Boyded Industries Pty Ltd & Anor v Heartland One Pty Ltd & Ors

1. [1]

   This proceeding concerns a group of companies known as the “Heartland Motors Group”, which operates a car sales business. The ultimate holding company of the Heartland Motors Group is BG Webb Pty Ltd.

2. [2]

   The Heartland Motors Group was founded by the late Mr Bernard George Webb. Mr Webb had three daughters: Ms Joanne Richards, Ms Bernice Hooker and the late Ms Kathryn Turner.

3. [3]

   This proceeding is the latest instalment in a long-running dispute between, on the one hand, Ms Richards and Ms Hooker and, on the other, Mr Kieran Turner and Mr Anthony Turner (who are children of Ms Turner).

4. [4]

   The estates of Ms Turner and her late mother, Ms Dulcie Webb, have significant shareholdings in BG Webb, which have not yet been distributed. It was common ground that such distribution will occur and that, upon completion, the shareholdings in BG Webb will be as follows:

   1. (1)

      Ms Richards will hold 320 shares (approximately 30%);

   2. (2)

      Ms Hooker will hold 320 shares (approximately 30%);

   3. (3)

      Turnercorp Pty Ltd, a company of which Mr Kieran Turner is the sole director and shareholder, will continue to hold 108 shares (approximately 10%);

   4. (4)

      Mr Kieran Turner will hold 80 shares (approximately 7.5%);

   5. (5)

      Mr Anthony Turner (the brother of Mr Kieran Turner) will hold 80 shares;

   6. (6)

      Mr Ben Turner (who is also the brother of Mr Kieran Turner) will hold 80 shares; and

   7. (7)

      Ms Sallyanne Turner (who is the sister of Mr Kieran Turner) will hold 80 shares.

5. [5]

   To avoid confusion, I will refer to Mr Kieran Turner below as Mr Turner, and to his siblings, where relevant, by their full names.

6. [6]

   BG Webb holds all of the issued shares in Bernley Corporation Pty Ltd which, in turn, holds 599 of the 600 issued shares in Heartland Group Pty Ltd. The remaining share in Heartland Group is held by Boyded Industries Pty Ltd (which is itself a subsidiary of Heartland Group).

7. [7]

   The directors of each of BG Webb, Bernley and Heartland Group are Ms Richards, Ms Hooker and Mr Turner.

8. [8]

   Heartland Group holds all of the issued shares in the following companies, which largely comprise the operating entities of the Heartland Motors Group:

   1. (1)

      Rossfield Nominees (A.C.T.) Pty Ltd;

   2. (2)

      T S Management Pty Ltd;

   3. (3)

      BGW Nominees Pty Ltd;

   4. (4)

      HMG Parts Pty Ltd;

   5. (5)

      Boyded;

   6. (6)

      Heartland Motors Pty Ltd;

   7. (7)

      Heartland Blacktown Pty Ltd; and

   8. (8)

      Heartland Penrith Pty Ltd.

9. [9]

   Since early May 2025, Ms Richards and Ms Hooker have been the directors of each of the Operating Entities.

10. [10]

    A chart showing the structure of the Heartland Motors Group is attached as Annexure A to this judgment.

11. [11]

    One of the main issues for determination in this proceeding is whether Boyded was, on 30 April 2025, validly removed and replaced as trustee of the Rossfield Group Trust (RG Trust).

12. [12]

    The RG Trust is a discretionary trust that was established by way of a Deed of Settlement dated 28 March 1980 (RG Trust Deed). Its assets include:

    1. (1)

       a portfolio of shares listed on the Australian Stock Exchange;

    2. (2)

       real property at the following locations in New South Wales:

    3. (3)

       cash and other financial assets; and

    4. (4)

       the issued shares in Chicago Properties Pty Ltd and the issued units in the Chicago Unit Trust, of which Chicago Properties is trustee.

13. [13]

    The Chicago Unit Trust owns real property located at 18 Chicago Avenue in Blacktown, NSW. This site is partly occupied by the head office of the Heartland Motors Group (Blacktown Office) and otherwise consists of premises leased to third parties.

14. [14]

    The claim brought by the Plaintiffs (Boyded, Heartland Motors and Chicago Properties) concerns steps taken by Mr Turner and his brother, Mr Anthony Turner, for the purpose of removing Boyded as trustee of the RG Trust and appointing the First Defendant, Heartland One Pty Ltd, as trustee. Heartland One is an entity of which Mr Turner is the sole director and shareholder. The Plaintiffs contend that those steps were invalid and of no effect, and seek declarations that, inter alia, Boyded remains the trustee of the RG Trust.

15. [15]

    In early May 2025, shortly after Ms Richards and Ms Hooker learned of the purported removal and replacement of Boyded as trustee of the RG Trust, Mr Turner was removed as a director of the Operating Entities and his employment as Chief Executive Officer (CEO) of the Heartland Motors Group was terminated. At around the same time, Mr Anthony Turner’s employment as Chief Operating Officer was also terminated.

16. [16]

    By their Cross-Claim, Mr Turner and Turnercorp:

    1. (1)

       allege that Mr Turner’s employment as CEO was not “validly and effectively” terminated, and seek damages for breach of his employment contract; and

    2. (2)

       allege that, principally by reason of the events surrounding the termination of Mr Turner’s employment as CEO and his removal as a director of each of the Operating Entities, the affairs of the Heartland Motors Group have been conducted in a manner that is contrary to the interests of the members of BG Webb as a whole, or oppressive to, unfairly prejudicial to, or unfairly discriminatory against the Cross-Claimants, within the meaning of s 232 of the Corporations Act 2001 (Cth) (Act).

17. [17]

    This proceeding came on for hearing on an expedited basis. The Cross-Claimants were unable to complete their expert evidence on the issue of relief before the commencement of the hearing. Neither party sought an adjournment of the hearing in order to allow this evidence to be completed. Instead, the parties agreed that the Court should proceed to hear and determine all issues with the exception of any orders for relief in respect of the Cross-Claim. This was done on the basis that, if the Court determined that the Cross-Claimants succeeded on either the breach of contract claim or the oppression claim, there would need to be a separate hearing dealing with, for example, damages for the breach of Mr Turner’s employment contract, or the valuation of the shares in BG Webb and the appropriate relief for any oppressive conduct.

Factual background

1. [18]

   This section of the judgment provides an overview of the factual background to these proceedings, including the history of litigation between the parties. Particular factual issues that are contested between the parties are dealt with separately below, when addressing the parties’ claims.

2. [19]

   The business of the Heartland Motors Group was originally established in the 1960s by Mr Bernard Webb, together with Mr John Down and members of the Auswild family. Mr Down appears to have left the business in its early stages.

3. [20]

   On 18 February 1998, Mr Webb passed away. From that time until around 2009, the Heartland Motors Group was owned and controlled by members of Mr Webb’s family and members of the Auswild family.

4. [21]

   In 1998, Ms Richards was appointed as a director of various entities within the Heartland Motors Group, including BG Webb, Bernley, Boyded, Heartland Group, Rossfield Nominees and T S Management. Ms Richards has remained a director of those entities since that time and has subsequently been appointed as a director of the remaining Operating Entities.

5. [22]

   From about 1995 to 2000, Mr Turner was employed in various roles in the Heartland Motors Group while he completed university. Following a brief period spent studying abroad and subsequently working for an accounting firm, he returned to the Heartland Motors Group and was employed in various administrative, and later executive, roles from 2003 to 2009.

6. [23]

   In about 2008, there was a dispute between the Webb and Auswild families as to whether Mr Turner ought to be appointed as the CEO of the Heartland Motors Group. This dispute was resolved on the basis that the Auswilds ceased their involvement in the Group.

7. [24]

   In May 2009, Mr Turner was appointed as CEO of the Heartland Motors Group. Around that time, a parcel of shares in BG Webb was issued to Turnercorp, which represented around 10% of the shares then on issue. The other 90% of the shares was held, as to around 22.5% each, by Mr Webb’s three children (Ms Richards, Ms Hooker and Ms Turner) and by Mr Webb’s widow (Ms Dulcie Webb).

8. [25]

   In 2017, there was a dispute between the parties regarding the distribution of the proceeds of the sale of a substantial property in Parramatta that was owned by the RG Trust. This sale was structured so as to complete in two “tranches”, involving a payment of $50m followed by a payment of $100m.

9. [26]

   Up until this point in time, distributions from the RG Trust had generally been made in proportion to the shareholdings in BG Webb. However, for at least the first tranche of the Parramatta sale proceeds, it was agreed that there would be a departure from the usual course, with distributions instead being made to the eight grandchildren of Mr Webb (being the two children of Ms Richards, the two children of Ms Hooker and the four children of Ms Turner).

10. [27]

    The dispute which subsequently arose in early 2017 concerned:

    1. (1)

       whether it had been agreed that Turnercorp would receive 10% of the sale proceeds, prior to the remaining 90% being split equally between the eight grandchildren (including Mr Turner);

    2. (2)

       whether it had been agreed that both tranches of the Parramatta sale proceeds (or only the first) would be split in this way; and

    3. (3)

       whether it had been agreed that the proceeds of the sale of another property which the RG Trust owned at Lakemba, NSW, would be distributed in the same manner as the Parramatta sale proceeds.

11. [28]

    I address this dispute below. For present purposes, it is sufficient to note that there was a heated disagreement on this issue (with Mr Turner accusing Ms Richards of being “a shit stirrer” and complaining about his aunts “craft[ing] up these lies and gossip about poison”), and that the dispute appears to have contributed to a deterioration in the relationship between Ms Richards and Mr Turner.

12. [29]

    In March 2017, Mr Turner was informed that there was currently no Appointor of the RG Trust, by reason that the Appointor nominated in the RG Trust Deed was a company which had since been deregistered. Mr Turner instructed the Group’s solicitors, HWL Ebsworth (HWLE), to prepare the necessary documentation for the appointment of himself as the Appointor of the RG Trust.

13. [30]

    On 24 April 2017, HWLE sent Mr Turner a draft Deed Poll to vary the RG Trust Deed and a draft minute of a meeting of the directors of Boyded. The draft minute contained a resolution approving Boyded’s entry into the Deed Poll and approving Mr Turner’s appointment as the Appointor of the RG Trust.

14. [31]

    I will return to the balance of the correspondence exchanged between Mr Turner and HWLE below, when dealing with the Plaintiffs’ claim concerning the RG Trust.

15. [32]

    Mr Turner contends that the board of Boyded passed a resolution in the terms drafted by HWLE at a meeting on 1 May 2017, which was attended by himself (in person) and Ms Richards (by telephone), and that he was therefore validly appointed to the office of Appointor of the RG Trust. The Plaintiffs dispute that any such meeting took place and that Ms Richards gave her approval for this appointment.

16. [33]

    On 21 July 2017, Mr Turner sent signed documents to HWLE relating to his appointment as Appointor. Several days later, he departed to Biarritz, France, where he remained on an extended sabbatical for a period of around 18 months.

17. [34]

    Following Mr Turner’s return from France in early February 2019, he informed the other shareholders that he intended to leave the business and to sell Turnercorp’s shares in BG Webb. The relevant events were the subject of factual findings made in a prior proceeding in this Court between the parties (see Re Heartland Group Pty Ltd [2024] NSWSC 875 at [30]-[49]).

18. [35]

    The key events were as follows:

    1. (1)

       Mr Turner offered to sell his 10% share in BG Webb for an amount of around $42m;

    2. (2)

       the other shareholders rejected this offer on the basis that it exceeded the value of Mr Turner’s shares by “many multiples”, but indicated that they were open to selling the entirety of the business to a third party;

    3. (3)

       Mr Turner indicated that he was in discussions with a third party who was interested in purchasing only his shares;

    4. (4)

       the other shareholders responded that they were concerned about a third party having a role in the management of their family business; and

    5. (5)

       although Mr Turner indicated that he would pursue such a sale (and circulated a resolution to approve this sale), no such transaction eventuated, with Mr Turner stating that his buyer had “walked”.

19. [36]

    During this period, the communications between the parties were characterised by an increasing level of hostility. For example, on 18 March 2019, Mr Turner accused Ms Richards of being “foolish”, and said: “I am exiting the business because of you and yet here you are trapping me in. Very strange, although not unusual … you will regret this.”

20. [37]

    On 3 June 2021, Ms Kathryn Turner passed away.

21. [38]

    In November 2021, there was a board meeting at which Ms Richards told Mr Turner that the other shareholders wished to sell. Mr Turner responded that “he wasn’t a seller”, but agreed that it was “okay” for them to speak with Mr Nick Politis, who owned a number of car dealerships.

22. [39]

    Shortly afterwards, Ms Richards and her mother met with Mr Politis, who indicated that he was not interested in purchasing only their shares (and thereby being in business with Mr Turner), but “would be interested in buying the whole group”. Mr Turner later informed Mr Politis that the Turner family had no plans on selling, and this appears to have brought an end to those negotiations.

23. [40]

    On 26 December 2021, Ms Dulcie Webb passed away

24. [41]

    As noted above, it is common ground between the parties that, when the estates of Ms Turner and Ms Webb are fully distributed (which has not yet occurred), each of Ms Richards and Ms Hooker will hold around 30% of the shares in BG Webb, Mr Turner will hold around 17.5% (including the 10% interest held by Turnercorp), and each of Mr Turner’s three siblings will hold around 7.5%.

25. [42]

    On 1 April 2022, Mr Turner made an offer to purchase each of Ms Hooker’s and Ms Richards’ shares in BG Webb for a total price of approximately $45m. He stated that this represented “the approximate net sale price as you would have received if Nick Politis bought the whole group for c$150m”.

26. [43]

    On 26 May 2022, Ms Richards issued a notice of an Extraordinary General Meeting of BG Webb to be held on 29 June 2022 (2022 EGM Notice), for the purpose of considering resolutions to increase the number of directors from two to three, and to appoint Ms Hooker as a director of BG Webb (in addition to Ms Richards and Mr Turner).

27. [44]

    On 1 June 2022, Mr Turner’s then solicitors, Madison Marcus, sent a letter to Ms Richards’ solicitors, demanding that the 2022 EGM Notice be withdrawn, failing which Mr Turner would apply to this Court seeking injunctive relief. The matters raised by the letter included that Ms Hooker had no experience as a company director and no experience within the automotive industry, and that her appointment would put at risk the various franchise agreements which the Group had with car manufacturers (Manufacturers).

28. [45]

    Ms Richards refused to withdraw the 2022 EGM Notice.

29. [46]

    On 27 June 2022, Mr Turner and Turnercorp commenced a proceeding in this Court (the 2022 Oppression Proceeding) seeking:

    1. (1)

       an interim injunction restraining Ms Richards and Ms Hooker from proposing any resolution to change the board of BG Webb; and

    2. (2)

       final relief pursuant to s 233 of the Act for alleged oppressive conduct.

30. [47]

    On 28 June 2022, Hammerschlag CJ in Eq refused the application for interlocutory relief in the 2022 Oppression Proceeding.

31. [48]

    On 29 June 2022, the Extraordinary General Meeting was held, and Ms Hooker was appointed as a director of BG Webb.

32. [49]

    Mr Turner commenced a further proceeding against Ms Richards and Ms Hooker in this Court on 5 July 2022, in relation to Ms Dulcie Webb’s estate (the 2022 Estate Proceeding), seeking, inter alia, an order that the grant of probate be revoked and that he be appointed as administrator of Ms Webb’s estate. The 2022 Estate Proceeding was subsequently settled.

33. [50]

    On 26 August 2022, Mr Turner and Turnercorp discontinued the 2022 Oppression Proceeding.

34. [51]

    On 26 September 2022, Ms Hooker was appointed as a director of Bernley by a resolution of the board of BG Webb.

35. [52]

    On 6 December 2022, Mr Turner convened board meetings of various Operating Entities within the Heartland Motors Group at which he purported (over Ms Richards’ opposition) to pass resolutions appointing his brother, Mr Anthony Turner, as a director of each of those entities. Mr Turner claimed to be able to pass such resolutions unilaterally, by reason that he had been appointed chairman of all of the companies in the Group and had a casting vote. (This contention was subsequently rejected by this Court, both at first instance and on appeal.)

36. [53]

    On 3 February 2023, Mr Turner sent an email to Ms Richards, stating that she was not to contact any staff member of the Heartland Motors Group other than himself, and that he had directed staff not to respond to any communications from her.

37. [54]

    In May 2023, Mr Turner offered to purchase his aunts’ 60% interest in BG Webb for around $53.86m. In July 2023, Ms Richards and Ms Hooker indicated that they were willing to proceed with a buy-out of their shares, but wanted $135m in cash and properties in return for their interest. Mr Turner responded shortly afterwards, describing this offer as “ugly”, “risky” and “simply a joke”, and stated that “even my last offer is outdated because we have had market changes since”. In September 2023, Mr Turner made a non-indicative binding offer to purchase his aunts’ 60% interest for $47.34m in cash and property (that is, around 10% lower than his May 2023 offer). The buy-out negotiations seem to have stalled at this point in time.

38. [55]

    On 23 May 2024, Mr Turner issued notices of Board meetings to be held on 30 May 2024 to consider resolutions for the removal of Ms Richards as a director of Boyded, Heartland Penrith, Heartland Blacktown and HMG Parts.

39. [56]

    On 30 May 2024, Mr Turner and Mr Anthony Turner purported to pass those resolutions, over Ms Richards’ opposition.

40. [57]

    On 3 June 2024, Ms Richards and Ms Hooker commenced a proceeding in this Court seeking declarations regarding the composition of the boards of various entities within the Heartland Motors Group (the 2024 Directors Proceeding).

41. [58]

    On 19 July 2024, Black J delivered reasons for judgment in the 2024 Directors Proceeding, finding that Mr Anthony Turner had not been validly appointed as a director of various Operating Entities on 6 December 2022 (see paragraph [52] above) and that, accordingly, the resolutions removing Ms Richards (which were passed with Mr Anthony Turner’s vote) were invalid and of no effect: In the matter of Heartland Group Pty Ltd [2024] NSWSC 875.

42. [59]

    On 15 August 2024, the Court made declarations giving effect to those findings in the 2024 Directors Proceeding: In the matter of Heartland Group Pty Ltd [2024] NSWSC 1029.

43. [60]

    On 25 July 2024, Ms Richards sent an email to Mr Turner stating that she and Ms Hooker were “not sellers”, adding that: “what we want is to ensure the ongoing success of the Group for the family”.

44. [61]

    On 12 September 2024, Mr Turner served a notice of intention to appeal from Black J’s orders in the 2024 Directors Proceeding. He subsequently filed a summons seeking leave to appeal on 22 October 2024.

45. [62]

    On 15 September 2024, Mr Turner executed a deed, by which he purported to exercise his power as Appointor of the RG Trust to appoint Mr Anthony Turner as Supervisor of the RG Trust. The Plaintiffs dispute the validity of this appointment.

46. [63]

    On 8 November 2024, Mr Turner made a non-binding indicative offer to purchase his aunts’ 60% interest in BG Webb for around $47.344m. This was, in effect, a restatement of the offer that he had previously made in September 2023 (see paragraph [54] above).

47. [64]

    On 3 February 2025, the board of Bernley passed resolutions, over Mr Turner’s opposition, convening an Extraordinary General Meeting of Heartland Group for 26 February 2025 (the February 2025 EGM), for the purpose of considering resolutions to appoint Ms Hooker as a director of Heartland Group (and to remove, to the extent he was validly appointed, Mr Anthony Turner as a director of Heartland Group).

48. [65]

    On 25 February 2025, Mr Turner applied to the Federal Court for short service of an application for an interlocutory injunction restraining his aunts from proposing any resolution at the February 2025 EGM to change the composition of the board of Heartland Group (the 2025 Federal Court Proceeding). In addition, Mr Turner sought, in the 2025 Federal Court Proceeding, relief for alleged oppressive conduct. Orders for short service were made, but the application was not served. The 2025 Federal Court Proceeding was discontinued on the following day.

49. [66]

    On 26 February 2025, Mr Turner failed to attend, on behalf of Boyded, the February 2025 EGM, with the result that it was rendered inquorate. (The two members of Heartland Group were Bernley as to 99.83% and Boyded as to 0.17%.)

50. [67]

    On 4 March 2025, Ms Richards commenced a proceeding in this Court seeking orders pursuant to ss 249G and 1319 of the Act for the convening of a further Extraordinary General Meeting of Heartland Group, including a direction that a corporate representative of Bernley would constitute a quorum of members (the 2025 EGM Proceeding).

51. [68]

    On 26 March 2025, the Court of Appeal heard the appeal from the 2024 Directors Proceeding (the 2025 Directors Appeal), and judgment was reserved.

52. [69]

    On 15 April 2025, the 2025 EGM Proceeding was heard. On 17 April 2025, Black J delivered judgment in that proceeding and made orders convening an Extraordinary General Meeting of Heartland Group for 2 May 2025 (May 2025 EGM).

53. [70]

    On 29 April 2025, the parties were informed that judgment in the 2025 Directors Appeal would be delivered on 1 May 2025.

54. [71]

    On 30 April 2025, a deed was executed by Mr Turner, on behalf of Heartland One, and by Mr Anthony Turner, whereby Mr Anthony Turner purported, as Supervisor of the RG Trust, to remove Boyded as trustee of the RG Trust and to appoint Heartland One in its place. The Plaintiffs contend that the purported exercise of this power by Mr Anthony Turner was invalid and of no effect.

55. [72]

    On 1 May 2025, Mr Anthony Turner sent an email to Ms Richards attaching this deed, and a document headed “Notice of Removal and Appointment of Trustee” which was addressed to Boyded and which required Boyded to transfer legal title to all property of the RG Trust to Heartland One.

56. [73]

    On 1 May 2025, the Court of Appeal dismissed the 2025 Directors Appeal: Turner v Richards [2025] NSWCA 83.

57. [74]

    On 2 May 2025, the May 2025 EGM was held, and resolutions were passed appointing Ms Hooker as a director of Heartland Group.

58. [75]

    On 5 and 6 May 2025, Heartland Group passed resolutions appointing Ms Hooker as a director of each of Boyded, Heartland Motors and BGW Nominees, and removing Mr Turner as a director of each of those entities.

59. [76]

    On 6 May 2025, the directors of Heartland Motors (being Ms Richards and Ms Hooker) passed a resolution resolving to terminate Mr Turner’s employment as CEO and Mr Anthony Turner’s employment as Chief Operating Officer, and to appoint Mr Rohan Meyer as CEO. On the same day, letters of termination were sent to Mr Turner and Mr Anthony Turner.

60. [77]

    Also on 6 May 2025, Ms Richards and Ms Hooker made an offer to purchase Mr Turner’s and Turnercorp’s shares in BG Webb for a cash amount of $30m. The offer letter noted that Mr Turner’s offer in November 2024 of $47.344m for his aunts’ 60% interest implied a valuation of $13.44m for the 17.5% interest held by himself and Turnercorp, and that the cash offer of $30m represented a 223% premium to that valuation. Mr Turner responded by stating that Ms Richards and Ms Hooker had gone “rogue” and had “lost control of the RGT [RG Trust]” (this being, apparently, a reference to the removal of Boyded and appointment of Heartland One).

61. [78]

    On 7 May 2025, Heartland Group passed resolutions removing Mr Turner as a director of Heartland Blacktown and Heartland Penrith, and appointing Ms Hooker as a director of each of those entities.

62. [79]

    On 8 May 2025, the Plaintiffs commenced this proceeding seeking, inter alia, declarations that Heartland One had not been validly appointed as trustee of the RG Trust and that Boyded remained the trustee, and that Mr Turner had been validly removed as CEO.

63. [80]

    On 15 May 2025, a meeting of Heartland Group was held, at which resolutions were passed removing Mr Turner as a director of HMG Parts, Rossfield Nominees and T S Management, and appointing Ms Hooker as a director of each of those entities.

64. [81]

    On 29 May 2025, Heartland One, Mr Turner and Mr Anthony Turner gave an undertaking to the Court, pending further order, not to do, or to resolve or determine to do, the following:

65. [82]

    On 16 June 2025, Mr Turner, Turnercorp and Heartland One brought the Cross-Claim against Ms Richards, Ms Hooker and entities in the Heartland Motors Group, seeking, inter alia, damages for breach of Mr Turner’s employment contract and relief for alleged oppressive conduct.

Witnesses – Credit

1. [83]

   Each of Ms Richards, Ms Hooker, Mr Turner and Mr Anthony Turner gave evidence, and each was cross-examined.

2. [84]

   The cross-examination of each of Ms Richards and Mr Turner extended over several days.

3. [85]

   The Defendants submitted that Ms Richards had a poor memory, which “can be conceived of in two ways”, namely:

4. [86]

   Similarly, the Defendants submitted that Ms Hooker had a poor memory, and that she had a “pre-determination to answer questions on a topic a particular way, regardless of what documents were going to be shown to her”.

5. [87]

   It is not surprising, in circumstances where the events at issue extend back more than eight years and concern a wide range of dealings and transactions during that period, that each of Ms Richards and Ms Hooker had a limited ability to recall the detail of specific events, or the specific order in which events occurred, or their state of mind at particular points in time.

6. [88]

   Further, in circumstances where the main participants in these events have been in dispute for a long time, including various court proceedings over the past few years, their recollections will be, consciously or unconsciously, affected by the entrenched views which each holds regarding the merit of their own position. For example, Ms Richards acknowledged, in cross-examination, that as a result of her dealings and disputes with Mr Turner over the past eight years, her mind was “poisoned” against him.

7. [89]

   In Watson v Foxman (1995) 49 NSWLR 315 at 319, McLelland CJ in Eq made the following often-quoted observations regarding the fallibility of human memory, particularly when disputes intervene:

8. [90]

   In Jeffreys v Sheer [2025] NSWCA 31 at [36], Adamson JA (with whom Mitchelmore JA and Basten AJA agreed) quoted with approval the following observations by Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd’s Rep. 403 at 431:

9. [91]

   Those matters underline the importance of the Court reasoning to its conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31] per Gleeson CJ, Gummow and Kirby JJ. This does not eliminate the established principles about witness credibility, but it tends to reduce the occasions where those principles are seen as critical: ibid.

10. [92]

    While oral testimony needs to be carefully assessed in light of the objective contemporaneous evidence, particularly when given by a party to litigation many years after the events, such testimony can provide important context for understanding particular documents and their significance. In ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24 at [28], Bell P (as his Honour then was) (with whom Bathurst CJ and Leeming JA agreed) observed as follows:

11. [93]

    In addition to advancing the submissions set out above regarding Ms Richards’ memory, the Defendants submitted that Ms Richards is “someone who is not prepared to be honest when it comes to her intention to sell”, including “in her evidence in this case”. This submission was advanced in the context of submissions made by the Defendants regarding a strategy allegedly pursued by Ms Richards, which was said to involve terminating Mr Turner’s employment in order to weaken him and put pressure on him to sell. I address this issue below. In considering this issue, and in determining Ms Richards’ state of mind at various points in time, I have been guided primarily by the objective documentary evidence, rather than her oral evidence regarding her intentions at particular points in time. That is not because I have formed the view that her evidence on those matters was dishonest. Rather, it is because such oral evidence, particularly in the context of an acrimonious dispute spanning an extended period of time, is inherently unreliable, to be treated with caution, and to be carefully assessed in the light of other available evidence. Similar observations may be made regarding the evidence of Ms Hooker and Mr Anthony Turner regarding their respective states of mind at various points in time.

12. [94]

    In the case of Mr Kieran Turner, the Plaintiffs went further and made a number of submissions to the effect that his evidence was not merely unreliable, but contained “deliberate fabrications”.

13. [95]

    I have determined that Mr Turner’s evidence is untruthful in a number of specific respects, which are identified when resolving the various factual disputes that are addressed below.

14. [96]

    Further, I formed the view, over the course of Mr Turner’s extensive cross-examination, that he was at times, and particularly when presented with matters which were inconsistent with his account, evasive and reluctant to make concessions. In particular, there were various instances, which are addressed below, where Mr Turner claimed to be able to recall events that assisted his case with a remarkable degree of specificity (even as to matters which had occurred more than eight years ago), but claimed a complete lack of any recollection about matters which cast doubt upon his account (including actions which he had taken in the days or weeks before he gave evidence).

