Access Courier Systems Pty Ltd v Hunsat Pty Ltd [2009] NSWSC 507

Access Courier Systems Pty Ltd v Hunsat Pty Ltd [2009] NSWSC 507

Access Courier Systems Pty Ltd was required to pay, bear and indemnify Hunsat Pty Ltd for costs of the derivative proceedings in the first instance because the proceedings were in substance part of a broader dispute between Access Courier Systems and its principals and Jatsona Pty Ltd and its principals, the derivative claims formed only part of a larger dispute including Access's own claims, Access appeared impecunious with a substantial risk costs could not later be recovered, and Access's shareholders should be prepared to be responsible for adverse costs where Access seeks to proceed for shareholder benefit.

Jurisdiction
Australia
Judgment Date
06 May 2009
Procedural Posture
Statutory Derivative Action / Notice of Motion Filed 7 January 2009; Ex Tempore Procedural Ruling on Leave, Costs and Further Directions
Outcome
Leave and procedural orders granted, subject to conditions; costs of the notice of motion ordered to be costs in the proceedings; proceedings adjourned for further directions.
Legal Topics
['statutory Derivative Action' 'costs of Prosecuting Derivative Proceedings' 'leave to Proceed Against Company in Liquidation' 'security for Costs']
['corporations Law' 'civil Procedure'] ['statutory Derivative Action' 'costs of Prosecuting Derivative Proceedings' 'leave to Proceed Against Company in Liquidation' 'security for Costs']

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Procedural Posture

Statutory Derivative Action / Notice of Motion Filed 7 January 2009; Ex Tempore Procedural Ruling on Leave, Costs and Further Directions

Legal Issues

  1. 1 ['Whether Access Courier Systems Pty Ltd should be granted leave under Corporations Act, s 237 to bring and conduct proceedings on behalf of Hunsat Pty Ltd.' 'Who should be responsible in the first instance for the costs of prosecuting the derivative proceedings.' 'Whether leave should be granted under Corporations Act, s 471B to bring and conduct proceedings against Palmer Bruyn Pty Ltd (in liquidation).']

Ratio Decidendi

Access Courier Systems Pty Ltd was required to pay, bear and indemnify Hunsat Pty Ltd for costs of the derivative proceedings in the first instance because the proceedings were in substance part of a broader dispute between Access Courier Systems and its principals and Jatsona Pty Ltd and its principals, the derivative claims formed only part of a larger dispute including Access's own claims, Access appeared impecunious with a substantial risk costs could not later be recovered, and Access's shareholders should be prepared to be responsible for adverse costs where Access seeks to proceed for shareholder benefit.

Court Disposition

Leave and procedural orders granted, subject to conditions; costs of the notice of motion ordered to be costs in the proceedings; proceedings adjourned for further directions.

Orders

  • ['Leave granted to the plaintiff to amend its statement of claim by filing an amended statement of claim in the form initialled by the Judge, dated 6 May 2009 and placed with the papers, such leave to expire on 13 May 2009.' 'Order pursuant to Corporations Act, s 237, that Access Courier Systems Pty Ltd be granted...