Australian corporate law [6th edition.] 9780409347586, 0409347582

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Australian Corporate Law 6th EDITION

Australian Corporate Law 6th EDITION

Jason Harris BA LLB (WSU), LLM (ANU), FGIA, FCIS Associate Professor, Faculty of Law, University of Technology Sydney

Anil Hargovan BA LLB (Natal), LLM (Monash) Associate Professor, School of Taxation and Business Law (ATAX), University of New South Wales Sydney

Michael Adams BA (Hons), LLM (Lond), FGIA (Life), FCIS, FACE, FAAL Professor of Law and Dean of School of Law, Western Sydney University

LexisNexis Butterworths Australia 2018

AUSTRALIA

ARGENTINA AUSTRIA BRAZIL CANADA CHILE CHINA CZECH REPUBLIC FRANCE GERMANY HONG KONG HUNGARY INDIA ITALY JAPAN KOREA MALAYSIA NEW ZEALAND POLAND SINGAPORE SOUTH AFRICA SWITZERLAND TAIWAN UNITED KINGDOM USA

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9780409347586 (pbk). 9780409347593 (ebk).

© 2018 Reed International Books Australia Pty Limited Trading as LexisNexis. First edition 2008, reprinted 2008, 2009; second edition 2009; third edition, 2011, reprinted 2011; fourth edition 2013, reprinted 2015; fifth edition 2016. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Gotham and Archer. Printed in Australia. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface The two years since the 5th edition of this book have seen some significant changes to corporate law and corporate regulation in Australia. ASIC has moved to a user pays industry funding model, and has taken on several large financial institutions in litigation involving market rigging, unconscionable and misleading conduct following a lengthy debate about the appropriateness of the corporate cultures inside Australia’s largest businesses. Equity and board diversity, along with work health and safety and sexual harassment claims have dominated headlines and shone the light into some very dark corners of corporate Australia. Insider trading, continuous disclosure, directors’ duty of care and diligence and shareholder activism have also featured heavily in significant corporate law decisions over the past two years. Digital disruption and encouraging start-ups and entrepreneurialism have also dominated headlines and been a key feature of government policy over the past two years. The Financial System Inquiry and work by the Productivity Commission led to the federal government’s ‘Innovation Agenda’ in late 2015, which has resulted in reforms to corporate fundraising laws (crowd-sourced equity funding, discussed in Chapter 9) and changes to director liability for insolvent trading by introducing a new ‘safe harbour’ to s 588G, which is discussed in Chapter 18. Digital disruption has been a hot topic for several years now, with blockchain initiatives and the increasing use of online cloud services promising significant change for governance, risk and compliance functions within both large and small companies. The introduction of the Insolvency Law Reform Act 2016 (Cth), which makes significant changes to corporate insolvency law and practice, is covered in Chapter 22. These developments are reflected in changes to several chapters in this 6th edition, including the introduction of new practical examples, discussion points and problem questions. We have also introduced a new ongoing case study which is contained at the end of each chapter (excluding Chapters 1 and 13 ‘Corporate Governance’). The new case study is designed to place corporate law principles into their practical commercial context and aims to enhance student

understanding of how companies operate in Australia and how the law applies to common corporate activities. The case law developments in corporate law have been steady since the 5th edition. Each chapter has been reviewed and updated for important recent decisions. A number of new cases have been added to the directors’ duties chapters, including ASIC’s actions in relation to AWB (Flugge), Sino Australia (Shao) and Storm Financial (Cassimatis), and new cases concerning conflicts of interest (Australian Careers), good faith (Duncan v ICAC) and shadow directors (Akron Road). Chapter 10 has also been updated with the latest PPSA case law and statutory amendments to the PPSA concept of a PPS lease. While new cases have been added on all topics, as with previous editions, we have not felt the need to include new cases simply to add currency. We have included new cases only where they develop the law in some way or where they provide a clear application of the core principles being discussed. We have also revised each of the case studies used in the book and have removed some that are no longer relevant and added other more topical points, particularly in relation to digital fundraising and director liability. As stated in previous editions, our aim in writing this book is to provide a practical and useful text that will help students to understand how the multitude of corporate law rules and principles come together, and where these issues arise in the business world. This is a book designed to help business students understand how corporate law operates within the broader business context. The rules and principles are not seen as abstract commandments that must be memorised and revered. Rather, the evolving nature of Australian corporate law is discussed with reference to real events and real people. Readers are challenged to consider the efficacy and fairness of the rules and principles of corporate law through their understanding of the core principles. We have received, and incorporated where appropriate, useful feedback from students and academics using the book. Given the diverse nature of corporate law subjects taught within business schools and the limitations of size and space, we have not been able to include areas outside of corporate law (such as competition law, tax law or general commercial law). We continue, however, to welcome ongoing feedback from readers. The authors have taught at several universities in New South Wales, Victoria

and the Australian Capital Territory, as well as overseas in the United Kingdom, South Africa, India, China, Malaysia, Singapore, Hong Kong and the United States. Each of the authors is an active researcher in the area of corporate law. All three authors are actively involved with the Australian Corporate Law Teachers Association and include members of the national executive and two former Presidents of that body. We have attempted to use our experience in teaching company law students to provide a textbook that explains the principles and business context of Australian corporate law in a manner that is accessible for the majority of students. Where readers are searching for a more critical analysis of changing trends in corporate law, we have attempted throughout the book to provide links and references to further reading material — particularly scholarly and practitioner publications and useful websites. LexisNexis Butterworths has also produced a companion website that provides a host of other useful links to articles, cases and government reports. Although each chapter had particular authors who bore primary responsibility, all three authors and a number of colleagues have assisted with comments and suggestions about the scope and detail of the work. We have many people to thank for assisting with this project. We would like to thank the staff at LexisNexis Butterworths for their support and assistance. We also express our thanks to our teaching colleagues who have provided feedback on the style and content of a number of chapters from the first edition to the publishers. We express gratitude to Dr Marina Nehme, John Juriansz, Anne Durie and Catherine Gordon who have worked hard to produce an excellent set of supplementary web materials. We also express our gratitude to Michael Gorry for his assistance in preparing flowcharts used in this and earlier editions. Lastly, and most importantly, Jason would like to thank Cathy, Ciaran, Erin and Katie for their love and support during the period that this edition was written. Jason also thanks his corporate law teaching colleagues at University of Technology Sydney, Catherine Nguyen, Colin Hawes, Michael Rawling, Robin Bowley, Grace Li, Gao Xiang, Michael Whitehead, Philip Spence, Ian Cameron, Helen Bakoulis and Professor Paul Redmond for their comments, suggestions and general support. Anil is deeply indebted to his family and wishes to thank Kalyani, Satyen and Rahul for their unwavering love and support during the gestation of this book and subsequent editions where many sacrifices were

made. They had to tolerate long absences (and general absent-mindedness) and are forgiven for thinking that an academic’s life is constantly ruled by publishing (and punishing) deadlines. Satyen and Rahul, I promise I had one eye on the ball and one eye on my reading materials during your long and successful cricket careers at school, club and representative levels. Anil also thanks his corporate law colleague at UNSW, Kayleen Manwaring, for her general comments, support and contribution to the flow chart diagrams used in the text. Michael wishes to thank his colleagues in corporate law at his former employer, University of Technology Sydney, the Governance Institute of Australia (formerly Chartered Secretaries Australia) professional body and the Western Sydney University. He acknowledges the love and support of his family, Melissa, Lucy and Jessica. We have worked on the law as available to us up to 1 October 2017. Associate Professor Jason Harris, Faculty of Law, UTS Associate Professor Anil Hargovan, School of Taxation and Business Law, UNSW, Sydney Professor Michael Adams, School of Law, WSU October 2017

Table of Cases References are to paragraph numbers 24 Hour Fitness Pty Ltd v W & B Investment Group Pty Ltd [2015] VSCA 216 …. 5.46 360 Capital Re Ltd v Watts (2012) 36 VR 507; [2012] VSCA 234 …. 21.17

A AAA Financial Intelligence Ltd (in liq) (No 2), Re [2014] NSWSC 1270 …. 22.9 AAPT v Cable & Wireless Optus Ltd (1999) 32 ACSR 63; [1999] NSWSC 509 …. 9.47 ABC Developmental Learning Centres Pty Ltd v Wallace [2006] VSC 171 …. 7.8, 7.11 Aberdeen Railway Company v Blaikie Bros (1854) 1 Macq 461 …. 16.2 ABN Amro Bank NV v Bathurst Regional Council (2014) 224 FCR 1; [2014] FCAFC 65 …. 10.2 Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd (2008) 66 ACSR 325; [2008] VSCA 86 …. 19.20 ACE Insurance Limited v Trifunovski (2013) 295 ALR 407; [2013] FCAFC 3 …. 7.6 Ace Property Holdings Pty Ltd v Australian Postal Corp [2011] 1 Qd R 504; [2010] QCA 55 …. 5.27 ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron (Reg) (2005) 91 SASR 570 …. 5.38 ACN 092 745 330, Re [2017] NSWSC 241 …. 14.15 Adams v ASIC (2003) 46 ACSR 68; [2003] FCA 557 …. 14.24 Adams v Cape Industries Plc [1990] Ch 433 …. 5.12, 5.28, 5.32 Adler v DPP (2004) 51 ACSR 1; [2004] NSWCCA 352 …. 15.23 Aequitas v AEFC (2001) 19 ACLC 1006; [2001] NSWSC 14 …. 8.2, 8.3, 8.5

Aero Marine Consulting Pty Ltd, Re [2003] FCA 1016 …. 6.5 Agricultural Land Management Ltd v Jackson (No 2) [2014] WASC 102 …. 17.9 Airpeak Pty Ltd v Jetstream Aircraft Ltd (1997) 73 FCR 161; 23 ACSR 715 …. 19.15 Airservices Australia v Ferrier (1996) 185 CLR 483 …. 18.5 Akron Roads Pty Ltd (in liq), Re (2016) 117 ACSR 513; [2016] VSC 657 …. 14.16 Albion Life Assurance Society, Re (1880) 16 Ch D 83 …. 4.36 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 …. 11.9 Allas Energy Pty Ltd, Re (1998) 27 ACSR 729 …. 11.9 Allen v Atalay (1994) 11 ACSR 753 …. 19.15 Allen v Gold Reefs of West Africa [1900] 1 Ch 656 …. 6.9, 19.2, 19.3 Allison v Tuna Tasmania Pty Ltd [2015] TASSC 31 …. 4.10 Al-Shennag v Statewide Roads Ltd [2008] NSWCA 300 …. 5.38 Amazon Pest Control Pty Ltd, Re [2012] NSWSC 1568 …. 19.18 AM Marketing Pty Ltd v Howard Media Pty Ltd [2010] NSWSC 803 …. 4.3, 4.8, 4.11 Americana Leadership College v Coll [2003] NSWSC 295 …. 8.2 Amerind Pty Ltd (Rec and Man Apptd) (in liq), Re (2017) 121 ACSR 206; [2017] VSC 127 …. 10.2 Ammonia Soda Company Ltd v Chamberlain [1918] 1 Ch 266 …. 20.28 Andar Transport Pty Ltd v Brambles Ltd (2004) 206 ALR 387; [2004] HCA 28 …. 5.2, 5.6, 5.8, 5.16 Andrews v Queensland Racing Ltd (2009) 74 ACSR 538; [2009] QSC 338 …. 6.6 Anemtech Ltd v Eyres Reed McIntosh Ltd (1986) 10 ACLR 780 …. 9.41 Angas Law Services Pty Ltd (in liq) v Carabelas (2005) 53 ACSR 208; [2005] HCA 23 …. 16.15 Ansett Australia Ltd and Mentha, Re (2001) 115 FCR 376; [2001] FCA 1806 …. 22.55, 22.56 Appleyard Capital Pty Ltd, Re (2014) 101 ACSR 629; [2014] NSWSC 782 …. 10.24

Arcabi Pty Ltd (rec and man apptd) (in liq), Re [2014] WASC 310 …. 10.16 Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) (1948) 77 CLR 143 at 156 …. 11.1 Aris v Express Interiors Pty Ltd (in liq) [1996] 2 VR 507 …. 18.23 Artedomus v Del Casale [2006] NSWSC 146 …. 5.14 Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 …. 5.14 Ashbury Railway Carriage & Iron Co v Riche (1875) LR 7 HL 653 …. 6.2 Ashrafinia v Ashrafinia; Fakhrabadi v Ashrafinia [2012] NSWSC 500 …. 7.23 ASIC v ActiveSuper Pty Ltd (No 2) (2013) 93 ACSR 189; [2013] FCA 234 …. 19.17 ASIC v Adler (2002) 41 ACSR 72; [2002] NSWSC 171 …. 7.12, 11.17, 11.21, 15.9, 15.17, 16.11, 16.12, 17.14, 17.21, 17.22 ASIC v Adler (2002) 42 ACSR 80; [2002] NSWSC 483 …. 14.24, 17.10 ASIC v AGKM Green Pty Ltd [2017] FCA 846 …. 2.15 ASIC v AS Nominees Ltd (1995) 62 FCR 504 …. 19.17 ASIC v Astra Resources PLC [2015] FCA 759 …. 9.19, 9.21, 9.32 ASIC v Australian Investment Forum Pty Ltd (No 2) (2005) 53 ACSR 305 …. 9.19 ASIC v Australian Investors Forum (No 2) (2005) 53 ACSR 305 …. 9.32 ASIC v Australian Investors Forum Pty Ltd (No 3) (2005) 56 ACSR 204 …. 9.32 ASIC v Avestra Asset Management Ltd (in liq) [2017] FCA 497 …. 16.12 ASIC v Axis International Management Pty Ltd (No 5) (2011) 81 ACSR 631; [2011] FCA 60 …. 9.9, 9.19, 9.21, 9.32, 9.46, 9.49 ASIC v Bank of Queensland Ltd (2011) 86 ACSR 258; [2011] FCA 1361 …. 2.21 ASIC v Cassimatis (No 8) [2016] FCA 1023 …. 17 Introduction, 17.3, 17.5 ASIC v Chase Capital Management Pty Ltd (2001) 36 ACSR 778; [2001] WASC 27 …. 21.13 ASIC v Chemeq Ltd (2006) 58 ACSR 169; [2006] FCA 936 …. 13.11 ASIC v Citigroup Global Markets Australia Pty Ltd (No 4) (2007) 62 ACSR 427; [2007] FCA 963 …. 21.27 ASIC v Citrofresh International Ltd (No 2) (2010) 77 ACSR 69; [2010] FCA 27 ….

13.8, 17.5, 17.21, 17.22, 21.30 ASIC v Cycclone Magnetic Engines Inc (2009) 71 ASCR 1; [2009] QSC 58 …. 9.21, 21.30 ASIC v DB Management Pty Ltd (2000) 199 CLR 321; [2000] HCA 7 …. 2.13 ASIC v Diploma Group Limited [2017] FCA 549 …. 2.15 ASIC v Elliott (2004) 48 ACSR 621; [2004] VSCA 54 …. 18.16 ASIC v Elm Financial Services (2005) 55 ACSR 544; [2005] NSWSC 1065 …. 9.23 ASIC v Elm Financial Services Pty Ltd (2005) 55 ACSR 411 …. 9.32 ASIC v Flugge (2008) 21 VR 252; [2008] VSC 473 …. 15.23 ASIC v Flugge (2016) 119 ACSR 1; [2016] VSC 779 …. 13 Introduction, 17.9 ASIC v Flugge (No 2) (2017) 119 ACSR 551; [2017] VSC 117 …. 13 Introduction, 17.9 ASIC v Gognos Holdings Ltd [2017] QSC 20 …. 19 ASIC v Great Northern Developments Pty Ltd (2010) 79 ACSR 684; [2010] NSWSC 1087 …. 9.19, 9.26, 9.49 ASIC v Healey (2011) 196 FCR 291; [2011] FCA 717 …. 17.2, 17.4, 17.6, 17.11, 20.22 ASIC v Hellicar (2012) 286 ALR 501; (2012) 88 ACSR 246; [2012] HCA 17 …. 2.24, 5.2, 5.45, 12.28, 13.8, 17.21, 20.18 ASIC v Hochtief Aktiengesellschaft (2016) 117 ACSR 589; [2016] FCA 1489 …. 21.27 ASIC v Macdonald (No 11) (2009) 256 ALR 199; (2009) 71 ACSR 368; [2009] NSWSC 287 …. 5.2, 5.45, 17.10, 17.11, 17.12, 17.21, 20.18 ASIC v Macro Realty Developments Pty Ltd [2016] FCA 292 …. 15.1 ASIC v Mariner Corporation Ltd (2015) 106 ACSR 343; [2015] FCA 589 …. 17.21, 17.22 ASIC v Maxwell (2006) 59 ACSR 373; [2006] NSWSC 1052 …. 9.13, 9.23, 15.16, 17.5, 17.15 ASIC v Narain (2008) 169 FCR 211; [2008] FCAFC 120 …. 14.6 ASIC v National Exchange Pty Ltd (2003) 47 ACSR 128; [2003] FCA 955 …. 21.30 ASIC v National Exchange Pty Ltd (2005) 56 ACSR 131; [2005] FCAFC 226 ….

21.31 ASIC v Newcrest Mining Ltd [2014] FCA 698 …. 20.19 ASIC v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561 …. 9.32 ASIC v Plymin (2003) 46 ACSR 126; [2003] VSC 123 …. 18.15 ASIC v Plymin (No 2) (2002) 20 ACLC 1756; [2002] VSC 356, …. 2.15 ASIC v Rich (2003) 44 ACSR 341; [2003] NSWSC 85 …. 17.5, 17.14 ASIC v Rich (2009) 75 ACSR 1; [2009] NSWSC 1229 …. 17.5, 17.8, 17.22 ASIC v Sino Australia Oil and Gas Ltd (in liq) (2016) 115 ACSR 437; [2016] FCA 934 …. 2.16, 9.46, 14.7, 17.9, 17.21, 20.20 ASIC v Sino Australia Oil and Gas Ltd (in liq) (2016) 118 ACSR 43; [2016] FCA 1488 …. 9.46, 13.8, 14.7, 17.9, 17.21, 20.20 ASIC v Somerville (2009) 74 ACSR 89; [2009] NSWSC 934 …. 15.7 ASIC v Storm Financial Ltd (2009) FCA 269 …. 2.3 ASIC v Sydney Investment House Equities Pty Ltd (2008) 69 ACSR 1; [2008] NSWSC 1224 …. 15.7, 15.11, 15.16 ASIC v Tourprint International Pty Ltd v Bott (1999) 32 ACSR 201; [1999] NSWSC 581 …. 18.19 ASIC v Uglii Corporation Ltd (2016) 116 ACSR 389; [2016] FCA 1099 …. 2.17 ASIC v Vines (2003) 48 ACSR 322; [2003] NSWSC 1116 …. 17.11 ASIC v Vines (2005) 55 ACSR 617; [2005] NSWSC 738 …. 14.5, 17.4, 17.10, 17.14 ASIC v Vizard (2005) 145 FCR 57; (2005) 23 ACLC 1309; [2005] FCA 1037 …. 2.21, 13.3, 14.24, 16.10 ASIC v Warrenmang Ltd (2007) 63 ACSR 623; [2007] FCA 973 …. 9.40 ASIC v West (2008) 100 SASR 496; [2008] SASC 111 …. 19.17 Atlas Maritime Co SA v Avalon Maritime Ltd (No 1) [1991] 4 All ER 769 …. 5.9 Australasian Centre for Corporate Responsibility v Commonwealth Bank of Australia [2015] FCA 785 …. 6.15, 12.11 Australasian Centre for Corporate Responsibility v Commonwealth Bank of Australia (2016) 248 FCR 280; [2016] FCAFC 80 …. 6.8, 12.11, 12.21, 12.22 Australasian Memory Pty Ltd v Brien (2000) 200 CLR 270; [2000] HCA 30 ….

22.55 Australian Careers Institute Pty Ltd v Australian Institute of Fitness Pty Ltd (2016) 116 ACSR 566; [2016] NSWCA 347 …. 16.4, 16.8 Australian Communications and Media Authority v Radio 2UE Sydney Pty Ltd (No 2) (2009) 178 FCR 199; 258 ALR 254; [2009] FCA 754 …. 7.7 Australian Competition and Consumer Commission v Prysmian Cavi E SistemiEnergia SRL (No 8) [2014] FCA 376 …. 5.30 Australian Executor Trustees Limited v Propell National Valuers (WA) Pty Ltd [2011] FCA 522 …. 7.2 Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Western Australia Branch v Burswood Catering and Entertainment Pty Ltd (2002) 82 WAIG 544 …. 5.14, 5.45 Australian Securities Commission v AS Nominees Ltd (1995) 133 ALR 1 …. 14.16 Australian Securities Commission v Zarro (1991) 6 ACSR 385 …. 2.17 Australian Workers’ Union v Leighton Contractors Pty Ltd (2013) 295 ALR 449; [2013] FCAFC 4 …. 7.18 Automatic Self-Cleansing Filter Syndicate Co Ltd v Cuninghame [1906] 2 Ch 34 …. 6.5, 12.11 AWA v Daniels (1992) 9 ACSR 383 …. 17.3

B B J McAdam Pty Limited v Jax Tyres Pty Ltd (No 3) [2012] FCA 1438 …. 8.11 Bailey v NSW Medical Defence Union Ltd (1995) 184 CLR 399 …. 6.9 Ballantyne Suites Pty Ltd v Ballantyne Chambers Pty Ltd (in liq) [2014] VSCA 223 at [34] …. 5.22 Ballard v Multiplex [2012] NSWSC 426 at [320] …. 5.2 Bank of Australasia v Hall (1907) 4 CLR 1514 …. 18.14 Bank of New Zealand v Fiberi Pty Ltd (1993) 14 ACSR 736 …. 7.23 Bank of Tokyo Ltd v Karoon [1987] AC 45 …. 5.32 Banksia Securities Ltd (in liq) (rec and man apptd), Re [2016] NSWSC 357 …. 10.7

Barnes v Addy (1874) 9 Ch App 244 …. 18.3 Bay v Illawarra Stationery Supplies Pty Ltd (1986) 4 ACLC 429 …. 8.12 Beck v Weinstock (2013) 251 CLR 425; [2013] HCA 15 …. 11.3, 11.7 Beckingham v Port Jackson and Manly Steamship Co Ltd [1957] SR (NSW) 403 …. 4.18 Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2015] WASCA 143 …. 4.22 Bell Group Ltd (in liq) v Westpac Banking Corp (No 9) (2008) 39 WAR 1; (2008) 70 ACSR 1; [2008] WASC 239 …. 5.30, 15.2, 15.7, 16.3 BHP Billiton Finance Ltd v Commissioner of Taxation (2009) 72 ATR 746; [2009] FCA 276 …. 5.43 Biodiesel Producers Ltd v Stewart [2007] FCA 722 …. 12.12 Birtchnell v Equity Trustee, Executors and Agency Co Ltd (1929) 42 CLR 384 …. 4.32 Black v Smallwood (1966) 117 CLR 52 …. 8.11 Blackmagic Design Pty Ltd v Overliese (2011) 191 FCR 1; [2011] FCAFC 24 …. 16.8 Blakeney v Blakeney (2016) 113 ACSR 398; [2016] WASCA 76 …. 19.11 Boart Longyear Ltd (No 2), Re [2017] NSWSC 1105 …. 16.12 Bond v R (2000) 201 CLR 213; [2000] HCA 13 …. 1.4 Bova v Avati [2009] NSWSC 921 …. 4.12 Bovis Lend Lease Pty Ltd v Wily (2003) 45 ACSR 612; [2003] NSWSC 467 …. 22.54 Box Valley Pty Ltd v Kidd (2006) 24 ACLC 471; [2006] NSWCA 26 …. 18.13 Boz One Pty Ltd v McLellan [2015] VSCA 68 …. 22.30 Bradley Egg Farm Ltd v Clifford [1943] 2 All ER 378 …. 4.59 Bray v Ford [1896] AC 44 …. 16.2 Brian Pty Ltd v United Dominions Corporations Ltd [1983] 1 NSWLR 490 at 506 …. 3.26 Briggs Qintex Australia Finance Ltd v Schroders Australia Ltd (1990) 3 ACSR 267 …. 5.42

Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 …. 5.35 Brighten Pty Ltd v Bank of Western Australia Ltd [2010] NSWSC 133 …. 3.78 Broadcasting Station 2GB Pty Ltd, Re [1964–1965] NSWR 1648 …. 15.5 Broadway Motors Holdings Pty Ltd (in liq), Re (1986) 6 NSWLR 45 …. 12.29 Broken Hill Proprietary Co Ltd v Bell Resources Ltd (1984) 2 ACLC 157 …. 19.15 Brookton Co-operative Society Limited v FCT (1981) 147 CLR 441 …. 20.33 Brunninghausen v Glavanics (1999) 46 NSWLR 538 …. 15.3 BTR Nylex Ltd v Churchill International Inc (1992) 9 ACSR 361 …. 20.26, 20.36 Buchanan & Co, Re (1876) 4 QSCR 202 …. 4.18 Bugge v Brown (1919) 26 CLR 110 …. 7.6 Bunnings Group Ltd v CHEP Australia Ltd [2011] NSWCA 342 …. 7.1 Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd (2010) 77 ACSR 410; [2010] NSWSC 233 …. 14.5, 14.15, 14.17 Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd (2011) 81 NSWLR 47; [2011] NSWCA 109 …. 14.5, 14.16, 14.17

C Cadence Asset Management Pty Ltd v Concept Sports Ltd (2005) 55 ACSR 145; [2005] FCA 1280 …. 9.33 Cadence Asset Management Pty Ltd v Concept Sports Ltd (2005) 56 ACSR 309; [2005] FCAFC 265 …. 9.48 Caesar’s Empire Karoake (a firm) v Lam ChuenIp [2004] HCA 004594/2003 …. 5.12 Cameron v Hogan (1934) 51 CLR 358 …. 4.58 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 …. 19.20, 19.23, 19.28 Canadian Aero Service Ltd v O’Malley (1973) 40 DLR (3d) 371 …. 16.6 Canberra Residential Developments Pty Ltd v Brendas (2010) 188 FCR 140; [2010] FCAFC 125 …. 16.1 Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance)

