Federal Court of Australia

VRM Global Holdings Pty Ltd v Savannah AG Research Pty Ltd (Administrators Appointed), in the matter of Savannah AG Research Pty Ltd [2023] FCA 131

ORDERS

THE COURT ORDERS THAT:

1.    The originating application is dismissed.

2.    The applicant is to pay the costs of the third and fourth respondents in an amount to be assessed or agreed.

3.    The parties have liberty to apply for an order fixing the quantum of costs for the purposes of paragraph 2. 

4.    The order in paragraph 2(a) of the orders made on 9 September 2022 be varied such that the words “further order” be substituted with “16 March 2023”.

5.    The order in paragraph 4 of the orders made on 9 September 2022 be varied such that the words “further order” be substituted with “16 March 2023”.

6.    The second respondent has liberty to apply for ancillary or consequential relief relating to the judgment delivered today.

7.    Any party seeking an order for damages pursuant to the undertaking provided by the applicant and its director in support of the injunction granted on 9 September 2022 has liberty to apply within this proceeding for any such award.

8.    The orders in paragraphs 2(b), 2(c), 2(d) and 3 of the orders made on 9 September 2022 are discharged.

9.    Liberty to apply.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    The first respondent, Savannah Ag Research Pty Ltd, operates a biotech business for the development and production of sustainable crops, including seed development, planting and the production and sale of seed-based products. At the time of its incorporation on 3 December 2019 its sole shareholders and directors were the third and fourth respondents, Mr Anthony Matchett and his wife Mrs Catherine Matchett (together, the Matchetts).

2    On 22 August 2022 the Matchetts, in their capacity as directors, passed a resolution under s 436A of the Corporations Act 2001 (Cth) providing for the voluntary appointment of joint and several administrators to Savannah (Resolution). The Resolution stated that the directors were of the opinion that Savannah was insolvent or would likely become insolvent at some time in the future.

3    The applicant, VRM Global Holdings Pty Ltd is the majority shareholder of Savannah. It alleges that the Resolution was not validly made because either or both directors did not genuinely hold an opinion as to the present or future insolvency of Savannah. Alternatively, VRM alleges that the Resolution was passed by the Matchetts for a purpose extraneous to the Act, namely to defeat its interests in having them removed and replaced as directors. It seeks relief alternatively under s 447A(1) or s 447C(2) of the Act. Other relief sought on the originating process is dependent on the success of at least one of those primary claims.

4    The two joint administrators, Mr Adam Peter Kersey and Mr David Michael Stimpson were together joined as the second respondent but adopted a neutral position in the dispute and were excused from attendance for most of the trial.

5    For the reasons that follow, I have concluded that VRM’s application for orders under s 447A(1) or s 447C(2) of the Act should be dismissed. It follows that the application for additional relief sought on the originating process will not be entertained. I will hear from the parties as to ancillary or consequential orders, including in relation to an interlocutory injunction granted on VRM’s application prior to the commencement of the trial.

THE ACT

6    Part 5.3A of the Act establishes a regime for the administration of a company’s affairs with a view to executing a deed of company arrangement. The object of Pt 5.3A is to provide for the business, property and affairs of an insolvent company to be administered in a way that maximises the chances of the company or its business continuing in existence or that otherwise results in a better return to the company’s creditors and members that would result from an immediate winding up of the company:  Act, s 435A.

7    Section 436A(1) of the Act provides:

(1)    A company may, by writing, appoint an administrator of the company if the board has resolved to the effect that:

(a)    in the opinion of the directors voting for the resolution, the company is insolvent, or is likely to become insolvent at some future time; and

(b)    an administrator of the company should be appointed.

…

8    A company is solvent if, and only if, it is able to pay all of its debts as and when they become due and payable:  Act, s 95A(1). A company that is not solvent is insolvent:  Act, s 95A(2).

9    The power of a board of directors to appoint an administrator is pre-conditioned not by the objective fact of insolvency, but by the passing of a resolution to the effect that the company is, in the opinion of the directors voting for the resolution, insolvent or likely to become insolvent at some future time. In Smolarek v Brian Keith McMaster as administrator of Eznut Pty Ltd (No 2) [2008] WASCA 234, Pullin JA said at [55] with Wheeler JA and Le Miere AJA agreeing at [1] and [95]:

The opinion referred to in s 436A must be bona fide and genuinely formed. A concluded opinion, rather than a tentative opinion, is necessary. If a bona fide opinion is genuinely formed as to ‘actual’, ‘likely’ or ‘actual or likely’ insolvency, that opinion will satisfy the requirements of s 436A.  …

10    If the relevant directors’ opinion is not held or not held in good faith, the resolution will be invalid:  Kazar v Duus (1998) 88 FCR 218 (at 231). An inability to determine whether or not a company is insolvent is not sufficient to enliven the statutory power in s 436A:  Wagner v International Health Promotions Pty Ltd (1994) 15 ACSR 419, Santow J (at 421); Kazar at 231; In the matter of Bean & Sprout Pty Ltd (admin apptd) [2018] NSWSC 351, Black J (at [46]).

11    In Re Warwick Keneally as administrator of Australian Blue Mountain International Cultural & Tourist Group Pty Ltd (admin apptd) [2015] NSWSC 937, Black J said at [96]:

The exercise of the power to appoint an administrator will be invalid, and the purported appointment will be invalid, if that power is exercised for an ulterior or extraneous purpose and that purpose is substantial in the sense that the decision would not have been made but for the ulterior purpose…

12    Expressed another way, an extraneous purpose will not be “substantial” if the directors passing the resolution would have appointed the administrators for a proper purpose in any event: Re Lime Gourmet Pizza Bar (Charlestown) Pty Ltd [2015] NSWSC 244 at [44] – [45] and [53] – [54]. Fulfilment of the test requires the ascertainment of the purpose for making the resolution, the characterisation of the impugned purpose as “improper” or “extraneous” in the sense that it is inconsistent with the objectives of Pt 5.3A of the Act and proof that the purpose actuated the resolution in the “but for” sense identified in the authorities.

13    Division 13 of Pt 5.3A contains provisions conferring powers on this Court in relation to companies under administration. Section 447A(1) provides that the Court may make such orders as it thinks appropriate about how Pt 5.3A is to operate in relation to a particular company. Section 447A(2) provides that if the Court is satisfied that the administration of the company should end because the provisions of Pt 5.3A are being abused, the Court may make an order under s 447A(1) that the administration is to end.

14    Section 447C(2) relevantly provides that if there is doubt, on a specific ground, about whether a purported appointment of a person as administrator of a company is valid, the person, the company or any of the company’s creditors may apply to the Court for an order under subs (2). The Court may make an order under s 447C(2) declaring whether or not the purported appointment was valid on the ground specified in the application or on some other ground. The records before me indicate that VRM is a creditor of Savannah and so has standing to apply for such an order. The Matchetts did not contend otherwise.

15    An order made under s 447A(1) has the effect of bringing the administration to an end from the time that the order is made. It has no effect on the validity of the administration and the acts of the administrator up to that time.

16    Counsel for VRM submitted that the effect of a declaration under s 447C(2) of the Act founded on a lack of genuine opinion as to insolvency is to declare the appointment of administrators to be void ab initio. On the other hand, VRM submitted regardless of the opinion as to insolvency if the appointment was made for a substantial extraneous purpose a declaration under s 447C(2) of the Act would only render the appointment voidable.

17    In this case, it is unnecessary to consider the different legal consequences that would follow should an order be made under s 447A(1) bringing and administration to an end as compared to an order under s 447C(2) declaring the appointment of administrators to be invalid, because neither order will be made.

VRM’S CASE

18    As expressed in closing submissions, VRM asserted four “pathways” by which it was said that the Resolution is “either void or voidable”. Adopting the words of the submission they are:

(1)    Mr Matchett did not genuinely form the opinion required by s 436A of the Act on the basis that he did not genuinely turn his mind to relevant factors concerning solvency of Savannah, in fact being motivated by extraneous considerations;

(2)    Mrs Matchett did not form the belief because she relied blindly on Mr Matchett and did not independently enquire into Savannah’s financial position;

(3)    Even if the Matchetts had a genuine belief as to future insolvency, they acted with extreme haste motivated by a purpose of self-interest, to defeat the legitimate exercise of the applicant’s powers inimical to their own interests … ;

(4)    Even if the Matchetts had a genuine belief as to future solvency, the appointment had a dominant purpose to effect a separation of their interests from VRM, which was not a proper use of the power granted by Pt 5.3A.

19    The “power” of VRM referred to in the third pathway is its capacity as Savannah’s majority shareholder to convene an extraordinary general meeting (EGM) for the asserted purpose of passing a shareholders’ resolution for the removal of the Matchetts as directors of Savannah. As identified below, the appointment of administrators occurred 2 hours and 19 minutes after the Matchetts received notice that VRM had called an EGM. That temporal coincidence is relied upon heavily by VRM in support of an inference that the Resolution was made for a purpose extraneous to the objectives of Pt 5.3A of the Act.

THE HEARING

20    At trial, the onus was on VRM to establish its case to the civil standard of proof in accordance with s 140 of the Evidence Act 1995 (Cth). To that end it called three witnesses: Mr Kenneth Bellamy, Ms Kellie Walters and Mr James Lord. Their evidence in chief was adduced by affidavit, subject to rulings on objections. A bundle of documents was tendered independently of the affidavits. Mr Matchett cross-examined each of VRM’s witnesses.

21    The Matchetts were self-represented throughout the trial. Submissions advanced by Mr Matchett were adopted by Mrs Matchett as a respondent in her own right, with some supplementation of her own.

22    The Matchetts’ unrepresented status had a number of consequences for the conduct of the trial, one of which was the absence of experienced counsel to cross examine VRM’s deponents so that their testimony was not effectively tested. That is not to criticise any party or witness, it is simply to observe that in a case such as the present the Court is hesitant to make an assessment of the credit of VRM’s witness based too heavily on impressions of them in the course of giving oral evidence. In any event, I can identify no critical issue that depends upon a demeanour-based assessment of the credit of Mr Bellamy, Ms Walters or Mr Lord. As discussed below, whilst there were a multitude of issues in dispute between the Matchetts and particularly Mr Bellamy in the conduct of Savannah’s business, it is largely unnecessary for the Court to resolve them. The relief sought on the originating process turns rather on the Court’s assessment of the Matchetts’ subjective state of mind. That is a question of fact to be determined in light of all of the objective circumstances, however in this case my consideration of the objective circumstances has not involved an adjudication as to who had the best or correct commercial judgment about how Savannah’s business should be conducted.

23    The Matchetts did not file sworn affidavit evidence in advance of the trial. Instead, Mr Matchett prepared a number of schedules by which he gave written responses to VRM’s affidavits at the level of each paragraph, together with written submissions asserting the existence of facts and business records.

24    Mr Matchett’s evidence in chief was given orally with some assistance of the Court (provided with VRM’s consent). He adopted the truth of that part of the response documents (and parts of the submissions that took the form of asserted facts) that had not been ruled inadmissible for that purpose. He supplemented that material with additional oral evidence in chief. The Court adapted its procedures so as to prompt evidence from each of the Matchetts by headlining topics for them and asking them to elaborate on their evidence where it was considered fair and appropriate to do so. VRM was afforded the opportunity to object to the procedure as well as to the topics and the manner in which they were prompted.

25    Mrs Matchett adopted the truth of some parts of the response documents that were within her personal knowledge. She too gave additional oral evidence in chief, prompted by topics.

26    My impressions of the Matchetts as witnesses have been formed in circumstances where they appeared for the whole of the hearing by way of a video link (as did VRM’s counsel and witnesses). I do not consider that form of hearing inhibited my ability to observe them in the course of their evidence, although their cross-examination was interrupted at times by difficulties adjusting their audio and the need to refer to documents in a way that was efficient and fair. They each absented themselves from the room when the other was giving evidence.

27    My general observation of Mr Matchett is that he was an argumentative but authentic witness. His disdain for VRM was made plain in his exchanges with VRM’s counsel. His responses to some questions had an air of sarcasm and he was inclined to rhetorical flourishes, often reflecting a sense of resentment that these proceedings were on foot. I nonetheless formed the impression that he was not overly guarded in his responses and that his answers were not artificially crafted with an end result in mind. His evidence focussed heavily on addressing accusations made against him by VRM and in that context he at times presented as defensive, however I consider that to be a reflection of the manner in which VRM had presented its own case. Considered as a whole, I do not consider that the cross examination of Mr Matchett revealed any part of his evidence to be deliberately untruthful or misleading. Mr Matchett readily acknowledged engaging in conduct that he knew was against the stated wishes of VRM. I do not consider that conduct to reflect on his veracity as a witness in the proceedings but it nonetheless forms a part of the factual background against which the Resolution was made. On the basis of those impressions and my assessment of the evidence as a whole I consider Mr Matchett to be a witness of truth.

28    Mrs Matchett’s responses in cross-examination were terse at times. She occasionally asserted that she did not understand a straight-forward question, but on those occasions Counsel for VRM did not suggest that she was being deliberately evasive. She at times responded to questions with the phrase “no comment”. Whilst that was neither appropriate nor helpful I consider it to be a product of Mrs Matchett’s status as an unrepresented litigant and no point was taken about it by VRM’s counsel so as to inform Mrs Matchett to appreciate that she would respond in a manner that was more forthright.

