Federal Court of Australia

Guider v Coutts Lawyers & Conveyancers Pty Ltd, in the matter of Coutts Lawyers & Conveyancers Pty Ltd [2026] FCA 1679

ORDERS

THE COURT NOTES:

1.    The undertaking to the Court by the first plaintiff in the terms annexed to these Orders and which has been marked “Exhibit 1” in the proceeding.

THE COURT ORDERS THAT:

2.    The interlocutory process filed by the second defendant on 26 October 2026 is dismissed.

3.    The second defendant is to pay the first and second plaintiffs’ costs of the interlocutory process.

4.    The proceeding be listed for case management hearing on 25 November 2026 at 9.30 am.

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

Annexure – Exhibit 1

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

MARKOVIC J:

1    Adriana Antoinetta Guider (also known as Adriana Care), Luisa Gaetani and Karena Ann Nicholls are shareholders in and directors of Coutts Lawyers & Conveyancers Pty Ltd (CLC). Ms Guider is the secretary of CLC.

2    CLC in its capacity as trustee of the Coutts Lawyers & Conveyancers Unit Trust is the owner of the business trading as Coutts Lawyers & Conveyancers (Coutts Business). Ms Guider, Ms Gaetani and Ms Nicholls, through companies associated with them, own the units in the Trust.

3    More particularly their respective holdings in CLC and the Trust are as follows:

(1)    there are 120 shares on issue in CLC of which Ms Guider holds 48 shares, Ms Gaetani holds 24 shares and Ms Nicholls holds 48 shares; and

(2)    there are 200 units on issue in the Trust of which Sienna Bell Pty Ltd as trustee for the Guider & Care Family Trust (associated with Ms Guider) holds 80 units, Loumac Family Holdings as trustee for the Loumac Family Holdings Trust (associated with Ms Gaetani) holds 40 units and Nicholls Property Investments as trustee for the Nicholls Family Trust (associated with Ms Nicholls) holds 80 units.

4    The Coutts Business is, as the name suggests, a legal practice. It has two divisions: a personal injury division which is headed by Ms Nicholls; and a general division which is headed by Ms Guider, Ms Gaetani and Melissa Care. The general division provides commercial, litigation, criminal, family law, conveyancing, estate planning and other legal services.

5    Ms Guider is the managing partner of the Coutts Business and heads the commercial, property and estate teams in the general division and Ms Nicholls heads the personal injury division and the employment team.

6    It is not in dispute, and the evidence relied on before me plainly establishes, that there has been a break down in the relationship between Ms Guider and Ms Gaetani, on the one hand, and Ms Nicholls on the other.

7    On 11 December 2025 Ms Guider and Ms Gaetani commenced this proceeding seeking, among other things, a declaration that Ms Nicholls’ conduct in connection with the affairs of CLC was: (1) contrary to the members of CLC as a whole and oppressive to Ms Guider and Ms Gaetani in their capacity as members of CLC, as well as orders for the transfer of the personal injury division of the Coutts Business to Ms Nicholls; (2) for her concurrent resignation from CLC as a director and employee; and (3) for the valuation of the Coutts Business. A statement of claim was filed on 16 October 2026.

8    On 26 March Ms Nicholls filed a cross-claim in which she seeks, among other things, relief under s 233 of the Corporations Act 2001 (Cth), a declaration that the affairs of CLC have been conducted in a manner which is oppressive to her and an order that Ms Guider and Ms Gaetani purchase her shares in CLC at a price to be determined by the Court.

9    As is apparent, both Ms Guider and Ms Gaetani, on the one hand, and Ms Nicholls on the other, seek to separate as partners in and owners of the Coutts Business and to effect its sale in some manner.

