Reported Decision : 218 FLR 73 New South Wales Supreme Court CITATION : Oates v Consolidated Capital Services Ltd [2008] NSWSC 464 HEARING DATE(S) : 09/04/08, 10/04/08 JUDGMENT DATE : 15 May 2008 JURISDICTION : Equity Division Corporations List JUDGMENT OF : Barrett J DECISION : Claims in plaintiff's further amended originating process filed on 9 April 2008 dismissed with costs. CATCHWORDS : CORPORATIONS - statutory derivative action - claim by former officer for leave under s 237 to bring two proceedings on behalf of Australian company - first proceeding is general law derivative action to be initiated by Australian company as sole member of English company alleging breach of directors' duties owed to English company - whether such "double derivative" proceeding is within ss 236 and 237 - second proceeding is action by Australian company for breach of directors' duties owed to Australian company - whether serious question to be tried shown LEGISLATION CITED : Corporations Act 2001 (Cth), ss 9, 236, 237 State Property Act 1954 (Ireland), s 28(2)(b) CATEGORY : Principal judgment Alexander v Automatic Telephone Co [1900] 2 Ch 56 Campbell v Kitchen & Sons Ltd (1910) 12 CLR 513 Chahwan v Euphoric Pty Ltd [2008] NSWCA 52 Charlton v Baber [2003] NSWSC 745; (2003) 47 ACSR 31 Fiduciary Ltd v Morningstar Research Pty Ltd [2005] NSWSC 442 Foss v Harbottle (1843) 2 Hare 461; 67 ER 189 Goozee v Graphic World Group Holdings Pty Ltd [2002] NSWSC 640; (2002) 42 ACSR 534 Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd [1969] 2 NSWR 782 Herbert v Redemption Investments Pty Ltd [2002] QSC 340 Jeans v Deangrove Pty Ltd [2001] NSWSC 84 Keyrate Pty Ltd v Hamarc Pty Ltd [2001] NSWSC 491; (2001) 38 ACSR 396 Konamaneni v Rolls-Royce Industrial Power (India) Ltd [2002] 1 WLR 1269 Maher v Honeysett & Maher Electrical Contractors Pty Ltd [2005] NSWSC 859 CASES CITED : Menier v Hooper's Telegraph Works (1874) 9 Ch App 350 Metyor Inc v Queensland Electronic Switching Pty Ltd [2002] QCA 269; [2003] 1 Qd R 186 Nurcombe v Nurcombe [1985] 1 WLR 370 Oates v Consolidated Capital Services Pty Ltd [2007] NSWSC 680 Peninsular and Oriental Steam Navigation Co v Johnson (1938) 60 CLR 189 Pergamon Press Ltd v Maxwell [1970] 1 WLR 1167 Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204 R v Portus; ex parte Federated Clerks' Union of Australia (1949) 79 CLR 428 Ragless v IPA Holdings Pty Ltd [2008] SASC 90 Re Ross; ex parte Attorney General for the Northern Territory (1980) 54 ALJR 145 South Johnstone Mill Ltd v Dennis and Scales [2007] FCA 1448; (2007) 64 ACSR 447 Spokes v The Grosvenor Hotel and West End Railway Terminus Hotel Co Ltd [1897] 2 QB 124 Virgtel Ltd v Zabusky [2006] QSC 66; [2006] 2 QdR 281 Waddington Ltd v Chan Chun Hoo Thomas [2006] HKCA 196 Tom Michael Oates - Plaintiff PARTIES : Consolidated Capital Services Pty Limited - First Defendant Consolidated Capital Limited - Second Defendant FILE NUMBER(S) : SC 1021/07 COUNSEL : Mr P C Silver - Plaintiff Mr R B S Macfarlan QC/Mr J A N Hogan-Doran - Defendants SOLICITORS : Chang, Pistilli & Simmons - Plaintiff Eakin McCaffrey Cox - Defendants IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST BARRETT J THURSDAY 15 MAY 2008 1021/07 TOM MICHAEL OATES v CONSOLIDATED CAPITAL SERVICES PTY LTD & 2 ORS JUDGMENT Background 1 Mr Oates is a former director of Consolidated Capital Services Pty Ltd ("CCAust"). In that capacity, he seeks leave under s 237 of the Corporations Act 2001 (Cth) to act on behalf of CCAust in pursuing certain litigation to which I shall come. 2 Before going further, I should say something about the relevant corporate structure. CCAust is an Australian company registered under the Corporations Act. All the shares in CCAust are held and beneficially owned by an Irish company, Consolidated Capital Acceptances Ltd ("CCI") – or, at least, that was the position at the time CCI was dissolved under the law of the place of its incorporation. Since dissolution, nothing has been owned by CCI and, while shares in CCAust may continue to be registered in the name of CCI, those shares are now vested in the Irish State in consequence of the dissolution and by operation of s 28(2)(b) of the State Property Act 1954 (Ireland). There was a finding to that effect by White J at an earlier stage of these proceedings: Oates v Consolidated Capital Services Pty Ltd [2007] NSWSC 680. 3 CCAust, the wholly owned subsidiary of CCI, had (and continues to have) a wholly owned subsidiary of its own, Consolidated Capital Ltd ("CCEng"), a company incorporated in England and Wales. Disregarding the dissolution of CCI, the position is that CCI holds all the shares in CCAust and CCAust holds all the shares in CCEng. Mr Oates' complaint 4 All three companies were brought into existence in 2001 for the purposes of business ventures of Mr Oates, Mr Tyne, Mr Hawkins and Mr Mallin. The business ventures were concerned with the development and marketing of structured finance products in the United Kingdom and elsewhere in Europe. The individuals had skills and experience in that field of commerce and (with the exception of Mr Mallin) had been for a few years associated together in business in Australia. 5 Mr Oates' complaint is that two of his colleagues, Mr Tyne and Mr Hawkins, appropriated to themselves (or to companies they controlled) commercial advantages properly belonging to CCAust or CCEng. By "commercial advantages", I mean what has loosely been described as "intellectual property" and "business opportunities". The essential allegation is that Mr Tyne and Mr Hawkins were instrumental in causing interests associated exclusively with them to occupy the advantageous commercial position that had previously been occupied by either CCAust or CCEng, thereby ousting the relevant company without any attention to its own separate interests. 6 Mr Tyne and Mr Hawkins were directors of both CCAust and CCEng at the time of these alleged events. Mr Oates had been a director of each company but ceased to be in office shortly before the events in question. Indeed, he would say that it was his departure that prompted the two remaining directors to act as they did, so as to exclude him from the enjoyment of advantages that would otherwise have accrued to him under the corporate structure (as will be seen presently, Mr Oates had, at material times, a 20% ownership interest in the share capital of CCI). Mr Tyne and Mr Hawkins continue as the directors of CCAust and CCEng. 