BOSTON -v- ELLENA PTY LTD [2026] WASC 363

[2026] WASC 363 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : BOSTON -v- ELLENA PTY LTD [2026] WASC 363 CORAM : WHITBY J HEARD : 25 AUGUST 2026 DELIVERED : 28 AUGUST 2026 FILE NO/S : COR 22 of 2026 BETWEEN : MARY THERESE BOSTON First Plaintiff MT BOSTON NOMINEES PTY LTD AS TRUSTEE OF THE MARY THERESE FAMILY TRUST Second Plaintiff AND ELLENA PTY LTD First Defendant PHILLIPPA MARY COLEMAN Second Defendant IRENE MARGARET COLEMAN Third Defendant ROBERT COLEMAN INVESTMENTS PTY LTD Fourth Defendant R.J. COLEMAN HOLDINGS PTY LTD Fifth Defendant FREMANTLE BOND STORE PTY LTD Sixth Defendant -- 1 of 20 -- [2026] WASC 363 Page 2 Catchwords: Corporations - Resolution by company to engage real estate agent to advertise group companies' properties for sale - Whether that constitutes oppressive conduct contrary to s 232 of the Corporations Act 2001 (Cth) - Application for interlocutory injunction pursuant to s 1324(4) of the Corporations Act 2001 (Cth) to restrain meeting to pass resolution - No prima facie case of oppression established Legislation: Corporations Act 2001 (Cth) s 232, s 233, s 1324 Result: Application for interlocutory injunction dismissed Category: B Representation: Counsel: First Plaintiff : No appearance Second Plaintiff : W C J Zappia SC and C M Beetham First Defendant : No appearance Second Defendant : C Slater Third Defendant : C Slater Fourth Defendant : No appearance Fifth Defendant : No appearance Sixth Defendant : No appearance Solicitors: First Plaintiff : No appearance Second Plaintiff : McNally & Co Litigation First Defendant : No appearance Second Defendant : Ensign Legal -- 2 of 20 -- [2026] WASC 363 Page 3 Third Defendant : Ensign Legal Fourth Defendant : No appearance Fifth Defendant : No appearance Sixth Defendant : No appearance Case(s) referred to in decision(s): Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 Land Surveys Pty Ltd v PG Rocket Holdings Pty Ltd [2026] WASC 304 Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 Morara v Kingslane Property Investments Pty Ltd [2019] WASC 136 Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 Tzavaras v Tzavaras & Sons Pty Ltd [2023] NSWCA 168 -- 3 of 20 -- [2026] WASC 363 WHITBY J Page 4 WHITBY J: 1 The late Robert Coleman ran a successful transport business in Fremantle and regional Western Australia and acquired a substantial portfolio of commercial properties as part of his business. In 2003, as part of a settlement of court proceedings, the transport business and associated properties were put under the control of Mr Coleman's sons and other properties were put under the control of his three daughters, Mary Boston, Phillippa Coleman and Irene Coleman. I will refer to the individuals in these reasons by their first names, with no disrespect intended. 2 Since 2003, Mary, Phillippa and Irene have effectively run the business of leasing out and developing the land holdings originally acquired by Mr Coleman. 3 On 19 February 2026, Mary and MT Boston Nominees Pty Ltd as trustee of the Mary Therese Family Trust (Boston Nominees) (the first and second plaintiffs) commenced these proceedings against Phillippa and Irene and various companies. Mary is seeking orders for, inter alia, leave pursuant to s 237(1) of the Corporations Act 2001 (Cth) (CA) to bring proceedings on behalf of Ellena Pty Ltd (the first defendant) (Ellena) against the second to sixth defendants for oppressive conduct and breach of directors' duties. Boston Nominees is seeking orders, inter alia, for Phillippa and Irene to be removed as directors of the companies and independent directors to be appointed. It also seeks an order that the trusts established by Phillippa and Irene sell their shares in Ellena to Boston Nominees. 4 By interlocutory process dated 13 August 2026, Boston Nominees seeks an urgent interlocutory injunction to: (a) restrain Ellena, Phillippa and Irene, (the first, second and third defendants respectively) from moving, passing or acting upon a resolution the subject of a notice of meeting of the first defendant dated 6 August 2026, or a resolution to like effect, whether at the meeting of the first defendant scheduled to take place on 18 August 2026, or otherwise; and (b) to restrain each defendant from engaging Shellabears or any other agent to market for sale, sell, transfer or encumber, specified properties, save that nothing in the restraints shall prevent any defendant from leasing those properties in the ordinary course of business. -- 4 of 20 -- [2026] WASC 363 WHITBY J Page 5 5 It is this application that is before me for determination. 