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shareholder oppression

Does shareholder oppression apply to a private equity fund?

by

Dundas Lawyers

reviewed by

Malcolm Burrows

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13–19 minutes
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Quick summary of shareholder oppression in private equity

It can.  Sections 232 and 233 of the Corporations Act 2001 (Cth) (Corporations Act) apply to companies, not limited partnerships, but where companies manage a fund's limited partnerships, the companies' affairs include the partnerships' business.  A fifty per cent (50%) shareholder excluded from management can then obtain a buy-out of its shares and of related partnership interests.

Key insights

  • The oppression remedy in the Corporations Act applies to companies, but it can reach a limited partnership through the companies that run it.
  • In 2025 the Federal Court held that excluding a founding director from a private equity fund was oppressive, although the resolutions used were legally valid.
  • An equal shareholder can claim oppression where it does not have the power to prevent the oppression.
  • The Court ordered a buy-out of both the shares in the management companies and the limited partnership interests.
  • The buyer was the side able to pay, so that the buy-out would actually be carried out.

On this page

An equal shareholder in a private equity fund was oppressed, and won a buy-out of its shares and of related partnership interests, in WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd [2025] FCA 622 (WIJOAV v Goldstone).  Ms Alexandra Commins and Mr James Angelis owned the fund's management companies equally, but the fund itself was held in limited partnerships, which the oppression remedy does not cover directly.  The Federal Court held that the companies' affairs included running the partnerships, that excluding Ms Commins from management was oppressive, and that Mr Angelis's side must buy out hers.[1]  This article explains how the Court reached each conclusion and what it means for investors in private equity and joint venture structures.  For an overview of how we help, see our shareholder oppression lawyers page.

——— The structure

Can the oppression remedy apply to a limited partnership?

Not directly.  Sections 232 and 233 apply to companies, but where companies run a limited partnership, the partnership's business can be part of the companies' affairs.

Justice Jackman noted at the outset that sections 232 and 233 of the Corporations Act apply to companies, but not directly to partnerships that are not registered under or generally subject to the Corporations Act.  Counsel had found no earlier case on how the oppression provisions extend to limited partnerships managed by a company, which Justice Jackman described as an important issue for private equity structures.[2]

The Goldstone Private Equity Fund (Goldstone Fund) had four (4) entities.  Two (2) were companies, Goldstone Private Equity Pty Ltd (Goldstone PE) and Goldstone Fund Management Pty Ltd (Goldstone FM), each owned fifty per cent (50%) by WIJOAV Services Pty Ltd (WIJOAV), Ms Commins's company, and fifty per cent (50%) by Angel Holdco Pty Ltd (Angel Holdco), Mr Angelis's company.  The other two (2) were limited partnerships under Part 3 of the Partnership Act 1892 (NSW) (Partnership Act): Goldstone Private Equity VCLP, LP (VCLP), which held the investments, and Goldstone Private Equity VCMP, LP (VCMP), its general partner.  Mr Angelis, Angel Holdco and his other entities were the defendants associated with him (Angelis Defendants).[3]

Angel Holdco, the only limited partner of VCLP, committed $100 million, of which $32 million had been called and paid.  Goldstone PE managed VCLP, and Goldstone FM was the general partner of VCMP.[4]

The Court held that the companies' affairs included managing both partnerships.  Section 53 defines a company's affairs broadly, the shareholders' deed set the companies' objectives as carrying on that business, and the only way VCMP could act was through Goldstone FM.  Control of the two (2) companies therefore decided who controlled the partnerships.[5]

In short, a limited partnership is not a company, but the companies that run it are, and their affairs can include the partnership's business.

——— The dispute

What happened in WIJOAV v Goldstone?

Mr Angelis terminated Ms Commins's employment for alleged serious misconduct, then used the partnership deed to move control of the fund to new companies he owned.