Pty Ltd (1974) 131 CLR 321 …. 3.15, 3.33, 4.9, 4.20, 4.39 Capelli v Shepard (2010) 77 ACSR 35; [2010] VSCA 2 …. 19.21 Capricornia Credit Union Ltd v ASIC (2007) 159 FCR 69; [2007] FCAFC 79 …. 12.11 Caratti v Mammoth Investments Pty Ltd (2016) 50 WAR 84; [2016] WASCA 84 …. 7.20, 7.21 Cardiff Savings Bank (Marquis of Bute’s case), Re [1892] 2 Ch 100 …. 17.1 Carew-Reid v Public Trustee (1996) 20 ACSR 443 …. 6.6 Carlton Cricket and Football Social Club v Joseph [1970] VR 487 …. 4.59 Carpathian Resources Ltd v Hendriks (2011) 81 ACSR 542; [2011] FCA 41 …. 12.24 Chahwan v Euphoric Pty Ltd t/as Clay & Michel (2008) 65 ACSR 661; [2008] NSWCA 52 …. 19.10, 19.12 Chan v Zacharia (1984) 154 CLR 178 …. 3.19, 4.33, 4.47, 16.6, 16.13 Charterbridge Corp Ltd v Lloyds Bank Ltd [1970] Ch 62 …. 15.6 Cheal Industries Pty Ltd, Re; Fitzpatrick v Cheal (2012) 264 FLR 313; [2012] NSWSC 261 …. 16.7 Checker Taxicab Co Ltd v Stone [1930] NZLR 169 …. 4.11 Chequepoint Securities Ltd v Claremont Petroleum NL (1986) 11 ACLR 94 …. 12.18 Chew v R (1992) 173 CLR 626 …. 16.10 Christian Youth Camps Ltd v Cobaw Community Health Services Ltd [2014] VSCA 75 …. 7.2, 7.6 CIC Insurance Ltd v Hannan& Co Pty Ltd (2001) 38 ACSR 245; [2001] NSWSC 437 …. 19.19 CIT Credit Pty Ltd v Blayn Norman Keable (2006) Aust Contract R 90-243; [2006] NSWCA 130 …. 3.78 City Equitable Fire Insurance Co Ltd, Re [1925] Ch 407 …. 17.1, 17.2, 17.3, 17.7, 17.20 City Pacific Ltd, Re; City Pacific Limited ACN 079 453 955 v Bacon (No 2) (2009) 73 ACSR 59; [2009] FCA 772 …. 21.16

Clarke (as trustee of the Clarke Family Trust) v Great Southern Finance Pty Ltd (recs and mgrs apptd) (in liq) [2014] VSC 516 …. 3.76 Classic International Pty Ltd v Lagos (2002) 60 NSWLR 241 …. 8.13 Cody v Live Board Holdings Ltd [2014] NSWSC 820 …. 19.9 Coleman v Myers [1977] 2 NZLR 225 …. 15.3 Colorado Products Pty Ltd (in prov liq) (2014) 101 ACSR 233; [2014] NSWSC 789 …. 15.10 Commissioner for Corporate Affairs v Bracht [1989] VR 821 …. 14.5 Commissioner of Fair Trading v TLC Consulting Services Pty Ltd [2011] QSC 233 …. 5.14 Commissioner of State Taxation v Cyril Henschke Pty Ltd [2010] HCA 43; 242 CLR 508 …. 4.39, 4.42 Commissioner of Taxation v BHP Billiton Finance Ltd (2010) 182 FCR 526; [2010] FCAFC 25 …. 5.43 Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257; [2012] HCA 55 …. 11.7 Commonwealth Bank of Australia v Friedrich (1991) 5 ACSR 115 …. 17.2, 17.3, 17.14, 18.10 Compania de Electricidad de la Provincia de Buenos Aires Ltd, Re [1980] Ch 146 …. 11.5 Connective Services Pty Ltd v Slea Pty Ltd [2017] VSC 182 …. 11.17 Consolo Ltd v Bennett [2012] FCAFC 120 …. 5.39 Cook v Deeks [1916] 1 AC 554 Privy Council (UK) …. 16.7, 16.14, 16.15 Coope v LCM Litigation Fund Pty Ltd (2016) 333 ALR 524; [2016] NSWCA 37 …. 16.3 Cornerstone Property & Development Pty Ltd v Suellen Properties Pty Ltd [2015] 1 Qd R 75; [2014] QSC 265 …. 5.24, 16.8, 16.14 Corporate Affairs Commission v Drysdale (1978) 141 CLR 236 …. 14.15 Cox v Hickman (1860) 8 HL Cas 268 …. 4.17 Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 133 CLR 72 …. 7.18

Crawley v Short (2009) 76 ACSR 286; [2009] NSWCA 410 …. 15.3 Creasey v Breachwood Motors Ltd [1993] BCLC 480; [1992] BCC 638 …. 5.21 Credit Union Ltd v ASIC (2007) 159 FCR 69; [2007] FCAFC 79 …. 6.5 Cribb v Korn (1911) 12 CLR 205 …. 4.15 CSR Ltd, Re (2010) 265 ALR 703; [2010] FCAFC 34 …. 11.9 CT Money Pty Ltd v GJ & SG Thompson (No 3) [2012] NSWSC 528 …. 5.39 Cube Footwear Pty Ltd, Re (2012) 92 ACSR 218; [2012] QSC 398 …. 18.14 Culley v ASIC (2010) 183 FCR 279; [2010] FCAFC 43 …. 14.24

D Daimler Co Ltd v Continental Tyre and Rubber Co (Great Britain) Ltd [1916] 2 AC 307 …. 5.14 Dalkeith Investments Pty Ltd, Re (1984) 9 ACLR 247 …. 19.27 Daniels v Anderson (1995) 37 NSWLR 438 …. 13.3, 17.3, 17.14, 18.19, 20.13 Darby, Re; Ex parte Brougham [1911] 1 KB 95 …. 5.14, 5.23 Darvall v North Sydney Brick & Tile Co Ltd (1988) 14 ACLR 474 …. 6.3 David Grant & Co Pty Ltd v Westpac (1995) 184 CLR 265 …. 22.11 Davis v Davis [1894] 1 Ch 393 …. 4.14 DCT v Casualife Furniture International Pty Ltd (2004) 9 VR 549; [2004] VSC 157 …. 19.17 DCT v Clark (2003) 57 NSWLR 113; [2003] NSWCA 91 …. 18.21 Dean–Willcocks v Commissioner of Taxation [2008] NSWSC 1113 …. 18.8 Del Casale v Artedomus (Aust) Pty Ltd (2007) 73 IPR 326; [2007] NSWCA 172 …. 16.10 Demondrille Nominees Pty Ltd v Shirlaw (1997) 25 ACSR 535 …. 18.5 Denham and Co, Re (1883) 25 Ch D 752 …. 17.1 Dennis Willcox Pty Ltd v FCT (1988) 79 ALR 267 …. 5.12 Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113; [2003] NSWCA 91 …. 17.4

DHN Food Distributors Ltd v London Borough of Tower Hamlets [1976] 1 All ER 462 …. 5.46 Dimbula Valley (Ceylon) Tea Co Ltd v Laurie [1961] Ch 353 …. 20.28 Ding v Sylvania Waterways Ltd (1999) 46 NSWLR 424 …. 6.9 Donaldson v Natural Springs Australia Ltd [2015] FCA 498 …. 19.24 Donoghue v Stevenson [1932] AC 562 …. 15.1, 17.13 Downer EDI Ltd v Gillies (2012) 92 ACSR 373; [2012] NSWCA 333 …. 16.10, 17.10 Doyle v ASIC (2005) 56 ACSR 159; [2005] HCA 78 …. 16.10 DPP (Cth) v Hill and Kamay [2015] VSC 86 …. 21.26 Drillsearch Energy Ltd v McKerlie [2009] NSWSC 517 …. 16.11 DTM Constructions Pty Ltd trading as QA Developments v Poole [2017] QSC 210.... 16.13, 17.4 Dubai Aluminium Co Ltd v Salaam [2002] 3 WLR 1913; [2002] UKHL 48 …. 4.26 Duke Group Ltd v Pilmer (1999) 73 SASR 64 …. 4.11 Dungowan Manly Pty Ltd v McLaughlin (2012) 90 ACSR 62; [2012] NSWCA 180 …. 6.6 Duomatic Ltd, Re [1969] 2 Ch 365 …. 16.15 Dura (Aust) Constructions Pty Ltd ((in liq) (recs and mgrs apptd)) v Hue Boutique Living Pty Ltd [2014] VSCA 326 …. 10.16 Dynasty Pty Ltd v Coombs (1995) 59 FCR 122 …. 19.29

E Earglow Pty Ltd v Newcrest Mining Ltd [2016] FCA 1433 …. 20.20 Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 …. 19.18 Eden Energy Ltd v Drivetrain USA Inc (2012) 90 ACSR 191; [2012] WASC 192 …. 7.23 E H Dey Pty Ltd (in liq) v Dey [1966] VR 464 …. 11.17 Elderslie Finance Corp Ltd v Australian Securities Commission (1993) 11 ACSR 157 …. 12.29 Eley v Positive Government Security Life Assurance Co (1875) 1 Ex D 20 …. 6.7

Elkington v Farsands Solutions Pty Ltd [2012] NSWCA 334 …. 7.19 Emanuel Management Pty Ltd v Foster’s Brewing Group Ltd (2003) 178 FLR 1; [2003] QSC 205 …. 14.17 Emma Silver Mining Co Ltd v Lewis & Son (1879) 4 CPD 396 …. 8.1 ENT Pty Ltd v Sunraysia Television Ltd (2007) 61 ACSR 626 …. 12.18 Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 11 ACSR 642 (NSWCA) …. 15.6 Erlanger v New Sombrero Phosphate Co (1878) 3 App Cas 1218 …. 8.2, 8.3, 8.5 Ernst & Young (Reg) v Tynski Pty Ltd (2003) 47 ACSR 433; [2003] FCAFC 233.] …. 22.32 Esanda Finance Corp Ltd v Peat Marwick Hungerfords (Reg)(1997) 188 CLR 241 …. 20.13 Evans v FCT (1989) 89 ATC 4,540 …. 4.9 Everett v Federal Commissioner of Taxation (1980) 143 CLR 440 …. 4.39 Exchange Banking Company, Re (1882) 21 Ch D 519 …. 11.7 Expo International Pty Ltd v Chant (No 2) [1979] 2 NSWLR 820 …. 22.29 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 …. 22.11 Ezystay Systems Pty Ltd v Link 2 Pty Ltd [2015] NSWSC 1105 …. 16.10

F FAL Healthy Beverages Pty Limited v Manly Warringah Sea Eagles Ltd [2016] NSWSC 1058 …. 2.17 Featherstone v D J Hambleton as Liquidator of Ashala Pty Ltd (in liq) (2015) 115 ACSR 131; [2015] QCA 43 …. 14.16 Federal Commissioner of Taxation v Visy Industries USA Pty Ltd (2012) 205 FCR 317; [2012] FCAFC 106 …. 5.43 Federal Commissioner of Taxation v Whitford’s Beach Pty Ltd (1982) 150 CLR 355 …. 5.14 Ferguson v Wilson (1866) LR 2 Ch App 77 …. 7 Introduction FG (Films) Ltd, Re [1953] 1 WLR 483 …. 5.14

Financial Industry Complaints Service Ltd v Deakin Financial Services Pty Ltd [2006] FCA 1805 …. 6.2 Fire Nymph Products Ltd v The Heating Centre Pty Ltd (1992) 7 ACSR 356 …. 10.14 Firmin v Gray& Co Pty Ltd (1984) 8 ACLR 865 …. 11.17 First Pacific Advisors LLC v Boart Longyear Ltd (2017) 121 ACSR 136; [2017] NSWCA 116 …. 22.59 Florgale Uniforms Pty Ltd v Orders (2004) 11 VR 54; [2004] VSC 65 …. 22.30 Forrest v ASIC (2012) 91 ACSR 128; [2012] HCA 39 …. 20.18 Foss v Harbottle (1843) 2 Hare 461; 67 ER 189 …. 15.3, 19.5, 19.6 Fowler v Lindholm (2009) 178 FCR 563; [2009] FCAFC 125 …. 22.64 Fraser v NRMA Holdings Ltd (1995) 127 ALR 543 …. 9.47 Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 …. 7.18 Freeman v McManus [1958] VR 15 …. 4.59 French v Smith [2004] VSCA 207 …. 19.27 Furs Ltd v Tomkies (1936) 54 CLR 583 …. 16.6, 16.8, 16.9, 16.14

G Gambotto v WCP Ltd (1995) 182 CLR 432; [1995] HCA 12 …. 6.9, 19.3 Gilford Motor Co Ltd v Horne [1933] 1 Ch 935 …. 5.14, 5.19 Gill v Sandhu [2006] Ch 456 …. 4.48 Gillfillan v ASIC (2012) 92 ACSR 460; [2012] NSWCA 370 …. 2.24, 5.45, 13.3, 17.19 GIO Australia Holdings Ltd v AMP Insurance Investment Holdings Pty Ltd (1998) 30 ACSR 102 …. 9.47 Glenhurst Corp Pty Ltd (in liq) (ACN 006 277 087) [2010] FCA 667 …. 2.21 Gluckstein v Barnes [1900] AC 240 …. 8.3, 8.5 Gold Ribbon (Accountants) Pty Ltd (in liq) v Sheers [2006] QCA 335 …. 17.22 Goldberg v Jenkins (1889) 15 VLR 36 …. 4.23 Gordon v Leon Plant Hire Pty Ltd [2015] NSWSC 397 …. 18.3

Goudberg v Herniman Associates Pty Ltd [2007] VSCA 12 …. 4.8, 4.10 Gould v Mount Oxide Mines Ltd (1916) 22 CLR 490 …. 17 Introduction Grand Enterprises Pty Ltd v Aurium Resources Ltd (2009) 72 ACSR 75; [2009] FCA 513 …. 16.1, 16.11 Grant-Taylor v Babcock & Brown Ltd (in liq) (2015) 104 ACSR 195; [2015] FCA 149 …. 20.18 Grant-Taylor v Babcock & Brown Ltd (in liq) (2016) 245 FCR 402; [2016] FCAFC 60 …. 20.21 Great Investments Ltd v Warner (2016) 335 ALR 542; [2016] FCAFC 85 ….7.23 Green v Bestobell Industries Pty Ltd [1982] WAR 1; (1982) 1 ACLC 1 …. 5.14, 5.24, 16.6, 16.13 Greenhalgh v Arderne Cinemas Ltd [1951] Ch 286 …. 15.2 Griffin, Re; Ex parte Board of Trade (1890) 60 LJQB 235 …. 4.9 Grimaldi v Chameleon Mining NL (No 2); Chameleon Mining NL v Murchison Metals Ltd (2012) 200 FCR 296; [2012] FCAFC 6 …. 14.7, 14.15, 14.16 Groeneveld Australia Pty Ltd v WouterNolten (No 3) (2010) 80 ACSR 562; [2010] VSC 533 …. 15.13, 15.19, 16.7

H H L Bolton (Engineering) Co Ltd v T J Graham & Sons Ltd [1957] 1 QB 159 …. 7.2, 7.3, 7.7 Hadid v Lenfest Communications Inc [1999] FCA 1798 …. 7.12 Hadlee v Commissioner of Inland Revenue [1989] 2 NZLR 477 …. 4.42 Hall v Poolman (2007) 65 ACSR 123; [2007] NSWSC 1330 …. 18.19, 18.24 Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (in liq) (rec and man apptd) (2017) 320 FLR 259; [2017] WASC 152 …. 10.14, 10.26 Hamilton v Whitehead (1988) 166 CLR 121 …. 7.9 Hancock v Rinehart [2015] NSWSC 646 …. 19.2 Handevel Pty Ltd v Comptroller of Stamps (1985) 157 CLR 177 …. 10.1 Hardoon v Belilios [1901] AC 118 …. 3.50

Harlowe’s Nominees Pty Ltd v Woodside (Lake Entrance) Oil Co (1968) 121 CLR 483 …. 15.13 Hart Security Australia Pty Ltd v Boucousis (2016) 117 ACSR 408; [2016] NSWCA 307 …. 16.9 Hartman v R [2011] NSWCCA 261 …. 21.26 Hawes v Dean [2014] NSWCA 380 …. 5.32 Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd [1969] …. 22.32 Hawkins v Bank of China (1992) 26 NSWLR 562 …. 18.13 Hellion Protection Pty Ltd (in liq), Re [2014] NSWSC 1299 …. 22.9 Helmore v Smith (1886) 35 Ch D 436 …. 4.31 Hickman v Kent or Romney Marsh Sheepbreeders’ Association [1915] 1 Ch 881 …. 6.6, 19.4 HNA Irish Nominee Ltd v Kinghorn (2010) 78 ACSR 553; [2010] FCAFC 57 …. 6.8 HNA Irish Nominees Ltd v Kinghorn (No 2) (2012) 88 ACSR 427; [2012] FCA 228 …. 19.27 Ho v Akai Pty Ltd (in liq) (2006) 24 ACLC 1,526; [2006] FCAFC 159 …. 14.16 Hobart Bridge Co Ltd v Commissioner of Taxation (1951) 82 CLR 372 …. 5.39 Hocking v Lambiris aka Wilkie [2009] NSWSC 382 …. 4.3 Hodgson v Amcor (2012) 264 FLR 1; [2012] VSC 94 …. 14.4 Holland v Revenue and Customs Commissioners [2011] 1 All ER 430 …. 14.15 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 …. 7.6 Holpitt Pty Ltd v Swaab (1992) 33 FCR 474 …. 14.5 Holyoake Industries (Vic) Pty Ltd v V-Flow Pty Ltd (2011) 86 ACSR 393; [2011] FCA 1154 …. 14.4, 16.6, 16.7 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 …. 15.9, 16.1 Hotel Terrigal Pty Ltd v Latec Investments Ltd (1965) 113 CLR 265 …. 5.14 Houldsworth v City of Glasgow Bank (1880) 5 App Cas 317 …. 9.48 Howard v Commissioner of Taxation (2014) 253 CLR 83; [2014] HCA 21 …. 15.9,

16.3 Howard Media v AM Marketing [2010] NSWSC 803 …. 4.5 Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821 …. 12.11, 15.11, 15.13, 17.22 Huang v Wang (2016) 114 ACSR 586; [2016] NSWCA 164 …. 19.11 Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 …. 1.4 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10 …. 20.15 Hurst v Vestcorp Ltd (1988) 12 NSWLR 394 …. 9.8 Hutton v West Cork Railway Co (1883) 23 Ch D 654 …. 15.10 Hydrocool Pty Ltd v Hepburn (No 4) (2011) 83 ACSR 652; [2011] FCA 495 …. 16.10

I Idoport Pty Ltd v National Australia Bank Ltd [2004] NSWSC 695 …. 5.9, 5.12 Idylic Solutions Pty Ltd, Re (2013) 93 ACSR 421; [2013] NSWSC 106 …. 19.15 Idylic Solutions Pty Ltd, Re; ASIC v Hobbs [2012] NSWSC 1276 …. 17.21 IMF (Australia) v Sons of Gwalia Ltd (2005) 143 FCR 274; [2005] FCAFC 75 …. 12.8 Imperial Mercantile Credit Association v Coleman (1871) LR 6 Ch App 558 …. 16.2 Imperial Mercantile Credit Association v Coleman (1873) LR 6 HL 189 …. 16.11 Industrial Development Consultant Ltd v Cooley [1972] 1 WLR 443 …. 16.6 Industrial Equity Ltd v Blackburn (1977) 137 CLR 567 …. 5.29, 5.31, 5.41, 20.31, 20.34 Insurance Australia Group Ltd, Re (2003) 45 ACSR 702; [2003] FCA 581 …. 9.42 International Cat Manufacturing Pty Ltd (in liq) v Rodrick (2013) 97 ACSR 200; [2013] QAC 372 …. 18.5, 18.14

J

J Wright Enterprises Pty Ltd (in liq) v Port Ballidu Pty Ltd [2010] QSC 213 …. 7.19 James Hardie Industries NV v ASIC (2010) 81 ACSR 1; [2010] NSWCA 332 …. 20.18, 21.30 Jenashare Pty Ltd v Lemrib Pty Ltd (1993) 11 ACSR 345 …. 12.18 Jenkins v Enterprise Gold Mines NL (1992) 6 ACSR 539 …. 19.26 Jervois Mining Ltd, Re (2016) 117 ACSR 205; [2016] NSWSC 1650 …. 12.29 John Doe v Bennett [2004] 1 SCR 436 …. 7.6 John Holland Construction & Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250 …. 22.11 John J Starr (Real Estate) Pty Ltd v Robert R Andrew (A’asia) Pty Ltd (1991) 6 ACSR 63 …. 19.25 John Melick Investments Pty Ltd v Harbour View Mansions Pty Ltd [2016] NSWSC 1318 …. 6.9 Jones v Lipman [1962] 1 All ER 442; [1962] 1 WLR 832 …. 5.14, 5.20 Jubilee Cotton Mills Ltd v Lewis [1924] AC 958 …. 8.1 Junker v Hepburn [2010] NSWSC 88 …. 7.18

K Kang-Kem v Paine [2004] NSWSC 3 …. 4.11 Keith Murphy Pty Ltd v Custom Credit Corporation Ltd (1992) 6 WAR 332 …. 4.11 Keith Spicer Ltd v Mansell [1970] 1 All ER 462 …. 4.10 Kelly v Tucker (1907) 5 CLR 1 …. 4.36 Kelly v Wolstenholme (1991) 4 ACSR 709 …. 12.24 Kelner v Baxter (1866) LR 2 CP 174 …. 8.11 Keneally, Re [2015] NSWSC 937 …. 12.29 Kensington International Ltd v Republic of Congo [2006] 2 BCLC 296; [2005] EWHC 2648 …. 5.14, 5.18 Kent v Aspermont Ltd [2003] WASC 107 …. 9.36

KGD Investments Pty Ltd v Placard Holdings Pty Ltd (2015) 110 ACSR 379; [2015] VSC 712 …. 20.27 Khoo v R [2013] NSWCCA 323 …. 21.27 Kinsela v Russell Kinsela Pty Ltd (1986) 4 NSWLR 722 …. 15.7, 16.15, 18.3 KJ Renfrey Nominees Pty Ltd (Trustee), Re; OneSteel Manufacturing Pty Ltd v OneSteel Manufacturing Pty Ltd (2017) 120 ACSR 117; [2017] FCA 325 …. 10.24 Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 …. 5.7 Kwok v R (2007) 64 ACSR 307; [2007] NSWCCA 281 …. 16.10

L Lang v James Morrison & Co Ltd (1911) 13 CLR 1 …. 4.11 Langdon; Forge Group Ltd (Rec and Man Apptd) (in liq), Re (2017) 118 ACSR 434; [2017] FCA 170 …. 10.14 Latchford Premier Cinema Ltd v Ennion [1931] 2 Ch 409 …. 6.5 Law v Law [1905] 1 Ch 140 …. 4.32 Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 944 …. 4.5, 4.41 Lawrence Waterhouse Pty Ltd (in liq), Re; Shaw v Minsden Pty Ltd [2011] NSWSC 964 …. 17.10 Laycock v Forbes (1997) 25 ACSR 659; 15 ACLC 1814 …. 2.24 Lee v Lee’s Air Farming Ltd [1961] AC 12 …. 5.6 Lee v Neuchatel Asphalte Co (1889) 41 Ch D 1 …. 20.28 Leeds and Hanley Theatres of Varieties Ltd, Re [1902] 2 Ch 809 …. 8.8 Lehman Brothers Holdings Inc v City of Swan (2010) 240 CLR 509 …. 22.38, 22.51, 22.65 Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 …. 7.6 Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 …. 7.2, 7.5 Lewis v Doran (2004) 50 ACSR 175; [2004] NSWSC 608 …. 18.15 Links Golf Tasmania Pty Ltd v Sattler (2012) 292 ALR 382; 90 ACSR 288; [2012] FCA 634 …. 8.2, 16.4

Linton v Telnet Pty Ltd (1999) 30 ACSR 465; [1999] NSWSCA 33 …. 15.6 Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 236 ALR 561; [2006] FCAFC 144 …. 6.8 Littlewoods Mail Order Stores Ltd v McGregor [1969] 3 All ER 855 …. 5.9 Lloyd v Grace, Smith & Co Ltd [1912] AC 716 …. 4.27, 7.6 LM Investment Management Ltd (in liq) (recs and mgrs apptd) v Bruce (2014) 102 ACSR 481; [2014] QCA 136 …. 21.16 Loch v John Blackwood Ltd [1924] AC 783 …. 19.17 London and Mashonaland Exploration Co Ltd v New Mashonaland Exploration Co Ltd [1981] WN 165 …. 16.4 L-TAG Technologies Co Ltd v SA Cement Supply Pty Ltd [2014] SADC 120 …. 8.13

M Macaura v Northern Assurance Co Ltd [1925] AC 619 …. 5.5, 12.7 McConnell Dowell Constructors (Aust) Pty Ltd v Gas Transmission Services WA (Operations) Pty Ltd [2007] VSC 301 …. 5.35 McCracken v Phoenix Constructions (Qld) Pty Ltd (2012) 289 ALR 710; [2012] QCA 129 …. 19.15 McEvoy v Caplan (2010) 78 ACSR 167; [2010] NSWCA 115 …. 19.11 McEvoy v Incat Tasmania Pty Ltd (2003) 130 FCR 503; [2003] FCA 810 …. 22.24, 22.34 McGellin v Mount King Mining NL (1998) 144 FLR 288 …. 16.11 Mackay Sugar Limited v Wilmar Sugar Australia Limited (2016) 116 ACSR 426; [2016] FCAFC 133 …. 19.24 McKinnon v Grogan [1974] 1 NSWLR 295 …. 4.58 McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 187 …. 6.6 McLellan, Re; Stake Man Pty Ltd v Carroll (2009) 76 ACSR 67; [2009] FCA 1415 …. 17.19, 18.19, 18.20, 18.24 Macleod v R (2003) 197 ALR 333; [2003] HCA 24 …. 7.9 McMaster v Eznut Pty Ltd (Admin Apptd) (2006) 58 ACSR 199; [2006] WASC

109 …. 12.19 McWilliam v LJR McWilliam Estates Pty Ltd (1990) 20 NSWLR 703 …. 19.27 Maddocks v DJE Constructions Pty Ltd (1982) 148 CLR 104 …. 12.2 Maher v Honeysett & Maher Electrical Contractors Pty Ltd [2005] NSWSC 859 …. 19.12 Maiden Civil (P&E) Pty Ltd, Re; Albarran v Queensland Excavation Services Pty Ltd (2013) 277 FLR 337; [2013] NSWSC 852 …. 10.18 Manley v Sartor [1927] Ch 157 …. 4.48 Mann v Hulme (1961) 106 CLR 136 …. 4.29 Mansfield v R; Kizon v R (2012) 247 CLR 86 [2012] HCA 49 …. 21.27 Markov v Dukes [2010] FCA 1419 …. 2.21 Marra Developments Ltd v BW Rofe Pty Ltd [1977] 2 NSWLR 616 …. 20.33 Marzec v Lysiak [2015] NSWSC 647 …. 4.11 Masu Financial Management Pty Ltd and Australian Securities and Investments Commission [2017] AATA 97 …. 2.17 Megevand, Re; Ex parte Delhasse (1878) 7 Ch D 511 …. 4.20 Mercantile Credit Co Ltd v Garrod [1962] 3 All ER 1103 …. 4.23 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 …. 7.8 Meriton Apartments Pty Ltd v The Owners Strata Plan No 72381 [2015] NSWSC 202 …. 8.2 Mernda Developments Pty Ltd (in liq) v Alamanda Property Investments No 2 Pty Ltd (2011) 86 ACSR 277; [2011] VSCA 392 …. 15.6 Mesenberg v Cord Industrial Recruiters Pty Ltd (1996) 39 NSWLR 128 …. 19.15 Metal Manufacturers Pty Ltd v Lewis (1988) 13 NSWLR 315 …. 17.2 Metropolitan Fire Systems v Miller (1997) 23 ACSR 699 …. 18.15, 18.19 MG Corrosion Consultants Pty Ltd v Vinciguerra (2011) 82 ACSR 367; [2011] FCAFC 31 …. 19.12 Miah v Khan [2000] UKHL 55; [2001] 1 All ER 20 …. 4.10 Mills v Mills (1938) 60 CLR 150 …. 15.11, 15.12, 15.14