15. [97]

    Mr Turner deposed, in his 9 July 2025 affidavit, that his ability to put on evidence in support of his Cross-Claim had been hampered by the fact that, in early May 2025, access to his Heartland email account “was disabled without notice”. In response, the Plaintiffs filed affidavit evidence establishing that Mr Turner had, at around the time of his termination, sought to delete the entire content of his email inbox (which was able to be substantially recovered from an earlier backup). There was also evidence which suggested that Mr Turner and Mr Anthony Turner had co-ordinated the deletion of their emails at around this time. Specifically, on 7 May 2025, Mr Anthony Turner sent his brother the following text message: “Shall we tomorrow delete all our emails from the server and save them on a usb?” When taken to this message, Mr Turner claimed to have no recollection of it, or of discussing the deletion of emails with his brother, or of copying his emails on a USB, or of whether he has in fact had access to a copy of his emails since 8 May 2025. (In that regard, the Plaintiffs referred, in their closing submissions, to various emails from Mr Turner’s Heartland email address which were exhibited to his affidavit evidence, and which could only have been obtained by his having access to a copy of those emails.)

16. [98]

    I have not, however, made a global assessment of Mr Turner’s credibility, or made any findings on the basis of any such global assessment. As Basten JA observed in Sangha v Baxter [2009] NSWCA 78 at [155]-[156] (Handley AJA agreeing), there “are risks in making global findings about credibility of any particular witness”:

17. [99]

    Instead, I have, in the light of the findings which I have made about the truthfulness or credibility of certain aspects of Mr Turner’s evidence, approached his evidence with caution when determining the specific factual issues that arise in the proceeding, and have evaluated such evidence in light of the contemporaneous documents, the objectively established facts, the apparent logic of events, the existence and nature of corroborative evidence, and the effect of the evidence as a whole.

18. [100]

    Finally, in deciding whether I am satisfied that the Plaintiffs and the Cross-Claimants have established their respective claims on the balance of probabilities, I have taken into account the nature of the cause of action, the nature of the subject matter of the proceeding, and the gravity of the matters alleged: Evidence Act 1995 (NSW), s 140(2); Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J; [1938] HCA 34; and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450 per Mason CJ, Brennan, Deane and Gaudron JJ; [1992] HCA 66.

Overview of Issues

1. [101]

   The Plaintiffs seek declarations that Mr Turner was not validly appointed as Appointor of the RG Trust; that Mr Anthony Turner was not validly appointed as Supervisor of the RG Trust; that Heartland One was not validly appointed as trustee of the RG Trust; and that Boyded is and remains the trustee of the RG Trust. The Plaintiffs also seek a final injunction restraining the Defendants from dealing, or purporting to deal, with the property of the RG Trust.

2. [102]

   The Cross-Claimants seek an order compelling Boyded to transfer legal title to the property of the RG Trust to Heartland One, to deliver all books and records relating to the RG Trust to Heartland One, and to assign or novate all contracts relating to the RG Trust in favour of Heartland One.

3. [103]

   The Defendants/Cross-Claimants contend that the following sequence of events resulted in Boyded being removed, and Heartland One being appointed, as trustee of the RG Trust.

4. [104]

   First, on 1 May 2017:

   1. (1)

      the directors of Boyded (Mr Turner and Ms Richards) met and resolved:

   2. (2)

      immediately following this meeting, and in accordance with this authority, the Appointor Deed was executed and Mr Turner was appointed as Appointor of the RG Trust.

5. [105]

   Secondly, on 15 September 2024, Mr Turner exercised his powers as Appointor to appoint Mr Anthony Turner as Supervisor of the RG Trust, this appointment being effected by a “Deed of Appointment of Supervisor” that was signed by each of them (the Supervisor Deed).

6. [106]

   Thirdly, on 30 April 2025, Mr Anthony Turner exercised his powers as Supervisor of the RG Trust to remove Boyded and to appoint Heartland One as trustee of the RG Trust, this being effected by a “Deed of Appointment and Variation” (Trustee Deed). The Trustee Deed was signed by Mr Anthony Turner as Supervisor and by Mr Turner on behalf of Heartland One.

7. [107]

   The Plaintiffs submitted that each of those three steps was invalid and of no effect. In particular, the Plaintiffs submitted that:

   1. (1)

      the directors of Boyded did not resolve to approve either the entry into the Appointor Deed or the appointment of Mr Turner as Appointor, and his purported appointment was therefore invalid and of no effect;

   2. (2)

      even if the directors of Boyded did pass a resolution to that effect, the Appointor Deed was outside the power of amendment in the RG Trust Deed and, therefore, the amendment was invalid and of no effect;

   3. (3)

      by reason that Mr Turner’s appointment as Appointor was invalid and of no effect, his purported exercise of his power as Appointor to appoint Mr Anthony Turner as Supervisor was invalid and of no effect, and therefore Mr Anthony Turner’s purported exercise of his power as Supervisor to remove and replace the trustee was invalid and of no effect;

   4. (4)

      even if Mr Turner’s appointment as Appointor was valid, his purported appointment of Mr Anthony Turner as Supervisor was invalid and of no effect because Mr Turner exercised his powers as Appointor for an improper purpose; and

   5. (5)

      even if Mr Anthony Turner’s appointment as Supervisor was valid, his purported removal of Boyded and appointment of Heartland One as trustee of the RG Trust was invalid and no effect because:

8. [108]

   In response to the first of these issues, the Defendants/Cross-Claimants submitted that, even if the entry into the Appointment Deed and the appointment of Mr Turner as Appointor had been approved only by Mr Turner (rather than by each of Mr Turner and Ms Richards), this was a “procedural irregularity”, and the Court should exercise its discretion to declare this approval to be “not invalid” pursuant to s 1322 of the Act.

9. [109]

   I address each of these issues below.

Did the directors of Boyded pass the resolutions in the 1 May 2017 minutes?

1. [110]

   The RG Trust was established in March 1980 by the RG Trust Deed. The General Beneficiaries of the RG Trust include, relevantly, the children and grandchildren of the late Mr Webb.

2. [111]

   Mr Turner estimates, in his affidavit evidence, that the shares and units held by the RG Trust are worth approximately $26.5m. The financial statements of the RG Trust as at 30 June 2023 record “Land and buildings at cost” in the amount of $43.576m. (I do not intend, by referring to those matters, to make any finding regarding the current value of the RG Trust’s assets, but only to indicate that those assets are very substantial and appear to be worth in the tens of millions of dollars.)

3. [112]

   The real property owned by the RG Trust is, for the most part, leased back to various Operating Entities pursuant to informal leases and used for the operation of the car dealership business.

4. [113]

   Boyded was appointed as a trustee of the RG Trust on 15 December 1992 and became sole trustee on 3 July 1994. It is a wholly owned subsidiary of Heartland Group, and its ultimate holding company is BG Webb.

5. [114]

   At all material times up until 5 May 2025, the directors of Boyded were Mr Turner and Ms Richards. On that date, Mr Turner was removed and Ms Hooker was appointed as a director of Boyded.

6. [115]

   Mr Turner deposed that, during the period in which he and Ms Richards were directors, Boyded generally resolved that the annual income of the RG Trust was paid either to family members in a manner proportionate with their respective shareholdings in BG Webb, or to companies within the Heartland Motors Group. However, as addressed below, there was a departure from this usual course with respect to the distribution of the proceeds of the sale of two properties, which were located in Parramatta and Lakemba.

7. [116]

   In around 2015, Mr Turner was responsible, as CEO of the Heartland Motors Group, for negotiating the sale of land owned by the RG Trust at Church Street in Parramatta, which had been the site of the Boyded Holden dealership (the Parramatta Property). This property was sold to a group of companies known as the “Gateway Group” for $150m. The sale proceeds were to be received in two tranches of $50m and $100m respectively. The first instalment was paid in 2016, and the second instalment was paid in 2017.

8. [117]

   It was common ground that there was a discussion between Ms Richards and Mr Turner in which it was agreed that a distribution should be made from the proceeds of the sale of the Parramatta Property to the eight grandchildren of Mr Bernard Webb and Ms Dulcie Webb (that is, the four children of Ms Turner, the two children of Ms Richards, and the two children of Ms Hooker).

9. [118]

   However, there was a dispute as to whether this agreement:

   1. (1)

      related only to the first $50m tranche of the sale proceeds (as Ms Richards contended) or was an agreement in relation to the full $150m (as Mr Turner contended);

   2. (2)

      was an agreement:

   3. (3)

      extended to the distribution of the proceeds of the sale of another property owned by the RG Trust located at Canterbury Road in Lakemba, New South Wales (the Lakemba Property), which was sold for around $18.35m.

10. [119]

    It is unnecessary to determine this issue. There are no claims advanced in this proceeding concerning the distribution of the sale proceeds of either the Parramatta Property or the Lakemba Property.

11. [120]

    The relevance of this dispute for present purposes is that the parties’ hostile exchanges in early 2017 regarding these matters provide important context for understanding their subsequent dealings in relation to the RG Trust and the Heartland Motors Group more generally. For this reason, a number of the communications regarding these matters are set out below.

12. [121]

    On 29 January 2016, Mr Turner sent an email to the Group’s external accountant, Mr Jepsen, copied to Mr Anthony Turner. In this email, Mr Turner stated that: “Its been agreed to distribute the $150m Parramatta settlement direct to the 8 gran[d]kids separate to my 10% as per the attached calculation which [Mr Jepsen] set up for me some time ago”. The attached spreadsheet set out the distributions which were to be made from the $150m sale proceeds in accordance with this “agreement”. Neither Ms Richards nor Ms Hooker was copied on this email.

13. [122]

    In around February 2017, Mr Anthony Turner telephoned Ms Richards to ask her about the possibility of borrowing money from her. During the course of this telephone call, Mr Anthony Turner told Ms Richards that his brother had received an extra 10% of the sale proceeds of the Parramatta Property. Subsequently, Mr Anthony Turner’s wife showed Ms Richards a copy of the spreadsheet showing the manner in which the sale proceeds of the Parramatta Property were distributed. The spreadsheet also showed distributions in respect of the sale proceeds of the Lakemba Property.

14. [123]

    On 2 March 2017, Ms Richards attended a meeting with Mr Jepsen, Ms Turner and Ms Webb. At this meeting, Mr Jepsen told Ms Richards that: “Lakemba was piggybacked off the Parramatta sale and the proceeds were distributed the same way”. Following the discussion with Mr Jepsen, Ms Richards informed Ms Hooker of these matters.

15. [124]

    On the following day, 3 March 2017, Ms Richards sent a text message to Mr Turner and Ms Hooker, stating as follows (emphasis added):

16. [125]

    On the same day, Mr Turner replied as follows (emphasis added):

17. [126]

    Later on the same day, Ms Hooker sent the following response by text message to Mr Turner and Ms Richards:

18. [127]

    Shortly afterwards, Mr Turner replied as follows (emphasis added):

19. [128]

    Mr Turner subsequently said to Ms Richards words to the effect that “the split can’t be changed and the proceeds for Stage 2 [of the sale of the Parramatta Property] have to be distributed in the same way as the first lot”.

20. [129]

    There are, in evidence, minutes of meetings of Boyded’s board dated, respectively, 30 June 2016 and 30 June 2017. Each is signed by Mr Turner, and each states that Ms Richards attended the relevant meeting. According to these minutes, the board of Boyded (Ms Richards and Mr Turner) resolved to approve the distribution of all of the net income of the RG Trust for, respectively, 30 June 2016 and 30 June 2017, by distributing 9/89ths to Turnercorp, and 10/89ths to each of the eight grandchildren (including Mr Turner).

21. [130]

    Ms Richards deposed that she was overseas at the time when these meetings are recorded to have taken place and that she did not attend any meeting of Boyded on either of those dates. There was no evidence that the meetings referred to in those minutes occurred on any other date.

22. [131]

    Ms Richards did, however, subsequently sign financial statements of the RG Trust recording distributions which appear to relate to the sale proceeds of the Parramatta Property. In particular, she signed the financial statements of the RG Trust for the financial year ended 30 June 2016 on 22 December 2016, and those for the financial year ended 30 June 2017 on 15 December 2017. When taken to this material in cross-examination, Ms Richards stated that she signed the financial statements on the recommendation of management, without the trust income distribution being pointed out to her. (The financial statements do not refer to any distribution being made to Turnercorp, but do refer to a distribution being made to the Turner Family Trust. Mr Turner gave evidence that Turnercorp accepted distributions from the RG Trust in its capacity as trustee of the Turner Family Trust.)

23. [132]

    On 20 March 2017, just over a fortnight after the exchange of messages regarding distributions from the RG Trust which is set out at paragraphs [124]-[127] above, Mr Turner sent an email to Mr Dennis Bluth of HWLE, stating that he had been informed that the Australia and New Zealand Banking Group (ANZ) had “an issue” with the fact that the Appointor of the RG Trust was a deregistered company. Mr Turner stated that the Appointor of the RG Trust was “an important role” and asked for a quote “to update this deed to nominate me as the Appoint[o]r”. He also made the following further request: “Can you also please quote to update our whole group for any deeds, constitutions, articles of association etc that are inadequate, old, lost, unsigned or signed by dead people? We need to clean these loop holes up.” In addition, Mr Turner made the following request to Mr Neal Duggin and Ms Amanda Kragh (who were copied on the email): “Neal / Amanda – do you known any other companies, trusts etc that have such inadequate documentation?”. At this time, Mr Duggin was the Company Secretary and Chief Financial Officer of various entities in the Heartland Motors Group, and Ms Kragh was the Administration Manager.

24. [133]

    On 23 March 2017, Mr Bluth forwarded to Mr Turner an email from another partner of HWLE, Mr David Clarke, regarding the Appointor for the RG Trust, which stated as follows:

25. [134]

    Around half an hour later, Mr Turner replied to Mr Bluth’s email, stating as follows:

26. [135]

    In response, Mr Bluth sent an email later that day, proposing a meeting with Mr Turner, Mr Duggin and Mr Clarke to “go through the corporate structure”.

27. [136]

    Around one month later, on 24 April 2017, Mr Clarke sent an email to Mr Turner, copied to Mr Bluth and Mr Duggin, attaching the draft Appointor Deed and a draft minute of Boyded. Mr Clarke stated that:

28. [137]

    Around ten minutes later, Mr Turner responded, stating as follows:

29. [138]

    On 26 April 2017, Mr Clarke sent an email to Mr Duggin, copied to Mr Bluth and Mr Turner, requesting a number of documents required by HWLE to undertake the audit requested by Mr Turner.

30. [139]

    The recitals to the Appointor Deed which HWLE sent to Mr Turner were as follows:

31. [140]

    Clause 3 of the Appointor Deed provided as follows:

32. [141]

    The draft minutes for a meeting of the directors of Boyded, which HWLE sent to Mr Turner on 24 April 2017, read as follows (the “1 May 2017” Minutes):

33. [142]

    There were, in evidence, three different versions of the “1 May 2017” Minutes which were signed by Mr Turner.

34. [143]

    In each of those three versions, Mr Turner has inserted, in his handwriting, the words:

    1. (1)

       “1 May 2017” alongside the “XXX” appearing next to “Date”;

    2. (2)

       “Kieran Turner” alongside “XXX (Chair)”; and

    3. (3)

       “Neal Duggin” alongside “In attendance: XXX (Mr/Mrs XXX) (in person)”.

35. [144]

    In two of those versions (but not the third), Mr Turner has inserted, in his handwriting, the words “Jo Richards” alongside “XXX (Mr/Mrs XXX) (by teleconference)”.

36. [145]

    I will address below the circumstances in which the two versions containing the references to “Jo Richards” were created.

37. [146]

    Mr Turner deposed that a meeting of the board of Boyded took place on 1 May 2017, at which he and Ms Richards passed the resolution recorded in the “1 May 2017” Minutes; that, immediately following this meeting, he filled in and signed the minutes (neglecting to add Ms Richards’ name) and executed the Appointor Deed; and that he placed these signed documents in the files kept at the Blacktown Office. He further deposed that, after he sent the signed documents to HWLE in July 2017, it was brought to his attention that he had omitted to record Ms Richards’ attendance, and that he amended the minutes at that time by adding her name.

38. [147]

    I will address below the details of Mr Turner’s account, which was the subject of extensive challenge in cross-examination.

39. [148]

    Neither Mr Duggin or Ms Richards had any recollection of attending any board meeting of Boyded, on around 1 May 2017 or at any other time, at which the subject matter of the “1 May 2017” Minutes was discussed.

40. [149]

    Ms Richards gave unchallenged evidence that she had searched her email inbox for the period from 23 March 2017 to 30 September 2017 and had been unable to locate:

    1. (1)

       any email referring to, or attaching or containing any notice of, a board meeting of Boyded held on or around 1 May 2017; or

    2. (2)

       any email referring to, or attaching copies of, “the minutes of the supposed board meeting on 1 May 2017” or the Appointor Deed, or the notice signed by Mr Turner purporting to accept his appointment as Appointor.

41. [150]

    Mr Duggin acknowledged that his signature appears on the Appointor Deed, but deposed that he does not have any independent recollection of signing this document, including “how that came about, or any other discussion or circumstances surrounding my doing so”.

42. [151]

    On 12 May 2017, Mr Turner sent an email to Mr Clarke and Mr Duggin, copied to Mr Bluth, seeking an update on the status of his request for an audit of the corporate structure of the Heartland Motors Group. Over the course of the following week, Mr Turner and Mr Clarke exchanged a number of emails in respect of this audit.

43. [152]

    On 21 May 2017, Mr Clarke sent an email to Mr Turner, enclosing a diagram which summarised the details of the trustees, appointors and unitholders of the various entities within the Heartland Motors Group and requesting that Mr Turner “review this document and advise if any changes are required”. The attached document set out the following information in respect of the “Appointor” of the RG Trust:

44. [153]

    Mr Turner replied shortly afterwards, stating that he would review the document in detail on the following day, and asking:

45. [154]

    On the same day, Mr Clarke responded as follows:

46. [155]

    On 4 July 2017, HWLE issued an invoice to Mr Turner in relation to the audit of the Heartland Motors Group’s corporate structure. Mr Turner replied that he would pay the invoice, and asking for an update on this audit.

47. [156]

    On 5 July 2017 at 9:52am, Mr Clarke responded to Mr Turner’s email, enquiring whether Mr Turner wanted HWLE to update his address with the Australian Securities and Investments Commission (ASIC) in respect of the Operating Entities of which he was a director.

48. [157]

    At 10:18am, Mr Turner responded as follows:

49. [158]

    At 11:03am, Mr Clarke replied, stating that HWLE had undertaken ASIC searches and that Mr Duggin had confirmed that he was comfortable with the identities of the officeholders and shareholders of the Heartland Motors Group “and did not identify any that needed changing”. Mr Clarke added that:

50. [159]

    The “attached” document relating to the RG Trust, to which Mr Turner’s attention was directed, was a copy of the document referred to at paragraph [152] above, which stated that: “HWLE prepared draft documentation to replace the Appointor [of the RG Trust] with Kieran Turner. We are not certain whether this documentation has been put in place.”

51. [160]

    At 1:56pm, Mr Turner responded to Mr Clarke’s email as follows (emphasis added):

52. [161]

    At 2:05pm, on 5 July 2017, Mr Clarke responded to Mr Turner’s email, by inserting comments in red text (which are set out in bold and italics below):

53. [162]

    I will address below the significance of this exchange of messages on 5 July 2017 and, in particular, the issue of precisely what “still” needed to be done as at that date in respect of the “change” to “the appoint[o]r of RGT”.

54. [163]

    As set out in this email exchange, Mr Turner contemplated that there would be a meeting of the board of Boyded later in July 2017. As events transpired, no such meeting occurred. On 18 July 2017, Ms Richards sent a text message to Mr Turner, apologising for the late notice and stating that she “[c]an’t make [Board] meeting Friday having something done to my eye”. The following day, on 19 July 2017, Mr Turner informed Mr Duggin and Ms Kragh that the board meeting scheduled for 21 July 2017 had been “cancelled”.

55. [164]

    On 21 July 2017, Mr Turner sent an email to Mr Clarke, enclosing a scanned PDF file, and stating:

56. [165]

    The scanned PDF file comprised of three documents:

    1. (1)

       a copy of the “1 May 2017” Minutes, in which Mr Turner had inserted the date and the attendees as being Mr Turner and Mr Duggin (with no reference to Ms Richards);

    2. (2)

       a copy of the Appointor Deed signed by Mr Turner and Mr Duggin; and

    3. (3)

       a letter dated 1 May 2017 and signed by Mr Turner, accepting his appointment as Appointor (this being drafted in the terms proposed by Mr Clarke in his email of 24 April 2017: see paragraph [136] above).

57. [166]

    Moments later, Mr Turner sent the same scanned PDF file to Mr Greg Jepsen of Auswild & Co, who was the external accountant and auditor of the Heartland Motors Group.

58. [167]

    On 24 July 2017, Mr Clarke responded to Mr Turner’s email of 21 July 2017, stating as follows:

59. [168]

    Later that day, Mr Turner responded to Mr Clarke’s email, stating that his email of 21 July 2017 was an “FYI” and “for your files for future reference if necessary”.

60. [169]

    On 27 July 2017, Mr Turner flew to Biarritz, where he stayed for approximately 18 months.

61. [170]

    In closing submissions, Senior Counsel for the Defendants identified that the “factual issue to be determined is whether Joanne [Richards] participated in a telephone call with Kieran [Turner] and Mr [Duggin] on 1 May [2017]. It’s that simple.”

62. [171]

    More specifically, as stated in the Defendants’ written closing submissions, the issue is:

63. [172]

    The only direct evidence that Ms Richards participated in this meeting is as follows:

    1. (1)

       the two versions of the “1 May 2017” Minutes in which Mr Turner has, by hand, inserted “Jo Richards” as attending by telephone;

    2. (2)

       the entry shown in a photograph which Mr Turner took of his 2017 diary, that refers to a telephone call with Ms Richards and Mr Duggin on 1 May 2017; and

    3. (3)

       Mr Turner’s affidavit evidence of this meeting.

64. [173]

    I deal with each below.

65. [174]

    Mr Turner gave the following explanation in his affidavit as to how Ms Richards’ name came to be added to the “1 May 2017” Minutes:

66. [175]

    There are a number of difficulties with Mr Turner’s account.

67. [176]

    First, the time records of HWLE do not contain a reference to any such telephone call with Mr Turner between 21 and 31 July 2017.

68. [177]

    Secondly, HWLE was issued with a subpoena to produce any file note evidencing or recording any such telephone call, and nothing was produced.

69. [178]

    Thirdly, on 24 July 2017, Mr Turner stated to HWLE that the “1 May 2017” Minutes were sent “for your files for future reference if necessary” (see paragraph [168] above). If HWLE had raised with Mr Turner, shortly after receipt of those minutes, a concern that the minutes did not record Ms Richards as attending the meeting, and if Mr Turner had immediately addressed this issue by adding Ms Richards’ name, it would be expected that he would have sent a copy of the amended minutes to HWLE for their “files” and for “future reference”. He did not, however, do so at that time, or at any time thereafter.

70. [179]

    Fourthly, if HWLE had contacted Mr Turner to raise an issue about the omission in the “1 May 2017” Minutes of any reference to Ms Richards, and had advised that “the minutes which [Mr Turner] had signed would need to be amended to include Joanne's name as an attendee”, it would be expected that HWLE would have requested a copy of the corrected minutes (particularly since, on 5 July 2017, HWLE had expressly asked Mr Turner to “send copies of the final signed minutes to us for our records”: see paragraph [161] above). However, there is no evidence that HWLE made such a request, at this time or any time thereafter.

71. [180]

    Fifthly, if HWLE had advised that the corrected minutes “should be put with the other records of meetings of Boyded Industries”, it would be expected that Mr Turner, after correcting the minute, would have done so. The unchallenged evidence of Mr Duggin is that, during his time as Company Secretary, minutes and resolutions “were kept in filing cabinets and cardboard boxes in a cubicle adjacent to the board room at the [Blacktown] Office”. In that regard, Mr Turner deposed that he could recall placing the signed documents “in a manilla folder” that was kept in his office at the Blacktown Office. No file meeting the description of this “manilla folder” has been found, despite extensive searches of the Blacktown Office by the Plaintiffs’ solicitors.

72. [181]

    Sixthly, Mr Turner’s account does not explain why there are two copies of the "1 May 2017" Minutes which bear Ms Richards’ name, in Mr Turner’s handwriting. If he had created a version in late July 2017, which he kept in an identified place in the Group’s records, there would have been no need for him to create a further copy at some other point in time.

73. [182]

    Finally, no original signed copy of the amended “1 May 2017” Minutes has been located. There are two scanned copies with Ms Richards’ name which date from 2024. As addressed below, when regard is had to the events surrounding the creation of those scanned copies, it is likely that the two versions of the minutes which were scanned in 2024 were created around that date.

74. [183]

    On 13 March 2024, Mr Turner sent a text message to Ms Kragh, attaching a photograph of the “1 May 2017” Minutes, which included the handwritten names of only himself and Mr Duggin as the attendees. Mr Turner asked Ms Kragh: “Did we invite Jo to this meeting?”

75. [184]

    This led to the following exchange of text messages (emphasis added):

76. [185]

    Ms Kragh’s statement – “Just emailed what I could find” – appears to be a reference to an email which she sent to Mr Turner on the same date (13 March 2024) with the subject line “emails re Boyded around 01.05”, and which led to the following email exchange on that afternoon:

77. [186]

    This, in turn, appears to have led to the following further text messages on the same date:

78. [187]

    The terms of Mr Turner’s question – “Did we invite Jo to this meeting?” – are inconsistent with any recollection on Mr Turner’s part that Ms Richards had not only been invited to, but had attended, the 1 May 2017 board meeting. In cross-examination, he sought to explain away this message by focussing on the word “invite”, and asserting that he was looking for evidence of an “invitation” at this point in time:

79. [188]

    I do not accept Mr Turner’s explanation that he was, in early 2024, looking for evidence that Ms Richards had been invited to the “1 May 2017” meeting, rather than looking for evidence of her attendance.

80. [189]

    First, it is inconsistent with the text of Mr Turner’s message to Ms Kragh, in which he explained why he was asking whether Ms Richards was invited: “The deed mentions a director by teleconference so I’m hoping she was invited and she agreed to attend by phone” (emphasis added). Mr Turner accepted in cross-examination that the reference to the “deed” in this message was a reference to the “1 May 2017” Minutes which he had photographed and sent to Ms Kragh. Mr Turner was not only “hoping” that Ms Richards was “invited”, but was also “hoping” that “she agreed to attend by phone”. He was plainly concerned that the copy of the “1 May 2017” Minutes which he sent to Ms Kragh did not refer to Ms Richards as having attended, and he was unsure whether or not she had agreed to attend, and had attended, this meeting by telephone.

81. [190]

    Secondly, it is difficult to see why Mr Turner would have needed, in March 2024, to find evidence of an invitation if he had, in the Group’s records, a copy of a minute recording Ms Richards’ attendance, which he had signed, and if he had a clear recollection that she had, in fact, attended the meeting.

82. [191]

    Thirdly, if Mr Turner had, as at March 2024, a copy of the “1 May 2017” Minutes of the meeting with Ms Richards’ name, there is no explanation as to why he attached a copy of the minute which omitted her name (or how he came to take a photograph of the version without her name). According to his affidavit evidence, he created the version of the “1 May 2017” Minutes which did not include her name on 1 May 2017 and put it in a specific folder on that date; and then took it from that folder in July 2017, added Ms Richards’ name, and put it back in that same folder. If that was the case, and he was making enquiries about the 1 May 2017 meeting in March 2024, it is likely he would have opened the relevant folder and obtained a copy of the “1 May 2017” Minutes with Ms Richards’ name, rather than finding (from some unidentified source) a copy of the unaltered minute, taking a photograph of that document, and asking if Ms Richards was invited.

83. [192]

    When presented with these difficulties, Mr Turner could not offer any explanation but instead, as set out above (and as occurred frequently during his cross-examination), responded by saying that he had no recollection as to these matters.

84. [193]

    On 23 May 2024, Mr Turner gave notices convening board meetings of Boyded and other Operating Entities to consider resolutions to remove Ms Richards as a director of those entities. On 30 May 2024, Mr Turner purported to pass those resolutions with the support of Mr Anthony Turner.

85. [194]

    In-between those steps, Mr Turner sent himself, on 28 May 2024, a scanned copy of the “1 May 2017” Minutes, in which he had inserted, in his handwriting, “Jo Richards” as having been in attendance by teleconference.

