Pellew (Trustee) v IPSA Holdings Australia Pty Ltd [2024] FCA 939

Pellew (Trustee) v IPSA Holdings Australia Pty Ltd [2024] FCA 939

The application for the appointment of a referee or independent expert to investigate and report on the financial affairs of the company prior to the hearing of the leave application is premature because the resolution of legal and factual issues central to the leave application does not require such a report at this stage. The leave application can proceed on affidavit and other evidence, and if successful, the appropriateness of a reference can be revisited.

Parties
First Applicant: Joanne Jennifer Pellew in her capacity as trustee for the JHR Investment Trust; Second Applicant: Ramizsha Havanna Hajinoor in her capacity as trustee for the JHR Investment Trust; Respondent: IPSA Holdings Australia Pty Ltd; Intervener: Robin Frankle as trustee for the Frankle Family Trust
Jurisdiction
Australia
Judgment Date
16 August 2024
Procedural Posture
Application for Leave to Bring Derivative Action and Application by Intervener / Interlocutory Application (appointment of Referee/independent Expert)
Outcome
Application by the intervener dismissed
Legal Topics
Derivative Actions, Appointment of Referee, Leave to Proceed on Behalf of Company, Directors' Duties, Oppression Remedy
Commercial Law Corporations Law Practice and Procedure Derivative Actions Appointment of Referee Leave to Proceed on Behalf of Company Directors' Duties Oppression Remedy

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Parties

Joanne Jennifer Pellew in her capacity as trustee for the JHR Investment Trust

First Applicant

Ramizsha Havanna Hajinoor in her capacity as trustee for the JHR Investment Trust

Second Applicant

IPSA Holdings Australia Pty Ltd

Respondent

Robin Frankle as trustee for the Frankle Family Trust

Intervener

Procedural Posture

Application for Leave to Bring Derivative Action and Application by Intervener / Interlocutory Application (appointment of Referee/independent Expert)

Legal Issues

  1. 1 Whether to appoint a referee or independent expert to report on the financial affairs of the company prior to determination of application for leave to bring derivative action
  2. 2 Scope and timing of court's discretion to appoint investigator/referee under s 241 of the Corporations Act 2001 (Cth) and s 54A of the Federal Court of Australia Act 1976 (Cth)
  3. 3 Approach to contested financial and legal issues in derivative/oppression proceedings

Ratio Decidendi

The application for the appointment of a referee or independent expert to investigate and report on the financial affairs of the company prior to the hearing of the leave application is premature because the resolution of legal and factual issues central to the leave application does not require such a report at this stage. The leave application can proceed on affidavit and other evidence, and if successful, the appropriateness of a reference can be revisited.

Court Disposition

Application by the intervener dismissed

Orders

  • The intervener's application filed 12 April 2024 be dismissed.
  • Costs reserved.