Recent Cases

DSHE Holdings Ltd (Receivers and Managers) (in liq) v Potts; HSBC Bank Ltd v Abboud; Potts v National Australia Bank Ltd [2022] NSWCA 165 (26 August 2022) (Leeming and Kirk JJA, Basten AJA)


CORPORATIONS — Directors and officers — Directors’ duties — Duty of care and diligence — Whether directors breached s 180 of the Corporations Act 2001 (Cth) by voting in favour of the payment of dividends — Where an alleged contravention of s 254T was significant to the alleged contravention of s 180

CORPORATIONS — Statutory construction — Construction of s 254T(1)(c) of the Corporations Act — Whether “prejudice” to a company’s ability to pay its creditors includes prejudice to the company’s ability to pay the claims of its creditors as and when they fall due — Whether “ability to pay” encompasses the presence of trading stock which could be sold

CORPORATIONS — Damages — Whether payment of a dividend can constitute “damage” under s 1317H(1) of the Corporations Act in circumstances where there has been a breach of a statutory norm

WORDS AND PHRASES — “materially prejudice” — “ability to pay” — “damage” — Corporations Act, ss 254T(1)(c),1317H(1)

CORPORATIONS — Capital raising — Application for loan facility — Misleading or deceptive conduct — Failure to disclose practice of over-purchasing to obtain O&A rebates — Failure to disclose actions taken to address overstocking — Significance attached to undisclosed information determined by all evidence

CORPORATIONS — Proportionate liability — One act of two persons acting jointly causing loss or damage — Where officer is agent of company — Vicariously liable principal not concurrent wrongdoer — No acts or omissions independently attributable to company