Access Courier Systems Pty Ltd v Hunsat Pty Ltd [2009] NSWSC 507

New South Wales Supreme Court

CITATION : Access Courier Systems Pty Ltd v Hunsat Pty Ltd [2009] NSWSC 507 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 6 May 2009 JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 6 May 2009

CATCHWORDS : CORPORATIONS – Statutory derivative action – who should bear costs of prosecuting action in first instance

LEGISLATION CITED : Corporations Act s 237, s 471B

CATEGORY : Procedural and other rulings

Access Courier Systems Pty Ltd (plaintiff) Hunsat Pty ltd (first defendant) PARTIES : Christopher McNaughton (second defendant) Palmer Bruyn Pty Ltd (in liq) (third defendant) Palmer Bruyn 1 Pty Ltd (fourth defendant) Jatsona Pty Ltd (fifth defendant)

FILE NUMBER(S) : SC 4991/08

Mr Stowe (plaintiff) COUNSEL : Mr Docker (defendants) Ms S Furlonger (sol) (liquidator, third defendant)

Mason Lawyers Limited (plaintiff) SOLICITORS : McDonald Johnson Lawyers (defendants) Yeates Beaggi Lawyers (liquidator, third defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

BRERETON J

Wednesday 6 May 2009

4991/08 Access Courier Systems Pty Ltd v Hunsat Pty Ltd JUDGMENT (ex tempore) 1 HIS HONOUR: I grant leave to plaintiff to amend its statement of claim by filing an amended statement of claim in the form initialled by me, dated this day and placed with the papers, such leave to expire on 13 May 2009. 2 The only issue argued today was the question of who should be responsible in the first instance for the costs of prosecuting the derivative proceedings. That is finely balanced, and much may be said for some of the submissions made by Mr Stowe in that behalf. Ultimately, however, the factors I have found to carry greater weight are, first, that the proceedings are, in substance, a dispute between Access Courier Systems and its principals on the one part, and Jatsona Pty Ltd and it principals, in particular Mr McNaughton, on the other; secondly, that the derivative claims form a part of a larger dispute, which includes claims brought by Access Courier Systems in its own right and not as derivative claims; thirdly, that given the current financial status of Access Couriers Systems, so far as it appears from the evidence, there would be a very substantial risk that any costs for which it might ultimately be found liable would not be recovered if paid in the meantime; and fourthly, that as Access Courier Systems is the party that seeks to bring these proceedings for the benefit of its shareholders as well as for the benefit of the other shareholders of Hunsat, given its condition of impecuniosity its own shareholders ought to be prepared to make themselves responsible for any adverse costs order – by analogy with the rule that applies in security for costs applications. 3 I make the following orders: