Federal Court of Australia

Vitnell v Vellenga, in the matter of Australian Carers Pty Ltd (No 2) [2026] FCA 1292

ORDERS

THE COURT ORDERS THAT:

1.    Leave to the first and second cross-claimants to issue derivative proceedings, pursuant to s 237 of the Corporations Act 2001 (Cth), against the first cross-defendant, Reginald Malcom Vitnell, in the name of and on behalf of Australian Carers.

2.    The interlocutory application filed by the first and second cross-claimants on 3 July 2026 seeking leave to issue derivative proceedings pursuant to s 237 of the Corporation Act is otherwise dismissed.

3.    The first and second cross-claimants are to indemnify Australian Carers in respect of the costs and expenses incurred by Australian Carers in bringing and in continuing the derivative proceedings, including any legal costs which Australian Carers may be ordered to pay.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    Australian Carers Pty Limited is a company which is a registered National Disability Insurance Scheme provider providing various disability support services to its clients.

2    Australian Carers has two directors: the plaintiff and first cross-defendant, Reginald Malcom Vitnell, and the first defendant and first cross-claimant, John Theodoor Nico Vellenga.

3    Mr Vitnell owns 50% of the shares in Australian Carers. The second defendant and second cross-claimant, Vellenga Holdings Pty Ltd, a company of which Mr Vellenga is one of two directors and is the sole shareholder, holds the remaining 50%.

4    The relationship between Mr Vitnell and Mr Vellenga has become dysfunctional as a consequence of which the business of Australian Carers has suffered and continues to suffer.

5    By an amended originating process, Mr Vitnell claims relief under ss 232-233 of the Corporations Act (2001) (Cth) alleging oppressive conduct against Mr Vellenga and Vellenga Holdings.

6    In the alternative, Mr Vitnell seeks:

(a)    declarations that Mr Vellenga has contravened ss 180(1), 181(1) and/or 182(1) of the Act as a director of Australian Carers;

(b)    orders pursuant to s 1317H of the Act for compensation for damage allegedly suffered by Australian Carers resulting from the alleged contraventions of ss 180, 181 and 182 of the Act by Mr Vellenga;

(c)    a declaration that the conduct of the affairs of Australian Carers by Mr Vellenga is contrary to the interests of the members of Australian Carers as a whole and oppressive to, unfairly prejudicial to, or unfairly discriminatory against Mr Vitnell as a member of Australian Carers, contrary to s 232 of the Act; and

(d)    various orders pursuant to s 233 of the Act in relation to Australian Carers, including that Australian Carers be wound up on just and equitable grounds.

7    By a notice of cross-claim accompanied by a statement of cross-claim filed 13 March 2026, Mr Vellenga and Vellenga Holdings cross-claims against Mr Vitnell and Australian Carers.

8    In the notice of cross-claim, Mr Vellenga and Vellenga Holdings also seek various orders pursuant to s 233 of the Act, including removing Mr Vitnell as a director of Australian Carers and an order for the purchase by Mr Vellenga or Vellenga Holdings’ of the shares held by Mr Vitnell in Australian Carers.

9    Mr Vellenga and Vellenga Holdings also seek orders pursuant to s 233 of the Act that Mr Vitnell pay compensation to Vellenga Holdings for alleged breaches by Mr Vitnell of ss 180-183 of the Act. Still further, or in the alternative, Vellenga Holdings seeks equitable compensation and/or account for any profits received by Mr Vitnell in respect of Mr Vitnell’s breach of fiduciary duties to Australian Carers.

10    Paragraphs 6, 7, 8 and 9 of the notice of cross-claim seek relief pursuant to ss 233 and 237 of the Act, the latter being derivative proceedings. At the hearing of this application, Mr Vellenga and Vellenga Holdings abandoned the claim in [10] of the notice of cross-claim.