86. [195]

    On 3 June 2024, Ms Richards and Ms Hooker commenced the 2024 Directors Proceeding, seeking declarations as to the identity of the current directors of the entities in the Heartland Motors Group, including Boyded, and challenging the validity of the purported resolutions removing Ms Richards as a director of various entities, including Boyded.

87. [196]

    On 16 June 2024, Mr Turner sent himself another scanned copy of the “1 May 2017” Minutes in which he had inserted, in his handwriting, “Jo Richards”.

88. [197]

    Whereas the handwriting in respect of the two “Jo Richards” entries is slightly different in the two versions of the “1 May 2017” Minutes which include her name, the other handwritten entries are identical in all three versions of this document:

89. [198]

    This correspondence suggests that the two “Jo Richards” versions were created from the version without her name, which was sent to HWLE on 21 July 2017.

90. [199]

    On 16 June 2024, shortly after scanning and sending the second “Jo Richards” version of the minutes to himself, Mr Turner forwarded a copy to his solicitors, McCabes.

91. [200]

    On the following day, 17 June 2024, Mr Turner caused Heartland One to be incorporated. At this time, it was named Heartland Two Pty Ltd and Mr Anthony Turner was a director. Mr Anthony Turner accepted, in cross-examination, that the purpose for which this entity was incorporated was to act as a replacement trustee for the RG Trust.

92. [201]

    Mr Turner could not offer any explanation, in cross-examination, as to how there came to be, in mid-2024, two different scanned versions of the “1 May 2017” Minutes in which he had inserted Ms Richards’ name. He appeared at one stage to suggest that he must have wanted to create a second copy of this document for his own records. However, he could not offer any reason as to why he needed to do so, or why, if there was such a need, he did not simply photocopy the existing hard copy, rather than creating a second handwritten version. When pressed on these matters in cross-examination, Mr Turner stated that he could not recall the circumstances in which these copies were made:

93. [202]

    Similarly, when pressed on his reasons for sending a copy of the scanned minutes to his solicitors on 16 June 2024, shortly after the commencement of the 2024 Directors Proceeding and on the day before the incorporation of Heartland One, Mr Turner repeatedly answered that he had no recollection:

94. [203]

    It is implausible that, in circumstances where Mr Turner had, in 2024, shown great concern to locate any evidence that might prove that Ms Richards attended a meeting of the board of Boyded on 1 May 2017, he would have had no recollection as to the means by which he came to have two different versions of the minutes with her name in May and June 2024, or why he sent those minutes to his solicitors, in the midst of litigation with his aunts over the control of Boyded.

95. [204]

    Finally, it is notable that, although Mr Turner sought evidence or confirmation of Ms Richards’ attendance at the 1 May 2017 meeting from Ms Kragh, from Mr Duggin’s records, from HWLE’s emails, and from Mr Jepsen and Ms Payne of Auswild & Co, he did not make any enquiry of Ms Richards herself. There was no explanation for his failure to do so. It must have been a deliberate omission on his part. The likely reason for his failure to do so is that he did not wish to alert Ms Richards to the fact that there was no evidence of her attendance at a meeting of the board of Boyded on 1 May 2017 which had purportedly approved his appointment as Appointor, or to the fact that he was intending to exercise his powers as Appointor to appoint Mr Anthony Turner as Supervisor of the RG Trust.

96. [205]

    In closing address, Senior Counsel for Mr Turner accepted that, having regard to the fact that the scanned versions of the “1 May 2017” Minutes with Ms Richards’ name were created shortly after Mr Turner was seeking to find documentary proof for her attendance at a meeting of board of Boyded on that date, the Court “might accept [the Plaintiffs’] submissions that the documents first had Joanne’s name added to it at that time”.

97. [206]

    Having regard to the chronology set out above, and the terms of Mr Turner’s messages with Ms Kragh in March 2024, I find, that:

    1. (1)

       Mr Turner did not, prior to May 2024, have any copy of the “1 May 2017” Minutes which referred to Ms Richards as having attended the purported 1 May 2017 board meeting, and could not otherwise locate any evidence to substantiate his “hope” that she had been present;

    2. (2)

       he created the two versions of the “1 May 2017” Minutes which include “Jo Richards” as having attended by teleconference at around the time that he scanned those documents in May and June 2024, in circumstances where he did not know whether or not Ms Richards had in fact attended;

    3. (3)

       he did so in order to fabricate documentary evidence to support a contention that the board of Boyded (including Ms Richards) had approved his appointment as Appointor of the RG Trust; and

    4. (4)

       his evidence that he could recall amending the “1 May 2017” Minutes in July 2017 to add Ms Richards’ name, following a telephone conversation with HWLE, was untruthful.

98. [207]

    In his 7 August 2025 affidavit, Mr Turner included a number of photographs which he stated were images of his “diary for the period of 24 April 2017 to 14 May 2017”. The first handwritten entry for 1 May 2017 was “Ring Jo Re Appointer, with Nd.” Mr Turner deposed that he had written this “action item” in his diary “[p]rior to 1 May 2017”.

99. [208]

    The photograph showed that this item had been ticked. Mr Turner deposed that it was his practice to tick an appointment or task in his diary to signify once it had been completed.

100. [209]

     Accordingly, the photograph was, according to Mr Turner, contemporaneous documentary evidence that Mr Turner had scheduled a telephone call with Ms Richards (“Jo”) and Mr Duggin (“Nd”) regarding the change of “Appoint[o]r” on 1 May 2017, and that this telephone call had taken place.

101. [210]

     Mr Turner deposed, in a further affidavit of 5 September 2025, that he had taken these photographs of his diary on 1 June 2025.

102. [211]

     It follows that, on Mr Turner’s evidence, the photographs of these pages from the diary were taken several days before the Statement of Claim was served by the Plaintiffs (on 5 June 2025), and therefore before the Plaintiffs had advanced any allegation that the “1 May 2017” Minutes “did not record proceedings at any actual meeting of Kieran and ‘Neal Duggin’ that occurred on 1 May 2017, or at all”.

103. [212]

     Mr Turner could not, in cross-examination, offer any explanation as to why, prior to any such allegation being raised, he had decided to take out a diary from eight years earlier and take a number of photographs (including of the entries in his diary for 1 May 2017). He claimed to have no recollection of the circumstances surrounding the taking of those photographs:

104. [213]

     Mr Turner also claimed to have no recollection of what he did with his diary after he took the photographs on 1 June 2025, or after he took some further photographs on 5 August 2025.

105. [214]

     On 21 August 2025, the Plaintiffs served a Notice to Produce for Inspection on Mr Turner’s solicitors, seeking, inter alia:

106. [215]

     In cross-examination, Mr Turner initially claimed that he had no recollection of being told, by his solicitors, that they had received a Notice to Produce which required him to produce his diary. However, he was then taken to his 5 September 2025 affidavit, in which he had expressly referred to the Notice to Produce. He then gave the following evidence:

107. [216]

     On 3 September 2025, the matter was listed for argument before me regarding whether the Notice to Produce should be set aside. There was no reference, in the course of that argument, to any inability to locate the diary. It was only after I had indicated that I would not set aside the part of the Notice to Produce that required production of the diary that the Court was informed that Mr Turner was unable to locate his diary.

108. [217]

     In order to explain this turn of events, the Defendants filed an affidavit from Ms Brigid Bargwanna, which was sworn on 5 September 2025. Ms Bargwanna is Mr Turner’s mother-in-law.

109. [218]

     Ms Bargwanna deposed that, in either the week starting 11 or 18 August 2025, she had cleaned the house of her daughter and Mr Turner, as she typically did; that this had involved “throwing out what appeared to be rubbish”; and that, in the course of doing so, she had picked up “a black diary” which had been left on the kitchen bench and threw it into the recycling bin without first consulting with anyone whether she should do so.

110. [219]

     Although the Notice to Produce which was served on 21 August 2025 (and was likely forwarded by Mr Turner’s solicitors to him on that date) required production of his diary by 28 August 2025, Mr Turner deposed that he did not take any steps to locate the diary, or make any enquiries as to what had happened to it, until 2 September 2025 (which happened to be several days after the recycling was collected on 27 August 2025).

111. [220]

     When Ms Bargwanna was, in cross-examination, challenged as to why she concluded, without asking anyone, that a diary on a kitchen bench was rubbish, Ms Bargwanna stated that the kitchen bench was, in effect, where the members of the household left paper which they wanted to be recycled. (This appears to be inconsistent with Mr Turner’s own evidence, in his 5 September 2025 affidavit, that he regularly leaves his briefcase “and other papers” – apparently a reference to papers on which he is working, or which he wishes to retain – “on the kitchen bench when I come home at the end of the day”.)

112. [221]

     Assuming the correctness of Ms Bargwanna’s evidence regarding this household practice, there was no explanation as to why Mr Turner, having kept his 2017 diary safely for eight years and having identified that it contained critical evidence for this proceeding, left the diary lying on his kitchen bench, when he was (presumably) aware that the household practice was that any paper left there was regularly gathered up and thrown away. Mr Turner deposed that he had “no memory of leaving my 2017 Diary on the kitchen bench” and that due to his “movements, level of activity and stress”, he “must have put it down there at some point and then neglected to put it away”. It would be expected that, if his stress were due to the issues in the proceeding, he would have taken particular care to preserve important evidence in the proceedings which was in his possession, instead of leaving it, for some unidentified period (which appears to have been at least some days), in a place where the members of the household put paper for recycling.

113. [222]

     Further, there is evidence that suggests that Ms Bargwanna may have discussed her evidence with Mr Turner prior to swearing her affidavit. At 8.17am on 5 September 2025, Mr Turner’s wife had sent a message to Mr Turner stating as follows: “She hasn’t answered. I’ll text her and say we need to speak tomorrow and not to speak to them till she’s spoken to us.” It is likely that this is a reference to Mr Turner and his wife needing to speak to Ms Bargwanna, prior to her speaking to the solicitors for the purpose of giving evidence in the proceeding. Mr Turner responded by “liking” his wife’s text message.

114. [223]

     These messages were deleted by Mr Turner before he produced his mobile phone for inspection. When asked about the deletion of these messages, Mr Turner responded “I don’t recall”, despite the messages having been sent only shortly before Mr Turner was cross-examined. Mr Turner sought to explain this lack of recollection by stating that “it’s been a bit of a whirlwind”.

115. [224]

     These messages give rise to a concern about the reliability of Ms Bargwanna’s evidence, particularly where there is evidence that Mr Turner has, in the past, communicated with Mr Anthony Turner regarding the content of his evidence and has proposed changes to that evidence, which were subsequently included in Mr Anthony Turner’s affidavit. In particular:

     1. (1)

        On 23 June 2022, Mr Turner asked his brother to send him his “memory” of two conversations with Ms Hooker in 2009 and 2012;

     2. (2)

        On the same day, Mr Anthony Turner responded, setting out his recollection of those conversations, which included the following statement attributed to Ms Hooker on Christmas Day, 2009:

     3. (3)

        Shortly afterwards, Mr Kieran Turner send an email back to his brother, asking him to “change” the recollection which he had set out, including the words which are marked in bold and underlining below.

     4. (4)

        On 26 June 2022, Mr Anthony Turner swore an affidavit in the 2022 Oppression Proceeding in which he attributed to Ms Hooker, in a conversation on Christmas Day, 2009, the words set out above, including the text added by his brother. When these matters were put to Mr Anthony Turner, and it was suggested to him that his brother had told him what he should say in his evidence, he responded, to a series of questions, that he could not recall.

116. [225]

     It is unnecessary to make any finding regarding the circumstances in which the diary came to be unavailable by the time of the hearing. In particular, I do not make any finding that this evidence was destroyed, or draw any inference from such a finding.

117. [226]

     Whatever the fate of the hard copy paper diary, the key issue for present purposes is whether there is an adequate basis for the Court to conclude that the entry in the photograph of the diary for 1 May 2017 – “Ring Jo Re Appointer, with Nd” – was written prior to, or around, 1 May 2017, as opposed to being added at some unknown time prior to 5 June 2025 (when the photographs were taken). The photograph itself is capable of proving only that the entry was in the paper diary as at the date that the photograph was taken. The sole evidence that the entry was written in the diary on around 1 May 2017 is Mr Turner’s affidavit evidence to this effect.

118. [227]

     I am unable to give this evidence any significant weight, having regard to my findings that, in 2024, Mr Turner fabricated two versions of the “1 May 2017” Minutes which included Ms Richards’ name, in circumstances where he was aware that there was otherwise no documentary evidence that she had been invited to or had attended any such meeting.

119. [228]

     Further, there is reason to doubt that Mr Turner had in his possession, prior to 2025, a copy of his 2017 diary which included an entry confirming that a meeting had been arranged with Ms Richards and Mr Duggin on 1 May 2017 to discuss the Appointor of the RG Trust, and that this meeting had occurred. In particular, if Mr Turner had such an entry in his 2017 diary as at early 2024, it is difficult to see why he was asking Ms Kragh to search Mr Duggin’s inbox to see if there was any evidence that Ms Richards had been invited to, and had attended, such a meeting.

120. [229]

     For those reasons, I have disregarded the entry for 1 May 2017 in the photograph of the 2017 diary.

121. [230]

     In an affidavit sworn on 7 August 2025, Mr Turner gave the following evidence:

122. [231]

     There are a number of difficulties with this evidence.

123. [232]

     First, it is inherently implausible that Mr Turner, who repeatedly stated his lack of recollection of matters relevant to these proceedings (including events concerning a critical piece of evidence – the diary – which occurred in the month before he was cross-examined), would have a detailed recollection of what was, on his evidence, a routine telephone call concerning the administration of the RG Trust, which occurred more than eight years earlier and which “only lasted about 5 or 10 minutes”. On his account, he was able to recall not only the substance of the matters said at this meeting, but could “recall leaning against Neal’s filing cabinet while Neal was speaking”, and could recall that “Neal was sitting at his desk and read out loud to Joanne over the phone by reference to the unsigned documents which had been printed out and were in front of him”. Further, he claimed to have an actual recollection not only of signing the minutes and the Appointor Deed immediately after the conclusion of this meeting in Mr Duggin’s presence, but of placing the signed documents “in a manilla folder in my office” (which has not been located, despite extensive searches of the Group’s records).

124. [233]

     Secondly, there are specific features of the account which are implausible.

125. [234]

     In particular, it is implausible that Ms Richards (who had, only a month or so earlier, been involved in an acrimonious argument with Mr Turner regarding distributions from the RG Trust) would, when presented with a proposal that Mr Turner be appointed as Appointor of the RG Trust, simply reply “ok”. Ms Richards deposed that she was, following the dispute about the sale proceeds from the Parramatta and Lakemba Properties, “wary and distrustful of the manner in which Kieran was dealing with dividends and distributions from the Trust” (as is shown by her message set out at paragraph [124] above), and that she therefore considered it “highly unlikely” that she “would have readily agreed, in the course of a brief conversation, to the taking of steps to give Kieran any further control over the Trust, at least without an opportunity to properly understand the nature and effect of anything that was being proposed”. That evidence is logical and accords with common sense. In that regard, Mr Duggin gave evidence that, in his experience, Ms Richards would usually, when presented with legal documents of this nature, request an opportunity to get advice before providing her consent. That evidence is supported by the numerous examples in evidence of Ms Richards seeking advice from her solicitors on materials provided to her as a director, or proposals put to her for her agreement.

126. [235]

     It is also implausible that, if Mr Turner had, immediately after a meeting with Ms Richards and Duggin, completed the “1 May 2017” Minutes in Mr Duggin’s presence, he would have recorded only himself and Mr Duggin as attendees, without including any reference to Ms Richards (and without Mr Duggin noticing this omission).

127. [236]

     Thirdly, Mr Turner claimed, in his affidavit, that after completing the “1 May 2017” Minutes immediately after the meeting, he put them in a manila folder at the Blacktown Office. However, there was unchallenged evidence from Mr Duggin that the file name of the scanned document, which was sent by Mr Turner to Mr Clarke on 21 July 2017, indicated that this document was scanned at the Group’s office at King Street Wharf. There was no explanation given by Mr Turner in his affidavit evidence as to how it came to be that the minutes which, according to his version of events, were signed on 1 May 2017 and thereafter kept in a hard copy file at the Blacktown Office came to be in the King Street Wharf office on 21 July 2017. When this matter was raised with Mr Turner in cross-examination, he stated that he was carrying the “1 May 2017” Minutes with him from office to office during 2017, while HWLE’s audit was ongoing and in case the documents needed to be “registered”. For example, he gave the following evidence:

128. [237]

     This evidence is implausible. It is highly unlikely that Mr Turner was carrying documents relating to the Appointor of the RG Trust with him throughout the period from 1 May 2017 to 21 July 2017 in case they were needed for some register (which he could not identify), or for the audit of the companies in the Group being conducted for HWLE. If the documents were needed for either of those purposes, it is likely that he would have provided copies of the documents to HWLE as soon as they were executed.

129. [238]

     Fourthly, even if the version of the “1 May 2017” Minutes which was sent to HWLE in July 2017 were regarded as a reliable contemporaneous record of events, it is inconsistent with Mr Turner’s account, since it indicates that any meeting to address the issue of the Appointor of the RG Trust (whether on 1 May 2017 or at some other unidentified time) was attended by Mr Turner and Mr Duggin, but not by Ms Richards, and that she therefore was not asked to, and did not, approve at any such meeting, the appointment of Mr Turner as Appointor of the RG Trust.

130. [239]

     Fifthly, the terms of Mr Turner’s exchange of messages with Ms Kragh indicate that he did not, in 2024, have any recollection of whether Ms Richards was invited to, or attended the meeting, but instead “hoped” that this was the case (see paragraphs [184]-[189] above).

131. [240]

     Sixthly, on 3 May 2025, Mr Turner sent a text message to Mr Anthony Turner, which attached a letter sent by Ms Richards’ solicitors in response to the purported notification of removal and replacement of Boyded as the trustee of the RG Trust. In this text message, Mr Turner stated as follows (emphasis added): “It’s not as bad as I thought it would be. Seems they don’t have any documents and so far I’m happy. Once we give them the docs then we will find out if they have an argument. And they haven’t said jo was away on 1 May etc so that’s good.” The italicised statement would be an odd statement to make if (as Mr Turner deposes) he had a vivid recollection of Ms Richards attending the meeting with him and Mr Duggin on 1 May 2017, and he had a copy of the minutes recording her attendance, which he had created in 2017, and a hard copy diary indicating that such a meeting had taken place. It does, however, make sense if Mr Turner did not in fact have any such recollection, and was aware that the only evidence that Ms Richards had attended such meeting was the version of the “1 May 2017” Minutes that he had created in mid-2024.

132. [241]

     Finally, the credibility of Mr Turner’s affidavit evidence regarding these events is seriously undermined by his conduct in creating documentary evidence, in 2024, of Ms Richards’ attendance at a meeting of the board of Boyded on 1 May 2017, in circumstances where he was aware, from his enquiries, that no such documentary evidence existed.

133. [242]

     Having regard to those matters, I find that Mr Turner’s affidavit evidence, which he maintained in cross-examination, that he had a detailed recollection of Ms Richards’ participation in a meeting of the board of Boyded on 1 May 2017, and a recollection of amending, in July 2017, the “1 May 2017” Minutes so as to include Ms Richards’ name was untruthful.

134. [243]

     The Plaintiffs submitted that Mr Turner’s conduct in fabricating the “1 May 2017” Minutes not only undermined his credit, but provided a basis for concluding that he was aware that no such meeting in fact occurred. In this regard, the Plaintiffs relied on Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [60] per Meagher JA (Basten and Campbell JJA agreeing). In that passage, his Honour referred, among other authorities, to the observations made by Gibbs J in Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 694; [1975] HCA 63 (citations omitted), namely, that:

135. [244]

     In the present case, I would not draw from the fact that, in 2024, Mr Turner fabricated evidence indicating that Ms Richards attended a meeting of the board of Boyded on 1 May 2017, an inference that no such meeting had occurred. It is apparent, from the messages exchanged with Ms Kragh in March 2024, that Mr Turner fabricated this evidence in circumstances where he had “hoped” Ms Richards had been invited and had attended such a meeting, and was therefore unsure whether or not this was the case. His conduct in fabricating this evidence, in circumstances where he knew that there was otherwise an absence of contemporaneous documentary evidence to show that Ms Richards had been present, was dishonest, and likewise his affidavit account of Ms Richard’s attendance at this meeting was untruthful. This dishonest conduct significantly damages Mr Turner’s credit, but does not, of itself, provide a basis for drawing an inference that the alleged meeting did not take place.

136. [245]

     The Defendants submitted that – even if the Court were to determine (as I have found) that no weight should be placed on Mr Turner’s affidavit account of the 1 May 2017 meeting, or on the “1 May 2017” Minutes which include Ms Richards’ name, or on the photographed entry in the 2017 diary – the Court would infer from the following objective matters that it was more likely than not that an informal telephone meeting of the directors of Boyded occurred on 1 May 2017, at which the directors resolved to approve Mr Turner’s appointment as Appointor:

     1. (1)

        in late March 2017, HWLE had informed Mr Turner that there was no incumbent Appointor of the RG Trust, and recommended amending the RG Trust Deed so as to permit Boyded to appoint a replacement Appointor when the office was vacant;

     2. (2)

        communications on that specific subject matter then ensued between HWLE, Mr Turner and Mr Duggin, in March and April 2017;

     3. (3)

        in the week prior to 1 May 2017, HWLE sent an email to Mr Turner and Mr Duggin, attaching a set of documents to implement this recommendation, including the Appointor Deed and a minute of a meeting to be held of Boyded’s directors that set out resolutions to enter into the Appointor Deed and, subject to that occurring, to appoint Mr Turner as Appointor;

     4. (4)

        1 May 2017 fell on the Monday in the week following receipt by Mr Turner and Mr Duggin of this document pack from HWLE;

     5. (5)

        Mr Duggin told the Plaintiffs’ solicitors in May 2025 that board meetings were pretty informal, with Ms Richards usually dialling in by telephone. It would therefore be unsurprising, and indeed expected, that a meeting held on 1 May 2017 would have been attended by Ms Richards by phone, particularly where it was an “impromptu” meeting to address a one-off item that had been recommended by HWLE;

     6. (6)

        Mr Duggin (who was company secretary) and Mr Turner signed the Appointor Deed in 2017; and

     7. (7)

        Mr Duggin acknowledged in cross-examination that he understood that, as company secretary, he was the guardian of corporate governance of the Group, and in performing that role, ensured that:

137. [246]

     The matters in paragraphs (1)-(3) and (6) above establish that, as was common ground, documents to change the Appointor of the RG Trust were prepared by HWLE in April 2017 on Mr Turner’s instructions, and were subsequently completed and signed at some time in 2017. The critical issue is whether those documents were signed after a meeting of the board of Boyded on 1 May 2017, which was attended by Ms Richards and at which approval was given to execute such documents. In support of an inference that this was the case, the Defendants relied on the matters in paragraphs (4), (5) and (7). Each is addressed below.

138. [247]

     The matter in paragraph (4) above – namely, that 1 May 2017 was the Monday following the provision of the draft documentation to Mr Turner – is a simple matter of fact. However, it has implicitly bundled up in it a suggestion that there was some need to deal with this matter promptly, leading to Mr Turner calling a meeting several days later, on short notice, and with no papers being provided in advance.

139. [248]

     There is no indication in the contemporaneous correspondence that there was thought to be any need (or that Mr Turner understood that there was any need) to deal with this issue before the next scheduled board meeting, which was to be held on 21 July 2017. For example, HWLE did not advise that the documentation should be executed as soon as possible.

140. [249]

     The company which was named as Appointor in the RG Trust Deed (namely, Rossfield Appointor Pty Ltd) had been deregistered almost twenty years earlier. There was no indication that the lack of an Appointor had caused, was causing, or was about to cause, any immediate difficulty. Although there was reference in the email correspondence to a “friend” of Mr Turner at ANZ indicating that the bank had some “issue” with the Appointor being a deregistered company, there is no indication that this presented any pressing impediment or problem for the conduct of the affairs of the RG Trust or of the Heartland Motors Group.

141. [250]

     The only power given to the Appointor by the Trust Deed is the power specified in clause 19, which (prior to any amendment affected by the Appointor Deed) read as follows:

142. [251]

     There is no contemporaneous documentary evidence that, as at May 2017, there was any, or likely to be any, occasion for the power in clause 19(1) to be exercised at any time in the near future. No contemporaneous document refers to any need to appoint a Supervisor of the RG Trust, or otherwise refers to any intention on the part of Mr Turner to take any step as Appointor shortly after his appointment.

143. [252]

     In those circumstances, there was no need for a meeting of the board of Boyded to be arranged at short notice, to deal with the appointment of an Appointor to the RG Trust, rather than leaving it to be addressed when the board next met.

144. [253]

     Further, the communications between Mr Turner and HWLE after 1 May 2017 support a finding that no meeting of the board of Boyded had yet been held to deal with the Appointor issue and that Mr Turner was planning to deal with this at the next scheduled board meeting in July 2017.

145. [254]

     On 21 May 2017, HWLE sent Mr Turner a document which stated, in relation to the RG Trust, that “HWLE prepared draft documentation to replace the Appointor with Kieran Turner. We are not certain whether this documentation has been put in place.” Mr Turner did not respond to this query by stating that this documentation had already been executed, and providing a copy. Instead, he asked, “how does it work if the appoint[o]r is a company?”; whether in such circumstances, the “chairman” or “directors” have control; and whether it was necessary to register the “chairman” (see paragraphs [152]-[154] above). As previously noted, Mr Turner was of the view that he was “chairman” of the companies within the Heartland Motors Group. This email indicates that, as at 21 May 2017, Mr Turner was contemplating whether the new Appointor should be a company within the Group and wanted to know, in order to assist with this decision, whether the Appointor would be controlled by the directors of the company (who would likely be himself and Ms Richards) or by the “chairman” (that is, solely by Mr Turner). HWLE responded that the power of a corporate appointor would be exercisable by its board.

146. [255]

     On 5 July 2017, HWLE provided Mr Turner with an update on the outcome of their audit of the Heartland Motors Group, and specifically referred Mr Turner to the attached document, which was a copy of the document sent to him on 21 May 2017, stating that HWLE were “not certain whether [the documentation to replace the Appointor of the RG Trust] had been put in place”. On the same day, Mr Turner responded that the “change” of the “appoint[o]r of RGT to me” was something “which I still need to get signed and will do at our July Board meeting”, promising to “email you this when done” (paragraphs [156]-[161] above).

147. [256]

     Mr Turner was cross-examined about this email exchange. He claimed that what he “still need[ed] to get signed” was a “register” in relation to the change of the Appointor of the RG Trust. However, he could not identify this “register”, or explain why the register needed to be signed at a meeting of the Board (if the relevant documents to effect the change had already been executed on the Board’s authority), or why he would need to send a signed “register” to HWLE “so [they] can register such”. An extract from the cross-examination is set out below:

148. [257]

     I do not accept Mr Turner’s explanation of his email of 5 July 2017. In that communication, he expressly stated that, as at that date, he “still need[ed] to get signed” the “change” of “the appoint[o]r of RGT to [himself]” (that is, the documentation to effect this change was yet to be executed) and that he intended to get this signed at a forthcoming meeting of the board of Boyded later in July 2017. That is important contemporaneous evidence that, as at 5 July 2017, no such documentation had been executed, and that this was because the necessary board meeting had not yet been held.

149. [258]

     Finally, in his 5 July 2017 email to HWLE, Mr Turner promised to “email you this when done so you can register such”, that is, to send the completed documentation regarding the change of Appointor once it was executed. Mr Turner subsequently emailed that material to HWLE and the Group’s external accountants on 21 July 2017, stating as follows in his email to HWLE: “See attached signed docs for our register appointing me as the RGT Appoint[o]r, please file and note.” It is likely, having regard to the terms of the emails of 5 and 21 July 2017, that the documentation (including the ”1 May 2017” Minutes) was executed around the time that it was sent to the Group’s lawyers and accountants.

150. [259]

     As regards the matter in paragraph [245](5) above, I accept that there was evidence that meetings of the directors of Boyded (Ms Richards and Mr Turner) could be, and were from time to time, organised outside the scheduled meetings, and Ms Richards sometimes attended such ad hoc meetings by teleconference.

