This would include o a threatened breach of civil

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and, if in the opinion of the Court it is desirable to do so, requiring that person to do any act or thing. This would include: o A threatened breach of civil penalty provisions An application may be made by ASIC OR a person whose interests have been or would be affected by conduct There have been inconsistent decisions regarding whether this remedy is only available to ASIC or whether interested persons such as shareholders may also bring an action in respect of breach of civil penalty provisions Some view this as a kind of statutory derivative action In { Messenberg v Cord Industrial Recruiters, Young J} held that members cannot seek an injunction under s1324 because it was Parliament’s intention that the civil penalty regime, providing ASIC with exclusive standing was exhaustive o The availability of s 1324 to shareholders would be inconsistent with this HOWEVER in {Airpeak v Jestream, Enfield J } completely rejected this approach by stating that given the broad terms of s 1324, its injunctive relief is available to shareholders In light of other remedies available to members, and particularly the oppression remedy, it seems unlikely that the potential of s 1324 will be explored or resolved 5
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Shareholder Remedies E. Personal Actions Unlike derivative actions, where a shareholder only has standing to bring action if granted leave by the court, and where any benefit of the litigation goes to the company – where a shareholder sues in their personal capacity, their standing is automatic and if the action is successful any damages are awarded to them personally E.1 Personal Actions under General Law There are three main situations where shareholders have standing to bring a personal action in equity o (1) Where the shareholder can establish that the director owed them specifically a “special fact” fiduciary relationship o (2) Where allotment of shares are made for an improper purpose o (3) Where the company exercises a power to alter the constitution in a way that harms some shareholders If one of these situations arise, then the shareholder will have standing to bring a personal action (1) Instances of “Special Fact” Fiduciary Obligation to Individual Shareholders There is an additional fiduciary obligation to individual shareholders that may arise on the facts {Coleman v Myers} A “special fact” fiduciary obligation between a director and shareholder was also found in {Glavanics v Brunninghausen} In both cases the facts gave rise to a fiduciary duty owed by each director to a individual shareholder because the shareholders were selling their shares to the directors in the context of a small proprietary company Pursuant to {Coleman v Myers per Woodhouse J} there are four factors which if present may result in the imposition of a ‘special fact’ fiduciary relationship: o (1) the dependence of shareholders on the directors’ information and advice o (2) the existence of a relationship of confidence o (3) the significance of the transaction for the parties o (4) the extent to which the directors have promoted the transaction
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