Case Summary ASIC v Adler
On June 2000, HIH Casualty and General Insurance Ltd (HIHC) provided an undocumented and unsecured payment of $10 million loan to Pacific Eagle Equity Pty Ltd (PEE). PEE is a company controlled by Adler, which is the trustee of Australian Equities Unit Trust (AEUT). Alder was also a non-executive director as well as, through the Adler Corporation Limited, a substantial shareholder of HIH. After the loan is received, PEE became a trustee of AEUT. HIHC $10 million loan to PEE afterwards were applied to HIHC’s subscription for $10 million worth of AEUT units. PEE then bought $4 million worth of HIH shares on the stock market. PEE then sold the HIH shares at $2 million loss. PEE purchased HIH shares to give false impression to the stock market that the company is doing well to HIH’s investors. PEE bought various unlisted shares in technology and communication companies from Adler Corporation worth $4 million. All of it was a total loss investment. $2 million was given to Adler under the trust by AEUT. These transactions, however, carried without the knowledge of the board or getting the shareholder’s approval and also there were no disclosure to the board as well the HIH’s investment committee. The loan given without proper document or were given security to the loan. This was done so that it will not bring attention of other HIH directors. It was held that Adler breached his duties as officer of HIH and HIHC due to all of these transactions. The court held that Adler contravened the directors’ duties in the Corporations Act 2001, specifically, section 180 (duty to act with care and diligence), section 181 (duty to act in good faith and for proper purpose), section 182 (duty not to improperly use position) and also section 183 (duty not to improperly use information). The court made decision to ban Adler to act as a director of a company for 20 years and Williams, the another director, was banned for 10 years. Other than that, the court also imposed penalties as following; Adler - $450,000, Adler Corporation - $450,000, Williams - $250,000 and Fodera - $5000. On top of that, Adler, Adler Corporation and Williams was ordered to pay a total compensation of sum of $7,986,402 to HIHC.
The case of ASIC v Adler is very unique as well as complicated since it involved several breach of duties in the Corporations Act 2001. The HIH collapse was caused by very bad corporate governance.
Such breach of duties are, section 9 (director’s duties), section 180 (duty to act with care and diligence), section 181 (duty to act in good faith and for a proper purpose), section 182 (improper use of position), section 182(2) (business judgement rule), section 183 (duty not to improperly use information) and section 260A (financial assistance). All of these contraventions under the Corporations Act 2001 will be discussed in detail below.
Section 9 – Who Is A Director And Their Duties
Under section 9, a director of a company is defined as a person who is appointed to that position such as a director or alternate director, regardless of what name it is given to that position. Section 9 also includes certain people to be directors even though they are not properly appointed. Such people can act as a director even though without proper appointment of director position. This is where they act in the position of a director (which can be also known as de facto director) or the directors are used to act in accordance with the person’s instructions (which also known as a “shadow director").
Directors’ duties need to be existed in order to protect shareholders from the risks of directors giving harm towards the company. Shareholders basically have risks such as fraud, where the directors took control over the assets belonging to the company by using it for their personal interest, and mismanagement, whereby directors made an incompetent decision with the financial standing of the company.
Furthermore, section 9 also defines the “officer of a corporation", which basically includes company executives who held senior positions in the board level. Such persons can be identified in certain situations where that person (the executives) makes or joins participation into making decisions in which affects the whole or substantial part of the company’s business activities or, the person who has the authority to affect in a significant way towards the company’s financial standings or, basically the same definition of a “shadow director" where the person are acting towards the instructions given to them to act.
In the case of ASIC v Adler, the court held that Adler, the director of HIH, was also an officer of wholly-owned HIH subsidiary which can be related under the section 9 definition of directors. This applies to Adler even though he was not properly appointed as a director or an officer of the subsidiary. Since he has the role of director, the subsidiary holding company and also a member of HIH investment committee, this has showed that he participated in the decision making of the company’s business in which affected it the whole or substantial part of the business.
As Santow J gave his judgement on this case, he gave a good summary of principles applicable to directors’ duties. Some of it are; a director must continuously kept informed of the activities of the company, they must be familiar with the fundamentals of the business whereby the company is doing.
Section 180 – Duty To Act With Care And Diligence
In the section 180(1), it provides that a director or other officer of a company need to exercise their powers and discharge their duties with a standard of care and diligence in which a reasonable person will do if they were the director or officer of a company due to company’s circumstances (section 180(1)(a)) and occupied the office and had the same responsibilities in the company as the director or officer (section 180(1)(b)).
