Mount Gilead Pty Ltd v Macarthur-Stanham (as executor of the Estate of the late Lee Macarthur-Onslow) [2023] NSWCA 37

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mount Gilead Pty Ltd v Macarthur-Stanham (as executor of the Estate of the late Lee Macarthur-Onslow) [2023] NSWCA 37 Hearing dates: 6–7 June 2022 Date of orders: 07 March 2023 Decision date: 07 March 2023 Before: Bell CJ at [1]; Ward P at [120]; White JA at [121] Decision: (1) Leave to appeal granted. (2) Appeal dismissed with costs. Catchwords: CORPORATIONS – statutory derivative action – application to bring proceedings on behalf of company – where leave sought by officer or former officer of company – whether former officer acting in good faith – whether a serious question to be tried in circumstances where party seeking leave to proceed on behalf of the company against former director had herself entered into a Deed of Settlement shortly prior to the making of the application – whether the Deed of Settlement released some of the claims sought to be brought on behalf of the company – whether the party seeking leave to proceed had demonstrated a seriously arguable case that the company had suffered loss or damage and that it was in the best interests of the company to grant leave pursuant to s 236 of the Corporations Act Legislation Cited: Corporations Act 2001 (Cth) ss 236, 237 Cases Cited: Caradi Pty Ltd v Secretary, Department of Transport [2020] VSCA 197 Chahwan v Euphoric Pty Ltd (2008) 65 ACSR 661; [2008] NSWCA 52 Chahwan v Euphoric Pty Ltd [2006] NSWSC 1002 Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2004] FCAFC 48 Foss v Harbottle (1843) 2 Hare 461; (1843) 67 ER 189 Huang v Wang (2016) 114 ACSR 586; [2016] NSWCA 164 In the matter of Legal Practice Management Group Pty Ltd; nSynergy Pty Ltd and nSynergy International Pty Ltd [2017] NSWSC 1500 In the matter of RUS Holdings (Australia) Pty Ltd [2012] NSWSC 1075 Keyrate Pty Ltd v Hamarc Pty Ltd (2001) 38 ACSR 396; [2001] NSWSC 491 Legato v Roads & Traffic Authority (NSW) [2004] NSWLEC 643 Marcus Clark and Co Ltd v Commissioner for Railways (1949) 29 LVR 98 McDonald v The Deputy Federal Commissioner of Land Tax for New South Wales (1915) 20 CLR 231 MMAL Rentals Pty Ltd v Bruning (2004) 63 NSWLR 167; [2004] NSWCA 451 Mount Gilead Pty Limited v Lee Macarthur-Onslow [2021] NSWSC 396 Nelson v Bellamy [2000] NSWSC 182 Oates v Consolidated Capital Services Pty Ltd (2009) 76 NSWLR 69; (2009) 257 ALR 558; (2009) 72 ACSR 506; [2009] NSWCA 183 Re Global Advanced Metals Pty Ltd (2019) 141 ACSR 222; [2019] NSWSC 1804 Secretary to the Department of Economic Development, Jobs, Transport and Resources v Caradi Pty Ltd [2018] VSC 696 Swansson v R A Pratt Properties Pty Ltd (2002) 42 ACSR 313; [2002] NSWSC 583 Thoo v The Owners Strata Plan No 50276 (No 2) [2012] NSWSC 1313 Upside Property Group Ltd v Tekin [2016] NSWSC 1260 Warner v Ulysius International Trading Pty Ltd [2011] NSWSC 329 Category: Principal judgment Parties: Mount Gilead Pty Ltd (First Applicant) Katrina Julia Denzil Hobhouse (Second Applicant) John Macarthur-Stanham as executor of the Estate of the late Lee Macarthur-Onslow (First Respondent) Andrew William Martin (Second Respondent) Old Mill Properties Pty Ltd (Third Respondent) Representation: Counsel: