In the matter of BCK Holdings Group Pty Ltd

[2021] NSWSC 1400

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of BCK Holdings Group Pty Ltd [2021] NSWSC 1400

Hearing dates:

20 September 2021

Date of orders:

20 September 2021

Decision date:

20 September 2021

Jurisdiction:

Equity - Corporations List

Before:

Rees J

Decision:

Refuse leave to bring derivative suit.

Catchwords:

CORPORATIONS – directors in dispute on matters unrelated to company – plaintiff makes threats to harm the company’s project – no indemnity offered – not satisfied as to good faith – plaintiff’s claims may largely be brought in oppression suit on foot – not satisfied derivative suit in company’s best interests –leave refused.

Legislation Cited:

Corporations Act 2001 (Cth), s 237

Cases Cited:

Blakeney v Blakeney [2016] WASCA 76; (2016) 113 ACSR 398

Chahwan v Euphoric Pty Ltd [2008] NSWCA 52; (2008) 65 ACSR 661

ES Gordon Pty Ltd v Idameneo (No 123) Pty Ltd (1994) 15 ACSR 536

In the matter of Boutique Ettalong Beach Pty Ltd [2020] NSWSC 244

In the matter of Gladstone Pacific Nickel Ltd [2011] NSWSC 1235; (2011) 86 ACSR 432

Mount Gilead Pty Ltd & Hobhouse v L Macarthur-Onslow [2021] NSWSC 948

Oates v Consolidated Capital Services Ltd (2009) 76 NSWLR 69; [2009] NSWCA 183

O'Sullivan v Management Agency and Music Ltd [1985] QB 428

Power v Ekstein [2010] NSWSC 137; (2010) 77 ACSR 302

Scottish Co-operative Wholesale Society Ltd v Meyer [1959] AC 324

South Johnstone Mill Ltd v Dennis (2007) 163 FCR 343; [2007] FCA 1448

Swansson v R A Pratt Properties Pty Ltd [2002] NSWSC 583; (2002) 42 ACSR 313

Taxa Australia Pty Ltd v Wang [2016] NSWSC 1913

True Value Solar Holdings Pty Ltd v Fernandez [2013] VSCA 27

Category:

Procedural rulings

Parties:

Kurt Briggs (Plaintiff)
Ben Nicholas (First Defendant)
Clint Briggs (Second Defendant)
CBBN Investments Pty Ltd (Third Defendant)

Representation:

Counsel:
Mr P Lonergan (Plaintiff)
Mr B DeBuse (Defendants)

Solicitors:
Macquarie Lawyers Burwood (Plaintiff)
Gwynne Thompson (Defendants)

File Number(s):

2021/238624

ex tempore Judgment

1. HER HONOUR: This is an application under section 237 of the Corporations Act 2001 (Cth) for leave to be granted to the plaintiff, Kurt Briggs, to bring derivative proceedings in the name of BCK Holdings Group Pty Ltd against the first defendant, Ben Nicholas, the second defendant, Clint Briggs, and the third defendant, CBBN Investments Pty Ltd. The plaintiff and the second defendant are brothers. Without any disrespect to the parties, I will use their first names.

FACTS

2. Ben, Clint and Kurt are licensed builders. They have previously engaged in property developments together, as well as various building work. In December 2019, they decided to purchase three adjoining parcels of land to develop into a childcare centre for lease to a childcare provider, Kids Club. Each agreed to contribute equally to the costs of acquiring the land and to provide a guarantee for any bank finance. To this end, in February 2020, BCK Holdings was incorporated, presumably taking its name from the initials of Ben, Clint and Kurt. Each became a director and were allotted one-third of the shares in the company. The company became the trustee of The Briggs & Nicholas Unit Trust; the families of each director have units in the trust through various family companies.

3. In March 2020, BCK Holdings exchanged contracts to purchase two adjoining lots, each for $1.075 million. In July 2020, BCK Holdings executed a call option to purchase the third adjoining lot for $1 million. In September 2020, BCK Holdings exercised the option to acquire the third lot; the resulting contract called for completion on 15 January 2021. In October 2020, BCK Holdings completed the purchase of the first two lots, assisted by a bank loan for $1.6 million. In November 2020, BCK Holdings entered into Heads of Agreement with Kid’s Club to lease the childcare centre to be constructed on the land.