151. [260]

     However, there is no communication from Mr Turner or Mr Duggin to Ms Richards referring to such a meeting, either before or after it occurred, despite Ms Kragh having apparently undertaken extensive searches for such evidence in 2024.

152. [261]

     Nor is there any documentary evidence of Ms Richards being informed, at any time, whether before or after 1 May 2017, of any issue regarding the Appointor of the RG Trust, or any proposal to amend the provisions of the RG Trust Deed in respect of the Appointor, or any proposal to appoint a replacement Appointor.

153. [262]

     Nor is there an entry for any such meeting on 1 May 2017 in Mr Duggin’s electronic diary, in circumstances where he gave unchallenged evidence that: “It was my usual practice to diarise all board meetings attended by me in my Microsoft Outlook calendar.”

154. [263]

     The Defendants submitted that this omission was not significant, because Mr Duggin “gave evidence that he would not necessarily diarise informal meetings of the kind that occurred”. In fact, the relevant part of Mr Duggin’s affidavit read as follows: “I am aware that, on occasion, the directors had informal meetings (i.e. a meeting not identified in the meeting schedule) to address urgent matters. I do not recall ever participating in these meetings, and I would not expect them to be recorded in my diary”. That is, Mr Duggin’s evidence was that (unsurprisingly) his diary would not record any informal meeting of Mr Turner and Ms Richards which Mr Duggin did not attend. However, the purported board meeting of 1 May 2017 is said to be a meeting which Mr Duggin did in fact attend. Mr Duggin stated, in a proof of his evidence which the Defendants tendered, that he was “fairly rigorous” in his practice of diarising board meetings, and if the meeting of 1 May 2017 had occurred (which he is said to have attended), he would expect it to be in his diary. The lack of any reference to this meeting in his diary is therefore a significant matter.

155. [264]

     Mr Duggin also gave unchallenged evidence that, ahead of each board meeting, Ms Kragh would send out a board pack which he would approve and that “[i]f additional documents were to be considered at a board meeting, [he] would ordinarily provide them, or arrange for [Ms Kragh] to provide them, to the directors ahead of the meeting”. That accords with good corporate governance and common sense. However, there is no record of the Appointor Deed being sent to Ms Richards prior to the meeting. There is no explanation in Mr Turner’s affidavit as to why this did not occur.

156. [265]

     As regards the matter in paragraph [245(7)] above, Mr Duggin gave the following evidence regarding his practices as Company Secretary:

157. [266]

     On the basis of this evidence, the Defendants submitted that “it is unlikely that Mr Duggin would have signed the Deed of Variation unless a board meeting had been arranged and held to approve this occurring”.

158. [267]

     However, the evidence above was couched in terms of what Mr Duggin would do “where board meetings were required in order for decisions to be made for the company”. It was not put to Mr Duggin that he understood, or would have appreciated, at the relevant time, that there needed to be a board resolution before he could sign the Appointor Deed as Company Secretary. The Appointor Deed does not refer to any authority from the board of directors being required or obtained in relation to the document. He was not asked, in cross-examination, any questions about the extent of his understanding as to the circumstances in which the authority of the board of Boyded (Mr Turner and Ms Richards) was required, and in which the authority of the CEO (Mr Turner) would not be sufficient. In those circumstances, the generalised concessions which he made regarding his practices are of minimal significance.

159. [268]

     Having regard to the matters set out above, I find that Ms Richards did not, on 1 May 2017 or at any other time, participate in a meeting of the board of directors of Boyded at which it was resolved to approve the entry into the Appointor Deed and the appointment of Mr Turner as Appointor of the Trust.

160. [269]

     The Plaintiffs pleaded that, if and to the extent that the “1 May 2017” Minutes recorded an actual meeting of Mr Turner and Mr Duggin (which Ms Richards did not attend), any such meeting was not a quorate meeting of the board of Boyded that was capable of passing a resolution in the terms recorded, and that at no time has a quorate meeting of Boyded passed any resolution to that effect (see Further Amended Statement of Claim, [29]-[30]).

161. [270]

     The Defendants admitted that, at all material times, a quorum of two directors was required for the transaction of business by the board of Boyded (Defence [15]). However, in response to the allegations in paragraphs [29]-[30] of the Further Amended Statement of Claim, the Defendants pleaded that:

162. [271]

     The reference to “s 1332” is presumably a reference to s 1322 of the Act, which relevantly provides as follows:

163. [272]

     In closing written submissions regarding this issue, the Defendants contended that, irrespective of whether there was any resolution of the board of Boyded, Ms Richards had given Mr Turner “sole responsibility as director for handling and making decisions about legal matters, such that he could, on behalf of Boyded, decide who to appoint as Appointor”, with the effect that (irrespective of whether Ms Richards was involved in the decision) the execution of the Appointor Deed and appointment of Mr Turner as Appointor were valid.

164. [273]

     I accept the Plaintiffs’ submission that there is no pleaded case advanced by the Defendants to the effect that Mr Turner had been given “sole responsibility” for “legal matters” related to Boyded, such that he had unilateral authority to execute the Appointor Deed and to appoint himself as Appointor of the RG Trust. It would be a substantial denial of procedural fairness to the Plaintiffs to permit such an issue to be raised by the Defendants in closing submissions, in circumstances where the Plaintiffs were not afforded any opportunity to address the issue in evidence in chief.

165. [274]

     In any case, the evidence before the Court was insufficient to make out any such contention. The Defendants principally relied on the following concessions by Ms Richards in the course of her cross-examination:

166. [275]

     Those propositions leave entirely at large how such responsibility was given to Mr Turner (including whether it was given by the board of one or more corporate entities), when it was given (including whether it was given before or after 2017), what was the scope of any responsibility to “look after” decisions, and what was the scope of “legal matters”. Those matters were otherwise unexplored on the evidence because no issue regarding the existence, source and scope of any delegated authority was pleaded.

167. [276]

     Further, any contention that Mr Turner had been given, as at 1 May 2017, “sole responsibility” to approve and execute, on behalf of Boyded, documents such as the Appointor Deed, is at odds with:

     1. (1)

        the documents drafted by HWLE in April 2017, which indicated that a resolution of the Board was required in order to give effect to Mr Turner’s appointment;

     2. (2)

        Mr Turner’s statement to HWLE, on 5 July 2017, that he intended to get the relevant documentation signed at the forthcoming board meeting; and

     3. (3)

        Mr Turner’s concern to find (and subsequently create) some evidence in 2024 which indicated that Ms Richards had attended a board meeting on 1 May 2017 at which a resolution to approve Mr Turner’s appointment as Appointor had been passed.

168. [277]

     I turn then to the Defendants’ pleaded contention that any lack of a quorum was a “procedural irregularity” which the Court should determine did not invalidate the passing of the relevant resolution. In this regard, the Defendants advanced the following submissions:

169. [278]

     I reject this submission, for four main reasons.

170. [279]

     First, it proceeds on the basis that there was in fact a meeting of the directors of Boyded, which was attended by Mr Turner and Mr Duggin (but not Ms Richards), at which a decision was made to approve Mr Turner’s appointment. The only evidence that any such meeting occurred is the version of the “1 May 2017” Minutes which Mr Turner sent to HWLE on 21 July 2017. Mr Turner did not assert that any such meeting (attended only by himself and Mr Duggin) took place. Nor did Mr Duggin have any recollection of attending a meeting at which the subject matter of the “1 May 2017” Minutes was discussed. Further, Mr Turner did not assert that there was any occasion, whether on 1 May 2017 or otherwise, on which he purported to unilaterally pass a resolution of the board of directors of Boyded. I am not satisfied that any such meeting was in fact held.

171. [280]

     Secondly, assuming that there was a meeting on 1 May 2017 which was attended by Mr Turner and Mr Duggin, but not Ms Richards, the relevant “act, matter or thing purporting to be done” which the Defendants seek to have declared “not invalid” is the purported passing of a resolution at that meeting approving the amendment to the RG Trust Deed and Mr Turner’s appointment as Appointor. This would not be a case of a “procedural irregularity”. On this scenario, the thing that was in fact done (namely, the passing of a resolution by Mr Turner alone) differed in form, substance and effect from the thing that ought to have been done (namely, the consideration and, if thought fit, passing of a resolution by Boyded’s board): see Onefone Australia Pty Ltd v One.Tel Ltd [2010] NSWSC 1120 at [9]-[12] (Barrett J).

172. [281]

     Thirdly, I am not satisfied that, assuming Mr Turner did purport to pass a resolution in relation to the Appointor of the RG Trust in Ms Richards’ absence, he was acting honestly in so doing. He was aware (from the materials provided to him by HWLE) that any appointment of a new Appointor to the RG Trust had to be approved by the board of Boyded. He did not, in his affidavit evidence or in cross-examination, give any evidence that he believed, in 2017, that such a decision could be taken by himself, without any reference to Ms Richards, let alone identify any basis for such a belief. His conduct in creating, in 2024, two versions of the “1 May 2017” Minutes which included Ms Richards’ name indicates that he in fact understood that her agreement was essential.

173. [282]

     Fourthly, the Defendants focussed, in the submissions quoted above, on Ms Richards’ lack of interest in various other legal matters concerning the Heartland Motors Group. However, Ms Richards had, as at May 2017, a keen interest in the administration of the affairs of the RG Trust and, in particular, in the distributions made from the sale proceeds of the Parramatta and Lakemba Properties. This was evident in the discussions which occurred, and messages which were sent, about this topic in early 2017 (see paragraphs [124]-[128] above). One of the relevant distributions which was the subject of dispute – being a payment of more than $8.5m to Mr Turner – was made on 16 May 2017. Having regard to those matters, I accept Ms Richards’ evidence that if the proposal to appoint Mr Turner as Appointor of the RG Trust had been brought to her attention on or around 1 May 2017, it is highly unlikely that she would have agreed to this proposal, without seeking an opportunity to obtain legal advice in order to understand the nature and effect of what was proposed. Further, it is likely that, if she had been advised as to the nature and effect of what was proposed, she would have opposed it.

174. [283]

     In light of the matters set out above, I am not satisfied that it would be just and equitable, in the circumstances of this case, for an order now to be made validating any resolution which Mr Turner purported to unilaterally pass, approving the execution of the Appointor Deed and the appointment of himself as Appointor. Further, I consider that, assuming Mr Turner had purported to unilaterally pass such a resolution, substantial injustice would have been caused by the failure to seek Ms Richards’ agreement to the resolution, in particular because she would likely not have supported the resolution, and Mr Turner has subsequently purported to use his powers as Appointor to appoint Mr Anthony Turner as Supervisor, who in turn has purported to remove Boyded and appoint Heartland One as trustee of the RG Trust, thereby moving the valuable assets of the RG Trust outside the control of the Heartland Motors Group.

175. [284]

     It follows that I reject the Defendants’ s 1322 application.

Was the amendment of the RG Trust Deed within power?

1. [285]

   Given my findings that there was no resolution by the board of Boyded on 1 May 2017 (or at any other time) approving the execution of the Appointor Deed or the appointment of Mr Turner as Appointor of the RG Trust, it is unnecessary to consider the Plaintiffs’ contentions that, even if there was such a resolution, those acts were beyond power. However, in case I have erred in reaching those findings, I have addressed these contentions briefly below.

2. [286]

   Clause 23 of the RG Trust Deed, which is headed “Amendment”, provides as follows (emphasis added):

3. [287]

   Clause 1.1(vii) defines the Appointor as meaning “successively the person or persons named and described as such in the Seventh Part of the Schedule”. The person named in the Seventh Part of the Schedule is Rossfield Appointor Pty Ltd (which was deregistered on 30 September 1997).

4. [288]

   Clause 3 of the Appointor Deed provided as follows:

5. [289]

   The Plaintiffs submitted that the power in clause 23 to “vary all or any of the trusts herein-before limited” does not extend to a power to vary the Trust Deed insofar as it contains provisions concerning the office of Appointor, as distinct from a variation of the RG Trust created by the Trust Deed.

6. [290]

   In support of this submission, the Plaintiffs relied on Mercanti v Mercanti [2015] WASC 297. In that case, there was an issue as to whether, in respect of two different trusts (described as the MMF Trust and the FW Trust), a purported amendment to the trust deed so as to change the identity of the appointor was valid. The power of amendment was, in each trust deed, couched in different terms, and this difference was critical to Le Miere J’s reasoning at first instance.

7. [291]

   The amendment clause in the MMF trust deed provided, relevantly, that “the Trustees … may … vary … the trusts terms and conditions hereinbefore contained” (at [87]). Le Miere J concluded as follows (at [91], emphasis added):

8. [292]

   An appeal from his Honour’s decision in respect of the MMF trust deed was dismissed: Mercanti v Mercanti (2016) 50 WAR 495; [2016] WASCA 206.

9. [293]

   The amendment clause in the FW trust deed provided as follows (at [98], emphasis added):

10. [294]

    This clause is in similar terms to clause 23 of the RG Trust Deed. In respect of this clause, Le Miere J concluded as follows (at [100]-[102], emphasis added):

11. [295]

    His Honour’s findings in respect of the FW trust deed were not the subject of any appeal.

12. [296]

    In closing written submissions, the Defendants did not engage with the reasoning in Mercanti, asserting as follows (emphasis added):

13. [297]

    The Defendants’ submission does not accurately reflect the language of the relevant clause in the RG Trust Deed. Clause 23 does not provide a power to “vary the trust recorded in the deed”, but rather (as in the FW trust deed considered in Mercanti) a power to “vary all or any of the trusts herein-before limited”.

14. [298]

    As was the case with the FW trust deed in Mercanti, the clause of the RG Trust Deed by which the Settlor declares the trust distinguishes between the “trusts” and the “powers and provisions” in the Trust Deed, providing as follows:

15. [299]

    The Defendants did not address, in their submissions, the manner in which the term “the trusts” is used in the RG Trust Deed, nor explain, by reference to such use, why a power of the trustee to “vary the trusts herein-before limited” would extend to a power to amend the provisions of the trust deed so as to replace the Appointor specified in the RG Trust Deed. The Defendants did not identify any basis, in terms of the language of the RG Trust Deed, for distinguishing the reasoning in Mercanti regarding the scope of the similarly worded power in the FW trust deed.

16. [300]

    Nonetheless, I consider it preferable not to express any concluded view on the scope of the amendment power in the RG Trust Deed, in circumstances where it is unnecessary to express any view on that issue in this proceeding, in particular because the issue has received only scant attention in the written and oral submissions of the parties and there has been no analysis undertaken, in submissions, of the terms used in clause 23 in light of the other provisions of the RG Trust Deed, such as was undertaken in Mercanti.

17. [301]

    The Plaintiffs further contended that, even if the “1 May 2017” Minutes were (contrary to my findings above) an accurate record of a meeting of the directors of Boyded:

    1. (1)

       those minutes “record the simultaneous authorisation of Boyded’s execution of the deed of amendment (to give itself power to appoint an appointor) and the exercise of the power arising consequent upon the amendment”;

    2. (2)

       the Appointor Deed (which amended the RG Trust Deed) must have been executed after the authorisation was given by the board of Boyded; and

    3. (3)

       it follows that Boyded purported to exercise the power to appoint an Appointor before it conferred upon itself that power.

18. [302]

    In support of this argument, the Plaintiffs referred to authorities to the effect that a trustee must exercise a power at the time it falls to be exercised, and cannot fetter its exercise of discretion by determining to exercise a power in advance: Fitzwood Pty Ltd v Unique Goal Pty Ltd (2001) 188 ALR 566; [2001] FCA 1628 at [121] per Finkelstein J, citing Thacker v Key (1869) LR 8 Eq 408; and Re Baron Vestey’s Settlement [1951] Ch D 209.

19. [303]

    The Plaintiffs submitted that:

20. [304]

    If it were necessary to decide this issue (in the event that I had determined that a meeting of the board of Boyded had occurred on 1 May 2017 with Ms Richards in attendance, as recorded in the amended “1 May 2017” Minutes, and as recounted in Mr Turner’s affidavit), I would have rejected these submissions.

21. [305]

    First, it is important to have regard to the terms of the resolution recorded in the “1 May 2017” Minutes (emphasis added):

22. [306]

    In short, the Board resolved that the Deed Poll be executed and that, subject to this occurring, Mr Turner be appointed as the Appointor of the Trust.

23. [307]

    To describe this as the Board “fettering its future discretion” regarding the exercise of its power to appoint an Appointor is to seek to draw a temporal distinction between events which were, as a matter of substance, all part of one transaction. In particular, if I had accepted the accuracy of Mr Turner’s account of the 1 May 2017 meeting, I would have found that:

    1. (1)

       Mr Turner printed out and brought to the 1 May 2017 meeting copies of each of the draft documents provided to him by HWLE – namely, the draft minutes, the Appointor Deed and the document by which Mr Turner was to accept the appointment as Appointor;

    2. (2)

       Mr Duggin either read out or provided a summary of each of those documents, following which Ms Richards and Mr Turner resolved to approve both the execution of the Appointor Deed and Mr Turner’s appointment as Appointor; and

    3. (3)

       immediately following this meeting, which lasted around 5 or 10 minutes, Mr Turner signed each of those documents in Mr Duggin’s presence (with Mr Duggin also signing the Appointor Deed).

24. [308]

    If I had made findings to the above effect, then I do not think it could be said, in any substantive sense, that Boyded had impermissibly “fettered its discretion” regarding the manner in which its power would be exercised in the future, by determining that Mr Turner should be appointed as Appointor of the RG Trust in advance of Boyded’s having (mere moments later) the power to do so.

25. [309]

    Accordingly, if I had found that the meeting of 1 May 2017 had occurred, as set out in the amended “1 May 2017” Minutes and as recounted in Mr Turner’s affidavit, and had found that Boyded had power, pursuant to cl 23 of the RG Trust Deed, to amend the RG Trust Deed so as to confer upon itself the power to replace the Appointor of the RG Trust, I would not have concluded, on the basis of this “timing” issue, that the exercise of that power was invalid.

Was the appointment of the trustee for a proper purpose?

1. [310]

   I have determined that the board of Boyded did not authorise the execution of the Appointor Deed and that this document was therefore invalid and of no effect.

2. [311]

   It follows that:

   1. (1)

      Mr Turner did not have power to appoint Mr Anthony Turner as Supervisor of the RG Trust, when he purported to do so on 15 September 2024; and

   2. (2)

      Mr Anthony Turner did not have power to remove Boyded as trustee of the RG Trust, and to appoint Heartland One to that office, when he purported to do so on 30 April 2025.

3. [312]

   Accordingly, it is unnecessary to determine whether or not those powers were validly exercised, or were exercised for an improper purpose.

4. [313]

   However, in case I am wrong in my conclusions that Mr Turner and Mr Anthony Turner did not have the powers which each purported to exercise as, respectively, Appointor and Supervisor, I have considered the Plaintiffs’ contentions below and have, in particular, made findings regarding the purpose(s) for which those powers were exercised. Further, the events leading up to the change of the trustee of the RG Trust are also relevant to the Cross-Claim, insofar as the Cross-Defendants relied on those matters as providing a basis for the termination of the employment of each of Mr Turner and Mr Anthony Turner.

5. [314]

   There was no dispute regarding the relevant principles.

6. [315]

   Although a power to appoint a trustee might not be correctly characterised as a “fiduciary power”, such a power is controlled by the doctrine of “fraud on a power”, such that it must be exercised bona fide for the purpose for which it was conferred: Baba v Sheehan [2021] NSWCA 58 at [5] per Brereton JA.

7. [316]

   In Lancedale Holdings Pty Ltd v Health Group Australasia Pty Ltd [1999] NSWSC 609 at [71], Bryson J observed that:

8. [317]

   The doctrine of “fraud on a power” operates to avoid the exercise of a power where it has been exercised for a purpose, or with an intention, beyond the scope of, or not justified by, the instrument creating the power. Such an exercise of power for an extraneous purpose is invalid and void: Baba v Sheehan at [6] per Brereton JA and see also at [50] per Emmett AJA (with whom Simpson AJA agreed).

9. [318]

   The purpose of a trust deed, in conferring a power, is to benefit the objects of the relevant trust. If the power is exercised for an unauthorised purpose, which benefits the person on whom the power is conferred, the exercise of such power will be for a foreign purpose. A power will be exercised for a foreign purpose if it is exercised with the intention of benefiting someone who is not an object of the power: ibid at [49] (Emmett AJA).

10. [319]

    In Baba v Sheehan, Emmett AJA summarised the issue for determination on that appeal as follows (at [49]-[50]):

11. [320]

    In that case, the problem for the appellants was that the primary judge had found that Mr Sheehan did not in fact exercise the power of appointment for the improper purpose of obtaining control of the Trust, and the appellants did not identify any basis for challenging this finding, which was open on the evidence (at [52], [57]).

12. [321]

    Similarly, in Mercanti, the appointor of the MMF trust had removed the corporate trustee of the MMF Trust and had replaced it with a different corporate entity which he controlled. Le Miere J held as follows (at [175]-[176]):

13. [322]

    In dismissing an appeal from Le Miere’s decision, Newnes and Murphy JJA said (Mercanti v Mercanti (2016) 50 WAR 495; [2016] WASCA 206 at [401]) that:

14. [323]

    These authorities indicate that the question of the purpose for which an appointor exercises a power to replace the trustee is a question of fact and that, if the appointor does so as a result of a legitimate concern to protect or advance the interests of the objects of the trust, then the appointor will be acting for a proper purpose (even if the appointor replaces the existing trustee with a trustee which the appointor controls). For example, if the appointor, in good faith, has formed the view that the replacement trustee (which the appointor controls) is better qualified to manage the affairs of the trust, in the interests of the objects of the trust, then there will be no “fraud on the power”. If, however, the appointor is not, in fact, acting out of any legitimate concern for the interests of the objects of the trust, but is instead replacing the existing trustee in order to gain, or maintain, control of the management of the affairs of the trust, or to remove such control from other directors or shareholders of the existing trustee, then the appointor will be exercising the power for a foreign purpose, and this will be void and ineffective.

15. [324]

    In the present case, it was common ground that these principles applied both to the power of the Appointor of the RG Trust to appoint a Supervisor, and to the power of the Supervisor of the RG Trust to remove and replace the Trustee.

16. [325]

    Further, as a discretionary power, a power to appoint a trustee may, like a discretionary power of a trustee, be impugned on the basis that it was exercised without giving a real or genuine consideration to the exercise of the discretion. The concept of giving “a real or genuine consideration” requires that there be “the exercise of an active discretion” and that there be consideration of whether or not to exercise the power: Owies v JJE Nominees Pty Ltd (in its capacity as the trustee for the Owies Family Trust) [2022] VSCA 142 at [86] (Kyrou, Niall and Walker JJA). The Victorian Court of Appeal there referred to McGarvie J’s observations in Karger v Paul [1984] VR 161 at 164 that it was relevant to look at “the inquiries which were made … , the information [the trustees] had and the reasons for, and manner of, their exercising their discretion”.

17. [326]

    Under Karger v Paul principles, a decision may be reviewable for want of “properly informed consideration”. If the consideration is not properly informed, it is not genuine: Finch v Telstra Super Pty Ltd (2010) 242 CLR 254; [2010] HCA 36 at [66] (French CJ, Gummow, Heydon, Crennan and Bell JJ).

18. [327]

    Further, a discretionary power to remove or appoint a trustee must be exercised personally and not in conjunction with, or under the direction of, another person: Scaffidi v Montevento Holdings Pty Ltd [2011] WASCA 146 at [150] per Murphy JA and Hall J (which was overturned on appeal on unrelated grounds: Montevento Holdings Pty Ltd v Scaffidi (2012) 246 CLR 325; [2012] HCA 48); see also Owies v JJE Nominees at [98].

19. [328]

    On 20 March 2023, Mr Turner, Mr Anthony Turner and Ms Richards attended a meeting of directors of the Operating Entities in the Heartland Motors Group. Ms Kragh also attended this meeting in her capacity as company secretary. Ms Richards attended the meeting by Zoom, with the others being present at the King Street Office. At the conclusion of the board meeting, the screen in the King Street Office went black, but Ms Richards’ audio link remained live. Mr Turner and Mr Anthony Turner did not alert Ms Richards to this, but instead stayed on the line and listened as Ms Richards proceeded to have a privileged conversation with her lawyers, which was recorded. (The Plaintiffs waived privilege in respect of this conversation at the hearing, and tendered the recording and transcript.)

20. [329]

    Mr Turner implausibly asserted in cross-examination that he did not realise at the time that this was a conversation between Ms Richards and her lawyers. Having regard to the contents of the conversation, this must have been obvious, especially to an experienced businessperson such as Mr Turner (who plainly followed the conversation intently, as he claimed that it was “etched” in his memory). That conclusion is reinforced by the fact that on 22 March 2023, just two days after the relevant board meeting, Mr Turner sent the following text message to Ms Kragh (emphasis added):

21. [330]

    When taken to this message in cross-examination, Mr Turner gave the following evidence:

22. [331]

    Mr Turner’s failure to acknowledge that the conversation which he overheard was a discussion between Ms Richards and her legal advisors, and his attempts to explain away his 22 March 2023 text to Ms Kragh, damage his credit.

23. [332]

    The taped conversation is lengthy. The relevant part of the conversation between Ms Richards (“JR”) and her solicitor, Mr Hugh Scott (“HS”), which Mr Turner identified as having given rise to his concern about the manner in which Ms Richards would manage the RG Trust, was as follows:

24. [333]

    In Mr Turner’s affidavit of 7 August 2025, he deposed that he held the following concern as a result of hearing this conversation:

25. [334]

    When taken to this evidence, and asked to look at the transcript and identify what words in the relevant passage caused him to hold this view, Mr Turner gave the following evidence:

26. [335]

    Mr Turner stated that this recording was “etched in [his] memory forever”. This led to the following further questions:

27. [336]

    On 30 May 2024, Mr Turner and Mr Anthony Turner purported to pass resolutions, over Ms Richards’ opposition, removing her as a director of various Operating Entities (including Boyded).

28. [337]

    On 3 June 2024, Ms Richards and Ms Hooker commenced the 2024 Directors Proceeding, challenging the validity of the appointment of Mr Anthony Turner as a director of various Operating Entities and the removal of Ms Richards as a director of those companies, and seeking a declaration that the only two directors of Boyded were Ms Richards and Mr Turner (see paragraph [57] above).

29. [338]

    I have determined that, around this time, Mr Turner fabricated two versions of the “1 May 2017” Minutes recording that Ms Richards had attended a meeting of the Boyded board on that date and joined in a resolution approving the appointment of Mr Turner as Appointor of the RG Trust (see paragraph [206] above). The second of those documents was fabricated by Mr Turner on or around 16 June 2024, when he (for the first time) sent a copy of that document to his solicitors (see paragraphs [196]-[199] above).

30. [339]

    On the following day, 17 June 2024, Mr Turner caused Heartland One to be registered. At the time of its registration, Heartland One was named Heartland Two Pty Ltd, and each of Mr Turner and Mr Anthony Turner was appointed as a director. In cross examination, Mr Anthony Turner accepted that the purpose for which Heartland One was incorporated was to act as a replacement trustee of the RG Trust. He also gave the following evidence:

31. [340]

    On 19 July 2024, Black J delivered reasons for judgment in the 2024 Directors Proceeding. Relevantly, Black J determined that Mr Anthony Turner had not been validly appointed as a director of various Operating Entities, and that the two directors of those companies were Mr Turner and Ms Richards. His Honour subsequently made declarations to that effect on 15 August 2024 (see paragraphs [58]-[59] above).

32. [341]

    On 12 September 2024, Mr Turner filed a notice of intention to appeal from Black J’s orders.

33. [342]

    On 15 September 2024, each of Mr Turner and Mr Anthony Turner executed the Supervisor Deed, which purported to appoint Mr Anthony Turner as the Supervisor of the RG Trust.

34. [343]

    The recitals to the Supervisor Deed include the following matters:

35. [344]

    The operative part of the Supervisor Deed states as follows:

36. [345]

    Mr Anthony Turner gave evidence that the sole purpose of his appointment as Supervisor was so that he could subsequently appoint Heartland One as the trustee of the RG Trust, in place of Boyded:

37. [346]

    On 6 September 2024, Mr Anthony Turner ceased to be a director of Heartland One. Since that date, Mr Kieran Turner has been the sole director of this entity.

