Federal Court of Australia

WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd [2025] FCA 622

ORDERS

THE COURT DECLARES THAT:

1.    The second plaintiff (Ms Commins) remains employed as the Managing Director of the first defendant (Goldstone PE).

2.    The conduct of the affairs of Goldstone PE and the second defendant (Goldstone FM) has been and is contrary to the interests of the members as a whole and oppressive to, unfairly prejudicial to, and unfairly discriminatory against the first plaintiff (WIJOAV).

3.    Goldstone PE has breached the Executive Employment Agreement with Ms Commins.

4.    The third defendant (Mr Angelis) has breached cl 5.1 of the Shareholders’ Deed (as defined in the reasons for judgment).

THE COURT ORDERS THAT:

5.    Pursuant to s 233 of the Corporations Act 2001 (Cth):

(a)    the fourth defendant (Angel Holdco) purchase, and WIJOAV transfer, WIJOAV’s shares in Goldstone PE and Goldstone FM at a price to be determined by the Court; and

(b)    Angel Holdco or, at its election, Mr Angelis purchase, and Ms Commins transfer, Ms Commins’ current partnership interest as a Limited Partner of the fifth defendant (VCMP) at a price to be determined by the Court.

6.    The determination of the prices in Order 5 be conducted on the basis of the corporate structure of the Goldstone Fund (as defined in the reasons for judgment) as at 31 March 2025, noting that the date of valuation is yet to be determined.

7.    The question of the quantification of pecuniary remedies for the breaches which are the subject of Declarations 3 and 4 be heard together with the determination of the prices in Order 5.

8.    Mr Angelis, Angel Holdco, Goldstone PE and Goldstone FM be restrained from relying on or enforcing the plaintiffs’ compliance with cl 3.4 of the Shareholders’ Deed (as defined in the reasons for judgment).

9.    Leave be granted to the plaintiffs to amend the Second Further Amended Originating Process in the form of the Third Further Amended Originating Process and Annexure handed up during their final address, except for the amendments concerning the appointment of a receiver set out in paras 7T to 7Y of the draft Third Further Amended Originating Process and Option 1 in the Annexure.

10.    Mr Angelis’s proceedings to wind up VCMP be adjourned to the hearing referred to in Order 7.

11.    Costs reserved.

12.    The matter stand over to a case management hearing on 20 June 2025 at 10.30 am.

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

REASONS FOR JUDGMENT

JACKMAN J:

Introduction

1    To adapt Tolstoy’s famous aphorism about families, all happy businesses resemble one another, each unhappy business is unhappy in its own way. These proceedings arise out of what the parties agree is the irretrievable breakdown of a business relationship between Ms Alexandra Commins (the second plaintiff) and Mr James Angelis (the third defendant) and their respective corporate vehicles, namely WIJOAV Services Pty Ltd (WIJOAV), being the first plaintiff, and Angel Holdco Pty Ltd (Angel Holdco), being the third defendant. The dispute concerns the parties’ interests in a venture capital private equity business known as the Goldstone Private Equity Fund (the Goldstone Fund). References in this judgment to Mr Angelis are to Mr James Angelis, rather than his son John, unless otherwise stated.

2    Until 1 April 2025, the legal structure of the Goldstone Fund involved four entities. Two of them were companies registered under the Corporations Act 2001 (Cth) (the Corporations Act), namely Goldstone Private Equity Pty Ltd (Goldstone PE), being the first defendant, and Goldstone Fund Management Pty Ltd (Goldstone FM), being the second defendant. The shares of each of those companies are held as to 50% each by WIJOAV and Angel Holdco. On about 2 November 2023, a Shareholders’ Deed was entered into in relation to the two companies (the Shareholders’ Deed). The other two entities are limited partnerships, namely the Goldstone Private Equity VCLP, LP, ILP2300031 (VCLP), being the sixth defendant, and Goldstone Private Equity VCMP, LP, ILP2300030 (VCMP), being the fifth defendant.

3    VCLP and VCMP are limited partnerships pursuant to Pt 3 of the Partnership Act 1892 (NSW) (the Partnership Act). Deeds establishing those limited partnerships were executed on about 2 November 2023, and were subsequently replaced by new deeds executed in the case of VCMP in mid-September 2024 (VCMP Deed), and in the case of VCLP on 16 December 2024 (VCLP Deed). The General Partner of VCLP is VCMP, and it is common ground that the only Limited Partner of VCLP is Angel Holdco. Angel Holdco has committed $100 million in capital to VCLP, of which $32 million has been called and paid. Goldstone PE is the Manager of VCLP. The General Partner of VCMP is Goldstone FM. The Limited Partners of VCMP are three trusts, of which Ms Commins is the trustee of two trusts, and Mr Angelis is the trustee of the other trust.

4    Those four entities are the first, second, fifth and sixth defendants. The other defendants are corporate entities associated with Mr Angelis, and Mr Angelis himself (the Angelis Defendants).

5    The Goldstone Fund presently has two investments, being shares in companies known as Parabellum International Pty Ltd (Parabellum) and M Strata Group Holdings Pty Ltd (Neighbourly). VCLP holds 47.5% of the shares in Parabellum and 63% of the shares in Neighbourly. Neither of those companies is a party to these proceedings.

6    From about 2 November 2023, Ms Commins served as Managing Director of Goldstone PE and Goldstone FM, responsible for sourcing, executing and managing VCLP’s investments and raising further capital. Ms Commins’ employment was purportedly (and as I find below, wrongly and invalidly) terminated on 27 February 2025, and again on 2 April 2025, on the ground of alleged serious misconduct. On 6 March 2025, WIJOAV and Ms Commins commenced these proceedings. On 1 April 2025, Mr Angelis procured a number of steps to be taken including applying to the Supreme Court of New South Wales to wind up VCMP (the NSWSC Proceedings), removing VCMP as General Partner of VCLP, removing Goldstone PE as Manager of VCLP, and appointing his own entities, Goldstone Capital Pty Ltd (Goldstone Capital), being the seventh defendant, and Goldstone Capital FM Pty Ltd (Goldstone Capital FM), being the eighth defendant, as General Partner and Manager of VCLP respectively.

7    At the heart of the case is a claim by WIJOAV that the conduct of the affairs of Goldstone PE and Goldstone FM has been and is contrary to the interests of members as a whole and oppressive to, unfairly prejudicial to, or unfairly discriminatory against WIJOAV within the meaning of s 232 of the Corporations Act. In that regard, it should be noted at the outset that ss 232 and 233 of the Corporations Act apply to companies, but do not apply directly in express terms to partnerships that are not registered under or generally subject to the Corporations Act. The researches of counsel have not identified any previous case which raises the issue of how (if at all) the statutory provisions relating to oppression may extend to the operation of limited partnerships conducted or managed by the company or companies in question. This is an important issue in the context of private equity structures. In addition, Mr Angelis’s proceedings to wind up VCMP on the just and equitable ground have been cross-vested from the Supreme Court of New South Wales to this Court, and have been heard together with the main proceedings.

8    Among the matters which crossed Hamlet’s mind in his mood of near-suicidal melancholy (in Act III, scene i, lines 71–72) were the “oppressor’s wrong”, and, almost in the same breath, the “law’s delay”. There will always be oppressors who commit wrongdoing, for that is lamentably part of human nature. But delay is neither a necessary nor an inevitable feature of litigation, as the protagonists in this proceeding have shown. The final hearing (which lasted 8 days) was prepared and conducted in exactly three months from the commencement of the proceedings, and the parties and their legal representatives are to be commended on their efficiency, cooperation and expedition. I also express my gratitude to my personal staff for the efforts they have made to assist me in preparing this judgment quickly. The hearing before me has proceeded on all issues except for:

(a)    the price of any buy-out order under s 233 of the Corporations Act; and

(b)    the quantification of any pecuniary remedies to which the plaintiffs may be entitled.

I anticipate dealing with those remaining matters in November, being the earliest that my other commitments can accommodate.

Constituent documents

The Shareholders’ Deed

9    The parties to the Shareholders’ Deed are Goldstone PE, Goldstone FM, WIJOAV, Angel Holdco, Ms Commins and Mr Angelis. Recital B states that the parties have agreed to manage and control Goldstone PE and Goldstone FM (referred to as the Goldstone Companies) according to the terms of the deed.

10    Clause 3.1 sets out the objectives of Goldstone PE and Goldstone FM as being to:

(a)    carry on the Business, with a view to maximising the value of the Partnership Assets and the quantum of the Carried Interest; and

(b)    develop and expand the Business in accordance with the Business Plan.

11    The term “Business” is defined in cl 1.1 as meaning, in respect of:

(i)    the Manager [defined as Goldstone PE], the business of providing management services to the Partnership [defined as VCLP] in accordance with the Management Agreement [defined as the management agreement to be entered into between Goldstone FM as General Partner of VCMP and Goldstone PE, in effect for VCLP] and the Partnership Deed [defined as the deed establishing VCLP]; and

(ii)    the General Partner [defined as Goldstone FM], acting as General Partner of Goldstone VCMP in accordance with the VCMP Deed,

and any other activities the Shareholders decide from time to time will be carried on by the relevant Goldstone Company.

12    The term “Partnership Assets” takes its meaning pursuant to cl 1.1 of the VCLP Deed which defines the term as including:

All property, rights, Investments and income of the Partnership [being VCLP] and any provisions the Manager [being Goldstone PE] considers should be taken into account in determining Partnership Assets, but excludes:

(a)    any amounts paid by Applicants in respect of which Partnership Interests have not been issued;

(b)    proceeds from withdrawals which have not yet been paid; and

(c)    any Distributable Amount awaiting payment to Limited Partners.

13    The term “Carried Interest” also takes its meaning from the VCLP Deed as follows:

The amount payable to the General Partner [being VCMP] or its nominee as its entitlement to carried interest in respect of the performance of the Partnership [being VCLP] as determined under clause 9.4 of this Partnership Deed, and to which section 104–255 of the Tax Act applies.

14    The term “Business Plan” is defined as “the one-year programme current from time to time for the conduct of the Manager’s Business during the current Financial Year” (cl 1.1(o)). Ms Commins gave unchallenged evidence that the Business Plan comprises the Fund Budget of September 2024 (CB5/188), the Investment Memorandum of September 2024 (CB5/179) and the Investment Plan of November 2023 (CB3/102) (Ms Commins’ affidavit of 18 March 2025 at [84]).

15    Clause 3.2 provides as follows:

To fulfil the objectives set out in clause 3.1, and subject to this deed, each Shareholder undertakes to the other Shareholder to do or cause to be done all acts necessary or desirable for the implementation of this deed including casting votes as Shareholders, executing any necessary documents and causing their appointees to the Board to implement this deed.

16    The plaintiffs submit, and I accept, that cll 3.1 and 3.2 indicate that the affairs of Goldstone PE and Goldstone FM include carrying on the business of managing VCLP and VCMP with a view to maximising the value of the assets of VCLP and the amount of the Carried Interest payable from VCLP to VCMP. I reject the submission of the Angelis Defendants that the affairs of Goldstone PE and Goldstone FM do not extend to the conduct of VCLP and VCMP as based on a false dichotomy. Indeed, Mr Angelis expressly volunteered in his affidavit of 1 April 2025 in the NSWSC Proceedings at [23] that, as a matter of fact, the effective functioning of VCMP is dependent on consensus between Ms Commins and himself as directors and shareholders of the corporate entities through which it operates. That reflects the reality that the only way VCMP can act is through its General Partner, namely Goldstone FM. In my view, that observation applies with at least as much force to VCLP, in relation to which Goldstone PE was appointed Manager by an agreement made with Goldstone FM as General Partner of VCMP, being the General Partner of VCLP (as I discuss below). In order for VCLP to take any step in its day-to-day operation, it does so through Goldstone PE as its Manager. Accordingly, control of Goldstone PE and Goldstone FM determines who has the day-to-day control and management of VCMP and VCLP, and of VCLP’s investments.

17    Clause 4.1 provides that the parties must take all actions within their respective powers to ensure that the composition of each of the companies’ boards and the procedures for board meetings are as set out in Schedule 2. Schedule 2 provides that the board will initially comprise two directors consisting of a director nominated by WIJOAV and a director nominated by Angel Holdco, and that each of those shareholders is entitled to appoint and remove, from time to time, by notice in writing, one director (cl 1(c)). The initial board comprised Ms Commins and Mr Angelis as the appointees respectively of the two shareholders (cl 2(a)). Each director has one vote at board meetings under cl 3(a), although cl 3 goes on to make a number of provisions concerning who holds a casting vote. The companies never appointed a chairman, and thus the provisions which refer to the chairman having a casting vote are not applicable. Clause 3(i) provides as follows:

Alexandra (being the Director nominated by [WIJOAV]) shall have a casting vote in respect of matters relating to the divestment of Partnership Assets that have been held for at least three years where all of the following conditions apply to the divestment:

(i)    the proceeds on the sale of the Partnership Asset would not give rise to a loss, having regard to the costs in acquiring and holding that Partnership Asset and customarily applied accounting principles and practises [sic];

(ii)    the Partnership Asset is not sold to [WIJOAV], or any of its Affiliates, or to any trust, trustee, limited partnership, body corporate, or general partnership that is Controlled by the [WIJOAV] appointed Director, or in which the [WIJOAV] appointed Director has an interest or is involved in as notified to Angel Holdco and James under cl 3.4(b)(i); and

(iii)    the transaction for the divestment of the Partnership Asset does not involve or give rise to any economic of [sic: or] financial benefit to the [WIJOAV] appointed Director, [WIJOAV], or any of its Affiliates, or to any trust, trust deed, limited partnership, body corporate or general partnership that is Controlled by the [WIJOAV] appointed Director, except for any Carry Entitlement under the VCMP Deed or returns under the VCLP Deed (if applicable).

Although cl 3(k) provides that Ms Commins’ casting vote under cl 3(i) ceases when her employment with Goldstone PE ceases as a result of termination of her employment contract under cl 3.3(g) of the Shareholders’ Deed, the latter provision refers to termination for convenience in the circumstance where agreement was not reached on various matters, and no party in these proceedings has relied on that circumstance.

18    Returning to the terms of the main body of the Shareholders’ Deed, cl 4.3(a) provides relevantly that the office of a director of each of Goldstone PE and Goldstone FM becomes vacant if “in respect of any executive Director, that person is no longer employed or engaged by [Goldstone PE].” Clause 4.3(c) then provides that if a director’s office becomes vacant under cl 4.3(a), that person is no longer entitled to act as a director or officer of any entity in which VCLP has made an investment and must immediately resign as such a director or officer, and that Goldstone PE and Goldstone FM are entitled to remove that person as a director of such an entity.

19    Clause 5.1 provides as follows:

The Board and the Key Persons [being Ms Commins and Mr Angelis] must ensure that the Manager [being Goldstone PE] conducts the Business in each Financial Year in accordance with the Business Plan approved and adopted by the Board for that Financial Year.

Clause 5.3 then provides that if Goldstone PE’s board does not adopt the Business Plan as contemplated by cl 5.2, the Business will continue to be conducted on the basis of the then current Business Plan until a new Business Plan is adopted.

20    Clause 6.2 provides relevantly that Goldstone PE will own all intellectual property rights owned by or licensed to Goldstone PE in the conduct of its business, including know-how, and that nothing in the deed transfers any ownership rights in any materials containing or relating to that intellectual property to the shareholders.

21    Clause 9.1 relevantly defines “Event of Default” and “Defaulting Shareholder” in relation to WIJOAV as arising where Ms Commins’ employment with Goldstone PE terminates for any reason other than three specified matters, the first of which is wrongful or unlawful termination by Goldstone PE. An Event of Default gives rise to a right on the part of Goldstone PE and Goldstone FM to determine that the Defaulting Shareholder is required to sell or dispose of its shares either to the relevant Goldstone Company or to any other person by way of sale, or a combination of both.

22    Clause 11.1 provides as follows in relation to confidentiality obligations:

Each party must:

(a)    use Confidential Information only for the purposes of the Business or to make decisions regarding their investments in the Goldstone Companies; and

(b)    keep Confidential Information confidential and not disclose it or allow it to be disclosed to any third party,

except:

(c)    with the prior written approval of the Board; or

(d)    to officers, employees and consultants or advisers of the parties who have a need to know (and only to the extent that each has a need to know) and are aware that the Confidential Information must be kept confidential,

and the parties must take or cause to be taken reasonable precautions necessary to maintain the secrecy and confidentiality of the Confidential Information.

23    Clause 11.3 provides for a number of exceptions, including where the information is public knowledge (except because of a breach of the Shareholders’ Deed or any other obligation of confidence).

24    Clause 14(a) relates to the payment of the Carried Interest and provides relevantly that the parties agree that the payment of Carried Interest shall occur in a timely manner in accordance with the terms of the VCMP Deed, and cl 14(b) provides a dispute resolution mechanism in the event of disagreement as to whether the Carried Interest should be paid.

25    Clause 16.9 is an entire agreement clause which provides that the Shareholders’ Deed, together with the other “Transaction Documents” constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter. The Transaction Documents are defined to include the VCLP Deed, the VCMP Deed, the Management Agreement relating to Goldstone PE as Manager of VCLP, and Ms Commins’ employment contract.

The VCMP Deed

26    Clause 3.1 of the VCMP Deed divides the partners into the General Partner and the Limited Partners, and provides that the Limited Partners must not take part in the management of the business of VCMP within the meaning of the Partnership Act. Clause 4.1(a) provides that the General Partner (that is, Goldstone FM) must conduct the “Partnership Business” for the benefit of VCMP. The “Partnership Business” is defined as meaning the activities undertaken by VCMP for the purposes of being the General Partner of VCLP and carrying on the activities that are related to being VCLP’s General Partner, subject to the terms of the deed. In other words, cl 4.1(a) has the effect that Goldstone FM’s affairs include the conduct of the affairs of both VCMP and VCLP.

27    The Limited Partners of VCMP are set out in Schedule 1 as follows:

(a)    the Goldstone Carry Trust, of which Ms Commins is the trustee, with a Carry Entitlement of 50%;

(b)    the JA Goldstone Carry Trust, of which Mr Angelis is the trustee, with a Carry Entitlement of 20%; and

(c)    the Goldstone Executive Trust, of which Ms Commins is the trustee, with a Carry Entitlement of 30%.

28    Clause 8.1 provides that Goldstone FM, being the General Partner, will use its best endeavours to make distributions of all “Distributable Amounts” within 20 business days of receipt from VCLP. Distributable Amounts are defined as meaning any amounts received by VCMP as a distribution or carry entitlement from VCLP. Clause 8.4 provides that Goldstone FM must apply the assets of VCMP to make distributions of the Distributable Amounts to Limited Partners in accordance with the Carry Entitlements of the Limited Partners at the time of the distribution.

29    Clause 16 deals with meetings, and includes cl 16.13 concerning written resolutions as follows:

Any decision or matter which may otherwise be required to be decided at a meeting of Limited Partners, or any resolution which would otherwise be required to be passed at a meeting of Limited Partners, may be decided or passed by means of the required number of Limited Partners signing a document recording the making of the decision or passing of the resolution. The resolution may consist of several documents in the same form, each signed by one or more of the Limited Partners.

The VCLP Deed

30    Clause 3.1 refers to the Initial Limited Partner, who was Ms Commins, as not having made any capital contribution to VCLP and ceasing to be a Limited Partner when any other person is admitted as a Limited Partner. Although there was a dispute until the morning of the first day of the hearing before me as to whether Angel Holdco was properly to be regarded as the Limited Partner, the plaintiffs accepted during the course of their oral opening that that was the case (T52.6–35), consistently with how Ms Commins had viewed the position in her first affidavit in these proceedings (Ms Commins’ affidavit of 6 March 2025 at [53]). The General Partner is VCMP “and its successors appointed under this Partnership Deed” (cl 1.1).

31    Clause 5 deals with Capital Calls, which as I have indicated above, have been made and met to the extent of $32 million of the amount of $100 million in Committed Capital on the part of Angel Holdco as Limited Partner.