7 Based on the circumstances (or alleged circumstances) I have just described, Mr Oates maintains that Mr Tyne and Mr Hawkins committed breaches of duties owed by them as directors to whichever of CCAust and CCEng was deprived by them of valuable rights, advantages or opportunities. The companies owned by Mr Tyne and Mr Hawkins which benefited from the alleged deprivations are said to have been complicit in the breaches of directors' duties. Mr Oates wishes to see whichever of the two companies that was wronged in this way bring proceedings against Mr Tyne, Mr Hawkins and their personal companies to obtain vindication for the alleged wrongs. Mr Oates' problem 8 The problem for Mr Oates is, of course, that any relevant cause of action belongs to CCAust or CCEng; and that he is not himself in a position to set either company in motion in the conventional way with a view to seeking redress. The ability to cause the companies to sue rests with their directors, Mr Tyne and Mr Hawkins. But they are persons who would be under attack if either company brought proceedings of the kind Mr Oates envisages. 9 Mr Oates also lacks influence at shareholder level. As I have said, CCAust owns all the shares in CCEng and CCI owns all the shares in CCAust – or, at least, that was the position before CCI's dissolution. Mr Oates had a 20% shareholding interest (held for him by a nominee) in CCI but, while that company remains non-existent, he cannot exercise rights attaching to those shares. The shares are, in any event, a minority. Mr Oates' resort to ss 236 and 237 10 Mr Oates resorts to ss 236 and 237 of the Corporations Act in an attempt to have proceedings brought against the persons who, he says, are liable to account or render compensation for breaches of directors' duties owed to CCAust or CCEng. It is convenient, at this point, to set out the relevant statutory provisions. 11 Sections 236 of the Corporations Act is as follows: " Bringing, or intervening in, proceedings on behalf of a company (1) A person may bring proceedings on behalf of a company, or intervene in any proceedings to which the company is a party for the purpose of taking responsibility on behalf of the company for those proceedings, or for a particular step in those proceedings (for example, compromising or settling them), if: (a) the person is: (i) a member, former member, or person entitled to be registered as a member, of the company or of a related body corporate; or (ii) an officer or former officer of the company; and (b) the person is acting with leave granted under section 237. (2) Proceedings brought on behalf of a company must be brought in the company's name. (3) The right of a person at general law to bring, or intervene in, proceedings on behalf of a company is abolished. Note 1: For the right to inspect company books, see subsections 247A(3) to (6). Note 2: For the requirements to disclose proceedings and leave applications in the annual directors' report, see subsections 300(14) and (15). Note 3: This section does not prevent a person bringing, or intervening in, proceedings on their own behalf in respect of a personal right." 12 Sections 237(1) and 237(2) are as follows: " Applying for and granting leave (1) A person referred to in paragraph 236(1)(a) may apply to the Court for leave to bring, or to intervene in, proceedings. (2) The Court must grant the application if it is satisfied that: (a) it is probable that the company will not itself bring the proceedings, or properly take responsibility for them, or for the steps in them; and (b) the applicant is acting in good faith; and (c) it is in the best interests of the company that the applicant be granted leave; and (d) if the applicant is applying for leave to bring proceedings—there is a serious question to be tried; and (e) either: (i) at least 14 days before making the application, the applicant gave written notice to the company of the intention to apply for leave and of the reasons for applying; or (ii) it is appropriate to grant leave even though subparagraph (i) is not satisfied." 13 The application with which I am now dealing is an application by Mr Oates, by further amended originating process filed on 9 April 2008, for leave under s 237. He makes the application in his capacity as a former officer of CCAust. Mr Oates maintains that a grant of leave under s 237 can put him into a position where he can take action to assert and enforce not only rights of CCAust but also rights of CCEng. The first part of this proposition is undoubtedly true: CCAust is a "company" within both the meaning given to that term by s 9 of the Corporations Act and the modified meaning that applies for the purposes of ss 236 and 237: Chahwan v Euphoric Pty Ltd [2008] NSWCA 52. CCEng, however, is clearly not a "company" as referred to in ss 236 and 237. Matters to be decided 14 Argument before me on Mr Oates' application for leave under s 237 concentrated on the following matters raised by CCAust (through its directors, Mr Tyne and Mr Hawkins) in opposition to a grant of the leave sought: 1. Insofar as the intended proceedings are based on alleged wrongs done to CCAust itself (by way of appropriation of commercial advantages belonging to it), leave must be refused because: (a) there is no serious question to be tried, as required by s 237(2)(d) – since any appropriated commercial advantages did not belong to CCAust; or (b) even if there is a serious question to be tried (so that s 237(2)(d) is satisfied), the expense and complexity of the recovery or vindication proceedings brought by Mr Oates on behalf of CCAust would be quite disproportionate to any relief ultimately awarded, so that it is not, in terms of s 237(2)(c), in the best interests of CCAust that Mr Oates be granted leave. 2. A grant of leave under s 237 to Mr Oates, as a former officer of CCAust, to bring proceedings on behalf of CCAust will permit him to pursue for CCAust any claims it has because of breaches of the duties of its own directors, but cannot put him into a position from which he can cause the putative defendants to be sued on account of any breaches of duties owed by directors of CCEng. 