Federal Court of Australia

Timor Resources Holdings Pty Limited v Osborne (Management of Related Proceedings) [2026] FCA 1705

ORDERS

THE COURT ORDERS THAT:

A    Case management

1.    Until further order, NSD 1497 of 2026 (Timor Resources Proceeding), NSD 2022 of 2026 (Victoria Park Proceeding) and NSD 2063 of 2026 (Lake House Proceeding) be case managed together.

2.    Together with all questions in the Lake House Proceeding except as set out in Order 3 below (Lake House Proceeding Issues), the Timor Resources Proceeding and the Victoria Park Proceeding be listed for final hearing commencing at 11.00 am on 1 February 2027, to be heard on 1 to 5 and 8 to 10 February 2027.

3.    Pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) (FCR) and ss 37M, 37P and 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the question in the Lake House Proceeding of the quantification of any loss or damage suffered be heard and determined, if necessary, separately and after all other questions in that proceeding.

4.    The parties are to conduct the proceedings so as to avoid duplication of evidence, discovery, court-book material and submissions, consistently with the overarching purpose.

B    Clarification of threshold issues

5.    By 4.00 pm on 13 November 2026, the first defendant in the Timor Resources Proceeding notify the Associate to Justice Lee:

(a)    whether she maintains Defence [116];

(b)    whether she contends that the solicitors on the record lacked authority to institute the Timor Resources Proceeding on 17 August 2026;

(c)    whether the challenge concerns commencement, continuation, amendment on 19 October 2026, conduct after 1 October or 20 October 2026, or each of those matters; and

(d)    the material facts, not already pleaded, upon which the challenge depends.

6.    By 4.00 pm on 16 November 2026, the plaintiff in the Timor Resources Proceeding file and serve any concise written submissions by which it contends that the issue identified in order 5 should be determined separately before the final hearing.

C    Pleadings

7.    By 4.00 pm on 20 November 2026, the defendants in the Victoria Park Proceeding file and serve their respective defences.

8.    By 4.00 pm on 25 November 2026, the plaintiffs in the Victoria Park Proceeding file and serve any reply.

9.    By 4.00 pm on 27 November 2026, the respondents in the Lake House Proceeding file and serve their respective defences, confined so far as presently necessary to the claims and issues to be determined in the separate trial and any threshold defence affecting those issues.

10.    By 4.00 pm on 3 December 2026, Lake House file and serve any Reply in the Lake House Proceeding.

D    Trial preparation: agreed facts, issues and submissions

11.    In the week commencing 30 November 2026, pursuant to s 37P(2) of the FCA Act, counsel briefed to appear at the trial are to confer in good faith and attempt to agree upon and prepare the following documents:

(a)    a document entitled “Agreed Background Facts”, identifying in narrative form the material background facts in respect of which there is agreement or no bona fide contest between the parties;

(b)    a single document entitled “Factual and Legal Issues for Determination” (Issues Document).

12.    In relation to issues to be determined at the trial, the Issues Document must:

(a)    identify any issues common to two or more of the proceedings;

(b)    identify separately and exhaustively each substantive contested factual issue in respect of which it is necessary for the Court to make a finding;

(c)    identify separately and exhaustively each contested legal issue which it is necessary for the Court to determine;

(d)    formulate each issue neutrally, precisely and, so far as practicable, as a single question capable of being answered by the Court;

(e)    identify immediately beneath each issue:

(i)    the proceeding or proceedings to which the issue relates;

(ii)    the paragraph or paragraphs of the operative pleading by which the issue is raised;

(iii)    whether determination of the issue depends upon another identified issue being determined in a particular way;

(iv)    any proposition arising from Lake House Corporation Limited v Timor Resources Holdings Pty Ltd [2026] FCA 335 which the parties agree has already been determined or which a party contends remains open for determination, together with the precise basis of that contention.

13.    For avoidance of doubt, the Issues Document must not:

(a)    reproduce or paraphrase the pleadings generally;

(b)    reproduce particulars, evidence, submissions or argument except to the minimum extent necessary to formulate an issue precisely;

(c)    identify an evidentiary dispute as a separate issue unless determination of that dispute is necessary to resolve a cause of action, defence or item of relief;

(d)    use vague formulations such as “whether the plaintiff has made out its case”, “whether the defendant is liable” or “whether relief should be granted”;

(e)    combine multiple independently contested propositions into one compound issue;

(f)    contain submissions as to how an issue should be resolved;

(g)    duplicate an issue arising in more than one proceeding; or

(h)    include an issue not raised by the operative pleadings unless the Issues Document expressly identifies that an application for leave to amend is required.

