True Value Solar Holdings Pty Ltd & Anor v Fernandez

[2013] VSCA 27

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Corporations
2. › Derivative actions
3. › Leave to commence proceedings on behalf of company
4. › Whether probable that company will not itself bring proceedings or properly take responsibility for them
5. › Whether company's proposal to investigate rather than litigate satisfies s 237(2)(a)
6. › Corporations Act 2001 (Cth), s 237(2)(a)
1. Corporations
2. › Derivative actions
3. › Leave to commence proceedings on behalf of company
4. › Best interests of the company
5. › Whether proposed investigation and oppression proceeding provided adequate alternative remedies
6. › Relevance of concurrent oppression proceeding
7. › Corporations Act 2001 (Cth), s 237(2)(c)
1. Corporations
2. › Derivative actions
3. › Leave to commence proceedings on behalf of company
4. › Relationship between derivative action and oppression proceeding
5. › Whether risk of Anshun estoppel relevant to best interests assessment

Quick Take

A company board's decision to commission an investigation by accountants rather than commence proceedings does not constitute 'properly taking responsibility for' proceedings within s 237(2)(a) of the Corporations Act 2001 (Cth). The existence of a concurrent oppression proceeding is a relevant factor supporting the grant of leave for a derivative action where the derivative claim raises matters not adequately addressed by the oppression proceeding, including claims for breach of directors' duties and constructive trust that can only be brought by the company.