Blakeney v Blakeney

Affidavit evidence

1. The parties led voluminous affidavit evidence in respect of the application, although significant parts of the affidavits were not relevant to the application and were ultimately either not read or not admitted. By his first affidavit dated 5 March 2024, Mr Lu referred to the circumstances in which the Company was established, referred to the minutes of the June 2020 resolution on which he relies in the Statement of Claim, and refers to initial funding provided to the Company and to the evidence of the transfer of $110,000 out of the Company's account to TTBW, a matter which is not disputed by Mr Tao, although he contends that that transfer was authorised. Mr Lu also there indicates, in evidence admitted under s 136 of the Evidence Act 1995 (NSW) as his understanding, that the transfer of $110,000 was not approved by him and no Company minutes were signed to approve the transaction.
2. By a second affidavit dated 15 April 2024, Mr Lu refers to further communications in respect of the Company and, in particular, to a lunch with Mr Fu and Mr Tao and others on 5 July 2023, although there is a dispute as to what was said at that lunch. By an affidavit dated 11 November 2024, Mr Lu refers to matters on which he relies to contend that there is a commercial relationship between Mr Fu and Mr Tao, which may be relevant so far as Mr Fu does not, as a director of the Company, approve the commencement of the proceedings against Mr Tao. Mr Lu there gives his explanation of what he meant by the exchange on which Mr Tao relies as approval of the relevant payment, although I bear in mind that the question of the meaning of such an exchange would likely be objectively determined.
3. By an affidavit dated 9 December 2024, Mr Lu responds to other evidence led by other parties in the proceedings. By an affidavit dated 11 November 2024 Mr Li, a solicitor acting for Mr Lu, addresses aspects of Mr Lu's position and gives evidence of his instructions that Mr Lu intends to fund the proceedings for the Company, reserving the right to seek to recover the costs of doing so, and is prepared to provide an indemnity for the Company's costs of bringing the proceedings and had the financial means to do so. A further affidavit of Mr Lu addressing those matters was not admitted, where it had not been filed or served in accordance with the directions made by the Court, and I found that it would cause unfair prejudice to the Defendants to admit it at a late point at which it was served. I address below an undertaking offered by Mr Lu, which has raised inordinate difficulties of construction and has been amended several times during the course of the hearing today.
4. Turning to the evidence led by the several Defendants, Mr Tao reads his affidavit dated 11 April 2024, of which only part was admitted, which is at best background to the establishment of the Company. By an affidavit also dated 11 April 2024, Mr Fu, who is Ms Wu's husband, addresses communications with Mr Tao in respect of Mr Tao's involvement in the Company.
5. By a second affidavit dated 2 December 2024, Mr Tao refers to his professional experience, which included having been an accountant for many years and having been a director for other companies in the mining industry. He sets out the bass on which TTBW provides consulting services for companies in the mining industry on a fee for service basis, a matter which is of some relevance so far as there is a dispute as to whether Mr Tao was either entitled to be paid a fee in respect of his work for the Company, by agreement with Mr Lu, or would have had an entitlement to being paid for his time on a quantum meruit basis for his work for the Company. Mr Tao there addresses communications that are said to have occurred in June 2020, including a disputed conversation as to the basis on which Mr Tao would do work for the Company, and whether he would charge for that work on a monthly or yearly fee. Mr Lu denies that an agreement was reached to that effect and contends that Mr Tao's work reflected the fact that he was to be allowed a 10% interest in the Company, by way of equity.
6. Mr Tao there also claims to have run the day to day business affairs of the Company with assistance from Ms Wu, who was Mr Fu's wife, as I noted above, and outlines, by way of brief description, several aspects of the work which he claims to have undertaken for the Company. He also addresses a further meeting with Mr Lu in November 2022, and what was said at that meeting also appears to be in dispute. He refers to evidence of the payment of several invoices by the Company, which he points out were not paid in accordance with any process of a formal resolution by a board meeting accorded in a minute, signed by Mr Lu, inconsistent with the arrangement for which Mr Lu contends.
7. By an affidavit dated 2 December 2024, Mr Fu in turn addresses the position at the time the Company was established, a conversation with Mr Tao relating to his being paid a fee for his management services; and indicates that he considered that he approved the payment of that fee, on the basis that it was a proper fee to be paid for consultancy services by Mr Tao for the company since 2000, and did not support the application by Mr Lu to bring the proceedings. By his affidavit dated 2 December 2024, Mr Mavrolefterou, indicates that he also does not support the commencement of the proceedings, so far as his associated entity is a shareholder in the company.
8. Finally, the Defendants read an affidavit dated 2 December 2024 of Mr Yu, which annexes an English translation of the document on which Mr Tao relies as authorisation for the relevant payment. The translation, which may or may not be disputed by Mr Lu, is as follows: "Hi, Mr Hu [which presumably refers to Mr Lu]. I have told Mr Fu about the costs (or expenses). I would like to invoice the Qld Mining Company so that I can get the $10,000 VAT back from the taxation office. I would also like to advertise the mine for sale to see if anyone wants to buy it."
9. The Defendants, or Mr Tao, rely on Mr Lu's response to that message, which appears to be an "okay" emoji. I pause to note that, on one view, the message from Mr Tao to Mr Lu was not a particularly transparent way of communicating the proposition that Mr Tao proposed that $100,000 be paid to him, for his work previously done in respect of the Company, with the consequence that an amount of $10,000 of GST would be paid and a credit for that GST would be obtained by the Company. That, no doubt, is a matter that may ultimately need to be addressed in any substantive proceedings.
10. In the course of the hearing today, Mr Lu also provided an undertaking which, as I noted above, has caused considerable difficulties and has been subject to several revisions in the course of the hearing. That undertaking broadly provides that he will deposit $250,000 into a controlled moneys account, ultimately to be held by the solicitors acting for him and the Defendants, for the purposes of funding adverse costs orders in the proceedings and an indemnity which is directed to adverse costs orders and any adverse economic result including by reason of a judgment in any cross claim. I will address the circumstances in which that may arise below. Mr Lu also there indicates that he would fund the proceedings on behalf of the Company in the first instance, reserving the ability to seek recoupment of those funds, although that indemnity would not be secured by the payment into the controlled monies account. He also indicates that he would indemnify the Company as to costs incurred by the solicitors conducting the proceedings, as to any adverse costs orders, and as to any adverse economic result, with the indemnity as to adverse costs orders and as to the adverse economic result being secured by the deposit of $250,000 to which I have referred above.

