FEDERAL COURT OF AUSTRALIA

Ample Source International Limited v Bonython Metals Group Pty Limited; In the Matter of Bonython Metals Group Pty Limited (No 6) [2011] FCA 1484

IN THE MATTER OF BONYTHON METALS GROUP PTY LIMITED (ACN 141 257 294)

THE COURT ORDERS THAT:

1.    The plaintiff file by 8 February 2012 short minutes of order giving effect to these reasons, including in respect of the interlocutory applications and also including which of the defendants should pay the costs of the plaintiff in the substantive proceedings. If the defendants resist the orders filed by the plaintiff they are to file competing short minutes by 15 February 2012.

2.    The proceedings be listed before me for the making of final orders at 9.30 am on 22 February 2012.

3.    The parties have liberty to apply on three days written notice.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE MATTER OF BONYTHON METALS GROUP PTY LIMITED (ACN 141 257 294)

REASONS FOR JUDGMENT

Introduction

1    The major issue in this proceeding is whether the conduct of the affairs of Bonython Metals Group Pty Limited ("Bonython Metals") was oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member within the meaning of s 232 of the Corporations Act 2001 (Cth) ("Corporations Act"), and, if so, what order the Court should make.

2     The relevant part of s 232 of the Corporations Act is as follows:

232    The Court may make an order under section 233 if:

(a)    the conduct of a company's affairs; or

(b)    . . . ; or

(c)    . . .

is either:

(d)    . . . ; or

(e)    oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity.

3    The relevant member of Bonython Metals was the plaintiff, Ample Source International Limited ("Ample Source").

4    Mr Hillam and his de facto wife Ms Teeranukul each owned 32,000 shares in Bonython Metals. Mr Hillam was the Chief Executive Officer of Bonython Metals.

5    Throughout the relevant period, which began in April 2010 when Ample Source put $16.5 million into Bonython Metals and continued up to the dates for final hearing beginning in July 2011, Mr Hillam and Ms Teeranukul were the majority shareholders in Bonython Metals. Schedule 2 of the shareholders agreement dated 20 April 2010 referred to the holders of the shares in Bonython Metals being Mr Hillam (32,000 ordinary shares), Ms Teeranukul (32,000 ordinary shares) Ample Source (25,000 ordinary shares) and James Richard Vereker (5,000 ordinary shares).

6    Mr Hillam was also a director of Bonython Metals throughout the period. Ms Teeranukul became a director of Bonython Metals on 21 December 2010. Mr Liebeskind was a director from 12 August 2010 until he resigned on 25 November 2010. Mr Brennan became a director on 24 November 2010.

7    Ample Source became a shareholder in Bonython Metals on about 20 April 2010. Ample Source’s nominated director on the board of Bonython Metals under the shareholders agreement was either Mr Wilson Cheung or Ms Linda Lau.

8    The sole shareholder in Ample Source was Mr Wilson Cheung. He was also a director of Ample Source. Ms Linda Lau also became a director of Ample Source.

9    Apart from an expert valuer, only Mr Hillam gave evidence on behalf of the defendants. For the plaintiff, again apart from experts, both Mr Wilson Cheung and Ms Linda Lau gave evidence. Mr Andrew Chan, who was Ms Lau's son and who worked at Bonython Metals for part of the relevant period, was also called by the plaintiff. The bulk of the evidence given on behalf of the plaintiff, Ample Source, was by Ms Lau.

10    The third defendant, CFM Media Holdings Pty Limited ("CFM"), was incorporated on 4 May 2010 and had two shareholders, Mr Hillam and Ms Teeranukul. The sole director was Mr Hillam.

11    The fifth defendant, Wentworth Metal Group Pty Limited ("Wentworth Metal"), had two shareholders, Mr Hillam and Ms Teeranukul. Its two directors were Mr Hillam and Mr Brennan.

12    The first defendant, Bonython Metals, was not represented at the trial.

13    The issued shareholding of Bonython Metals at 27 July 2011 was 100,000, Mr Hillam holding 32,000; Ms Teeranukul 32,000; PacMag Metals Pty Ltd 3,060; Giralia Resources Pty Ltd 2,940; Mr Vereker 5,000; and Ample Source 25,000.

14    It was common ground that the relationship between Ample Source and, on the defendants’ side, Mr Hillam in particular, was fraught virtually from the outset in April 2010 and, as the defendants put it, "there is no question that the parties do not get on". There were of course quite different perspectives as to the causes of the early deterioration of the relationship.

Agreement between Bonython Metals and Ample Source

15    The first relevant meeting was between Mr Hillam and Ms Linda Lau on 3 April 2010.

16    Ms Lau's evidence was that on that date Mr Hillam presented to her a number of investment projects including an opportunity to invest in Bonython Metals. At that time Bonython Metals was concluding investment arrangements with Carpentaria Exploration Limited ("Carpentaria") under which Bonython Metals was contemplating entering into a further agreement which would have entitled it to explore one of Carpentaria’s iron ore interests known as Hawsons Knob. Mr Hillam said in effect that Bonython Metals needed to source several million dollars funding urgently by 9 April 2010 for the Hawsons Knob project or otherwise there was a danger that it would lapse. I accept that evidence.

17    I find that the Hawsons Knob project was the main reason why Ms Lau recommended that Ample Source take a 25% equity stake in Bonython Metals despite the urgency of the funding requirements. The Hawsons Knob project consisted relevantly of EL 7208 and EL 7504 in New South Wales. Hawsons Redan consisted of EL 6979 ("the Redan lease"). The Hawsons Knob project was an exploration joint venture and farm in agreement between Carpentaria and Bonython Metals, executed on 15 April 2010. At that time it did not include the Redan lease.

18    Between 3 April and 9 April 2010 Mr Hillam and Ms Lau negotiated proposed terms of the investment by Ample Source in Bonython Metals as the funds for Bonython Metals to commit to the Hawsons Knob project were required immediately. During that period Mr Cheung decided to invest $16.5 million in Bonython Metals on behalf of Ample Source.

19    Ms Lau accepted in her evidence that at a very early stage Mr Hillam said that $13 million of the initial investment would be going to Carpentaria and that some money, in effect the balance, would be used for working capital for Bonython Metals.

20    Ms Lau also accepted that she knew at that stage that Bonython Metals would just about run out of money by the end of 2010.

21    Her evidence was that Mr Hillam presented a proper budget on the day the shareholders agreement was signed on 20 April 2010. Mr Wilson Cheung was present. The budget was or was in substance the one annexed to the shareholders agreement. I consider this budget in more detail below.

22    Before coming to the shareholders agreement it is necessary to refer to the Terms Sheet.

The Terms Sheet

23    The Terms Sheet was executed on 12 April 2010. The parties were Bonython Metals, John Hillam and Sarobol Teeranukul (referred to as Mrs Hillam) and Ample Source. It consisted of 22 paragraphs on the basis that the parties' agreement would be subject to a detailed written agreement.

24    The relevant terms of the Terms Sheet were as follows:

5.     BMG will make all payments due under the following agreements:

(a)    Capex South Down Venture;

(b)    Blue Rose Joint Venture;

(c)    Helix Resources Ltd;

(d)    Mega Hindmarsh Pty Ltd; and

(e)    Wentworth Metal Group Pty Ltd.

6.    BMG shall repay loans incurred to make payments under the said agreements prior to the receipt of monies from ASI.

7.    BMG shall apply the balance of the sum of $16,500,000 after the payments to Capex and pursuant to the other agreements referred above as working capital, including for the payment of moneys to Mr Hillam or his nominee under a service contract from 1 January 2010 pursuant to which Mr Hillam will manage the business with BMG for a fee of $25,000 per month plus GST.

The Shareholders Agreement

25    The parties to the shareholders agreement, which took the form of a deed made on 20 April 2010, were Bonython Metals, John Hillam and Sarobol Teeranukul as the Present Shareholders, and Ample Source.

26    "Placement Shares" was defined to mean 25,000 shares being the number of ordinary shares in Bonython Metals equal to 25% of the number of issued ordinary shares at Subscription Completion. "Subscription Price" was defined to mean $16,500,000 for the Placement Shares. "Stage 1" was defined to mean the period during which Ample Source owned only the Placement Shares. "Stage 2" was defined to mean that period during which Ample Source owned the Placement Shares and any Shares issued pursuant to the exercise of its Option under cl 6.3.

27    By cl 2, subject to cl 3.1, on the Subscription Date Ample Source was required to subscribe for the Placement Shares and Bonython Metals was required to allot and issue the Placement Shares to Ample Source.

28    By cl 3.1, the obligations of the parties under cl 2 became binding once each of the conditions set out in cl 3.2 was satisfied or waived under cl 3.3. Clause 3.3 provided that a condition in cl 3.2 was waived only if Ample Source notified Bonython Metals of it.

29    Clause 3.2 stated that the relevant conditions were that on the Subscription Date the Constitution of Bonython Metals was in the form of the copy previously provided to Ample Source by Bonython Metals; that on the Subscription Date Bonython Metals was not affected by an Insolvency Event; and that all Authorisations required for the acquisition of the Placement Shares had been obtained.

30    At Subscription Completion, Ample Source was required to give Bonython Metals a duly executed application for the Placement Shares; and enter into and execute an agreement to pay the balance of $16,000,000 of the Subscription Price in specified instalments beginning on 16 April 2010 and ending on 15 September 2010.

31    Bonython Metals was required, at Subscription Completion, to increase its authorised capital to 50,000,000 shares at $1 each; allot and issue 31,950 shares to Mr John Hillam and Ms Sarabol Teeranukul; allot and issue the Placement Shares to Ample Source; enter Ample Source in the register of members of Bonython Metals; allot and issue 5,000 shares to Mr Vereker; give Ample Source a copy of the duly executed share certificate; take all steps to constitute and evidence Ample Source as the holder of the Placement Shares; enter into and execute a service agreement with a company to be incorporated to provide the services of John Hillam to act as Chief Executive Officer of Bonython Metals in the form of the draft agreement annexed and marked A; and confirm the adoption of the Initial Business Plan and Budget.

32    Other relevant provisions were cl 9.2 (c):

Each Party agrees:

(a)    . . .;

(b)    . . . ;

(c)    To conduct itself and to act so as to ensure that the sole benefit enjoyed by it from or under the conduct of the Business is that arising under this contract.

cl 10.4(b)(i) which stated:

The quorum for a Board meeting is one Director appointed by each Shareholder and a quorum must be present for the whole of a meeting.

and cl 11.2 which was relevantly as follows:

The Shareholders must ensure that the Company provides Directors with enough management and financial information and reports to allow them to know and understand the financial affairs of the Company and to control the efficient operation of the Company . . . .

33    Clause 6.3 of the shareholders agreement was also significant. It provided as follows:

(a)    The Company grants an option to Ample Source to acquire further shares by allotment, being up to 25% of the issued Shares following such allotment or allotments such option to be exercised on or before the date which is 24 months from the Commencement Date (Called Shares).

(b)    The subscription price for any allotment will be the amount of $105 million for the total amount of Shares that would increase its holding by a further 25% of the issued Shares following such allotment or allotments and pro rata for any allotment of part of such Shares.

(c)    Ample Source must pay the relevant subscription price upon the allotment of the Shares or any part of them which are allotted pursuant to the option granted in Clause 6.3 (a).

(d)    The option in clause 6.3 (a) is to be exercised by a notice in writing to the Company that Ample Source exercises its option on the terms provided in this clause 6.3.

34    By cl 10 different provisions were made in relation to the Board for Stage 1 and for Stage 2. It will be recalled that Stage 1 was defined to mean the period during which Ample Source owned only the Placement Shares and before any shares were issued pursuant to the exercise of Ample Source’s Option under cl 6.3.

35    During Stage 1, the present Shareholders could appoint three directors to the Board and Ample Source could appoint one director. The first Directors were stated to be John Hillam, appointed by the present Shareholders and Wilson Cheung appointed by Ample Source. Clause 10.3 provided that the first chairman was John Hillam and that the chairman did not have a casting vote at Board meetings. Clause 10.4 provided that a meeting of the Board must be held in each month unless all the Shareholders otherwise agreed in writing. The quorum for a Board meeting was one Director appointed by each Shareholder and a quorum was required to be present for the whole of the meeting.

36    During Stage 2, the present Shareholders could appoint two Directors to the Board and Ample Source could also appoint two Directors. Also for Stage 2 the Chairman would be appointed by the present Shareholders and Ample Source alternatively for periods of 12 months.

37    Also during Stage 2, by cl 10.6, decisions of the Board and Shareholders were required to be by majority vote but subject to a number of specified matters which required a Unanimous Decision. One of those matters was borrowings not provided for in the Business Plan and Budget exceeding $20,000.

38    “Mining Interests” were defined to mean the mining interests described in Schedule 4.

39    The draft agreement at Annexure A was a service agreement between Bonython Metals and CFM. The Principal Employee was defined to mean John Hillam. By cl 5 the contract fee was $300,000 per annum payable monthly in advance exclusive of GST. Clause 5 stated that the Contract Fee so specified for the Services was the total amount payable by Bonython Metals in respect of the Services: further, "Neither [CFM] nor [John Hillam] are entitled to any other payment, remuneration or compensation from [Bonython Metals]". Importantly, in light of later events, "Services" was defined to mean "the duties of Chief Executive Officer of the Company and such other duties as the Board may from time to time reasonably require".

Claims of conduct within s 232(e)

40    I have set out above the relevant provision of the Corporations Act. I also note the recent summary of the relevant principles in Harding Investments Pty Ltd v PMP Shareholdings Pty Ltd (No 2) (2011) 282 ALR 229.

41    In Dynasty Pty Ltd v Coombs (1995) 59 FCR 122 at 130 the Full Court said, with reference to s 260 of the Corporations Law, the predecessor of s 232, that it was concerned with “commercial unfairness”: citing Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459. The Full Court then adopted the test articulated by Young J in Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 at 704, which was that the court should ask:

… whether objectively in the eyes of a commercial bystander, there has been unfairness, namely conduct that is so unfair that reasonable directors who consider the matter would not have thought the decision fair.