15 This second point has two aspects to it. One concerns the nature of a general law derivative action, it being recognised on both sides that the most Mr Oates can achieve through ss 236 and 237 is the ability to bring proceedings on behalf of CCAust and that any proceedings brought by CCAust (as the sole shareholder of CCEng) for the benefit of and based on rights of CCEng would have to be a derivative action within the limits allowed by the general law. The second point is that, as CCAust and Mr Tyne and Mr Hawkins see things, a derivative action asserting the rights of a company cannot be brought by that company's sole shareholder. They see the general law derivative action as a minority shareholder facility only, with the result that CCAust could not bring a general law derivative action for CCEng even if Mr Oates were able to set CCAust in motion. Can s 237 enable Mr Oates to pursue causes of action belonging to CCEng? 16 It is convenient to consider first the questions raised by the second point of objection raised by CCAust, Mr Tyne and Mr Hawkins, that is, whether a grant of leave under s 237 could, of its nature, put Mr Oates in a position where he could initiate litigation for the benefit of CCEng. 17 Section 236(1) enables a person to "bring proceedings on behalf of a company" or to "intervene in any proceedings to which the company is a party" if specified conditions are satisfied. The part of the section concerned with intervention is not relevant to the present case. The only relevant aspect is that concerning bringing of proceedings. 18 One of the conditions arising from s 236(1) is that the person stand in a particular relationship to the company. The relationship of "former officer" is sufficient: s 236(1)(a)(ii). Mr Oates is a former director and therefore a former officer of CCAust. The other condition under s 236 is that the person "is acting with leave granted under section 237". The application now before me is an application by Mr Oates for leave under s 237. 19 If CCAust, as a plaintiff, were to attempt to obtain redress against Mr Tyne, Mr Hawkins and their associated entities on behalf of CCEng, it would be necessary for CCAust to bring a derivative action against those defendants on general law principles. CCAust, as a member of CCEng, would sue under some applicable exception to the "proper plaintiff rule" (Foss v Harbottle (1843) 2 Hare 461; 67 ER 189). The proper plaintiff rule was said in Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204 at 210 to be based on "the elementary principle that A cannot, as a general rule, bring an action against B to recover damages or secure other relief on behalf of C for an injury done by B to C. C is the proper plaintiff because C is the party injured, and, therefore, the person in whom the cause of action is vested". 20 In some circumstances, a shareholder ("A") can bring an action against a person ("B") to recover damages or secure other relief on behalf of the company in which shares are held ("C") for an injury done to the company ("C") by that person ("B"). Such circumstances warrant departure from the proper plaintiff rule so that the shareholder maintains an action for the purpose of enforcement of the company's rights against others (Peninsular and Oriental Steam Navigation Co v Johnson (1938) 60 CLR 189 at 223) or brings an action to enforce the company's claim (Nurcombe v Nurcombe [1985] 1 WLR 370 at 378. 21 But the shareholder does this "on behalf of himself and all other members of the defendant company" (Campbell v Kitchen & Sons Ltd (1910) 12 CLR 513 at 514). 22 The form of the action is important. The shareholder's grievance is twofold: first, that wrong has been done to the company in which the shareholder holds shares and, second, that the company itself has not taken steps to seek redress against the wrongdoer. The particular shareholder then sues, as has been said, on behalf of himself and the other members. The correct form of the proceeding is one in which the complaining shareholder is plaintiff: Menier v Hooper's Telegraph Works (1874) 9 Ch App 350; Alexander v Automatic Telephone Co [1900] 2 Ch 56. The company, however, must be made a defendant. This is because "the company must be party to the suit in order to be bound by the result of the action and to receive the money received in the action": Spokes v The Grosvenor Hotel and West End Railway Terminus Hotel Co Ltd [1897] 2 QB 124 at 128. 23 The shareholder's position as plaintiff is thus no more than a procedural device to deal with the difficulty that those able to set the company in motion have not done so. The right the shareholder asserts as nominal plaintiff is the right of the company; and if a remedy is awarded by the court, it is the company, not the shareholder, that is the beneficiary of the judgment or order awarding the remedy. As was said in the Spokes case (at 129), "what is recovered cannot be paid to the plaintiff representing the minority, but must go into the coffers of the company". 24 In the present context, it would be CCAust that maintained a derivative action for wrongs done to CCEng (I leave to one side, at this point, the question whether its status as sole member denies it that ability). CCAust would be the plaintiff in any such action, but only in the nominal sense to which I have referred. CCAust, although the plaintiff, would not enjoy in its own right whatever was recovered – that "must go into the coffers of the company", that is, CCEng. The question is whether someone who has, by virtue of leave granted under s 237, the capacity to "bring proceedings on behalf of" CCAust can cause CCAust to sue not for its own benefit but as nominal plaintiff under a procedural device by which CCAust, as the shareholder of CCEng, asserts and pursues the cause of action vested in CCEng. 