Federal Court of Australia

Kidd v Kwek [2022] FCA 1298

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted leave to amend the originating process filed in the proceedings in the form of the amended originating application and concise statement annexed to the interlocutory application dated 1 February 2022, pursuant to r 8.21 and r 8.23(2) of the Federal Court Rules 2011 (Cth).

2.    The applicant be granted leave to bring proceedings on behalf of the fourth respondent, Terrawood Pty Ltd, pursuant to s 237 of the Corporations Act 2001 (Cth) as against the first, second and third respondents.

3.    The applicant have his costs of the interlocutory application dated 1 February 2022 from and including 15 July 2022 as against the first, second and third respondents.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

MCEVOY J:

1    Before the Court is an interlocutory application for derivative leave made under s 237 of the Corporations Act 2001 (Cth). It is made in the context of an originating application seeking relief under various sections of the Act filed on 18 June 2021 by the applicant, Michael David Kidd.

2    For present purposes it is unnecessary to descend into the details of the originating application, but it is brought in reliance on the oppressive conduct provisions in ss 232, 233 and 234 of the Act. The originating application summarises the background and the nature of the claims which are pressed.

3    If leave is granted for the applicant to bring derivative claims on behalf of the fourth respondent company, the applicant also seeks to amend the originating application and file a concise statement. The proposed amended originating application and concise statement have been annexed to the interlocutory application.

4    The form of relief sought in the interlocutory application dated 1 February 2022 has been varied somewhat and is now in the following form. The applicant seeks the leave of the Court to:

(a)    amend the originating process filed in the proceedings in the form of the amended originating application and concise statement annexed to the interlocutory application dated 1 February 2022, pursuant to r 8.21 and r 8.23(2) of the Federal Court Rules 2011 (Cth); and

(b)    bring proceedings on behalf of the fourth respondent in the proceedings, Terrawood Pty Ltd (the Company), pursuant to s 237 of the Act against the first, second and third respondents.

5    The materials that have been filed by the applicant in support of the application are:

(a)    the affidavit of Hamish John Williamson affirmed on 1 February 2022;

(b)    the affidavit of Michael David Kidd filed on 18 June 2021 (first Kidd affidavit);

(c)    the affidavit of Michael David Kidd affirmed on 6 July 2022;

(d)    the affidavit of Michael David Kidd affirmed on 30 September 2022; and

(e)    the affidavit of Michael David Kidd affirmed on 18 October 2022.

6    Initially, and indeed until after the conclusion of the applicant’s submissions this morning, the first respondent, the second respondent, and the third respondent all opposed the grant of derivative leave sought by the applicant.

7    The first to third respondents had filed the following material in relation to the application:

(a)    the affidavit of Wai Huang Seck sworn on 15 July 2022 (first Seck affidavit);

(b)    the affidavit of Siew Mui Cheong sworn on 15 July 2022;

(c)    the affidavit of Joong Liang Kwek sworn on 15 July 2022; and

(d)    the affidavit of Wai Huang Seck sworn on 12 October 2022.

8    The parties also filed detailed written submissions in support of their respective positions, the applicant on 12 October 2022 and the respondents on 13 October 2022.

9    When the application came on for hearing this morning the Court heard counsel for the applicant in support of the application. In the course of submissions it became clear that aspects of the evidence on which the respondents relied in opposition to the application for derivative leave were misleading. I refer in this regard to the first Seck affidavit and the contentions advanced at paragraph [56(b)], which were not supported (and indeed were contradicted) by the underlying exhibited documents, such as to bring into question the respondents’ submission that there was no serious question to be tried.

10    At the conclusion of counsel’s submissions, and having regard to those aspects of the first Seck affidavit mentioned, I indicated to counsel for the respondents that in due course I may need to hear from him in relation to the obligations imposed by s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth). Counsel for the respondents thereafter requested that the matter be stood down so that he could take instructions. Upon his return, counsel for the respondents indicated that his clients would neither oppose nor consent to the application for derivative leave.