4. Kurt said that he caused another company of which he is the sole director and shareholder, Briggolas Constructions Pty Ltd, to pay some $370,000 to BCK Holdings for the purpose of obtaining reports and plans to submit to the Council for the development application for the childcare centre. Ben and Clint said the monies from Briggolas Constructions were contributed by all of them; Ben, Clint and Kurt used Briggolas Constructions to deposit monies from other projects in anticipation of further expenses in future projects.

Disputes arise

5. In December 2020, Kurt fell out with Clint in relation to the amount Kurt had borrowed from Clint for other projects not involving BCK Holdings, whether those monies had been fully repaid and whether Kurt was entitled to monies from those projects. In addition, a dispute arose as to whether Kurt had used some $300,000 of Briggolas Constructions’ assets for his personal use.

6. Kurt says that, in January 2021, the rent which BCK Holdings was receiving for the two properties already purchased ceased to be paid into the bank account which, until then, had received the rent and paid the mortgage payments to the National Australia Bank. Kurt said he later discovered that Ben and Clint organised for the money to be directed to another account which they controlled, without his knowledge. Ben denies this. Rather, the rent monies were now paid directly into each properties’ NAB loan account. Ben considered that this gave greater transparency and left no dispute as to the use of the monies for BCK Holdings’ advantage, “Kurt is a signatory on these accounts and has full access to them. … I have previously advised Kurt that all he needs to do to have internet access is to set up that facility. I am and have always been willing to give him access to view the accounts.”

7. The time for completion for purchase of the third lot came and went. BCK Holdings was unable to settle, the defendants say, because Kurt would not cooperate in obtaining finance given these disputes.

Threats made

8. The defendants rely upon various text messages as suggesting an absence of good faith on Kurt’s part. On 23 February 2021, Kurt wrote on a group Whatsapp message to Ben and Clint in relation to the project:

Watch and see!!

We loose the site after thiS as there will not be any finance. Trust me

…

Anyway if I don’t get my money by Friday will see there won’t be any childcare I promise you that I’m not threatening anyone I’m promising you … Choose your own adventure.

In evidence today, Kurt explained that the money he was seeking to have paid related to other property developments in Gladesville and Telopea. BCK Holdings was not involved in those developments.

9. On 25 February 2021, Ben called for the directors to deposit their share of funds to pay Council’s fee for the development application for the childcare centre. The following WhatsApp messages were exchanged from 25 February 2021 to 1 March 2021:

Kurt:   Yep when you guys transfer my money.

Ben:   Best thing to do is all of us sit down and work it out

Kurt:   No Thankyou, If you really believe I ripped you off, Let’s see do you want to see you lose money I’ll show us all lose a lot of money no threat it’s a promise

… I’m happy to lose every cent was invested you to show you that I’m not fucking around

Clint:   … Kurt you do what you need to do. Acting like the way you are will get you know where. I won’t be threatened for the rest of my life every time your not getting your way and won’t sit down and talk maturely..

…

Kurt:   No money was transferred to my account, so I will be giving this messages the appropriate instructions to proceed

10. On 2 March 2021, Ben sent a screenshot showing payment by Ben and Clint of $8,500 each towards Council’s fee. The following WhatsApp messages were exchanged: (emphasis added)

Ben:   … Kurt please transfer $8500 so we are all equal

Kurt:   Once I receive my settlement money I’m happy to pay it

Ben:   You and Clint can sort out what exactly he loaned you. … all of us will need around $70k each to settle on third block. If you don’t intend of contributing that either tell us now

Kurt:   No thanks. Not paying 1c untill my money is recieved. You think you can rip me no problems. My solicitors will be in contact about everything and you will see there will be no money to talk about soon as we wil all loose. Do you want to think is best. Don’t bother msging anymore

Ben:   …Thanks for letting us know you don’t intend of fulfilling your duties. Alternative arrangements will now be made

11. The defendants rely on the italicised portion – which I take to mean “Do what you think is best” – as Kurt impliedly consenting to Ben and Clint proceeding as they saw fit in respect of completing the purchase of the third lot. Certainly, it is apparent that Kurt was unwilling to provide his share of the monies required to complete the purchase or, for that matter, to lodge a development application for the childcare centre until unrelated disputes had been resolved to his satisfaction.

