In the matter of Canberra Babington Pty Ltd [2021] NSWSC 552

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Canberra Babington Pty Ltd [2021] NSWSC 552 Hearing dates: 3, 4, 15 December 2020 (final submissions 10 March 2021) Date of orders: 20 May 2021 Decision date: 20 May 2021 Jurisdiction: Equity - Corporations List Before: Emmett AJA Decision: Order that: 1. The Plaintiffs be granted leave to file a Third Further Amended Originating Process and Second Further Amended Statement of Claim in the forms that were served at 4.08pm on 4 December 2020. 2. The Plaintiffs file and serve submissions as to costs within 7 days of the publication of these reasons. 3. The Defendants file and serve submissions in response within 7 days of service of the Plaintiffs' submissions. Catchwords: EQUITY — trusts and trustees — beneficiaries — standing to bring proceedings — derivative suit in name of trustee — one group of beneficiaries seeking leave to sue another group in the name of trustee — special or exceptional circumstances — trustee refuses to cross-claim but received judicial advice that defending claims justified — whether proposed action is meritorious CORPORATIONS — members' rights and remedies — oppression — where conduct is oppressive to, unfairly prejudicial to, or unfairly discriminatory against minority — dilution of shareholding via rights issues Legislation Cited: Companies Ordinance 1962 (ACT), s 186 Corporations Act 2001 (Cth), s 601WBI Corporations Law, s 260 (under the Corporations Act 1989 (Cth)) Legislation Act 2001 (ACT), s 23 Limitation Act 1969 (NSW), s 23 Trustee Act 1925 (ACT), ss 9, 75 Cases Cited: Alexander v Perpetual Trustees WA Ltd (2014) 216 CLR 109; [2004] HCA 7 Chanwan v Euphoric Pty Ltd [2009] NSWSC 805 Hayim v Citibank NA [1987] AC 730 Hunt v Summerharvest Pty Ltd [2007] QSC 210 Lidden v Composite Buyers Ltd (1996) 67 FCR 560 Pearson v Commission of Taxation (2001) 116 FCR 357; [2001] FCA 1427 Porker v Richards [2016] SASC 98 Ramage v Waclaw (1988) 12 NSWLR 84 Re Perpetual Trustee Company Limited as trustee for the Joseph Babington Davis Settlement [2020] NSWSC 1574 TAL Life Limited v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 Yeatman v Yeatman (1877) 7 Ch D 210 Category: Procedural rulings Parties: Paul Maurice Davis (First Plaintiff) Mary Ann Sheahan as executor of the estate of the late John Adam Davis (Second Plaintiff) Jil Winifred Nugent (Third Plaintiff) Kay Mary Davis (Fourth Plaintiff) Anne Oslington Collins (Fifth Plaintiff) Canberra Babington Pty Ltd (First Defendant) Anthony Henry Babington Lees (Second Defendant) Venetia Babington Lees (Third Defendant) Jeffrey Noel Babington Lees (Fourth Defendant) Vesta Pty Ltd (Fifth Defendant) Perpetual Trustee Co Ltd (Sixth Defendant) Representation: Counsel: M Hodge QC with B Phillips (Plaintiffs) C Harris SC (First Defendant) M S Henry SC with N E Furlan (Second to Fifth Defendants) A McInerney SC (Sixth Defendant)