Ms Commins, who has spent over twenty-five (25) years in private equity, set up the fund with Mr Angelis in 2023.  She was its managing director and WIJOAV's appointee to the boards of both companies.[6]

The relationship broke down over Neighbourly, a strata management group in which VCLP held sixty-three per cent (63%) of the shares.[7]  Mr Angelis wanted Neighbourly's insurance broking moved to Clearlake, his son's business, while Ms Commins wanted legal advice first.  The Court found that this was the real reason Mr Angelis sought to terminate her employment.[8]

On 27 February 2025, Mr Angelis told Ms Commins that her employment was terminated for gross misconduct, and later that day claimed that her directorships had become vacant and that WIJOAV would have to sell its shares.[9]  On 1 April 2025, after Ms Commins had started proceedings, he applied to wind up VCMP and caused four (4) resolutions to be passed that removed VCMP as general partner and Goldstone PE as manager of VCLP, and appointed two (2) companies he owned, incorporated the day after the termination.[10]  Ms Commins was then shut out of the offices and computer systems.[11]

The Court rejected all nine (9) particulars of the alleged misconduct.  No reasonable person could have formed the opinion that Ms Commins had engaged in serious misconduct, so her termination and her removal from the boards were invalid.  Justice Jackman also found that Mr Angelis was not a reliable or credible witness.[12]

In short, Mr Angelis took control of the fund through the partnership documents, not through the companies.

——— Equal shares

Can an equal shareholder claim oppression?

Yes.  A fifty per cent (50%) shareholder is not barred from relief, especially where it cannot itself prevent the oppression.

The Angelis Defendants argued that where shareholders have equal votes and each is a director, there can be no oppression through the company's machinery.  Justice Young had noted, in an earlier case, the conceptual difficulties of applying the oppression principle to a company owned equally by two (2) people of equal strength, but did not decide the point.[13]

Justice Jackman preferred the view of Justice Le Miere in Patterson v Humfrey [2014] WASC 446 (Patterson), who held:

"There is no reason in principle why a holder of 50% of the shares of a company should be denied relief under s 232."[14]

In Patterson, the statutory power was said to be necessary only where an applicant does not itself have the power to prevent oppression.[15]  Justice Jackman applied that reasoning:

"Accordingly, this is not a case in which an evenly divided shareholding corresponded to equality of power in controlling the companies' affairs."[16]

Angel Holdco did not need a majority of the shares.  It used its position as the only limited partner of VCLP to take control of the fund.[16]  See also our article on equal ownership and shareholder oppression.

In short, the question is who has the power, not who has the most shares.

——— Oppression

Why was the exclusion oppressive?

Because WIJOAV had a right to take part in management through its appointed director, and it was shut out for an improper reason.

Oppression under section 232 means commercial unfairness, judged objectively through the eyes of a commercial bystander and by its effect rather than its motive.  Conduct can be oppressive even if it is otherwise lawful.[17]

Removing VCLP from the companies' control and handing it to Mr Angelis's new entities was conduct of the companies' affairs, because it left Goldstone PE and Goldstone FM with no meaningful role to perform.[18]

Exclusion from management is a common form of oppression where there is a right or expectation of taking part in it.  Under the shareholders' deed, Ms Commins was WIJOAV's appointee on both boards, and because her termination was invalid, that expectation was not spent.  The unfairness was compounded by the reason for the exclusion: Mr Angelis's resentment at Ms Commins not agreeing to move Neighbourly's insurance work to his son's business.  Justice Jackman called it "a clear case of oppression".[19]

The resolutions of 1 April 2025 were legally valid, and the Court did not set them aside.  In WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd (No 2) [2025] FCA 684 (WIJOAV (No 2)), Justice Jackman confirmed that the resolutions, while oppressive, were legally valid and remain in place.[20]

In short, conduct that complies with the documents can still be oppressive if its effect is commercially unfair.

——— The orders

What orders did the Court make?

A buy-out: the Angelis Defendants must buy WIJOAV's shares in both companies and Ms Commins's partnership interests in VCMP, at a fair value to be set by the Court.

Section 233 lets the Court make any order it considers appropriate in relation to the company.  The purpose is to end the effects of the oppression with the least intrusive remedy, and the direction of a buy-out depends on what justice requires in all the circumstances.[21]

Sections 233(1)(d) and (e) refer only to shares, but other assets can be bought under section 233(1)(j), and the list of orders is not exhaustive.[22]  Relying on the NSW Court of Appeal's decision in David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 108 (Ritossa), which held that an order in relation to a trustee company can extend to a buy-out of trust interests, the Court held that buying Ms Commins's interests in VCMP was an order in relation to Goldstone FM.[23]  See also our article on unit trusts and the oppression remedy.

