Discuss about the Corporations Law for Preliminary Issues.
Dr Dawes, Mr Foster, Mr Huckenfusser and Mrs Duck after having dealt with certain shares of MMM later on sold them off upon receiving some vital information of the same from the internal sources of GML and also earned profits in the dealing. They would not have been entitled to these profits had they not received the information from GML. Thereafter, some of them have become liable under the civil penalties as enshrined in the Corporation Act.
There are several breaches of laws in the given situation. There are some people who have misused the information that they received from GML. Yet there are others who have traded in the shares of MMM to derive personal gains and benefits out of the information that they received. Though there might be some because of whom no detriment was caused to the company on the whole but it should be noted that if the minutes of the meetings of GML would not have been available to them, they would not have gained these benefits[1]. Thus, the issues that arise in this matter may be outlined as follows:
The facts in the matter are clearly indicative of the fact that some of the people as identified above are directors while others are pseudo directors and some are even simple employees of the company. Thus, all cannot be dealt with under the provisions of director cannot be done here. Thus all the issues have to be discussed independently in this matter. There might be some people who are liable for civil penalties while there might be others who have been an accomplice in the matter and have in fact not contravened any law[2]. Each of these issues shall be conclusively determined after making an analysis of the provisions of Corporations Law and making a note of the breached provisions of the law.
In order to successfully bring about a suit against a director or officer of a company, certain essential things needs to be proved under Section 183 of the Corporations Act. These are:
Dr Dawes in the given instance got the information about the possible benefits of investing the stocks of MMM because he was enjoying the position of a director of the company and was also a member of the directorial meeting. He had given a clear indication to the company that he was declared insolvent and was not left with any assets. Thus, it can be said that no material facts were concealed from the company by Dr Dawes. Upon acquiring information about the shares of MMM, he advised his wife to make an investment in the shares. He also came to know about the possible fall in the prices of the shares because of his position and subsequently asked his wife to sell off the shares that she had bought. A good amount of returns were obtained by her by way of this transaction. It should be noted that though benefits were derived by Dr Dawes in the matter, no detriment was caused to the company because of his actions. All that Dr Dawes did was he invested his money in the stocks of the company and his wife derived benefits out of it. It should also be noted that Section 183 becomes applicable only in those conditions when benefits are derived by a director or an officer[6]. However, because of his insolvency, Dr Dawes was not eligible to become a director and to hold on to his directorship, no permission was taken from ASIC as well[7]. Thus, it can be said in this matter that Dr Dawes is not liable to get any civil penalties in the matter.
Mr Foster was a former director of the company and he acquired the information of the stocks of MMM because of his position. He thereafter left GML and joined QECG as a director and used the information he gained in GML for the advantage of QECG. He advised the Board in QECG to invest in the shares of MMM and when he did this, he was not associated with GML in any way. However, it cannot be denied that the information that was received by him was only because of his advantageous position and had he not been present in the meeting, he would have not known about it[8]. Thus, there is no doubt over the fact that he made an advantageous use of his position and misused the gathered information there[9]. There was no option in the hands of QECG to know about the stock priced had Mr Foster not told them about it. There is indication of misuse of information and though detriment was not caused to GML in the matter, yet the actions of Mr Foster have made him liable for insider trading. Hence, civil liabilities have been incurred by him in this situation.
Mr Huckenfusser is in the position of an employee in GML and is neither an officer nor a director there. Because of his work profile, he gathered the information about the stock prices of MMM and passed on this piece of information to an outsider Mrs Duck. This information was let out only with intent to gain personal advantage and to set off his debts in the matter. Mrs Duck has got no action or liability in this because that entire she did was she sought from some independent financial advice from her brother-in-law[10]. However, it is worth noting here that Mr Huckenfusser succeeded in giving this information because of his position and this is a breach of fiduciary duties that have been given to him. Thus, it can be said that though Mrs Duck is not liable in the matter, Mr Huckenfusser is.
Dr Dawes acted honestly in the matter and though he gained monetary advantage his bankruptcy was known to GML. Though certain provisions of law have been contravened by him, he is not guilty under law and can claim immunity under Section 1317S[11].
Mr Foster in the matter has no available remedies and he can only state that GML did not incur any losses because of his actions. However, this is not a valid defense and there needs to be an independent procedural investigation taken up by ASIC in the matter[12].
Mrs Duck has total immunity in the matter because she is not in association with GML[13]. She only took financial investment advice in the matter in absolute good faith. Based on the advice she obtained, she acted and hence she has not breached any law or provisions of the Corporations Act[14].
There are certain civil remedies in the matter. As and when a breach of duty is proved, the Courts can choose on any of the following remedies:
Conclusion
Thus, in this matter, it can be concluded saying that there are certain people who have beached the provisions in the matter but there are also some who have not made a breach under Section 183 of the Corporations Act. Hence, civil penalties can be imposed in the matter. But, it should be noted that procedural process has to be independently taken up in the matter by ASIC before any breach is declared in the matter.
References
Australian Securities & Investments Commission v DB Management Pty Ltd [2000] HCA p.7.
Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers and Managers Appointed) [2011] HCA p.18.
Boral Besser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA p.5.
Braun, D., Oehmichen, J., Wolff, M. and Yoshikawa, T. (2014). When Elites Forget Their Duties: The Double-Edged Sword of Star Directors on Boards. Academy of Management Proceedings, 2014(1), pp.10613-10613.
Chapman, G. (2005). Report on Australian Accounting Standards tabled in compliance with the Corporations Act 2001 on 30 August and 16 November 2004. Canberra: Commonwealth of Australia.
Google Inc. v Australian Competition and Consumer Commission [2013] HCA p.1.
Hackner, D. (2010). Going on Rounds: May’s ICU Director Contributions. ICU Director, 1(3), pp.135-136.
Keay, A. (2014). The Public Enforcement of Directors’ Duties: A Normative Inquiry. Common Law World Review, 43(2), pp.89-119.
Lichtenberg, J. (2010). Negative Duties, Positive Duties, and the “New Harms”. Ethics, 120(3), pp.557-578.
Lim, E. (2013). Directors’ duties: improper purposes or implied terms?. Leg Stud (Soc Leg Scholars), 34(3), pp.395-418.
Lumbers v W Cook Builders Pty Ltd (in liquidation) [2008] HCA p.27.
Mamutse, B. (2014). Directors’ Duties. The Law Teacher, 48(3), pp.376-378.
Symon, H. (2006). Corporations Act 2001. Melbourne: Leo Cussen Institute.
Wong, S. (2014). Combating Phoenix Activities: Law Reform Proposals. Saarbrücken: Scholars’ Press.
Wright, F. (2010). Fiduciary Duties: Directors and Employees20102Andrew Stafford QC and Stuart Ritchie. Fiduciary Duties: Directors and Employees. Bristol: Jordan Publishing Ltd 2008. £155. International Journal of Law and Management, 52(5), pp.405-406.
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