Westpac Banking Corp V Bell Group Ltd – Legal Case And Director’s Duties

Background on Bell Group Ltd and the bond issue

Question:

Write a report about the Westpac Banking Corp v Bell Group Ltd.
 

The said case law was a result of a bond issue that arose in a company based in Netherlands called Bell Groups. In the said case, Bell Group Ltd, NV, which was a company incorporated in Netherlands took part in a bond issue. Bell Group Ltd, NV issued certain Eurobonds with an objective of on-loaning the money it raised to the Bell Group Companies (Langford 2013). The said on-loans were issued by journal debit entries to the loan accounts of the Bell Groups companies along with the Bell Group NV. The said transaction took placed without any agreement between the two companies and therefore, there was evidence of no document stating the said transaction.

The said bonds were issues at the time the Bell Group Companies were suffering from financial crisis and the Bell Group Companies had taken a loan from the Banks. D  Banks had advanced funds to the said Bell Group Companies on no security given by the said company. Thus the loans which were taken by the banks were on an unsecured footing (Ellinger, Lomnicka and Hare 2011). 

The history of these loans is that in the year 1990, the certain Banks agreed to advance and extend the Bell Groups Companies loans in return for securities and guarantees over certain assets and transactions of the Bell Group Companies (Tomasic, Bottomley and McQueen 2012). Thus, eventually, went the loan was unpaid, the banks went ahead to realize the said assets and transactions of the Bell Group Companies recovering around $283 million. Liquidators were appointed for the Bell Group Companies in April 1991.

The said case went on appeal. The primary issue in the Bell Group Companies case was not whether the said company failed to be solvent during the transactions, but the primary issue in the said case was whether the bank had the authority and the power to retain the funds it obtained after the assets and transactions of the Bell Group Companies were realized by the banks (Ferran and Ho 2014).  Certain important points were considered before the appeal decision was taken, these points are as follows:-

• The bank enjoyed a priority in term of its loan against all the creditors of the Bell Groups companies
• The Bell Group Company’s directors had breached their fiduciary duties under the Corporation Act 2001 by giving the security to the bank
• The banks were aware of the said breach of the fiduciary duties of the director or intentionally assisted the directors in doing the same (Walker 2015).

The rules and regulations made under the Corporation Act 2001 govern all the companies in Australia. Thus, the said Corporation Act 2001 has incorporated director duties which every director of an Australian company has to comply with. Section 180 to 184 of the Corporation Act 2001 discusses all the director’s duties which a director has to follow in Australia. Section 180 of the Corporation Act 2001, states, that a director in a company must always exercise his authority with due care and diligence (Tumbarello and Takáts 2012). Section 181 of the Corporation Act 2001, states, that the directors of a company in Australia have to exercise their powers in good faith and in the best interest of the company. Section 182 and Section 183 of the Corporation Act 2001, states, that the directors of a company must not use their position and information they possess as directors to gain any advantage for themselves, friend, relative or a personally owned company.

Directors’ duties under the Corporation Act 2001

Additionally, part from section 180-section 184 of the Corporation Act, the said Act has incorporated certain duties for a director under insolvent situations. Thus, under section 588G, the Corporation Act 2001 discusses director’s duty to prevent insolvent trading by company. The section 588G of the Corporation Act 2001 states that in case an individual is a company’s director when the said company incurs debts or is likely in a condition to incur debts, it is a directors duty to prevent the company from trading or conducting business (Bakir 2015).

Thus, when a company is solvent like the Bell Group of Companies, the directors have the following duties under the Corporation Act 2001:-

• If a group company is insolvent or fearing insolvency by providing creditors with securities from individual companies from the group companies, the directors have breached their duties if they failed to consider the benefits of the transactions to the individual company (Edelman 2010).
• In the given situation, the directors of the company will be considered acting in an improper manner for improper purpose, if they further providing security to prevent the company from liquidation. Thus, the said act of the directors will be considered for the interest of the bank rather than the company.
• In case of groups companies, the directors are prohibited from entering into transactions even for the best interest of the whole group unless the transaction is in the best interest of each company individually along with its shareholders and creditors.
• Thus, for a director to secure companies with an intention to remove threats of single company or the entire group going into liquidation without giving regards to interest of individual companies along with its creditors and shareholders is in violation of the section 181, section 182 and section 183 under the Corporation Act 2001 (Du Plessis, Hargovan and Bagarie 2010).

