Stanton (WA) P/L v Vasquez Investments [2017] NSWSC 128

Stanton (WA) P/L v Vasquez Investments [2017] NSWSC 128

Leave to amend was granted because the proposed amendments expanded the same factual controversy, did not require new evidence from the Plaintiff, and caused no irremediable prejudice or need to vacate the hearing. Leave under s 237 was also appropriate because Bryve would not bring the claims itself, the Plaintiff was acting in good faith, there was a serious question to be tried about the share issue and related conduct, and it was in Bryve's best interests to have the legitimacy of the share issue determined in the existing proceedings. The procedural objection was overcome by treating the Plaintiff as intervening to maintain derivative arguments in proceedings where Bryve remained a...

Jurisdiction
Australia
Judgment Date
15 February 2017
Procedural Posture
Notice of Motion for Leave to Amend Pleadings and for Leave Under S 237 of the Corporations Act 2001 (cth) in Equity Commercial List Proceedings / Interlocutory Application Before Fixed Final Hearing
Outcome
Plaintiff entitled to the amendments sought and to leave pursuant to s 237 of the Corporations Act 2001 (Cth), with precise orders, including any undertaking as to Bryve's costs and costs of the motion, to be addressed after hearing the parties.
Legal Topics
['statutory Derivative Action' 'leave to Amend Pleadings' 'trustee Indemnity and Equitable Lien' 'alienation of Property to Defraud Creditors' 'issue of Shares' "directors' Duties" 'abuse of Process' 'best Interests of Company']
['corporations' 'equity' 'trusts' 'civil Procedure'] ['statutory Derivative Action' 'leave to Amend Pleadings' 'trustee Indemnity and Equitable Lien' 'alienation of Property to Defraud Creditors' 'issue of Shares' "directors' Duties" 'abuse of Process' 'best Interests of Company']

Case Brief

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Procedural Posture

Notice of Motion for Leave to Amend Pleadings and for Leave Under S 237 of the Corporations Act 2001 (cth) in Equity Commercial List Proceedings / Interlocutory Application Before Fixed Final Hearing

Legal Issues

  1. 1 ['Whether the Plaintiff should be granted leave to amend its Amended Summons and Amended Commercial List Statement.' 'Whether leave under s 237 of the Corporations Act 2001 (Cth) should be granted to permit the Plaintiff to maintain derivative claims concerning Bryve Resources Pty Ltd.' 'Whether the proposed derivative claims were brought in good faith or amounted to an abuse of process.' 'Whether there was a serious question to be tried about the issue of 19,000 new shares in Bryve Resources Pty Ltd.' 'Whether granting leave was in the best interests of Bryve Resources Pty Ltd.' 'Whether Bryve Resources Pty Ltd could remain a defendant while derivative claims were pursued in the existing proceedings.']

Ratio Decidendi

Leave to amend was granted because the proposed amendments expanded the same factual controversy, did not require new evidence from the Plaintiff, and caused no irremediable prejudice or need to vacate the hearing. Leave under s 237 was also appropriate because Bryve would not bring the claims itself, the Plaintiff was acting in good faith, there was a serious question to be tried about the share issue and related conduct, and it was in Bryve's best interests to have the legitimacy of the share issue determined in the existing proceedings. The procedural objection was overcome by treating the Plaintiff as intervening to maintain derivative arguments in proceedings where Bryve remained a...

Court Disposition

Plaintiff entitled to the amendments sought and to leave pursuant to s 237 of the Corporations Act 2001 (Cth), with precise orders, including any undertaking as to Bryve's costs and costs of the motion, to be addressed after hearing the parties.

Orders

  • ['The Plaintiff is entitled to the amendments sought.' 'The Plaintiff is entitled to leave pursuant to s 237 of the Corporations Act 2001 (Cth).' "The parties are to be heard on the precise form of orders, including the question of an undertaking in respect of Bryve's costs arising by reason of the derivative...