14.    Counsel participating in the conferral must participate consistently with the obligations imposed by Pt VB of the FCA Act, including by reducing the scope of any documentary tender.

15.    If the parties are unable to agree upon the formulation or inclusion of any fact or issue:

(a)    they must prepare one consolidated version of the relevant document;

(b)    the disputed text must be identified in mark-up at the point at which the dispute arises;

(c)    each party’s proposed formulation must appear immediately beneath the disputed matter;

(d)    each party must provide a brief explanation, not exceeding 150 words for each disputed matter, identifying why the matter requires determination, the pleading by which it is raised and why agreement could not be reached; and

(e)    the parties must not provide separate competing documents.

16.    By 4.00 pm on 18 December 2026, the parties provide electronically to the Associate to Justice Lee, in both Microsoft Word and PDF formats:

(a)    the Agreed Background Facts; and

(b)    the Issues Document.

17.    By 4.00 pm on 8 January 2027, the applicants and plaintiffs file and serve their written opening submissions.

18.    By 4.00 pm on 19 January 2027, the defendants and respondents file and serve their written opening submissions.

19.    By 4.00 pm on 25 January 2027, the applicants and plaintiffs may file and serve revised written opening submissions incorporating any submissions strictly in reply and superseding the submissions filed pursuant to the preceding orders.

20.    To the extent counsel are common to more than one proceeding, the written opening submissions are to be contained in one document and must:

(a)    avoid repetition;

(b)    follow, in part, the structure of the Issues Document;

(c)    be in 12-point Times New Roman;

(d)    not contain footnotes; and

(e)    provide the authorised report and medium neutral citation for each authority cited or, if there is no authorised report, the relevant unauthorised report and medium neutral citation.

21.    By 4.00 pm on 29 January 2027, the parties provide electronically to the Associate to Justice Lee:

(a)    a single agreed chronology;

(b)    the final Agreed Background Facts;

(c)    the final Issues Document;

(d)    a consolidated list of objections to evidence identifying the evidence objected to, the grounds of objection and the response of the party tendering the evidence;

(e)    a joint list of authorities; and

(f)    a single electronic court book prepared in accordance with Format 2 of the eBooks Practice Note (GPN-eBOOKS).

22.    The electronic court book must:

(a)    contain each document once only;

(b)    use common pagination across the three proceedings;

(c)    identify in its index the proceeding or proceedings in which each document is relied upon;

(d)    include only the final operative pleadings and particulars;

(e)    include the final Agreed Background Facts and Issues Document;

(f)    include the parties’ final written opening submissions;

(g)    include, in chronological order, only documents which a party presently intends to tender or refer to in submissions;

(h)    exclude duplicate email chains and instead include one copy of each individual email arranged chronologically; and

(i)    include lay affidavits without annexures or exhibits, with cross-references to the relevant documents elsewhere in the court book.

E    Evidence

23.    In the Timor Resources Proceeding, the time for compliance with Order 16 of the orders of Lee J dated 10 September 2026, as extended by Order 1 of the orders of Lee J dated 30 September 2026, requiring the IT Referee to submit his Report to the Court, be extended to require the IT Referee to submit his Report to the Court as soon as practicable, and in any event no later than 4.00pm on Friday, 20 November 2026.

24.    In the Timor Resources Proceeding, orders 9, 10 and 11 of the Orders of Lee J dated 16 October 2026 are vacated.

25.    By 4.00 pm on 27 November 2026, the plaintiff in the Timor Resources Proceeding serve any proofs of evidence of lay witnesses upon which it seeks to rely in relation to its amended originating process and amended statement of claim.

26.    By 4.00 pm on 11 December 2026, the defendants in the Timor Resources Proceeding serve any proofs of evidence of lay witnesses upon which they seek to rely in relation to the plaintiff’s amended originating process and amended statement of claim and any cross-claim filed by a defendant.