32    Clause 6 deals with the concept of a “Defaulting Limited Partner”, and I will set out in full the terms of cll 6.1, 6.2, 6.3 and 6.6, as they are important to the remedies which the plaintiffs seek:

6.1    Default

A Limited Partner is a Defaulting Limited Partner if:

(a)    the Limited Partner has not paid any Call or any other amount of money owing to the General Partner or the Partnership under this Partnership Deed on or by the day specified for payment;

(b)    the Limited Partner is prohibited by an applicable law from being a Limited Partner of the Partnership;

(c)    the General Partner [being VCMP] reasonably believes, in respect of a Limited Partner, Partnership Interests are held in circumstances which have or will result in a violation of an applicable law or regulation by the General Partner, the Manager, the Partnership or a Limited Partner, or which has subjected, or will subject, the Partnership to taxation or otherwise adversely affect the Limited Partners, General Partner, the Manager or the Partnership in any material respect; or

(d)    the General Partner or Manager is of the reasonable opinion that the Limited Partner made a material misrepresentation in acquiring its Partnership Interest.

6.2    Default Notice

If a Limited Partner is a Defaulting Limited Partner, the Manager may, at its discretion, serve a notice on the Defaulting Limited Partner (Default Notice). A Default Notice must specify:

(a)    the breach or event;

(b)    any amounts that may be payable pursuant to clause 6.1(a) plus any interest payable in accordance with cl 6.4; and

(c)    that in the event the breach is not remedied within a provided time period (Specified Time), the Partnership Interests of the Defaulting Limited Partner will be liable to be forfeited.

6.3    Forfeiture

(a)    If the requirements of a Default Notice are not complied with by the Specified Time, Partnership Interests of the Defaulting Limited Partner may be forfeited to the General Partner if the Manager [being Goldstone PE] so determines, and all voting rights and entitlements to the distribution of Distributable Amounts in connection with the Defaulting Limited Partner’s Partnership Interest are suspended until reinstated by the General Partner.    

(b)    At any time before sale or disposition of a forfeited Partnership Interest by the General Partner, the forfeiture may be cancelled if the Defaulting Limited Partner pays the Manager the full amount outstanding, together with any other amounts in respect of the forfeiture (including interest).

. . . .

6.6    Sale of forfeited Partnership Interests

(a)    A Partnership Interest forfeited under cl 6.3 may be sold or otherwise disposed of as a fully paid Partnership Interest at any price the General Partner can obtain.

(b)    The General Partner and Manager are not liable to a Limited Partner for any loss suffered by the Limited Partner as a result of the sale.

(c)    If the General Partner sells or disposes of the forfeited Partnership Interests it must account to the Limited Partner or former Limited Partner who held the Partnership Interest prior to its forfeiture under cl 6.3 for any balance remaining after deducting from the sale price or disposal proceeds the General Partner receives for the Partnership Interest the amount owing to the General Partner and the reasonable costs of the sale (including interest).

“Partnership Interest” is defined in respect of any Partner as the right and obligations of the Partner under the VCLP Deed and all other interests of the Partner in VCLP.

33    Clause 9 deals with distributions from the partnership. Clause 9.1 provides that the General Partner (that is, VCMP) will use its best endeavours to make distributions of all Distributable Amounts in accordance with cl 9.4. Clause 9.4 provides as follows in relation to the priority of distributions and Carried Interest, in a form often described as a “European waterfall” (in contrast to an “American waterfall”):

9.4    Priority of distributions and Carried Interest

For all distributions to Limited Partners, the General Partner must apply Partnership Assets in proportion to the Limited Partners’ Committed Capital and to pay the Carried Interest to the General Partner in the following order of priority:

(a)    Capital return. First, 100% to the Limited Partners until each such Limited Partner has received cumulative distributions (including tax credits) from the Partnership equal to its Drawn Capital at the time of calculation.

(b)    Preferred return. Second, 100% to the Limited Partners until each such Limited Partner has received cumulative distributions (including tax credits) from the Partnership in excess of its Drawn Capital equal to 8% IRR at the time of calculation.

(c)    Catch-up. Third, 100% to the General Partner until the General Partner has received cumulative distributions (including tax credits) from the Partnership equal to 25% of the excess over the Drawn Capital at the time of calculation.

(d)    80/20 split. Thereafter, 80% to the Limited Partners and 20% to the General Partner.

34    Clause 9.5(a) provides that the Carried Interest is payable to the General Partner, by way of the amount that it receives pursuant to cl 9.4 and is in addition to the fee payable to Goldstone PE under its Management Agreement.

35    Clause 13.1(b) provides that the Limited Partner must not take part in the management of the business of VCLP within the meaning of the Partnership Act.

36    Clause 14.1 sets out the obligations of the Manager, being Goldstone PE. The Manager must perform its duties under the VCLP Deed and the Management Agreement for the benefit of the Limited Partners, act honestly and with due diligence, and ensure compliance with the Investment Policy. The Manager must act in the best interests of the Limited Partners generally and not prefer its own interests where they diverge. Clause 14.2 provides that the Manager is also required to provide reasonable assistance to the General Partner in implementing any directions under the Deed or the Management Agreement.

37    Clause 15.2 provides that the General Partner (that is, VCMP) agrees that it will exercise all due diligence and vigilance in carrying out its functions and duties under the deed and protecting the rights and interests of the Limited Partners under the deed, and will at all times act in the best interests of the Limited partners. Clause 15.3(a) provides that the General Partner (that is, VCMP) may from time to time appoint a person to exercise some or all of the rights and powers of the General Partner under the VCLP Deed.

38    The VCLP Deed does not in terms exclude or otherwise refer to the existence of a fiduciary relationship or fiduciary duties. The statutory exclusion in s 53C(1)(b) of the Partnership Act therefore applies, with the effect that Angel Holdco is not a fiduciary for VCLP. However, that does not exclude the possibility that VCMP (as General Partner of VCLP) might be a fiduciary for Angel Holdco, consistently with s 53C(1)(a), although I do not have to decide that question.

39    Clause 19 deals with meetings, and includes cl 19.10 which provides as follows:

Any decision, matter or resolution, which may otherwise be required to be decided or passed at a meeting of Limited Partners, may be decided or passed by means of the required number of Limited Partners signing a document recording the making of the decision or passing of the resolution. The resolution may consist of several documents in the same form, each signed by one or more of the Limited Partners.

40    Clause 20 deals with the Investment Committee, made up of representatives of Goldstone PE responsible for approving investments for VCLP. The Investment Committee initially comprised Mr Angelis, Ms Commins, Mr Butcher and Mr Hunter. Mr Butcher subsequently resigned from the Investment Committee and Mr Burrows (a member of the Advisory Board of the Goldstone Fund) became a member of the Investment Committee. Clause 20(c) provides that decisions of the Investment Committee are by unanimous approval.

41    Clause 22 deals with the retirement or removal of the General Partner and provides relevantly as follows:

22.2    Removal of the General Partner for cause

The General Partner [being VCMP] may be removed by Special Resolution of the Limited Partners [being Angel Holdco] at a Limited Partners’ meeting called in accordance with cl 19.1(b) where:

(a)    the General Partner is subject to an Insolvency Event; or

(b)    the General Partner has breached any material provision of this deed and has not remedied such default within one month of receiving notice from the Limited Partners of the same.

22.3    Appointment of a new General Partner

On the retirement or removal of the General Partner:

(a)    the Manager [being Goldstone PE] must by deed appoint a new General Partner after obtaining any approval required by law;

(b)    the Manager is required to appoint a new General Manager approved by Special Resolution of the Limited Partners; and

(c)    the Limited Partners may, with approval by Special Resolution, directly appoint a new General Partner.

22.4    Actions on retirement or removal

The outgoing General Partner must:

(a)    as soon as practicable, vest the Partnership Assets in the new general partner;

(b)    give the new general partner any books and records in the outgoing General Partner’s possession or control in relation to the Partnership; and

(c)    give other reasonable assistance to the new general partner to facilitate the change of general partner.

. . .

22.6    Carried Interest following retirement or removal

For the avoidance of doubt, the retirement or removal of the General Partner does not affect its rights to its Carried Interest under this deed, which shall continue as if the General Partner had remained the general partner of the Partnership.    

The term “Insolvency Event” in relation to any party to the VCLP Deed is defined relevantly as the occurrence of a “resolution proposed, petition presented or order made for the winding up of that party”.

The Management Agreement

42    The Management Agreement of VCLP was entered into, on the one hand, by Goldstone FM as General Partner of VCMP (in apparent exercise of its powers under cl 4.1(a) of the VCMP Deed), and, on the other hand, by Goldstone PE as Manager. The Management Agreement is expressed to terminate on the earlier of (a) the date on which the termination of the appointment of the Manager occurs under cl 8, and (b) the termination of VCLP under the VCLP Deed.

43    The duties of the Manager are set out in cl 3.1 and include:

(b)    manage and administer the Partnership [being VCLP] for and on behalf of the General Partner [being Goldstone FM as General Partner of VCMP] in accordance with the Partnership Deed [being the VCLP Deed] and this agreement;

(c)    comply with all lawful directions of the General Partner and the Partnership Deed in so far as those directions or the Partnership Deed relate to the management of the Partnership or the obligations of the Manager under this agreement;

(d)    identify, assess and evaluate Investments which may represent potential objects of investment for the Partnership and also, in conjunction with legal and other advisers:

(i)    assist in the preparation of all legal and other documents required to make any such investment;

(ii)    negotiate the pricing and structure of any such Investment; and

(iii)    complete any due diligence enquiries in connection with any such Investment;

(e)    after making an Investment:

(i)    monitor and continue to evaluate the Investment, including, but not limited to, the adherence to the investment strategy of the Investment by the manager of the Investment, tracking cash flow movements into and out of the Investment, tracking investment performance of the Investment, and voting on corporate actions applicable to the Investment; and

(ii)    as appropriate, recommend the General Partner vary, dispose or exit the Investment;

…

(g)    perform all obligations of the General Partner under the Partnership Deed in connection with:

(i)    the review of subscriptions for Partnership Interests;

(ii)    the issue of Partnership Interests;

(iii)    any transfer of Partnership Interests;

(iv)    the making of calls on the Limited Partners;

(v)    the forfeiture of any Partnership Interests; and

(vi)    the distribution of the income and capital of the partnership.

The term “Partnership Interest” has the same meaning as in the VCLP Deed, which I have set out above. The term “Investment” is also defined by reference to the VCLP Deed, where it is defined as meaning investments made by VCLP.

44    Clause 6 deals with the Management Fee payable to Goldstone PE as Manager in an amount equal to 2% per annum of the aggregate Committed Capital during the Investment Period, and 1.75% per annum of the Invested Capital after the Investment Period until the end of the term of the Management Agreement. The Investment Period is defined by reference to the definition in the VCLP Deed and there is no dispute that the Investment Period is still on foot.

45    Clause 8 deals with the termination and retirement of the Manager. Clause 8.2 is of particular importance in this case and provides:

The Manager [that is, Goldstone PE] may be removed by Special Resolution of the Limited Partners at a Limited Partners’ meeting called in accordance with clause 18.1(b) of the Partnership Deed where:

(a)    the Manager is subject to an Insolvency Event; or

(b)    the Manager has breached any material provision of this deed and has not remedied such default within one month of receiving notice from the Limited Partners of the same.

The term “Insolvency Event” is defined by reference to the VCLP Deed, which, as I have stated above, includes the occurrence of a “resolution proposed, petition presented or order made for the winding up of” any party to the VCLP Deed. Clause 8.7 deals with the replacement of the Manager and provides as follows:

If the Manager retires or is removed in accordance with this agreement, the General Partner:

(a)    must convene a meeting of Limited Partners for the purpose of the Limited Partners considering a resolution prepared by the General Partner to recommend the appointment of a new manager of the Partnership;

(b)    must appoint the new manager of the Partnership only upon a Special Resolution;

(c)    may act as manager of the Partnership until a new manager is appointed (and in respect of any such period will accrue fees which the Manager would have accrued as manager of the Partnership); and

(d)    will not appoint any person or entity as new manager of the partnership unless such person or entity accepts such appointment on the same terms and conditions as set out in this agreement, unless otherwise agreed by a Special Resolution.

46    Clause 11 deals with the capacity in which the General Partner is acting and provides relevantly:

(a)    The General Partner enters into this agreement as general partner of the Partnership and in no other capacity.

As indicated above, the General Partner in the Management Agreement is defined as Goldstone FM, as General Partner of VCMP. It is common ground that VCMP was the General Partner of VCLP, at least until 1 April 2025. The drafting of cl 11.1(a) is therefore infelicitous in that it might be read as referring to Goldstone FM being the General Partner of VCLP. The strictly correct position is that Goldstone FM was the General Partner of VCMP. Accordingly, I read the reference to “the Partnership” in cl 11.1(a) as intended to be a reference to VCMP, noting that as the General Partner of VCMP, Goldstone FM was authorised to conduct the business of VCMP under cl 4.1(a) of the VCMP Deed, and in that way was acting on behalf of VCMP in entering into the Management Agreement.

The Executive Employment Agreement

47    The Executive Employment Agreement is dated 1 November 2023 between Goldstone PE as the Company, and Ms Commins as the Executive. The agreement is not signed, but it is common ground that it is binding between the parties, although the Angelis Defendants submit that it may not be complete, in particular because of the existence of implied terms (T71.14–22).

48    Clause 1(a) provides that Ms Commins’ specific duties are set out in the position description in Schedule 2, and that Ms Commins will report to the board. Schedule 2 states as follows:

The Managing Director of the Company is required, amongst other things, to:

•    Make decisions regarding the fund and its management.

•    Generate investment opportunities.

•    Prepare proposals for the investment committee.

•    Manage the staff of the Company ensuring compliance with relevant standards and legislation.

•    Ensure compliance with the funds license [sic] regime.

•    Manage the Company budget.

•    Grow the presence of the manager domestically and globally.

•    Build value in the portfolio companies.

•    Aim to turn investments to account within a three to five year time horizon.

49    Clause 18 deals with termination of employment. Clause 18.2 deals with termination on notice, and provides that at any time outside of any applicable Probationary Period, Ms Commins may terminate her employment by giving written notice of termination as specified in the Key Terms Table in Schedule 1. However, the Key Terms Table stipulates in relation to both the Probationary Period and the notice period following any applicable Probationary Period, that those concepts are “Not applicable”. In any event, Ms Commins did not at any time seek to terminate her employment on notice, nor has Goldstone PE sought to terminate Ms Commins’ employment on notice at any time.

50    Clause 18.3 is an important provision in the context of the present case and provides as follows:

(a)    The Company may only terminate the Executive’s Employment if:

(i)    in the Company’s opinion, the Executive’s conduct (whether by act or omission) amounts to serious misconduct, including, without limitation:

(A)    wilful or deliberate behaviour by the Executive that is inconsistent with the continuation of the contract of employment;

(B)    Conduct that causes imminent or serious risk to:

1.    the health or safety of a person; or

2.    the reputation or viability of the Company;

(C)    engaging in dishonesty, theft, fraud or assault in the course of the Executive’s Employment;

(D)    being charged with any criminal offence in circumstances which bring the Executive or the Company into disrepute; or

(E)    being intoxicated at work.

(b)    If the Employer terminates the Executive’s Employment in accordance with clause 18.3(a), the Employer does not need to provide the Executive with notice (or payment in lieu of notice).

Clause 18.5(a) provides that if the Executive’s employment is terminated for any reason, and the Executive is a director or other officer of the Company or any Related Company then, if requested by the Company, the Executive must resign as a director or other officer as soon as practicable after the request by the Company.

The Credibility of Witnesses

51    Ms Commins generally gave clear and direct answers to the questions in her lengthy cross-examination, and I regard her as a reliable and credible witness. She had a good memory of the relevant events, and her recollection of the key conversations was supported by detailed file notes made shortly after those conversations. On one occasion, Ms Commins volunteered a concession against her interests in significantly wider terms than the cross-examiner sought (T216.1–8), which revealed the extent to which she was determined to tell the whole truth. I do not have any hesitation in accepting the candour of her evidence, and in areas where her evidence conflicted with that of Mr Angelis and Mr Ranocchia, I strongly prefer the evidence of Ms Commins.

52    Ms Nadenbousch was also a credible and reliable witness, whose evidence I accept.

53    Evidence was also given by several potential investors in the Goldstone Fund, namely Mr Paton, Mr Haigh and Mr McConnell. Each of those witnesses gave clear and credible evidence, which I accept. Mr Burrows made an affidavit but was not required for cross-examination, and I accept his evidence.

54    Mr Angelis was the subject of a lengthy cross-examination, and I do not regard him as a reliable or credible witness. He was evasive when put in an awkward position, he gave inconsistent answers on a number of occasions, and aspects of his evidence were completely implausible. I give some examples of these features of his evidence in analysing the salient facts below.

55    I also have reservations as to the credibility of Mr Ranocchia. His affidavit gave various instances of what he perceived to be negative impressions of the Goldstone Fund, but omitted what he regarded as positive impressions of the Goldstone Fund. He said in cross-examination that he did not regard the positive aspects as relevant because he wanted to support Mr Angelis’s side of the case (T592.10–24). In other words, his evidence was consciously partisan. The unbalanced nature of his affidavit is readily explained by the fact that he was seeking to please Mr Angelis, who had offered to reinstate him to his position at the Goldstone Fund. As Mr Ranocchia conceded in cross-examination, he was concerned to give Mr Angelis information which would put Ms Commins in as unfavourable a light as possible so as to maximise his chances of reinstatement (T575.29–31). His conduct in altering his file note of the conversation with Ms Commins of 13 February 2025 (to which I refer below) also casts doubt over his credibility, even though the changes which he made to the note were subtle and nuanced. It is an unfortunate aspect of this litigation that I have to make certain findings on contested aspects of Mr Ranocchia’s personal conduct, particularly as he is not a party to the proceedings, and he is evidently a person of very considerable ability. However, that is a consequence of the way in which the Angelis Defendants have conducted the litigation.

56    Mr Lynass was a credible witness. While there are areas of dispute between him and Ms Commins, most of them concern legitimate and genuine differences of perception or judgment on matters where this is no uniquely correct position, and to some extent, are reflective of Mr Lynass (in his role as Chairman of Parabellum) not being fully aware of the work done by Ms Commins.

Salient Facts

57    Ms Commins has spent over 25 years working in the private equity market. In March 2018, she founded her own private equity firm, AVC Enterprises International Pty Ltd (AVC Enterprises), with the strategy of identifying small to mid-sized businesses in the essential services sector with high growth potential and providing them with hands-on support in achieving their business potential, with Ms Commins as a director of the investee companies. Since 2018, Ms Commins has raised over $70 million in investments in AVC Enterprises’ three platform companies, Cleanway Holdings Pty Ltd (trading as Evoro), Asset Reliability Inspection (ARI) and Halgan Pty Ltd (Halgan). Ms Commins has contributed to: (a) the growth of Evoro’s annual revenue from $11 million to $70 million in approximately three and a half years and increased its profitability four-fold; (b) the growth of ARI’s annual revenue from $5.2 million to $28 million within two and a half years and increased its profitability three-fold; (c) Evoro and ARI exceeding the revenue forecast set out in their respective investment memorandum; and (d) the increase in Halgan’s equity value between April 2019 and January 2022, delivering a 16.5% gross internal rate of return to investors. Mr Burrows, with over 50 years’ experience in investment banking and mergers and acquisitions, praised Ms Commins as having an exceptional skill set as a private equity manager and a disciplined approach to investments (Mr Burrows’ affidavit of 21 May 2025 at [14]–[15]).

