Kidd v Kwek [2022] FCA 1298

Kidd v Kwek [2022] FCA 1298

On the affidavit material, particularly the first Kidd affidavit, the Court was satisfied that Terrawood Pty Ltd would not bring the proceedings itself, the applicant was acting in good faith, granting leave was in the company's best interests, there was a serious question to be tried, and notice had been appropriately given or leave would be appropriate even if formal notice had not been given. The s 237(2) criteria were therefore satisfied and derivative leave was granted. Leave to amend was also granted. The applicant was awarded costs from 15 July 2022, but not on an indemnity basis.

Jurisdiction
Australia
Judgment Date
19 October 2022
Procedural Posture
Application for Derivative Leave Under S 237 of the Corporations Act 2001 (cth) in Proceedings Seeking Oppression Relief / Interlocutory Application
Outcome
Leave to amend and derivative leave granted; applicant awarded costs of the interlocutory application from and including 15 July 2022 against the first, second and third respondents, but not on an indemnity basis.
Legal Topics
['derivative Leave' 'oppressive Conduct' 'leave to Amend Originating Process' 'costs']
['corporations' 'civil Procedure'] ['derivative Leave' 'oppressive Conduct' 'leave to Amend Originating Process' 'costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Derivative Leave Under S 237 of the Corporations Act 2001 (cth) in Proceedings Seeking Oppression Relief / Interlocutory Application

Legal Issues

  1. 1 ['Whether the criteria for derivative leave under s 237(2) of the Corporations Act 2001 (Cth) were satisfied' 'Whether the applicant should be granted leave to amend the originating process and file the proposed amended originating application and concise statement' 'Whether the applicant should have the costs of the interlocutory application, including whether costs should be on an indemnity basis']

Ratio Decidendi

On the affidavit material, particularly the first Kidd affidavit, the Court was satisfied that Terrawood Pty Ltd would not bring the proceedings itself, the applicant was acting in good faith, granting leave was in the company's best interests, there was a serious question to be tried, and notice had been appropriately given or leave would be appropriate even if formal notice had not been given. The s 237(2) criteria were therefore satisfied and derivative leave was granted. Leave to amend was also granted. The applicant was awarded costs from 15 July 2022, but not on an indemnity basis.

Court Disposition

Leave to amend and derivative leave granted; applicant awarded costs of the interlocutory application from and including 15 July 2022 against the first, second and third respondents, but not on an indemnity basis.

Orders

  • ['The applicant be granted leave to amend the originating process filed in the proceedings in the form of the amended originating application and concise statement annexed to the interlocutory application dated 1 February 2022, pursuant to r 8.21 and r 8.23(2) of the Federal Court Rules 2011 (Cth).' 'The applicant...