27.    By 4.00 pm on 18 December 2026, the plaintiff in the Timor Resources Proceeding serve any proofs of evidence of lay witnesses in reply.

28.    All proceedings are listed for a case management hearing at 9am on 1 December 2026, at which time the Court will deal with all outstanding interlocutory matters to prepare the matters for hearing, including, in respect of the Timor Resources Proceeding:

(a)    any application concerning the adoption of the report of the IT referee; and

(b)    any claim for privilege, including any contention that documents which, upon adoption of the report, are found to be company property ought not to be provided to the plaintiff on the basis of any claim for privilege.

29.    The parties to the Timor Resources Proceeding are to deliver to the IT Referee and the Independent Solicitor a copy of these orders, and the Reasons delivered by Lee J on 11 November 2026, as soon as practicable.

30.    By 4.00 pm on 30 November 2026, the plaintiffs in the Victoria Park Proceeding serve any additional proofs of evidence of lay witnesses upon which they intend to rely, beyond the affidavit of Jonathan Milner affirmed 28 October 2026 and evidence already filed in the Timor Resources Proceeding which is identified for use in the Victoria Park Proceeding by notice.

31.    By 4.00 pm on 14 December 2026, the defendants in the Victoria Park Proceeding serve any proofs of evidence of lay witnesses.

32.    By 4.00 pm on 23 December 2026, the plaintiffs in the Victoria Park Proceeding serve any proofs of evidence of lay witnesses strictly in reply.

33.    By 4.00 pm on 3 December 2026, Lake House serve any further proofs of evidence of lay witnesses upon which it intends to rely in respect of the Lake House Proceeding Issues, beyond the affidavits filed in support of the interlocutory application.

34.    By 4.00 pm on 18 December 2026, the respondents in the Lake House Proceeding serve their proofs of evidence of lay witnesses concerning the Lake House Proceeding Issues.

35.    By 4.00 pm on 24 December 2026, Lake House serve any proofs of evidence of lay witnesses strictly in reply concerning the Lake House Proceeding Issues.

36.    A party may rely in one proceeding on evidence to be adduced in another of the three proceedings by serving a notice identifying the nature of the evidence to be relied upon.

F    Discovery and electronic material

37.    By 18 December 2026, the parties give discovery in accordance with FCR 20.14 and the existing orders in the Timor Resources Proceeding and, in the Victoria Park Proceeding and the separate trial of the Lake House Proceeding.

38.    For the avoidance of doubt, in the Lake House Proceeding, until further order, discovery of documents bearing only upon loss, valuation or damages is deferred.

39.    A document discovered in one proceeding need not be rediscovered in another proceeding and the parties are to use, so far as practicable, a single document identifier and a common electronic repository.

40.    The independent solicitor and forensic personnel appointed under the search order in the Lake House Proceeding, and the IT referee and independent solicitor appointed in the Timor Resources matter, are to confer for the limited purpose of identifying overlapping devices, accounts, repositories and document sets and avoiding inconsistent preservation, privilege, custody or inspection arrangements.

G    Mediation

41.    Subject to the consent and availability of the Honourable Patricia Bergin AO SC, the whole of the Victoria Park Proceeding and the Lake House Proceeding be referred to the mediation already fixed in the Timor Resources Proceeding for 8 December 2026, with authority to conduct the mediation upon such basis as the mediator considers appropriate.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION

1    Before the Court today are three proceedings arising out of what can only be described as a comprehensive breakdown in the relationship between those concerned with the ownership, financing and management of Timor Resources Holdings Pty Limited (TRH). As sometimes happens when corporate disputes become entrenched, this controversy has proved distinctly hydra-headed. I do not say that by way of criticism of any party. It is simply an observation about how matters have developed.

2    What began as a comparatively confined dispute about access to company records has now produced three proceedings, a special jury in the form of a referee, a search order, an outstanding application for asset-preservation relief, competing contentions as to who may speak and act for TRH, and renewed controversy about investment dealings extending back to 2021 and 2022.

3    The Court’s present task is to prevent that multiplication of controversies from producing an equivalent multiplication of hearings, with attendant cost and delay. At the same time, the three proceedings remain distinct. In particular, the respondents to the most recently commenced proceeding have scarcely had time to draw breath, let alone formulate a considered response to the allegations.