6 In support of the application, the second plaintiff relies on: (1) the affidavits of Christina Therese Blair sworn 30 January 2026 (First Blair Affidavit) and 24 August 2026 (Second Blair Affidavit); (2) the affidavits of Robert Anthony Boston sworn 5 February 2026 (First R Boston Affidavit), 13 August 2026 (Third R Boston Affidavit), 20 August 2026 (Fourth R Boston Affidavit) and 20 August 2026 (Fifth R Boston Affidavit); (3) the affidavits of Mary Therese Boston sworn 19 February 2026 (First M Boston Affidavit), 8 May 2026 (Third M Boston Affidavit) and 6 July 2026 (Fourth M Boston Affidavit). 7 The second plaintiff has provided an undertaking as to damages in the usual form. 8 In opposition to the application, the second and third defendants rely upon the affidavit of Irene Margaret Coleman sworn 24 August 2026 (I Coleman Affidavit) and the affidavit of Phillippa Mary Coleman sworn 24 August 2026 (P Coleman Affidavit). 9 The parties each filed written submissions and made oral submissions at the hearing on 25 August 2026. Background facts 10 Mary, Phillippa and Irene are directors of companies within the same group and are in dispute about the management of the business conducted through those companies. Ellena is the group holding company. Robert Coleman Investments Pty Ltd (the fourth defendant) (RCI) is a wholly owned subsidiary of Ellena. R. J. Coleman Holdings Pty Ltd (the fifth defendant) (RJC) and Fremantle Bond Store Pty Ltd (the sixth defendant) (FBS) are wholly owned subsidiaries of RCI. 11 Ellena has three issued shares. Those shares are held in trust for the beneficiaries of trusts established by Mary, Phillippa and Irene. Boston Nominees holds one of those shares as trustee for the Mary Therese Family Trust - the trust established by Mary. Mary and her children, Robert Boston, Reginald Boston and Christina Blair are directors of Boston Nominees. -- 5 of 20 -- [2026] WASC 363 WHITBY J Page 6 12 Ellena, RCI, RJC and FBS each have three directors - Robert (as alternate director to Mary), Phillippa and Irene. Phillippa is the company secretary of each of these companies. 13 RCI is the registered proprietor of Unit 1, 9 Sainsbury Road, O'Connor. 14 RJC is the registered proprietor of the following properties: (1) 2 Stockdale Road, 0'Connor (O'Connor Property); (2) 227 Hampton Road, South Fremantle; (3) 7 Brockman Place, South Fremantle; (4) 8 Brockman Place, South Fremantle; (5) (e) 9 Brockman Place, South Fremantle; (6) 221 Hampton Road, South Fremantle; (7) 223 Hampton Road, South Fremantle; (8) 229 Hampton Road, South Fremantle (collectively the South Fremantle Properties); 15 FBS is the registered proprietor of the following properties: (1) 41 Wood Street, Fremantle; (2) 39 Wood Street, Fremantle; and (3) 61-69 Knutsford Street, Fremantle (together the White Gum Valley Properties). 16 Robert Boston deposes that: (1) the O'Connor Property consists of 12,800 sqm of large bulky good tenancies and, if fully occupied, is worth approximately $45 million; and (2) the South Fremantle Properties are large parcels of contiguous commercial land totalling 23,000 square metres and their undeveloped value is approximately $15 million; and -- 6 of 20 -- [2026] WASC 363 WHITBY J Page 7 (3) the White Gum Valley Properties have a combined landholding of 16,000 square metres and their undeveloped value is approximately $14 million. 17 Mary and Boston Nominees allege that Phillippa and Irene, as self-appointed executives and full-time employees of the group of companies, have run the group to the exclusion of Mary. 18 Boston Nominees has made this urgent application in the context of Ellena issuing, by email on 6 August 2026 at 4.04 pm, a notice of a meeting on 18 August 2026 for a vote and resolution on the following:1 The directors resolve that Ellena Pty Ltd authorises Irene Coleman to engage on its behalf and on behalf of each of its subsidiaries, Shellabears to advertise the sale of the properties in the proposal in the manner described in the proposal and that Irene Coleman shall have sole authority to instruct Shellabears in relation to the proposal. (Proposed Resolution) 19 On 14 August 2026, Phillippa and Irene filed an undertaking to the effect that they would not call a meeting of the directors of Ellena, RCI, RJC or FBS prior to 1 September 2026. The proceedings 20 The plaintiffs allege that Phillippa and Irene have conducted the affairs of the group companies in a manner that is oppressive to, unfairly prejudicial to or unfairly discriminatory contrary to s 232 and s 233 of the CA by mismanaging the group's business to the detriment of the group and the companies' members. 21 Mary seeks leave under s 237 of the CA to commence proceedings on behalf of Ellena, RCI, RJC and FBS. That application was heard by Hill J on 11 May 2026 and her Honour's decision is reserved. 22 Boston Nominees brings its own oppression action against Ellena. It does not require leave to do so. Boston Nominees seeks a declaration that certain conduct is oppressive and an order that Phillippa and Irene be removed as directors of the companies and independent directors be appointed. It seeks compensation and/or an order that the trusts established by Phillippa and Irene sell their shares in Ellena to Boston Nominees. 