58    In January 2023, Ms Commins decided to build upon AVC Enterprises’ business by establishing a second fund, and began seeking potential investors in the new fund. One such potential investor was Mr Angelis. Mr Angelis is a successful businessman and investor with over 30 years’ experience in construction, insurance and private equity. In 1988, he co-founded Interak Pty Ltd, which grew into one of Sydney’s leading office fit-out contractors. He left the business in 1995 after a management buy-out. In 1994, Mr Angelis co-founded Coverforce MAL (Coverforce), a specialist provider of income protection and workers’ compensation insurance to the construction industry. He was appointed CEO in 2004 and soon afterwards acquired full ownership of the business. Under his leadership, annual sales grew from approximately $12 million to over $600 million, supported by more than 30 strategic acquisitions, mergers and partnerships. In 2021, he sold Coverforce to Steadfast Group Limited (the Steadfast Group) for approximately $411 million. In 2022, Mr Angelis established Angel Holdco, of which he and his wife are directors and he is the sole shareholder, as trustee of the Angel Holdco Family Trust. Angel Holdco is the vehicle through which Mr Angelis invests in private equity.

59    On 30 March 2023, Ms Commins and Mr Angelis met at a café in Barangaroo to discuss Ms Commins’ proposed new fund. The following day, Ms Commins sent Mr Angelis an email setting out various proposals for structuring a fund, including that there would be an investment committee, on which Mr Angelis would have a right of veto, and possibly requiring a unanimous vote before investments were made. The email also proposed that Mr Angelis would own 25% of the General Partner, Ms Commins would own 60% and a third participant would own 15%, noting that the fees would be paid to the General Partner.

60    Negotiations continued over the following six months. On 18 May 2023, Mr Angelis agreed to Ms Commins’ request for the new fund to use as its office the existing office space leased by Angel Holdco at the Quay Quarter Tower at 50 Bridge Street, Sydney. Ms Commins agreed to Mr Angelis’s request to adopt the name “Goldstone Private Equity”. On 7 July 2023, Goldstone PE and Goldstone FM were incorporated, and they were registered with NSW Fair Trading later that month. On 15 September 2023, Mr Angelis sent an email to Ms Commins proposing that he would raise his commitment to $100 million, and that each of them would have a 50% shareholding. The email stated: “The umbrella shareholders agreement that is put in place to be reflective of a joint ownership position but no change to the carried interest arrangement agreed between us” (CB2/76). On 20 September 2023, Ms Commins replied, expressing gratitude for Mr Angelis offering to commit up to $100 million in the new fund, but emphasising that the fund should not be a “family office”, explaining that it would inhibit investment from Australian and global markets if the fund were so perceived (CB2/76).

61    On 2 November 2023, the constituent documents to which I have referred above were entered into, namely the Shareholders’ Deed, the VCMP Deed, the VCLP Deed, and the Management Agreement. As I have noted above, the Executive Employment Agreement is dated 1 November 2023 but has never been signed. On 3 November 2023, Mr Angelis caused Angel Holdco to execute a subscription deed by which it committed $100 million in capital to VCLP and applied to become the Limited Partner in place of Ms Commins (who had been the Initial Limited Partner) (CB3/98). On 6 November 2023, Ms Commins sent an email to Mr Angelis attaching draft employment contracts for herself, Mr Johnson (who has since left the Goldstone Fund), and members of the Goldstone Fund’s Investment Committee and Advisory Board (CB3/100). On 15 November 2023, Angel Holdco lent $1.2 million to Goldstone PE pursuant to cl 3.7 of the Shareholders’ Deed for the purpose of Goldstone PE applying those proceeds for working capital purposes. The loan is interest free under cl 3.7(c).

62    Since November 2023, the Goldstone Fund has operated from Angel Holdco’s office in Sydney. Mr Angelis and his wife handle all day-to-day administration associated with the running of the Goldstone Fund, including payment of creditors, tax and payroll, but not company secretarial matters, which were Ms Commins’ responsibility as company secretary for both Goldstone PE and Goldstone FM.

63    On 29 August 2023, Ms Commins emailed Mr Angelis identifying Parabellum as a new deal, following an introduction by Mr Berkefeld (T286.4–5), a member of the Goldstone Fund’s Investment Committee and Advisory Board. The evidence of Ms Commins, which I accept, is that (apart from the initial introduction by Mr Berkefeld) she personally originated, negotiated and structured the purchase of shares in Parabellum over a nine-month period starting in about July 2023, and as part of that process she led financial, legal and commercial due diligence processes with support from McGrathNicol, Thomson Geer and industry experts, and Mr Angelis did not have any involvement in any stage of that process (Ms Commins’ affidavit of 12 April 2025 at [9]). On 23 May 2024, a Shareholders’ Agreement was entered into between Parabellum, VCLP and corporate shareholders associated with Parabellum’s founders, Mr Navin Vij and Ms Jessica Keogh (CB4/140). Goldstone PE, as Manager of VCLP, initially held 50% of the shares in Parabellum, and now holds 47.5% of the shares. Ms Commins and Mr Johnson were appointed as directors of Parabellum, as representatives of Goldstone PE. In June 2024, Mr Ranocchia of Goldstone PE was appointed to the board in place of Mr Johnson.

64    In or about February 2024, Mr Angelis introduced Ms Commins to Mr Papageorgiou, the founder of Neighbourly. From then until July 2024, Ms Commins corresponded with Mr Papageorgiou and Neighbourly’s financial advisers in relation to the proposed Neighbourly investment, and Goldstone PE also undertook due diligence with the assistance of Corrs Chambers Westgarth, McGrathNicol, Genesis Advisory and KPMG. On 17 June 2024, VCLP, Mr Papageorgiou and others entered into a Share Sale Agreement by which VCLP’s investment in Neighbourly was effected (CB4/149). On 15 July 2024, Neighbourly and its shareholders (including VCLP) entered into a Shareholders’ Deed (Neighbourly Shareholders’ Deed) (CB5/160). Ms Commins and Mr Angelis were appointed directors of Neighbourly as VCLP’s representatives on the board. Mr Papageorgiou remained a director. Until December 2024, when Neighbourly acquired Bluestone OCM Pty Ltd (Bluestone), Mr Papageorgiou had two votes at Neighbourly board meetings (Neighbourly Shareholders’ Deed, Sch 1, cl 3(b)(ii) and T384.19–21). Thereafter, Mr Papageorgiou had one vote, and Ms Commins and Mr Angelis had one vote each and also had a third vote which they had to exercise jointly (T418.26–47).

65    Ms Commins gave evidence, which I accept, that in June 2024, Mr Angelis told her that his son, John, had started an insurance broking business and that John would be able to help with Neighbourly’s extensive insurance program (Ms Commins’ affidavit of 6 March 2025 at [37]). Ms Commins also gave evidence that Mr John Angelis had once visited the Goldstone Fund’s office and spoke in general terms about the strata insurance brokerage model (Ms Commins’ affidavit of 4 May 2025 at [28]). Ms Commins’ evidence, which I also accept, is that she did not learn until 13 February 2025 that Mr John Angelis’s insurance broking business was called Clearlake (Ms Commins’ affidavit of 21 May 2025 at [28] and see T306.38–41, T302.29–47, 303.17–304.2 and 306.23–31). The Angelis Defendants place heavy emphasis on the footer in red print to an email chain on 27 September 2024 saying that Coverforce was rebranding to Clearlake Insurance Brokers Pty Ltd (Clearlake), and indicating elsewhere an association with Mr John Angelis (Ms Commins’ cross-examination bundle, tab 75), but I accept Ms Commins’ evidence that she did not scroll down to read the red footer (T302.29–32). I reject the evidence of Mr Angelis that from July 2024, he informed the members of the board of Neighbourly (including Ms Commins) about his son’s and his own connection to Clearlake and did not seek to hide that fact (Mr Angelis’s affidavit of 14 May 2025 at [81], T389.45–390.2, 402.13–22, 425.30–32, 467.31–354, 468.14–16). Mr John Angelis is the Co-CEO, the company secretary and one of two directors of Clearlake. The sole shareholder of Clearlake, MAL Insurance Services Pty Ltd, has two corporate shareholders, one of which (Metron Developments Pty Ltd) is wholly owned by Mr John Angelis. Clearlake’s former name was “Coverforce MAL”.

66    In 2024, public concerns were expressed as to the conduct of insurance brokers and strata managing agents, in relation to securing allegedly excessive commissions on insurance policies placed by strata managing agents on behalf of owners’ corporations, without the owners’ corporation having full knowledge of the arrangements. Neighbourly itself experienced some of the regulatory consequences of those concerns. In July 2024, Southern Cross Strata Management, one of the subsidiaries of Neighbourly which acted as a managing agent, provided undertakings to the NSW Commissioner of Fair Trading in respect of Neighbourly’s revenue generated from insurance commissions (CB8/374). The undertakings included that it would:

a.    Develop and implement operational procedures for the handling of insurance policies for strata plans under management by the licence holder under which all commissions and training services are recorded and disclosed in accordance with section 60 of the SSM Act.

b.    Develop and implement training for new employees on the requirements relating to commissions and trading services and on the operational procedures in a. above.

c.    Implement a procedure to ensure that all employees, servants and agents receive conflict of interest training and ensure that such training is provided on an annual basis for the duration of this Undertaking.

67    In September 2024, the ABC television program “Four Corners” broadcast a program on the subject entitled “The Strata Trap” (Mr Angelis’s cross-examination bundle, tab 7) and published a report headed “Strata companies’ hidden fees, secret kickbacks and developer deals costing apartment owners” (CB5/178). This included reporting concerning strata managers receiving commissions for insurance policies acquired on behalf of owners’ corporations, which involved the strata managers and insurance brokers cooperating with one another so as to each secure a commission comprising a percentage of the insurance premium acquired, without providing full transparency to the owners’ corporations. The report included exposing connections between some strata managers and their insurance brokers, such as the strata manager Cambridge Management Services and a brokerage firm, Collective Insurance Brokers, which was controlled by the Steadfast Group. An interview with the CEO of the Steadfast Group indicated that insurance brokers and strata managers obtained insurance commissions without the knowledge of the owners’ corporation.

68    On 19 September 2024, the New South Wales Parliament amended the Strata Schemes Management Act 2015 (NSW), by passing the Strata Managing Agents Legislation Amendment Act 2024 (NSW) (the Amending Act). The Second Reading Speech given on 14 August 2024 by the responsible Minister referred to “troubling instances of strata managing agents taking advantage of strata owners”, including “owners’ corporations being charged excessive fees when securing strata insurance for their buildings; agents being swayed to buy products from certain companies over others because they get a benefit, such as a commission; and agents using the services of related entities to obtain financial benefits without the knowledge of the owners’ corporation”. The Amending Act commenced in full by 3 February 2025, and sought, among other things, to introduce greater disclosure and approval obligations in respect of whether a strata managing agent is connected with another person supplying a service to the managing agent and any commissions received (in particular in s 57(3A) and (3B) of the Amending Act). In short, the new provisions relevantly extended the circumstances which attract penalties. Where strata managing agents request or accept a monetary benefit from another person in connection with the provision of services as a strata managing agent, the Amending Act requires that the approval of the benefit by the owners’ corporation be by a resolution of the owners’ corporation at a general meeting after the relevant details have been disclosed to the participants, including a statement as to the absence of a conflict of interest on the part of the managing agent.

69    On 3 January 2025, Mr Angelis sent an email to Ms Commins attaching a proposed budget which he had prepared for the Goldstone Companies, and criticising the current financial arrangements within the Goldstone (CB6/235). The email proposed various changes as follows:

1.    That director fees derived from portfolio companies are paid to Goldstone;

2.    That Partners rely on profit distributions from managing an efficient company rather than director fees or bonus payments (refer budget spreadsheet);

3.    From 1 January 2025, I am paid a salary equal to 3 days per week (same deal as Matt Hunter); and

4.    That Goldstone makes a one third contribution to rent. I will continue to cover the cost of Parking.

70    On 21 January 2025, Ms Commins and Mr Angelis met in person after Ms Commins had returned from holiday. There is a dispute between them as to what was said at the meeting, in relation to which I prefer the account given by Ms Commins. Ms Commins’ evidence, which I accept, is that when she pushed back on Mr Angelis’s demands reflecting his email of 3 January 2025, Mr Angelis became very aggressive and made comments which included: “This is my money and I do what I like”, “I do not care what you think”, “I do not need you to run Goldstone”, “I will continue to manage the finances of the fund and you should back off”, and “if you do not agree with what I have suggested then I am out and I’ll exercise my rights” (Ms Commins’ affidavit of 6 March 2025 at [62]). I also accept Ms Commins’ evidence that during the week in which that conversation took place, Mr Angelis said “I am not interested in having outside investors in the fund. I am not keen on making more than three investments into Goldstone” (at [63]). In the week beginning 27 January 2025, Ms Commins accepted that the Goldstone Fund would not raise outside capital, although that was a disappointment to her as it would be a significantly smaller fund than Ms Commins had expected and would in effect be a “private family office” (at [65]–[66]).

71    On 22 January 2025, Mr John Angelis forwarded an email to his father, which appears to have been a draft intended to be sent to Mr Bayot (T404.22–26), the CEO of Neighbourly (CB6/240). The email attached Clearlake’s proposal for insurance broking services with a revenue-sharing model whereby 70% of revenue would be paid to Neighbourly and 30% to Clearlake. Mr Angelis expressed the view in his evidence that this represented a material improvement in revenue for Neighbourly compared to the then existing 50/50 split and was substantially better than the standard market arrangement (Mr Angelis’s affidavit of 14 May 2025 at [80]). In addition, the attached spreadsheet indicated that Clearlake proposed to increase the dollar figure of the broker fee. The document was in effect a proposal for Clearlake to replace the incumbent insurance broker, Honan, for Neighbourly’s strata schemes under a proposed arrangement whereby Clearlake would take a larger broker’s fee than Honan, but then share a greater percentage of the revenue received with Neighbourly. Instead of splitting total revenue equal to 40% of the base premium 50/50 with Neighbourly, as Honan had done (that is, 20% each), the proposal was for Clearlake to split 43% of the base premium in the ratio 30/70, with 13% going to Clearlake and 30% going to Neighbourly.

72    I reject Mr Angelis’s evidence that Ms Commins and Mr Papageorgiou had agreed in the latter half of 2024 that Neighbourly’s insurance portfolio would be transferred from Honan to Clearlake (see T386.1–34, 400.38–401.7, 421.21–37, 430.19–24, 468.1–5). An email exchange in early December 2024 between Mr Angelis, Mr Bayot and Mr Papageorgiou (Exhibit 3) indicates that Mr Papageorgiou was looking favourably at a 70/30 share between Neighbourly and the insurance broker, but the emails do not prove firm acceptance of a detailed proposal. Further, it appears that the then proposal involved only buildings managed by Neighbourly’s subsidiary, Strata Professionals, as a pilot program. That is consistent with an email from Mr Papageorgiou to Mr Angelis and Ms Commins on 7 February 2025, referring to a recent telephone call between Mr Papageorgiou and Mr Angelis, and saying that he was only happy to authorise Clearlake to do 617 schemes for Strata Professionals at this stage, and that no further instructions or letters of appointment were to be given to Clearlake to replace Honan until a formal board resolution was made (CB6/249). Ms Commins replied, saying that it is “always best to address these matters openly” and that “Transparency and strong governance are priorities for all of us” (CB6/249). Despite those emails, Clearlake managed to become appointed by Neighbourly’s management as the insurance broker for properties managed by Neighbourly’s subsidiary, Integrity Strata Management Pty Ltd, by 21 January 2025 (Mr Angelis’s cross-examination bundle, tab 10) to the knowledge of Mr Angelis but without the knowledge of Mr Papageorgiou (T399.31–46).

73    On 31 January 2025, Mr Angelis sent an email to Mr Hodson of Thomson Geer, copying Ms Commins (CB6/244). The email referred to his recent discussion with Ms Commins (from 21 January 2025) and claimed that various matters had been agreed, including removing Ms Commins’ entitlement to director fees from portfolio companies (which were to be paid to Goldstone PE), distributing actual free cash in Goldstone PE annually to shareholders, that the Goldstone Fund would not seek any external investors, Goldstone PE would pay rent and a service charge to Angel Holdco, Ms Commins’ annual salary would increase to $523,699.92 “inclusive of superannuation”, and Mr Ranocchia (an employee in the investment team of the Goldstone Fund) would be given a 10% Carried Interest. Ms Commins gave evidence, which I accept, that the latter two matters did not reflect the matters which had been specifically agreed at that point in time, and that she decided to wait until seeing Mr Hodson’s draft before altering the word “inclusive” to “exclusive”: T260.13–26, 317.4–320.36. Ms Commins’ evidence is supported by an email exchange on 17 February 2025, in which Ms Commins said, in relation to her proposed edits to Mr Hodson’s draft as attached (including the alteration of her salary being “inclusive” rather of “exclusive” of superannuation: CB6/258), that “the agreement needs to be more specific”, to which Mr Angelis responded “I agree we need to be specific” (Mr Angelis’s cross-examination bundle, tab 13A).

74    On 12 February 2025, Ms Commins had a telephone conversation with Mr Angelis in which Ms Commins said that she proposed to terminate the employment of Mr Ranocchia. Ms Commins explained in her oral evidence, which I accept, that while there were aspects of Mr Ranocchia’s performance which were worthy of praise, there were other aspects of his conduct which made it inappropriate for him to remain part of the team of the Goldstone Fund (T239.15–18). Both Ms Commins and Mr Angelis had sought to encourage Mr Ranocchia to improve those aspects of his conduct in 2024. Further, Ms Commins had sent Mr Ranocchia an appreciative letter on 22 November 2024 telling him that he would be paid his full bonus (Ms Commins’ cross-examination bundle, 2/101), which Ms Commins regarded as part of her efforts to invest in Mr Ranocchia by way of encouragement and support, despite the warnings which she had given him (T244.6–245.34).

75    The conversation on 12 February 2025 was the third time that Ms Commins had broached her concerns about Mr Ranocchia to Mr Angelis (Ms Commins’ affidavit of 6 March 2025 at [76]). Ms Commins said to Mr Angelis that she had been told that Mr Ranocchia was disparaging her and Goldstone to Parabellum and others, and that this undermining in a small team was unacceptable (Ms Commins affidavit of 21 May 2025 at [23], T252.18–32). She told Mr Angelis that it would be inappropriate for Mr Ranocchia to remain with the business. Mr Angelis said that he would support Ms Commins in this instance, and also said “I want to check if you are going to accept the Neighbourly insurance business going to Clearlake” to which she replied that “this needs to be done properly and with good governance” (Ms Commins affidavit of 6 March 2025 at [76]). In my view, that comment by Mr Angelis concerning Neighbourly’s insurance business reflects the matter that was uppermost in his mind at the time relating to the Goldstone Fund. I reject Mr Angelis’s evidence of the conversation with Ms Commins to the extent that it is inconsistent with Ms Commins’ evidence (including her disagreement with Mr Angelis’s version in her cross-examination: T251.12–253.40). In particular, I reject Mr Angelis’s evidence that Ms Commins referred in that conversation to having received complaints from Parabellum about Mr Ranocchia (Mr Angelis’s affidavit of 14 May 2025 at [127]; Ms Commins at T264.46–265.2). That is a significant matter, because the evidence given by Mr Angelis in cross-examination was that Ms Commins’ alleged statement that Parabellum were complaining about Mr Ranocchia was “the thing that tipped it over for me” in not believing Ms Commins any more (T480.11–20). But I find that Ms Commins never made that statement to Mr Angelis.

76    Ms Commins accepted in her cross-examination that, in the specific conversation on 12 February 2025 in connection with her reasons for terminating Mr Ranocchia, she did not mention his failing to do important tasks or generate deals, his mistreatment of Ms Nadenbousch (an Investment Analyst) or acting outside his authority (T262.16–24). I accept Ms Commins’ explanation for not referring to those matters, namely that she regarded it as common knowledge that there was dissatisfaction with certain aspects of Mr Ranocchia’s performance (T262.26–29). I also accept Ms Commins’ evidence that she had given him oral warnings on two occasions that, if his conduct continued, he would be terminated (T262.35–263.20).

