In the matter of Wil Brown Management Pty Ltd and Wil Brown Pty Ltd – Brownlee Enterprises Pty Ltd v Wilmen Pty Ltd [2022] NSWSC 207

In the matter of Wil Brown Management Pty Ltd and Wil Brown Pty Ltd – Brownlee Enterprises Pty Ltd v Wilmen Pty Ltd [2022] NSWSC 207

Leave is granted to the plaintiffs to amend the statement of claim substantially in the proposed form, excluding paragraph 66R, and to bring derivative claims on behalf of WBPL and WBMPL (with specified limitations) pursuant to s 237 of the Corporations Act, as the criteria for leave are satisfied, including probability the companies will not bring the proceedings, the applicant's good faith, best interests of the company, serious question to be tried, and appropriate notice.

Parties
First Plaintiff: Brownlee Enterprises Pty Ltd ACN 613 312 548; Second Plaintiff: Tate Lucas Brownlee; Third Plaintiff: Kristen Merrion; First Defendant: Wilmen Pty Limited ACN 612 746 899; Second Defendant: James David Wilmen; Third Defendant: Wil Brown Management Pty Ltd ACN 618 846 021 as trustee for The Wil Brown Management Trust; Fourth Defendant: Wil Brown Pty Ltd trading as Raine & Horne Pottsville Beach & Cabarita Beach ACN 613 356 504
Jurisdiction
Australia
Judgment Date
04 March 2022
Procedural Posture
Corporations/equity Dispute / Interlocutory Application for Leave to Amend and for Leave to Bring Derivative Claims
Outcome
Leave to amend statement of claim and leave to bring derivative claims granted (with exceptions and undertakings); costs orders made.
Legal Topics
Derivative Actions, Directors' Duties, Oppression Remedies, Trust Administration, Amendment of Pleadings
Corporations Equity Trusts Civil Procedure Derivative Actions Directors' Duties Oppression Remedies Trust Administration +1 more

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Parties

Brownlee Enterprises Pty Ltd ACN 613 312 548

First Plaintiff

Tate Lucas Brownlee

Second Plaintiff

Kristen Merrion

Third Plaintiff

Wilmen Pty Limited ACN 612 746 899

First Defendant

James David Wilmen

Second Defendant

Wil Brown Management Pty Ltd ACN 618 846 021 as trustee for The Wil Brown Management Trust

Third Defendant

Wil Brown Pty Ltd trading as Raine & Horne Pottsville Beach & Cabarita Beach ACN 613 356 504

Fourth Defendant

Procedural Posture

Corporations/equity Dispute / Interlocutory Application for Leave to Amend and for Leave to Bring Derivative Claims

Legal Issues

  1. 1 Whether leave should be granted to amend the statement of claim
  2. 2 Whether leave under s 237 of the Corporations Act should be granted to bring statutory derivative claims on behalf of WBPL and WBMPL
  3. 3 Whether the proposed amendments and derivative claims satisfy statutory requirements

Ratio Decidendi

Leave is granted to the plaintiffs to amend the statement of claim substantially in the proposed form, excluding paragraph 66R, and to bring derivative claims on behalf of WBPL and WBMPL (with specified limitations) pursuant to s 237 of the Corporations Act, as the criteria for leave are satisfied, including probability the companies will not bring the proceedings, the applicant's good faith, best interests of the company, serious question to be tried, and appropriate notice.

Court Disposition

Leave to amend statement of claim and leave to bring derivative claims granted (with exceptions and undertakings); costs orders made.

Orders

  • Leave granted to file further amended statement of claim (excluding paragraph 66R and with specified chapeaux corrections).
  • Leave under s 237 Corporations Act granted to bring claims in paragraphs 66A, 66P, 66Q, 66S–66V on behalf of and in the name of the third defendant and corresponding claims for relief.