1 Third R Boston Affidavit [8]; Attachment 'RAB98'. -- 7 of 20 -- [2026] WASC 363 WHITBY J Page 8 23 Boston Nominees alleges the following oppressive conduct of the affairs of Ellena: (1) payments made to Irene for financial years 2023 and 2024, for her conduct in running the affairs of Ellena and its subsidiaries; (2) payments made to Phillippa for financial years 2023 and 2024, for her conduct in running the affairs of Ellena and its subsidiaries; (3) failures of Phillippa and Irene to provide meaningful access to Mary or her alternate director, Robert, of Ellena and the group companies' books, accounts, records (including meeting minutes, financial statements, banking facility terms and details of tenancies and lease) in accordance with numerous requests made by Robert; (4) failure to expeditiously progress Boston Nominees' request made on 2 December 2024 under s 293 of the CA Act for the audit for financial year 2024; and (5) failure to tenant, maintain, manage and market the group's properties in the way that a reasonable landlord would. 24 By this application, Boston Nominees seeks to amend its originating process to also seek a declaration that the Proposed Resolution or resolutions of Ellena the subject of the notice of meeting given by Irene by email dated 6 August 2026 was contrary to the interests of the members of Ellena as a whole or oppressive to, unfairly prejudicial to, or unfairly discriminatory against Boston Nominees as a member of Ellena.2 An amendment in those terms was not opposed by the defendants. I grant the second plaintiff leave to amend the originating process in those terms.3 The application for an urgent interlocutory injunction 25 The application is made pursuant to s 1324(4) of the CA, alternatively in the inherent jurisdiction of the court. Boston Nominees submits it has established a prima facie case of oppression and there is a serious question to be tried. Boston Nominees says the balance of convenience favours the making of the injunction. 2 Further amended originating process dated 13 August 2026 [10(ea)]. 3 The second plaintiff also seeks leave to amend the originating process in a number of other respects. Other than the amendment to 10(ea), I have not determined the application to amend in the terms sought by the further amended originating process dated 13 August 2026. -- 8 of 20 -- [2026] WASC 363 WHITBY J Page 9 26 On 18 August 2026, Phillippa and Irene signed and filed an undertaking by which they undertake to Boston Nominees and to the court that they will: …not enter any arrangement binding the First and Fourth to Sixth Defendants to sell any real property without first receiving an offer and recommendation from an agent and presenting that information to a directors' meeting convened on at least 7 days' notice, and the board of the relevant company approving the sale of any real property. 27 Phillippa and Irene say that there is no evidence upon which the court could find that there is a serious question to be tried and that the balance of convenience does not favour the grant of the orders. Legal principles on application for interlocutory injunction 28 The principles governing the grant of an interlocutory injunction are well settled. They are equally applicable to an application made at general law and to an application made for an interlocutory injunction (where the applicant is a private litigant, as in this case) pursuant to s 1324(4) of the CA.4 29 In determining whether to grant an interlocutory injunction the court must consider whether the plaintiff has made out a prima facie case and whether the balance of convenience favours the grant of the injunction.5 30 In order to establish a 'prima facie case', the plaintiff does not have to show that it is more probable than not that the plaintiff will succeed at trial. It is sufficient that the plaintiff shows a sufficient likelihood of success to justify the preservation of the status quo pending the trial.6 31 The court must also consider whether the inconvenience or injury that the plaintiff would likely suffer if an injunction were refused is outweighed by the prejudice that the defendant would suffer if an injunction were granted.7 The question as to whether damages would be an adequate remedy is an aspect of the balance of convenience. 8 32 The enquiries relating to a prima facie case and the balance of convenience are related, not independent, enquiries.9 As the strength of 4 Morara v Kingslane Property Investments Pty Ltd [2019] WASC 136 [ 53]. 5 Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [87] (Minerology). 6 Mineralogy [87]. 7 Mineralogy [87]. 8 Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 [130] - [131]. 