10    On 26 October 2026 Ms Nicholls filed an interlocutory process in which she seeks interlocutory relief pursuant to s 233 of the Corporations Act and s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) against Ms Guider and Ms Gaetani, interests associated with them and CLC restraining them until the hearing and determination of the interlocutory process, the hearing and determination of her cross-claim and until further order from:

(1)    holding or proceeding with the general meeting of members of the Trust convened by notice dated 13 October 2026 for 9:00am on 6 November 2026 (Meeting), or any adjournment of the Meeting, or any other meeting of members of the Trust convened for the same or a similar purpose;

(2)    proposing, voting on, passing, or acting on or giving effect to any resolution to accept any offer for, or to sell, transfer or otherwise dispose of, the Coutts Business or any units in the Trust; and

(3)    entering into any agreement or arrangement to sell, transfer or otherwise dispose of the Coutts Business, any units in the Trust, or any substantial part of the assets of CLC or the Trust otherwise than in the ordinary course of business.

11    These reasons address the interlocutory process which came on for hearing urgently before me this morning.

Background

12    I set out below a high-level summary of the evidence relied on before me on this application rather than all relevant facts. The nature of the application and the urgency with which it must be determined, do not permit me to do the latter.

13    As I have said, it is apparent based on the evidence before me and the very existence of this proceeding that there has been a breakdown in the relationship between Ms Guider and Ms Gaetani on the one hand, and Ms Nicholls, on the other. The relationship began to deteriorate in about August 2025. The cause of the break down in relationship is not relevant to the relief now sought.

14    On 16 September 2025 Ms Guider sent an email to Ms Gaetani and Ms Nicholls attaching a paper for discussion at a board meeting scheduled for the following day titled “Coutts Lawyers & Conveyancers Pty Ltd & Unit Trust … Paper to the Directors and Shareholders of the Company and Unit Trust”. That paper referred to the breakdown in relations, offers previously put by the shareholders and unit holders to demerge or sell parts of the Coutts Business and set out a proposal for demerger of CLC. The paper estimated the value of the Coutts Business at the time to be approximately $10.3 million.

15    The board paper referred to in the preceding paragraph was tabled at the CLC board meeting which took place on 17 September 2025. The minutes of that meeting relevantly record that:

Noted: KN objected to the de merger. LG and the Chair confirmed they wish and will continue with the de merger and request that KN particularise the assets and liabilities and action items in the attached paper by the deadline requested.

Resolution: That the de merger continue and KN provide any assets and or liabilities she wishes to amend or propose to ensure that the de merger is fair and reasonable to all parties. [KN wishing to note her objection to the de merger on the grounds it is unfair and oppressive to her shareholding, to which the other shareholders requested clarification to remedy the same, and note KN only response is that it is unfair as she does not wish to de merge].

16    According to Ms Gaetani there have been a number of attempts to resolve the dispute between her, Ms Guider and Ms Nicholls since 17 September 2025, none of which has been successful.

17    In December 2025 Ms Guider and Ms Gaetani commenced this proceeding.

Events since commencement of this proceeding

18    After the commencement of this proceeding, in about April 2026 CLC attempted to sell the Coutts Business either as a whole or by selling the personal injury division on its own. According to Ms Guider, Ms Nicholls was involved in discussions about the proposed sale. The correspondence before me about that process, which did not result in a sale, shows that Ms Nicholls was aware of the process, although she was not aware of the detail including the identity of prospective purchasers until after material had been provided to them. Ms Nicholls in fact also introduced a prospective purchaser into that process.

19    On 24 April 2026 Loumac requested CLC as trustee of the Trust to convene a general meeting of its members to consider a sale of the Coutts Business.

20    On or about 28 April 2026 Ms Nicholls provided her solicitors, Legal Made Easy Pty Ltd, with a copy of a notice of general meeting of the unitholders of the Trust, dated 24 April 2026. The meeting had been convened at the request of Loumac. The “Business Agenda” for the meeting was:

General Meeting of Members for the purpose of considering the following matters:

(a)    the cessation of the business of the Trust trading as Coutts Lawyers & Conveyancers (the Business);

(b)    the appointment of a sales agent (the Sales Agent) to market and sell the assets of the Business;

(c)    the terms on which the Sales Agent is to market, negotiate, receive and disclose offers, and execute contracts of sale;

(d)    the reservation to existing Members of the right to negotiate with the Sales Agent for the purchase of any individual asset or assets of the Business;

(e)    the convening, if required, of a further General Meeting to determine which of competing offers should be accepted;

(f)    the application of the proceeds of sale in discharge of the costs of sale, taxation, and the liabilities of the Trust; and

(g)    the distribution of any surplus to Members in proportion to their Member's Proportion.