Executive directors are full time employees of the company who involved in the day-to-day management of the company. They have special responsibilities with their position and have a high knowledge of daily operations of the company. Non-executive directors, on the other hand, do part-time and have regular involvements in the company.
In the case of ASIC v Adler, Williams who was the managing director for HIH and HIHC as well, contravened section 180(1) as he failed to ensure there were proper safeguard before HIHC gave the loan to PEE. Fodera, who was the finance director of HIH, contravened section 180 as he failed to discuss a proposal to give $10 million loan to PEE to the HIH board or its investment committee. As the executive directors of the company, both Fodera and Williams failed to carry out their role properly without informing the HIH board of their intention.
Section 180 (2) – The Business Judgement Rule
In the section of 180(2), the section provides that a director or any other officer who makes a business judgement rule, will not be held liable in respect of the judgement under the statutory, common law or equitable duties of care and diligence, in which all of the elements can be shown. Such elements are, the judgement was properly made in good faith and for proper purpose, there was not material personal interest in the subject as of the matter of the judgement, the directors and the officers informed themselves about the subject matter of the judgement to the extent they appropriately believed to be reasonable and also the judgement was believed to be in rational in the best interest of the whole company. All of these would be reasonably justified unless any other person in such position thinks that it is completely unreasonable.
The business judgement rule basically gives the directors with a “safe protection" from a personal liability in the relation of the business judgements that they take are valid which is in a good faith and in the best interest of the company. This is because some of their business decisions may turn out to be profit-making or a total loss in honest and rational way. Some of the main reasons for the business judgement rule defences are risk taking and activities in entrepreneurial activities will be encouraged since directors are aware of the specific legislation that if they act honestly, they will not be punished or personally liable as a result of adverse judicial review. Another rule defence is that better business judgement will be made as a result of removing of some uncertainty of liability under the statutory duty of care and finally, the shareholders interest are better provided by engaging risk taking activities. To make directors be liable for such small errors of decision will promote risk-adverse decision-making with contrast effect on the economy.
If the directors or other officers are able to satisfy the above requirements, they will have “safe protection" which makes them to be protected from liability for any breach of their duties of care and diligence. This means that their business judgement in such situations will be reviewed by court. Under section 180(3), the business judgement is defined that any decisions to take or not to take action with respect to matter that is relevant to business activities of the company. This only refers to business decisions that has made relevant to the business activities. It does not include any decisions made in the position of directors powers such as the power to issue shares or pay dividends.
By referring to the case ASIC v Adler, the court held that all three Adler, Williams and Fodera breached their statutory duty of care as stated in section 180(1). They also, however could not rely on the business judgement rule as their defence. Firstly for Adler, the business judgement rule did not applicable for him since he cannot satisfy the section 180(2)(b) since he had a conflict of interest in the relation of his decision to invest the $10 million payment from HIHC in PEE. Secondly for Williams, the business judgement rule did not apply to him because of his failed to ensure the correct safeguards were enforced was not business judgement for the purpose in section 180(3). However, even this was a business judgement, since he was a major shareholder of HIH, he basically has material personal interest as in the section 180(2)(b). Other than that, Williams also failed to present any evidence that his judgement was done in good faith for the proper purpose as stated in section 180(2)(a). Finally, Fodera cannot rely on his business judgement rule as he failed to refer the transaction of PEE to the HIH board or its investment committee. This was not a business judgement as stated in section 180(3).
Section 181 – Statutory Duty To Act In Good Faith And For A Proper Purpose
Under section 181(1), it says that a director or other officer of a corporation to exercise their powers and discharge their duties in bona fide (good faith) for the best interest of the company and also for a proper purpose. The section 181(1) can be contravened if the director thinks that they are actually doing their duties for the best interest of the company in which any other director, in that situation, thinks that is clearly unacceptable approach to do it. This may be happen when a director have a conflict of interest personally with the interest of the company they are handling.
In the case of ASIC v Adler, it can clearly be seen that Adler, had contravened the section 181(1) to act in good faith by properly excising his powers and discharging his duties for the best interest of the company. This is because, the transactions that occurred in the HIH, HIHC and PEE had been improperly used, for the sake of his personal interest.
Section 182 – Improper Use Of Position
Under section 182, the section states that it restricts officers or the employees of a company from improperly using their power to gain advantage for themselves or for any other persons to the company.
In the case of ASIC v Adler, the court held that Adler had contravened the section 182 due to the arrangement of $10 million loan from HIHC to PEE which was then to be used to acquire HIH shares on the stock market. This transaction was merely done for the purpose of supporting the HIH shares to increase the price and thereby selling the HIH shares owned by Adler Corporation before PEE could sell off their HIH shares. Because of this transaction, PEE had incurred a total loss of investment by reselling on the HIH shares.