9 Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] - [12]. -- 9 of 20 -- [2026] WASC 363 WHITBY J Page 10 the plaintiff's case diminishes, the court will place more weight on considerations of balance of convenience and the practical consequences that flow from the granting of the injunction. Legal principles applicable to oppression 33 The relevant statutory provisions in relation to oppressive conduct are contained in pt 2F.1 of the CA: Part 2F.1 - OPPRESSIVE CONDUCT OF AFFAIRS 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. … 233 Orders the Court can make (1) 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; -- 10 of 20 -- [2026] WASC 363 WHITBY J Page 11 (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. 34 'Affairs' for the purposes of s 232(a) is defined in s 53 of the CA. 35 The general principles applicable to s 232 and s 233 of the CA are also well established. They were summarised in Tzavaras v Tzavaras & Sons Pty Ltd and, relevant to this application, include:10 (1) the test of oppression is an objective one of commercial unfairness; (2) conduct may be oppressive even if it is otherwise completely lawful; (3) it involves a consideration of whether, on the balance of probabilities, the objective commercial bystander, being a reasonable director, would be satisfied that the affairs of the company were being conducted unfairly; and (4) the court has a wide discretion under s 233 as to the appropriate remedy. 36 Wrongful exclusion from management may also be considered a form of oppression.11 10 Tzavaras v Tzavaras & Sons Pty Ltd [2023] NSWCA 168 [74]; see also Morara Pty Ltd v Kingslane Property Investments Pty Ltd [2024] WASCA 123 [78]. 11 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 [176]. -- 11 of 20 -- [2026] WASC 363 WHITBY J Page 12 Alleged oppressive conduct Boston Nominees' allegations of oppressive conduct 37 Boston Nominees submits that the ongoing and cumulative conduct of Phillippa and Irene is oppressive of and prejudicial to its interests contrary to s 232 of the CA. 38 By this application, it is the passing of the Proposed Resolution that is sought to be restrained. Notwithstanding that is the conduct that is sought to be restrained, Boston Nominees submits that such conduct must be assessed in the context of the oppressive conduct of Phillippa and Irene that has preceded the Proposed Resolution and the fact that these proceedings have been commenced seeking relief for that oppressive conduct. 39 Boston Nominees has filed a large volume of evidence from Robert, Mary and Christina detaililng instances of alleged oppressive conduct. I do not propose to traverse those matters for reasons I will explain shortly. 40 Senior Counsel for Boston Nominees submitted that if the Proposed Resolution was passed, a sale of the group properties was a 'certainty' given that Irene has told Robert that she would unilaterally sell all of the group's assets and ensure that his family could not buy any of them.12 41 Senior Counsel for Boston Nominees contends that the passing of the Proposed Resolution would amount to oppressive conduct in that it excludes Boston Nominees, Mary's 'branch' of the family enterprise, from any role in the disposal of the group's entire enterprise, it is sought to be passed while information and valuations are withheld, it is unaccompanied by any offer or fair arrangement for the minority and it would transform the group enterprise by the majority direction in the midst of these proceedings. 42 In my view, Boston Nominees' assertion that the passing of the Proposed Resolution amounts to oppressive conduct rests upon a finding that it has a prima facie case that any sale of the group properties without its approval when these proceedings are on foot would amount to oppressive conduct on the part of Ellena. It then follows it says that any advertising of the properties for sale with the aim of selling the properties is oppressive - irrespective of the terms of 12 First R Boston Affidavit [94]. -- 12 of 20 -- [2026] WASC 363 WHITBY J Page 13 any proposed sale. Boston Nominees says that it has established this prima facie case on the basis that the foundational understanding of Mary, Phillippa and Irene, and the basis upon which they took over control of the group properties in 2003, was that they would be run as a long-term property portfolio with equal participation from each of them. Boston Nominees says that this understanding is consistent with the way in which the group business has been conducted since that time, save for the more recent oppressive conduct engaged in by Ellena, Phillippa and Irene by which they seek to exclude Mary from management and to further their own interests to the detriment of Mary and Boston Nominees. 