21    In May 2026 Ms Nicholls, through her solicitors, sought an undertaking from Ms Guider and Ms Gaetani not to take steps to dispose of or dissipate the assets of the Coutts Business. An undertaking was not forthcoming.

22    On 28 May 2026 at a general meeting of CLC the members resolved that CLC appoint Peter Frankl Pty Ltd to market the Coutts Business for sale for two months, that each member be entitled to make an offer on the same terms as any other prospective purchaser and that a further meeting of its members be convened to decide which offer, if any, to accept.

23    On 7 July 2026 Ms Guider circulated to Ms Nicholls and Ms Gaetani a letter dated 6 July 2026 from Peter Frankl which sought approval to commence the marketing phase of the sale of the Coutts Business and set out a proposed marketing process which was intended to run for two months. The email attached an “information summary”, intended to be provided to prospective purchasers after they signed a non-disclosure agreement, which provided that the divisions of the Coutts Business were “being offered separately or together”.

24    According to Ms Guider, she kept Ms Gaetani and Ms Nicholls informed about the progress of the sale process conducted by Peter Frankl.

25    On 4 August 2026 Ms Guider sent an email to Ms Nicholls and Ms Gaetani forwarding an email from Stan Kouros of Peter Frankl. Mr Kouros’ email provided an update on progress with prospective purchasers. Six prospective purchasers were identified. Ms Guider initially met with prospective purchasers, without the other directors of CLC. That was because as managing partner, prospective purchasers asked to meet with her first. However, Ms Guider encouraged all prospective purchasers to meet with the partners. According to Ms Nicholls she only met with two of the prospective purchasers, Sather Legal and Daniel Georges.

26    Ms Nicholls’ concern is that she was not present at any meetings or discussions between prospective purchasers and Ms Guider and/or Ms Gaetani and thus she does not know what was discussed. She is concerned that in those discussions her role in, and contribution to, the business may not have been fairly presented. Ms Nicholls does not point to any evidence to support this view which seems to be no more than speculation on her part.

27    On 4 September 2026 Ms Guider informed Ms Gaetani and Ms Nicholls of the proposed timetable going forward for receipt of final offers and their consideration, including the proposal for a meeting of the unit holders in the Trust to be convened to consider the offers.

28    On 16 September 2026 Mr Kouros of Peter Frankl sent an email to Ms Nicholls, Ms Gaetani and Ms Guider setting out offers received from two prospective purchasers.

29    On 13 October 2026 Ms Guider circulated a notice of general meeting of its members of CLC as trustee for the Trust to take place on 6 November 2026. The notice of meeting includes:

1.    Background

…

1.2    The Marketing Period expired on 30 September 2026.

1.3    The Sales Agent has reported that two offers were received from third parties during the Marketing Period:

(a)    an offer from Sather Legal dated 11 September 2026, please see Annexure A; and

(b)    an offer from Justice Family Lawyers dated 16 September 2026, please see Annexure B.

1.4    Both offers exclude the personal injury practice (PI Practice). Neither offer is sufficient to discharge the loans secured over the assets of the Trust.

1.5    After the Marketing Period expired, a further offer was received through the Sales Agent from Ms Adriana Antoinetta Guider, a Member and a director and shareholder of the Trustee, to purchase the whole of the business [including the PI Practice] for $1,300,000, subject to a number of conditions, please see Annexure C. For clarity, the offer provides for the discharge of the loans secured over the assets of the Trust.

2.    Business of the meeting

The meeting will consider and, if thought fit, pass the following resolutions as ordinary resolutions.

Resolution 1 – Extension of the Marketing Period

That the Marketing Period be extended to the date of this meeting, and that each offer received by the Sales Agent before this meeting (including the offers annexed to this notice) may be considered and accepted under Resolution 5 of the May Resolutions, regardless of the date on which it was received as long as such offer was received before this meeting.

