Hpm Pty Ltd v Fear & Ors

(2002) 171 FLR 12; [2002] WASCA 249

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Corporations
2. › Statutory derivative action
3. › Leave to bring proceedings on behalf of company
4. › Whether ss 236 and 237 of Corporations Law apply to companies in liquidation
5. › Interaction with liquidator's powers under ss 477(6) and 511
6. › Corporations Law, ss 236, 237, 477(6), 511
1. Practice and Procedure
2. › Parties
3. › Body corporate as party
4. › Requirement to proceed by solicitor
5. › Whether leave under s 237 Corporations Law dispenses with requirement
6. › Whether proceedings commenced without solicitor are incompetent
7. › Rules of the Supreme Court (WA), O 4 r 3(2)
1. Practice and Procedure
2. › Costs
3. › Non-party costs orders
4. › Circumstances justifying order against non-party
5. › Person managing litigation with interest in subject matter
6. › Relevance of failure to apply for security for costs or give timely warning
7. › Whether costs should be on indemnity basis
8. › Supreme Court Act 1935 (WA), s 37(1)
9. › Corporations Act, s 242

Quick Take

A person granted leave under s 237 of the Corporations Act to bring proceedings on behalf of a company must still ensure the company is represented by a solicitor as required by court rules; the leave does not authorise the person to conduct the litigation personally. The question whether ss 236-237 apply to companies in liquidation was raised but left open. Where a non-party manages litigation on behalf of an insolvent company and has a personal financial interest in the outcome, a non-party costs order may be made against them.