42    Gordon J in Harding Investments also referred to the summary of principles by Young J in John J Starr (Real Estate) Pty Ltd v Robert R Andrew (Australasia) Pty Ltd (1991) 6 ACSR 63 at 65–67. I regard as particularly apposite the following:

The acts of oppression must result from “some overbearing act or attitude on the part of the oppressor”: Re Jermyn Street Turkish Baths Ltd [1971] 1 WLR 1042 at 1060; Re Tivoli Freeholds Ltd [1972] VR 445 at 453;

. . .

The mere fact that a member of a company has lost confidence in the manner in which a company’s affairs are conducted does not lead to the conclusion that he is oppressed; nor can resentment at being outvoted; nor mere dissatisfaction with or disapproval of the conduct of the company’s affairs, whether on grounds relating to policy or to efficiency, however well founded. Those who are alleged to have acted oppressively must be shown to have acted at least unfairly towards those who claim to have been oppressed”: Re Five Minute Car Wash [1966] 1 WLR 745 at 751.

43    Gordon J in Harding Investments referred also to Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 at [175]–[176]:

[175] . . . The facts found at trial showed that Mr Campbell excluded Mr Weeks from participation in the management of Healthy Water despite the agreement recorded in both the shareholders agreement and each of the services agreements that he and Mr Campbell were to be joint managing directors. Under an earlier form of companies legislation dealing with oppression of members, wrongful exclusion from participation in the management of the company was held in Re H R Harmer Ltd [[1959] 1 WLR 62] to be a species of oppressive conduct.

[176] Section 232 should not be read more narrowly. Wrongful exclusion from management may be a form of oppression. It is not to be supposed that the only conduct of a company’s affairs that is to be classified as “oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member” is conduct of the company’s affairs that is otherwise lawful. The fact that Mr Campbell’s conduct was said to constitute breach of his or Sentinel’s contractual obligations under the shareholders agreement, or the procuring of a breach by Healthy Water of its obligations under the services agreement with Backoffice, does not preclude engagement of the oppression provisions. Neither is it to be supposed that there cannot be oppression on the part of one who thinks that he or she is acting rightly [cf M Dalley & Co Pty Ltd v Sims (1968) 120 CLR 603 at 606]. It is therefore not to the point to examine Mr Campbell’s motives for acting as he did.

44    Against these principles, an overall objective assessment is required of the conduct of which complaint is made by Ample Source and the countervailing conduct complained of by Bonython Metals. I next consider that conduct under a number of subject matters, some of which overlap.

Related party loans

45    Ample Source submitted that it was not disclosed to it before entering into the shareholders agreement that some $300,000 of the money Ample Source was proposing to invest was to be paid to Mr Hillam in repayment of borrowings made by Bonython Metals from Mr Hillam in order to pay option fees. On Ample Source’s case, it was the discovery by it of the facts of the related party loans which both explained and informed the attitude of Ample Source thereafter.

46    Contrary to the submissions on behalf of the defendants, the plain meaning of cl 6 of the Terms Sheet, which I have set out above, is that the receipt of monies from Ample Source would not be used to repay existing loans. More particularly, the context does not suggest any special relationship between Mr Hillam and companies there identified or other companies.

47    Turning to this issue in more detail, there was in fact an invoice on the letterhead of Wentworth Metal dated 1 April 2010 to Bonython Metals, signed by Mr Dennis Brennan as director, in the total amount, including GST, of $209,000. The document described an Annual Option Fee for ELA 300/09 in the amount of $75,000; an Annual Option Fee for ELA 05/10 in the amount of $75,000; and an Annual Option Fee for ELA 24/10 in the amount of $40,000; "As per our agreement". The reference number was 1042010/001. Mr Hillam said in his oral evidence that he believed that he asked Mr Brennan to prepare that invoice.

48    Also in fact there was an "Acknowledgement of Annual Option Fee Payment" on the letterhead of Wentworth Metal dated 12 April 2010 to Bonython Metals, signed by Mr Dennis Brennan as director. It stated:

We would like to acknowledge the payment of Annual Option Fee for ELA 300/09, ELA 05/10, ELA 24/10 totalling $209,000 that was billed to you on April 1, 2010 as per our Invoice number 1042010/001. We have received the payment in full amount on April 12, 2010 from CFM Media Holdings.

49    As to what Ample Source knew at the time of entry of the shareholders agreement, the following was stated in the affidavit of Mr Hillam made on 30 June 2011:

58    On 6 April 2010 I had a conversation with Ms. Lau and Mr Andrew Chan during which words to the following effect were said:

Mr Allsop:    "The agreement John Hillam will be paid a management fee, commencing from 1 January to April and onwards. There have been various farm-in agreements that have all been executed. In order to execute all the agreements, which all required payments to be made. John has borrowed money to pay the option fees, and he wants that to be paid back out of the money you invest. The amount is approximately $300,000.00. Some of that has already been paid, and some is yet to be paid. The Blue Rose agreement hasn't been paid for yet.

Mr Allsop was the solicitor acting for Mr Hillam. He did not give evidence. He was the instructing solicitor in the proceedings. This part of the affidavit was objected to as hearsay and admitted only on the basis that it was said.

50    I reject the evidence. I do so for the following reasons. First, Ms Lau and Mr Chan denied that account. Second, there is no reference to it in Mr Chan's e-mail to Mr Wilson Cheung of 7 April 2010. Third, Mr Allsop was not called as a witness. Fourth, there is no reference to it in Mr Allsop's e-mail to Mr Chan of 8 April 2010, beyond the terms of the Terms Sheet. Mr Hillam received a copy of that e-mail at the time it was sent but made no contemporaneous response that it was inaccurate. Next, there was no other documentary evidence to which I was taken informing Ample Source to the effect that Bonython Metals was proposing to repay a loan from Mr Hillam. I also take into account the terms of the emails on 21 May 2010 and the days following. Lastly, when the matter was raised by Ample Source, Mr Hillam’s first response was not to say that he had made a disclosure to Ample Source on or about 6 April 2010.

51    I accept that Mr Chan's e-mail of 11 April 2010 asked for a list of the details of the loans referred to in cl 6 of the Terms Sheet but the response said no more than that the loans mentioned "are the option fees for the SA Land which is currently $220,000 with another $55,000 to be added for Giralia option fees first payment". That e-mail and the associated table did not show that outstanding loans would carry over or that there were outstanding loans to related parties.

52    I accept Ms Lau’s evidence that at the time the shareholders agreement was being signed Mr Hillam did not tell her that the $275,000 in the April column of the cash flow projection represented loans due from Bonython Metals to companies owned by Mr Hillam and, further, that nothing was said about loans owing by Bonython Metals.

53    Mr Chan’s evidence in cross-examination, which I accept, was that he did not as at 12 April 2010 go to the table associated with the e-mail from Mr Hillam dated 12 April 2010.

54    I also accept Mr Cheung's oral evidence that at the time he came to sign the shareholders agreement Mr Hillam did not mention that there were loans outstanding by Bonython Metals nor that there were loans to companies of Mr Hillam outstanding by Bonython Metals nor that the $275,000 in the cash flow projection represented a loan outstanding by Bonython Metals to Mr Hillam or his company.

55    I reject the defendants’ submission that the $275,000 in Schedule 6 sufficiently disclosed that Bonython Metals had borrowed that money to pay the option fees and that borrowing was yet to be repaid.

56    Related to this issue is the e-mail from Mr Hillam to Ms Lau and Mr Wilson Cheung sent on 21 April 2010 declaring Mr Hillam’s interests in a number of companies including Wentworth Metals and CFM. This e-mail was sent the day after the shareholders agreement was executed. I do not accept Mr Hillam's evidence that Mr Cheung and Ms Lau at all times understood that Wentworth Metal was to be controlled by Mr Hillam and I find that Ms Lau and Mr Cheung did not have that knowledge before the signing of the shareholders agreement.

57    I also reject Mr Hillam’s evidence, given in cross-examination, that:

I now recall one other occasion before the signing of the shareholders agreement, when I explained to Ms Lau and Mr Cheung that I owned Wentworth Metals Group, and that occasion responded in this e-mail of Wednesday 21 April.

I reject his evidence for a number of reasons. First, there was no reference in the 21 April 2010 e-mail to such an earlier conversation. Second, no such evidence was given in Mr Hillam’s affidavits. Third, there was no file note or other contemporaneous documentary record of or reference to that conversation. Fourth, it was not put to Ms Lau or to Mr Cheung. Further, Mr Allsop was present at the meeting but was not called to give evidence about the conversation. Ms Teeranukul was also present and she was not called to give that evidence.

58    For these reasons I find that it was not disclosed to Ample Source on or before the signing of the shareholders agreement that some $300,000 of the money Ample Source was proposing to invest was to be paid to Mr Hillam in repayment of borrowings made by Bonython Metals from Mr Hillam in order to pay option fees.

59    I find that, as submitted by Ample Source, it was not until on or about 21 May 2010 that Ample Source became aware of the nature of these payments.

Breaches of duty

60    Claims of four breaches of duty by Mr Hillam were pursued in the proceedings. I consider each in turn.

$175,000 Loan

61    The first claimed breach involved Mr Hillam on 11 November 2010 causing Bonython Metals to lend $175,000 to Mr Hillam's private company, CFM. I note that $175,000 was an amount equal to 7 months of CFM's fees.

62    The circumstances were that Mr Hillam needed to prove in certain equity proceedings in the New South Wales Supreme Court that he was ready, willing and able to perform a contract. He attempted so to prove, in part, by showing in those proceedings that he had access to the balance of the purchase price from his own resources. The sum was transferred to Mr Hillam's solicitors’ trust account and later documented as a secured loan.

63    There was also evidence that a further sum of approximately $175,000 was transferred.

64    Ample Source demanded the return of the $175,000 first transferred. It applied for interlocutory relief in this Court in these proceedings which had by then been commenced. That relief was granted: Ample Source International Ltd v Bonython Metals Group Pty Ltd; In the Matter of Bonython Metals Group Pty Ltd [2010] FCA 1479.

65    The defendants submitted that the prepayment to CFM was justified and there was no breach of any relevant duty or impropriety in relation to the payment.

66    The defendants submitted that Ample Source was informed of the intention to make a prepayment to Mr Hillam of his management fees and the reasons for doing so: a copy of the proposed resolution was given to Ample Source, which indicated that it would not vote in favour of it, and the resolution was passed on 11 November 2010.

67    The commercial benefit to Bonython Metals was submitted by the defendants to be that Bonython Metals received an advantageous rate of interest and the work of Mr Hillam as CEO was not disrupted. I understood it to be accepted that Bonython Metals made that payment to assist Mr Hillam but the problem was originally caused, it was submitted, by late payments by Ample Source to Carpentaria and Bonython Metals in May 2010. It was also submitted that Bonython Metals had sufficient cash on hand up to the time CFM would have earned the advance payment in any event on 1 June 2011 and the transaction was adequately secured.

68    It was also submitted on behalf of the defendants that the second amount of $175,000 paid to CFM was a duplication of the first and did not require separate consideration. I accept that submission.

69    In relation to the first $175,000, in my view it is not to the point that Ample Source was informed of the intention to make the payment: Mr Cheung said he did not agree to the proposed resolution but the loan was made in any event.

70    Further, in my view, it is not for the Court now to assess whether overall there could be seen to be a commercial advantage to Bonython Metals as the relevant standard is whether the director improperly used his position to gain an advantage for himself. Also, the sum was to be expended in accordance with the budget agreed between the shareholders rather than being applied to a loan to a director.

71    In addition the contemporaneous facts indicate that any commercial benefit to Bonython Metals was not the reason for the loan.

72    I accept the submission by Ample Source that CFM was already contractually bound to provide Mr Hillam's services under the service contract without any such loan being made.

73    I also accept that there was no evidence linking the late payments by Ample Source in May 2010 to the personal position of Mr Hillam six months later.

74    In my view, the obtaining of the loan of $175,000 was a breach of duty by Mr Hillam.

Payments of rent on apartment of Mr Hillam and Ms Teeranukul and on car parking

75    The second breach alleged was that Mr Hillam and Ms Teeranukul caused Bonython Metals to make payments of rent on the apartment they occupied and to make payments for car parking for Mr Hillam’s car.

76    There was no dispute between the parties before me that the payments were made for those purposes.

77    Mr Hillam gave evidence that the home office was the only office of Bonython Metals and was its registered office from its inception in December 2009 until the time Bonython Metals took up occupation of its current premises in York Street in about May 2010.

78    As to the car parking space, Mr Hillam said that he used the car for the business of Bonython Metals.

79    The only issue, in my view, is whether the payments were within the CFM service agreement. The question is not whether, absent that agreement, the payments were reasonable in all the circumstances or that the use of a car parking space was standard for Chief Executive Officers of like companies.

80    The parties by their submissions accepted that the relevant form of the service agreement, although not an executed copy, was annexure A to the shareholders agreement.

81    It was submitted on behalf the defendants that the service agreement did not preclude the payment of work-related expenses on behalf of Mr Hillam: that is, that cl 5(c) did not govern expenses other than remuneration.

82    By cl 5 the contract fee was $300,000 per annum payable monthly in advance exclusive of GST. Clause 5 stated that the Contract Fee so specified for the Services was the total amount payable by Bonython Metals in respect of the Services. Further, "Neither [CFM] nor [John Hillam] are entitled to any other payment, remuneration or compensation from [Bonython Metals]". "Services" was defined to mean "the duties of Chief Executive Officer of the Company and such other duties as the Board may from time to time reasonably require".

83    In my opinion, the proper construction of cl 5 is that it exhaustively stated the amount payable: this is conveyed by the word "total". In addition, the word "payment" and the word "compensation” in cl 5 (c) are not to be read down by reference to the word "remuneration”. Consistently with that construction, cl 4.7 sets out what Bonython Metals would provide CFM in terms of access to premises and computer equipment.

84    In my view, the obtaining of the payments of rent on the apartment and for car parking was a breach of duty by Mr Hillam.

$209,000 to Wentworth Metal

85    The third alleged breach was that Mr Hillam caused Bonython Metals to pay $209,000 to Wentworth Metal.

86    One aspect of this issue relates to the farm in agreements between Bonython Metals and Wentworth Metal.

87    The question is the interrelation of the three Wentworth Metal’s farm in agreements and s 83 of the Mining Act 1971 (SA) ("the Mining Act"), that is, whether the occasion for any payment to be made by Bonython Metals under the farm in agreements had arisen in light of s 83. If not, Ample Source submitted it was a breach of duty for Mr Hillam and Ms Teeranukul to cause payments to be made by Bonython Metals to their company, Wentworth Metal.

