Company Law: Violation And Obligation

ASIC v Lindberg (2012)

Describe about the Company Law for Violation and Obligation.

ASIC v Lindberg (2012)

The present case signify that a director, acting in the power of managing director or chief executive, should be on ‘high alert’ to examine any possible inconsistencies, mainly in the matter of high danger trade operations which have the possibility to cause the corporation severe harm. A director who does not meet his duty may be initiated to be in violation of the obligation of care and diligence.

In the year 2007, a civil penalty proceeding was instituted by ASIC against Mr. Lindberg who was acting as the managing director of AWB Limited corporation. It was stated by ASIC that while acting in the capacity of the director of the corporation he has violated the Corporations Act 2001. As he was involved in AWB’s Wheat trade with Iraq and there was a mis-utilization done by AWB of the Oil for Food Program which was administered by the United Nations.

While in 2009, the tribunal initiated to listen to the trial, but after few days of the hearing, the events were adjourned in order to facilitate ASIC to modify its assertions which it made against Mr. Lindberg (Jade, 2016).

The individuals, however, got themselves involved in a detailed negotiation and were arrived at on the contract to settle the proceedings. The settlement included Mr. Lindberg officially by admitting to four major violations of section 180 (1) of the Act concerning a failure by Mr. Lindberg to work out rational concern and the discharge of the other allegations which were made  against him.

Facts and Issues

The decision of this case transmits to the extremely revealed measures connecting to AWB’s suspected violation of a number of UN resolutions concerning Iraq.

 These declarations called on UN member states to avert the sale to Iraq of the supplies with some exemptions, which in compassionate situations included food articles.

The Iraqi regime accesses to the unbreakable money were also denied by the UN states.

The authorizations put in place the Oil for Food Program (OFFP), under which all the earnings which were made and received from the sale of Iraqi fuel were asked to be paid into an escrow account of UN.

The resources were only be released from that account in order to pay for the importation of approved supplies, such as food articles.

AWB was a major provider of wheat to Iraq under OFFP.

Facts and Issues

The suspected violations which were made by UN resolutions were in connection with two major issues which include that:

In connection to the wheat agreements the trucking fee of 10 % which was paid to a mediator corporation (Alia), was then approved on to the government as AWB facilitated the Iraqi government to get hard money. Furthermore, because a section of the pay for wheat which was obtained by AWB was intended to compensate for these payments, as it meant that the currency which was received from the UN escrow account was allegedly utilized other than for the payment for approved supplies.

It was also asserted that a contract was entered upon by AWB with a third party, Tigris, in order to recuperate a balance of $8 million for the shipment of wheat to Iraq. The same was done by AWB by increasing the cost of wheat under OFFP agreements, which again resulted in payment from the UN escrow account for purposes other than payment for the approved commodities. Although, the contract was sanctioned by UN, but the increase of price and the purpose of the same was not being discussed. Furthermore, Tigris and AWB entered into an agreement which mis-leaded the payment of the recovered debt which was made by AWB to Tigris as a service fee.

In accumulation, a wide range of actions were brought about by ASIC against Mr. Lindberg, including an action for a violation of his obligation to act in good faith while being in the position of a director. After a number of impediments and associated applications such as the applications to modify its declaration of assertions were made by ASIC, in late 2009 when the parties began a extensive procedure of cooperation in an effort to reconcile the act (Jacobson, 2012).

Some other proceedings were also initiated by ASIC against other individuals, such as AWB’s chief monetary executive, Paul Ingleby. The proceedings against the chief monetary executive were also advanced after which it was stated by Robson J that he has delivered a similar judgment in which he applied the principles which he had expressed in ASIC v Ingleby [2012] VSC 339.

Section 180 of the Corporations Act 2001 (Cth) (Hunt & Humphry Project Lawyers, 2016) entails that; all the directors of the corporation or other officials must exercise their authority and fulfills their obligations with care and diligence (Legal Vision, 2015) (Commonwealth Consolidated Acts, 2016).

Rule and Relevant Law

Section 180(1) (Black, 2014) offers that a director and the officials of a corporation must exercise their obligations with the degree of care and diligence which a rational individual would carry out if he or she:

Was a director or official of a company in the situations of the corporation;

Held the office, and had the same obligations within the company as an official or a director of the corporation.

The reasonable individual which was mentioned above was referred in order to point out an intended standard of care which was constant with the growth of the corresponding fiduciary obligation (Australian institute of Company Directors, 2016). The predictable danger of impairment was unprejudiced against the probable benefits that could practically have been anticipated to put an impact on the corporation from the behavior which was in question (Lindberg, 2012).

