In Chahwan v Euphoric Pty Ltd trading as Clay & Michel  NSWCA 52 (8 April 2008) the New South Wales Court of Appeal considered whether the Australian statutory derivative action (Part 2F.1A of the Corporations Act (2001)) should be available where a company is in liquidation.
The court unanimously held that it should not be available, thereby taking a different position from several first instance decisions in New South Wales and Victoria (see, e.g., Brightwell v Rfb Holdings  NSWSC 7 and Freshstart Australia Pty Ltd v Lofthouse  VSC 317).
Nothing in the Explanatory Memorandum to the Bill suggests an intention to remove or qualify the court’s inherent jurisdiction".[For discussion of Foss v Harbottle, click here (the case can be read here).
The UK Companies Act (2006) introduced a statutory derivative action: see Part 11].
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Presenter: Ms Nance Frawley, Assistant Lecturer, Dept of Business Law and Taxation Abstract: A derivative action is an action brought on behalf of the company and in the company's name, by a person other than the company (usually a shareholder). As the proper plaintiff in such circumstances would otherwise be the company itself, the right to bring such an action has always been strictly limited.
In Australia, prior to the introduction of the statutory scheme, the right to bring a derivative action at common law was widely viewed as unnecessarily complex and uncertain for applicants.The statutory scheme, contained in Pt 2F.1A of the Corporations Act, allows applicants to seek the leave of the court to bring a statutory derivative action where specific criteria are satisfied and on its face is far simpler.This is because the rule in Foss v Harbottle and its exceptions did not apply and were irrelevant to a company in liquidation". ):"When a company is in liquidation, the liquidator is, as a general rule, the person in whom is vested the authority to bring legal proceedings on behalf of the company ...A few days later, in Ragless v IPA Holdings Pty Ltd (in liq)  SASC 90 (PDF version), the Supreme Court of South Australia (Full Court) touched upon this question but did not (in its opinion) need to provide an answer because an alternative route was found to permit a creditor to bring a legal action on behalf of a company in liquidation. However, the court has an inherent power to authorise a creditor or contributor to sue in the name of the company.As Mc Lelland J noted in Aliprandi v Griffith Vintners Pty Ltd (in liq) (1991) 6 ACSR 250 at 252 the procedure is of respectful antiquity and is sanctioned by high authority ...Section 236(3) [which states "The right of a person at general law to bring, or intervene in, proceedings on behalf of a company is abolished"] abolishes only the right to bring derivative proceedings.