Business Trusts Act 2004 · 2020 Revised Edition · Part 6 · Liability and Take-Overs
42. Derivative or representative actions
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Subject to subsection (2), a complainant may apply to the court for permission to bring an action or arbitration in the name and on behalf of all the unitholders of the registered business trust as a whole or intervene in an action or arbitration to which the trustee‑manager, on behalf of the registered business trust, is a party for the purpose of prosecuting, defending or discontinuing the action or arbitration on behalf of the trustee‑manager.
registered business trust
“registered business trust” means a business trust that is registered by the Authority under section 4(1);
No action or arbitration may be brought and no intervention in an action or arbitration may be made under subsection (1) unless the court is satisfied that —
the complainant has given 14 days’ notice to the directors of the trustee‑manager of the registered business trust of the complainant’s intention to apply to the court under subsection (1) if the directors of the trustee‑manager do not bring, diligently prosecute or defend or discontinue, the action or arbitration;
the complainant is acting in good faith; and
it appears to be prima facie in the interests of all the unitholders of the registered business trust as a whole that the action or arbitration be brought, prosecuted, defended or discontinued.
Where a complainant on an application can establish to the satisfaction of the court that it is not expedient to give notice as required in subsection (2)(a), the court may make any interim order that it thinks fit pending the complainant giving notice as required.
In granting permission under this section, the court may make any orders or interim orders that it thinks fit in the interests of justice, including (but not limited to) the following:
an order authorising the complainant or any other person to control the conduct of the action or arbitration;
an order giving directions for the conduct of the action or arbitration by the person so authorised; and
an order requiring the trustee‑manager of a registered business trust in its capacity as trustee‑manager of the registered business trust to pay reasonable legal fees and disbursements incurred by the complainant in connection with the action or arbitration.
Where an action has been commenced or is to be brought in the State Courts, an application for permission under subsection (1) must be made in a District Court.
In this section and section 43, “complainant” means —
any unitholder of a registered business trust; or
any other person who, in the discretion of the court, is a proper person to make an application under this section.