s proposal in May 2022 to distribute the sum of $1,737,379.57 out of the Company’s funds was oppressive in the sense referred to at [236]-[239] above. Notwithstanding that clause 51 of the constitution of the Company provided for distributions to be determined by the directors, the Company had a history of paying distributions without any directors’ resolution having been passed, and the Huang family members had accepted such distributions without any objection or complaint in May 2018 and August 2018. [106] Through his solicitors, Hosea provided advance notice of the proposed distribution, and the basis on which he had calculated the amount of the distribution to which he considered that the Chan side of the family were entitled. When the plaintiffs commenced these proceedings seeking to restrain the proposed payment, relying on the resolution that Steven, QSH and CH had caused the board to pass on 3 February 2022, Hosea promptly gave undertakings to the plaintiffs and to the Court not to make the payment, and to preserve the status quo pending the determination of these proceedings. [107] I note in passing that the 3 February 2022 resolution demonstrates the power that the Huang family directors had always been in a position to exercise over decisions concerning the Company’s affairs. [108] It is clear from the manner in which these proceedings have been conducted on behalf of Hosea that he no longer intends to take any steps to a pay a distribution of $1,737,379.57 to the Chan side of the family, and that he intends for the Company to pay final distributions to unit holders in accordance with the orders of the Court in these proceedings. This was expressly confirmed by counsel for the first and second defendants in closing submissions.

In relation to the unpleaded element of the plaintiffs’ oppression claim concerning the $8,745 fee paid to Hosea in May 2016 in connection with the sale of unit 10 in the Mary Street development, the plaintiffs have failed to discharge their onus of establishing that the payment was not authorised in accordance with the informal way in which directors were in the habit of discussing and agreeing upon matters pertaining to the Company. The plaintiffs’ who bore the onus, failed to adduce any evidence from QSH or CH about whether they had any conversation about the fee with Hosea’s parents. That lacuna in the plaintiffs’ evidence is not filled by an inference that might be drawn from the failure of Hosea’s parents to address the issue in their affidavits that their evidence would not have assisted Hosea. [109]

For all of those reasons, the elements of the plaintiffs’ oppression claim, considered separately and as a whole, do not constitute oppression within the meaning of s 232 of the Corporations Act, particularly when considered in the context of the manner in which the parties dealt with one another in relation to the Company and its business, and the manner in which the Company’s business was managed, as described at [247] to [251] above. The plaintiffs’ claim for an order under s 233 of the Corporations Act requiring Hosea to account to the Company in respect of the wages and superannuation payments must be dismissed.

For completeness, I note that the first and second defendants did not rely on their pleaded limitation defences in relation to the oppression claim. As the plaintiffs’ other claims in these proceedings have failed, it has not been necessary to address those limitation defences.

It follows from my findings that CH did not make the disputed $30,000 contribution, and that Steven did not make the disputed $76,000 contribution, that the amount of the plaintiffs’ collective total financial contributions to the Company is $1,932,500. [110] As referred to at [16] above, it is common ground that the amount of the first, second and fourth defendants’ collective contributions is $2,594,092.55. Accordingly, the overall total amount of financial contributions is $4,526,592.55, of which the plaintiffs (collectively) contributed 42.69 per cent and the first, second and fourth defendants (collectively) contributed 57.31 per cent.

It also follows from my dismissal of the plaintiffs’ claim for an order under s 233 of the Corporations Act for Hosea to account to the Company in respect of wages and superannuation that the final distribution calculations are to be undertaken on the basis that the total profits of the Company is the amount of $8,099,966.41 agreed by the parties, and on the basis that the parties have made financial contributions to the Company in the amounts recorded immediately above. [111]

In accordance with the parties’ agreement as to the manner in which distributions of profits are to be calculated, and their agreed calculations submitted to the Court for the scenario that reflects the findings that I have made: [112]

As I understood the parties’ submissions, no issue in relation to interest arises in circumstances where each of the plaintiffs’ claims has failed.

The parties are to bring in short minutes of order giving effect to these reasons for judgment within 14 days. The terms of those short minutes of order will need to reflect that, whilst the Court has determined the issues in dispute, the payment of the final distribution to the plaintiffs (collectively) and to the first, second and fourth defendants (collectively), rather than to individual unit holders in accordance with the terms of the trust deed, is a matter of agreement between the parties.

If there is a dispute in relation to costs, the parties are to file and serve written submissions in relation to costs not exceeding three pages in length, and to send those submissions to my Associate together with the short minutes of order.