Resolution 2 – Acceptance of offer

That, the following offers be considered and voted on:

Resolution 2(a)

The offer from Sather Legal dated 11 September 2026 to purchase the business subject to the terms of the offer in Annexure A, be accepted, and the Trustee is directed to take all steps necessary to complete the sale in accordance with the May Resolutions; OR

Resolution 2(b)

The offer from Justice Family Lawyers dated 16 September 2026, to purchase the business subject to the terms of the offer in Annexure B, be accepted, and the Trustee is directed to take all steps necessary to complete the sale in accordance with the May Resolutions … … ; OR

Resolution 2(c)

Subject to the passing of Resolution 1, the offer from Adriana Care dated, 13 October 2026 to purchase the business subject to the terms of the offer in Annexure C, be accepted, and the Trustee is directed to take all steps necessary to complete the sale in accordance with the May Resolutions; OR

Resolution 2(d)

If another Member submits an offer prior to the date of this meeting and subject to the passing of Resolution 1, the offer from a Member to purchase the business subject to the terms of the offer sent to the Members prior to this meeting and tabled in this meeting, be accepted, and the Trustee is directed to take all steps necessary to complete the sale in accordance with the May Resolutions.

…

30    As set out above, on 16 October 2026 Ms Guider and Ms Gaetani filed and served their statement of claim in this proceeding.

31    On 26 October 2026 Mr Kouros informed Ms Guider that Sather Legal would be “moving on” and that they were “hoping for feedback and further negotiation on their proposal”. I infer that Sather Legal’s offer, which was for the Coutts Business excluding the personal injury division, is no longer available.

Remaining offers for purchase of the Coutts Business

32    The second offer, being an offer from Justice Family Lawyers is also an offer the Coutts Business excluding the personal injury division. A third offer, made by Ms Guider after the marketing period had ended, is for the whole of the Coutts Business for a total of $1.3 million excluding cash at bank, debtors, work-in-progress (WIP) and money held in trust as at the date of settlement, all of which remain with the vendor.

33    Ms Guider explains that her offer is as follows:

(1)    purchase the goodwill and office fit out for $1.3 million;

(2)    pay for the WIP dollar for dollar to CLC, to be split in accordance with unit holdings once the debts of the business are paid. As at 27 October 2026 the WIP was $2.53 million; and

(3)    debtors (exclusive of GST) – $1,644,600.

34    The terms of Ms Guider’s offer include that the purchaser will:

(1)    not offer employment to Ms Nicholls;

(2)    pay out the secured loans owing by Loumac and Nicholls Property which are guaranteed by CLC. Where the balance owing to the unit holder is less than the secured loan, the purchaser will advance the amount of the shortfall so that the secured loan can be discharged and the amount so advanced will be repaid from that unitholder’s share of distributions of WIP and debtors as realised and paid, by applying the balance to each unit holder; and

(3)    take an assignment of CLC’s rights under any restraint of trade in its existing employment agreements.

35    According to Ms Guider, based on her offer, the realised value of the sale of the Coutts Business is $5,474,600 and Ms Nicholls’ share (before expenses are deducted) is approximately $2,189,840. This amount would be in addition to any cash at bank and to the offer to clear Ms Nicholls’ buy-in loan with advanced payments on a dollar-for-dollar basis at the date of settlement, rather than as WIP is paid. Ms Guider says that her offer presented the worst case cash scenario, in the event there is no cash in the bank and employee entitlements need to be paid or adjusted on settlement, which will depend on the collection of debtors at the time of settlement.

36    Under the offer from Justice Family Lawyers CLC would retain the personal injury division and would need to deal with that asset separately, with the unitholders retaining their respective percentages in that part of the business until a sale or transfer is effected.

37    Ms Nicholls’ evidence is that her calculation of the estimated value of the Coutts Business based on the financial statements prepared as at 30 June 2026 is approximately $11.9 million. She also points out that on 16 October 2023, at the time an offer was made to Ms Gaetani to buy a 20% share in the Coutts Business, Ms Guider proposed that the value of the business be estimated at turnover plus WIP and debtors less fit out loans and calculated the value as approximately $11.2 million.