The tribunal also takes into account the prejudiced constituents of the position of an official and the specific situations of the pertinent company in examining whether the obligation has been violated or not.

Section 180 also includes a business Judgment Rule under section 180(2) of the Act (Legal Services Commission of South Australia, 2016). A Business Judgment Rule was defined as any verdict which was made to take or not take action in respect of a matter which was relevant to the trade operations of a company (ICAEW, 2016).The Rule requires that a person who was a director of a corporation to make a trade verdict in order to:

Make the verdict in good faith and for an appropriate objective;

Not to have a material private benefit in the subject matter if the verdict;

Inform themselves about the subject matter of the verdict to the extent they practically supposed to be proper;

Rationally believe that the verdict was in the best interest of the company (Barker, 2013).

The requirements which were mentioned above must be satisfied by the director in order to satisfy the constitutional obligation of care and diligence in respect of the Rule which he owed while being in the position of the Director.

ASIC and Mr. Lindberg were settled on the fact that ASIC would formulate assertions of the violation of section 180 of the Corporations Act against the director in connection to four particular and restricted circumstances the facts of which were agreed upon between the parties (Garrett, 2014). These were that the director of the corporation failed to:

Application

Initiate investigations and determine whether the recovery of money amounting to $8 million which was Tigris debt from the UN escrow account by increasing the cost of wheat to be sold by AWB under OFFP agreements which was divergent to UN resolutions, or whether it was to arise with the data and acquiescence of the UN;

Inform the board of AWB about the fact that the internal Project Rose examination of the corporation was restricted to assessment of certain documents which were in possession of the company; interviews with the existing workers and that former workers who were likely to have relevant data had not been interrogated;

Inform the Group boards of the company that the debt of Tigris has been taken by the increase in the cost for wheat which was done under OFFP agreements, or about the survival of the agreement which was entered  among AWB and Tigris or those amounts under it were mis- described as a commission and a success fee; and

Inform the board until 2005 that, he had been informed by the IIC that the executives of the Hussein regime had informed them that Alia was use to the channel finances to the government of Iraq, and that no corporation was excused from paying the 10% trucking fee by which the corporation had always made its payments and they had always been through Alia, and the cost of wheat under the agreements of the corporation which had been decreased because the agreement cost included this 10% kickback (Jacobson, 2012).

In respect of the above mentioned circumstances it was stated that the director has failed to discharge his obligations and exercise his authorities being at the position of the director of AWB with the degree of care and diligence that a prudent individual would exercise of they held an office while being a directive in the situations of AWB.

But the individuals who were party to the contract agreed upon the fact that none of the violations included dishonest intention, intentional wrongdoing, etc. Furthermore, it was also agreed upon between the parties that, although revelations in connection to the involvement of the corporation in the OFFP caused considerable injury to the company and it workers; but it was not possible to make out an informal connection among the harm caused and the agreed violations which were made by the director (Supreme Court of Victoria, 2012).

Conclusion

In the conclusion it could be stated by the judge that he was satisfied by the fact that Mr. Lindberg, while being in the position of the director of the organization has violated section 180(1) of the Act as it was admitted by his own (Bozinovski, 2016). He held that the violations were all analogous to an admittance of carelessness which was done by the defendant in carrying out his obligations which he owed to the organization being a director and the worker of the organization.

Although, none of the violations incorporated premeditated unlawful acts, or any dishonest intention, but the defendant failed to carry out his obligations as sensible director or officer which he would have done in his circumstance.

So, in connection to section 180, it has been stated usually by the judge that the provision of directors duty of care and diligence was considered to be of substantial importance in the area of corporate law and that the corporate structure in a market economy depends on the investments of the shareholders of a corporation which were being administered by the directors of the organization (Government of Canada, 2016).

In connection to the penalties for such a infringement which was made by the director of a corporation, it was held by the court that the violations were severe and that both the time of disentitlement and the financial punishments which were put forward by the parties  fell within the permitted range. Therefore, the adjudicator has exercised his power to entail the debarment and pecuniary penalties as agreed.

The tribunal also reffered the case of ASIC v Donovan ((1998) 28 ACSR 500) stating that in this case it was held that in this types of cases severe means that the evasion or disregard must be crucial or important. The considerations which were mentioned earlier against the contraventions have considered to be severe. However, as a very experienced director of the corporation the defendant would have gained a good idea of what would have amounted to a severe violation and so his admission was considered to be of vital significance.

