Hua and Song v Tuckerman & Ors [2016] NSWSC 1431

Hua and Song v Tuckerman & Ors [2016] NSWSC 1431

Leave for Messrs Tuckerman and Devine to bring derivative proceedings on behalf of MST and its subsidiaries was refused because no adequate indemnity was provided to protect the company and its creditors, the liquidator did not consent, and practical considerations required protection which was lacking; furthermore, claims against third parties were abandoned and lacked proper connection. Amended Notice of Motion dismissed. Costs to plaintiffs as agreed or assessed.

Jurisdiction
Australia
Judgment Date
27 September 2016
Procedural Posture
Equity Corporations List / Ruling on Amended Notice of Motion Regarding Leave for Derivative Proceedings and Other Relief
Outcome
Amended Notice of Motion dismissed. Defendants to pay plaintiffs’ costs of and incidental to the Amended Notice of Motion as agreed or as assessed.
Legal Topics
['derivative Actions' 'liquidation' 'costs Orders' 'leave to Amend Pleadings']
['corporations' 'civil Procedure'] ['derivative Actions' 'liquidation' 'costs Orders' 'leave to Amend Pleadings']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Corporations List / Ruling on Amended Notice of Motion Regarding Leave for Derivative Proceedings and Other Relief

Legal Issues

  1. 1 ['Whether to grant leave for the defendants to represent MST Investment Corporation Limited (in liq) and subsidiaries for the purpose of bringing derivative claims against the plaintiffs and various third parties' 'Whether the proposed derivative action exhibits sufficient merit to warrant leave and is not vexatious or oppressive' "Whether the liquidator's attitude and financial protection (indemnity) are sufficient to permit leave for the derivative action" 'Whether costs should be ordered on an indemnity basis and/or payable forthwith']

Ratio Decidendi

Leave for Messrs Tuckerman and Devine to bring derivative proceedings on behalf of MST and its subsidiaries was refused because no adequate indemnity was provided to protect the company and its creditors, the liquidator did not consent, and practical considerations required protection which was lacking; furthermore, claims against third parties were abandoned and lacked proper connection. Amended Notice of Motion dismissed. Costs to plaintiffs as agreed or assessed.

Court Disposition

Amended Notice of Motion dismissed. Defendants to pay plaintiffs’ costs of and incidental to the Amended Notice of Motion as agreed or as assessed.

Orders

  • ['The Amended Notice of Motion is dismissed.' "The First and Second Defendants pay the Plaintiffs' costs of and incidental to the Amended Notice of Motion as agreed or as assessed."]