4    For convenience, I refer to NSD 1497 of 2026 as the Timor Resources proceeding, NSD 2022 of 2026 as the Victoria Park proceeding, and NSD 2063 of 2026 as the Lake House proceeding. Each comes before the Court today for a somewhat different reason.

B    THE PRESENT PROCEDURAL POSITION

5    The Timor Resources proceeding was listed today, among other things, to consider the report of a referee, its possible adoption and consequential questions arising from the work undertaken pursuant to the reference. That aspect of the matter cannot proceed as contemplated because the referee has not completed his task.

6    The Court has instead received what is described as an “interim report”, explaining the work undertaken and indicating that a further period is required before the final report can be produced. There is no opposition to allowing further time. It is, however, critical that the referee comply with the revised order requiring production of the report. One of the directions I will make is that a copy of these reasons be provided to the referee and the independent solicitor assisting him.

7    The Victoria Park proceeding is before the Court for its first case-management hearing. No defence has been filed. The immediate task is to understand the nature of the case advanced, its relationship with the existing Timor Resources proceeding and the steps required to join the issues and prepare them for determination.

8    The Lake House proceeding, commenced yesterday, is also before the Court for its first case-management hearing, although in rather singular circumstances. Yesterday I made a search order ex parte against Suellen Osborne and Andrew Osborne. An application was also made for asset-preservation relief.

9    I was not prepared to grant the latter relief ex parte. Those whose assets were proposed to be affected ought to have an opportunity to be heard before an order of that character is imposed, particularly where there appeared to have been some delay in seeking it.

10    The parties have not agreed upon an interim preservation regime. I will presently adjourn for a short period to allow them to consider whether such an arrangement can sensibly be reached pending determination of the contested application. An agreed arrangement would permit the subject matter of the application to be protected while giving those affected a proper opportunity to put forward the evidence and submissions upon which they wish to rely.

11    It is against that crowded procedural background that I have considered how these proceedings should now travel.

C THE CORPORATE BACKGROUND

12    TRH is the Australian holding company of an enterprise engaged in petroleum exploration in Timor-Leste. The evidence presently before the Court describes its petroleum interests, and the rights exercised in connexion with the Timor petroleum authorities and Timor Gap, as the principal assets from which the enterprise may ultimately derive substantial economic value.

13    The ownership of TRH is now divided principally between two groups. Lake House Corporation Limited holds approximately 48% of the issued capital. Companies associated with the interests described in the proceedings as the Nepean interests collectively hold approximately 49%. The board comprises five directors: two associated with Lake House, two with the Nepean interests, and Christopher Moyes as the independent director.

14    The importance of that arrangement becomes apparent upon reading the Shareholders’ Deed of 26 August 2024. Particular reserved matters require “Special Director Approval”. On the case presently pleaded, and subject to submissions to the contrary, that approval requires four affirmative votes where five directors are in office.

15    That arithmetic goes some way towards explaining the present difficulties. There are two shareholder blocs of almost equal weight, each associated with two directors, and a fifth, independent director.

D    THE EARLIER DECISION

16    This is not the first occasion upon which the Shareholders’ Deed has required judicial attention. Earlier this year, Jackman J decided Lake House Corporation Limited v Timor Resources Holdings Pty Ltd [2026] FCA 335. That controversy arose from a proposal associated with the Nepean interests to remove Mr Moyes as independent director and replace him. His Honour upheld Lake House’s construction of the deed, declared the notice of the proposed meeting invalid and restrained the meeting.

17    Several aspects of his Honour’s reasoning matter for present purposes. His Honour held that the Shareholders’ Deed binds TRH and its shareholders as a matter of contract; that its contractual operation does not depend upon establishing that its provisions formally alter the constitution; that cl 2.4 prohibits TRH from undertaking a Schedule 3 matter without the stipulated approval; and that the shareholders are obliged to use their voting rights and available powers of control to procure conformity with that prohibition. His Honour also explained that cl 2.4 is prohibitory in operation and does not itself provide an alternative source of authority permitting a reserved matter to be undertaken.