43 Boston Nominees alleges that by advertising the group properties Ellena intends to sell the properties and their sale would be the inevitable consequence of the passing of the Proposed Resolution. Any sale of the group properties would foreclose the relief sought by Boston Nominees that it purchase the shares of the trust companies associated with Phillippa and Irene, and thereby serve to further oppress Boston Nominees as a minority shareholder. 44 Boston Nominees relies upon the fact that Irene has made threats to sell the group properties in response to these proceedings and the terms of the Shellabears proposal, referred to in the Proposed Resolution, to make good the submission that the passing of the Proposed Resolution would lead to the inevitable sale of the group properties. 45 Turning first to the alleged threats made by Irene to sell the group properties in response to the commencement of these proceedings, the evidence relied upon is as follows: (1) at a meeting between Irene, Phillippa and Robert on 12 June 2026, Irene said words to the effect of 'we (being a reference to Phillippa and Irene) want to sell the properties and that we could do it by agreement. The properties should be sold and split equally three ways';13 (2) at the same meeting Irene later said words to the effect 'you're going to court to fight one way and we are going to court to sell the whole thing and split it three ways; and the other things is, 13 Third R Boston Affidavit [31]; Attachment 'RAB113' -- 13 of 20 -- [2026] WASC 363 WHITBY J Page 14 your mother won't be able to stay in that house, so you can let her know that too'.14 46 Turning next to the Shellabears proposal, which states:15 We recommend a set date sale, not an auction. There is no public passed-in result to damage your negotiating position… And after the close, control sits entirely with you - no obligation to accept anything. 47 Boston Nominees submits that the statements made by Irene expressing her intention to sell the properties, combined with the 'set date sale' proposed by Shellabears, which are the terms upon which Shellabears would be engaged if the Proposed Resolution is passed, establish that there is prima facie case that the passing of the Proposed Resolution would inevitably result in a sale of the group properties and is therefore oppressive. Phillippa and Irene's response to allegations of oppressive conduct 48 It is Phillippa and Irene's position that Boston Nominees has failed to establish that it has a prima facie case that the passing of the Proposed Resolution is oppressive conduct contrary to the CA. This is because, they say, the application proceeds on the false premise that the Proposed Resolution would permit Irene, acting alone, to accept an offer to purchase the group properties. However, the Proposed Resolution does not provide for that outcome - they say there is no link between the advertisement of the group properties for sale and either diminished shareholder value or a diminution in shareholder entitlements that gives rise to a prima facie case of oppression. 49 Phillippa and Irene submit that the provision of their undertaking dated 18 August 2026 means that no offer to purchase the group properties (or any of them) can be accepted without a meeting of directors, with seven days' notice of such meeting to be provided to Boston Nominees, called to consider the offer. Is there a serious question to be tried? 50 Contested factual matters ought not be determined on the hearing of this interlocutory application. What I am required to determine is whether Boston Nominees has, taking the evidence at its highest, established a prima facie case of oppressive conduct of the affairs of 14 Fifth R Boston Affidavit [6]. 15 Third R Boston Affidavit; Attachment 'RAB98' page 17. -- 14 of 20 -- [2026] WASC 363 WHITBY J Page 15 Ellena. That requires me to first determine what the conduct is alleged to be said by Boston Nominees to constitute oppressive conduct. 51 For the purposes of this application, based upon Robert's affidavit evidence I am prepared to accept that Boston Nominees has established that it has a prima facie case that Ellena, Irene and/or Phillippa's conduct in respect of the following broad allegations is oppressive: (1) payments made to Irene for financial years 2023 and 2024, for her conduct in the running the affairs of Ellena and its subsidiaries; (2) payments made to Phillippa for financial years 2023 and 2024, for her conduct in the running the affairs of Ellena and its subsidiaries; (3) failures of Phillippa and Irene to provide access to Mary or her alternate director, Robert, of Ellena and the group companies' books, accounts, records (including meeting minutes, financial statements, banking facility terms and details of tenancies and lease) in accordance with numerous requests made by Robert; (4) failure to expeditiously progress Boston Nominees' request made on 2 December 2024 under s 293 of the CA Act for the audit for financial year 2024; and (5) failure to tenant, maintain, manage and market the group's properties in the way that a reasonable landlord would. 