So, at the end it could be stated that the case confirms that only restricted guidance could be gained about the proper time for disqualifying any person from the previous matters or from any mathematical formulas.  And the verdict grants further guidance on the obligation of care and diligence of directors which was mentioned under section 180(1) of the Corporations Act 2001 (Cth), following on from the current cases of James Hardie, Centro decisions. The pronouncement also restates that there were some significant doctrines which were made in connection to the obligation of financial penalties and ineligibility order which followed the violation of section 180(1).

References

Australian institute of Company Directors. (2016) General Duties of Directors. [Online] Australian institute of Company Directors. Available from: https://aicd.companydirectors.com.au/resources/all-sectors/roles-duties-and-responsibilities/general-duties-of-directors [Accessed on 1/12/16]

Barker, S. (2013) Directors’ Duties in The Anthropocene Liability For Corporate Harm Due To Inaction On Climate Change. [Online] Responsible Investment Banking. Available from: https://responsible-investmentbanking.com/wp-content/uploads/2014/11/Directors-Duties-in-the-Anthropocene-December-2013.pdf [Accessed on 1/12/16]

Black, A. (2014) NSW Young Lawyers Annual One Day Seminar – Business Law 2014 – 8 March 2014 Recent Developments in Corporate Law [Online] Australasian Legal Information Institute. Available from: https://www.austlii.edu.au/au/journals/NSWJSchol/2014/17.pdf [Accessed on 1/12/16]

Bozinovski, G. (2016) A Storm Warning – Directors Duties in Tightly Held Companies. [Online]Broadley Rees Hogan. Available from: https://www.brhlawyers.com.au/news/a-storm-warning-directors-duties-in-tightly-held-companies/ [Accessed on 1/12/16]

Commonwealth Consolidated Acts. (2016) CORPORATIONS ACT 2001 – SECT 180. Care and diligence–civil obligation only. [Online] Australasian Legal Information Institute. Available from: https://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s180.html [Accessed on 1/12/16]

Garrett, J. (2014) The Directors Series: Part 2 – Fiduciary Duties. [Online] Moores.Available from: https://www.moores.com.au/news/the-directors-series-part-2-fiduciary-duties [Accessed on 1/12/16]

Government of Canada. (2016) Archived — Chapter 2: Duties of Directors. [Online] Government of Canada. Available from: https://www.ic.gc.ca/eic/site/cilp-pdci.nsf/eng/cl00692.html [Accessed on 1/12/16]

Hunt & Humphry Project Lawyers. (2016) Directors’ Duties in Relation to Company. [Online] Hunt & Humphry Project Lawyers. Available from: https://www.huntandhumphry.com.au/directors-duties/ [Accessed on 1/12/16]

ICAEW. (2016)  ICAEW guide to the duties and responsibilities of directors. [Online] ICAEW. Available from: https://www.icaew.com/en/technical/business-resources/legal-regulatory-tax-governance/directors-duties/the-icaew-guide-to-the-duties-and-responsibilities-of-directors [Accessed on 1/12/16]

Jacobson, D. (2012) ASIC v Lindberg (Awb) Update .[Online] Bright Law. Available from: https://www.brightlaw.com.au/asic-v-lindberg-awb-update/ [Accessed on 1/12/16]

Jacobson, D. (2012) ASIC v Lindberg: Awb Penalty. [Online] Bright Law. Available from: https://www.brightlaw.com.au/asic-v-lindberg-awb-penalty/ [Accessed on 1/12/16]

Jade. (2016) ASIC v Lindberg. [Online] Jade.Available from: https://jade.io/article/269532 [Accessed on 1/12/16]

Legal Services Commission of South Australia. (2016) General Duties of Directors – Corporations Act 2001 (Ctth). [Online] Legal Services Commission of South Australia. Available from: https://www.lawhandbook.sa.gov.au/ch05s01s03s02.php [Accessed on 1/12/16]

Legal Vision. (2015) Directors’ duty of care and diligence. [Online] Legal Vision.  Available from: https://legalvision.com.au/directors-duty-of-care-and-diligence/ [Accessed on 1/12/16]

Lindberg, A. (2012) An Update From Australia – AWB Wheat Kickbacks To Iraq Result In Sentences. [Online] FCPA Professor. Available from: https://fcpaprofessor.com/category/andrew-lindberg/ [Accessed on 1/12/16]

Supreme Court of Victoria. (2012) Australian Securities & Investments Commission [ ASIC ] v  Lindberg  [2012] VSC 332 (9 August 2012). [Online] Australasian Legal Information Institute. Available from: https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2012/332.html?stem=0&synonyms=0&query=title(ASIC%20and%20Lindberg%20) [Accessed on 1/12/16]