38. [347]

    On 17 September 2024, two days after the Supervisor Deed was executed by Mr Turner and Mr Anthony Turner, McCabes, on instructions from Heartland One, lodged an application with the Office of State Revenue (OSR) for a private ruling as to the stamp duty consequences of a change of the trustee of the RG Trust from Boyded to Heartland One. This application stated as follows:

39. [348]

    The “Deed of Appointment and Variation” referred to in this application was the Trustee Deed which was subsequently executed in April 2025, a draft of which was provided to the OSR.

40. [349]

    On 26 September 2024, the OSR responded, seeking further information in respect of this application. In particular, the OSR:

    1. (1)

       noted that Recital K of the draft Trustee Deed stated that the recently appointed Supervisor:

    2. (2)

       noted that Boyded was not a party to the draft Trustee Deed, suggesting that this was “a case of a forced removal of the current trustee (who has been the sole trustee of the trust since 1994) rather than an amicable retirement of trustee”; and

    3. (3)

       asked for an explanation of “the reason(s) for the proposed change in the trustee of the trust”.

41. [350]

    The OSR’s request went unanswered for a period of around six months.

42. [351]

    On 22 October 2024, Mr Turner filed a summons seeking leave to appeal from the orders made in the 2024 Directors Proceeding.

43. [352]

    On 25 January 2025, Ms Richards issued a notice convening a board meeting of Bernley on 3 February 2025. At this meeting, resolutions were passed, over Mr Turner’s opposition, for the convening of the February 2025 EGM of Heartland Group in order to consider resolutions to appoint Ms Hooker, and to remove (in the event that he had been validly appointed) Mr Anthony Turner, as a director of various Operating Entities. Notices duly convening the February 2025 EGM were issued on the same day.

44. [353]

    On 18 February 2025, Ms Richards emailed Mr Turner a signed circulating resolution and instrument of appointment which provided for Mr Turner to be appointed as the corporate representative of Boyded at the February 2025 EGM. Mr Turner did not respond to this correspondence, and did not subsequently attend the February 2025 EGM on behalf of Boyded, thereby rendering the meeting inquorate.

45. [354]

    On 4 March 2025, Ms Richards commenced the 2025 EGM Proceeding.

46. [355]

    On 19 March 2025, McCabes sent a response to the OSR's letter of 26 September 2024, which is referred to in paragraph [349] above, stating as follows (emphasis added):

47. [356]

    On 26 March 2025, the Court of Appeal heard the 2025 Directors Appeal, and reserved judgment.

48. [357]

    On 15 April 2025, the 2025 EGM Proceeding was heard. Judgment was delivered by Black J on 17 April 2025, and orders were made convening an EGM of the Heartland Group at 10:00am on 2 May 2025 and directing that a corporate representative of Bernley would constitute a quorum of members of Heartland Group at the May 2025 EGM: Re Heartland Group [2025] NSWSC 367.

49. [358]

    On 28 April 2025, Heartland One obtained the private ruling which it had sought from the OSR.

50. [359]

    At 4:39pm on 29 April 2025, the Associate to Payne JA advised the parties that the Court of Appeal would deliver judgment in the 2025 Directors Appeal at 10:15am on 1 May 2025.

51. [360]

    On 30 April 2025, Mr Anthony Turner purported to execute the Trustee Deed, in his capacity as Supervisor of the RG Trust. Clauses 2.1-2.3 of the Trustee Deed provided as follows:

52. [361]

    Mr Anthony Turner gave evidence in cross-examination that he did not believe that there was any urgency in signing the Trustee Deed. However, it is significant that this document was executed on the day after the Court of Appeal indicated it would deliver its decision in the 2025 Directors Appeal, the day before that decision was delivered, and two days before the Court-ordered May 2025 EGM was scheduled for the purpose of considering whether to appoint Ms Hooker as a director of various Operating Entities (including Boyded).

53. [362]

    On 1 May 2025, Mr Anthony Turner sent the directors of Boyded a “Notice of Removal and Appointment of Trustee”, informing them that he had exercised his powers as Supervisor to remove Boyded and to appoint Heartland One, effective immediately, and requiring Boyded to:

54. [363]

    On 6 May 2025, Mr Turner emailed NAB, requesting that the name of the bank account for the RG Trust be changed from “Boyded Industries P/L atf RGT to Heartland One P/L atf RGT”.

55. [364]

    It is clear that Mr Turner appointed his brother, Mr Anthony Turner, as Supervisor of the RG Trust, in order that Mr Anthony Turner would exercise his powers as Supervisor to remove Boyded as trustee of the RG Trust and appoint Heartland One as replacement trustee. Mr Anthony Turner gave evidence that this was the purpose of his appointment as Supervisor and, consistently with this, McCabes sent a letter to the OSR on behalf of Heartland One two days after Mr Anthony Turner’s appointment, stating that: “The Supervisor proposes to appoint [Heartland One] as the sole trustee of the [RG] Trust.”

56. [365]

    The question which then arises is what was Mr Turner’s purpose in taking those steps for the removal and replacement of Boyded.

57. [366]

    The Defendants placed reliance on Mr Turner’s evidence that he believed, as a result of the privileged conversation which he had overheard on 20 March 2023, that “the assets of the [RG Trust] were not likely to be administered properly if [Ms Richards], and possibly also [Ms Hooker], were in control of Boyded Industries: and that “under [Ms Richards’] administration, the distributions of the trust would not be administered fairly.”

58. [367]

    The Defendants submitted that it was not put to Mr Turner that he did not, in fact, hold those views from 20 March 2023 and that, in those circumstances, an “alternative finding is not reasonably open”, having regard to the evidence before the Court and the rule in Browne v Dunn (1893) 6 R 67.

59. [368]

    In closing written submissions, the Plaintiffs contended as follows:

60. [369]

    I do not accept that the Plaintiffs were infringing the rule in Browne v Dunn by putting a submission in those terms. The Plaintiffs tested, at some length, Mr Turner’s affidavit evidence regarding the concerns which he held as a result of the privileged conversation which he overheard on 20 March 2023, and the Plaintiffs put to Mr Turner, in cross-examination, that he was in fact acting for the purpose of taking control of the RG Trust away from his aunts, and placing it in his own hands. In response to those questions, Mr Turner repeated that he was seeking to “protect the trust assets”:

61. [370]

    Although the question to be determined is Mr Turner’s subjective purpose in exercising his powers as Appointor to appoint his brother as Supervisor, it does not follow that Mr Turner’s repeated assertions in cross-examination that he was acting to “protect the trust assets” are decisive. Such evidence regarding a person’s state of mind at the time of particular past events must be approached with caution, particularly because of the risk that it may be, consciously or unconsciously, influenced by the issues raised and positions adopted by the parties in the litigation (see paragraphs [89]-[90] above).

62. [371]

    There are a number of difficulties with Mr Turner’s evidence that the reason why he wanted to gain control of the RG Trust was due to a desire to “protect” the trust assets from the “fraudulent plot” which Ms Richards had discussed with her lawyers.

63. [372]

    First, Mr Turner could not identify, by reference to the recording and transcript of the conversation between Ms Richards and her lawyers, any particular statements made in the course of that conversation which caused him to have this alleged concern about a “fraudulent plot” (see paragraphs [333]-[335] above).

64. [373]

    Secondly, it is difficult to see how the statements made in the overheard conversation could give rise to any rational apprehension of a “fraudulent plot”. The highest the conversation goes is that Mr Scott suggested to Ms Richards that the trustee might be able to make a distribution with the effect of “equalising” distributions made by the RG Trust, so as to bring them into line with the shareholdings in BG Webb, and thereby make the overall position “fair”. This was said in a context where it was common ground that, other than in respect of sale proceeds of the Parramatta and Lakemba Properties, distributions had been made in the past in accordance with those shareholdings, and Mr Turner was aware that Ms Richards had previously disputed whether there had been agreement to vary this practice in respect of distributions from the Parramatta and Lakemba sale proceeds (other than in respect of the first tranche of the sale proceeds of the Parramatta Property). In response, Ms Richards did not indicate any intention to pursue this recommendation and stated that it would be opposed by Mr Turner. Mr Scott acknowledged that any such decision by the trustee would need to be done “properly” and that there would need to be “a court case”, to consider whether this was “fair”.

65. [374]

    Thirdly, Ms Richards was not, at any time, in control of the administration of the RG Trust. At all relevant times up until the execution of the Trustee Deed by Mr Anthony Turner on 30 April 2025, the trustee of the RG Trust was Boyded, and the directors of Boyded were Mr Turner and Ms Richards. The ultimate holding company of Boyded is BG Webb, in which Ms Richards held an interest of approximately 30%. Ms Richards therefore did not have control over the administration of the trust assets or over distributions from the RG Trust. Although Mr Turner was aware, in 2024 and 2025, that Ms Richards and Ms Hooker (who also held 30% of BG Webb) were seeking to take control of various entities within the Heartland Motors Group, including Boyded, he does not state in his affidavit that he had any genuine concern that Ms Hooker (who has been a director of Boyded since Mr Turner was replaced) would not properly administer the assets of the RG Trust, or would act unfairly in making distributions, let alone identify any basis for such a concern. Instead, he states that, as a result of the overheard conversation between Ms Richards and her lawyers, he had a concern that “Joanne and possibly Bernice” would not administer the RG Trust properly. He did not elaborate on how a conversation, in which Ms Hooker did not participate, could give rise to any such concern about Ms Hooker.

66. [375]

    Having regard to those matters, I do not consider that there was any rational basis for Mr Turner to hold the view, based on the recorded conversation between Ms Richards and her lawyers, that if Ms Richards and Ms Hooker obtained control of Boyded, the trust would be administered, or distributions would be made, in a manner that was “fraudulent”, or that there was a need to “protect” the trust assets from any such “fraudulent plot”. The lack of any rational basis for such a concern makes it unlikely that any such concern was genuinely held by Mr Turner.

67. [376]

    I accept that, on a number of occasions prior to the commencement of this proceeding, Mr Turner made statements to the effect that the recording of Ms Richards’ conversation with her lawyers indicated that she intended to engage in “fraud”. For example:

    1. (1)

       on 14 May 2024, Mr Turner sent an email to Ms Richards, in which he referred to “your overarching fraudulent scheme, which is clearly evident in our Board Meeting recording”, and stated that: “if you don’t remember the level of fraud, you and your legal team are embroiled in then I suggest you listen clearly, it’s absolutely shocking and simply unacceptable”;

    2. (2)

       on 19 November 2024, Mr Turner sent an email to Ms Richards in which he referred to her recorded conversation with Mr Scott, stating as follows:

    3. (3)

       on 13 February 2025, Mr Turner wrote to Ms Richards’ solicitor, stating that Ms Richards had, at meetings via Zoom, been “hiding lawyers and other advisers out of [sight] … while strategizing fraudulent conduct”.

68. [377]

    However, the fact that Mr Turner stated, in hostile communications with Ms Richards (which were, as explained below, often characterised by insulting language), that she was guilty of “fraud” does not establish that he, in fact, held any genuinely founded concerns about the manner in which the RG Trust would be administered in the event that Ms Hooker and Ms Richards obtained control of Boyded. Nor do I consider that matters are significantly advanced by the fact that Ms Richards conceded, in cross-examination, that Mr Turner communicated to her that he was “very upset”, and appeared to feel very strongly, about the conversation that he had overheard. The issue is not whether Mr Turner angrily and forcefully questioned Ms Richards’ motivations in his communications with her, but whether he took steps to remove Boyded as trustee out of any genuine concern to protect the trust assets, or for some other purpose.

69. [378]

    The Defendants also relied on the fact that Mr Anthony Turner had given unchallenged evidence that, after overhearing the recorded conversation between Ms Richards and her lawyers, Mr Turner had expressed to him a concern that “Joanne (including possibility [sic] with Bernice) may take steps to take control of Boyded, and in turn the [RG Trust] and that should that occur, would be in a position to alter distributions”. That bears a close similarity with Mr Turner’s evidence regarding his concerns, after overhearing the conversation, “if Joanne, and possibly also Bernice, were in control of Boyded”. Although Mr Anthony Turner’s evidence of the conversation was not specifically challenged, I do not place significant weight on his recollection of a conversation around two-and-a-half years ago, which is not recorded in any contemporaneous document, particularly where there is a risk that such evidence may, consciously or unconsciously, be affected by subsequent events and the allegations advanced in the proceeding, and where there is evidence that Mr Anthony Turner has previously, as a result of Mr Turner’s intervention, adjusted his evidence of a recollected conversation in proceedings relating to the Heartland Motors Group (see paragraph [224] above).

70. [379]

    For reasons given above, I have serious reservations about the credibility and reliability of Mr Kieran Turner’s testimony. Given those reservations, it is necessary to evaluate his testimony as to his subjective purpose in light of the objectively established facts and the apparent logic of events.

71. [380]

    In particular, it is necessary to place Mr Turner’s appointment of his brother as Supervisor in the context of the broader struggle for control of the Heartland Motors Group between Mr Turner and Ms Richards, which had been going for some time, and was continuing, as at September 2024. In particular:

    1. (1)

       in June 2022, Ms Richards and Ms Hooker had sought to have Ms Hooker appointed as a director of BG Webb and Mr Turner had brought the 2022 Oppression Proceeding in an (unsuccessful) attempt to prevent this from occurring;

    2. (2)

       in December 2022, Mr Turner had purported, over Ms Richards’ opposition, to appoint his brother, Mr Anthony Turner, as a director of various Operating Entities including Boyded (in circumstances where he had, in fact, no power unilaterally to do so);

    3. (3)

       in May 2024, Mr Turner and his brother purported to pass resolutions removing Ms Richards as a director of various Operating Entities, including Boyded;

    4. (4)

       in June 2024, Ms Richards and Ms Hooker brought the 2024 Directors Proceeding challenging those actions, which led to the Court finding that Mr Anthony Turner was not, and Ms Richards was, a director of various Operating Entities, including Boyded;

    5. (5)

       in the midst of the events set out in paragraphs (3) and (4) above, Mr Turner fabricated the two versions of the “1 May 2017” Minutes which purported to record Ms Richards as having approved his appointment as Appointor, and incorporated Heartland One for the purpose of removing Boyded as trustee;

    6. (6)

       shortly after the 2024 Directors Proceeding was determined adversely to him, and a few days after filing a notice of intention to appeal that decision, Mr Turner purported to exercise his powers as Appointor to appoint his brother as Supervisor of the RG Trust and caused a letter to be sent to the OSR stating that the Supervisor intended to replace Boyded with Heartland One as Trustee of the RG Trust; and

    7. (7)

       subsequently, in April 2025, Mr Anthony Turner purported, as Supervisor, to remove and replace Boyded as Trustee of the RG Trust on the day before the decision in the 2025 Directors Appeal was delivered, and two days before the May 2025 EGM was to be held to consider resolutions to appoint Ms Hooker as a director of Heartland Group.

72. [381]

    Having regard to those matters, I find that Mr Turner’s purpose in appointing his brother as Supervisor was so that he could, in the event that his aunts gained control of the Operating Entities in the Heartland Motors Group (and, in particular, Boyded), take away control of the RG Trust from the Group and to place such control exclusively in his own hands. It was a move that was, like the others which he had taken, designed to frustrate his aunts’ attempts to gain control of the Heartland Motors Group, including Boyded.

73. [382]

    Mr Turner gave the following evidence when asked, in cross-examination, why he had decided that he, rather than any corporate entity of the Heartland Motors Group, should be appointed as Appointor of the RG Trust:

74. [383]

    It is likely that, in appointing his brother as Supervisor of the Trust, Mr Turner was seeking to ensure that, if he lost control of Boyded, he would remain “boss of the trust”.

75. [384]

    In short, Mr Turner was not acting out of a legitimate concern to protect the interests of the objects of the RG Trust, but was instead acting out of a desire to gain exclusive control of the management of the affairs of the RG Trust and to frustrate his aunts’ attempts to gain control of the Heartland Motors Group (including the corporate trustee of the trust which held the valuable real estate assets that were integral to the operation of the Group’s car dealership business). As such, he was exercising his powers as Appointor for an improper purpose.

76. [385]

    Accordingly, if (contrary to the findings set out above), I had determined that Mr Turner was validly appointed as Appointor of the RG Trust, I would have found that his purported exercise of his powers as Appointor to appoint Mr Anthony Turner as Supervisor of the RG Trust was invalid and of no effect.

77. [386]

    Given the findings I have made above, the question as to whether Mr Anthony Turner acted for a proper purpose in exercising his powers as Supervisor to replace Boyded with Heartland One as trustee of the RG Trust does not arise. In case I am wrong on those antecedent issues, I have addressed this matter briefly below.

78. [387]

    Mr Kieran Turner gave evidence that the execution of the Trustee Deed one day before judgment in the Directors Appeal was delivered was “a coincidence”, but otherwise responded “I don’t recall” to various questions regarding the execution of that document. For example, he stated that he could not recall “the reason why this document was prepared”, or whether he was the person responsible for the document being drafted, or whether his “concerns” about the existing trustee were “the reason why this document was prepared”, or whether he asked his brother to execute the document, or even whether he understood that the purpose of the document was to remove Boyded as the trustee of the RG Trust (adding “I’d need to get legal advice”). Mr Turner stated, in cross-examination, that the decision to remove and replace the trustee was a decision taken by his brother, and not by him:

79. [388]

    The Defendants submitted that the Plaintiffs had not challenged Mr Anthony Turner’s evidence concerning his reasons for executing the Trustee Deed. In particular, Mr Anthony Turner deposed that, “[a]t the time of executing the [Trustee Deed]”, he “considered … the concerns” which he held as a result of the overheard conversation between Ms Richards and her lawyers, namely, his concerns that:

80. [389]

    I do not accept the submission that there was no challenge in cross-examination to the proposition that Mr Anthony Turner “considered” these “concerns” at “the time of executing” the Trustee Deed. In particular, Mr Anthony Turner was, in cross-examination, directed to the terms of Recital K to the Trustee Deed, which states as follows:

81. [390]

    Mr Anthony Turner was then asked the following question:

82. [391]

    That evidence is directly inconsistent with, and undermines the reliability of, Mr Anthony Turner’s affidavit evidence on this issue.

83. [392]

    Further, Mr Anthony Turner gave evidence in cross-examination that:

    1. (1)

       he was not aware that a draft of the Trustee Deed had been prepared more than seven months earlier, in September 2024 (when it was provided to the OSR);

    2. (2)

       he did not provide any instructions or any input into the preparation of the Trustee Deed;

    3. (3)

       he was “probably not” aware of the powers of the Supervisor at the time he signed the Trustee Deed; and

    4. (4)

       he did not, at the time of signing the Trustee Deed, “give any consideration at all” to the consequences of doing so.

84. [393]

    In light of this evidence, if it were necessary to determine the issue, I would have found that Mr Anthony Turner did not, in executing the Trustee Deed, exercise the power to remove and replace the trustee of the RG Trust upon any real and genuine consideration. In particular, there was not the “exercise of an active discretion” by Mr Anthony Turner, involving any informed consideration of whether or not to exercise the power to remove and replace Boyded as the trustee, since he proceeded to execute the Trustee Deed without having provided any input into its drafting, without turning his mind to the matters stated in the Recitals as being his reasons for the entry into the Trustee Deed, and without giving “any consideration at all” to the consequences of executing the Trustee Deed. Having regard to those matters, it is likely that Mr Anthony Turner executed the Trustee Deed because his brother asked him to do so and that he was therefore, in effect, acting under the direction of Mr Kieran Turner when he purported to exercise his powers as Supervisor.

85. [394]

    For those reasons, even if Mr Anthony Turner was validly appointed, the purported removal and replacement of Boyded as trustee of the RG Trust was invalid and of no effect.

86. [395]

    Finally, the Plaintiffs submitted that, even if each of the issues set out above was determined adversely to them, the appointment of Heartland One was invalid, having regard to the terms of the express proviso in clause 19(2) of the RG Trust Deed. This clause provides as follows:

87. [396]

    The Plaintiffs submitted that the power to remove and replace the trustee was exercised, on 30 April 2025, in order to “preserve (and enhance) Kieran’s ability to control the affairs of the RG Trust” and was therefore exercised “for the personal benefit of the Appointor”, thus offending the proviso set out above and rendering the purported exercise of the power ultra vires and invalid.

88. [397]

    Insofar as this submission is a variant of the Plaintiffs’ submission that Mr Turner was not acting for a proper purpose in appointing Mr Anthony Turner as Supervisor, and Mr Anthony Turner was not acting for a proper purpose in removing and replacing the trustee of the RG Trust, and relies on the same factual matters, then this submission adds nothing of substance to the matters which have already been addressed above.

89. [398]

    Insofar as this submission arises in the event only that the other matters set out above have been determined adversely to the Plaintiffs (and therefore, in the event that each of Mr Turner and Mr Anthony Turner was validly appointed and was acting for a proper purpose), then it would arise only where I had determined that the appointment of Heartland One was made for the purpose of protecting the interests of the beneficiaries of the RG Trust, and ensuring that distributions were made fairly to beneficiaries (with Mr Turner being excluded, by reason of his appointment as Appointor, from the class of General Beneficiaries in the RG Trust Deed). It follows that, if the issue had arisen in the context of such findings, I would have concluded that the appointment of Heartland One as trustee of the RG Trust was not for Mr Turner’s personal benefit.

Relief in respect of Trustee Claim

1. [399]

   For the reasons set out above, the Plaintiffs have established their claim. It follows that the purported appointment of Heartland One as trustee of the RG Trust was invalid, and that Boyded remains the trustee. The Plaintiffs are entitled to declaratory relief to this effect.

2. [400]

   It also follows that the Cross-Claimants’ claim for an order compelling Boyded to transfer all property of the RG Trust to Heartland One will be rejected.

3. [401]

   The Plaintiffs submitted that the Court should, in addition, permanently restrain each of Mr Turner, Mr Anthony Turner and Heartland One from purporting to deal with the property of the RG Trust, in circumstances where they have previously made demands for the transfer of all property held by the RG Trust to Heartland One, and where they ceased such demands after each of them gave an undertaking to the Court, on 29 May 2025:

4. [402]

   It is also relevant that, on 29 April 2025, Mr Turner had asserted to a representative of the NAB that he was the Appointor of the RG Trust and, as such, had “the legal power to buy, sell, finance, etc these Trust/assets properties.”

5. [403]

   The Defendants did not advance any submission to the effect that, if the Plaintiffs succeeded in their claim, such final injunctive relief should not be granted.

6. [404]

   Having regard to the matters outlined above, I am satisfied that it is appropriate to grant the relief sought by the Plaintiffs.

Overview of Issues

1. [405]

   On 6 May 2025, Ms Richards sent a letter on behalf of Heartland Motors to Mr Turner, which was headed “Termination of your employment with Heartland Motors Group (Company)” (Termination Letter).

2. [406]

   The Termination Letter stated that the Board had decided to terminate Mr Turner’s employment “in accordance with clause 9.2 of your employment contract dated 17 March 2009”.

3. [407]

   By the Further Amended Statement of Claim, Heartland Motors seeks a declaration that Mr Turner’s employment was terminated on 6 May 2025.

4. [408]

   By the Further Amended Cross-Claim, Mr Turner contends that his employment was not “validly and effectively terminated”, and seeks damages for breach of contract. (Senior Counsel for Mr Turner confirmed in opening address that his client did not press his claim for specific performance of the employment contract.)

5. [409]

   In closing submissions, the Cross-Claimants identified the following primary questions arising on Mr Turner’s claim for breach of contract.

   1. (1)

      First, what was the form of his contract of employment as at 6 May 2025 (in particular, was it written or implied, or some combination of the two)?

   2. (2)

      Secondly, what were the terms of the contract relevant to the exercise of any power of termination?

   3. (3)

      Thirdly, what was the purpose, manner and effect of the termination on 6 May 2025?

   4. (4)

      Fourthly, having regard to the answers to (1)-(3) above, did Heartland Motors breach the terms of the employment contract by the termination of Mr Turner’s employment on 6 May 2025?

Form and terms of contract of employment?

1. [410]

   The Cross-Defendants contended that the contract of employment was written, and was in the form of the Executive Employment Agreement which was executed by Heartland Motors and Mr Turner, and was dated 17 March 2009.

2. [411]

   The recitals to the Executive Employment Agreement stated as follows:

3. [412]

   Clause 2.1 provided as follows:

4. [413]

   Clauses 5.1 and 5.2 provided as follows:

5. [414]

   Clause 2.2 provided that the Executive’s employment shall commence on 1 September 2008 “and will continue until terminated in accordance with clause 2.3 or 9 of this Agreement (the Term)”. There was no clause 2.3 of the agreement. Clause 9 was headed “Termination” and clauses 9.1-9.4 relevantly provided as follows:

6. [415]

   The Cross-Claimants contended that:

   1. (1)

      the Executive Employment Agreement was intended to regulate the employment relationship in the period when Mr Turner was employed as Deputy CEO, which lasted until May 2009 (at which time he was employed as CEO, following the retirement of Mr Ware); and

   2. (2)

      the employment relationship between Mr Turner and Heartland Motors as at May 2025 was “materially different from that recorded in this old document”, including by reason that:

7. [416]

   The Cross-Claimants submitted that the appropriate conclusion to be drawn is that the parties did not intend for the terms of the Executive Employment Agreement to govern Mr Turner’s employment at any time since he was employed as CEO, and that, as at May 2025, the terms of his contract were unwritten, with the contract arising from a course of conduct between the parties over an extended period of time. Specifically, the terms of that contract were said to include:

   1. (1)

      an obligation on the part of Heartland Motors to act in good faith towards Mr Turner, including in the exercise of powers and in performance of the contract; and

   2. (2)

      an obligation, if and to the extent it was open to Heartland Motors to terminate, to give Mr Turner reasonable notice of termination.

8. [417]

   In Tallerman and Company Proprietary Ltd v Nathan’s Merchandise (Victoria) Proprietary Ltd (1957) 98 CLR 93 at 144; [1957] HCA 10, Taylor J observed that:

9. [418]

   In Commissioner of Taxation (Cth) v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520; [2000] HCA 35 at [24], Gleeson CJ, Gaudron, McHugh and Hayne JJ said that Taylor J’s observations in Tallerman accorded with principle and authority.

10. [419]

    In Concut Pty Ltd v Worrell [2000] HCA 64 at [18]–[19], Gleeson CJ, Gaudron and Gummow JJ referred to the decisions in Tallerman and Sara Lee Household and observed that, as with other issues of contractual formation, whether a change to the employment relationship results in a variation of the existing contract of employment or its replacement is to be ascertained objectively in all of the circumstances.

11. [420]

    In Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567 at 576, Ashley J observed that:

12. [421]

    Ashley J found (at 577-578) that, on the facts of that case, a far-reaching change in the plaintiff’s situation which was “not within the original contemplation of the parties and not comprehended by [their original contract]” gave rise to a fresh contract of service, not merely a variation of the original one.

13. [422]

    In Westpac Banking Corporation v Wittenberg (2016) 242 FCR 505; [2016] FCAFC 33 at [249], Buchanan J (with whom McKerracher and White JJ agreed) said that the decision in Quinn v Jack Chia did not represent “any new statement of principle”, but instead represented the application of “ well established contract and employment law principles” to the “striking facts” of that case.

14. [423]

    Buchanan J observed (at [257]) that, in a case where it is said that a contract of employment has been replaced in an ongoing relationship of employment (or even that its terms have been varied), the search is for an imputed mutual intention that such a change in the contractual landscape has occurred.

15. [424]

    In Easling v Mahoney Insurance Brokers (2001) 78 SASR 489; [2001] SASC 22 at [8], Doyle CJ observed that: “a court should not too readily assume that a change in working arrangements, or in the duties of an employee, involves either a variation to an existing contract, or the making of a new contract.” His Honour added (at [9]-[10]) that:

16. [425]

    In Spartalis v BMD Constructions Pty Ltd (2014) 120 SASR 575; [2014] SASCFC 124, a Full Court of the Supreme Court of South Australia referred to the observations of Doyle CJ in Easling, and to the decision in Quinn v Jack Chia, and said that:

17. [426]

    In Wittenberg, Buchanan J, after reviewing the relevant authorities, made the following observations (at [261]-[262]):

18. [427]

    As outlined above, it is common ground that the Executive Employment Agreement was executed by Heartland Motors and Mr Turner, and that this contract governed their employment relationship after it was entered on 17 March 2009. The question for determination is whether the parties must have intended that it ceased to govern the employment relationship from around the time that Mr Turner was appointed as CEO in May 2009.