Applicable principles

1. With that background, I now turn to the applicable principles and the parties' submissions.
2. The matters necessary to establish leave to bring a statutory derivative action are well established. In order to obtain leave, the Plaintiff, here Mr Lu, must satisfy the criteria for the grant of leave specified in s 237(2) of the Act, requiring that the Court be satisfied of five matters, and the Court must grant that leave if satisfied of those matters, and must not grant the leave if it is not satisfied of those matters. Those matters are that it is probable that the Company will not bring the proceedings; Mr Lu is acting in good faith; it is in the Company's best interest that Mr Lu be granted leave; there is a serious question to be tried; and, at least 14 days before making the application, Mr Lu gave written notice to the Company of his intention to do so, or the Court should dispense with that requirement. Mr Lu bears the onus of establishing each of those matters on the balance of probabilities: Huang v Wang (2016) 114 ACSR 586; [2016] NSWCA 164.

Whether the Company would bring the proceedings

1. It seems to me plain enough that the first of the requirements for grant of leave to bring a derivative action under s 237(2) of the Act, that it is likely that the Company would not itself bring the proceedings, is satisfied. That is plainly the case, where the board comprises two directors, Mr Lu and Mr Fu, and Mr Fu has explained why he does not believe the proceedings are in the Company's interests.
2. It is convenient here to address a point made by Mr Pritchard, who appears for several Defendants, that the position should be seen as one where the present constitution of the board was created by the consent orders previously made the Court, in April 2024, to which I referred above, and the Court should be reluctant to interfere with a decision reached by the board, albeit one that involves a deadlock, that is the product of those orders. I do not accept that submission. It is plain enough that the consent orders, gave rise to the possibility that a deadlock might occur. Having said that, s 237 of the Act contemplates the possibility that a deadlock will occur, so that the Company will not itself bring the proceedings. This is not a case, by contrast with, for example, the decision in Re Wonga Pastoral Development Co Pty Ltd [2023] NSWSC 133 to which Mr Pritchard refers, where an independent person, was appointed to the board, so as to seek to resolve a deadlock between competing views or competing interests, and not a case where the Court should not exercise the statutory power available to it in the case of deadlock, by reason that to do so would undermine that independent person's role.

Whether Mr Lu is acting in good faith

1. The second requirement under s 237 of the Act is that Mr Lu is acting in good faith. Factors relevant to the good faith requirement at least include whether he has an honest belief that a good cause of action exists and has reasonable prospects of success, although that belief will be tested against whether a reasonable person in those circumstances would hold that belief, and whether he is seeking to bring the action for a collateral purpose. Importantly, in Swansson v Pratt [2002] NSWSC 583, Palmer J recognised, in an observation that has frequently since been applied, that an applicant will more readily establish good faith where he or she has more than a token shareholding and the derivative action seeks recovery of property so that the value of his or her shares would be increased.
2. Mr Burton, with whom Mr Harris appears for Mr Lu, submits that Mr Lu is acting in good faith, where his Statement of Claim as articulated a reasonably arguable claim on the facts and the law, and where he, as a 70% shareholder in the Company, stands to benefit from any recovery against Mr Tao. Mr Pritchard in turn acknowledges the relevance of the fact that Mr Lu is willing, as a condition of leave, to indemnify the Company, subject to the dispute as to the scope of that indemnity, to the question whether he is acting in good faith. Mr Pritchard submits, adopting the point which I noted above, that the commencement of the proceedings would outflank the governance regime involving two directors, but I have not accepted that submission.
3. Mr Pritchard raises a question as to the suggested weakness of the claim, which turns on the significance of the messages on 24 November 2022, on which Mr Tao relies as authorising the $110,000 payment. I would more readily find that Mr Lu is acting in good faith in that respect, because of the lack of clarity in the message to which he was responding, although it might well be established that his "okay" emoji was an affirmative response to that message. Mr Pritchard also refers to the limited quantum of any recoverable claim, net of any cross claim from Mr Tao for quantum meruit, and I will return to that question below in addressing whether the grant of leave is in the Company's best interests.
4. On balance, I will assume, without deciding, that the claim is brought in good faith, so far as Mr Lu has a subjective belief that the claim is genuinely arguable; and so far as he contends and it is reasonably arguable that the payment was made without the Company's formal authority and that his "okay" emoji in response to the message sent by Mr Tao was not sufficient to justify it. It seems to me that a reasonable person could take that view, in respect of the alleged lack of authority for the transaction. However, that is not sufficient, in itself, to establish that the proceedings are in the Company's best interests.