Molopo Energy Ltd; Molopo Energy Ltd v Keybridge Capital Ltd [2014] NSWSC 1864 …. 11.9 Momentum Productions Pty Ltd v Lewarne (2009) 254 ALR 471; [2009] FCAFC 30 …. 4.11, 4.13 Moore Stephens (a firm) v Stone Rolls Ltd (in liq) [2009] 1 AC 1391; [2009] UKHL 39 …. 7.5 Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 …. 19.24, 19.26, 19.27 Morley v ASIC (2010) 81 ACSR 285; [2010] NSWCA 331 …. 2.24, 14.5, 14.6, 17.11, 17.12 Morley v Statewide Tobacco Services Ltd [1993] 1 VR 423 …. 18.19 Morris v C W Martin & Sons Ltd [1966] 1 QB 716 …. 7.6 Morris v Hanley (2003) 173 FLR 83; [2003] NSWSC 42 …. 6.7 Morris v Kanssen [1946] AC 459 …. 7.22 Mousell Bros Ltd v London and North Western Railway Co [1917] 2 KB 836 …. 7.10 Moxham v Grant [1900] 1 QB 88 …. 20.37 M Young Legal Associates Ltd v Zahid [2006] 1 WLR 2562 …. 4.21

N National Australia Bank Ltd v Horne (2011) 85 ACSR 639; [2011] VSCA 280 …. 22.39 National Companies and Securities Commission v News Corporation Ltd (1984) 2 ACLC 301 …. 2.24 National Exchange Pty Ltd v ASIC (2004) 49 ACSR 369; [2004] FCAFC 90 …. 12.9, 21.30 Newborne v Sensolid (Great Britain) Ltd [1954] 1 QB 45 …. 8.11 New South Wales v Commonwealth (1990) 169 CLR 482 …. 1.4 New South Wales v Lepore; Samin v Queensland …. 5.7 New South Wales Leagues Club Ltd, Re [2014] NSWSC 1610 …. 19.17 New World Alliance Pty Ltd, Re (1994) 122 ALR 531 …. 15.7

Ngurli Ltd v McCann (1953) 90 CLR 425 …. 15.13, 19.2 Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611 …. 5.7 Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 …. 7.18, 7.19, 7.20, 7.21, 7.22 North-West Transportation Co Ltd v Beatty (1887) 12 App Cas 589 …. 16.2, 16.8 NRMA Ltd v Scandrett (2002) 43 ACSR 401; [2002] NSWSC 1123 …. 12.22 NRMA v Parker (1986) 6 NSWLR 517 …. 12.22

O Oates v Consolidated Capital Services Ltd (2009) 76 NSWLR 69; [2009] NSWCA 183 …. 19.6 Olifent v Australian Wine Industries Pty Ltd (1996) 130 FLR 195 …. 18.8 OneSteel Manufacturing Pty Ltd (admin apptd), Re (2017) 93 NSWLR 611; [2017] NSWSC 21 …. 10.19, 10.21, 10.24 Opes Prime Stockbroking Ltd, Re (2009) 179 FCR 20; [2009] FCA 813 …. 22.64 Oswal; Burrup Fertilisers Pty Ltd (rec and man apptd) v Carson, McEvoy and Theobald (recs and mgrs) (No 4) [2013] FCA 398 …. 22.9 Otta International Pty Ltd v Asia Pacific Carbon Pty Ltd [2017] NSWSC 1267 …. 7.23 Otter Gold Mine Ltd v ASC (1997) 15 ACLC 1732; [1997] FCA 1199 …. 2.13

P Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50 …. 21.31 Panorama Developments (Guilford) Ltd v Fidelis Furnishing Fabrics Ltd [1971] 2 QB 711 …. 7.19, 14.6 Parke v Daily News Ltd [1962] Ch 927 …. 15.4 Pathirana v Pathirana [1967] 1 AC 233 …. 4.32, 4.48 Patrick Stevedores Operation No 2 Pty Ltd v Maritime Union of Australia (1998) 77 FCR 478; 27 ACSR 521 …. 5.45 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No

3) (1998) 195 CLR 1 …. 5.45, 22.5 Peate v Federal Commissioner of Taxation (1964) 111 CLR 443 …. 5.16 Percival v Wright [1902] 2 Ch 421 …. 15.3 Permanent Building Society (in liq) v Wheeler (1994) 14 ACSR 109 …. 15.11, 17.10, 17.13 Permanent Building Society v Wheeler (1994) 11 WAR 187 …. 16.11 Peso Silver Mines Ltd (NPL) v Cropper (1966) 58 DLR (2d) 1 …. 16.6 Peters’ American Delicacy Co v Heath (1939) 61 CLR 457 …. 6.9, 19.2 Phipps v Boardman [1967] 2 AC 46 …. 16.3 Pioneer Concrete Services Ltd v Galli [1985] VR 675 …. 4.10 Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254 …. 5.12, 5.15, 5.46 Polkinghorne v Holland &Whitington (1934) 51 CLR 143 …. 4.27 Polly Peck International Plc, Re [1996] 2 All ER 433 …. 5.11 Poon Ka Man Jason v Chen Wai Tao [2016] HKEC 759, FACV 17/2015 …. 16.4 Popat v Shonchatra [1997] 1 WLR 1367 …. 4.48 Portman Iron Ore Ltd, Re; Golden West Resources Ltd (2008) 170 FCR 409; 67 ACSR 676; [2008] FCA 1362 …. 12.24 Potel v IRC [1971] 2 All ER 504 …. 20.34 Powell v Fryer (2001) 37 ACSR 589; [2001] SASC 59 …. 18.14 Power Rental Op Co Australia LLC v Forge Group Power Pty Ltd (in liq) (rec and man apptd) [2017] NSWCA 8 …. 10.13, 10.21 Pozzebon v Australian Gaming and Entertainment Ltd (in liq) (2014) 225 FCR 305; [2014] FCA 1034 …. 18.5, 22.24 Premier Building and Consulting Pty Ltd v Spotless Group Ltd [2007] VSC 377 …. 5.31, 5.35 Presidential Security Services of Australia Pty Ltd v Brilley (2008) 73 NSWLR 241; [2008] NSWCA 204 …. 7.7, 7.8, 7.10 Prest v Petrodel Resources Ltd [2013] UKSC 34 …. 5.11, 5.14 Primaplas Pty Ltd v Gelpack Enterprises Pty Ltd (in liq) [2015] NSWSC 1558 ….

10.18 Print Mail Logistics Ltd, Re [2012] NSWSC 792 …. 12.25 Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204 …. 6.6 PT Krakatau Steel v Felix Resources [2010] SASC 170 …. 19.26

Q QBE Insurance Group Ltd v ASC (1992) 38 FCR 270 …. 20.28, 20.30 Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 …. 18.8 Queensland Mines Ltd v Hudson (1978) 18 ALR 1 …. 16.8, 16.14 Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Ltd (in liq) (2013) 92 ACSR 343; [2013] FCAFC 5 …. 7.18 Quinlivan v ASIC (2010) 81 ACSR 522; [2010] FCAFC 161 …. 14.24

R R v Adler (2005) 53 ACSR 471; [2005] NSWSC 274 …. 15.23 R v Australasian Films Ltd (1921) 29 CLR 195 …. 7.10 R v Bateson [2011] NSWSC 643 …. 21.26 R v Byrnes and Hopwood (1995) 183 CLR 501 …. 16.10 R v Doff [2005] NSWSC 50; 23 ACLC 317 …. 21.26 R v Farris (2015) 107 ACSR 26; [2015] WASC 251 …. 21.27 R v Firns (2001) 51 NSWLR 548; [2001] NSWCCA 191 …. 20.18, 21.27 R v Glynatsis [2012] NSWSC 1551 …. 21.26 R v Gomez [1993] AC 442 …. 7.9 R v Goodall (1975) 11 SASR 94 …. 7.9 R v Hartman [2010] NSWSC 1422 …. 21.26 R v Hughes (2000) 202 CLR 535; [2000] HCA 22 …. 1.4 R v Rivkin (2003) 198 ALR 400; [2003] NSWSC 447 …. 7.12, 21.26 R v Wilkie (2008) 220 FLR 2230; [2008] NSWSC 1064 …. 15.22

R v Williams (2005) 53 ACSR 534; [2005] NSWSC 315 …. 15.23 R v Zhu [2013] NSWSC 127 …. 21.26 Ragless v IPA Holdings Pty Ltd (in liq) (2008) 65 ACSR 700; [2008] SASC 90 …. 19.11, 19.12 Rankine v Rankine (1995) 18 ACSR 725 …. 19.29 Rees v Bank of New South Wales (1964) 111 CLR 210 …. 18.14 Regal Hastings Ltd v Gulliver [1967] 2 AC 134 …. 16.6, 16.8, 16.9, 16.13 Rich v ASIC (2004) 220 CLR 129; [2004] HCA 42 …. 7.15 Rich v Queensland (2003) 212 CLR 511; [2003] HCA 4 …. 5.7 Richard Walter Pty Ltd v Commissioner of Taxation (1996) 67 FCR 243; 96 ATC 4,550 …. 5.16 Roadships Logistics Ltd v Tree (2007) 64 ACSR 671; [2007] NSWSC 1084 …. 9.41 Roberts v Coussens (1991) 25 NSWLR 171 …. 12.5 Roberts v Walter Developments Pty Ltd (1992) 10 ACLC 804 …. 19.27 Rosetex Co Pty Ltd v Licata (1994) 12 ACLC 269 …. 22.32 Royal British Bank v Turquand (1856) 119 ER 886 …. 7.20, 7.21 Ruben v Great Fingall Consolidated Ltd [1906] AC 439 …. 7.20 Ryde Ex-Services Memorial & Community Club Ltd (admin apptd), Re [2015] NSWSC 226 …. 12.24 Ryder v Frohlich [2004] NSWCA 72 …. 4.44

S S & Y Investments (No 2) Pty Ltd v Commercial Union Assurance Co of Australia Ltd (1986) 82 FLR 130 …. 7.8 Salomon v Salomon & Co Ltd [1897] AC 22 …. 3.57, 5 Introduction, 5.1, 7 Introduction, 7.2, 7.9, 13.11 Saunders v Vautier (1841) 4 Beav 115 …. 3.50 Schiavello Group Pty Ltd v Exquisite Australia Pty Ltd [2015] VCC 4 …. 3.57 Schlaepfer v Australian Securities and Investments Commission [2017] FCA 1122 …. 2.16, 2.24, 2.26

Scott v Davis (2000) 204 CLR 333; [2000] HCA 52 …. 7.6 Scottish & Colonial Ltd v Australian Power & Gas Co Ltd (2007) 65 ACSR 313; [2007] NSWSC 1266 …. 14.22 Scottish Co-operative Wholesale Society Ltd v Meyer [1959] AC 324 …. 19.25 Secretary of State for Trade and Industry v Deverell [2001] Ch 340 …. 14.16 Selig v Wealthsure Pty Ltd (2015) 255 CLR 661; [2015] HCA 18 …. 20.15 Seven Network (Operations) Ltd v Harrison [2017] NSWSC 952 …. 13.11 Shafron v ASIC (2012) 88 ACSR 126; (2012) 286 ALR 612; [2012] HCA 18 …. 2.24, 5.2, 5.45, 13.8, 14.5, 14.6, 17.5, 17.8, 17.22, 20.18 Shagang Shipping Co Ltd v Ship ‘Bulk Peace’ (2014) 314 ALR 230; [2014] FCAFC 48 …. 5.35 Shamsallah Holdings Pty Ltd v CBD Refrigeration & Airconditioning Services Pty Ltd (2001) 19 ACLC 517; [2001] WASC 8 …. 19.27 Sheahan v Ren [2017] FCA 1163 …. 18.14 Sheahan v Verco (2001) 37 ACSR 117; [2001] SASC 91 …. 17.7 Shelton v National Roads and Motorists’ Assn Ltd (2004) 51 ACSR 278; [2004] FCA 1393 …. 19.24 Sick and Funeral Society of St John’s Sunday School, Re; Golcar Dyson v Davies [1972] 2 All ER 439 …. 4.63, 4.72 SkandinaviskaEnskildaBanken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd [2011] SGCA 22 …. 7.6 Smith Martis Cork & Rajan Pty Ltd v Benjamin Corp Pty Ltd (2004) 207 ALR 136; [2004] FCAFC 153 …. 19.29 Smith, Stone & Knight Ltd v Birmingham Corp [1939] 4 All ER 116 …. 5.14, 5.34, 5.38, 5.40 Smith v Anderson (1880) 15 Ch D 247 …. 4.9, 4.11 Smith v Bone (2015) 104 ACSR 528; [2015] FCA 319 …. 18.14, 18.15, 18.24 Smith v Offermans [2015] QCA 55 …. 18.13 Smith v Yarnold [1969] 2 NSWR 410 …. 4.60 Snook v London and West Riding Investments Ltd [1967] 2 QB 786 …. 5.17

Sons of Gwalia Ltd v Margaretic (2007) 231 CLR 160; [2007] HCA 1 …. 22.19 Sorby v Commonwealth (1983) 152 CLR 281 …. 2.25 South Australia State Bank v Clark (1996) 16 ACSR 606 …. 15.1 South Johnstone Mill Ltd v Dennis (2007) 163 FCR 343; [2007] FCA 1448 …. 19.12 Southern Cross Interiors Pty Ltd (in liq) v DCT (2001) 53 NSWLR 213; [2001] NSWSC 621 …. 18.13, 18.14 Soyfer v Earlmaze Pty Ltd [2000] NSWSC 1068 …. 7.23 Spangaro v Corporate Investment Australia Funds Management Ltd (2003) 47 ACSR 285; [2003] FCA 1025 …. 9.41 Spanish Prospecting Co Ltd, Re [1911] 1 Ch 92 …. 20.28 Spargos Mining NL, Re (1990) 3 ACSR 1 …. 19.23, 19.26, 19.28 Spectrum Plus Ltd (in liq), Re [2005] 2 AC 680; [2005] UKHL 41 …. 10.14 Spies v R (2000) 201 CLR 603; [2000] HCA 43 …. 15.1, 15.7 Spreag v Paeson (1990) 94 ALR 679 …. 5.14 St George Bank Ltd v Commissioner of Taxation (2009) 256 ALR 391; [2009] FCAFC 62 …. 11.9 Stanborough v Woolworths Ltd [2005] NSWADT 203 …. 5.44 State of New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; [2003] HCA 4 …. 7.6 State Street Australia Ltd (Trustee) v Retirement Villages Group Management Pty Ltd (2016) 113 ACSR 483; [2016] FCA 675 …. 14.22 Statewide Tobacco Services Ltd v Morley (1990) 2 ACSR 405 …. 18.19, 18.21 Stekel v Ellice [1973] 1 WLR 191 …. 4.21 Strazdins, Re; DNPW Pty Ltd v Birch Carroll & Coyle Ltd (2009) 178 FCR 300; [2009] FCA 731 …. 22.52 Streeter v Western Areas Exploration Pty Ltd (No 2) (2011) 82 ACSR 1; [2011] WASCA 17 …. 16.4 Sumiseki Materials Co Ltd v Wambo Coal Pty Ltd [2013] NSWSC 235 …. 6.8 Sunburst Properties Pty Ltd v Agwater Pty Ltd [2005] SASC 335 …. 7.23

Sutherland v Pascoe (No 2) (2012) 92 ACSR 174; [2012] FCA 1361 …. 19.15 Swan Services Pty Ltd (in liq), Re [2016] NSWSC 1724 …. 14.15, 18.14, 18.15, 18.20 Swansson v RA Pratt Properties Pty Ltd (2002) 42 ACSR 313; [2002] NSWSC 583 …. 19.10 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19 …. 7.6 Sydney Project Group Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) and SET Services Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed), In the matter of [2017] NSWSC 881 …. 7.23 Sze Tu v Lowe [2014] NSWCA 462 …. 4.39

T Tate v Freecorns Pty Ltd [1972] WAR 204 …. 5.36, 5.38 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 …. 7 Introduction, 7.2, 7.7, 7.10, 7.11 THC Holding Pty Ltd v CMA Recycling Pty Ltd [2014] NSWSC 1136 …. 22.44 The Albazero [1977] AC 774 …. 5.28 Thomas v D’Arcy [2005] 1 Qd R 666 …. 6.6 Thompson v ASIC (2002) 41 ACSR 456; [2002] FCA 512 …. 9.44 Tivoli Freeholds, Re [1972] VR 445 …. 19.21 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 …. 4.8 Tomanovic v One Australia Pty Ltd (2015) 104 ACSR 596; [2015] NSWCA 11 …. 19.29 Tracy v Mandalay Pty Ltd (1953) 88 CLR 215 …. 8.1 Transmetro Corp Ltd v Kol Tov Pty Ltd (2009) 71 ACSR 582; [2009] NSWSC 350 …. 19.11 Transvaal Lands Co v New Belgium (Transvaal) Lands & Development Co [1914] 2 Ch 488 …. 16.2 Treadtel International Pty Ltd v Cocco (2016) 117 ACSR 176; [2016] NSWCA 360 …. 19.22 Treloar Constructions Pty Limited v McMillan [2017] NSWCA 72 …. 18.13, 18.14,

18.23 Trevor v Whitworth (1887) 12 App Cas 409 …. 11.7 Trimble v Goldberg [1906] AC 494 Privy Council (UK) …. 4.32 Trinkler v Beale (2009) 72 NSWLR 365; [2009] NSWCA 30 …. 4.47 Trust Company (Nominees) Ltd v Gippsland Secured Investments Ltd [2013] FCA 1393 …. 10.7 Turquand v Marshall (1869) LR 4 Ch App 376 …. 17.1 Twycross v Grant (1877) 2 CPD 469 …. 8.1

U Ubertini v Saeco International Group SpA (2014) 98 ACSR 138; [2014] VSC 47 …. 19.27 Ultramares Corp v Touche (1931) 255 NY 170 …. 20.13 United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1 …. 3.32, 4.9, 4.33

V Vadori v AAV Plumbing (2010) 77 ACSR 616; [2010] NSWSC 274 …. 16.6, 19.9, 19.27 Varangian Pty Ltd v OFM Capital Ltd [2003] VSC 444 …. 5.31, 5.41 V-Flow Pty Ltd v Holyoake Industries (Vic) Pty Ltd (2011) 86 ACSR 393; [2011] FCA 1154 …. 14.4 V-Flow Pty Ltd v Holyoake Industries (Vic) Pty Ltd [2013] FCAFC 16 …. 16.6, 16.13 VGM Holdings Ltd, Re [1942] Ch 235 …. 11.17 Vickers v Challenge Australian Dairy Pty Ltd [2011] FCA 10 …. 22.34 Vines v ASIC (2007) 73 NSWLR 451; [2007] NSWCA 75 …. 17.4, 17.11, 17.14, 17.15 Visnic v ASIC (2007) 231 CLR 381; [2007] HCA 24 …. 14.24 Visy Packaging Holdings Pty Ltd v Commissioner of Taxation [2012] FCA 1195 …. 5.43

Vouris, Re (2003) 47 ACSR 155; [2003] NSWSC 702 …. 20.16 Vrisakis v Australian Securities Commission (1993) 11 ACSR 162 …. 17.4, 17.7, 17.15 VTB Capital Plc v Nutritek International Corp [2013] UKSC 5 …. 5.10, 5.11

W Wakim, Re; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 …. 1.4 Walker v Hirsch (1884) 27 Ch D 460 …. 4.16 Walker v Wimborne (1976) 137 CLR 1 …. 5.26, 5.29, 5.31, 5.41, 5.56, 14.13, 15.6, 15.7 Walters v Scarborough [2011] NSWSC 1380 …. 4.11 Wambo Coal Pty Ltd v Sumiseki Materials Co Ltd (2014) 101 ACSR 643; [2014] NSWCA 326 …. 6.5, 6.8, 6.9, 19.27, 20.30 Warehouse Sales Pty Ltd (in liq) v LG Electronics Australia Pty Ltd [2014] VSC 644 …. 10.21 Waters v Mercedes Holdings Pty Ltd (2012) 203 FCR 218; [2012] FCAFC 80 …. 16.12 Wave Capital Ltd, Re (2003) 47 ACSR 418; [2003] FCA 969 …. 7.13, 9.42 Wayde v NSW Rugby League Ltd (1985) 180 CLR 459 …. 19.24, 19.25 Weaver v Harburn (2014) 103 ACSR 416; [2014] WASCA 227 …. 18.5 Weinstock v Beck (2013) 251 CLR 396; [2013] HCA 14 …. 12.29 Westfi Ltd v Blend Investments Pty Ltd (1999) 31 ACSR 69 …. 9.47 Westpac Banking Corp v The Bell Group Ltd (No 3) (2012) 89 ACSR 1; [2012] WASCA 157 …. 15.2, 15.10, 15.6, 16.3, 18.3 Whaley Bridge Calico Printing Co v Green (1880) 5 QBD 109 …. 8.1 Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285 …. 15.12 Whitlam v ASIC (2003) 57 NSWLR 559; [2003] NSWCA 183 …. 12.24, 12.26 Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; [2005] HCA 17 …. 15.21 William Buck (WA) Pty Ltd v Faulkner (No 6) [2013] WASC 342 …. 19.27 Williams v Scholz [2007] QSC 266 …. 18.20, 18.21, 18.24 Williams v Scholz [2008] QCA 94 …. 18.24

Willmott Growers Group Inc v Willmott Forests Ltd (rec and man apptd) (in liq) (2013) 251 CLR 592; [2013] HCA 51 …. 22.21 Winthrop Investments Ltd v Winns Ltd (No 2) (1979) 4 ACLR 1 …. 15.13 Wise v Perpetual Trustee Co Ltd [1903] AC 13 …. 4.61 Wondoflex Textiles Pty Ltd, Re [1951] VLR 458 …. 19.17 Wood v Douglas (1884) 28 Ch D 327 …. 3.44 Woolfson v Strathclyde Regional Council (1978) SLT 159 …. 5.46 Woolworths Ltd v GetUp Ltd (2012) 90 ACSR 670; [2012] FCA 726 …. 12.22 Wyong Shire Council v Shirt (1980) 146 CLR 40 …. 17.15

Y Yenidjie Tobacco Company Ltd, RE [1916] 2 Ch D 426 …. 4.44, 19.16, 19.20

Z Zhang v BM Sydney Building Materials Pty Ltd [2016] NSWCA 166 …. 7.23 Zomojo Pty Ltd v Hurd (No 2) [2012] FCA 1458 …. 16.10

Table of Statutes References are to paragraph numbers Commonwealth ASIC Supervisory Cost Recovery Levy Act 2017 …. 2.1 Associations Incorporations Act …. 3.79, 3.91, 3.92, 3.93, 3.98 Australian Federal Police Act 1979 …. s 53A …. 5.49 Australian Prudential Regulation Authority Act 1998 …. 1.5 s 8 …. 1.5 Australian Securities and Investments Commission Act 2001 …. 1.4, 3.74, 9.61, 14.24, 21.8, 21.9, 21.31 Pt 2 Div 2 …. 2.15 Pt 2 Div 2 Subdiv GA …. 20.15 Pt 3 …. 2.14 Pt 3 Div 1 …. 2.16, 2.17 Pt 3 Div 3 …. 2.17 s 1(2) …. 2.3 s 1(2)(g) …. 2 Introduction, 2.19 s 5 …. 2.15 s 9 …. 2.1 s 10 …. 2.1 s 11(4) …. 2.12 s 12(1) …. 2.2 s 12A …. 2.15 s 12A(1) …. 2.1 s 12A(3) …. 2.3 s 12A(5) …. 2.3

s 12CB …. 21.31 s 12CC …. 21.31 s 13(1) …. 2.15 s 13(1)(a) …. 2.15 s 13(1)(b)(i) …. 2.15 s 13(1)(b)(ii) …. 2.15 s 13(2) …. 2.15 s 13(6) …. 2.15 s 14 …. 2.15 s 14(2) …. 2.15 s 15 …. 2.15 s 19(2) …. 2.16, 2.24 s 23(1) …. 2.24 s 28 …. 2.17 s 29(2) …. 2.17 s 30 …. 2.17 s 30A …. 2.17 s 30B …. 2.17 s 31 …. 2.17 s 32A …. 2.17 s 33 …. S.17 s 49 …. 2.20 s 50 …. 2.21 s 51 …. 2.18 s 52(1) …. 2.18 s 59(2) …. 2.24 s 59(2)(c) …. 2.24 s 68 …. 2.25

s 68(1) …. 2.16 s 68(2) …. 2.26 s 68(3) …. 2.25 s 69(2) …. 2.26 s 69(3) …. 2.26 s 93A …. 2.22 s 93AA …. 2.22, 20.16 s 127 …. 2.27 s 127(1) …. 2.27 s 127(2A)–(4B) …. 2.27 s 596A …. 2.15 s 596B …. 2.15 s 991A …. 21.31 Australian Securities Commission Act 1989 …. 1.4 Bankruptcy Act 1966 …. 14.24, 22.9 Business Names Registration Act 2011 …. 3.3, 3.60, 4.4 Commonwealth Constitution s 51 …. 1.4 s 51(xx) …. 1.4 s 75 …. 2.2 Company Law Review Act 1998 …. 1.7, 6 Introduction, 6.1, 11.7 Competition and Consumer Act 2010 …. 7.12, 14.24 Sch 1 …. 1.5, 20.14 s 18 …. 9.47 s 84 …. 7.10 Corporate Law Economic Reform Program Act 1999 …. 1.7, 9.14, 9.32, 10.2 Corporate Law Economic Reform Program (Audit Reform and Continuous Disclosure) Act 2004 …. 1.7, 20.1

Corporate Law Reform Act 1992 …. 17.3, 17.14 Corporate Law Reform Act 1998 …. 3.58 Corporations Act 1989 …. 1.4 Corporations Act 2001 …. 1.1, 1.2, 1.4, 1.7, 1.8, 1.11, 2 Introduction, 2.13, 3.20, 3.57, 4.1, 4.54, 4.74, 4.75, 6 Introduction, 8.1, 9.61, 11.1, 13.2, 16.12, 19.1 Ch 2C …. 1.03, 12.9 Ch 2E …. 3.82, 12.7, 13.3, 16.12 Ch 2G …. 6.4 Ch 2H …. 9.7 Ch 2J …. 11.14, 11.22, 11.27, 11.36, 19.3, 20.26 Ch 2K …. 5.53, 10 Introduction, 10.18, 10.20 Ch 2L …. 9 Introduction, 9.7, 10 Introduction, 10.6, 11.9 Ch 2M …. 3.72, 5.57, 13.9 Ch 5 …. 18.1 Ch 5C …. 7.13, 9.61, 21.13, 21.14, 21.21 Ch 5D …. 10.5 Ch 6 …. 3.74, 9.6, 15.13 Ch 6A …. 6.9 Ch 6CA …. 7.13, 20.18, 21.27 Ch 6D …. 3.57, 7.13, 9 Introduction, 9.6–9.9, 9.15, 9.19, 9.20, 9.32, 9.45, 9.46, 9.48, 9.57, 9.65, 10 Introduction, 10.4, 13.8, 21.30 Ch 7 …. 2.9, 7.10, 9.6, 9.20, 9.44, 10.5, 13.12, 21 Introduction, 21.7, 21.8, 21.13 Ch 8 …. 21 Introduction Ch 9 Div 2 …. 22.17 Pt 1.2A …. 20.18 Pt 2B.3 …. 8.11 Pt 2D.1 …. 14.2, 14.15, 15.1, 22.20, 22.23, 22.29 Pt 2F.1 …. 19.22

Pt 2F.1A …. 15.1, 15.3, 19.5, 19.7 Pt 2F.2 …. 11.6, 20.30 Pt 2H.5 …. 20.26 Pt 2J.1 …. 11.19 Pt 2M.4 …. 13.9 Pt 2M.4 Div 3 …. 20.7 Pt 5.1 …. 19.3, 22.65 Pt 5.2 …. 10.22, 22.29 Pt 5.3A …. 22.38, 2249, 22.52, 22.55, 22.65 Pt 5.4 …. 22.11, 22.20 Pt 5.4C …. 22.12, 22.14 Pt 5.5 …. 22.12, 22.20 Pt 5.6 …. 22.19 Pt 5.6 Div 2 …. 12.15 Pt 5.7B Div 1 …. 18.5 Pt 5.7B Div 2 …. 15.7, 18.13, 22.20 Pt 5.8A …. 15.4 Pt 6A …. 19.3 Pt 6D.2 …. 9.62 Pt 6D.3 …. 9.57, 9.66 Pt 6D.3A …. 9.62, 9.66, 9.67 Pt 7.2 …. 21.11 Pt 7.2A …. 21.11 Pt 7.3 …. 21.11 Pt 7.5 …. 12.3 Pt 7.6 …. 21.2 Pt 7.7 …. 21.2, 21.9 Pt 7.9 …. 9.6, 21.2, 21.9

Pt 7.9 Div 5A …. 12.9 Pt 7.10 …. 21.25 Pt 7.10 Div 2 …. 21.25 Pt 7.10 Div 2A …. 7.13, 20.15 Pt 7.10 Div 3 …. 21.26 Pt 7.11 …. 12.3 Pt 7.11 Div 4 …. 12.3 Pt 9.2 …. 2.7 Pt 9.4AA …. 20.18, 20.20 Pt 9.4B …. 2.15, 7.15, 11.13, 11.21, 11.35, 19.15 Pt 9.5 …. 7.13 s 9 …. 1.1, 2.15, 3.78, 3.81, 3.82, 9.15, 9.20, 9.24, 9.25, 9.29, 9.30, 9.37, 9.59, 10.2, 10.3, 10.10, 10.26, 11.28, 11.29, 11.32, 14.1, 14.2, 14.7, 14.18, 15.21, 16.11, 18.12, 21.12, 21.13, 22.23, 22.29, 22.45, 22.61 s 9A …. 9.31 s 9(b)(i) …. 14.5 s 9(b)(ii) …. 14.5 s 10 …. 9.62 s 11 …. 9.62 s 15 …. 9.62 s 16 …. 9.62 s 21 …. 10.18 s 45A …. 3.82, 3.83 s 45B …. 3.79, 20.5 s 46 …. 3.84, 9.62 s 50 …. 3.84, 9.62 s 50AA …. 9.23, 9.62 s 57A …. 1.1

s 92 …. 9.6, 9.20, 11.5 s 92(4) …. 9.20 s 95A …. 18.6, 18.14, 22.11 s 112 …. 3.77 s 112(1) …. 3.79–3.80, 3.81 s 112(2) …. 6.1 s 113 …. 3.57, 3.82, 9.1 s 113(3) …. 9.20 s 114 …. 3.62 s 115 …. 3.20, 3.96, 4.1 s 117 …. 3.59 s 118 …. 3.63 s 119 …. 3.63 s 123 …. 3.60, 3.73, 7.17, 7.20 s 124 …. 3.79, 5.5, 6.3, 7 Introduction, 7.16, 13.13, 15.7, 15.13 s 125 …. 6.1–6.3, 19.5 s 126 …. 7 Introduction s 127 …. 7.20 s 127(1) …. 7.17, 7.23 s 127(2) …. 7.17, 7.23 s 128 …. 6.3, 7.20, 7.23 s 128(4) …. 7.23 s 129 …. 6.3, 7.20, 7.23 s 129(1) …. 6.3, 7.23 s 129(2) …. 7.23 s 129(3) …. 7.23 s 129(4) …. 7.23 s 129(5) …. 7.23

s 129(6) …. 7.23 s 129(7) …. 7.23 s 131 …. 8.12, 8.13 s 131(1) …. 8.13, 8.15 s 131(2) …. 8.14, 8.15 s 131(3) …. 8.15 s 131(3)(c) …. 8.14 s 131(4) …. 8.15 s 132 …. 8.12 s 132(1) …. 8.15 s 133 …. 8.12 s 134 …. 6.4 s 135 …. 3.61, 6.4, 12.19 s 135(1) …. 3.61, 6.1 s 136 …. 6.9 s 136(2) …. 12.11 s 137 …. 6.9 s 138 …. 6.1 s 139 …. 6.1 s 140 …. 6.5, 11.1, 12.7, 13.7, 19.4, 19.22 s 140(1) …. 6.4, 6.5 s 140(2) …. 6.9, 12.13 s 141 …. 3.61, 6 Introduction, 6.4 s 142 …. 3.65, 3.71, 14.6 s 145 …. 3.65, 14.6 s 146 …. 3.71, 14.6 s 148 …. 3.78, 3.80 s 148(2) …. 3.78

s 150 …. 3.79 s 153 …. 3.60 s 162 …. 3.85, 9.20 s 163 …. 3.85, 9.20 s 164 …. 3.85, 9.20 s 165 …. 3.82 s 168 …. 3.70, 10.10 s 171 …. 10.10 s 172 …. 3.71 s 173 …. 3.70, 12.8, 12.9, 19.31 s 173(2) …. 12.7 s 173(3A) …. 12.9 s 175 …. 12.2, 12.6 s 177 …. 3.70, 12.9, 19.31 s 177(1)(a) …. 12.8 s 177(1A) …. 12.8 s 177(1AA) …. 12.9 s 177(3) …. 12.9 s 178A …. 14.6 s 180 …. 7.12, 9.40, 13.3, 14.3, 14.6, 15.1, 17.17, 22.23, 22.29, 22.45 s 180(1) …. 2.24, 15.1, 16.15, 17 Introduction, 17.1, 17.3, 17.4, 17.5, 17.6, 17.8, 17.9, 17.10, 17.12, 17.14, 17.15, 17.16, 17.18, 17.21, 17.22, 18.20, 20.20, 20.22, 22.29 s 180(2) …. 15.10, 17 Introduction, 17.5, 17.22 s 180(3) …. 17.22 s 181 …. 7.12, 9.40, 13.3, 14.3, 14.6, 15.1, 15.7, 15.9, 15.10, 15.15, 15.16, 15.18, 16.15, 17.17, 22.23, 22.29, 22.45 s 181(1) …. 15.10 s 181(b) …. 15.9

s 182 …. 7.12, 9.40, 13.3, 13.10, 14.3, 14.6, 15.1, 15.9, 15.10, 15.21, 16.10, 16.13, 16.15, 22.23, 22.29, 22.45 s 183 …. 13.3, 14.3, 14.6, 15.1, 15.9, 15.10, 15.21, 16.10, 16.13, 16.15, 22.23, 22.29, 22.45 s 184 …. 13.3, 14.3, 15.1, 15.18, 15.23, 17.16, 22.23, 22.29, 22.45 s 184(1) …. 15.16, 15.22, 16.13 s 185 …. 15.1, 15.18 s 187 …. 14.13, 15.6 s 188(1) …. 14.6 s 189 …. 17.21, 18.20 s 190 …. 17.20 s 190(2) …. 17.20 s 191 …. 13.8, 16.11 s 191(1) …. 16.11 s 191(2) …. 16.11 s 191(3) …. 16.11 s 192 …. 16.11 s 193 …. 16.11 s 195 …. 3.82, 16.11 s 195(1B) …. 16.11 s 195(2) …. 16.11 s 197 …. 3.47, 3.51, 5.4, 5.13, 5.54 s 198A …. 3.61, 6.4, 6.5, 7 Introduction, 12 Introduction, 12.11, 13.5, 13.7, 15.13, 16.7, 22.29 s 198A(2) …. 7.18 s 198D …. 7 Introduction, 7.20, 17.20 s 198E …. 6.1 s 199A …. 17.1 s 199A(1) …. 15.21

s 199A(2) …. 15.21 s 199A(3) …. 15.21 s 199B …. 15.21 s 200B …. 12.7 s 201A …. 14.7 s 201A(1) …. 3.62 s 201A(2) …. 3.62, 13.16 s 201B(1) …. 14.19 s 201B(2) …. 14.19 s 201D …. 14.19 s 201F …. 6.1 s 201G …. 6.4 s 201K(1) …. 14.14 s 201K(3) …. 14.14 s 201L …. 3.71 s 202C …. 6.1 s 203A …. 14.20, 14.23 s 203C …. 6.4, 9.5, 14.20, 14.22 s 203D …. 9.5, 12.7, 12.29, 14.20, 14.22 s 203D(1) …. 14.22 s 204A …. 14.6 s 204A(2) …. 3.66, 7.19 s 204B …. 14.6 s 204D …. 12.11, 14.6 s 204F …. 14.6 s 205B …. 3.71, 14.6 s 205B(1) …. 14.8 s 205B(4) …. 14.8

s 205B(5) …. 14.8 s 205C …. 14.6 s 206A …. 14.20 s 206B(1) …. 14.24 s 206B(2) …. 14.24 s 206B(3) …. 14.24 s 206B(4) …. 14.24 s 206C …. 7.15, 14.24, 16.13, 17.16, 18.23 s 206C(2) …. 14.24 s 206D(1) …. 14.24 s 206E(1) …. 14.24 s 206EA …. 14.24 s 206EAA …. 14.24 s 206EB …. 14.24 s 206F …. 14.24 s 206F(1)(b) …. 14.24 s 206G(1) …. 14.24 s 206G(2) …. 14.24 s 208 …. 16.12 s 210 …. 16.12 s 211 …. 16.12 s 212 …. 16.12 s 213 …. 16.12 s 214 …. 16.12 s 215 …. 16.12 s 216 …. 16.12 s 228 …. 16.12 s 229 …. 16.12

s 232 …. 6.9, 11.6, 12.7, 12.12, 13.5, 17.3, 19 Introduction, 19.22–19.28 s 232(1)(h) …. 22.26 s 232(e) …. 19.24, 19.25, 19.26 s 233 …. 6.9, 12.12, 19.22, 19.23, 19.24, 19.28 s 234 …. 6.9, 19.22 s 236 …. 12.7, 13.5, 19.7 s 236(2) …. 19.7 s 236(3) …. 19.5 s 237 …. 12.7, 13.5, 15.3, 19.7 s 237(2) …. 19.8 s 237(2)(a) …. 19.9 s 237(2)(b) …. 19.10 s 237(2)(c) …. 19.11 s 237(2)(d) …. 19.12 s 237(2)(e) …. 19.13 s 237(3) …. 19.12 s 237(3)(c) …. 19.12 s 239 …. 19.14 s 242 …. 19.7 s 246B …. 11.6, 12.12 s 246B(1) …. 11.6 s 246B(2) …. 11.6 s 246B(3) …. 11.6 s 246D …. 11.6 s 246D(5) …. 11.6 s 246F …. 11.6, 12.7 s 247A …. 19.31 s 247D …. 6.4, 19.31

s 247E …. 9.49 s 248A …. 6.4, 12.19 s 248B …. 6.4 s 248C …. 6.4, 12.19 s 248D …. 6.4 s 248E …. 6.4 s 248F …. 6.4, 12.19 s 248G …. 6.4 s 249A …. 12.27 s 249B …. 12.27 s 249C …. 6.4 s 249D …. 12.7, 12.22 s 249G …. 12.17 s 249H …. 12.17 s 249H(2) …. 12.17 s 249L …. 12.18 s 249L(1)(c) …. 12.17 s 249L(2) …. 12.18 s 249N …. 12.7 s 249P …. 12.7 s 249T …. 6.4, 12.29 s 249U …. 12.24 s 249X …. 6.4, 12.25 s 250BB …. 12.25 s 250BD …. 12.25 s 250J …. 6.4, 12.25 s 250N …. 12.16 s 250N(2) …. 12.21

s 250P …. 12.21 s 250R …. 12.21 s 250R(2) …. 12.21 s 250R(3) …. 12.21 s 250R(4) …. 12.21 s 250RA …. 12.21 s 250S …. 12.21 s 250SA …. 12.21 s 250T …. 12.21 s 250U …. 12.21 s 250V …. 12.21 s 250W …. 12.21 s 250X …. 12.21 s 250Y …. 12.21 s 251A …. 3.69, 12.28 s 252B …. 21.16 s 254A …. 11.3 s 254A(3) …. 11.4 s 254C …. 11.7 s 254G …. 11.4 s 254K …. 11.4, 11.8 s 254M …. 12.14 s 254Q …. 12.14 s 254Q(1) …. 3.80 s 254Q(2) …. 3.80 s 254Q(9) …. 3.80 s 254Q(11) …. 3.80 s 254R …. 12.14

s 254SA …. 3.79, 20.25 s 254T …. 20.27, 20.28, 20.29, 20.34 s 254T(1)(a) …. 20.27 s 254TA …. 20.29 s 254U …. 6.4, 20.26, 20.32, 20.34, 20.35 s 254V …. 20.31, 20.33 s 254V(1) …. 20.31 s 254V(2) …. 20.27, 20.31 s 254W …. 20.30 s 254W(2) …. 20.30 s 254X …. 14.6 s 254Y …. 11.33 s 256A …. 11.9 s 256B …. 11.10, 11.13, 11.15 s 256B(1) …. 11.9, 11.12 s 256B(2) …. 11.9 s 256C(1) …. 11.9 s 256C(2) …. 11.9 s 256C(3) …. 11.11 s 256C(4) …. 11.11 s 256C(5) …. 11.11 s 256D …. 11.13 s 256D(2) …. 11.13 s 256D(3) …. 11.13 s 256D(4) …. 11.15 s 257 …. 11.10 s 257A …. 11.10, 11.25, 11.34 s 257B(2) …. 11.31

s 257B(4) …. 11.33 s 257B(6) …. 11.30 s 257D …. 11.32 s 257F …. 11.33 s 257H …. 11.33 s 258A-F …. 11.10 s 259A …. 11.37, 11.38 s 259F(1) …. 11.35 s 259F(2) …. 11.35 s 259F(3) …. 11.37 s 260A …. 5.52, 11.17, 11.20, 11.23 s 260A(2) …. 11.17 s 260B(1) …. 11.18 s 260C …. 11.19 s 260C(2) …. 11.19 s 260C(4) …. 11.19 s 260C(5)(a) …. 11.19 s 260C(5)(b) …. 11.19 s 260D …. 5.52 s 260D(1) …. 11.21 s 260D(2) …. 11.21 s 260D(3) …. 11.23 s 266 …. 10.24 s 267 …. 10.25, 5.13, 5.53 s 279–282 …. 10.20 s 283AA …. 9.26 s 283AB …. 10.6 s 283AC …. 10.5

s 283AD …. 10.5 s 283BB …. 10.9 s 283BC …. 10.10 s 283BD …. 10.5, 10.10 s 283BE …. 10.10 s 283BF …. 10.10 s 283BH …. 10.4 s 283BH(1) …. 10.4 s 283CA–283CE …. 10.10 s 283DA …. 10.5, 10.7, 10.8 s 283DB(1) …. 10.8 s 283EA …. 10.10 s 283EB(1) …. 10.8 s 283GA …. 10.4 s 285 …. 20.21 s 285A …. 3.79 s 286 …. 18.14, 20.5, 20.21 s 292 …. 20.5 s 292(3) …. 3.79 s 293 …. 3.83, 20.5 s 294 …. 3.83 s 294A …. 3.79 s 294B …. 20.5 s 295 …. 20.22 s 296 …. 5.57, 20.22 s 297 …. 20.22 s 298 …. 20.22 s 299 …. 20.22

s 300B …. 20.22 s 301 …. 20.5 s 301(1) …. 20.5 s 302 …. 20.23 s 303 …. 20.23 s 304 …. 20.23 s 305 …. 20.23 s 306 …. 20.23 s 307 …. 20.6 s 307A …. 20.6 s 307C …. 20.7 s 308 …. 20.6 s 310 …. 20.6 s 312 …. 20.6 s 314 …. 12.7 s 319 …. 14.6, 20.22 s 320 …. 14.6, 20.23 s 324AA …. 20.3 s 324AF …. 20.6 s 324BA …. 20.3 s 324BB …. 20.3 s 324BC …. 20.3 s 324CA …. 20.7 s 324CB …. 20.7 s 324CC …. 20.7 s 324CD …. 20.7 s 324CD(2) …. 20.7 s 324CE …. 20.7

s 324CF …. 20.7 s 324CG …. 20.7 s 324CH …. 20.7, 20.9 s 324DA …. 20.8 s 324DAA …. 20.8 s 324DAB …. 20.8 s 324DAC …. 20.8 s 324DAD …. 20.8 s 324DB …. 20.8 s 324DC …. 20.8 s 324DD …. 20.8 s 325 …. 3.67 s 327A …. 3.67 s 329 …. 20.4 s 329(5) …. 20.4 s 340 …. 2.13 s 341 …. 2.13 s 346C …. 14.6 s 346D …. 14.6 s 349A …. 14.6 s 411 …. 22.5 s 411(4) …. 22.59, 22.60 s 412 …. 22.58 s 418 …. 22.27 s 418A …. 22.32 s 419 …. 22.31 s 420 …. 22.29 s 420A …. 22.29, 22.30

s 420A(1) …. 22.30 s 420C …. 22.35 s 423 …. 22.9 s 428 …. 22.33 s 429 …. 22.32 s 433 …. 10.2, 10.14 s 434A …. 22.32 s 434J …. 18.1, 22.34 s 435A …. 22.41, 22.47, 22.49 s 435A(a) …. 22.38 s 435A(b) …. 22.38 s 435C(1) …. 22.41 s 436A …. 22.39 s 436B …. 22.39 s 436C …. 22.39 s 436DA …. 22.40 s 437A …. 22.44, 22.46, 22.50 s 437B …. 22.45 s 437C …. 22.44 s 437D …. 22.42, 22.46 s 437E …. 22.46 s 438A …. 22.55 s 438B …. 22.46 s 438D …. 22.45 s 439A …. 22.41, 22.51, 22.55 s 439A(5) …. 22.43 s 439C …. 22.43 s 440B …. 22.44, 22.48

s 440D …. 22.49, 22.50 s 440J …. 22.46 s 441A …. 22.36, 22.48 s 441B …. 22.44, 22.48 s 441C …. 22.48 s 442B …. 22.44 s 442C …. 22.44 s 443A …. 22.45 s 443D …. 22.45 s 444A(4) …. 22.53 s 444D …. 22.52 s 444DA …. 22.53 s 444F …. 22.52 s 445A …. 22.54 s 445B …. 22.54 s 445CA …. 22.54 s 445D …. 22.51, 22.52, 22.54 s 445F …. 22.54 s 445G …. 22.54 s 446A …. 22.14, 22.51 s 446B …. 22.51 s 447A …. 22.41, 22.54, 22.55, 22.56 s 447A(1) …. 22.55 s 447C …. 22.56 s 448B …. 22.40 s 451D …. 18.1 s 451E …. 18.1, 22.47 s 459A …. 22.11

s 459C …. 22.11 s 459C(2)(a) …. 22.11 s 459E …. 22.11 s 459G …. 22.11 s 459H …. 22.11 s 459J(1)(a) …. 22.11 s 459J(1)(b) …. 22.11 s 459P …. 22.11 s 459R …. 22.11 s 459S …. 22.11 s 461 …. 6.9, 12.7, 19.16, 22.11 s 461(1)(k) …. 4.44, 19.16, 19.17, 19.18, 19.20, 19.21 s 462 …. 22.11 s 464 …. 2.21 s 467 …. 22.11 s 471B …. 22.24 s 473 …. 22.23 s 477 …. 22.20 s 478 …. 22.23 s 479(3) …. 22.22 s 482 …. 22.18 s 489EA …. 22.14 s 489EA(7) …. 22.14 s 489EB …. 22.14 s 490 …. 22.14 s 493 …. 22.13 s 494 …. 22.13 s 497 …. 22.14

s 503 …. 22.23 s 506A …. 22.40 s 513A(e) …. 22.15 s 513B(e) …. 22.15 s 515 …. 12.15 s 516 …. 12.15 s 517 …. 12.15 s 520 …. 12.15 s 528 …. 12.15 s 529 …. 12.15 s 532(1) …. 22.17 s 532(2)(a) …. 22.17 s 532(2)(b) …. 22.17 s 532(2)(c) …. 22.17 s 532(4) …. 22.17 s 533 …. 22.23 s 536A …. 22.19 s 556 …. 22.19, 22.34, 22.53 s 558G …. 5.13 s 561 …. 10.14 s 563A …. 18.3, 22.19 s 568 …. 22.21 s 568(1A) …. 22.21 s 568A …. 22.21 s 568B …. 22.21 s 568E …. 22.21 s 588E …. 18.14, 20.21 s 588E(4) …. 18.14, 18.6

s 588E(7) …. 18.6 s 588FA …. 18.5 s 588FB …. 18.5 s 588FDA …. 18.5 s 588FE(6) …. 18.7 s 588FF …. 18.8 s 588FG …. 18.8 s 588FG(1) …. 18.8 s 588FG(1)(a) …. 18.8, 20.31 s 588FG(1)(b) …. 18.8 s 588FG(2) …. 18.8 s 588FG(2)(c) …. 18.8 s 588FGA …. 18.13 s 588FJ …. 10.26, 18.5, 22.35 s 588FL …. 10.24, 18.5, 22.24, 22.35, 22.48 s 588FM …. 10.24 s 588FP …. 5.53, 10.25, 18.5, 22.35 s 588G …. 3.57, 3.76, 5.4, 5.51, 11.14, 11.22, 11.36, 13.3, 14.2, 14.15, 15.1, 15.7, 17.4, 17.23, 18.10, 18.12, 18.21, 18.23, 20.21, 20.27, 20.29, 22.20 s 588G(1) …. 18.11 s 588G(1A) …. 11.14, 11.22, 11.36, 18.13 s 588G(2) …. 18.16 s 588G(3) …. 17.16 s 588GA(1) …. 18.17 s 588GA(1) (b) …. 18.17 s 588GA(2) …. 18.17 s 588GA(3) …. 18.17 s 588GA(4) …. 18.17

s 588GB …. 18.17 s 588H …. 5.51, 17.23, 18.18, 18.21 s 588H(2) …. 18.18, 18.19 s 588H(3) …. 18.18, 18.20 s 588H(4) …. 18.18, 18.21 s 588H(5) …. 18.18, 18.22 s 588HA …. 18.17 s 588M …. 18.10, 18.23 s 588M(4) …. 18.23 s 588R …. 18.23 s 588Q …. 18.23 s 588V …. 3.84, 5.13, 5.56, 18.10 s 596A …. 22.20 s 596B …. 22.20 s 601EA(4) …. 21.13 s 601EC …. 21.13 s 601ED …. 21.13 s 601ED(5) …. 21.13 s 601EE …. 21.13 s 601FA …. 21.14, 21.16 s 601FB …. 21.14 s 601FB(2) …. 21.14 s 601FC …. 21.15 s 601FC(2) …. 21.14 s 601FD …. 21.15 s 601FE …. 21.15 s 601FL …. 21.16 s 601FM …. 21.16

s 601FP …. 21.16 s 601GA …. 21.15, 21.17 s 601GA(2) …. 21.14 s 601GB …. 21.15 s 601GC(1) …. 21.17 s 601HA …. 21.15 s 601HG(1) …. 21.18 s 601JA …. 21.19 s 601JB(1) …. 21.19 s 601MA …. 21.14 s 601NA …. 21.20 s 601ND …. 21.20 s 601NE …. 21.20 s 601QA …. 2.13, 21.21 s 655A …. 2.13 s 670A …. 21.30 s 674 …. 9.46, 13.8, 13.10, 18.2, 22.19 s 674(2) …. 9.15, 9.37, 9.46, 20.20 s 674(2)(c)(ii) …. 20.18 s 674(2A) …. 20.19, 20.20 s 674(2B) …. 20.19 s 675 …. 18.2, 20.18 s 676 …. 20.18 s 677 …. 20.18 s 700 …. 9.6 s 700(1) …. 9.20 s 700(2) …. 9.19 s 700(4) …. 9.19

s 706 …. 9.19, 9.31 s 708 …. 9.15, 9.19, 9.21, 9.46 s 708(1) …. 9.22 s 708(2) …. 9.22 s 708(5) …. 9.22 s 708(8) …. 9.22, 9.59, 9.62 s 708(10) …. 9.23 s 708(11) …. 9.24, 9.59, 9.62 s 708(12) …. 9.25 s 708(13) …. 9.26 s 708(14) …. 9.26 s 708(15) …. 9.27 s 708(17) …. 9.28 s 708(17A) …. 9.28 s 708(18) …. 9.28 s 708(19) …. 9.29 s 708(20) …. 9.30 s 708(21) …. 9.30 s 708AA …. 9.19, 9.21, 9.46 s 709 …. 9.14, 9.17 s 709(1) …. 9.15 s 709(2) …. 9.18 s 709(4) …. 9.15, 9.17 s 710 …. 9.34, 9.35, 9.46 s 710(1) …. 9.35 s 710(2) …. 9.35 s 711 …. 8.9, 9.15, 9.34, 9.36, 9.46 s 711(7)(b) …. 9.43

