Cleanfin Pty Ltd v Forest Carbon Methodology Pty Ltd [2024] FCA 489

Cleanfin Pty Ltd v Forest Carbon Methodology Pty Ltd [2024] FCA 489

Leave was granted to CleanFin to bring derivative proceedings on behalf of FCM against the additional parties as the criteria in s 237 were satisfied. Leave to amend the originating application and statement of claim was granted (subject to provision of further particulars) because the amendments were important for the applicant’s case, delay was justified, and any prejudice could be managed within the trial timetable. Certain paragraphs ([55B.3] and [55F]) required further particulars before the amendments could be accepted as filed.

Parties
Plaintiff: CleanFin Pty Ltd; Defendant/applicant/company for Derivative Proceedings: Forest Carbon Methodology Pty Ltd; Respondent (added Party): Geo Carbon Services Pty Ltd; Respondent (substituted Party): Shirley Tyndall (as Executor of the Estate of Lewis Reginald Devere Tyndall); Respondent: James Philip Schultz; Respondent (original, Now Replaced): Lewis Reginald Devere Tyndall (deceased); Respondent: Terra Carbon Pty Ltd
Jurisdiction
Australia
Judgment Date
10 May 2024
Procedural Posture
Corporations Law/derivative Proceedings / Application for Leave to Bring Derivative Proceedings; Application to Amend Originating Process and Statement of Claim
Outcome
Leave to bring derivative proceedings granted; leave to amend originating process granted, subject to further particulars.
Legal Topics
Derivative Proceedings, Amendment of Pleadings, Security for Costs, Leave to Proceed, Account of Profits
Corporations Derivative Proceedings Amendment of Pleadings Security for Costs Leave to Proceed Account of Profits

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Parties

CleanFin Pty Ltd

Plaintiff

Forest Carbon Methodology Pty Ltd

Defendant/applicant/company for Derivative Proceedings

Geo Carbon Services Pty Ltd

Respondent (added Party)

Shirley Tyndall (as Executor of the Estate of Lewis Reginald Devere Tyndall)

Respondent (substituted Party)

James Philip Schultz

Respondent

Lewis Reginald Devere Tyndall (deceased)

Respondent (original, Now Replaced)

Terra Carbon Pty Ltd

Respondent

Procedural Posture

Corporations Law/derivative Proceedings / Application for Leave to Bring Derivative Proceedings; Application to Amend Originating Process and Statement of Claim

Legal Issues

  1. 1 Whether leave should be granted to bring derivative proceedings under s 237 of the Corporations Act 2001 (Cth) against additional respondents.
  2. 2 Whether leave should be granted to amend the originating process and statement of claim in ongoing derivative proceedings.
  3. 3 Whether the proposed amendments disclose a reasonable cause of action and are sufficiently particularised.

Ratio Decidendi

Leave was granted to CleanFin to bring derivative proceedings on behalf of FCM against the additional parties as the criteria in s 237 were satisfied. Leave to amend the originating application and statement of claim was granted (subject to provision of further particulars) because the amendments were important for the applicant’s case, delay was justified, and any prejudice could be managed within the trial timetable. Certain paragraphs ([55B.3] and [55F]) required further particulars before the amendments could be accepted as filed.

Court Disposition

Leave to bring derivative proceedings granted; leave to amend originating process granted, subject to further particulars.

Orders

  • Plaintiff granted leave to bring proceedings in the name of FCM against Geo Carbon Services Pty Ltd and Shirley Tyndall as Executor.
  • Plaintiff to indemnify FCM in respect of costs, with security for indemnity increased to $3 million and guaranteed by Noble Investments Pty Ltd and Timothy Owen Lebbon.