Pages Property Investments Pty Ltd v Attila Boros & Ors

The Plaintiff (“PPI”) seeks a range of relief in these proceedings against several individuals and companies within the group of companies operating the Pages event hire business (“Pages Group”). The First Defendant, Mr Boros, has appeared and contests the relief sought in the proceedings. PPI has settled its claims against the Third and Fourth Defendants, Mr Thatcher and Mrs Boros, and several corporate defendants are now in provisional liquidation and have taken no active role in the proceedings. The Seventh Defendant (“Austructures”) is not in provisional liquidation, but did not participate in this hearing. Although it had foreshadowed that it would seek to be heard in respect of the relief sought against it, namely an order that it be wound up for oppression or on the just and equitable ground, it ultimately did not seek to do so, and Mr Boros addressed that question in closing submissions.

There is a significant degree of common ground between the parties as to the background facts. PPI is the trustee of The Page Family Discretionary Trust and owns shares in several of the corporate Defendants, which operated a hire business established by the late Mr Greg Page. From about 2003 until her death in 2018, Mr Page’s widow, Mrs Mary Terese (“Tess”) Page was the sole shareholder of PPI. PPI alleges that the First Defendant, Mr Boros, was its chief executive officer from July 2003 to March 2008 and effectively controlled PPI and its decision making in that period. It is not necessary to determine that question since the claims to be determined in these proceedings arise subsequently. It is common ground that Mr Boros was PPI’s sole director and sole company secretary from 3 March 2008 until 12 September 2016, when Mrs Page removed him from those positions and appointed her son, Mr Timothy Page, as PPI’s sole director and secretary.

The Second Defendant (“PEH”) was placed in voluntary administration on 3 July 2020, and the Court subsequently appointed provisional liquidators to it. Mr Boros is, and has been since 17 December 1999, a director of PEH, and Mr Thatcher was the other director of PEH since that date. The shareholders of PEH are, and have been since 29 October 2003, PPI as to 50%; Hun Enterprises Pty Ltd (“Hun”), a company associated with Mr Boros and Mrs Boros, as to 25%; and Thatcher Group Pty Ltd (“Thatcher Group”), a company associated with Mr Thatcher, as to 25%. The Fifth Defendant (“Sales”) was also placed in voluntary administration on 3 July 2020, and the Court also subsequently appointed provisional liquidators to it. Mr Boros was also, from 21 November 2014 until 25 August 2015, a director and the sole company secretary of Sales. Mr Thatcher is and has been since 21 November 2014 a director of Sales and its sole company secretary from 25 August 2015. The shareholders of Sales are, and have been since 21 November 2014, PPI as to 26.667%; Hun as to 26.667%; Thatcher Group as to 26.667%; and two other entities each as to a 10% interest in that company.

The Sixth Defendant (“Phire”) was also placed in voluntary administration on 3 July 2020, and the Court also subsequently appointed provisional liquidators to it. Phire was, until 8 September 2015, known as Pages Hire Centre (NSW) Pty Ltd (“PHC”). Mr Boros is and has been a director of Phire since its incorporation and is currently the sole director and sole company secretary. Mr Thatcher was a director of Phire from 17 December 1999 until 21 August 2015 and was the sole company secretary of Phire from 1 September 2007 to 16 November 2010. The shareholders of Phire are, and have been since about 21 January 1999, PPI as to 50%; Hun as to 25%; and Thatcher Group as to 25%. There is a dispute as to whether Phire ceased trading from January 2015 or 30 June 2015, but it is common ground that, from about 1 January 2015, Mr Boros caused creditors of Phire, other than the Australian Taxation Office (“ATO”), to reissue their invoices to Sales. Phire was placed in voluntary administration on 9 September 2015, executed a Deed of Company Arrangement (“DOCA”) on 5 November 2015, and the deed administrators terminated that deed on 19 June 2020. As mentioned above, Phire was again placed in voluntary administration on 3 July 2020 and provisional liquidators were then appointed to it by the Court.

The Seventh Defendant is Pages Austructures Pty Ltd (“Austructures”). Mr Boros is and has been a director of Austructures since its incorporation and is, and has been since 27 March 2007, its sole director. From about 9 September 2008 until 1 July 2020, the shareholders of Austructures were PPI as to 25%; Hun as to 25%; Hospitality Hire (Aust) Pty Ltd (a company owned by Mrs Boros) (“HHA”) as to 25%; and Thatcher Group as to 25%. On or about 1 July 2020, Thatcher Group transferred its shares in Austructures to Mr Boros’ daughter, so that PPI now has a 25% interest and Mr Boros and associated persons and entities together have a 75% interest in Austructures.

The Fifth Further Amended Statement of Claim is a complex document. Mr Boros’ Defence to the Fourth Further Amended Statement of Claim (which he was not required to update) was adopted from an earlier Defence filed by the several Defendants when they were legally represented, and is convoluted and prolix. It does not adequately respond to several pleaded allegations and, in particular, Mr Boros responds to several factual allegations only by pleading “[m]ove to strike; time barred by operation of section 1317K of the Act”. I address that section, and the corresponding limitation period under general law, where relevant below. I have had regard to all defences raised but only address those which are of substance in this judgment. A dispute arose between the parties as to whether Mr Boros should be entitled to withdraw several earlier admissions in that Defence, which was ultimately of no significance to the factual and legal findings that I reach below.

After the conclusion of oral closing submissions, I directed PPI to provide a schedule clarifying an aspect of its pleaded claims, by identifying each material aspect of the financial accounts of each of the several companies that it contended was false or did not provide a true and fair view of the relevant company’s financial position, identifying specified matters, and I then allowed it a further opportunity to correct cross-references to evidence in that schedule that appeared to be in error, and allowed Mr Boros an opportunity to respond to that schedule. I also directed PPI to provide a schedule setting out its quantification of damages for each pleaded claim, and allowed Mr Boros an opportunity to respond to that schedule. I have disregarded Mr Boros’ response to the extent that, rather than addressing any question of quantification, he reagitated the question whether he was liable in respect of the claims, as to which he had previously made both written and oral submissions. The authorities make clear that the proper course is to disregard further submissions that extend beyond any leave granted for them: Carr v Finance Corp of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 at 257-258; Notaras v Waverley Council [2007] NSWCA 333 at [147] per Tobias JA, with whom Mason P and Hodgson JA agreed; Bull v Lee (No 2) [2009] NSWCA 362 at [8].

Before turning to the affidavit evidence on which the parties rely, I should address the principles to which the Court should have regard in assessing the affidavit and oral evidence. To the limited extent that there is any direct contest as to events, and given the passage of time between the events and the hearing, I have placed primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599 at [15]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 129; Re Hillsea Pty Limited [2019] NSWSC 1152 at [16]ff. I also have regard to the gravity of the matters alleged against Mr Boros in determining whether those matters are proved to the civil standard, under s 140 of the Evidence Act 1995 (NSW), reflecting the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171. In the event, Mr Boros gave little evidence in admissible form of several earlier arrangements for which he contended and, as I note below, Mr Timothy Page had limited knowledge or understanding of relevant events.

PPI relies on several affidavits of Mr Timothy Page, who is a confined space rescue officer by occupation, and the son of the late Mr and Mrs Page and now the sole director of PPI. In his affidavit dated 28 November 2016, Mr Page refers to PPI’s ownership of an industrial property at Punchbowl, to which I refer below, and the lease of that property to PEH and PEH’s then operation of an event hire business from that property. His evidence is that the late Mr Greg Page started the business in 1957 and that Mr Boros and Mr Thatcher worked for the business from the 1980s. Mr Page leads evidence of PPI’s then shareholding in several of the Pages Group companies, and refers to the circumstances in which he became aware of a suggestion that Mr Boros had listed the Punchbowl property for sale in August 2016. Mr Page also refers to several transactions involving PPI, to which I refer further below, to requests for the books and records of PPI made to Mr Boros and to correspondence between solicitors in respect of those requests. The issues in respect of access to documents are relevant to the oppression claims, although orders for production of documents were made in the proceedings and the Court will determine the proceedings on the basis of the documents now produced in them.

By a second affidavit dated 31 October 2017, Mr Page referred to the shareholdings of the several companies in the Pages Group and to the entry into a first lease of the Punchbowl property between PPI and PEH on 25 June 2014 (“First Lease”) and a second lease between PPI and PEH in July 2016 (“Second Lease”). He again referred to a telephone conversation with a real estate agent in respect of Mr Boros’ listing of the Punchbowl property for sale, to the circumstances in which he was then appointed as a director of PPI and to requests made by PPI’s solicitors for access to PPI’s books and records and the commencement of proceedings seeking access to those books and records. Mr Page also referred to the circumstances in which the amount of a facility from Australia and New Zealand Banking Group Limited (“ANZ”) to PPI was increased in November 2016, although he appears to have had little personal knowledge of that matter. He also there referred to the entry into the Second Lease over the property and to unsuccessful attempts made between the parties to negotiate a resolution of the proceedings.

PPI relies on a third affidavit of Mr Page dated 21 February 2020, which referred to conversations with Mrs Page prior to her death, in which she had referred to Mr Boros’ role in dealing with the finances of the Pages Group business, and he also gives evidence of Mrs Page’s lack of business sophistication and her apparent lack of understanding of the affairs of the Pages Group companies. Mr Page’s evidence is that his late mother had not mentioned to him several financial arrangements on which Mr Boros relies by way of defence. He acknowledges that Mrs Page received payments from the Pages Group including a weekly allowance but observes that she never advised him that those payments were loans from the companies or referred to any liability to pay back those payments (Page 21.2.2020 [13]). Mr Page’s evidence is that he did not find any evidence or documents among his late mother’s papers referencing any payment arrangement between Mrs Page and PPI or PEH, or between PPI on the one hand and PEH, Sales and Phire on the other, after the death of Mrs Page (Page 21.2.2020 [15]). Mr Boros also tenders no such documentation in the proceedings.

Mr Page refers to PPI’s later entry into a contract for sale of the Punchbowl property with a third party, which did not proceed when PEH did not surrender the Second Lease, but PPI now does not press an earlier claim for relief in respect of that matter. He refers to further requests made by PPI’s solicitors for books and records of the companies (Page 21.2.2020 [25]) and to the interest payable by PPI on the increased loan facility to PPI from ANZ (Page 21.2.2020 [27]-[29]). Mr Page also refers to certain matters raised in the Defendants’ then Defence to the Second Further Amended Statement of Claim filed 23 December 2019, and to his assumption until about January 2017 that Mr Boros “had done the right thing” and ensured the rent payable under the Second Lease reflected a commercial market rent, and to his having since learned that the rent payable under the Second Lease was “well below” market rent. I address that question below.

Mr Page also gives evidence responding to Mr Boros’ evidence as to comments made by PPI’s solicitors at a meeting on 8 August 2017. Nothing turns on those comments, where the status of the Second Lease is a matter for the Court, and does not depend upon PPI’s solicitor’s view of that question. Mr Page also addresses other aspects of Mr Boros’ evidence. He notes that Mr Boros and other Defendants have not produced board minutes recording any of the transactions in issue in the proceedings (Page 21.2.2020 [38]) and I note that no board minutes of any significance were tendered.

By his fourth affidavit dated 5 June 2020, Mr Page responded to Mr Boros’ affidavit dated 17 April 2020, referring to the position which Mr Page held for a period in the Pages Group business, which was plainly not a management role, and to his lack of knowledge of dealings with ANZ; he referred to the late Mrs Page’s reliance on Mr and Mrs Boros, and to the fact that Mrs Boros had held a power of attorney for Mrs Page; to Mrs Page’s education and her career in teaching, but her lack of sophistication as a businesswoman, although she held a position as a director of a charitable organisation; and to a reduction of payments made by the Pages Group companies to her in late 2014, when Mr Boros told her that the business had not been “doing so well”. Mr Page also referred to an offer made by Mr Boros that Mr Page be appointed as a director of companies in the Pages Group, and to Mr Page having recognised (I interpolate, rightly) that it would be undesirable that he accept such an appointment where he was also a director of PPI. Mr Page also addressed several other matters that are not material to the findings that I reach below and to correspondence between Mr Boros and PPI’s solicitors from March 2020 onwards. Mr Page also there replied to the affidavit of Mrs Boros dated 22 April 2020, which was not read.

Mr Boros cross-examined Mr Page at some length. It was apparent that Mr Page had limited knowledge of the affairs of the companies, and, as he fairly accepted, he also had little business expertise. It seems to me likely that Mr Page had relied heavily on his solicitors to prepare his affidavits, and that his account of the history of the companies in those affidavits likely reflected his solicitors’ analysis of relevant documents rather than any substantial understanding of those documents on his part. It was perhaps unfortunate that Mr Page was left to give evidence of matters that he did not fully understand. However, nothing turns on that matter for present purposes, since the issues largely turn upon documents and Mr Boros’ account of decisions which he made, in which Mr Page had no involvement. I accept that Mr Page was doing his best to give honest evidence, although the utility of that evidence was limited by his lack of personal knowledge of events and his limited business expertise.

PPI also tendered an affidavit dated 28 November 2016 of the late Mrs Page (Ex P1). Mrs Page’s evidence was that the late Mr Greg Page started the Pages Hire business in 1957 and that Mr Boros and Mr Thatcher joined the business in the 1980s and Mr Page died in 2003. Mrs Page there referred to the fact that she was the sole director of PPI until about 2008, when Mr Boros replaced her as PPI’s sole director and secretary. Mrs Page acknowledged that she had received several benefits from PPI, including the use of a car, travel costs and other less substantial benefits such as access to limousines if she was attending a function.

Mrs Page referred to dealings with the Punchbowl property and to the First Lease, but her evidence was that she did not know whether PEH was paying the rent on that property after she ceased to be a director of PPI in 2008 (Ex P1, [12]). She also referred to the entry into the Second Lease and her evidence was that the Second Lease was entered into without her knowledge or consent, and that Mr Boros did not discuss it with her (Ex P1, [14]). Her evidence was that her consent was also not sought or obtained to use the Punchbowl property as security for companies in the Pages Group to borrow funds from ANZ and that the Punchbowl property had been listed for sale in 2016 without her knowledge or consent, and that she subsequently passed a resolution removing Mr Boros as director and secretary of PPI and appointing Mr Timothy Page as director and secretary. Her evidence was that Mr Boros was her late husband’s “business partner” for many years; she thought Mr Boros was managing the Pages event hire business; he provided the benefits to which she had referred in her affidavit to her and she thought she was being looked after and trusted Mr Boros. Mrs Page’s evidence accords with the probabilities, although I bear in mind that she could not be cross-examined.

PPI relied on an affidavit dated 18 July 2019 of Mr Lenord and his expert report in respect of the market rent payable in the Punchbowl property (Ex P14) at the time of the entry into the Second Lease. I will address that report in dealing with that issue below.

PPI also relied on several reports of Ms Bateman, to which I refer below in dealing with the particular issues to which they were relevant. Ms Bateman’s affidavit dated 19 March 2018 exhibited her first expert report dated 1 March 2018 (Ex P8). That report was admitted without limitation as to paragraphs 177 and 192, relating to the alleged lapse of PPI’s GST registration; paragraphs 110-113 and 144 relating to the alleged transfer of business from Phire to Sales in 2015; and paragraphs 19-21, 96-99, 130-131 and 180 and Schedule 1 relating to the allegation of false loan accounts with PPI, and otherwise subject to a limiting order under s 136 of the Evidence Act as relating to the question of oppression, winding up on the just and equitable ground and the costs of obtaining expert assistance arising from issues as to the alleged failure to keep proper books and records. Ms Bateman’s second report dated 27 June 2019 (Ex P9) was admitted without limitation as to paragraph 16-32, relating to the alleged failure to properly record PPI’s shareholdings in group companies and share premium reserves and as to paragraph 46(f) relating to Austructures’ books and records, and otherwise with a limiting order under s 136 of the Evidence Act as noted above.

Ms Bateman’s third report dated 30 August 2019 (Ex P10) was admitted without limitation as to paragraphs 175-186 relating to the alleged failure to keep proper books and records of PPI; paragraph 176 relating to the alleged increase in PPI’s debt to ANZ; paragraphs 58-59 and 125 relating to the alleged lapse in PPI’s GST registration; paragraphs 84-89 relating to the loan of $124,000 to PEH; paragraphs 178-180 relating to the alleged failure to properly record PPI’s shareholdings in group companies and share premium reserves; paragraphs 46-50, 76-81 and 181-183 relating to the alleged transfer of the business from Phire to Sales in 2015; paragraphs 61, 89-91, 94-95, 102-104, 134, 142-161 and 181 and Schedule 7 relating to the alleged false loan accounts with PPI, and paragraphs 63(c) and 184-185 as to the alleged failure to ensure Austructures kept proper books and records, and otherwise with a limiting order under s 136 of the Evidence Act as noted above.

Ms Bateman’s report dated 4 June 2020 (Ex P11) was admitted without limitation. Paragraphs 18-61 of that report refer to the financial records of PPI; paragraphs 62-98 refer to the financial records of Phire; paragraphs 99-119 relate to the financial records of Sales; paragraphs 137-145 relate to documentation of loan accounts between related parties; and paragraphs 183-190 of that report deal with Ms Bateman’s view as to the amount of the fees charged by her to PPI that relate to the question whether proper financial records of PPI have been kept, but do not distinguish between those expenses that are referable to issues as to PPI’s accounts and those that are referable to issues as to other companies’ accounts. Ms Bateman’s further report dated 8 July 2020 and several further reports amending aspects of her calculations were admitted without limitation. As I noted above, I will address these reports below in addressing the relevant issues.

Ms Bateman was not provided with assumptions as to provable facts and, as I will note below, Ms Bateman did not always adequately expose any basis in accounting or professional standards for the opinions that she expressed or restrict her evidence to matters within her professional expertise. Mr Boros cross-examined Ms Bateman but that cross-examination did not significantly undermine those parts of her evidence which did reflect the application of accounting expertise to provable facts and could be given weight.

I have had regard to other matters raised by Mr Boros in submissions which he contended had the result that PPI acted “untruthfully” in respect of several of its claims, including a claim for estoppel brought by PPI to support a surrender of the Second Lease, which was abandoned after Mr Page’s cross-examination; matters raised in the cross-examination of Mr Boros; the scope of documents sought by PPI on subpoena and a contention, which was not established, that PPI had not provided with Ms Bateman will all relevant documents that were made available to it; the circumstances in which PPI sought to sell the Punchbowl property; and a suggestion that there was an unidentified “shadow director” behind Mr Timothy Page “running this claim” and that it was not brought for the benefit of all of PPI’s “beneficiaries”. I am not persuaded that these matters establish any lack of integrity in PPI’s claim, although parts of it were not pressed and some aspects of it have not succeeded.

Mr Boros relied on several affidavits, which were prepared at the time that he was represented by Counsel and solicitors in the proceedings. His first affidavit dated 30 January 2018 had been prepared in support of an unsuccessful application for summary dismissal or striking out of the claims brought by PPI against him in the proceedings or a permanent stay of the proceedings. His evidence there was that he was the sole director of PPI from 3 March 2008 until 12 September 2016, when Mrs Page removed him and appointed Mr Page in his place as PPI’s director. He was also a director of PEH, in which PPI was a 50% shareholder, since 1999 and Mr Thatcher was the other director of PEH. Mr Boros there referred to the lease of the Punchbowl property from PPI to PEH, initially pursuant to the First Lease and subsequently pursuant to the Second Lease. Mr Boros also led evidence, admitted with a limiting order under s 136 of the Evidence Act as submission only, in support of a claim that PPI had commenced and continued the proceeding to exert pressure on him, as a director of PEH, to cause PEH to surrender its lease over that property. It is not necessary to address that issue, where Mr Boros’ previous attempt to stay the proceedings failed. It is in event apparent, for the reasons noted below, that PPI’s factual complaints have substantial factual merit, although not all of them give rise to claims available to PPI as distinct from other companies within the Pages Group.

Mr Boros referred to the structure under which the Pages Group business was conducted from 1999 until 2014 (Boros 30.1.18 [26]). He also referred (Boros 30.1.18 [30]) to the circumstances in which he was appointed as director of PPI in place of Mrs Page. Little turns on that matter, since the claims against Mr Boros relate not to the circumstances of his appointment as a director of PPI but to the manner in which he conducted himself in that position. Mr Boros addressed the appointment of voluntary administrators to Phire on 9 September 2015 and to the entry into the DOCA by Phire on 5 November 2015 (Boros 30.1.18 [32]). Mr Boros also addressed specific aspects of the claims made by PPI and I will refer to his evidence in dealing with those claims below.

Mr Boros also relied on his further affidavit dated 17 April 2020, which acknowledged that Mr Timothy Page did not have a role as a director of the Pages Group companies until he became a director of PPI, but contended that Mr Page was a full-time employee of the Pages Group until about 2006 and claimed, by way of assertion, that Mr Page knew of the ANZ facilities and how they functioned (Boros 17.4.20 [7]-[8]). Mr Boros again referred to the structure of the Pages Group companies and to Mrs Page’s role in the companies before he became a director of PPI in July 2008. The matters which I have to determine relate to the subsequent period.

In that affidavit, Mr Boros also referred to the accounting functions of the Pages Group (Boros [30]ff), complained of failures in the performance of a former commercial manager with the Pages Group, whose responsibilities he says included the internal accounts function, and contended that work in progress (“WIP”) was treated differently in the Pages Group’s reports to ANZ (where he says it was included as an asset under a formula which estimated its value based on expenses incurred against forward sales) and for tax purposes, where he contended it was not recorded as an asset. Mr Boros contended (Boros [41]) that the financial statements prepared for internal reporting purposes and the reports sent to ANZ did not match the accounts prepared for tax purposes for that reason. Mr Boros was cross-examined (T223ff) as to this evidence and he there maintained that ANZ had reporting criteria which were not the same as the Australian Taxation Office’s criteria (T225). In cross-examination, Mr Boros also disagreed with Ms Bateman’s evidence (to which I refer below) that WIP would be included in annual financial statements provided to the Australian Taxation Office, although indicating that he would have sought advice as to that matter if it was contentious (T231-232). There is no suggestion that any contemporaneous advice was sought as to that matter. Although his evidence was not entirely clear, he adhered to his affidavit evidence that WIP was not included in final accounts provided to the Australian Taxation Office (T232, T236). Mr Boros was cross-examined as to a significant difference in the 2011 financial year between different versions of the financial statements (Boros [71], Ex J1, 2857, 2870) (T248) and as to the non-production of signed and audited financial statements in, for example, 2012 and 2013 and referred to his reliance on the Pages Group’s accounts department in that regard (T251). Mr Boros was also cross-examined at length (T262ff) as to other inconsistencies in the financial accounts of the companies and the absence of final versions of relevant financial statements.

Mr Boros also described other aspects of the accounting process, reporting to ANZ and finalising annual accounts and identified (Boros [69]) the audited financial statements which he contended had been prepared for PPI for the years ending 30 June 2009 through 30 June 2011; PEH for the years ending 30 June 2009 through 30 June 2015; and Phire for the years ending 30 June 2008 through 30 June 2014. He also referred to a compilation report which he contended had been prepared and signed by PPI’s external accountant for the financial year ended 30 June 2015 (Boros [70]) and identified documents for Sales and PEH which he contended were final documents provided to the Australian Taxation Office for the years ended 30 June 2017 through 30 June 2019 (Boros [71]). Mr Boros also set out (Boros [72]) a table indicating financial statements for the Pages Group covering the financial years from 30 June 2008 to 30 June 2019. Mr Boros subsequently resiled, in cross-examination, from the identification of some of those documents as final accounts, when the extent of deficiencies in them began to emerge. I will refer to aspects of this affidavit in dealing with particular issues below.

Mr Boros was cross-examined at length. Mr Boros was cross-examined as to his recognition that decisions made as a director of PPI had the ability to affect its interests in PEH and Phire and his evidence was that his primary concern as a director of PPI was PPI’s interest to the exclusion of any other person or organisation (T214). He recognised that he should not use his position as director to gain an advantage for himself or some other party, with a qualification if that advantage was “acknowledged and agreed by other parties that may have been affected” (T214-215). He also acknowledged an obligation to avoid a conflict between his own interests and the interests of PPI, “unless there was acknowledgement by other parties that could be impacted” (T215); that formulation does not reflect the legal test, as I will note below. He was also cross-examined as to the extent of Mrs Page’s participation in the management of the Pages Group’s business and his evidence was that Mrs Page would go through final accounts with “a reasonable amount of diligence” (T215-T216). He acknowledged that Mrs Page started to become “overwhelmed” by the issues in the business in 2008 (T216), and I note that he was appointed as the director of PPI in her place in that year. I refer to other aspects of Mr Boros’ cross-examination as to specific issues below.