19. [428]

    The Cross-Claimants placed particular reliance on the fact that the Executive Employment Agreement provided that Mr Turner would be employed in the position of Deputy CEO, that he would be required to report to the CEO (Mr Ware), and that he would be required to perform such duties as his employer (Heartland Motors) may reasonably require from time to time: clauses 2.1, 5.1 and 5.2. Further, the agreement provided that Mr Turner’s remuneration was specified to be a base salary of $315,000, together with superannuation contributions and the provision of “a fully expensed motor vehicle”: clauses 3.1 and 3.5.

20. [429]

    The Cross-Claimants submitted that the changes to the employment relationship between Mr Turner and Heartland Motors, which occurred following the execution of the Executive Employment Agreement, included that:

    1. (1)

       Mr Turner was appointed as CEO following Mr Ware’s retirement;

    2. (2)

       as CEO, he reported directly to the Board, and to nobody else;

    3. (3)

       as CEO, he had extensive delegated responsibility for the conduct of the Group’s affairs, including decisions on a range of operational matters, such as negotiating deals with Manufacturers, leasing premises and settling salaries; and

    4. (4)

       several entities in the Group did not exist while he was Deputy CEO (including Heartland Blacktown, Heartland Penrith, BGW Nominees and HMG Parts);

    5. (5)

       on employment as CEO, his salary was increased to $550,000 and was further increased over time to be, as at May 2025, $1,015,000, plus bonuses of about $50,000 per month.

21. [430]

    Heartland Motors did not dispute that those changes had occurred. The critical issue is whether, having regard to those changes, the Court should objectively impute to the parties a mutual intention that the employment relationship between them should no longer be governed by the terms of their written agreement.

22. [431]

    Such an intention should not be lightly imputed, as it could have drastic and potentially damaging results for both parties: see Easling, Spartalis and Wittenberg, quoted above.

23. [432]

    Significantly, the Executive Employment Agreement was not specified to be a contract for Mr Turner’s employment as Deputy CEO. Instead, it provided for his employment “in the position of Deputy Chief Executive Officer or such other position or positions determined by [Heartland Motors] in accordance with this Agreement and with the consent of [Mr Turner] which consent shall not be unreasonably withheld” (clause 5.1).

24. [433]

    One oddity of the present case is that the Executive Employment Agreement was executed by Mr Turner not only in his own right, but also as “Chairman of Directors” of Heartland Motors.

25. [434]

    It was plainly contemplated by both parties, at the time of entry into this agreement in March 2009, that Mr Turner would become the CEO of Heartland Motors upon the retirement of Mr Ware (which occurred shortly afterwards). Mr Turner deposed that his grandfather, Mr Webb, had stated that it was his dying wish that Mr Turner “become CEO of the Group when [he] was ready to take on the role”, and that Mr Ware had, in the period between 2005 and 2009, “trained [Mr Turner] to take over as CEO”. Further, the plan to instal Mr Turner as CEO had led to a dispute, in 2008, between the Webb family and the Auswild family, which appears to have precipitated the latter’s departure from the business.

26. [435]

    Having regard to those matters, it is likely that the parties, in framing the agreement as an Executive Employment Agreement which would apply to the position of Deputy CEO “or such other position … as determined by” Heartland Motors intended that the agreement would apply to Mr Turner’s prospective employment as CEO.

27. [436]

    The terms of the Executive Employment Agreement regarding the Executive’s duties and responsibilities were sufficiently broad to address the contemplated promotion of Mr Turner to this role. Clause 5.1 required the Executive to perform “such duties and responsibilities as the Employer may reasonably require from time to time”, and clause 5.3 provided as follows:

28. [437]

    I accept that, over the course of the period of sixteen years since the entry into the Executive Employment Agreement, there have been significant increases to Mr Turner’s salary, and that there have been new corporate entities added to the Heartland Motors Group. However, those matters are not sufficient to establish, either individually or in combination with the other matters set out above, that there has been such a fundamental change in the employment relationship between Mr Turner and Heartland Motors that the Court should impute to those persons an abandonment of their written agreement. For example, while new corporate entities may have come into existence, Mr Turner deposed that, for “the majority of [his] time as CEO”, he was “performing duties for Heartland Motors” (that is, the counterparty to the Executive Employment Agreement) and “reporting to the directors of Heartland Motors and BG Webb”. Further, the increase to Mr Turner’s salary over the course of his sixteen years of employment equates to an increase of approximately 8% year-on-year, which is not a level of increase such as to indicate that there has been a fundamental change in his role or responsibilities.

29. [438]

    In addition, Mr Turner has previously, in the course of earlier litigation regarding the Heartland Motors Group (in which he was legally represented), asserted that his employment as CEO is governed by the terms of the Executive Employment Agreement. For example, in an affidavit sworn in the 2024 Directors Proceeding, he deposed that he was “appointed CEO of the Group” in 2009 and identified his “employment agreement” as being the Executive Employment Agreement dated 17 March 2009 (which he exhibited to his affidavit). He also made a similar statement in an affidavit which he prepared for the 2025 Federal Court Proceeding. In his affidavit in the present proceeding, Mr Turner claimed that he “did not look carefully” at the Executive Employment Agreement, at the time of swearing either of those two earlier affidavits. I do not accept this evidence. It is plain that Mr Turner is someone who is heavily invested in the various proceedings relating to the Heartland Motors Group. It is likely that he has been closely involved in the preparation of his affidavit evidence and has reviewed its contents carefully. It is unlikely that he would have expressly referred to the Executive Employment Agreement, and exhibited it to his affidavit, if he was of the view that it was outdated and of no relevance to his role as CEO. The suggestion that some other agreement governs his employment appears to have first been raised following his termination.

30. [439]

    The Executive Employment Agreement contained a number of provisions regarding various matters which were undoubtedly of importance to Heartland Motors, including provisions regarding intellectual property rights (cl 7), confidential information (cl 8), and restrictive covenants (cl 10).

31. [440]

    Similarly, this agreement contains other provisions which were undoubtedly of importance to Mr Turner, such as provisions relating to superannuation (cl 3), reimbursement of expenses (cl 3.7), hours of duty (cl 4) and leave (cl 6).

32. [441]

    There would be no reason to think that such important provisions would cease to apply by reason of Mr Turner’s promotion from Deputy CEO to CEO (particularly where that promotion was contemplated by both parties at the time of entry into the agreement). Having regard to those matters, any change in Mr Turner’s responsibilities would, at its highest, give rise to a question as to whether the terms of the contract had been varied, rather than abandoned (see Wittenberg at [282]).

33. [442]

    In that regard, Mr Turner contended that the Court should find that it was a term of his contract of employment that termination could only occur on reasonable notice and that, having regard to matters such as the length of his employment, the seniority of his position, the size of the business, the amount of his salary, his qualifications and experience, and the difficulty of finding new employment of a similar nature, a reasonable notice period was two years.

34. [443]

    Any variation (like any notion of replacement or novation) would depend upon an intention imputed to the parties: Wittenberg at [283].

35. [444]

    Even if I had determined that Mr Turner’s responsibilities as CEO fell outside the scope of the Executive Employment Agreement, I would have found that Mr Turner had consented to the expansion of his responsibilities and had, in return, been rewarded by the receipt of a substantial salary and other inducements. There would be no reason to impute to the parties, from such circumstances, a mutual desire to abandon the provisions of clause 9.2 – which provided that either party may terminate the Executive Employment Agreement by giving to the other party “not less than one month’s notice in writing” – in favour of some unspecified limitation, which may well have fettered Mr Turner’s own discretion (see Wittenberg at [284]-[285]).

36. [445]

    For those reasons, I find that the terms of the Executive Employment Agreement, including clause 9.2, continued to apply to the employment relationship between Heartland Motors and Mr Turner as at 6 May 2025.

Was there a requirement to give reasonable notice?

1. [446]

   The Cross-Claimants submitted that, even if the Court found (as set out above) that the Executive Employment Agreement (including cl 9.2) continued to apply as at 6 May 2025:

   1. (1)

      there was implied into the contract a term requiring Heartland Motors to give reasonable notice of termination;

   2. (2)

      this implied term was not “wholly excluded” by clause 9.2, which provided that the contract “could not be terminated on ‘less than’ one month’s notice”; and

   3. (3)

      it followed that, while the period of notice could in no case be less than a month, the period of notice which was to be given remained governed by the implied term of reasonableness.

2. [447]

   In Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32 at [30], French CJ, Bell and Keane JJ observed that employment contracts have attracted a number of implied terms in the course of the evolution of the employment relationship, including an implied term to give reasonable notice of the termination of the contract other than for breach. Their Honours added: “All such terms are subject to the express provisions of the particular contracts and any applicable statutes.”

3. [448]

   In New South Wales Cancer Council v Sarfaty (1992) 28 NSWLR 68 at 73-74, Gleeson CJ and Handley JA referred to the decision of the House of Lords in McClelland v Northern Ireland General Health Services Board [1957] 1 WLR 595, and made the following observations:

4. [449]

   In the present case, clause 9.2 expressly provided that each of Heartland Motors and Mr Turner was able to terminate the agreement “on not less than one month’s notice”. That is inconsistent with any intention that neither party could terminate unless reasonable notice was given. Any such restriction on termination would give rise to uncertainty, for both parties to the contract, and undercut the evident intention of clause 9.2, which was to ensure that both parties were free to terminate so long as at least one month’s notice was given.

5. [450]

   That does not mean, however, that notions of reasonableness and good faith have no part to play.

6. [451]

   The Cross-Claimants referred to the decision in Adventure World Travel Pty Ltd v Newsom (2014) 86 NSWLR 515; [2014] NSWCA 174. In that case, a contract of employment provided that: “Either party may terminate this agreement and the Employment at any time by giving the other party not less than 12 months prior written notice during the 2 years period from the Commencement Date and thereafter by providing 3 months prior written notice.”

7. [452]

   The employee, Mr Newsom, issued a notice shortly before the end of the two-year period specified in this clause, giving 12 months’ notice of his resignation. The employer then purported, after the conclusion of the specified two-year period, to give three months’ notice (thereby seeking to terminate the employment at an earlier date than would have been the case pursuant to the employee’s notice). In contending that the contract should be interpreted as permitting multiple notices, the employer argued that, were this not so, the employee could give notice terminating the employment in 5, 10 or 20 years’ time, each of which would be “not less than 12 months”, and the employer would be bound to that period. Meagher JA (with whom McColl and Leeming JJA agreed) dealt with this submission as follows (at [26]):

8. [453]

   Having regard to these principles, I accept that the exercise of the power in clause 9.2 of the Executive Employment Agreement to terminate on not less than one month’s notice is constrained by implied obligations that such power be exercised in good faith and reasonably, and not capriciously or for some extraneous purpose. This does not amount to a finding that, despite the terms of clause 9.2, the Executive Employment Agreement could only be terminated by either party on reasonable notice. In Burger King Corporation v Hungry Jack's Pty Ltd (2001) 69 NSWLR 558; [2001] NSWCA 187, the Court (Sheller, Beazley and Stein JJA) observed that:

   1. (1)

      the relevant authorities make no distinction of substance between the implied term of reasonableness and that of good faith, with Priestley JA stating in Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 263 that: “The kind of reasonableness I have been discussing seems to me to have much in common with the notions of good faith” (at [169]; and see also [170]); and

   2. (2)

      the concept of good faith is understood as including “an obligation on the parties to co-operate in achieving the contractual objects (loyalty to the promise itself)”, “compliance with honest standards of conduct” and “compliance with standards of conduct which are reasonable having regard to the interests of the parties” (at [171], referring to Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 at 367; and see also Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 at [145] per Bathurst CJ (Meagher and Macfarlan JJA agreeing)).

9. [454]

   Importantly, the implied obligation of good faith and reasonableness does not require a party to act in the interests of the other party or subordinate its own legitimate interests to those of the other party, although it does require it to have due regard to the rights and interests of the other party: Cordon Investments at [144].

10. [455]

    The question as to whether this implied obligation was breached by Heartland Motors in terminating Mr Turner’s employment is considered below.

What was the purpose, manner and effect of the termination on 6 May 2025?

1. [456]

   The Cross-Claimants submitted that, having regard to the purpose, manner and effect of the termination of Mr Turner’s employment on 6 May 2025, Heartland Motors breached its implied obligation of good faith and reasonableness.

2. [457]

   As regards the purpose of the termination, the Cross-Claimants submitted that Ms Richards and Ms Hooker caused Heartland Motors to terminate Mr Turner’s employment “in execution of a pre-arranged strategy to enable a sale of the Group’s shares to a third party”, believing that this termination would “cause him significant distress and weaken his attachment to the Group, and that this would make Turnercorp more willing to sell its shares”.

3. [458]

   As regards the manner of the termination, the Cross-Claimants submitted that Ms Richards and Ms Hooker adopted a “secretive blitzkrieg” strategy, which involved not taking any steps which might forewarn Mr Turner of their intention to remove him, until they were ready to put their plan into effect. The Cross-Claimants submitted that this strategy demonstrated a lack of good faith, since it was “calculated to, and had the effect of, ensuring that [Mr Turner] could not seek to protect himself, including by seeking the assistance of this Court” and “involved giving him no opportunity to consider and be heard on any so-called ground for termination”.

4. [459]

   As regards the effect of the termination, the Cross-Claimants submitted that the intended, actual and foreseeable effect of the termination was to “deprive [Mr Turner] of his long standing and much valued employment, and leave him immediately unemployed and humiliated”, despite his having “worked hard over decades to grow and develop the businesses, in the process making and distributing millions upon millions of dollars for the personal use and enjoyment of [Ms Richards] and [Ms Hooker], who themselves had contributed next to nothing”.

5. [460]

   Further, the Cross-Claimants contended that the effect of the termination was to cause the dealer subsidiaries in the Group “to commit events of default under most dealership agreements”. (I will deal with this issue separately below, when considering the oppression claim.)

6. [461]

   The Cross-Claimants submitted that Ms Richards and Ms Hooker took steps to remove Mr Turner as CEO of the Heartland Motor Group and as a director of the operating entities for the purpose of “persuading Turnercorp to sell its shares [in BG Webb] so as to facilitate their exit from the Group (and possibly with the benefit of Turnercorp’s shares as well if, in its weakened state, it agreed to be bought out following Kieran’s termination)”.

7. [462]

   Each of Ms Richards and Ms Hooker had, in the past, expressed an interest either in selling the entirety of the Heartland Motors Group to a third party (such as Mr Nick Politis, with whom they had discussions in 2021: see paragraph [39] above), or in selling their shares to Mr Turner. There had been a number of discussions with Mr Turner regarding such a sale, but none had progressed very far.

8. [463]

   The Cross-Claimants’ submissions on this issue focussed, in particular, on a sale strategy which was said to have been formulated by Ms Richards and Ms Hooker following the engagement of Dr Tony Rumble of The Wealth Partnership, who in turn engaged Mr Rohan Meyer as a consultant in around December 2023. The engagement letter for Mr Meyer stated that Ms Richards and Ms Hooker were seeking advice and services “in relation to their dispute with Kieran Turner, and to assist with the maximisation and monetisation of the value of their capital invested in the Heartland Group of Companies”. The particular services to be provided by Mr Meyer included the following (emphasis added):

9. [464]

   Similarly, in November 2023, Dr Rumble sent an email to Ms Richards and Ms Hooker regarding his discussions with another consultant, Mr Steve Rivers, in which Dr Rumble reported that he had informed Mr Rivers that “[Ms Richards and Ms Hooker] don’t wish to continue to be [in the] motor business going forward ie [their] goal is to monetise the value of the businesses”.

10. [465]

    Ms Richards conceded, in cross-examination, that at the end of 2023 she was intending to pursue a process that would culminate in a sale of her shares in the Group.

11. [466]

    In January 2024, Mr Meyer, likely with input from Dr Rumble, prepared a document headed “Heartland Group – High-Level Business Strategy 2024”. This strategy involved three phases:

    1. (1)

       “Phase 1: Recalibrate Board and Appoint Advisory Board”. This phase involved appointing Ms Hooker to the Board “and any other Board changes” (which, Ms Richards acknowledged, involved removing Mr Turner). It also involved appointing advisors, such as Mr Meyer, and advising Manufacturers of the changes;

    2. (2)

       “Phase 2” involved an “in-depth business review”. There were two “scenarios” for this phase, one of which involved working with existing executive management (including Mr Turner) and the other of which involved appointing a new CEO; and

    3. (3)

       “Phase 3: Business Sale”. This phase involved reviewing the business for sale readiness, preparing an information memorandum, identifying potential buyers, agreeing on a sale process, and implementing that process.

12. [467]

    Mr Meyer gave evidence that, when he provided his strategy document to Ms Richards and Ms Hooker, they told him that they were “unhappy with Kieran in the role of CEO, but were open to the possibility of Kieran continuing in that role” and “selling the business was an option they wished to consider and explore, but not a certainty if the issues that they were having with Kieran could be resolved”.

13. [468]

    In May 2024, Dr Rumble sent a letter to Mr Meyer proposing that “effective immediately upon Jo Richards and Bess Hooker securing management control of the Heartland Group, you will be employed by Heartland Group as CEO”.

14. [469]

    On 20 December 2024, Dr Rumble sent a Confidentiality, Non-Disclosure and Non-Circumvention Agreement to McCarrolls, which is a car dealership business. The recitals to this agreement stated that Ms Richards and Ms Hooker had, in their capacity as shareholders of the Heartland Motors Group, financial information relating to the Group, including entities which own real property used by the Group (described as the “Confidential Information”), and that McCarrolls was “desirous of receiving the Confidential Information to consider an acquisition of [Ms Richards’ and Ms Hooker’s] shares in the Business”. Clause 1.2 of this agreement provided that McCarrolls would advise Ms Richards and Ms Hooker, as soon as practicable after receiving this information, whether it was interested in acquiring those shares.

15. [470]

    On 23 December 2024, Dr Rumble sent a slide pack to McCarrolls that was headed “Heartland Group – Financial Information provided to McCarrolls Automotive Group”. The “Background” section stated that Ms Richards and Ms Hooker owned 60% of the Heartland Motors Group and were in a dispute with Mr Turner, who was CEO and owned 17%. It continued:

16. [471]

    While this document referred to a goal of selling 100% of the business in around a “2-3 year” timeframe, there were discussions with McCarroll’s in early 2025 regarding the sale of the property and business at Castle Hill, for the purposes of generating funds to buy out Mr Turner’s interest in BG Webb (in the event that he agreed to sell). In circumstances where Mr Turner had been threatening to bring an oppression claim (and had commenced, but then discontinued, such a claim in the 2025 Federal Court Proceeding), it is understandable that Ms Richards and Ms Hooker were exploring whether they would be able, in the event that Mr Turner sought, or agreed, that his shares be bought out by his aunts, to raise the funds necessary to complete such a purchase. Further, it should be noted that Mr Turner had himself taken similar steps at around this time. In November 2024, he had communications with ANZ regarding a proposed $40m loan, and informed the bank that one of the purposes of this loan was a “family buy out”.

17. [472]

    The Cross-Claimants relied on the fact that Dr Rumble had, in an email of 13 May 2025, referred to McCarrolls having a “first and last right of refusal”. There was otherwise no evidence of the nature of any such right. Further, Dr Rumble mentioned this “right” in the context of referring to an “eventual sales process” (without indicating any timeframe for such a process to be “eventually” undertaken). In this email, Dr Rumble also referred to a previous indication by Ms Richards and Ms Hooker that they wanted “to install management to stabilise and improve the value of the businesses, with a view to a potential sale of assets at a point in time which you decide to be appropriate”.

18. [473]

    In cross-examination, Ms Richards agreed that she recognised, in around 2021 or early 2022 (that is, after the dealings with Mr Politis did not proceed), that Mr Turner’s attachment to the business represented an obstacle for her aim of achieving a sale of all of the shares in the Group; and that, by around 2024, she thought that if he was removed as CEO, this might lead to him being more willing to sell his shares.

19. [474]

    However, it does not follow that Ms Richards, let alone Ms Hooker, implemented a strategy of removing Mr Turner as CEO and as director of the Operating Entities for the purpose of achieving a sale of the whole of the business. When this proposition was put to Ms Richards in the same passage of cross-examination, she responded that there were “a lot of reasons” why Mr Turner was removed as CEO, and that “[w]e just didn’t want to work with him anymore”. She maintained this evidence throughout the course of her lengthy cross-examination. Similarly, Ms Hooker rejected any suggestion that she took steps to remove Mr Turner as CEO for the purpose of persuading him to sell his shares, so that the whole of the business could then be sold.

20. [475]

    A key part of the Cross-Claimants’ case, both in respect of the termination claim and the oppression claim, was that the sole purpose of terminating Mr Turner as CEO was to effect a sale strategy. That is apparent from the following submissions made by Senior Counsel for the Cross-Claimants in closing address (emphasis added):

21. [476]

    I accept that Ms Richards and Ms Hooker had been exploring, during the course of their long-running dispute with Mr Turner, options for the business in the event that Mr Turner was removed, including the potential sale of either the whole business or some of the assets, following an in-depth review of the business under new management. However, that does not mean that the removal of Mr Turner as CEO was undertaken for the sole purpose of effecting such a sale. Instead, for reasons given below, I am satisfied that Ms Richards and Ms Hooker terminated Mr Turner’s employment because they had lost trust and confidence in him as CEO. In those circumstances, they were, understandably, taking steps to ensure a management team was in place who could operate the business upon his removal, and were exploring what options might be open to them (including a potential sale) once they achieved control.

22. [477]

    The Termination Letter provided the following reason for the termination of Mr Turner:

23. [478]

    I am satisfied that the “Board” (that is, Ms Richards and Ms Hooker) had, as at 6 May 2025, lost trust and confidence in Mr Turner as CEO, having regard to the following matters.

24. [479]

    First, Mr Turner had, for several years prior to May 2025, repeatedly sought to frustrate attempts by Ms Richards and Ms Hooker (who together controlled 60% of the shares in BG Webb) to have a say in the management of the Heartland Motors Group. For example:

    1. (1)

       in December 2022, Mr Turner purported unilaterally to appoint his brother as a director of various Operating Entities, over Ms Richards’ opposition, despite having no power to do so (see paragraph [52] above);

    2. (2)

       in February 2023, Mr Turner sent an email to Ms Richards (who was a director of all entities within the Heartland Motors Group), stating that she was not to contact any staff member other than himself, and that he had directed staff not to respond to her. There was evidence that Mr Turner subsequently took steps to enforce this directive, including by sending texts to the Group Financial Controller, Ms Kragh, after learning that she had answered a telephone call from Ms Richards, asking Ms Kragh not to “breach [this] policy again” and directing as follows: “Do not answer or reply to any phone, text or email”;

    3. (3)

       in May 2024, Mr Turner wrote to Ms Richards demanding that she resign as a director within seven days, and then purported to pass, over Ms Richards’ opposition and with the support of Mr Anthony Turner (who had not been validly appointed as a director), resolutions removing Ms Richards as a director of each of the Operating Entities;

    4. (4)

       in February 2025, Mr Turner used his powers as an officer of Boyded to frustrate attempts to hold the February 2025 EGM for the purpose of appointing Ms Hooker as a director of Heartland Group; and

    5. (5)

       after being unsuccessful in the 2024 Director Proceeding, Mr Turner purported to appoint Mr Anthony Turner as Supervisor of the RG Trust and then, after the determination of the 2025 EGM Proceeding, Mr Anthony Turner (likely at Mr Turner’s request) purported to exercise his powers as Supervisor to replace Boyded with Heartland One as trustee of the RG Trust.

25. [480]

    The final matter was specifically referred to in the Termination Letter as being a reason why, as at 6 May 2025, the Board had lost trust and confidence in Mr Turner, stating as follows:

26. [481]

    The purported appointment of Heartland One was the culmination of a series of steps taken by Mr Turner over the course of eight years, commencing with Mr Turner’s purported appointment of himself as Appointor of the RG Trust in 2017, without informing, consulting with, or seeking the approval of Ms Richards.

27. [482]

    The removal of Boyded and appointment of Heartland One as trustee of the RG Trust had the effect, and was undertaken for the purpose, of removing from the Group’s control the valuable assets of the RG Trust, which were integral to the conduct of the Group’s business, and placing such control exclusively in Mr Turner’s hands. I accept that these matters seriously, and justifiably, undermined Ms Richards’ and Ms Hooker’s trust and confidence in Mr Turner as CEO.

28. [483]

    Secondly, Mr Turner had sought to enlist the aid of Manufacturers in frustrating his aunts’ attempts to have Ms Hooker appointed as a director of various entities within the Heartland Motors Group. The Termination Letter identified this conduct as having contributed to Ms Richards’ and Ms Hooker’s loss of trust and confidence in Mr Turner:

29. [484]

    Examples of this correspondence are emails which Mr Turner sent on 14 June 2022 to Hyundai Motor Company Australia Pty Ltd, Kia Australia Pty Ltd and SAIG Motor Australia Pty Ltd (MG) (each being a Manufacturer which sold cars through the Heartland Motors Group). Mr Turner copied Ms Hooker into those emails, which stated as follows:

30. [485]

    Other examples are the letters which Mr Turner’s solicitors wrote to various Manufacturers on 23 August 2024 (which are referred to in the Termination Letter), stating that the Manufacturers should not respond to Ms Hooker’s requests for consent to her being appointed to the boards of the Operating Entities. Mr Turner was, in effect, seeking to engineer a Catch-22 situation, in order to entrench his own position. He was maintaining that Ms Hooker could not be appointed as a director of the various entities within the Heartland Motors Group without the Manufacturers’ consent, while ensuring that the Manufacturers could not give such consent (because only the directors of the board of those entities could request such consent and, while he and Ms Richards were the directors, he would not agree to any such request being made). He outlined this strategy in an email which he sent to his father-in-law, Mr Stephen Bargwanna, on 5 September 2024:

31. [486]

    Ms Hooker was not aware of these letters at the time, but became aware of them in early 2025 when Mr Turner deployed this material in the 2025 Federal Court Proceeding, in support of a claim (which he subsequently abandoned) for an injunction restraining Ms Richards, Ms Hooker and Bernley from proposing any resolution at the 2025 February 2025 EGM to appoint Ms Hooker as a director of Heartland Group.

32. [487]

    There are numerous other examples of such communications with Manufacturers to which Ms Hooker was not privy.

33. [488]

    Mr Turner suggested that he was taking such steps for the benefit of the Heartland Motors Group and the various Manufacturers. However, it is more likely that he was motivated by self-interest and, in particular, his desire to ensure that Ms Hooker was not appointed as a director, in particular because he was concerned that, if Ms Hooker and Ms Richards obtained control of the Group, it would mean the end of his tenure as CEO. That is apparent from the terms of Mr Turner’s email to his father-in-law on 5 September 2024, set out in paragraph [484] above, in which he stated that as a result of his manoeuvrings with Manufacturers to prevent Ms Hooker’s appointment “I feel my job is safe”. It is also apparent from the following text message which Mr Turner sent to Ms Hooker on 13 June 2022, when she was seeking to be appointed to the board of BG Webb (emphasis added):

34. [489]

    Mr Turner was threatening to “expose dirty laundry” to Manufacturers in order to encourage Ms Hooker to abandon her attempt to be appointed as a director, because he was concerned to ensure that he could not be removed as CEO.

35. [490]

    Around two weeks later, on 29 June 2022, Mr Turner sent a text message to Mr Golden of Hyundai referring to the “dirty laundry” in question, namely, the alleged prior association of Ms Hooker’s husband with a bikie gang: “If these black uhlan bike director and shareholder affiliations end up in the newspaper or on tv I will rely on these m[e]ssages as legal notice.”

36. [491]

    In December 2022, Mr Turner again urged Hyundai to intervene in the dispute between himself and his aunts, but Hyundai declined to get involved. In particular, there was the following exchange of emails between Mr Turner and Mr Anthony Rogers of Hyundai:

37. [492]

    Mr Turner was not content with this response, and sought to agitate the matter further. On 13 December 2022, he asked Mr Rogers to send him an email requesting a meeting between Hyundai and Ms Hooker and seeking an explanation regarding “who she is and her experience etc”. He told Mr Rogers that if Ms Hooker agreed to attend, he would “attend with her to ensure she tells her whole story”. In cross-examination, he explained that the “whole story” which he intended to reveal was as follows:

38. [493]

    On 17 March 2023, Mr Turner again sought that Hyundai intervene in his battle with his aunts for control of the Group, sending an email which stated as follows:

39. [494]

    Hyundai again declined to express a position on this matter of internal governance; and Mr Turner again urged them, unsuccessfully, to get involved, out of a concern that “if my aunties get control of the Board as they propose by adding [Ms Hooker] and removing Anthony [Turner] then they can sack me and or sell Heartland Hyundai”. He concluded this communication by stating that “if I or we suffer damage I will refer to these emails”.