Ms Nicholls’ concerns with the proposed meeting

38    Ms Nicholls is concerned that Ms Guider and Ms Gaetani have resisted an independent valuation of the Coutts Business so that they can proceed with a forced sale, including of her shareholding, at a diminished value. Her concern is heightened because Ms Guider has now made an offer to purchase the business, the value of which she contends has been diminished by the conduct of Ms Guider and Ms Gaetani, and of CLC, which they control as its majority shareholders.

Ms Guider’s and Ms Gaetani’s concerns

39    Ms Guider does not wish to continue to be in business with Ms Nicholls. She has also been informed by Ms Gaetani that her financial position has become progressively worse, and she may default on Loumac’s loan which is guaranteed by CLC (see below). If that happens, CLC may be called on under its guarantee, which gravely concerns Ms Guider as this may lead to the Coutts Business being sold by a receiver and may damage all the directors’ ability to practise as lawyers.

40    Ms Gaetani has suffered a number of personal setbacks including a separation from her partner. The latter means that she is solely responsible for servicing Loumac’s loan from the National Australia Bank which was taken out to fund Loumac’s acquisition of units in the Trust (NAB Loan). The repayment of the NAB Loan is guaranteed by CLC, Ms Gaetani and her former partner, Mr Khaled. The quarterly repayments are approximately $66,000 and the balance outstanding since 14 August 2026 has been $1,317,500. The facility expires on 30 April 2027 when the balance outstanding is to be repaid.

41    The next instalment payable for the NAB Loan is due on or about 16 November 2026. Ms Gaetani does not have sufficient funds to meet that repayment. If Ms Gaetani is unable to meet the repayment, she will be in default and she believes that NAB will call in the NAB Loan.

42    On 23 April 2026 Ms Gaetani tendered her resignation as an employee of CLC. However, she agreed to remain and to put her resignation on hold as she did not wish to cause any detriment to the other shareholders of CLC. She has continued to work at the Coutts Business. However, if no action is taken to progress the sale of that business, Ms Gaetani intends to give effect to her resignation and leave.

43    Finally, if the injunction sought by Ms Nicholls is granted, Ms Gaetani says that she will likely face bankruptcy and lose her ability to practise law and thus her livelihood. She will also likely lose her home and she will have nowhere to live as her immediate family all live overseas. The only other evidence about Ms Gaetani’s assets and liabilities is that she is the registered proprietor of a property at Gymea which is subject to a mortgage to Permanent Custodians Limited.

Consideration

44    Ms Nicholls brings her application under s 233 of the Corporations Act and s 23 of the FCA Act.

45    Section 232 of the Corporations Act provides that the Court may make an order under s 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.

46    Section 233 of the Corporations Act permits the Court to make any order it considers appropriate in relation to the company including restraining a person from engaging in specified conduct or from doing a specified act.

47    The principles governing a grant of interlocutory relief of the nature sought by Ms Nicholls were not in dispute.

48    In determining whether to grant such relief the Court is to “ask whether the plaintiff has shown that there is a serious question to be tried” or a prima facie case in the sense that there is a sufficient likelihood of success to justify preservation of the status quo, whether the plaintiff has shown that it is “likely to suffer injury for which damages will not be an adequate remedy”, and whether “the balance of convenience favours the granting of an injunction”: see Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [19] (Gleeson CJ and Crennan J), [65] (Gummow and Hayne JJ).

49    Those questions are not considered in isolation. The strength or weakness of the case affects the balance of convenience: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622–3 (Kitto, Taylor, Menzies and Owen JJ); O’Neill at [65], [71] (Gummow and Hayne JJ).