88    Under cover of three letters dated 15 February 2010 from Bonython Metals to Wentworth Metal there were Terms Sheets expressed to be binding on the parties notwithstanding that the parties intended to restate the terms and conditions in formal agreements. One farm in was for ELA 300/09, the second for ELA 05/10, and the third for ELA 24/10.

89    Ample Source submitted that until the condition in cl 9 of the three farm in agreements was satisfied, by obtaining the Minister’s consent, the operative provisions of the agreements were not triggered and Bonython Metals could not acquire any proprietary interest in the tenements: since the payment of the amounts totalling $209,000 was incapable of earning Bonython Metals an interest in those tenements as no Minister’s consent had been obtained, it should be held that at the time the payments were made there was no legal obligation to make the payments and that therefore Mr Hillam was bound to cause Bonython Metals not to make any further payments under those agreements. The payments were made by Bonython Metals to Wentworth Metal in which Mr Hillam had an interest, without any benefit to Bonython Metals.

90    By cl 1 of each of these Terms Sheets it was provided that the obligations of the parties would have no force or effect until Bonython Metals had paid to Wentworth Metal a non-refundable deposit of $75,000 in relation to the farm in for ELA 300/09, $75,000 for the farm in for ELA 05/10 and $40,000 for the farm in for ELA 24/10.

91    By cl 9 of each farm in it was provided that notwithstanding any other provisions of the Terms Sheet, insofar as the performance of any provision required the consent of the Minister under the Mining Act or any dealing with a mining tenement under the Terms Sheet constituted a transfer or other dealing to which the consent of the Minister was required under the Mining Act, such performance or transfer was subject to and conditional upon such consent being first obtained.

92    Section 83 of the Mining Act provided that a lease or licence, or an interest in a lease or licence, under that Act was not to be assigned, transferred, mortgaged, sublet, or made the subject of any trust or other dealing, whether directly or indirectly, without the consent in writing of the Minister, and any such transaction entered into without that consent was void. An application for the consent of the Minister under this section was to be accompanied by the prescribed fee.

93    It was common ground that there was no "consent in writing of the Minister".

94    In light of the provisions of cl 9 of each of these Terms Sheets the question is whether the interests in those tenements fell within s 83. If they did then the performance by Bonython Metals was not required until the Minister’s consent was obtained.

95    I was referred to the decision of the Supreme Court of South Australia in Russell-Taylor v the State of South Australia and Ors [2011] SASC 115. In an extempore judgment, Kourakis J held that the words ‘or other dealings’ in s 83 took their meaning from the preceding words. What was prohibited was a dealing which alienated a proprietary interest in a mining lease or licence. Any such dealing entered into without prior consent was void but for a relevant condition precedent. The equitable remedies which would have been available to protect the interest of the joint venturers over the exploration licence but for the condition precedent, would have effectively alienated an interest of a proprietary nature in the exploration licence. However, the terms of the joint venture agreements entered into in that case did not operate to alienate property in that way unless and until the Minster’s consent had been obtained. It followed that the joint venture agreements in that case did not contravene s 83 of the Act and were binding and effective.

96    The question for the Court is whether the payments would otherwise have earned Bonython Metals a participating interest in the right to base metals which might exist on the tenements. In terms those payments constituted a deposit on payment of which the obligations of the parties had force or effect. For example, on commencement of the Terms Sheet the parties agreed to meet in good faith to discuss and settle an exploration program for the tenements. Thereafter Bonython Metals would undertake the expenditure in accordance with the program. By cl 4.2 Bonython Metals would not be entitled to any interest in the project if its expenditure did not meet or exceed the minimum amount of $1 million during the term.

97    In my view therefore the better construction of these farm in agreements is that the deposits were not within s 83 as not alienating an interest of a proprietary nature. Thus this particular statutory argument on the part of Ample Source fails.

98    However this does not dispose of the balance of the complaint that Mr Hillam caused Bonython Metals to pay $209,000 to Wentworth Metal.

99    I have already rejected the submission that cl 6 of the Terms Sheet which preceded the shareholders agreement provided disclosure and the submission that Ample Source knew from the terms of the agreements that Wentworth Metal was entitled to receive moneys from Bonython Metals. What occurred was that Mr Hillam used money that had been invested by Ample Source in Bonython Metals to pay $209,000 to Wentworth Metal, in effect to himself, but without any disclosure of this conflict of duty and interest.

100    I also find that in February 2011, Mr Hillam proposed to pay a further $209,000 from Bonython Metals to Wentworth Metal. Again there was no adequate disclosure. The payment was not in fact made as the Court made orders on 18 March 2011 restraining the payment.

101    In my view the payment of $209,000 constituted a breach of duty by Mr Hillam.

Wentworth Tenements

102    The fourth alleged breach of duty was that Mr Hillam had caused Wentworth Metal to obtain mining tenements near those Bonython Metals had a right to earn in. This was said to constitute a diversion of a business opportunity and a breach of duty.

103    The exploration licences over those areas were ELA 192/10, ELA 340/10 and ELA 341/10, referred to together as the "Wentworth Tenements".

104    It was one of the duties of Mr Hillam to bring to the board of Bonython Metals fresh investment opportunities in mining, in particular the possibility of taking up an interest in new mining tenements.

105    However Mr Hillam caused Wentworth Metal to apply for the three mining tenements in South Australia in its own name on 24 June 2010, 10 November 2010 and 15 November 2010. Each application identified the relevant minerals as including iron ore.

106    Thus it was Mr Hillam's duty to inform Bonython Metals of these three mining tenements and to provide Bonython Metals with the opportunity to take them up. In my view Mr Hillam could only cause his own company, Wentworth Metal, to take up the tenements if he first received the fully informed consent of Bonython Metals.

107    Mr Hillam gave evidence that he did not consult any of the directors or shareholders of Bonython Metals on whether that company should make application for the tenements. It is not to the point that Mr Hillam consulted Mr Brennan as Mr Brennan was a director of Wentworth Metal but, at the times to which I have referred, not a director of Bonython Metals.

108    Mr Hillam’s reasons for not consulting any of the directors or shareholders of Bonython Metals were first that Bonython Metals would require a board resolution in order to apply for these leases and Mr Hillam felt that the "outside directors" would never agree to it. In my view this proposition of fact was not established.

109    A further reason given by Mr Hillam stemmed from the nature of these mining tenements. In my view, Mr Hillam did not make good his contention that these mining opportunities would not be of interest to Bonython Metals.

110    In my opinion the reasons given by Mr Hillam did not excuse him from his duty to inform Bonython Metals of these three mining tenements and to provide Bonython Metals with the opportunity to take them up.

111    I find that in causing Wentworth Metal to apply for three mining tenements in South Australia in its own name, Mr Hillam breached his duty to Bonython Metals.

112    For the majority shareholders to divert a corporate opportunity to themselves may amount to oppression of the minority: Sanford v Sanford Courier Service Pty Ltd (1986) 10 ACLR 549 at 556-557; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd & Ors [2001] NSWCA 97, (2001) 37 ACSR 672 at [120] and following.

113    I turn now to the further matters relied on by Ample Source as conduct within s 232(e).

Appointment of Ample Source director to Bonython Metals

114    By cl 10.2 of the shareholders agreement, the first directors were to be John Hillam, appointed by the existing shareholders, and Wilson Cheung appointed by Ample Source "subject to their first having consented in accordance with the Corporations Law and being eligible to act."

115    Despite repeated requests, Mr Cheung was not formally appointed a director of Bonython Metals until August 2010.

116    Mr Hillam's answer was that he understood there was an issue in filling out and lodging the form and Bonython Metals did not have that information until early August. Mr Cheung had to fill out a form to officially nominate himself and he had to give Bonython Metals his proper name and address so that Bonython Metals could send it in to ASIC. Bonython Metals did not have his details. It was put to Mr Hillam that all the information in the ASIC form was available to him from April 2010.

117    I am not satisfied that Mr Hillam's reasons for the delay in appointing Mr Cheung as a director were of substance. Bonython Metals could have taken this step earlier. Nevertheless I am not satisfied that the delay or the reasons for it are of themselves of present significance. They were straws in the wind.

118    There were then further issues in relation to the Ample Source directorship on the board of Bonython Metals.

119    Clause 2(1) of the Constitution provided that the business of the company was to be managed by or under the direction of the directors.

120    Clause 6 provided that the directors may appoint other directors:

6(1)    The directors of a company may appoint a person as a director. A person can be appointed as a director in order to make up a quorum for a directors' meeting even if the total number of directors of the company is not enough to make up that quorum.

(2)     If a person is appointed under this section as a director of a proprietary company, the company must confirm the appointment by resolution within 2 months after the appointment is made. If the appointment is not confirmed, the person ceases to be a director of the company at the end of those 2 months.

121    I also note the terms of cl 8 which provided that, with the other directors' approval, the director may appoint an alternate to exercise some or all of the director's powers for a specified period. If the appointing director requests the company to give the alternate notice of directors' meetings, the company must do so.

122    By cl 15, the directors of a company could pass a resolution without a directors' meeting being held if all the directors entitled to vote on the resolution signed a document containing a statement that they were in favour of the resolution set out in the document.

123    Clause 16 stated that a directors' meeting may be called by a director giving reasonable notice individually to every other director.

124    By cl 18, unless the directors determined otherwise, the quorum for a directors' meeting was two directors and the quorum must be present at all times during the meeting.

125    By cl 19, a resolution of the directors must be passed by a majority of the votes cast by the directors entitled to vote on the resolution. The chair had a casting vote if necessary in addition to any vote they had in their capacity as a director.

126    Ms Lau was appointed a director by the other directors on 21 December 2010. The present proceedings had been commenced on the previous day and Rares J, on 21 December 2010, directed that a board meeting of Bonython Metals be held. Nevertheless, under cl 6(2), if the company did not confirm that appointment by resolution within two months after the appointment, Ms Lau ceased to be a director at the end of those two months.

127    At the shareholders meeting on 27 January 2011, Mr Hillam and Ms Teeranukul voted against the confirmation of the appointment of Ms Lau as a director. The minutes stated the reason was that Ample Source had not provided sufficient documents to prove that Ms Lau was a director of Ample Source. Besides, the shareholders required that the documents supplied be certified by an appropriate officer of the British Virgin Islands Government.

128    These reasons for that action are not convincing. I do not accept the proffered reasons as the real reasons. There was no requirement in the shareholders' agreement that the person nominated by Ample Source must be a director of that company. Mr Hillam’s state of mind was indicated by an e-mail he sent dated 22 January 2011 in relation to another prospective investor which included, "However time is not on my side and I can separate our company like this quickly to remove Linda out of BMG as this will allow me to run BMG how I want to without their interference."

129    This action was contrary to cl 10.1(b) of the shareholders agreement which provided that Ample Source may appoint one director to the Board and may replace that director in accordance with the Constitution.

130    It was then submitted on behalf of Ample Source that Mr Hillam continued to delay and frustrate the efforts of Ample Source to have Ms Lau continue as a director of Bonython Metals from February through to August 2011.

131    An agreement noted by the Court on 16 February 2011 was that until 30 March 2011 the relevant defendants agreed to appoint Ms Lau as the representative director of Ample Source by the passing of a resolution of directors. On 18 March 2011 the Court noted the agreement between the parties to extend the standstill arrangements with the result that Ms Lau's directorship was to continue until final determination of the proceedings or further order. An ASIC search showed that Ms Lau had been appointed a director of Bonython Metals with effect from 18 February 2011. On 6 May 2011 the board passed a resolution that Ms Lau be appointed as a director of Bonython Metals effective from 18 April 2011.

132    On 24 May 2011 a meeting of the members of Bonython Metals was held to consider a resolution that either Ms Lau's appointment as a director be ratified or that she be appointed as a director in accordance with cl 5 of the Constitution.

133     Ample Source complained that Mr Hillam and Ms Teeranukul did not to attend the shareholders meeting called for 24 May 2011, with the consequence that there was no quorum.

134    A notice of a meeting of members of Bonython Metals to be held on 17 June 2011 was therefore given. No members or directors of Bonython Metals (other than Ample Source) attended that proposed general meeting. Mr Hillam gave evidence that he and Ms Teeranukul forgot to attend.

135    On 20 June 2011 Mr Hillam sent an e-mail to Carpentaria stating that Ms Lau ceased to be a director of Bonython Metals on 18 June 2011. Ms Lau responded that she was a director of Bonython Metals according to the shareholders agreement and pursuant to the Court orders. Mr Hillam then e-mailed Ms Lau stating that she ceased to be a director on 18 June 2011. The solicitors for Ample Source asserted by e-mail that that behaviour was a breach of the Court orders and the shareholders agreement and noted that Mr Allsop's clients failed to attend a general meeting to ratify Ms Lau's directorship.

136    Mr Hillam reproved Mr Sheard of Carpentaria for having interfered in an internal matter of Bonython Metals. The explanation given was that Ms Lau was appointed a director on 18 April 2010 and under the Constitution that directorship expired at midnight on 18 June 2011. Until she was reappointed after a new meeting, which would require seven days notice, Ms Lau's role as a director ceased at midnight on 18 June 2011. Mr Hillam signed an ASIC form that Ms Lau had ceased to be an office holder and that was lodged on 20 June 2011.

137    The 22 June 2011 meeting was not held with the consent of Ample Source. That meeting noted that Ms Lau had ceased to be a director but she was not reappointed.

138    Ample Source therefore brought a motion for a Court order that Ms Lau be reappointed and on 6 July 2011 the Court noted undertakings by the relevant defendants to appoint Ms Lau as the representative director of Ample Source. That undertaking was given pending conclusion of the proceeding or until further order. Similarly the relevant defendants undertook to continue to cause Ms Lau to be appointed as the representative director of Ample Source without interruption until conclusion of the proceedings or until further order.

139    Taking this history into account I find that the conduct of the affairs of Bonython Metals involved failing to cause the appointment of Ample Source’s nominee as a director, contrary to the shareholders agreement.

140    The defendants submitted Mr Cheung was treated as a director from the time Ms Lau first notified Bonython Metals that she was appointed his proxy in about May 2010. No issue arose in relation to the directorship, it was submitted, until December 2010 when Ample Source gave notice that its directorship had ceased under the provisions of the replaceable rules. Mr Hillam lodged the relevant form with ASIC. He had little other choice as Ample Source had frozen the bank accounts. The accounts were freed on about 15 December 2010 and five days later Ample Source commenced the present proceedings. The defendants submitted that since that time Bonython Metals had been managed under interim standstill arrangements and nothing that has happened thereafter constituted oppressive conduct.

141    In my view these submissions do not answer Ample Source’s complaints or the findings I have made.

142    I do however take into account the relatively late stage at which the events surrounding Ms Lau’s appointment occurred.

143    This matter is related to the complaint by Ample Source as to the non-provision to it of information by Bonython Metals to which I now turn.

Keeping of information from Ample Source

144    Specifically, it was submitted that information about Bonython Metals dealings with its farm in partners was kept from Ample Source. The events leading to the termination of the Helix Resources Limited (“Helix”) farm in were not disclosed nor the dealings between Bonython Metals and Exco Resources Ltd ("Exco").

145    As to Exco, I find that in Mr Hillam's report to the board of Bonython Metals for July 2010 circulated on 11 August 2010 he gave information that Bonython Metals was negotiating a farm in agreement with Exco and that the cost of this agreement was $1,050,000 over five years. The initial cost was said to be a small amount of money. Mr Hillam recommended that Bonython Metals proceed and sign that agreement and sought approval to increase Bonython Metals’ exposure for that expenditure of $1,050,000. The directors meeting held on 19 August 2010 "acknowledged that the CEO proceed to negotiate the agreement and that final agreement require the Board’s approval."

146    Then by e-mail on 11 November 2010, Mr Hillam forwarded to Mr Cheung, Ms Lau and Mr Liebeskind a draft agreement asking for a response within two days as there was "some urgency in executing this agreement before it either lapses or the negotiated terms increase significantly." Mr Hillam added: "If approval is not given within this timeframe or no correspondence is received I give notice under the CFM Media Holdings - [Bonython Metals] Management Agreement that I will proceed with these negotiations in another company's name."

147    The other directors complained of the suddenness of the demand and the lack of information. Mr Liebeskind wrote that he did not accept nor understand a two-day timeframe to respond.

148    Mr Hillam gave oral evidence that he could not point to any communication with the other directors on this topic between 11 August 2010 and 11 November 2010 and I find that there was none.

149    Mr Hillam also said he was not actually minded to take this opportunity for himself but he wanted to have a response from Ample Source because they had a history of not responding to important things in the past. Mr Hillam regarded it as a “very, very good opportunity” and he wanted this opportunity for Bonython Metals so he wrote the e-mail of 11 November 2010 hoping to get a response from Ample Source.

150    I do not accept this explanation. I was not taken to any earlier lack of response by Ample Source to such an investment opportunity. Nevertheless it seems that no response was ever given by Ample Source to the proposed farm in agreement with Exco and the opportunity was not taken up either by Bonython Metals or by one of Mr Hillam's other companies.

151    As to Helix, Ample Source submitted in a general way that Mr Hillam had withheld from the directors information about negotiations he had had up to the point of arriving at an agreement in principle to buy the two tenements of Helix and an agreement in principle he had reached for Bonython Metals to take up a substantial shareholding in Helix.

152    At this level of generality I do not find this complaint established on the evidence.

153    More particularly however, Ample Source also submitted that Mr Hillam refused or failed to keep the Ample Source director informed of important developments in the affairs of Bonython Metals and this involved a denial of the protection Ample Source was to have under cl 11.2 of the shareholders agreement. This was in the following circumstances.

154    At a board meeting of Bonython Metals on 21 October 2010 Mr Hillam discussed with the board a letter from Helix saying that Bonython Metals' minimum expenditure commitment of $300,000 as per the earn in requirement may not be met in the remaining timeframe. Mr Hillam informed the meeting that the $300,000 minimum expenditure commitment would be met within the remaining timeframe in accordance with the company's contractual obligations in the farm in agreement.

155    No information about the dealings with Helix appears in the board papers for November and December 2010. In fact, on and from mid November 2010, Helix had been continually asserting that Bonython Metals was in breach by failing to produce a program and a budget for the exploration work Bonython Metals was obliged to carry out on the Helix tenements.

156    Ms Lau had sent an e-mail dated 24 January 2011 asking for more information on this topic. Information in relation to Helix, including a letter dated 17 January 2011 from Helix to Bonython Metals, was provided for the board meeting on 27 January 2011.

157    However, the next day, by letter dated 28 January 2011, Helix terminated the agreement. The letter referred to Bonython Metals’ ongoing failure or refusal to provide a draft program in respect of the tenements (despite repeated demands) and to Bonython Metals’ failure to provide the budget in respect of the expenditure to be undertaken in respect of the tenements. Both of these failures were said to be a breach of the term of the agreement entitling Helix to terminate the agreement.

158    I do not need to determine the merits of the dispute between Helix and Bonython Metals. It is clear however that the board of Bonython Metals was not provided with important information in a timely way. Thus Mr Hillam refused or failed to keep the Ample Source director informed of these important developments and this involved a denial of the protection Ample Source was intended to have under cl 11.2 of the shareholders agreement.

Other complaints about the non provision of information including holding of board meetings

159    From late May 2010, Ample Source communicated its concern about debts owed by Bonython Metals to Wentworth Metal which had not been disclosed at the time Ample Source entered into the shareholders agreement.

160    I have already dealt with one aspect of this matter. I also find that, as evidenced at meetings of 31 May 2010 and 28 June 2010 and in correspondence of 3 June 2010 and 8 July 2010, despite the denials on behalf of Bonython Metals, there was a refusal or failure on the part of Mr Hillam to provide to Ample Source relevant details about the related party loans, including the identity of the loan provider.

161    This aspect of the matter culminated in an application to the Court on 20 December 2010 for orders under s 247A, which orders were made on 22 December 2010. On that date the Court ordered that the plaintiff’s nominee be forthwith permitted to inspect and copy all of the Bonython Metals' financial records. Further orders were made on that date with respect to the provision of bank records of Bonython Metals to Ample Source.

162    The defendants’ response, as I understood it, was to submit that the matters complained of had not had any material adverse effect on the company and the company had not suffered any detriment from them.

163    In my view it is not to the point whether the matters complained of affected the value of the company. If that proposition were correct an oppressed minority could never get relief where a company was successful.

164    Another complaint related to the meeting of directors on 22 June 2011. The meeting was not held with the consent of Ample Source. It was plain that the resolutions were to be controversial. Ms Lau had ceased to be a director. Matters considered were agenda item 2, to approve the borrowing of $1 million or more from the company's majority shareholders (meaning Mr Hillam and Ms Teeranukul) at an interest rate and terms to be agreed for the purpose of providing additional working capital immediately to Bonython Metals; agenda item 4, to ratify the appointment of particular lawyers as the company’s solicitors; agenda item 5 concerning a resolution of 11 March 2011 in relation to senior counsel's advice that Bonython Metals should commence legal proceedings against Helix Resources for specific performance; agenda item 6 to approve a resolution of 26 May 2011 in relation to Bonython Metals takeover of the management of Hawsons Iron Project JV; and agenda item 7 to approve the appointment of solicitors to commence proceedings against Janet McCormack for the return of fees of $973,500.

165    Considered in light of the shareholders agreement and the standstill agreement recorded in the orders of the Court on 16 February 2011 as extended, the holding and conduct of the meeting to the exclusion of Ample Source was oppressive. The intent of the shareholders agreement was to have an Ample Source nominated director present at each directors meeting.

166    This was an aspect of Ample Source’s broader contention that the conduct of the affairs of Bonython Metals involved ignoring Ample Sources rights both as a shareholder in Bonython Metals and under the shareholders agreement by failing to provide information to Ample Source's nominated director when requested by Ample Source. In turn this related to the basic proposition that Ample Source had been excluded from the management of Bonython Metals.

167    In this regard I shall consider the arrangements for meetings on 22 November, 24 November, 9 December and 14 December 2010.

168    Ms Lau was asked by e-mail on 16 November 2010 whether she was available for a directors meeting on 22 November 2010. Her response was that she could not attend on that date. The meeting was convened but postponed to 24 November 2010. However notice that the meeting was to take place on 24 November 2010 was sent to Ms Lau and Mr Cheung only on 23 November 2010, those persons being overseas at the time.

169    I find that it was improbable and known to be improbable that either Ms Lau or Mr Cheung could attend the meeting on 24 November 2010 at such short notice.

170    In answer to an e-mail that Ample Source could not organise for a director or alternate director to attend, Mr Hillam responded that Ample Source was in default of its obligations under the shareholders agreement and the shareholders agreement was now at an end. Mr Hillam also responded that the meeting would be held under the Constitution and there would be put to vote all the items as submitted and the members present could ratify the items as proposed. I find that this was inconsistent with the intent of cl 10.4(b)(i) of the shareholders agreement.

171    I find that not only was inadequate notice given but also the board papers were sent the day before and inadequate information was given, contrary to the intent of cl 11.2 of the shareholders agreement.

172    In relation to the 9 December 2010 meeting, Ms Lau promptly notified the organisers that Ample Source would not be able to attend, asked for the meeting to be postponed and asked for further relevant information and documents. Mr Hillam refused to postpone the meeting and recorded that an Ample Source director was not present and declared that the meeting would proceed under the Constitution. I find that this also was inconsistent with the intent of cl 10.4(b)(i) of the shareholders agreement.

173    The context was the purported ratification of the payment of $175,000 and the unsatisfied requests by Ample Source for information and access to the financial records of Bonython Metals.

174    Again I find that not only was inadequate notice given but also inadequate information was given, contrary to the intent of cl 11.2 of the shareholders agreement.

175    The directors meeting of 14 December 2010 was also called on short notice. Again the Ample Source director was overseas and wished to participate in person. Nevertheless the meeting went ahead. Here again I find that inadequate notice was given and also inadequate information.

Quality of accounting information

176    In relation to the complaints from time to time by Ample Source about the quality of the accounting information being given on a number of occasions, I accept that the complaints were made and I accept Mr Cheung's evidence that the accounts provided for the October, November and December 2010 board meetings did not meet his expectations of management accounts. Mr Cheung was a chartered accountant.

177    However Mr Cheung was not giving evidence as an expert. I am not persuaded that the accounts so departed from the proper standards for a proprietary company such as Bonython Metals that their quality could constitute a breach of cl 11.2 of the shareholders agreement or conduct within s 232(e).

Issue of shares

178    Mr Hillam as director of Bonython Metals resolved on 5 May 2010 that the company allot and issue 25,000 shares to Ample Source.

179    Clause 5.3 of the shareholders agreement stated as one of Bonython Metals’ obligations that at subscription completion it must allot and issue the Placement Shares to Ample Source; that it must enter Ample Source in the register of members of Bonython Metals as the holder of the Placement Shares; and give Ample Source a copy of the duly executed share certificate showing Ample Source as the holder of the placement shares with the original certificate to be handed over upon receipt of the final payment under the agreement. Correspondingly, an obligation on Ample Source under the shareholders agreement was to give to Bonython Metals "a duly executed application for the Placement Shares in the form of schedule 1 or in any other form [Bonython Metals] may agree to accept".

180    It took four months to issue the shares. The explanation given by Mr Hillam was that under the shareholders agreement Ample Source or its officers had to fill out the request for the shares to be issued and they had not done that.

181    Whether or not that be so, in my view nothing flowed from the non-issue of these shares.

182    There has been a further non-issue of shares. On 7 February 2011, Ample Source tendered a total amount of $44,681 to acquire a further ten shares in Bonython Metals. That sum was banked by Bonython Metals on 8 March 2011 and paid into the company’s working bank account. Those shares have not been issued. Ample Source requested that the money be placed into a separate account until the shares were issued. This has not been done.

183    I reject the reason given by Mr Hillam in his evidence that the shares have not been issued because the Ample Source director will not come to a directors meeting to allot the shares. I find that Mr Hillam and Ms Teeranukul voted against the issue of the shares at a members meeting on 27 January 2011 and at a later directors meeting on that day Mr Hillam would not vote on the issue. In my view, the non-issue of these shares denied Ample Source’s rights under the shareholders agreement.

Provision of bank statements

184    Bank statements were not provided to Ample Source until 20 December 2010. Mr Hillam’s oral evidence was that by the time he returned to Sydney on Friday, 19 November 2010 it was unnecessary for him to provide the bank statements because Ample Source had already obtained them directly from the bank. I do not accept this evidence: no reason was suggested why Ample Source would continue to ask for the bank statements if it already had them and there is no contemporaneous record of Mr Hillam being told that Ample Source had so obtained the bank statements nor of Mr Hillam telling Ample Source either directly or through his solicitors that that was his understanding.

Mr Hillam and Ms Teeranukul together as the majority shareholders

185    It was submitted that the interests of Mr Hillam and Ms Teeranukul should be treated as one for the present purposes. This was on the basis that they were husband and wife; that there was no evidence of any relevant conflict between them; that Ms Teeranukul chose not to dissociate herself from any of Mr Hillam's actions; that at all directors and shareholders meetings Mr Hillam and Ms Teeranukul had voted together; and Ms Teeranukul chose not to give evidence.

186    It was also submitted that Ms Teeranukul benefited from the $175,000 loan as much as Mr Hillam did since the property was to end up being in CFM's name or held by CFM and Ms Teeranukul was a shareholder of CFM. Mr Hillam accepted that Ms Teeranukul had an interest through her shareholding in that transaction being completed, that Mr Hillam had discussed with her borrowing the $175,000 from Bonython Metals in order to win the equity case and achieve a settlement of the purchase and that she had approved that being done.

187    On 9 December 2010 Ms Teeranukul voted in favour of ratifying the loan resolution of 11 November 2010; her vote was the same as Mr Hillam's on all the resolutions of the 14 December 2010 meeting, including the resolution of no confidence in Ms Lau; at the 27 January 2011 shareholders meeting, Ms Teeranukul’s vote was the same as Mr Hillam's against all three resolutions, including the resolution to ratify the appointment of Ms Lau; at the shareholders meetings of 24 May 2011 and 17 June 2011 Ms Teeranukul took the same position as Mr Hillam; and at the 22 June 2011 meeting Ms Teeranukul voted in the same way as Mr Hillam in respect of each of the resolutions he proposed.

