Issue 1: Is Patricia an officer of Stadium Enterprises Pty Ltd? And is Dan an officer of Fancy Pants Pty Ltd? Issue 2: Has Patricia breached her responsibility to move in good religion in the best involvements of the company when reding her sister Faye. that SEPL were purchasing a big sum of portions in FPPL? Issue 3: Has Patricia improperly used company information to derive advantage for herself and/or her sister? Issue 4: Has Patricia improperly used her place to derive advantage for herself and/or her sister? Issue 5: Has Patricia breached the prohibition of insider trading through the usage of price-sensitive information when prosecuting her sister to purchase portions in FPPL? Issue 6: Has Dan breached the director’s responsibility to forestall insolvent trading in FPPL through buying a new fabric cutter machine at $ 300. 000? Law:
Law 1: Section 9 CA – Definition of an officer
Law 2: Section 181 CA – Good religion
ASIC V Adler – Failure to move in good religion and best involvements of the company Law 3: Section 183 CA – Use of information
ASIC V Vidler – Improperly utilizing information gained from the place of Director Law 4: Section 182 CA – Use of place
ASIC V Adler – Improperly utilizing his place as a manager Law 5: Section 1043A CA – Insider Trading
Law 6: Section 588G CA – Insolvent Trading
1. S. 9 defines an officer as manager or secretary of a company. As we are told that Patricia is a manager of SEPL. and Dan is a manager of FPPL they are classified as officers under the CA. 2. S. 181 provinces. “Directors must exert their powers and dispatch their responsibilities in good religion in the best involvements of the corporation and for a proper purpose” ( slides ) . In this instance Patricia has failed to move in good religion of SEPL through reding her sister that SEPL are purchasing a big sum of portions in FPPL. Because of Patricia’s actions. SEPL lost their opportunity to purchase portions at a lower cost. ensuing in an extra cost to SEPL of $ 100. 000. Patricia has non exercised her powers for a proper intent and in the company’s best involvement. therefore transgressing her responsibility to move in good religion under the s. 181 CA. 3. S. 183 provinces. “a Director of a corporation must non improperly utilize the information to derive an advantage for themselves or person else” ( slides ) .
In this instance of Vidler. the tribunals found there was a breach of s. 183 as Vidler had used company information gained as a manager to put in portions to do net income for himself. Similar but different to this instance. Patricia has breached s. 183 of the CA as she has improperly used company information to derive advantage for person else through reding her sister to purchase portions in order to do a net income. 4. S. 182 provinces. “a manager must non improperly use their place to derive an advantage for themselves or person else” ( slides ) . In the instance of Adler. the tribunals found there was a breach of s. 182 as he improperly used his place as manager to purchase portions and addition advantage for himself. Similar to this instance. Patricia has improperly used her place in reding her sister to purchase portions in FPPL to derive net income. Therefore. Patricia has breached s. 182 of the corporations act by improper usage of her place to derive advantage for her sister. 5. S. 1043A “prohibits anyone in ownership of non-public. monetary value sensitive information from covering in. or prosecuting others to cover in. the portions of a company” ( text ) .
After Patricia gained non-public. monetary value sensitive information about SEPL’s purposes to purchase a big sum of portions in FPPL. she instantly told her sister and engaged her in purchasing portions in FPPL whilst they are still cheap. Because of these actions. Patricia has breached s. 1043A under the CA and has been involved in “insider trading” through stating her sister about the monetary value sensitive information. 6. S. 588G provinces. “Directors are under a responsibility to forestall a company from incurring debts while it is insolvent” ( slides ) . After Dan found out about SEPL purchasing portions in FPPL he bought a new fabric cutter machine at $ 300. 000 with the company’s recognition card. when he was certain that he would non be able to pay all the Company’s current measures. Although Dan was under the feeling the company was about to do a batch of money. he went and purchased the fabric cutter while the company was still insolvent and therefore breached s588G under the CA by non exerting his responsibility to forestall the company from incurring debts while bankrupt. Decision
We can rede ASIC that on the balance of chances. as an officer of SEPL Pty Ltd. that Patricia has breached s. 181 by non moving in good religion. s. 183 by improper usage of information. s. 182 by improper usage of place. and s. 1043A by insider trading. She has done this by sharing monetary value medium
information she had gained as manager. with her sister. reding her to purchase portions in a company to derive advantage and do a net income. We can besides rede ASIC that on the balance of chances. as an officer of FPPL Pty Ltd. that Dan has breached s. 588G of the CA by insolvent trading through buying a $ 300. 000 machine when he knew the company was in debt and bankrupt. Consequently. the tribunal may order Pat and Dan to pay a mulct of up to $ 200. 000 under s. 1317G ; Pat to counterbalance for the company’s harm suffered under s. 1317H ; and Pat and Dan to be disqualified from pull offing corporations under s. 206B ( 1 ) ; or even order the company’s to be wound up under s. 233CA.