The proposed derivative claims

11    No application had been made for leave to commence derivative proceedings when the notice of cross-claim was filed. It was not until 3 July 2026 when Mr Vellenga and Vellenga Holdings filed an interlocutory process seeking orders pursuant to s 237 of the Act that as cross-claimants they be granted leave to bring on behalf and in the name of Australian Carers, the claims in [6], [7], [8] and [9] of the notice of cross-claim.

12    By those claims, Mr Vellenga and Vellenga Holdings seek leave to bring derivative proceedings against Mr Vitnell and a further 14 proposed cross-defendants on behalf of and in the name of Australian Carers.

13    The claim in [6] of the notice of cross-claim is directed to alleged breaches by Mr Vitnell of ss 180-183 of the Act, a claim for compensation consequent upon those breaches and a claim for equitable compensation and/or account of profits for breach of fiduciary duties.

14    The claim in [7] of the notice of cross-claim, concerns a claim against Mr Vitnell for monies allegedly loaned by Australian Carers to Mr Vitnell.

15    The claim in [8] of the notice of cross-claim concerns a claim for compensation pursuant to s 1317H of the Act against 14 parties (15 if the two companies comprising the partnership of WBH Legal are counted as two separate parties). Four of the proposed cross-defendants are corporations, whereas the rest are individuals.

16    The claim in [9] is against six individuals, all of whom are former employees of Australian Carers, alleging breaches by those employees of their employment agreements with Australian Carers. Each of the six individuals named are also named in [8] of the notice of cross-claim as one of the 14 parties.

Issue

17    The issue on this application is whether Mr Vellenga and Vellenga Holdings should be granted leave pursuant to s 237 of the Act to bring proceedings in the name of Australian Carers for the claims identified in [6]-[9] of the notice of cross-claim against Mr Vitnell and the others named in the notice of cross-claim.

18    It is for the reasons which follow that:

(a)    leave will be granted to Mr Vellenga and Vellenga Holdings to bring proceedings against Mr Vitnell in the name of and on behalf of the Australian Carers for the claims in [6] and [7] of the notice of cross-claim;

(b)    the application for leave to bring proceedings in the name of and on behalf of Australian Carers in [8] and [9] of the notice of cross-claim against the following proposed cross-defendants is dismissed:

(i)    Katherine Jagger;

(ii)    David Alan Hynes;

(iii)    Cynthia Pearl Hynes;

(iv)    the partnership of Hynes & Co Lawyers Pty Ltd and Windevere Bellman Pty Ltd trading as WBH Legal;

(v)    Elevate Health Australia Pty Ltd;

(vi)    Nick Formichella;

(vii)    Mark Anthony Natale;

(viii)    Our Gremlins Pty Ltd:

(ix)    Julie Westhoff;

(x)    Lauren Ralph;

(xi)    Jess Stephenson;

(xii)    Deina Jury;

(xiii)    Jasminderjit Dahri; and

(xiv)    Fiona Schulz

Principles

19    There is no dispute between the parties about the applicable principles.

20    Section 236(1) of the Act provides:

236     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.

21    Section 237(1) and (2) of the Act provides:

237     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.

22    There is no issue that Mr Vellenga as a Director of Australian Carers and Vellenga Holdings as a shareholder in an Australian company are entitled to make an application for leave pursuant to s 237 of the Act.

23    The onus is on Mr Vellenga and Vellenga Holdings to satisfy the Court as to each of the five matters listed in s 237(2) of the Act. If satisfied, then leave must be granted: Gillespie v Gillespie [2025] NSWCA 24; (2025) 422 ALR 224 at [28] (Gleeson, Mitchelmore and Ball JJA); Huang v Wang [2016] NSWCA 164; (2016) 114 ACSR 586 at [57] (Bathurst CJ with whom McColl JA agreed).

Documents read

24    Mr Vellenga and Vellenga Holdings read the affidavits of:

(a)    John Theodoor Nico Vellenga sworn 3 July 2026; and

(b)    Colin Joseph Goldrick, the solicitor for Mr Vellenga and Vellenga Holdings, sworn 3 July 2026 and 4 August 2026.