29    Mrs Matchett did not attempt to suggest that she had a greater role in Savannah’s affairs than she actually had. I consider she was frank and truthful in her responses to questioning about the extent to which she relied on the advice and information provided to her by Mr Matchett. There was some ambiguity or discrepancy in Mrs Matchett’s evidence concerning the date upon which she obtained and considered some financial records relating to Savannah. I will return to that topic in due course.

30    On the whole, my findings should be understood as proceeding from a general acceptance of the Matchetts’ evidence (in respect of the matters that call for findings) except where it is otherwise stated in these reasons.

31    The parties otherwise relied on additional documents tendered as business records independently of their affidavit or oral evidence, the content and authenticity of which are not disputed. They have been read, again subject to rulings as to admissibility and use and they now form the basis of many of the undisputed factual findings that follow.

FACTS

32    It is convenient to express my findings first by reference to objective facts and circumstances and then by reference to the states of mind relating to them. For the most part the events leading up to the appointment of the administrators and the events that followed are not in dispute. Nor is there dispute as to the authenticity of documentary records, including correspondence most of which speaks for itself. Except where otherwise stated, my findings in relation to the objective facts and circumstances are based on uncontroversial evidence.

33    I will consider separately the opinions and perspectives of the Matchetts with respect to past events as they perceived them to be. It will be necessary to make an assessment as to the extent to which those matters informed their assessment of Savannah’s position and their motivations in passing the Resolution more generally.

Objective facts and circumstances

34    VRM forms part of a group of companies referred to by Mr Bellamy as the “VRM Group”. Mr Bellamy refers to himself as the president of the VRM Group. At all relevant times the Chief Executive Officer of one of the companies in the VRM Group was Ms Walters. Companies within the VRM Group operate a business for the research and production of agricultural products and technologies, including environmentally resistant food produce and animal feed.

35    In late 2021, Mr Bellamy entered into discussions with the Matchetts about investing in Savannah.

36    In January 2022 Savannah became a licenced distributor and manufacturer of VRM products pursuant to a licence agreement with another company in the VRM Group, VRM International Pty Ltd. Then, on 8 February 2022, an agreement was entered into having two components, referred to in the evidence as the Cash Flow Agreement and the Share Option Agreement.

37    The relevant features of the transaction were as follows:

(1)    VRM would purchase 500 ordinary shares in Savannah from each of the Matchetts for a total purchase price of $360,000.00;

(2)    Savannah would issue a further 250 allotted shares to VRM at a capital value of $220,000.00;

(3)    Savannah would appoint a VRM nominee as a third director of its Board;

(4)    VRM would transfer 100 ordinary shares to Ms Kate Fabian (a founding employee of Savannah) at no cost;

(5)    VRM would fund a salary for Mr Matchett (Management Payments), an obligation expressed at clause 4 of the Cash Flow Agreement in the following terms:

VRM to provide Cash Flow support totalling $120,000.00 to offset the cost of a salary for Anthony Matchett. It is agreed that this element is satisfied by VRM making 12 monthly payments of an amount equivalent to the Net Salary applicable for a Gross Salary of $10,000.00 per month to Anthony Matchett and 12 monthly payments of an amount equivalent to the tax payable for a Gross Salary of $10,000.00 directly to the Australian Taxation Office all on behalf of Savanah Ag Research Pty Ltd. The date of commencement of these payments is the date of this agreement.

(6)    VRM would pay superannuation and tax with respect to the Management Payment;

(7)    VRM would purchase $125,000.00 of Savannah product;

(8)    VRM would pay $50,000.00 for the cost of consultancy fees paid to Ms Fabian;

(9)    VRM granted to the Matchetts an option (exercisable within 10 years) to buy a certain portion of VRM’s shares at an agreed price to effect a reduction of VRM’s shares to less than majority holding;

(10)    VRM granted Savannah an option to buy back a 150 of VRM’s shares at an agreed price with the effect that VRM would no longer hold the majority of shares;

(11)    VRM would provide accounting and record keeping support for Savanah with Savannah assisting with the provision of sales, pricing, inventory and client management information;

(12)    VRM and Savannah would mutually assist each other in marketing; and

(13)    VRM would provide other “in kind” support including the use of storage facilities, farm equipment and vehicles.

38    Following the transaction, Savannah’s 2250 issued shares were held:

(1)    1150 by VRM;

(2)    500 by Mr Matchett;

(3)    500 by Mrs Matchett; and

(4)    100 by Ms Fabian.

39    The money personally received by the Matchetts in consideration for the sale of their shares was expended in a way that meant that it was no longer available to them over the months that followed. They did not otherwise have sufficient personal funds to cause Savannah to buy back a portion of VRM’s shares in accordance with the Share Option Agreement.

40    On 8 February 2022 Ms Walters was appointed as a director of Savannah as VRM’s nominee.

41    Following VRM’s share acquisition, relations between the Matchetts and VRM (particularly Mr Bellamy) rapidly soured.

42    A critical event occurred in March 2022 when VRM defaulted on its obligation to make the monthly Management Payment then due under the Cash Flow Agreement. Only one such payment had been made at that time and no further payments were ever made. VRM did not put forward a positive case that its failure to make the monthly payments from March 2022 was not in breach of the Cash Flow Agreement. There is otherwise nothing in the evidence to show that the cessation of the payment was justified as a matter of law. My reference in these reasons to a breach of the Cash Flow Agreement should be understood as referring to a belief on the Matchetts’ part that VRM was in breach. Whilst this is not a trial founded in breach of the contract I am satisfied for the purposes of this proceeding that the Matchetts’ belief was correct.

43    In her affidavit Ms Walters described the management and directors fees as being one of Savannah’s “key expenses”. That is an apt description. The failure of VRM to comply with is contractual obligations to Savannah in this respect resulted in directors payments owing to Mr Matchett being paid directly out of Savannah’s resources.

44    A further critical feature of the relationship was Mr Bellamy’s assumed entitlement to dictate the day to day business judgment decisions of the Board of Savannah. Mr Bellamy was not a director of Savannah. Whilst VRM had a contractual right to have a director appointed to the Board, that director was Ms Walters. She alone could not pass a resolution affecting the company’s day to day operations or its financial affairs. VRM had voting rights as a shareholder of Savannah, sufficient to remove the Matchetts as directors, but those rights were not in fact exercised before the administrators were appointed. In closing submissions VRM asserted that the situation was one in which VRM exercised “practical” control, requiring the Matchetts’ to “dance to the tune” of Mr Bellamy. I accept that VRM (particularly by Mr Bellamy) exercised practical control over Savannah.

45    Although Mr Bellamy was not a member of the Board of Savannah his evidence and conduct disclose a belief that he could and should dictate Savannah’s business plan and general direction in direct dealings with the Matchetts and that he could cause VRM to possess and control Savannah’s assets, and that is what he did in fact. His opinion as to the management of the affairs of Savannah differed from those of Mr Matchett including in respect of commercial matters affecting Savannah’s future profitability. Again, it is unnecessary for the Court to determine whether Mr Bellamy’s position in that conflict is correct. It is sufficient to identify that Mr Matchett and Mr Bellamy were at odds over matters concerning fundamental aspects of the business including development, production, planting, storage and sale of seed. At all times during that conflict the Matchetts had a duty to act in the best interests of Savannah, which in circumstances of solvency equated to the best interests of all of the shareholders (not just VRM). In circumstances of insolvency or near insolvency, the duty was to act in the best interests of creditors and to otherwise comply with the Act.

46    The relationship between VRM and the Matchetts deteriorated to the point where Mr Bellamy accused Mr Matchett of acting against the best interests of Savannah in particular transactions, accusations that Mr Matchett denied. The existence, nature and intensity of the business-related disputes is relevant to the Matchetts’ subjective assessment of Savannah’s financial position as identified later in these reasons. At this juncture, it is sufficient to mention two issues that were the cause of some conflict.

47    The first may be referred to as the ‘Mareeba Issue’. It arose when VRM insisted on Savannah’s seed stock being moved from a storage facility in Mareeba to a facility in Townsville that it owned and operated. The owner of the facility at Mareeba (Mr Santoscoy) would not release the seed until a payment had been made for use of the facility. Mr Matchett informed VRM that the money was in fact owed by Savannah to the facility owner pursuant to a memorandum of understanding and because the owner had suspended payments under that arrangement since December of the previous year. Mr Bellamy was dissatisfied, including because a liability owing to the owner of the Mareeba facility had not been disclosed in the financial records provided by Savannah to VRM prior to VRM acquiring its shares. Mr Matchett was directed to sort the problem out himself.

48    The second may be referred to as the ‘Rossi Issue. It arose in a context where Mr Matchett and Mr Bellamy were in dispute about payments that should be made to seed growers to recompense them for use of products known as catalyst and groundswell. Mr Matchett had previously operated the business on a model where Savannah made those payments and bought back the crops for resale at a profit. Mr Bellamy’s view was that growers should cover those costs and that there should be no buy-back of crops. That fundamental difference between them was apparent from about March or April 2022. On 9 April 2022, Mr Bellamy sent a text/WhatsApp message to Mr Matchett demanding that he be provided with an invoice sent to a grower named Rossi. He followed up with the terse message: “this is not a casual request”. The messages indicate a level of distrust on the part of Mr Bellamy as to whether Mr Matchett would operate in accordance with VRM’s demands on the issue. On 10 April 2022 Mr Matchett generated an invoice for Rossi and provided a copy to Mr Bellamy. He did not tell Mr Bellamy that he had agreed with Rossi that the expenses of the catalyst and groundswell would be met by Savannah. He asked Rossi to issue an invoice addressed to the Matchetts personally to cover the costs of the catalyst and groundswell. The Matchetts paid that invoice from their own funds. Mr Matchett reasoned that after the payment and the buy-back of crops there would be a significant profit to be made for Savannah. Mr Matchett told the Court that he knew that Mr Bellamy would disapprove of the transaction and so sought to conceal it from him.

49    By 7 April 2022 Mr Matchett was expressing his frustrations in writing, including his concerns about Savannah’s revenue streams, paths to market and budget assumptions. In an email sent on that day he expressed the view that the entire business model needed to be addressed because he could not see revenue paths that would contribute income to the business.

50    On 13 or 14 April 2022 Ms Walters attended at a branch of Savannah’s bank together with the Matchetts where they signed forms to enable Ms Walters to become a signatory to Savannah’s bank accounts. As at 9 May 2022 their requests had not been processed by the bank.

51    That day Mr Bellamy, Ms Walters and the Matchetts attended a meeting at VRM’s Brisbane premises (9 May meeting). At that meeting, Mr Bellamy demanded that Ms Walters become a signatory to Savannah’s bank accounts. Mr Bellamy alleges that he insisted upon her becoming a signatory as a condition of VRM reinstating the Management Payments under the Cash Flow Agreement. I have already observed that VRM was in breach of the Cash Flow Agreement by withholding the Manager Payments and I am satisfied that Mr Bellamy had no legal entitlement to make demands concerning access to Savannah’s bank accounts as a precondition to the reinstatement of the payments. As explained elsewhere in these reasons, I have concluded that at the time of the Resolution, the Matchetts proceeded on a reasonable assumption that there was no prospect of the Manager Payments resuming. I would arrive at that conclusion whether or not the bank signatories demand was made as a condition of their restoration.

52    The conflict between Mr Bellamy and Mr Matchett concerning Savannah’s business plan was also the subject of a heated conversation between the two of them at the 9 May meeting.

53    When Mr Matchett attempted to remove himself from the meeting Mr Bellamy said words, in an aggressive tone, to the effect:

Your next decision is a very important one. If you choose now to leave this room, I will destroy you. The next correspondence you get will be from my lawyer, and he will take you for everything.

54    Mr Matchett’s evidence as to the content and tone of that statement was not challenged and I accept it.

55    Following the 9 May meeting, Mr Bellamy insisted that he too become a signatory to Savannah’s bank accounts.

56    On 10 May 2022 Mr Matchett sent an email to both Mr Bellamy and Ms Walters advising that he had received a call from Savannah’s bank confirming that “2 director authentication” could be set up for transactions on Savannah’s accounts, however the bank could not specify that Ms Walters be a necessary signatory. Mr Matchett asked Mr Bellamy and Ms Walters whether they wanted to follow the issue up for themselves, or whether the issue should be “managed internally”. He did not receive a response. Mr Matchett did not otherwise take steps to make Mr Bellamy an additional signatory to Savannah’s accounts. In cross examination he said that he did not consider that Mr Bellamy had any right to be a signatory in circumstances where he was not a director of Savannah.

57    I reject assertions by both Mr Bellamy and Ms Walters that the Matchetts had failed to take all steps necessary to make Ms Walters a signatory on Savannah’s bank accounts (assuming for present purposes they had any legal entitlement to insist upon it). It was within their power to follow up with Savannah’s bank both in respect of the forms signed by Ms Walters in mid- April 2022 and in relation to the issue raised in Mr Matchett’s email of 10 May 2022. Ms Walters gave evidence to the effect that she was concerned that there was inadequate transparency with respect to Savannah’s banking. That evidence is difficult to reconcile with her acceptance that the Matchetts attended with her at the bank in April 2022 to complete the necessary forms, and with the failure by her and Mr Bellamy to respond to Mr Matchett’s email of 10 May. I accept Mr Matchett’s evidence that when Mr Bellamy complained at the 9 May meeting that Ms Walters had not been made a signatory, Ms Walters remained mute notwithstanding that she had by that time signed forms with the bank with the Matchetts’ cooperation.

