Power v Ekstein [2010] NSWSC 137

New South Wales Supreme Court

CITATION : Power v Ekstein [2010] NSWSC 137

HEARING DATE(S) : 1 December 2009

JUDGMENT DATE : 3 March 2010

JURISDICTION : Equity

JUDGMENT OF : Austin J

1. Subject to Order 2 ORDER under s 237 of the Corporations Act 2001 (Cth) that leave be granted to the plaintiff nunc pro tunc to bring proceedings on behalf of each of the second third fourth fifth and sixth defendants ("the Defendant Companies") by filing and prosecuting the Amended Statement of Claim in these proceedings verified by her on 17 March 2009 to the extent that the Amended Statement of Claim asserts or seeks relief in respect of a cause or causes of action of any of the Defendant Companies. 2. Subject to further order: (a) the commencement and operation of Order 1 is suspended (b) Order 1 will not take effect until the plaintiff files with the Court her written undertaking to the Court to pay and bear and indemnify each of the Defendant Companies against all costs charges and expenses of and incidental to the bringing and continuation of the derivative claims for which leave is granted ("the Undertaking") (c) Order 1 will take effect upon the filing of the Undertaking provided that the Undertaking is filed on or before 22 March 2010. 3. Upon the plaintiff giving the usual undertaking as to damages ORDER until further order that the first and ninth defendants and each of them be restrained by themselves their servants or agents from causing or permitting: DECISION : (a) all and any funds or other property of the third fourth fifth and sixth defendants ("the Relevant Companies" each a "Relevant Company") to be applied for the defence or conduct of these proceedings including the cross-claim otherwise than for the purposes stated in Order 4 ("the Permitted Purposes") and (b) the Relevant Companies to take any steps in the proceedings otherwise than for the Permitted Purposes. 4. The Permitted Purposes are in respect of the Relevant Companies or any Relevant Company: (a) the defence or conduct of the proceedings to the extent that the plaintiff seeks a compulsory purchase order against a Relevant Company or Relevant Companies or seeks relief challenging the validity of corporate actions of a Relevant Company or Relevant Companies (b) complying with obligations in respect of discovery (c) any purpose agreed by the plaintiff's solicitor in writing and (d) the defence or conduct of the proceedings with the prior leave of the Court. 5. Upon the plaintiff giving the usual undertaking as to damages ORDER until further order that the first and ninth defendants and each of them be restrained by themselves their servants or agents from causing or permitting the Relevant Companies or any Relevant Company to retain or continue to retain Claudius Bilinsky to act for them or it in the proceedings.