188    In these circumstances, it is appropriate to regard the shareholding of each of Mr Hillam and Ms Teeranukul as, in combination, the majority shareholding. As I understand it, the defendants did not contend otherwise. This is not the same however as equating a breach of duty by Mr Hillam as a breach of duty by Ms Teeranukul.

Countervailing conduct on the part of Ample Source

Late payment of the original investment amount

189    On the part of Bonython Metals, the souring of the relationship began at the point of late payment of a substantial part of the Subscription Price under an arrangement by which Ample Source would pay $5 million to Carpentaria on behalf of Bonython Metals.

190    The details of this were as follows. On 10 May 2010 Ms Lau asked for an extension of time for Ample Source to pay the $5 million instalment to Carpentaria. Ms Lau telephoned Mr Sheard of Carpentaria without reference to Mr Hillam. Also on 10 May 2010 there was an e-mail to Mr Hillam about the delay in payment to Carpentaria. The e-mail was to the effect that Ample Source would pay Carpentaria $1 million on 14 May 2010 as scheduled and the remaining money by 31 May 2010. Mr Sheard of Carpentaria was said to have agreed to that arrangement but required something in writing. He was also said in an e-mail by Ms Lau to have been very understanding and to have said that it was not going to be too disastrous as some of their drilling process had been slightly delayed.

191    Mr Hillam objected to the changed payment schedule in a series of e-mails. There was justification for his concern in light of what he referred to as the very significant financial commitments to Bonython Metals’ various stakeholders which required proof of funds and urgent clarification. Mr Hillam pointed out that the proposed delay was in the first major payment required. He asked for proof that the funding, which was part of the shareholders agreement, would be completed in full. He asked that Bonython Metals be provided with proof of funds from Ample Source.

192    By letter dated 22 May 2010 to Mr Cheung Mr Hillam restated his concerns and requested that the due payments be made immediately and that all remaining amounts due to Bonython Metals and Carpentaria be paid in full before the 15 June 2010. Mr Hillam sent a further e-mail to the same effect on 24 May 2010. He required a more definitive reply to his e-mails.

193    In the result, on 15 May 2010 Ample Source paid $1 million to Carpentaria. On or about 31 May 2010 Ample Source paid $1.7 million to Bonython Metals. On 4 June 2010 Carpentaria received $4 million from Ample Source. Ample Source sent confirmation of that payment to Mr Hillam on 31 May 2010.

194    Under the terms of the shareholders agreement $7 million was to be paid by Ample Source on or before 14 May 2010: cl 5.2 (b) (iii).

195    There was therefore a breach of the agreement and the delays in payments were at the very least embarrassing to Mr Hillam. He was justifiably annoyed. On examination it appears that the excuses given by Mr Cheung, or on his behalf, for his delay had more to do with convenience than necessity. Mr Cheung accepted in cross-examination that he did not have the money until 31 May 2010, that he did not have to borrow to make the payment in May but he did have to sell down some assets. I also find that that the incorrect reason given to Mr Hillam on Mr Cheung’s behalf was not corrected.

196    Mr Cheung also said in cross-examination that he did not think he needed to explain why he needed to postpone so he did not. His view was that as long as he could provide the money that was it. Because he or Ample Source was putting the money into Bonython Metals he did not need to explain why he was going to be paying late. He said; “I’m the boss, I don’t need to explain it to anyone.”

197    However these matters, even if characterised as indifference to Mr Hillam or, on the assumption that Mr Cheung’s state of mind was relevant, as high-handed, did not justify the conduct of the affairs of Bonython Metals of which Ample Source complains, although they do provide some context for or explanation of that conduct. The events do not provide a justification because the conduct was disproportionate to the late payments.

The freezing of Bonython Metals bank accounts

198    Much attention was directed in the course of the hearing to the freezing of Bonython Metals’ bank accounts in December 2010.

199    For the defendants it was put that it was highly likely that Ample Source asked the bank to freeze the accounts. It was submitted that there was no doubt that Ample Source wrote to the bank alleging unauthorised dealings. It was also submitted that Ample Source acted with callous indifference to the affairs of Bonython Metals and to the interests of the other shareholders. It was submitted that the freezing of the accounts was motivated by a desire to get Mr Hillam back for what Ample Source thought were Mr Hillam’s failures to respond to them.

200    It was submitted that, in light of Mr Hillam having provided to Ample Source a copy of the Constitution of Bonython Metals on 8 December 2010, at the time Ample Source wrote to the bank Ample Source would have known that Mr Cheung was not a director of Bonython Metals but did not inform the bank of the fact that it had no directors on the board of Bonython Metals.

201    Mr Hillam’s position was that he had not provided the bank statements because he was busy in the field, the bank statements were not in paper form, and only he could print the bank statements from the Internet.

202    It was submitted on behalf the defendants that the bank statements issue was not of such great moment as to require immediate response. The time taken to provide bank statements was insignificant compared to the seriousness of freezing Bonython Metals' accounts. Reliance was placed on Mr Cheung's cross-examination and that he appreciated that it could be a very serious matter for Bonython Metals and affected the company's reputation very badly. Nonetheless, Ample Source did not intend promptly to act to remove the freeze on the accounts.

203    Two things were said to flow from this. First, Ample Source acted wholly in its own self-interest with total disregard for the "benefit of the company and the other shareholders". Second, it was submitted that it was Ample Source’s conduct which prevented the proper management of the company, including taking steps to raise funds.

204    Turning to the facts, by e-mail on 15 November 2010 Mr Cheung asked Mr Hillam to provide the bank statements for the past seven working days from 3 November 2010 to 12 November 2010 inclusive and asked that he attend to the matter no later than 17 November 2010. Mr Hillam replied by e-mail later on 15 November 2010 that he was currently away from the office and in the field in Olary and unable to look at the request until after he returned on Friday, 19 November 2010. He added that he had discovered that:

person unknown to BMG have already accessed our bank account information and I have instructed the branch that if any such breach should occur again I will hold the bank fully accountable for these privacy violations and seek damages.

205    This was, I infer, a reference to an e-mail Mr Hillam had sent to the bank earlier on 15 November 2010, as follows:

It has come to our attention that a person claiming to be Linda Lau and an alternative director in BMG or an associate was able to access information with regards to BMG bank account on Friday 12/11/10.

No only is this the second occasion that Bank staff provided other parties with information about my companies bank accounts this is a serious breach of your charter and privacy conditions.

Please investigate this matter further. If you have any documents in relation to this breach please provide copies to me without delay.

Under no circumstances are branch personnel to give our information with regard to transactions MADE ON BEHALF OF Bonython Metals Group Pty Ltd and for THE RECORD I, John Hillam ARE THE ONLY SIGNATORY ON THIS ACCOUNT and the only person authorised to receive information with regard to this account.

206    On 16 November 2010 Mr Liebeskind, a director of Bonython Metals, sent an e-mail to Mr Hillam saying that he appreciated he was out of the office in a remote area but that he, Mr Liebeskind, felt that Mr Cheung should be provided with a copy of the bank statement and staff should be able to action it within the requested time frame. Mr Hillam replied on the same day:

I do not wished to be panic into something that is unnecessary. We advise wilson of our intentions with regards to the advance against fees to CFM Media Holdings. We is our intend to ratify this by majority board decision. That the end of this matter. In addition we can ratify the mandate to raise more money for the company and that matter will completed too. I could say more. Regards john

207    Then on 20 November 2010 Mr Cheung sent a letter as a director of Bonython Metals to the bank requesting the bank to provide the bank statements for Bonython Metals for the period 24 October 2010 to 25 November 2010 inclusive. The heading to the letter referred to s 190 of the Corporations Act. It is s 290 of that Act which provides: “A director of a company . . . has a right of access to the financial records at all reasonable times.”

208    By letter dated 22 November 2010 the solicitors for Ample Source asked Mr Allsop for documents which included "a copy of the bank account statement of BMG from which any withdrawal was made referable to the purported resolution on 11 November 2010”. By letter dated 24 November 2010 Mr Allsop replied to that letter but did not provide the bank account statement requested.

209    A further request for the bank statements was made by Ms Lau to Mr Hillam by email dated 25 November 2010.

210    There was then a string of e-mails between the bank and Ms Lau.

211    On 6 December 2010 Ms Lau e-mailed the bank "We simply do not understand why the Bank statements cannot be provided as asked since it is our right as director to have access."

212    The bank replied on 7 December 2010 that they also needed Mr Cheung to attend his local branch to be identified. As the matter involved a dispute between directors, the bank needed to make sure that it was following the correct privacy policies and procedures. Then the statements could be released. The bank also said that it had placed a stop for debits on all Bonython Metals Group accounts so that no further debits would be taken from the account without reference to the assistant manager or another officer of the bank.

213    Ms Lau responded, "Thank you for putting a stop on all debits. We still need the bank statements to proceed."

214    On 7 December 2010 Ms Lau sent an e-mail to Bonython Metals which included "Where are the bank statements that Wilson and I requested?"

215    Mr Hillam replied to Ms Lau by email on 7 December 2010 referring to cl 14 of the Constitution to the effect that the directors of the company, or the company by a resolution passed at a general meeting, may authorise a member to inspect books of the company and said that “No such resolution has been made by the directors and therefore I am not prepared to allow access to our office accounts at this time and an "inspection of the books".”

216    Then, on 8 December 2010, there was an e-mail from Bonython Metals to the bank saying that the company had been advised "today" that the bank had frozen its bank accounts from yesterday afternoon. Also in this e-mail was a statement that Mr Hillam had asked the sender to provide to the bank "the attached Minutes of the Board's Meeting in November 2010 which justified the payment of $175,000 from our bank account on Nov 11, 2010 as the company's decision." From this I infer that Mr Hillam was aware of the immediate occasion for the request by Ample Source for the bank statements.

217    For Ample Source it was submitted that the bank’s correspondence suggested that it exercised its own independent judgment to stop debits. Ample Source pointed out that debits on the accounts were stopped only between 7 and 15 December 2010 and that the stoppage was not absolute as the bank advised it would allow funds to be withdrawn for business purposes if the bank was provided with approval from all three directors to allow any such withdrawal. In my view these matters are of little significance.

218    Ample Source also submitted that the history of the matter showed that Ample Source was not motivated by a desire “to get Mr Hillam back” for what Ample Source thought were his failures to respond. It submitted that following the proposed resolution of 11 November 2010, authorising a $150,000 loan, Mr Cheung sought to obtain information as to what had occurred and also sought access to the bank statements. Mr Cheung and Ms Lau became concerned that company funds were being misapplied. Therefore Ample Source’s role in the matter was as a response to its concern that Bonython Metals’ money was being misused. In the result, on Ample Source’s submission, when properly analysed, its actions were justified. There was nothing in Ample Source’s actions that justified the preceding or subsequent misuse of power by the majority shareholders/directors.

219    In my view it is clear from the bank’s letter dated 15 December 2010 that Ample Source notified the bank in early December 2010 of the dispute between the directors of Bonython Metals and made allegations against other directors of that company of misappropriation in relation to the company accounts. Mr Cheung accepted that he notified the bank of a dispute between the directors. His evidence was that if he told Mr Hillam before he did it then Mr Hillam may withdraw all the money. He also gave evidence, which I accept, that what he was thinking of was to protect the assets in Bonython Metals. He thought that protecting the assets was more important than the consequences that might occur to Bonython Metals from the freezing of the accounts. I find that Ample Source approached the bank for good reason.

220    At the same time it is clear that Mr Cheung did not enquire whether Bonython Metals had any expenses that it needed to pay while the accounts were frozen because he had not got responses to his enquiries on previous occasions: he referred to the issue of the share certificates; Ample Source not having a director on the board of Bonython Metals; queries about Mr Hillam using Bonython Metals’ money to pay his own debts and putting Bonython Metals money into the trust account of Holman Webb. There was to that extent what Mr Cheung regarded as behaviour justified by Mr Hillam's previous conduct. Mr Cheung agreed that the bank account issue was not urgent to him even though it might be urgent to Mr Hillam.

221    I reject the submission that Ample Source knew at the time it communicated with the bank in this respect that it had no directors on the board of Bonython Metals.

222    I also reject the submission that the freezing of the accounts was retaliatory. I accept that Ample Source saw no urgency in reversing the freezing because of what it regarded as Mr Hillam’s earlier failures to respond.

223    My conclusion on this series of events is that given the time at which it occurred, in December 2010, Ample Source’s actions do not qualify or affect the character of the conduct of the affairs of Bonython Metals by the majority or affect Ample Source’s entitlement to any remedy. I reject as overstated the submission that Ample Source acted with callous indifference to the affairs of Bonython Metals and to the interests of the other shareholders. Further, there was no specific evidence that the freezing of the accounts caused actual harm to Bonython Metals.

Non-disclosure of Ms McCormack as the daughter of Ms Lau

224    Another major issue raised by the defendants was the payment to Ms McCormack as Mr Walsh's nominee of the substantial capital raising fee in the following circumstances.

225    There was a written agreement dated 3 April 2010. The agreement referred to "Eric Walsh and or nominees" or "Eric Walsh and or nominee". Under the heading Capital Raising Plan it was stated in the document that Eric Walsh and or nominee "is engaged to arrange placement to the value of up to AUD$16.5 million, in the form of ordinary equity or debt, or other instrument that is appropriate such as convertible note or a combination acceptable to BMG". There was to be no engagement fee. The Capital Raising Fee was stated to be 5.9% of the money initially raised for Bonython Metals below $50 million.

226    Mr Walsh subsequently nominated Janet McCormack. There was a second agreement on 20 June 2010 between Bonython Metals, Mr Walsh and Ms McCormack.

227    Ms McCormack was the daughter of Ms Lau. I find that this fact was not known to Mr Hillam or to Bonython Metals at any relevant time. Ms Lau did not tell Mr Hillam that Ms McCormack was her daughter.

228    There was extensive cross-examination of Ms Lau about the fee paid to Mr Walsh’s nominee and substantial submissions were addressed to it.