58    Ms Walters deposed that it remained within Savannah’s responsibility and control to oversee seed planting to ensure revenue streams. That evidence is contradicted by the contemporaneous correspondence and I do not accept it. On 18 July 2022 Mr Matchett sent an email to Ms Walters asking her how many hectares of a list of 11 seed and grain products had been planted and the crop locations because he needed to know what the supply would be available for customers. The correspondence is consistent with Mr Matchett’s claim that he had been denied transparency of stock because it had been brought under VRM’s physical control in Townsville. Ms Walters did not respond in terms that the question was unusual or unnecessary. Instead, she briefly stated in an email dated 19 July 2022 that there had been some sunnhemp and mustard seed planted and noted their locations. Mr Matchett otherwise told the Court that the majority of Savannah’s seed stock had been earlier relocated to a storage facility in Townsville controlled by VRM which limited his physical access to it and information about it.

59    On 16 July 2022 Mr Matchett complained that VRM’s accounting records relating to Savannah were incorrect, including because they made no provision for VRM’s broken commitment to make the Management Payment and associated superannuation. He complained that the accounting services provided by VRM were “far from supportive”. He stated that Savannah would be reverting to its own Xero accounting system from 1 July 2022 and would submit monthly reports prepared by a book keeper “to bring efficiency back to accounting for Savannah”.

60    On 21 July 2022, Mr Matchett emailed a letter to Mr Bellamy (copying Ms Walters) in the following terms:

We refer to our ongoing discrepancies over Savannah AG and how the company is to progress.

As you know Kate, William, Catherine and I ran the company prior to you coming on as an investor. We ran the company with a vision in mind and believed that you shared that same vision for the company.

However, recent events have led us to believe that there is no shared vision for the company and you seek a different outcome. Examples of those events include that you have rejected our business plans and stopped us from engaging with our grower suppliers.

You have also not met your obligations in respect of the purchase of the shares in Savannah which required a contribution equal to my wage and superannuation. That payment was made in the first month, but there has been no payment of that amount since. That is despite VRM contributing funds towards Kate’s wage.

With that in mind, Catherine and I have come to the conclusion that we need to look towards an amicable separation.

Please let us know your proposal to overcome this impasse.

We look forward to receiving your response by 26 July 2022.

61    No response was received.

62    On 1 August 2022 Mr Matchett made arrangements for the return to VRM of a vehicle provided to Savannah for its use under the Cash Flow Agreement. In the days following he made arrangements for the return of some bulk containers containing a variety of VRM products owned by Savannah to VRM’s Townsville premises. Ms Walters deposed that the products in the returned bulk containers could instead have been sold by Savannah for a profit of $18,000.00 but did not state the time frame in which that might have been achieved nor whether such a sale would have been commended or facilitated by VRM.

63    Ms Walters resigned as a director on 3 August 2022. There is no evidence that her asserted reasons for her resignation were conveyed to the Matchetts at any time prior to the Resolution.

64    On 8 August 2022, Mr Matchett sent an email to Ms Walters stating that Savannah wished to terminate the licence agreement with VRM International Pty Ltd.

65    At some time prior to 9 August 2022 Mr Bellamy determined that the Matchetts should be removed as directors. His intention was not communicated to the Matchetts at that time.

66    In the week prior to 15 August 2022 Mr Matchett contacted investors with a view to attracting them to invest in Savannah. I will consider his motivations for making those approaches and their outcomes in due course.

67    From 15 August 2022, Mr Matchett obtained legal advice. He told the Court (and I accept) that his lawyer arranged for him to meet with a representative of SV Partners (the office of the administrators) and with Ms Cheryl Stainsby of Your Directors Advocate Pty Ltd, a consultancy business trading as Strategic Solutions.

68    The administrators’ declaration of independence (adduced on VRM’s case) confirms that Mr Adam Thorpe of SV Partners met with Mr Matchett and Ms Stainsby on 15 August 2022. The purpose of that contact was stated to be:

To discuss the status of the Company and outline its need for assistance.

To discuss a potential appointment and to obtain sufficient information about the financial position, solvency potential risks, unique stakeholders or circumstances that would affect any formal appointment over the Company.

To obtain sufficient information about the Company and related entities to assess any conflicts of interest or potential future conflicts of interest.

To clarify and explain the various options available to the Company and the nature and consequences of an insolvency appointment including potential actions available to a Liquidator against a director of an insolvent company.

Providing relevant documentation to allow the appointment of the Voluntary Administrator.

69    On the same day, Ms Stainsby sent an email in these terms to Mr Matchett:

Hi Tony

It was good to talk to you today and Nicole it was good to speak with you again as well.

I look forward to seeing the financials once they are available and I will organize a zoom conference to discuss further one [sic] I have had a chance to review them.

In the meantime if there are any developments with the other party or you would like catch up sooner, please give me a call on Mobile [redacted] and we can move things forward.

70    On the morning of 16 August 2022 Mr Matchett forwarded to Ms Stainsby and other recipients copies of Savannah’s financial reports for 2020 and 2021 and asked if there was anything more he needed to do. Later that day Ms Stainsby advised Mr Matchett by email that a company search identified that Ms Walters remained recorded as a company director of Savannah. The email stated “she may have resigned but the ASIC search has not been updated to reflect that and that would be the fly in the ointment to any strategies we discussed yesterday”. Mr Matchett responded to the effect that he would update the Australian Securities and Investments Commission (ASIC) record.

71    By a further email exchange on the same day, Ms Stainsby asked whether Mr Matchett had a stocktake and Mr Matchett said that he would undertake one on the following day. Ms Stainsby also requested that Mr Matchett provide a listing of staff, as well as documents from Savannah’s bookkeeping systems namely aged payables and receivables reports, profit and loss statements and a balance sheet.

72    On the following day Mr Matchett emailed to Ms Stainsby a staff list as well as two attachments, being reports taken from book keeping systems concerning aged payables, aged receivables and profit and loss. The attached documents are generated from the QuickBooks or “Intuit” system operated by VRM as well as reports generated from Xero which Mr Matchett said ‘we have reverted too [sic] going forward”.

73    Insofar as they are relevant to conclusions that follow, the Xero reports indicate:

(1)     a net loss for the 2021/2022 financial year of $218,033.07;

(2)    a net loss to date (that is, to 17 August 2022) for the 2022/2023 year of $36,846.32;

(3)    trading income declining from 477,872.06 in the 2020/2021 financial year to $269,558.46 in the 2021/2022 financial year to -$4,174.00 for the financial year 2022/2023 to date;

(4)     aged receivables as at 17 August 2022 of less than $1,000.00;

(5)    current and long term assets of $129,923.68, including about $100,000.00 cash in the bank; and

(6)    current liabilities of $68,281.75.

74    On 18 August 2022 Mr Matchett sent an email to his accountant concerning the updating of ASIC records to reflect the resignation of Ms Walters as a director. He asked the accountant to advise when the record had been updated “so we can continue to action our separation strategy”.

75    The ASIC record was updated on the following day.

76    On the morning of 18 August 2022 Mr Matchett sent further documents to Ms Stainsby including the Cash Flow Agreement, Share Option Agreement and Savannah’s constitution.

77    That evening, Mr Bellamy sent this WhatsApp message to Mr Matchett:

You have acted illegally to cancel a subscription owned by VRM Biologik. You are formally on notice.

78    Mr Matchett forwarded the WhatsApp message to Ms Stainsby with the following email:

This has just been received by me from ken via Whatsapp.

I think he is referring to me closing and cancelling the subscription (that savannah pays for) to Quickbooks that was requested by VRM to align our financials with VRM.

This was cancelled so as bank feeds stopped going through to VRM’s financial team, but we advised them of this service being far from ‘supportive’ and that it was to be cancelled back in mid‐July, and had zero response since then until now.

79    Mr Matchett later clarified that the cancelled subscription was an Intuit subscription that had been paid for by VRM and added that he had probably acted illegally by cancelling it.

80    ASIC records show that on Friday 19 August 2022 a company named Sustainable Foods Australia Pty Ltd (SFA) was incorporated, having Mr Matchett as the sole director and shareholder.

81    Later that afternoon Ms Stainsby sent to Mr Matchett a copy of her letter of engagement and an invoice and requested that they return the signed agreement and a receipt for the invoice payment. The consulting agreement names Your Directors Advocate Pty Ltd as the service provider and Mr Matchett, Mrs Matchett and Savannah as clients. The consulting services covered by the agreement are defined to include:

1.1    “Consulting Services” means providing the following services and such other consulting services as may be required and agreed from time to time:

-    Initial consultation to obtain instructions including all relevant documentation;

-    Assessment of business and asset position;

-    Assistance in negotiating with creditors;

-    Assistance in negotiating with financiers including banks;

-    Liaising with accounting and legal advisors and review of and where necessary, summarising and explaining the advice provided;

-    Review of Client guarantee position;

-    Mediating with third parties;

-    Review of personal taxation position.

82    The scope of work is then described as follows:

Scope of Work:  Consulting Assistance with the Pre-positioning of Savannah AG Research PL, Appointment of a Voluntary Administrator and subsequent DOCA or CVL. Assistance with lodgement of Paperwork, all correspondence with Administrator or Liquidator and Sale of Business.

The timeframe allowed for completion of work as outlined above is 3 to 6 months.

Additional works outside of the initial agreed scope of work, being external costs will incur either a supplementary quote or a revision of the original quote.

Services will commence upon receipt of the fee charged by YDA, which are due and payable in full, prior to the commencement of work on the Client's file.

83    Ms Stainsby also sent an email to Mr Thorpe asking him to “send undated VA Docs”. She stated “we are trying to get this in for next week”.

84    Mr Thorpe of SV Partners responded later on 19 Friday 2022, attaching forms providing for his appointment as administrator. His email relevantly stated:

Please ensure that the Director has the $30‐40k in the account for us if appointment is happening early next week. Otherwise I will provide the trust details.

85    The attachments to Mr Thorpe’s email include a letter addressed to the directors of Savannah referring in its opening line to the proposed voluntary appointment of administrators to the company. The attachments to Mr Thorpe’s email included a draft resolution for the appointment of administrators with provision for signatures to be applied by the Matchetts. The wording of the draft resolution is the same as that later made by the Matchetts and includes an expression of opinion that “in the opinion of the Directors, the Company is insolvent or is likely to become insolvent at some future time, and an administrators [sic] of the Company should be appointed”. The attachments also included advice concerning the appointment of administrators and a schedule of fees.

86    Mr Matchett returned the signed agreement to Ms Stainsby by email sent at 8.30am on Monday 22 August 2022. The signatures of the Matchetts are dated 19 August 2022 and it has not been suggested by them that they were applied at a later time.

87    In his email Mr Matchett said that he would provide Ms Stainsby with an asset and liability worksheet “asap”. Mrs Matchett was copied in that response.

88    At 8.43 am Ms Stainsby sent an email to Mr Matchett as follows:

Thanks Tony,

I am in meetings most of the day today so Sue will be collating all of the urgent information I have requested so far … can you please copy her into all correspondence always in case I do not see an email come through.

She will also be requesting the information for the Management Agreement today. We aim to get you into Voluntary Administration this week early as possible.

If you have any urgent queries leave me a voicemail and I will get back to you as soon as I can.

89    By email sent at 11.16am, VRM’s solicitor sent an email to Mr Matchett attaching a notice for the convening of an EGM (EGM Notice). It contained no proposed resolution. The agenda items were set out under the heading “General business” as follows:

(a)    Address items of general governance of the company.

(b)    To consider any other business as may be lawfully put forward in accordance with the Constitution of the Company.

90    The EGM Notice stated that the EGM was scheduled to take place at 11.00am on the following day if members holding at least 95% of votes agreed, or (absent such agreement) at 11.00am on 9 September 2022. Mr Matchett forwarded the covering email and its attachment to Ms Stainsby within about half an hour.

91    At 12.41pm an employee of Strategic Solutions sent to Mr Matchett an email with the subject heading including the words “Management Agreement Information” seeking Mr Matchett’s confirmation of the accuracy of information contained in an attached table. The attachment refers to Savannah as vendor and SFA as manager. The first column includes the question:

How is stock to be dealt with:

-    is there a stocktake and when does that occur?

-    does the manager buy the stock upfront or pay for it as it is sold?

92    The “Answer” column states “TBA” and a “Comments” column refers a stocktake of 22 August 2022 recorded in a spreadsheet and the phrase “can go as consignment stock”. Another row refers to employees of Savannah being taken over by the manager, including Mr Matchett at the same rate of pay as that of the Manager Payments.

93    At 1.03pm an employee of Strategic Solutions emailed to Mr Matchett the documents that had been provided by SV Partners to facilitate the appointment of voluntary administrators. That email asked that Mr Matchett arrange for both Mr Matchett and Mrs Matchett “to sign and date (today’s date and time where applicable) the forms where indicated and return same to our offices as soon as possible”.

94    In cross examination Mr Matchett said (and I accept) that he drove from Cairns to Mrs Matchett’s workplace in Palm Cove and that he and Mrs Matchett had a brief meeting at which the Resolution was passed. The Resolution states that it was made at a meeting held at 1.45pm.