s 712 …. 9.16, 9.46 s 712(3) …. 9.16 s 712(5) …. 9.16 s 713 …. 9.14, 9.15, 9.34, 9.37, 9.46 s 713(3) …. 9.37 s 713A …. 9.14, 9.15 s 713B …. 9.15 s 713C …. 9.34 s 713D …. 9.34 s 713E …. 9.34 s 714 …. 9.18, 9.46 s 715 …. 9.17, 9.46 s 715A …. 9.38, 9.44 s 716(2) …. 9.32 s 718 …. 9.32 s 719 …. 9.56 s 719(1) …. 9.48 s 719(1A) …. 9.48 s 721 …. 9.18 s 721(3) …. 9.18 s 722 …. 9.40 s 722(1) …. 9.41 s 723 …. 9.41, 9.41 s 723(2) …. 9.41 s 723(3) …. 9.42 s 724 …. 9.41, 9.42 s 724(2) …. 9.41, 9.42 s 724(3) …. 9.42

s 727 …. 9.32, 9.46, 9.49 s 727(3) …. 9.32, 9.43 s 728 …. 8.9, 9.13, 9.44, 9.46–9.50, 21.30 s 728(1) …. 8.9, 9.49 s 728(1)(a) …. 9.46 s 728(1)(b) …. 9.46 s 728(1)(c) …. 9.46 s 728(3) …. 9.49, 9.50 s 729 …. 8.9, 9.13, 9.51 s 729(1) …. 9.48 s 731 …. 9.35, 9.50–9.52 s 732 …. 9.50, 9.51, 9.53 s 733 …. 9.50, 9.51, 9.54 s 733(2) …. 9.54 s 733(3) …. 9.55 s 733(4) …. 9.56 s 734 …. 9.44, 9.58 s 734(5) …. 9.44, 9.58 s 734(6) …. 9.44, 9.58 s 734(7) …. 9.58 s 736 …. 9.59, s 736(2) …. 9.59 s 738 …. 9.59 s 738A …. 9.62 s 738H(1) …. 9.62 s 738J …. 9.64 s 738J(2) …. 9.63 s 738K …. 9.63

s 738Q …. 9.63 s 738U …. 9.63, 9.64 s 738W …. 9.64 s 738Y …. 9.65 s 738Y(4) …. 9.64 s 738Y(5) …. 9.64 s 738Z …. 9.75 s 738ZD …. 9.62 s 738ZG …. 9.66 s 739 …. 9.32, 9.37, 9.44, 9.64 s 739(3) …. 9.44 s 739(6) …. 9.44 s 739(7) …. 9.44 s 739(8) …. 9.44 s 741 …. 2.13, 9.45 s 761A …. 9.6, 9.20 s 761D …. 9.6 s 761G …. 21.9 s 761GA …. 21.9 s 763A …. 9.6 s 764A …. 9.6 s 766A …. 21.4 s 766B …. 21.4 s 766C …. 21.4 s 766D …. 21.4 s 769B …. 7.4 s 791A …. 21.11 s 792A …. 21.11

s 793C …. 13.12 s 795A …. 21.11 s 911A …. 21.3 s 911A(2) …. 21.3 s 912A …. 21.6, 21.8 s 912B …. 21.6 s 912D …. 21.6 s 913A …. 21.6 s 914A …. 21.6 s 916A …. 21.5 s 917B …. 21.7 s 917C …. 21.7 s 920A …. 21.7 s 923B …. 12.9 s 941C …. 21.9 s 942B …. 21.9 s 942C …. 21.9 s 947B …. 21.9 s 947C …. 21.9 s 952C …. 21.10 s 952D …. 21.10 s 952E …. 21.10 s 952I …. 21.10 s 953C …. 21.10 s 992A …. 21.24 s 1010A …. 9.6 s 1013D …. 21.9 s 1016C …. 21.10

s 1020E …. 21.10 s 1020F …. 2.13, 21.10 s 1021C …. 21.10 s 1022B …. 21.10 s 1041A …. 21.25 s 1041H …. 9.46, 9.47, 17.6, 18.2, 22.19, 21.30 s 1042A …. 21.27 s 1042C …. 21.27 s 1042C(1)(b) …. 21.27 s 1043(1)(d) …. 21.27 s 1043A …. 15.1, 21.27, 21.28 s 1043A(1) …. 7.12 s 1043A(2) …. 7.12 s 1043B–1043M …. 21.28 s 1043N …. 21.28 s 1070A …. 11.1, 19.2 s 1071D …. 12.5 s 1071F …. 12.5 s 1072A …. 6.4 s 1072B …. 6.4 s 1072D …. 6.4 s 1072F …. 6.4 s 1072F(2) …. 12.5 s 1072G …. 6.4, 12.5 s 1274 …. 3.63 s 1280(2) …. 20.3 s 1280(2A) …. 20.3 s 1280(2B) …. 20.3

s 1280A …. 20.3 s 1287A …. 20.10 s 1292 …. 20.16 s 1302 …. 3.71 s 1308A …. 7.11, 15.22 s 1311 …. 7.14, 15.22, 16.13 s 1311(5) …. 15.22 s 1312 …. 7.10, 15.22 s 1313 …. 7.14, 15.22 s 1315 …. 2.20, 7.7, 15.22 s 1316 …. 15.22 s 1317E …. 14.24, 15.1, 16.12, 16.13, 17.16, 18.23, 18.24, 20.19 s 1317G …. 7.15, 15.18, 15.21, 16.13, 18.23, 20.18 s 1317H …. 16.13, 17.16, 20.19 s 1317HA …. 15.21 s 1317S …. 15.20, 15.21, 17.19, 18.20, 18.24 s 1318 …. 7.13, 15.20, 15.21, 18.24 s 1319 …. 7.13 s 1320 …. 7.13 s 1321 …. 7.13 s 1322 …. 6.6, 7.13, 9.42, 12.12, 12.18, 12.19, 12.24, 12.29 s 1322(1) …. 12.29 s 1322(2) …. 12.29 s 1322(3) …. 12.29 s 1322(4) …. 22.11 s 1322(4)(d) …. 9.42 s 1322(6) …. 12.29 s 1322(6)(c) …. 12.29

s 1323 …. 2.21, 7.13, 16.13 s 1323(1)(h) …. 22.26 s 1324 …. 2.21, 7.13, 11.6, 11.16, 11.24, 11.38, 12.7, 12.12, 16.13, 19.15, 20.37, 21.24 s 1324(10) …. 2.21, 19.15 s 1324B …. 9.49 s 1325 …. 7.13 s 1326 …. 7.13 s 1327 …. 7.13 s 1349 …. 2.16, 2.25 s 1415 …. 6 Introduction Sch 2 …. 22.2 Sch 3 …. 7.14, 15.18, 15.22, 16.13 Sch 8A …. 22.53 Corporations Amendment (Corporate Reporting Reform) Act 2010 …. 20.2 Corporations Amendment (Crowd-sourced Funding) Act 2017 …. 9.61 Corporations Amendment (Further Future of Financial Advice Measures) Act 2012 …. 1.7 Corporations Amendment (Future of Financial Advice) Act 2012 …. 1.7 Corporations Amendment (Insolvency) Act 2007 …. 5.48 Div 8 Pt 5.6 …. 5.48 Corporations Amendment (Phoenixing and Other Measures) Act 2012 …. 1.7 Corporations Amendment (Simple Corporate Bonds and Other Measures) Bill 2013 …. 21.5 Corporations Amendment (Sons of Gwalia) Act 2010 …. 1.7 Corporations (Commonwealth Powers) Act 2001 …. 2.3 Corporations Legislation Amendment (Audit Enhancement) Act 2012 …. 1.7, 20.2 Corporations Legislation Amendment (Deregulatory and Other Measures) Bill 2014 …. 20.29

Corporations Legislation Amendment (Deregulatory and Other Measures) Act 2015 …. 1.7 Corporations Legislation Amendment (Remuneration Disclosures and Other Measures) Bill 2012 …. 20.29 Corporations Legislation Amendment (Simpler Regulatory System) Act 2007 …. 1.7, 3.58 Corporations Regulations 2001 …. 21.9 Ch 7 …. 21.1 Pt 7.11 Div 3 …. 12.3 reg 5.3A.06 …. 22.53 reg 5.6.23 …. 22.43 reg 6D.2.03 …. 9.23 Sch 8 …. 22.58 Crimes Act 1914 …. 7.14 s 4AA …. 7.11, 7.14, 15.18, 15.22 s 4B …. 7.14 Crimes Amendment (Penalty Unit) Act 2017 …. 7.14 Criminal Code Act 1995 …. 7.11 Ch 2 …. 7.11, 15.22 Pt 2.5 …. 7.11 s 12.1(2) …. 7.14 s 12.2 …. 7.11 Customs Act 1901 …. 5.49, 7.10 s 243CA …. 5.49 Fair Work Act 2009 …. 7 Introduction Financial Services Reform Act 2001 …. 21 Introduction First Corporate Law Simplification Act 1995 …. 1.7 Income Tax Assessment Act 1936 …. 4.3 Income Tax Assessment Act 1997 …. 3.68, 4.3, 4.55, 5.43, 5.49

Pt 3–90 …. 5.49 Insolvency Law Reform Act 2016 …. Introduction 22, 22.23, 22.24 Insolvency Practice Rules (Corporations) Div 75 …. 22.43 Insolvency Practice Schedule (Corporations) …. 22.2, 22.9 Pt 1 …. 22.3 Pt 2 …. 22.3 Pt 3 …. 22.2, 22.3, 22.4 Div 20 …. 22.17 Div 70 …. 22.16, 22.23, 22.24 Div 75 …. 22.16, 22.43 Div 90 …. 22.16, 22.23 s 90-5 …. 22.23 s 90-10 …. 22/23 s 90-15 …. 22.22 s 90-20 …. 22.22 s 90-23 …. 22.23 s 90-24 …. 22.23 s 90-35 …. 22.14, 22.23, 22.40 s 100-5 …. 22.20 Life Insurance Act 1995 …. 9.29, 10.5 Personal Liability for Corporate Fault Reform Act 2012 …. 1.7 Personal Property Securities Act 2009 …. 5.53, 9 Introduction, 22.33, 22.48, 10 Introduction, 10.12, 10.15 Ch 4 …. 10.22, 22.33 Pt 2.5 …. 10.21 s 8 …. 10.17 s 12 …. 10.13

s 12(1) …. 10.16 s 12(3) …. 10.16 s 14(1) …. 10.20 s 19 …. 10.18 s 19(5) …. 10.18 s 20 …. 10.18 s 33 …. 10.19 s 46 …. 10.21 s 55 …. 10.20 s 55(2) …. 10.20 s 55(3) …. 10.20 s 55(4)–(5) …. 10.20 s 62 …. 10.20 s 75 …. 10.20 s 111 …. 10.22 ss 111AC–111AJ …. 20.23 s 111AE …. 20.18, 20.22 s 111AF …. 20.18, 20.22 s 114 …. 10.22 s 115 …. 10.22 s 116 …. 10.22, 22.33 s 153 …. 10.19 s 164 …. 10.19 s 267 …. 10.21, 10.24, 22.24, 22.48 s 267A …. 10.21, 10.24, 22.48 s 339 …. 10.14 s 339(5) …. 10.26 s 340(1) …. 10.26

s 340(2) …. 10.26 s 340(3) …. 10.26 s 340(4) …. 10.26 s 340(5) …. 10.26 s 341 …. 10.26 s 343 …. 10.15 Personal Property Securities (Corporations and Other Amendments) Act 2010 …. 1.7, 5.53, 10.15 Personal Property Securities (Corporations and Other Amendments) Act 2011 …. 1.7, 10.15 Personal Property Securities Regulations 2010 …. 10.15 Sch 1 item 2.3 …. 10.19 Proceeds of Crime Act 1987 …. 5.49 s 28 …. 5.49 s 85 …. 7.10 Taxation Administration Act 1953 s 8ZD …. 7.10 Trade Practices Act 1974 Pt V …. 1.5 s 52 …. 9.47, 21.30 Venture Capital Act 2002 …. 4.55 Australian Capital Territory Associations Incorporation Act 1991 …. 4.65, 4.67 First Corporate Law Simplification Act 1995 …. 5.2 s 114 …. 5.2 Partnership Act 1963 …. 3.13, 4.1 s 5 …. 4.1 s 6 …. 4.8

s 7 …. 4.13 s 7(2) …. 4.14 s 7(3) …. 4.15 s 7(4) …. 4.16 s 7(4)(a) …. 4.17 s 7(4)(b) …. 4.18 s 7(4)(c) …. 4.19 s 7(4)(d) …. 4.20 s 7(4)(e) …. 4.21 s 9 …. 4.11 s 9(1) …. 4.22 s 10 …. 4.11 s 11(1) …. 4.23 s 13(1) …. 4.25 s 13(2) …. 4.25 s 14(1) …. 4.26, 4.27 s 14(2) …. 4.26, 4.27 s 15(1) …. 4.29 s 16(1) …. 4.26, 4.28 s 17 …. 4.30 s 18 …. 4.7 s 23 …. 4.3 s 24(1) …. 4.39 s 29 …. 4.38 s 29(1) …. 4.36 s 29(2) …. 4.37 s 29(5) …. 4.34 s 29(6) …. 4.35

s 30 …. 4.43 s 31 …. 4.44 ss 33–35 …. 4.32 s 38(1) …. 4.41 s 39 …. 4.44 s 41 …. 4.46 s 45 …. 4.49 s 48(1) …. 4.48 s 50 …. 4.50 Trustee Act 1925 …. 3.45 New South Wales Associations Incorporation Act 2009 …. 4.65–4.67, 4.74 Associations Incorporation Regulation 2016 …. 4.74 Charitable Fundraising Act 1991 …. 4.58 Civil Liability Act 2002 …. 7.5 Crimes Act 1900 …. 15.23 Miscellaneous Acts Amendment (Directors’ Liability) Act 2012 …. 7.9 Partnership Act 1892 …. 3.13, 4.1, 4.51 s 1 …. 4.8 s 1B(1) …. 4.9 s 2 …. 4.13 s 2(1) …. 4.14 s 2(1)(2) …. 4.15 s 2(1)(3) …. 4.16 s 2(1)(3)(a) …. 4.17 s 2(1)(3)(b) …. 4.18 s 2(1)(3)(c) …. 4.19

s 2(1)(3)(d) …. 4.20 s 2(1)(3)(e) …. 4.21 s 5 …. 4.11 s 5(1) …. 4.23 s 6 …. 4.11 s 7(1) …. 4.23 s 9(1) …. 4.25 s 10(1) …. 4.26, 4.27 s 11(1) …. 4.29 s 12(1) …. 4.26, 4.28 s 13 …. 4.30 s 14 …. 4.7 s 19 …. 4.3 s 20(1) …. 4.39 s 24 …. 4.38 s 24(1) …. 4.34 s 24(1)(1) …. 4.36 s 24(1)(2) …. 4.37 s 24(1)(6) …. 4.35 s 25 …. 4.43 s 27 …. 4.44 ss 28–30 …. 4.32 s 33(1) …. 4.41 s 34 …. 4.44 s 36 …. 4.46 s 39 …. 4.49 s 42(1) …. 4.48 s 46 …. 4.1

s 50A …. 4.52 ss 51–52 …. 4.52 s 58 …. 4.52 s 65 …. 4.53 s 67 …. 4.53 s 75(2) …. 4.52 Trustee Act 1925 …. 3.45 Work Health and Safety Act 2011 …. 7.9 Northern Territory Associations Act 2003 …. 4.65, 4.67 Partnership Act 1997 …. 3.13, 4.1 s 3 …. 4.9 s 4 …. 4.1 s 5 …. 4.8 s 6 …. 4.13 s 6(1)(a) …. 4.14 s 6(1)(b) …. 4.15 s 6(1)(c) …. 4.16 s 6(1)(c)(i) …. 4.17 s 6(1)(c)(ii) …. 4.18 s 6(1)(c)(iii) …. 4.19 s 6(1)(c)(iv) …. 4.20 s 6(1)(c)(v) …. 4.21 s 9 …. 4.11, 4.23 s 10 …. 4.11 s 11(1) …. 4.23 s 13(1) …. 4.25

s 13(3) …. 4.25 s 14(1) …. 4.26, 4.27 s 15(1) …. 4.29 s 16(1) …. 4.26, 4.28 s 17 …. 4.30 s 18 …. 4.7 s 23 …. 4.3 s 24(1) …. 4.39 s 28 …. 4.38 s 28(1) …. 4.34 s 28(1)(a) …. 4.36 s 28(1)(b) …. 4.37 s 28(1)(f) …. 4.35 s 29 …. 4.43 s 31 …. 4.44 ss 32–34 …. 4.32 s 36 …. 4.46 s 37(1) …. 4.41 s 38 …. 4.44 s 43 …. 4.49 s 44 …. 4.50 s 46(1) …. 4.48 Trustee Act 1893 …. 3.45 Trustee Act 1907 …. 3.45 Queensland Associations Incorporation Act 1981 …. 4.65, 4.67 Partnership Act 1891 …. 3.13, 4.1

s 3 …. 4.9 s 5 …. 4.8 s 6 …. 4.13 s 6(1)(a) …. 4.14 s 6(1)(b) …. 4.15 s 6(1)(c) …. 4.16 s 6(1)(c)(i) …. 4.17 s 6(1)(c)(ii) …. 4.18 s 6(1)(c)(iii) …. 4.19 s 6(1)(c)(iv) …. 4.20 s 6(1)(c)(v) …. 4.21 s 8(1) …. 4.23 s 9 …. 4.11 s 10(1) …. 4.23 s 12(1) …. 4.25 s 13(1) …. 4.26, 4.27 s 14(1) …. 4.29 s 15(1) …. 4.26, 4.28 s 16 …. 4.30 s 17 …. 4.7 s 22 …. 4.3 s 23(1) …. 4.39 s 27 …. 4.38 s 27(1)(a) …. 4.36 s 27(1)(b) …. 4.37 s 27(1)(e) …. 4.34 s 27(1)(f) …. 4.35 s 28 …. 4.43

s 30 …. 4.44 ss 31–33 …. 4.32 s 36(1) …. 4.41 s 37 …. 4.44 s 39 …. 4.46 s 42 …. 4.49 s 45(1) …. 4.48 s 47 …. 4.50 s 48 …. 4.1 s 51(3) …. 4.52 s 56(1) …. 4.52 Partnership (Limited Liability) Act 1988 …. 4.51 s 4(1) …. 4.52 s 7 …. 4.52 s 10 …. 4.53 s 11 …. 4.53 Trustee Act 1973 …. 3.45 South Australia Associations Incorporation Act 1985 …. 4.65, 4.67 Partnership Act 1891 …. 3.13, 4.1, 4.51 s 1 …. 4.8 s 1B(1) …. 4.9 s 1C(1) …. 4.1 s 2 …. 4.13 s 2(1)(a) …. 4.14 s 2(1)(b) …. 4.15 s 2(1)(c) …. 4.16

s 2(1)(c)(i) …. 4.17 s 2(1)(c)(ii) …. 4.18 s 2(1)(c)(iii) …. 4.19 s 2(1)(c)(iv) …. 4.20 s 2(1)(c)(v) …. 4.21 s 5 …. 4.11 s 5(1) …. 4.23 s 6 …. 4.11 s 7(1) …. 4.23 s 9(1) …. 4.25 s 10(1) …. 4.26, 4.27 s 11(1) …. 4.29 s 12(1) …. 4.26, 4.28 s 13 …. 4.30 s 14 …. 4.7 s 19 …. 4.3 s 20(1) …. 4.39 s 24 …. 4.38 s 24(1)(a) …. 4.36 s 24(1)(b) …. 4.37 s 24(1)(e) …. 4.34 s 24(1)(f) …. 4.35 s 25 …. 4.43 s 27 …. 4.44 ss 28–30 …. 4.32 s 33(1) …. 4.41 s 34 …. 4.44 s 36 …. 4.46

s 39 …. 4.49 s 42(1) …. 4.48 s 44 …. 4.50 s 47 …. 4.52 s 51 …. 4.52 s 56 …. 4.52 s 58 …. 4.53 s 59 …. 4.53 s 63 …. 4.53 s 75(2) …. 4.52 Trustee Act 1936 …. 3.45 Tasmania Associations Incorporation Act 1964 …. 4.65, 4.67 Limited Partnership Act 1908 …. 4.51 s 4 …. 4.53 s 4(2) …. 4.52 s 5 …. 4.52 s 13 …. 4.52 Mercantile Law Act 1935 …. 4.3 Partnership Act 1891 …. 3.13, 4.1 s 4 …. 4.9 s 5 …. 4.1 s 6 …. 4.8 s 7 …. 4.13 s 7(a) …. 4.14 s 7(b) …. 4.15 s 7(c) …. 4.16

s 7(c)(i) …. 4.17 s 7(c)(ii) …. 4.18 s 7(c)(iii) …. 4.19 s 7(c)(iv) …. 4.20 s 7(c)(v) …. 4.21 s 10 …. 4.11, 4.23 s 11 …. 4.11 s 12 …. 4.23 s 14 …. 4.25 s 15 …. 4.26, 4.27 s 16 …. 4.29 s 17 …. 4.26, 4.28 s 18 …. 4.30 s 19 …. 4.7 s 24 …. 4.3 s 25(1) …. 4.39 s 29 …. 4.38 s 29(a) …. 4.36 s 29(b) …. 4.37 s 29(e) …. 4.34 s 29(f) …. 4.35 s 30 …. 4.43 s 32 …. 4.44 ss 33–35 …. 4.32 s 38(1) …. 4.41 s 39 …. 4.44 s 41 …. 4.46 s 44 …. 4.49

s 47(1) …. 4.48 s 49 …. 4.50 Trustee Act 1898 …. 3.45 Victoria Associations Incorporation Act 1981 …. 4.75 Associations Incorporation Reform Act 2012 …. 4.65, 4.67, 4.75 Children’s Services Act 1996 …. 7.8 s 26 …. 7.8 s 27 …. 7.8 Children’s Services Act 1996 …. 7.10 Partnership Act 1958 …. 3.13, 4.1, 4.51 s 3(1) …. 4.9 s 4 …. 4.1 s 5 …. 4.8 s 6 …. 4.13 s 6(1) …. 4.14 s 6(2) …. 4.15 s 6(3) …. 4.16 s 6(3)(a) …. 4.17 s 6(3)(b) …. 4.18 s 6(3)(c) …. 4.19 s 6(3)(d) …. 4.20 s 6(3)(e) …. 4.21 s 9 …. 4.11, 4.23 s 10 …. 4.11 s 11 …. 4.23 s 13 …. 4.25

s 14(1) …. 4.26, 4.27 s 15 …. 4.29 s 16 …. 4.26, 4.28 s 17 …. 4.30 s 18 …. 4.7 s 23 …. 4.3 s 24(1) …. 4.39 s 28 …. 4.38 s 28(1) …. 4.36 s 28(2) …. 4.37 s 28(5) …. 4.34 s 28(6) …. 4.35 s 29 …. 4.43 s 31 …. 4.44 ss 32–34 …. 4.32 s 37(1) …. 4.41 s 38 …. 4.44 s 40 …. 4.46 s 43 …. 4.49 s 46 …. 4.48 s 48 …. 4.50 s 50 …. 4.52 s 52 …. 4.52 s 58 …. 4.52 s 61 …. 4.53 s 65 …. 4.53 s 67 …. 4.53 s 75(2) …. 4.52

Trustee Act 1958 …. 3.45 Western Australia Associations Incorporation Act 2015 …. 4.65–4.67, 4.75 Limited Partnership Act 1909 …. 4.51 s 4(2) …. 4.52 s 5 …. 4.52 s 6 …. 4.53 s 13 …. 4.52 Partnership Act 1895 …. 3.13, 4.1 s 3 …. 4.9 s 6 …. 4.1 s 7 …. 4.8 s 8 …. 4.13 s 8(1) …. 4.14 s 8(2) …. 4.15 s 8(3) …. 4.16 s 8(3)(a) …. 4.17 s 8(3)(b) …. 4.18 s 8(3)(c) …. 4.19 s 8(3)(d) …. 4.20 s 8(3)(e) …. 4.21 s 13 …. 4.11 s 14 …. 4.23 s 16 …. 4.25 s 17 …. 4.26, 4.27 s 18 …. 4.29 s 19 …. 4.26, 4.28

s 20 …. 4.30 s 21 …. 4.7 s 26 …. 4.23 s 29 …. 4.3 s 30(1) …. 4.39 s 34 …. 4.38 s 34(1) …. 4.36 s 34(2) …. 4.37 s 34(5) …. 4.34, 4.35 s 35(1) …. 4.43 s 38 …. 4.44 ss 39–41 …. 4.32 s 44(1) …. 4.41 s 45 …. 4.44 s 47 …. 4.46 s 50 …. 4.49 s 55(1) …. 4.48 s 57 …. 4.50 Trustee Act 1962 …. 3.45 United Kingdom Companies Act 1862 …. 1.2, 1.3, 5.1 Insurance Contracts Act 1984 s 17 …. 5.5 Joint Stock Companies Registration and Regulation Act 1844 …. 1.2 Limited Liability Act 1855 …. 1.2 Partnership Act 1890 …. 4.1 United States

Bankruptcy procedure Ch 11 …. 22.38 Sarbanes-Oxley Act 2002 …. 1.6

Contents Preface Table of Cases Table of Statutes 01

The Context of Australian Corporate Law

02

Australian Securities and Investments Commission: Role and Powers

03

Business Structures

04

Partnerships and Associations

05

Incorporation and its Effects

06

Internal Governance: Constitution and Replaceable Rules

07

Corporate Liability: Tort, Crime and Contract

08

Promoters: Duties and Liabilities

09

Corporate Fundraising

10

Debt Finance

11

Share Capital and Transactions Affecting Share Capital

12

Membership Rights and Meetings

13

Corporate Governance

14

Directors and Officers

15

Directors’ and Officers’ Duties: Good Faith and Proper Purposes

16

Directors and Officers: Conflicts of Interest

17

Directors and Officers: The Duty of Care and Diligence

18

Directors and Officers: Corporate Governance During Times of Financial Distress

19

Members’ Remedies

20

Accounts, Auditors and Dividends

21

Financial Services, Managed Investment Schemes and Financial Markets

22

External Administration and Insolvency

Index

[page 1]

The Context of Australian Corporate Law

CHAPTER 1 What is a corporation? Historical development of corporate law Origins of corporate law Introduction of corporate law into Australia Search for uniform corporate laws Regulating corporations International comparison Reforming corporate law Regulating corporations: differing perspectives Corporate social responsibility Comparing theoretical perspectives Changing role of corporations How to use the Corporations Act 2001 (Cth)

[page 2]

The Context of Australian Corporate Law Learning Objectives After completing this chapter you should be able to: Outline the historical origins of the Corporations Act 2001 (Cth). Explain the legal significance of having a Commonwealth corporations statute rather than the previous state-based laws. Provide an overview of how corporations are regulated in Australia. Explain how theory influences the regulation of corporations in Australia.