Both sides asked to be the buyer.  Justice Jackman gave real weight to Ms Commins's claim:

"Nor should the law encourage oppressors to think that they are not (or only exceptionally) at risk of being bought out themselves."[24]

In the end, the Court ordered the buy-out it could be confident would be performed.[25]

Ms Commins as buyerAngelis Defendants as buyer
The case forShe set up the fund and managed its investments, and oppressors should be at risk of being bought out themselvesThe Court could be confident that the buy-out would be performed
The obstacleShe did not have the funds herself, and the interested third parties could not commit to a price or a timetableNo question was raised as to their capacity to pay
Effect on the fundMonths of uncertainty while a buyer was found, when decisions about the investments had to be madeA buy-out the Court could be confident would be carried out
ResultNot orderedOrdered
Buy-out

Shares and partnership interests

The Angelis Defendants must buy WIJOAV's shares in Goldstone PE and Goldstone FM and Ms Commins's limited partnership interests in VCMP at a fair value.[26]

Restraint

Free to compete

The defendants were restrained from enforcing the restraint of trade in the shareholders' deed, which would have compounded the oppression.[27]

Damages

Wrongful termination and breach

Ms Commins is entitled to damages for her wrongful termination, and both plaintiffs can claim damages for breach of the shareholders' deed.[28]

Valuation

Price set later

The price is to be set at a later hearing, on the basis of the fund's structure as at 31 March 2025, while the fund keeps operating under a single decision-making structure.  The application to wind up VCMP was deferred.[29]

In WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd (No 4) [2025] FCA 826 (WIJOAV (No 4)), the Angelis Defendants were ordered to pay the plaintiffs' costs to date in a lump sum of $1,659,372.63.[30]  See also our article on the date shares are valued at in an oppression buy-out.

In short, the side that took control was ordered to buy out the side it shut out, including its interests in the partnership itself.

Shut out of a company or fund you co-own? Dundas Lawyers advises shareholders, directors and investors in closely held companies and fund structures on oppression claims and exits.  Call 07 3221 0013 or submit an enquiry online.

——— Practical tips

Practical tips for co-investors in a fund structure

1

Map who controls what

Check which entity controls each part of the structure, including the partnership deeds and management agreements, not just the share register.

2

Check the removal triggers

Look for clauses that end a director's office or force a share sale when employment ends, as the shareholders' deed did here.

3

Act quickly

Ms Commins started proceedings within a week of her termination and obtained urgent orders protecting her directorships.

4

Plan the exit

Think about whether you could buy the other side out, and how you would fund it.  Here, the side able to pay became the buyer.

The removal triggers are in the shareholders' deed[31] and the urgent orders were made the day after proceedings began.[32]  See also our article on deadlock clauses in shareholders' agreements.

Frequently asked questions about oppression in private equity

Does the oppression remedy apply to limited partnerships?

Not directly. Sections 232 and 233 apply to companies, but where companies manage a limited partnership, the conduct of the partnership can be part of the affairs of those companies, as it was in WIJOAV v Goldstone.

Can an equal shareholder bring an oppression claim?

Yes. Holding fifty per cent (50%) of the shares does not bar relief, particularly where the shareholder cannot itself prevent the oppression. In WIJOAV v Goldstone the other investor gained control through the partnership deed.

Can conduct be oppressive if it complies with the company documents?

Yes. In WIJOAV v Goldstone the resolutions of 1 April 2025 were legally valid, but the Court still held that excluding the other investor from the fund was oppressive.

Can the Court order the purchase of partnership interests?

It can, where the order is in relation to the company. The Court ordered the purchase of the limited partnership interests of the excluded director, relying on section 233(1)(j) and the reasoning in Ritossa.

Who buys out whom in an oppression case?

Usually the oppressor buys out the oppressed, but the Court decides what justice requires. In WIJOAV v Goldstone the Court ordered the side that could pay to buy, so that the buy-out would actually be carried out.

Is being removed as a director enough for an oppression claim?

It depends on whether there was a right or expectation to take part in management. Here the director was the appointee of a shareholder under a shareholders deed and her termination was invalid, so her exclusion was oppressive.

Key takeaways about shareholder oppression in private equity

  • The oppression remedy does not apply directly to limited partnerships, but it reaches a partnership through the companies that run it.
  • In WIJOAV v Goldstone, control of the fund was taken through the partnership documents after an invalid termination.
  • An equal shareholder can claim oppression where it lacks the power to prevent it.
  • Exclusion from management can be oppressive even where the resolutions used are legally valid.
  • The Court ordered the side able to pay to buy out both the shares and the partnership interests.