25    Applications to read a further affidavit of Mr Vellenga sworn 7 August 2026 and a further affidavit of Mr Goldrick sworn 30 July 2026 were refused.

26    Mr Vitnell read the affidavits of:

(a)    Reginald Malcolm Vitnell sworn 27 July 2026;

(b)    Ellie Jane Jardine sworn 24 July 2026, save for paragraph 5 which is not pressed;

(c)    Lauren Catherine Ralph sworn 24 July 2026; and

(d)    Cynthia Pearl Hynes sworn 24 July 2026.

27    A further affidavit of Mr Vitnell affirmed 11 August 2026 was also read, noting that there is an error in paragraph 5 of that affidavit where the date should read 6 June 2025 and not 6 June 2026.

The criteria in s 237(2) of the Act

28    There is no dispute that some of the criteria in s 237(2) are satisfied:

(a)    s 237(2)(a) — it is probable that the company will not itself bring proceedings or properly take responsibility for them or steps in them;

(b)    s 237(2)(b) — Mr Vellenga and Vellenga Holdings are acting in good faith; and

(c)    s 237(2)(e) — written notice has been given to Australian Carers by reason of the reference to s 237 in the notice of cross-claim.

29    That leaves two issues:

(a)    s 237(2)(c) — whether it is in the best interests of the company that the applicant be granted leave; and

(b)    s 237(2)(d) — whether there is a serious question to be tried.

30    The major issue between the parties centred around the second of the two remaining issues.

Background

31    The applicants rely on Mr Vellenga’s affidavit.

32    Until recently, Australian Carers operated in Rockhampton, Sydney, Perth and Adelaide. The Adelaide operation earnt the most income for Australian Carers at $6.6 million for the financial year ended 30 June 2025. In contrast, the income for Rockhampton, Sydney and Perth operations varied between approximately $977,000 for Rockhampton down to $46,500 for Perth.

33    The matters to which Mr Vellenga deposes in his affidavit between [34] and [61] reveal what appears to be an attempt by Mr Vitnell to transfer the Adelaide operations of Australian Carers to a not-for-profit disability support service provider based in Adelaide known as ‘Help at Home Incorporated’. Part of the information provided by Mr Vitnell to the members of the Board of Help at Home included financial statements for Australian Carers for the financial years ended 30 June 2024 and 30 June 2025.

34    As at it transpired, Mr Vitnell’s approaches to Help at Home did not result in the transfer of Australian Carers’ Adelaide business to Help at Home.

35    Elevate Health Australia Pty Ltd and Australian Carers are in competition, at least within the Adelaide market, for the delivery of disability support services.

36    Mr Vellinga deposes: at [77] and following, that on or about 29 September 2025 he became aware that Mr Vitnell may be seeking to transfer the Adelaide operations of the business to EHA.

Transfer of employees

37    Mr Vellenga deposes that on or about 29 September 2025, he became aware of a number of emails being sent from Australian Carers’ company scanner email address. Those emails included a number of countersigned contracts of employment which had been issued by EHA to various employees of Australian Carers — in particular, Ms Dahra and Ms Stephenson. Further, Mr Vellenga also became aware of correspondence from EHA which had been signed by Mr Vitnell on its behalf.

38    On or about 30 September 2025, Mr Vellenga received an email from a Ms Ninnes, an employee of Australian Carers in Adelaide, informing Mr Vellenga that she had received a call from an Australian Carers’ staff member inviting her to join a new company that is being formed and that all support workers and clients were being encouraged to move across to that company.

39    Mr Vellenga deposes: at [99] that each of Australian Carers’ office employees, being Ms Westhoff, Ms Ralph, Ms Stephenson, Ms Jury, Ms Dahri and Ms Schultz, are now working for EHA.