25 In contending that that question should be answered in the affirmative, Mr Silver of counsel, who appeared for Mr Oates, relied on Waddington Ltd v Chan Chun Hoo Thomas [2006] HKCA 196 in which the Hong Kong Court of Appeal held that there was no objection to what it described as "a double derivative action". But what was intended to be covered by this label is shown by the actual decision, that is, that a shareholder in a company might bring a general law derivative action aimed at obtaining a remedy for a wholly owned subsidiary of that company for a wrong done to the subsidiary. I quote from paragraph [30] of the judgment: "The circumstances of today, where large companies, particularly public companies, conduct their affairs with a multiplicity of subsidiary companies which are no more than assets wholly controlled and, in practice, virtually indistinguishable from the holding company, are very different from the days in which derivative actions were first devised. If it indeed be the case that a subsidiary company is no more than an asset which is controlled in much the same way as any other asset of a holding company, I cannot say that the law should deprive a shareholder of the holding company an opportunity to have a wrong righted, if that wrong was technically suffered by the subsidiary, but the effect of the wrong would resound to the holding company." 26 This case is of no assistance to Mr Oates. He is not a shareholder of CCAust. Any right he has to sue on behalf of CCAust will be solely the statutory right given by s 236, assuming leave is granted to him under s 237. And that right, if it arises, will be founded on his status as a former officer of CCAust, a status which, in the general law context, is quite insufficient to support (indeed, entirely irrelevant to) the capacity to maintain an action for the benefit of a non-plaintiff company joined as a defendant to a derivative action. 27 The real point to be considered in relation to Mr Oates' desire to bring a "double derivative action" for the benefit of CCEng, in exercise of leave granted to him under s 237 as a former officer of CCAust, turns on the proper construction of the statutory provisions: if Mr Oates caused CCAust to adopt the role of plaintiff in derivative proceedings based on alleged wrongs done to CCEng and aimed at obtaining remedies for CCEng (with CCEng itself joined as a defendant), would Mr Oates be bringing those proceedings "on behalf of" CCAust? This is the crucial question because all that can be done by someone who has one of the s 236(1)(a) relationships with a company and obtains a grant of leave under s 237 is to "bring proceedings on behalf of" that company. 28 The expression "on behalf of" is "not an expression which has a strict legal meaning": R v Portus; ex parte Federated Clerks' Union of Australia (1949) 79 CLR 428 at 435 per Latham CJ. It "may be used in conjunction with a wide range of relationships, all however in some way concerned with the standing of one person as auxiliary to or representative of another person or thing": Re Ross; ex parte Attorney General for the Northern Territory (1980) 54 ALJR 145 at 149 per Stephen J, Mason J, Murphy J and Aickin J. 29 There is little to be gleaned from ss 236 and 237 and related provisions within Part 2F.1A as to the meaning of "on behalf of" in the particular context. Section 236(2) requires that the proceeding brought "on behalf of" the company by the person granted leave be "brought in the company's name". But that does not necessarily mean that the company must appear as plaintiff in the initiating process: it may be a defendant, as long as it is clear that relief is sought for it: Keyrate Pty Ltd v Hamarc Pty Ltd [2001] NSWSC 491; (2001) 38 ACSR 396; Metyor Inc v Queensland Electronic Switching Pty Ltd [2002] QCA 269; [2003] 1 Qd R 186. What s 236(2) does indicate, however, is that a person to whom s 237 leave is granted can only sue both "on behalf of" and "in the name of" the company. 30 Another indication of the concept embraced by the words "on behalf of" in s 236(1) comes from s 236(3) which abolishes "[t]he right of a person at general law to bring, or intervene in, proceedings on behalf of a company". This is an indication that the right conferred by s 236(1) is intended to be (and is) a right that is substituted by statute for the general law right to bring a derivative action. The importance of this in interpreting the statutory provisions is emphasised in Chahwan v Euphoric Pty Ltd (above). 31 Taken together, these two indications show that the person proceeding through s 236(1) must assert some cause of action for which the company could sue in its own name. They also show that the person must assert the cause of action only as representative of the company, the intention being that the company, as the real plaintiff, will benefit from any recovery or other favourable outcome. 32 A shareholder bringing a general law derivative action does not possess any substantive cause of action. That belongs to the company. All the shareholder has is a right or claim, by default and as a matter of procedure only, to formulate the substantive cause of action against the persons alleged to have wronged the company and to promulgate that cause of action in a proceeding against those persons for the benefit of the company, with the company being named as a defendant. 33 This right or claim of the moving shareholder does not have independent substance. No remedy can be awarded to that person. This is because the circumstances are such that the shareholder cannot say that the shareholder has suffered wrong; nor does the shareholder purport to say that. The shareholder merely says that the company has suffered wrong. The shareholder's right or claim is purely procedural and a reflection of equity's emphasis on ensuring that the forms of actions at law do not allow a wrong to go without a remedy. 