229    It was submitted on behalf of the defendants that that was information that Mr Hillam was entitled to have. The size of the payment, in contrast to the amount of $209,000 of which Ample Source complained was put as a matter of comparative fairness. Ms Lau should have told Mr Hillam that her daughter was getting, in round figures, a million-dollar benefit from a contract with Bonython Metals. It was submitted that a payment to a relative is a personal benefit to oneself and this came about from Bonython Metals’ entry into the second agreement on 20 June 2010. This, it was submitted, was very important information "that should have been given by one partner to another". It was the fact that Ms McCormack was getting any money at all which should have been disclosed and this was made far worse by the fact that there was a later enquiry by the ATO.

230    Mr Hillam gave evidence that he had a conversation with Mr Walsh in early June 2010 in which Mr Walsh said that he would like to transfer his commission agreement to his agent in Hong Kong, Janet McCormack. She had done all the work. She was responsible for raising the initial capital.

231    Looking first, and separately, at the agreement to pay Ms McCormack and the subsequent payment of almost $1 million to her, I accept that the non-disclosure of the mother and daughter relationship between Ms Lau and Ms McCormack is relevant to my assessment of Ms Lau's conduct. As submitted on behalf the defendants I also take into account the size of the sum in contrast to the payment of $209,000 of which Ample Source complains. However, beyond that, of itself the identity of the payee and the non-disclosure of the relationship had no substantial significance in the present proceedings. The financial obligation on Bonython Metals was unchanged. There was a substitution of one payee for another. No relief is sought in relation to the non-disclosure by Ms Lau.

232    There was no evidence suggesting that the amount of the fee itself, 5.9% of the amount invested or some $973,000, showed that there had been untoward behaviour on the part of Ms Lau or of Ample Source.

233    It does not, in my view, disentitle Ample Source from relief nor does it affect the quality of the actions of the majority shareholders in Bonython Metals.

234    In due course, however, this payment attracted the attention of the Australian Taxation Office. Ms Lau received an e-mail dated 20 May 2011. Ms Lau passed the e-mail onto her solicitors but did not deal with the e-mail herself. Ms Lau also gave evidence that she had sent an e-mail requesting a copy of the original request or information that was provided to the ATO that resulted in the ATO's questions. Therefore, she said, she chose not to answer and decided to let her legal advisers answer all those e-mails.

235    Ample Source submitted that there was nothing improper in that. I reject that submission if it was intended to convey that the conduct was above criticism. I regard this deferral of a substantive response to a legitimate enquiry as relevant to the question of the grant of relief sought by Ample Source in these proceedings.

Unjustified staying away from meetings

236    The defendants submitted that the Ample Source director unjustifiably stayed away from certain meetings. In particular it was suggested that Ms Lau had stayed away from the 14 December 2010 meeting so that it could not pass any resolution or because she did not want to see approval of the engagement of cross border funding or because she did not want to answer questions about the freezing of the bank accounts or about the prepayment of $175,000 or as part of a strategy to gain control of Bonython Metals.

237    In terms of the Constitution the question is whether the notice given of meetings was reasonable notice (cl 16). In this respect it should be noted that Mr Cheung was based in Hong Kong and Ms Lau was based in the People's Republic of China.

238    As to the directors meeting on 22 November 2010, on 16 November 2010 Mr Liebeskind sent an e-mail to Ms Lau notifying her that Mr Hillam had suggested a board meeting be held on 22 November 2010. On 21 November 2010 Ms Lau replied to the effect that she would not be able to attend a directors meeting until later in the month or early in December. I accept that explanation.

239    As to the directors meeting on 24 November 2010, Ms Lau said that she received the relevant e-mail giving notice on 23 November 2010 and the reason that no Ample Source representative could attend was due to the lateness of the notice. I accept that explanation.

240    As to the meeting on 9 December 2010, Ms Lau received notification of the meeting on 2 December 2010 and on about 6 December 2010 received further documents in relation to the meeting. Ms Lau complained about the lack of information in the papers for the meeting and set out thirteen matters on which she needed explanation or further documentation. She asked for the meeting to be postponed and said by e-mail that she did not want to participate in the meeting by telephone but wanted to fly to Sydney from Beijing to attend in person as there were serious issues that required face-to-face discussion. The requests for information and documents and for postponement of the meeting were both refused by Mr Hillam. I regard the requests as reasonable.

241    As to the meeting on 14 December 2010 Mr Hillam indicated on 13 December 2010 that he wished to call a meeting. Ms Lau's evidence was that she could not attend because one day's notice was not sufficient and she wanted time to examine the records and information relating to the meeting agenda. I accept that explanation.

242    It was submitted on behalf of Bonython Metals that representatives of Ample Source failed to attend most of the board meetings of Bonython Metals from May 2010 to mid December 2010.

243    This has to be considered against the background that three of these "board meeting" were merely meetings rather than board meetings. Another consideration is that there was no Ample Source nominee director until 12 August 2010. As to the balance of these meetings I find that Ms Lau or a representative of Ample Source did attend meetings on 31 May 2010, 28 June 2010, 19 August 2010 and 1 September 2010.

244    I find that there was no Ample Source attendance at a board meeting held on 23 September 2010. Ms Lau’s evidence was that the reason she did not attend was because when Mr Hillam called the meeting she was not in Australia and was therefore not able to attend on that date. I accept that explanation.

245    I have referred already to the meetings on 22 November 2010, 24 November 2010, 9 December 2010 and 14 December 2010.

246    A review of the many contemporaneous e-mails leads me to reject the submission that an Ample Source director did not attend a meeting or meetings to prevent the meeting being held or to avoid a particular issue or issues. In particular I reject the submission that Ms Lau did not did not wish to attend the meeting on 14 December 2010 for the reasons put to her. She denied each of those reasons and I accept the denials which were consistent with the inherent probabilities.

247    My conclusion on this wider issue is that where reasonable notice was given, bearing in mind that Mr Cheung was based in Hong Kong and Ms Lau was based in the People's Republic of China, and where appropriate information was provided for the purposes of a meeting, there was no unjustified non-attendance of board meetings of Bonython Metals by the Ample Source nominee director.

Commitment of $105 million

248    The defendants contended that in early April 2010 Ms Lau committed Ample Source to invest $105 million.

249    I find there was no such commitment. It is inherently improbable that such a large commitment would have been made at such an early stage of the negotiations when so little investigation had been carried out by Ms Lau or by Ample Source.

250    I also note that it is inconsistent with cll 10 and 11 of the Terms Sheet which referred to Ample Source having an option to acquire within 24 months further shares by allotment and on the exercise of the option and the allotment of shares Ample Source would pay to Bonython Metals $105 million for further working capital. Such a commitment is also inconsistent with cl 6.3 of the shareholders agreement.

251    Another related issue is whether Ample Source knew that Bonython Metals had such cash requirements or significant cash requirements over the subsequent three years. However neither of these matters goes to the substance of the case.

252    To the extent that the second of these issues is put as a "running out of money" proposition which in turn relates to a submission by the defendants that it was the plaintiff's strategy to acquire Bonython Metals cheaply, it has the difficulty that Bonython Metals could raise money in respect of the later years otherwise than from Ample Source whether by equity or debt or sale of interests.

253    It is more accurate to say that the money to be invested by Ample Source would be used up by the end of December 2010. That was Mr Cheung's expectation at the time Ample Source entered into the shareholders agreement. He also accepted that the three principal options he could foresee for the end of December 2010 was that Bonython Metals could borrow more money or Ample Source could exercise its option or part of its option to invest more capital or there could be a new investor.

The desire of Ample Source to take control of Bonython Metals

254    It is convenient to deal here with the submission made on the part of the defendants that, both in terms of the conduct and in terms of any remedy, it was clear that at an early stage Ample Source had decided to take control of Bonython Metals.

255    It was submitted that by at least June 2010, Ample Source wished to obtain control of the company, allegedly because it thought it had been tricked about certain loans. All of the subsequent conduct of Ample Source should be viewed in the light of that fact, it was submitted. Ample Source was motivated by a desire to obtain control by acquiring in excess of 50% of the shares in Bonython Metals.

256    Particular reliance was placed on the terms of an offer contained in an email of 7 June 2010 as revealing the true intentions of Ample Source which was to obtain control of the company if Mr Hillam defaulted in relation to that proposal. It was submitted that this e-mail should be considered in light of the option in the shareholders agreement which provided for investment of a further $105 million by Ample Source but that investment did not, under the option, allow Ample Source to obtain 50% of Bonython Metals.

257    That e-mail was, relevantly, in the following terms:

[Ample Source] is prepared to agree to the amount of A$219,000 (The Loan) be advanced to you as a loan subject to the following conditions:

1.    The Loan is made to John Hillam personally and not to any other entity or company.

2.    The Loan is free of interest.

3.    The Loan is to be repaid by you in full within a period of 12 months, that is before 30 June 2011 (Due Date). The repayment of the Loan is to be in cleared funds prior to the Due Date.

4.    The Loan is secured by shares in [Bonython Metals] owned by you (and/or your wife) to the value of 26% of the total shares in [Bonython Metals].

5.    In the event of default of the loan, the 26% of [Bonython Metals] shares will be transferred to Ample Source.

258    Thus, viewed objectively, it was submitted, the taking of the proceedings for oppression was part of a strategy to obtain control which Ample Source could not obtain by any other means. The proceedings had taken advantage of various events that had occurred, in combination with Bonython Metals running out of money and Mr Hillam not being in a good position to buy out Ample Source.

259    As to the e-mail of 7 June 2010, Ms Lau gave evidence that Ample Source was keen to get control of Bonython Metals in the event that Mr Hillam failed to repay the loan should he agree with the proposal in an e-mail. However Mr Hillam did not agree with the proposal. I accept this evidence.

260    I also accept Ms Lau's evidence that the transfer of 26% of the shares in Bonython Metals should Mr Hillam agree with the proposal and default was related to the shareholding Ample Source would have asked for originally if there had been enough time to do the due diligence before entry into the shareholders agreement.

261    As to Mr Cheung's evidence, he said as I understood him that he included the 26% of the shareholding in the event of default because he did not trust Mr Hillam any more. He also gave the following evidence:

Right. You didn't put in 26 per cent because it was just enough to get you control of the company?--- Well, at June 2010 no one knows the valuation of the company in June 2011, so that's why at that moment I put down 26 per cent in case, in the event of default, I can control the company.

262    I do not regard the e-mail as evidencing a fixed and unconditional desire by Ample Source at that time to take control of Bonython Metals.

263     Mr Cheung's evidence also included the following passages at separate points.

Now, I suppose in June 2010 you would have liked to have had control of the company, would you? --- I like to have control of the company, you're asking me?

Yes, yes?--- Yes.

. . .

From approximately mid-2010 you wanted to obtain control of [Bonython Metals] and your real motive in taking these proceedings is to obtain control of [Bonython Metals]. . . . --- . . . In the beginning of the deal, I am not trying and I haven't think of to control the company, because I cannot manage so far away from me so I – usually, I trust management. At that moment I didn't intend to control the company, but after he cheated, I did.

264    In my view, having regard to this evidence and the course of communications between the parties, in particular from June 2010 onwards, it is drawing too long a bow to say that each issue raised by Ample Source had that purpose or that there was an overall scheme to take control of Bonython Metals.

265    In short, viewing the entirety of the events and taking into account the increasing lack of trust and increasing distrust on each side and looking at the whole objectively I do not find that the conduct complained of by Ample Source is either explained or justified by the general evidence to which I have referred. There was a lack of correspondence between the acts complained of and the general wish on the part of Ample Source to control Bonython Metals.

266    Further, I do not accept that Ample Source is disqualified from obtaining any remedy in respect of the conduct of the affairs of Bonython Metals, in particular the remedy that the company be wound up. I reject the submission put on behalf of the defendants that the conduct complained of was due to the misconduct of Ample Source. This submission was put in drawing an analogy between s 233 and the just and equitable ground considered in Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 at 387G. I also reject the submission that there was an attempt to achieve a collateral purpose by exerting pressure, which was put by reference to Nilant v RL & KW Nominees Pty Ltd [2007] WASC 105 at [105].

267    I accept that unfair conduct by an applicant may render the complained of conduct not unfair and that, in addition, it may affect the relief to be granted: Morgan v 45 Flers Avenue Pty Ltd (above), but that is not this case.

268    More specifically I reach the following conclusions with respect to the conduct of the affairs of Bonython Metals.

269    A common theme of those matters complained of by Ample Source which I have found to be substantiated is the partial management of Bonython Metals in a manner commercially unfair to the minority shareholder, Ample Source. That partiality is to be seen in the $175,000 loan, the related party loan, the Exco opportunity, the payments of rent and car parking and in the failure to issue the 10 shares for which Ample Source had paid.

270    Another common theme is the failure or reluctance to provide relevant information to Ample Source. This was the case in relation to the related party loan, the $175,000 loan, the payments of rent and car parking, the provision of bank statements and other financial information and the Wentworth Tenements.

271    More generally relevant information was kept from Ample Source. Meetings were arranged in a manner which provided Ample Source limited opportunity to attend either at all or with adequate information. I have referred to breaches of the relevant provisions of the shareholders agreement.

272    Further, since it was by means of its nominee director that Ample Source was primarily to participate in the management of the company, the facts in relation to the non-appointment of that director show that Ample Source was substantially excluded from the management of the company.

273    Taking these matters together I find that the conduct of the affairs of Bonython Metals was oppressive to Ample Source within the meaning of s 232(e).

274    It may be that Mr Hillam believed he acted correctly at the time, but that is not the test. The conduct is to be assessed objectively. That conduct indicates that Mr Hillam did not sufficiently recognise that Ample Source was not merely a supplier of capital but a shareholder, particularly a shareholder with rights under the shareholders agreement which included the right to have a director of Bonython Metals.

The Option – construction of the shareholders agreement and the claim for rectification

275    Apart from the question of the failure to issue the 10 shares in Bonython Metals to Ample Source, the option is not related to the claims of conduct within s 232(e) and I consider it separately.

276    Ample Source submitted that cl 6.3 of the shareholders agreement expressly allowed the option to be exercised in whole or in part. The opposing submission was that Stage 2 was triggered only when all options were taken up.

277    Relevant also to this aspect of the dispute is the cross-claim by Mr Hillam and Ms Teeranukul which sought relief and to rectify the shareholders agreement as follows:

8.    On the proper construction of the Shareholders Agreement, Stage 2 only commenced, and clauses 10.5 and 10.6 only applied, upon [Ample Source] exercising the option in clause 6.3 to acquire all of the further shares by allotment or allotments in total amounting to 25% of the issued shares following such allotment or allotments.

Alternatively, the cross claimants Mr Hillam and Ms Teeranukul sought an order that the shareholders agreement be rectified by amending the definition of "Stage 2" of the shareholders agreement to provide:

"Stage 2 means the period during which Ample Source owns the Placement Shares and all Shares permitted to be issued pursuant to the exercise of its Option under clause 6.3."

278    I turn to consider these issues.

279    On 5 January 2011, Ample Source purported to exercise its option under cl 6.3 of the shareholders agreement by acquiring 10 further shares in Bonython Metals. Bonython Metals contended that full payment for the options had not been tendered. On 7 February 2011 Ample Source tendered a further payment, giving a total payment for the 10 further shares of $44,681. This was accepted by Bonython Metals as full payment. For present purposes the question is the effect of what was done in this respect by Ample Source. The importance of this from the perspective of Ample Source was whether, in terms of the shareholders agreement, the rights and obligations of the parties had moved from Stage 1 to Stage 2.

280    As to construction, I accept that it is impermissible, absent ambiguity, first to approach the construction of the shareholders agreement by reference to earlier drafts. Instead, I construe the agreement itself to determine its meaning. I have earlier set out the relevant terms.

281    The preferable approach is to look first at the substantive provision, here cl 6.3. The clearest indicator that Ample Source was not obliged, in order validly to exercise its option, to pay $105 million and increase its holding by a further 25% of the issued shares is the language "being up to 25% of the issued Shares" in subcl (a) which is the provision that grants the option.

282    Another indicator in the language of that clause is the words in subcl (b) "and pro rata for any allotment of part of such Shares."

283    In my view, the definitions of Stage 1 and Stage 2 are to be read in light of cl 6.3 and that is so even though that expression is referred to in cll 10.5 and 10.6: it is cl 6.3 which deals with the exercise of the option to which the definitions are ancillary. In any event, the definition of Stage 1 refers to the period during which Ample Source "owns only" the Placement Shares. That has a clear meaning which is that the ownership of any shares beyond the Placement Shares takes the matter beyond Stage 1. There being no other Stage, this leaves only Stage 2. The definition of Stage 2 refers to Ample Source owning the Placement Shares "and any Shares issued pursuant to the exercise of its Option under cl 6.3. The comparison with Stage 1 with its reference to "owns only" and the use in the latter definition of the word "any" supports the construction of cl 6.3.

284    The strongest argument against that construction is that it would be a strange result if Ample Source could achieve the appointment of an additional director, the right to appoint the Chairman every other 12 months and the Stage 2 voting rights for the purchase of any share in addition to the Placement Shares. The shareholders agreement is to be interpreted commercially: McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 at [22]. However the force of this point diminishes in light of the competing construction which is that Ample Source had to take up all the available shares before Stage 2 occurred. This could have the consequence that Ample Source would not get equal board representation at the point where it was the largest single shareholder.

285    In my view the argument from reasonableness is insufficient to require a qualification to the words which the parties used in cl 6.3 and in the definitions of Stage 1 and Stage 2.

286    As to rectification, Ample Source submitted that fundamental to that remedy was a common intention by all parties to the shareholders agreement that Stage 2 should only occur at the point at which Ample Source acquired all shares available under the option in cl 6.3. Ample Source also referred to Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 at [443] and following.

287    I accept what was there said that before rectification can be applied there has actually to be an intention of the contracting parties concerning the subject matter of the terms in which it is submitted the contract should be rectified. It is also elementary that rectification is granted only upon "clear and convincing proof" or "convincing proof”. In my view the evidence does not rise so high, either on the part of Mr Hillam’s intention or on the part of the intention of Ample Source. An uncommunicated subjective intention, such as that of which Mr Hillam gave evidence, does not suffice. In relation to Ample Source I note that Mr Cheung’s evidence was that he understood that he could exercise the option in part within the 25% and he understood that Mr Hillam had agreed that the option could be exercised in part.

288    It follows that Ample Source exercised the option on 7 February 2011.

289    However the 10 shares have not been issued to Ample Source and the subscription amount has been used by Bonython Metals and not repaid.

290    It was unclear whether the defendants submitted that the right in Ample Source to appoint two directors only arose on exercise of the option in full. I reject that submission for the reasons I have given above.

Remedy under s 233

291    Grounds under s 232 having been established I turn to consider what, if any, orders should be made under s 233. By that section the Court may make any order that it considers appropriate in relation to the company.

292    There is no right to obtain a remedy even where grounds under s 232 have been established: Shelton v National Roads & Motorists’ Association Ltd [2004] FCA 1393; (2004) 51 ACSR 278.

293    Before turning to this matter in any detail I consider the evidence and the parties' submissions as to the assets of Bonython Metals and their value since those matters went to remedy.

294    Ample Source submitted that the relevant task was to value the 64% of Bonython Metals owned by what it referred to as the Hillam interests. Its answer, based on the valuation of Bonython Metals prepared by Mr Rudenno, which was based on a valuation of Bonython Metals’ assets by Mr McKibben, was that their shares were worth approximately $15.5 million, excluding the Redan lease. This value took into account "the likely effect of the Hillam interests’ oppressive conduct on [Bonython Metals]” as likely to be factored into the value of those shares. On this approach the value of the whole was about $24 million and no more than $24.4 million.

295    It was submitted that the experts called by Ample Source applied the test in Spencer v Commonwealth (1907) 5 CLR 418 but that the expert called by the defendants had not undertaken that task. This material was adduced to support the order for which Ample Source contended, that is, that the Court should order that the second and fourth defendants, Mr Hillam and Ms Teeranukul, sell their shares in Bonython Metals to Ample Source for $15.5 million.

296    Ample Source submitted that the valuations of the expert called by the defendants, Mr Pyper, should be rejected because he had not sought to express an opinion as to what a willing but not anxious purchaser would have to pay a willing but not anxious vendor to buy the shares in Bonython Metals or on the market value of the tenements. I consider that Mr Pyper not only did not address those issues but, insofar as I could follow it, he used an idiosyncratic methodology. He seemed to proceed by reference to what the projects could be worth in saying in his oral evidence:

"These valuations were done … for John Hillam to show what this project could be valued at in his hands. Do you want to sell them for cash? … you couldn't get those figures for it in cash. But that is what they are to a company that wants its development".

297    Ample Source advanced a number of other reasons for rejecting Mr Pyper's report.

298    MFI 7, apparently incomplete annual technical reports on three exploration licences, was served the evening before the proposed tender. Counsel for Ample Source could not cross-examine on that material. In addition, it was not a complete set of the material on which Mr Pyper relied. I reject the tender of MFI 7 as having been served so late as to cause substantial prejudice to Ample Source if it was admitted. It is not sufficient that one of the experts called by Ample Source had been given some or all of the material by Mr Pyper some days earlier.

299    As to MFI 8, a late affidavit of Mr Pyper sworn on 27 July 2011, I deferred ruling on it but invited submissions on why it should not be admitted into evidence. In the absence of submissions to the contrary I shall admit that affidavit.

300    However I give Mr Pyper's evidence very little weight both because of his idiosyncratic methodology and also because neither in his reports nor otherwise did he state his assumptions and his reasoning was not adequately disclosed: see Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611.

301    Ample Source accepted that it was not possible for Mr Rudenno, in conducting his valuation, to take into account the liabilities of Bonython Metals. For that reason, Ample Source submitted that should the Court order that Ample Source buy out the shares of Mr Hillam and Ms Teeranukul in Bonython Metals the valuation ought to be expressed as subject to deductions representing the liabilities of Bonython Metals. Ample Source submitted that the extent of any such liabilities, including any significant contingent liabilities, ought to be the subject of evidence at a short hearing following the making of any buyout order.

302    The defendants contended that the value of the Hawsons joint venture interest was approximately $100 million, excluding the Redan lease. If the Redan lease were included, the lowest valuation that could be ascribed to Hawsons as an exploration target was $200 million. In addition, as I understood it, the defendants contended for a technical value of the South Australian assets of no less than $21.66 million. As I have indicated, Mr Pyper gave evidence of considerably higher values for all of the assets.

303    As to the Redan lease, EL 6979, the defendants contended that the Redan lease was an asset of Bonython Metals because Bonython Metals had an agreement that it form part of the Hawsons joint venture or had a cause of action for its inclusion.

304    This was put on five bases: the agreement in a terms sheet; an oral agreement for its inclusion; an agreement which was partly oral and partly in writing; an agreement by estoppel because Carpentaria would be estopped from denying the existence of a right to inclusion of the Redan lease by reason of the existence of the facts which constituted the oral and written agreements and the fact that substantial payments were made from joint venture funds provided by Bonython Metals for drilling and exploration on the Redan lease; and the fact that the Redan lease was included in the joint venture formed the conventional basis of the relationship between Carpentaria and Bonython Metals.

305    On this basis it was contended on behalf of the defendants that it would be manifestly unfair to allow Ample Source to purchase the shares in Bonython Metals without including the value of the Redan lease or an assessment of the likelihood of its value. The shares in Bonython Metals carried with them a right to have the Redan lease included in the Carpentaria joint venture. Were the Court to permit Ample Source to buy out the shares without taking into account the value of the Redan lease it would deprive Mr Hillam of the value of the opportunity to enforce the right for its inclusion, giving Ample Source the resultant benefit of that right at no cost.

306    It is to be noted that Carpentaria was not a party to the present litigation.

307    Ample Source submitted that the evidence with respect to the Redan lease was that it was not in the current joint venture agreement. This was because the existing joint venture between Bonython Metals and Carpentaria did not include EL 6979. There was a variation to that agreement which purported to include that tenement but it was subject to a condition precedent and the condition precedent had not been satisfied because there was not the money in Bonython Metals to satisfy the condition precedent.

308    The variation deed, of June or July 2011, was an agreement to amend the exploration joint venture and farm in agreement (Hawsons Iron Project) between Carpentaria and Bonython Metals executed on 15 April 2010. Clause 2.1(b) provided:

clause 3.2 of this deed of variation and the amendment to the JVA contemplated by it, with the exception of clauses 4 to 17 inclusive, is subject to and will have no force or effect until:

(a)    . . . ; and

(b)    [Carpentaria] notifying [Bonython Metals] in writing that [Carpentaria] has been reimbursed from the Cash Calls payments for all Expenditure associated with the Phase 1 Drilling Activities and Phase 2 Drilling Activities incurred by [Carpentaria] associated with Exploration and the EL6979 on and from 15 April 2010 up to and including the date of execution of this deed by both parties in accordance with the procedure set out in clause [sic] of this deed.

309    The evidence of Mr Sheard, CEO of Carpentaria, was that the relevant expenditure was a total of $9,251,547 and that the cash calls had been insufficient to reimburse Carpentaria by the amount of $348,313 up to 30 June 2011. After that date but up to the date of the variation deed the cash calls were about $570,000 short of fully reimbursing Carpentaria for its exploration expenditure. Carpentaria had not given written notification to Bonython Metals that it had been reimbursed for all expenditure, in terms of cl 2.1(b) because reimbursement for that expenditure had not then occurred.

310    Mr Sheard was cross-examined on these matters, both as to the accuracy of the figures and the contractual or other basis for the obligations to which he referred.

311    However I accept that if the variation had taken effect Bonython Metals would get a 40% interest in EL 6979. The valuers put the highest figure of all on EL 6979 such that, if Bonython Metals had a 40% interest in EL 6979, there was a difference of approximately an additional $44 million over all the tenements in which Bonython Metals had an interest.

312    In my view, even if it were the case that the condition precedent had not been satisfied because there was not the money in the company to satisfy the condition precedent, this “snapshot" approach has no attraction where the Court is being asked to determine value of a substantial actual or potential asset to found a buyout order of the kind propounded by Ample Source.

313    In short, the material formed an unsatisfactory basis on which the Court could determine value with sufficient certainty to make orders which expressly or implicitly involved a specific value. This was not only because the range of values on each side was large in relation to the general worth of Bonython Metals but more importantly because the interests upon which the valuations were based, particularly whether the Redan lease was included or excluded, varied widely and the evidence to resolve that issue was slight. An additional problem was the absence as a party of Carpentaria.

314    Returning to the question of remedy, Ample Source submitted that a buyout order, or a receivership order to the same effect, was the appropriate relief to end the oppression. It was submitted that the Court should order that the majority sell to the oppressed minority and that the order should be that Mr Hillam and Ms Teeranukul should sell to Ample Source at market value, less an allowance for the effect of their oppressive conduct. This was said to be the appropriate order for four reasons.

315    First, Ample Source submitted that the value in Bonython Metals had been created by Ample Source's investment: without the investment of $16.5 million by Ample Source Mr Hillam's efforts would have been without benefit to Bonython Metals and Bonython Metals would not have been able to fund its obligations.

316    Second, Ample Source submitted that Mr Hillam and Ms Teeranukul did not have the financial ability to buy Ample Source's shares. I understood it to be common ground that Mr Hillam and Ms Teeranukul did not have that ability as their assets stood.

317    Third, Ample Source submitted that it was Mr Hillam's and Ms Teeranukul’s blameworthy conduct which created the current situation.

318    Fourth, it was submitted that Bonython Metals would have almost no cash and it required further money which Mr Hillam was unable to raise.

319    If the receiver order was made, Ample Source sought an order that the CFM service contract be terminated.

320     In the alternative to the receiver order, Ample Source sought a winding up of Bonython Metals.

321    Ample Source submitted that winding up had the advantage that all the assets of the company would be put to the market to arrive at the true value and the net proceeds of all of those assets could then be rateably distributed amongst all shareholders. It also had the virtue, in the submission of Ample Source, that the liquidator would certainly terminate the CFM contract. It was also the case that there was no goodwill in the company which might be harmed by winding up and the sale by the liquidator could be on the basis that any shareholder could buy, that is, there would be no restriction on who might be buyers for any of the assets of the company.

322    Against these considerations was the general disadvantage that the interests of Bonython Metals in the joint venture agreements were subject to restriction on assignment clauses. In particular winding up would trigger a right for Carpentaria to buy back the 40% interest in the Hawsons joint venture at a 10% discount to market, inflicting loss on Ample Source and damaging the value of the company.

323    Ample Source submitted that the Court should not appoint a receiver to sell the Ample Source shares on the market and pay the proceeds to Ample Source. This would involve a buyer being offered a minority interest in Bonython Metals knowing that the previous holder of that minority interest had suffered the conduct of the company’s affairs which was within s 232(e). The oppressive conduct would inevitably depress the price the buyer would pay. Further that buyer would not have the benefit of the shareholders agreement and thus the effect of the oppressive conduct would be entrenched in the price Ample Source might receive. Ample Source submitted the only fair remedy would be that the oppressors’ shares be sold and any financial disadvantage in value be visited upon the oppressors.

324    Further Ample Source submitted that there was no evidence on which the Court could find that Bonython Metals could make a selective buyback without harming the creditors.

325    The defendants submitted that no order should be made. It was submitted that the company was not insolvent and that it could raise money to continue.

326    Next it was submitted that if any orders for a buyout were to be made, Mr Hillam should be given the opportunity to buy the shares of Ample Source.

327    Ample Source should not be given a benefit, it was submitted, by bringing the proceedings in the pursuit of a strategy to control Bonython Metals. Ample Source should not be permitted to gain the remedy of control which it could not gain under the shareholders agreement.

328    In the further alternative it was submitted that the Court should order sale or transfer of the assets. This was the position put by Mr Hillam in a letter of offer dated 15 July 2011. It was submitted that the making of a reasonable offer was a significant consideration in an oppression case. The offer was in the following terms:

Firstly:

(a)    Bonython’s interest in the Hawsons Iron Project be sold on the open market; and

(b)    the funds received by Bonython from such sale be used to fund the purchase by Bonython of [Ample Source’s] shares, being its 25% shareholding;

Alternatively:

(a)    Bonython transfer to [Ample Source] 10% of the Carpentaria joint venture in consideration of the transfer by [Ample Source] to Bonython of [Ample Source’s] 25% shareholding (where the 10% share in the joint venture is equal to 25% of Bonython 40% interest in the joint venture); and

(b)    each of the defendants do all things necessary to transfer to [Ample Source] Exploration licence EL 4728, ELA 340/10 and ELA 341/10;

Alternatively:

(a)    the court determines the value of Bonython’s assets;

(b)    orders be made for the transfer of assets to [Ample Source] equal to 25% of the total value of Bonython assets.

329    The defendants also submitted that liquidation, although an option for the Court, was not an attractive one.

330    I am not persuaded that Ample Source’s preferred remedy for a buyout order or a receivership order to the same effect, with the minority buying out the majority, an unusual order, is appropriate in the circumstances of the present case. In my view it is overstating the position to say that the value in Bonython Metals had been created by Ample Source's investment: by virtue of Mr Hillam's work there was a lot more to it than that. There must be proportionality between the conduct and the remedy with the aim of putting an end to the oppression. The primary remedy sought by Ample Source would not be consistent with those principles.

331    In addition, the evidence of the financial capacity of Ample Source to purchase the shares was less than satisfactory. Mr Cheung gave some evidence of discussions with bankers but this evidence was entitled to very little weight as it was unsupported by documentary evidence. Further, Mr Cheung gave evidence of his ownership of listed securities but that evidence also lacked cogency. Further still, the valuations of the properties to which Mr Cheung referred were not in evidence.

332    I accept, as submitted by Ample Source, that the Court should not appoint a receiver to sell the Ample Source shares on the market and pay the proceeds to Ample Source as this would involve a buyer being offered a minority interest where the previous holder had suffered oppressive conduct and this would depress the price.

333    The defendants’ first submission, that there be no order, does not respond to the conduct of the company’s affairs which I have found to be within s 232(e). It has the added problem that it would not bring to an end the state of affairs which I have found to exist.

334    As to the submission that Mr Hillam should be given the opportunity to buy the shares of Ample Source, again that is not responsive to the conduct of the company’s affairs which I have found to be within s 232(e) and, indeed, would tend to give the oppressing parties the benefit of their oppression.

335    I turn to the defendants’ submission that the Court should order the sale or transfer of assets.

336    The first alternative was that Bonython Metals’ interest in the Hawsons project be sold on the open market and the funds received by Bonython Metals from such sale be used to fund the purchase by Bonython Metals of Ample Source’s 25% shareholding.

337    Under this alternative it was submitted that Ample Source could purchase the Hawsons project on the market should it wish to do so and an open market sale would remove any difficulties with valuation. As I have already noted, it was submitted that the sale of the Hawsons project would remove any uncertainty over the status of the Redan lease and thereby avoid great unfairness that would result to Mr Hillam were it not to be included and it would realise the true market price of the asset, rather than relying on assessment from vastly differing expert evidence. Such sale would give Bonython Metals sufficient moneys to buy back the shares of Ample Source at a price which satisfied the value placed on the assets by Ample Source.

338    In my view, this alternative was in substance only a slight variant of the submission that Mr Hillam should be given the opportunity to buy the shares of Ample Source. It therefore has within it the difficulties to which I have already referred. It would also appear to involve the later determination of the value of the 25% minority shareholding of Ample Source and be unattractive on that account as well. I accept however that the Redan lease has an uncertain status.

339    The second alternative was that Bonython Metals transfer to Ample Source 10% of the Carpentaria joint venture in consideration of the transfer by Ample Source to Bonython Metals of Ample Source’s 25% shareholding (where the 10% share in the joint venture is equal to 25% of Bonython Metals’ 40% interest in the joint venture) and each of the defendants do all things necessary to transfer EL 4728, ELA 340/10 and ELA 341/10 to Ample Source. This would require clear and precise evidence of the matter in parenthesis at least. The evidence before me is not of that quality and on that ground I would not make an order in those terms.

340    The third alternative was that the Court determine the value of Bonython Metals’ assets and orders be made for the transfer of assets to Ample Source equal to 25% of the total value of Bonython Metals’ assets. This alternative seems to me theoretical only in that it assumed that Bonython Metals has or will have the capacity to make a payment of such a size. It would also involve, on Bonython Metals’ case, the protracting of the present proceedings. In light of the conduct which I have found and the need to provide a solution to the parties’ continuous quarrelling and an end to the litigation between them, I would not adopt this alternative.

341    In relation to the offer, I have considered its contents on their merits but, although relevant, I do not regard it as mitigating the conduct of the affairs of Bonython Metals which I have found to be within s 232(e). It does not deal directly with that conduct and the timing of the offer, the Friday before the commencement of the final hearing on Monday 18 July 2011, shows that it was temporally unrelated to the substance of the matters of which Ample Source complained: see generally Tomanovic v Global Mortgage Equity Corporation Pty Ltd [2011] NSWCA 104, (2011) 84 ACSR 121 at [226] and following.

342    For the reasons I have indicated, none of these proposed orders is, in the exercise of my discretion under s 233, appropriate.

343    In my view the appropriate order under s 233 is that Bonython Metals be wound up.

344    I accept that an order that a solvent company be wound up is an extreme step and it is a less than perfect remedy: the full value of the company with its present interests may not be obtained. But there is no offer to buy the shares of the minority or of the majority at a fair price while the liquidator can sell the assets on the open market and divide the proceeds, absent a sale of the company's assets to one of the disputing parties.

Application for leave under s 237

345    Ample Source also applied for leave under s 237 to bring proceedings on behalf of Bonython Metals against Mr Hillam, Ms Teeranukul and Wentworth Metals in relation to the breaches on the basis that the five criteria in s 237 have been established.

346    The object of that leave was, first, to recover the $209,000 which, it was submitted, was wrongly paid to Wentworth Metal in 2010. Second, the object of the leave was to enable a constructive trust to be ordered so that the tenements that Wentworth Metal acquired in its own name could be held for Bonython Metals. Third, if the Court did not order that the CFM contract be terminated by way of relief against oppression, the derivative proceedings could enable Bonython Metals to seek an order from the Court terminating the CFM service contract.

347    In light of the remedy I propose to grant, it would not be appropriate to make an order granting leave. It would be likely to be a legal embarrassment to a liquidator.

Applications subsequent to judgment being reserved

348    These matters were the subject of directions and oral argument on 7 October 2011, 19 October 2011, 28 October 2011 and 3 November 2011.

Application to reopen

349    After judgment was reserved the defendants applied to reopen in relation a number of topics.

350    One topic was the inclusion of the Redan lease as an asset of the joint venture between Carpentaria and Bonython Metals and thus as an asset of Bonython Metals, and the related question of the amalgamation by Carpentaria of the Redan lease with the other Hawsons tenements.

351    A second topic was a notice of dispute and a board meeting of Bonython Metals of 14 September 2011.

352    The other topics were the financial position of Bonython Metals; the financial position of Mr Cheung; and the financial position of Mr Hillam.

353    This application was filed on 28 September 2011 and the relevant affidavits were those of Mr Hillam affirmed 27 September 2011, 17 October 2011 and 28 October 2011. Mr Hillam also affirmed an affidavit of 19 October 2011 relevant to an interlocutory application by Ample Source.

354    Ample Source relied on affidavits of Thomas Ritchie sworn 11 October 2011, 21 October 2011 and 27 October 2011 and an affidavit of Ms Lau filed on 11 October 2011. In the aggregate, these affidavits were relevant both to the defendants’ application and to the application of Ample Source.

355    Leave to reopen needs to be considered by reference to the Full Court decision in Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 138–139. The threshold is lower than that which applies after the entry of judgment. If there was no deliberate decision not to call material, the primary consideration is embarrassment or prejudice to the other side: Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 at 266-267. The essential principle is that the Court should do justice as between the parties. Within that concept, of course, must be the cogency or relevance of the material sought to be adduced on the application to reopen. There is reference in Londish to applications to amend and therefore the approach in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 must now inform the principle.

356    In my view, the approach taken in other courts, examples of which are Reid v Brett [2005] VSC 18 and EB v CT (No 2) [2008] QSC 306, relied on by Ample Source, is inconsistent with the principle in relation to reopening as articulated in Londish. I must follow the authority in this Court and I apply Londish.

357    It was the position of Ample Source in relation to the application to reopen that a further hearing date would be necessary if that application was successful since cross-examination would be necessary and Ample Source would also wish to tender evidence of its own.

358    In my opinion, as to each of the topics I have set out above, the evidentiary material is insufficiently relevant given the orders I propose to make in the substantive proceedings. I therefore refuse the application by Bonython Metals to reopen.

359    The defendants also sought directions in relation to the matters raised in paragraph 193 of the written submissions of Ample Source dated 17 August 2011. This matter was as follows:

193    In conducting his valuation of [Bonython Metals], it was not possible to Mr Rudenno to take into account the liabilities of [Bonython Metals] (which were unknown to him and [Ample Source]). [Ample Source] submits that should the court order that [Ample Source] buy out Hillam and Teeranukul’s shares in [Bonython Metals], the valuation on which that order is based ought to be expressed as subject to deductions representing the liabilities of [Bonython Metals]. The extent of any such liabilities (including any significant contingent liabilities of [Bonython Metals]) is a matter for evidence, which ought to be adduced at a short hearing following the making of any buy-out order.

360    Since I do not propose to make an order that Ample Source buy out the shares of Mr Hillam and Ms Teeranukul in Bonython Metals the directions sought by the defendants in this respect are not necessary.

361    By the same interlocutory application the defendants sought an order that order 3 made on 18 March 2011 restraining Wentworth Metal from terminating certain agreements with Bonython Metals be set aside. That order was in the following terms:

. . . up to and including the final hearing of these proceedings, or until further order, [Wentworth Metal] be restrained from taking any steps to terminate or purporting to terminate the Binding Terms Sheets with [Bonython Metals] dated 15 February 2011 relating to ELAs 300/09, 05/10 and 24/10.

362    It is to be noted therefore that this particular application was to deal with the position only up to the delivery of final judgment or, which was the position of Bonython Metals at the hearing on 19 October 2011, before that time. Since it was not possible to determine this matter separately from and before judgment in the substantive proceedings this application for relief no longer has any utility and I do not make the order there sought.

363    The parties also referred in oral argument to whether certain interlocutory orders should or should not be extended. Again, because it was not possible to determine those matters separately from and before judgment those issues no longer have any utility and it is not necessary for me to deal with them.

Interlocutory application by Ample Source

364    By way of further interlocutory application filed on 11 October 2011, Ample Source applied for certain orders "until judgment or until further order".

365    This application sought to restrain Bonython Metals from spending $336,000 in respect of EL 4589, the Mega Hindmarsh tenement, until judgment; to restrain Bonython Metals from paying $16,235.75 to Australian Laboratory Services in relation to certain invoices; to restrain Bonython Metals from implementing any business plan and budget unless they were first approved by the directors of Bonython Metals; and to restrain Bonython Metals from conducting the business of Bonython Metals or authorising Bonython Metals to adopt or perform a business plan and budget without approval of the directors of Bonython Metals.

366    Since it was not possible to determine these matters separately from and before judgment in the substantive proceedings the interlocutory application of Ample Source no longer has any utility and I do not make the orders there sought.

Conclusion

367    My conclusions are:

1.    The first defendant should be wound up.

2.    The first defendant, the second defendant and the fourth defendant should do all things necessary to cause the first defendant to issue a further ten fully paid ordinary shares in the first defendant to the plaintiff.

3.    The cross-claim of the second defendant and the fourth defendant should be dismissed.

4.    The plaintiff is entitled to appoint two directors to the board of the first defendant and, while the plaintiff remains a shareholder in the first defendant, to replace that director in accordance with the Constitution of the first defendant.

5.    Costs should follow the event and Ample Source should have its costs.

368    I direct the plaintiff to file by 8 February 2012 short minutes of order giving effect to these reasons, including in respect of the interlocutory applications and also including which of the defendants should pay the costs of the plaintiff in the substantive proceedings. If the defendants resist the orders filed by the plaintiff they should file competing short minutes by 15 February 2012.

369    I direct that the proceedings be listed before me for the making of final orders at 9.30 am on 22 February 2012. The parties have liberty to apply on three days written notice.

Associate:

Dated:    22 December 2011