40. [495]

    Similarly, Mr Turner exchanged the following text messages with Mr Kevin Gannon of Mitsubishi Motors Australia Pty Limited in June 2022:

41. [496]

    There were numerous other examples of such correspondence in evidence. I accept the Cross-Defendants’ submission that Mr Turner encouraged Manufacturers to enforce rights (including rights which they did not in fact have) adversely to entities within the Heartland Motors Group, with a view to enlisting their aid in frustrating the attempts by Ms Richards and Ms Hooker to exercise their rights as substantial shareholders to have a say in the composition of entities within the Group.

42. [497]

    Thirdly, a further matter which Ms Richards and Ms Hooker identify, in their respective affidavits, as undermining their relationship with Mr Turner was the fact that he regularly addressed them, or spoke about them, in contemptuous and offensive terms.

43. [498]

    Ms Hooker deposed that when Mr Turner spoke to her on business matters, she “often felt belittled” (his tone likely reflecting the views regarding Ms Hooker that he expressed in the messages set out above).

44. [499]

    Ms Hooker also deposed that Mr Turner was “often rude, especially to Jo [Ms Richards]”. There are numerous examples of such conduct referred to in the evidence. For example:

    1. (1)

       Ms Richards sent an email to Mr Turner regarding the minutes which he had prepared of a meeting held on 31 January 2023, expressing the view that those minutes were not accurate or complete and, in particular, stating as follows:

    2. (2)

       on 21 February 2023, Ms Richards sent an email to Mr Turner in which she stated that:

    3. (3)

       on 7 February 2025, Mr Turner sent an email to Ms Richards regarding the meeting of Bernley on 3 February 2025 (at which an EGM was called for the purpose of considering a resolution to appoint Ms Hooker as a director), stating that:

45. [500]

    In their closing written submissions, the Cross-Claimants conceded, in something of an understatement, that “there have been occasions when [Mr Turner] has spoken to his aunts in ways that he should not have”.

46. [501]

    While I accept that there was evidence that Ms Richards is herself a party to a group chat with her children in which offensive and disparaging remarks have been made about Mr Turner, such remarks in the context of discussions with immediate family (which were not intended to be conveyed to or read by Mr Turner) are distinct from Mr Turner’s demeaning, belittling and offensive remarks directed at Ms Richards in the course of their dealings in respect of the management of the Heartland Motors Group over a number of years, in meetings, in text messages to her and in emails. It is unsurprising that, in response to this conduct, Ms Richards formed the view that she was, as a director of the entities with the Heartland Motors Group, unwilling and unable to continue to work with Mr Turner in the role of CEO.

47. [502]

    The issue for determination is whether Heartland Motors complied with its implied obligations of good faith and reasonableness in terminating Mr Turner’s employment pursuant to clause 9 of the Executive Employment Agreement. In considering that issue, it is necessary to consider whether Heartland Motors was acting to promote its own legitimate interests, or whether Heartland Motors was acting capriciously, or otherwise failed to co-operate in achieving the contractual objects, failed to comply with honest standards of conduct, or failed to comply with standards of conduct which are reasonable having regard to the interests of the parties.

48. [503]

    Having regard to the matters set out above, I am satisfied that Ms Richards and Ms Hooker had, as stated in the Termination Letter, lost trust and confidence in Mr Turner as CEO as at 6 May 2025, which was the result of a series of events over an extended period culminating in the steps taken by him to remove control of the RG Trust from the Heartland Motors Group and to place such control exclusively in his own hands. In those circumstances, I am satisfied that Heartland Motors Group was not acting capriciously, but was promoting its own legitimate interests by exercising its contractual right under clause 9.2 to terminate Mr Turner’s employment. Accordingly, Heartland Motors did not breach any implied obligations of good faith and reasonableness by exercising that right.

Breach of contract?

1. [504]

   For the reasons set out above, the employment relationship between Heartland Motors and Mr Turner was governed by the Executive Employment Agreement, which included cl 9.2, permitting either party to terminate that agreement on not less than one month’s notice.

2. [505]

   Pursuant to s 117(2) of the Fair Work Act 2009 (Cth), Heartland Motors was not entitled to terminate Mr Turner’s employment unless:

3. [506]

   Having regard to the length of Mr Turner’s employment and his age, the minimum period of notice “worked out under s 117(3)” was five weeks, which was slightly longer than the period specified in clause 9.2. Pursuant to s 117(2)(b), Heartland Motors was entitled to make payment of five weeks’ pay to Mr Turner in lieu of notice. (Similarly, clause 9.4 of the Executive Employment Agreement provided that Heartland Motors could, at its option, pay Mr Turner “not to work out the whole or some part of the notice period by tendering a payment in lieu of such period of the notice period as is not worked by [him]”.)

4. [507]

   By the Termination Notice issued on 6 May 2025, Heartland Motors stated that it was terminating Mr Turner’s employment in accordance with cl 9.2 of the Executive Employment Agreement and that it would, in accordance with cl 9.4 and s 117 of the Fair Work Act, provide “payment in lieu of notice of five weeks’ pay (to be paid today less applicable tax)”. This sum was paid into Mr Turner’s bank account on 9 May 2025.

5. [508]

   Accordingly, the steps taken by Heartland Motors in terminating Mr Turner’s employment complied with clauses 9.2 and 9.4 of the Executive Employment Agreement, and with s 117 of the Fair Work Act. Further, for the reasons given above, Heartland Motors did not, in exercising those rights, breach any implied obligations of good faith and reasonableness. It follows that the claim for breach of contract must be dismissed.

Grounds for summary dismissal?

1. [509]

   The Cross-Defendants submitted that, in any event, Heartland Motors was entitled to summarily dismiss Mr Turner from his employment as at 6 May 2025 by reason of his misconduct.

2. [510]

   It is well established that an employee’s dismissal may be justified upon grounds on which the employer did not act and of which the employer was unaware at the time of termination (and even though the ground actually relied upon is found to be without substance): Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 at 377 per Dixon J; [1931] HCA 21; Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 at 262 per Mason CJ; [1988] HCA 11.

3. [511]

   An employee in a position of confidence can “be dismissed without notice or compensation if he acted in a manner incompatible with the due and faithful performance of his duty, or inconsistent with the confidential relation between himself and [the employer]”: Blythe Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 72-73 per Starke and Evatt JJ; and see also at 81-82 per Dixon and McTiernan JJ; [1933] HCA 8. These observations were quoted with approval by Gleeson CJ, Gaudron and Gummow JJ in Concut v Worrell at [25]. In that case, Kirby J observed (at [51]) that:

4. [512]

   Given that I have determined that Heartland Motors did not breach the terms of Mr Turner’s employment contract by terminating his employment on five weeks’ notice, it is unnecessary to determine this issue. Further, I consider it undesirable, in circumstances where it is unnecessary to do so, to express a view on each of the various allegations of misconduct that Heartland Motors advanced against Mr Turner (which do not otherwise arise). It is sufficient for present purposes to address Heartland Motors’ contention that Mr Turner’s conduct in relation to the change of the trustee of the RG Trust was such as to justify his summary dismissal by Heartland Motors.

5. [513]

   I am satisfied that the following conduct on the part of Mr Turner prior to 6 May 2025 was incompatible with the due and faithful performance of his duty and was destructive of the mutual trust between the employer and employee, such as to justify his summary dismissal:

   1. (1)

      his purported execution, in around July 2017, of the Appointor Deed on behalf of Boyded, in circumstances where he was aware that the board of Boyded had not given its approval for his appointment as Appointor of the RG Trust;

   2. (2)

      his failure to inform his fellow director of Boyded, Ms Richards, that he had purported to appoint himself as Appointor of the RG Trust;

   3. (3)

      his fabrication, in 2024, of two versions of the “1 May 2017” Minutes which purported to record that Ms Richards had in fact approved his appointment as Appointor of the RG Trust; and

   4. (4)

      his purported exercise of his powers as Appointor to appoint his brother as Supervisor of the RG Trust, for the improper purpose of frustrating his aunts’ attempts to obtain control of the Heartland Motors Group, by taking away from the Group control of the valuable assets of the RG Trust, which were used to conduct the business of the Group, and placing such control exclusively in his own hands.

6. [514]

   For those reasons, even if I had determined that Mr Turner’s employment was not governed by the terms of the Executive Employment Agreement, or that Heartland Motors was required by the terms of his employment contract to give him reasonable notice of termination, I would have determined that Heartland Motors was, as at 6 May 2025, entitled to summarily dismiss Mr Turner.

Relief?

1. [515]

   I have not gone on to consider what relief would have been granted if I had determined that Mr Turner’s employment contract had been breached.

2. [516]

   That is because an order was made, by consent, on 18 August 2025, that the question of damages for any such breach be determined separately, and following the determination of the other issues in the proceedings. This order was sought in circumstances where the proceeding was brought on for hearing on an expedited basis, and the parties were unable, in the time available, to complete their expert evidence on this issue. In particular, there was some complexity to any assessment of damages for breach of contract by reason of the claim for damages for loss of the opportunity to earn a bonus under the alleged “Hospitality Bonus Term”, which I consider below. The parties submitted that the Court should, in this judgment, determine the existence and content of any “Hospitality Bonus Term”, so that those findings could be taken into account in preparing the evidence on damages

3. [517]

   The Cross-Claimants accepted that, if I found that liability was not established, then it would be an arid exercise to have a further hearing at first instance to determine what relief would have been awarded in the event that those claims had been established, and the appropriate course would be to dismiss those claims, with the Cross-Claimants then being able to pursue any rights of appeal.

4. [518]

   Nonetheless, in case I am wrong on the issue of breach, I have gone on to consider whether there was a Hospitality Bonus Term in the terms pleaded by the Cross-Claimants, since there was substantial argument on this issue and the determination of this issue could, in the event of any successful appeal against the finding of breach, be taken into account in any subsequent assessment of damages for breach.

Hospitality Bonus Term?

1. [519]

   The Cross-Claimants pleaded that, in or around March 2021, Mr Turner’s employment contract was varied to include the following term, which was described as the “Hospitality Bonus Term”, namely:

2. [520]

   The term was said to arise from an exchange of emails. It is necessary to go through the history of the negotiations in some detail, as individual emails need to be interpreted not only having regard to their own terms, but also having regard to the preceding communications.

3. [521]

   On 19 February 2020, Mr Turner sent an email to Ms Richards, Ms Hooker, Ms Kathryn Turner and Ms Dulcie Webb, which set out a proposal to develop a hospitality business and to reorganise the shareholdings of BG Webb:

4. [522]

   In March 2020, Ms Richards responded by requesting a meeting in person to discuss Mr Turner’s proposal. Around this time, the first COVID-19 lockdown began. On 21 March 2020, Mr Turner suggested that a meeting occur when COVID-19 was “contained” and stated that he was “not willing to further expand my time, duties and stress levels by buying additional group investment properties and planning and building major metro pubs without additional equity to 20% so we are all equal”. Ms Richards agreed that it was “not a good time to do any transactions at the moment”, and it appears that discussions were put on hold for a number of months.

5. [523]

   On 12 June 2020, Mr Turner sent an email to Ms Richards, Ms Hooker and Ms Turner, in which he provided an update on the impact of COVID-19 on the Heartland Motors Group business, and stated as follows:

6. [524]

   As outlined above, Mr Turner’s proposal was that he receive additional equity in BG Webb in return for each pub that was developed.

7. [525]

   On 15 June 2020, Ms Turner expressed her support for her son’s proposal. On the same day, Ms Richards responded as follows:

8. [526]

   Mr Turner agreed to the proposed meeting, and provided the following responses to Ms Richards’ queries:

9. [527]

   A meeting took place on 24 August 2020. Mr Turner deposes that, at this meeting:

   1. (1)

      Ms Richards indicated that she, Ms Hooker and Ms Webb were agreeable “in principle” to the suggestion that the Heartland Motors Group diversify its operations to include pubs; and

   2. (2)

      Mr Turner reiterated his proposal that his “bonus for doing this work would be an increase in Turnercorp’s 10% equity stake in BG Webb to 20%” (that is, an additional 5% group equity per pub).

10. [528]

    On 27 August 2020, Mr Turner sent a revised proposal to Ms Richards, copied to Ms Turner and Ms Hooker, which stated as follows (emphasis added):

11. [529]

    It is apparent, from the terms of this email, that Mr Turner’s proposal for increased equity in BG Webb (“5% group equity per pub”) had been countered with a proposal that he receive “5% equity only in the pubs” (emphasis added). In response, he requested “5% equity in the pub” plus the “whole site” on which each pub was located. This was set out in a further email sent by him later on the same day:

12. [530]

    On 3 September 2020, Ms Richards responded that she, Ms Hooker and Ms Webb were “not averse to considering [Mr Turner’s] counter but just need some clarification on some things”. On the same day, Mr Turner responded, stating that his “additional 10% equity bonus will be measured on the ‘approval’ of the pubs from both Council and OLGA [that is, Liquor & Gaming NSW]”. At around this time, Mr Turner prepared a short form “Family Agreement” which set out the terms of his proposal, including, relevantly the following item (emphasis added):

13. [531]

    On 11 September 2020, Ms Richards sent an email to Mr Turner, copied to Ms Hooker and Ms Turner, stating that she was seeking advice from her solicitor, Mr Hugh Scott, in respect of “a few Trust issues”. Mr Turner responded on the same day, indicating that he had spoken with Mr Greg Jepsen (from the Group’s external accountants, Auswild & Co) in respect of engaging KPMG to prepare a revised form of agreement and that he would provide this draft agreement to Mr Scott as soon as possible.

14. [532]

    On 14 September 2020, Mr Turner sent an email to Mr Scott, enclosing a document entitled “Priority Distribution Deed” and a revised corporate structure of the Heartland Motors Group prepared by KPMG. In this email, Mr Turner stated that KPMG “propose a Property Agreement instead of setting up new companies and stamp duty on transferring properties which is different to what I recommended but fine by me”. Mr Turner sent a follow-up email to his mother and aunts on the morning of 24 September 2020, indicating that he had not received a response from Mr Scott, and stating as follows (emphasis added): “This should be a no brainer and we should be going forward together on this. I have accepted your offer in principal and come back a long way to do so.”

15. [533]

    At 12:28pm on 24 September 2020, Mr Scott responded, stating that it is “in everyone’s interest not to rush what is a complicated proposal” and disputing Mr Turner’s suggestion that there was any “in principle” agreement:

16. [534]

    Mr Scott also noted that there were various issues with the draft Priority Distribution Deed which had been provided by Mr Turner, including that this document “provides no detail of, nor indeed make[s] any reference to, the proposal for hotel development and the threshold hurdles for approvals from the council and Liquor and Gaming NSW”. Mr Scott asked if he could speak to KPMG about these matters.

17. [535]

    At 12:40pm, Mr Turner sent a response to Mr Scott, which was copied to Ms Richards, Ms Hooker and Ms Turner, stating as follows:

18. [536]

    At around 2:05pm, Ms Richards responded to Mr Turner’s email, copied to Ms Hooker, suggesting that the best way forward was for Mr Scott to speak to KPMG in respect of his concerns regarding the Priority Distribution Deed. Later that evening, Mr Turner replied, reiterating that his proposal is “the extra 10% in the pubs and properties they sit on” and stating: “If that’s not agreed then forget it”. He requested a response by the following day.

19. [537]

    On 28 September 2020, Mr Scott sent an email to Mr Turner, which was copied to Ms Richards, Ms Turner and Ms Hooker, and which set out a counterproposal, as follows (emphasis added):

20. [538]

    It is plain from the terms of this email that the other shareholders were rejecting Mr Turner’s proposal that he receive 10% of the pubs and the whole of the land on which they were located, and were offering 10% of the pubs and 10% of the land on which they were located. Mr Turner’s response of 29 September 2020 indicates that he was well aware that his proposal had been rejected:

21. [539]

    Ms Turner responded to Mr Turner’s email shortly thereafter, stating that it seemed “that a straight forward [negotiation] has got out of hand”. Around half an hour later, Mr Turner responded, stating as follows (emphasis in original):

22. [540]

    Later on the same day, on 29 September 2020, Mr Turner sent another email to Ms Turner, copied to Ms Richards and Ms Hooker, apologising for his tone and indicating that his offer was withdrawn, stating that he didn’t think his proposal for the development of the pubs was going to be “the end” and that “[n]ow no one gets anything”.

23. [541]

    On 30 September 2020, Ms Richards replied to Mr Turner’s email, reiterating the offer contained in Mr Scott’s email of 28 September 2020. The following afternoon, Mr Turner replied, stating “[t]hanks but no thanks” and “I’m so over it let’s move on”.

24. [542]

    It is plain that there was no agreement by this date, “in principle” or otherwise.

25. [543]

    On 13 October 2020, Ms Richards sent an email to Mr Turner stating that she, Ms Hooker and Ms Webb had decided that they wished to sell the business of the Heartland Motors Group, so that each individual family could “be in charge of their own future” and to avoid family disagreements.

26. [544]

    Mr Turner responded on the following day, apologising for his “disrespectful” emails and stating that he also wanted to “sell out of this business and do my own thing”. However, he went on to state that:

27. [545]

    On 16 October 2020, Ms Richards replied as follows (emphasis added):

28. [546]

    This email made an offer for 30% of the equity in the pubs (“an extra 20%” on top of the previous offer of 10%), without any interest in the land on which they were located.

29. [547]

    Mr Turner responded on the same day, seeking both that his share in the pubs be increased to 40% and also that he receive “the 2 whole properties [on which] they reside”. Accordingly, the parties were, at this stage, still far apart.

30. [548]

    On 21 October 2020, Mr Turner sent an email to Ms Richards, Ms Hooker, and Ms Turner, asking whether “we are doing or ditching” his pub bonus proposal. Ms Richards responded that they were “happy for [Mr Turner] to go ahead” if he agreed with the offer made in her email of 16 October 2020. Later that day, following some further emails, Mr Turner stated that he would not accept a deal for “less than 40% of the pubs and their properties” (emphasis added).

31. [549]

    On 22 October 2020, Ms Richards reiterated that she, Ms Hooker and Ms Webb “were not going to move on our offer of 30% of the pubs”. Mr Turner replied on the following day, rejecting this offer.

32. [550]

    On 15 November 2020, Mr Turner sent an email to Ms Richards, Ms Hooker and Ms Turner, purporting to accept the “30% equity offer in the 2 pubs and the whole properties they reside subject to achieving DA and OLGA [Liquor & Gaming] approval for such” (emphasis added).

33. [551]

    No such offer had been made. Instead, as set out above, Ms Richards, Ms Hooker and Ms Webb had offered 30% of the equity in the proposed pubs (and no property). Ms Richards pointed this out in an email to Mr Turner on the following day, stating as follows: (emphasis added)

34. [552]

    Ms Richards expressly stated, twice, that the offer is in respect of the “pubs only” with “no land included”. No reasonable person reading this offer would understand that any offer was being made for the whole (or any part of) the land on which the pubs were located.

35. [553]

    On the evening of 16 November 2020, Mr Turner replied to Ms Richards, copied to Ms Hooker, stating that the previous correspondence was “absolutely ridiculous” and that he had “agreed to 30% with the lands”. Mr Turner’s response amounts to a rejection of the offer made by Ms Richards. There was, therefore, no agreement at this time, and no offer remained open that was capable of acceptance.

36. [554]

    Three months later, on 23 February 2021, Mr Turner sent an email to Ms Richards, copied to Ms Hooker and Ms Turner, stating that he had “lodged the 2 pub da’s even though I didn’t get what I wanted” and that he “will accept” the offer of “30% of the pub business in terms of dividends and sale proceeds etc”.

37. [555]

    There was no offer at this time that was capable of acceptance. Mr Turner’s statement that he “will accept” the offer previously made to him, for “30% of the pub business in terms of dividends and sale proceeds” (and without any reference to land) is, in substance, an offer by him along the lines previously made by Ms Richards, namely, a proposal for an arrangement whereby he will receive “30% of the pubs only (no land)”.

38. [556]

    On 25 February 2021, Ms Richards replied, stating that she, Ms Hooker and Ms Webb were pleased that Mr Turner was “happy to proceed with their previous offer of 30% of the pub businesses”. On 2 March 2021, Mr Turner responded as follows:

39. [557]

    This was the first time that there was a meeting of minds on the content of any proposed pub bonus. Specifically, each of the shareholders of BG Webb agreed with a proposal that Mr Turner receive 30% of the pubs (that is, 30% of dividends from the pubs and 30% of the proceeds of any sale of the pubs), but no interest in the properties on which the pubs were located.

40. [558]

    However, it does not follow that there was a variation of Mr Turner’s employment contract to include, from this point in time, a term to that effect.

41. [559]

    In the course of being cross-examined regarding the negotiation of the pub bonus proposal, Mr Turner gave evidence that: “When a deal is agreed, we get the lawyers in. That’s how we do it.” The indication from Ms Richards that she, Ms Hooker and Ms Webb were “happy to proceed” with a proposal that Mr Turner receive 30% of the equity in the pubs (without any land) should properly be read as an indication that they were happy to take steps to formulate a binding agreement along the lines of this proposal. However, there is no evidence that there was, at this point, any negotiations between the parties’ lawyers regarding how any such agreement would be implemented. Nor was there subsequently any meeting between Mr Scott and KPMG regarding the issues which he had previously raised regarding the implementation of Mr Turner’s proposal (which remained unresolved). Nor was any draft documentation prepared to give effect to this proposal.

42. [560]

    For those reasons, I am not satisfied that there was any “Hospitality Bonus Term”, either along the terms pleaded or otherwise.

43. [561]

    On 6 May 2025, Ms Richards sent a letter on behalf of Heartland Motors to Mr Anthony Turner, which was headed “Termination of your employment with Heartland Motors Group (Company)”.

44. [562]

    The Termination Letter stated that the Board had decided to terminate Mr Anthony Turner’s employment “in accordance with clause 9.2 of your employment contract dated 13 August 2020”, and that, in accordance with clause 9.4 of this contract and s 117 of the Fair Work Act 2009 (Cth), he would be “provided with payment in lieu of notice of five weeks’ pay”. That payment was subsequently deposited into Mr Anthony Turner’s bank account.

45. [563]

    The Termination Letter stated that the Board no longer had trust and confidence in Mr Anthony Turner’s judgment or his ability to perform his role as Chief Operating Officer, in particular because of his role in purporting to remove Boyded and appoint Heartland One as Trustee of the RG Trust:

46. [564]

    By the primary claim, Heartland Motors sought a declaration that Mr Anthony Turner’s employment was terminated on 6 May 2025.

47. [565]

    This issue no longer arises for determination in the proceeding, as Mr Anthony Turner does not contest the fact that his contract of employment was terminated. He is separately pursuing remedies under the Fair Work Act in a proceeding in the Federal Court.

Overview of Issues

1. [566]

   By the Cross-Claim, Mr Turner and Turnercorp seek relief in respect of alleged oppression in the conduct of the affairs of the Heartland Motors Group.

2. [567]

   In closing written submissions, the Cross-Claimants focussed their allegations of oppressive conduct on:

   1. (1)

      the appointment of Ms Hooker as a director of Heartland Group and the Operating Entities in early May 2025, which was said to be a step taken for the purpose of enabling Ms Richards and Ms Hooker to vote together to remove Mr Turner as CEO of the Heartland Motors Group and as a director of every Operating Entity within the Group; and

   2. (2)

      the removal of Mr Turner from those roles on 6 May 2025.

3. [568]

   The Cross-Claimants submitted that this conduct was oppressive for a number of reasons, which were relied upon individually and collectively, namely:

   1. (1)

      those actions were taken in pursuit of a strategy aimed at “injuring and weakening a fellow owner and relative, for their personal gain as shareholders”, and in particular, were “aimed at persuading Turnercorp to sell its shares so as to facilitate their exit from the Group”;

   2. (2)

      the manner of Mr Turner’s termination, and the intended and actual purpose and effect of that manner of termination, were oppressive;

   3. (3)

      “aggravating all of the above matters”, Ms Richards and Ms Hooker “together sought to use the assets of the Group (including trust assets) and information about those assets, for the purposes of attempting to negotiate various deals with McCarrolls in order to raise the very funds that they thought they would need in order to achieve a purchase of Turnercorp’s shares if the above strategy worked and Kieran/Turnercorp agreed to sell”;

   4. (4)

      it was oppressive to remove Mr Turner as a director of the Operating Entities in circumstances where, in particular, he had “so much accumulated knowledge and expertise in the industry” and “his removal left the board of every operating company … in the hands of two people who had no knowledge, training, experience or skills necessary to discharge their duties and exercise their powers properly”; and

   5. (5)

      the actions caused the dealership entities to commit events of default under contracts with Manufacturers, who were “vital business partners”, and, in addition, those breaches were “deliberately caused” by Ms Richards and Ms Hooker, in circumstances where the consequences of those breaches was unknown.

4. [569]

   I address each of these contentions below.

5. [570]

   Two preliminary matters should be noted.

6. [571]

   First, there was a vast range of factual issues covered in the cross-examination of Ms Richards and Mr Turner, extending over a period of more than eight years of the Group’s operations and of their dealings with each other. In considering the oppression claim, I have not attempted to address or resolve any particular factual dispute unless it is necessary (and only to the extent necessary) to resolve the particular grounds of oppression which are set out above.

7. [572]

   Secondly, as I have explained above, the Cross-Claimants did not, prior to the hearing, complete their expert evidence on relief (and, in particular, on the valuation of shares in BG Webb). Neither party sought an adjournment of the hearing in those circumstances. Instead, it was common ground that the Court had power to, and should, determine whether the oppression claim was established in advance of determining what (if any) relief should be ordered.

Relevant Principles

1. [573]

   Section 232 of the Act provides as follows:

2. [574]

   Having regard to the width of the definition of “affairs” in s 53 of the Act, the affairs of a holding company include the affairs of each of its subsidiaries: Re Norvabron Pty Ltd (No 2) (1986) 11 ACLR 279 at 292 (Derrington J); Re Dernacourt Investments Pty Ltd (1990) 20 NSWLR 588 at 615 (Powell J).

3. [575]

   The term “affairs” is also expressly defined as including the situation where a company acts as a trustee: see David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 108 at [97] and [106]-[112] per Leeming JA (with whom Stern JA and Griffiths AJA agreed).

4. [576]

   Section 232 expressly contemplates that conduct may be oppressive where it affects the member in their capacity as a member or in some other capacity (for example, as a director or employee). The claims of oppression here are brought by Turnercorp as a member of BG Webb and by Mr Turner as a contingent member of that entity (pending distribution of the shares in BG Webb held by the estates of Ms Turner and Ms Webb).

5. [577]

   The Cross-Claimants rely on each of s 232(d) and s 232(e).

6. [578]

   As regards s 232(d), in New South Wales Rugby League Ltd v Wayde (1985) 1 NSWLR 86 at 96, the Court of Appeal (Street CJ, Kirby P, Hope JA) observed, in relation to the predecessor provision, that:

7. [579]

   Their Honours cautioned (at 102) that:

8. [580]

   In Australian Institute of Fitness Pty Ltd v Australian Institute of Fitness (Vic/Tas) Pty Ltd (No 3) [2015] NSWSC 1639 at [84], Sackar J observed (citing Goozee v Graphic World Group Holdings Pty Ltd [2002] NSWSC 640 at [41]-[44] per Barrett J) that:

   1. (1)

      the test whether conduct is contrary to the interests of members as a whole is objective, and is to be determined by reference to whether the conduct adheres to accepted standards of corporate behaviour or is in accordance with how reasonable directors would act in attending to the affairs of the company; and

   2. (2)

      the decision of what is contrary to the interests of the members as a whole directs attention not to the interests of the persons who are, in fact, the members for the time being, but rather to the interests of an individual hypothetical member.