12. On 3 March 2021, the development application was lodged, Ben and Clint having funded Kurt’s share of the lodgement fee. As mentioned, each director then needed to contribute $70,000 to fund completion of the purchase of the third lot. Ben was informed by the finance broker that Kurt was not returning telephone calls in respect of finance for the third lot. The finance broker told Ben that, unless Kurt signed the application for finance and any guarantee, BCK Holdings would be unable to obtain finance to complete the purchase. BCK Holdings could not complete the purchase without finance.

13. Kurt explained in cross-examination that he expected that his share of funds for this development would come from his share of the Gladesville and Telopea developments but Ben and Clint were not being transparent with the proceeds of those developments and had not paid him his share. He did not accept that his refusal to provide his share of the funds to complete the purchase of the third lot might disrupt the project.

14. Ben said he formed the view that, by reason of the dispute between the brothers, Kurt was not going to cooperate in completing the purchase of the third lot. Ben was concerned that this would not be in the interests of BCK Holdings as it was necessary to acquire the three properties in order to develop the site and the childcare centre in the most financially advantageous manner. Ben sought to re-negotiate the option with the vendor of the third lot so as not to lose it. The vendors indicated that they would not provide vendor finance. The vendors proposed to terminate the contract and put the property back on the market, as prices were going up.

15. Ben considered that BCK Holdings was faced with a notice to complete and having the contract terminated, which would mean that the deposit was forfeited and the childcare development would not be feasible or would be at a substantial disadvantage without the third lot. Ben says Kurt likely knew that the contract would be rescinded as, on 5 March 2021, their conveyancer sent an email to the selling agent, copied to an email address at which Kurt would be expected to receive it, advising:

Purchasers will require some more time possibly 4 weeks. Have made a request to the Vendors Solicitors to mutually rescind the Contract and re-exchange with a new entity for the Purchasers.

Ben said the email was opened, likely by Kurt.

16. Clint considered that Kurt was delaying completion of the purchase of the third lot because of their dispute; he believed that Kurt no longer cared about the project or was prepared to sabotage BCK Holdings’ opportunity. Clint was concerned that Kurt may approach the vendor or Kid’s Club representatives directly. Clint also believed it was in the interests of BCK Holdings not to lose the opportunity for the larger development with the third lot. He did not believe this could be achieved in any way other than rescinding the contract and purchasing the third lot using a different company. Clint did not believe that Kurt would co-operate and thought that Kurt was no longer interested in achieving what they had originally agreed in respect of the development.

17. On 18 March 2021, CBBN Investments was incorporated to purchase the third lot. Ben and Clint are directors of that company; their family companies are equal shareholders. The vendor accepted an offer to rescind the existing contract and enter into a contract with CBBN Investments on amended conditions, including additional consideration of $150,000. On 24 March 2021, without Kurt’s knowledge, BCK Holdings executed a Deed of Rescission in respect of the contract of sale for the third lot. CBBN Investments entered into a contract to purchase the land for $1.15 million. On 24 May 2021, CBBN Investments acquired the third lot with the assistance of a $920,000 bank loan.

18. Ben agreed that the deposit paid by BCK Holdings on the third lot effectively became part of the purchase price paid by CBBN Investments, but he was unsure as to how to account for this and considered it better to proceed in this way rather than BCK Holdings lose its deposit altogether. Ben believed that Kurt would not permit BCK Holdings to purchase the property and it would be detrimental to the company in respect of the other properties it owned for the third lot not to be available as part of the development. He did not consider that it was in the best interests of BCK Holdings to lose the deposit and jeopardise the development. He did not see any alternative. Ben said it was not his intention to hide the transaction, although obviously he did.

