Tzavaras & Sons Pty Ltd [2022] NSWSC 359

“Oi! Let me manage the company I said I didn’t want to manage!”

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One brother, P, tried to wind up a Co, Tee, he owned with his elderly mum and two other brothers. Tee was trustee of a family trust whose ~$5.8m corpus included some real estate related to a family auto repair business formerly operated by Tee: [8], [12]

(There was also a s66G issue that we will ignore.)

P had left the auto repair business in 2012: [22] - [26]

In a 2012 letter, P’s lawyers wrote a letter confirming P intentionally “walked out” of the family business: [28]

P did not attend any meetings of the Tee from 2012 though received and signed some occasional documents: [29]

One of the D brother’s auto repair business later operated from the Tee’s real estate rent free from around 2013: [19]

P claimed he was oppressed as a shareholder of Tee by: having been excluded from management [50], having not received dividends or the benefit of a loan account [51], Tee failing to charge the D brother’s business rent [52], the Tee losing money on a failed transaction [53], and the other brothers having rent-free benefit of the Tee’s holiday apartment [54]

P tendered accounting evidence based on the incorrect assumption that the value of the shares in a trustee Co was proportionate to the assets of the trust: [67]

P pressed for a windup, and no other remedy.

P was unwilling to meaningfully re-engage, apparently believing he would have to work for D brother free to do that. P complaint about rent free use of the Tee’s premises range hollow when he did the same thing with his race cars: [75]

In relation to P’s oppression claims, the Court found: it was not oppressive for P not to be involved day-to-day management of the Tee where he had expressed a wish to cut ties [229] and if that was wrong then the remedy is for P to be provided with notices of future meetings and company documents, not a winding up: [230]

While a failure to pay dividends may be oppressive, here no dividends were paid to any shareholder and drawings were made as part of a regime P absented himself from including for elderly mum’s benefit: [232]

D brother’s business occupying the Tee property rent free could be oppressive, but the remedy would not be wind up the Tee, but to direct it to charge rent: [234]

The directors of the Tee falling victim to a financial fraud was not oppressive: [235], [193]

The use of the holiday unit rent free is not prohibited nor oppressive: [236]

P failed in all of his oppression claims: [237]

If oppression had been made out, the windup sought by P would not have been the appropriate relief: [245]

P’s also failed in seeking a windup on the just and equitable basis: [258]

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