95    Mr Matchett then returned the signed documents to Strategic Solutions by email at 2.10pm.

96    The EGM Notice was later amended so as to schedule the meeting at 11.00 am on 12 September 2022 (if there was no agreement for the meeting to be scheduled for the following day). The amended notice was sent by email between 2.08 and 2.09pm. At that time, VRM had not been made aware that the Resolution had been made. The Matchetts later informed VRM’s solicitors that they would not attend the meeting following the appointment of administrators.

97    At 3.18pm, Mr Matchett forwarded an “assets/liabilities workbook with sheets for different categories” to Ms Stainsby and stated that he would go to the bank to set up accounts for SFA.

98    On 23 August 2022 Mr Thorpe of SV Partners sent an email to Ms Stainsby and Mr Matchett confirming the appointment of Mr Stimpson and Mr Kersey as administrators of Savannah. The email proposed a meeting to discuss seed stock and leased properties. It concluded:

We can also discuss the management agreement, however I am ok to allow this to continue in principle (so as to continue trading) based on terms largely outlined in the draft until the deed is finalised.

99    Mr Bellamy deposed that the EGM could not occur on 23 August 2022 because of the appointment or purported appointment of the administrators. That is not entirely correct. The EGM did not occur on 23 August 2022 because VRM had no entitlement to conduct an EGM at short notice on that day without the consent of 95% of shareholders, which was not forthcoming.

100    By letter sent on 24 August 2022, VRM’s solicitor gave the Matchetts and the administrators notice of an EGM to be held on 14 September 2022. The correspondence was to the effect that VRM would exercise its voting rights at that EGM to remove the Matchetts as directors. An agenda for the EGM set out proposed resolutions to that effect. The Matchetts were otherwise invited to resign and they were provided with pro forma resignation notices to achieve that end. Neither of them accepted the invitation to resign.

101    Mr Matchett continued to provide Ms Stainsby with records relating to Savannah’s business following the appointment of the administrators, including a spreadsheet identifying its assets and liabilities.

102    VRM later asserted its contractual right under the Cash Flow Agreement to appoint a director to Savannah. It advised the administrators that Mr Bellamy had been appointed as a director and that ASIC would be advised of that appointment on the following day. The administrators were also notified of the VRM’s challenge to the validity of their appointment culminating in the institution of these proceedings on 6 September 2022.

103    By orders made on 9 September 2022 Downes J granted an application for an interlocutory injunction made on the application of VRM and supported by undertakings as to damages given by it and by Mr Bellamy in his personal capacity. The order restrains the administrators from:

(a)    calling or convening a meeting of the company’s creditors under section 439A(1) of the Act;

(b)    disposing of, or otherwise diminishing or altering any interest that the First Respondent has in any intellectual property rights, licenses, permits or authorisations;

(c)    otherwise disposing of, or otherwise dealing with the assets of the First Respondent other than in the ordinary course of business;

(d)    except insofar as is reasonably necessary to preserve the assets of the First Respondent, taking any further steps in the administration of the First Respondent, including by:

(1)    undertaking any further investigations pursuant to section 438A of the Act; and

(2)    exercising any powers or providing any consents pursuant to sections 437A(1)(b), 437A(1)(c), 437A(1)(d), 437D, 437F of the Act.

104    At the EGM held on 14 September 2022, VRM exercised or purported to exercise its voting rights as majority shareholder to pass resolutions providing for the removal of the Matchetts as directors of Savannah.

105    On 31 August 2022 Mr Matchett signed a Report on Company Affairs and Property (ROCAP), identifying the Matchetts as creditors in an amount of $68,015.00.

Findings as to states of mind

VRM’s witnesses

106    The affidavits of Mr Bellamy and Ms Walters contain a multitude of opinions they formed about the Matchetts, most of them derogatory and based on accusations of wrongdoing. I do not consider their views about the Matchetts to meaningfully inform my assessment of the matters to be decided on VRM’s application. I am mindful that Mr Bellamy especially accused Mr Matchett of acting against the interests of Savannah in respect of at least the Mareeba Issue and the Rossi Issue. As I understood Mr Bellamy’s evidence, he relied on (at least) his suspicions in respect of those issues and other matters to justify steps he took to cause VRM to withhold the Manager Payment and to call the EGM. To the extent that Mr Bellamy relied on his suspicions as justifying the words he said at the 9 May meeting, I consider that to be a peripheral issue. The words he said and the manner in which he said them are nonetheless relevant to the Matchetts’ views as to whether the relationship with VRM was affecting Savannah’s business and will be considered for that purpose. VRM’s subjective motivations for calling the EGM are not presently relevant.

107    I have already rejected the assertion that the Matchetts had failed to take the necessary steps to make Ms Walters a signatory (including a necessary signatory) on Savannah’s bank accounts. Mr Bellamy’s evidence on that topic is contradicted by the email correspondence. To the extent that Mr Bellamy held that issue out to be a reason for withholding the Manager Payment, I do not accept it and it does not assist VRM’s case in any event.

108    To the extent that Mr Bellamy and Ms Walters expressed opinions about the financial position of Savannah, VRM’s claim for relief in these proceedings does not depend on findings as to whether either of their opinions was genuinely or even reasonably held. In the conduct of its case, VRM did not seek to positively prove that Savannah was in fact solvent (or likely to become insolvent in the future) at the time of the Resolution by reference to all relevant materials. Foreshadowed reliance on an expert report on the topic of actual solvency was withdrawn. I otherwise gain very little assistance from the assertions of Mr Bellamy and Ms Walters as to their asserted shock or surprise that administrators were appointed on the basis of insolvency under s 436A of the Act. Their asserted opinions as to solvency were based on selective aspects of Savannah’s operations and principally its balance sheet position, rather than its cash flow position. Neither of them gave sufficient acknowledgement of the impact that VRM’s failure to make the Management Payment may have had on Savannah’s ability to pay its debts as and when they fell due.

109    Mr Bellamy referred to Mr Matchett’s conduct in cancelling a QuickBooks subscription held in VRM’s name. He is correct in his assertion that Mr Matchett had no legal entitlement to cancel the subscription. His message to Mr Matchett confirms that he was angry about the cancellation, but whether or not he was justifiably angry is of little consequence to the issues to be decided.

110    There were differences in reports produced out of QuickBooks and reports produced out of Xero, however, VRM did not advance a positive case to establish which of those records reflected the true position. Mr Bellamy’s evidence was not such as to satisfy me that it was unreasonable for the Matchetts to have regard to reports generated by Xero in preference to those generated by QuickBooks.

111    To the limited extent that the evidence of Mr Bellamy and Ms Walters otherwise focussed on Savannah’s actual or anticipated revenue, it did not paint a complete or persuasive picture. For example, Ms Walters referred to Savannah recently securing a grant. However, that grant was for a sum of $5,000.00 and dedicated to covering travel costs to the United States of America to explore potential markets. That is hardly a factor that would inform Savannah’s immediate, short or even medium term prospects of earning sufficient revenue to meet its liabilities. In addition, to the extent that Mr Bellamy asserted that Savannah had liquid assets in the form of seed, his evidence was lacking in detail as to the steps necessary to translate that seed into revenue. That evidence did not sit easily with his contested assertion that VRM had purchased all of Savannah’s seed in any event. He did not contradict Mr Matchett’s evidence that Savannah was liable to pay royalties and other expenses on harvests. Nor did he point to crops in fact in the ground that might translate into specific net revenue within identifiable time frames. Ms Walters referred to a stall that VRM conducted at a regional show that was thought to be a raging success, but none of that evidence went so far as to identify how and when Savannah’s receipts and revenues would be achieved in a time frame bearing any relation to its current or projected liabilities.

112    VRM disputes that Savannah is indebted to the Matchetts for payments they allege they made on Savannah’s behalf, including payments related to the Mareeba Issue and the Rossi Issue. However, it is not enough for VRM to show that Mr Bellamy did not approve of the payments they made. Mr Bellamy was not a director of Savannah. As a director, Mr Matchett was entitled to bind Savannah to transactions, including the informal lease arrangement at Mareeba and the compensation paid to Rossi for seed catalyst and the like. The fact that he might incur Mr Bellamy’s wrath in relation to those dealings does not render the dealings invalid vis-à-vis Savannah and third parties.

113    An assertion in VRM’s opening submissions that the Matchetts had falsely contrived to make themselves creditors of Savannah to arm themselves with voting rights in relation to any future Deed of Company arrangement was not seriously pursued in closing submissions and is not made good on the evidence in any event.

114    The opinions of Mr Bellamy and Ms Walters otherwise referred to the financial and “in kind” support previously provided by VRM under the Cash Flow Agreement. To the extent that VRM provided cash or in-kind support to Savannah, I have considered whether the Matchetts had regard to those past provisions and, if so, how (if at all) they informed their views about Savannah’s present and future solvency.

115    Finally, I have had regard to Ms Walters’ evidence as to her reasons for resigning as a director of Savannah on 3 August 2022, allegedly based on views she had formed about Mr Matchett’s performance. I consider that to be a curious reason for such a decision, resulting as it did in VRM not availing itself of its contractual right to have a nominee director on Savannah’s Board. As a matter of ordinary human experience it might be expected that poor performance by other directors would be a reason for VRM to maintain a director on the Board to monitor and protect its interests as the majority shareholder. I do not consider it necessary to determine whether Ms Waters was truthful in the asserted reason for her resignation as nothing of moment turns on it. It is sufficient to identify that from 3 August 2022, VRM chose not to exercise its contractual right to have a nominee director on Savannah’s board and so did not by that mechanism have access to information about directors meetings and resolutions that it would otherwise have had.

116    These matters are relevant to my assessment of VRM’s submissions alleging, for example, that there was a mere ‘breakdown of communication’ between VRM and the Matchetts. The phrase suggests a mutual unwillingness or inability to communicate that is not made good on the whole of the evidence. The better analysis is that Mr Bellamy and Ms Walters chose not to respond to critical communications coming from the Matchetts and VRM chose not to exercise its contractual right to maintain a nominee director on the Board. In addition, Mr Bellamy conducted himself in a way that was hardly conducive to cordial commercial relations.

117    I emphasise that my conclusions about acceptance or otherwise of the evidence given by Mr Bellamy and Ms Walters is not based on my assessment of their outward demeanour in the course of giving oral evidence. As I have said, I consider Mr Matchett’s attempt to test their evidence in cross examination to be severely affected by his status as an unrepresented litigant having no legal training. His questioning took the form of discursive and argumentative commentary with the result that neither Mr Bellamy nor Ms Walters were rigorously tested as witnesses in a way that might enable the Court to safely base conclusions about veracity on impressions conveyed in the witness box. As explained above, the resolution of the confined issues in this proceeding do not depend on issues turning on an assessment of their credit as witnesses in any event, and their states of mind identified above are of peripheral significance at best. In the main I have preferred the documentary records in respect of the limited findings that have been made.

Mr Matchett

118    Mr Matchett denied Mr Bellamy’s assertion that VRM had purchased all of Savannah’s seed stock at the time that it acquired shares. His view in that respect has not been shown to be objectively wrong or unjustifiable. Nor was he challenged in his belief that the majority of Savannah’s seed sock had been moved from Mareeba to Townsville and was held under VRM’s physical control at the time of the Resolution. Mr Matchett otherwise expressed the view that the seed stock was not a liquid asset including because the directors of Savannah were not able to access it. He was not effectively challenged on that belief either. It is not contradicted by persuasive evidence on VRM’s case it has not been shown that Mr Matchett’s views on that topic were not genuinely held.

119    Mr Matchett also asserted that he did not consider the assets of Savannah could be sold in light of the views he had otherwise formed about its likely future insolvency because he had learned during the COVID-19 pandemic that transactions occurring at times proximate to a company liquidation could be clawed back. Again, he was not effectively challenged on the genuineness of that belief. I am satisfied that Mr Matchett had a rudimentary understanding about that aspect of corporate insolvency law and that it informed his views about the financial resources available to Savannah to pay its debts. More generally, Mr Matchett asserted that at the time of the Resolution he was concerned to comply with his duties as a director not to cause Savannah to trade whilst insolvent. I accept his evidence in that regard.

120    Mr Matchett said that the Manager Payments were made by VRM to meet Savannah’s expense of paying his agreed salary. That understanding accords with the whole of the evidence. He said that Savannah maintained payments of the salary, as well as superannuation and PAYG tax instalments with respect to all of Savannah’s salaries. He said that there was a drain on Savannah’s accounts that would not have occurred had VRM complied with its obligation to make the Manager Payments.

121    The significance of VRM’s failure to make the Manager Payment was described by Mr Matchett in his oral evidence by reference to financial reports he says were generated out of Xero in the week before the Resolution was made:

the net profit for the year to date of 2023 was minus $36,846.00 of total operating expenses of $31,700.00; wages and salaries made up $23,300.00 of those expenses; and superannuation made up a further $2,446.00. So you can see, your Honour, that over – I can’t do my maths quick enough, but certainly over half – but two-thirds of the operating expenses incurred by Savannah in just the first six weeks alone of the new financial year was related to salary expenses, the majority of that being a payment required to be – as part of the cashflow agreement – come from VRM, but was draining Savannah’s accounts at over $10,000.00 a month. And if that was to continue month after month without any change in the process adopted by VRM, Mr Bellamy and Ms Walters – that – that concerned us – about the validity or the solvency of Savannah given other factors relative to the ability to generate cashflow from other revenue streams to try and prop that payment up. So that was our major thinking.

