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COURT AND TRIBUNAL

Cooper v Myrtace Consulting: leave for a derivative action refused

14 May 2014

A shareholder applied under section 237 of the Corporations Act for leave to bring proceedings in the company’s name against its sole director, alleging misappropriation of the proceeds of a share sale, an improper issue of shares to himself, and a failure to wind the company up.

The Federal Court refused leave and ordered the applicant to pay the company’s costs: Cooper v Myrtace Consulting Pty Ltd [2014] FCA 480. An applicant has to satisfy all five criteria in section 237, and the one that decided the case was whether the proposed action was in the best interests of the company.

The Court accepted there was a serious question to be tried on three of the pleaded claims and none on the rest. Leave still failed, because the applicant could not offer the company a meaningful indemnity for the costs it would be exposed to. Matters put as reasons the director should not be shielded by the corporate form, being unlodged tax returns and financial records not kept, were not pleaded and could not supply the criterion that was missing.

Read the judgment: AustLII

WHERE THIS SITS

Corporate and commercial Commercial litigation

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