Whether it is in the Company's best interests that Mr Tao be granted leave

1. The third criteria for the grant of leave is that it is in the best interests of the Company that the applicant be granted leave, and that plainly relates to the question whether it is in the Company's best interests that the proceedings be brought, and that they be brought by Mr Lu as applicant. The relevant principles were summarised in Swansson at [55] [60], and I have recently reviewed them in Re Gillespies Cranes Nominees Pty Ltd [2024] NSWSC 1136 at [37]ff. I adopt, without repeating, that review. I recognise that the Court must be satisfied on the balance of probabilities that the action is actually in the Company's best interests, having regard to the nature of its business and any practical benefit to it, and it is not sufficient for that purpose that the action merely may be in the Company's best interest.
2. Mr Burton submits that the claim, and the grant of leave, is in the Company's best interests because it seeks to retrieve an allegedly unauthorised payment and therefore return value to the Company for the benefit of its members, and there is no practical means to achieve that other than to bring proceedings in the company's name. He submits, and I accept, that the Company is a small business operation and has effectively ceased operations, given the disputes between the shareholders, so that the litigation would not adversely impact on its day to day business, other than by any result that might arise from the litigation itself. He also points to Mr Lu's offer of an indemnity in that respect.
3. Mr Pritchard responds, by reference to a detailed review of the authorities including Re Gladstone Pacific Nickel Pty Ltd (2011) 86 ACSR 432, Huang v Wang and Blakeney v Blakeney (2016) 113 ACSR 398, that the Court could not be satisfied that the proposed action is in the Company's best interests. In particular, Mr Pritchard submits that the claim is a relatively weak one and implausible, so far as he points to the approval suggested to have been given by Mr Lu for the relevant payment, a matter to which I have referred above.
4. Importantly, Mr Pritchard also points to the fact that, if the $110,000 payment was not authorised, Mr Tao would have a counter claim in quantum meruit against the Company for the substantial work he performed, where, Mr Pritchard contends, the Company has received the benefit of Mr Tao's professional services and time, and that benefit was obtained at Mr Tao's expense, and at least on Mr Tao's case, on the understanding that he would be remunerated for the work that he did. Mr Burton responds to that proposition by pointing to an argument that might be put by the Company that the arrangement was one that contemplated that Mr Tao's work would be done in exchange for his 10% shareholding in the Company. It is not possible, nor is it appropriate, to seek to determine the strength of those competing contentions, at this point, although I note that the latter may have the difficulty that it would have required Mr Tao to do a substantial amount of work for a somewhat uncertain return, so far as the value of shares in the Company was concerned.
5. Here, it seems to me that the difficulty with Mr Lu's contention that the grant of leave is in the Company's best interests is more fundamental. It is plain enough that, if the payment to Mr Tao is recoverable on the basis that it was not properly authorised by the Company, Mr Tao could potentially bring a claim for quantum meruit against the Company. There is every reason to think that he would do so, where he has foreshadowed that he would do so and that would be a rational step to take, both so far as it may extinguish any liability on his part and lead to recoveries beyond the amount claimed against him, and where it is unlikely that the bringing of a cross claim would significantly increase the costs of the proceedings for Mr Tao beyond those to which he would already be exposed in defending the proceedings.
6. I raised with Mr Burton, in the course of submissions, that a company contemplating these proceedings would rationally undertake, before they were commenced or before they were significantly progressed, an assessment of the likely prospects of the proceedings and could not do so by closing its eyes to the prospect that a cross claim would be brought by Mr Tao, and could recover an amount that was a significant part of the amount claimed by the Company, or as much as the amount claimed by the Company, or more than the amount claimed by the Company. The analysis of that question would involve, at least, identifying the factual matters that were likely to be relevant to the cross claim; reaching an assessment as to whether those factual matters were likely to be established; and then reaching an assessment of the potential result of the cross claim having regard to those factual matters. Mr Burton rightly recognises that the information available to the Company in respect of those matters may be incomplete, but the Company would plainly have to do the best it could in those circumstances, to undertake an assessment of the prospects of the proceedings on imperfect or incomplete information.