9. [581]

   As regards s 232(e), the composite expression “oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member” extends to conduct involving “commercial unfairness”, or where the conduct complained of involves a visible departure from the standards of fair dealing and a violation of the conditions of fair play, or where a decision has been made so as to impose a disadvantage, disability or burden on the plaintiff that, according to ordinary standards of reasonableness and fair dealing, is unfair: In the matter of Mobius Distilling Pty Ltd (in liq) [2025] NSWSC 539 at [172] per Black J, citing Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 at 704 (Young J) and Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459 at 472-473; [1985] HCA 68 (Brennan J).

10. [582]

    In Morgan v 45 Flers at 704, Young J noted that whether oppression was established was to be determined by reference to the nature of the business carried on by the company and the nature of the relations between its participants and “whether objectively in the eyes of a commercial bystander, there has been unfairness, namely conduct that is so unfair that reasonable directors who consider the matter would not have thought the decision fair.”

11. [583]

    In Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 at [176], Gummow, Hayne, Heydon and Kiefel JJ observed that it is not the case that the only conduct of a company’s affairs that is to be classified as “oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member” is conduct of the company’s affairs that is otherwise lawful. Their Honours added that it should not “be supposed that there cannot be oppression on the part of one who thinks that he or she is acting rightly” (ibid).

12. [584]

    In Catalano v Managing Australia Destinations Pty Ltd [2014] FCAFC 55 at [9], the Full Court of the Federal Court (Siopis, Rares and Davies JJ) referred to this passage from Campbell in making the following observations:

13. [585]

    While it is recognised that conduct may be oppressive if it is inconsistent with the “legitimate expectations” of shareholders, “it is important to bear in mind that the parties’ understandings and ‘promises’ productive of equitable qualifications upon legal rights are not immutable” and that “[t]hey may change with time and with circumstances”: Nassar v Innovative Precasters Group Pty Ltd [2009] NSWSC 342 at [96]. In Fexuto v Bosnjak [2001] NSWCA 97 (Fexuto CA) at [90], Spigelman CJ said that:

14. [586]

    Further, the bare fact of an irretrievable breakdown in the relationship between the individuals who own or manage a company does not establish oppression. In David & Ros Carr Holdings at [119], Leeming JA said that:

15. [587]

    Although there is no overarching “clean hands” requirement, the conduct of the member who is asserting oppression may “render the impugned conduct not unfair” or may “affect the nature of the relief”: WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd [2025] FCA 622 at [156] (Jackman J). In assessing the gravity of any allegation of oppression, it is relevant to consider the extent to which the minority shareholder has “baited” the majority shareholder to act in an oppressive manner: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1998) 28 ACSR 688 at 741; [1998] NSWSC 413 (per Young J).

16. [588]

    The onus is on the plaintiff in an oppression suit to show that he or she has been unfairly treated in the relevant sense, as opposed to having been merely “prejudiced” or “discriminated” against. Whether conduct is fair or unfair requires weighing conflicting interests of different groups within the company; it is not assessed simply from one member’s point of view: WIJOAV at [156].

Strategy to persuade Turnercorp to sell its shares?

1. [589]

   I have addressed this issue in the context of Mr Turner’s claim for breach of contract. I have determined, for the reasons set out at paragraphs [503]-[507] above, that Ms Richards and Ms Hooker took the step of terminating Mr Turner’s employment, not because they wanted to weaken Mr Turner and persuade him to sell Turnercorp’s shares, but because they had lost trust and confidence in Mr Turner as a result of his conduct over an extended period of time, culminating in his attempt to transfer control of the RG Trust from the Heartland Motors Group to himself.

Manner, purpose and effect of termination of Mr Turner

1. [590]

   The Cross-Claimants contended that the manner, purpose and effect of Mr Turner’s termination as CEO were oppressive, submitting as follows:

2. [591]

   I have already addressed, and rejected, the Cross-Claimants’ submission that, having regard to the manner, purpose and effect of Mr Turner’s termination, Heartland One breached its implied obligations of good faith and reasonableness in exercising its right to terminate his employment on five weeks’ notice. Those observations apply equally to the contention that the manner, purpose and effect of Mr Turner’s termination gave rise to commercial unfairness such as to amount to oppression.

3. [592]

   The Cross-Claimants did not elaborate, in submissions, what steps Mr Turner might have taken “to attempt to protect himself” if he had been given more notice of his termination.

4. [593]

   Insofar as it is suggested that Mr Turner could have applied to this Court for some interlocutory relief in respect of his termination, there is no articulation of what relief would have been sought or why Mr Turner would have been entitled to that relief (and, as noted above, he has abandoned any claim for specific performance of his employment contract).

5. [594]

   Insofar as it is suggested that Mr Turner might have taken some step, as a director, CEO or shareholder, to prevent his termination, that is precisely what he had been seeking to do for a period of around three years prior to his termination. During that period, he had engaged in a series of corporate manoeuvres designed to prevent his aunts from gaining control of the Operating Entities within the Group, in particular because he was concerned that they might then take steps to remove him as CEO (see, for example, paragraphs [483], [484] and [487] above). Those actions contributed to the breakdown of trust and confidence which resulted, as at 6 May 2025, in his termination as CEO.

6. [595]

   Further, I have determined that Heartland One was, by reason of Mr Turner’s conduct prior to 6 May 2025, entitled to summarily dismiss him (see paragraphs [508]-[513] above).

7. [596]

   Having regard to those matters, I reject the submission that there was any commercial unfairness in the manner, purpose or effect of Mr Turner’s termination.

8. [597]

   Finally, it is unclear whether the Cross-Claimants maintained their pleaded allegation that one purpose of the termination of Mr Turner as CEO was to deny him the benefits that he contends were to accrue from the “Hospitality Bonus Term”. The Cross-Claimants did not, in closing written or oral submissions, advance any contention to this effect. Nor was it put to Ms Richards or Ms Hooker in cross-examination that the purpose of terminating Mr Turner was to deny him the benefits which he would otherwise have received by reason of the Hospitality Bonus Term. In any case, I have determined that there was no such contractual term.

9. [598]

   Further, in around 2023 the “pub strategy” appears to have been put on hold.

10. [599]

    In June 2022, Boyded received DA approval for the development of a pub on the Castle Hill site, and in May 2023, it received similar approval in respect of the Chullora site. However, by this time, Mr Turner’s views on the merits of the “pub strategy” had changed. In his CEO reports for July 2023 and November 2023, Mr Turner stated that this strategy was a “silly investment, especially because we have no experience in this business”. In his CEO report for April 2024, Mr Turner made the following statement in respect of the pub strategy: “Pens are down on this matter due to the high build costs of circa $30m per pub and the ongoing scrutiny over the pokies”.

11. [600]

    On 19 August 2024, Mr Turner stated, at a meeting of Heartland Group, that “we now need to progress the pubs, because the car dealerships are struggling” and that it would “cost circa $40m each pub” to “get 2 DA approved pubs going at out Castle Hill and Chullora sites” (that is, “total $80m” of expenditure), with “the payback period” being “20-30 years”. However, I am not satisfied that Mr Turner made those comments out of any genuine desire to pursue the pub strategy. Shortly after this meeting, on 5 September 2024, Mr Turner sent an email to his father-in-law indicating that he was “plotting” to use the revival of the pub strategy as a means of persuading Mr Richards and Ms Hooker to sell their shares:

12. [601]

    On 18 December 2024, the solicitors for Ms Richards and Ms Hooker sent a letter to Mr Turner requesting a business plan and an analysis of the risks and opportunities presented by the pub strategy. No such document was subsequently provided by him (suggesting that no such plan had been prepared or analysis had been undertaken).

13. [602]

    Having regard to those matters, even if I had found that the parties had agreed to the “Hospitality Bonus Term” pleaded by the Cross-Claimants, I would not have been satisfied that the purpose, or effect, of the termination of Mr Turner’s employment as CEO was to frustrate his ability to obtain a bonus pursuant to that term.

Removal of Mr Turner as director of Operating Entities

1. [603]

   The Cross-Claimants contended that it was oppressive to remove Mr Turner as a director of the Operating Entities.

2. [604]

   First, the Cross-Claimants submitted that no intelligible reason had been given for the decision to remove him as a director of the Operating Entities, while leaving him as a director of BG Webb, Bernley and Heartland Group. The suggestion appeared to be that the Court should reject the contention of Ms Richards and Ms Hooker that they had any genuine reason for removing him as a director of any company, as otherwise they would have removed him as a director of every company.

3. [605]

   It does not follow, from the fact Ms Richards and Ms Hooker have not taken steps to remove Mr Turner as a director of the parent entities of the Heartland Motors Group, in circumstances where he has an interest of around 17.5% in the ultimate holding company, BG Webb (and the members of the Turner family have, between them, an interest of around 40% in BG Webb), that Ms Richards and Ms Hooker did not have any genuine reason for removing him as a director of the Operating Entities.

4. [606]

   I have determined, when dealing with the claim for breach of Mr Turner’s employment contract, that Ms Richards and Ms Hooker took the step of terminating Mr Turner as CEO because they had lost trust and confidence in him. For similar reasons, I am satisfied that the decision to remove him as a director of the Operating Entities was due to the loss of trust and confidence in him.

5. [607]

   Secondly, the Cross-Claimants submitted that the removal of Mr Turner as a director of the Operating Entities was “inconsistent with the legitimate expectation that Turnercorp held, being a legitimate expectation induced by the other part-owners of the business at the very time Turnercorp acquired its shares, that Kieran could participate in the management and conduct of the Group’s affairs in a substantial way”. This legitimate expectation was said to arise from an agreement between the shareholders that Mr Turner “would obtain equity [in BG Webb] on the basis that he would be able to commit and dedicate himself to the business for the long-term” (with reference being made in closing submissions to Ms Richards’ acknowledgement, in cross-examination, that it was on the basis of such a commitment by Mr Turner that she agreed to Turnercorp having a 10% interest in BG Webb).

6. [608]

   I accept that, as at May 2009, Mr Turner was issued with equity in BG Webb on the understanding that he would make a long-term commitment to the business. However, by May 2025, Ms Richards and Ms Hooker (who between them held 60% of the Group) had lost trust and confidence in Mr Turner by reason of his conduct over a number of years, culminating in his attempt to seize control of the RG Trust, such that there had been an irretrievable breakdown in the relationship between Mr Turner and his aunts. As a result, any previous arrangement or shared understanding that Mr Turner would have an ongoing role in the management of the business had come to an end: Fexuto CA at [90]; Nassar at [96] and [117].

7. [609]

   Thirdly, the Cross-Claimants submitted that, as a result of Mr Turner’s removal as a director of the Operating Entities, those entities had lost his “accumulated knowledge and expertise in the industry and with these businesses”, and control of those entities was left “in the hands of two people [Ms Richards and Ms Hooker] who had no knowledge, training, experience or skills necessary to discharge their duties and exercise their powers properly”.

8. [610]

   Each of Ms Richards and Ms Hooker acts as a non-executive director in circumstances where each is a substantial shareholder of the ultimate holding entity. The only qualifications for a person to be appointed as a company director are that he or she be over 18 years of age and not be the subject of a disqualification order: s 201B of the Act.

9. [611]

   Ms Richards and Ms Hooker have appointed Mr Meyer as CEO. Mr Meyer has more than twenty years’ experience in the automotive industry. In addition, Ms Richards and Ms Hooker have sought advice from MinterEllison as to legal issues and from Dr Rumble as to financial matters. There is no evidence that the performance of the business has, to date, been adversely affected by the departure of Mr Turner and his brother.

10. [612]

    Where a person in a senior executive position, who has extensive experience in and knowledge of the company’s business, acts in such a way as to undermine the trust and confidence necessary for him or her to continue in that role, it does not follow, from the fact that termination will lead to the loss of such knowledge and experience, that such a step is contrary to the interests of members as a whole or commercially unfair. For example, while it is the case that Mr Turner has long-established relationships with Manufacturers, the evidence establishes that he has sought to use those relationships to undermine the attempts of the majority shareholders (his aunts) to change the composition of the boards of the Operating Entities. It is difficult to see why, in those circumstances, it is commercially unfair for his aunts to remove him from his role as an officer of the Operating Entities, even if it means that those relationships do not continue (particularly where another person has been appointed who has experience in the industry).

11. [613]

    Finally, the Cross-Claimants contended that, while Mr Turner has been left as a director of the parent entities, he has not been informed or consulted about significant matters, such as the development of a “2025 Operating Strategy” relating to Manufacturers which is dated July 2025. However, there are no pleaded issues that, since his removal as a director of the Operating Entities, Mr Turner has, as a director of the parent entities, been excluded from decision-making by those entities. Such matters can therefore be put to one side.

Dealings with McCarrolls

1. [614]

   The Cross-Claimants contended, by an amendment made after the Plaintiffs’ evidence had closed, that Ms Richards and Ms Hooker have sought to use assets of the Group, including trust assets and information about those assets, for the purposes of attempting to negotiate transactions with McCarrolls in order to raise the funds needed to purchase Turnercorp’s shares in the event that Mr Turner agreed to sell (see paragraph [71A] of Further Amended Cross-Claim filed on 17 September 2025).

2. [615]

   Insofar as this is an aspect of the Cross-Claimants’ contention that Ms Richards and Ms Hooker were pursuing a strategy which involved taking steps to terminate Mr Turner as CEO for the purpose of weakening him and inducing Turnercorp to sell its shares, I have already addressed this issue at paragraphs [461]-[476] above.

3. [616]

   Insofar as this is a complaint that Ms Richards and Ms Hooker took steps in order to be in a position to make an offer to purchase Mr Turner’s shares (with such an offer subsequently being made on 6 May 2025: see paragraph [77] above), it is difficult to see how this could amount to oppressive conduct. No such sale could occur without Mr Turner’s agreement, and Mr Turner was himself taking steps in around the same period to obtain a loan from ANZ in order to make an offer to buy his aunts’ shares (see paragraph [470] above).

4. [617]

   Further, a timely, unconditional offer by the majority to purchase the minority’s shares at fair value, supported by an independent valuation, may negate oppression, particularly in quasi-partnership cases where there has been a breakdown in the parties’ relations: WIJOAV at [159] (Jackman J), citing O’Neill v Phillips [1999] UKHL 24; [1999] 1 WLR 1092 at 1105–1107 per Lord Hoffmann, and Tomanovic v Global Mortgage Equity Corp Pty Ltd [2011] NSWCA 104 at [235] per Campbell JA (with Macfarlan and Young JJA agreeing).

5. [618]

   Insofar as this is a complaint about the provision of information to a third-party pursuant to a confidentiality agreement, without Mr Turner’s agreement or consent, it is apparent that Mr Turner was himself providing information about the Group’s assets to ANZ (without his aunts’ knowledge or consent) for the purposes of obtaining the finance to make an offer to buy-out his aunts’ shares. The information, which was provided to ANZ, at Mr Turner’s direction, for this purpose included:

6. [619]

   Finally, there was no detailed exploration in submissions as to the nature of the information provided to McCarrolls, the extent (if any) to which such material was commercially sensitive, and whether this was such information which Ms Richards and Ms Hooker had received in their capacity as shareholders. (As noted at paragraph [468] above, the Confidentiality Agreement provided to McCarrolls expressly stated that the information being provided was information which they held in that capacity.)

7. [620]

   Having regard to those matters, I do not accept that the dealings with McCarrolls constituted, either individually or in combination with the other matters raised by the Cross-Claimants, oppressive conduct.

Relationships with Manufacturers

1. [621]

   The Cross-Claimants submitted that:

   1. (1)

      the removal of Mr Turner as CEO and as a director of the Operating Entities “caused the dealership entities to commit events of default under important contracts with vital business partners, namely the manufacturers”;

   2. (2)

      Ms Richards and Ms Hooker had known that the Manufacturers’ consent was required for changes to management of the dealership entities, and had deliberately caused those entities to be in breach of their agreement; and

   3. (3)

      the consequences of those breaches were unknown.

2. [622]

   As a starting point, it is important to note that the terms of the franchise agreements varied as between Manufacturers, and only some of those agreements required the Manufacturers’ consent to some (but not all) changes to the officers of the relevant Operating Entity or its parent. In particular:

   1. (1)

      the dealership contracts with each of the following Manufacturers did not contain any terms requiring the Manufacturer’s consent to any changes to the directors of either the relevant Operating Entity or the holding company: MG; Chery Motor Australia Pty Ltd; and Suzuki Australia; and

   2. (2)

      the dealership contracts with each of the following Manufacturers contained terms requiring the Manufacturers’ consent to changes to the officers of the relevant Operating Entity, but not to changes to the directors of the holding entity: Hyundai; Kia; KGM SsangYong Australia Pty Ltd; ATECO Automotive Pty Ltd (LDV); and JAC Auto (Pickup) Pty Ltd. In addition:

3. [623]

   There were also provisions in the Jeep dealership agreement requiring consent to any change to the directors of the relevant Operating Entity. However, this is of little significance, as a non-renewal notice was issued in respect of this agreement more than two years ago, and the Heartland Motors Group has, in the interim, ceased selling Jeep vehicles.

4. [624]

   It follows that none of the franchise agreements within paragraph [622(1)] above has been breached by any changes to the directors of the relevant Operating Entity or any holding entity.

5. [625]

   As regards the franchise agreements within paragraph [622(2)] above, any breach of those agreements occurred at the time when Mr Turner was removed, and Ms Hooker was appointed, as a director of the relevant Operating Entities (that is, in early May 2025).

6. [626]

   Since that time, none of the Manufacturers, other than Mitsubishi, has issued a breach notice to the relevant Operating Entity.

7. [627]

   Mr Turner actively encouraged Mitsubishi to issue this notice and to assert a breach by Heartland Motors of the relevant franchise agreement. In particular:

   1. (1)

      an internal email between Mitsubishi staff on 7 May 2025 records that Mr Turner called Mr Wood of Mitsubishi, stating that he had been removed as a director and that he and Mr Anthony Turner were no longer employees, and “requested [that Mr Woods] contact Joanne Richards by email to advise that these actions are in breach of our FA [Franchise Agreement] etc.”;

   2. (2)

      Mr Turner sent a follow-up email to Mr Wood the next day, 8 May 2025, asking: “Have you emailed Jo on this breach yet?”;

   3. (3)

      Mr Turner sent a text message to Mr Gannon of Mitsubishi on 13 May 2025 asking if “your legal team sent an email yet?”, and another on 15 May 2025 asking “did you email Joanne yet?”; and

   4. (4)

      on 15 May 2025, Mr Wood told Mr Turner that Mitsubishi intended to issue a breach notice imminently, and Mr Turner was pleased that one of the Heartland Motors Group’s important trading partners would be taking this action against the Group, responding: “And rightfully so, thank you!!”

8. [628]

   On 20 May 2025, Mitsubishi issued a breach notice to Heartland Motors pursuant to its franchise agreement. In this notice, Mitsubishi requested, inter alia, justification for the appointment of Mr Meyer as CEO, details regarding Ms Hooker’s credentials and role as a director, and a meeting with Ms Richards, Ms Hooker and Mr Meyer before 30 May 2025.

9. [629]

   On the same day, Mr Turner sent a text message to Mr Wood, stating that: “I hope you stay strong on this and enforce your legal rights which in turn protects me and the businesses”. He also made disparaging remarks about Ms Hooker and Mr Meyer. Mr Turner followed this with a text message to Mr Gannon on 23 May 2025, in which Mr Turner expressed the “hope” that Mitsubishi “enforce their legal rights” under the franchise agreement, and again made disparaging comments about Ms Hooker’s suitability as a director.

10. [630]

    On 28 May 2025, a meeting took place between Mitsubishi, Mr Meyer, Ms Richards and Ms Hooker. Mr Meyer subsequently sent an email to Mitsubishi thanking them for “the ability to explain the situation … and the reasons behind actions that were taken”, and confirming the matters discussed at this meeting, which included that:

    1. (1)

       Mitsubishi expressed concern that its requirement for a new showroom “has not progressed sufficiently speedily under the ex-management team” (namely, Mr Turner and Mr Anthony Turner);

    2. (2)

       Mitsubishi was concerned about the approval of a development application for a pub on the site of the dealership, which had been organised by Mr Turner;

    3. (3)

       Mitsubishi wanted to see the dealership “deliver a consistent performance, as against the inconsistent results that have been achieved over the past five years”; and

    4. (4)

       the breach notice would remain in place until the decision of the Mitsubishi Executive Meeting.

11. [631]

    On 31 July 2025, Mitsubishi confirmed that it agreed to the appointment of Ms Hooker and the removal of Mr Turner as directors of the relevant Operating Entity; that it approved the appointment of Mr Meyer as Dealer Principal; and that Ms Hooker and Ms Richards would be regarded as “Control Persons” under the franchise agreement from that point in time. Mitsubishi has now entered into a new franchise agreement which runs until 30 November 2026, with a further expiry date of 30 November 2030 that is conditional on certain performance criteria.

12. [632]

    Further, it is notable that breach notices have not been issued by any other Manufacturer, despite Mr Turner taking steps to inform those Manufacturers of the changes to the directors of the relevant Operating Entities and urging the Manufacturers to assert their rights under their respective franchise agreements (contrary to the interests of the Heartland Motors Group). The following communications are by way of example only.

    1. (1)

       On 13 May 2025, Mr Turner sent a series of text messages to Mr Geoff Golden of Hyundai, asking “has your legal team sent an email yet?”, and urging that such a letter “Needs to be sent before 9am tomorrow when in court” and “Today preferable though”.

    2. (2)

       On 15 May 2025, Mr Turner sent a message to a Kia representative, asking “did you email Joanne re her breaches?”

    3. (3)

       On 23 May 2025, Mr Turner sent text messages to a Mahindra representative, in which he stated that he hoped that Mahindra had “engaged legal advice”, referred to “breaches and misconduct”, and urged the Mahindra representative to “enforce the rights of your company and Heartland”.

    4. (4)

       On 23 May 2025, Mr Turner sent a text message to representatives of each of Hyundai, LDV, Mahindra, SsangYong, Chery and JAC, stating that he had commenced proceedings in the Federal Court “seeking to expedite my reinstatement as CEO and Director” and to “remove Joanne and Bernice as Directors”, and urging the Manufacturers to “enforce their legal rights in accordance with their respective [franchise agreements]”.

13. [633]

    Mr Meyer gave evidence regarding his conversations with representatives of the Manufacturers since his appointment as CEO of the Heartland Motors Group. In particular, he gave evidence that a number of the Manufacturers have stated that they accept, or have no issue with, the changes to management of the Operating Entities. The statements in Mr Meyer’s affidavit that were attributed to third parties were limited to evidence of the statements made, rather than the truth of those statements.

14. [634]

    On the evidence before the Court, there is no basis to conclude that the removal of Mr Turner as CEO and as director of the Operating Entities, or the appointment of Ms Hooker as a director of those entities, has had or will have any material impact on the Group’s arrangements with Manufacturers or on its business more generally. For example, on 18 July 2025, Suzuki sent an email to Mr Meyer congratulating him on his appointment as CEO of the Heartland Motors Group, and acknowledging that Mr Meyer’s “industry experience and the strength of your operational team certainly bring a strong foundation for the Group’s revitalisation”. Suzuki subsequently sent a draft deed of variation to Mr Meyer, updating the authorised signatory from Mr Turner to Ms Hooker, and updating the management structure to remove Mr Turner and Mr Anthony Turner.

15. [635]

    In any case, if there were any adverse impact on the Group’s business (for example, if one or more Manufacturers were to terminate the applicable franchise agreement, despite not having notified any breach to date), it would not follow that Ms Richards and Ms Hooker had engaged in oppressive conduct by terminating Mr Turner’s employment as CEO and removing him as a director of the Operating Entities without first obtaining the prior consent of the Manufacturers. It was open to a reasonable director in the position of Ms Richards and Ms Hooker to make the commercial judgment that any risk to the business from having moved swiftly to terminate Mr Turner’s employment without first obtaining the Manufacturers’ consent was outweighed by the risk to the business in permitting Mr Turner to remain as CEO and as a director of the Operating Entities, particularly having regard to his attempt to remove from the Group’s control the valuable real estate assets of the RG Trust that were integral to the operation of the Group’s car dealership business.

16. [636]

    For those reasons, I reject the Cross-Claimants submission that Ms Richards and Ms Hooker engaged in oppressive conduct by taking steps to remove Mr Turner from his roles as CEO and as a director of the Operating Entities without first obtaining the consent of the Manufacturers.

Conclusion – Oppression Claim

1. [637]

   For the reasons given above, I have determined that the matters upon which the Cross-Claimants relied in support of their oppression claim do not establish, either separately or cumulatively, any oppressive conduct.

2. [638]

   It follows that there is no need to address the question of relief.

3. [639]

   As with the claim for breach of contract, the Cross-Claimants accepted that there would be no utility, in the event that the Court rejected the oppression claim, in the Court proceeding to have a separate hearing in order to determine the (hypothetical) question of what orders for relief would have been made under s 233 of the Act in the event that oppression had been established.

4. [640]

   It is sufficient for present purposes to address, briefly, the Cross-Claimants’ contention that the appropriate relief, in the event that oppression had been established, would have been for the Court to make an order enabling Turnercorp to buy out the shares of Ms Richards and Ms Hooker.

5. [641]

   The Cross-Claimants acknowledged that, generally, a minority shareholder who is oppressed does not obtain an order enabling them to purchase the shares of the majority shareholder(s).

6. [642]

   The nature of the remedy chosen by the Court under s 233 will be dependent upon the conclusions drawn as to the type of oppression with which the Court is dealing, and the Court will choose the remedy which is the least intrusive: Tzavaras v Tzavaras & Sons Pty Ltd [2023] NSWCA 168 at [74(9)] (Gleeson and Adamson JJA, Griffiths AJA) quoting with approval Munstermann v Rayward [2017] NSWSC 133 at [22(9)] (Stevenson J).

7. [643]

   In Fexuto CA at [166], Spigelman CJ observed that:

8. [644]

   In the same decision, Fitzgerald JA referred (at [704]) to the Chief Justice’s observation, and indicated that he did not consider that there was any rule to this effect, stating as follows:

9. [645]

   Ultimately, the “‘direction’ of any buy-out [is] to be determined by what the justice of the case requires on the basis of all the circumstances of the case”: Millsave Holdings Pty Ltd v Connective Group Pty Ltd (2023) 75 VR 239; [2023] VSCA 326 at [1025] (McLeish, Macaulay and Lyons JJA); and WIJOAV at [170] (Jackman J).

10. [646]

    It is therefore difficult to express any view on what relief I would have ordered in the event that the oppression claim was established, since the appropriate relief would depend on some alternative combination of factual findings and there would be, given the number of issues that have been raised in this proceeding, multiple alternative combinations of such findings. Further, the factual issues which would be relevant to assessing the appropriate relief would include not only those arising on the Cross-Claim, but also those arising on the Plaintiffs’ claim (including the allegations that Mr Turner had acted for an improper purpose in taking steps to change the trustee of the RG Trust).

11. [647]

    Given those matters, I do not consider that there is any utility in expressing any views on the relief I would have ordered if some other combination of factual findings had been made.

12. [648]

    For the reasons given above, I have determined that:

    1. (1)

       the Plaintiffs have established their claim that Heartland One was not validly appointed as trustee of the RG Trust, and that Boyded remains the trustee of that trust, and are entitled to declaratory and injunctive relief; and

    2. (2)

       the Cross-Claimants have failed to established their claims as to breach of contract and oppression, and accordingly, the Cross-Claim should be dismissed.

13. [649]

    It follows that the Plaintiffs/Cross-Defendants are entitled to their costs of the proceeding.

14. [650]

    The parties should bring in short minutes of order to give effect to these reasons for judgment. Insofar as there is a dispute about the form of the orders (including the terms of any declarations or injunction, or the form of the costs order), I will give the parties an opportunity to make submissions on those matters and, unless any party requests an oral hearing, will deal with any such dispute on the papers.

15. [651]

    Accordingly, I make the following orders.

    1. (1)

       Direct that the parties are to bring in short minutes of order by 5pm on 28 November 2025 to give effect to the reasons for judgment.

    2. (2)

       Direct that, in the event the parties are unable to agree on orders to give effect to the reasons for judgment, the parties are to exchange and provide to the Associate to Nixon J, by 5pm on 28 November 2025, the orders which each party proposes and submissions (limited to 5 pages) on those orders, indicating whether, and if so why, an oral hearing is requested to deal with the matters in dispute.