In closing submissions, PPI submits that the Court should find that Mr Boros was an untruthful witness in respect of several important matters and that his evidence should be treated with caution unless corroborated by contemporaneous documents. Mr White, who appears with Mr Gration for PPI, submits, and I accept, that Mr Boros’ answers to questions in cross-examination were often non-responsive, and that he gave diffuse and ambiguous explanations for matters, often by reference to matters as to which he had not led documentary or affidavit evidence, although he had been legally represented when his affidavits were prepared. Mr White also submits, and I accept, that Mr Boros frequently made claims of factual matters that supported his case in cross-examination which later proved to be incorrect. Mr White submits, and I accept, that other significant aspects of Mr Boros’ affidavit evidence were shown to be incorrect, including his explanation for the difference between the ‘management accounts’ provided to ANZ and the audited financial statements provided to the Australian Taxation Office, or on which the tax returns were based, by reference to the treatment of WIP, and that there were also shifts in Mr Boros’ evidence as to that matter in cross-examination. Mr White also submits, and I accept, that there were significant inconsistencies in Mr Boros’ evidence in cross-examination as to the extent and duration of the adverse financial impact of an issue that he claimed had arisen with invoicing in March 2014, and as to whether the payments to Mrs Page on which he relied in his defence were ‘loans’ or were ‘advances’ against future dividends. PPI submits Mr Boros’ evidence should not be accepted on these matters and treated with great caution in relation to other matters.

It seems to me that Mr Boros is, not surprisingly, very aware of the personal financial risk that he faces in these proceedings and that he has, at best, tailored his evidence to seek to minimise that risk; that he has sought to vary his evidence to meet what he, likely rightly, perceived as adverse developments arising from the evidence led against him; that his evidence of conversations with the late Mrs Page as to critical matters is not reliable, given her limited understanding of matters relating to the Pages Group and the extent to which he assumed a dominant role in its management; and that he has not given an honest or frank account of the manner in which Pages Group calculated its income to be reported to the Australian Taxation Office. I do not accept Mr Boros’ evidence other than where it is corroborated by documents or is consistent with the objective probabilities.

Mr Boros also relies on the existence of internal accounting staff and an external accountant to the Pages Group in response to several claims directed to failures in the companies’ accounts which I address below. Mr Boros served, but did not read, affidavits of Ms Hales, a bookkeeper employed by the Pages Group and Mr Gulwadi, its external accountant and auditor, and he did not explain why those witnesses were not called. I infer that their evidence would not have assisted Mr Boros, in accordance with authority that where a party would be expected to, but does not, call a witness who could give evidence on a relevant matter, and the failure to call that evidence is unexplained, an inference may be drawn that the uncalled evidence would not have assisted the party’s case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at [63]–[64]; MSPR Pty Ltd v Advanced Braking Technology Ltd [2013] NSWCA 416 at [53].

PPI submits, and I accept, that it has faced many difficulties in obtaining production of documents in these proceedings, which likely have not been fully resolved despite the orders made by Rees J in Pages Property Investments Pty Ltd v Boros [2019] NSWSC 1778. Mr White submits and I accept that the difficulties in obtaining production of documents have caused significant difficulty for PPI in quantification of its claims below, and I will find below that the internal inconsistencies in PPI’s financial records cause difficulty for several of those claims. Mr White submits that Mr Boros’ “obstruction” in that regard should not be permitted to shield him from liability for breaches of fiduciary duty and contravention of his director’s duties and refers to my observation in Re FAL Healthy Beverages Pty Ltd [2017] NSWSC 476 at [41]-[43] that:

However, that proposition cannot be taken too far, and its starting point is that a party first provides sufficient evidence from which the matter can be inferred. It does not authorise the Court simply to assume the correctness of the position for which PPI contends where it is not established by the tender of the Pages Group’s financial records, given the deficiencies in them which I address below, and there is not sufficient other evidence, or even “slight” evidence from which the matter can be inferred.

PPI pleads that Mr Boros owed it statutory and fiduciary duties (5FASC [45]-[46]) which he breaches in several respects. Paragraph 45 pleads the relevant statutory duties as follows:

This paragraph is a broadly accurate pleading of the relevant duties. Section 180 of the Corporations Act requires a director or other officer of a corporation to exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise if they were a director or officer of a corporation in the corporation’s circumstances and occupied the office held by, and had the same responsibilities within the corporation as, the director or officer. The statutory duty of care and diligence under that section overlaps with directors’ duty of care arising at general law. I summarised the applicable principles in Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789; (2014) 101 ACSR 233 (“Re Colorado”) at [408] as follows:

A question of breach of this duty requires a balancing of the foreseeable risk of harm against the potential benefits that could reasonably have been expected to accrue to the company from the conduct in question: Vrisakis v Australian Securities Commission (1993) 9 WAR 395 at 450; 11 ACSR 162 at 209; Australian Securities and Investments Commission v Cassimatis (No 8) (2016) 336 ALR 209; [2016] FCA 1023 at [479], aff’d Cassimatis v Australian Securities and Investments Commission [2020] FCAFC 52; (2020) 376 ALR 261; (2020) 144 ACSR 107; Re FAL Healthy Beverages Pty Ltd above at [55].

Section 181 of the Corporations Act requires a director or officer of a corporation to exercise his or her powers and discharge his or her duties in good faith in the best interests of the corporation and for a proper purpose. There are differing views as to whether any part of that duty is to be assessed by a subjective standard, which it is not necessary to address in this case: Re Colorado Products Pty Ltd (in prov liq) above at [421]; Australian Securities and Investments Commission v Drake (No 2) [2016] FCA 1552; (2016) 340 ALR 75; 118 ACSR 189 at [494]; Hart Security Australia Pty Ltd v Boucousis [2016] NSWCA 307 at [75]; Australian Securities and Investments Commission v Flugge and Geary [2016] VSC 779; (2016) 342 ALR 1 at [1980]ff; Vanguard Financial Planners Pty Ltd v Ale [2018] NSWSC 314 at [133]. I summarised the relevant principles in respect of that section and the broadly corresponding general law duty in Re Colorado above at [419]–[421] as follows:

Section 182 of the Corporations Act prohibits a director, secretary, officer or employee of a corporation from improperly using his or her position to gain an advantage for himself or herself or someone else, or cause detriment to the corporation. I summarised of the applicable principles in Re Colorado above at [432]–[433] as follows:

Paragraph 46 of the Fifth Further Amended Statement of Claim pleads fiduciary duties owed by Mr Boros to PPI, as follows:

Several observations need to be made about this pleading. First, the formulation of the duties pleaded in 5FASC [46(a)]-[46(b)] as “fiduciary” duties is controversial. The case law recognises that a director owes an equitable duty to act in good faith and in the company’s best interests and to exercise his or her powers for a proper purpose, although there is an open question whether that duty can properly be characterised as “fiduciary” where it imposes positive obligations. On appeal in Westpac Banking Corporation v The Bell Group Ltd (in liq) (No 3) [2012] WASCA 157; (2012) 44 WAR 1, the majority in the Court of Appeal of the Supreme Court of Western Australia (at [918]-[933] per Lee AJA, at [1956] and [1978] per Drummond AJA) held that the director’s duties to act in good faith and in the company’s interests and for proper purposes, although imposing positive obligations, can nonetheless be characterised as fiduciary, and Carr AJA observed (at [2733]) that he was not prepared to hold, on the present state of authority, that duties to act in the company's interests were not fiduciary duties. This question was subsequently noted in Netglory Pty Ltd v Caratti [2013] WASC 364 at [345]ff, where Edelman J observed that it may be incorrect, on the current state of Australian authorities, to characterise a breach of positive duties by a director, such as duties to act in good faith and in a company’s interests and for proper purposes, as a breach of fiduciary duty. His Honour nonetheless noted (at [347]-[349]) that the High Court “appears to have recognised that there may be a fiduciary prescriptive liability to account, where that liability is associated with a proscriptive fiduciary duty”; that it may be possible to describe the “proper purposes” duty in negative terms, as a duty not to act for collateral purposes; and that the duty or duties to act in good faith in the interests of the company could alternatively be characterised as prescriptive conditions upon the exercise of a fiduciary power. It is not necessary to determine the status of this duty in order to determine these proceedings.

Second, PPI does not plead or allege a breach of the “no profit” aspect of fiduciary duties, and I therefore do not further address that duty in this judgment. Third, the duties pleaded in 5FASC [46(c)]-[46(d)] do not accurately reflect the “no conflict” aspect of fiduciary duties. A director owes, as aspects of the “no conflict” rule, a duty to avoid a conflict of duty and duty or a conflict of duty and interest but not, as 5FASC [46(c)]-[46(d)] assume, a duty to avoid conflict of interest and interest. While I will not take an unduly technical approach to that pleading, that misunderstanding may have affected aspects of PPIs’ substantive case.

Turning now to well-established principles, a director of a company is a recognised category of fiduciary and the “no conflict” rule applies to a director as a status-based fiduciary. (As I noted above, PPI does not plead a breach of the “no profit” rule.) The “no conflict rule” has a strict application when it applies in the sense that, if a transaction has occurred in conflict of interest, a company director cannot avoid a breach of that rule by asserting the fairness of the transaction or that it was in the company’s best interests or that the director was not acting with subjective dishonesty. I observed (by reference to authority) in Re Colorado Products Pty Ltd (in prov liq) above at [351]:

In Coope v LCM Litigation Fund Pty Ltd [2016] NSWCA 37; (2016) 333 ALR 524 , Payne JA (with whom Gleeson and Leeming JJA agreed) summarised the no conflict and no profit rules as follows (at [105]):

It is important also to recognise that a necessary step in determining whether a breach of the rule against conflict of interest is established is to ascertain the subject matter of the relevant fiduciary obligations, which may be determined from the course of dealing between the parties: Birtchnell v Equity Trustees Executors and Agency Co Ltd [1929] HCA 24; (1929) 42 CLR 384 at 409; [1929] ALR 273 at 284 per Dixon J; Omnilab Media Pty Ltd v Digital Cinema Network Pty Ltd [2011] FCAFC 166; (2011) 285 ALR 63 ; 86 ACSR 674 at [206] , where Jacobson J (with whom Rares and Besanko JJ agreed) characterised the proposition “that the scope of the fiduciary duty must be moulded according to the nature of the relationship and the facts of the case” as “fundamental”; Colorado above at [361]. In Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296; 287 ALR 22; 87 ACSR 260, the Full Court of the Federal Court (Finn, Stone and Perram JJ) observed (at [179] that:

In Howard v Commissioner of Taxation [2014] HCA 21; (2014) 309 ALR 1, French CJ and Keane JJ in turn referred (at [34] ) to the principle that:

This principle can in turn overlap with principles of waiver and ratification, summarised by Tracey J in Holyoake Industries (Vic) Pty Ltd v V-Flow Pty Ltd [2011] FCA 1154; (2011) 86 ACSR 393 at [92] (varied on appeal on another point in V-Flow Pty Ltd v Holyoake Industries (Vic) Pty Ltd [2013] FCAFC 16; (2013) 296 ALR 418; 93 ACSR 76 as having effect that:

On or about 15 June 2016, PPI and PEH executed the Second Lease of the Punchbowl property from PPI to PEH for a period of five years commencing on 1 July 2016 until 30 June 2021, with options to renew for two further periods of five years each. The rent payable by PEH under the Second Lease was $33,000 per month (inclusive of GST) payable monthly in advance on the 1st day of each month, under cl 3 of the Second Lease and Item 6 of the Reference Schedule. The rent payable by PEH under the Second Lease is reviewed annually during the terms of the lease on the first and each subsequent anniversary of the commencement date of the lease by a specified formula under cl 4 of the Second Lease and Item 7 of the Reference Schedule. PEH is obliged to pay, within 20 business days after receiving an itemised statement from PPI after the end of each 12-month period of the lease, specified operating costs for the property under cll 5.1 and 5.2 of the Second Lease. PEH is obliged to pay interest to PPI on any rent, operating costs or other money payable by PEH to PPI and unpaid for 10 business days at a rate equal to 2% per annum above the highest overdraft rate charged as at the due date for payment by PPI’s bank for commercial loans in excess of $100,000, from the date the relevant payment was due under cl 13.3 of the Second Lease.

PPI pleads (5FASC [43]-[44]) that the market rent for the Punchbowl property as at 15 June 2016 was about $42,090 per month plus GST (about $46,300 per month inclusive of GST) and that the rent payable by PEH under the Second Lease is substantially below market rent. PPI pleads that Mr Boros breached his statutory and fiduciary duties by causing PPI to enter into the Second Lease at a rent substantially below market rent (5FASC [47]). In particular, PPI pleads that Mr Boros did not exercise his powers and discharge his duties as the director of PPI in good faith in its best interests, contrary to s 181 of the Act; that he improperly used his position as a director of PPI to gain an advantage for himself by reason of his indirect interest in PEH, or to gain an advantage for PEH, contrary to s 182 of the Act; and that he breached the pleaded fiduciary duties owed to PPI in that respect.

The rent payable under the Second Lease is $360,000 per annum, excluding outgoings which were to be paid by PEH; including land tax, which was not an additional charge to PEH; and exclusive of GST. Mr Boros referred, in his affidavit dated 30 January 2018, to a market valuation of the Punchbowl property obtained by ANZ from a third party valuer, Jones Lang LaSalle (“JLL”) in the sum of $5,500,000 (Ex J1, 8021-8065). Mr Boros also referred to his decision to set a gross rent at the amount of $360,000 per annum, which he contended was in PPI’s best interests (Boros [76]) and referred to the execution of the Second Lease. Mr Boros also relied on enquiries he had made of a local real estate agent prior to entry into the Second Lease and, in oral evidence given by leave, his evidence was that he was advised of the price range that would be achieved on a sale of the property and the rent per square metre that would be paid on a nearby property, if someone wanted to rent such a property (T209-210). Mr Boros also relied on a consent to lease by ANZ, which he contended involved ANZ’s assessment of whether the lease was at an appropriate rental, although the evidence did not establish that contention.

Mr Boros was cross-examined as to the circumstances of entry into the Second Lease and accepted the need for valuation advice about the value of the property and the rental values in that respect (T371), and again maintained that he had sought advice from local agents as to the rent that could be obtained (T372). He was also cross-examined, at some length, as to whether the rent payable under the Second Lease was market value (T379ff) and he denied that he arranged for the Second Lease to be entered into at a below market rent to advantage PEH if the property was sold and that he did not act in PPI’s interests in doing so (T383).

PPI also relies on JLL’s report, and points out that that report stated that the gross lettable area of the property was 6,085m2; out of a total area of 11,552m2; that average asset performance in the area of the property was a market rent (excluding GST) of $131 per annum per m2 for ‘prime rents’ and $109 per annum per m2 for ‘secondary rents’. Mr White points out that, even assuming on the basis that the property would achieve only a secondary rent, and that the property was ‘average’, the market rent would be expected to be $663,265 plus GST per annum, by reference to that report. I accept that report provides some support for the higher rental figure for which PPI contends, recognising that it was prepared some months before the Second Lease was entered.

PPI relied on the affidavit dated 18 July 2019 of Mr Lenord and his expert report in respect of the market rent payable on the Punchbowl property (Ex P14) and Mr Boros relied on the expert report of Mr Price (Ex D2). I recognise that, as PPI points out, Mr Price stated in his report that he was instructed not to consider the terms of the Second Lease, and he confirmed in cross-examination that he had not been provided with a copy of that lease, although he was given the opportunity to review it in cross-examination and did not change his view. It seems to me that approach is not necessarily incorrect, where Mr Price’s evidence was to be directed to market rentals, rather than specifically to that lease.

There were significant differences between Mr Lenord’s and Mr Price’s evidence as to the basis on which the market rent should be calculated and as to its amount. Mr Lenord assessed the annual market rent for the property as $505,700, on the basis of a “net” rent (sect 9.3), with outgoings excluded and to be paid separately by the tenant. He estimated the outgoings for the Punchbowl property as $157,591 per annum which he considered was within the parameters for this building type (sect 7.1). Mr Lenord continued to express the view that the rent for property was appropriately assessed on that basis in cross-examination (T183), although he also indicated his view that, calculated on a “gross” basis, the market rent for the property would be $662,661 per annum (T182).

By contrast, Mr Price assessed the annual market rent for the property as $510,000 per annum, on the basis of a “gross” rent (p 9), with outgoings included in the rent and not separately chargeable to the tenant (T409), and he expressed the view that a “gross rent” should be charged on older assets such as the property (T409). He also described a “gross” rent in cross-examination as meaning that a tenant is not charged outgoings relating to land tax, council or water in addition to the quoted rent (T409). This description of “gross rent” is consistent with the definition of ‘Effective Market Rent’ contained on page 11 of his report, although he uses the term ‘Market Rent’ rather than ‘Effective Market Rent’ throughout his report. Mr Price’s rental estimate is based on comparator properties set out on pages 5 to 8 of his report, and his approach to a “gross” rent is illustrated by his treatment of a property at Yennora (page 7) where he determines a $125,000 gross rent by adding $25,000 fixed outgoings to (net) rent of $100,000.

Several other aspects of the Second Lease and Mr Lenord’s approach were consistent. Both Mr Lenord and Mr Price treated land tax as included in the rent and not an additional charge to the lessee, and Mr Lenord assumed that the lessor would increase the rental price to reflect land tax (sect 9.2), and that approach is consistent with the terms of the Second Lease. Both Mr Lenord and Mr Price also calculated their market rent as exclusive of GST, and that approach is also consistent with the terms of the Second Lease.

Mr White submits that:

Both Mr Lenord and Mr Price were cross-examined and both addressed questions constructively, while adhering to their different approaches, different selection of comparable properties and different conclusions. They both offered reasoned and apparently plausible explanations for their different approaches and their selection of comparable properties, including the significance of the age and height of the properties. There is no basis to prefer Mr Lenord’s evidence to Mr Price’s evidence, or vice versa and, on that narrow basis, PPI has not established that the rent payable under the Second Lease was below a reasonable market range.

In its opening written submissions, PPI submits that Mr Boros caused PPI to enter into a 15-year lease of the Punchbowl property at an initial rent of $33,000 per month and this was substantially below the true market rent for the Punchbowl property at that time. Mr Boros responds that he “diligently and to the best of [his] ability at the time investigated and took advice on a commercial rent of the property” and his final determination was $360,000 per annum plus GST plus land tax and other outgoings including insurance; he contends that the valuation evidence supports the rent paid by PEH; and that Mr Price’s valuation “was far more reflective of the actual property taking into account the lowest ceiling height and yard space”; and he denies that he improperly used his position as director of PPI to gain an advantage for himself and/or PEH.

There may be a real question whether the limited extent of the enquiries made by Mr Boros to determine the rent payable under the Second Lease amounted to a breach of the statutory duty of care and diligence under s 180 of the Act or the corresponding general law duty, but PPI did not plead such a breach. It seems to me that the pleaded claim against Mr Boros under s 181 of the Act is not established, where there can be no suggestion that it was not in PPI’s interests to formalise the ongoing lease with PEH in the Second Lease and it has not been established that rent specified in the Second Lease was below market rent at the relevant time. The pleaded breach of s 182 of the Act has also not been established, where any impropriety and any improper advantage to PEH or Mr Boros would only be established if the lease had been below market rent.

I am satisfied that Mr Boros breached the “no conflict” rule in respect of the entry into the Second Lease since there was a real and sensible conflict of interest between his duties owed to PPI and his economic interest in PEH in determining the rent payable by PEH to PPI under that lease, where he had no economic interest in PPI and a significant economic interest in PEH and the Second Lease had the obvious capacity to shift economic value from PPI to PEH if entered into at a below market rent. There is no suggestion that Mr Boros sought any formal or informal consent from the shareholders of PPI, still less on a fully informed basis, that would give rise to any consent to or ratification of that conflict. However, PPI has not established any loss arising from the breach of that rule or that PEH or Mr Boros obtained any profit from that breach, and that breach has no consequence, where it is not shown that the rent payable was a below market rental.

PPI seeks a consequential declaration that the Second Lease was procured by Mr Boros in breach of his duty to PPI and an order setting aside the Second Lease from the date the order was made (5FASC, Relief, [6], [6A]). That relief should not be ordered where it has not been shown the rent payable was not a market rental and no loss suffered by PPI or profit made by PEH or Mr Boros has been established. For completeness, PPI relied on paragraphs 366-370 of Ms Bateman’s report dated 4 June 2020 (Ex P11) to quantify its claim in respect of the Second Lease. Ms Bateman calculated the difference between the rent payable from 1 July 2016 to 30 June 2020 under the Second Lease, including CPI movements, by reference to the market rent assessed by Mr Lenord (on a net basis) and the market rent assessed by Mr Price (on a gross basis) and calculated interest payable on those amounts at pre-judgment Court rates. It is not necessary to address that calculation further where the basis of this claim has not been established.

Mr Boros pleads several defences to this and other claims, separately in respect of each of the claims. Mr Boros pleads an estoppel defence (Defence [44(b)]), contending that PPI caused PEH to assume that PPI did not dispute the rent payable under the Second Lease. That defence is not established, where Mr Boros and, through him, PEH knew the limited extent of the enquiries he had made to establish whether the rent payable was market rent and there would, in any event, be no detriment to PEH in permitting PPI to claim for any deficiency in its liquidation, had the fact of a below market rental been established. Mr Boros does not plead that he, as distinct from PEH, has any estoppel defence arising from any representation to him in that regard. It is not necessary to address the further matters pleaded in response by PPI in Reply [6].

Mr Boros also pleads a claim for conventional estoppel (Defence [44(c)]). A conventional estoppel may be established where the party asserting that estoppel has adopted an assumption as to the terms of its legal relationship with the party to be estopped; that other party has adopted the same assumption; the parties have conducted their relationship on the basis of the mutual assumption; each party knew or intended the other to act on that basis; and the departure from that assumption will occasion detriment to the party asserting the estoppel: Waterman v Gerling Australia Insurance Company Pty Ltd [2005] NSWSC 1066; (2005) 65 NSWLR 300 at [83]. A conventional estoppel involves an element of agreement, whether express or implied, or at least demonstrated acceptance of a particular state of things, and is not established by acts done by one person without the other’s knowledge: Queensland Independent Wholesalers Ltd v Coutts Townsville Pty Ltd [1989] 2 Qd R 40 at 46 per McPherson J; Re Motasea Pty Ltd [2014] NSWSC 69; (2014) 97 ACSR 589 at [27]. It does not seem to me that the matters on which Mr Boros rely establish any basis for such an agreement or understanding extending to the payment of a below market rent under the Second Lease, had that been established. Mr Boros also pleads (Defence [44(e)) that it would be unjust for PPI now to raise any dispute as to the rent payable under the Second Lease but I can see no such injustice. This defence must fail and it is not necessary to address the further matters pleaded in response by PPI in its Reply ([7]-[9]).

Mr Boros also objects (Defence [47(a)]) to the form of this pleading but it seems to me that it sufficiently identified the case that he had to meet, and it is not necessary to address the further matters pleaded in response by PPI in Reply [10]. Mr Boros also repeats (Defence [47(d)]) his defence of estoppel and adds claims for affirmation, ratification and acquiescence in response to that claim. I have addressed the estoppel claim above; the additional defences fail on the same basis; and it is not necessary to address the matters pleaded in response by PPI in Reply ([11]).

Mr Boros also pleads (Defence [47(e)]) the legal elements of the statutory business judgment rule under s 180(2) of the Act. I address the elements of that defence below, but it has no application here where the pleaded contraventions relate to ss 181 and 182 of the Act and not the duty of care and diligence under s 180 of the Act. Mr Boros also pleads (Defence [47(f)]) that he should be relieved from liability under s 1317S(2) or 1318 of the Act. That question should be addressed in respect of his liability for the case brought against him as a whole, and not the individual components of it, and I address that question below.

Mr Boros pleads a defence of laches (Defence [47(g)]); PPI replies (Reply [13]), with substantial force, that Mr Boros’ conduct in withholding books and records and the failure to keep proper books and records caused the delay. It seems to me there was not sufficient delay by PPI to establish that defence, given that matter, where Mr Boros had practical control of PPI for part of the relevant period; the issues as to books and records to which PPI refers likely have contributed to the delay in bringing the claims; and the claims are in any event brought within the statutory limitations period under s 1317K of the Act which will be applied by analogy to the equitable claim.

