In the matter of Mycorp Group Pty Limited (and others) [2013] NSWSC 1344

In the matter of Mycorp Group Pty Limited (and others) [2013] NSWSC 1344

Each of the five requirements under s 237(2) Corporations Act is satisfied, including probable inaction by the companies, plaintiff's good faith, proceedings being in best interest of the companies, the existence of serious questions to be tried, and the provision of an appropriate indemnity. Leave is therefore granted for the plaintiff to bring proceedings on behalf of Mycorp Group Pty Limited and Summer Tides Pty Limited.

Parties
Plaintiff: Fred Fajloun; First Defendant: George Khoury; Second Defendant: Mycorp Group Pty Limited; Third Defendant: Moonstone River Pty Limited; Fourth Defendant: Summer Tides Pty Limited; Fifth Defendant: Snowy Falls Pty Limited; Sixth Defendant: Telnac Pty Limited
Jurisdiction
Australia
Judgment Date
03 April 2013
Procedural Posture
Interlocutory Application / Application for Leave to Bring Derivative Proceedings
Outcome
Leave granted for plaintiff to bring derivative proceedings on behalf of Mycorp Group Pty Limited and Summer Tides Pty Limited, subject to indemnity.
Legal Topics
Statutory Derivative Action, Breach of Director's Fiduciary and Statutory Obligations, Leave to Bring Proceedings on Behalf of Companies
Corporations Statutory Derivative Action Breach of Director's Fiduciary and Statutory Obligations Leave to Bring Proceedings on Behalf of Companies

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Parties

Fred Fajloun

Plaintiff

George Khoury

First Defendant

Mycorp Group Pty Limited

Second Defendant

Moonstone River Pty Limited

Third Defendant

Summer Tides Pty Limited

Fourth Defendant

Snowy Falls Pty Limited

Fifth Defendant

Telnac Pty Limited

Sixth Defendant

Procedural Posture

Interlocutory Application / Application for Leave to Bring Derivative Proceedings

Legal Issues

  1. 1 Whether leave should be granted to the plaintiff to bring proceedings on behalf of Mycorp Group Pty Limited and Summer Tides Pty Limited under ss 236 and 237 of the Corporations Act 2001 (Cth)
  2. 2 Whether statutory criteria under s 237(2) are satisfied
  3. 3 Whether plaintiff is acting in good faith

Ratio Decidendi

Each of the five requirements under s 237(2) Corporations Act is satisfied, including probable inaction by the companies, plaintiff's good faith, proceedings being in best interest of the companies, the existence of serious questions to be tried, and the provision of an appropriate indemnity. Leave is therefore granted for the plaintiff to bring proceedings on behalf of Mycorp Group Pty Limited and Summer Tides Pty Limited.

Court Disposition

Leave granted for plaintiff to bring derivative proceedings on behalf of Mycorp Group Pty Limited and Summer Tides Pty Limited, subject to indemnity.

Orders

  • Leave granted to Fred Fajloun to bring proceedings on behalf of Mycorp Group Pty Limited and Summer Tides Pty Limited pursuant to ss 236 and 237 of the Corporations Act 2001 (Cth), on provision of indemnity in agreed form.
  • Directions for the further conduct of the proceedings as per short minutes of order initialled by the judge.