(amended)

122    VRM has not demonstrated that the views expressed in that passage were not genuinely held.

123    Mr Matchett described Mr Bellamy’s conduct in the 9 May meeting as loud and aggressive, a tirade and a barrage. He readily acknowledged that he did not want to work with Mr Bellamy any more, that he was “disgusted” by him and “scared” of him and that he considered him to be a “narcissistic sociopath”. He asserted that VRM had interfered with Savannah’s ability to contact growers and he had received no guidance from VRM about whether there were any crops that might provide income sources. He said that he could not enter into contracts for the supply of seed for the production of seed oils because he could not be sure of future supply. Those assertions are consistent to an extent with contemporaneous complaints made by Mr Matchett as events unfolded and I am satisfied that Mr Matchett’s concerns about future sources of revenue were genuinely held. They were expressed in correspondence as early as April 2022.

124    Mr Matchett said that he and Mrs Matchett obtained a document titled “Guide To Corporate Insolvency Survival Kit” that they used in conjunction with advice from Strategic Solutions. Mr Matchett’s evidence about asserted reliance on the document was vague, especially as to when he first obtained it. Whilst I have had regard to that deficiency in his evidence, of itself it does not warrant the Court rejecting other aspects of his evidence. Mrs Matchett’s evidence was not as detailed and did not include any reference to such a document.

125    Mr Matchett said that he did not understand the restoration of the Manager Payment to be made subject to the condition that he make one or both of Mr Bellamy or Ms Walters necessary signatories to Savannah’s accounts. In addition to the findings earlier made on that topic, I accept that Mr Matchett proceeded on the belief that there was no reasonable likelihood of the Manager Payment being restored. That belief was reasonable given the lack of response to his email of 21 July 2022 in which he expressly complained of VRM’s breach of its obligation to make the Manager Payment.

126    Mr Matchett said that his intention in engaging Strategic Solutions was to ensure that there was someone to advise and assist him and Mrs Matchett in dealing with an administrator who he understood had a responsibility to act only in the interests of Savannah. That evidence is consistent with the contemporaneous correspondence and I accept it. I also accept that Mr Matchett had an understanding of the role of the administrators, which included the following:

So once we had had a discussion with them, particularly Mr Thorpe, who said voluntary administrators – they take control of the problems and the concerns and difficulties that a company may be having to face it. They undertake the analysis and the forensic of investigating and analysing the position of the company over however long it takes them to do it, seeks access to all of the books, the accounting systems and, most importantly for us was to ensure that the assets of the company, which were significant – the seed, grain, the processing, et cetera – were protected for the members and the creditors, and then they would be able to come back to us and provide us options. So we – and we knew, given our experience in – back in 2020, that an option wasn’t there to just start selling assets to pay off any potential creditors because the likelihood would be if we went into liquidation, that there would clawback and so we needed to protect our members’ investment.

127    Mr Matchett referred at other times to the neutrality of the administrators and there is no suggestion by VRM that the administrators in the present case have acted anything other than neutrally.

128    Mr Matchett said that he and Mrs Matchett focussed on the profit and loss reports for the prior financial year and the year to date reports for the current financial year produced from Xero. That evidence is consistent with his email of 17 August 2022 to Ms Stainsby in which he confirmed that he “would” revert to those records. I am satisfied that Mr Matchett had regard to the Xero records attached to that email, however, as explained below, I am not satisfied that the particular document attached to the email is necessarily the same as that relied upon by Mrs Matchett.

129    In cross examination Mr Matchett denied that as at 22 August 2022 he understood that VRM had called the EGM for the purpose of passing a resolution to remove him and Mrs Matchett as directors. He said that the EGM notice gave no notice of any such resolution. He said that he anticipated that VRM would exercise its right to have Mr Bellamy appointed as a third director and he expected that Mr Bellamy would (in Mr Matchett’s words) kick his arse for cancelling the QuickBooks subscription in light of Mr Bellamy’s earlier message that he had acted illegally. I have considered that aspect of Mr Matchett’s evidence in light of the content of the EGM notice and all the surrounding facts and circumstances known to Mr Matchett at the time.

130    Mr Matchett is correct to say that the EGM notice did not contain any notice of a resolution to remove him and Mrs Matchett as directors. If VRM’s intention for holding the EGM was to pass a shareholders’ resolution to remove the Matchetts as directors, the notice is expressed in terms that do not clearly disclose that intention. The banal agenda is consistent with an intention on Mr Bellamy’s part to be appointed as a third director. Whilst I am satisfied that Mr Matchett had a general awareness of VRM’s voting rights as a shareholder, I accept his evidence that he did not in fact consider the EGM to be called for the purpose of removing him and Mrs Matchett as directors altogether. The broad reference in the notice to ‘general governance’, considered in context, could reasonably be interpreted to be a reference to any number of the multitude of issues that had plagued decision-making by those who asserted control over Savannah’s affairs for months. Over those months, VRM had not removed the Matchetts as directors or threatened to do so, even at the time that it was making allegations of misconduct tantamount to fraud against them. VRM has not demonstrated that directors in the Matchetts’ position must necessarily have anticipated that a resolution would be passed at the EGM to affect their removal.

131    When asked about the “strategy” referred to in his correspondence with Ms Stainsby, Mr Matchett said that if Savannah entered administration, he would try to keep Savannah as it was. He said that it was his intention to use SFA as a managing company to undertake Savannah’s day to day operations so that it could continue to trade whilst under the control of the administrators. He confirmed that SFA was established on instructions from “our consultant” (who I take to mean Ms Stainsby) to take on those operations. He said that whether or not there would then be a Deed of Company Arrangement would be up to the administrators to decide. The status of SFA as a management company is confirmed by the correspondence passing between the administrators, Ms Stainsby and Mr Matchett.

132    As to the timing of the Resolution, Mr Matchett denied that the Resolution was made on 22 August 2022 because VRM had notified him of the EGM. He referred to the letter of intent from SV Partners on 17 August 2022 to the effect that they would most likely put Savannah into voluntary administration in the following week. In addition, he said:

… if it had have been on the Tuesday, Wednesday, Thursday, Friday, I don’t mind. But we had absolutely had enough of the uncertainty of no communications from our member shareholder, a total disregard of our business plans and, as we’ve seen today in the evidence that has been suggested that it’s just our state of mind – we were absolutely getting nowhere and that the 21 July letter that was looking for an amicable resolution, because we couldn’t meet at our minds – at our state of mind once that was the decision that we made, to put it into voluntary administration to protect the assets and maximise returns to creditors and then for members or whatever the fate of the company would be could be decided by experts, not by us if we’re panicking. And given that I was face-to-face with most of those decisions and Catherine was relying on me and we used to discuss for hours ad finitum on everything that was happening, what does it all mean – the stress was just extraordinary, as you would imagine. The decision to make it on 22 August was a relief.

133    Mr Matchett said that the EGM could not occur for three weeks in any event. He said:

We didn’t need to wait another day or another two days or three days. Catherine and I, by that stage, were so scared as directors that if we continued down the path, the company could very quickly become insolvent. And for us to trade insolvent was something we weren’t willing to do. And we believed that we had exhausted all options and avenues that were available to us and we were concerned about things like continuing losses.

134    Mr Matchett said that VRM’s failure to communicate with him had the consequence that he had little visibility of the crops that had been planted, apart from the brief email he had received from Ms Walters on that topic. He said that he believed that the only way to ensure that Savannah would not become insolvent was to remove the practical control exercised by Mr Bellamy over the company and its assets. It is plain that Mr Matchett believed VRM’s assertion of control to be illegitimate and I do not consider his belief in that respect to have been unreasonable in the legal context identified earlier in these reasons.

135    Mr Matchett said that by 15 August 2022 he had considered a number of options to overcome the operational difficulties that he believed were affecting Savannah’s insolvency. They included the purchase of shares (which was not affordable), the attraction of other investors to purchase shares (an option he explored unsuccessfully) and de-registering the company (which could not be done because of the value of its assets). I am satisfied that each option was in fact considered but rejected for reasons given by Mr Matchett and I do not consider his conclusions about them lend support to VRM’s case.

136    Mr Matchett denied that it was his intention to appoint administrators so that he could assume ownership and control over Savannah’s assets for his personal benefit, including by using SFA as a vehicle for such a purchase. He said he did not have the money “to even dream of being able to secure the assets of Savannah” and that it “just wasn’t even something on our mind as being able to achieve”. Mr Matchett said that he did consider that a buyback of shares under the Share Option Agreement including because he considered that Savannah’s likely future insolvency stemmed from the unworkability of VRM’s business plan. However, he said that course could not be taken because he did not have the funds to exercise the option. Mr Matchett’s desire to “separate” VRM from Savannah’s business operations is discussed later in these reasons.

137    Cross-examination on that topic of Savannah’s assets proceeded as follows:

MR JONES:         So Mr Matchett, you were looking [f]or a plan to keep control of those assets but with VRM removed from the business. Is that right? –

MR MATCHETT:    No. We – we ultimately used administration to protect those assets because if they were in any way being sold or planted without our knowledge, particularly given our responsibilities with the licensing agreements we had with the rice, the quinoa, and the sesame, we couldn’t have them recorded by a member shareholder that didn’t understand the business, may not have even fully read the license agreements we provided them back in January, and the risk that if they had sold any of that [inappropriately] ..... disposed of it, that was dilution of any assets and values that needed – needed to be protected for the company and the creditors.

MR JONES:        Well, I put it – I put it to you, Mr Matchett, that you wanted to protect those assets because you wanted to regain control of them in the future?

MR MATCHETT:    Mr Jones, I was not going to allow VRM, who I had vehemently discussed, particularly with Ms Kelly Walters, the – the inability for their thought of a business plan to implement on for Savannah – if they were to take control after administration, the risk was that they would continue to trade without any revenue. Yes, they would have cut out expense – expenses, particularly the $10,000.00, because I wouldn’t be employed by them, nor would my wife, nor would my son, but their business plan was not going to generate the revenue streams and ..... that they had anticipated. I knew that because I had been operating in the agrifood sector for years, …

(amended)

138    I accept that Mr Matchett in fact had that state of mind at the time of the Resolution. I am satisfied that he subjectively perceived VRM’s asserted business plan was harmful to Savannah’s profitability. Again, it has not been established that Mr Matchett’s subjective beliefs about the unworkability of VRM’s business plan was fanciful or unreasonable or inconsistent with objective facts. It is also plain on the whole of the evidence that VRM had assumed practical control of Savannah’s assets so that it could implement its chosen business plan and preclude the Matchetts from exercising their own business judgment as directors.

139    Mr Matchett agreed with the proposition that at the time that VRM acquired shares in Savannah the company had the potential to generate considerable profits, and that he had projected earnings around that time of $37 million after five years. He said that his projections at that time were based on his own business plan and not the plan insisted upon by Mr Bellamy.

140    As to external investment, Mr Matchett acknowledged that it was his intention to put the administrators in touch with potential investors. He understood the administrators could enter into a deed of company arrangement if it would keep Savannah out of liquidation. When it was put to him that he intended to enter into a deed of company arrangement for his own benefit using funding provided to him by an investor, he responded:

I put the company into voluntary administration with my wife because it was under financial stress. We were literally petrified of what was happening, and for all the reasons we have already explained in terms of a really bad profit loss statement, we did it so that as – so someone else could take over the management and leadership of the company because as directors, we couldn’t come up with the solution necessary. That’s why we put it into voluntary administration, is to protect the company.

141    It was put to Mr Matchett that he had lied to the administrators about his reasons for generating the Rossi invoice by stating that it had been created following a tense discussion with VRM. Cross examination on that topic proceeded from the premise that the tense discussion occurred at the 9 May meeting and which post-dated the generation of the invoice and so could not have been an explanation for it. Mr Matchett’s evidence on that topic was vague and prevaricating at first. However, he ultimately asserted that the tense discussion comprised of the text message exchange in which Mr Bellamy demanded that he be provided with a copy of the invoice and followed with a message that “this is not a casual request”. I have ultimately accepted this aspect of Mr Matchett’s evidence although little of moment turns on the subject matter. Mr Matchett’s responses on that topic have not affected my overall impression of him as a witness of truth having regard to his evidence as a whole.

142    Mr Matchett also acknowledged that he had wrongly stated in a report on Savannah’s affairs (provided to the administrators) that he was owed wages by Savannah. He acknowledged that his wages had been paid by Savannah, but VRM had not met its obligations to compensate Savannah in respect of them. It has not been shown that the misinformation contained in the report on that topic was deliberate. The financial records provided to the administrator by Mr Matchett spoke for themselves on the question of whether he had been paid. It has not been established that the misstatement was a deliberate falsehood and it has not adversely affected my assessment of Mr Matchett’s credibility more generally.

143    Mr Matchett said that he had travelled to Mrs Matchett’s workplace on 22 August 2022 because he had received an email from Strategic Solutions advising him and Mrs Matchett to sign and return minutes appointing administrators as soon as possible. He said that when he met Mrs Matchett at her workplace, they had only a brief meeting because he and Mrs Matchett had already made the subjective decision to appoint administrators that morning when they sent the consultancy agreement back to Strategic Solutions. He said that signing the minutes containing the Resolution was the final and formal step in instituting that process. He said that he would not have formally engaged and paid Ms Stainsby and paid her a fee of $16,500.00 unless he was serious about appointing an administrator. I accept that evidence to the extent that it relates to Ms Matchett’s state of mind.