Mr Boros also pleads (Defence [47(h)]) a defence by reference to payments alleged to have been made by the companies to Mrs Page, to which I return below; that Mr Boros managed PPI and companies in the Pages Group in the manner requested by Mrs Page, a matter which was not established; that he caused substantial payments to be made to Mrs Page or PPI that he would not otherwise have caused to be made; that Mrs Page and PPI benefited from the payments and that PPI is acting with unclean hands or failing to do equity in seeking equitable relief against Mr Boros and PEH. That pleading is not an answer to the statutory claims against Mr Boros and I am not satisfied that these matters would otherwise establish unclean hands or any inequity in PPI seeking relief for the matters alleged, if this claim was otherwise established.

PPI pleads (5FASC [53]) its obligation under s 286 of the Act to keep written financial records that correctly record and explain its transactions and financial position and that would enable true and fair financial statements to be prepared and audited and to retain those records and then pleads (5FASC [54]ff) matters relating to its difficulty in obtaining access to those records from Mr Boros in the period from September 2016. PPI then pleads (5FASC [63]ff) a failure to keep written financial records required by s 286 of the Act from 3 March 2008 until 12 September 2016 and that Mr Boros, by failing to cause PPI to keep such records, contravened his duty to exercise his powers and discharge his duties with a degree of care and diligence that a reasonable person would exercise under s 180 of the Act. PPI claims that it has suffered loss and damage and is entitled to compensation by reason of this contravention (5FASC [64]-[64A]), but the only particularised loss and damage which is the subject of any evidence is the cost of engaging Ms Bateman to review the financial records of PPI and its related companies to ascertain PPI’s true financial position.

Ms Bateman addressed aspects of the alleged failure to keep proper books and records of PPI in her reports dated 1 March 2018 and 27 June 2019 at the time those reports were prepared (Ex P8 and P9) and in paragraphs 175-186 of her report dated 30 August 2019 (Ex P10), which were admitted with limiting orders under s 136 of the Evidence Act 1995 (NSW) as I noted above. Her evidence in those reports appears partly to reflect inadequacy in the Defendants’ production of documents in the proceedings, at the time those reports were prepared, which may not involve a failure to keep or maintain financial records for PPI as required by the Act. Ms Bateman also there advanced several specific criticisms of the accounting of particular matters by Pages Group companies, although only matters relating to the financial records of PPI are relevant to this allegation. Ms Bateman referred to the treatment of investments in other companies and the share premium reserve in those companies’ financial records, and her evidence was that those matters should be disclosed as an asset in PPI’s balance sheets. Ms Bateman also advanced other criticisms of accounts of other companies, which I address below in respect of the oppression claim.

Ms Bateman again addressed the allegation of failure to keep proper books and records of PPI in her report dated 4 June 2020 (Ex P11), which was admitted without limitation. Ms Bateman there indicated that she had not received all documents that would constitute proper financial records of PPI for the period from 2010 to 2019. She also identified a concern as to whether the rent recorded in PPI’s final, audited financial statements, is correct for the years ended 2008-2009 and 2014. Ms Bateman also addressed the account for “contributed equity” and addressed the position as to a claimed $4.4 million loan to PPI, which I address below; her evidence in that respect travels outside the matters which are properly within her expertise, but little expert evidence would be required to establish that an incorrect record of a loan of this size involved a significant breach of the obligation to keep true and fair accounts.

Mr Boros responded, in his affidavit dated 30 January 2018 ([90]) that the financial statements for PPI from 2011 until 2015 were contained in Exhibit AB-1 pages 353-399, and stated that:

Section 286 of the Act requires that a company keep financial records that record and explain its financial position and that can be audited. The purpose of this requirement is to prevent a company and its officers from "flying blind" as to the company's true financial position at any time: Manning v Cory [1974] WAR 60; (1974) CLC 40-140; Re Lawrence Waterhouse Pty Ltd (in liq) [2011] NSWSC 964 at [232]-[236]. Importantly, this section is predicated on the assumption that the records kept under it will be accurate: Kenna & Brown Pty Ltd v Kenna [1999] NSWSC 533; (1999) 32 ACSR 430; 17 ACLC 1183 at [53]. The financial records that must be kept under this section include accounts, that is a balance sheet, profit and loss statement and a cash flow statement, and a general ledger: Van Reesema v Flavel (1992) 7 ACSR 225; 10 ACLC 291 at 295; Australian Securities and Investments Commission v ABC Fund Managers Ltd [2001] VSC 383; (2001) 39 ACSR 443; (2002) 20 ACLC 120 at [44]; Love v ASC [2000] WASCA 404; (2000) 36 ACSR 363 at [59]. The records required under this section must be kept for 7 years: s 286(2).

In its outline of closing submissions, PPI relied on Ms Bateman’s evidence as to the documents that she considers constitute the proper financial records of PPI as required by s 286 of the Act for the period from 2010 that were not produced by Mr Boros to PPI, and relies on her evidence to contend that there are material deficiencies, inconsistencies and omissions in the financial records that were kept by PPI. PPI submits that Ms Bateman’s analysis was not substantially challenged under cross-examination and should be accepted, and I largely accept that submission as to that part of Ms Bateman’s evidence that was within her expertise. PPI also points to

During Mr White’s oral closing submissions for PPI, I raised the need for PPI to identify, with greater clarity, the material complaints that were pressed as to the accuracy of the financial records of each of the companies (PPI, Sales, PEH and Phire) and said to found the contravention of s 286 of the Act. I was concerned that PPI’s submissions did not identify the particular complaints, rather than being put in general terms and inviting the Court to deduce their particular complaints from Ms Bateman’s several reports and the cross-examination of Mr Boros. After the close of submissions, I made the following directions in Chambers:

PPI provided a schedule summarising its claims as to the deficiencies in PPI’s and other entities’ financial records, in response to this direction, on 14 August 2020. A difficulty arose with that schedule, parts of which were incorrectly cross-referenced to paragraphs of Ms Bateman’s report dated 30 August 2019 (Ex P10), but in fact referred to the corresponding paragraphs of Ms Bateman’s report dated 1 March 2018 (Ex P8). That error was significant, because PPI had identified (in MFI2) the matters on which it relied from Ms Bateman’s reports to establish that PPI had failed to keep the requisite financial records, and had largely not relied on Ms Bateman’s report dated 1 March 2018 (Ex P8) for that purpose; and that report had also been admitted with a limiting order under s 136 of the Evidence Act 1995 (NSW) (T 143) to seek to address the difficulty that parts of it appeared to have been superseded by the later production of further documents by the Defendants and the provision of further reports by Ms Bateman.

My Associate drew this difficulty to the parties’ attention by a further email dated 17 August 2020, as follows:

PPI subsequently submitted a revised version of that schedule (“PPI’s Revised Schedule”) in response to that direction. I will here address the most significant of PPI’s criticisms as to its financial records for the period that Mr Boros was its director, with reference to PPI’s Revised Schedule and Mr Boros’ response to it, and the criticisms as to the financial records of other Pages Group companies in dealing with PPI’s oppression claim below.

PPI submits that PPI had conflicting sets of financial statements for the years 2011 to 2015, from which it is impossible to derive a true and fair view of its financial position, and relies on paragraphs 9-10, 21-23 and Schedules 1 and 2 of Ms Bateman’s report dated 4 June 2020 (Ex P11) for that submission. It seems to me that the evidence on which PPI now relies does establish at least inconsistencies within the financial statements maintained by PPI, and also establishes a failure to keep financial records that presented a true and fair view of PPI’s financial position. Ms Bateman’s evidence deals with the deficiencies in the documents that were available to her, and Mr Boros has not identified any specific documents maintained by PPI which would have remedied those deficiencies. Ms Bateman indicates that the balance sheets and profit and loss at schedules 1 and 2 represent what she had reconstructed from the best versions of the source documents available to her, where those source documents contained differing information. The fact that such a reconstruction was necessary itself demonstrates the requisite failure to maintain true and fair accounts by PPI. It is no answer to that failure for Mr Boros to contend that only signed financial statements are authoritative or to identify particular versions as correct in his affidavit evidence, where that should be able to be determined from the financial records themselves, and that proposition is further undermined by Mr Boros’ retreat from his identification of versions of the financial statements as correct in cross-examination.

PPI also submits that, even with the aid of compulsory processes in these proceedings, no tax returns, BAS statements, transaction records or general ledgers for PPI have been produced for the years 2011 to 2015 (Bateman, 4.6.20, Ex P11, [19], [176]-[179]). Ms Bateman’s evidence ([19]) is that she has not received tax returns and general ledgers generally, and ([176]-[179]) that she could not verify intragroup transfers because of the lack of general ledgers. PPI also submits that no general ledger showing the transactions of PPI from 2010 to 12 September 2016 (when Mr Boros ceased to be a director), no general journals and associated work papers for PPI that support the financial statements for those years and no working papers including reconciliations that explain the financial accounts for the years have been produced (Bateman Ex P11, [19(c)]-[19(e)]). PPI submits, and I accept, that it should be inferred that those records have not been kept, since they cannot be produced, and that their absence necessarily makes it impossible to obtain a true and fair view of PPI’s financial position. I more readily draw that inference since Mr Boros could have specifically drawn attention to such documents in his evidence or his cross-examination of Ms Bateman, had they been available, but did not do so.

PPI also submits that the value of the land and buildings at Punchbowl are recorded inaccurately in the different sets of financial statements at $4,444,769, in light of the available evidence as to value of the land. Ms Bateman’s evidence, and the balance sheet she has prepared, does not seem to me to establish that matter, although the value recorded in the accounts is not consistent with a valuation report dated 3 March 2015 prepared for ANZ (Ex J1, 8021-8056) which values the Punchbowl property at $5.5m. It is not necessary to determine whether this is sufficient to establish a failure to keep true and fair accounts given the conclusions that I reach on other grounds. PPI submits that ANZ loans and facilities have been inaccurately and inconsistently recorded in its financial statements for 2012, 2014 and 2015, and one or both sets of those financial statements are false and do not record a true and fair view of PPI’s financial position (Bateman Ex P11, Schedule 2; Ex J1, 7863-7866). The balance sheet Ms Bateman has prepared does not seem to me to establish that matter in itself, and I am not satisfied that it is established by PPI’s reference, without more, to the amounts in an ANZ letter of offer showing a $4.1m facility limit for PPI (Ex J1, 7863-7866).

PPI also submits that “contributed equity” has been recorded inconsistently in its financial statements from 2010 until 2015, and that they also do not provide a true and fair view of PPI’s financial position (Bateman Ex P11, [156]-[158], [527]-[529], Appendix 7). Ms Bateman’s expresses the opinion in ([156]-[158] (at pp 9-10); [527]-[529]) that the amounts recorded in contributed equity are not contributed equity since they are not supported by initial or subsequent share issues, and identifies a possibility that these amounts should be liabilities to shareholders instead. Ms Bateman’s evidence is also that the “contributed equity” account for PPI appears to have been a clearing account and has been used incorrectly in the equity section of the balance sheet. I accept this evidence, which was not undermined in Mr Boros’ cross-examination of Ms Bateman.

PPI submits that its financial statements for 2008, 2009 and 2014 incorrectly overstated the rent actually paid to PPI under the First Lease (Bateman Ex P11, [153]-[155]). Ms Bateman’s evidence, which appears to be directed to the 2013-1014 financial year, is that PPI’s financial statements overstated the amount of rent received by including amounts that should have been remitted to the Australian Taxation Office as GST as rental income, and that it is not apparent to her whether this is a misstatement in the accounts or that the amounts of GST had not in fact been remitted to the Australian Taxation Office. The inability to determine that matter from PPI’s accounts seems to me to be a significant failure to keep true and fair accounts, and it is notable that Mr Boros did not seek to clarify the treatment of GST on rent received by PPI in his evidence.

PPI also submits that PPI’s financial statements failed to record its interests in other group companies; there are no records recording the value attributable to those interests at relevant dates; and those financial statements therefore failed to comply with the stated accounting standards in note 1 of the accounts (Bateman, Ex P11, [195]-[197], [297]-[298], [359], [497]; Ex J1, 2565, 6468-6469). I accept this criticism, although I do not find below that a breach of director’s duties is established in this respect.

Mr Boros responded to this claim, in his closing written submissions, by contending that all efforts were made to have the accounts completed and audited before they were released; that Mr Page was offered a directorship of the Pages Group, a matter which does not address the adequacy of PPI’s financial records; and that he had provided Mr Page what he believed was the full set of PPI’s books and records. In his Response to PPI’s Revised Schedule, Mr Boros did not address any of the specific deficiencies in PPI’s financial records which I have addressed above, but instead sought to displace responsibility for the defects which arose while he was the director of PPI to the late Mr Page and the late Mrs Page, marginalise the significance of the statutory obligation to maintain true and fair accounts, and assert a lack of impact of “internal” accounts, which was not established by his evidence, as follows:

Mr Boros’ response to PPI’s Revised Schedule provides no answer to the findings that I have reached above in respect of the matters on which PPI relies. Those matters establish a significant failure to maintain true and fair financial records in respect of PPI.

As I noted above, PPI contends that Mr Boros, by failing to cause PPI to keep proper financial records, contravened his duty to exercise his powers and discharge his duties with the degree of care and diligence that a reasonable person would exercise under s 180 of the Act.

A director who fails to take all reasonable steps to secure compliance with s 286 of the Act contravenes s 344 which is a civil penalty provision, but a failure to cause a company to keep proper financial records may also contravene s 180 of the Corporations Act. In Australian Securities and Investments Commission v Healey [2011] FCA 717; (2011) 196 FCR 291; 278 ALR 618; (2011) 83 ACSR 484, Middleton J emphasised the need for directors personally to engage with the content of a company’s financial reports. His Honour observed that, obviously enough, directors are entitled to delegate to others the preparation of books and accounts and the carrying on of the day-to-day affairs of the company. However, his Honour also noted (at [20]) that:

His Honour also noted (at [22]) it was not there suggested that directors did not need to read and consider the company’s financial statements before approving or adopting them and that process was directed to ensuring:

The extent of the deficiencies in PPI’s financial records to which I have referred above are sufficient to establish a failure by Mr Boros to comply with his obligations under s 180 of the Act in respect of those financial records. It is plain that those deficiencies would not exist had Mr Boros taken careful or diligent steps to ensure that proper financial records were prepared in respect of PPI or, adopting the language of ASIC v Healey above, had he taken a diligent and intelligent interest in the information available to him, to understand that information and apply an inquiring mind to the responsibilities placed upon him, which would have readily demonstrated the deficiencies in the financial records maintained by PPI. The pleaded breach of s 180 of the Act is therefore established, subject to Mr Boros’ several defences which I address below.

For completeness, I note that PPI alternatively claims that Mr Boros has unlawfully, and in breach of an undertaking given in a duty application on 29 November 2016, retained books and records that he was obliged to return to PPI after he ceased to be a director of PPI (5FASC [65]). That allegation is not linked with any claim for relief, or any claim that PPI suffered loss in consequence. It is not necessary to determine it.

Mr Boros’ pleaded defences to this claim again raised several matters. He complains of the form of the pleading (Defence [63(a)], [64(a)]) which seems to me to have been sufficient to allow him to know the case that he had to meet. Mr Boros also pleads (Defence [64(c)]) that the obligation under s 286 of the Act was imposed on PPI and not on him, a contention that disregards his consequential obligations under ss 180 and 344 of the Act; that PPI’s financial records were managed by accounts staff and external accountants on which he relied; that he believed on reasonable grounds that the accounts staff and external accountants were reliable and competent, and he also relies on a defence under s 189 of the Act. That sub-section provides a "safe harbour" for reliance by a director on information or professional or expert advice given or prepared by specified persons, provided that reliance was made in good faith and after making an independent assessment of the information or advice having regard to the director's knowledge of the corporation and the complexity of its structure and operations. If those requirements are satisfied, and the reasonableness of the director's reliance on the information or advice arises in proceedings brought to determine whether a director has performed a duty under Pt 2D.1 or an equivalent general law duty, then the director's reliance on the information or advice will be taken to be reasonable unless the contrary is proved. In order to satisfy the requirement of an "independent" assessment, a director must at least consider relevant material and bring his or her own judgment to bear in relation to the matter, and the recognition of delegation under this section does not exclude a director's obligation to “take reasonable steps to place themselves in a position to guide and monitor the management of the company” including taking a “diligent and intelligent interest” in the company's financial statements: Australian Securities and Investments Commission v Healey above. Mr Boros has not established that he took reasonable steps to bring his judgment to bear on the relevant financial statements, and the substantial errors and inconsistencies in them could not have occurred had he done so. This defence is not established.

Mr Boros again pleads (Defence [64(c)] the legal elements of the statutory business judgment rule under s 180(2) of the Act. This section provides that a director or other officer of a corporation who makes a business judgment, as defined, will be taken to meet the requirements of the duty of care and diligence in s 180(1), and their equivalent duties at common law and in equity, in respect of that judgment in certain circumstances. The term “business judgment” is defined in s 180(3) as any decision to take or not take action in respect of a matter relevant to the business operations of the corporation. In order to have the benefit of that sub-section, a director or other officer must, inter alia, make the judgment in good faith for a proper purpose; must not have a material personal interest in the subject matter of the judgment; and must inform himself or herself about the subject matter of the judgment to the extent he or she reasonably believes to be appropriate. Matters relevant to the extent of inquiry necessary to satisfy that sub-section may include the importance of the business judgment to be made; the time available for obtaining information; the cost of obtaining information; the state of the company’s business and the nature of competing demands on the board’s attention; and whether or not material information is reasonably available to the director: Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; (2009) 236 FLR 1; Great Southern Finance Pty Ltd (in liq) v Rhodes; [2014] WASC 431 (2014) 103 ACSR 137 at [45]ff; Re Global Advanced Metals Pty Ltd [2019] NSWSC 1804; (2019) 141 ACSR 222 at [115]-[116]. In order to have the protection of the business judgment rule, a director must also show that he or she rationally believed that the judgment was in the best interests of the corporation. In Rich above at [7290], Austin J observed that the requirement that the director or officer rationally believe that the judgment is in the corporation’s best interests is satisfied if the evidence shows that a defendant believed that matter, and that belief was supported by a reasoning process sufficient to warrant describing it as a rational belief, whether or not the reasoning process was objectively a convincing one.

The defence under s 180(2) of the Act is not available in respect of this claim because the business judgment rule does not apply if a director fails to make a business judgment, or makes a judgment that is not in good faith or for a proper purpose: Re HIH Insurance Ltd and HIH Casualty and General Insurance Ltd; Australian Securities and Investments Commission (ASIC) v Adler [2002] NSWSC 171; (2002) 168 FLR 253; 41 ACSR 72 at [453]. This defence cannot apply to Mr Boros’ failure to take reasonable steps to ensure that PPI maintained proper financial records where the maintenance of such records is a statutory obligation, not a matter of business judgment, and there can be no suggestion that he made a proper business judgment not to maintain such records. In any event, Mr Boros’ evidence to which I have referred does not establish the elements of that defence, including that he made adequate inquiries or had a rational belief that any judgment he made was in PPI’s best interests, in respect of the errors and inconsistencies in its accounts. Mr Boros also seeks relief (Defence [64(d)] under s 1317S or s 1318 of the Act, and I address that claim below. I am satisfied that such relief should not be ordered.

As I noted above, PPI claims that it has suffered loss and damage and is entitled to compensation by reason of this contravention (5FASC [64]-[64A]), but the only particularised loss and damage which is the subject of any evidence is the cost of engaging Ms Bateman to review the financial records of PPI and its related companies to ascertain PPI’s true financial position. PPI quantifies its loss in respect of this claim as the final cost of that exercise, being $200,101.18. PPI submits that the costs of that exercise would not have been incurred, but for Mr Boros’ contravention of s 180(1) of the Act in failing to ensure that PPI complied with its obligations under s 286 of the Act during the period that he was its sole director. PPI also submits that it is not necessary to apportion the total accountancy costs incurred by PPI between the various contraventions by Mr Boros in connection with PPI and the other corporate entities as the aggregate total cost was the result of those contraventions.

It seems to me that the findings that I have reached above would support PPI’s claim to recover a significant part of the substantial costs claimed by PPI in respect of several reports of Ms Bateman covering a much wider range of issues. However, this would not support the recovery of all of those costs, which plainly also involve a substantial amount of work directed to companies other than PPI, and Ms Bateman’s evidence allows no basis to allocate those amounts between those matters. Little may turn on this, where the reasonable costs of Ms Bateman’s reports would properly be recoverable as disbursements in the proceedings, where those reports were plainly relevant to and were read in the proceedings. I reach that conclusion notwithstanding that not all of PPI’s legal costs may be recoverable in the proceedings, for the reasons noted below.

By way of background to this claim, PPI purchased the Punchbowl property in 2001 and, in June 2004, PPI executed the First Lease which provided for a lease of that property to PEH for a period of five years commencing on 15 June 2004 until 14 June 2009, with options to renew for two further periods of five years each. The rent payable by PEH under the First Lease was $20,000 per month (inclusive of GST) payable in advance on the 15th day of each month, under cl 3 of the First Lease and Item 6 of the Reference Schedule. That rent was “reviewed annually” on the first and each subsequent anniversary of the commencement date of the lease in accordance with cl 4 of the First Lease and Item 7 of the Reference Schedule. On balance, it seems to me that “review” took place without the need for further action of the parties to initiate it, since the new rent was determined by the formula specified in the First Lease. PEH was also obliged to pay, within 20 business days after receiving an itemised statement from PPI after the end of each 12-month period of the lease, specified Operating Costs for the Punchbowl property under cll 5.1 and 5.2 of the First Lease. Clause 13.3 of the First Lease provides that PEH is obliged to pay interest to PPI on any rent, Operating Costs or other money payable by PEH to PPI and unpaid for 10 business days at a rate equal to 2% per annum above the highest overdraft rate charged as at the due date for payment by PPI’s bank for commercial loans in excess of $100,000, from the date the relevant payment was due.

It is common ground that, after the First Lease expired without the option to renew it being exercised on 14 June 2009, and until the Second Lease was executed, PEH continued to occupy the property under the holding over provision in cl 2.2 of the First lease (Defence [66A]). That clause provides that, during any holdover term after 14 June 2009 (which does not include if parties enter a new lease pursuant to exercise of an option), PPI may increase the monthly rent by giving the tenant one month’s written notice, but if it does so, the rent review mechanism applying the Consumer Price Index increases will not apply. It seems to me that term necessarily assumes that the rent review mechanisms under cl 4 of the First Lease continued to apply to bring about an annual rent increase during that period, where that did not occur, since the exclusion of its operation if that occurred would otherwise be superfluous.

PPI pleads that Mr Boros, from 3 March 2008 until 30 June 2016, “failed to ensure” that PPI collected the full amount of the rent payable by PEH under the First Lease, indexed in accordance with specified provisions in the lease (5FASC [66]); the full amount of “Operating Costs” payable by PEH under the First Lease (5FASC [68]); and interest on the rent, operating costs and other monies payable by PEH to PPI in accordance with the provisions of the First Lease (5FASC [69]). In its Reply, PPI contended that Mr Boros owed ongoing and continuous statutory directors’ duties to PPI from 3 March 2008 up to the time at which he ceased being a director of PPI on 12 September 2016; that he had an ongoing duty to ensure that all past unpaid rent and outgoings were recovered; that the limitation period under s 1317K of the Act commenced on 12 September 2016; and the proceedings against Mr Boros in that regard were commenced within six years of the date he ceased to have that ongoing duty.

PPI relies on paragraphs 146-152 and 371-379 of Ms Bateman’s report dated 4 June 2020 (Ex P11) to prove this breach and quantify the loss that it has suffered. Ms Bateman there notes ([149]) that the profit and loss of PEH records no rental expense and it appears that Phire or Sales rather than PEH had paid rent on the Punchbowl property to PPI. Ms Bateman also compares ([374]ff) the rent received by PPI from Phire, Sales and/or PEH with the indexed rental payable based on the First Lease, and identifies a shortfall in rental payments. Ms Bateman also indicates ([377]) that it appears that, outgoings on this property were paid by PPI rather than by Phire, Sales or PEH in 2012 and 2013, and she also calculates the quantum of the interest payable on unpaid rent and outgoings in accordance with the provisions of the First Lease.