77    On 12 February 2025, Ms Commins sent Mr Ranocchia a text message saying that she had “received certain information which [was] a source of considerable concern pertaining to [his] employment” and asked him to see her the next morning (Ms Commins’ cross-examination bundle, tab 178). Ms Commins said, and I accept, that she was referring to information which she had received over the previous month or so, including a conversation with Ms Nadenbousch shortly before sending the text message, which Ms Commins regarded as the “straw that really broke the camel’s back” (T247.15–248.21, 269.34–37). Ms Nadenbousch told Ms Commins in that conversation that Mr Ranocchia had been speaking negatively about Ms Commins’ performance to Ms Nadenbousch, Ms Grouse (an Investment Associate) and Mr Heilman (Investment Manager) (T249.42–250.6, and Ms Nadenbousch’s affidavit of 21 May 2025 at [30]), all of them being employees of the Goldstone Fund.

78    On 13 February 2025, Ms Commins met with Mr Ranocchia and terminated his employment, telling him that he would be paid four weeks’ salary in lieu of notice and his outstanding entitlements (Ms Commins’ affidavit of 6 March 2025 at [77]). Ms Commins agreed that Mr Ranocchia’s note of the conversation reflected the substance or essence of what was said (T273.28–274.43). The version Ms Commins was shown in cross-examination was the amended version which Mr Ranocchia created on 25 February 2025 (CB7/274) rather than the original version which he created on 13 February 2025 (Mr Angelis’s cross-examination bundle, tab 12B). The note records Ms Commins saying that “It has come to my attention that you have said negative things about me, my leadership style, and Goldstone” and that was the reason for his termination. Ms Commins declined to give examples, and said that she had heard it from 6 or 7 sources, without naming them. Ms Commins also declined to explain what he was accused of saying. To the extent that the differences in the two versions of the note have any significance, I prefer the first of them (CB7/274) being closer in time to the conversation, and composed without the influence of Mr Angelis’s offer of reinstatement.

79    I accept Ms Commins’ evidence as to her reasons for terminating the employment of Mr Ranocchia (Ms Commins’ affidavit of 21 May 2025 at [99]). Those reasons are given under four topics.

80    First, Ms Commins says that Mr Ranocchia actively undermined her in her role as Managing Director. Ms Commins gives as one example, that in internal meetings and external meetings, Mr Ranocchia would interrupt her, contradict her points, and make faces when she was speaking or presenting, and that behaviour in Ms Commins’ view was harmful to the reputation of Goldstone as it reflected poorly on Goldstone. Another example is that Mr Ranocchia would refuse to do tasks that Ms Commins requested him to do, such as refusing to complete important due diligence on the HOST customer pipeline because he “didn’t see the point”, and Ms Commins had to ask Mr Hunter to take over leading this task with Mr Ranocchia. Although Ms Commins sent an email on 30 August 2024 complimenting Mr Ranocchia on his work in relation to the HOST transaction (Ms Commins’ cross-examination bundle, 3/188), I accept Ms Commins’ explanation that she was trying to give him a lot of encouragement and support (T239.5–7). Further, Ms Commins says that she was aware of Mr Ranocchia speaking negatively about her and the Goldstone Fund. She refers to an instance where she overheard Mr Ranocchia speaking with Mr Keating (the founder and CEO of HOST, which Parabellum had acquired). Although Ms Commins says that she could not hear the precise words that Mr Ranocchia was saying, Mr Ranocchia admitted in his cross-examination that he said to Mr Keating on about 4 July 2024 that the dysfunction in the transaction process of the Goldstone Fund and the Parabellum board was “a s..t show”, and accepted that the statement was unprofessional (Mr Ranocchia’s affidavit of 14 May 2025 at [39] and T585.35–586.22). Further, Mr Ranocchia admitted in cross-examination that in late 2024, he said to Ms Grouse and Ms Nadenbousch that Ms Commins was “a f…ing bitch”, that Ms Commins was “an absolute shambles”, and that the fund was “a f…ing joke”, and that if “Ms Commins hangs around, then I’m out” (T587.11–16, 587.45, 588.4–9; the apparent source of the questions being Ms Nadenbousch’s affidavit of 21 May 2025 at [30], which I accept).

81    The second reason why Ms Commins terminated Mr Ranocchia’s employment was that he overstepped his authority. Ms Commins gave an example of a Parabellum board meeting on 14 November 2024, which she had to leave early because she was unwell, where the board agreed to submit a non-binding indicative offer to purchase Star International Pty Ltd. Mr Ranocchia was the Goldstone Fund’s appointee on the board and Ms Commins expected him to have updated her after the board meeting of the intention to submit the offer and confirm with her that Goldstone endorsed the offer. Ms Commins gives evidence that she had concerns about the acquisition, which she had told Mr Ranocchia before the meeting on 14 November 2024. Ms Commins says that Mr Ranocchia did not inform her that he was going to submit the offer or had submitted the offer, and she was not copied on the offer email sent to Star International. At the time of the board meeting, Ms Commins did not consider that there had been sufficient consideration of the proposed offer, and was surprised that it was even made. Ms Commins considered that Mr Ranocchia was acting outside his authority as a Goldstone-appointed board member by submitting the offer without first raising it with her as the Managing Director of Goldstone PE. Ms Commins says that she raised her concerns orally with Mr Angelis at the time and he said that it was a “sackable offence” (Ms Commins’ affidavit of 12 April 2025 at [50(b)]). On about 19 November 2024, Ms Commins said to Mr Ranocchia “you can’t do that, come and talk to me” and they then sat down together at Goldstone PE’s offices and Ms Commins took him through the calculations of the valuation and detailed the basis for her concerns with the business model. Ms Commins gave another example in July 2024, in relation to the negotiation of the Parabellum completion payment in which she had told Mr Ranocchia that Goldstone’s offer for the completion payment would be $200,000, but Mr Ranocchia had a discussion with an executive at Parabellum without her and came to an agreement as to a completion payment of $169,000. Ms Commins refers to an email from Mr Ranocchia after that discussion which said that the offer was “pending my final approval” but adds that in practice, it would have been difficult to renegotiate the price after the offer had been made on Goldstone’s behalf and detrimental to Goldstone’s relationship with Parabellum.

82    The third reason given by Ms Commins for the termination, was that Mr Ranocchia was not sufficiently performing his duties. Ms Commins refers to a key part of Mr Ranocchia’s role and duties being deal origination, and says that they had a regular weekly meeting in relation to deal generation where Mr Ranocchia was to provide her with an overview of the origination activities he had undertaken in the prior week, but that Mr Ranocchia consistently did not generate new opportunities. Ms Commins was cross-examined on the terms of the bonus letter to Mr Ranocchia of 14 November 2024 which praised his work in “deal generation” (Ms Commins’ cross-examination bundle, tab 101), but I regard that as an aspect of Ms Commins’ efforts to support and encourage Mr Ranocchia and thus it does not undermine the cogency of her affidavit evidence. The same reasoning applies to Ms Commins’ email of 16 December 2024 to Mr Hodson to the effect that Mr Ranocchia would be entitled to 4% of the carry pool (Ms Commins’ cross-examination bundle, tab 126).

83    Fourth, Ms Commins says that Mr Ranocchia’s behaviour was negatively impacting the culture of Goldstone, and refers to Ms Nadenbousch telling her on numerous occasions that Mr Ranocchia was difficult to work with, and had made a complaint about his behaviour in late July 2024. That evidence was admitted as evidence only of Ms Commins’ understanding. However, the evidence of Ms Nadenbousch was not subject to any such limitation. In her affidavit of 21 May 2024, Ms Nadenbousch refers to Mr Ranocchia as being antagonistic and using humiliation tactics when she did not know certain things, noting that she did not have a background in private equity, and there were repeated instances of his words or actions bringing her to tears and causing her emotional distress (at [9]). In July 2024, Ms Nadenbousch was having trouble with valuation terminology when working late at night at the Goldstone PE offices, and Mr Ranocchia screamed and yelled at her while she was crying hysterically. Ms Nadenbousch added that she was crying so much that she could not see through her tears and Mr Ranocchia made repeated demands that she “look at him when I talk to you” (at [11]). On another occasion, Mr Ranocchia berated Ms Nadenbousch for not knowing how much Goldstone paid for Parabellum and said in an aggressive manner “how do you not know this” and “use your brain” (at [13]). In late July 2024, there was a Goldstone PE team function at which Mr Ranocchia yelled at Ms Nadenbousch, when she was looking away to a wall, saying “don’t roll your eyes at me” (at [16]–[18]). On another occasion, Ms Commins heard Mr Ranocchia say that Ms Nadenbousch “vomited her words and was an airhead” (Ms Commins’ affidavit of 6 May 2025 at [75]). During Ms Nadenbousch’s cross-examination, there was a visible manifestation of the distress which she experienced by reason of her treatment by Mr Ranocchia, when recalling how she had attempted to repair relations with good-natured humour (T336.42–337.27). In late July 2024, Mr Angelis discussed Mr Ranocchia’s behaviour with him. On the following business day, Ms Commins met with Mr Ranocchia in Goldstone PE’s office and said “I like your work, but your attitude has got to change”. Ms Commins outlined her expectations of him in relation to dealing with others in the office and said “if you have issues with Goldstone or its leadership, you should raise it with me” (Ms Commins’ affidavit of 21 May 2025 at [94]). Mr Ranocchia accepted in cross-examination that Ms Commins said to him “I like your work, but your attitude has got to change”, but claimed not to recall the time or context when that occurred (T584.39–41). Mr Angelis had another discussion with Mr Ranocchia on 5 September 2024, this time in relation to Mr Ranocchia’s behaviour in meetings with business owners (Ms Commins’ affidavit of 21 May 2025 at [98]). Ms Commins sent a text message thanking Mr Angelis for taking the time to do that, and said “He’s a good asset. Worth investing in” (CB5/177).

84    In my view, the fact that Mr Ranocchia’s employment lasted as long as it did is a tribute to Ms Commins’ and Mr Angelis’s patient and persistent encouragement of Mr Ranocchia to improve his behaviour. Mr Ranocchia’s contract of employment could be terminated for convenience on four weeks’ notice (CB3/115, cl 18.1). The contract provided that he must not “bind or make representations on behalf of the Company [being Goldstone PE] except as the company expressly authorises you to do”, “do or say anything which is harmful to the reputation of the Company”, “do or say anything which may lead a person to cease, curtail or alter the terms of its dealings with the Company”, or “interfere in any way with the relationship between the Company and its Clients, Executives, contractors or suppliers”. There were ample grounds (if indeed any were needed) for his termination.

85    On 17 February 2025, Ms Commins sent an email to Mr Angelis regarding the proposed Deed of Acknowledgement (CB6/259), and attached a version with her proposed edits, including the change that her salary figure would be “exclusive of superannuation”.

86    Also on 17 February 2025, Mr Fonseca (the CFO and COO of Neighbourly) circulated a board pack for a meeting scheduled for 20 February 2025, including insurance as an agenda item under “Other Business” (CB6/260). One of the board papers made an oblique reference to an agency agreement including “a disclosure of the connection between Neighbourly and Clearlake”. In response to an earlier email from Mr Fonseca of 13 February 2025, circulating the draft agenda, Mr Papageorgiou sent an email to Mr Fonseca, Mr Angelis and Ms Commins on 17 February 2025 in which he indicated difficulties facing him in attending the board meeting, and stated (CB6/256):

In so far as insurance goes, the only change I will authorise at this point in time is that we pilot Clearlake on Strata Professionals clients and everything else remains the same for now. Any LOA [Letter of Appointment] relating to any other Neighbourly entity that I did not approve to be revoked. I am not negotiable on this.

(Emphasis in original).

Mr James Angelis replied the same day saying:

As you are aware you and I have been discussing Clearlake being appointed to the insurance programme for almost a year now. Clearlake have now established an extensive infrastructure to service our needs. They are providing us with a better deal and a far better service. As a result, they now have a significant fixed cost in their business.

Revoking any LOA will be an embarrassment. Unless you can provide a good reason for your stance I will be voting for Clearlake to be immediately appointed on all Neighbourly insurance business.

The reference to significant fixed costs was to costs which Clearlake started building up in the last quarter of 2024 because Mr Angelis had been telling Clearlake that it would get the Neighbourly deal (T421.11–17). Mr Angelis thought that the Neighbourly board should have deferred to his expertise in insurance in approving a deal with Clearlake (T425.18–20, 425.34–36, 467.15–20).

87    On 19 February 2025, Mr Papageorgiou responded to Mr Angelis’s email of 17 February 2025 stating (CB6/256):

I am aware of our discussions and that is why I am amazed Clearlake have made such premature progress. Since we began speaking on the possibilities and options for the business the environment has changed dramatically.

The board has not fully considered, in a formal context, all material considerations in what is a critical business matter. As we know, insurance is at the forefront of the industry and it is uncertain. There are regulatory, reputational, and operational considerations.

What are the implications to the business and its directors Clearlake being a related party?

Will jumping into bed with a related party stand up to scrutiny in the current climate?

Would we as a business be incentivised/wise/likely to change to a non-related party (say any other broker) purely because of revenue from commissions in the current climate?

Is disclosing a large increase in commission income in the current climate what we should be doing?

Do we want to expose every AGM to a potential dispute over commissions? Particularly if at the same time we are showing higher revenue?

Is there a better, safer, less disruptive staged approach to this?

Are all internal stakeholders on side with this change? Do we care if they aren’t? It isn’t as simple as accusing our people of being difficult.

Is there any value in testing with me how I think the change might impact the business and its people?

Mr Papageorgiou questioned whether everyone involved was “setting aside any personal bias”, and ended his email by re-iterating that “it isn’t a no to Clearlake scaling over time. In good conscience, a more thought out, slower approach to this is in the best interests of the Neighbourly Group”. As to the second paragraph of the above extract, Mr Angelis initially said that he did not believe that this was “a critical business matter” (T426.36–38), but later contradicted that evidence in emphatic terms (T470.20–28).

88    On 20 February 2025, the board of Neighbourly met, but Mr Papageorgiou was unable to attend and accordingly there was not a quorum as required under the Neighbourly Shareholders’ Deed. Nevertheless, an informal meeting took place as set out in the detailed file note which Ms Commins made of that meeting (together with the directors’ meeting which took place on Monday 24 February 2025) (CB8/384). The file note appears to have been created on 24 February 2025, as it refers to the meeting that day as having occurred “Today”. I accept Ms Commins’ evidence that the file note was not prepared in anticipation of litigation (T308.16–22, 310.24–29). I accept the file note as an accurate record of what took place both on 20 and 24 February 2025, with the minor exception that Ms Commins refers to the first of the meetings as having occurred on Thursday 21 February 2025, whereas that should have been a reference to Thursday 20 February 2025. I reject Mr Angelis’s evidence of what was said to the extent that it is inconsistent with Ms Commins’ file note.

89    Ms Commins referred in the file note to having received an email from the CFO (Mr Fonseca) about a week before the meeting, suggesting that the transition to Clearlake away from Honan was being undertaken. Ms Commins says that at the time she did not know who Clearlake was, despite Mr Angelis saying that he had been discussing this for over a year with Mr Papageorgiou. Ms Commins says that according to Mr Papageorgiou, the matter was not discussed in detail and nothing had been agreed to. I accept that evidence, and I reject Mr Angelis’s repeated attempts in his cross-examination to say that Mr Papageorgiou, as well as Ms Commins, had agreed to the transition to Clearlake in 2024. Ms Commins says that in Mr Papageorgiou’s view, when the industry came under fire about “dodgy insurance scandals in the strata industry”, it should have changed the way Neighbourly operated with respect to insurance dealings. The file note then refers to an email by Mr Papageorgiou, saying that he felt uncomfortable that the insurance business was being diverted to Mr Angelis’s son, and that due to the presence of a related party, a clear conflict of interest arose and overall the transaction looked bad. The file note added that Mr Papageorgiou did not approve the insurance provider being changed at all, and he pointed out that as a major shareholder, he should have been consulted, but said that he was willing to trial run Clearlake with a subsidiary but that was it. The file note then refers to Mr Angelis’s reply by email saying that the transition was going to happen anyway, and that Clearlake had already put significant costs into their business to support Neighbourly’s insurance program, saying that it would be “an embarrassment to him and his son” if his son did not get awarded the insurance business. The file note then refers to Mr Angelis’s email accusing Mr Papageorgiou of acting in bad faith and taking illegal payments from Honan, and Mr Papageorgiou’s reply that he himself felt embarrassed that Honan’s had simply been dropped without his prior approval. Although I have referred to the email exchanges above, it is significant that Ms Commins included that material in her file note, as it is directly inconsistent with Mr Angelis’s oral evidence to the effect that Ms Commins and Mr Papageorgiou had approved the transition to Clearlake in 2024, and that Ms Commins allegedly had full knowledge in 2024 of his son’s and his own involvement in Clearlake.

90    The file note then refers to the board meeting, which was scheduled to take place on 20 February 2025, which Ms Commins attended via audio-visual link from Perth. The file note records Ms Commins as having made the following points:

1.    That insurance is an area that Neighbourly needs to be very careful with

2.    We owe best interests duties to our customers and require full disclosure.

3.    Neighbourly had already been investigated about not disclosing its commissions effectively and this investigation was not yet closed

4.    To choose a provider we should follow due process

5.    I recommended that management (Ben the CEO and Alan the CFO) compare the Clearlake proposal with other proposals in the market. And a decision then be made on merit which would be in the best interests of our Body Corporate customers.

6.    I specifically suggested that management present this to us at the next Board meeting in March along with their recommendation of which provider to go with.

7.    I noted that since there was a related party involved, that among other issues such as ensuring we are getting the best deal for our customers, that disclosure would need to be done properly.

The “Clearlake proposal” referred to in item 5 in that list is not in evidence and appears to have been at a broadly conceptual level. Mr Angelis was asked in re-examination to describe it (T560.36–562.15), but then produced a document created on 2 June 2025, being the fourth day of the trial. I do not place any credibility on that evidence.

91    The file note then adds that everyone agreed that that approach should be taken, including Mr Angelis, with whom Ms Commins had spoken previously about the importance of this independent work. Ms Commins also notes that it was agreed that the comparison might take time and that it would be delivered at the next formal board meeting (that is, in March). Mr Angelis admitted in his cross-examination that he knew on 20 February 2025 after this meeting that Clearlake was never going to survive any comparative process (T443.18–24), but immediately contradicted that position and said that he was confident that it would (T443.36–43). I prefer the earlier of the two answers. I reject Mr Angelis’s evidence that he thought at the meeting on 20 February 2025 that Ms Commins was supportive of Clearlake (T443.30–34, 448.16–19). Mr Angelis even went so far as to say, most unbelievably, that Ms Commins conveyed to him at the meeting on 20 February 2025 that she would vote in favour of Clearlake, irrespective of what the comparative merit table showed (T444.4–7), and that the merit comparison was only requested by Ms Commins as window-dressing (T464.26–465.24). In my view, Ms Commins was arguing forcefully for proper merit-based decision-making and corporate governance standards by the board, which Mr Angelis deeply resented, as is reflected in his extraordinary (and self-defeating) accusation of Ms Commins four days later, that she was “hiding behind corporate governance”. The file note then refers to Mr Angelis mentioning on a number of occasions that Mr Papageorgiou “was acting in bad faith, and taking illegal payments from Honan’s, accepting bribes from company owners etc. None of these accusations have been substantiated.” I regard that as a belligerent attempt by Mr Angelis to turn defence into attack.

92    On 20 February 2025, shortly after the inquorate Neighbourly directors’ meeting (T440.1–8, 448.13–14, contrary to the equivocation at T445.11–27), Mr Angelis contacted Mr Ranocchia. The plaintiffs submit, and I accept, that Mr Angelis’s purpose in arranging to meet with Mr Ranocchia, was to come up with a pretext to get rid of Ms Commins so that he could get the transition from Honan to Clearlake through the Neighbourly board. He intended that by terminating Ms Commins’ employment, her directorships of Goldstone PE, Goldstone FM, Neighbourly and Parabellum would also terminate.