[page 3]

Introduction This book aims to guide business students through Australian corporate law. Companies form a large part of the modern commercial landscape and operate in many areas of daily life. Companies were the original backbone of the Industrial Revolution in the 1800s and a number of global companies can be dated from the 1850s to 1920s (such as Cadbury Chocolate or Johnson & Johnson). In the modern era of technology, some companies which did not exist a decade ago are now household names and worth billions of dollars, for example, Google Inc. The global financial crisis (GFC) that began in 2007 generated extensive public debate about the role and impact of corporations in society. In particular, questions of corporate governance standards and the protection of investors from perceived greedy executives, hedge funds, sovereign wealth funds, derivatives traders and a whole host of economic bogeymen has brought the role of the corporate law and the extent of government regulation into the public’s consciousness. What is a corporation and why has it flourished? Why are companies popular legal structures for conducting business? How are companies managed and what are the duties of company officers? Why have accountability and transparency issues (that is, corporate governance practices) emerged as issues of critical importance? How are shareholders’ interests legally protected? Most importantly for our purpose, what role does the law play in answering these questions? This book will assist students to comprehend the issues underlying these important questions. This book will guide students through the life cycle of the corporation, from registration (birth), to expansion through corporate fundraising, financial services (adolescence to adulthood), and finally to death (insolvency and deregistration). Where possible, classic historic cases (which set out the legal principles) are contrasted with contemporary Australian cases, which explain the statutory and common law evolution of corporate law.

This introductory chapter aims to place the corporation, and with it corporate law, within a broader social and political landscape. In later chapters we focus more specifically on a detailed examination of the rules and principles of Australian corporate law. For now, let’s first consider what is meant by a ‘corporation’.

What is a corporation? 1.1

The Butterworths Encyclopaedic Legal Dictionary defines a corporation as ‘a legal entity created by charter, prescription, or legislation’. Wikipedia defines a corporation in similar terms as ‘a legal entity which has a separate legal personality from its members’. The Pocket Oxford English Dictionary, on the other hand, defines a corporation as ‘a large company’. Compare these concepts of the corporation with the definition provided in the Corporations Act 2001 (Cth), which is the main piece of legislation regulating companies in Australia. Section 57A defines a corporation as including ‘a company’. This then raises further questions: What is a company and how is it different from a corporation? Section 9 of the Act, which is known as the ‘Dictionary’, is a key definitional section and defines a company as being ‘a company registered under this Act’. [page 4] We can observe that the statutory meaning given to ‘corporation’ (by s 9 of the Corporations Act) is a rather instrumental definition (that is, a company registered under the Act). In contrast, the business world provides a much richer notion of a corporation — it is an evolving entity through which much of the world’s production and wealth flows. It is this idea that we see underpinning the use of the word corporation in a variety of ways: the ‘corporate agenda’, the ‘corporate sector’, ‘corporate social responsibility’, ‘corporate America’ etc. Later in this chapter (1.10) we will raise some of the social issues related to the use of corporations.

It is important, however, that we first consider the historical role of corporations and the development of corporate law.

Historical development of corporate law Origins of corporate law perpetual succession: this means that the enterprise and therefore the ownership of its assets does not expire with the death of the managers. A corporation continues in existence even when its shares are sold and its directors are replaced.

1.2

For most of history, corporate law has been regulated by company specific legislation (that is the Act of Parliament that creates a particular corporation) or through the development of common law principles. The concept of a legally separate entity with the power to own property and enter into legally binding contracts has existed for centuries. Since the Middle Ages, the Church has traditionally had legal recognition as a separate entity, known as a ‘corporation sole’. Legal recognition facilitated the ownership and transfer of property, and allowed the Church to engage in contractual relationships. Traditionally, local towns were also recognised as corporations (called ‘corporations aggregate’ because they involved multiple office holders). Towns were recognised as corporations to obtain the benefits of property ownership, contractual rights and perpetual succession. The notion of a corporation as a church or local government organisation seems inconsistent with our modern notion of a corporation being a business entity. Before businesses were given a general legal right to incorporate by legislation in 1844, it was possible to obtain separate legal status by obtaining permission from the Crown (by royal charter) or from Parliament (by a specific statute). These corporations were created for a particular purpose, such as to facilitate trade (with famous examples being the Hudson’s Bay Company and the British East India Company), to maintain a monopoly over an area of

business or to build public infrastructure services (such as railways and canals). This was a crucial aspect of the United Kingdom’s opportunity to facilitate the Industrial Revolution (from the previous agriculturalbased society). A company on the other hand was seen as a private enterprise, and was not fully recognised by law (through statute) until the first corporate law statute in 1844. In fact, such was the distrust held by the community for large aggregations of private business persons, and the fears about exploitation of passive investors, that there was actually a ban imposed on the formation of private companies under the Bubble Act in 1720 (later repealed in 1825 as a failure). The events leading up to the ban were not dissimilar to the frenetic, speculative activities leading up to the dot-com boom and bust of the 1990s. Registered companies in Australia have continued to grow by approximately 100,000 each year. Therefore, for most of history, the notion of a private business corporation was virtually non-existent. How then did the corporation become such a dominant commercial institution? After the industrial revolution, businesses increased in size and complexity, [page 5] which required ever-increasing amounts of capital, particularly in industries such as railways, manufacturing and financial services (that is banking and insurance). The demands for capital began to outstrip the provisions even of the wealthy, so businesses sought capital from the growing middle classes. These investors did not want to assume the potential losses for business over which they had little control and therefore sought out business structures that offered some limit on their potential liability. In addition, investors wanted a business structure that allowed them to lower their risk of investment by providing for transferable interests (and therefore risk) in the business. The rise of stock markets took place at the same time as the rise of giant megacorporations such as US Steel, the Ford Motor Company and the Standard Oil Company.

The requirements of transferable ownership, large numbers of capital providers and limited liability were not well suited to the dominant business structures of the time — partnerships and trusts. Therefore, entrepreneurs began to devise a range of complex business structures that were based on elements of partnership law, trust law and contract law. These enterprises were called ‘joint stock companies’, although importantly they were not registered like modern companies under the Corporations Act. Joint stock companies were often constructed as large partnerships, or were based on trusts (called a ‘deed of settlement’), and the key feature was that investors could sell their ’share’ of the enterprise to others, and thus minimise their exposure to corporate failure. Over time, these enterprises became so popular that the English Parliament decided to regulate them by passing the Joint Stock Companies Registration and Regulation Act 1844 (UK). This was the first statute law that recognised a general right to incorporate for a fee, through an administrative process, for private purposes. There was no longer any need to petition parliament or the monarch to create a corporation. It is also at this point in history when the difference in meaning between a corporation (incorporated under statute or royal charter) and a company (a private joint stock business that was largely unregulated) became less important. Now, it is common to use the words ‘corporation’ and ‘company’ interchangeably. As noted earlier, the Corporations Act now provides that a corporation includes a company registered under the Act. Companies registered under the 1844 Act, at that time, did not have limited liability. There was great concern at the time that allowing businesses to register on a large scale with limited liability would be harmful to society (for example, manufacturers making dangerous products who might have insufficient assets to pay victims and shareholders should be held liable). However, with developments in Europe, and America recognising limited liability, the British Government finally allowed shareholders in private companies to have limited liability from 1855.1 The passage of the Limited Liability Act 1855 (UK) was another legislative milestone, designed to facilitate the taking

of business risks by limiting the personal liability of shareholders. The Act also introduced a concept of auditors to review the company’s accounts and made companies obliged to use the word ‘Limited’ in its name so investors and creditors would know of the legal restrictions on liability. This can be contrasted with the use by American companies which has ‘Inc’ at the end of its name, meaning incorporated. The importance of limited liability is discussed further in Chapter 5. [page 6] The various corporate laws were consolidated in the Companies Act 1862 (UK) which represents the first comprehensive corporate law statute with many of the features of modern corporate law. Historically, Australian corporate law owes much to the Companies Act 1862 (UK) and its predecessors for its development.

Introduction of corporate law into Australia 1.3

The history of Australian corporate law has been characterised by the search for a single legislation to be applied uniformly throughout the country. For reasons associated with our federal system of government and the boundaries of law-making arising from the Commonwealth Constitution (discussed below), that search continues today despite the adoption of interim measures and the passage of the Commonwealth Corporations Act to overcome the lack of uniformity. Prior to Federation in 1901, Australia existed legally as separate individual colonies of Britain, and their corporate laws were largely copies of the British 1862 legislation. Even after Federation, state-based corporate laws continued to be largely copies of the English legislation as and when it was changed by the British Parliament.2 There are many reasons for the lack of individuality in Australian corporate laws.3 One of the main reasons was the fact that companies were simply not very popular as business structures in Australia both before and after Federation. Another reason was that corporate law, and

corporate regulation in particular, was seen as being largely administrative in nature. The notion of active government enforcement of corporate laws was not widely held. There was not even a separate government body responsible for ‘regulating’ corporations, but rather a clerk within a separate government department such as the registrar general’s department, who would perform administrative functions under corporate laws, but little investigation or prosecution of corporations was carried out by government. This stands in stark contrast to our present system where the federal corporate regulator, the Australian Securities and Investments Commission (ASIC), has over 1900 officers, an annual budget of over $350 million, and each year takes part in hundreds of civil and criminal trials against individuals and companies.

Search for uniform corporate laws 1.4

Uniform laws are an important consideration for local and international businesses investing in Australia. Uniformity in corporate law is desirable for the following reasons: • • • •

provides for business certainty; promotes investor and business confidence; reduces business costs through avoidance of duplication; and allows for greater business efficiencies. [page 7]

The development of uniform corporate laws in Australia was hampered by legal issues arising from the Commonwealth Constitution. Section 51 of the Constitution sets out the range of matters over which the Commonwealth Parliament (and therefore also the federal government which implements and enforces statute laws) has legislative authority. Section 51(xx) of the Constitution specifies that the power to make laws with respect to corporations extends, not to corporations in general, but

only with respect to trading and financial corporations formed within the Commonwealth, and foreign corporations. Based on judicial interpretation by the High Court in Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, it is now clear that the Constitution does not confer complete corporate law powers on the federal government to regulate all aspects of corporate law. The High Court placed heavy emphasis on the word ‘formed’ (contained in s 51(xx) above) and thus limited the federal government’s law-making powers to companies that had already been formed. As a result of this literal approach to judicial interpretation, and the restrictive effect of the decision, the incorporation and regulation of companies were left to the states. The early non-interventionist views of colonial and post-federal Australia did not last. States recognised that the lack of uniformity in corporate laws caused expense and inconvenience for business. The 1950s saw a string of corporate collapses, particularly in Victoria, which caused public concern about poor standards of corporate (particularly management) behaviour. Victoria made significant changes to its corporate laws in 1958, particularly through the introduction of statutory directors’ duties, and these changes were adopted by the other states to create what became known as the Uniform Companies Acts 1961. Overall, this first attempt at uniformity was unsuccessful due to failure by some states to adopt statutory amendments, resulting in the reemergence of legislative differences. Despite the adoption of relatively uniform corporate laws in the 1960s, the regulation of corporations remained in state control. Each state had a different regulator with different workforces, budgets and priorities. This was problematic for businesses that operated across state borders and had to deal with several regulatory agencies. This fragmentation of regulation also facilitated rogue businesses that could exploit differences in regulatory approaches between the states. By the late 1970s it was recognised that a more uniform approach to regulation was needed, which gave rise to the Corporate Affairs Commissions (or CACs), enabling states to co-operate more actively in the regulation and enforcement of corporations in Australia. However, the separate

operation of corporate regulators was plagued by inconsistencies and was largely ineffective. The early 1980s saw the introduction of another set of uniform corporate laws, known as the National Co-operative Scheme. The Companies Code, the centrepiece of the reforms, was passed by all of the states. The Co-operative Scheme provided a more consistent, uniform approach to corporate regulation and was an improvement to the previous attempt in 1961, described earlier. Other elements of the reform package included a Takeovers Code, Securities Industry Code and a Futures Industry Code. Significantly, the Co-operative Scheme also introduced a new regulator known as the National Companies and Securities Commission (NCSC), which became the national corporate watchdog and replaced the CACs of each state. The NCSC was responsible for formulating policy and administering and enforcing corporate law. The NCSC would later form the basis of the current corporate watchdog, ASIC. [page 8] Although the Co-operative Scheme was designed to provide a national regulatory approach to corporate law, it operated in an unsatisfactory manner due to its flawed structure. For example, the Co-operative Scheme lacked effective accountability structures due to diffused ministerial responsibility. Its governance was determined by consultation with the states. The lack of consistent and strong national direction ultimately led to a constitutional takeover of corporate law by the Commonwealth Parliament. By the end of the 1980s, particularly after several large corporate collapses, the federal government recognised that a national law was needed. The Corporations Law Scheme, underpinned by the passage of the Corporations Act 1989 (Cth), was a scheme where the Commonwealth Parliament passed the Corporations Law in the Australian Capital Territory (ACT) and each state passed legislation

applying the Commonwealth legislation as its own law. Each state agreed to amend their legislation as and when the Australian Capital Territory law was changed. The Commonwealth chose to pass its law in the Australian Capital Territory to avoid constitutional problems as the Australian Capital Territory is not a ’state’ under the Constitution, and therefore the Commonwealth has greater scope to make laws that operate there. With the Corporations Law came another new regulator, this time a truly national regulator funded by, and accountable to, the federal government — the Australian Securities Commission. Formed subsequent to the passage of the Australian Securities Commission Act 1989 (Cth), it was later named the Australian Securities and Investments Commission (ASIC). The Corporations Act 1989 (Cth), however, only came into effect in 1991 due to delays caused by judicial challenges and political controversies. Some of the states feared a loss of the revenue stream arising from the incorporation of companies and the loss of corporate law-making power. These concerns prompted some state governments to launch a constitutional challenge on the validity of the Commonwealth legislation. In New South Wales v Commonwealth (1990) 169 CLR 482, the High Court reaffirmed its earlier decision in the Huddart Parker case and held that the statutory provisions dealing with the incorporation of companies were constitutionally invalid (for the same reason discussed earlier). In an attempt to achieve uniformity, a compromise was reached between the federal government and the states in Alice Springs in 1990. In exchange for sharing power, the states agreed to pass legislation applying the amended Commonwealth legislation as its own law. At the enforcement level, the states also agreed to ‘federalise’ the application of corporate laws which meant that the law enforcement agencies of the state and federal governments, including the courts, could enforce each other’s corporate laws. This agreement was achieved by the passage of cross-vesting legislation (allowing the federal matters to be heard in state courts and vice versa).

This co-operative scheme lasted only 10 years (1991–2001) due to the constitutional crisis that erupted in the late 1990s. At that time, the High Court of Australia decided several cases that effectively ruled that the federal courts and federal regulators could not enforce the Corporations Law, which as noted above was based primarily on state legislation.4 This led the states to voluntarily give up their constitutional powers to register companies to the Commonwealth, and the introduction of the first truly national corporate legislation [page 9] in Australia’s history: the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act). The delegation of authority from states to the Commonwealth for corporate laws occurs every five years and is required to be renewed.

Regulating corporations5 1.5

There have been calls in the media to ask the government to review the high cost of compliance with the onslaught of so many changes in the financial services laws over the last few years. The federal government is attempting to cut red-tape by removing many redundant laws and creating more national harmonisation, but it is a slow process as often all states and territories must agree to the proposed changes. A common complaint is that there are too many regulators in corporate law and in particular the financial services industry. This causes inefficiencies, as well as regulatory fatigue for governance professionals. It also begs an important question as to whether there is an unnecessary overlap between ASIC, the Australian Prudential Regulatory Authority (APRA), the Reserve Bank of Australia (RBA), the Australian Taxation Office (ATO), the Foreign Investments Review Board (FIRB) and the Australian Competition and Consumers Commission (ACCC), which all have some jurisdiction over companies.

APRA was created by the Australian Prudential Regulation Authority Act 1998 (Cth), which stipulates in s 8: (1) APRA is established for the purpose of regulating bodies in the financial sector in accordance with other laws of the Commonwealth that provide for prudential regulation or for retirement income standards, and for developing the administrative practices and procedures to be applied in performing that regulatory role. (2) In performing and exercising its functions and powers, APRA is to balance the objectives of financial safety and efficiency, competition, contestability and competitive neutrality. Accordingly, APRA is the prudential regulator of the financial services industry. It oversees banks, credit unions, building societies, general insurance and reinsurance companies, life insurance, friendly societies and most members of the superannuation industry. More importantly, its impact is large because APRA currently supervises institutions holding trillions of dollars in assets for 20 million Australian depositors, policyholders and superannuation fund members. APRA’s mission, in short, is to establish and enforce prudential standards and practices designed to ensure that, under all reasonable circumstances, financial promises made by institutions it supervises are met within a stable, efficient and competitive financial system.6 In more recent times, APRA has been drawn into the debate concerning the seemingly high salaries paid to banking and finance executives, by being asked to set standards for remuneration practices in the finance sector. [page 10] On the other hand, ASIC regulates companies and the securities industry in Australia. The ASIC Act also contains provisions for monitoring and regulating the consumer protection aspects of financial services, which closely follow the consumer protection provisions of the Australian Consumer Law, which is contained in Sch 1 of the Competition and Consumer Act 2010 (Cth) (formerly known as Pt V of

the Trade Practices Act 1974 (Cth)). The consumer protection provisions applicable in relation to financial services are found in the ASIC Act rather than the Competition and Consumer Act, with administrative responsibility for consumer protection in the financial services sector resting with ASIC. ASIC’s aim is to promote confidence in Australia’s financial markets, corporations and businesses. ASIC’s powers are much broader than APRA because the corporate regulator monitors licensed financial markets and oversees thousands of licensed financial services businesses. In addition, ASIC acts against misleading and deceptive conduct in superannuation, insurance, managed funds, deposit accounts and credit. ASIC also manages a public database comprising information from Australia’s 1.9 million corporations, and regulates company fundraising, restructures and winding-ups: see Chapter 2. It is possible to review the two regulatory agencies over some key performance indicators which are disclosed in their annual reports. Over the last seven years the budgets of both ASIC and APRA have grown beyond the rate of inflation. Staff numbers have generally grown at a lower rate. Tables 1.1 and 1.2 show the operating expenses and income of the agencies, as well as the number of employees and institutions/companies they regulate. Often the size of the agencies is also linked to the importance of its function. This is reflected when comparing ASIC and APRA’s size and budget. It is clear from the tables that the regulatory size of ASIC is much bigger than that of APRA. This is self-evident given that the regulatory scope of ASIC is much broader than that of APRA. Table 1.1 APRA in a Snapshot7

These numbers seem insignificant when looking at ASIC’s statistics. [page 11] Table 1.2 ASIC in a Snapshot8

In the case of ASIC and APRA, though they are divided along functional, organisational and funding lines, many facets of their regulatory activities require close co-ordination. Comparatively, ASIC has a broader scope of regulatory activities and APRA is a subset of the range of companies ASIC has to oversee.

International comparison 1.6

Different countries of the world organise their corporate law regulation in different ways. New Zealand and the United Kingdom have Companies House as the administrator of company registrations and information about company officers (directors), but have separate securities and exchange regulators. The United Kingdom Department of Business, Innovation and Skills has the regulatory portfolio

responsibility, compared to the Australian Commonwealth Treasury. Constitutional issues require the United States to make a conscious split between company law under United States state law and securities regulation under United States federal law. The 1929 Wall Street Crash caused the United States to completely re-think its securities and stock exchange laws and acted as the catalyst to create the United States Securities and Exchange Commission (SEC). In 2000–01, the massive losses by Enron and WorldCom gave rise to large scale regulatory investigations and huge corporate bankruptcies, and eventually the passing of the famous Sarbanes-Oxley Act 2002. In recent times, the GFC crisis has again generated debate about the level and adequacy of government regulation and the powers of regulators, particularly when trillions of United States dollars are being spent on propping up financial companies and assisting corporate and personal borrowers from bankruptcy. Australia previously relied on state/territory company law, which was broadly codified under the Companies Codes. However, since 1991 there has been an attempt to maintain a national system with a single federal regulator. This means that ASIC has a number of functions rolled into one compared to other jurisdictions, which separate insolvency from company administration (registration and searches) and securities trading and licensing. There is broad international co-operation through the International Organisation of Securities Commission (IOSCO). This organisation is made up of member agencies (such as ASIC) which have resolved to: • •

co-operate together to promote high standards of regulation in order to maintain just, efficient and sound markets; exchange information on their respective experiences in order to promote the development of domestic markets; [page 12]

• •

unite their efforts to establish standards and an effective surveillance of international securities transactions; and provide mutual assistance to promote the integrity of the markets by a rigorous application of the standards and by effective enforcement

against offences. It is worth noting that the common law system is only applied in less than a third of the world’s legal systems.

Reforming corporate law 1.7

Australian corporate law has undergone an extensive, seemingly neverending, period of reform. Over the last 20 years, we have seen regular piecemeal reforms every year to the Corporations Act, with seven amending Acts in the first six months of 2017 alone. There is no indication that the process of corporate law reform has finished. The government, its Treasury Department and formerly the Corporations and Markets Advisory Committee (CAMAC) have undertaken several major reviews of various corporate law issues including directors’ duties, insolvency, corporate restructuring and securities regulation. CAMAC has, for example, considered the following policy issues as part of the current law reform agenda:9 • • • • • •

corporate duties below board level; personal liability for corporate fault; social responsibilities of corporations; market integrity; management investment schemes; and the role of the Annual General Meeting.

In 2015 the government introduced a Bill into federal parliament to abolish CAMAC with its responsibilities transferred to Treasury, but the Bill did not pass before the federal election and lapsed. A new Bill was introduced on 22 June 2017 (Statute Update (Smaller Government) Bill 2017) and at the time of writing had not yet passed the Parliament. CAMAC has for the past several years been stripped of all of its responsibilities and funding.

Regulating corporations: differing perspectives Corporate social responsibility 1.8

The rapid trend towards globalisation of products and financial services and the resultant social and environmental impact has led to a growing movement supporting ‘corporate social responsibility’. Some commentators argue that corporations should have moral obligations that are enforceable by law. Economists, such as Professor Milton Friedman, provide another perspective. The Nobel Prize winning economist recently queried in the [page 13] film The Corporation: ‘Can a building have social responsibility?’10 Professor Friedman’s point is that a corporation is not a real person: it does not have feelings or thoughts or intentions. In Chapter 7 we return to this issue of attributing intention to a corporation. However, the notion that a corporation is treated as a legal person, when it is not in fact real, poses a problem for government regulation. If real people are subject to legal duties and obligations, then how should a corporation, which is treated as real by the law, be regulated? Much of the debate about corporate social responsibility can be reduced to how we view the role of corporations within society. However, if we stop for a moment and change the focus to other business entities, such as partnerships, we see that there is something odd about asking the question: ‘Should partnerships have social responsibility?’ The unease we feel at this question is derived from the fact that a partnership is not a separate legal entity. The partnership (with the exception of limited partnerships discussed in Chapter 4) is nothing more than the sum of its partners. When a partnership incurs a debt, it is the partners collectively who bear the responsibility.

Why then does the issue of corporate social responsibility provoke such a forceful debate? The answer lies in the nature of the corporation itself: it is treated as separate and distinct from its owners, managers and employees. A corporation has a separate legal identity, which means it can own property and incur contractual liabilities: see Chapters 5 and 7. Put simply, for the purposes of the law, a corporation is a person with all of the rights and obligations of a person. This legal privilege enjoyed by companies is a double-edged sword. Companies can be used to engage in high-risk commercial activities and to pursue innovative and creative activities that deliver enormous economic benefits to society. For example, without the prospect of limited liability, the railway line would probably have not been invented. However, either through negligence or design, companies are also capable of inflicting pain and causing damage to the communities in which their business is conducted. For example, companies have been involved in disastrous environmental problems (such as the collapse of a dam at mines in Brazil connected with large mining companies BHP Billiton and Rio Tinto), or the subsidiary of United States chemical company Union Carbide that poisoned thousands of Indians in the Bhopal disaster in the 1980s). More recently, subsidiaries of James Hardie Industries (producer of building products and former asbestos manufacturer) were separated from the asset-rich parent company with the purported intention to isolate liability for personal injury and death claims arising from dangerous activities formerly carried on by the company. If corporations are treated by the law as persons, what sort of persons are they? Is a corporation a member of society? Some would argue that corporations are no more than a legal fiction that facilitates contractual relationships (the nexus of contracts theory is discussed further below). Others would argue that corporations are members of society, and should bear the rights and responsibilities of ordinary persons. This discussion involves a consideration of different theoretical perspectives of the corporation.

Comparing theoretical perspectives11 1.9

One of the first, and most influential, theories of the corporation was the

concession theory. This viewpoint argues that a corporation is a privilege granted by the state (either the parliament or the monarch) and therefore its affairs are justifiably regulated [page 14] by laws, even quite detailed and extensive laws. The problem with concession theory is that corporations are no longer granted a limited ‘privilege’ of incorporation by crown or special parliamentary statute. The Corporations Act allows anyone (subject to the requirements of the Act, lodging the appropriate forms and paying the required fee to ASIC) to register a corporation. If anyone can establish a corporation, why should it be seen as being a special privilege given by the government? One implicit feature of the concession theory is that it treats the corporation as being something that is capable of regulating, or at least capable of having its powers limited by regulation (in recognition of its privilege of registration and limited liability). In other words, the corporation is treated as a person created by law, and whose powers should therefore be regulated by law. However, as was famously noted by Lord Chancellor Thurlow, the corporation has ‘no soul to be damned and no body to be kicked’. Another perspective on the nature of the corporation is the law and economics approach. This perspective views the corporation not as a real person with rights and responsibilities, but rather as a nexus of contracts between autonomous individuals. The corporation acts as a nexus between arrangements of individuals, rather than acting on its own account. Thus, shareholders, creditors and employees are all providing capital to the corporation in the expectation they will receive a financial return by way of dividends (shareholders), interest payments (creditors) and wages (employees). The feature of the law and economics approach is that the corporation is not real; it merely facilitates the exercise of private rights, particularly the private property rights of owners of capital. If the corporation is seen as being a

collection of individual and private relationships, why should the government intervene to regulate? The distinction then lies between the contrasting notions of what role corporations should have in society — a public role with rights and responsibilities, or a private role as a mere market for facilitating bilateral contracts between capital providers. It is therefore appropriate to discuss how the role of corporations within our society has changed over time.