Mr Boros’ evidence is that Phire and subsequently Sales, on PEH’s behalf, paid rent of $240,000 per annum into PPI’s bank account, and directly paid the Operating Costs relating to the Punchbowl property in accordance with the First Lease, including land tax under the First Lease (Boros 30.1.18 [44]). Mr Boros’ reference to $240,000 per annum makes clear that the higher rental payments arising from indexing under the First Lease were not paid by PEH or on its behalf. Mr Boros’ evidence as to the payment of outgoings, although not objected to, was no more than an assertion of payment and does not necessarily displace Ms Bateman’s conclusion that, in 2012 and 2013, PPI itself paid those outgoings rather than PEH or other operating companies doing so and was not reimbursed for that payment. Mr Boros was also cross-examined as to the payment of rent and outgoings under the First Lease and maintained that all outgoings were paid in time (T385).

Ms Bateman’s evidence also indicates an underpayment of the base rent in 2010 and 2015; that PPI has also established that the indexed increases in rent under the First Lease were not paid; and Mr Boros’ evidence confirms that matter. However, I am not satisfied that PPI has established that outgoings were paid by it and not reimbursed by the operating companies, where Ms Bateman’s findings as to that question depend on PPI’s and the operating companies’ financial records and those financial records are not sufficiently reliable to establish that conclusion; PPI has not established this matter from primary records; and other payments were made by the operating companies to PPI that are not properly accounted for, as I will find below. That matter supports PPI’s claim against Mr Boros for breach of duty in respect of PPI’s accounts and its claim for oppression on that ground, but undermines its claim that outgoings under the First Lease were not paid by the operating companies to PPI.

PPI pleads that Mr Boros breached his duty of care and skill under s 180 of the Corporations Act and also contends he breached his duties under ss 181 and 182 of the Act and breached a fiduciary duty in respect of this claim, and pleads that PPI is entitled to compensation under s 1317H of the Act or to “equitable damages” for the loss it has suffered as a result of the alleged beaches (FASC [70]-[73]). It seems to me that PPI’s claim under s 180 of the Act does not require PPI to establish that a director owes any absolute duty to “ensure” that rental obligations owed by related companies to a company are met, and I recognise that there may be occasions on which a related company does not have the capacity to perform its obligations, notwithstanding that a director acts in accordance with his or her statutory and general law duties. I read this claim as directed to a narrower allegation that Mr Boros did not act with sufficient care and diligence in taking steps to ensure that PPI, as lessor, received the benefit of the indexed rent payments and outgoings payable under the First Lease.

Mr Boros submits, in response to this claim, that the rent payable under the First Lease was $240,000 per annum (a contention which as I noted above, neglects the annual increases in that rent) and was paid directly into the PPI’s bank account; he relies on the “top up payments” made to PPI which I address below and contends that PPI did not suffer a loss; and he submits that the claim in respect of the alleged contravention of statutory duties was brought more than 6 years after the alleged contravention and that it is time barred by operation of section 1317K of the Act.

It seems to me that a director, in exercising care and diligence to the requisite standard under s 180 of the Act, would have informed himself of the terms of the First Lease and taken steps to ensure that the rent was paid in accordance with the indexing provisions in the lease, including when PEH was holding over under the lease, where there is no suggestion that PEH did not then have the financial capacity to make those payments, or would have required a staff member to attend to those matters and then satisfied himself or herself that that was done. I find that Mr Boros breached his statutory duty in respect of the unpaid rent under the First Lease, from 4 April 2011 (the commencement of the limitation period, addressed below) until the date of his removal as a director of PPI on 12 September 2016. It is not necessary to address any question as to breach as to outgoings where PPI has not established non-payment of those outgoings, for the reasons noted above.

It seems to me that the breaches of ss 181 and 182 of the Act pleaded by PPI are not established in respect of this claim. I recognise that PEH, and indirectly its shareholders including companies associated with Mr Boros and Mr Thatcher, likely obtained an advantage by the financial saving to PEH from not paying the indexed increase in the rental. However, it seems to me that a failure to exercise Mr Boros’ powers as a director in good faith in the best interests of PPI and for a proper purpose or an element of impropriety have not been established, where the short payment of the rent and any issue as to outgoings more likely reflects the failure to establish an adequate process for payment of those amounts.

It seems to me that the pleaded claim for breach of fiduciary duty is also not established. I have referred above to the importance of determining the scope of the relevant duty in determining whether a real and sensible conflict of interest or duty for a breach of fiduciary duty (as properly understood rather than as pleaded in 5FASC [46(c)]-[46(d)]) to be established. By contrast with the decisions made by Mr Boros whether PPI should enter the Second Lease on particular terms (which I have addressed above), or increase the level of its borrowings to allow PEH to reduce its borrowings (which I address below), the payment of rent and outgoings by PEH to PPI under the First Lease were aspects of the companies’ day-to-day administration. Mr Boros’ role as a director of PPI and PEH (and other group companies) necessarily required that he address day-to-day inter-company transactions between the companies and that was self-evident from the moment he was appointed as a director of PPI at Mrs Page’s request. It seems to me that those matters necessarily amounted to a narrowing of the scope of Mr Boros’ fiduciary duties at least to permit him to attend to day to day dealings between the two companies: compare Colorado Products above at [365]. The contrary view would lead to the unreasonable result that, from the moment that Mrs Page as PPI’s shareholder placed Mr Boros in that position, he would potentially be liable for breach of fiduciary duty in respect of all such day to day dealing between the companies, since the same conflict would exist in all such dealings, unless he obtained formal ratification of each such dealing in general meeting or by all shareholders of both companies. It was plain that PEH and its shareholders including PPI did not expect that the companies’ business would be conducted in that manner, at least in respect of day-to day dealings as distinct from major transactions.

I should also address Mr Boros’ defences to this claim. Mr Boros pleads (Defence [66A]) that no rent reviews were undertaken under the First Lease, but that is not to the point where the lease provided a formula setting the increased rent payable without the need for the parties separately to initiate such a review. Mr Boros also pleads (Defence [66A(g)]) that he carried on an earlier practice from the period before his appointment as a director, but that is not an answer to any breach of his duty by adopting that practice while he was a director of PPI. Mr Boros also pleads (Defence [66A(h)]) that the ability to carry on a rent review was “proscribed” in the holding over period. I do not accept that submission, as a matter of construction of the First Lease, as I have noted above. That is not an answer to the pleaded breach, where, as I noted above, the First Lease provided a formula setting the increased rent payable without the need for that review, which continued in the holding over period.

Mr Boros also pleads (Defence [66B(a)]) an arrangement that PEH would make payments on behalf of PPI for specified purposes and relies on these payments to ‘set off’ the rent obligations shortfall. That arrangement is alleged to be partly oral and partly implied. It is not established, where I do not accept Mr Boros’ evidence of that matter and the bare fact of payments by PEH to PPI does not support an implication of the particular arrangement alleged. Mr Boros also pleads (Defence [66B(b)]) that PPI received further amounts from 1 January 2006 to 31 December 2016 of $1,358,266 which he also contends should be set off against any shortfall in payments under the First Lease. That defence has not been established where Mr Boros’ schedule of those payments was admitted with a limiting order under s 136 of the Evidence Act 1995 (NSW) as a submission only and, to the extent that bank records establish those payments, the basis for a set-off against rental liabilities is not established.

Mr Boros pleads (Defence [68]), in response to PPI’s claim as to Operating Costs, that those costs including land tax were paid directly by Phire and Sales on behalf of PEH and PPI has no entitlement to collect the amount of Operating Costs that were thereby met. Although Mr Boros has not established that matter, I have held that PPI also has not established that those payments were made by PPI and not reimbursed to it, so as to establish its claim in that respect. Mr Boros again pleads (Defence [70], [71]) claims for relief under s 1317S and s 1318 of the Act which are not established, for the reasons noted below.

Mr Boros also pleads that the claim for breach of statutory duty has been commenced more than 6 years after the relevant contravention for rent unpaid prior to 28 November 2010. PPI accepts that the limitation date (if applicable) would be a later date, 4 April 2011, being six years before its Statement of Claim was filed. I accept that a claim for unpaid rent prior to that date would not be available to PPI by reason of the time limit in s 1317K of the Act and its application by analogy in civil proceedings: Gerace v Auzhair Supplies Pty Ltd (in liq) [2014] NSWCA 181; (2014) 87 NSWLR 435; 100 ACSR 465 at [70]–[75]. It seems to me that the reformulation of that duty in PPI’s Reply as an “ongoing” duty was a significant change of case that could not be made in reply, without an application for leave to amend, and would potentially deprive Mr Boros of a proper opportunity to respond and of procedural fairness. I disregard that reformulation made in that way. A claim based on a fraudulent breach of fiduciary duty would not be barred by analogy with the limitation period under this section, but PPI did not plead fraud in respect of this claim: Lewis Securities Ltd (in liq) v Carter [2018] NSWCA 118; (2018) 355 ALR 703; 128 ACSR 120.

In closing submissions, PPI points out that Ms Bateman originally calculated the quantum of unpaid rent under the First Lease from 1 July 2009 to 30 June 2015 as $329,880; was unable to calculate the shortfall of rent for the financial years ended 30 June 2016 and 30 June 2017; and calculated unpaid outgoings from 30 June 2012 to 30 June 2016 (when the First Lease ended) of $205,726 and interest (up to 30 June 2020) of $486,593, totalling $1,022,199 (Bateman, Ex P11, pp 87-89). In a supplementary report dated 10 August 2020 (P19), Ms Bateman calculated unpaid rent from 4 April 2011 (the date six years before the Statement of Claim was first filed against Mr Boros) to 30 June 2016 as $328,068; calculated the rental shortfall for the financial year ended 30 June 2016 by reference to PPI’s bank statements as $103,054; and also calculated the outgoings paid by PPI but not reimbursed by PEH for the financial year ended 30 June 2014 (not included in her earlier report) as $105,855. On this basis, PPI calculated its total rent shortfall from 4 April 2011 to 30 June 2016 as $328,068 and the total unpaid outgoings as $311,581. However, the claim against Mr Boros extends to the later date of his removal as a director of PPI on 12 September 2016. PPI again recalculates these figures, including additional elements, in its schedule of quantification of damages, although the direction to provide that document allowed a summary of its claim and not a reformulation of it.

I have found that Mr Boros is liable to pay compensation to PPI in respect of a contravention of s 180 of the Act, referable to unpaid rent and interest for the period from 4 April 2011 to 12 September 2016. It is not apparent that PPI has calculated its claim on that basis and I will direct the parties to bring in agreed orders to give effect to this judgment, which will need to include an agreed calculation limited to this amount and interest.

PPI alternatively seeks an order that PEH pay it unpaid rent under the First Lease and outgoings plus interest under cl 13.3 of the First Lease in respect of unreimbursed operating costs incurred by it under that lease (5FASC, Relief, [12A]). PPI submits and I accept that this is a claim in debt and PEH (as distinct from Mr Boros) has not raised a limitation defence to that claim. As a result of this judgment, PEH will pass from provisional liquidation into liquidation, and the Court plainly cannot make any mandatory order that would involve a payment to PPI, allowing it priority over other unsecured creditors of PEH. There should, however, be judgment for PPI against PEH in the amount of unpaid rent and interest, consistent with the findings I have reached above. That also should be addressed in the agreed orders to give effect to this judgment.

Paragraphs 75-78 of the Fifth Further Amended Statement of Claim plead an increase in the indebtedness of PPI to ANZ between March 2008 and November 2016. PPI pleads that Mr Boros caused the amount of PPI’s secured borrowings to increase in that time, by causing PPI to secure loans and facilities for its associated entities against the Punchbowl property, and Mr Boros pleads a somewhat convoluted defence to this claim. In his affidavit dated 30 January 2018, Mr Boros referred to PPI’s Fixed Rate Commercial Bill Facility with ANZ which he characterised as “part of the package of cross-collateralised facilities advanced by ANZ to the Pages Group of companies”. He referred to a letter of offer dated 22 April 2009, by which ANZ renewed the Page Group facilities totalling $9,933,500 comprising $4,314,000 advanced to PEH; $1,519,500 advanced to Phire and $4,100,000 advanced to PPI, and to the securities provided in that respect. PPI no longer presses the claims for any breach of duty arising from these matters, which are now relied on only as background to other pleaded claims.

PPI also brings a claim for breach of statutory and fiduciary duties against Mr Boros in respect of monies allegedly paid by PPI to the benefit of PEH (5FASC [116]-[123]). PPI pleads that, on 10 March 2016, Mr Boros caused the limit of PPI’s (then) Cash Advance Facility with ANZ to be increased by $1,705,000 from $3,860,000 to $5,565,000; PPI pleads that his purpose in increasing PPI’s facility limit was to allow money to be drawn from that facility and used to repay an Asset Finance Facility provided by ANZ to PEH; and, on 21 March 2016, ANZ drew $1,658,931.43 on PPI’s Cash Advance Facility on Mr Boros’ direction and used those funds to repay the balance then owing by PEH to it under PEH’s Asset Finance Facility.

Mr Boros also pleads (Defence [116A]) the circumstances of this transaction, which he contends reflected ANZ’s requirement that the Pages Group pay down its facilities following the appointment of voluntary administrators to Phire; a consequential refinancing which increased the amount of PPI’s Cash Advance Facility beyond the amount previously available under a previous facility, with the additional amount being applied to repay PEH’s Asset Finance Facility; and that the transaction did not increase PPI’s combined liabilities as principal and guarantor (although, I interpolate, the transaction significantly increased the principal amount borrowed by PPI) and reduced the Pages Group’s monthly recurring costs by $100,000 since ANZ accepted interest only payments on the loan to PPI.

Mr Boros’ evidence, in his affidavit dated 30 January 2018, was that, following the appointment of a voluntary administrator to Phire, he was informed by ANZ that it was no longer willing to advance further cash to the Pages business and that the Pages Group companies must commence paying down their facilities, resulting in a significant strain on the cashflow of the business (Boros [59]-[60]). He refers to steps that he took to reorganise the companies’ facilities with ANZ, with effect that PPI’s Cash Advance Facility, which replaced an earlier Commercial Fixed Rate Bill Facility, was increased by $1,705,000 from $3,860,000 to $5,565,000. Mr Boros recognised that that increase was applied “to repay the balance owing by PEH under its Asset Finance Facility” (Boros [65]). Mr Boros contended (in evidence admitted as submission only) that PPI’s and PEH’s combined liabilities as borrower and guarantor to ANZ remained the same, because PPI was a guarantor of PEH’s facility under the Asset Finance Facility (Boros [66]). That submission did not recognise that, whether or not the transaction affected the extent of PPI’s liability as guarantor, it significantly increased the principal amount to which PPI was liable and the interest costs which it incurred, and significantly reduced the amount to which PEH was liable and the interest payable by it to the possible disadvantage of PPI and the plain advantage of PEH. Mr White points out that submission also did not recognise other legal and practical differences between a debt owed as a principal and a contingent liability as one of several co-guarantors, including a right of contribution from the others for any call made on a guarantee. Mr Boros’ evidence, also admitted with a limiting order under s 136 of the Evidence Act as submission, was that the increase in PPI’s loan benefited it for several reasons. That is not an answer to the claim brought by PPI against Mr Boros alleging a breach of the no conflict rule in respect of the transaction, which I address below.

Mr Boros was cross-examined as to the increase in PPI’s liability and accepts that he had no recollection of telling Mrs Page of that matter (T365) and his evidence was that the reduction of the debt in PEH was determined by Ernst & Young, the chief financial officer of PEH and ANZ to ensure that PEH did not become insolvent, and this allowed the Pages Group to reduce its monthly repayments to ANZ (T366).

PPI in turn relies on Ms Bateman’s report dated 30 August 2019 (Ex P10) [176] which refers to the increase in the debt owed by PPI from $3,860,000 to $5,565,000 between August 2010 and March 2016. She also addresses this issue in paragraphs [7], [126], [193], [411]-[420] of her report dated 4 June 2020 (Ex P11) and her evidence is that the additional loan was initially treated in PEH’s financial records as a loan from PPI, but that detail was “lost” when the loan was subsequently transferred into the PEH/Sales trading account ([126], [193]). She calculates the interest, line fees and charges paid by PPI on the additional debt as $350,005 and calculates interest on that amount at statutory rates as $47,158.

Mr Boros submits, in respect of this claim, that:

It appears that the chief financial officer of PEH and Ernst & Young had some involvement in the transaction, although there is little evidence as to the substance of any advice they had given; the named representative of ANZ plainly had no role in protecting PPI’s interests in respect of the transaction; and the extent of any then risk of insolvency is not established, where there is a dispute as to the extent of any financial pressure on the companies arising from invoicing issues at that time. The evidence is not sufficient to resolve that dispute, particularly where the companies’ underlying financial records are unreliable. These matters do not provide an answer to the conflicts of duty and interest in respect of Mr Boros’ participation in the transaction, which I address below.

PPI contends that Mr Boros breached the statutory duties that he owed to PPI under ss 181-182 of the Act in respect of this transaction. It is not necessary to determine whether a contravention of s 181 of the Act is established, given the finding of breach of fiduciary duty that I reach below. I also recognise that is not self-evident that the transaction was not in PPI’s interests, and that PPI did not obtain a commercial benefit from funding PEH in which it had a substantial interest. It is also not necessary to determine whether the pleaded claim against Mr Boros under s 182 of the Act is established. I recognise that PEH, and indirectly its shareholders including PPI and companies associated with Mr Boros and Mr Thatcher, obtained an advantage from reduction in PEH’s debt to ANZ, and it was arguably an improper one given the conflict of duty and interest which I find below. On the other hand, PPI has not shown that its own interests as a shareholder in PEH were not served by the reduction in that debt, so far as it improved PEH’s financial position.

In any event, I am satisfied that Mr Boros breached his fiduciary duty in respect of this transaction. Mr Boros at least breached the rule against conflict of duty and interest, since he had a real and sensible conflict between his duty owed to PPI and his substantial economic interest in PEH in determining whether an additional borrowing should be made by PPI, in which he had no economic interest, and then applied to reduce the liability of PEH in which his associated entities had a significant interest. That transaction had the obvious capacity to (and did) advantage PEH at PPI’s expense, by imposing additional interest obligations on PPI and reducing PEH’s interest obligations. There is no suggestion that Mr Boros sought any formal or informal consent from PPI’s shareholder, still less fully informed consent, which would give rise to any consent to or ratification of that conflict. The loss suffered by PPI from that transaction is the amount of that borrowing and the additional interest paid by PPI on it, and Mr Boros has not sought to quantify any value of any wider benefit to PPI from that transaction, derived from its shareholding in PEH, which might reduce that loss. Subject to Mr Boros’ defences to this claim, which I address below, and which did not succeed, PPI has established its claim in this amount against Mr Boros.

Mr Boros again pleads (Defence [116], [119]-[120]) a multiplicity of defences to this claim. He repeats his defence to PPI’s claim in respect of the Second Lease in paragraph 47 of the Defence and repeats complaints as to the form of PPI’s pleading in paragraph 116 of the Defence. I do not accept the complaints as to the form of this pleading, which seems to me to have been sufficient to identify the case that he had to meet. Mr Boros repeats his pleading of the circumstances of the transaction in paragraph 116A of the Defence; pleads other benefits said to have been derived by PPI from arrangements with Mrs Page, PPI and PEH and also pleads defences of estoppel, affirmation, ratification, acquiescence and waiver. The defences of estoppel, affirmation, ratification and acquiescence are not established, where Mr Boros had control of PPI at the time of the transaction; there is no basis for a contention that PPI or its shareholders had represented they would not seek relief in respect of this transaction, once its facts were exposed, or that sufficient disclosure of it had been made to support any affirmation, ratification and acquiescence; and there would, in any event, be no detriment to PEH in permitting PPI to claim for its loss in the liquidation of PEH. Mr Boros does not plead that he, as distinct from PEH, has any estoppel defence arising from any representation to him in that regard, and no element of unconscionability arises from the vindication of PPI’s rights in this respect.

Mr Boros also relies on the statutory business judgment rule under s 180(2) of the Act, but it has no application here where the pleaded contraventions relate to ss 181 and 182 of the Act and breach of fiduciary duty and not the duty of care and diligence under s 180 of the Act. I address Mr Boros’ claim for relief from liability under s 1317S(2) or 1318 of the Act below, in respect of his liability for the case brought against him as a whole. Mr Boros’ defence of laches is not established, where there was not sufficient delay by PPI to support that defence, where Mr Boros had practical control of PPI for part of the relevant period and the claim is brought within the statutory limitations period under s 1317K of the Act which will be applied by analogy to the equitable claim. Mr Boros again relies on the defence by reference to payments alleged to have been made by the companies to Mrs Page (Defence [47(h)], [119](d)]), but he has not established that PPI has any present liability by reason of those matters which would found a set-off in a claim against him, I return to that question in paragraphs 270ff below. I am also not satisfied that these matters would otherwise have the result that there is unclean hands or any inequity in PPI seeking relief for these matters.

By way of relief, PPI sought a declaration that Mr Boros breached a fiduciary duty to it by causing ANZ to debit the amount of $1,658,931.43 from its Asset Finance Facility with ANZ and using those monies to repay a debt owed by PEH to ANZ (5FASC, Relief, [10]). It also sought an order that Mr Boros pay it that amount plus compound interest at the ANZ Bank Business Rate from time to time plus a margin of 1.5% per annum from 21 March 2016 to the date of judgment, reflecting the amount of interest payable on the borrowing (5FASC, Relief, [12]). The declaration sought is not necessary where I have recorded my findings above but an order for compensation should be made in favour of PPI against Mr Boros in the amount of $2,056,094.43, calculated on the basis claimed by PPI in its quantification schedule, comprising the principal amount of $1,658,931.43, fees and charges paid by PPI to ANZ on the additional debt of $350,005 and pre-judgment interest of $47,158. Mr Boros did not advance any alternative calculation of that amount.

PPI also maintains a claim against PEH in this respect, for the additional amount borrowed and interest. It pleads (5FASC [121]-[123]) that the discharge of PEH’s debt of $1,658,931.43 to ANZ by way of increase in PPI’s indebtedness to ANZ constitutes moneys had and received by PEH, although this claim may better be treated as within the alternative restitutionary category of ‘moneys paid’ since the benefit conferred was the discharge of a debt rather than the transfer of money to PEH. PPI also pleads that, on 13 April 2017, its solicitors demanded repayment from PEH of that amount and PEH has failed to pay to PPI the amount of $1,658,931.43 or any amount at all.

PPI refers to the elements of a claim of this character as identified in Mason and Carter, Restitution Law in Australia (LexisNexis Butterworths, 2nd ed, 2008), as follows:

PPI also refers to Elliott J’s decision in JZ Lee Interiors Pty Ltd v Smith [2015] VSC 693 at [24] and submits that the necessary elements of this claim are satisfied here, where PPI “paid” $1,658,931.43 to PEH; PEH adopted this payment; PPI demanded repayment of $1,658,931.43 and PEH’s failed to repay that amount; and the causal link between the payment and the facts giving rise to the restitutionary obligation are Mr Boros’ conduct in breach of his statutory and fiduciary duties.

Whether this claim is properly characterised as for ‘moneys had and received’ or for ‘moneys paid’, the general elements of unjust enrichment must be satisfied to establish this claim, being (1) a benefit; (2) at the plaintiff’s expense; and (3) injustice: Australia and New Zealand Banking Group Ltd v Westpac Banking Corp (1988) 164 CLR 662 at 673. Here, PEH received a benefit being the discharge of a debt in the amount of $1,658,931.43, the benefit was at PPI’s expense in the sense that PPI conferred that enrichment by taking on the additional debt; and Ms Bateman’s evidence is that the transaction was initially treated in PEH’s financial records as a loan which was then transferred into the PEH and Sales trading account. It seems to me that the adoption of that payment by PEH, including by initially recording it as a loan payable by it to PPI, is sufficient to establish the element of injustice supporting PPI’s restitutionary claim against PEH. It is not necessary to determine whether the same result would be available under principles of subrogation.

PPI seeks an order that PEH pay it the amount of its additional borrowing from ANZ plus compound interest at the ANZ Bank Business Rate from time to time plus a margin of 1.5% per annum from 21 March 2016 to the date of judgment, reflecting the amount of interest payable under the borrowing (5FASC, Relief, [12]). That order cannot be made where that would allow PPI priority over other unsecured creditors in the liquidation of PEH. There should be judgment for PPI against PEH for the principal amount of the additional borrowing and interest, which will need to be quantified in the orders submitted by the parties to give effect to this judgment, and PPI can then prove for that amount in the liquidation of PEH.