93    In the morning of 21 February 2025, Mr Angelis and Mr Ranocchia met at a café in Potts Point in Sydney. During that meeting, Mr Ranocchia gave Mr Angelis his account of the circumstances of his termination, including that Ms Commins had not provided any particulars of the reasons why she was terminating his employment (Mr Angelis’s affidavit of 14 May 2025 at [134]). Mr Angelis says that Mr Ranocchia denied ever disparaging Goldstone. If that was said, then it was a false statement by Mr Ranocchia given the admissions that he made in cross-examination, to which I have referred above. Mr Angelis also claims that Mr Ranocchia told Mr Angelis that Mr Lynass of Parabellum had been helping him during that period, which Mr Angelis says made it seem unlikely to him that Parabellum was, in fact, complaining about Mr Ranocchia, contrary to what Mr Angelis claims Ms Commins had previously suggested. As I have found above, Ms Commins made no such statement to Mr Angelis on 12 February 2025. Mr Angelis then says that this caused him to believe that Ms Commins had “lied to me about her reasons for terminating Mr Ranocchia, particularly that Parabellum had made complaints about Mr Ranocchia” (at [134]). This reasoning is again based on Mr Angelis’s evidence, which I have rejected, that Ms Commins said on 12 February 2025 that Parabellum had complained about Mr Ranocchia. In any event, even if I had accepted Mr Angelis’s evidence in that regard, his reasoning is extraordinary. Mr Angelis did not go back to Ms Commins to ask for her version, and said that he did not see any utility in doing so as he did not believe her at this point (T480.29–40). Mr Angelis had plainly closed his mind to whatever Ms Commins may have told him about the matter. Nor did Mr Angelis try to find out from anyone at Parabellum whether they had been complaining about Mr Ranocchia (T481.28). That is despite Mr Angelis accepting that he should have contacted Mr Lynass, if he had been genuinely concerned, to work out who was telling the truth, or whether Ms Commins did have sufficient grounds to terminate Mr Ranocchia (T483.27–32).

94    During the meeting on 21 February 2025, Mr Angelis apologised to Mr Ranocchia for what had happened to him and asked if he wanted to return to Goldstone, to which he replied that he would like to return. Mr Angelis then said to Mr Ranocchia: “I am going to terminate her. Just sit tight – I will need about a week” (at [135]). Mr Ranocchia also told Mr Angelis that he had made a file note of the termination meeting between Ms Commins and himself, and Mr Angelis requested that Mr Ranocchia send it to him (at [136]). Mr Ranocchia did so on 25 February 2025, however the version which Mr Ranocchia sent was the version which he amended that day, rather than the original version which Mr Ranocchia had created on 13 February 2025.

95    As contemplated by the Neighbourly Shareholders’ Deed (Schedule 1, cl 4(b)), the inquorate board meeting scheduled for 20 February 2025 was adjourned to the date being two business days later, namely 24 February 2025. On 21 February 2025, Mr Fonseca circulated an agenda for the meeting on 24 February 2025, which included, under the heading “Other Business”, that Mr Bayot was “to prepare a paper outlining management’s recommendation for a preferred supplier for insurance requirements going forward”, noting that the paper would be due on 10 March 2025. Unbeknown to Ms Commins and, it would appear, Mr Papageorgiou, Mr Angelis arranged with his son, John, to draw up a list of criteria to be applied in the comparison of Clearlake with its market competitors. That list of criteria was then sent by Mr Angelis to Mr Heilman on 20 February 2025, and Mr Heilman made some formal and stylistic changes to that list before sending it to Mr Angelis and Ms Commins the next day (Mr Angelis’s cross-examination bundle, tabs 17 and 19, together with the comparison schedule in MFI 2). About 14 minutes after Mr Angelis received Mr Heilman’s re-working of the draft comparison template, he sent Mr Heilman a scoresheet compiled by reference to the criteria, in which Clearlake scored 93 points, Honan scored 80 points, and the four other market competitors achieved lower scores.

96    The comparison template was also sent to Ms Suzie Farah, the Insurance Manager for Neighbourly, which she completed and sent by email to Mr Bayot at 9.16am on 24 February 2025, as requested by him. Ms Farah gave Clearlake a score of 76 points, and gave Honan a score of 95 points, with the other 4 competitors being ranked lower than Clearlake. Ms Farah’s email stated (CB7/271):

The service received to date from Clearlake has been exceptional, however at this early stage it is difficult to provide a 5/5 due to the short time I have been dealing with Clearlake, however no doubt the service received will continue to develop and grow.

Mr Bayot then forwarded Ms Farah’s email to Mr Angelis and Mr Fonseca (but not apparently to Ms Commins or Mr Papageorgiou). Ms Farah is a person of undoubted competence and integrity in relation to insurance matters. Indeed, Senior Counsel for the Angelis Defendants put to Ms Commins, who accepted the proposition, that Ms Farah was an experienced person in dealing with insurance (T307.30–31).

97    Returning to Ms Commins’ file note (CB8/384), Ms Commins refers in detail to the directors’ meeting held at 11.00am on Monday 24 February 2025, noting that the resolution about which insurance broker would be selected was not on the agenda for a decision, nor was it in the minutes from the prior meeting. Mr Papageorgiou was travelling at the time and unable to attend, but that did not mean that the meeting was not quorate, given that this was an adjourned meeting as contemplated in the Neighbourly Shareholders’ Deed (Sch 1, cl 4(b)). The file note then contains the following, which I accept as an accurate record of what took place at the meeting:

Jim [Angelis] forged straight to a discussion about insurance. He stated that since Adam [Papageorgiou] had not been present at the last meeting, we had a quorum for this meeting and could pass resolutions. It needed to be passed quickly because his son’s business had already hired a direct resource in anticipation of getting the neighbourly work. At the meeting Jim handed out to the Directors the insurance template that he had filled in. Clearlake was given full scores and top rankings for all the selection criteria. The other brokers were given lesser scores. On that basis Jim proposed to pass a resolution that Clearlake be adopted as the insurance broker for Neighbourly and all insurance was awarded to Clearlake.

I questioned Jim on this. I said:

•    We should get legal advice on how we can award Clearlake the insurance without breaching best interests duty and disclosing the related party to our clients

•    We should follow the instructions of the lawyers to make sure we can withstand any scrutiny by regulators or royal commissions should they come our way.

Jim then became aggressive saying that I must have an “agenda”. That I was hiding behind “corporate governance”, that he was the investor and we should abide by what he says. He said that his son should be awarded the instance [sic: insurance] work and that’s what he wants. That because I was pointing out a possible pathway involving legal advice, I must be supporting the dodgy dealings with Honans. I denied this. I don’t know anything about dodgy dealings with Honans.

He said he demanded that a resolution be passed to appoint Clearlake and when challenged again by me and the CFO, settled for a resolution to appoint Clearlake if there were no red flags in the legal assessment. I was not happy with this outcome but agreed anyway as I felt intimidated and that two partners at a PE firm arguing in front of executives was a very bad look and completely unprofessional.

The CFO, Alan [Fonseca], said “I must admit that I agree with Alex here, we should get proper legal advice”. He went on to say that if we ever got investigated we would need to show how we went about making a decision to appoint Clearlake on its merits.

Jim did not take this well and started saying that he should get more respect as the investor. Started rambling about the amount of debt the business has.

Alan then conceded and became subservient, jotting down the wording of a resolution. Since Jim agreed to the wording, I was asked whether I agreed and I said, “I suppose so”.

98    Contrary to the submission put repeatedly and forcefully by the Angelis Defendants, the first paragraph of that extract demonstrates that the comparative analysis was not only relevant to, but was the basis of, Mr Angelis’s advocacy for Clearlake as Neighbourly’s exclusive insurance broker.

99    Ms Commins gave evidence, which I accept, that she took comfort from the fact that there would be a “red flag review”, and she anticipated that there would be issues in the “red flag report” (T309.9–11). I note for completeness that the draft minutes of the meeting (CB6/266) wrongly refer to the legal advice merely being directed to the best way to implement the transition to Clearlake, but Ms Commins ensured at the next board meeting on 20 March 2025 that that was corrected to refer to legal advice being obtained before determining next steps (CB7/311).

100    On 27 February 2025, three days after the 24 February board meeting of Neighbourly, Ms Commins and Mr Angelis met and had a conversation as follows (as recorded in Ms Commins’ file note, which I accept as accurate: CB7/280):

Jim:    Alex I’ve got something very serious to tell you. It’s very serious and it seriously impacts you. I’m terminating your employment effective immediately for gross misconduct.

Me:    That’s a surprise, what was the gross misconduct?

Jim:    You have caused serious harm to the health and wellbeing of staff. You misled me as to why you were letting go of Chris. The way you fired him as well caused him harm. I will be reinstating his employment.

    And you’ve been in talks to sell Parabellum.

Me:    Both of those accusations are entirely untrue and baseless.

Jim:    So you’re denying speaking to Toll Holdings?

Me:    Yes I am. I’m very surprised at these accusations but I understand what is happening here. You were upset about the insurance issue as discussed at the Board and me suggesting that we need legal advice to determine whether we can give the business to Clearlake.

Jim:    No its got nothing to do with the insurance decision. Please write to me if you’d like me to consider a proposal.

Me:    I was hoping that we could work out our differences in a way that was beneficial for you and for me.

Jim:    I’m terminating your employment and I’d like you to leave immediately.

Me:    What about my Directorships?

Jim:    These will be terminated. Please leave the office immediately.

Me:    Okay.

101    Mr Angelis sent Ms Commins an email later that day saying that Ms Commins’ employment had ended due to serious misconduct, that the termination of her employment is a default event under the Goldstone Shareholders’ Deed, that as a result her position as a director of the Goldstone Companies had become vacant, that she was no longer entitled to be a director of an investee entity, and that she would be required to divest her shares in the Goldstone Companies in accordance with the Shareholders’ Deed. The email was sent by Mr Angelis as “Executive Chairman” of Angel Holdco, and did not purport to be sent by Mr Angelis on behalf of Goldstone PE. Mr Angelis forwarded the email to his son, John (Mr Angelis’s cross-examination bundle, tab 30). In my view, Mr Angelis did so because he wanted his son to know that he had succeeded in removing Ms Commins as an obstacle to Clearlake obtaining Neighbourly’s insurance broking work, despite Mr Angelis’s denial of that proposition (T504.6–13). Ms Commins responded that Mr Angelis’s actions “have no factual or legal basis and accordingly are ineffective” and that the “consequences you claim to flow from your actions are legally insupportable” (CB7/281). On 28 February 2025, Mr Angelis sent a further email reiterating his position that Ms Commins’ employment had been terminated due to serious misconduct, and that the ending of her employment was “necessary to protect the reputation and viability of the business and the health and safety of the employees” (CB7/281).

102    In my view, the real reason why Mr Angelis sought to terminate Ms Commins’ employment, and thereby trigger the consequences for Ms Commins’ directorships and WIJOAV’s shareholdings, related to the stance which Ms Commins had taken at the Neighbourly board meeting concerning the appointment of Clearlake as Neighbourly’s insurance broker. Although there were tensions between Mr Angelis and Ms Commins at their meeting on 21 January 2025, they both contemplated that those differences would be resolved by way of a Deed of Acknowledgement to be drafted by Mr Hodson of Thomson Geer. Mr Angelis did not want Ms Commins to be able to stand in the way of his plan to advance the business interests of his son by arranging for Neighbourly’s insurance portfolio to be transferred to Clearlake. Excluding Ms Commins from management and decision-making because of the stance she had taken in relation to Clearlake was not merely the motive for Mr Angelis’s conduct but was the very object he intended to achieve. I regard the purported termination of Ms Commins’ employment as a petulant overreaction to the commendable position which Ms Commins had taken in the interests of proper corporate governance and merit-based decision-making.

103    On 6 March 2025, Ms Commins commenced these proceedings and sought urgent relief. On 7 March 2025, this Court made orders restraining the defendants from taking any step to remove or replace Ms Commins as a director of the Goldstone Companies, or to act upon or give effect to Ms Commins’ purported removal from her position as director of those companies. The orders were extended on 11 March 2025.

104    On 6 March 2025, the legal advice relating to Neighbourly’s insurance proposal was received in draft (CB8/390). On 11 March 2025, Ms Commins wrote a detailed email setting out the risks to Neighbourly of financial, legal and reputational harm, if it proceeded to appoint Clearlake (Mr Angelis’s cross-examination bundle, tab 37). On 12 March 2025, Mr Bayot sent an email to Mr Papageorgiou and other directors and officers saying that “Following my discussion with Jim Angelis this morning, I am directing the Neighbourly team as of today that there will be no insurance moved from existing brokers” (CB7/297). The email continued that there “will be no insurance policies moved to Clearlake unless advised otherwise from me.” Mr Angelis forwarded that email to his son, John, who responded “Ouch” (Mr Angelis cross-examination bundle, tab 40). That was plainly an expression of financial pain, which Mr Angelis attributed to the cost of the infrastructure which his son had set up in anticipation of obtaining the Neighbourly work (T511.25–35). On 19 March 2025, Clearlake sent a letter to the board of Neighbourly withdrawing from consideration for the insurance placement of Neighbourly’s portfolio (CB7/310). The email from Clearlake said that “internal board dynamics have shifted the focus away from the insurance itself”. When it was put to Mr Angelis that Clearlake knew about the internal board dynamics because of the emails that he had been sending to John at Clearlake, Mr Angelis gave a series of evasive answers before ultimately accepting that obviously correct proposition (T517.19–518.16). Mr Angelis even said that he thought it was appropriate for him, as a director of Neighbourly, to give his son’s business, as the counterparty to a proposed transaction with Neighbourly, knowledge of the internal board dynamics of Neighbourly relating to that transaction (T518.36–43). The Clearlake letter was tabled by Mr Angelis at a Neighbourly board meeting the following day (CB7/311).

105    On or about 11 March 2025, Ms Commins was told in a telephone conversation with Mr Ian Lynass (Chairman of Parabellum) that she had been removed as a director of Parabellum on 7 March 2025. Mr Lynass indicated that the change of directorship had been lodged with ASIC that day and Mr Angelis was appointed a director. The change was made by way of resolution of Parabellum’s shareholders. It appears that the removal of Ms Commins as a director of Parabellum was effected just before the orders of 7 March 2025 were served on Parabellum.

106    On 1 April 2025 at 3.19pm, the solicitors for the plaintiffs wrote to the solicitors for the Angelis Defendants saying that they did not maintain their claim for the winding up of Goldstone PE, and would file an amended originating process which deleted that claim shortly (CB7/326 and 330). However, that was not done until after 1 April 2025. At 6.30pm that day, Mr Angelis sent an email to Ms Commins proposing a resolution that VCMP be wound up voluntarily on the just and equitable ground (CB7/327).

107    On 1 April 2025, Mr Angelis (in his capacity as trustee for the JA Goldstone Carry Trust) filed proceedings in the New South Wales Supreme Court seeking orders that VCMP be wound up pursuant to s 583(c)(ii) of the Corporations Act, as applied and modified by Pt 3 of the Corporations (Ancillary Provisions) Act 2001 (NSW) and s 73 and cl 7(1) of Sch 1 to the Partnership Act, on the ground that it is just and equitable or in the public interest. As mentioned above, those are the proceedings which have been cross-vested to this Court and have been heard together with the main proceedings.

108    On the same day (between 6.37pm and 6.55pm), following the commencement of the NSWSC Proceedings, Mr Angelis purported to cause four interrelated resolutions to be passed (collectively, the Resolutions) effecting a change of control of the Goldstone Fund by interposing entities which he controls:

(a)    At 6.37pm, Mr Angelis caused Angel Holdco, in its capacity as “Limited Partner” of VCLP, to resolve pursuant to cl 22.2(a) of the VLCP Deed, that VCMP (as General Partner of VCLP) be removed as the General Partner, on the basis that it is subject to an “Insolvency Event” (CB7/337). The “Insolvency Event” relied upon was the existence of the NSWSC Proceedings filed by Mr Angelis, as well as the proposed resolution to voluntarily wind up VCMP (Resolution 1);

(b)    At 6.41pm, on the basis of the removal of VCMP from its role as General Partner of VCLP under Resolution 1, Mr Angelis caused Angel Holdco, in its capacity as “Limited Partner” of VCLP, to directly appoint Goldstone Capital as General Partner of VCLP under cl 22.3(b) of the VLCP Deed, and to instruct the Manager (ie. Goldstone PE) to appoint Goldstone Capital as General Partner under cl 22.3(c) of the VCLP Deed (CB7/336) (Resolution 2);

(c)    At 6.48pm, following the appointment of Goldstone Capital as General Partner of VCLP under Resolution 2, Mr Angelis caused Goldstone Capital to pass a resolution in that capacity convening a meeting of the Limited Partners under cl 19.1(b) of the VLCP Deed to consider removing Goldstone PE as Manager and appointing a new Manager in its place (recommending Goldstone Capital FM) (CB7/335) (Resolution 3); and

(d)    At 6.55pm, in reliance upon Resolution 3 convening a meeting, as is a prerequisite to the appointment of a new Manager under cll 8.2 and 8.7(a) of the Management Agreement, Mr Angelis caused Angel Holdco, in its capacity as Limited Partner of VCLP, to pass a resolution resolving that Goldstone PE be removed as Manager pursuant to cl 8.2(a) of the Management Agreement on the basis that it is subject to an “Insolvency Event” within the meaning of the VCLP Deed (CB8/338). That “Insolvency Event” was that WIJOAV had commenced proceedings for the winding up of Goldstone PE in the form of the originating process filed in this Court. The resolution included that Goldstone FM be appointed as Manager under cl 8.7(b) of the Management Agreement (Resolution 4).

109    Goldstone Capital and Goldstone Capital FM are entities which were incorporated on 28 February 2025 (the day after Mr Angelis purported to terminate Ms Commins’ employment) and are wholly owned by Mr Angelis.

110    On 2 April 2025, Mr Angelis sent Ms Commins a letter stating that, in the event that the termination on 27 February 2025 is held to be invalid, her employment is terminated immediately on the grounds that she had:

(a)    failed to fulfil her duties under the Executive Employment Agreement by not lodging particular ASIC forms to update the shareholdings of Goldstone PE and Goldstone FM or the necessary documents to update the partnership registers in respect of VCMP and VCLP; and

(b)    transferred $15,000 from a bank account of Goldstone PE to her company, AVC Enterprises, and that her explanation for doing so was not consistent with the nature of the transfer and its description as a “Loan Repayment” (CB8/344).

111    Since then, Ms Commins has been excluded from having any role in the management of Goldstone PE and Goldstone FM. She has been denied access to the companies’ offices and computer systems (Mr Angelis’s affidavit of 14 May 2025 at [153]). Mr Angelis, however, has regarded himself as entitled to look through Ms Commins’ Goldstone PE email inbox (T548.10–17).

Did Goldstone PE validly form the opinion that Ms Commins had engaged in serious misconduct?

112    In short, the answer to this question is “no”, irrespective of whether the particulars are considered in isolation, or in their totality, or in any of the combinations advanced by the Angelis Defendants. I accept the submission of the Angelis Defendants that a pattern of behaviour or cumulative conduct is capable of amounting to serious misconduct.

113    As indicated above, on 27 February 2025 and 2 April 2025, Mr Angelis sought to terminate Ms Commins’ Executive Employment Agreement on the ground of serious misconduct under cl 18.3(a). Some of the matters relied on by Mr Angelis have been abandoned, and others have arisen under the principle in Shepherd v Felt & Textiles of Australia Pty Ltd (1931) 45 CLR 359 at 377–8, whereby a party to a contract can rely on circumstances existing at the time of termination even though they were not known to the party at that time, in order to justify the decision to terminate: see JD Heydon, Heydon on Contract: The General Part (2019) at [24.420]. Ultimately, the Angelis Defendants relied on nine particulars, which I will deal with in turn. In light of the conclusion to which I have come as to whether Goldstone PE validly formed the opinion that Ms Commins had engaged in serious misconduct, it is not necessary to address the question of whether Mr Angelis had the implied authority of Goldstone PE to decide to terminate Ms Commins’ contract of employment.