52 As I accept these matters give rise to a prima facie case of oppressive conduct of the affairs of Ellena, I have not traversed the conduct in detail in these reasons. 53 But it is not the conduct detailed above that Boston Nominees seeks to injunct in this application. In my view, the relevant 'oppressive conduct' for the purposes of this application is the passing of the Proposed Resolution only because it is that conduct which Boston Nominees seeks to injunct. 54 Senior Counsel for Boston Nominees placed significant weight on the history of the relationship between Mary, Phillippa and Irene and of the group enterprise and the fact that the Proposed Resolution is sought to be passed whilst these proceedings are on foot. Senior counsel submitted in that context, and the given the foundational understanding -- 15 of 20 -- [2026] WASC 363 WHITBY J Page 16 upon which the group enterprise was formed, in conjunction with the oppressive conduct engaged in by Phillippa and Irene over many years, the passing of the Proposed Resolution is designed to ultimately achieve a sale of the group properties and is therefore oppressive. 55 Boston Nominees says that given Phillippa and Irene's past oppressive conduct and their express statement of an intention to sell, there is no doubt they would both vote in favour of accepting an offer to purchase the group properties, irrespective of any opposition to a sale by Boston Nominees. 56 The issue that Boston Nominees has, in my view, failed to adequately engage with on this application is how it is that the Proposed Resolution - a resolution which authorises Irene to appoint an agent to advertise the properties for sale - constitutes oppressive conduct. There is no basis upon which it is asserted that the passing of the Proposed Resolution, in the absence of an actual sale of the properties, would have a negative impact on the value of Ellena's shares or the entitlements of its shareholders. Further, there is no evidence before this court capable of establishing a prima facie case that engaging an agent and advertising the properties for sale diminishes the value of the properties or affects the shareholder entitlements such as to amount to oppressive conduct. 57 In fact, I am positively satisfied that the passing of the Proposed Resolution would not have either of those consequences. The Proposed Resolution provides for the advertising of the group properties in accordance with the Shellabears proposal and for Irene to have sole authority to instruct Shellabears in relation to that proposal. The Proposed Resolution does not authorise Ellena to sell the group properties, nor does it oblige it to. Neither does the Proposed Resolution authorise Phillippa or Irene to accept an offer for any of the group's properties. If there was any doubt as to that, the terms of the undertaking that Phillippa and Irene have provided to the court make it clear that they will not accept any offer without a process of board approval, on notice to Boston Nominees, being followed. 58 The Shellabears proposal does not impose an obligation on Ellena to accept any offer and provides that a commission is payable to Shellabears only upon the sale of the properties. Further, the evidence before the court, that being a mere assertion of Boston Nominees, is not capable of establishing a prima facie case that the foundational understanding of the group enterprise was that the group properties -- 16 of 20 -- [2026] WASC 363 WHITBY J Page 17 would never be sold, or at least not be sold during the lifetimes of Mary, Phillippa and Irene. I do not accept Senior counsel for Boston Nominees' submission that any sale of the group properties during the course of these proceedings would constitute oppressive conduct. 59 As Gething J observed in Land Surveys Pty Ltd v PG Rocket Holdings Pty Ltd,16 in a case where there is a majority interest in a company, 'there can be a continuum of conduct in the affairs of a company from legitimate differences of opinion on how to optimally manage the company through to conduct which an objective commercial bystander would regard as unfair.' This observation is apposite to this case - it cannot be that any sale of the properties during the course of the proceedings would amount to oppressive conduct, but it may well be that Boston Nominees could establish a prima facie case that a sale of the properties on certain terms would be oppressive conduct. The problem for Boston Nominees in making out a prima facie of oppressive conduct at this time is that no offer is yet proposed to be accepted by Ellena. The merit of any allegation of oppressive conduct cannot be assessed until Ellena, by a majority of its directors, proposes to accept an offer to purchase the group properties on specified terms. At this stage of the proceedings, it is only a hypothetical question as to whether any proposed sale of the properties would be oppressive. 