144    Mr Matchett evidence was otherwise to the effect that he did not consult with VRM before passing the Resolution because Mr Bellamy and Ms Walters had ceased communicating with him and they would be unlikely to offer assistance in any event.

145    My narration of Mr Matchett’s evidence should be understood as largely paraphrasing the effect of his written statements and oral evidence, which was expressed in robustly informal terms.

Mrs Matchett

146    Mrs Matchett said that her role in the company was limited to some aspects of its accounting. She devoted a day a week to Savannah’s affairs but otherwise worked full time in another job. Mrs Matchett referred to written evidence submitted by Mr Matchett concerning the day to day operations of Savannah, including the transactions and disputes discussed above. She confirmed (and I accept) that she did not have direct involvement in the operation of Savannah’s business and that although she had knowledge of the matters referred in Mr Matchett’s evidence before the Resolution was passed, her knowledge was based on information provided to her by him.

147    Mrs Matchett said that in the performance of her role following VRM’s acquisition of shares in Savannah she was required to enter data into VRM’s QuickBooks accounting system, except for payroll information which remained recorded in Xero. She was aware that both platforms could be used. She said that Savannah engaged a book keeper and that she knew that she could have the bookkeeper generate reports out of Xero.

148    Mrs Matchett was in attendance at the 9 May meeting and her evidence concerning the things said by Mr Bellamy was generally consistent with Mr Matchett’s evidence on that topic. She said that at the meeting Mr Bellamy had accused Mr Matchett of making a payment of $55,000.00 to a friend out of Savannah’s funds and that she did not at that time understand what the allegation was about. She said that she later identified that the $55,000.00 was a legitimate debt she had caused Savannah to pay to a creditor in February 2022. Her evidence on that peripheral topic was not effectively challenged.

149    Mrs Matchett said that during the 9 May meeting she and Mr Matchett had asked Ms Walters to confirm that they had visited Savannah’s bank to make her a signatory to the accounts but Ms Walters had not said anything.

150    Mrs Matchett was aware of the transactions concerning the payment to Rossi.

151    Mrs Matchett said that sometime in the beginning of August she was looking at Savannah’s bank accounts and had then identified that there was $5,000.00 in a transaction account and $60,000.00 in a savings account. She said that she went into “panic mode” and was stressed “because there was no cash flow coming in at all”. She continued:

And I just said to my husband “I can’t do this any – we need to do something”. I – there was not – going forward, my bookkeepers sent a profit and loss through and, looking at projections, it was not looking good and I did not want to trade insolvent”.

152    Mrs Matchett said that the “profit and loss” report sent from the bookkeeper showed a negative income of $30,000.00, comprised mostly of salaries and wages. She said that while VRM was not paying $10,000.00 each month, Mr Matchett’s salary would drain the accounts. She said that the report that she had seen from her bookkeeper was not the same report dated 17 August 2022 attached to Mr Matchett’s correspondence to Ms Stainsby. She later said that the report she had seen was generated around 14 or 15 August 2022 and that it related to a projected period ending 31 August 2022.

153    When asked whether it had crossed her mind to approach VRM for financial support for Savannah, Mrs Matchett said:

I just thought myself personally that if VRM would not pay [Mr Matchett’s] salary, why they would actually offer to pay any more money to help, but that was my opinion.

154    Mrs Matchett repeated that opinion at least twice during cross examination and I accept that she had formed that opinion at the time that the Resolution was passed.

155    Mrs Matchett said that on the day of the Resolution she held the opinion that there was no way going forward. She agreed with a proposition that she was concerned that VRM was not communicating properly with Mr Matchett about the management of Savannah and that she was concerned that VRM was mismanaging Savannah’s assets.

156    Mrs Matchett said that she was not involved in any meetings or discussions with SV Partners or Strategic Solutions that occurred from 15 August 2022 until the Resolution was made, although she was copied in on email correspondence passing between Strategic Solutions and Mr Matchett, some of which she did not read. She said that she understood that Ms Stainsby was engaged to act as a conduit on behalf of herself and Mr Matchett as directors of Savannah in their dealings with the administrators and to guide them through the administration process.

157    When asked about the ‘strategy’ referred to in the email correspondence she could not say what the strategy was. She could not explain what the management agreement referred to in the correspondence from Ms Stainsby might entail.

158    Mrs Matchett said that she was aware in the week beginning 15 August 2022 that the option of the appointment of administrators was being considered and the she did not give clear evidence that any option other than administration was under consideration.

159    Mrs Matchett acknowledged that when she left for work on the morning of 22 August 2022 it was not then her intention to pass the Resolution for the appointment of administrators on that particular day.

160    When asked about the reasons for the urgency attending the Resolution Mrs Matchett said that she understood that “it was a matter of urgency by Ms Stainsby” and that she otherwise relied on the advice of Mr Matchett about the timing.

161    She acknowledged she had seen the EGM notice late in the morning of 22 August 2022 but denied that it had any role to play in her joining in the Resolution.

162    With respect to Savannah’s financial position, Mrs Matchett said that nothing had been planted by VRM, that Savannah had no seed to crush for products and that although Mr Matchett was exploring research, that would take time. She confirmed that her information about those things was sourced from Mr Matchett. She confirmed that she did not consider that Savannah had or would run out of money on 22 August 2022. She continued:

... In going forward, that there’s no cashflow coming in. We had no money coming in, that the day would come that it’s all – the money in the bank account would be dried up so, therefore, we would be trading insolvent, and I did not want that to happen.

AUTHORITIES

163    Counsel for VRM submitted that the opinion referred to in s 436A(1)(a) of the Act must not only be bona fide and genuinely held, it must in addition be determined by the Court to have been objectively reasonable. I do not consider the test to involve two discrete limbs of that kind. The provision refers only to there being a subjective opinion formed by the directors voting for the resolution. The Court’s task is to determine whether a genuine and bona fide opinion existed in fact. The inquiry concerns each director’s subjective state of mind, although regard must be had to the surrounding facts and circumstances in determining whether an asserted state of mind genuinely existed.

164    There may be cases in which the proven objective facts and circumstances warrant a conclusion that a genuine and bona fide opinion could not have been formed. For example, a finding that a director did not make reasonable enquiries about a company’s financial position may support a conclusion that an asserted genuine opinion as to insolvency did not exist, or it might be found that the director’s asserted reasoning was so fanciful or lacking in a proper objective foundation as to warrant a conclusion that the asserted opinion was not bona fide. Objective reasonableness is not otherwise to be understood as an additional discrete criterion. An opinion as to insolvency may be bona fide and genuine even if it be shown to be objectively wrong after the fact, although this is not a case in which the opinion as to likely future insolvency has been shown to be objectively wrong.

165    VRM otherwise called in aid a number of cases in which directors had appointed administrators in circumstances where there existed conflict with shareholders or other directors about the company’s control or a lack of reasonable inquiry or both. In each case, it was determined either that the asserted opinion as to solvency was not genuinely held or that there existed an extraneous purpose so as to justify orders under either or both of s 447C or s 447A of the Act.

166    In Cadwallader v Bajco [2001] NSWSC 1193, Austin J observed that the objective circumstances affecting a company’s financial position may be relevant in assessing whether an asserted opinion as to insolvency is genuinely held. His Honour said (at [140]):

One of the extensively agitated issues in this case has been whether there was any adequate basis for David and Marilyn to form the view, on 27 November 1997, that Bajco was insolvent or likely to become insolvent at some future time. A conclusion that there was no adequate basis for that view might lead the Court to decide that David and Marilyn did not hold the view that they purported to record in their resolution, or that they were acting in bad faith. It might also lead to the conclusion that the advice given by Mr Cardwell was given in breach of duty. Therefore the question whether there were grounds for regarding Bajco as insolvent on 27 November 1997 has been regarded as having considerable significance.

167    His Honour went on to conclude that the company was “clearly viable, and was neither presently insolvent nor likely to become insolvent at some future time” at the time that the impugned resolution was made (at [181]). His Honour went on to find that the directors were aware of all of the same facts that had led him to conclude that the company was solvent and so implied that the directors were aware of the company’s solvency (at [186]). His Honour said that whilst there was some evidence that the directors had previously considered voluntary administration as “a solution to a number of problems”, those concerns “became peripheral” after they received notice of a proposal that they be removed as directors. His Honour concluded that the “central issue” for the directors seems to have been to respond to a threat to their positions and that the directors had adopted a resolution based on advice that they knew to be untrue (at [188]). His Honour said that the only plausible explanation for the resolution was to provide the “jurisdictional” basis for an administration intended to achieve a purpose other than to address the company’s insolvency and that the directors were accordingly acting in bad faith (at [188]). His Honour concluded (at [225]):

… Directors cannot use a fiduciary power to take steps which are designed to prevent the body of shareholders from considering a resolution to remove them, even if they believe that by retaining office they will be able to advance the interests of shareholders …

168    The New South Wales Court of Appeal identified no error in that aspect of Austin J’s judgment: Cadwallader v Bajco Pty Ltd & Ors [2002] NSWCA 328.

169    In Re Bean & Sprout Pty Ltd (admin apptd) [2018] NSWSC 351, Black J at [62] explained:

It also seems to me clear, both from Allan’s evidence as to the disputes between the shareholders, and from the logic of events, that Allan’s appointment of an administrator was, in substantial part, an attempt to bring the Company under independent control …. Allan’s evidence makes clear that at least a significant aspect of the decision to appoint an administrator was the conflicts between shareholders, and his affidavit evidence was that a “key consideration” in his decision to appoint an administrator was Alex’s conduct…. He ultimately accepted in cross-examination that that matter was an “important consideration” in the appointment of an administrator …, after having initially denied that matter, and he also accepted in cross-examination that his perception of a conflict of interest affecting Alex and GVT was connected with the appointment of the administrator …. There may or may not be reasons why a provisional liquidator might be appointed to the Company, or a winding up order made on the just and equitable ground, or orders made on the basis of oppression. However, a voluntary administrator cannot properly be appointed as an artifice to address issues in a company’s internal management, absent insolvency or the likelihood of future insolvency, and as an alternative to bringing oppression proceedings or an application for a winding up.

Emphasis added

170    In In the matter of Condor Blanco Mines Ltd [2016] NSWSC 1196 at [18] Barrett AJA concluded that the appointment of an administrator to a company was void and of no effect. His Honour concluded that the two directors voting for the resolution (Mr Darby and Mr Stops) were motivated by the purpose of defeating the wishes of shareholders who were then proposing to reconstitute the Board of directors and because Mr Stops had not formed a genuine opinion as to the company’s solvency. On the latter point his Honour found that Mr Stops had done no more than to accept the assertions of Mr Darby about the company’s financial position without familiarising himself with the relevant financial facts and without independently turning his own mind to the question.

171    As to Mr Darby, Barrett AJA found that at the time of the resolution he held a “rationally based opinion” that the company was at least likely to become insolvent at some future time (at [75]). His Honour rejected the contention that Mr Darby initiated voluntary administration because he wished to promote a deed of company arrangement proposal to his own advantage and needed the voluntary administration as the platform (at [108]). His Honour went on to find that Mr Darby had moved with extreme haste to appoint administrators after he became aware that a general meeting to be held on the following day would inevitably result in a shareholders’ resolution effecting his removal as a director and appointing new directors of their choice. His Honour said that whilst the financial exigencies were real, they were no more pressing on the day of the resolution than they had been in the days prior or that they would be in the days or weeks that followed. His Honour concluded:

[113] … If it is found that the directors are motivated by a purpose of self-interest, such as a desire to retain their control of the company or to defeat the legitimate exercise of shareholders’ powers inimical to their personal interests, their decision is one that is inconsistent with the due performance of their duties. … And if such an inconsistent purpose is causative, in the sense that, but for its presence, the power would not have been exercised, the tainted action is vitiated by the impermissible purpose and is rendered voidable as distinct from void …

[114] In this case, Mr Darby was motivated by an improper purpose of negativing the power and influence of the incoming directors and defeating the will of the members who were about to put those directors into office. Mr Stops simply followed blindly and unquestioningly in Mr Darby’s footsteps, so that his participation was tainted by the same improper purpose. But for that purpose of Mr Darby in which Mr Stops cooperated, the appointment under Part 5.3A effected at 6.00 pm on 4 July 2016 would not have been made.

172    In Australian Securities and Investments Commission v Planet Platinum Ltd (Liquidator Apptd) [2016] VSC 120, Efthim AsJ declared invalid a resolution purportedly made under s 436A of the Act that was “clearly based on a lack of information” (at [40]). In that case, the directors had failed to make any enquiries of company’s lenders in order to determine their position in relation to the loans made to the company. His Honour said that unless the directors knew of the attitude of the company’s lenders, it could not form a genuine bona fide opinion that the company was insolvent or likely to become so.

173    In Ford v Commissioner of Taxation, in the matter of Careers Australia Group Limited (in liq) (No 2) [2022] FCA 1151, O’Bryan J observed at ([28]) that the “the extent of financial support from shareholders” is a matter which is “routinely taken into account by insolvency practitioners in their assessment of a company’s solvency”. See also: Thunder Studios Inc (California) v Kazal (No 12) [2022] FCA 110 at [136] (Rares J); Westgem Investments Pty Ltd v Commonwealth Bank of Australia Ltd (No 6) [2020] WASC 302 at [1053] - [1056] (Tottle J).

