Costs in Statutory Derivative Actions: The Lingering Ghost of Wallersteiner
Bibliographic record
Abstract
Part 2F.1A of the Corporations Act 2001 (Cth) provides for a statutory derivative action in Australia. Section 242 gives power to the court to make costs orders for derivative proceedings commenced with leave of the court under s 237. The manner in which courts deal with issues of costs impacts significantly upon the utility of the statutory derivative action. This article considers the factors that inform the exercise of the court’s discretion as to costs under s 242 at, first, the leave stage and, secondly, at the conclusion of derivative proceedings, drawing on case law in Australia, the United Kingdom, New Zealand and Canada. The English Court of Appeal decision in Wallersteiner v Moir (No 2) [1975] QB 373 is often cited for the proposition that a minority shareholder who brings a derivative action on behalf of the company has the right to be indemnified in respect of costs reasonably incurred, whether the derivative action succeeds or fails. This article will consider whether Wallersteiner reflects the law in Australia under the statutory derivative action provisions.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.012 | 0.028 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.000 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.007 | 0.033 |
| Scholarly communication | 0.011 | 0.020 |
| Open science | 0.001 | 0.005 |
| Research integrity | 0.010 | 0.017 |
| Insufficient payload (model declined to judge) | 0.003 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".