50    In Hungry Joe Productions Pty Ltd atf The Hungry Joe Trust v DCF Lending Pty Ltd [2026] NSWSC 920 Slattery J summarised the principles in the following way at [14]-[15]:

14    In deciding whether to grant an interlocutory injunction the Court must consider whether there is a serious question to be tried and then whether the balance of convenience and questions of hardship and related factors warrant the grant of an interlocutory injunction. First, the plaintiff must prove a serious, not a speculative, case which has a real possibility of ultimate success and that property or other interests might be jeopardised if no interlocutory relief is granted: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths) at [21–350] (“Equity Doctrines and Remedies”), discussing the requirements of the Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618; [1968] ALR 469; (1968) 42 ALJR 80; [1968] RPC 301 prima facie case test. Put another way, the plaintiff must show a sufficient likelihood of success to justify the preservation of the status quo pending the trial: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; (2006) 229 ALR 457; (2006) 80 ALJR 1672; [2006] HCA 46 at [70] – [71].

15    Then, it becomes a matter of analysing if in all the circumstances of the case, considering the balance of convenience and issues of hardship, the Court should nonetheless exercise its discretion by declining to issue an interlocutory injunction: Equity Doctrines and Remedies at [21–350]; and see also Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; (2001) 185 ALR 1; (2001) 76 ALJR 1; [2001] HCA 63 and Beese (Managers of Kimpton Church of England Primary School) v Woodhouse [1970] 1 All ER 769; [1970] 1 WLR 586. Other factors to which the Court will have regard include the adequacy of damages, the possibilities of alternative remedies, whether there has been any laches or delay, the strength of the grounds of defence suggested by the defendant, what, if any, undertakings the defendant is prepared to give, but hardship and the balance of convenience are very important: Equity Doctrines and Remedies [21–375]. If any infringement of a plaintiff’s right between writ and hearing would be properly compensated in damages, that fact alone can, but not must, be a ground for declining an injunction: McCarty v Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210; (1918) 35 WN (NSW) 85.

Serious question to be tried

51    Ms Nicholls submits that in the present case there is a serious question to be tried that the affairs of CLC have been conducted in a manner oppressive to, unfairly prejudicial to, or unfairly discriminatory to her, including by her exclusion from CLC’s management and decision-making, the cessation of weekly dividends, the pursuit of a demerger, the announcement to all staff of a partition of the firm over her objection, and the pursuit of a forced sale despite her well-documented and immediate opposition.

52    Ms Nicholls also submits that there is a serious question that the Meeting is an attempt to circumvent this proceeding, to force the sale before any Court determination, which would amount to further oppression.

53    Ms Guider and Ms Gaetani submit that there is no serious question to be tried. They say that the resolutions passed on 28 May 2026 were validly passed and the Meeting has been validly convened under the Trust deed.

54    There is no dispute that the resolutions were validly passed. Clause 9.6.1 of the Trust deed provides that a resolution is carried by a majority of the votes cast. Sienna Bell and Loumac, which together hold 120 units in the Trust (i.e. a majority), voted in favour of the resolutions. Nicholls Property voted against them.

55    Nor is there any dispute that the Meeting has been properly convened. It was convened on not less than 21 days’ notice as required by cl 9.2.1 of the Trust deed.

56    Ms Guider and Ms Gaetani submit that the resolutions confer no preference or right of first refusal on any member and that during the marketing period any member could make an offer on the same terms as any other purchaser. Ms Guider made her offer after that period so that members would have an offer for the whole of the Coutts Business that discharges the secured loans. The notice of the Meeting discloses her interest, proposes extending the period so that any member’s offer can be considered on the same footing, and invites further offers. They contend that the outcome is to be determined at the Meeting, at which Ms Nicholls’ entity is entitled to vote.

57    But that submission illustrates the issue at the heart of this proceeding. That is, while Ms Nicholls can vote at the Meeting, she remains in the minority. The resolutions only require a majority to pass. Having regard to the terms of the Trust deed, together, Ms Guider and Ms Gaetani constitute a majority, both on a show of hands and on a poll. It matters not that Ms Nicholls was aware of the sale process or that she co-operated with it to the extent that she received material and spoke with prospective purchasers. She did so in good faith and so as not to undermine the business or its reputation vis-a-vis prospective purchasers and third parties. Nor does it assist Ms Guider and Ms Gaetani that Ms Nicholls was given updates about the process. As a director of, and shareholder in, CLC and as a holder of units in the Trust, there was an obligation to keep her informed.