174     In Kazar the affairs of a company were vested in a Governing Committee. Merkel J held that a resolution of the Governing Committee purportedly made under s 436A of the Act was invalid because the Committee members were in fact unable to form any view as to the company’s solvency. The absence of an actual opinion as to solvency heavily informed his Honour’s conclusion that the resolution was passed for the improper purpose of enabling members of the Committee to retain their influence and control through an administrator of their choice, rather than an administrator appointed by a Registrar under a different provision of the Act. Such a purpose, his Honour held, was ulterior, improper, unrelated or extraneous to the objects of Pt 5.3A as set out in s 435A” (at 233).

175    Consistent with that statement, proof of the existence of a desire to remain a director of a company may not be sufficient to establish that a resolution under s 436A of the Act has been made for a purpose extraneous to the objectives of Pt 5.3A. The point is illustrated by Re Lime Gourmet Pizza Bar at [44] – [45] and [53] – [54]. In that case, it was shown that a sole director of two companies had correctly identified that the companies were unable to meet their tax liabilities. Black J was satisfied that the director held a genuine opinion that the companies were insolvent at the time that she made a resolution under s 436A of the Act (at [42]). The sole shareholder of each company was another company wholly owned and controlled by the director’s husband. The director and her husband were experiencing marital difficulties and she had told him that she wanted to separate. She wanted to become an equal shareholder of the companies to provide an income pending family law proceedings. At the same time, she was aware that her husband intended to cause the shareholders to remove her as a director from each company. For the shareholders it was submitted that the director appointed administrators to the companies for the sole purpose of preserving her position as a director or to advance her claim to a shareholding in them. Black J rejected that case as not having been established on the evidence. His Honour said that even if the case had been advanced as one alleging that preservation of the director’s position was a substantial motivation for making the resolution, that case had not been proven either. His Honour weighed heavily the circumstance that the company had unpaid tax debts and was not satisfied that the appointment would not have been made “but for any improper purpose” (at [53]).

CONCLUSIONS

176    The conclusions that follow should be understood to be based on the above findings, as well as on some additional evidence discussed below. Whilst I deal with the two bases for VRM’s claim separately, the evidence informing each aspect of the case has necessarily informed my conclusions in the other.

177    The starting point is that the Matchetts each acknowledged that their opinion was one as to the likely future solvency of Savannah, and that VRM has not proven that Savannah was not in fact likely to become insolvent at some future time at the time that the Resolution was passed. VRM did not seek to rely on an expert report as to solvency filed in advance of the trial.

Genuine opinion as to solvency

178    For VRM it was submitted that the conflicts referred to in the evidence were mere business judgment disputes that are different in character and subject matter to factors that might reasonably affect a decision to appoint administrators and so had peripheral relevance only. I do not accept that submission. Considered as a whole, the evidence supports a conclusion that the factual subject matter of the conflicts were matters that gave rise to real and pressing concerns on Mr Matchett’s part as to Savannah’s short and medium term revenue streams. That is relevant not only to the asserted opinion as to likely insolvency but also to my assessment of whether the Matchetts were motivated by any purpose extraneous to the objects of Pt 5.3A of the Act.

179    I conclude that at the time of the Resolution, Mr Matchett in fact had a genuine opinion that Savannah was likely to become insolvent within the meaning of s 436A of the Act. That conclusion is to be understood in light of my findings as to the absence of an improper purpose motivating the decision to appoint administrators, as explained below. As will become apparent, the two issues are closely related.

180    I am satisfied that Mr Matchett based his opinion as to the likelihood of Savannah becoming insolvent on at least the following matters:

(1)    the absence of information from VRM that there were crops in the ground that might translate into future revenue streams, other than the confirmation that some mustard and sun-hemp had been planted;

(2)    VRM’s physical possession and control of Savannah’s seed assets;

(3)    the expenses of converting seed crops to revenue in any event (including royalties owing under licence agreements);

(4)    the lack of funding by way of imminent and significant research grants caused by Mr Bellamy’s refusal to permit Savannah to apply for dollar-for-dollar grants;

(5)    the lack of assets otherwise capable of being sold;

(6)    the impasse between Mr Bellamy and Mr Matchett about the commercial transactions that would ensure Savannah’s profitability;

(7)    VRM’s ongoing failure to make the Manager Payments;

(8)    the circumstance that the Manager Payment had not been restored despite the Matchetts’ prior remonstrations about it;

(9)    Savannah’s liability to pay monthly salaries was nonetheless ongoing;

(10)    his lack of faith in future revenues being generated by the implementation of VRM’s preferred business plan;

(11)    the lack of communication from VRM generally;

(12)    his assessment that it was not likely that VRM’s views about the operation of Savannah would change;

(13)    the amount of money in Savannah’s bank accounts considered in light of expected revenue (or lack thereof) and expenses;

(14)    the net loss and net projected loss recorded in the Xero reports;

(15)    his understanding of his duty not to cause Savannah to trade whilst insolvent; and

(16)    his understanding that transactions of a company near insolvency may be “clawed back” in the event that the company is would up.

181    As can be seen, these factors include Mr Matchett’s subjective belief that the business plan insisted upon by Mr Bellamy was harmful to Savannah’s financial position. Which of the business plans was commercially preferable or viable was the subject of intense dispute at the time of the Resolution, but the more critical fact is that Mr Matchett was unable to implement his preferred plan notwithstanding that he and Mrs Matchett comprised the board or a majority of the board at all times. The evidence adduced by VRM was not sufficient to demonstrate that Mr Matchett’s concerns with respect to Savannah’s business direction were objectively unreasonable, fanciful or contrived. The subject matter of Mr Matchett’s concerns are inextricably linked to Savannah’s ability to generate revenue sufficient to meet its expenses as he perceived it, and I have concluded that he in fact had regard to matters affecting the business direction of Savannah in considering whether the company was likely to become insolvent at some future time. I accept his evidence that he considered VRM’s business decisions (and its actual assertion of practical control) to be the major cause of Savannah’s lack of anticipated revenue.

182    The circumstance that Mr Matchett was in dispute with VRM about how Savannah should generate profits was not an unreasonable or extraneous circumstance for Mr Matchett to consider. In reaching that conclusion I have taken into account that VRM was in fact exercising practical control over the Savannah’s affairs, including by controlling the location of assets to the exclusion of the Matchetts, by controlling the timing and location of plantings and by purporting to prohibit Mr Matchett from exercising autonomy, including by issuing demands directly to the Matchetts in terms that were hardly conciliatory or consultative. VRM was not a mere passive investor of Savannah. It was taking practical steps that had a direct bearing on the directors’ ability to control Savannah’s financial position and future direction. The ‘impasse’ referred to by Mr Matchett in his evidence informed his view that that situation was not going to change.

183    The intensity of the dispute and the degree to which the relationship had deteriorated is also relevant in assessing a submission by VRM as to whether or not the Matchetts ought reasonably to have regarded VRM to be a financial resource for Savannah. Counsel for VRM repeatedly emphasised that the directors had failed to notify Mr Bellamy or Ms Walters of their opinion as to Savannah’s solvency and that they had unreasonably failed to consider VRM to be a source of additional financial support. I reject those submissions. The Matchetts proceeded on the reasonable assumption that VRM was in breach of the Cash Flow Agreement with respect to the Manager Payment. They took the view (consistent with that of Ms Walters) that the director’s salary was a key expense of Savannah. They had been in conflict for months with VRM over matters that included VRM’s failure to make the payments. In addition, Mr Matchett had made it plain in his email of 7 April 2022 that he considered VRM’s business plan to be harmful to Savannah’s revenue streams. Mr Matchett’s correspondence with VRM about the bank signatories had gone unanswered, as had his letter of 21 July 2022 which again raised the issue as a source of conflict. Those approaches had not been responded to at all, even to the extent of any confirmation of their receipt.

184    VRM’s contentions on this topic were premised on an assumption that the Matchetts ought to have regarded VRM as a financial resource for Savannah. However, a critical aspect of Savannah’ financial problems, as the Matchetts reasonably perceived them to be, was VRM’s breach of its promise to provide financial support in the form of the Manager Payment. In all of the circumstances described in these reasons, I do not consider the failure of the Matchetts to approach VRM for additional support to be a factor justifying a finding that their opinions concerning solvency were not genuinely held or that they acted for an improper purpose. Mrs Matchett expressed the view that an entity that had not done what it had promised to do could not be expected to do anything more on request. That belief has a solid foundation in the objective facts. There is otherwise insufficient evidence to support a credible counterfactual that Mr Bellamy could reasonably be expected to (and would in fact) accept the directors’ opinion as to any matter affecting the company, let alone their opinion as to likely future solvency or their opinions about the reasons for it.

185    The facts and circumstances upon which Mr Matchett relied have not otherwise been shown by VRM to be non-existent or to otherwise have no proper basis in reality. It has not been shown that Mr Matchett’s perceptions of the facts were contrived, nor that his perceptions were so unreasonable that the Court should find that his asserted opinion was not bona fide or genuine. His opinion as to the likelihood of Savannah’s future insolvency had a reasonable basis in the factual matters considered by him and I am satisfied that it was genuinely held at the time of the Resolution.

186    I am also satisfied that at the time of the Resolution, Mrs Matchett held an opinion that Savannah was likely to become insolvent at some time in the future. In forming that opinion, Mrs Matchett acknowledged that she relied upon matters conveyed to her by Mr Matchett about critical matters affecting Savannah’s future sources of revenue. She especially relied upon him as a source of information about the means by which Savannah may generate revenue from its assets and about his dealings generally with VRM. In my view, it was not unreasonable for Mrs Matchett to source information about the day to day operations of the business from her husband, especially as it informed her views about Savannah’s cash flow from its trading activities and the likelihood of net revenue being received more generally. It was neither impermissible nor unreasonable for her receive and rely on information provided by him on those topics given their respective roles in Savannah.

187    I am also satisfied that Mrs Matchett formed her own view about the effect of VRM’s failure to make the Manager Payment and that she formed her own view about the unlikelihood of those payments being restored.

188    I am satisfied that Mrs Matchett did indeed have regard to information produced from Xero that included a projected position for the 2021/2022 financial year to the end of August 2022 and that she was aware of Savannah’s net losses in the 2021/2022 financial year identified in the report that she saw. I accept her evidence that she had a sense of panic based in part on her view of the balances of Savannah’s accounts and her assessment of its expenses, particularly in the nature of salaries.

189    I accept that there was some ambiguity in Mrs Matchett’s evidence about the time that she claimed to have first viewed reports generated out of Xero which had caused her to “panic”. She initially said that occurred in early August. She also mentioned late July as a possibility, and then said that it was probably around 14 or 15 August 2022. The uncertainty of her recollection as to timing is not of itself a reason to reject her evidence that she in fact saw a report with the profit and loss figures she referred to. It was put to Mrs Matchett that it was not possible for her to have seen a report in early August with projected figures to 31 August 2022 and that accordingly she was making up that aspect of her evidence. There is in evidence a profit and loss report generated out of Xero that does include a projected net loss for a period ending 31 August 2022. Whilst Mrs Matchett denied that was the particular report she referred to it does contradict any assertion that it was not possible for Mrs Matchett to have had regard to a projected net loss figure for that period.

190    Mrs Matchett also had some appreciation of her duty not to cause Savannah to trade whilst insolvent and I accept her evidence that she was motivated to avoid that outcome.

191    In light of those findings I do not consider that the position of Mrs Matchett is analogous to that of Mr Stops in Condor, as VRM submitted. Mrs Matchett did not accept a bald assertion by her co-director that Savannah was or would become insolvent. The effect of my findings is that she formed her own view based on information provided to her and accessed by her about Savannah’s trading activities and revenue. She acknowledged that her opinion was to the effect that Savannah would likely become insolvent in the future (which is enough to justify the Resolution) and did not assert that she held the opinion that Savannah would run out of money on the very day the Resolution was made.

192    The questions in cross-examination did not otherwise test Mrs Matchett’s view as to exactly when in the future she perceived insolvency would occur. I am nonetheless satisfied that Mrs Matchett passed the Resolution as a preventative measure to avoid Savannah trading whilst insolvent and that Mr Matchett was similarly motivated.

No extraneous purpose

193    I find that Mrs Matchett relied solely upon the advice of Mr Matchett as to the timing of the appointment of voluntary administrators to Savannah. Accordingly, I am satisfied that if there was an extraneous purpose on Mr Matchett’s part, that purpose may be imputed to Mrs Matchett. Alternatively, to justify the grant of relief it would be sufficient for VRM to show that one of the two directors of Savannah was motivated by an extraneous or improper purpose.

194    VRM contended (and had the onus to prove) that Mr Matchetts’ decision to appoint administrators was motivated by:

(1)    a desire to separate their business interests from VRM;

(2)    a desire to prevent the EGM from occurring, to thwart the plans of VRM to remove them as directors;

(3)    a desire to retain control of Savannah’s assets for themselves, or at least to prevent VRM from continuing to use those assets.