Changing role of corporations 1.10

From an historical perspective, corporations were treated as being created solely for the public benefit. This was because corporations up until the mid-1800s could only be created by an Act of Parliament or a Royal Charter. There was no general right to incorporate a private business. Thus, corporations were few in number and were established to perform particular public functions, such as the establishment of a railway or building a canal. As noted above, in 1844 the British Parliament passed a statute allowing for the general power to create a corporation by registration. This facilitated a change in public attitude that came to regard corporations as being private entities that were separate from government functions and were run to benefit their owners and managers. This is consistent with the changing focus of theoretical debates about corporations and regulation noted above. This change in attitude, from a public purpose (social entity) view to a private (property rights) view, was facilitated by the increasing popularity of private investment in corporations and the rise of stock markets across the developed world. Trading shares and other securities became more widespread and much social wealth was transferred [page 15] from individual entrepreneurial owner-managed businesses into huge corporations with billions in assets and earnings, tens of thousands of

workers and hundreds of thousands (sometimes millions) of shareholders. In such corporations, each shareholder holds only a tiny percentage of the votes attaching to shares in the corporation and therefore is unable to effectively control or supervise management.12 Therefore, in modern times, the corporation is seen as mainly a private institution that serves the purpose of facilitating investment and thus increasing social benefits through more efficient and profitable businesses and competitive markets. Indeed, in recent times much of Australia’s savings have been put into superannuation funds that invest heavily in private corporations whose securities are traded on stock markets around the world.13 The GFC that began in 2007 called into question the way that corporations operate, particularly in relation to how investments are managed, what information is disclosed and how executive remuneration is structured in large public corporations. The GFC caused capital markets to freeze up or fall to historical lows and huge financial institutions, such as AIG, Merrill Lynch and Royal Bank of Scotland, were brought to the brink of bankruptcy and supported through government intervention. Governments all around the world pumped hundreds of billions of dollars into their financial systems to attempt to stimulate confidence and growth. The GFC gave governments around the world impetus to re-regulate the financial system, particularly for systematically important institutions and overthe-counter (OTS) derivative transactions. Corporate law is not immune from the politicians’ need to be seen to be ‘doing something’.

•

Why is it necessary to regulate corporations? Why have attitudes to corporate regulation, and business regulation more broadly, changed over time?

How to use the Corporations Act 2001 (Cth)

1.11

The Corporations Act is divided into 29 Chapters and two Schedules. There were originally 1362 sections effective on 1 January 1991, when the Corporations Act commenced. However, as the various amendments have been made to the Act and to keep the structure logical, letters have been used with numbers to insert new provisions, taking the total number of sections to approximately 2500. See Table 1.3 which sets out the structure.

Table 1.3 Corporations Act Structure Chapter

Sections

Title

1

1–111Q

Introductory

2A

112–123

Registering a company

2B

124–167AA

Basic features of a company

2C

167A–178D

Registers

[page 16] Chapter

Sections

Title

2D

179–206M

Officers and employees

2E

207–230

Related party transactions

2F

231–247E

Members’ rights and remedies

2G

248A–253N

Meetings

2H

254A–254Y

Shares

2J

256A–260E

Transactions affecting share capital

2L

283AA–283I

Debentures

2M

285–344

Financial reports and audit

2N

345A–349D

Updating ASIC information about companies and registered schemes

2P

350–354

Lodgements with ASIC

5

410–600K

External administration

5A

601–601AL

Deregistration, and transfer of registration, of companies

5B

601BA–601DJ

Bodies corporate registered as companies and registrable bodies

5C

601EA–601QB

Managed investment schemes

5D

601RAA–601YAB

Licensed trustee companies

6

602–659C

Takeovers

6A

660A–669

Compulsory acquisitions and buy-outs

6B

670A–670F

Rights and liabilities in relation to Chapters 6 and 6A matters

6C

671A–673

Information about ownership of listed companies and managed investment schemes

6CA

674–678

Continuous disclosure

6D

700–742

Fundraising

7

760A–1101J

Financial services and markets

8

1200A–1200U

Mutual recognition of securities offers

9

1274–1369A

Miscellaneous

10

1370–1637

Transitional provisions

Schedule 2

1-1 to 105-1

Insolvency Practice Schedule (Corporations)

Schedule 3

Items 1–346

Penalties

Schedule 4

1–39

Transfer of financial institutions and friendly societies

[page 17] As well as legislation, it is important to remember the role of case law which is the backbone of the common law system. Many cases relate to the interpretation of the legislation, but other cases, as part of the common law system, can actually develop new principles over time. The doctrine of precedent (case law) is also important in fully understanding the legal framework of corporate law. A case of a superior court will bind the future decisions of inferior courts. Thus, a judgment of the High Court of Australia is binding on all other courts. However, a decision in a state Supreme Court would only be persuasive (and not binding) to other judges in other states. This can cause ambiguities in the law and thus the need for appeals and legislative intervention.

1. 2.

For a detailed review of the debate concerning the introduction of limited liability see T Orhnial, Limited Liability and the Corporation, Croom Helm, London, 1982. One exception to this was the creation of the ‘no liability’ companies by the colony

of Victoria in the 1890s. This was a novel innovation that was adopted by other colonies and, eventually, many other countries around the world. For a discussion of the historical introduction of corporate laws into the colonies and their development after Federation: see R McQueen, ‘Company Law as Imperialism’ (1995) 5 Australian Journal of Corporate Law 187; R McQueen, ‘An Examination of Australian Corporate Law and Regulation 1901-1961’ (1992) 15 University of NSW Law Journal 1; R McQueen, ‘Limited Liability Company Legislation — The Australian Experience’ (1991) 1 Australian Journal of Corporate Law 22. 3. This discussion is based on the detailed historical analysis undertaken by Professor Rob McQueen: see above n 2. 4. See, in particular, Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27; R v Hughes (2000) 202 CLR 535; [2000] HCA 22; and Bond v R (2000) 201 CLR 213; [2000] HCA 13. 5. This section draws on M A Adams, ‘Do We Need Dual Regulators in Financial Services?: Synergies in Establishing a Single Regulator’ (2006) 58(4) Keeping Good Companies 208. 6. Australian Prudential Regulatory Authority, About APRA Home at . 7. APRA, Annual Reports, 1999–2016. 8. ASIC, Annual Reports, 1999–2016. 9. See further . 10. See further . 11. This discussion represents only a brief overview of the rich theoretical debate concerning the nature and role of corporations within society. Further discussion is raised in Chapter 14. See also J Harris, Company Law: Theories, Principles and Applications, 2nd ed, LexisNexis Butterworths, Sydney, 2015, Ch 1; S Bottomley, K Hall, P Spender and B Nosthwory, Contemporary Australian Corporate Law, Cambridge University Press, 2017, Ch 2. 12. For a discussion of this change, see A Berle and G Means, The Modern Corporation and Private Property, Harcourt, Brace and World, New York, 1968. 13. In 2017, the Association of Superannuation Funds of Australia reported that superannuation funds passed $2.3 trillion: see .

[page 19]

Australian Securities and Investments Commission: Role and Powers

CHAPTER 2 Establishment, status and organisation Transparency and accountability Role Principal functions Register and regulate companies Receive and process information Register company auditors and liquidators Regulate financial markets and providers of financial services Regulate the creation of and trading in futures contracts Investigate contraventions of the corporations legislation

Investigate contraventions of the provisions of the consumer protection laws Powers Exemption power Investigations and information gathering [page 20]

Enforcement action after investigation Protection of private interests Obligations as to fairness Self-incrimination Legal professional privilege Duty of confidentiality Parliamentary inquiry into ASIC’s performance

[page 21]

Australian Securities and Investments Commission: Role and Powers Learning Objectives After completing this chapter you should be able to: Understand the law governing the establishment and organisation of the Australian Securities and Investments Commission (ASIC). Explain the role and functions of ASIC. Describe the general powers of ASIC. Comprehend the investigative powers of ASIC. Explain what action ASIC can take during the course of, or after completing, an investigation. Outline the safeguards afforded to individuals when an ASIC investigation is being conducted and explain the problems which exist in these safeguards.

Key Cases ASIC v DB Management Pty Ltd (2000) 199 CLR 321; [2000] HCA 7 ASIC v Hellicar (2012) 286 ALR 501; [2012] HCA 17

ASIC v Plymin (No 2) (2002) 20 ACLC 1756; [2002] VSC 356 ASIC v Vizard (2005) 23 ACLC 1309; [2005] FCA 1037 Australian Securities Commission v Zarro (1991) 6 ACSR 385; 10 ACLC 11 Laycock v Forbes (1997) 25 ACSR 659 National Companies and Securities Commission v News Corporation Ltd (1984) 2 ACLC 301 Otter Gold Mine Ltd v ASC (1997) 15 ACLC 1732; [1997] FCA 1199 R v Norton Smith (1998) 16 ACLC 1152; [1998] TASSC 48 Re Guardian Investments Pty Ltd; Wade v Guardian Investments Pty Ltd (1984) 2 ACLC 165 Sorby v Commonwealth (1983) 152 CLR 281

Key Sections Corporations Act 2001 (Cth) ss 464, 596A, 596B, 657, 1323, 1324 Australian Securities and Investments Commission Act 2001 (Cth) ss 1, 11, 12, 13, 19, 29, 49, 50, 68, 69, 93AA, 127, 244

[page 22]

Introduction The effectiveness of the law governing corporations, like any other law, depends on the mechanisms available for its enforcement. Recognising this, the Commonwealth Parliament has established an independent, public regulatory authority, the Australian Securities and Investments Commission (ASIC), to administer all aspects of Australia’s corporate law. ASIC is led by five Commissioners, accountable to the Commonwealth Government Minister and the Parliament, and is also held accountable through administrative and judicial review. Under its charter, ASIC is required to take whatever action it can take, and is necessary, in order to enforce and give effect to the laws of the Commonwealth that confer functions and powers on it: Australian Securities and Investments Commission Act 2001 (Cth) s 1(2)(g) (ASIC Act). The laws that confer functions and powers on ASIC include: • •

Corporations Act 2001 (Cth); and Australian Securities and Investments Commission Act 2001 (Cth).

These two pieces of legislation are commonly referred to as the corporations legislation: ASIC Act s 5. ASIC also has other regulatory functions under many other areas of the law, including superannuation, insurance, consumer credit, finance broking and banking. Thus, ASIC is also Australia’s corporate, markets and financial services regulator. However, for purposes of this chapter, ASIC’s primary responsibility is to administer the national scheme laws governing corporations in Australia. Accordingly, the focus in this chapter is on the work done by ASIC under the Corporations Act and the ASIC Act.

Establishment, status and organisation

2.1

ASIC was established in 1980 as the national corporate watchdog and was originally known as the National Corporations and Securities Commission (NCSC). However, in 1991, the NCSC and the Corporate Affairs Offices of the states and territories were replaced by the Australian Securities Commission (ASC) which, in turn, was renamed as the Australian Securities and Investments Commission (ASIC) in 1998 to reflect its expanded brief when additional functions were vested in ASIC. Since 1998 ASIC has been entrusted with the added responsibility of administering the laws designed to promote the integrity of the Australian payments system and the insurance and superannuation industries, with a view to enhancing the protection of the interests of consumers of financial products and services. Consequently, ASIC enforces and regulates company and financial services laws to protect investors, creditors and consumers.1In 2010 ASIC took on additional responsibilities for regulating trustee companies, consumer credit and finance broking (such as home loans, personal loans, credit card and consumer leases). On 1 August 2010, ASIC also assumed responsibility from the Australian Securities Exchange (ASX) for the supervision of trading on Australian licensed equity, derivatives and futures markets. [page 23] From 28 May 2012, ASIC became responsible for the national Business Names Register by taking over this responsibility from the states and territories. More than 1.4 million active business names were transferred to the new register. ASIC has published Regulatory Guide 235 Regulating your business name to assist people who wish to run a business in Australia using a distinctive business name (a name other than their own name). See further Chapters 3 and 4. The law establishing ASIC requires that it be composed of not less than three and not more than eight members: ASIC Act s 9. At least three members must be full- time members. Members are formally appointed by the Governor-General, on the recommendation of the responsible

Commonwealth Minister. Only people qualified by knowledge or experience in business, administration of companies, financial markets, financial products, financial services, law, economics or accounting may be nominated as members: ASIC Act s 9. The responsible Minister is the Commonwealth Treasurer. ASIC must have a chairperson and a deputy chairperson, both of whom are appointed by the Governor-General: ASIC Act s 10. ASIC is required to, and has, established a regional office in every state and territory to serve the interests of business communities around Australia. In 2015–16, the operating expenditure of ASIC was $371 million. A user-pays funding model has been introduced under the ASIC Supervisory Cost Recovery Levy Act 2017, effective 1 July 2017. This new law changes the way ASIC is funded. Under the new arrangements, regulated entities will receive an invoice for ASIC’s regulatory services delivered in the prior year.2

Transparency and accountability 2.2

ASIC is statutorily independent of the Commonwealth Government. However, in order to ensure its accountability to parliament, and ultimately to the public, ASIC is accountable to a Commonwealth Minister. The Parliamentary Joint Committee on Corporations and Financial Services provides parliamentary oversight of ASIC. Under s 12(1) of the ASIC Act, the Minister has authority to give written directions of a general nature to ASIC about the policies it should pursue or the priorities it should adopt in the performance of its duties. In practice, the directions power has been rarely exercised.3 It was last used in 1992 when the Commonwealth Government gave direction to ASIC regarding its relationship with the Commonwealth Director of Public Prosecution in the investigation and prosecution of serious corporate [page 24]

wrongdoing. To ensure the independent operation of ASIC and its objectivity, the Minister has no power to give ASIC directions about a particular matter. ASIC is also subject to external accountability by the Commonwealth Parliament. An additional level of transparency and accountability is provided by the review of decisions made by ASIC. The majority of ASIC’s powers and discretion are subject to judicial or administrative review (or both) by the Federal Court and the Administrative Appeals Tribunal respectively. Actions by members of ASIC are also subject to judicial review. As a consequence of the members being appointed by the Commonwealth, members of ASIC are officers of the Commonwealth for the purposes of s 75 of the Commonwealth Constitution.

Role 2.3

ASIC regulates Australian companies, financial markets, financial services organisations and professionals who deal and advise in investments, superannuation, insurance, deposit taking and credit. For the purposes of this chapter, discussion is confined to the traditional corporate watchdog function that ASIC performs over the 2.3 million Australian companies in existence. Following the referral by the states of their powers over corporations to the Commonwealth in 2001,4 Australia now has a national scheme for the regulation of companies. ASIC is responsible for administering this scheme of law. In discharging this responsibility, ASIC is required to strive to promote a fair, efficient and competitive capital market environment. More particularly, s 1(2) of the ASIC Act requires ASIC to strive to: •

•

maintain, facilitate and improve the performance of the financial system and the entities within that system in the interests of commercial certainty, reducing business costs, and the efficiency and development of the economy; promote confident and informed participation of investors and

consumers in the financial system;5 administer the law effectively and with a minimum of procedural requirements; receive, process and store, efficiently and quickly, the information given to ASIC; ensure that information is available as soon as practicable for access by the public; and take whatever action it can take, and is necessary, in order to enforce and give effect to the law.6

• • • •

In addition, ASIC is responsible for overseeing certain aspects of the Australian financial system and in promoting market integrity and consumer protection in relation to the Australian financial system: ASIC Act s 12A(3). [page 25] Importantly, ASIC also has some responsibility for law reform. ASIC is required to constantly examine the operation of the laws it administers, advise the Minister of any perceived deficiencies in the law and make recommendations to the Minister as to how these problems can be overcome: ASIC Act s 12A(5).

•

Although ASIC is dependent on its funding from the Commonwealth Government, why is it essential to ensure that ASIC performs its functions independently of the Commonwealth Government?

Principal functions 2.4

In the discharge of its responsibilities to administer the Corporations Act and regulate companies, ASIC performs a number of important

functions. These include the following.

Register and regulate companies 2.5

A very important function of ASIC is to register companies. The ‘company’ as a legal structure through which business is carried on has, over time, become increasingly popular. As of July 2016, there were 2.37 million registered companies in Australia. In 2015–16, ASIC registered 246,051 new companies. ASIC is responsible for regulating the activities of all companies operating in Australia. In 2015–16, ASIC raised $876 million for the Commonwealth in fees and charges, an increase of 6.4% from 2014–15. The increase in revenue is driven by continued net company growth coupled with fee indexation. It needs to be appreciated that ASIC is not the sole regulator of companies operating in Australia. Given the growing interdependence of markets, ASIC does not operate in isolation but rather as one link in a chain of economic and financial regulators promoting market integrity and consumer protection. Several other organisations also play a significant role in this respect. These include: •

•

The Australia Securities Exchange (ASX) Compliance – responsible for monitoring and enforcing compliance with ASX operating rules and for promoting standards of corporate governance among Australia’s listed companies. In August 2010 ASIC took over the regulation of stockbrokers and other market participants and this left the ASX largely supervising the Listing Rules.7 The Financial Reporting Council, the Australian Accounting Standards Board and the Auditing and Assurance Standards Board – these bodies play a crucial role in setting accounting standards. [page 26]

•

Professional bodies like CPA Australia and the Institute of Chartered Accountants in Australia and New Zealand – also significantly influence the setting of accounting standards.

•

The Australian Prudential Regulation Authority (APRA) – establishes and enforces prudential standards and practices for deposit-taking institutions, insurance companies and larger superannuation funds to ensure they meet their financial promises.

Receive and process information 2.6

ASIC receives and processes information about companies and makes this information available to interested parties. ASIC maintains a number of registers of companies, financial service providers and registered auditors and liquidators. These registers contain a lot of information in relation to the affairs of companies. Any document required to be lodged under the Corporations Act must be lodged with ASIC. ASIC keeps all of this information, in digital form, in a central database called ASCOT. The function of receiving and processing information is very beneficial to society as a whole. Information held by ASIC is generally available to the public. Interested members of the public can obtain relevant information about any registered company (for example, investors in it, its management or its financial condition) by searching the ASCOT database. During 2015–16, 90.7 million searches of ASIC’s database were undertaken by members of the public, other government agencies and information brokers. The two registers most searched were the companies register and the Business Names Register.

Register company auditors and liquidators 2.7

Under Pt 9.2 of the Corporations Act, ASIC is responsible for the registration of persons wishing to practise as auditors and liquidators in Australia. As of June 2016, there were 4483 registered company auditors and 707 registered liquidators.

Regulate financial markets and providers of financial services 2.8

The Corporations Act requires any person who wishes to carry on the

business of providing financial services (buying and selling financial products) to hold an Australian Financial Services (AFS) licence, unless exempted by the Minister. ASIC has the responsibility of licensing and supervising all financial service professionals. This includes operators of financial markets, clearing and settlement facilities as well as market participants. As of June 2016, ASIC has issued 5726 credit licences.

Regulate the creation of and trading in futures contracts 2.9

ASIC is responsible for the regulation of trading in futures contracts over commodities. The regulation of trading in futures is covered by the provisions of Ch 7 of the Corporations Act. [page 27]

Investigate contraventions of the corporations legislation 2.10

ASIC is responsible for the overall administration of the corporations legislation, including investigating suspected contraventions. During 2015–16, ASIC (in collaboration with the Commonwealth Director of Public Prosecutions) completed 175 major investigations, and secured 22 criminal convictions and 13 imprisonments. ASIC also completed 36 civil proceedings. During 2015–16, ASIC obtained $210.5 million in compensation or remediation for investors and financial consumers.

Investigate contraventions of the provisions of the consumer protection laws 2.11

ASIC is responsible for administering certain provisions of other laws designed to protect the interests of consumers. As part of this responsibility, ASIC undertakes investigations where it is suspected that a contravention of the relevant law may have occurred.

Powers

2.12

As noted earlier, ASIC is entrusted with the responsibility of administering the corporations legislation which protects investors in companies. To discharge this great responsibility effectively, ASIC has been vested with very wide powers. Under s 11(4) of the ASIC Act, ASIC has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions. ASIC’s extensive powers include: • • •

the power to exempt compliance with the Corporations Act; the power to investigate and gather information; and the power to commence civil proceedings and criminal action as part of its enforcement strategy.

Exemption power 2.13

Wide discretion has also been conferred on ASIC to exempt any person from the operation of some provisions of the Corporations Act. The matters in respect of which ASIC may exercise the powers of exemption are: • • • • •

financial reporting (ss 340–341); managed investment schemes (s 601QA); takeovers (s 655A); fundraising (s 741); and product disclosure statements (s 1020F).

Generally, ASIC uses its powers to modify the law or to exempt a person or persons from complying with certain aspects of the Corporations Act where it is satisfied that the cost of complying with the law is likely to significantly outweigh its overall benefit. ASIC exercises these powers through the issue of class orders or specific instruments. The power to make these instruments is conferred under the provisions listed above. [page 28] In ASIC v DB Management Pty Ltd (2000) 199 CLR 321; [2000] HCA 7, the High Court of Australia acknowledged that class orders (known as

legislative instruments since 2015) and other regulatory instruments issued by ASIC under its statutory exemption and modification powers can create, take away or modify the legal rights of individuals. As such, they have (in effect) the force of law. ASIC’s power to make and issue regulatory instruments is derived from the provisions of the Corporations Act.8 In order to provide guidance as to how it will exercise its discretionary and other powers, ASIC issues Regulatory Guides (formerly known as policy statements and practice notes). Unlike class orders (which are made under express statutory powers), Regulatory Guides do not have the force of law. They do, however, serve a very important function. Through them, ASIC informs the community of its interpretation of the Corporations Act. This assists the general community to better understand the operation of the Act. Members of the business community and other interested parties can then proceed to organise their affairs with reasonable certainty. For example, ASIC Regulatory Guide 217, Duty to Prevent Insolvent Trading: Guide for Directors (July 2010) sets out key principles to help directors understand and comply with their duty to prevent insolvent trading. It should be noted, however, that the issue of a regulatory guide or other guidance document on any matter does not mean that ASIC is bound to exercise its powers only in the manner set out in the published policy or guide. This was confirmed in Otter Gold Mine Ltd v ASC (1997) 15 ACLC 1732; [1997] FCA 1199.

Investigations and information gathering 2.14

To ensure compliance with the law, ASIC is vested with special powers of investigation and information gathering under Pt 3 of the ASIC Act. Where ASIC decides to undertake an investigation, it can require any person to render to it all necessary assistance in connection with the investigation.

Investigations subpoena: an order to produce documents; an order to attend before a court or public authority.

2.15

An essential element of the investigation process is information gathering. To facilitate this, ASIC is given very broad powers. It can examine any person of interest by subpoena and any relevant document. Through the exercise of these powers, ASIC may be able to gain access to all relevant information, documents and records. ASIC devotes substantial resources to the task of investigating suspected breaches of the law. In 2015–16, ASIC dealt with 9,751 reports of alleged misconduct, 1% more than in 2014–15. In 2015–16, ASIC received more misconduct reports in the corporate governance area and slightly fewer reports about market integrity and registry integrity. Under s 13 of the ASIC Act, ASIC is authorised to initiate an investigation if it suspects, on reasonable grounds, that:9 •

a contravention of the corporations legislation (other than the excluded provisions)10 may have been committed (s 13(1)(a)); [page 29]

•

•

•

•

a contravention of a law concerning the management of the affairs of a body corporate or managed investment scheme may have been committed (s 13(1)(b)(i)); a contravention of a law which contravention involves fraud or dishonesty in relation to a body corporate, managed investment scheme or financial products may have been committed (s 13(1)(b) (ii)); a contravention involving unacceptable circumstances within the meaning of the provisions of the Corporations Act dealing with takeovers may have occurred (s 13(2)); or a contravention of the consumer protection provisions (Pt 2 Div 2) of the ASIC Act may have been committed (s 13(6)).

ASIC cannot invoke its power of investigation on the basis of mere speculation. To be able to commence an investigation, it must be satisfied that any of the circumstances outlined above may have happened.

In ASIC v Plymin (No 2) (2002) 20 ACLC 1756; [2002] VSC 356, the Supreme Court of Victoria held that the power of investigation conferred on ASIC under s 13(1) may be exercised both for the purpose of determining whether to commence a criminal prosecution or to launch civil penalty proceedings under Pt 9.4B of the Corporations Act. ASIC’s power to commence an investigation may also be triggered by the receipt of a report from an insolvency practitioner who is administering the company: ASIC Act s 15. Insolvency practitioners (such as receivers and liquidators) are obliged to report on suspected breaches of the law. The role and powers of insolvency practitioners is discussed in Chapter 22. These circumstances aside, ASIC must carry out an investigation if it is directed to do so by the Minister. Under s 14 of the ASIC Act, the Minister has power to direct ASIC to investigate a particular matter if it is in the public interest to do so. There is a wide range of matters which may form the subject of an investigation at the direction of the Minister. Examples of these are set out in s 14(2) and include: • • • • • •

a contravention of the corporations legislation; the conduct of the affairs of a particular corporation; dealings in financial products; the establishment or conducting of financial markets; the provision of clearing and settlement facilities; or the giving of advice about financial products.

Apart from investigations that may be conducted as described above, the Corporations Act also enables ASIC to investigate the affairs of a company in certain other circumstances. summons: a document, issued by a court official, compelling a person to appear before a court.

Under s 596A, ASIC can apply to the court to issue a summons to a person who is or was an officer or provisional liquidator of a corporation to be examined about the corporation’s affairs. In a similar vein, s 596B permits ASIC to apply to the court to require any person who has taken part or been concerned in the examinable affairs11 of a company and has been, or may have been, guilty of misconduct in relation to the

corporation to appear before the court for examination. Again, under this provision, any person who may be able to give information about the examinable affairs of a [page 30] company can similarly be summoned, on the application of ASIC, to appear before the court to be examined about the affairs of the company.

Power to examine persons 2.16

Part 3 Div 1 of the ASIC Act deals with the examination of persons. Under s 19(2) of the ASIC Act, ASIC can, when carrying out an investigation, serve written notice on any person requiring that person to appear before it for examination on oath.12 At common law every person enjoys the right against self-incrimination. This protection is not available to any person required to appear before ASIC for examination – s 68(1) of the ASIC Act has removed this right. According to this section, it is not a reasonable excuse for any person required to do so to refuse to give information, sign a record or produce a book on the ground that to do so might tend to incriminate him or her or expose him or her to a penalty. The protections available to examinees under these circumstances are outlined below: see also Corporations Act s 1349.

Power to inspect books 2.17

In order to obtain information required to establish whether or not a contravention of the law may have been committed, ASIC may need to gain access to certain books and documents. ASIC has been granted wide, but not unlimited, powers to achieve this under Pt 3 Div 3 of the ASIC Act. It can subpoena for inspection any document required to be kept by the corporations legislation. ASIC can also require any person having possession of a book required to be kept by the corporations

legislation to deliver up that book for inspection: ASIC Act s 29(2). ASIC can give notice to produce books dealing with the affairs of the company (ASIC Act s 30)13 and books dealing with financial products and financial services: ASIC Act ss 31 and 32A. The notice to produce books extends to the books in the possession of the company’s auditor and liquidator: ASIC Act ss 30A and 30B. ASIC Act s 33 authorises ASIC to give a notice to produce documents in a person’s possession.14 Any notice requiring the production of specified books and documents must be in writing. [page 31]

Australian Securities Commission v Zarro (1991) 6 ACSR 385 Federal Court of Australia Facts: The ASC (now ASIC) required Westpac Bank to produce certain specified documents relating to the affairs of a company being investigated for breach of the corporations legislation. The common law has long established under principles of banking law that, as a general rule, a bank owes a duty of confidentiality to its customer. Westpac Bank refused to hand over the documents of its corporate customer to ASC, citing bank-customer confidentiality. Decision: The court held that the exercise of the ASC’s statutory obligations must override Westpac’s common law duty of confidentiality to its customer. Thus, Westpac Bank was bound to release the requested documents and make disclosure to ASC.

