Federal Court of Australia

Angel Holdco Pty Ltd v WIJOAV Services Pty Ltd [2025] FCA 872

ORDERS

THE COURT ORDERS THAT:

1.    The applicants’ application for leave to appeal filed 27 June 2025 be dismissed.

2.    The first and second respondents’ application for expedition filed 10 July 2025 be dismissed.

3.    The costs of the applications be reserved, to be determined by the Full Court that hears the appeal from the judgment of the primary judge dated 13 June 2025.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

1    There are two applications before the Court. The first is an application for leave to appeal. The second is an application for expedition.

2    The background and context is as follows. On 13 June 2025, the primary judge delivered judgment in a proceeding commenced by WIJOAV Services Pty Ltd and Alexandra Commins: WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd [2025] FCA 622 (Liability Judgment). The proceeding at first instance involved an oppression claim and other claims. The hearing of the proceeding was expedited. The hearing before the primary judge proceeded on all issues, except for:

(a)    the price of any buy-out order under s 233 of the Corporations Act 2001 (Cth); and

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

3    The primary judge delivered the judgment very soon after the completion of the hearing. His Honour made declarations and orders reflecting conclusions he reached in the Liability Judgment. The plaintiffs were substantially successful. His Honour said at [8] of the Liability Judgment that he anticipated dealing with the remaining matters in November 2025. His Honour indicated at [186] that, for the reasons there explained, he would defer ruling on the winding up of the fifth defendant, VCMP, until the next stage of the hearing, that is, the hearing anticipated to take place in November 2025. For ease of expression, I will refer to that hearing as the Quantum Hearing.

4    On 23 June 2025, a case management hearing took place before the primary judge at which timetabling orders were made for the Quantum Hearing. The timetabling orders proceed on the basis that the Quantum Hearing is to take place in November 2025. The primary judge explained that he would not set the precise date for that hearing until the dates of his Full Court commitments were known to him. However, his Honour did, by paragraph 8 of the orders made on 23 June 2025, list the matter for hearing on quantification issues and the winding up issue in November 2025. At the case management hearing, the applicants did not foreshadow that they were planning to apply for leave to appeal from the Liability Judgment, and did not oppose timetabling orders being made on the premise that the Quantum Hearing would take place in November 2025.

5    On 27 June 2025, the applicants (who are four of the defendants below) filed an application for leave to appeal from the Liability Judgment. The application is supported by an affidavit of Thomas Storer, a partner of the firm acting for the applicants, dated 26 June 2025.

6    On 10 July 2025, the first and second respondents (who were the plaintiffs below) filed an application for expedition of the appeal. This is supported by an affidavit of Leon Chung, a partner of the firm acting for the respondents, dated 9 July 2025. The premise of the application for expedition is that the application for leave to appeal and any appeal could be heard and determined before the Quantum Hearing in November 2025. At a case management hearing before me on 17 July 2025, the first and second respondents made clear that their primary objective is that the Quantum Hearing proceed in November 2025. They said that, if the application for leave and any appeal cannot be heard and determined by November 2025 (to enable the Quantum Hearing to proceed in that month), then leave to appeal should not be granted.

7    As already indicated, the parties appeared before me at a case management hearing on 17 July 2025. At that hearing, the applicants submitted that it was appropriate that the application for leave, and any appeal, be heard and determined before the Quantum Hearing. This was because, if leave is granted and the appeal is successful, it would obviate the need for the Quantum Hearing or, at least, significantly alter its nature and scope.

8    In advance of the hearing today, the parties filed outlines of submissions.

9    It is convenient to start with the application for expedition. The application is made pursuant to s 25(2B)(c) of the Federal Court of Australia Act 1976 (Cth) and r 36.11 of the Federal Court Rules 2011. The applicable principles are set out in the first and second respondents’ outline and may be summarised as follows. The Court has a broad discretion to grant expedition if satisfied that “it is in the interests of justice to order expedition”: Li v Chief of Army [2012] FCA 808 (Li) at [9] per Griffiths J; see also Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1090 (Hird) at [18] per Kenny J. The factors relevant to the Court’s discretion depend on the factual circumstances of the particular case. Relevant factors have been non-exhaustively stated to include (see Li at [9]; Hird at [19]-[20]):

(a)    whether the appellant would suffer some significant practical disadvantage if the hearing did not take place until after a particular date;

(b)    whether a party might lose its livelihood, business or home, or suffer irrefutable loss or extraordinary hardship;

(c)    whether the appeal will become futile in the absence of expedition;

(d)    whether the parties proceeded up to the date of the application for expedition with due speed; and

(e)    whether the application is opposed.

10    The Court will also have regard to the overarching purpose in s 37M of the Federal Court of Australia Act: Hird at [21].