11    In these circumstances it is a question for the Court, on the basis of the material which has been filed by the applicant, and particularly relevant for present purposes in this respect is the first Kidd affidavit, whether the Court is satisfied, having regard to s 237(2) of the Act, 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.

12    Having regard to the affidavit material before the Court, and in particular to the first Kidd affidavit, I am satisfied that the Company will not bring the proceedings itself. I note in particular in this regard, and accept, the reasons for this advanced at paragraph [24] of the applicant’s submissions, together with the tenor of the affidavit material filed by the respondents.

13    On the question of whether the applicant is acting in good faith, the relevant principles concerning this statutory requirement are essayed in Swansson v RA Pratt Properties Pty Ltd (2002) 42 ACSR 313 at 320 [36] (Palmer J). For the reasons advanced at paragraphs [27]-[29] of the applicant’s submissions, and having regard to the relevant affidavit material, I am satisfied that the applicant is acting in good faith in bringing the application for derivative leave.

14    Insofar as whether it is in the best interests of the Company that the applicant be granted leave, I am satisfied on the balance of probabilities that the action is in the best interests of the Company. I am satisfied of this having regard to paragraphs [31]-[33] of the applicant’s submissions, and to the relevant affidavit material.

15    On the fourth matter about which the Court is required to be satisfied, whether there is a serious question to be tried, I am satisfied in the circumstances, and in particular having regard to the first Kidd affidavit, and bearing in mind the relatively low threshold, that there is a serious question to be tried. It seems to me, on the basis of the affidavit material to which I was taken in argument by counsel for the applicant, that there are, to put the matter neutrally, a number of unanswered questions which cannot be resolved at this interlocutory stage and which it would therefore be appropriate and necessary to resolve at a final hearing to which the company is itself a party. Accordingly, and having regard to the applicant’s submissions at paragraphs [35] and [36], I am satisfied that there is a serious question to be tried.

16    Finally, insofar as the issue of notice is concerned, I am satisfied that there has been appropriate notice to the Company having regard to the fact that the notice has been given to the relevant directors of the Company. If I were to be mistaken or otherwise incorrect in that respect I would be satisfied that it would be appropriate to grant the derivative leave, even if there had not been the formal provision of notice in those terms.

17    Having regard to my level of satisfaction in relation to those matters in s 237(2) of the Act, I will order that:

(a)    the applicant be granted leave to amend the originating process filed in the proceedings in the form of the amended originating application and concise statement annexed to the interlocutory application dated 1 February 2022, pursuant to r 8.21 and r 8.23(2) of the Rules; and

(b)    the applicant be granted leave to bring proceedings on behalf of the fourth respondent, Terrawood Pty Ltd, pursuant to s 237 of the Act, as against the first, second and third respondents.

18    Insofar as the applicant seeks to have his costs of this application on an indemnity basis, I take the view that it was necessary for the applicant, if he wanted to have leave to bring the derivative claims, to make the application that he made. Further, I consider that it was necessary for evidence to be advanced to enable the Court to have the requisite level of satisfaction for the purposes of s 237(2) of the Act. In these circumstances, and having regard in particular to the first Kidd affidavit which was filed on 18 June 2021, the appropriate costs order is that the first, second and third respondents pay the applicant’s costs of this application on and from 15 July 2022, that being the date on which the first tranche of affidavit material in opposition to the application for derivative leave was filed by the respondents.

19    Insofar as it is said by counsel for the respondents that the relevant affidavit material filed on or after 15 July 2022 is somehow or would somehow have been necessary in the future conduct of the matter, I am not convinced in all the circumstances that that is necessarily so. But even if it is, the costs of the applicant in considering that material and preparing responsive material would not have had to have been incurred if the application which had been made and was supported by the first Kidd affidavit was not opposed after the filing of that affidavit.

20    For these reasons the applicant will have his costs of the application, but not on an indemnity basis.

Associate:

Dated:    19 October 2022

SCHEDULE OF PARTIES