18    My preliminary view is that those conclusions have an obvious bearing upon the Victoria Park proceeding. Jackman J had no occasion to determine whether the subsequent engagement of Christopher Thompson (as referred to in the Victoria Park proceeding) was an appointment of a chief executive officer or senior manager; whether that transaction required Special Director Approval; whether Lake House possessed and failed to exercise a particular power of control; whether any breach was material or capable of remedy; whether an event of default resulted; what cl 16.4 does to the rights associated with Lake House and its nominee directors; or whether the later conduct amounted to oppression. Needless to say, all those questions seem to arise in the Victoria Park proceeding.

19    One of the directions I propose to make is intended to ascertain whether the propositions decided by his Honour are accepted by all parties to the present controversy, including by those who were not parties to the earlier proceeding. If a party contends that a proposition remains open, it should identify precisely the proposition and the legal basis upon which it is said to remain open.

E    THE TIMOR RESOURCES PROCEEDING

20    The Timor Resources proceeding commenced in August and was initially more confined than it is today. At its inception, it principally concerned access to company documents, records, electronic accounts, passwords and other corporate information said to be held or controlled by Mrs Osborne and Justin Maxwell Dowling.

21    Mrs Osborne had occupied the central executive position in the business as managing director and chief executive officer. Her employment in that capacity came to an end, although she continued as a director. One source of the later controversy has been the distinction between the rights and responsibilities retained by her as a director and the executive powers which TRH says she no longer possessed.

22    The proceeding now includes allegations concerning the retention and use of company property, contraventions of statutory duties, statements said to have been made by Mrs Osborne to the petroleum regulator in Timor-Leste, and acts by which she is said to have acted, or held herself out as entitled to act, for TRH after the cessation of her executive authority.

23    Given the referee’s delay, the parties have agreed upon amendments to the existing timetable. The completed report must first be produced. The parties must then have a reasonable opportunity to consider it, after which the Court can determine questions concerning adoption. Subject to the referee complying with the Court’s orders, I am satisfied that the existing February hearing date is not imperilled by the existing delay.

F    THE CHALLENGE TO RETAINER AND CORPORATE AUTHORITY

24    Another aspect of the Timor Resources proceeding concerns the fundamental question as to whether those who invoked the Court’s jurisdiction in TRH’s name were authorised to do so.

25    It is trite that if solicitors institute proceedings in the name of a corporation without authority, that may have consequences for the regularity of the proceeding, the steps taken in it, costs and the solicitors themselves. That is why challenges to retainer are ordinarily determined with celerity.

26    The Court ought not knowingly to case-manage a proceeding for months, directing evidence and taking interlocutory steps, while leaving unresolved a contention that the corporation in whose name the exercise is undertaken never authorised the proceeding. Nor is it fair to the solicitors to leave hanging over them an allegation that they are conducting litigation without authority. If the point is maintained, it must be exposed and determined.

27    At the first hearing on 27 August 2026, counsel then appearing for Mrs Osborne expressly raised an issue concerning the validity of the retainer of the solicitors purporting to act for TRH. The discussion focused upon the board resolution of 25 June 2026 authorising steps to obtain access to company property and, if necessary, commence litigation. I indicated immediately that the issue required separate and prompt determination if it was to be pursued.

28    Counsel sought an opportunity to take instructions as to whether the point was maintained. That opportunity was given. When the proceeding returned on 2 September 2026, the retainer challenge was not pursued. Counsel also expressly told the Court that Mrs Osborne did not dispute TRH’s entitlement to the company documents identified in the original originating process, and described what remained as practical questions concerning the process by which access and delivery were to occur.

29    An objection to the solicitors’ authority was thus raised in open court and identified as a matter requiring immediate determination if maintained. Counsel sought instructions as to whether it would be maintained. When the matter returned, it was not pursued, and the proceeding thereafter advanced upon the footing that TRH was entitled to obtain its corporate material. Considerable interlocutory activity occurred on that footing.

30    The issue appeared again, at least obliquely, on 16 October 2026. I considered that one proposed order amounted in substance to a backdoor challenge to the retainer and indicated that any such challenge should again be raised directly, rather than introduced indirectly through another order. Again, no direct challenge followed.

31    All this history is relevant because paragraph 116 of Mrs Osborne’s defence now alleges that all or part of the proceeding was commenced or continued without TRH’s authority. As I presently understand the pleading, it raises matters concerning authority to commence the proceeding, the relevant board resolutions and delegations, subsequent ratification, amendment of the proceeding and the possible requirement for Special Director Approval.

