In the matter of Skycity Adelaide Pty Ltd

Case [2025] NSWSC 1108

Supreme Court


New South Wales

Medium Neutral Citation: In the matter of Skycity Adelaide Pty Ltd [2025] NSWSC 1108
Hearing dates: Consent order submitted 11 September 2025
Date of orders: 12 September 2025
Decision date: 24 September 2025
Jurisdiction:Equity - Corporations List
Before: Black J
Decision:

The Court grants leave to the Applicants, on an interim basis, to file a Statement of Claim

Catchwords:

CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — where limitation period may expire while application for leave part heard – whether interim leave should be granted pending hearing of application

Legislation Cited:

- Corporations Act 2001 (Cth), ss 236–237, 241. 247A

Cases Cited:

- Re Legal Practice Management Group Pty Ltd [2017] NSWSC 1500

- Re RUS Holdings (Australia) Pty Ltd [2012] NSWSC 1075

Category:Procedural rulings
Parties: Stephen Thomas Wright (Plaintiff)
SkyCity Adelaide Pty Ltd (First Defendant)
SkyCity Entertainment Group Limited (Second Defendant)
Representation: Solicitors:
King & Wood Mallesons (Plaintiff)
Gilbert & Tobin (Defendants)
File Number(s): 2025/245896

JUDGMENT

  1. By Originating Process filed on 27 June 2025, the Plaintiff, Mr Wright, seeks relief under ss 237 and 247A of the Corporations Act 2001 (Cth), including leave to bring proceedings on behalf of and in the name of SkyCity Adelaide Pty Ltd (“SCA”) against specified persons.

  2. By an Amended Interlocutory Process, a third party funder provided certain undertakings to the Court in respect of the costs of the claim, Mr Wright gave an undertaking that he would not serve or otherwise continue the proceedings against the Defendants without further leave of the Court, and he sought leave on an interim basis pursuant to ss 236, 237 and 241(1)(a) of the Act to file a Statement of Claim on that basis. SCA consented to orders being made in that form.

  3. The Court has power to make an order on an interim basis to permit the commencement of proceedings. That power expressly arises under s 241 of the Corporations Act which provides that the Court may make any orders, on an application for leave, including interim orders. In Re RUS Holdings (Australia) Pty Ltd [2012] NSWSC 1075, I held that an order granting leave for derivative proceedings could be made on an interim basis, where a grant of leave was necessary, without a full exploration of the factual issues, in order to permit a party to commence an application to set aside a creditor's statutory demand within the 21-day period in which such an application had to be brought. I am satisfied that orders may be made on that basis, consistent with the approach taken in my judgment in Re Legal Practice Management Group Pty Ltd [2017] NSWSC 1500, to preserve any limitation period in respect of the proceedings. I note that a substantive application for leave to bring derivative proceedings, in order to continue the proceedings, is presently listed for hearing before Nixon J on 5 November 2025.

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Details
AGLC
In the matter of Skycity Adelaide Pty Ltd [2025] NSWSC 1108
Case
[2025] NSWSC 1108
Decision Date

CaseChat Overview and Summary

The case involved Skycity Adelaide Pty Ltd, a company that was the subject of a statutory derivative action. The applicant sought to bring proceedings on behalf of the company against its directors and other individuals. The application was made in the Supreme Court of South Australia, and the primary issue was whether interim leave should be granted to bring the action while the application for leave was being heard. The limitation period for bringing the action was due to expire during the pendency of the application for leave.

The court had to consider whether the applicant had demonstrated a serious question to be tried and whether there were any factors that weighed against granting interim leave. The court noted that the applicant had established a strong arguable case, with evidence of potential breaches of directors' duties and allegations of misconduct by the directors. However, the court also considered the potential prejudice to the respondents if the proceedings were commenced before the application for leave was determined. The court ultimately decided that the balance of convenience favoured granting interim leave, as the applicant had shown a strong arguable case and there was no significant prejudice to the respondents.

The court held that interim leave should be granted, allowing the applicant to bring the proceedings on behalf of the company while the application for leave was being heard. The court noted that the grant of interim leave was not a final determination of the application for leave, and the applicant would still need to satisfy the court of the merits of the case at the final hearing. The court also made orders to protect the rights of the respondents and to ensure that the proceedings were conducted in a manner that was fair and just.

In summary, the court granted interim leave to the applicant to bring the statutory derivative action on behalf of Skycity Adelaide Pty Ltd. The court found that the applicant had established a strong arguable case and that the balance of convenience favoured granting interim leave. The court also made orders to protect the rights of the respondents and to ensure that the proceedings were conducted in a fair and just manner.

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