Paragraphs 129-135 of the Fifth Further Amended Statement of Claim plead that Mr Boros failed to maintain PPI’s registration for GST between December 2005 and 1 September 2016. PPI relies on paragraphs 177 and 192 of Ms Bateman’s report dated 1 March 2018 (Ex P8) and paragraphs 58-59 and 125 of her report dated 30 August 2019 (Ex P10). Mr White accepts that this matter has had no consequence, since the Australian Taxation Office has not imposed any penalty or sought to recover any interest in respect of unremitted GST on PPI. It is not necessary to determine the allegation of breach of statutory duty in respect of this matter, or Mr Boros’ convoluted defence to it, where it has no consequence to any claim for damages or compensation against Mr Boros and where PPI’s oppression and winding up claims may be determined on other grounds.

Paragraphs 136-139 of the Fifth Further Amended Statement of Claim plead an entry in PEH’s financial records referring to a loan made by PPI to PEH in the financial year ending 30 June 2015 and plead that Mr Boros failed to keep adequate written financial records for PPI that correctly recorded and explained that transaction in contravention of his director’s duty. PPI relies on paragraphs 136-139 of Ms Bateman’s report dated 1 March 2018 (P8), paragraphs 84-89 of her report dated 30 August 2019 (Ex P10) and paragraphs 282-284 of her report dated 4 June 2020 (Ex P11) in respect of this claim. Ms Bateman’s 30 August 2019 report refers to inconsistencies in the treatment of the loan of $124,000 as at 30 June 2015, as being either a loan from PEH to PPI or a loan from PPI to PEH. While that matter raises a further concern as to the accuracy of PPI’s accounts, it also undermines PPI’s claim as to the existence of a loan owed to it of this amount. Ms Bateman’s report dated 4 June 2020 refers to the record of that loan in PEH’s 2015 financial statements as a liability owed by PEH to PPI, and to the absence of a record of that loan in PPI’s financial statements as at 30 June 2015, and notes the absence of any reference to a carpark repair (to which Mr Boros refers in evidence) in those financial statements.

Mr Boros’ evidence in his affidavit dated 17 April 2020 is in turn that:

Mr Boros’ submissions in response to this claim refers to his affidavit evidence; denies the allegations; he submits that he, as a director, relied on the Pages Group’s accounts department to ensure all entries were made correctly and in good faith and that he did not carry out any entries of his own and “always relied on qualified accounting staff”; and he also submits that the amount of $124,000 was fully accounted for. I have addressed the question of reliance on accounting staff above.

PPI claims that it has suffered loss and damage (5FASC [138]) by reason of this matter, particularised as, first, the cost of engaging Ms Bateman to review PPI’s and PEH’s financial records to ascertain its true financial position. Even if Mr Boros’ liability in respect of this loan could be established on the pleaded basis, it seems to me that uncertainty as to the treatment of a single loan of $124,000 in PPI’s and PEH’s financial records would not establish a basis for PPI to recover the substantial costs claimed by PPI in respect of several reports of Ms Bateman addressing a much wider range of issues. PPI also particularises the claimed loss and damage as the amount of the loan to PEH to the extent that it is unrecoverable from PEH due to inadequate financial records having been kept by PPI. That alternative claim is not established. First, I am not satisfied that the claimed liability of PEH to PPI is established, given the inconsistencies in references to it to which I have referred above; second, where the loan is not established, the Court cannot assume it exists in order to found PPI’s claim; and, third, the loan is likely unrecoverable because PEH has been placed in voluntary administration on the basis that it is insolvent or likely to be insolvent, and has now passed into provisional liquidation and will be ordered to be wound up as a result of this judgment, rather than because of any issue as to the way in which it is recorded. This claim is not established.

PPI also brings a claim against PEH in respect of this amount (5FASC [139]) and seeks an order that PEH pay it the amount of the alleged inter-company loan of $124,000 made to it by PPI (5FASC, Relief, [12B]). As a result of this judgment, PEH will pass from provisional liquidation into liquidation, and the Court plainly cannot make any mandatory order of that character which would give PPI priority over other unsecured creditors in the liquidation of PEH. In any event, I am not satisfied that loan has been established for the reasons noted above.

For completeness, I should briefly refer to Mr Boros’ defence to this claim. Mr Boros pleads (Defence [137]) that PPI’s financial records were managed by accounts staff and external accountants on whom he relied, and other permutations of that claim. Mr Boros also pleads the legal elements of the statutory business judgment rule under s 180(2) of the Act, but he has not established the elements of that defence, including adequate inquiries or a rational belief that any relevant judgment he made was in PPI’s best interests, in respect of PPI’s and other companies’ accounts. Mr Boros also seeks relief under s 1317S or s 1318 of the Act, and I address that claim below.

PPI pleads (5FASC [140]-[141]) matters relating to a loan by Sales to PPI recorded in the financial statement for Sales for the year ended 30 June 2016 in the amount of $4,436,879 and an associated record in Sales’ general ledger of a payment of “rent in advance” to PPI in respect of the Second Lease as at 30 June 2016 in the same amount. PPI then pleads (5FASC [142]) that the “loan” or “rent in advance” amounts were not received by PPI (5FASC [143]-[146]) and that:

PPI relies on paragraphs 19-21, 96-99, 130-131, 180 and Schedule 1 of Ms Bateman’s first report dated 1 March 2018 (Ex P8) in respect of these claims, which was prepared at a time when she did not have the full range of financial records discovered in the proceedings. Ms Bateman’s evidence is there that she has found no evidence of payments to Mrs Page that could be considered loan repayments, and payments by the companies to or on behalf of Mrs Page should properly have been treated as dividends or shareholder loans. There is evidence that payments were in fact made to Mrs Page, so this finding appears to reflect Ms Bateman’s view as to the proper characterisation of those payments or possibly the inadequacy of the information that had then been provided to her. Ms Bateman also comments ([96]-[99] on a spreadsheet on which Mr Boros relied, which was addressed as a submission only; paragraphs 130-131 of her report seek to establish the content of subpoenaed documents, which is not a matter as to which Ms Bateman can properly lead expert accounting evidence; and paragraph 180 of her report criticises the treatment of an item recorded as “Contributed Equity – Tess Loan” in accounts produced on subpoena. PPI also relies on aspects of Ms Bateman’s report dated 30 August 2019 (Ex P10). Ms Bateman there notes ([94]) a loan recorded in Sales’ financial statements for $4,436,879 in 2016 and 2017; and she notes ([102]-[104]) the absence of work papers supporting these entries in the documents then produced to Ms Bateman. She also expresses views ([142]-[161], plainly outside the scope of proper expert accounting evidence, as to the suggested absence of support in the financial records for matters then pleaded in paragraphs 66B and 82A of the Defence to the Further Amended Statement of Claim in respect of the alleged financial arrangements with Mrs Page.

This matter is again addressed in Ms Bateman’s report dated 4 June 2020 (Ex P11) where she expresses the view ([8j]) that the claimed debt owed by PPI of $4.4m is not “valid” and sets out the basis of that view in Appendix 5 of her report. She notes ([29]) that an amount is claimed to have been paid by Sales, in a period prior to its incorporation, and the debt is not recognised in the audited accounts of PPI, but again strays into seeking to make factual findings which are outside her proper role. She expresses the view ([97]) that any expenses paid by Phire on behalf of PPI would not be recoverable where Phire is in liquidation. That view is plainly incorrect, since Phire’s liquidator could make a demand or bring proceedings on its behalf against PPI. She points ([115]) to the absence of reference in Sales’ financial statements to the amount that Mr Boros contends is a loan to PPI and expresses the view ([116]) that the “debt” primarily relates to expenses incurred by Phire, prior to the incorporation of Sales.

Ms Bateman also there expresses a view ([306]) that relevant accounting standards were not met in respect of the creation of the “rent in advance” loan, without specifically identifying the accounting standards to which she refers so as to allow any assessment by the Court of whether her view is correct. She also comments adversely as to Mr Boros’ evidence in this respect, again travelling outside her expertise and the proper scope of expert accounting evidence. Ms Bateman also refers to difficulties in reconciling the contents of the “rent in advance” accounts and journals between the loan accounts and equity accounts in Sales and PEH ([313]), in evidence which is within the scope of her expertise. Ms Bateman also comments ([335]ff) on the content of an affidavit of the company’s accountant, which was not read. Appendix 5 of her report provides a factual narrative of matters relating to the “Tess Payments”, which is again characterised by inappropriate fact finding, commentary on the evidence, and the expressions of opinion without specific identification of any relevant accounting standard or professional practice supporting that opinion. Ms Bateman also there addresses Mr Boros’ evidence as to “rent in advance” in commentary with the same difficulties.

In its opening outline of submissions, PPI submits that Mr Boros caused a loan of $4,436,879 to be recorded as having been made by Sales to PPI as “rent in advance” on the Second Lease, and that loan was never paid or received, in breach of his fiduciary duty to avoid conflicts of interest as a director of PPI and his own interest in Sales through Hun Investments, a company wholly owned by Mr Boros and his wife, Mrs Boros.

It seems to me that this claim must fail. Generally, the existence of fiduciary duties owed by a director to a company (relevantly, Sales) prevents the recognition of concurrent and identical duties owed to a shareholder (relevantly, PPI) covering the same subject matter: Brunninghausen v Glavanics [1999] NSWCA 199; (1999) 46 NSWLR 538; 32 ACSR 294 at 304; 17 ACLC 1247; Charlton v Baber [2003] NSWSC 745; (2003) 47 ACSR 31; 21 ACLC 1671 at [17]; Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2003] QSC 402; [2004] 2 Qd R 207; [2004] 22 ACLC 724; Jones v Jones [2009] VSC 292. Mr Boros therefore did not owe any general duty to PPI in respect of the correctness of the accounts of Sales, coincident with his duty owed to Sales in that regard. PPI has not identified any facts giving rise to any more specific duty owed by Mr Boros to it, as a director of PPI, extending to what was recorded in Sales’ financial statements, as distinct from what was recorded in PPI’s financial statements. It seems to me that any conduct of Mr Boros in respect of Sales’ financial records was outside the scope of any duty owed by Mr Boros to PPI, irrespective of the correctness of the entry relating to this loan made in Sales’ financial records.

Where Mr Boros did not owe any duty to PPI extending to the content of Sales’ financial records, no conflict of duty and duty or duty and interest is established by steps that he may have taken in respect of the financial records of Sales. Even if any duty was owed by Mr Boros to PPI in respect of Sales’ financial records, no conflict of duty and duty could arise since the relevant duties were the same, that is, to cause true and fair accounts to be maintained in both Sales and PPI, including in respect of transactions between the companies. There is nothing surprising in this result, which simply reflects the artificiality involved in PPI seeking to establish that it has a separate claim in respect of a breach of a duty owed by Mr Boros to Sales that required him to maintain true and fair accounts for Sales.

For completeness, I note that Mr Boros’ defence to this claim (Defence [140(b)] included a claim that the entry in PPI’s accounts for this loan was necessary to bring to account the further payments that he contends were made to PPI and Mrs Page. That defence is not established, since these payments are not shown to be a loan to PPI, for the reasons noted in paragraphs 270ff below.

I address below PPI’s claims for false recording of two further financial transactions in paragraphs 205-211 of the Fifth Further Amended Statement of Claim, which are relied on to establish oppression claims rather than any suggested breach of duty owed to PPI or claim for compensation by it.

Paragraph 147 of the Fifth Further Amended Statement of Claim pleads that:

This claim is directed to payments totalling $1,358,366 listed in a spreadsheet contained at pages 201-214 of Exhibit AB-1 to Mr Boros’ affidavit affirmed 30 January 2018. The facts of those payments has not been established where that spreadsheet was admitted as a submission only and the payments were not otherwise proved. This claim therefore fails because its premise is not established. It is therefore not necessary to determine the balance of the claim or Mr Boros’ defence to it.

PPI pleads (5FASC [150]-[153]) a failure to record certain of its assets in its financial records. The pleaded claim relates to PPI’s shareholding in companies within the Pages Group and to PPI’s share of the share premium reserve of Phire and Sales, and Mr White cross-examined Mr Boros to seek to establish that the value of share premium accounts in those companies should have been recorded in PPI’s financial records.

PPI relies on paragraphs 16-32 of Ms Bateman’s report dated 27 June 2019 (Ex P9), paragraphs 178-180 of her report dated 30 August 2019 (Ex P10) and paragraphs 195-197, 297-298, 359 and 497 of her report dated 4 June 2020 (Ex P11) in respect of the pleaded failure to record shareholdings and share premium reserves in PPI’s financial records. Ms Bateman’s 27 June 2019 report refers to a failure to record an investment in Pages Exhibition Hire Pty Ltd and Austructures in PPI’s financial records. In paragraph 178 of her report dated 30 August 2019, Ms Bateman expresses the view that PPI’s investments in several companies in the Pages Group should be disclosed as an asset in PPI’s balance sheet and that there is no record of those investments in PPI’s financial records, and expresses the view that PPI’s investment in Phire and PEH should also show the share premiums paid, without identifying any specific accounting standard or other professional practice to support that conclusion in respect of the share premium account. A substantially similar view is expressed in Ms Bateman’s report dated 4 June 2020, again without reference to any accounting standard or professional practice which requires the suggested treatment in respect of the share premium reserve. That issue is of particular difficulty where the status of such an account may be uncertain following the abolition of par value for shares, which underpinned the recognition of a share premium. Unfortunately, it seems to me that Ms Bateman’s evidence as to these matters does not rise beyond a bare ipse dixit as to the proper treatment of these matters.

Mr Boros’ evidence, admitted with a limiting order under s 136 of the Evidence Act, is that the treatment of the share premium reserves held by Phire and Sales is a “question of accounting treatment” where he relied on the Pages Group’s internal and external accounting personnel, and that PPI’s shareholdings in the relevant companies were recorded in the books and records of those companies (Boros 17.4.20 [151]). Mr Boros was also cross-examined as to the suggested failure to record PPI’s interests in share premium reserves in its accounts (T359ff) and contended that the position would reflect adjustments made by the Pages Group’s accounts staff, which would have been reviewed by the company’s auditor (T360).

In its closing submissions, PPI submits that, in breach of s 180(1) of the Act, Mr Boros failed to record in PPI’s books its interests through shareholdings in the several Pages Group companies and in the share premium reserve of Phire and Sales. It characterises this claim as a subset of the claimed failure to keep adequate financial records. Mr Boros responds, in his closing submissions, that all transactions were completed by the Pages Group’s internal accounts office and then subjected to an external audit process and the scrutiny of ANZ, which he contends was “the effective owners [sic] of all the assets of the group”; and that there is no evidence that the entries referred to in Ms Bateman’s report were improper or inappropriate; and “all entries were completed by internal accounts staff and then audited by an external auditor.” I do not accept the submission that ANZ was the “effective owner” of the Pages Group’s assets, which misunderstands the rights of a secured creditor over secured assets.

PPI also pleads a breach of Mr Boros’ statutory duty of care and diligence in respect of this claim. The pleaded breach of duty is not self-evident and is not established.

The loss and damage PPI claims on this basis (5FASC [153]) was originally particularised by reference to nine items, but Mr White fairly accepts that there is no evidence to support a quantification of loss relating to eight of those items. The only claimed loss for which there is an evidentiary basis is the costs of engaging Ms Bateman to review PPI’s, PEH’s, Phire’s and Sales’ financial records to ascertain PPI’s true financial position. Even if a breach had been established, I am not persuaded that any loss suffered by a breach limited to the treatment of shares in subsidiaries and share premium accounts in PPI’s accounts would allow recovery of the substantial costs incurred in Ms Bateman’s detailed reports covering a range of issues. I have noted above that Ms Bateman’s reasonable costs would be recoverable on a different basis as costs of the proceedings.

This claim is not established. Given these findings, it is not necessary to deal with Mr Boros’ defences to this claim, his reliance on the business judgment rule or his claim for relief under ss 1317S and 1318 of the Act, although I address that defence generally below.

Paragraphs 154-157 of the Fifth Further Amended Statement of Claim plead a diminution of the value of PPI’s interest in Sales by the use of its assets to pay a personal debt of Mr Boros, arising in respect of the DOCA relating to Phire. Ms Bateman addresses this issue in paragraph 198 of her report dated 4 June 2020 (Ex P11), which notes that the DOCA records that the director of Phire, Mr Boros, was to pay $320,000 and that amount is recorded as paid by Sales in its financial records. Ms Bateman there expresses the view, which I disregard so far as it is outside her professional expertise, that that debt should have been paid by Mr Boros in his own right.

In his affidavit dated 17 April 2020, Mr Boros claims that the payment for which he assumed liability under cl 5.1 of the DOCA for Phire, of $320,000, “was for the benefit of [Sales] in that it had assumed Phire’s business”, and he relies on an indemnity provision in Sales’ constitution for any expense, loss or liability incurred in a relevant capacity. That indemnity provision had no application, and does not justify the payment of that liability by Sales, since the liability was not incurred by Mr Boros as an officer of Sales. In cross-examination, Mr Boros in turn suggested (T291) that Sales was obliged to pay that amount “through my commitment the funds agreed to by Pages Sales to take over all the trade creditors and trade debtors of Pages Hire Centre.” It does not seem to me that the treatment of Phire's creditors by Sales, which raised difficulties which I address in paragraphs 179ff, created any such obligation in favour of Mr Boros.

PPI alleges (5FASC [156]) several breaches of duty by Mr Boros in this respect, pleaded as follows:

There is a degree of artificiality in this claim, which reflects PPI’s attempt to establish a claim for itself arising out of conduct that more immediately affected Sales. PPI does not plead, as a material fact, or seek to identify the steps that Mr Boros should have taken as a director of PPI to exercise PPI’s pleaded rights as a 26.67% shareholder of Sales to prevent the transaction. It is not necessary to determine whether PPI could establish such a claim, for the reasons noted below, although I will return to a similar issue in respect of other claims.

PPI’s ultimate position as to compensation for this claim is unclear. In its outline of opening submissions, PPI claimed a diminution in the value of PPI’s interest in Sales, particularised as the diminution in the value of PPI’s interest in Sales. There is no evidence to permit a quantification of any loss on that basis, which would need to have regard to the value of Sales’ assets and debts and the fact that Sales’ shareholders including PPI would be residual claimants after its creditors. In its outline of closing submissions, PPI sought to support that claim on the different basis that the amount of $320,000 paid by Sales in respect of the DOCA could or would have been used to pay down the Pages Group’s debt to ANZ which is secured by a charge over the assets of the Pages Group, and that PPI’s share of the reduction of that liability would have been $85,344. That different claim depends on factual matters, including the extent of Pages Group’s debt to ANZ and how it is structured, and is not open to PPI where Mr Boros was not given notice of it until after the evidence in the case had concluded. In oral closing submissions, Mr White accepted that PPI could not establish and did not press a claim for loss in respect of this claim (T443). In its subsequent schedule of quantification of its damages, PPI appears to return to its original position by contending that the payment of this amount reduced the “current value” of Sales. That proposition again ignores the fact that PPI (as distinct from Sales) could not suffer any loss unless Sales’ equity had value prior to the transaction, and any such loss has not been quantified.

It is not necessary to determine other aspects of this claim, or Mr Boros’ defence to it, where it cannot lead to an order for compensation against Mr Boros for these reasons and I am satisfied that the winding up order sought in respect of Sales should be made on other grounds.

Paragraphs 162-167 of the Fifth Further Amended Statement of Claim plead the sale of an asset, being a “triple storey structure”, by PEH to Phire, about three months before Phire was placed under administration. The pleaded breach is a failure by Mr Boros as the sole director of PPI to exercise PPI’s “rights as a 50% shareholder of PEH” to prevent the asset transfer from PEH to Phire. PPI again does not plead, as a material fact, the manner in which it would or should have exercised such rights to prevent that asset transfer.

This issue is addressed in paragraphs 8(k), 83-87, 204-205 and 273-281 of Ms Bateman’s report dated 4 June 2020 (Ex P11). Ms Bateman summarises her opinion ([8(k)]) as being that the transfer of the “triple storey structure” from Phire to Sales:

Ms Bateman notes ([83]) that the largest asset held by Phire at 30 June 2015 was its loan to PEH of $4,269,085 and refers to Phire’s “purchase” of the triple storey structure for $4,115,569.51 and to Mr Boros’ evidence that that purchase price was based on future revenues from that structure, although Phire then ceased to trade on 30 June 2015 and Sales took over its business. Ms Bateman notes the absence of documents supporting that calculation of that “value” and that the effect of the sale was to substantially extinguish Phire’s loan to PEH in exchange for an asset which it did not receive. There is substantial force in those comments, although it should be noted that that transaction had an adverse effect upon Phire and its creditors, rather than on PPI which was a shareholder in PEH and indirectly benefited from it in that capacity.

In his affidavit dated 17 April 2020, Mr Boros refers to the history of the use of the “triple storey structure”, to its book value recorded in the general ledger of PEH of $1,024,763.60 as at 30 June 2015 and to the sale of that structure to Phire for $4,115,569.51 on 1 July 2015, which Mr Boros contends was a value “based on the future revenues it was anticipated to generate” and he contends that the triple storey structure remained in PEH’s possession when Phire went into voluntary administration and Phire was unable to pay for it (Boros [123]). Mr Boros’ evidence is that the triple storey structure was subsequently sold for scrap (Boros [127]).

It does not seem to me that claim is established. It was not open to PPI, as a shareholder in PEH, to pass an effective resolution in general meeting to prevent that transfer so far as the relevant transaction involved a step in the management of PEH. As Mr White fairly accepted in submissions in the context of PPI’s position as shareholder generally, where s 198A of the Corporations Act or the commonplace provision in a company’s constitution in similar form confer powers of management on the directors, a majority in general meeting cannot direct the company’s director(s) as to how those powers are to be exercised: John Shaw and Sons (Salford) Ltd v Shaw [1935] 2 KB 113 at 134; [1935] All ER Rep 456; Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821 at 837; [1974] 1 NSWLR 68 at 79; [1974] 1 All ER 1126; (1974) 3 ALR 448; NRMA v Parker (1986) 6 NSWLR 517; 11 ACLR 1; 4 ACLC 609; Queensland Press Ltd v Academy Investments No 3 Pty Ltd [1988] 2 Qd R 575; (1987) 11 ACLR 419; 5 ACLC 175; Dhami v Martin [2010] NSWSC 770; (2010) 79 ACSR 121; 241 FLR 165. Mr White speculated in submissions that PPI could have brought an application to the Court to restrain the transaction, had Mr Boros disclosed it to PPI’s shareholders, but neither the late Mrs Page nor Mr Page’s affidavit give evidence that such an application would or might have been brought in respect of this or any other impugned transaction, had it been disclosed by Mr Boros, and the possibility of such an application rises no higher than speculation. The question whether the transaction was a breach of Mr Boros’ duty to PEH, as distinct from PPI, does not arise, since PPI has no standing to assert such a breach of duty and does not seek to do so.

Mr White in any event accepts that there is no evidence to support PPI’s claim for loss and damage, by way of any diminution in the value of its interest in PEH by reason of this transaction. This claims fails for these several reasons and it is not necessary to address Mr Boros’ defence or any question of reflective loss in respect of this claim whether a claim on this basis also constitutes reflective loss, of a kind that would not be recoverable by PPI, so far as PEH would arguably have an action available for any breach of the pleaded duties, under the principles addressed in Re JGS Investment Holdings Pty Ltd [2014] NSWSC 1532; Rose v Trend Designs Pty Ltd [2020] NSWSC 675 and recently by the Supreme Court of the United Kingdom in Sevilleja v Marex Financial Ltd [2020] UKSC 31.

Paragraphs 168-171 of the Fifth Further Amended Statement of Claim plead the transfer of PEH’s shares in Hospitality Hire (Aust) Pty Ltd (“HHA”) to Mr Boros’ wife, Ms Jean Boros, for a nominal price of $12. PPI pleads that:

This matter is addressed in paragraphs 285-296 of Ms Bateman’s report dated 4 June 2020 (P11). Ms Bateman there expresses the view that relevant accounting standards, which she does not identify, with regard to the transfer of ownership and control in HHA were not met. She also expresses views, which were not properly founded in any expertise as an accountant, as to the extent to which shareholders in PEH had been properly informed of the financial position of HHA at the time of transfer, and also advances a criticism, equally outside her accounting expertise, of the purpose of the transaction. She comments as to the conclusions to be reached from Mr Boros’ evidence and also expresses further views as to the appropriateness of the transaction which are plainly not proper matters for expert accounting evidence. Ms Bateman’s comments as to this transaction are of limited assistance.