34 A further point should be mentioned. Sections 236 and 237 do contemplate a form of "double derivative action", but make it clear that this is unavailable to someone who is merely an officer or former officer. Where a substantive cause of action is vested in a "company" which is a subsidiary of another body corporate, it is open to a member or former member of that other body corporate to bring proceedings on behalf of the subsidiary "company", subject to obtaining a grant of leave under s 237. This is the effect of s 236(1)(a)(i) and its reference to "a member [or] former member . . . of the company or of a related body corporate". Thus, a former member of, say, a United Kingdom company which owns all the shares in a "company" within the meaning of ss 236 and 237 may resort to those sections in order to bring proceedings in the nature of a "double derivative action" on behalf of that "company". That there is no similar extension in relation to the bringing of proceedings by an officer or former officer emphasises the narrowness of the avenues available to those persons. Section 237 cannot avail Mr Oates qua CCEng 35 A grant of leave to Mr Oates under s 237 could do no more than put him into a position to assert for the benefit of CCAust a cause of action belonging to CCAust itself. That company does not have any cause of action arising out of any wrongful appropriation of assets or advantages belonging to CCEng. The most that CCAust conceivably has is a right to bring a derivative action for the benefit of CCEng, with CCAust as nominal plaintiff but with CCEng as a nominal defendant for which the claims for remedies are advanced. The pursuit of any such right of CCAust would not involve the bringing of proceedings "on behalf of" CCAust – rather, the proceedings would be brought "on behalf of" CCEng. This is because, if the claims made in the proceedings were upheld, nothing would accrue to CCAust and everything would accrue to CCEng. 36 I am accordingly of the opinion that proceedings that Mr Oates caused CCAust to initiate as nominal plaintiff for the benefit of CCEng and in which remedies for CCEng alone were sought would not be, in terms of s 236(1), proceedings brought "on behalf of" CCAust. Leave under s 237 therefore cannot be granted to enable Mr Oates to proceed in that way. Other perceived obstacles qua CCEng 37 The conclusion that ss 236 and 237 cannot put Mr Oates into a position where he can cause CCAust to bring a general law derivative action for the benefit of CCEng makes it unnecessary to decide whether any such derivate action would be flawed because the shareholder bringing it was the sole shareholder. I nevertheless give brief attention to the matter. 38 CCAust says that a sole shareholder cannot maintain a derivative action for a company under any of the exceptions to the rule in Foss v Harbottle. CCAust relies, in this respect, on an observation of Street J in Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd [1969] 2 NSWR 782. His Honour said, at 789, that what he called "the fraudulently over-ridden minority exception" to the proper plaintiff rule can never apply where there is a single shareholder. That must follow as a matter of logic. 39 But it does not follow that a single shareholder is precluded from relying on the so-called "fifth exception" (or "justice exception") to the rule in Foss v Harbottle. In Virgtel Ltd v Zabusky [2006] QSC 66; [2006] 2 QdR 281, de Jersey CJ said at [91]: "The fifth exception, I should add, is not limited to a situation where the applicant is a minority shareholder. That emerges implicitly from Biala , p. 73, and more generally, from there being no expression of any such limitation in the relevant case law. I adopt Mr Morrison's description of this exception as "a flexible catch-all where the interests of justice require", and consider restricting its availability to minority shareholders would be inconsistent with that. As this case illustrates, a majority shareholder may not be able to secure a majority vote to cause the company to take a proceeding or the appointment of directors who will do so." 40 If a majority shareholder can take advantage of the fifth (or justice) exception to the rule in Foss v Harbottle, so too, in my opinion, can a sole shareholder. But the practical issue in the present case, as it affects CCEng, is that there is no one with an interest in setting the sole shareholder in motion who has any lawful and effective means of doing so. Mr Oates is not a shareholder of CCEng. Nor, as I have found, are ss 236 and 237 available to him in such a way as to enable him to cause CCAust to bring a general law derivative action for the benefit of CCEng. 41 That inability also makes it unnecessary to consider whether this court would, in any event, be the convenient forum for such an action. It is sufficient merely to note that, in Pergamon Press Ltd v Maxwell [1970] 1 WLR 1167, Pennycuick J took the view that the extent of the duties owed by a director of a foreign company are governed by the law of the place of incorporation and that the courts of that place are "the only proper tribunal" in which members can litigate alleged breaches of those duties; while in Konamaneni v Rolls-Royce Industrial Power (India) Ltd [2002] 1 WLR 1269 at 1286, Lawrence Collins J expressed the view that, in light of developments since 1970, the first proposition remains correct but that the second should be re-stated as: "the courts of the place of incorporation are very likely indeed to be the appropriate forum, but not so overwhelmingly that they will necessarily be the exclusive forum". The courts of the place of incorporation in this case are the English courts. Mr Oates' claim for leave to sue on behalf of CCAust 42 I turn now to the quite separate matter of Mr Oates' claim for a grant of leave under s 237 enabling him to bring proceedings on behalf of CCAust in its own right against the putative defendants. As the centre of those proceedings would be the allegation that Mr Tyne and Mr Hawkins, as directors of CCAust, had breached duties owed by them to CCAust and that a cause of action thereby accrued to CCAust against them, as well as against the transferees to whom they had directed rights and advantages properly belonging to CCAust. 43 As I have said, the principal contention of CCAust is that leave under s 237 should be refused because the criterion in s 237(2)(d) is not satisfied, there being no serious question to be tried. The contention is that, if there is any cause of action at all for breach of directors' duties, it is a cause of action vested in CCEng, not CCAust. This is said to be the case because, if there was any wrongful taking of rights and commercial advantages, they were rights and commercial advantages of CCEng, as distinct from CCAust. 44 It is necessary to go into some matters of factual background. The factual context 45 Mr Oates, Mr Tyne and Mr Hawkins first worked together at Matrix Group Ltd in Sydney. Mr Oates joined that company in 1998 from Mallesons Stephen Jaques where Mr Tyne had also been employed at an earlier time. Matrix was in the business of arranging and managing structured finance transactions for a fee. In 2000, Mr Oates and Mr Hawkins met with Mr Mallen, who had been deputy chairman of an English merchant bank. As a result of this meeting, it appeared that there might be an opening for Matrix in the English market and, with the consent of his colleagues at Matrix and at their prompting, Mr Oates moved to London. His moving expenses and accommodation were paid for by Matrix. 46 After establishing himself in London, Mr Oates raised with Mr Tyne and Mr Hawkins the question of how the proposed new United Kingdom business was to be structured. No decision was made on the matter at that point. 47 In early 2001, it had been decided that there were good business prospects in the United Kingdom. The corporate structure I have earlier described was then created with the assistance of Pricewaterhouse Coopers, London. Mr Oates says that the particular structure was adopted "for tax reasons" based on PwC advice. 48 It appears that a meeting took place with Mr Derek Jenkins of PwC, London, on 21 February 2001. Mr Oates deposes to having attended upon Mr Jenkins on that day. He had sent an email to Mr Jenkins two days earlier, on 19 February 2001, in which he outlined the general objectives of himself, Mr Tyne and Mr Hawkins. The email should be quoted in full: "Dear Derek I thought it may be worth while setting out broadly the matters we would like to discuss on Wednesday. By way of background, we (myself, Garrick Hawkins and Scott Tyne) are the principals of an investment banking business in Australia, Matrix Group Limited, along with other directors. We wish to establish a new international investment banking business separate from the Australian business, focusing mainly on the European markets. We wish to do so in a tax effective manner, whilst still having a credible name and a feeling of permanence. As we are focusing on a number of European countries and likely to be moving around from place to place – eg 3-6 months in London and then 3-6 months in Stockholm (we are looking at a transaction at Sweden), we though it may be worthwhile considering establishing (incorporating) the business in a geographically central European country and preferably one with a lower tax rate regime. We envisage that the principals of the new business would spend various amounts of time in a number of European countries. Obviously, the matters we need to discuss include: - the choice of jurisdiction under which we would incorporate the new company - a representative office vs a permanent establishment here in the UK (ie ensuring only the former) - when our individual presence in say the UK (eg my spending 6 months here) would amount to being carrying on duties as a dependent agent for the new business (would this only arise if the individual was considered a resident himself?) - timing, forms, costs etc. If you have any questions before our meeting, please let me know. Otherwise I look forward to meeting you on Wednesday at 11.30am. Regards Tom Oates" 49 There is no comprehensive contemporary record of what transpired at the meeting. There is an email of 22 February from Mr Oates to Mr Hawkins referring to "the Irish parent and the UK service company". 50 In an email of 13 March 2001, Mr Oates asked Mr Tyne and Mr Hawkins for certain information in connection with the establishment of UK and Irish companies. Mr Oates also said: "We also need to set up an Aust company, perhaps Consolidated Capital International Services P/L, that will be owned by the Irish parent and that will own the UK company and provide services to the Irish company with the UK company in turn providing UK services to the Aust company. Any chance of asking David Taylor to set aside a shelf company and reserve the name? All this works for the UK and Ireland from a tax point of view and it seems okay from an Australian tax point of view but is it worth checking with Blakes? I am happy to send Upfold an email or call him, but we need the Aust company ASAP in any case. We can check with Upfold over the next few weeks." 51 Early in 2001, Mr Oates sent an email to Mr Casey of PwC, Ireland, outlining for whose account and in what proportions shares in the Irish company should be held by a "nominee shareholder". Mr Casey replied to Mr Oates with details of how the Irish company had been established. The nominee shareholder was Corporate Secretaries Limited. It apparently executed declaration of trust in favour of Mr Oates (20 shares), Argot Limited (35 shares), DHS (Hong Kong) Limited (35 shares) and Mrs Mallen (10 shares). 52 Mr Oates' understanding of the purpose and intended effect of the structure adopted is set out in his affidavit. He describes CCEng as "the operating company" which would develop and market the business in the United Kingdom for a fee equal to its costs plus 10%. He says that CCEng was to "carry out its operations and services as agent or otherwise for and on behalf of its parent", that is, CCAust. The aim was to see CCEng taxed on only the 10% margin. Mr Oates further deposes (with abbreviations altered to fit those being used in this judgment): "i. Mr Jenkins suggested that CCAust contract out its management and other services to CCEng. CCEng would then develop and exploit the CCL Products and CCL Business Opportunities for and on behalf of CCAust such that CCAust would derive all of the profits and income of the Consolidated Capital Group (including CCEng) with CCEng booking only a relatively modest profit for its service role, such as 10% of its costs; ii. as stated above, the service arrangements (and the Consolidated Capital Group corporate structure) reflected the fact that in 2001, the management and control of the Consolidated Capital Group was located in Australia through the fact that Hawkins and Tyne resided in Australia at that time (notwithstanding my presence in the UK), just as the management and control of Matrix in 2000 was based in Australia, largely through Hawkins' and Tyne's residence in Australia; iii. a substantial portion of the profits and income of CCAust would then be transferred to CCI in order to obtain the benefit of the favourable Irish tax legislation." 