32    Any such issue must now be crystallised. If the allegation is that the solicitors lacked authority to institute the proceeding on 17 August 2026, that should be confirmed. If the proceeding is accepted to have been validly instituted, but the requisite authority is said to have disappeared subsequently, that is a different proposition. If the complaint concerns only the substantial amendment made on 19 October 2026, that is another matter again. An argument depending upon the alleged suspension in October of rights associated with Lake House and its nominee directors does not appear logically to explain an absence of authority in August.

33    Of course, if belatedly pursued, a question may arise as to whether the authority contention can continue to be advanced, having regard to the course taken when it was first raised. I express no concluded view about that question. It may require consideration of the proper characterisation of what counsel said on instructions, whether the contention was abandoned or waived, and the Court’s powers and the obligations imposed by the overarching purpose provisions of the Federal Court of Australia Act 1976 (Cth).

G    THE VICTORIA PARK PROCEEDING

34    The Victoria Park proceeding has been brought by four companies associated with the Nepean interests. As foreshadowed above, its immediate focus is an agreement made on 29 September 2026 under which Mr Thompson was to perform the office described in the executed document as “Interim Managing Director”. An earlier draft is said to have described the office as “Chief Executive Officer”.

35    The plaintiffs contend that substance controls nomenclature and that the functions entrusted to Mr Thompson made the engagement an appointment of a chief executive officer or, alternatively, a senior manager within the meaning of the Shareholders’ Deed. They contend, further alternatively, that the agreement was at least an agreement or arrangement to effect such an appointment. If established, the next step in their reasoning is that the transaction was a reserved matter requiring Special Director Approval and, in the circumstances already explained, four affirmative votes.

36    The pleaded case against Lake House invokes cl 2.4 of the Shareholders’ Deed and the obligation recognised by Jackman J to use voting rights and available powers of control to procure conformity with the reserved-matters regime. The plaintiffs say that Lake House had powers available by which it could and should have prevented the transaction occurring without the requisite approval, and that its failure to employ those powers constituted a breach of a material obligation.

37    The alleged consequences are potentially substantial. The primary case is that the breach was incapable of remedy and produced an Event of Default on 1 October 2026. Alternatively, the plaintiffs allege that notice was given on that date, the breach remained unremedied for the requisite cure period, and an Event of Default arose on 20 October 2026. On either basis, they seek to invoke cl 16.4, alleging suspension of Lake House’s rights, voting rights and entitlements, including rights associated with its nominee directors. They further contend that the default activates machinery by which the Nepean shareholders may acquire Lake House’s securities, subject to the additional contractual steps prescribed by the deed. There is also a claim under the oppression provisions of the Corporations Act 2001 (Cth).

38    At present, those matters constitute a pleaded case upon which issues have not yet been joined. The immediate imperative is to close the pleadings and identify the precise controversy. There is already an evident connexion between that case and the authority issue in the Timor Resources proceeding. It also, obviously enough, potentially bears upon the current value of Lake House’s interest in TRH.

H    THE LAKE HOUSE PROCEEDING

39    The Lake House proceeding is distinct. Lake House originally invested in TRH through convertible debt. By 2021, a dispute had emerged, one element of which concerned a loan made by Nepean Resources Australia Pty Ltd (NRA) to TRH. That dispute was followed by a substantial restructuring in June 2022, when Lake House altered its pre-existing investment position, entered a new convertible-note arrangement and committed further substantial funds. The NRA debt was subordinated as part of those arrangements.

40    Lake House now alleges that its decision to enter the restructuring was affected by misleading conduct concerning the true terms and documentary history of the NRA loan. Put shortly, it alleges that the loan documentation was altered in circumstances materially changing TRH’s apparent indebtedness and the period within which the debt was repayable; that the true documentary history was not disclosed; and that Lake House entered the 2022 transactions upon a false understanding of that position.

41    The factual questions bearing upon contravention appear relatively identifiable:

(1)    What were the original terms of the NRA loan?

(2)    What later documents were created?

(3)    Were they altered or backdated?

(4)    When did that occur, by whom and with whose authority?