In order to protect the interests of private parties, certain limitations are placed on the power of ASIC to require the production of books. Under s 28 of the ASIC Act, this power may be exercised only in a limited set of circumstances. It may be used if the inspection of books and documents are necessary to enable ASIC to: • •

perform or exercise any of its functions and powers under the corporations legislation; determine whether any requirement of the corporations legislation

•

•

has been complied with; determine whether there has been a contravention of the corporations legislation, or a contravention concerning the management or affairs of a body corporate, or a contravention of that involves fraud or dishonesty in relation to the affairs of a body corporate or financial products; or effectively conduct any investigation commenced by it (under Pt 3 Div 1 of the ASIC Act).

Power to hold hearings 2.18

ASIC has power to hold hearings for the purposes of performing or exercising any of its functions and powers under the corporations legislation (other than the excluded provisions): ASIC Act s 51. A hearing may be held in public or in private: ASIC Act s 52(1).

Enforcement action after investigation 2.19

Through the exercise of its powers of investigation, ASIC may gain relevant information about the affairs of a company. Where this information reveals a contravention of the law, ASIC can utilise the information gained to commence criminal, civil or administrative proceedings against errant individuals or organisations. ASIC’s enforcement role is emphasised under s 1(2)(g) of the ASIC Act, which directs ASIC to take whatever action it can and is necessary in order to enforce and give effect to the corporations legislation. [page 32]

Power to initiate criminal proceedings 2.20

If, after conducting an investigation or examining any person, ASIC is of the view that a breach of the corporations legislation may have been committed and that any person involved ought to be prosecuted, it can initiate a criminal prosecution or cause one to be commenced against that person: ASIC Act s 49 and Corporations Act s 1315.

Under current practice, applying the guidelines established by ASIC and the Commonwealth Director of Public Prosecutions (DPP), ASIC prosecutes only minor regulatory offences.15 Where an investigation conducted by ASIC reveals a commission of serious breach or breaches of the corporations legislation, the matter is referred to the Commonwealth DPP for further action. In 2015–16, ASIC secured 30 convictions, of which 14 people were jailed.

Power to seek civil remedies 2.21

Following an investigation or examination conducted (as described above), ASIC may, if it is in the public interest to do so, commence proceedings seeking civil remedies from the courts: ASIC Act s 50.16 In these proceedings, based on public interest considerations, ASIC can take legal action in the name of a company without the need for the company’s consent. In such circumstances, ASIC may seek damages for fraud, negligence, default, breach of duty or other misconduct committed in connection with a matter to which the investigation or examination related. For example, since 2007, ASIC has launched over 19 legal actions for the benefit of investors in Westpoint, a property development company which collapsed in 2006.17 ASIC has thus far returned to investors about $160 million of the $388 million in losses caused to nearly 4000 investors. ASIC mounted legal actions against the former directors of Westpoint, its auditors and financial advisers – around $93 million of the $160 million represents compensation as a result of ASIC actions. Additionally, ASIC may seek orders excluding certain individuals from participation in the management of companies or from participating in the provision of financial services. For example, in 2013–14, ASIC had 62 people disqualified or removed from directing companies. Further, once ASIC commences an investigation or criminal or civil proceedings, it is empowered by s 1323 of the Corporations Act to seek protective orders for the preservation of corporate property. Relief commonly granted under this provision consists of orders freezing assets. ASIC is also empowered, under s 1324 of the Corporations Act, to

seek an injunction to restrain conduct which is or would be a breach of the Corporations Act. Section 1324(10) confers judicial discretion on the court to also make an award of damages. The commencement of an investigation into the affairs of a company also enables ASIC to apply to the court for the company to be wound up: Corporations Act s 464. Details of some outcomes achieved in the recent past as a result of civil action taken by ASIC are set out in Table 2.1. [page 33] Table 2.1 ASIC Remedies18

Full details as to enforcement actions taken by ASIC can be obtained from its annual reports, which are available at . For further discussion on legal aspects relating to directors’ duties, see Chapters 15–18.

ASIC v Vizard (2005) 23 ACLC 1309; [2005] FCA 1037 Federal Court of Australia Facts: Mr Vizard was a director of Telstra. ASIC commenced investigations into certain share purchases undertaken by Mr Vizard while he was a director of this publicly listed company. ASIC suspected that in 2000 Mr Vizard used confidential Telstra information, which he obtained in his capacity as a director of Telstra, to trade in the shares of three listed public companies namely, Sausage Software Ltd, Computershare Ltd and Keycorp Ltd. At the conclusion of its investigations, ASIC was satisfied that this was the case. Quite significantly,

Mr Vizard agreed with the allegations made by ASIC. ASIC commenced civil penalty proceedings in the Federal Court against Mr Vizard seeking the following orders: •

• •

declarations that Mr Vizard contravened the corporations legislation when he improperly used Telstra information to gain an advantage for himself or other parties (resulting in a conflict of interest); pecuniary penalties in such amount as the Federal Court considers appropriate for the contraventions; and a disqualification order prohibiting Mr Vizard from being involved in the management of companies.

Decision: The court found that Mr Vizard had breached his duties as a director of Telstra when he used confidential Telstra information to trade in the shares of three listed public companies as alleged by ASIC. The court made orders: • •

banning Mr Vizard from managing any corporation for 10 years; and requiring him to pay pecuniary penalties (civil fine) of $390,000 to the Commonwealth Government.

[page 34]

Power to accept enforceable undertakings 2.22

As an alternative to civil or administrative enforcement action, ASIC may accept a written undertaking from any person in connection with any matter over which it has control: ASIC Act ss 93AA and 93A. Once given, an enforceable undertaking may only be withdrawn or varied with the consent of ASIC. ASIC can apply to the court for appropriate relief if an undertaking given to it by a person is breached. Enforceable undertakings are not used as alternatives to criminal enforcement action. Enforceable undertakings are advantageous in a number of ways. In the first place, the giving of such an undertaking enables ASIC to achieve an outcome desired by it. For example, ASIC may seek an enforceable undertaking to secure compensation for aggrieved parties or to require a person to do or refrain from doing something. Quite significantly, this result may be achieved much more quickly than if the matter had proceeded to litigation. Once given, the undertaking is enforceable by court order. Enforceable undertakings can thus be used to promote compliance with

the law on a timely basis. As they are flexible and can be implemented swiftly, enforceable undertakings are commonly used by ASIC as a regulatory tool. The number of enforceable undertakings accepted by ASIC in the recent past are set out in Table 2.2. ASIC has issued a regulatory guide which explains when it considers it appropriate to accept enforceable undertakings, the terms acceptable to it and what action it is likely to take if an enforceable undertaking given to it is breached: RG 100 Enforceable Undertakings (updated February 2015). A list of enforceable undertakings that ASIC has accepted from people and companies to date is available on the ASIC Enforceable Undertaking Register.19 Table 2.2 ASIC Enforceable Undertakings20 Year

Number of Enforceable Undertakings

2015

22 (13 accepted)

2014

26

2013

20

2012

16

2011

20

2010

7

2009

10

•

Do you think that ASIC is an effective regulator or a toothless watchdog?

[page 35]

Protection of private interests 2.23

Substantial coercive powers are conferred on ASIC. While it is generally accepted that this is essential in order to enable ASIC to perform its

duties effectively, it is also recognised that there is potential for abuse of these powers. It is therefore important that the legal system provides some mechanisms to protect individuals against such a prospect. Some of the safeguards currently available are examined below.

Obligations as to fairness 2.24

As part of the protections provided by the law, ASIC is required to act with fairness in the conduct of its investigations, examinations or hearings. In particular, any requirement by ASIC to a person to appear before it for examination must be in writing, in the prescribed form and must state the general nature of the matter to be inquired into: ASIC Act s 19(2). In addition, any person being examined by ASIC is entitled to have a lawyer of his or her choice at the examination. The lawyer is allowed to address the person conducting the examination. The lawyer can also examine the person being examined about matters in relation to which he or she has been examined by the examiner: ASIC Act s 23(1). ASIC’s litigation strategy, arising from failure to call a material witness, was criticised by the Court of Appeal in Morley v ASIC (2010) 81 ACSR 285; [2010] NSWCA 331 and addressed authoritatively by the High Court of Australia in ASIC v Hellicar (2012) 286 ALR 501; [2012] HCA 17, discussed below, during the litigation against the board of directors of James Hardie Ltd. For a fuller discussion of the facts, legal issues and ultimate decision in the James Hardie litigation (during the period 2009–12), and its implications for directors, officers and corporate governance, see Chapter 17. The discussion below centres on whether ASIC breached its duty of fairness during the conduct of the James Hardie litigation and whether, as regulator, it has more stringent requirements to discharge the burden of proof.

ASIC v Hellicar (2012) 286 ALR 501; [2012] HCA 17 High Court of Australia Facts: ASIC sought a court declaration that the directors and officers of James Hardie had breached their statutory duty of care and diligence, under s 180(1) of the Corporations Act, by allowing the company to release a key document to the public which was found to be misleading. ASIC alleged, and the respondents denied, that the misleading document was approved at a board meeting prior to its release. All of the eight respondents had no actual recollection of events at that crucial board meeting, which occurred some seven years before they gave evidence at trial. The minutes of the board meeting recorded the approval of the document by the board. Due to defects in the recording of the minutes, the primary judge, however, did not rely on the minutes as evidence to find a breach of the law. In rejecting the evidence of the defendants at the trial, the primary judge inferred that the board did approve the misleading document and therefore held that all of them had breached their legal duties as directors and officers. The court applied the civil penalty provisions, arising from a breach of s 180(1), and imposed pecuniary penalty orders and banning orders: see Chapter 17 for discussion on the operation of s 180 and the consequences of breach. [page 36] All of the defendants successfully appealed and the New South Wales Court of Appeal overturned the liability decision. It did so, among other reasons, on the basis that ASIC had failed to act as a model litigant. The Court of Appeal concluded that it was unfair for ASIC not to have called the company’s lawyer, who had also attended the board meeting, to give evidence as to whether the board approved the misleading document or not. As a result, the appellate court held that this omission affected ASIC’s proof of the facts. Issue: Was the Court of Appeal right to overturn the primary judge’s finding (that the board had approved the draft ASX announcement) for the reason given? Did ASIC breach its duty to conduct a fair trial in such circumstances? Decision: The High Court readily accepted that ASIC has a duty to act fairly when conducting proceedings but did not accept that this duty required ASIC to call the company’s lawyer as its witness in this case for four key reasons. First, each side in a trial is free to decide the evidence to be called and what questions are to be asked subject to the rules of evidence and fairness. Second, deciding the facts of a case is a court’s task, not a task for the regulatory agency. Third, incorrect assumptions were made by the Court of Appeal that ASIC’s conduct denied the defendants some advantages or subjected them to some disadvantage. It was open to the defendants to call the company’s lawyer as witness. Fourth, the source and content of the duty of fairness which says that particular evidence must be called, to avoid breach of this duty, was not identified by the Court of Appeal or in argument before the High Court. Significance: Having affirmed the liability of the eight respondents (seven non-executive directors and one officer)21 by placing emphasis on the minutes which showed absence of care and diligence in board approval of a misleading document of significance, the High Court remitted this case back to the Court of Appeal of the New South Wales Supreme Court to decide the appeal on the civil penalties. Chapter 17 discusses the liability decision,

reported as Gillfillan v ASIC (2012) 92 ACSR 460; [2012] NSWCA 370, which imposed banning orders of varying lengths and pecuniary penalties of various amounts on each of the respondents.

natural justice: a requirement for the decision-maker to act fairly, in good faith and without bias, and must give a person an opportunity to be heard.

ASIC is obliged to accord natural justice (or procedural fairness) to any person likely to be adversely affected by a finding arising from a hearing conducted by it: ASIC Act s 59(2). However, while it is bound to accord natural justice, it does not necessarily follow that ASIC must observe the rules of evidence when conducting its hearings. This is expressly confirmed by s 59(2)(c) of ASIC Act. As the High Court acknowledged in National Companies and Securities Commission v News Corporation Ltd (1984) 2 ACLC 301, rules of natural justice are flexible depending on the power exercised and the legislation relevant to the exercise of that power. Essentially, as noted by the Federal Court in Laycock v Forbes (1997) 25 ACSR 659; 15 ACLC 1814, the obligation to observe the rules of natural justice requires that ASIC provide to any person who may be adversely affected by its decision all the material available to it and upon which it will base its decision. Also, ASIC must ensure that it gives such a person an opportunity to put before it any evidence that that person considers relevant. Further, the affected person must be given an opportunity to make any representations he or she may consider advisable.

Self-incrimination 2.25

At common law, every person under investigation enjoys the right to remain silent. This is commonly known as the right against selfincrimination. [page 37] In Sorby v Commonwealth (1983) 152 CLR 281, the High Court of

Australia noted that under the protection provided by this longestablished rule: … a person may refuse to answer any question or to produce any document or thing, if to do so ‘may tend to bring him into the peril and possibility of being convicted as a criminal’.

There can be no doubt at all that the refusal by a person under examination to answer questions can seriously hamper ASIC in its investigations. To overcome this difficulty and to assist ASIC to investigate suspected contraventions of the corporations legislation effectively, the right against self-incrimination has been removed: ASIC Act s 68.22 According to this provision, it is not a reasonable excuse for a person to refuse or fail to give information, sign a record or produce a book when required to do so by ASIC on the ground that giving the information, signing the record or producing the book might tend to incriminate the person or make the person liable to a penalty. Thus under this provision, any person under examination, who does not answer all questions relevantly put to him or her, risks prosecution. This makes it easier for ASIC to obtain relevant evidence. perjury: the making of a false statement under oath.

Section 68 is subject to an important qualification aimed at protecting members of the community. If a person under examination by ASIC states before the examination that any statement made might incriminate him or her, the incriminating statement is not admissible in criminal proceedings except for perjury. That statement is also not admissible in civil proceedings for the imposition of a pecuniary penalty order against that person: ASIC Act s 68(3). The recent addition of s 1349 makes it clear that the operation of s 68(3) (and penalty privilege more broadly) does not apply to disqualification orders under the Corporations Act.

Legal professional privilege 2.26

Confidential communications passing between a lawyer and client or between a third party and a lawyer, at the request of a client, for the dominant purpose of providing legal advice are protected by the

doctrine of legal professional privilege. When applied, this doctrine allows a person to maintain confidentiality over, and thus avoid disclosure of, communications (whether written or oral) between that person and a lawyer for legal advice, unless the right is waived. In the context of ASIC investigations, this principle is reinforced by s 69(2) of ASIC Act. Under that provision, a lawyer who is required to give information or to produce a document is entitled to refuse to do so where the relevant communication was made in the course of a professional relationship of lawyer and client. The doctrine of legal professional privilege is an important common law right. It enables citizens to obtain proper and effective legal advice under conditions of confidentiality. The difficulty, however, is that a claim of legal professional privilege can be used to frustrate ASIC in its investigations and prevent it from discovering the full truth of any matter it may be looking into. Indeed, there are perceptions that this doctrine is used at times to insulate questionable conduct from scrutiny and thus stymie the public interest in discovering the truth. To avoid this situation, s 69(3) of the ASIC Act requires a lawyer refusing to disclose a communication on [page 38] the ground of legal professional privilege to provide full particulars identifying the source of the communication. ASIC can then use its powers to secure the requisite information from that source. The terms of ASIC Act s 68(2) make it clear that a claim of privilege cannot be made by a body corporate: Schlaepfer v Australian Securities and Investments Commission [2017] FCA 1122.

Duty of confidentiality 2.27

In the performance of its duties, ASIC collects vast amounts of information. The indiscriminate disclosure of such information has the potential in some circumstances to seriously adversely affect the interests of subjects. To avoid this, s 127 of the ASIC Act imposes a duty

of confidentiality on ASIC. Under this provision, ASIC is required to take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence in connection with the performance of its functions or the exercise of its powers under the corporations legislation: ASIC Act s 127(1). However, under some limited circumstances, ASIC may properly disclose information obtained by it in the course of its work to certain persons and organisations, for example, the Minister or a Royal Commission to enable them to discharge their functions. The persons or organisations to whom this information may be disclosed are specified in s 127(2A)-(4B) of the ASIC Act. ASIC recognises that the release of information in its possession, even when authorised, can have serious and undesirable implications for affected parties. Accordingly, it has determined that confidentiality is one of the prime considerations it will take into account before disclosing information to third parties. This position is set out in Regulatory Guide 92: Procedural Fairness to Third Parties. It has also made clear that before taking any decision to release information, it will grant an opportunity to any person likely to be adversely affected by such a decision to make representations to it: see Regulatory Guide 103: Confidentiality and Release of Information.

Parliamentary inquiry into ASIC’s performance 2.28

ASIC’s performance as a corporate regulator has come under intense scrutiny by the Senate Economics Reference Committee which released a scathing report (in June 2014) identifying a large number of improvements required for ASIC to become a more effective watchdog.23 The inquiry was sparked by perceived shortcomings in ASIC’s slow response to the serious scandals and misconduct which plagued the financial planning industry. The committee found ASIC to be ‘a timid, hesitant regulator, too ready and willing to accept

uncritically the assurances of a large institution that there were no grounds for ASIC’s concerns or intervention’.24 [page 39] Significantly, the inquiry found that ASIC conceded that its trust in some institutions was misplaced. The committee made the following robust observations:25 In the committee’s opinion, ASIC has been in the spotlight far too frequently for the wrong reasons. It is acknowledged that not all of the criticisms levelled at ASIC are justified; ASIC is required to perform much of its work confidentially and in a way that ensures natural justice. It is also constrained by the legislation it administers and the resources given to it for this purpose. Nevertheless, the credibility of the regulator is important for encouraging a culture of compliance. That ASIC is consistently described as being slow to act or as a watchdog with no teeth is troubling. The committee knows, however, that ASIC has dedicated and talented employees that want to rectify the agency’s reputation. This inquiry has been a wake-up call for ASIC. The committee looks forward to seeing how ASIC changes as a result.

ASIC has made repeated calls for increases in its enforcement power. In October 2016, the Minister for Revenue and Financial Services announced a taskforce to review the enforcement regime of ASIC, with a report anticipated in 2017.26 The taskforce will assess the suitability of the existing regulatory tools available to ASIC to perform its functions adequately.

[page 40]

Revision Questions 1. 2. 3. 4.

5. 6. 7. 8.

What is the role of ASIC? Explain the accountability mechanisms that exist as a check on the responsible use of ASIC’s extensive powers. Under what circumstances may ASIC bring a legal action in the name of a company in the exercise of its investigatory powers? As part of its enforcement strategy, ASIC may also accept an enforceable undertaking. Explain the concept of ‘enforceable undertakings’. Identify at least two circumstances when ASIC can exercise its exemption powers. Explain the concept of ‘class orders’ and their legal status. Under what circumstances may ASIC hold a hearing? Outline the manner in which private interests are protected during the exercise of ASIC’s extensive coercive powers.

9.

Under current practice, who is responsible for prosecuting serious breaches of the corporations legislation? 10. After investigating the affairs of a company, what action can ASIC take instead of commencing civil litigation?

Problem Question ASIC was investigating the affairs of Pinesett Ltd. In particular, it wished to ascertain whether certain prominent personalities owned an undisclosed substantial interest in the company. To this end, ASIC commenced an investigation in relation to the affairs of Pinesett Ltd. As part of this investigation, ASIC required

Kentrev to appear before a member of ASIC for examination on oath and to answer questions. Kentrev is most perturbed about his appearance before ASIC. He is particularly concerned because, sometime after this appearance, one of his colleagues, Renev, gave evidence in other related proceedings which established that Kentrev’s evidence before ASIC was false. Also, in execution of a search warrant, ASIC seized documents which included letters written by Kentrev to his overseas lawyer in relation to the matter which is the subject of ASIC’s investigation. In relation to the above, advise Kentrev on the following: (a) Did ASIC have the power to hold the investigation and the hearing? (b) What action may ASIC take against Kentrev in the circumstances? (c) What action may Kentrev take to protect his interests?

Guidelines for Answering Problem Questions When answering a problem question concerning ASIC, we suggest that the following method may be helpful: 1. 2.

Identify the powers of ASIC in circumstances such as these. Identify the legal protections available to persons likely to be affected by the activities of ASIC in the performance of its duties. [page 41]

Further Reading Academic Journals J Austin, ‘Does the Westpoint Litigation Signal a Revival of the ASIC s 50 Class Action?’ (2008) 22 Australian Journal of Corporate Law 8. H Bird, D Chow, J Lenne and I Ramsay, ‘Strategic Regulation and

ASIC Enforcement Patterns: Results of an Empirical Study’ (2005) 5 Journal of Corporate Law Studies 191. H Bird, G Gilligan and I Ramsay, ‘The Who, Why and What of Enforceable Undertakings Accepted by the Australian Securities and Investments Commission’ (2016) 34 Company and Securities Law Journal 493. J Bird, ‘Regulating the Regulators: Accountability of Australian Regulators’ (2011) 35(3) Melbourne University Law Review 739. V Comino, ‘Effective Regulation by the Australian Securities and Investments Commission: The Civil Penalty Problem’ (2009) 33 Melbourne University Law Review 802. J du Plessis, ‘Reverberations After the HIH and Other Recent Australian Corporate Collapses: The Role of ASIC’ (2003) 15 Australian Journal of Corporate Law 225. J Hedges, H Bird, H Louise, G George, G Andrew and I Ramsay, ‘The Policy and Practice of Enforcement of Directors’ Duties by Statutory Agencies in Australia: An Empirical Analysis’ (2017) 40 Melbourne University Law Review 905. M Hyland, ‘Is ASIC Sufficiently Accountable for its Administrative Decisions? A Question of Review’ (2010) 28 Company and Securities Law Journal 32. B Mees and I Ramsay, ‘Corporate Regulators in Australia (1961– 2000): From Companies Registrars to ASIC’ (2008) 22 Australian Journal of Corporate Law 212. T Middleton, ‘The Role of Lawyers in the Context of ASIC’s Investigative and Enforcement Powers’ (2010) 28 Company and Securities Law Journal 107. M Nehme, ‘Enforceable Undertakings: Are They Procedurally Fair?’ (2010) 32 Sydney Law Review 471. M Nehme, ‘Monitoring

Compliance with Enforceable Undertakings’ (2009) 24 Australian Journal of Corporate Law 76. M Nehme, M Hyland and M Adams, ‘Enforcement of Continuous Disclosure: The Use of Infringement Notice and Alternative Sanctions’ (2007) 21 Australian Journal of Corporate Law 112. M Welsh, ‘Civil Penalties and Responsive Regulation: The Gap Between Theory and Practice (2009) 33 Melbourne University Law Review 908. M Welsh, ‘Eleven Years On – An Examination of ASIC’s Use of An Expanding Civil Penalty Regime’ (2004) 17 Australian Journal of Corporate Law 175.

Practitioner Journals M Adams and M Nehme, ‘The Active Use of Enforceable Undertakings by ASIC – Part 1’ (2007) 59 Keeping Good Companies 260. M Adams and M Nehme, ‘The Active Use of Enforceable Undertakings by ASIC – Part 2’ (2007) 59 Keeping Good Companies 326. R Dennings, S Carroll and WL Chen, ‘The Six Phases of an ASIC Investigation – and What You Can Do Now to be Prepared’ (2015) 67 Governance Directions 158. [page 42]

Practitioner Works R Austin and I Ramsay, Ford’s Principles of Corporations Law, 15th ed, LexisNexis Butterworths, Australia, 2012, Ch 3. T Middleton, ASIC Corporate Investigations and Hearings,

Lawbook Co, Australia, looseleaf and online.

You will find useful study resources, including quizzes for each chapter, when you go to . The quiz is a great tool to help you self-test your knowledge.

1. 2. 3.

4. 5. 6. 7. 8. 9. 10.

11. 12. 13. 14.

See s 12A(1) of the ASIC Act for the additional responsibilities conferred upon ASIC under a variety of other legislation other than the Corporations Act. See further Report 535 ASIC cost recovery arrangements: 2017–18 available at . Mainly for these reasons, as expressed by the Federal Treasurer in a letter to former ASIC Chairman (Jeffrey Lucy) dated 20 February 2007: The government recognises and will continue to respect the statutory independence of ASIC. It is important for confidence in the regulatory framework that ASIC is, and is seen to be, exercising independent judgement about the application of the regulatory framework to individual circumstances … given the importance the Government attaches to protecting ASIC’s independence, both real and perceived, the use of the directions power would only be considered in rare and exceptional circumstances. This was achieved by each state enacting a Corporations (Commonwealth Powers) Act: see, for example, Corporations (Commonwealth Powers) Act 2001 (NSW). See, for example, the role and aim of the regulator in ASIC v Storm Financial Ltd (2009) 71 ACSR 81; [2009] FCA 269. Other regulators, such as the Australian Prudential Regulation Authority (APRA), are also responsible for administering some of these Acts. Information regarding the role and powers of ASX Compliance can be found at . A list of class orders issued by ASIC and in effect to date can be viewed at . For examples, see ASIC v Diploma Group Limited [2017] FCA 549; ASIC v AGKM Green Pty Ltd [2017] FCA 846. The excluded provisions are s 12A of the ASIC Act, which deals with ASIC’s other functions and powers and Pt 2 Div 2 of the ASIC Act which deals with unconscionable conduct and consumer protection in relation to financial products: ASIC Act s 5. The term ‘examinable affairs’ is defined in s 9 of the Corporations Act. For example, see Schlaepfer v Australian Securities and Investments Commission [2017] FCA 1122; ASIC v Sino Australia Oil and Gas Ltd (in liq) (2016) 115 ACSR 437; [2016] FCA 934. This case is discussed in Chapters 9, 14, 17 and 20. For example, see FAL Healthy Beverages Pty Limited v Manly Warringah Sea Eagles Ltd [2016] NSWSC 1058. For example, see Masu Financial Management Pty Ltd and Australian Securities and Investments Commission [2017] AATA 97; ASIC v Uglii Corporation Ltd (2016) 116 ACSR 389; [2016] FCA 1099.

15. A research report by the Centre for Corporate Law and Securities Regulation, The University of Melbourne, gives some interesting insights into the type of cases prosecuted by ASIC. See Bird et al, ASIC Enforcement Patterns, at 81–2. 16. For analysis on the scope of s 50, see ASIC v Bank of Queensland Ltd (2011) 86 ACSR 258; [2011] FCA 1361. 17. See, for example, Goodman, In the matter of Glenhurst Corp Pty Ltd (in liq) (ACN 006 277 087) [2010] FCA 667; Markov v Dukes [2010] FCA 1419. 18. ASIC, Annual Reports, 2012–16. 19. See 20. ASIC, Annual Reports, 2009–15. 21. The liability of the company officer of James Hardie, Peter Shafron, was established in this judgment and in the accompanying High Court judgment in Shafron v ASIC (2012) 286 ALR 612; [2012] HCA 18 which is discussed in Chapter 17. 22. For analysis on the scope and operation of s 68, see Schlaepfer v Australian Securities and Investments Commission [2017] FCA 1122. 23. See Senate, Economics References Committee, Performance of the Australian Securities and Investments Commission, June 2014 at