114    The following principles concerning what constitutes “serious misconduct” under a contract of employment were stated by Wilcox CJ, sitting as a judge of the Industrial Relations Court of Australia, in Gooley v Westpac Banking Corporation (1995) 129 ALR 628 at 636–7 (on which the Angelis Defendants relied in the written opening submissions at [181]):

(a)    the question whether an employee is guilty of serious misconduct requires an examination not only of the employee’s actions, but also of the employee’s mental processes relative to them;

(b)    “serious misconduct” means conduct which is in itself of a nature which causes a fundamental breakdown in the relationship as an employer to an employee;

(c)    that is consistent with the reasons of Smithers and Evatt JJ in North v Television Corporation Limited (1976) 11 ALR 599 at 608–9, to the effect that “misconduct” refers to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment.

I do not regard that as inconsistent with the reasoning in Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 176 ALR 693 at [24]–[26] (Gleeson CJ, Gaudron and Gummow JJ).

115    It is important also to note that cl 18.3(a) of the Executive Employment Agreement refers not to the objective fact of “serious misconduct” but to Goldstone PE forming an opinion that the conduct amounts to serious misconduct. The New South Wales Court of Appeal considered the authorities pertaining to the constraints on the formation of that kind of opinion in an employment agreement, and concluded that the employer is obliged to act reasonably, “at least” in the Wednesbury sense, as explained in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 233–4: Bartlett v Australia & New Zealand Banking Group Limited [2016] NSWCA 30; (2016) 92 NSWLR 639 at [49] (Macfarlan JA, with whom Meagher and Simpson JJA relevantly agreed) (Bartlett v ANZ). The question is therefore whether the opinion as to serious misconduct is so unreasonable that no reasonable person would have formed it. The Executive Employment Agreement is governed by the law of New South Wales (Sch 1, Item 14). I propose to proceed on the basis that the formation of the opinion is constrained by reasonableness in the Wednesbury sense, despite the ambiguity of the expression “at least” in Macfarlan JA’s reasons, that being the principle most favourable to the Angelis Defendants. I note that the Angelis Defendants submitted in their written outline of opening submissions (at [183]) that in forming the opinion for the purposes of cl 18.3(a), Goldstone PE was obliged to act reasonably, citing Bartlett v ANZ.

Particular 1: The unauthorised copying, misuse and retention of information and documents obtained by Ms Commins in her capacity as a Director of Commonwealth Private Limited for Goldstone’s purposes

116    In approaching this particular, it must be borne in mind that the serious misconduct referred to in cl 18.3(a) must be in relation to Goldstone PE, not another party such as Commonwealth Private Limited (CPL). The question does not depend simply on whether Ms Commins breached her fiduciary duty and statutory duty under s 183 of the Corporations Act to CPL. I find that Ms Commins should not have engaged in this conduct, having regard to her statutory duty to CPL, as indeed Ms Commins accepted herself (T216.25–31). In that regard, I note that the relevant information under s 183 need not be confidential. Justice Derrington analysed the authorities recently and concluded that the question posed by s 183 is not whether the information is confidential, but how the information is acquired; specifically, whether it has been obtained because the person in question is a director, other officer or employee: Smart EV Solutions Pty Ltd v Guy [2023] FCA 1580 at [71]. His Honour noted, however, that it may be argued that there is Full Federal Court authority to the contrary: at [72]. I propose to proceed on the wider basis (that is, that the information need not be confidential), being the basis most favourable to the Angelis Defendants.

117    Particular 1 relates to Ms Commins’ former position as a non-executive director of CPL. CPL was a private wealth arm of the Commonwealth Bank of Australia (CBA), which advised high-end net worth individuals or companies and assisted them with investing superannuation funds or other assets (T155.37–46). Ms Commins resigned from that position on 31 July 2024 (T153.15–18). The facts relevant to the allegations made by the Angelis Defendants were as follows:

(a)    Some time prior to 28 June 2024, Ms Commins spoke to the Chairman of CPL, Mr Bransby, about the possibility of the Goldstone Fund being interested in the process to acquire the CPL business (T155.39–44). Also in June 2024, Ms Commins made an oral declaration to Mr Bransby that she had an interest in purchasing the business and Mr Bransby passed that information back to the bank (T197.19–26). That was a very open and frank discussion where Ms Commins said she had a conflict of interest (T197.36–37).

(b)    On 28 June 2024, Ms Commins sent an email with the subject line “CPW - Confidential” to Mr Angelis in which she attached a draft letter that could be sent to CPL. Ms Commins’ email noted that she would need to “tender [her] resignation before such a letter is sent and from here, get legal advice on how [she] can ensure that in the interim period [she is] not doing anything that is not in the best interests of the bank” (Ms Commins’ cross-examination bundle, tab 41). In the letter, Ms Commins referred both to her resignation from the board of CPL and also sought permission from CPL to share any confidential information.

(c)    On 26 July 2024, Ms Commins took a number of photos of her CPL laptop with her iPhone (the Photos) (T170.1 and following). These were Photos of certain CPL documents on a secure internal portal from the prior year (specifically July 2023) (T172.32, 175.147). She took the Photos because she was considering making an offer to purchase the division on behalf of the Goldstone Fund (T172.17–44). That was in circumstances where Ms Commins believed in what could be done with the division and had a vision for the division being a leading business (T172.28–29). She took the Photos to remind herself of the work that had been done in the prior year (T172.32–33). She understood some of the information was presented with an indication from CPL that it was confidential (T171.37–39), and she did not ask CPL’s permission to take the Photos (T171.22).

(d)    Also on 26 July 2024 at 3.24pm, Ms Commins emailed Mr Angelis a draft letter setting out a non-binding indicative offer to acquire CBA’s financial advice arm by the Goldstone Fund in partnership with Steadfast Group (Ms Commins’ cross-examination bundle, tab 199). This version of the draft letter included references to CPL’s brand and reputation being protected in any sale of its private wealth business, being a matter Ms Commins was aware of in her role as a director of CPL (T194.30–32). In my view, it could hardly be said that the fact that CPL was concerned with its brand and reputation was confidential in nature, or was known by Ms Commins only by reason of her role as Director. The draft letter included other information that Ms Commins had access to by reason of having been a director of CPL for three years, and Ms Commins accepted she also had knowledge of what CPL would be looking for in a bidder (T195.45–196.3).

(e)    Before 31 July 2024, Ms Commins had a discussion with Ms Grehl, Executive General Manager at CBA, in relation to the proposed sale by CBA of CPL (T158.41–47; Ms Commins’ cross-examination bundle, tab 47). Ms Grehl put Ms Commins in touch with Ms Hickox who was leading the mergers and acquisitions team within CBA, and could facilitate an introduction of Ms Commins to Gresham in relation to the process for the sale (T159.19–27). Ms Commins was advised by Ms Hickox of the details of the process being run by Gresham and stated that: “[a]s you’re aware this is a highly confidential process that CBA is currently executing under Non-Disclosure Agreements with all the parties that CBA has selected to participate. We request that other members of Goldstone do not receive any information that you may have received in your capacity as a director of CPL. If any information is to be provided following the assessment by Gresham then the necessary NDAs and documentation will need to be established before any information is released” (Ms Commins’ cross-examination bundle, tab 47). That warning was a reference to any documents received by Ms Commins as part of the transaction which were the subject of non-disclosure agreements, and not a wider warning not to share any information she received in her capacity as a non-executive director of CPL (T216.33–37).

(f)    Ms Commins resigned from her role as non-executive director of CPL on 31 July 2024, and she disclosed in an email to Ms Hickox that she had tendered her resignation earlier that day (T153.18, 210.34–39, Ms Commins’ cross-examination bundle, tab 47).

(g)    On 1 August 2024, Ms Commins was advised by Ms Hickox that Goldstone would not be invited to participate as a candidate in the sale process which was underway with Gresham. Ms Commins notified Mr Angelis the next day by forwarding her email chain with Ms Hickox (Ms Commins’ cross-examination bundle, tab 47).

(h)    On 18 October 2024 at 3.24pm, Ms Commins sent an email (with the subject line “Slides”) to Ms Grouse and Mr Heilman, both in the Goldstone Fund’s Investment Team (Ms Commins’ cross-examination bundle, tab 196). The email attaches three images, which appear to have been taken of a laptop or iPad screen on 26 July 2024.

(i)    The Photos were never used in any formal material (T173.10, 219.40–220.8), and the information contained in the Photos was not used for the purpose of framing any offer (T174.20–21). Further, Ms Commins accepted that she did not think she was at liberty to share the Photos (T201.38–44). Ms Commins’ evidence, which I accept, was that in her mind: (a) a few months had gone by since the offer to the CBA to purchase CPL; (b) Goldstone was looking at the private wealth management sector; and (c) she sent the Photos to discuss with the team “key learnings” about the sector for internal strategy discussion (T216.12–17). Ms Commins’ evidence was that she understood in retrospect that it was wrong to share the Photos, but that she did not think it would cause harm as it was for purely internal purposes at Goldstone (T216.19–23).

118    My conclusions on the evidence are as follows:

(a)    Ms Commins already had the information in the Photos in her mind as a non-executive director of CPL (T194.30–32);

(b)    Ms Commins had already disclosed in early June 2024, in a very open and frank discussion, that she had a potential conflict of interest to the Chairman of CPL (T197.19–37);

(c)    it must have been obvious to CPL and CBA (through both CPL’s Chairman and Ms Hickox who was running the transaction process for the sale of CPL) that any offer Ms Commins would make on behalf of Goldstone for CPL would have the benefit of the information she had in her mind as a non-executive director of CPL; and

(d)    although the final offer being made by Goldstone for the purchase of CPL was not in evidence, Ms Commins made an offer (T211.46–212.4, 187.23–27, 199.44–200.10), and that offer was rejected. Ms Commins accepted that she may have used information in one of the Photos in framing her offer, but she understood the information in that particular Photo to be public information (T200.35–42).

119    The plaintiffs submit, and I accept, that it cannot rationally be contended by the Angelis Defendants that Ms Commins’ sharing of the Photos, or her conduct with respect to the proposed acquisition by Goldstone of CPL, realistically had any negative impact on Goldstone or its employees. As to Goldstone PE’s employees, the highest the evidence went was Ms Commins’ acceptance that sending the CPL slides to Ms Grouse and Mr Heilman “might be compromising their integrity” (T217.9–11). That is the language of mere possibility. CPL was aware of the information which Ms Commins had as a non-executive director of CPL, and was aware she intended to, and did, make an offer to acquire CPL for the Goldstone Fund, in which she would inevitably have used some of that information. The Photos did not add anything to Ms Commins’ knowledge beyond what she already retained in her memory. No detriment was suffered by CPL and no actual tangible benefit was obtained by the Goldstone Fund. In those circumstances, while Particular 1 is established as a matter of fact, it could not reasonably be thought to amount to serious misconduct in the relevant sense of reasonableness. Mr Bannon SC’s attempt to portray Ms Commins as a James Bond villain with old spy cameras is entirely misplaced.

120    For completeness, I note that a challenge was made to Ms Commins’ honesty in her solicitors’ response of 26 May 2025 to a question put by the solicitors for the Angelis Defendants on the previous day as to why she made copies of the CPL information (Exhibit 1). The response was to the effect that the Photos were taken to refresh her memory about what had been discussed in 2024 about the issues CPL was facing at the time in July 2023, and did not refer to use of the information for the purpose of formulating an offer. When cross-examined, Ms Commins said that she thought that her response was sufficient and rejected the proposition that her response was deliberately dishonest (T178.3–8). Contrary to the Angelis Defendants’ submission, I accept that denial. Apart from the favourable view I have formed as to Ms Commins’ credit, I could not be satisfied of any dishonesty without the benefit of knowing what communications took place between Ms Commins and her solicitors, which are covered by legal professional privilege.

Particular 2: The termination of the highly competent Mr Christian Ranocchia without a proper basis and motivated by personal considerations unrelated to the interests of the Goldstone Fund and not based on any substantiated performance or conduct issues

121    I have dealt with this above in the narrative of salient facts. The particular is not established as a matter of fact, and on the basis of my findings, no reasonable person could have formed the opinion that it was, or that Ms Commins’ conduct in this respect amounted to serious misconduct.

Particular 3: Telling Mr Angelis an account of her reasons for terminating Mr Ranocchia which was false in a material respect

122    This particular is based on Mr Angelis’s evidence that Ms Commins told him on 12 February 2025 that Parabellum had made complaints about Mr Ranocchia. I have rejected Mr Angelis’s evidence in that regard. Accordingly, Particular 3 has not been established.

Particular 4: Agreeing to accept an increase in salary inclusive of superannuation in January 2025 and then demanding the increase exclusive of superannuation

123    I have found that there was no agreement between Ms Commins and Mr Angelis in January 2025 that her increased salary figure would be inclusive of superannuation. Accordingly, Particular 4 has not been established.

Particular 5: A failure as Managing Director and Company Secretary to ensure basic but critical administrative tasks were performed, namely:

(a)    the registration of Angel Holdco’s limited partnership interest in VCLP and VCMP;

(b)    the registration of the shareholdings of Goldstone PE and Goldstone FM; and

(c)    the registration of Goldstone PE for GST,

the effect of which was to cause Goldstone PE, Goldstone FM and VCMP (as General Partner of VCLP) to breach the law

124    As to (a), Ms Commins was not aware that Angel Holdco needed to be registered as a Limited Partner of VCLP once it had entered the subscription deed (T143.44–144.2), but accepted that such registration was her responsibility as company secretary and Managing Director (Ms Commins’ affidavit of 21 May 2025 at [17], T145.18–27). I accept Ms Commins’ evidence that her failure to enter this in the register was a mistake and an oversight (T145.30–31).

125    As to (b), Ms Commins accepted that the ASIC register did not record the correct shareholdings in Goldstone PE and Goldstone FM, and it was her responsibility to do so which she had failed to perform (T151.14–17).

126    As to (c), Ms Commins gave evidence, which I accept, that whether Goldstone PE would be registered for GST was the subject of discussion between the auditors and accountants, and whether it would claim GST was discussed between Mr Angelis and herself (T151.22–30). I also accept Ms Commins’ evidence that she did not realise that Goldstone PE had to be registered for GST purposes (T151.25–27). Ms Commins did say, in answer to a previous question as to whether she was aware that there was an obligation to register Goldstone PE for GST purposes, that she was aware of that (T151.19–20), but the answer is inconsistent with the tenor of her evidence in the same exchange in cross-examination. The inconsistency was not drawn to her attention or taken up by the cross-examiner, and the likely explanation for it is that she misheard the previous question (that is, the question at T151.19–20).

127    The facts concerning Particular 5 thus amount to no more than inadvertence, and fall well short of what a reasonable person could opine was serious misconduct.

Particular 6: A failure to ensure contracts of employment were signed, including by herself and Messrs Johnson, Berkefeld and Butcher, and a failure to ensure capital calls on Angel Holdco were correctly documented pursuant to cl 5 of the VCLP Deed

128    As to the employment contracts, it was Ms Commins’ responsibility to ensure that senior employees had signed employment contracts (T148.35–36). Ms Commins accepted that failing to get a senior employee to sign an employment agreement is not an example of good governance (T149.4–5). Ms Commins said in an email to Mr Angelis on 18 June 2024, that there were no signed employment agreements for anybody on the Investment Committee or Advisory Board (T150.45–151.2). Her own Executive Employment Contract was also unsigned (T149.13–14).

129    As to the failure to ensure capital calls on Angel Holdco were correctly documented, Ms Commins accepted that no formal call notices were sent, including being signed by her as Managing Director, and it was done by email and an excel spreadsheet, which was a generally accepted practice, which was understood to be a capital call (T152.12–23).

Both of these matters involved inadvertence, and the cross-examiner made no attempt to elevate them to any more serious moral plane. No adverse consequences have been demonstrated for any party. In my view, no reasonable person could think that they involved serious misconduct.

Particular 7: An inability to fulfil a core function of her role, namely the effective raising of external capital, evidenced by the fact that only $11 million in third-party capital was raised over the relevant period (excluding Angel Holdco contributions)

130    Apart from Mr Angelis’s contribution, Ms Commins succeeded in raising additional funds of $11 million for the Goldstone Fund (T297.33–35). Ms Commins gave evidence, which I accept, that she had only been fund-raising since August 2024, it takes 12 to 18 months to raise a fund, and it was a difficult fund-raising environment (T298.33–35). Her focus in the first nine months of 2024 had been on the investments in Neighbourly and Parabellum (T298.35–38).

131    In those circumstances, the allegation falls well short of serious misconduct, and no reasonable person could think otherwise.

Particular 8: Lack of competence in relation to the Oracle, Bluestone and BlueMount transactions:

(a)    in relation to Oracle: advocating for an investment that was high risk and would involve a costly due diligence process.

(b)    in relation to Bluestone (a Neighbourly bolt-on acquisition): preparing transaction documents that contained inadequate restraint terms and posed a risk to Neighbourly. The documents had to be amended after the inadequacies were identified.

(c)    in relation to BlueMount: proposing to engage an external party to raise capital – an area within her remit – on terms that were at a considerable and unsupportable cost to the Goldstone Fund

132    As to (a) concerning Oracle, this was a business based in Newcastle involved in investment management, financial advice and accounting (T300.37–40). Mr Angelis approved the Goldstone Fund sending the vendor a non-binding indicative offer (which, if accepted, would lead to the due diligence process) despite his professed scepticism about the proposal (Mr Angelis’s affidavit of 14 March 2025 at [96]). The investigation of this investment proposal was approved by the Investment Committee (T301.2–8). Ms Commins had not completed the due diligence process when she was removed before the third Investment Committee meeting on the subject, but by then she was heading in the direction of regarding it as a bad investment (T301.20–31). Mr Angelis never said to Ms Commins that he did not want to proceed with the deal at all (T301.16–18). He accepted in cross-examination that all the concerns he had raised were just ordinary matters that one would expect to be discussed at an Investment Committee meeting in deciding whether to invest (T539.13–15).

133    As to (b) concerning Bluestone, evidence was given by Mr Angelis concerning the way in which he negotiated effective non-competition restraints as part of the buy-out of the founding shareholders of Bluestone by Neighbourly (Mr Angelis’s affidavit of 14 May 2025 at [89]–[93]). Mr Angelis said that he was not sure whether he was more involved than Ms Commins in the transaction, but said that he was more involved in that deal than any other deal (T537.29–34). However, the Angelis Defendants made no submissions as to this particular (except perhaps by the very oblique reference in their closing written submissions at [172]). The particular seems to have been abandoned, but if it has not been, then I cannot see how it could conceivably support an opinion as to serious misconduct.

134    As to (c) concerning BlueMount, Ms Commins engaged BlueMount to assist with fund-raising in the Asian market where Ms Commins said she did not have contacts (T299.35–45). Ms Commins negotiated a deal with BlueMount on fees, which Mr Angelis (but not Ms Commins) thought was uncommercial, and so he stepped in and negotiated a more commercial deal (T300.7–18). Ms Commins regarded Mr Angelis as having done a good job in renegotiating the terms (T300.20–27).

135    I cannot see how the facts concerning the matters raised by Particular 8 amount to any significant shortcoming on the part of Ms Commins, let alone serious misconduct, or how any reasonable person could think that they do.

Particular 9: Improperly removing Mr Butcher and Mr Berkefeld due to undisclosed conflicts relating to her personal fund (AVC) and failing to disclose the true reason for their removal to Mr Angelis. At the same time, she retained and promoted Ms Nadenbousch who lacked competence and experience.

