Isak Constructions v Faress [2003] NSWSC 784

Isak Constructions v Faress [2003] NSWSC 784

Leave to intervene was granted under s.237 because Mr Faress fulfilled the statutory criteria: he qualified as an 'officer or former officer', it was probable the company would not itself take steps regarding the District Court judgment, he was acting in good faith, it was in the company's best interests, and the company was sufficiently aware of the application despite non-compliance with formal notice requirements.

Parties
First Plaintiff: Isak Constructions (Aust) Pty Ltd; Second Plaintiff: Mikko Amos Isaaka; First Defendant/applicant: Adib Faress; Second Defendant: Emerald Developments (Aust) Pty Ltd; Third Defendant: Fares Faress
Jurisdiction
Australia
Judgment Date
27 August 2003
Procedural Posture
Statutory Derivative Action / Interlocutory Application for Leave Under S.237 of Corporations Act 2001 (cth)
Outcome
Leave to intervene granted under s.237 of the Corporations Act 2001 (Cth).
Legal Topics
Statutory Derivative Action, Officer or Former Officer Status, Leave to Intervene, Notice Requirement Under S.237
Corporations Law Statutory Derivative Action Officer or Former Officer Status Leave to Intervene Notice Requirement Under S.237

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Parties

Isak Constructions (Aust) Pty Ltd

First Plaintiff

Mikko Amos Isaaka

Second Plaintiff

Adib Faress

First Defendant/applicant

Emerald Developments (Aust) Pty Ltd

Second Defendant

Fares Faress

Third Defendant

Procedural Posture

Statutory Derivative Action / Interlocutory Application for Leave Under S.237 of Corporations Act 2001 (cth)

Legal Issues

  1. 1 Whether Mr Faress is an 'officer or former officer' of the company for the purposes of s.236(1)(a)(ii) of the Corporations Act 2001 (Cth)
  2. 2 Whether it is probable the company will not take responsibility for the District Court proceedings (s.237(2)(a))
  3. 3 Whether Mr Faress is acting in good faith (s.237(2)(b))

Ratio Decidendi

Leave to intervene was granted under s.237 because Mr Faress fulfilled the statutory criteria: he qualified as an 'officer or former officer', it was probable the company would not itself take steps regarding the District Court judgment, he was acting in good faith, it was in the company's best interests, and the company was sufficiently aware of the application despite non-compliance with formal notice requirements.

Court Disposition

Leave to intervene granted under s.237 of the Corporations Act 2001 (Cth).

Orders

  • Leave be granted to Adib Faress to intervene in proceedings 8748 of 2002 in the District Court at the Downing Centre, Sydney, for the purpose of taking responsibility for those proceedings on behalf of the company known as both 'Isak Constructions (Aust) Pty Ltd' and 'Emerald Constructions (Aust) Pty Ltd', being the...