58    There is however in my view a serious question to be tried on Ms Nicholls’ cross-claim as to whether the affairs of CLC have been conducted in a manner oppressive to, unfairly prejudicial to, or unfairly discriminatory against Ms Nicholls given: that she has arguably been excluded from management decisions; the issues that arise and the manner in which decisions were made in relation to the cessation of payment of weekly dividends; the announcement and pursuit of the demerger; and the pursuit of a sale despite Ms Nicholls’ opposition. Added to that are the questions of the value of the Coutts Business in the absence of an independent valuation and the proposal to proceed with the Meeting and require a vote on the resolutions in the absence of such a valuation.

59    But that is not the end of the questions I must consider.

Balance of convenience

60    I turn then to consider the question of the balance of convenience and issues of hardship and whether damages are an adequate remedy.

61    Ms Nicholls submits that she will suffer significant injustice if the forced sale is permitted to proceed before any independent valuation is obtained. She says that, given justice is a relevant consideration, the granting of the injunctive relief she seeks would better accord with the justice of the case, particularly in protecting the fairness of any sale and her interests in light of the persistent non-compliance of Ms Guider and Ms Gaetani with Court orders while progressing the sale. Ms Nicholls submits that the Court ought not permit its own processes to be circumvented by conduct of this kind.

62    Ms Nicholls submits that the balance of convenience favours preserving the status quo because:

(1)    there is no need to sell as the Coutts Business is trading well and none of the offers has an expiration date and so would not be affected by an adjournment of the Meeting;

(2)    as to prejudice:

(a)    the prejudice asserted by Ms Gaetani arises from Loumac’s borrowings on acquisition of units in the Trust and the proposed sale would not relieve that indebtedness. As CLC continues to trade profitably and to hold cash, Ms Guider and Ms Gaetani, as the majority directors of CLC, can cause distributions to be paid to the unit holders, which would assist Ms Gaetani in meeting the quarterly payments on the NAB Loan without the need for a sale. The NAB Loan does not expire until 30 April 2027 and Ms Gaetani has recently sold one property and purchased another;

(b)    Ms Guider’s alleged prejudice arises from the difficulty of the working relationship with Ms Nicholls (which is the subject of this proceeding and is in dispute) and her wish to realise her interest in the Coutts Business;

(c)    the departure of staff is not shown to be attributable to Ms Nicholls, or likely to be aggravated by a postponement of the Meeting; and

(d)    the risk that CLC may be called upon under its guarantee of the NAB Loan is speculative;

(3)    there has been no delay on Ms Nicholls’ part. The threatened harm did not crystallise until the Meeting was convened. Rather, Ms Guider and Ms Gaetani have delayed the proceeding and the sale where it has suited them, including to take leave; and

(4)    Ms Guider and Ms Gaetani’s conduct has prejudiced CLC more than any restraint on a sale of the Coutts Business as any due diligence search by a prospective third-party purchaser would reveal that CLC is involved in litigation commenced by them which would likely discourage a third-party purchaser or lead to a lower offer.

63    Ms Nicholls also submits that she will suffer hardship if the injunction is not granted and that damages are not an adequate remedy. The hardships are that: she will lose her interest in the Coutts Business, which will be acquired at an undervalue; she will be subject to a restraint and will not be able to practise; she will lose her practice as part of the sale and relationships she has built with clients; and her exclusion from the practice will damage her reputation in the community.

64    In relation to her contention that damages are not an adequate remedy, Ms Nicholls points to Ms Gaetani’s evidence set out above about her financial circumstances and submits that if she is successful in her claim for damages, the likelihood is that Ms Gaetani will not be able to satisfy any judgment. In the meantime, the subject matter of this proceeding will be destroyed by the sale.

65    For the following reasons I am satisfied that damages are an adequate remedy and am not satisfied that the balance of convenience favours Ms Nicholls. Thus I am not satisfied that the orders sought by Ms Nicholls should be made.

