Cemcon, In the matter of Hall Concrete Constructions (Vic) Pty Ltd (ACN 111 087 382) [2009] FCA 696

Cemcon, In the matter of Hall Concrete Constructions (Vic) Pty Ltd (ACN 111 087 382) [2009] FCA 696

Leave was granted under s 237 of the Corporations Act 2001 (Cth) for Cemcon, as a shareholder of HCC, to bring proceedings on behalf of HCC as corporate trustee, as the criteria for leave were satisfied: HCC would not itself bring the proceedings, Cemcon acted in good faith, the action was in the best interests of HCC, there was a serious question to be tried regarding dealings with company assets, and all procedural requirements had been met. The Act applies to corporate trustees.

Jurisdiction
Australia
Judgment Date
26 June 2009
Procedural Posture
Derivative Action Application / Application for Leave to Commence Derivative Proceeding
Outcome
Leave granted for Cemcon to issue proceedings in HCC's name upon undertaking to indemnify HCC for costs; costs of the application are costs in the cause of the Derivative Proceeding.
Legal Topics
['derivative Proceedings' 'corporate Trustees' 'recovery of Trust Property' "directors' Duties" 'standing to Sue']
['corporations Law' 'equity & Trusts'] ['derivative Proceedings' 'corporate Trustees' 'recovery of Trust Property' "directors' Duties" 'standing to Sue']

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Procedural Posture

Derivative Action Application / Application for Leave to Commence Derivative Proceeding

Legal Issues

  1. 1 ['Whether Cemcon as a shareholder is entitled to leave under s 237 of the Corporations Act 2001 (Cth) to bring derivative proceedings on behalf of HCC as corporate trustee' 'Whether HCC as a corporate trustee falls within the scope of s 236-237 of the Act' 'Whether the statutory criteria for leave under s 237(2) are satisfied, including good faith, best interests of the company, and presence of a serious question to be tried']

Ratio Decidendi

Leave was granted under s 237 of the Corporations Act 2001 (Cth) for Cemcon, as a shareholder of HCC, to bring proceedings on behalf of HCC as corporate trustee, as the criteria for leave were satisfied: HCC would not itself bring the proceedings, Cemcon acted in good faith, the action was in the best interests of HCC, there was a serious question to be tried regarding dealings with company assets, and all procedural requirements had been met. The Act applies to corporate trustees.

Court Disposition

Leave granted for Cemcon to issue proceedings in HCC's name upon undertaking to indemnify HCC for costs; costs of the application are costs in the cause of the Derivative Proceeding.

Orders

  • ['Cemcon Constructions Pty Ltd granted leave to issue proceedings in the name of Hall Concrete Constructions (Vic) Pty Ltd against James Leonard Hall and Hall Construction Group Pty Ltd.' 'Cemcon to indemnify Hall Concrete Constructions (Vic) Pty Ltd as set out.' 'Costs of the application for leave to be costs in...