7. That proposition seems to me to be wholly uncontroversial, since the Company, acting rationally, would likely not commence proceedings if there was a substantial likelihood that, even if it succeeded, the outcome of Mr Tao's cross claim would result in a net disadvantage to it, because that cross claim recovered more than the amount claimed by the Company in the proceedings. The first difficulty here, so far as the best interests requirement is concerned, is that Mr Lu appears to have engaged in no disciplined analysis of that question, but has largely assumed away the prospect that a cross claim would be brought against the Company and that the same or a larger amount would be recovered by Mr Tao in a quantum meruit claim, if the relevant payment was shown to be unauthorised by the Company.
8. It is by no means clear to me that, in those circumstances, it is the Court's role to formulate the matters that would relevant to a proper analysis of that issue, and then an analysis which Mr Lu has not undertaken, so as to determine whether the proceedings and the grant of leave to bring them are in the Company's best interests. It seems to me that, here, the better view may be that the Court cannot be satisfied that the proceedings or the grant of leave to bring them are in the Company's best interests, because Mr Lu has not undertaken the analysis which would be necessary to assess their prospects of success, by reference to Mr Tao's threatened cross-claim, or whether they will deliver an economic benefit to it.
9. In any event, even if it were appropriate for the Court to undertake that analysis for itself, it seems to me that the evidence here would not permit the Court to do so. There is not sufficient detail in the evidence to allow the Court to identify the necessary factual assumptions or reach a probability analysis as to the potential outcomes of the proceedings, so as to determine whether the Company would recover more in the claim against Mr Tao than the amount to which it would be exposed in any cross claim by Mr Tao against it. In those circumstances, it seems to me that Mr Lu has not established that it is in the Company's best interest to bring the proceedings or that he be granted leave to bring them on the Company's behalf.
10. I bear in mind that Mr Lu has offered an indemnity and, as events have developed, that indemnity extends to an indemnity against any adverse economic result including by reason of judgment against the Company in any cross claim, and that an amount of $250,000 would be deposited into a controlled monies account and be available for any adverse costs order and any adverse economic result, including by reason of judgment against the Company in a cross-claim. However, I cannot conclude that the indemnity is worth more than the amount of $250,000 that is provided to secure it, where Mr Lu's evidence as to his financial position was led so late that it was excluded. I also cannot be satisfied that, where a failure in respect of the cross claim would likely expose the Company at least to the costs of the cross claim and possibly to the costs of the whole of the proceedings, the amount of $250,000 will be sufficient both to pay the costs ordered against the Company and the net amount by which the amount due to Mr Tao on a quantum meruit exceeds the amount of $110,000 (and any interest) recoverable from him. That proposition depends on the exercise which Mr Lu has not undertaken, of making a proper assessment of the range of likely recoveries if the Company's claim succeeds and Mr Tao also succeeds in its cross claim against it. Even if it were open to take the view that it could be in the Company's interest to bring proceedings which would ultimately lead to a net recovery by Mr Tao against it, because Mr Lu rather than the Company would fund that net recovery, I cannot be satisfied here that the Company is adequately secured against that result.
11. In these circumstances, I am not persuaded that, as the section requires, it is in the Company's best interest to grant the leave that is sought. That must be proved as a matter of fact, and it cannot be proved as a matter of fact without undertaking the analysis which has here not adequately been undertaken.