195    Each will be considered in turn.

Separation of business interests

196    I am satisfied that the Matchetts indeed had a desire to separate their business interests from those of VRM, albeit in the particular sense described below. That desire persisted at the time of the Resolution and continues to persist today. The desire is evidenced most plainly in Mr Matchett’s email of 21 July 2022 seeking an “amicable separation”. The phrase “separation strategy” was also employed by Mr Matchett in an email to Ms Stainsby. It is necessary to identify what Mr Matchett had in mind when using that phrase.

197    The evidence, considered as a whole, shows that the Matchetts believed that the relationship between them and VRM was fundamentally unworkable. Counsel for VRM submitted that the meeting of 9 May 2022 marked the effective breakdown of the relationship. However, the evidence shows that the breakdown of the relationship had occurred sometime before then, as evidenced by VRM ceasing the Management Payments in breach of the Cash Flow Agreement as early as March 2022. Mr Matchett affirmed in cross-examination that he considered Mr Bellamy’s business plan to be “not operational in the commercial environment” and it is otherwise plain that he had no respect for Mr Bellamy’s business judgment with respect to the direction of Savannah. He accepted that he held a belief that “Mr Bellamy couldn’t see wide of there being any way other than his way” and that by July 2022 he was adamant that he did not like Mr Bellamy as a person and did not want to work with him anymore.

198    Those beliefs were made manifest by Mr Matchett’s conduct in returning a vehicle to VRM that had been provided to him for his use and his return of “VRM product” to a depot, including because he did not want Savannah to make VRM products. In addition, Mr Matchett cancelled an accounting software subscription because he did not want VRM to have direct oversight of Savannah’s bank accounts.

199    As explained later in these reasons, I consider that the Matchetts held a reasonable belief that the conduct of VRM, by its director Mr Bellamy, was itself a factual circumstance that legitimately informed their opinion about the financial position of Savannah. This was no mere dispute about the management of Savannah. Rather, I consider that the Matchetts genuinely believed that Savannah was, or was likely to become, insolvent because of VRM’s actual control over its assets and day-to-day operations. The separation desired by Mr Matchett was the cessation of that state of affairs. That desire was not, in all of the circumstances, inimical to the statutory purpose, in light of all of the matters informing their genuine beliefs as to insolvency. I am satisfied that the decision to appoint administrators was made for the purpose of maximising the chances of Savannah’s business continuing in existence including because the administrators may address the commercial issues that the Matchetts’ genuinely believed were harming Savannah’s cash flow and putting the assets of Savannah at risk. The case is not one in which the Matchetts were advancing their personal interests in a way that would amount to an improper purpose.

Significance of the EGM Notice

200    I am satisfied that at the time when the EGM Notice was issued, the following facts and circumstances already existed:

(1)    Mr Matchett had engaged his lawyer who had introduced him to the office of the administrators SV Partners and to Ms Stainsby of Strategic Solutions;

(2)    In the week that followed there was a flurry of activity principally directed to preparing Savannah to be put to voluntary administration;

(3)    SFA had been incorporated as a vehicle intended to enter into a management agreement with the administrators for the purpose of continuing the operation of Savannah’s business during the administration process;

(4)    Arrangements had proceeded to the extent that on the Friday before the EGM notice was issued, documents facilitating the appointment of administrators had been prepared. A draft resolution had been prepared and sent by SV Partners to Strategic Solutions and Ms Stainsby had been formally engaged under an agreement the scope of which was clearly directed to representing the Matchetts in their dealings with the administrators;

(5)    The provision of information by Mr Matchett to Ms Stainsby proceeded with haste commencing on 15 August 2022 and continuing throughout that week and into the following week; and

(6)    The words “as soon as possible” or “asap” or “next week” or “early next week” had already been used in the correspondence passing between Mr Stainsby, the administrators and the Matchetts.

201    Viewed in its proper context, the service of the EGM Notice did not introduce an element of haste that had not previously existed. Accordingly, I do not consider that the issue of the EGM Notice put in train a course of events that would not otherwise have occurred. The most that could be said is that the issue of the EGM Notice did not cause the Matchetts to change the trajectory toward voluntary administration. Expressed another way, it has not been established that the Resolution would not have been passed were it not for the Matchett’s receipt of the EGM Notice.

202    As explained earlier, I am not satisfied that the Matchetts or either of them subjectively considered that the EGM Notice forecast their inevitable removal as directors in any event. I have accepted Mr Matchett’s evidence that he did not interpret the notice in that way. His evidence on that topic is not inconsistent with the equivocal words used in the EGM Notice itself and it is not otherwise contradicted by the whole of the evidence. The evidence shows that VRM had not exercised its powers to remove the Matchetts over the many months in which they were directing accusations at the Matchetts tantamount to fraud. Ms Walters did not communicate her purported reasons for resigning to the Matchetts. It was Mr Matchett’s evidence that following Ms Walter’s resignation he felt abandoned by VRM in the sense that the board was left to make decisions alone to address Savannah’s likely future insolvency. I accept that he genuinely held that view. I accept that Mr Matchett fairly anticipated that VRM would appoint Mr Bellamy as a director and that Mr Matchett expected that Mr Bellamy would “kick his arse”. But I reject the submission that he saw the EGM notice as necessarily foreshadowing a resolution that the directors be replaced altogether.

203     I also accept that Mr Matchett correctly understood the proposed EGM to be some three weeks away and it is plain that the fact that the meeting had been called did not dissuade him from the view that administrators should be appointed. His intention to appoint administrators is made most plain by his execution and return of the agreement to Ms Stainsby, which occurred before the EGM notice was issued. If the Resolution was not passed on the Monday I am satisfied that it would in any event have been passed in the days that followed and in any event before the EGM was scheduled to occur.

204    Mr Matchett told the Court that he considered the administrators were best placed to correspond with VRM with respect to its interests as a shareholder and he understood that administrators must and would act neutrally as between the interests of all of Savannah’s members.

205    Mrs Matchett was not directly questioned as to how she interpreted the EGM Notice, but I accept her denial that it played any part in her decision to vote in favour of the Resolution and that she otherwise relied on the advice of Mr Matchett concerning the timing. I have not overlooked Mrs Matchett’s acknowledgment that she had not planned on the morning of 22 August 2022 to pass the Resolution on that day. However, I am satisfied that the Resolution occurred on that day because of the circumstance that all of the documents necessary for the appointment itself had been brought into existence the prior Friday and was sent to Ms Stainsby’s office by the administrator. It is also explained by Ms Stainsby’s office receiving the executed agreement for her engagement and the payment of her fee earlier that morning. Whilst Ms Stainsby was yet to receive further information, I am not satisfied that the remaining material was critical to the appointment itself. The correspondence suggests that it related to matters to be attended to post-appointment, specifically the finalisation of a management agreement and the preparation of the ROCAP.

206    I find that Mr Matchett acted upon Ms Stainsby’s instruction to execute and return the documents as soon as possible. I accept his evidence that the timing of the Resolution was explained by that instruction, consistent as it was with the haste of activity in the week preceding it. If I am wrong in making that positive finding, I would nonetheless conclude that VRM has failed to establish, to the requisite standard, that an improper motivation existed by reference to the EGM notice. It is understandable that VRM’s case focussed heavily on the short period of time between the issuing of the EGM notice and the making of the Resolution. However, that evidence must be considered in the context of the evidence as a whole.

207    In any event, I have previously found that Mr Matchett was genuinely concerned to avoid Savannah entering into transactions that might later be “clawed back” should there be a liquidation. I am also satisfied that he had genuine intentions to ensure that Savannah’s business operations could continue whilst it was under the control of the administrators and that he was motivated in that respect to avoid the company’s assets (including the whole of the business) being lost in a liquidation process. That state of mind is consistent with the objects of Pt 5.3A of the Act, not extraneous to them.

Ownership and control of assets

208    VRM postulated various theories as to what the “strategy” referred to in the contemporaneous correspondence entailed. In opening submissions it was suggested that the Matchetts had artificially made themselves creditors of Savannah so that they could, in that capacity, vote on a Deed of Company Arrangement to acquire Savanah’s assets for themselves. To the extent that that original case theory was pursued in closing submissions, it has not been established on the evidence and I reject it.

209    Reliance was also placed on the incorporation of SFA as a new company on 19 August 2022. However, I am satisfied on the basis of Mr Matchett’s evidence and the contemporaneous correspondence that SFA was incorporated as an entity that was intended to enter into a management agreement to ensure the continued operation of Savannah’s business during the administration. It has not been shown that it was incorporated as a vehicle to enable the Matchetts to secure Savannah’s assets for themselves. The most that could be said is that the Matchetts were concerned to preserve Savannah’s business as a going concern for the benefit of its shareholders, which included themselves. I am not satisfied that the appointment of administrators was made to place themselves in a better position than VRM to deal with the administrators as to the future ownership of Savannah or its business. I find that Mr Matchett considered that Savannah’s business would continue to exist and would be profitable in the future, because the administration would create the circumstances necessary for it to return to profitability.

210    Mr Matchett’s dealings with additional potential investors for Savannah in the week prior to the administration requires separate consideration. I am satisfied that those discussions took place because the Matchetts did not have the resources to exercise the option under the Share Option Agreement to reduce VRM’s shareholding. However that issue too is inextricably connected with Mr Matchett’s genuine belief that the cause of Savannah’s actual and anticipated lack of revenue was VRM’s conduct. The circumstance that the Resolution was made after those overtures came to nothing does not support a conclusion that the Resolution was actuated by an improper purpose. The absence of additional investors informed Mr Matchett’s view that the issues affecting Savannah’s likely future solvency were not going to resolve for so long as there was disagreement between VRM and the directors about how the company’s business should operate and for so long as VRM insisted on a business plan that Mr Matchett genuinely believed was commercially unviable. The nature of the investment that prospective investors might otherwise have made was not the subject of decisive cross examination. But to the extent that Mr Matchett attempted to attract more capital investment in Savannah, the failure of those attempts takes VRM’s case no further.

211    I am not satisfied that the appointment of the administrators was actuated by the purpose alleged by them, namely a desire on the part of the Matchetts to acquire Savannah’s assets for their own benefit. The circumstance that it is open to the Matchetts to propose and participate in a DOCA affecting those assets is not sufficient to demonstrate the existence of an improper actuating purpose of that kind.

Failure to call Ms Stainsby

212    VRM submitted that the Matchetts’ failure to call Ms Stainsby enabled an inference to be drawn in accordance with the principles stated in Jones v Dunkel (1959) 101 CLR 298, at 308, 312 and 320 – 321.

213    It is relevant to consider that the Matchetts were self-represented. Their intention not to call Ms Stainsby was known to VRM’s legal representatives in advance of the trial. VRM did not foreshadow a Jones v Dunkel submission prior to the trial and it has not been shown that the principles were understood by either of the Matchetts at that time. The principles were explained to the Matchetts by the Court some time after the trial had commenced.

214    Mr Matchett then made belated contact with Ms Stainsby to enquire as to her availability to attend to give evidence at short notice. Mr Matchett reported to the Court (and it does not appear to be disputed) that Ms Stainsby expressed a reluctance to attend at the trial in the days remaining for the hearing, and that she considered that she had produced all of her documentary records to VRM disclosing her involvement in the events. It has not otherwise been shown that she was unavailable (as opposed to unwilling) to give evidence.

215    The Matchetts did not seek leave for a subpoena to issue to compel her attendance. Had such an application been made, it would have been necessary to consider whether a stranger to the proceedings should be compelled to attend to give evidence in the trial at very short notice.

216    It seems to me that an applicant party in VRM’s position intending to make a Jones v Dunkel submission against a self-represented respondent should notify that respondent of the principle sought to be invoked. If that notification is not given, it will be more difficult to establish that the self-represented party has made an informed forensic choice not to call the witness in question, assuming the witness is naturally in the camp of the respondent party.

217    I will nonetheless proceed on the assumption that the principle discussed in Jones v Dunkel is enlivened in the circumstances I have described. The principle is to be applied in a context where VRM bears the onus of proof on its claim for relief.

218    The Matchetts gave evidence supported by documents in the nature of business records authored by Ms Stainsby, the authenticity of which is not challenged. The principle in Jones v Dunkel applies such that the Court may infer that if Ms Stainsby were to be called her evidence would not have assisted the Matchetts’ case. However, the principle does not operate to “convert conjecture and suspicion into inference”: see generally Heydon JD, Cross on Evidence (11th ed, LexisNexis Butterworths, 2017) at [1215]. In the present case, it does not require or permit an inference that Ms Stainsby would have given positive evidence sufficient to fill gaps in VRM’s case in respect of those matters she might be expected to give evidence about.

219    VRM’s reliance on Jones v Dunkel does not alter the circumstance that the business records produced by Ms Stainsby corroborated the Matchetts’ evidence in critical respects. VRM’s closing submissions do not identify how any legitimate inference that may be drawn in accordance with Jones v Dunkel could or should be employed by the Court in a way that would make a difference to the outcome. The factual findings expressed in these reasons have been reached on the whole of the evidence and with the principle in Jones v Dunkel borne firmly in mind, and adopting an assumption that it applies.

ORDERS

220    The appointment of administrators to Savannah is neither void nor voidable. The injunction restraining the administrators from exercising their powers in relation to Savannah in the ordinary course should be discharged.

221    The parties should be heard as to any ancillary or consequential orders, including as to costs.

Associate:

Dated:    23 February 2023

SCHEDULE OF PARTIES