19. On 29 July 2021, Kurt became aware that CBBN Investments was the registered proprietor of the third lot and lodged a caveat over all three properties. On 3 August 2021, Ben issued a notice of meeting of the board of directors of BCK Holdings, to take place on 25 August 2021. One of the resolutions proposed for the meeting was:

The company being unable to proceed with the development of the Property as proposed intends to dispose of the Property by sale to CBBN Investments Pty Limited ACN 648 811 858 (CBBN Investments) for a total consideration of $2,400,000.00.

Clint said he intended to explain all the issues at the meeting and see if they could resolve them.

20. Correspondence ensued between the plaintiff and defendants’ solicitors as to whether the proposed resolution should be withdrawn or, by reason of the suggested non-cooperation of the plaintiff, the proposed resolution should be passed. As I understand it, the resolution has since been passed. On 20 August 2021, Kurt commenced these proceedings before the Duty Judge, seeking to restrain the defendants from dealing with the three properties or causing the BCK Holdings to deal with the properties, together with an order that Ben and Clint take no action to cause detriment to, and take all reasonable steps to advance, the development application. By consent, Ben and Clint gave undertakings to progress the development application.

21. On 3 September 2021, the interlocutory process presently before the Court was filed, supported by Kurt’s affidavit. Ben and Clint swore affidavits in reply. Ben said that he is prepared to purchase Kurt’s units in The Briggs & Nicholas Unit Trust Deed if requested to do so. Ben also said that BCK Holdings has no funds to enter into or continue litigation, but he is happy to mediate. Ben proffered undertakings to progress the development application and lease negotiations in respect of a childcare centre. Ben said that, with Kurt still involved but unwilling to contribute or participate, BCK Holdings cannot presently raise construction finance. In response, Kurt put on a second affidavit, expressing his concerns that he is being ‘cut out’ of the development by Ben and Clint. Kurt agreed today that relations between himself and Ben and Clint have irretrievably broken down.

CONSIDERATION

22. Kurt is a member and officer of BCK Holdings and has standing to seek leave to bring proceedings on behalf of the company: section 236(1)(a)(i) and (ii), Corporations Act. Section 237(2) of the Corporations Act provides that the Court must grant leave if it is satisfied that:

(a)   it is probable that the company will not itself bring the proceedings, or properly take responsibility for them, or for the steps in them; and

(b)   the applicant is acting in good faith; and

(c)   it is in the best interests of the company that the applicant be granted leave; and

(d)   if the applicant is applying for leave to bring proceedings—there is a serious question to be tried; and

(e)   either:

(i)   at least 14 days before making the application, the applicant gave written notice to the company of the intention to apply for leave and of the reasons for applying; or

(ii)   it is appropriate to grant leave even though subparagraph (i) is not satisfied.

23. It will be immediately noted that each of the five requirements of section 237(2) must be satisfied before the Court is obliged to grant leave. The plaintiff bears the onus of establishing each of these matters on the balance of probabilities: In the matter of Boutique Ettalong Beach Pty Ltd [2020] NSWSC 244 at [5] per Gleeson JA; Swansson v R A Pratt Properties Pty Ltd [2002] NSWSC 583; (2002) 42 ACSR 313 at [26]. Further, if all the requirements of section 237(2) are satisfied, the Court must grant leave to bring the proposed proceedings. On the other hand, if any of the requirements of section 237(2) are not satisfied, then the Court should not grant leave: Oates v Consolidated Capital Services Ltd (2009) 76 NSWLR 69; [2009] NSWCA 183 at [64]-[65]; Chahwan v Euphoric Pty Ltd [2008] NSWCA 52; (2008) 65 ACSR 661 at [117].

24. Leave to bring proceedings must not be given lightly, given the possibly serious consequences to the company if the application is allowed and the company is thereby compelled to engage in litigation as a plaintiff against its will: Swansson at [24], [26].

25. In this case, the defendants agree that the first and fifth requirements are satisfied. Accordingly, the Court must determine whether the remaining requirements are met, although it is convenient to address these requirements out-of-order.

