Keyrate P/L v Hamarc P/L & Ors [2001] NSWSC 491

Reported Decision : (2001) 38 ACSR 396

New South Wales Supreme Court

CITATION : Keyrate P/L v Hamarc P/L & Ors [2001] NSWSC 491 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3926/00 HEARING DATE(S) : 26/03/01 JUDGMENT DATE : 19 June 2001

KEYRATE PTY LTD (ACN 069 577 877) (Plaintiff)

PARTIES : HAMARC PTY LTD (ACN 063 422 131) (First Defendant) ALPINE TOURS INTERNATIONAL PTY LTD (ACN 001 900 867) (Second Defendant) FERDINAND OOSTERHOFF (Third Defendant) MELISSA OOSTERHOFF (Fourth Defendant) JUDGMENT OF : Santow J

COUNSEL : M J Slattery, QC/J M Hennessy/A McAvoy (Plaintiff) M Dempsey (Defendants) SOLICITORS : ICQ International (Plaintiff) Turner Freeman (Defendants) CATCHWORDS : CORPORATIONS — Statutory derivative action — Requirement to bring such proceedings in the Company's name does not mean that a statement of claim must actually make the company a plaintiff if otherwise inappropriate — In present case appropriate for representative action to be brought by one defendant against others — Satisfaction of conditions in s237(2) — No necessity for derivative actions and personal actions to arise out of the same transactions — here substantial factual overlap in any event — UK cases not followed having regard also to s63 of Supreme Court Act requiring all matters of controversy between the parties to be tried together so as to avoid multiplicity of proceedings — No impediment under Pt 8 r2 as statutory provision prevails. LEGISLATION CITED : Corporations Law Pt 2F, 1A; Pt 8 r2; s233; s236; s237 Supreme Court Act 1970 s63 Foss v Harbottle (1843) 67 ER 189 CASES CITED : Spokes v Grosvenor Hotel Co Ltd (1897) 2 QB 124 Stroud v Lawson [1898] 2 QB 44 and Prudential Assurance Co Ltd v Newman Industries Ltd [1981] Ch 229 revd [1982] Ch 204 (Court of Appeal) DECISION : Leave granted to bring statutory derivative action but pleadings to be clarified.