Oates v Consolidated Capital Services Ltd [2009] NSWCA 183

Reported Decision: 257 ALR 558233 FLR 28372 ACSR 50676 NSWLR 6927 ACLC 1,166

New South Wales Court of Appeal

CITATION: Oates v Consolidated Capital Services Ltd [2009] NSWCA 183 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16 February 2009

JUDGMENT DATE: 3 July 2009

JUDGMENT OF: Spigelman CJ at 1; Allsop P at 2; Campbell JA at 5

DECISION: (1) Appeal dismissed with costs. (2) Notice of Motion to join Messrs Hawkins and Tyne dismissed with costs.

CATCHWORDS: CORPORATIONS – derivative action – sections 236 and 237 Corporations Act 2001 (Cth) – meaning of "proceedings on behalf of a company" – whether using a statutory derivative action to cause the company to bring a general law derivative action would be considered "proceedings on behalf of a company" – meaning of "proceedings" – meaning of "on behalf of a company" – distinction between the rights of members or shareholders and officers or directors under section 236 – whether a person bringing proceedings on behalf of a company must assert a cause of action for the benefit of the company – CORPORATIONS – derivative action – general law – whether leave is required to commence a derivative action at general law – distinction between leave to commence proceedings and a trial of a preliminary issue – history of the procedure for bringing a derivative action –CORPORATIONS – membership, rights and remedies – reflective loss – whether a shareholder of a holding company can obtain a remedy for loss suffered by a subsidiary company – DAMAGES – general principles – reflective loss – whether a shareholder of a holding company can obtain a remedy for loss suffered by a subsidiary company – whether the losses are to be considered separate – EQUITY – equitable remedies – whether the reflective loss principle applies to equitable remedies – APPEAL AND NEW TRIAL – appeal – general principles – points and objections not taken below – requirement to examine the pleadings and the oral and written admissions – whether argument sought to be raised on appeal was argued at trial – EMPLOYMENT LAW – the relationship of employer and employee – whether property was created in the course of employment – whether property belongs to the employer or employee – STATUTORY INTERPRETATION – sections 236 and 237 Corporations Act 2001 (Cth) – whether section 237 is to be interpreted independently of section 236 – whether upon meeting the requirements of section 237 the court must grant leave – interpretation of legislative provisions in context – WORDS AND PHRASES – "proceedings" – "on behalf of" – "reflective loss"