Serious question to be tried

26. The fourth criterion is whether there is a serious question to be tried in the derivative suit. To satisfy this requirement, Kurt provided a draft Statement of Claim to be filed if leave is granted. In addition to relief from oppression, Kurt seeks declarations that Ben and Clint breached their fiduciary obligations and director’s duties to BCK Holdings, for which compensation or an account of profits is sought. In addition, a declaration is sought that CBBN Investments holds the third lot on constructive or resulting trustee in favour of BCK Holdings.

27. The defendants submitted that there was no evidence that BCK Holdings could have completed the contract to purchase the third lot in the absence of the steps taken by Ben and Clint. The contemporaneous evidence from Kurt was that it could not and that was also the opinion of the other directors. The reason BCK Holdings could not complete was outside of the control of Ben and Clint. They could not get financial accommodation in BCK Holdings’ name. If BCK Holdings could not complete, then its interest was to find a party that was able to complete the purchase. Kurt must have been aware of that as he told Ben and Clint to do what they thought was best, that is, for them. He stated that he had already decided to seek legal assistance but did nothing to assist BCK Holdings. The defendants also submitted that there was no evidence that BCK Holdings could do equity by restoring the purchase price or compensating CBBN Investments if CBBN Investments was found to have been a party to a breach of duty but incurred costs and expenses which have advantaged BCK Holdings by saving the project, which must be recompensed: O'Sullivan v Management Agency and Music Ltd [1985] QB 428.

28. Whether there is a serious question to be tried in a proposed derivative suit entails a relatively low threshold which does not involve consideration of the underlying merits of the proposed litigation: Mount Gilead Pty Ltd & Hobhouse v L Macarthur-Onslow [2021] NSWSC 948 at [65]. Having regard to Kurt’s affidavits and the draft Statement of Claim, I consider that this requirement has been satisfied.

Good faith

29. The second requirement is that the applicant is acting in good faith. As Palmer J explained in Swansson, this requirement has at least two elements. At [36]:

… there are at least two interrelated factors to which the Courts will always have regard in determining whether the good faith requirement of s 237(2)(b) is satisfied. The first is whether the applicant honestly believes that a good cause of action exists and has a reasonable prospect of success. Clearly, whether the applicant honestly holds such a belief would not simply be a matter of bald assertion: the applicant may be disbelieved if no reasonable person in the circumstances could hold that belief. The second factor is whether the applicant is seeking to bring the derivative suit for such a collateral purpose as would amount to an abuse of process.

30. In South Johnstone Mill Ltd v Dennis (2007) 163 FCR 343; [2007] FCA 1448 at [69], Middleton J observed that the fact that the applicant is willing, as a condition of leave, to indemnify the company for costs and any adverse costs order may demonstrate good faith. The existence of an adequate and viable indemnity becomes critical where, if the derivative suit fails, the company ought to be indemnified in real terms from the consequences of any loss, in particular by costs orders being made against the company in favour of the defendants.

31. Kurt submitted that he was acting in good faith, seeking to have the third lot returned to BCK Holdings and to stop the sale of the first and second lots to CBBN Investments. Kurt submitted that it was reasonable for him to infer from his communications with Ben and Clint in February and March 2020 that finance had been arranged for the third lot and, given the dispute in respect of the other property developments, Ben and Clint had arranged to provide his share of the purchase monies when completing the purchase of the third lot. He proceeded on that basis and was acting at all times in good faith towards BCK Holdings.

32. The defendants submitted that good faith had not been established. Kurt had already expressed views inimical to the interests of BCK Holdings, without regard to the legal costs the company may incur, where penury of the company and his former partners was his stated aim. Kurt’s objective was to obtain the payment of money to him for other developments and without regard to the misuse of other monies raised by Ben and Client. The defendants submitted that this was an unusual situation where the intention of CBBN Investments was to advance BCK Holdings’ interests whilst Kurt’s intention, by nominally bring an action on behalf of the company, was to see BCK Holdings’ value destroyed.