In his affidavit dated 17 April 2020, Mr Boros provides an account of the circumstances in which the shares in HHA were transferred to Mrs Boros as follows:

Mr Boros also refers to a brief conversation with the late Mrs Page and Mr Thatcher where Mr Boros said that he would like to transfer the HHA shares to Mrs Boros and asked “Are you okay with that” and he claims that Mrs Page responded “That’s not a problem”. Mr Boros’ evidence is that there was no discussion of Mrs Boros paying for the shares in HHA “because HHA had not assets of any significance” (Boros [147]-[148]). Even if such a conversation took place, it plainly did not amount to full and fair disclosure of any conflict of duty and duty or duty and interest on Mr Boros’ part so as to give rise to informed consent by Mrs Page to such a conflict.

Mr Boros’ submissions, in response to this claim, refer to his affidavit evidence concerning the transaction and he submits that:

In closing submissions, PPI submits that, on 12 July 2007 Mr Boros caused the transfer of PEH’s 100% shareholding in HHA to Mrs Boros for $12; he previously admitted the facts of the transfer in paragraphs 168-169 of his Defence, and PPI has not consented to the withdrawal of that admission nor has the Court granted leave for it to be withdrawn; and, although Mr Boros had not yet been appointed as a director of PPI at that time, he was a “de facto” director and effectively controlled PPI and its decision making, and also owed general law fiduciary duties to PPI as a senior executive officer of PPI at that time. PPI again claims that Mr Boros’ failure to exercise PPI’s rights as a 50% shareholder of PEH to prevent the transfer of the shares in PPI to Mrs Boros amounted to a breach of his statutory and general law duties. I recognise that the transfer of PEH’s shares in HHA to Mrs Boros assisted Mr Boros and interests associated with him to obtain a majority of shares in and control of Austructures, which is a matter of significance for the claim in oppression as to that company which I address below. PPI also contends that that price at which the shares were transferred was less than the true value of those shares at that time, but Mr White fairly accepts that there is no evidence to establish that matter, which would at least depend upon the amount on the value of the assets and the amount of debt owed by HHA (T459).

Assuming without deciding that Mr Boros was a de facto director or de facto officer of PPI at the time of the transaction in July 2007, the pleaded contravention of s 181 of the Act is not established, since the basis on which PPI could or would have exercised its rights as a shareholder in PEH to prevent the transaction is neither pleaded as a material fact nor established by evidence. The pleaded contravention of s 182 of the Act is also not established, since the transaction did not involve a use of Mr Boros’ position as an officer of PPI, and no improper failure to take action in that position (as distinct from potentially wrongful action as a director of PEH) is established. It does not seem to me that the transaction gave rise to a conflict of duty and duty or duty and interest in respect of PPI, because the relevant transactions were within the scope of the duties owed by Mr Boros to PEH and not the scope of his duties owed to PPI. For completeness, PPI did not plead, or establish, a proper factual basis for its further allegation of a dishonest and fraudulent design in respect of the transaction. No question whether Mr Boros’ conduct breached his duties to PEH arises, since PPI does not have standing to, and does not seek to, establish such a breach. This pleading again reflects the artificiality involved in PPI seeking to establish a claim for breach of duties owed to it in respect of a transaction which may well have involved a breach of Mr Boros’ duty owed to PEH.

PPI pleads (5FASC [175]) that, as a result of the contraventions and breach of fiduciary duties pleaded in respect of this transaction, it has suffered loss and damage particularised as a diminution in the value of its interest in PEH, but again leads no evidence to support the loss and damage claimed. In closing submissions, PPI put that loss differently as “PPI’s 50% interest in the true value of the HHA shares” and “12.5% of the value of any surplus payable to contributories on the winding up of Austructures in the event a winding up order is now made.” The amount of that loss has not been established on either basis and this claim also fails on that basis. It is not necessary to determine whether the loss claimed on this basis also constitutes reflective loss that is not recoverable by PPI.

For completeness, Mr Boros deleted the substantive defence to this claim in his Defence to the Fourth Further Amended Statement of Claim and now pleads “[m]ove to strike: time barred by operation of section 1317K of the Act.” This claim pleads loss and damage that was suffered by PEH, and by PPI to the extent that any such loss would be recoverable by it, no later than 12 July 2007 when PEH’s shares in HHA were transferred to Mrs Boros. The proceedings were not commenced until 29 November 2016 and, prima facie, any loss suffered is not recoverable by reason of the limitation period in s 1317K of the Act and its analogous application in equity in respect of a claim for breach of fiduciary duty. PPI pleads, in reply, that Mr Page did not become aware of this matter until he received Ms Bateman’s expert report dated 27 June 2019 in the proceedings. It is not necessary to determine whether that would support an extension of the limitation period where this claim has failed on other grounds.

Paragraphs 184-195 of the Fifth Further Amended Statement of Claim plead the circumstances of a transfer of Phire’s business to Sales, in a somewhat complex pleading. The first aspect of that pleading identifies the relevant steps in the transaction. PPI pleads (5FASC [184]) that, on 21 November 2014, Mr Boros caused Sales to be incorporated with PPI owning 100 of its 300 shares. Next, PPI pleads (5FASC [185]) that, as at 30 June 2015, Phire had surplus assets of $5.3m, including unappropriated profits of $4.7m. I am unable to reach that finding, where this claim involves PPI accepting, for its perceived advantage, the accuracy of information contained in accounts which it has otherwise demonstrated are unreliable in substantial respects.

PPI then pleads (5FASC [186]-[187]) that, on 8 September 2015, Mr Boros caused the company previously known as “Pages Hire Centre (NSW) Pty Ltd” to change its name to “Phire Pty Ltd”, likely in preparation for its voluntary administration and, on 9 September 2015, as the then sole director of that company, he appointed voluntary administrators to that company under s 436A of the Act. PPI then pleads (5FASC [188]) that, on 16 September 2015, Mr Boros caused 20 of the 100 shares owned by PPI in Sales to be transferred for no consideration, leaving PPI with 80 of the 100 shares (although mathematically it may mean 80 of the 300 shares) (26.67%) of Sales. It also pleads (5FASC [189]-[190]) that, from 21 November 2014 to about 25 August 2015, Mr Boros caused the business of Phire to be transferred to Sales for no consideration and, on 25 August 2015, Mr Boros resigned as the director and company secretary of Sales and appointed Mr Thatcher as its company secretary, leaving Mr Thatcher as then the sole director and company secretary of Sales.

PPI pleads (5FASC [191]-[195]) the result of these transactions and the alleged breach of duty involved in them as follows:

PPI relies on paragraphs 110-113 and 144 of Ms Bateman’s first report dated 1 March 2018 (Ex P8) in respect of this claim, which refer to loans between PEH, PPI and Phire and indicate her expectation that reconciliations and other documents evidencing those inter-company loans would be held by PEH, and that at least a complete general ledger and journals recording the relevant transactions would be produced. It appears that those comments are primarily relevant to the adequacy of the financial records maintained by PEH, rather than to the transfer of the relevant assets from Phire to Sales. PPI also relies on paragraphs 46-50, 76-81 and 181-183 of Ms Bateman’s report dated 30 August 2019 (Ex P10) in respect of this claim. Part of this evidence again relates to the adequacy of the financial records retained by Sales in the period from 2015 to 2019 rather than to the transfer of these assets.

PPI also relies on observations in Ms Bateman’s report dated 4 June 2020 (Ex P11) in respect of this claim. Paragraph 8(a) of that report “estimates” PPI’s loss in respect of this transaction as $1,242,912 as at 30 June 2015, although she there noted that she had not then received financial records for Phire beyond that date. Paragraph 8(h) of that report expresses the view that Mr Boros had caused suppliers to charge Sales for expenses not owed by Sales, presumably in Sales discharging suppliers’ claims against Phire. Paragraphs 78-82, 88-93 and Appendix 2 to that report discuss the circumstances of the voluntary administration of Phire, in a narrative which should properly have been treated as assumptions made by Ms Bateman, since it is not the role of an expert accounting witness to reach factual findings as to those matters. Ms Bateman there expresses the view ([95] that the documents available to her do not correctly record and explain the relevant transaction and do not meet the requirements of s 286 of the Act.

Ms Bateman also there refers ([105]ff) to the possibility that Phire’s debtors collected from by Sales exceeded Phire’s creditors and notes that the documents provided to her do not record a calculation of the valuation of the Phire business at the time it was taken over by Sales. She also observes ([107]) that she cannot make sense of the journal entries in the general ledger accounts recording the transaction and refers to errors in the recording of trade creditors in Sales’ accounts. She criticises Mr Boros’ evidence as to the reasons for the creation of Sales ([247]-[255]), again travelling well outside her accounting expertise, and also refers to the lack of a valuation of Phire’s assets, the amounts paid for them and reconciliations to allow the capital gains or losses on the transactions to be determined.

Ms Bateman then undertakes a balance sheet valuation of the net assets and equity in Phire as at 30 June 2015; estimates the value of PPI’s investment in Phire at that date as $2,655,795; and values the reduction of PPI’s “shareholding” in Phire by 16.7% as $887,035. That approach is not consistent with PPI’s case, which pleads that the loss of the value of the “business” conducted by Phire; it is also not consistent with the transaction in issue, since PPI’s shareholding in Phire was not reduced; and PPI was instead issued shares in a new company, Sales, which appears to have assumed the assets of Phire and assumed liability for its creditors but not its tax liabilities.

Mr Boros in turn referred, in his affidavit dated 17 April 2020, to the matters which he contended had led to the external administration of Phire, involving a failure, which he attributed to the Pages Group’s former commercial manager, to have purchase orders issued in respect of work undertaken by suppliers, so that claims were received by suppliers for unpaid invoices which were not recorded in Phire’s accounting system (Boros [90]). Mr Boros’ evidence is that he then had a conversation with the late Mrs Page and indicated that the companies could either reduce the payments made to Mrs Page or reduce her shareholding in a new company established in place of Phire (Boros [92]). Even if a conversation occurred in those terms, it was not sufficient to establish fully informed consent of Mrs Page to any conflict of duty and interest or duty and duty affecting Mr Boros in respect of the allocation of shares in Sales as between PPI and the companies associated with him. Mr Boros seeks to justify the establishment of Sales on a basis that PPI’s share interest was 33% (by contrast with 50% in Phire) and the interest of Hun, which was a company associated with him, was 33% (by contrast with 25% in Phire) on that basis (Boros [93]). Mr Boros’ evidence is also that, where a creditor had a genuine claim against Phire, its invoice was then reissued to Sales and paid by Sales (Boros [94]) and that:

Mr Boros’ evidence is that Phire was then placed in administration, when he received a director penalty notice issued by the Australian Taxation Office, and was unable to agree a repayment schedule of amounts due to the Australian Taxation Office with it (Boros [103]). Mr Boros also refers (Boros [108]) to a conversation with Mrs Page in relation to the suggested issue of shares in Sales to two senior employees, which it is not necessary to address to determine this claim.

It is likely that Mr Boros’ original evidence that Phire ceased trading on 1 January 2015 was incorrect and that it continued trading until 30 June 2015 (Ex J1, 6475; T280-283, 298), although that error is only of significance as to the reliability of his evidence. Mr Boros was also cross-examined as to the circumstances in which Phire ceased trading, and as to the dispute whether that occurred on 1 January 2015 or 30 June 2015 (T280ff) and referred to the suggested issue as to supplier invoices which he claimed contributed to that outcome and to his receipt of a director’s penalty notice from the Australian Taxation Office (T285). Mr Boros was also cross-examined as to the circumstances in which Sales assumed Phire’s assets, including its trade creditors, and contended that it paid no money because there were no assets to pay for (T299, T302ff). He did not accept the proposition put to him in cross-examination that Phire was profitable at 30 June 2015 and that there were no financial difficulties that required that it be placed in voluntary administration (T287, T290-291, T294, T296). Mr Boros was also cross-examined as to the circumstances in which PPI’s 50% interest in Phire was replaced with a 33% interest in Sales, and to the conversation which he claimed to have had with Mrs Page at that time (T312ff). Mr Boros was further cross-examined as to the treatment of creditors of Phire, and the creation of a loan showing as owed by Phire to Sales, and subsequently by PPI to Sales, and the transfer of those amounts into an account referable to goodwill in Sales (T339).

PPI sought to establish, relying on Ms Bateman’s evidence, that, at the time Phire was placed in voluntary administration, it was trading profitably with surplus net assets of $5,311,589, including an asset of a $4,269,085 loan to PEH, although I am not satisfied of that matter given the unreliability of its contemporaneous financial records. PPI also contended that Mr Boros’ true concern was that, shortly before 25 August 2015, the Australian Taxation Office had issued a director penalty notice to him that would have obliged him personally to pay Phire’s tax liability (Ex J1, 6475-6476), and that Mr Boros then placed Phire into voluntary administration when it was solvent, and the Australian Taxation Office was not ultimately paid that debt.

In closing submissions, Mr White put a submission in strong terms, contending that:

In his submissions in respect of this claim, Mr Boros refers to paragraphs 82 – 104 of his affidavit sworn 17 April 2020, denies any breach of duty and contends that “[d]ue diligence and external advice were the pinnacles that led me to take the actions to ensure the group could move forward in a solvent manner.”

There is plainly a significant issue as to the propriety of this transaction, where the transfer of assets from Phire to Sales does not appear to be appropriately documented; there is no evidence of any independent valuation as to Phire’s assets, to establish whether their value exceeded the amount of creditors’ claims for which Sales is said to have assumed responsibility; and there is no adequate explanation as to why the full amount of claims of creditors should then be treated as a loan to Phire in Sales’ financial records, without allowing any credit for the assets of Phire which Sales had assumed.

However, this claim must also fail when formulated as a claim by PPI for breach of statutory or general law duty owed by Mr Boros to PPI. The relevant steps largely took place in dealings in companies other than PPI, and may well have involved a breach of Mr Boros’ statutory and general law duties owed to Phire in respect of the transfer of its assets to Sales for no consideration or insufficient consideration, if the value of those assets exceeded its creditors’ claims. However, PPI again did not plead the material facts of or establish the basis for any exercise of PPI’s rights as a shareholder in Phire (or, indeed, in Sales) to prevent the transaction, and a breach of s 181 of the Act or the corresponding equitable duties owed to PPI (as distinct from Phire) is therefore not established. It does not appear that Mr Boros improperly used his position as a director of PPI, as distinct from his position as a director of Phire, to implement the transaction so a breach of s 182 of the Act or corresponding general law duties owed to PPI (as distinct from Phire) is also not established. The transaction does not seem to me to be have been within the scope of any duty owed by Mr Boros to PPI, as distinct from Phire, so as to establish a breach of fiduciary duty owed to Phire.

PPI claims loss and damage in this respect as “equivalent to 23.3% of the value of the business operations of the Pages [G]roup” and submits that Ms Bateman has valued the Phire business in her 4 June report. That may not correctly describe the basis of her valuation, to which I referred above. PPI maintained this claim in its written outline of closing submissions, contending that its loss was an amount “equivalent to 23.33% of the business’ value”, quantified by Ms Bateman at $1,242,912 as at 30 June 2015. It seems to me that PPI did not suffer loss and damage quantified in that way, since it owned shares in Phire rather than directly owning the relevant assets used in Phire’s business prior to the transaction. Its loss would be the value of its Phire shares, after taking into account the claims of Phire’s creditors, less the value of the shares issued to it in Sales. That loss would be reduced by any benefit that PPI obtained from the transaction, despite the dilution of its economic interest in the underlying assets, where the transfer of Phire’s assets out of Phire shielded them from the claims of the Australian Taxation Office against Phire, to PPI’s advantage as well as to the advantage of Mr Boros, Mr Thatcher and their associated companies. Mr White ultimately appeared to accept in his oral closing submissions that PPI’s claim for damages on this basis was untenable. Mr White then submitted that PPI could not quantify its loss by reference to the value of its shareholding in Phire and Sales because of the issues as to the accuracy of Pages Group’s financial records. That submission was unsupported by any evidence of Ms Bateman that she had sought to quantify PPI’s loss in that manner but been unable to do so.

Mr White then advanced, in closing oral submissions, an alternative claim for compensation for the first time (T450-451), that PPI’s loss referable to this claim was its diminished share of the dividends payable by Sales after the transaction, by reason of the dilution of its interest in Sales, or possibly a loss of opportunity to receive a greater share of dividends payable by Sales. That claim has the difficulty that, as Mr White accepted, there is no evidence that Sales paid any dividends after the transaction, and also no evidence that there was any significant prospect that it would do so. Mr White contended it had the financial capacity to do so, but that contention relied on the financial records that PPI has shown to be unreliable. Mr White also sought to draw the inference that such dividends would have been paid by Sales from the fact that Phire had previously paid dividends, but that inference is inconsistent with the lack of evidence that such dividends were in fact paid by Sales. In these circumstances, the suggestion that Sales would or might have paid dividends, of which PPI would have received a greater share if it had a greater shareholding in Sales, seems to me no more than speculation.

Mr White emphasised that the Court must do the best it can to make a reliable assessment of damages, where damages are difficult to assess, including where a plaintiff has failed to lead the best evidence of damages: Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83, per Mason CJ and Dawson J, at 125 per Deane J, at 153 per Gaudron J; see also Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 at [135], per Beazley JA; Ramsay v BigTinCan Pty Ltd [2014] NSWCA 324; (2014) 101 ACSR 415. However, the case law also emphasises that damages must be proved with a degree of precision which reflects the proof that is reasonably available to the parties: State of New South Wales v Moss (2000) 54 NSWLR 536 at [72]; Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768 at [38]. In Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 319, Pincus J noted that “if the evidence called on behalf of [the plaintiff] fails to provide any rational foundation for a proper estimate of damages, the Court should simply decline to make one”. That approach was approved by Brooking J in JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237 at 243 and by the Court of Appeal in Troulis v Vamvoukakis [1998] NSWCA 237 where Gleeson CJ observed that, where damages were susceptible of evidentiary proof, but there was an absence of raw material to which good sense may be applied, “[j]ustice does not dictate that … a figure should be plucked out of the air”. In McCrohan v Harith [2010] NSWCA 67 at [128], McColl JA (with whom Campbell JA and Handley AJA agreed) held that an estimate of damages, in the nature of a “guess”, should not be made where precise evidence of the damages suffered could have been adduced, but was not: see also Re Hair Industrie Penrith Pty Ltd, Hair Industrie Merrylands Pty Ltd [2015] NSWSC 1578 at [19]ff (from which I have drawn part of the summary of the case law which appears above); Hurford Hardwood Kempsey Pty Ltd v Kempsey Timbers (Sawmilling) Pty Ltd (No 5) [2020] NSWSC 287 at [52]; Strategic Communications Management Pty Ltd v Techfront Australia Pty Ltd [2020] NSWSC 847 at [95]. It seems to me that, absent an evidentiary basis for a finding that dividends would or might have been paid by Sales, PPI’s alternative claim on the basis of loss of dividends is not established.

Since PPI has not established its loss in respect of this claim, it is again not necessary to determine whether a claim on the basis also constitutes reflective loss of a kind that is not recoverable by PPI where Phire would arguably have an action available for any breach of the pleaded duties. It is also not necessary to address Mr Boros’ defence to this claim. I return to the relevance of this matter to PPI’s oppression claim below.

PPI pleads that several of the matters which I have addressed above and a failure by PEH, Phire and Sales to keep proper financial records (5FASC [197], [201], [204], [208], [211], [215]), which I address below, were conduct contrary to the interest of the members of PEH, Phire and Sales as a whole and oppressive to, and unfairly prejudicial to, PPI’s interests as a member of those companies. PPI’s pleading (5FASC [216]) claims for oppression under s 232 of the Act and for winding up on the just and equitable grounds under s 461(1)(e) and (k) of the Act on that basis. PPI also seeks declarations that the affairs of PEH, Sales and Phire have been and are being conducted in a manner that is oppressive or unfairly prejudicial to it, or unfairly discriminatory against it, or contrary to the interests of the members as a whole within the meaning of s 232 of the Act and/or in a manner that is unfair and unjust to other members, including PPI, within the meaning of s 461(1)(e) and (k) of the Corporations Act (5FASC, Relief, [12C]-[12E]).

I first turn to the applicable legal principles, as to which I have drawn upon in my summary of these principles in Re Pure Nature Sydney Pty Ltd [2018] NSWSC 914 and Re ICB Medical Distributors Pty Ltd [2018] NSWSC 1315 at [65]ff. Section 232 of the Corporations Act provides that the Court may make an order under s 233 if, relevantly, the conduct of a company’s affairs is either contrary to the interests of the members as a whole or oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity. That section and its predecessors extend 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 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: Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 at 704; Wayde v New South Wales Rugby League Ltd [1985] HCA 68; (1985) 180 CLR 459. In Morgan v 45 Flers Avenue Pty Ltd above at 704, Young J observed that the phrases “oppressive, unfairly prejudicial or unfairly discriminatory” in a predecessor to s 232 of the Corporations Act should be construed as “a composite whole and the individual elements mentioned in the section should be considered merely as different aspects of the essential criterion, namely commercial unfairness”. His Honour also there 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:

The principles applicable to a claim for oppression were also summarised by Austin J in Tomanovic v Argyle HQ Pty Ltd [2010] NSWSC 152 at [39], and the Court of Appeal noted the parties did not challenge that summary of the applicable principles in Tomanovic v Global Mortgage Equity Corporation Pty Ltd [2011] NSWCA 104; (2011) 84 ACSR 121 at [140] . His Honour observed that:

In Munstermann v Rayward [2017] NSWSC 133 at [22], Stevenson J summarised the applicable principles as follows (omitting citations):

I have also borne in mind the observation in Tomanovic v Global Mortgage Equity Corporation Pty Ltd above that each case has to be considered on its own facts and circumstances, and by reference to the conduct as a whole.

PEH, Phire and Sales may also be wound up under s 461(1)(e) of the Act if the Court finds that Mr Boros is conducting its or their affairs in his own interests, rather than in the interests of the members as a whole or in a manner which appears to be unfair or unjust to PPI: Re National Discounts Ltd (1951) 52 SR (NSW) 244; 69 WN (NSW) 115; Re William Brooks & Co Ltd and Companies Act [1962] NSWR 142; (1961) 79 WN (NSW) 354; Re Weedmans Ltd [1974] Qd R 377; Re Cumberland Holdings Ltd (1976) 1 ACLR 361 at 375; (1975-76) CLC 40-250. Section 461(1)(k) of the Act in turn provides that the Court may order the winding up of a company if it is of the opinion that it is just and equitable that the company be wound up. It is well established that the Court can make a winding up order under that section by reason of, inter alia, lack of confidence in the conduct and management of a company’s affairs, or if a company has not carried on its business candidly and in a straightforward manner with the public, or has failed to comply with the requirements of the Corporations Act with respect to financial records and reports. The authorities are numerous, but include at least Loch v John Blackwood Ltd [1924] AC 783; Australian Securities and Investments Commission v Chase Capital Management Pty Ltd [2001] WASC 27; (2001) 36 ACSR 778; and Australian Securities and Investments Commission v ABC Funds Managers Ltd above at [119], where Warren J (as her Honour then was) observed that a winding up on just and equitable grounds could take place where there was “a lack of confidence in the conduct and management of the affairs of the company” and “a risk to the public interest that warrants protection”, and also noted that the Court would be reluctant to wind up a solvent company. In Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 2) [2013] FCA 234 at [19]ff, Gordon J summarised those principles as permitting a company to be wound up where there is a lack of justifiable confidence in the conduct and management of its affairs and a risk to the public interest that warrants protection, and noted that that could be established where the Court could not have confidence that the company’s controllers would comply with their obligations, including keeping books, records and documents and looking after the company’s affairs: see also Re Bicher & Son Pty Ltd [2020] NSWSC 711.

I also bear in mind s 467(4) of the Corporations Act, which applies where a winding up order is sought on the just and equitable ground, and is likely also relevant to the exercise of the Court’s discretion where a winding up order is sought under s 233 of the Corporations Act: Asia Pacific Joint Mining Pty Ltd v Allways Resources Holdings Pty Ltd [2018] QCA 48; (2018) 125 ACSR 227 at [46]–[47], [62]. McMurdo JA there observed:

Paragraphs 196-204 of the Fifth Further Amended Statement of Claim plead a failure by PEH, Phire and Sales to keep proper financial records in support of this claim. PPI pleads (5FASC [196], [199], [202]) that, at all material times, each of PEH, Phire and Sales were required by s 286 of the Act to keep written financial records that correctly recorded and explained its transactions and financial position and performance and that would enable true and fair financial statements to be prepared and audited and to retain those financial records for 7 years after transactions covered by the records are completed. PPI pleads (5FASC [197], [200]) that, from 29 July 2003 onwards, PEH and Phire failed to keep the written financial records required by s 286 of the Act, particularised as the records listed in paragraphs 54-55 of Ms Bateman’s second report dated 30 August 2019 and Appendix 7 of her report dated 4 June 2020. PPI’s Revised Schedule summarises its claims as to the deficiencies in PEH’s and Phire’s financial records, and I will address the most significant of these claims here. I addressed the position in respect of PPI above and address the position in respect of Sales below.