136    Mr Butcher and Mr Berkefeld, prior to their termination by Ms Commins, respectively served on the Goldstone Fund’s Investment Committee and Advisory Board. Both had previously worked with Ms Commins, including on her fund, AVC Enterprises, and one of its portfolio companies, namely Evoro. Mr Berkefeld was the Chairman of Evoro and Mr Butcher was a non-executive director.

137    The Goldstone Information Memorandum dated November 2023 (CB3/94, pp 647–8), which was written by Ms Commins, described Messrs Berkefeld and Butcher as accomplished professionals with decades of senior leadership, board, and private equity experience. In AVC Enterprises’ Initial Evoro Investment Memorandum (CB1/41, p 55), Mr Berkefeld was described as a strong leader and mentor with inclusive and cooperative leadership qualities, governance expertise, and a proven track record of accountability.

138    In the Application Form to the Commonwealth Department of Industry Science and Resources for the registration of the Goldstone Fund as VCLP, Ms Commins identified Messrs Butcher and Berkefeld as key team members, each with substantial experience in private equity and industrial services respectively, and their inclusion was part of the Fund’s representation that it possessed the requisite skills and resources to execute its investment strategy (CB8/372, pp 12–13). Ms Commins accepted that Mr Berkefeld introduced the Parabellum transaction (T286.4–5).

139    In June 2024, Mr Berkefeld proposed to retire from Evoro’s board at the end of December 2024, and Ms Commins suggested that that be brought forward to July 2024 (Ms Commins’ cross-examination bundle, tab 208). Ms Commins regarded Mr Berkefeld as overstepping his boundaries as Chairman and non-executive director, in that when the Evoro board decided matters there were conversations between the Chairman and CEO to the contrary, which Ms Commins believed caused confusion and impacted the board’s ability to function in unison, and Ms Commins was not going to continue to let that destabilisation impact the direction the business was to take (T282.33–40).

140    Mr Butcher responded that he should resign as well (Ms Commins’ cross-examination bundle, tab 208; T283.1–6). Ms Commins regarded Mr Butcher’s decision as raising concerns about his reliability and commitment (Ms Commins’ affidavit of 21 May 2025 at [46(c)]). Ms Commins then said that Mr Berkefeld’s resignation should operate with immediate effect, in light of Mr Butcher having resigned immediately (Ms Commins’ cross-examination bundle, tabs 208 and 38; T283.26–24.19). Ms Commins regards Evoro’s performance as having improved since the new board and leadership team started in October 2024 (T279.10–15).

141    I reject Mr Angelis’s evidence that Ms Commins told him at the time of her decision to remove Mr Berkefeld and Mr Butcher from the Goldstone Fund Investment Committee and Advisory Board in late June 2024, that she believed they were attempting to kick her out of investments she was involved in through AVC Enterprises, and take over management of those investments (Mr Angelis’s affidavit of 14 May 2025 [105] and T538.9–12; denied by Ms Commins in her affidavit of 21 May 2025 at [47]). I accept Ms Commins’ evidence that she told Mr Angelis that Mr Berkefeld had been speaking negatively to investors about the business and the strategic decisions being made at the time, and that Mr Berkefeld had told the Evoro founder that either he would leave the Evoro board or Ms Commins would, and that without Ms Commins’ further involvement he retired (Ms Commins’ affidavit of21 May 2025 at [47]; T289.8–20). Accordingly, there was no failure to disclose to Mr Angelis the true reason for the removal of Mr Berkefeld and Mr Butcher.

142    I also accept Ms Commins’ rejection of the proposition that she terminated Mr Berkefeld’s services on the Goldstone Advisory Board because of matters unrelated to Goldstone (T285.30–31). I accept Ms Commins’ explanation that Goldstone PE was in the very early stages of putting together a high calibre team, and she did not think that the qualities Mr Berkefeld was showing on the board of Evoro, and the turn of events that occurred in relation to his termination on that board, were going to lead to a successful partnership with Goldstone (T285.33–38, 289.23–41; Ms Commins’ affidavit of 21 May 2025 at [46]).

143    As to Ms Commins retaining and promoting Ms Nadenbousch, Ms Commins described her as a trusted and effective member of the team (Ms Commins’ affidavit of 21 May 2025 at [48]). Although she had limited experience in private equity and made mistakes, to a similar extent as any analyst, Ms Commins described her as hard-working and earnest (T236.12–18). I accept that evidence.

144    Accordingly, Particular 9 could not form the basis of an opinion by a reasonable person that Ms Commins had engaged in serious misconduct.

Conclusion

145    Whether the nine particulars are taken individually, or cumulatively, or in any combination, no reasonable person could have formed the opinion that Ms Commins had engaged in serious misconduct. The purported termination of Ms Commins’ employment was therefore invalid, and she remains employed by Goldstone PE. It follows that the purported removal of Ms Commins from the boards of Goldstone PE and Goldstone FM was also invalid.

146    A question arises as to the validity of the removal of Ms Commins from the board of Parabellum, and whether the Court should make an order reinstating her as a director of Parabellum. Those are matters which directly affect the rights and liabilities of Parabellum, and accordingly Parabellum is a necessary party and would have to be joined to these proceedings in order for those matters to be pursued: John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 at [131] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ). Accordingly, I say nothing about those matters. However, Ms Commins is entitled to rely on her removal from the board of Parabellum as having been caused by the wrongful termination of the Executive Employment Agreement as part of her claim for damages.

Were the Resolutions of 1 April 2025 valid?

147    The plaintiffs challenge the validity of Resolution 1, which depends on VCMP having been subject to an “Insolvency Event”, as defined in the VCLP Deed. As indicated above, the two Insolvency Events relied upon were the NSWSC Proceedings which had been commenced that day, seeking that VCMP be wound up on the just and equitable ground, and the resolution for the winding up of VCMP proposed by Mr Angelis in an email to Ms Commins at 6.30pm on the same day (that is, 7 minutes before Resolution 1 was made) (CB7/327). The plaintiffs submit that, properly construed, the term “Insolvency Event” does not contemplate those matters because they were not based on the insolvency of VCMP, as distinct from the breakdown in the relationship between the parties.

148    I reject that submission. The use of the defined term “Insolvency Event” is a guide but is not determinative: GTW Investments (Aust) Pty Ltd v Pacreef Investments Pty Ltd [2023] VSCA 291; (2023) 74 VR 290 at [142]–[143] (Ferguson CJ, with whom Niall and Macaulay JJA relevantly agreed). Defined terms are usually chosen as a distillation of the meaning or purpose of a concept intended to be more precisely stated in the definition: Commissioner of Taxation v Esso Australia Resources Pty Ltd [2024] FCAFC 151; (2024) 306 FCR 586 at [68] (Thawley, Jackman and Horan JJ); Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38; [2009] AC 1101 at [16]–[17] (Lord Hoffmann, with whom Lords Hope and Walker agreed). The references in the definition to “resolution proposed” and “petition presented” are not qualified by the words “in insolvency”, and the addition of those words would distort the ordinary and natural meaning of the language chosen. It appears that the parties chose that language because they intended to create a trigger for the removal of the General Partner of VCLP that was activated on any threat to the continued operation of the General Partner. A winding up on the just and equitable ground presents just as much risk to the General Partner’s ability to manage the fund as a winding up in insolvency. Accordingly, Resolution 1 is legally valid.

149    The plaintiffs challenge Resolution 4 on the additional ground that the Insolvency Event relied upon to remove Goldstone PE as Manager was that WIJOAV had commenced proceedings for the winding up of Goldstone PE in the form of the originating process filed in these proceedings. As I have indicated above, at 3.19pm on 1 April 2025, the solicitors for the plaintiffs wrote to the solicitors for the Angelis Defendants saying that they did not maintain their claim for the winding up of Goldstone PE, and would file an amended originating process which deleted that claim shortly. Strictly speaking, as at 1 April 2025, a petition had been presented (and remained on foot) for the winding up of Goldstone PE. The reliance on the order sought in the originating process was highly opportunistic on the part of Mr Angelis and Angel Holdco, given the terms of the plaintiffs’ solicitors’ letter at 3.19pm on 1 April 2025. However, as a matter of the strict application of cl 8.2 of the Management Agreement, there was an Insolvency Event in relation to Goldstone PE. Accordingly, Resolution 4 is legally valid.

150    I note at this point that there was one legal flaw in relation to the Resolutions of 1 April 2025, namely that there was nothing to bind Goldstone Capital to pay the Limited Partners of VCMP their Carry Entitlement, which would be received by Goldstone Capital upon the disposal of VCLP’s assets at some time in the future. This was adverted to by Senior Counsel for the plaintiffs on the first day of the hearing, and was eventually remedied on the last day of the hearing, by the tender of a Deed Poll executed by Goldstone Capital in favour of the Limited Partners of VCMP (Exhibit 7). Under the Deed Poll, Goldstone Capital covenants that when Carried Interest is payable to it under the VCLP Deed, it will pay that money in accordance with the Carry Entitlements of the Limited Partners of VCMP.

Has oppression been established?

Legal principles relating to oppression

151    Section 232 of the Corporations Act relevantly provides:

232 Grounds for Court order

The Court may make an order under section 233 if:

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

(b)    an actual or proposed act or omission by or on behalf of a company; or

(c)    a resolution, or a proposed resolution of members or a class of members of a company;

is either:

(d)    contrary to the interests of the members as a whole; or

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

…

Note 1: For affairs, see sections 53 and 53AAA. …

The legal principles relating to that section are as follows.

152    For the purpose of s 232(a), a company’s “affairs” are defined broadly in s 53. They include the formation, membership business, transactions and dealings, property, profits and liabilities of the company (s 53(a)); in the case of a body corporate that is a trustee, matters concerned with ascertaining the identity of the beneficiaries under the trust, their rights and any payments they have received, or are entitled to receive, under the terms of the trust (s 53(b)); the internal management of the company (s 53(c)); the ownership of shares in the body (s 53(e)); the powers of persons to exercise voting rights (s 53(f)); and the circumstances of the acquisition or disposal of shares in the body (s 53(h)).

153    The defendants submit that the breadth of the word “affairs” is not without limit (citing Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 at 704 (Young J) (Morgan)), and that the test of whether a remedy for oppression is available to a person is ultimately one of proximity (Melrob Investments Pty Ltd v Blong Ume Nominees Pty Ltd [2022] SASCA 29; (2022) 141 SASR 1 [117]–[123] (Lovell, Bleby and David JJA)). I consider the scope of s 232 below.

154    In sub-s 232(e), the expression “oppressive to, unfairly prejudicial to, or unfairly discriminatory against” is concerned with “commercial unfairness”. Commercial unfairness requires an evaluation of whether objectively, in the eyes of a commercial bystander, there has been unfairness, namely conduct that is so unfair that reasonable directors who consider the matter would not have thought the decision fair: Joint v Stephens [2008] VSCA 210; (2008) 26 ACLC 1467 at [134]–[135] (Nettle, Ashley and Neave JJA) (Joint Stephens); BAM Property Group Pty Ltd as trustee for BAM Property Trust v Imoda Group Holdings Pty Ltd [2019] FCA 1192 at [48]–[49] (Derrington J) (BAM Property); Wayde v New South Wales Rugby League [1985] HCA 68; (1995) 180 CLR 459 at 469–473 (Brennan J) (Wayde) (in respect of the former s 320). The objective assessment is to have regard to the particular context in which the conduct occurs: Catalano v Managing Australia Destinations Pty Ltd [2014] FCAFC 55; (2014) 314 ALR 62 at [9] (Siopis, Rares, Davies JJ) (Catalano). Whether or not the conduct is oppressive does not depend upon the motives for what was done; it is the effect of the acts on the oppressed that is material: Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 at [176] (Gummow, Hayne, Heydon and Kiefel JJ, French CJ agreeing) (Campbell); Catalano at [9], [19].

155    Conduct of a company’s affairs may be oppressive even though the conduct is otherwise lawful: Campbell at [176]. A director may act oppressively although not in breach a fiduciary or statutory duty: BAM Property at [46]; Munstermann v Rayward; Rayward v Munstermann [2017] NSWSC 133 at [22] (Stevenson J) (Munstermann), citing Gerard Cassegrain & Co Pty Ltd v Cassegrain [2011] NSWSC 1156 at [49] (Barrett J). It is also not enough to demonstrate that the defendant has been “naughty”: Crawley v Short [2009] NSWCA 410; (2009) 262 ALR 654 at [139] (Young JA).

156    The onus is on the plaintiff in an oppression suit to show that they have been unfairly treated in the relevant sense, as opposed to having been merely “prejudiced” or “discriminated” against: Wayde at 472 (Brennan J). Whether conduct is fair or unfair requires weighing conflicting interests of different groups within the company; it is not assessed simply from one member’s point of view: Thomas v H W Thomas Ltd [1984] 1 NZLR 686, 694–695 (Richardson J) (in respect of s 209 of the Companies Act 1995 (NZ)), cited with apparent approval in Wayde at 466 (Mason ACJ, Wilson, Deane, Dawson JJ). The conduct of the aggrieved member may (i) render the impugned conduct not unfair, or (ii) affect the nature of the relief, but there is no overarching “clean hands” requirement: Re London School of Electronics Ltd [1986] Ch 211 at 222 (Nourse J), cited with approval in Morgan at 706. In assessing the gravity of any allegation of oppression, the extent to which the minority shareholder has “baited” the majority shareholder to act in an oppressive manner is also relevant: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [1998] NSWSC 413; (1988) 28 ACSR 688 at 739 (Young J).

157    The doctrine of oppression is informed by equitable considerations, and it is not open to a judge to find oppression simply based on what he or she thinks is unfair: Re A company (No 00709 of 1992); O’Neill v Phillips [1999] UKHL 24; 1 WLR 1092 at 1098 (Lord Hoffmann) (O’Neill), cited in Walker v New South Wales Bar Association [2016] FCA 799; (2016) 114 ACSR 269 at [91] (Besanko J). The Court must not substitute its own view for honest business judgments and should avoid an unwarranted assumption of the responsibility for the management of the company: Zephyr Holdings Pty Ltd v Jack Chia (Aust) Ltd (1988) 14 ACLR 30 at 37–38 (Brooking J); Wayde at 467.

158    Where viable, the Court will favour a buy-out or capital-reduction solution over winding up so as to avoid the causes of conflict and oppression and preserve value: Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 at 385 (Lord Cross); John J Starr (Real Estate) Pty Ltd v Robert R Andrew (1991) 6 ACSR 63 at 73–76 (Young J); Re Hollen Australia Pty Ltd [2009] VSC 95 at [78] (Robson J).

159    Where the company was formed on the understanding that each venturer would participate in management, exclusion of a member without a fair exit opportunity is usually oppressive: O’Neill at 1102 (Lord Hoffmann); Tomanovic v Global Mortgage Equity Corp Pty Ltd [2011] NSWCA 104; (2011) 288 ALR 310 at [235] (Campbell JA, with Macfarlan JA at [314] and Young JA at [331] agreeing) (Tomanovic). In such cases, a timely, unconditional offer by the majority to purchase the minority’s shares at fair value, supported by an independent valuation, may negate oppression, particularly in quasi-partnership cases where there has been a breakdown in the parties’ relations: O’Neill at 1105-1107; Tomanovic at [226]–[237].

160    With respect to para (d) of s 232, conduct that has the effect of paralysing a company in the operation of its business is properly characterised as conduct contrary to the interests of the members as a whole: BAM Property at [46], Munstermann at [22], citing Campbell v Backoffice Investments Pty Ltd [2008] NSWCA 95; (2008) 66 ACSR 359 at [185] (Basten JA) (Campbell NSWCA). It is clear that conduct need not necessarily involve commercial unfairness in order to be subject to s 232(d) (such as where it is pointlessly wasteful): Turnbull v NRMA [2004] NSWSC 577; (2004) 186 FLR 360 at [32] (Campbell J); Campbell NSWCA at [183] (Basten JA).

161    The parties are in dispute as to whether a 50% shareholder is prevented from seeking relief under s 232 of the Corporations Act. The plaintiffs submit that there is no statutory or other impediment preventing relief, particularly where, as here, the 50% shareholder does not have control in the form of power to prevent the oppression: Munstermann at [22], citing Patterson v Humfrey [2014] WASC 446; (2014) 291 FLR 246 at [53] (Patterson) (Le Miere J).

162    The Angelis Defendants submit at [111] of their written opening submisisons, that where shareholders possess equal voting power, and each is a director, “there can be no oppression using the administrative machinery of the company” and any oppression must consist of one participant “overbearing” the other, and it must be continuing at the date of hearing: Campbell NSWCA at [387]–[395]. However, in Campbell NSWCA, Young CJ in Eq did not come to any firm view on the point: Patterson at [52]. Indeed, later in Tomanovic, Young JA referred to his Honour’s judgment in that case (at [321]), noting that there are “conceptual difficulties in applying the [oppression principle] to a 50/50 company unless there [are] at least individual strong-arm tactics by the person [holding] the 50%”. Justice Young took into account (at [321]) that “ordinarily it is difficult to say there has been oppression in a 50/50 company between two persons of equal strength of character” but thought it unwise to decide the point. The High Court did not consider the matter.

163    In Patterson, having set out Young J’s position (at [52]), Le Miere J then held (at [53]) that “There is no reason in principle why a holder of 50% of the shares of a company should be denied relief under s 232” (emphasis added). This was cited with approval in Munstermann at [22(6)]. Justice Le Miere said that the statutory power “is necessary only where an applicant does not itself have the power to prevent oppression”, adding, “it would seem unnecessary to protect those who can control, by their majority shareholding, the affairs of a company against the oppression of others”. His Honour referred to Chesterman J, who wrote extra-curially, after reviewing relevant authorities, that “what disentitles a member… from complaining about oppression is not necessarily a majority of shares but a majority of votes. A member who does not control a majority of votes may seek the court’s intervention”: The Hon Mr Justice R N Chesterman RFD, “Oppression by the Majority – Or of it?” (2004) 25(2) Aust Bar Rev 103; Patterson at [53].

164    In the present case, Angel Holdco was able to use the mechanism of the VCLP Deed to gain control and remove Goldstone FM and Goldstone PE from the structure of the Goldstone Fund. Accordingly, this is not a case in which an evenly divided shareholding corresponded to equality of power in controlling the companies’ affairs.

Application to the facts of the present case

165    The claim for oppression is made by WIJOAV, being one of the two members of Goldstone PE and Goldstone FM, with an equal shareholding to that of Angel Holdco. WIJOAV is also a party to the Shareholders’ Deed. As I have said at [16] above in analysing the terms of the Shareholders’ Deed, cll 3.1 and 3.2 indicate that the affairs of Goldstone PE and Goldstone FM included carrying on the business of managing VCLP and VCMP with a view to maximising the value of the assets of VCLP and the amount of the Carried Interest payable from VCLP to VCMP. Further, in analysing the terms of the VCMP Deed, cl 4.1(a) has the effect that Goldstone FM’s affairs included the conduct of the affairs of both VCMP and VCLP (see [26] above).

166    Accordingly, the control and management of Goldstone PE and Goldstone FM cannot be separated from the control and management of VCMP and VCLP. The point is vividly illustrated by the conduct procured by Mr Angelis on 1 April 2025. By removing VCLP from the affairs of Goldstone PE and Goldstone FM, and reassigning its management to his own newly created companies, Goldstone Capital and Goldstone Capital FM, he has complete control over VCLP to the exclusion of Ms Commins and WIJOAV. Goldstone PE and Goldstone FM have been left with no meaningful role to perform. That constitutes conduct of the affairs of Goldstone PE and Goldstone FM within the ambit of s 232(a). The first three of the Resolutions effecting those changes in control were under the VCLP Deed, but they were merely the legal mechanism for effecting fundamental changes to the management of the Goldstone Companies’ affairs. Resolution 4 was expressly made under cl 8 of the Management Agreement, being a contract entered into between Goldstone PE and Goldstone FM (the latter in its capacity as General Partner of VCMP).