Australian Carers’ documents

40    On 1 October 2025, Mr Vellenga became aware of a document stored on Australian Carers’ SharePoint server, an internet based file server service, which appeared to identify categories of documents for provision to EHA. A comparison of one of those documents titled “EHA Initial Meet Template V1” when compared to the same document used by Australian Carers, reveals that the EHA form contained hyperlinks to other Australian Carers documents, as well as Australian Carers’ telephone number.

41    Mr Vellenga deposes to have become aware of email exchanges between Mr Vitnell and Ms Hynes, a partner of WBH Legal who acts for Mr Vitnell, in relation to draft contracts of employment with EHA of two further employees of Australian Carers, being Ms Westoff and Ms Ralph.

42    That raises the question of solicitor-client privilege. The question was not argued to any extent for the purposes of this application. In the circumstances, I give that evidence, or any evidence involving communication between Mr Vitnell and Ms Hynes, in her capacity as Mr Vitnell’s solicitor and/or WBH Legal, no weight.

43    Annexed to Mr Vellenga’s affidavit is a copy of the Employment Agreement between Australian Carers and Ms Stephenson. When compared to the employment contracts between the employees referred to above and Australian Carers employment contract, they are virtually identical. Further, the EHA employment contracts contain a restriction on the employee in question doing anything that infringes “Australian Carers IP” and from using “Australian Carers IT systems” for excessive or personal use.

Ms Katherine Jagger

44    One of the parties identified in [8] of the notice of cross-claim is Ms Katherine Jagger, who is Mr Vitnell’s partner and Mr Vellenga’s daughter. Ms Jagger is a Registered Nurse.

45    A Registered Nurse is required to be employed by a NDIS provider that offers nursing services.

46    On 29 September 2025, Mr Vitnell sent an email to Mr Vellenga informing him that Ms Jagger had resigned from Australian Carers.

Changes to the shiftwork roster

47    Later in October 2025, Mr Vellenga became aware out that Mr Vitnell had amended Australian Carers’ shiftwork roster in Adelaide for the week of 13 October 2025 which allocated shifts to the numerous casual support workers employed by Australian Carers. To Mr Vellenga’s knowledge, no further shifts have been allocated by Australian Carers to any support workers in Adelaide since 13 October 2025.

48    Mr Vellenga deposes: at [98] that the ‘Core Support Income Adelaide’ for the months July to November 2025 are the following sums:

(a)    $628,705 for July 2025;

(b)    $578,118 for August 2025;

(c)    $512,230 for September 2025;

(d)    $269,971 for October 2025; and

(e)    $297 for November 2025.

49    Mr Vellenga contends that the sudden drop in revenue in November 2025 is a reflection of the cancellation of shiftwork.

NDIS audit

50    In mid-October 2025, Australian Carers was due to be audited for the purposes of remaining an eligible NDIS service provider. A company known as ‘Certification Partner Global (Aust) Pty Ltd’ was retained for that purpose.

51    The audit was cancelled by Mr Vitnell. Mr Vellenga deposes that he did not approve or consent to the cancellation of the audit. There is a dispute between Mr Vitnell and Mr Vellenga about the circumstances leading to the cancellation of the audit. That is a matter that cannot be determined at this stage. Nonetheless, it is indicative of the dysfunctional relationship that has developed between Mr Vitnell and Mr Vellenga.

52    Without the audit, Australian Carers cannot continue with its business.

Transfer of Australian Carers’ clients

53    On 15 October 2025, Ms Jury, a former employee of Australian Carers, sent an email from an EHA email address to a number of people concerning clients of Australian Carers advising recipients that “we have transitioned over to Elevate Health now …”.

54    There is no evidence as to why Ms Jury sent that email.

Mr Vitnell signed documents on behalf of EHA

55    On 20 October 2025, Mr Vitnell provided instructions for the format of invoices from EHA.

56    On 31 October 2025, Mr Vitnell signed an application for insurance from Berkley Insurance Australia on behalf of EHA. As a part of that insurance proposal, EHA was required to identify its annual turnover or revenue for the year ended 30 June 2025 and its estimated turnover or revenue for EHA for the financial year ending 30 June 2026.