11    The first and second respondents submit that expedition is warranted for the reasons set out in Mr Chung’s affidavit. These concern the impact of the litigation on Ms Commins’s professional work and career. For these reasons, her objective is to have the litigation completed as soon as possible.

12    I am not satisfied that these matters are sufficient to justify expedition of the application for leave and any appeal. Many litigants are subject to the same type of difficulties and pressures as those faced by Ms Commins. The matters relied on by the first and second respondents do not take this case out of the ordinary and do not, in my opinion, justify an order for expedition.

13    It is therefore unnecessary to consider whether an expedited hearing could be arranged and judgment delivered by November 2025, which is the premise of the expedition application. However, there is at least some doubt about whether this is realistic.

14    For these reasons, the application for expedition is to be dismissed.

15    I turn now to the application for leave to appeal. The principles applicable to an application for leave to appeal are well established and were not in dispute. The applicant for leave must ordinarily establish that the decision at first instance is attended with sufficient doubt to warrant its reconsideration on appeal, and that substantial injustice would result if leave were refused, supposing the decision to be wrong: see Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ; Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [29] per McHugh, Kirby and Callinan JJ. These requirements are cumulative.

16    The applicants submit, in summary, that the appeal should be listed for a two-day hearing in November 2025 (or earlier if convenient), either concurrently with the leave application or following a grant of leave. The applicants state that, if such a listing is made or indicated, they will seek a stay of the Quantum Hearing. The applicants submit that the appeal raises discrete liability issues that are logically and procedurally separate from quantum, and which may, if resolved favourably to the applicants, significantly alter the basis and scope of any quantum hearing. They submit that, in these circumstances, it would be inappropriate to dismiss the application for leave to appeal.

17    While the applicants accept that leave to appeal is required (because the orders are properly characterised as interlocutory), they submit that the orders are substantive in nature and final in effect.

18    As indicated above, in response to any concerns about concurrency of hearings, the applicants undertake that, if the Court lists the application for leave and any appeal for hearing, they will apply to the primary judge for a stay of the Quantum Hearing pending the hearing and determination of the application for leave and any appeal.

19    The applicants refer to the possibility that, depending on the evidence that is filed by the plaintiffs for the purposes of the Quantum Hearing, they may bring an application for the primary judge to recuse himself on the basis of credit findings he made in the Liability Judgment. Therefore, the applicants submit, it cannot be assumed that the Quantum Hearing will proceed in November 2025 or even that it will proceed before the primary judge at all.

20    The first and second respondents contend that the application for leave to appeal should be dismissed. They submit that the applicants will suffer no substantial injustice if leave to appeal is refused, because they will have a right of appeal in respect of the Liability Judgment after final orders are made in the proceeding at first instance. The first and second respondents submit that the applicants will not need an extension of time to appeal because time will run from when the final orders are made. The first and second respondents said that, if necessary, they would undertake not to oppose any application for an extension of time.

21    Further, the first and second respondents contend that, even though the onus is on the applicants to show substantial injustice, the first and second respondents themselves would suffer substantial injustice if leave to appeal were granted. They rely by analogy on the considerations taken into account in Quincolli Pty Ltd v Fair Work Ombudsman [2012] FCA 373 at [7]-[8] per Jagot J.

22    In my opinion, the applicants have not established that they would suffer substantial injustice if leave to appeal were refused. They will be able to appeal from the Liability Judgment as of right once final orders have been made in the proceeding at first instance. The only injustice that they point to is the costs of the Quantum Hearing, which would be wasted if the appeal succeeds. However, some of those costs may be recoverable in the event of success on appeal. In any event, I am not satisfied that this matter constitutes substantial injustice for present purposes.

23    A further, discretionary reason for refusing leave to appeal is that I consider that it would be inefficient overall for an appeal to proceed in relation to the Liability Judgment before the hearing and determination of the quantification issues. I consider that it would be more efficient overall for all issues to be resolved in the first instance proceeding before the appeal takes place. In reaching this view, I have had regard to the circumstances of this case, including the nature of the issues raised in the liability and quantification parts of the case. There was debate before me as to the extent of overlap between the liability and quantification issues. Even if the extent of overlap is small, I nevertheless consider that it would be more efficient for this matter to come before the appeal court only once.

24    In light of the view that I have expressed as to the appropriate sequencing (namely, that the proceeding at first instance should be completed before the appeal takes place), there is no reason to stand over the application for leave to appeal as sought by the applicants. Even if, for some reason, the Quantum Hearing does not proceed in November 2025, it would remain my view that it is preferable for the first instance proceeding to be completed before the appeal takes place.

25    For these reasons, the application for leave to appeal will be dismissed.

26    I will hear the parties on the question of costs.

[Discussion then took place in relation to costs.]

Associate:

Dated:    30 July 2025

SCHEDULE OF PARTIES