33. Two matters are relevant to whether this requirement has been established in this case. First, the WhatsApp messages do indicate that, when time came to lodge the development application and complete the purchase of the third lot, Kurt refused to cooperate unless and until unrelated disputes were resolved to his satisfaction. Kurt did threaten to cause harm to the project, including by obstructing finance and thus acquisition of the third lot such that “there won’t be any childcare I promise you that I’m not threatening anyone I’m promising you”. Further, “do you want to see you lose money I’ll show us all lose a lot of money not threat it’s a promise”. Further still, “there will be no money to talk about soon as we will all lose.” These threats may have been uttered in the heat of the moment, or as a bargaining chip to resolve disputes that Kurt had with Ben and Clint in respect of other companies and property developments. But it undermines the Court’s ability to be satisfied on the balance of probabilities that the applicant is acting in good faith in bringing an action on behalf of the company.

34. Second, Kurt’s affidavits do not contain an offer of an indemnity. During the hearing, I noted that Kurt did not proffer an undertaking in his affidavits and his counsel said he would take instructions on that point and, if approved, proffer that undertaking to the Court. No undertaking was ultimately proffered.

35. Having regard to these two matters, I am not satisfied on the balance of probabilities that the applicant is acting in good faith. This should not be taken to mean that I have found that Kurt is acting in bad faith, but simply that he has failed to establish an essential prerequisite of section 237 such that leave should not be granted. It is thus not strictly necessary for me to consider the remaining requirement, but I will do so briefly.

Best interests

36. The third requirement is that it is in the best interests of the company that the applicant be granted leave. As was noted in Blakeney v Blakeney [2016] WASCA 76; (2016) 113 ACSR 398, the section requires more than satisfaction that the grant of leave may be or appears to be or is likely to be in the interests of the company. Rather the Court must be satisfied that it is in the best interests of the company. As Ball J noted in In the matter of Gladstone Pacific Nickel Ltd [2011] NSWSC 1235; (2011) 86 ACSR 432 at [57], it must also be in the best interests of the company that the action be brought by the applicant: see likewise Power v Ekstein [2010] NSWSC 137; (2010) 77 ACSR 302 per Austin J at [107]. The nature of any indemnity is an important consideration, as are the resources of the company that will be required to be devoted to the action, the resources the company has available and the effect that the action may have on other aspects of the company’s business. Finally, it is relevant whether some other remedy is available.

37. Kurt submitted that, if BCK Holdings was joined as a plaintiff, it could bring a claim against Ben and Clint for breach of duties, which he could not bring as a mere shareholder. Kurt relied on True Value Solar Holdings Pty Ltd v Fernandez [2013] VSCA 27. In addition, Kurt relied on Power v Ekstein, where Austin J observed that it was not necessary for a plaintiff to seek only claims which benefit the company; a plaintiff may also advance claims for relief in their own interests in the same proceeding: at [108].

38. The defendants submitted that BCK Holdings lost the opportunity to acquire the third lot because of Kurt and it was not in BCK Holdings’ interest to have a dispute that would cost it to re-acquire the site. If anything, the claim could only be as to the loss of the value of the opportunity which the defendants say was already lost. The defendants relied on Mount Gilead, where Black J noted at [91]:

… the best interests of [the company] to bring a claim depends not only on whether it might succeed as to liability, but whether there would be any practical benefit from its success. In Re Imperium Projects Pty Ltd [2015] NSWSC 16 at [14], I observed that it did not follow that it was in a company's best interests that a remedy be pursued, merely because it appeared to have suffered an actionable wrong, and any assessment of the company's best interests depended on matters including "the strength of the suggested claims". …

39. The defendants submitted that the company did not have funds to carry on the dispute. It would almost certainly prevent BCK Holdings obtaining construction finance. It may lead to the bank treating the company as in breach of its covenants. The prosecution of the development application involved a significant amount of work and further expense. BCK Holdings and CBBN Investments now had to jointly negotiate a potentially difficult deal to achieve the project involving construction finance, construction, achieving the desired number of childcare places in the development and negotiating a lease. Litigation and associated discord would jeopardise this with an uncertain result other than significant cost.

40. The defendants submitted that less intrusive alternatives were available, being the oppression suit already on foot. The value of Kurt’s shareholding and unit interest could be acquired at a value to be determined to be its true value, taking into account events in respect of the third lot. Ben and Clint were happy to redeem Kurt’s units. As BCK Holdings was a trustee company of the Briggs & Nicholas Unit Trust, any action, if successful, would not increase the value of the shares but of the trust property held. The attitude of the unit holders was not the subject of any evidence from Kurt. If the action was unsuccessful then BCK Holdings would be left with a large costs bill.