167    The focus of WIJOAV’s case on oppression is the conduct of excluding Ms Commins (being WIJOAV’s appointee as director) and WIJOAV from any role in the conduct of the Goldstone Fund. Exclusion from management is a common form of commercial unfairness giving rise to oppression in circumstances where (as here) there is a right or expectation of participation in management. Under the Shareholders’ Deed, Ms Commins was WIJOAV’s appointee as a director on the boards of the two Goldstone Companies, with a casting vote on matters relating to the divestment of VCLP’s assets on certain conditions. Those directorships depended on her continued employment by Goldstone PE, as too did her directorships of the companies in which VCLP had made investments, namely Neighbourly and Parabellum (see [18] above). I have found that Mr Angelis’s purported termination of her employment was unlawful and invalid. Accordingly, and contrary to the submission put by the Angelis Defendants, WIJOAV’s expectation of continued board participation by Ms Commins as its appointee was not spent. Further, on the basis of my findings above in relation to Neighbourly and Clearlake, the unfairness of the actions of Mr Angelis and Angel Holdco in excluding WIJOAV and Ms Commins from any role in managing the affairs of Goldstone PE and Goldstone FM, is compounded by my findings that those actions arose from Mr Angelis’s ill-tempered resentment at Ms Commins not agreeing to transfer Neighbourly’s insurance broking work to his son’s business, Clearlake, and his strong desire to prevent her from being an obstacle to that transfer of business. In my view, the conduct amounts to a clear case of oppression.

What is the appropriate remedy under s 233?

The scope of s 233

168    Section 233(1) provides as follows:

The Court can make any order under this section that it considers appropriate in relation to the company, including an order:

(a)    that the company be wound up;

(b)    that the company’s existing constitution be modified or repealed;

(c)    regulating the conduct of the company’s affairs in the future;

(d)    for the purchase of any shares by any member or person to whom a share in the company has been transmitted by will or by operation of law;

(e)    for the purchase of shares with an appropriate reduction of the company’s share capital;

(f)    for the company to institute, prosecute, defend or discontinue specified proceedings;

(g)    authorising a member, or a person to whom a share in the company has been transmitted by will or by operation of law, to institute, prosecute, defend or discontinue specified proceedings in the name and on behalf of the company;

(h)    appointing a receiver or a receiver and manager of any or all of the company’s property;

(i)    restraining a person from engaging in specified conduct or from doing a specified act;

(j)    requiring a person to do a specified act.

169    In exercising the discretion under s 233, the purpose of relief is to end the effects of oppression; the remedy chosen will depend on the conclusions drawn as to what the oppressive conduct was, and the Court will choose the remedy which is least intrusive: Zong v Lin [2022] NSWCA 136 at [79] (Gleeson JA, with whom Leeming and Kirk JJA agreed); Millsave Holdings Pty Ltd v Connective Group Pty Ltd [2023] VSCA 326; (2023) 75 VR 239 at [1024] (McLeish and Macaulay JJA) (Millsave Holdings). The fundamental principle has been said to be that the remedy under s 233 must be calculated to alleviate the consequences of the oppressive conduct and no more; that is, to place the oppressed party in a position equivalent to that in which it would have been but for the oppression, but not to improve its position over and above that which would have prevailed but for the oppression: Re North Coast Transit Pty Ltd [2013] NSWSC 1119 at [24] (Brereton J).

170    Most oppression cases have involved the majority (being the oppressor) purchasing the shares of the minority (being the oppressed). However, that is not necessarily so, as is shown in the very thorough analysis of minority buy-out orders by Robson J in Slea Pty Ltd v Connective Services Pty Ltd [2022] VSC 136 at [1649]–[1808] (Slea). In Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [2001] NSWCA 97; (2001) 37 ACSR 672, Fitzgerald JA at [705] was more open to minority buy-out orders than Spigelman CJ at [160]–[166], both passages being obiter dicta. The analysis of Robson J in Slea also included two cases of equal shareholders, where the oppressed party was permitted to buy out the oppressor: Lantsbury v Hauser [2010] EWHC 390 (Ch) (Moss J); Munstermann. On appeal from Robson J’s judgment, the Victorian Court of Appeal in Millsave Holdings agreed with Robson J’s conclusion expressed at [1737(b)], that the “direction” of any buy-out was to be determined by what the justice of the case requires on the basis of all the circumstances of the case (per McLeish and Macaulay JJA at [1025]). I respectfully agree.

171    A particular issue is whether a buy-out order can and should extend to the compulsory purchase of partnership interests in the present case. Sub-sections 233(1)(d) and (e) refer only to the purchase of shares in the company, but the purchase of other assets is capable of falling within s 233(1)(j), and in any event the list of orders in s 233(1) is expressed to be inclusive rather than exhaustive. As I have said above, the affairs of Goldstone PE and Goldstone FM within the meaning of s 232 extend to the control and management of VCLP and VCMP. Under s 233(1), the question is whether an order for the buy-out of the partnership interests is “in relation to the company”, not “in relation to the affairs of the company”.

172    A similar issue has arisen from time to time in relation to remedies for oppression in the context of trustee companies, as to whether the Court can order a buy-out of a beneficiary’s interest in the assets held on trust by the company. Fortuitously, the New South Wales Court of Appeal resolved that controversy in the week before the final hearing of these proceedings: David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 1085 at [109]–[112] (Leeming JA, with whom Stern JA and Griffiths AJA agreed). Justice Leeming regarded the supposed dichotomy between orders relating to the company and orders relating to the trust of which the company is trustee as a false one, as the two categories are not mutually exclusive. His Honour held that an order “in relation to the company” can extend, where the company is a trustee, to an order that one trust beneficiary buy out another. Among the reasons given for that view, is that such an order will directly affect the relations between the company as trustee and the beneficiaries of the trust. In particular, it will bring about the result that the company, as trustee, will no longer owe obligations to the beneficiary who has been bought out (at [111(5)]). However, his Honour’s reasoning concerned the extent of the power conferred by s 233, not the occasion for its exercise, and Leeming JA expressed doubt that such occasions would be frequent.

173    In the present case, if the Resolutions of 1 April 2025 were set aside as oppressive then an order for the compulsory purchase of Ms Commins’ partnership interests as a Limited Partner of VCMP would certainly be in relation to Goldstone FM in the way in which Leeming JA illustrated the point (at [111(5)]); that is, in identifying to which parties Goldstone FM owes its obligations to distribute money under cl 8.4 of the VCMP Deed. Moreover, in the present case, the relationship between both Goldstone PE and Goldstone FM and a buy-out order of Ms Commins’ partnership interests in VCMP is more fundamental and pervasive. Looking at the question on the basis that Ms Commins’ partnership interest as a Limited Partner in VCMP is to be bought out by Angel Holdco or Mr Angelis:

(a)    Before 1 April 2025, Goldstone PE as the Manager of VCLP, had to make recommendations to Goldstone FM on behalf of the General Partner of VCLP to dispose of or exit investments (cl 3.1(e)(ii) of the Management Agreement), and it is the sale of those investments which gives rise to the payment of Carried Interest to VCMP. The Shareholders’ Deed gave Ms Commins a casting vote at board meetings on the divestment of Partnership Assets on certain conditions (Schedule 2, cl 3(i)).

(b)    When Goldstone FM receives VCMP’s share of the Carried Interest, it is bound by cl 8.4 and Schedule 1 of the VCMP Deed to pay the Limited Partners of VCMP their Carry Entitlements, namely 80% to Ms Commins and 20% to Mr Angelis.

(c)    The Resolutions of 1 April 2025 have prevented Goldstone PE and Goldstone FM from being in a position to carry out those obligations, and they no longer have a meaningful role to play in the Goldstone Fund structure. That is completely contrary to the objectives set out in cl 3.1 of the Shareholders’ Deed, whereby Goldstone PE and Goldstone FM would carry on the Business with a view to maximising the value of the Partnership Assets and the quantum of the Carried Interest.

(d)    If Ms Commins’ Carry Entitlement in VCMP is not purchased by Mr Angelis, she no longer has the protection of the Shareholders’ Deed to participate in decisions of Goldstone PE and Goldstone FM as to how best to manage VCLP’s investments and realise its assets, and thereby earn her Carry Entitlement. Mr Angelis may be content not to realise investments in Neighbourly and Parabellum for many years, especially if Clearlake were to revive its earlier intention of seeking Neighbourly’s insurance broking work. Mr Angelis gave evidence that “even today” he thinks that it is of critical business importance for Neighbourly to implement Clearlake’s proposal (T470.17–28). Ms Commins may therefore find herself waiting an unexpectedly long time to realise her Carry Entitlement, well beyond the usual expectations of private equity investors. Ms Commins’ expectation before her removal was that the Goldstone Fund would sell its shares in Neighbourly and Parabellum in the financial year ended 30 June 2029 (Ms Commins’ affidavit of 26 April 2025 at [86]). Leaving decisions as to the management and sale of VCLP’s assets entirely in Mr Angelis’s control to the exclusion of Ms Commins would perpetuate the effects of the oppression for an indefinite period of time.

(e)    If Ms Commins’ Carry Entitlement in VCMP is purchased by Angel Holdco, along with WIJOAV’s shares in Goldstone PE and Goldstone FM, it remedies the oppression occasioned by the effect of the 1 April 2025 Resolutions, because the only Limited Partners of VCMP and VCLP will be Mr Angelis and Angel Holdco, and thus they will be the only parties with a commercial and legal interest in the Carried Interest and Carry Entitlement.

Who should buy out whom?

174    Ms Commins has a significant claim to be considered as the potential purchaser under a buy-out order, accompanied by an order setting aside the Resolutions of 1 April 2025. She established the structure of the Goldstone Fund, and was instrumental in implementing and managing its investments in Neighbourly and Parabellum. The law is not coldly indifferent to the non-pecuniary aspects of the reward and satisfaction inherent in creating a business and seeing it through to successful fruition, as well as the non-pecuniary consequences of being shut out of that opportunity by acts of oppression. Nor should the law encourage oppressors to think that they are not (or only exceptionally) at risk of being bought out themselves.

175    However, Ms Commins faces a major obstacle in purchasing Angel Holdco’s interest in Goldstone PE, Goldstone FM and VCLP, and Mr Angelis’s interest in VCMP, in that she does not have the wherewithal to do so herself, and has thus sought out third parties who may be interested in making such a purchase. The evidence of Mr Paton, Mr Haigh and Mr McConnell establishes that their respective entities have expressed interest in making such a purchase. However, none of them is in a position to say that such a purchase would be more likely than not to occur, and their analysis is at too preliminary a stage to identify a price (or price range) at which they would be prepared to make an offer, or when such a purchase would occur. If Ms Commins were ordered to purchase the Angelis Defendants’ shares and partnership interests, there would be a period of some months before the price would be determined by the Court and before Ms Commins then ascertains whether she can procure a purchaser at that price. I note that Ms Commins seeks to use the process under cl 6 of the VCLP Deed, as an alternative, to bring about a forfeiture and sale of Angel Holdco’s Limited Partnership interest in VCLP, but even if that were available (as to which I make no finding), it does not deal with Mr Angelis’s Limited Partnership interest in VCMP, and it strikes me as unfair to Angel Holdco for the sale to be “at any price the General Partner can obtain” under cl 6.6(a).

176    If Ms Commins turns out to be unable to procure a purchaser at what the Court determines to be fair value, the order for such a compulsory purchase would have to be reconsidered, and the most likely scenario would then be an order that the Angelis Defendants buy out Ms Commins’ shares in Goldstone PE and Goldstone FM and her Limited Partnership interests in VCMP by way of Carry Entitlement. In the meantime, however, decisions must be made in relation to the Goldstone Fund and its portfolio investments, which require certainty as to the on-going ownership of the Limited Partnership interests in VCLP and VCMP. For example, the confidential evidence indicates that decisions are likely to be required in relation to Neighbourly which can only be made if the shareholders and directors of Neighbourly know who will have the economic and legal interests in VCLP in the foreseeable future. Similarly, decisions would be required in relation to employees of the Goldstone Fund, particularly given the starkly divergent views between the two protagonists over the appropriateness of employing certain people in the Goldstone Fund.

177    Accordingly, in the circumstances of the present case, the Court should exercise its discretion in making orders for the buy-out at a fair valuation which it can be confident will be performed. That requires that it should be the Angelis Defendants who buy out WIJOAV’s shares in Goldstone PE and Goldstone FM as well as Ms Commins’ Limited Partnership interests in VCMP. No question has been raised as to their capacity to do so. An order for the purchase of WIJOAV’s shares in the two companies and Ms Commins’ interests as Limited Partner in VCMP by the Angelis Defendants is appropriate to remedy the oppression in WIJOAV and its appointed director being deprived of any role in managing the Goldstone Fund and in deciding when and for how much to sell VCLP’s investments, so as to give rise to the payment of Ms Commins’ Carry Entitlement in VCMP. Orders to that effect have been sought in the Second Further Amended Originating Process (2FAOP) (see [2A]).

178    The 2FAOP also seeks an order restraining the defendants from relying on or enforcing the plaintiffs’ compliance with the restraint of trade provisions in cl 3.4 of the Shareholders’ Deed. Clause 3.4 relevantly would prevent the plaintiffs’ from competing with the Goldstone Fund or its investee entities. In my view, it would compound the oppression which has already occurred if the Angelis Defendants were to insist on the plaintiffs complying with cl 3.4, in that not only have the plaintiffs been oppressively excluded from any role in managing the Goldstone Fund, but they would be prevented from deploying their abilities and resources in a substantially similar way in the future. Mr Angelis has given evidence that if WIJOAV is bought out of its shares in Goldstone PE, neither the company nor Mr Angelis would enforce the restraints in cl 3.4 (Mr Angelis’s affidavit of 14 May 2025 at [158]). That is not a formal or binding undertaking, and I regard it as prudent to make an order reflecting Mr Angelis’s intention not to enforce cl 3.4.

The plaintiffs’ application to amend the remedies sought

179    In the course of their final address at the conclusion of the hearing, the plaintiffs sought to amend the 2FAOP by including remedies, principally by way of:

(a)    the appointment of a receiver to the various entities referred to in cl 6 of the VCLP Deed, to form the belief and exercise the discretions required of the entities referred to in cl 6, rather than the Court ordering those entities to do so; and

(b)    an order for the compulsory purchase of Angel Holdco’s Limited Partnership interest in VCLP and Mr Angelis’s Limited Partnership interest in VCMP, together with injunctions restraining Mr Angelis from participating in the affairs of the Goldstone Fund, Neighbourly and Parabellum until completion of that purchase.

180    The proposed amendments are set out in a draft Third Further Amended Originating Process, and a document head “Annexure” (the Proposed Amendments).

181    The Proposed Amendments are academic on the view I have formed as to the appropriate remedy. However, for the sake of good order, I will decide the application to amend by the plaintiffs. I accept the submission of the Angelis Defendants that they are irremediably prejudiced by the Proposed Amendments in relation to a receivership, as they have been deprived of the opportunity of adducing evidence as to the impact of such appointments on the price reasonably obtainable in the market for their respective partnership interests, the potential impact of such appointments on Neighbourly and Parabellum, and evidence of the cost of such appointments. I therefore refuse leave to amend to claim orders for the appointment of receivers. As to the other amendments, I am not persuaded that they raise any factual issue or issue of legal principle which was not already raised by the 2FAOP, and would therefore allow those amendments.

The plaintiffs’ claims for damages

182    Ms Commins is entitled to damages (or judgment for debt) arising out of the wrongful termination of the Executive Employment Agreement.

183    Mr Angelis has breached cl 5.1 of the Shareholders’ Deed by failing to ensure that Goldstone PE conducts the Business in each Financial Year in accordance with the Business Plan, by replacing Goldstone PE with Goldstone Capital FM. Each of the plaintiffs is entitled to seek damages for that breach.

184    The plaintiffs submit that Mr Angelis and Angel Holdco have breached cl 14(a) of the Shareholders’ Deed, which requires the payment of the Carried Interest to occur in a timely manner in accordance with the terms of the VCLP Deed. However, the time for such payment does not arise until the disposal of VCLP’s investments, which has not yet occurred and is unlikely to occur for a number of years. Accordingly, no breach of cl 14(a) has been established.

Mr Angelis’s application to wind up VCMP

185    The irretrievable breakdown of the relationship on which VCMP was founded would be a sufficient basis to wind up VCMP on the just and equitable ground. Further, on the orders which I regard as appropriate, VCMP has no meaningful on-going function to perform. The Resolutions of 1 April 2025 were valid (albeit oppressive) and I have not set them aside. Goldstone Capital has undertaken to ensure that the amount equating to Ms Commins’ Carry Entitlement is paid to her, via the Deed Poll. In any event, Ms Commins’ interest as Limited Partner in VCMP is to be compulsorily purchased by Angel Holdco. All of that points strongly towards the winding up of VCMP.

186    However, against the possibility that there may be a successful application for leave to appeal in a way which might give VCMP a meaningful role to perform in the future, I will defer ruling on the winding up of VCMP until the next stage of the hearing, which will involve the questions of valuation and the assessment of pecuniary remedies.

Costs

187    The plaintiffs have enjoyed substantial success, although they have not obtained their preferred remedy. They had to approach the Court to obtain that success, and the time and expense involved in preparing for and conducting the hearing would not have been greatly reduced if the plaintiffs had sought only the remedies which they have actually obtained.

188    An open offer was made to settle the proceedings by the Angelis Defendants on 23 May 2025 on the basis that Angel Holdco would purchase WIJOAV’s shareholding in Goldstone PE and Goldstone FM for $700,000, and that each party would bear its own costs up to that date (Exhibit A). The offer did not extend to purchasing Ms Commins’ partnership interests in VCMP. That offer appears to me at this stage to fall well short of the measure of Ms Commins’ success, particularly taking into account that the costs incurred by the plaintiffs must be very substantial, irrespective of the value of her partnership interests in VCMP.

189    A further open offer was made on 3 June 2025 (the fifth day of the hearing) whereby the Angelis Defendants would purchase WIJOAV’s shares in Goldstone PE and Goldstone FM and Ms Commins’ current partnership interests as a Limited Partner of VCMP through a referee process supervised by the Court, and the Angelis Defendants would pay the plaintiffs’ costs of the proceedings (Exhibit 6, as clarified in relation to costs by Senior Counsel for the Angelis Defendants orally correcting a typographical error in [2(d)]). The referee process contemplates that there would be two referees, one being an expert in valuing private equity investments to value Ms Commins’ Carry Entitlement, and the other being a senior lawyer to decide the quantum of the damages claims. On the last day of the hearing, that offer was extended to be open until 48 hours after judgment is given, and its terms were improved by the Angelis Defendants offering to pay the fees of the two referees (T951.39–952.19). The latter aspect was designed to put the plaintiffs in the same financial position as if the Court were to decide the questions of valuation and damages. However, the amended offer does not put the plaintiffs in the same position financially as they would be if the Court decided the questions of valuation and pecuniary remedies itself, as there are still the potential costs of the hearing as to adoption or otherwise of the referees’ reports to be taken into account, and it is by no means certain that the Court would adopt the referees’ reports. Having regard to that matter, together with the lateness of the offer, and my own strong view that the Court should decide the questions of valuation and pecuniary remedies itself, I do not regard the second offer as having a material bearing on the question of costs. Nor do I regard it as negating the plaintiffs’ case of oppression.

190    In my preliminary view, on the material currently available to me, the plaintiffs are entitled to an order for costs of the proceedings to date on the ordinary party-party basis. If the parties inform me that the question of costs may be affected by one or more offers marked “without prejudice save as to costs” then I will have to defer making a decision on costs until after the hearing on valuation and pecuniary remedies. Otherwise, I will hear the parties on 20 June 2025 on costs, including any application for a special order as to costs, such as a lump sum order, and whether those costs should be payable forthwith. Any affidavits and written submissions should be sent to my Associate by 2pm on 19 June 2025.

Associate:

Dated:    13 June 2025

SCHEDULE OF PARTIES