57    The application for insurance recorded that the annual turnover revenue for EHA for the financial year ended 30 June 2025 had been $1.2 million and the estimated turnover or revenue for EHA for the financial year ended 30 June 2026 was $6 million.

58    No explanation for that significant increase in revenue was provided by Mr Vitnell in his affidavit read on the application.

The structure of EHA

59    ASIC searches annexed to Mr Vellenga’s affidavit reveal that Mark Anthony Natale, one of the parties named in [8] of the notice of cross-claim, is the sole director of EHA, holding 52% of the issued share capital of EHA (104 ordinary shares) legally but not beneficially.

60    Another of the parties named in [8], Mr Nicola Mario Formichella, who is described on EHA’s website as a member of the “Senior Leadership Team” and an “Executive” of EHA, holds 48% of the issued share capital of EHA (96 ordinary shares) also legally but not beneficially.

61    The beneficial owner of the shares owned by Mr Natale is a company known as ‘Our Gremlins Pty Ltd’, the sole director of which is Ms Jagger. Of the 100 ordinary issued share capital of Our Gremlins, Ms Jagger holds 80% with ‘Charades Services Pty Ltd’ holding 20%. The sole director and shareholder of Charades is David Alan Hynes, who is the husband of Ms Hynes. Both Mr Hynes and Ms Hynes are named in [8] of the notice of cross-claim.

Australian Carers’ financial statements

62    Next, Mr Vellenga deposes that as at 7 February 2026, the financial statements for Australian Carers recorded that Mr Vitnell owed the company:

(a)    $570,900.57 — recorded in the financial statements of the company as a current asset titled “Loan – Reg Vitnell” (First Loan Account); and

(b)    $247,150 — also a current asset, titled “Loan – Reg Vitnell” (Second Loan Account).

63    Mr Vellenga deposes that on 11 February 2026, Mr Vitnell altered the MYOB records of Australian Carers such that the First Loan Account was reduced from $570,900.57 to $0 and the Second Loan Account was reduced from $247,150 to $2,007.79. Mr Vellenga deposes that this action was taken without his consent or knowledge.

Principles – serious question to be tried

64    In Swansson v Pratt [2002] NSWSC 583; (2002) 42 ACSR 313, Palmer J observed: at [25] that for the purposes of considering whether a serious question to be tried exists under s 237(2)(d), the Court will not normally enter into the merits of the proposed derivative action to any great degree and that the threshold is the same as that in a case for an application for an interlocutory injunction.

Parties’ submissions and consideration

65    Mr Vitnell contends that there is no serious question to be tried against him or any of the other proposed cross-defendants.

No statement of cross-claim

66    Mr Vitnell submits that Mr Vellenga and Vellenga Holdings have not formulated a proposed statement of cross-claim against him or the other proposed cross-defendants and that the causes of action which Mr Vellenga and Vellenga Holdings seek Australian Carers to bring against the proposed cross-defendants are not set out.

67    There is force in Mr Vitnell’s complaints about the lack of a pleading, however in the circumstances of this case, given the material and the matters to which Mr Vellenga has deposed, I do not consider that to be fatal. I am fortified in that view by the fact that in the event leave is granted to bring derivative proceedings once a statement of cross-claim is issued on the part of Australian Carers, if what is alleged is not capable of supporting the causes of action, then Mr Vitnell always has the option of applying to strike out those proceedings.

No statement of material facts

68    Mr Vitnell submits further that there is no statement of the material facts upon which Australian Carers rely as founding a claim against the proposed cross-defendants, nor any statement of loss or damage which the cross-claimants contend that Australian Carers is entitled to recover against each of the proposed cross-defendants.

