Mr Clancy and Mr So had over some years undertaken several subdivisions and developments together. Their most recent development was in respect of property referred to as the “Carver’s Reach Estate” and they had utilised corporate vehicles to undertake the development. Mr Clancy’s corporate interests had commenced these proceedings under s 232 of the Corporations Act 2001 in respect of alleged oppressive conduct in relation to the operation of the development operating companies. The proceedings also sought to advance claims by the operating companies against Mr So and his corporate interest (Ultimate) for breaches of fiduciary duty and being knowingly concerned in those breaches, as well as misleading or deceptive conduct in contravention of the Australian Consumer Law. The Clancy interests sought leave nunc pro tunc pursuant to s 237 of the Corporations Act to bring derivative claims on behalf of the operating companies against Mr So and Ultimate.
The court granted the application for leave to commence the derivative actions against Mr So and his corporate interests (Ultimate), in favour of Mr Clancy and his corporate interests (CIP Group).
Michael Hodge KC (leading M Taylor) appeared for the applicants, instructed by Bartley Cohen.
The judgment is published here.