Australian Securities and Investment mission Law

In the case of ASIC v Sydney Investment House Equities Pty Ltd [2008] NSWSC 1224 (21 November 2008) Australian Securities and Investment mission is the plaintiff and Mr. Goulding is the 3 rd out of the 9 defendants. In this case, the plaintiff had made a claim against the defendant that he had mitted various infringements of the provisions of the Corporation Act 2001 (CA) and the Australian Securities and Investment mission Act 2001 with respect to his role as the director of several panies prising the Sydney Investment House Group . The plaintiff seeks from the court against the defendant that he should be he should be disqualified for an appropriate period from managing corporations and prevented from providing any financial services within Australia. However, the plaintiff had not made any claims for the imposition of any kind of penalties and others orders with respect to pensation payment.   The plaintiff had initially brought proceedings against eight panies, which belonged to the SIG group. Mr. Goulding and the Mr. Geagea (fourth defendant) were or acting as the directors of most of the panies which are all in liquidation. Application made by the fourth defendant with respect to Section 29.9(1) (a) and 29.10 one after the other against the claim of the plaintiff were dismissed by the court. The court in this case had to determine the fourth defendant mitted the breach of the provisions related to director’s duty or not. The plaintiff claimed that the court should determine that the following breached were mitted by the defendant with respect to the Corporation Act and the Australian Investment and Securities mission Act. The court in this case held the fourth defendant liable for the breach every allegation made by the ASIC. With respect to this decision, the court considered the following law. The court took into consideration the provisions of Section 180. The Section states that it is the duty of the and other officers of a pany to use their powers and exercise their duties with proper diligence and care which any reasonable person would have used if they were an officer or director of the pany in similar circumstance or held or occupied such a position in the pany similar to that of the directors and officers (Gerner, Paech and Schuster 2013).   The court in this case held that the defendant was liable for the breach of this Section by not observing diligence and care while discharging his duties as the director of the panies. The court also considered the provisions of Section 181 of the Corporation Act 2001 with respect to this decision. The Section states that it is the duty of the directors and the other officers of the pany to discharge their responsibilities towards the pany in good faith and in the best possible interest of the pany (Gelter and Helleringer 2013). In addition, the directors and other officers of the pany must discharge their duties for a proper purpose towards the pany. Duties in this Section refer to the statutory duty, which the direct owns towards the pany with respect to the general law o fiduciary duties. The court in this case also considered the decision provided in the case of Chew v R  (1991) 4 WAR 21, where the court held that good faith means (Knepper et al. 2015) The court in this case reading Section 184 of the CA along with Section 181, the Section can be breached if the director has not acted in the best interest of the pany, even if there is no act of dishonesty mitted by the director (Huebner and Klein 2015). The court also considered the provisions of Section 182 of the CA in deciding this case, according to the provisions of the Section it is the duty of the directors and other officers of the pany not to gain unfair advantaged for someone else or themselves by making unfair use of their position in the corporation. In addition, the directors and other officers of the corporations are not allowed to use their position in the pany to cause detriment to the pany. The court also considered the decision made in the case of ASIC V Adler 458 which held that entering into an agreement by the director which provides him with unfair advantage is the breach of Section 180,181,182 of the CA (Keay 2012). In the case of R v Byrnes  [1995] HCA 1;  (1995) 183 CLR 501 the court held that   if a director of a corporation acts with respect to a transaction in which the part to whom he owns a fiduciary duty gains benefits without making proper disclosure in relation to his interest, then the directo r is deemed to act improperly with respect to Section 182 of the CA (Welch et al. 2015). In addition, this would also lead to the breach of the provision of good faith provided in Section 181 of the act. In the case of Chew v The Queen  [1992] HCA 18, the court held the provisions of Section 180,181,182 of the CA can be reached by mere conduct to a director to attain unfair advantaged or himself or someone else , it is not relevant in this case that whether the advantage was actually breached or not (Stout et al. 2016). With respect to the decision made by the court in this case the court also considered that although the corporation itself owes the duties imposed by Section 181 and 180 of the CA the direct could be held liable for the breach of provisions of these sections (Land and Saunders 2014). This breach can arise from making or not preventing the corporation from breaching the provisions of law, which may indirectly involve failure to exercise skill and care towards the interest of the pany on the part of the directors (Fairfax 2013). After making such findings, the courts focused on the individual breaches, which were made by the defendant.   