Category: Corporations and Securities Law

Potent antidote to denial: at behest of liquidators, court declares insurer must indemnify directors

Liquidators brought action against company directors under s 588M(2) of Corporations Act 2001 (Cth) – Liquidators sought to join third party insurer after insurer denied liability – Supreme Court had jurisdiction to grant declaratory relief on liquidators’ application – Meaning of justiciable controversy

Appeal against leave to amend statement of claim in group proceeding

The Victorian Court of Appeal has refused an application for leave to appeal against a decision of a trial judge to allow a plaintiff to amend his statement of claim in a group proceeding. The amended pleading relates to the interpretation of section 729 of the Corporations Act 2001 (claim for loss and damage arising from misleading or deceptive statements in a disclosure document).

Forgery of guarantee

Roslyn Kaye – The New South Wales Court of Appeal allowed this appeal brought by the ANZ bank. The trial judge had found that the bank was not entitled to rely upon an assumption that a forged guarantee document had been duly executed. The Court of Appeal held that the bank was entitled to rely upon the assumptions in sections 129(4) and (5) of the Corporations Act 2001 that the guarantee had been duly executed, and accordingly the guarantee was enforceable against the respondent company.

Directors’ duties/fiduciary duties and knowing receipt

Roslyn Kaye – In this appeal, the New South Wales Court of Appeal: (a) dismissed an appeal by two company directors who were found by the trial judge to have breached their directors’ duties; and (b) upheld an appeal by an individual alleged to have been in knowing receipt of monies transferred to her by the directors in breach of their fiduciary duties.

Mansfield v The Queen; Kirzon v The Queen (2012) 293 ALR 1

In this case, the High Court rejected an argument that to constitute ‘insider’ trading in contravention of the Corporations Act 2001, the information of which the accused person is in possession must be true and accurate. Justices Hayne, Crennan, Kiefel and Bell delivered a joint judgment and Justice Heydon delivered a separate judgment in which his Honour agreed with the plurality that the appeal ought to be dismissed.