66    First, as Ms Guider and Ms Gaetani submit, a significant plank of Ms Nicholls’ argument is that the Coutts Business will be sold at an undervalue. Ms Nicholls makes that submission based on the value attributed to the Coutts Business at the time Ms Gaetani acquired her 20% interest and the calculations she recently undertook based on the same formula. However, as is apparent and, as Ms Guider and Ms Gaetani observe, the price paid for buy in to a business is very different to what is now occurring, a proposed sale in circumstances where there has been a breakdown of the relationship between the owners of the business.

67    The basis on which an amount for buy in was calculated is clearly not apt to be used as a basis for valuation of the business as a whole for sale. In any event, there is no valuation evidence before me and no evidence as to whether Ms Guider’s offer for purchase of the Coutts Business is at an undervalue as alleged. The only evidence is that it is more than the only other alternative offer available after the business was marketed for sale.

68    Secondly, by her cross-claim, Ms Nicholls seeks compensation by way of an order for a buy out of her shares in CLC by either Ms Guider and Ms Gaetani or CLC. Ms Nicholls does not seek an order that she buy out Ms Guider and Ms Gaetani at a price to be determined or that she purchase the Coutts Business in specie. Whether she obtains compensation for her share in the Coutts Business at the end of a contested hearing on the basis of the proceeding as presently framed or as an award of damages based on an allegation that sale of the Coutts Business was at an undervalue, can make no difference to Ms Nicholls. If successful, the result will be the same. This is a compelling reason why, in this case, damages are an adequate remedy.

69    Thirdly, there is no evidence that Ms Guider will not be able to meet any judgment debt. On the contrary there is evidence that Ms Guider is the joint owner of seven properties located in different parts of New South Wales. Added to that she has offered for an entity in her control to purchase the Coutts Business. She has offered an undertaking to the Court that, if the purchase proceeds, she will cause the purchaser not to dispose of that business, other than in the ordinary course of business, until such time that this proceeding is finally determined.

70    Fourthly, and in any event, having regard to the competing factors, the balance of convenience does not support the making of the orders sought by Ms Nicholls. The relationship between the owners of the Coutts Business has broken down. It is, based on the evidence, irretrievable. If the orders sought by Ms Nicholls are made, Ms Gaetani will resign, Ms Guider does not wish to stay in business with Ms Nicholls and the NAB may take steps to enforce its guarantee over the NAB Loan should Loumac not meet its payment obligations in November or at any time in the future. None of that augurs well for the future of the Coutts Business and may lead to it contracting. On the other hand, if the orders sought are not made, the Meeting will take place and it is more likely than not that Ms Guider’s offer will be accepted such that the Coutts Business will continue and the secured loans will be paid out, removing any risk of enforcement of the guarantees by NAB. Ms Nicholls will still be able to maintain a cause of action against Ms Guider and Ms Gaetani and any other relevant party given her principal allegation that any sale on the terms proposed by Ms Guider is at an undervalue.

71    Finally, it is apparent that Ms Nicholls is subject to a restraint. However, the terms of the restraint are not in evidence before me. In any event, that restraint is in place and would operate notwithstanding the identity of the purchaser of the Coutts Business in circumstances where Ms Nicholls may not remain with the business. The same can be said about the reputational risk to Ms Nicholls which is always present. Those factors do not weigh in the balance in favour of making the orders sought.

Conclusion

72    For those reasons I refuse to make the orders sought by Ms Nicholls in her interlocutory process.

73    Ms Nicholls submits that despite the fact that she has been unsuccessful on her interlocutory process, she should not be ordered to pay Ms Guider’s and Ms Gaetani’s costs of the application but rather that each party should bear their own costs. She submits that is so because of the circumstances of the case, that is, as I understand it, because Ms Guider and Ms Gaetani commenced this proceeding and, despite having done so, have taken steps to sell the business.

74    The usual order is that costs follow the event. Despite the circumstances, I can see no proper basis to depart from that order. Ms Nicholls filed the interlocutory process based on facts known to her. In my view, she should bear the costs of the interlocutory process given that she has been unsuccessful.

75    The interlocutory process will be dismissed with costs.

Associate:

Dated:    9 November 2026

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