The Court refused derivative leave under s 237 of the Corporations Act 2001 (Cth), finding that the applicant failed to establish good faith (s 237(2)(b)) and that the proposed action was in the best interests of the company (s 237(2)(c)), though a serious question to be tried was found to exist (s 237(2)(d)). Critical to the good faith finding were multiple unexplained inconsistencies between the applicant's prior sworn evidence and the positions advanced through solicitors' affidavits in support of the application, the applicant's failure to file his own affidavit in support, and the inadequacy of the costs indemnity offered given the applicant's modest assets relative to the complexity of the litigation. The Court also refused derivative leave in equity on the same grounds, finding that the 'special and exceptional circumstances' test was not met.
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