With respect to the first breach of making loans the question before the court was to determine whether the pleading made by the ASIC   are enough for the orders sought by them against the defendant and whether the objection of ASIC with respect to final formulation of loans were made out. The court in this case held that both the questions before the court were in favor of ASIC nod the defendant sis liable for the breach of Section 181 and 181 of the CA by making such loans (Prashker 2014). In relation to the allegation of rollovers against the defendant the question before the court was whether the orders sought by the plaintiff was in accordance with the pleading and whether roll over transaction finally formulated had been made out or not. After analyzing the submissions made by both ASIC and the fourth defendant the court decided that the defendant had breached directors duty by getting involved in the roll over transaction as alleged by the plaintiff. In addition the court also decided that the order sought with respect to roll over transaction were according to the pleadings made by the plaintiff. The court held that it is clear that the fourth defendant was clearly the sole director of equities and capital and he allowed the pany to go forward with a role over transaction by issuing preference share without any consideration and subsequently breached the provision of Section 180 and 181 of the CA (Donner 2016). The court also held that the defendant breached the provisions of Section 182 by causing detriment to the cpmpany through his actions (Bilchitz and Jonas 2016).    With respect to misappropriation, after considering the submissions made by both the plaintiff and the defendant the court had two factors to analyze firstly whether according to the submission of the defendant the defects in pleading made by the plaintiff is extreme and defies all principles of pleadings. Secondly, to what extent the allegation with respect to misappropriation are true. The court in this case held that the payment made by the pany were made for non business and in proper purpose or to give unfair advantage to the defendant and these payments were made to be caused by the defendant himself breaching the provisions of Section 180-182 of the CA. The court held the same with respect to unregistered managed investment scheme by not registering the investment scheme and therefore a breach of the defendant’s duty of care as provided in Section 180(1) of the CA along with the breach on Section 181 by not acting in best interest of the pany (Bruce 2013). The court had a different view with respect to the breach of reporting failure by capital. The court held the the defendant breach the provisions of Section 180 by not plying with his duty of care towards the pany. However, the court held that the defendant did not breach the provisions of Section 181 in this situation, as his acts cannot be considered not to be in good faith. The findings conducted by the court in this case are broadly discussed the range and limits of the duties of directors and other officers towards the pany. The provisions provided in Section 180-182 of the CA have a very wide but simple meaning to them. Through this case the court made it clear that the it is not necessary that detriment was actually caused to the corporation or unfair advantage was actually gained by the director , it is enough that the directors acted in such a way which would have resulted in such problem. Bilchitz, D. and Jonas, L.A., 2016. Proportionality, Fundamental Rights and the Duties of Directors.  Oxford Journal of Legal Studies, p.gqw002. Bruce, M., 2013.  Rights and duties of directors. Bloomsbury Publishing. Donner, I.H., 2016. Fiduciary Duties of Directors When Managing Intellectual Property.  Nw. J. Tech. & Intell. Prop.,  14, p.203. Fairfax, L.M., 2013. Sue on Pay: Say on Pay's Impact on Directors' Fiduciary Duties.  Ariz. L. Rev.,  55, p.1. Gelter, M. and Helleringer, G., 2013. Constituency Directors and Corporate Fiduciary Duties.  Fort ing: The Philosophical Foundations of Fiduciary Law (Andrew Gold & Paul Miller eds., Oxford University Press, 2014). Gerner-Beuerle, C., Paech, P. and Schuster, E.P., 2013. Study on directors’ duties and liability. Huebner, M.S. and Klein, D.S., 2015. The Fiduciary Duties of Directors of Troubled panies.  American Bankruptcy Institute Journal,  34(2), p.18. Keay, A., 2012. Directors’ duties to creditors and financially distressed panies’. Keay, A., 2016. Wider Representation on pany Boards and Directors’ Duties.  Journal of International Banking and Financial Law,  31(9), pp.530-533. Keay, A.R., 2014.  Directors' duties. Knepper, W.E., Bailey, D.A., Bowman, K.B., Eblin, R.L. and Lane, R.S., 2015.  Duty of Loyalty  (Vol. 1). Liability of Corporate Officers and Directors. Land, A.L. and Saunders, R.S., 2014.  Folk on the Delaware General Corporation Law: Fundamentals. Aspen Publishers Online. Prashker, L., 2014. Corporation Law for Officers and Directors (Book Note). Stout, L.A., Robà ©, J.P., Ireland, P., Deakin, S., Greenfield, K., Johnston, A., Schepel, H., Blair, M.M., Talbot, L.E., Dignam, A.J. and Dine, J., 2016. The Modern Corporation Statement on pany Law. Tewari, S.P., 2015. Directors Fiduciary Duty not to make Secret Gains. Welch, E.P., Saunders, R.S., Land, A.L., Voss, J.C. and Turezyn, A.J., 2015.  Folk on the Delaware General Corporation Law: Fundamentals. Wolters Kluwer Law & Business.

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