41. As to whether it is in the interests of the company for the derivative suit to be brought by Kurt, he is the only obvious person to do so, notwithstanding doubts which the WhatsApp messages may engender. However, Kurt’s evidence did not address the prospects of success of the proposed derivative suit, the likely costs and likely recovery if the action was successful or the likely consequences if it was not. There was no evidence from Kurt as to the effect which such an action may have upon BCK Holdings, including its resources, nor the impact of such an action on any other aspect of its business, nor whether some other suitable remedy was available. The defendants’ evidence pointed to the significant impact of legal proceedings on the development, including its ability to raise construction finance.

42. Whether I grant leave, or even if I do not grant leave, Kurt is not prevented from pursuing at least those aspects of his claims that are properly arguable in his own right as an aspect of his oppression suit.

43. In True Value Solar, a shareholder sought leave to bring proceedings against the company’s director for breach of director’s duties and fiduciary duties owed to the company, together with orders for compensation. Already on foot was an oppression suit brought by the shareholder against the company seeking redemption of his shares. In considering whether it was in the best interests of the company to grant leave to bring a derivative suit, Osborne JA, with whom Neave and Priest JJA agreed, considered that leave should be granted where the claim for breach of director’s duties was not raised in the oppression proceedings, where such a claim must be brought by the company and not a shareholder, and where the relief claimed in the oppression suit did not on its face provide a satisfactory mechanism for the resolution of the underlying issues raised in the derivative proceeding: at [21].

44. Further, Osborne JA observed, “it may be doubted s 233 contemplates an order for the payment of damages by a director to the company for breach of statutory or fiduciary duties”: at [21(e)]. An examination of the pleadings in the oppression suit and the derivative suit in that case revealed differences in the causes of action pleaded, the legal and factual issues which may arise, and the remedies sought. Obviously, much turns on the proposed derivative suit.

45. More recently, Black J noted in Taxa Australia Pty Ltd v Wang [2016] NSWSC 1913 at [23]:

… In LPD Holdings (Aust) Pty Ltd Re Phillips [2013] QSC 225; (2013) 281 FLR 227, Philip McMurdo J accepted (at [53]) that it is open to a shareholder in a company, in oppression proceedings under Pt 2F.1 of the Corporations Act, to claim relief which is in the nature of compensation to be paid to the company whose affairs are in question, although likely not to claim compensation payable to the shareholder personally. I followed that approach in Re JGS Investment Holdings Pty Ltd [2014] NSWSC 1532, in holding that a shareholder bringing an oppression claim can bring a claim for breach of general law duty and statutory duties owed to a company, without necessarily seeking a separate order for leave to bring a statutory derivative action under s 237 of the Corporations Act, although such a claim could only extend to loss which the company had suffered, and not loss which the shareholder had suffered personally.

46. It is apparent from the proposed Statement of Claim that many, if not all, of the claims that Kurt could properly bring on the company’s behalf can be brought within an oppression suit by Kurt personally without exposing the company to the risk of costs, noting that a valuation of Kurt’s shares under sections 232 and 233 should attempt to place an oppressed plaintiff in the position they would have been had there been no oppression: ES Gordon Pty Ltd v Idameneo (No 123) Pty Ltd (1994) 15 ACSR 536 at 539-540 per Young J; Scottish Co-operative Wholesale Society Ltd v Meyer [1959] AC 324 at 369 per Lord Denning. It is difficult to see that it could be in the company’s best interests for the company to be at a risk of costs, where those costs could be borne by Kurt personally in respect of the claims which he wishes to bring, where both prospects and recoveries are uncertain.

ORDERS

47. For these reasons, I make the following orders:

1. Dismiss the Interlocutory Process filed on 3 September 2021.

2. Order the plaintiff to pay the defendants’ costs of the Interlocutory Process filed on 3 September 2021.

3. Stand the matter over to the Corporations List for directions at 10.00 am on Monday, 11 October 2021.

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Decision last updated: 05 November 2021