Thus, in the present case, the directors of the Bell Group Company acting in an improper manner by giving further security when they were aware the company is in financial difficulty. This action was in the interest of the bank rather than the company. Additionally the directors of the Bell Group Companies violated section 588G of the Corporation Act 2001 by violating director’s duty to prevent insolvent trading by company as the director’s of Bell Group Companies engaged in transactions with the bank when the company as almost insolvent (Du Plessis, Hargovan and Bagaric 2010). 

The Court of Appeal overruled the previous decision and stated:-

• There was no documentation to establish any special arrangement which proved bank enjoyed priority to the other creditors of the Bell Group Companies.
• The Bell Group Company’s directors by entering into their transactions with the bank have breached the director’s duties under the Corporation Act 2001 and applied objective test stating that no prudent and diligent director whose duty is to act in best interest of the company along with its creditors and shareholders and for proper purposes would consider the fact that entering into any further security transaction would not be in company’s interest (Bunn and Guthrie 2013).
• In the present case, directors also breached section 588G of the Corporation Act 2001 which states Director’s duty to prevent insolvent trading by company. Moreover, the bank was aware at the time of the said transaction, that the Bell Group is insolvent and would gain no advantage out of the transaction. Thus, the banks committed equitable fraud (Tomasic, Bottomley and McQueen 2012).
• Additionally, the court of appeal stated that the bank assisted the directors of Bell Group Companies in their dishonest and fraudulent motives as they were aware of the director’s intentions. Thus, in the said case, the directors of Bell Groups companies failed to act in the best interest of the company and acted in an improper manner violating the rules and regulations of the Corporation Act 2001 (Cassidy 2016).

Thus, the judgment in Westpac Banking Corp v Bell Group Ltd is the perfect example or a reminder of the consequences that a financial institute and a company’s directors can face at the time of financial difficulties (Ellinger, Lomnicka,  and Hare 2011). Thus, the directors and the bank in the said case are charged with heavy penalties. Additionally, the proceeds which the bank realized in the said case were retuned back to the Bell Group Companies shareholders and creditors. The judgment in the Westpac Banking Corp v Bell Group Ltd makes all the banks in Australia aware that the Court will charge and punish any financial institute that provide further loan and obtain securities from companies which they know are insolvent or in financial difficulties. The said judgment states that the courts in Australia are not willing to overlook any breaches by the directors in a company only because the said breach looks reasonable and honest (Virgo 2015).

The judgment in Westpac Banking Corp v Bell Group Ltd warns all the banks in Australia to refrain from providing loans and acquiring securities when a company is in financial difficulties and assisting the directors of any company in Australia in their act of dishonesty and fraudulent motives.

Additionally, the judgment in Westpac Banking Corp v Bell Group Ltd also warns every company in Australia to have proper documentation for every transaction and provides an insight to the consequences a company can face which lacks fully documented transactions and arrangements especially regarding inter-company loans.   

Reference List 

Bakir, C., 2015. The exoteric politics of bank mergers in Australia. Australian Journal of Politics & History, 51(2), pp.235-256.

Bunn, A. and Guthrie, R., 2013. Occupational Health and Safety in the banking industry. Legal Issues in Business, 11, p.80.

Cassidy, J., 2016. Concise corporations law. Federation Press.

Du Plessis, J.J., Hargovan, A. and Bagaric, M., 2010. Principles of contemporary corporate governance. Cambridge University Press.

Edelman, J.J., 2010. When do fiduciary duties arise?. Law Quarterly Review,126, pp.302-327.

Ellinger, E.P., Lomnicka, E. and Hare, C., 2011. Ellinger’s Modern banking law. Oxford University Press.

Ferran, E. and Ho, L.C., 2014. Principles of corporate finance law. OUP Oxford.

Langford, R.T., 2013. The Fiduciary Nature of the Bona Fide and Proper Purposes Duties of Company Directors: Bell Group Ltd (In Liq) v Westpac Banking Corp (No 9).

Tomasic, R., Bottomley, S. and McQueen, R., 2012. Corporations law in Australia. Federation Press.

Tumbarello, P. and Takáts, E., 2012. Australian Bank and Corporate Sector Vulnerabilities-An International Perspective. IMF Working Papers, pp.1-22.

Virgo, G., 2015. Principles of the Law of Restitution. Oxford University Press, USA.

Walker, R., 2015. Dishonesty and Unconscionable Conduct in Commercial Life-Some Reflections on Accessory Liability and Knowing Receipt. Sydney L. Rev., 27, p.187.