Gooley & Ors v Breda Pty Ltd & Ors [2017] NSWSC 817

Gooley & Ors v Breda Pty Ltd & Ors [2017] NSWSC 817

The plaintiffs satisfied the UCPR, r 5.3 preconditions and the Court's discretion should be exercised for several categories because there was sufficient evidence, beyond mere suspicion, that they may have claims and that the defendants may possess relevant documents needed to decide whether to commence proceedings. Relief was refused for the ATO settlement category because the asserted imbalance was based on suspicion and there was no objective evidence supporting a prospective claim, and relief was limited for some older or unsupported transactions.

Jurisdiction
Australia
Judgment Date
22 June 2017
Procedural Posture
Application for Preliminary Discovery Under Ucpr, R 5.3 / Procedural and Other Ruling in the Equity Jurisdiction
Outcome
Orders for preliminary discovery made under UCPR, r 5.3 in several of the categories sought; directions made for short minutes of order and any outstanding costs issues.
Legal Topics
['preliminary Discovery' 'family Companies' 'share Registers' 'derivative Proceedings' 'oppression' 'financial Management' "directors' Duties"]
['civil Procedure' 'corporations' 'equity'] ['preliminary Discovery' 'family Companies' 'share Registers' 'derivative Proceedings' 'oppression' 'financial Management' "directors' Duties"]

Case Brief

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Procedural Posture

Application for Preliminary Discovery Under Ucpr, R 5.3 / Procedural and Other Ruling in the Equity Jurisdiction

Legal Issues

  1. 1 ['Whether the plaintiffs may be entitled to make claims for relief against prospective defendants concerning transactions involving family companies.' 'Whether the plaintiffs had made reasonable inquiries but remained unable to obtain sufficient information to decide whether to commence proceedings.' 'Whether the defendants may have documents that would assist the plaintiffs in deciding whether to commence proceedings.' "Whether the alleged weakness of the plaintiffs' prospective claims should justify refusing preliminary discovery in the Court's discretion." "Whether preliminary discovery should be ordered for documents concerning Finbob's shares in Breda, Willarong Road sale proceeds, Barton's Connell House sale proceeds, the ATO settlement, Dama share transfers, Goold share transfers and Bill's wills."]

Ratio Decidendi

The plaintiffs satisfied the UCPR, r 5.3 preconditions and the Court's discretion should be exercised for several categories because there was sufficient evidence, beyond mere suspicion, that they may have claims and that the defendants may possess relevant documents needed to decide whether to commence proceedings. Relief was refused for the ATO settlement category because the asserted imbalance was based on suspicion and there was no objective evidence supporting a prospective claim, and relief was limited for some older or unsupported transactions.

Court Disposition

Orders for preliminary discovery made under UCPR, r 5.3 in several of the categories sought; directions made for short minutes of order and any outstanding costs issues.

Orders

  • ['Order the parties to bring in short minutes of order to give effect to these reasons by 28 July 2017.' 'If the parties cannot reach agreement upon short minutes of order including an agreed disposition of the costs of these proceedings by 28 July 2017 they are to approach my associate with a view to listing the...