(5)    What was said to Lake House concerning the amount, priority and repayment terms of the debt?

(6)    What material facts were not disclosed?

(7)    Did the resulting conduct, considered in context, mislead Lake House, and which respondent bears legal responsibility for any contravention established?

42    The questions concerning reliance also appear relatively confined: whether the alleged contravening conduct, if established, materially contributed to Lake House’s decision to alter its pre-existing investment position and enter the 2022 transactions. There are also questions concerning attribution and accessorial liability which need not be detailed here.

43    The allegations are serious, but seriousness does not necessarily entail complexity. On the material presently before me, the case concerning contravention and reliance appears to involve an identified transaction, a defined documentary sequence and a relatively confined set of facts.

44    That said, the respondents today find themselves in a difficult position. The proceeding commenced only yesterday, and the search order was made ex parte. Their representatives have not had the ordinary opportunity to obtain considered instructions about the substantive pleading, work through the documentary record, identify necessary witnesses or advise whether a February hearing is feasible. The resistance expressed today through senior counsel to imposing a timetable directed to a February hearing is entirely understandable.

45    There is, however, an opposing practical consideration. Fewer than three months remain before the February hearing. If no trial-preparation steps are taken until all the work ordinarily required to form a final view about readiness has been completed, the possibility of hearing the matter in February may disappear through effluxion of time. I therefore propose to establish a default position without closing the door upon reconsideration after further instructions have been obtained.

I    THE PROPOSED COORDINATED HEARING

46    My original intention was to list the Lake House proceeding in February only for determination of contravening conduct and responsibility for the alleged contraventions. Mr Hutton SC, however, reminded me of the need for caution in separating questions in proceedings involving misleading or deceptive conduct. He took me to affidavit material read yesterday which gives me pause. On balance, it seems to me it is probably unrealistic to separate contravention from all other issues except quantification of loss.

47    Accordingly, the only issue I propose to defer in the Lake House proceeding is quantification of any loss or damage suffered.

48    As I have explained, Lake House presently holds an equity interest of approximately 48% in TRH. The value of that interest cannot sensibly be divorced from the legal rights accompanying it, which are themselves in controversy, particularly in the Victoria Park proceeding. If the Nepean plaintiffs succeed, an Event of Default may have occurred, rights associated with Lake House’s shareholding or nominee directors may have been suspended, and the Nepean shareholders may become entitled to invoke the contractual acquisition machinery. If they fail, Lake House will hold an asset of a materially different character.

49    I should stress that what I propose about a joint February hearing is not consolidation. The proceedings are to be case managed together but remain distinct. The February hearing will be a substantially coordinated, concurrent hearing. There are likely to be common witnesses and, at least between the first two proceedings, common issues. It is highly likely that findings concerning the reliability of witnesses will bear upon more than one controversy. Fragmenting the matters into successive trials creates a real prospect of witnesses being recalled, documents being tendered repeatedly and related factual questions being examined more than once.

50    There is a further practical difficulty. If the first trial requires substantial credit findings concerning witnesses central to a later, closely related proceeding, questions may arise as to whether the later proceeding should continue before another judge. Reassignment would require much of the corporate history to be canvassed again, with significant further delay and cost.

51    The course upon which I have fastened best facilitates the overarching purpose, provided its pursuit can be reconciled with procedural fairness. I emphasise that it is a default position. If developments in the Lake House proceeding demonstrate that the proposed course is impracticable, no party should feel inhibited from seeking variation of the orders.

J    the next steps

52    I will stand the matters down to allow the parties to refine the draft orders provided to them. I remain open to amendments to the proposed timetable, provided they do not interfere with orderly preparation of the proceedings for a February hearing. The adjournment will also permit further discussion of an interim asset-preservation arrangement pending determination of the interlocutory application.

53    A mediation is already fixed in the Timor Resources proceeding before the Honourable Patricia Bergin SC. Given the connexions between the disputes, the parties should ascertain whether the mediator is willing and available to extend that mediation to the Victoria Park and Lake House proceedings.

54    For those reasons, I propose to make orders along the lines indicated. The matters will stand down until 3:00pm for the parties to bring in short minutes of order.

Associate:

Dated: 11 November 2026

SCHEDULE OF PARTIES