60 In my view, the engaging of an agent for the purpose of advertising of the properties for sale is a management decision about which there may be legitimate differences of opinion as to who may be the best agent, the way in which the advertising will be conducted and the person within the group who should instruct the agent. This conduct, in the absence of any diminished shareholder value or change to shareholder entitlements, does not give rise to prima facie case of oppression. 61 The advertising of the properties for sale may assist all three directors of Ellena to make an informed commercial decision as to the value of the group of companies. Boston Nominees seeks an order in these proceedings that the majority shareholders sell their shares to Boston Nominees. The proposed course of action in advertising the properties for sale may well assist Boston Nominees to achieve this outcome through a negotiated resolution of these proceedings. The advertising of the group properties for sale may provide the parties with 16 Land Surveys Pty Ltd v PG Rocket Holdings Pty Ltd [2026] WASC 304 [107]. -- 17 of 20 -- [2026] WASC 363 WHITBY J Page 18 a 'real' market value of the properties, as opposed to a licensed valuation. 62 The Proposed Resolution seeks to appoint Irene as the authorised instructor in relation to the advertising of the properties. It does not purport, as alleged by Boston Nominees, to authorise Irene, and Irene alone, to sell the group's properties. In my view, this is appropriately characterised as a commercial management decision where there may be legitimate differences of opinion as to the most effective manner of advertising and who conducts the advertising, as opposed to a commercial decision which an objective commercial bystander would regard as unfair. 63 In the circumstances of this case, I am satisfied that an objective commercial bystander, being a reasonable director, would not view the actions of Phillippa and Irene in passing the Proposed Resolution, in circumstances where it is accompanied by Phillippa and Irene's undertaking, as unfair. 64 I am not satisfied that Boston Nominee has made a prima facie case that Ellena, Phillippa and/or Irene will, by the passing of the Proposed Resolution, be conducting the affairs of Ellena in a manner that is oppressive, prejudicial and contrary to the interests of the second plaintiff as a shareholder of Ellena in contravention of s 232 of the CA. 65 In the absence of establishing such a prima facie case, Boston Nominees' application for an interlocutory injunction cannot succeed. 66 However, I make the following observations in relation to the balance of convenience. 67 Firstly, there is no risk of the properties being undervalued by the mere engagement of agents to advertise the properties for sale. That is a matter that can only be assessed having regard to the terms on any offer that is proposed to be accepted. 68 Secondly, advertising the properties for sale does not transform the members' investment or foreclose the relief sought by Boston Nominees. 69 Thirdly, advertising the properties for sale does not give Phillippa and Irene the ability to dissipate the assets of the group. -- 18 of 20 -- [2026] WASC 363 WHITBY J Page 19 70 Fourthly, advertising the properties does not give rise to any adverse tax consequences. 71 Fifthly, the restraints sought by Boston Nominees do not, as it submits, preserve the status quo. The effect of the restraints sought would be to preclude Ellena from doing something that it has always had the ability to do - advertise properties for sale. Further, the restraints would elevate the position of one director, in this case Robert as alternate for Mary, so as to allow a minority to veto the passing of the Proposed Resolution. That is contrary to the status quo provided for by Ellena's constitution - questions arising at a meeting of directors shall be decided by a majority of votes of directors entitled to vote on a resolution.17 72 In my view, for these reasons the balance of convenience would also favour the refusal of the injunction. Orders 73 The second plaintiff's interlocutory process dated 13 August 2026 so far is it seeks relief in order 3 thereof, is dismissed. The orders sought by orders 1 and 2 thereof are referred to the CMC Judge managing this proceeding. 74 I also order that the second plaintiff have leave to amend the originating process in terms of [10(ea)] of the further amended originating process dated 13 August 2026. 17 Affidavit of Phillippa Mary Coleman sworn 29 April 2026 [8]; Annexure 'PMC 02' cl 68(1). -- 19 of 20 -- [2026] WASC 363 WHITBY J Page 20 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CS Associate to the Hon Justice Whitby 28 AUGUST 2026 -- 20 of 20 --