Bettaway Financial Group Pty Limited & Ors -v- Rocco Massaria & Ors [2011] NSWSC 886

Bettaway Financial Group Pty Limited & Ors -v- Rocco Massaria & Ors [2011] NSWSC 886

Leave is granted to the fourth plaintiff to bring a derivative action on behalf of the first and second plaintiffs, as the requirements under s 237 Corporations Act 2001 (Cth) are satisfied. Leave is refused for the second plaintiff and for the first and third plaintiffs against the sixth defendant due to lack of a possible claim based on evidence. Sixth defendant is awarded costs on the ordinary basis, not indemnity basis.

Parties
Fourth Plaintiff: Tracy Lee Pollard; First Defendant: Rocco Massaria; Second Defendant: Elizabeth Massaria; Third Defendant: Your Manager Pty Ltd; Fourth Defendant: William Buck Wealth Advisors (NSW) Pty Ltd; Fifth Defendant: R & E M Pty Ltd; Sixth Defendant: Bricktop Holdings Pty Ltd; Seventh Defendant: Antonietta Splendora Carrabs
Jurisdiction
Australia
Judgment Date
03 August 2011
Procedural Posture
Application for Leave to Bring Derivative Action / Hearing and Determination of Application for Leave Under S 237 Corporations Act 2001 (cth)
Outcome
Leave granted in part; costs orders made
Legal Topics
Derivative Actions, Leave to Bring Proceedings, Section 237 Corporations Act 2001 (cth)
Corporations Law Derivative Actions Leave to Bring Proceedings Section 237 Corporations Act 2001 (cth)

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Parties

Tracy Lee Pollard

Fourth Plaintiff

Rocco Massaria

First Defendant

Elizabeth Massaria

Second Defendant

Your Manager Pty Ltd

Third Defendant

William Buck Wealth Advisors (NSW) Pty Ltd

Fourth Defendant

R & E M Pty Ltd

Fifth Defendant

Bricktop Holdings Pty Ltd

Sixth Defendant

Antonietta Splendora Carrabs

Seventh Defendant

Procedural Posture

Application for Leave to Bring Derivative Action / Hearing and Determination of Application for Leave Under S 237 Corporations Act 2001 (cth)

Legal Issues

  1. 1 Whether leave should be granted under s 237 of the Corporations Act 2001 (Cth) to bring a derivative action on behalf of the first and second plaintiffs
  2. 2 Whether evidence discloses a possible claim for the second plaintiff or claims by the first and third plaintiffs against the sixth defendant

Ratio Decidendi

Leave is granted to the fourth plaintiff to bring a derivative action on behalf of the first and second plaintiffs, as the requirements under s 237 Corporations Act 2001 (Cth) are satisfied. Leave is refused for the second plaintiff and for the first and third plaintiffs against the sixth defendant due to lack of a possible claim based on evidence. Sixth defendant is awarded costs on the ordinary basis, not indemnity basis.

Court Disposition

Leave granted in part; costs orders made

Orders

  • Leave for the fourth plaintiff to bring a derivative action on behalf of the first and second plaintiffs
  • Leave refused to bring proceedings on behalf of the second plaintiff against any defendant