Pierce Patrick Cody v Live Board Holdings Limited ACN 117801242 [2014] NSWSC 820

Pierce Patrick Cody v Live Board Holdings Limited ACN 117801242 [2014] NSWSC 820

Leave for a statutory derivative action under s 237 was not granted because the applicant, as controlling shareholder, was likely able to bring about a situation where the company itself would bring the proceedings, and thus it was not probable that the company would fail to do so.

Parties
First Applicant: Pier Blue Pty Ltd (ACN 117 792 426); Second Applicant: Costa Koulis; First Respondent: Live Board Holdings Limited (ACN 117 801 242); Second Respondent: Pierce Patrick Cody; Third Respondent: Finola Anne Burke; Fourth Respondent: Richard Charles Ochojski; Fifth Respondent: Solitaire Capital Pty Ltd; Sixth Respondent: Cody Investments Pty Limited; Seventh Respondent: Ross McCreath; Eighth Respondent: Ed St John; Ninth Respondent: Randal Leed-Du Toit; Tenth Respondent: Avapple Nominees Pty Limited; Eleventh Respondent: P.J. Inge Executive Superannuation Fund Pty Ltd; Twelfth Respondent: Wilnix Super Pty Ltd; Thirteenth Respondent: Paul Adam Shipley; Fourteenth Respondent: Catherine May Kenny; Fifteenth Respondent: Robert Mactier; Sixteenth Respondent: Anna Houssels; Seventeenth Respondent: Bruce Michael Mann
Jurisdiction
Australia
Judgment Date
18 June 2014
Procedural Posture
Interlocutory Application / Application for Leave for Statutory Derivative Action Under Corporations Act S 237
Outcome
Leave for statutory derivative action not granted
Legal Topics
Statutory Derivative Actions, Leave to Bring Proceedings Under S 237, Members' Rights and Remedies
Corporations Law Statutory Derivative Actions Leave to Bring Proceedings Under S 237 Members' Rights and Remedies

Case Brief

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Parties

Pier Blue Pty Ltd (ACN 117 792 426)

First Applicant

Costa Koulis

Second Applicant

Live Board Holdings Limited (ACN 117 801 242)

First Respondent

Pierce Patrick Cody

Second Respondent

Finola Anne Burke

Third Respondent

Richard Charles Ochojski

Fourth Respondent

Solitaire Capital Pty Ltd

Fifth Respondent

Cody Investments Pty Limited

Sixth Respondent

Ross McCreath

Seventh Respondent

Ed St John

Eighth Respondent

Randal Leed-Du Toit

Ninth Respondent

Avapple Nominees Pty Limited

Tenth Respondent

P.J. Inge Executive Superannuation Fund Pty Ltd

Eleventh Respondent

Wilnix Super Pty Ltd

Twelfth Respondent

Paul Adam Shipley

Thirteenth Respondent

Catherine May Kenny

Fourteenth Respondent

Robert Mactier

Fifteenth Respondent

Anna Houssels

Sixteenth Respondent

Bruce Michael Mann

Seventeenth Respondent

Procedural Posture

Interlocutory Application / Application for Leave for Statutory Derivative Action Under Corporations Act S 237

Legal Issues

  1. 1 Whether it is probable that the company will not itself bring the proceedings as required by s 237(2)(a)
  2. 2 Whether there is a serious question to be tried for the purposes of s 237(2)(d)

Ratio Decidendi

Leave for a statutory derivative action under s 237 was not granted because the applicant, as controlling shareholder, was likely able to bring about a situation where the company itself would bring the proceedings, and thus it was not probable that the company would fail to do so.

Court Disposition

Leave for statutory derivative action not granted

Orders

  • Leave pursuant to Corporations Act 2001 s 237 not granted for Pier Blue Pty Limited to bring proceedings on behalf of Live Board Holdings Limited against its directors.
  • Claim for relief in paragraph 7(a) not formally dismissed, may be renewed at a later stage.