Whether there is a serious question to be tried

1. The fourth criteria, in an application of this kind, is that there is a serious question to be tried in the proceedings. I reviewed the relevant authorities in Gillespies Cranes at [42]ff, and it is not necessary to repeat that review here. I will assume, without deciding, that a serious question to be tried is established. That is certainly a plausible assumption, where there seems to be an arguable case that the payment was unauthorised, having regard to the limited disclosure in the message which sought it, and the difficulties to which I have referred above relate less to the primary claim, than to the Company's exposure to a cross claim in response.

Notice

1. Mr Pritchard sensibly took no point as to any failure to give notice of Mr Lu's intent to bring a derivative action, where the issues have plainly been exposed between the parties.

Determination and other matters

1. In these circumstances, I am not persuaded, to the requisite standard, that all elements necessary for the grant of leave to bring a derivative action are established, where I am not persuaded that it is, as distinct from might be, in the Company's best interests to grant the leave that is sought. For that reason, the application for leave to bring the derivative proceedings is dismissed with costs.
2. There was also a suggestion in the course of the hearing that there might be a question of costs in respect of an earlier dispute between the parties as to access to books of the companies. Such an application would have faced formidable hurdles, having regard to the decision in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Quin (1997) 186 CLR 622, and the fact that the Court has reached any determination on the merits as to the question of access to books and should not be asked to do so, only in order to determine a costs application. In the event, that application was not pressed and the parties agreed the orders that should be made consequential on this judgment.

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