69    I do not accept there is no statement of the material facts upon which Mr Vellenga and Vellenga Holdings rely in bringing the application for leave to issue derivative proceedings. There is a significant amount of material in Mr Vellenga’s affidavit.

70    I accept there is no statement of loss and damage which Mr Vellenga and Vellenga Holdings contend that Australian Carers is entitled to recover against each of the proposed cross-defendants, but at this stage I do not consider that a significant factor, although it is one I take into account.

No estimate of legal costs

71    Next, Mr Vitnell submits that Mr Vellenga and Vellenga Holdings do not depose as to the estimate of the legal costs likely to be incurred by Australian Carers if leave was given to bring a cross-claim against the proposed cross-defendants. Mr Vitnell contends that is a serious omission.

72    It is not a serious omission. At this stage it would be impossible for that to be done and Mr Vellenga has proffered a personal undertaking to meet the costs of Australian Carers should leave be granted to proceed against the proposed cross-defendants, or any of them, and to indemnify Australian Carers from any order for costs that may be made against it. That undertaking is proffered on instructions by Mr Goldrick, the solicitor for Mr Vellenga and Vellenga Holdings, who, based on his instructions, also deposes on information and belief as to Mr Vellenga’s financial position.

73    A number of matters may be observed about Mr Goldick deposing on information and belief as to Mr Vellenga’s financial status. The first is that this is an interlocutory application such that hearsay evidence is admissible. Second, if leave is granted under s 237 of the Act to issue proceedings in the name of Australian Carers, it is open to any of the cross-defendants to seek security for costs which will necessarily involve an examination of Mr Vellenga’s financial status.

The proposed claims against Mr Vitnell – [6] and [7] of the notice of cross-claim

74    Numerous criticisms are made by Mr Vitnell to the matters deposed by Mr Vellenga in his affidavit. There is force in that submission, insofar as the criticisms are directed at the lack of specificity in the allegations directed to a number of the proposed cross-defendants. However, having considered the material upon which Mr Vellenga and Vellenga Holdings rely in relation to Mr Vitnell and which I have set out above, I am satisfied there is a serious question to be tried, insofar as the proposed claims against Mr Vitnell are concerned.

The claims against remaining proposed cross-defendants – [8] and [9] of the notice of cross-claim

Ms Jagger

75    Ms Jagger resigned from Australian Carers. That is about as far as the allegations against Ms Jagger go. At this point in time, I am not satisfied there is a serious question to be tried as against Ms Jagger.

Mr Hynes

76    The material relied upon by Mr Vellenga and Vellenga Holdings to suggest that Mr Hynes was involved in any alleged breach of duty by Mr Vitnell, or otherwise, is not sufficient to give rise to a serious question to be tried. So too, the material is not sufficient to suggest that Our Gremlins had through its sole director Mr Hynes knowledge sufficient to found any claim against it. Further, the fact that Our Gremlins holds a beneficial interest in shares in EHA, without more, is not sufficient to give rise to a serious question to be tried. At this point in time, I am not satisfied there is a serious question to be tried as against Mr Hynes or Our Gremlins.

Ms Hynes

77    Mr Vellenga and Vellenga Holdings rely on the fact that Mr Hynes is married to Ms Hynes as providing a basis for a claim against Ms Hynes. Ms Hynes is also Mr Vellenga’s solicitor. I do not accept that the marital relationship between Mr and Ms Hynes is sufficient to give rise to a serious question to be tried insofar as Ms Hynes is concerned, nor am I satisfied that because Ms Hynes acts for Mr Vitnell there is a serious question to be tried as against Ms Hynes.

WBH Legal

78    The material relied upon by Mr Vellenga and Vellenga Holdings is insufficient to give rise to a serious question to be tried in relation to the partnership of Hynes & Co Lawyers Pty Ltd and Windevere Bellman Pty Ltd trading as WBH Legal.