In regard of this transaction, Adler was held that he had improperly used his position as a director of HIH, officer of HIHC and director of PEE to gain advantage for the Adler Corporation. The court also held that Williams, also had breached his duties as a director for both HIH and HIHC under section 182, to help gaining advantage for Adler Corporation. This is because Williams, used his position improperly by authorising the $10 million load payment without proper approval from the HIH’s investment committee, which he was required to disclose under the HIH’s investment guidelines.
Other than that, the court also held that Adler improperly used his position as a director in the PEE transactions of acquiring a number of unlisted capitals at the cost price from Adler Corporation without obtaining independent valuations of these ventures. With these transactions successful, Adler and Adler Corporation was able to exclude himself from these commercially unviable business operations. Adler basically knew that each of those businesses were having major cash flow problems and each had a significant risk that they would ultimately collapse. Adler, however, failed to disclose his personal interest to the HIH board other than Williams and Fodera.
Section 183 – Improper Use of Information
As stated in section 183, a person who gets information because they are or are not director, officer or employee of a company, must not misuse the information just to gain advantage for themselves or to any other person whereby causing failure in the company. Section 183 also applies towards resigned or retired directors, officers and employees as well. Informations such as insider information can be taken as an advantage by any person in order to gain benefit by using it to themselves or by giving to other person.
In the case of ASIC v Vizard, the court held that Vizard involved in the contravention of section 183, whereby he gained the insider information as he was the non-executive director of Telstra. He misused the information in order to gain advantage for CTI, Brigham and himself as well whereby based on the information that he receives (Telstra board’s decision to acquire other company and selling their interest on another company), he would act accordingly to buy or sell off his shares ahead of Telstra.
S260A – Financial Assistance
In section 260A, the section states that it forbids a company financially assisting a person to obtain or acquire shares in the same company of its holding company. However, if some of the conditions are met then the company may proceed to do such transaction. Some of the conditions are, giving the financial assistance will not materially prejudice the interest of the company, its shareholders or the company’s ability to pay its creditors (under section 260A(1)(a)), the financial assistance is validated by the shareholders (under section 260B) or the financial assistance is relieved or exempted (under section 260C).
Financial assistance is can be basically referred to where a company is lending money to a person to buy the company shares. This means that the company gives a certain amount of money to a person so that the person buys some of the company’s shares. Another example is where a company gives a surety or guaranteed a person’s loan in which the sum of the loan will be proceeded to buy shares in the company. The company is basically providing a loan to a person for the sake of buying back its own shares off the stock market. Another example is where the company is giving its own assets as a security to a person’s loan in which the loan money will be used to buy the shares of the company given its assets as security.
The section 260A clearly states that a company is restricted from giving financial assistance to a person to buy its own shares in the stock market as it will cause material prejudice. By analysing the case of ASIC V Adler, it can be seen that Adler, who was controlling PEE, was clearly contravened the section of 260A by which giving financial assistance to PEE through HIHC, a subsdiary of HIH, which is also a company controlled by Adler. This financial assistance given to PEE, was then used to buy the HIH shares on the stock market. This transaction gives a false impression over the stock market as well as its investors that Adler was supporting the falling share price of its company, HIH, by buying the shares personally. However, the court found out that Adler does not have the intention to make easy profit and reselling the HIH shares.
The real purpose was to increase the HIH share price in benefit of Alder Corporation Limited as substantial shareholding in HIH. The actual evidence is that when PEE went to sell off the HIH shares, it was done only after Adler Corporation decided to sell off its HIH shares in which leads to total loss for PEE’s investment.
The Supreme Court of New South Wales held that the main intention of the transaction was that HIHC gave PEE financial assistance in order to acquire the shares in HIH which is HIHC’s holding company. Due to this transaction, according to Santow J, both HIHC and HIH suffered material prejudice, which therefore, contravening section 260A.
http://books.google.com/books?id=zFSgs52KSmoC&pg=PA378&lpg=PA378&dq=section+229+australian+corporate +law&source=bl&ots=x0rnJ5SbrT&sig=CFTKpch-W-gjuwJM_9gS-tcUN3U&hl=en&ei=mtivTaWlOYr3rQf0_aSPCQ&sa=X&oi=book_result&ct=result&resnum =2&ved=0CBsQ6AEwAQ#v=onepage&q=section%20229%20australian%20corporate%20law& f=false