53 Mr Oates maintains that this structure was consistent with part of his email of 19 February 2001 to Mr Jenkins referring to "a representative office vs a permanent establishment here in the UK (ie ensuring only the former)." 54 In summary, it is Mr Oates' contention that things were set up from the outset on the basis that CCEng would only act as an agent for CCAust and use CCAust's intellectual property to generate income. 55 Mr Tyne's affidavit reflects a different understanding. He agrees that the structure was tax driven and draws attention to the different corporate tax rates in the United Kingdom (33%) and Ireland (10%). The intention was, he says, that CCAust would be (he says remain) the employer of the three individuals and that CCI would procure CCAust to provide their services to CCEng in order to meet clients' needs, with CCEng paying to CCI a fee representing a "substantial percentage" of CCEng's profits. In that way, profits generated in the United Kingdom and prima facie subject to tax at the rate of 33% would be reduced by the impact of the fee paid by CCEng to CCI and that fee, in turn, would be taxed at the Irish rate of only 10%. In the events that happened, there was no occasion for the viability of any such arrangement to be tested. The enterprise never generated any profits. 56 According to Mr Tyne's version of the intended modus operandi, CCEng was to be the entity which, in its own right and for its own benefit, sought business, interacted with potential clients and developed structured finance "products". Under Mr Oates' version, CCEng would indeed do those things, but as a "representative office" or agent of CCAust. 57 I was taken through a quantity of contemporary documentation related to development of structured finance products and attempts to interest potential clients in them. They show, virtually without exception, that it was CCEng that sought legal and taxation advice on matters of structuring and that it was CCEng that was put forward as the potential supplier. There can be no real doubt that all business dealings were, on their face, dealings by CCEng. That suggests strongly that CCEng was acting solely for itself and in its own interests – a conclusion that could, however, be displaced by proof that it was in truth acting as agent for CCAust as its undisclosed principal. 58 The so-called intellectual property on which the litigation proposed by Mr Oates is based can only be a combination of the personal skills of the three individuals and the knowledge obtained from the external sources to which I have referred. There is little evidence about which company employed the individuals. The document in which Mr Hawkins and Mr Tyne set out the arrangement for the transfer of business to their own companies says that the three were employees of CCAust. On the other hand, there is evidence that it was CCEng that paid the salaries, being funded by Mr Hawkins and Mr Tyne to do so (as I have said, the venture itself never made any money). A sum of 400,000 pounds was in late 2001 placed into a CCEng bank account to fund a full twelve months. 59 Both of the suggested business structures depended on the taxation of profits at the low rate of 10% prevailing in Ireland. On Mr Oates' version, CCEng would have derived profits merely as CCAust's agent and on the basis that it kept only "a relatively modest profit for its service role, such as 10% of its costs" and, no doubt, remitted the balance to the Australian principal on behalf of which the profits had been earned and by which they were beneficially owned. CCAust would thus have derived the vast bulk of the profits – a result prima facie not favourable from a taxation perspective since, at the relevant time, the corporate tax rate in Australia was higher than the rates in both Ireland and the United Kingdom. But Mr Oates went on to say that "a substantial proportion of the profits and income of [CCAust] would then be transferred to [CCI] in order to obtain the benefit of the favourable Irish tax legislation". 60 Just how this last step would have been achieved is not explained. By this I mean that the consideration or pretext for the transfer of funds by CCAust to CCI (its holding company) is not identified. It cannot have been intended that the transfer would be by loan or dividend since neither could be expected to reduce taxable income of CCAust. Rather, one surmises that it would have been necessary for CCAust to incur some outgoing on revenue account in effecting the transfer of funds to CCI. The provision of services by the Irish company to the Australian company for a fee payable by the Australian company might have produced that result. But there is no suggestion that any such sale and purchase of services played a part in the planning. On the contrary, Mr Oates' email of 13 March 2001 (see paragraph [50] above) contemplated that the Australian company would provide services to the Irish company, a course that would logically involve payments by the Irish company to the Australian company rather than vice-versa. 61 The version for which Mr Tyne contends does at least seem to hang together in a coherent, if potentially artificial, way. On his view of matters, CCEng would have derived beneficially the revenues produced by the business, at the same time bearing the expenses; and one of those expenses would have been a large fee paid by CCEng to CCI for making available to CCEng the skills and services of the three individuals. Mr Tyne's version also seems to be consistent, at least to some extent, with what was said in Mr Oates' email of 13 March 2001 (see paragraph [50] above). Mr Oates there referred to the Australian company providing services to the Irish company and the United Kingdom company providing services to the Australian company. On that basis, the services the Australian company provided to the Irish company were no doubt the services that the United Kingdom company provided to the Australian company, so that the company which, as it were, generated something capable of being provided as services and did not itself obtain services from elsewhere was the English company. This identifies the English company as the source of services created by it in its own right and from its own resources. Section 237(2)(d) - assessment 62 The case Mr Oates seeks to mount on behalf of CCAust is based squarely on the proposition that CCEng acted as agent for CCAust as undisclosed principal. Unless Mr Oates makes good that proposition, his case will fail. 63 In the context of s 237(2)(d) of the Corporations Act, therefore, it is necessary to decide whether there is a serious question to be tried as to the existence of the agency that is fundamental to Mr Oates' contentions. 