Need advice about a dispute between co-investors? Call Dundas Lawyers on 07 3221 0013 or submit an enquiry online.

Our approach to oppression in fund structures

Dundas Lawyers acts for shareholders, directors and investors in closely held companies, joint ventures and fund structures.  We map the whole structure, including any partnership or trust deeds, identify where control really sits, and look for a negotiated exit before an oppression claim is considered.

Further reading

For further reading on shareholder oppression, see the following articles written by the team at Dundas Lawyers.

Links and further references

Legislation

Corporations Act 2001 (Cth) ss 53, 232, 233
Partnership Act 1892 (NSW) pt 3

Cases

Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304
David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 108
Patterson v Humfrey [2014] WASC 446; (2014) 291 FLR 246
Tomanovic v Global Mortgage Equity Corp Pty Ltd [2011] NSWCA 104; (2011) 288 ALR 310
WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd [2025] FCA 622
WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd (No 2) [2025] FCA 684
WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd (No 4) [2025] FCA 826

Further information

If you need assistance about an oppression claim involving a private equity fund or joint venture, contact us for a confidential and obligation‑free discussion.


Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
T: +61 7 3221 0013 (preferred)
M: +61 419 726 535
E: mburrows@dundaslawyers.com.au

Doyles Recommended TMT Lawyer 2024

Disclaimer

This article contains general commentary only. You should not rely on the commentary as legal advice. Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

[1] WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd [2025] FCA 622, [2]–[3], [167], [177].

[2] WIJOAV v Goldstone (n 1) [7].

[3] WIJOAV v Goldstone (n 1) [2]–[4].

[4] WIJOAV v Goldstone (n 1) [3].

[5] WIJOAV v Goldstone (n 1) [16], [26], [152], [165]–[166].

[6] WIJOAV v Goldstone (n 1) [6], [57]–[61], [167].

[7] WIJOAV v Goldstone (n 1) [5].

[8] WIJOAV v Goldstone (n 1) [65], [99]–[102].

[9] WIJOAV v Goldstone (n 1) [100]–[101].

[10] WIJOAV v Goldstone (n 1) [106]–[109].

[11] WIJOAV v Goldstone (n 1) [111].

[12] WIJOAV v Goldstone (n 1) [54], [145].

[13] WIJOAV v Goldstone (n 1) [162], citing Tomanovic v Global Mortgage Equity Corp Pty Ltd [2011] NSWCA 104, [321].

[14] WIJOAV v Goldstone (n 1) [163], citing Patterson v Humfrey [2014] WASC 446, [53].

[15] WIJOAV v Goldstone (n 1) [163].

[16] WIJOAV v Goldstone (n 1) [164].

[17] WIJOAV v Goldstone (n 1) [154]–[155], citing Campbell v Backoffice Investments Pty Ltd [2009] HCA 25, [176].

[18] WIJOAV v Goldstone (n 1) [166].

[19] WIJOAV v Goldstone (n 1) [167].

[20] WIJOAV v Goldstone (n 1) [185]; WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd (No 2) [2025] FCA 684, [3].

[21] WIJOAV v Goldstone (n 1) [169]–[170].

[22] WIJOAV v Goldstone (n 1) [171].

[23] WIJOAV v Goldstone (n 1) [172]–[173], citing David & Ros Carr Holdings Pty Ltd v Ritossa [2025] NSWCA 108, [109]–[112].

[24] WIJOAV v Goldstone (n 1) [174].

[25] WIJOAV v Goldstone (n 1) [174]–[177].

[26] WIJOAV v Goldstone (n 1) [177].

[27] WIJOAV v Goldstone (n 1) [178]; WIJOAV (No 2) (n 20) [7].

[28] WIJOAV v Goldstone (n 1) [182]–[183].

[29] WIJOAV (No 2) (n 20) [3]–[5]; WIJOAV v Goldstone (n 1) [185]–[186].

[30] WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd (No 4) [2025] FCA 826, [14], [23].

[31] WIJOAV v Goldstone (n 1) [18], [101].

[32] WIJOAV v Goldstone (n 1) [103].

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