Welcome to today’s Chamberlains Selection, where we will discuss with James d’Apice on the matter of Global Advanced Metals [2019] NSWSC 1804. We will talk about a minority shareholder in a tantalum producing company who sought the Court’s leave to sue the companies directors for breach of duties.

P, a minority shareholder in a tantalum producing Co, sought the Court’s leave to sue the Co’s directors for breach of duties. P said that in 2016 the Co’s directors sold an asset of the Co’s for $60m when it was worth somewhere between $245m and $900m. [4] P asserted that the Co’s directors made the decision without enough info and without carefully thinking about it. [6] In 2018, some of the assets the Co sold in 2016 were sold by that 2016 purchaser for $1.15B. P tried to rely on this but the Court considered this suggestion had a “hindsight problem” – how could a 2018 sale shed light on a 2016 valuation? [55]

In considering whether to allow the derivative action, the Court found (i) the Co was not likely to bring the claim [98], (ii) the application was in good faith because P, as a shareholder, would benefit from any success the Co enjoyed. [105], and (iii) there was a serious question to be tried. [117]. However, crucially, the Court found it would not be in the Co’s best interests to grant leave [146] including because of the distraction to the management of the Co, the likely increase in D and O insurance premiums, and the availability of external finance. [121] – [144] Leave was not granted.