Mr Natale and EHA

79    EHA has Mr Natale as its sole director. There is insufficient material in relation to Mr Natale’s knowledge of what was occurring in the alleged transition of the business from Australian Carers to EHA which provides any basis for finding that there is a serious question to be tried against either Mr Natale or EHA.

Mr Formichella

80    The material is insufficient to give rise to a serious question to be tried in relation to Mr Formichella.

The remaining cross-defendants

81    Each of Ms Westhoff, Ms Ralph, Ms Stephenson, Ms Jury, Jasminderjit Dahri and Ms Schulz was employed by Australian Carers. Far more would be required for me to be satisfied that a serious question to be tried arises in relation to any one or more of them.

Conclusion on a serious question to be tried

82    I am satisfied a serious question to be tried exists insofar as the proposed claims against Mr Vitnell are concerned.

83    At this point in time I am not satisfied that a serious question to be tried exists in relation to:

(a)    Katherine Jagger;

(b)    David Alan Hynes;

(c)    Cynthia Pearl Hynes;

(d)    the partnership of Hynes & Co Lawyers Pty Ltd and Windevere Bellman Pty Ltd trading as WBH Legal;

(e)    Elevate Health Australia Pty Ltd;

(f)    Nick Formichella;

(g)    Mark Anthony Natale;

(h)    Our Gremlins Pty Ltd:

(i)    Julie Westhoff;

(j)    Lauren Ralph;

(k)    Jess Stephenson;

(l)    Deina Jury;

(m)    Jasminderjit Dahri; and

(n)    Fiona Schulz.

Best interests of the Company – s 237(2)(c) of the Act

84    Given my findings about a serious question to be tried, the only remaining issue is whether granting leave is in the best interest of Australian Carers. That consideration requires Mr Vellenga and Vellenga Holdings to satisfy the Court that the grant of leave is in the best interests of the Company, not that it may or could be in the best interests of the Company. That question is answered by reference to all the relevant circumstances: Swansson at [55] and [56]; see also Tydeman v Asgard Group Pty Ltd, in the matter of Asgard Group Pty Ltd [2023] FCA 486 (Stewart J) at [44]-[46].

85    To an extent, the question of the company’s best interests is related to the strength or otherwise of the case Mr Vellenga and Vellenga Holdings wish to advance on the derivative action claim: South Johnstone Mill Ltd v Dennis and Scales [2007] FCA 1448; 163 FCR 343 at [73] (Middleton J).

86    The allegation against Mr Vitnell is that the business of Australian Carers in Adelaide has been transitioned to EHA.

87    The case against Mr Vitnell is such that I have no hesitation in being satisfied that there was a serious question to be tried. In my view, it is clearly in the best interests of Australian Carers that leave be granted to Mr Vellenga and Vellenga Holdings to proceed against Mr Vitnell in the name of Australian Carers.

88    The undertaking proffered by Mr Vellenga and Vellenga Holdings in relation to indemnifying Australian Carers against any costs liability furthers the balance of whether it is in the best interests of Australian Carers that leave be granted to Mr Vellenga and Vellenga Holdings in their favour.

Conclusion

89    Save for Mr Vitnell, the application must be dismissed in relation to each of the proposed cross-defendants.

90    Leave will be granted to the cross-claimants to issue derivative proceedings, pursuant to s 237 of the Act, against Mr Vitnell, in the name of and on behalf of Australian Carers.

91    However, that leave is granted on the condition that Mr Vellenga and Vellenga Holdings are to indemnify Australian Carers in respect of the costs and expenses incurred by Australian Carers in bringing and in continuing the derivative proceedings. That indemnity is to extend to any legal costs which Australian Carers may be ordered to pay.

92    In light of the undertaking by Mr Vellenga and Vellenga Holdings to the effect set out in the immediately preceding paragraph, the condition set out in that paragraph is met.

93    I will hear the parties as to the question of costs and timetabling for an amended notice of cross-claim and amended statement of cross-claim.

Associate:

Dated:    1 September 2026