64 In approaching the s 237(2)(d) question, the court must proceed in the way recently indicated by Debelle J (with whom Sulan J and Vanstone J agreed) in Ragless v IPA Holdings Pty Ltd [2008] SASC 90 at [40]: "Finally, s 237(2)(d) requires that the court must be satisfied that there is a serious question to be tried. This is a familiar pre-requisite given that it is a factor to be established on an application for an interlocutory injunction. That was one reason for the test being utilised in s 237(2): Goozee at [32] and p 23 of the Explanatory Memorandum which accompanied the Corporate Law Economic Reform Program Bill ("the Bill"). The court must determine whether the applicant has demonstrated that there is a real question to be tried, that is to say, whether the applicant is able to identify the legal or equitable rights to be determined at trial in respect of which the final relief is sought: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [91] per Gummow and Hayne JJ with whom Gleeson CJ and Gaudron J agreed. As Gleeson CJ expressed it at [15], the applicant must be able to show a sufficient colour of right of the kind sought to be vindicated by the final relief: see also Goozee at [34]. In Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [65] Gummow and Hayne JJ discussed what is meant by a serious question to be tried in the context of granting an interlocutory injunction. They held that the application must show a sufficient likelihood of success to justify the preservation of the status quo pending the trial. It is an interesting question whether s 237(2)(d) requires that the applicants be able to show a sufficient likelihood of success to justify the grant of the leave or merely that there is a real question to be tried that is not frivolous or vexatious: American Cyanamid Co v Ethicon Ltd [1975] AC 396 at 407 per Lord Diplock. Dr Spry has suggested that Gummow and Hayne JJ have misinterpreted Lord Diplock's analysis: Equitable Remedies (7th Ed) at (ix) to (x). It is unnecessary to determine this question which was not argued. It is sufficient for this appeal to note that even if the test in O'Neill applies, Ragless has a sufficient likelihood of success to justify a grant of leave." 65 The problem Mr Oates faces is that there is no evidence from which any plausible inference of the existence of the agency can be drawn. The various accounts of what it was proposed do not really form a basis for determining what was actually done. I have already noted (see paragraph [53] above) Mr Oates' reliance on the statement in his email of 19 February 2001 to Mr Jenkins: "a representative office vs a permanent establishment here in the UK (ie ensuring only the former)." 66 But, as the context shows (see paragraph [48] above), that reliance is misplaced. Mr Oates' reference in his email of 19 February 2001 to a representative office as opposed to a permanent establishment in the United Kingdom and "ensuring only the former" was among "the matters we need to discuss". There can have been, at that point, no commitment to that aspect, any more than there was then commitment to the other "matters we need to discuss", including the idea that only one new company would be formed ("the choice of jurisdiction under which we would incorporate the new company"). There were eventually three new companies. 67 By 13 March 2001, however, the exploratory stage had passed and a structure had been settled. This is made clear by Mr Oates' email of that date quoted at paragraph [50] above. It was that email that set out the intended flow of services from the English company to the Australian company and from the Australian company to the Irish company. 68 The agency model upon which Mr Oates seeks to rely, as outlined at paragraph [52] above, leaves entirely at large and unexplained the vital question of how revenues beneficially derived by CCAust would have been reduced by large tax deductible payments to CCI so as to ensure that the bulk of the profits of the enterprise as a whole was subjected to the advantageous Irish tax regime: see paragraph [60] above. This makes entirely implausible the possibility that the agency model was adopted. 69 Mr Oates has not succeeded in showing that there is any arguable basis for his contention that CCEng operated as an agent of CCAust. That being so, he has failed to provide any form of foundation for a finding that it was CCAust, rather than CCEng, which "owned" the commercial advantages said by him to have been wrongfully diverted by Mr Hawkins and Mr Tyne to themselves or their associated interests. 70 In relation to the proceedings for breach of directors' duties and related wrongs Mr Oates wishes to bring on behalf of CCAust, there is accordingly no serious question to be tried in terms of s 237(2)(d) of the Corporations Act. 71 For leave to be granted under s 237, it is necessary that all the sub-section (2) criteria be satisfied. If any of them is not satisfied, leave must be refused: Jeans v Deangrove Pty Ltd [2001] NSWSC 84; Goozee v Graphic World Group Holdings Pty Ltd [2002] NSWSC 640; (2002) 42 ACSR 534; Charlton v Baber [2003] NSWSC 745; (2003) 47 ACSR 31; Herbert v Redemption Investments Pty Ltd [2002] QSC 340; Fiduciary Ltd v Morningstar Research Pty Ltd [2005] NSWSC 442; Maher v Honeysett & Maher Electrical Contractors Pty Ltd [2005] NSWSC 859; South Johnstone Mill Ltd v Dennis and Scales [2007] FCA 1448; (2007) 64 ACSR 447. 72 Because the s 237(2)(d) criterion is not satisfied in this case, leave for Mr Oates to bring a derivative action on behalf of CCAust will be refused. Disposition 73 The claims in the plaintiff's further amended originating process filed on 9 April 2008 are dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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