Turning first to PEH, PPI submits that PEH’s audited financial statements for several years are inconsistent with the tax returns produced, with an apparent under-reporting of income for tax purposes of $2,433,970 and, if those tax returns were not lodged, there has been a material failure to prepare required financial records. Ms Bateman refers in her report dated 4 June 2020 (Bateman, Ex P11, [37], [546]-[549]) to material differences between the profit shown in PEH’s financial reports and the profits declared in its income tax returns, with the total understatement in the tax returns in excess of $2.4 million. Mr Boros responds to this issue, in his response to PPI’s Revised Schedule, by developing a position that was not established by evidence, as follows:

I recognise that no inconsistency in the income stated in PEH’s audited accounts and its tax returns is established in PEH’s 2015 and 2017 financial years and the difference between the two is immaterial in the 2018 and 2019 financial years. The amount involved is, however, substantial, in the other years and the accurate recording of income is a self-evidently important aspect of keeping true and fair financial records. Ms Bateman explains, and I accept, that that overstatement is not attributable to the treatment of WIP as Mr Boros contended in his affidavit evidence and submissions. This criticism is well-founded and amounts to a serious failure to keep true and fair accounts of PEH.

PPI also submits that the sale of the “triple storey structure”, which I addressed above, was not properly recorded or processed in PEH’s accounts and results in an understatement of its assets. Ms Bateman also referred in her report dated 30 August 2019 to the absence of accounting work papers for the transfer of the triple storey structure from PEH to Phire and expresses the view that those work papers should form part of the financial records of PEH. Mr Boros responds to this issue, in his response to PPI’s Revised Schedule, by submitting that:

I do not need to determine PPI’s submission that the sale to Phire of that structure on 1 July 2015 for $4,115,569.51 was a sham. PEH’s failure to maintain true and fair financial records in this respect is established because that sale did not complete when Phire was placed into voluntary administration in September 2015 and PEH retained that asset, but the associated record of a loan to Phire was not then reversed on PEH’s books and that loan was asserted in Phire’s voluntary administration (Bateman Ex P11, [8k], [44], [275],[280]-[281], Appendix 4, [477]-[479]). This matter again amounts to a material failure to keep true and fair accounts in respect of PEH.

PPI also submits that the loan of $2,731,879 recorded in PEH’s financial statements for the 2018 and 2019 years as owed by PPI is false. Paragraphs 205-208 of the Fifth Further Amended Statement of Claim in turn plead that a false financial transaction was recorded in the books of PEH, namely that PEH’s financial statement for the year ended 30 June 2017 purports to record that PEH had previously made a loan (or loans) to PPI of $2,731,879; PEH’s general ledger purports to show a transfer from the PEH/Sales trading account to PPI of $2,731,878.99 on 30 June 2017; and no such loan or transfer from PEH was ever received by PPI. Ms Bateman expresses the view in her 4 June 2020 report (Ex P11, [40]) that the entry “other debtors – PPIL” in the financial statements of $2,731,879 for 2019 and the comparative information for 2018, relating to a loan to PPI, is not a true liability of PPI and that these loans and transactions should be reversed in the accounts of PEH, Sales and PPI. This observation appears to be based on Ms Bateman’s evidence that she has not seen supporting documentation for that loan, which is not sufficient to establish its non-existence, although it is hardly consistent with appropriate financial recording for a purported loan of this size.

Mr Boros responds to this issue, in his response to PPI’s Revised Schedule, as follows:

I am not satisfied that this amount, or at least some part of it, is not a liability of PPI, because it is plain that significant funds were paid by PEH and Sales to Mrs Page, and the evidence does not establish whether those funds were paid as dividends, or an advance on dividends, or shareholder loans or, as may be most likely, without any adequate consideration of the nature of the payments. However, I am comfortably satisfied that the accounting treatment of these multiple payments in a single large figure in the accounts, without a proper analysis of its character, represents a significant failure to keep true and fair accounts. I address this question further in dealing with Mr Boros’ reliance on this “loan” in answer to the claim against him below.

PPI also submits that the 2015 financial statements of Phire and PEH contain inconsistent entries for a loan from Phire to PEH of $4,269,085 which is not recorded in the financial statements of PEH, so that one or both are incorrect and the proper financial position of at least one of the companies cannot be derived. PPI also submits that, in the years 2008 to 2014, Phire and PEH both disclosed that loan correctly, as an asset of and loan made by Phire and a liability of and loan made to PEH, and that loan disappeared in the 30 June 2015 balance sheet for PEH. Ms Bateman notes a new ‘Contributed Equity’ account (to which I have referred above) appeared in the equity portion of PEH’s balance sheet with a balance of $3,068,070 at 30 June 2015, but that balance is $1,201,015 less than the PHC loan as at that date and there is no documentation or explanation as to that difference (Bateman P11, [50], [540]-[541]).

Mr Boros responds to this issue, in his response to PPI’s Revised Schedule, as follows:

PPI submits that no general ledger or trial balance for PEH for the periods to 29 June 2015 have been produced; no general journals and associated work papers for PEH that support the financial statements have been produced; no working papers including reconciliations that explain the financial accounts for the years 2010 to date have been produced; no work papers or support have been provided for an apparent write-down or write-off of plant, equipment and motor vehicles in 2019 by $8.8 million; and that it should be inferred that these financial documents have not been kept (Bateman, Ex P11, [32](a)-(c), [45]). Mr Boros responds by reference to the accounts function in the Pages Group and an assertion that all PEH’s records since 2015 “are in EXO [an accounting software] and have been available all along”, although he has not sought to tender those records in the proceedings. I am satisfied that the inference that these financial documents have not been kept is properly drawn and this is also a significant failure to keep true and fair accounts of PEH.

PPI also submits that, when Mr Boros caused PPI’s debt with ANZ to be increased by $1,658,931.43 and the proceeds to be used to reduce the PEH loans with ANZ, the new debt owed to PPI should have been recorded in PEH’s balance sheet, but it is not (Bateman Ex P11, [126]; Schedule 4). There is evidence that debt was previously recognised, but I am satisfied that the present failure to do so is also a significant failure to keep true and fair accounts of PEH.

Turning now to Phire, PPI pleads (5FASC [212]-[213]) that a false financial transaction was recorded in the books of Phire and repeats the allegations as to the transfer of Phire’s business to Sales, as pleaded in paragraphs 162-163 and 184-191 of the Fifth Further Amended Statement of Claim which I have addressed above. PPI also submits that the sale of the “triple storey structure” was also not properly recorded or processed in Phire’s accounts (Bateman Ex P11, [8k], [273]-[279], Appendix 4, [463]-[476]. Mr Boros responds by contending that this transaction was “covered appropriately” and that explanations and clarifications are offered in his affidavits. I have addressed this issue above and I am also satisfied that this is a significant failure to keep true and fair accounts in Phire.

PPI also submits that two inconsistent audited financial statements were prepared for Phire for the 2014 year and that this suggested alteration of the original to support underreported income for tax purposes (Ex J1, 5331-5350, 5755-5763, 6387-6404; T264-T280). Mr Boros denied that any inconsistency was directed to achieve a tax result and, in his response to PPI’s Revised Schedule, denied that there were two sets of signed accounts notwithstanding that two inconsistent versions of the signed accounts were tendered. The inconsistency in these financial statements is sufficient to amount to a significant failure to keep true and fair accounts and it is not necessary for me to reach the serious additional finding that it was directed to underreporting of Phire’s income to the Australian Taxation Office.

PPI also submits that Phire’s audited financial statements for the years 2007 to 2015 are inconsistent with the tax returns produced, with an apparent under-reporting of income for tax purpose of $13,264,897 and, if the tax returns were not lodged there has been a material failure to prepare required financial records (Bateman, Ex P11, [542]-[545]). Ms Bateman there refers to significant differences between the tax returns produced in respect of Phire, in the form produced to her which she recognises may not have been lodged with the Australian Taxation Office, and the audited financial statements for Phire. Ms Bateman expresses the opinion, which I accept, that this difference is not due to the treatment of WIP, as suggested in Mr Boros’ affidavit evidence and submissions. These matters also amount to a substantial failure to keep true and fair financial records in respect of Phire.

PPI submits that the general ledgers of Phire recording material balances, including ‘goodwill’ of $971,362 are incorrect (Bateman, Ex P10, [49], [78]-[79], [181]). Ms Bateman’s evidence in this regard appears to be directed to the position in Sales’ rather than Phire’s general ledgers and I do not reach this finding. PPI also submits that Phire’s financial statements for 2015 and Sales’ financial statements for 2016 and 2017 are inaccurate because of a practice of charging Sales for Phire’s expenses, causing incorrect tax deductions by Sales to which Phire was entitled. PPI also points out that no accounting or financial data was prepared for the period 1 July 2015 to 8 September 2015, when Phire went into voluntary administration (Bateman, Ex P10, 8(h), [81]). PPI also points out that, in the 2015 financial statements of Phire and PEH, there are inconsistent entries for the loan from Phire to PEH of $4,269,085 which is not recorded in the financial statements of PEH, so that one or both are incorrect and the proper financial position of at least one of them cannot be derived (Bateman, Ex P11, [540]-[541]). These are also significant failures to keep true and fair accounts in Phire. PPI submits that no general ledger or trial balance for Phire for the periods through to the voluntary administration in September 2015 or beyond have been produced; no general journals and associated work papers for Phire that support the financial statements have been produced; no working papers including reconciliations that explain the financial accounts for the years 2010 to date have been produced (Bateman, Ex P11, [63(a)-(c)]); and it should be inferred that these documents have not been kept. I am also satisfied that that inference should be drawn.

I note, for completeness, that Mr Boros makes several comments as to the activities of Phire and the accounting process of the Pages Group in his response to PPI’s Revised Schedule, which are not cross-referenced to, his affidavit evidence or the documents tendered. I have taken those comments into account as submissions in reaching the findings set out above.

PPI pleads (5FASC [203]) that, from 21 November 2014 onwards, Sales failed to keep the written financial records required by s 286 of the Act, particularised as the records listed in paragraph 56 of Ms Bateman’s second report and Appendix 7 of her report dated 4 June 2020. PPI also pleads (5FASC [209]-[211] that a third false financial transaction was recorded in the books of Sales, namely that:

In PPI’s Revised Summary, it contends that ledgers purporting to record transactions underlying a loan $4,436,879 by Sales to PPI are false, and an entry for a payment of the $320,000 to the Phire DOCA which was not an obligation of Sales and a “rent in advance” account did not meet applicable accounting standards (Bateman Ex P10, [103]-[104]; Bateman Ex P11, [27]-[29], [109], [198],[306]-[315], [348]-[349]; Ex J1, 7296-7300; T331-354). Ms Bateman also notes that the entry for “rent in advance” is not supported by documentation and notes its relationship with Mr Boros’ reliance on the suggested loans to Mrs Page, which I address below.

Mr Boros’ evidence (Boros 17.4.20 [185]) as to the entry described as “rent in advance” is that:

Mr Boros’ evidence (Boros [187]), by way of submission, is also that the amount of $4,436,378.99 referred to in Sales’ general ledger “approximates” the amount of $4,430,879.65 referred to in the summary at page 1 of the folder he prepared documenting payments to Mrs Page, although those amounts are plainly not coincident. I am not able to determine, given the deficiencies in the evidence, whether the relevant amounts or the part of them which were plainly paid to Mrs Page, had the character of dividends, advance payments against dividends, shareholder loans or were paid without any determination of their proper character. In any event, Mr Boros’ evidence implicitly acknowledges, and it is plain enough, that those payments did not constitute “rent in advance” and that establishes another significant failure to keep true and fair financial records in respect of Sales.

Mr Boros’ evidence is that, after Pages Group’s external accountant pointed out that the amount was recorded as owing to Sales, and that the relevant payments were allegedly also made by PEH (a matter which amounted to a further failure to maintain true and fair accounts in Sales), this entry was reversed and amounts of $1,705,000 and $2,731,878.99 were then added to PPI’s trading account with each of Sales and PEH respectively (Boros [189]). Mr Boros does not explain how those amounts were derived. Mr Boros’ evidence is also that the “mechanics” of those matters were left to Pages Group’s external accountant and the account staff (Boros [190]); given the size of the amounts, and the way in which they were treated, that involves a significant failure in respect of the maintenance of those accounts. Mr Boros’ evidence in cross-examination that the amount of $4,436,878 related to “top up” payments and was “never asserted” as a loan to PPI, and that Mr Gulwadi, the Pages Group’s accountant, had pointed out that the entry for a loan in that amount in the financial accounts was not appropriate (T342). It was put to Mr Boros in cross-examination that the figure of $4,436,878 was debited as though it was a loan owed by PPI, on the day after these proceedings were commenced, in anticipation that it “might be of use” in the litigation; Mr Boros responded that the accounting of advances or top-up payments made to PPI or Mrs Page had started earlier, about the time of his removal, and those payments were “logged in” in relation to some of the allegations made by PPI (T347). Mr Boros denied that the accounts were created to “invent” an obligation on PPI, which could be used against it in the proceedings (T350). Mr Boros denied (T353) that the amount of $4,436,878 had been put as a loan owed by PPI, and contended that the amount paid in advance was $2.7 million (T353).

In his reply to PPI’s Revised Schedule, Mr Boros blandly submits that Sales’ 2017 financial accounts do not record a loan to PPI, but does not address the several transactions to which I have referred above. I am satisfied that, irrespective of the status of payments made to PPI and Mrs Page, the record of these transactions does not provide a true and fair view of the transaction.

PPI also pleads (5FASC [214]-[215]) the use of Sales’ assets to pay a debt of Mr Boros in respect of the administration of Phire, to which I have referred above. It is not apparent that these amounts give rise to a separate contravention in respect of Phire’s accounts, beyond the issues arising from the substantive transactions. In PPI’s Revised Schedule, it contends that the financial statements for Sales for 2019 record a “capital reserve” account of $1,683,647 which is unsupported by any records and is not a proper capital reserve account (Bateman, Ex P10, [80]; Bateman, Ex P11, [112]; Ex J1, 7299) and there is a further entry in Sales’ “capital reserve” account of $1,705,000 which is not reflected in the financial statements of Sales and is an incorrect accounting entry (Bateman, Ex P11, [115]). Mr Boros speculates, in his reply to PPI’s Revised Schedule, that the “[c]apital reserve account may have come up because of [Sales] taking over all the assets and liabilities of Phire in 2016 and that would be the difference between them which had to be in the nature of capital“ and submits that “[t]here is no entry left of $1,705,000 in the accounts – that would have been reversed.” It is not necessary to address this issue given the conclusions that I reach on other grounds.

PPI also submits, and I accept, that there are different versions of Sales’ financial statements for the years 2017-2019 which are inconsistent and from which it is impossible to derive a true and fair view of its financial position (Bateman, Ex P10, [46]-[50], [76]-[77], Schedules 7 and 8), and Mr Boros was cross-examined as to inconsistencies between a profit recorded in the 2017 financial statement for Sales and a loss recorded in the tax return for Sales for 2017 (T306). PPI also submits that Phire’s financial statements for 2015 and Sales’ financial statements for 2016 and 2017 are inaccurate because of a practice of charging Sales for the expenses of Phire, causing incorrect tax deductions by Sales to which Phire was entitled. That issue also amounts to a failure to maintain true and fair accounts. PPI also addresses several transactions between Sales and Austructures which I will address below in respect of the claim concerning Austructures.

PPI submits that no general journals and associated work papers for Sales that support the financial statements have ever been produced; no working papers including reconciliations that explain the financial accounts for the years 2010 to date have been produced (Bateman, Ex P11, [100(a)-(b)]) and it should be inferred that they have not been kept. I draw that inference. While this criticism can only apply to the period after Sales was incorporated in 2015, it also amounts to a serious failure to maintain true and fair accounts for the period since 2015.

In his reply to PPI’s Revised Schedule, Mr Boros contends, again without reference to evidence, that:

In closing submissions, PPI submits that:

In a separate judgment (Re Pages Equipment Holdings Pty Ltd (admin apptd) [2020] NSWSC 959) I held that provisional liquidators should be appointed to each of PEH, Phire and Sales. I am satisfied that several matters which I have addressed above, on which PPI relies to support the winding up orders sought, amount to oppression of PPI and also support a winding up of the companies on the just and equitable ground, although not all of those matters amounted to a breach of any duty owed by Mr Boros to PPI (as distinct from other companies) or supported a claim for compensation by PPI (as distinct from other companies) against him. Those matters are PPI’s claims in respect of the additional borrowing by PPI for the benefit of PEH; the transfer of Phire’s business to Sales in 2015, to the detriment of at least the Australian Taxation Office, and the issue of a smaller shareholding interest in Sales to PPI, so far as that transaction involved the conflict of duty and interest on the part of Mr Boros to which I referred above; and the transfer of PEH’s shares in HHA to Mrs Boros, so far as it diluted PPI’s interest in that company and its economic interest in Austructures, to which assets were subsequently transferred from the Pages Group; and the failure to maintain true and fair financial records for the companies, which I have addressed above. The use of Sales’ funds to pay an amount payable by Mr Boros personally under the DOCA concerning Phire and the dealings between PEH and Phire in respect of the triple storey structure, which at least caused detriment to Phire’s creditors, by creating a competing claim by PEH in its voluntary administration, also support that relief.

I am also satisfied that the deficiencies in the financial records of PEH, Phire and Sales to which I have referred above, which involve repeated failures to maintain true and fair accounts in respect of substantial transactions, are such that it is just and equitable that each of those companies be wound up. I am satisfied that these matters establish a lack of confidence in the conduct and management of each company’s affairs and a significant failure to comply with the requirements of the Corporations Act with respect to financial records and reports, such that that order should be made.

Paragraphs 217-218 of the Fifth Further Amended Statement of Claim plead a failure to ensure PPI received dividends due to it from Phire, as follows:

PPI relies on paragraphs 8(e), 24-26, and 490-495 of Ms Bateman’s report dated 4 June 2020 (Ex 11) in respect of this issue. Paragraph 8(e) identifies a shortfall of dividend payments to PPI totalling $1,076,104 in the years 2007-2013, and notes that Phire’s financial records treat those dividends as paid, although PPI’s financial statements do not record it receiving them. This matter is further addressed in paragraphs 24-26 and 490-495 of that report, which compare the amount of dividends recorded as received in PPI’s financial statements and the amount of dividends recorded as paid in Phire’s financial statements. Ms Bateman describes the dividends as “interim” dividends, although Mr Boros’ position in closing submissions was that, if final dividends were not paid due to Phire’s financial position, this would have affected all shareholders, and they would have been notified at the time. Neither party tendered any board resolution approving the payment of dividends at any time.

In cross-examination on another topic, Mr Boros at one point appeared to suggest that dividends recorded in the companies’ accounts “would not necessarily be moving forward and the proposal for the payment of dividends would be taken out because [of] whatever issues the company had” (T227). As Mr White points out in closing submissions, Mr Boros accepted in cross-examination that PPI was entitled to 50% of the dividends paid by Phire and conceded a duty owed to PPI in this regard, as follows:

In his closing submissions, Mr Boros responded to this claim, without addressing the substance of Ms Bateman’s evidence, by submitting that:

There is plainly an inconsistency between the accounts of Phire and PPI as to the amount of dividends paid by Phire and received by PPI. However, I am not satisfied that I can properly draw the factual inference, which Ms Bateman draws, that those dividends were in fact paid but to persons not entitled to them, as distinct from the more probable inference that there is an error in Phire’s or PPI’s accounts or both, and that either Phire’s accounts record the payment of dividends which were not in fact paid, or PPI’s accounts do not record the payment of dividends which were in fact paid. The inference of inaccuracies in the accounts, rather than non-payment in fact, is reinforced by the fact that Ms Bateman refers not only to a suggested under-payment of dividends to PPI of $230,837 in 2011 but also to a suggested overpayment of dividends to PPI in 2013 of $270,380. In any event, this claim ultimately relies on Phire’s and PEH’s accounts to establish that PPI had not received the relevant payments, and the unreliability of those accounts during the relevant period has been comprehensively demonstrated. I am not satisfied this claim is established.

PPI pleads (5FASC [225]-[237]) a failure to ensure that Austructures kept proper financial records and also pleads certain transactions involving Austructures, which are relied on to support a claim for oppression in respect of Austructures.

First, PPI pleads (5FASC [226]-[228]) that, as at 30 June 2015, PEH’s balance sheet recorded a loan from PEH to Austructures of $506,646.50; on 7 July 2015, the PEH general ledgers record that the loan to Austructures was increased by $300,000 to $806,646.50; and the loan of $806,646.50 from PEH to Austructures was not recorded in the financial records of Austructures as required by s 286 of the Act. Ms Bateman’s report dated 8 July 2020 refers to this loan to Austructures, increasing from $506,646.50 to $806,646.50 between 30 June 2015 and 7 July 2015, before that loan was written off in the books of PEH on 31 December 2015, and to the absence of reference to that loan in Austructures’ financial records of Austructures.

Second, PPI pleads (5FASC [229]-[232]) that, between 24 July 2015 and 23 January 2020, Austructures made payments to Sales totalling a net amount of $539,861.19 (relying on paragraph 521 of Ms Bateman’s expert report dated 4 June 2020 and page 5 of her expert report dated 8 July 2020); in 2016, HHA provided a loan to Austructures of $100,000; and those payments were also not recorded in the written financial records of Austructures as required by s 286 of the Act. PPI pleads (5FASC (233]) that Austructures has failed to produce any board resolutions or loan agreements recording the terms or purpose of the loans from PEH to it, or any evidence of the application of the loan moneys, or any explanation as to why the loans from PEH were written off.

Third, PPI pleads (5FASC ([234]-[236]) that, between January and March 2020, assets with a total value of $473,965 were transferred from an undisclosed source on to the balance sheet of Austructures, together with accumulated depreciation of $376,885; that at least some of the assets transferred to the ownership of Austructures are items of equipment and vehicles owned by PEH and used in the Pages event hire business, which have been placed into the possession and purported ownership of Austructures without an arms-length agreement to assign the assets for proper consideration; and that written financial records have not been kept that explain the asset and accumulated depreciation transfers recorded on Austructures’ balance sheet as required by s 286 of the Act. Ms Bateman’s report dated 8 July 2020 identifies an increase in assets of Austructures between January and March 2020, which she infers reflect assets transferred into Austructures from a related entity at cost less accumulated depreciation.

PPI pleads that the conduct of Austructures’ affairs was contrary to the interest of the members of Austructures as a whole and oppressive to, and unfairly prejudicial to, PPI’s interests as a member of Austructures. PPI also seeks a declaration that the affairs of Austructures have been and are being conducted in a manner that is oppressive or unfairly prejudicial to it, or unfairly discriminatory against it, or contrary to the interests of the members as a whole within the meaning of s 232 of the Act and/or in a manner that is unfair and unjust to other members, including PPI, within the meaning of s 461(1)(e) and (k) of the Corporations Act (5FASC, Relief, [12EA]).

Turning now to the detail of Ms Bateman’s evidence, paragraphs 63(c) and 184-185 of her report dated 30 August 2019 (Ex P10) refer to differences in the treatment of loans to related parties in differing financial records for PEH as at 30 June 2015 and to the writing off of an inter-company loan of $806,646.50 between PEH and Austructures on 31 December 2015. In her report dated 4 June 2020, Ms Bateman expresses the view ([518]) that that loan was the result of cash transactions on the Sales and PEH bank accounts, rather than a transfer of assets as Mr Boros claimed in his evidence. Ms Bateman again refers ([201]) to the writing off of that on 31 December 2015, to the lack of work papers as to why those loans were written off, and to her conclusion (the basis of which she does not, regrettably, identify) that Austructures had since repaid much of the debt to Sales rather than PEH ([203]).

In her report dated 4 June 2020, Ms Bateman also refers ([299]-[305]) to a suggested loan increase of $300,000 by PEH to Austructures in July 2015, which she notes was then written off six months later. Ms Bateman also notes continuing transfers of funds from Sales to Austructures, and from Austructures to Sales, after the writing off of the loan on 31 December 2015 ([520]) and concludes that, as at January 2020, Austructures owed PEH or Sales approximately $266,785, and that the writing off of that loan in PEH’s accounts was incorrect ([522]). Ms Bateman again addresses these issues in paragraphs 27-31 and 33 of her report dated 8 July 2020 (Ex P12) which expresses the view that the loan by PEH to Austructures, and the continuing amount owed by Austructures to PEH or Sales, was not included in Austructures’ financial statements.

Mr Boros’ admits (Defence [27O]) that on or about 1 July 2020 (I interpolate, two days before Mr Boros and Mr Thatcher resolved to place PEH, Sales and Phire into voluntary administration), Thatcher Group transferred its 25% shareholding in Austructures to Mr Boros’ daughter, Ms Palmer. Mr White submits, and I accept, that that transfer is consistent with a plan by Mr Boros and Mr Thatcher to divide the Pages Group business between them, with the Boros family taking the business placed within Austructures going forward, and it seems to me to be a fair inference that the contemporaneous appointment of administrators to the several companies was a step in that plan.

Mr Boros was cross-examined as to dealings with Austructures (T389ff), as to the circumstances in which his wife became the sole shareholder in HHA and thereby acquired an interest in Austructures; and as to the transfer of assets from other Pages Group companies to Austructures in early 2020, and his evidence was that that reflected a business plan established over three years ago, which he claimed included the transfer of assets from Austructures to PEH (T391). That business plan is not in evidence. He accepted in cross-examination (T393) that he and Mr Thatcher had agreed, without reference to PPI, to “separate” the Pages Group’s event hire business and that Mr Boros was “to move all costs associated with [him] and a number of key staff and costs out of Pages Sales” and that Mr Boros “would continue to work in a different field to Pages Sales, being environmental”, utilising equipment that he claimed was no longer viable within the event industry. Mr Boros was also cross-examined as to the writing off of earlier liabilities of Austructures to companies within the Pages Group (T394ff) and he also accepted in cross-examination that, until other companies within the Pages Group were placed in voluntary administration, Austructures was operating in and sharing facilities with the Pages Group (T396) and was obtaining services and labour from Sales so as to conduct its operations (T400). Mr Boros denied that an amount of $400,000 had been put aside from the Pages event hire business to fund Austructures, other than as recorded in Austructures’ accounts (T401).

On the last day of his cross-examination, Mr Boros produced a document that appears to be an accounting record, which had not previously been disclosed, which referred to the transfer of assets to Austructures. Mr Boros led no evidence that the transfer of those assets had been authorised by any board decision of any transferring company, including PEH or that any independent assessment of the value of the assets was obtained before they were transferred to Austructures; he did not produce any documented agreement for the transfer of those assets or requiring payment for them; Austructures took that transfer shortly before Mr Boros placed PEH in voluntary administration, in an echo of earlier transactions involving the transfer of assets from Phire to Sales; and Mr Boros led no evidence that Austructures paid any amount due to the transferring entities, including PEH, in respect of the transfer of those assets.

The parties did not read other affidavit evidence that had been relied on in an earlier, unsuccessful, application by PPI to appoint a provisional liquidator to Austructures and I need not address that evidence.

In its opening submissions, PPI submits that:

In closing submissions, PPI submits that:

PPI also submits that:

Mr Boros submits, in response to this claim, that Austructures is a solvent operating company with employees and ongoing economic input. I understand that to be common ground, although evidence to establish it was not led in these proceedings. Mr Boros also submits that the appointment of a liquidator to Austructures would devalue the business and its assets; that PPI is an equal minority shareholder with two other corporate entities and one individual, and the three other shareholders (which, I interpolate, are all associated with Mr Boros) should be seen as separate and each one as having its own rights. Mr Boros also offers to maintain the undertakings given in previous proceedings in which PPI sought the appointment of a provisional liquidator to Austructures and suggests that an appropriately qualified accounting firm should value Austructures and PPI’s shareholding “at which time an offer to buy the interest of PPI at market value will be put forward”; and he also submits that Austructures is not a large business and would seek a smaller, more cost effective firm to carry out the valuation, and that the cost of that valuation should be borne equally by the four shareholders in Austructures. Mr Boros also properly recognises that any purchase of PPI’s interest in Austructures would not affect any claims that PEH or Sales or their liquidators may have against Austructures.

I have referred above to the circumstances in which the Court may make a winding up order on the basis of oppression or on the just and equitable grounds. I am satisfied that matters that I have noted above in respect of Austructures’ financial records also amount to a material failure to maintain true and fair financial records in respect of that company. That failure, combined with the recent transfer of assets from other companies within the Pages Group to Austructures without any documentation for the transactions or any independent assessment of value or evidence of payment, is sufficient to establish that the conduct of Austructures’ affairs is contrary to the interest of the members of Austructures as a whole and oppressive to, and unfairly prejudicial to, PPI’s interests as a member of Austructures. It also seems to me that these matters are contrary to the public interest in the proper administration of companies and support a winding up of Austructures on the just and equitable ground. I will order the appointment of the same liquidators to Austructures as to PEH, Phire and Sales, where there seems to me to be a real advantage in a single appointment to all group companies given the uncertainties as to the accuracy of their financial records and the ownership of assets which arise from the matters I have addressed above.

I raised, in the course of oral submissions, and the parties addressed, whether I should stay that order for 21 days, on the basis of undertakings given by Mr Boros in the earlier proceedings in respect of the conduct of Austructures’ business, and both parties supported the making of such an order if a winding up order was to be made, to allow the parties to seek to agree a buy-out of PPI’s or other shareholders’ shares, if they wished. I have ultimately concluded that I should not stay that winding up order, which is substantially founded in public interest considerations, including a failure to maintain true and fair accounts in Austructures. Even if Mr Boros and PPI could now negotiate arrangements for a buy-out, where they have already had a long period to do so and have not done so, the evidence does not provide any reason to think that Austructures’ financial records would be properly maintained by Mr Boros if it was left in his control, and there is also no reason to think that Mr Page has sufficient knowledge of Austructures’ business or the business acumen to acquire the shares of Mr Boros and his family members and assume control of that company. It would, of course, be open to Austructures’ contributories to later apply to terminate the winding up under s 482 of the Corporations Act if they can establish its solvency and that the issues as to its management which have brought about its winding up have been addressed.

PPI alternatively sought an order under s 233(b) of the Act appointing a receiver and manager to Austructures, to sell its business, assets and properties, and an order that Austructures be wound up following that sale (5FASC [12F]-[12G]). It is not necessary to make such an order where a liquidator will be appointed to Austructures.

PPI seeks a declaration under s 1317E of the Corporations Act that Mr Boros has contravened ss 181, 182 and/or 183 of the Act (5FASC, Relief, [1]). That section provides that, if the Court is satisfied that a person has contravened a civil penalty provision, the Court must make a declaration of contravention. Subsection 1317E(2) requires that that declaration specify the conduct that constituted the contravention. No declaration of a contravention of those provisions of the Act can be made under that section, since the balance of authority indicates that that section only applies to proceedings in which relief is sought by the Australian Securities and Investments Commission: One.Tel Ltd (in liq) v Rich [2005] NSWSC 226; (2005) 190 FLR 443; 53 ACSR 623 at [69]–[70]; Primacy Underwriting Agency Pty Ltd v Kilborn [2007] NSWSC 158; (2007) 25 ACLC 160 at [6]–[8].

PPI also seeks an order that Mr Boros pay compensation to it under s 1317H of the Corporations Act (5FASC, Relief, [2]), which permits the Court to order a person to compensate a corporation for damage suffered by the corporation if the person has contravened a corporation civil penalty provision in relation to the corporation, and damage resulted from the contravention. Section 1317J(2) of the Act provides that, relevantly, the corporation may apply for a compensation order. PPI has standing to seek such an order, but only in respect of a breach of a statutory duty owed to PPI and not in relation to a breach of a statutory duty owed to any other entity. In the alternative, PPI seeks an order that Mr Boros pay equitable damages to it for breach of a fiduciary duty owed to it (5FASC, Relief, [3]).

I have found that Mr Boros breached his fiduciary duty by reason of a conflict of interest in respect of the entry into the Second Lease, but no loss and no profit accruing to PEH or to him has been established by reason of that breach. I have found that Mr Boros is liable to pay compensation to PPI in respect of a contravention of s 180 of the Act, referable to unpaid rent and interest from 4 April 2011 to 12 September 2016. I have found that Mr Boros also breached his statutory duty in respect of the failure to keep true and fair accounts of PPI, but not that the entire cost of Ms Bateman’s work is recoverable by reason of that breach, and PPI should be left to recover its reasonable costs of Ms Bateman’s reports as costs of the proceedings. I have also found that Mr Boros also breached his fiduciary duty by reason of a conflict of interest in respect of the additional borrowing from PPI to pay down amounts owed by PEH and addressed the quantification of its loss above. PPI’s other claims for compensation have not been established.

As I noted above, Mr Boros pleaded claims for relief under ss 1317S and 1318 of the Corporations Act, which should be addressed in respect of his conduct as a whole. The Court has power to grant relief from a contravention of a civil penalty provision under s 1317S of the Act if, in “eligible proceedings” brought against a person, it appears to the Court that that person has or may have contravened a civil penalty provision, but that he or she had acted honestly and, having regard to all the circumstances of the case (including those connected with his or her appointment as an officer of a corporation), the person ought fairly to be excused for the contravention. Section 1318 in turn allows a Court to relieve, relevantly, an officer of a corporation from liability in civil proceedings for negligence, default, breach of duty or breach of trust, if he or she establishes that he or she acted honestly, and that he or she ought fairly to be excused for the negligence, default, breach of duty or breach of trust having regard to all of the circumstances of the case including those connected with his or her appointment.

In Daniels v Anderson (1995) 37 NSWLR 438 at 525, Clarke and Sheller JJA observed that a corresponding section allows the Court:

Matters relevant to relief under these sections include whether the defendant acted honestly; a value judgment whether, having regard to all the circumstances of the case, the defendant ought fairly to be excused for the contravention; and whether, as a matter of discretion, the Court should exercise its power to relieve the defendant from any liability: Australian Securities and Investments Commission v Edwards (No 3) [2006] NSWSC 376; (2006) 57 ACSR 209 at [10]; Australian Securities and Investments Commission v Healey (No 2) [2011] FCA 1003; (2011) 85 ACSR 654 at [83]–[84]; Great Southern Finance Pty Ltd (in liq) v Rhodes above at [60]; Re Swan Services Pty Ltd (in liq) [2016] NSWSC 1724 at [236]-[237]. Whether relief from liability should be granted under these sections depend not only on subjective honesty but also on the degree to which the relevant conduct fell short of the required standard, the seriousness of the contravention and its actual or potential consequences, any element of impropriety such as deception and personal gain and any contrition of the applicant and the need for general deterrence is also relevant: Morley v Australian Securities and Investments Commission (No 2) [2011] NSWCA 110; (2011) 83 ACSR 620 at [44], [49]–[50].

Mr Boros pleaded (Defence [47(f)]) that he should be relieved from liability under s 1317S(2) or 1318 of the Act in respect of the claim that he caused PPI to enter the Second Lease at below market value. I should address that defence for completeness although that claim is not established where it is not established the Second Lease was in fact below market value. I bear in mind in that respect the financial significance of the rent payable under the Second Lease to both PPI and PEH; the fact that there was no urgency limiting the time available to Mr Boros for obtaining information as to the market rent for the premises; there is no suggestion that the cost of obtaining a considered third party advice as to the rent payable would have been substantial; and that such advice would be reasonably available to Mr Boros, had he sought to obtain it. I am also not satisfied that Mr Boros could reasonably believe that the inquiries he claimed to have made as to the market rent for the property were sufficient. I have found that Mr Boros had a conflict between his duty owed to PPI and his interests in respect of PEH in respect of the entry into the Second Lease, and did not make full and fair disclosure of relevant information so as to seek approval of the transaction from PPI’s shareholder. I am not satisfied that Mr Boros should be relieved from liability in respect of his conduct in respect of the Second Lease, having regard to the nature of the conflict involved in the transaction and the serious consequences for PPI of a letting of the premises at below market value, had that liability otherwise been established.

As I noted above, Mr Boros also seeks relief (Defence [64(d)] under s 1317S or s 1318 of the Act in respect of the deficiencies in PPI’s accounts. The extent of the deficiencies in PPI’s financial records and of his failure to address those matters are such that he cannot establish that he ought fairly to be excused for that contravention. Mr Boros also seeks relief under s 1317S or s 1318 of the Act in respect of any non-payment of rent and outgoings under the First Lease. I am not satisfied that Mr Boros ought fairly to be excused from that contravention, having regard to the relevant circumstances and applying the principles to which I referred above. Mr Boros also seeks relief under s 1317S or s 1318 of the Act in respect of the additional borrowing by PPI which was applied to reduce PEH’s borrowings. I again bear in mind the fact that Mr Boros had a material conflict of his duty owed to PPI and his interest in PEH in this transaction; the financial significance of this additional borrowing to PPI and the benefit that PEH obtained by it; and the fact that nothing prevented Mr Boros making fair disclosure of this transaction and his interest in it as a shareholder in PEH or seeking ratification of the transaction or at least informal consent to it from PPI’s shareholder. I am not satisfied that Mr Boros should be relieved from liability in respect of his conduct in respect of this borrowing. It has not been necessary to address several other areas in which Mr Boros seeks such relief.

I am therefore not satisfied that Mr Boros has established the basis for relief under s 1317S or s 1318 of the Act in respect of the relevant contraventions and breaches of fiduciary duties taken separately, still less that he has established the basis for relief when those contraventions and breaches of fiduciary duty are assessed as a whole.

Mr Boros pleads (Defence [238]) a defence under s 85 of the Trustee Act 1925 (NSW) in answer to the claims made against him as an officer of PPI. He does not clearly identify the acts to which he claims that defence applies or the material facts on which he relies to establish it. The gravamen of that defence is that those unidentified acts amounted to a breach of trust by PPI for which it is or may be liable; PPI, through Mr Boros’ act or acts, acted honestly and reasonably, and ought fairly be excused for the breach of trust; the Court ought to relieve PPI wholly or partly from its personal liability for the breach pursuant to s 85 of the Trustee Act; and liability would not then be imposed on Boros. That defence cannot succeed, because no claim for breach of trust is made or established against PPI, as to which any relief is required; and, to the extent that I have found Mr Boros to have breached his duties, he did not act reasonably in that regard; and this defence also cannot succeed where Mr Boros’ claims for relief under ss 1317S and 1318 of the Corporations Act fail, for the reasons noted above.

By paragraphs 239-240 of his Defence, Mr Boros purportedly reserved an entitlement to rely on provisions of the Trust Deed for the Pages Family Discretionary Trust and PPI’s constitution. Mr Boros made no further submission in that respect and no basis for relief under any such provision is established.

I should also address a more substantial defence raised by Mr Boros, repeated throughout his Defence to the Fourth Further Amended Statement of Claim, referable to payments made by companies in the Pages Group to PPI and Mrs Page. This issue overlaps with PPI’s claim in respect of an accounting entry in respect of the loan of $4,436,879 recorded in Sales’ financial records which I have addressed above. In paragraph 66B of his Defence to the Fourth Further Amended Statement of Claim, Mr Boros now pleads, in answer to PPI’s claim in respect of the First Lease, that:

Mr Boros also relies on this aspect of the defence in paragraph 47 of his Defence, in respect of the claim in respect of the Second Lease; and in paragraph 140 of his Defence, in respect of a loan by Sales to PPI recorded in the financial statement for Sales for the year ended 30 June 2016 in the amount of $4,436,879.

Mr Boros also now pleads an overlapping defence in paragraph 241 of his Defence, that:

Mr Boros addressed these matters in his first affidavit dated 30 January 2018 and referred to PPI Payments and Tess Payments totalling $2,496,140, made up of $1,358,366 in PPI Payments listed in a spreadsheet, $349,774 in payments into Mrs Page’s bank accounts for living expenses and home loan repayments in the period 2011 to 2016, and a further estimated amount of $788,000 in weekly payments of $2000 to Mrs Page between 2003 and 2011. Mr Boros there led evidence (admitted with a limiting order under s 136 of the Evidence Act as submission only) that Phire and Sales on behalf of PEH paid further amounts “by way of loan” to PPI. He exhibited a spreadsheet setting out those payments to his affidavit, which he said was based upon copies of bank statements. That spreadsheet was not admissible as a business record and was admitted with a limiting order under s 136 of the Evidence Act as submission only, and his evidence as to its truth was also admitted with a limiting order as to his understanding only. Mr Boros also referred (Boros 30.1.18 [50]) to bank statements produced by ANZ for an account of Mrs Page, which recorded weekly deposits of $1,000 from Phire and subsequently from PPI to Mrs Page, and he also referred to documents produced by St George recording payments to Mrs Page, and Mr Boros tendered bank statements recording payments to Mrs Page as part of Exhibit J1. Mr Boros also referred to additional payments made to Mrs Page, in evidence again admitted with a limiting order under s 136 of the Evidence Act as his understanding only and not proof of the fact, which he contended exceeded any underpayment of rent. There appears to be no contest that payments were made to Mrs Page.

Mr Boros again referred to “Top-Up Payments”(as defined) and “Direct Tess Payments” (as defined) in his affidavit dated 17 April 2020 ([173ff]), and referred to a folder of documents relating to those payments, and (as I noted above) bank statements recording payments to Mrs Page were tendered as part of Ex J1, and Mr Boros again referred to the summary of the amounts which he claimed were paid for and on behalf of PPI by Sales, PEH and Phire, totalling $4,430,879.65 (admitted with a limiting order under s 136 of the Evidence Act as submission only, as I noted above). Mr Boros’ evidence was that a discussion took place with Mrs Page, in about 2009 or 2010, as to whether these payments would be dividends or a loan; that Mrs Page then said she did not have the capacity to pay taxes on the money and asked whether the tax could be deferred; and that “we instead allowed them to bank up as loan”. I do not accept Mr Boros’ evidence as to these matters, having regard to the findings which I have reached as to his credit, and it does not support a treatment of those amounts as a loan by any of the companies to PPI. As Mr White points out, such a conversation would in any event not have affected earlier payments.

Mr Boros was cross-examined as to the fact that PPI’s financial statements did not record liabilities to Phire or PEH in 2011 or 2013, and maintained in cross-examination that the payments made to PPI and Mrs Page were not appropriately allocated by the Pages Group’s accounts department, which were recorded in bank statements of the companies (T244). Mr Boros’ evidence in cross-examination was that this issue first arose in a meeting with PPI’s solicitors, where Mr Boros was explaining the benefits that Mrs Page and PPI were receiving; he then asked the accounts office to start identifying the “loans” and then “discovered the problems or the payments” (T245). Mr Boros’ evidence in cross-examination was also that the “loans” to PPI and Mrs Page which have been made since 2003 were not recorded in financial records for earlier years because they had not “crystallised” (T253). I do not accept that contention and, had the loans existed in earlier years, their nature was such that they would have had to be recorded in the companies’ financial records. Mr Boros was also cross-examined as to the different figures attributed to the payments made to Mrs Page at different times (T318ff).

In closing submissions, Mr White summarises the history of this defence. In a letter dated 30 September 2016 (Ex J1, 6571), after PPI had sought books and records from Mr Boros, the Defendants’ solicitors at the time identified a claim that “exceeds a million dollars” in this regard. The defence reflecting that claim was pleaded in December 2019, when the Defendants (including Mr Boros) responded to PPI’s claim against PEH and Mr Boros for unpaid rent and outgoings under the First Lease by raising a ‘set-off’ for payments allegedly made by PEH to PPI or for its benefit to ANZ totalling $1,358,366, pursuant to an alleged “financial arrangement” (defined as the “PPI Payments”), and also contended that Phire (then known as Pages Hire Centre) had made payments to or on behalf of PPI for its expenses relating to the Punchbowl property and the living expenses of Mrs Page, which were claimed as a ‘set-off’ against PPI’s claim against PEH and Mr Boros for the increase in the ANZ debt in March 2016 (“Tess Payments”). The Defendants also then pleaded that the $4,436,879 loan to PPI recorded in Sales’ financial statements for 2016 reflected the PPI Payments and the Tess Payments, and that the subsequent entry in PEH’s financial statements for 2017 of a loan to PPI of $2,731,879 was PEH’s share of the loan $4,436,879, less the amount of $1,658,931 that Mr Boros had caused PPI to borrow from ANZ in March 2016 as applied to pay out PEH’s debt to ANZ as noted above.

In closing submissions, Mr White also pointed to substantial difficulties with the accounting entries supporting the figure of $4,436,879 recorded in Sales’ ‘Goodwill’ ledger, as derived from matters which do not appear to have any connection with payments to PPI and Mrs Page, namely a netting off of Phire’s debtors and creditors of approximately $1.4 million; the $320,000 payment made by Sales on behalf of Mr Boros as a contribution under the Phire DOCA in September 2015; the three loans totalling $2,212,459 owed by related companies to PEH which were written off in its ledgers as at 31 December 2015 and transferred to Sales; and an amount of $2,183,777 from a ‘Capital Reserve’ ledger (to which I have referred above), which was transferred to the ‘Rent in Advance’ ledger (to which I also referred above) and then PPI’s loan ledger on 30 November 2016, the day after these proceedings were commenced (Ex J1, 7296-7300; T336-353). Mr Boros claims that these figures were approved by Mr Gulwadi, the external accountant for the Pages Group, or by Romanis Cant, which both provided accounting advice to the Pages Group and acted as voluntary administrators of Phire. That claim was not supported by contemporaneous documents and, as I noted above, Mr Boros did not lead evidence from Mr Gulwadi or Mr Cant.

I am not persuaded that the payments relied on for this claim had the character of a loan to Mrs Page as Mr Boros contends, or that Mrs Page or PPI were under any obligation to repay those payments, which could be set off against any liability of PEH or any consequential liability of Mr Boros. As I noted above, I was not satisfied in PPI’s case that this amount, or at least some part of it, was not a liability of PPI, because significant funds were paid by PEH and Sales to Mrs Page, and the evidence does not establish whether those funds were paid as dividends, or an advance on dividends, or shareholder loans or, as may be most likely, without any adequate consideration of the nature of the payments. I am equally not satisfied in Mr Boros’ case that this amount, or any part of it, is a liability of PPI for the same reasons. The deficiencies in the evidence, the adverse findings I have made as to Mr Boros’ credit, Mr Page’s lack of knowledge of the companies’ affairs and the lack of accurate financial records in respect of the companies means that it is now not possible to reach a finding as to the true position as to these payments.

Returning to Mr Boros’ pleaded defence, I will assume, without deciding, that the matters pleaded in paragraphs 241(a)-(c) are established; the matter pleaded in paragraph (d) is not established as a matter of fact; and those paragraphs do not establish a defence unless they establish any basis to impugn PPI’s right to recover loss which is otherwise recoverable against Mr Boros. The matter pleaded in paragraph (e) could potentially establish a defence by way of set-off, but is not established. The common understanding or convention pleaded in subparagraph 241(f)(i) is not established and the balance of that paragraph does not arise. The basis for any obligation to account as pleaded in paragraph 240(g) is not established, since there is nothing inequitable in PPI or Mrs Page receiving benefits from PEH, which are not shown to be in the nature of a loan, and also receiving compensation for breach of duty by Mr Boros owed to PPI. The claim for set-off pleaded in paragraph 240(h) is not established because its basis is not established.

I am therefore satisfied that PPI has established aspects of its case against Mr Boros, and that PEH, Sales, Phire and Austructures should each be wound up by the Court.

PPI sought an order for costs and interest on costs under s 101(4) of the Civil Procedure Act 2005 (NSW) from the date that the costs concerned were paid by it. PPI has been successful in part and there should at least be an order that Mr Boros pay a portion of its costs of the proceedings. My preliminary view is that Mr Boros should not be ordered to pay all of PPI’s costs of the proceedings, where PPI has pursued several claims that were not likely to succeed as a matter of law; several claims that could recover no more than, at best, Ms Bateman’s costs which were likely to be recoverable as costs of the proceedings in any event; and other claims for which it concedes it could establish no loss. It seems to me that the case would have been significantly shorter had PPI exercised greater rigour in determining which claims should have been pursued. I will hear the parties in that regard.

Accordingly, I make the following orders: