Thu 03 2019

Director’s share trading scheme breaches fiduciary duties, but accessorial liability claims rejected

A recent Federal Court decision recognises the expansive reach of the statutory and fiduciary duties owed by company directors. However, the company’s unsuccessful attempt to hold third parties liable as accessories to its director’s breaches of statutory duties highlights the importance of properly pleading and proving that an alleged accessory has actual knowledge of all the essential facts constituting the director’s breaches.


In CellOS Software Ltd v Huber [2018] FCA 2069, the Federal Court found that Jason Huber (Huber), a founding director of CellOS Software Ltd (CellOS), covertly purchased and sold for profit his own shares in CellOS, instead of issuing new shares to raise capital directly for CellOS. In doing so, Huber was found to have breached his fiduciary and statutory duties owed to CellOS.

The Court also found that CellOS’ case against three alleged accessories, Mr and Mrs Peck (Pecks) and Mr Tan (Tan), was not made out as each lacked knowledge of, or relevant to, a number of matters critical to Huber’s breaches of his statutory duties.

Background

CellOS is an Australian public, but unlisted, software company. Huber, the company’s founder and Chief Executive Officer at the relevant times, was responsible for raising equity capital as CellOS’ principal (if not sole) source of funding.

CellOS brought proceedings alleging, in essence, that Huber had engaged in a fraudulent scheme whereby he created a secondary or ‘grey’ market for existing CellOS shares (including his own shares that were traded through ‘off-shore vehicles in exotic locations’), diverting investors away from investing directly in new equity, which operated to Huber’s own benefit and to CellOS’ disadvantage. It was further alleged that Huber used some of the profits from the share trading to loan funds to CellOS on terms that were commercially favourable to him, and that he did so without disclosing his interest in the lending entities to CellOS’ board. CellOS claimed that by carrying out this scheme, Huber breached his fiduciary duties and his statutory duties to CellOS under sections 181, 182 and 183 of the Corporations Act 2001 (Cth).

CellOS also claimed that the Pecks and Tan, who had purchased shares through Huber and on-sold them, were liable to CellOS as accessories to Huber’s breaches of duty. However, at trial CellOS abandoned its general law (second limb Barnes v Addy) claims that those respondents had knowingly assisted Huber in a dishonest and fraudulent scheme, leaving only claims that they were ‘involved in’ Huber’s breaches of his various statutory directors’ duties.

The diversion of a corporate opportunity

A noteworthy aspect of this case (described by the judge, Justice Beach, as one ‘rich in facts’) is that a director of an unlisted company was held to have breached a number of the duties he owed to the company by trading in the company’s shares.

As Justice Beach observed in his reasons for judgment, there is no per se restriction on a person transacting the sale of shares of a company of which he or she is a director. This is because a company is usually not concerned with who buys shares in itself, share trading by a director is ordinarily undertaken in the person’s capacity as shareholder, not as director, and because a company is not usually in the line of business of buying and selling shares in itself – the sale of its own shares is not ordinarily a business opportunity that the company could or should take up.

However, the Court found that Huber’s conduct amounted to a diversion of a corporate opportunity, which breached his fiduciary and statutory duties owed to CellOS. This was essentially because:

  • CellOS was not trading profitably and was substantially dependent on Huber’s ability to raise equity or debt to continue its operations
  • Huber was the officer primarily responsible for raising equity capital for CellOS
  • CellOS was always contemplating equity raisings, such that selling shares was within or associated with CellOS’ ‘line of business’
  • at all relevant times, Huber was aware that there were willing buyers of CellOS shares, who could have invested in CellOS directly
  • instead of procuring those potential investors to buy new shares issued by CellOS, Huber diverted those investors to buy shares from him through a series of offshore companies he controlled
  • CellOS had an ‘interest and expectancy’ in potentially issuing new shares to the investors who were ultimately diverted by Huber’s conduct
  • Huber then caused companies he controlled to enter into loan agreements with CellOS that benefited him, without disclosing his interest in the lending entities

Huber argued and gave evidence to the effect that a number of the offshore companies he was alleged to control were in fact used by others to transact in CellOS shares without his knowledge, and that CellOS’ board was aware that the companies through which he loaned funds from his (admitted) share trading activities to CellOS were controlled by him. However, the Court rejected that evidence, finding Huber to be an unreliable witness, whose evidence was evasive, argumentative and inconsistent with evidence given in previous proceedings and with contemporaneous documents and other objective evidence.

Huber was ultimately found to have breached his statutory duties, having failed to act in good faith in the best interests of CellOS and for a proper purpose, improperly used his position to advantage himself and cause detriment to CellOS, and improperly used information obtained as a director to gain a personal advantage and to cause detriment to CellOS. His conduct also breached equivalent and additional fiduciary duties owed to CellOS under general law.

Claims against the alleged accessories

CellOS also sought to impose accessorial liability on the Pecks and Tan on the basis that they were said to be knowingly involved in Huber’s breaches of his statutory directors’ duties.

CellOS contended that the Pecks and Tan either had knowledge of each essential element of Huber’s wrongful conduct or, alternatively, were ‘wilfully blind’ to Huber’s conduct such that their failure to make further enquiries should therefore be taken to amount to actual knowledge. However, Justice Beach found that the Pecks and Tan had no actual knowledge of a number of the essential aspects of Huber’s contraventions, and was not prepared to draw inferences of wilful blindness.

The Court agreed that the ‘apparently official nature’ of the CellOS presentations attended by the Pecks, at which they were encouraged to purchase CellOS shares through Huber, would have ‘put any reasonable person in their position off making any enquiry’ as to the source of the shares, noting further that the circumstances were ‘such as to reassure the Pecks and put them off any enquiry that someone in their position might think to make’ and that Mrs Peck had believed that ‘CellOS was aware of and condoned the secondary or grey market’.

Of particular interest is that the Court considered the absence of CellOS’ informed consent to Huber’s activities itself to be an essential fact in Huber’s contraventions for the purpose of the accessorial claims. Accordingly, it was for CellOS to plead and prove that the Pecks and Tan knew Huber was acting without the CellOS board’s fully informed consent. This was so notwithstanding that in respect of CellOS’ primary claims against Huber, informed consent was a positive defence required to be raised by Huber – rather than absence of informed consent being an essential element of the primary claim. The Court held in this regard that the Pecks did not know that Huber lacked the informed consent of CellOS’ board, and moreover that this had not been pleaded.

Key points

The CellOS v Huber decision is a timely reminder for company directors to reflect on the strict and extensive general law and statutory duties they owe to the company. Directors should be cognisant that the scope and content of their duties are not fixed and, in appropriate circumstances, those duties may proscribe acts which would ordinarily be uncontroversial, such as buying and selling shares in the company (although the circumstances giving rise to Huber’s liability for his share trading scheme were particularly unusual).

The decision may also stand for the proposition that a company seeking to impose liability on an alleged accessory to a director’s breach of statutory duty must plead and establish that the alleged accessory had actual knowledge that no defences – such as fully informed consent by the company – were available to the director in respect of the impugned conduct.

(Hall & Wilcox acted for Mr and Mrs Peck, two of the successful respondents in the proceeding.)

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Catherine's expertise include compulsory third party (CTP) and public liability claims, including major claims, section 151z recovery matters and defendant insurance litigation.

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Belinda’s practice focuses on the litigation of common law claims brought pursuant to the Transport Accident Act 1986 (Vic) and common law and statutory benefits claims brought pursuant to the Accident Compensation Act 1985 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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Alexandra has experience acting on behalf of and advising both public and private sector clients in a broad range of industries including in the tertiary education, apprenticeship training and retail sectors.

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Sarah is an experienced employment and industrial relations lawyer.  Sarah acts for a range of local and global clients across a wide range of industries in both litigious and non-litigious employment and industrial relations matters.

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Diana specialises in personal injury law and insurance litigation.

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Kate has close to 10 years' experience specialising in succession law including wills, testamentary and discretionary trusts, protective trusts, powers of attorney, appointments of guardian advanced health directives and probate and letters of administration.

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Julian is an experienced senior litigator who has acted in high profile, complex and fiercely contested commercial litigation, public inquiries and investigations on behalf of companies, individuals (including members of parliament) and Government entities...

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Sarah has over 10 years’ experience in workers’ compensation and personal injuries claims. She has worked predominately on workers’ compensation matters in Queensland and more recently in the Western Australian jurisdiction

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Terri is an experienced insurance and litigation lawyer who has defended claims on behalf of domestic and international insurers for a decade...

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Katherine’s practice is predominantly in the area of general commercial dispute resolution and litigation and includes tax litigation and tax audit, contractual disputes, leasing disputes, restraint of trade injunctions, debt recovery, and insolvency and corporations matters.

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George has particular expertise in representing and advising insurers in relation to large scale litigation including class actions, indemnity disputes and insurance fraud claims, as well as public and product liability and professional indemnity claims.

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William specialises in private M&A and general commercial transactions and provides strategic advice on acquisitions, restructures and exits...

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Sheridan specialises in insurance litigation, with particular experience in complex claims and fraud...

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Ben’s practice focuses on common law and statutory benefits claims brought pursuant to the Accident Compensation Act 1985 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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Clare is passionate, practical and results-oriented employment lawyer who takes pride in providing commercially-minded advice, exceptional communication and effective problem-solving skills to all types of employment, industrial and safety issues.

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Jennifer has significant experience in general insurance litigation. Her experience includes public and product liability, property damage and compulsory third party insurance...

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Jamie is an experienced lawyer with her practice focusing primarily on CTP claims, in particular non-meritorious claims.

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Daniella’s practice focuses on common law and statutory benefit claims in all jurisdictions, where she continuously delivers quality results.

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Rachel is a tax lawyer specialising in direct taxes and tax disputes. Rachel’s areas of experience include advising on a variety of domestic and international tax laws...

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Kate has a broad practice, having experience in public and product liability, professional indemnity, fraud and policy interpretation...

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Holly provides advice and acts on behalf of insurers in a variety of CTP claims including advising on complex quantum and liability issues and representing insurers in the Local and District Courts and the Claims Assessment and Resolution Service.

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Mark has a broad range of experience in corporate and commercial practice areas, with a particular focus on the sports and media industries.

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  • Fluent in Chinese

Joey’s practice focuses on property acquisitions and sales, property due diligence, contract negotiations, commercial leasing, and foreign investments.

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Jeanette has over 10 years’ experience working in the Asia-Pacific region. She specialises in advising borrowers and financial institutions on bilateral and syndicated financing, as well as cross-border project financing.

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Tina is experienced in defending public and product liability claims in New South Wales and Queensland on behalf of domestic and international insurers.

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William is an experienced litigator with over 11 years’ experience in both Australia and overseas and currently practices in multiple Australian jurisdictions...

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Stacey has over 6 years’ experience in workers’ compensation law. In addition to her workers’ compensation practice, Stacey has specialised expertise in common law, public liability and asbestos claims.

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David’s practice is predominantly in commercial litigation and insolvency...

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Donna has approximately 20 years’ experience in alternative dispute resolution through her previous roles in the insurance and legal industry...

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Bianca’s commercial dispute resolution and litigation practice extends to include acting for entities and individuals in contractual disputes, high quantum intellectual property disputes, breach of confidence and restraint of trade matters, shareholder oppression claims, partnership disputes, estate disputes and large equitable disputes.

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Nina has 11 years’ broad experience as a commercial lawyer with a specialty in intellectual property and information technology law, and related areas of practice including privacy, data security and competition law.

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Amber has more than 12 years of experience in the legal insurance sphere, and has covered the field, working in State and Federal Government legal practices, private practice and in-house at WorkCover in 2011.

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Hamish is a commercial dispute resolution lawyer. His experience extends to applications for urgent relief, appellate matters and defence of class actions.

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Victoria’s practice focuses on the common law and statutory benefits claims brought pursuant to the Accident Compensation Act 1985 (Vic) and Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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With over fourteen years’ experience working in the NSW workers compensation area, Jenny is a highly skilled and proficient lawyer who defends statutory and common law workers compensation claims.

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Toniel’s practice focuses on general insurance advice and litigation. She manages complex and varied matters for a number of high profile insurers and private clients.

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Elisa's practice focuses on common law and statutory benefits claims brought pursuant to the Accident Compensation Act 1985 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2014 (Vic).

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Hannah practices in general insurance litigation with a particular focus on claims and risk...

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Rebecca's areas of expertise include the preparation of design and construction documents, and construction dispute advice and litigation...

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Jessica practices in employment and workplace relations law and provides strategic advice to clients across a range of industries.

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Pia is a Senior Associate in the Commercial Dispute Resolution team with experience across general commercial litigation, banking enforcement and insolvency...

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Markus’ practice focuses on statutory benefits claims brought pursuant to the Accident Compensation Act 1985 (Vic) and Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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Martin specialises in insurance litigation, working with insurers on defending compulsory third party claims...

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Liz's practice focuses on state compensation and liability claims. She has developed particular expertise in identifying and managing complex and technical liability and state compensation claims, considering, analysing and providing commercial advice to both insurers and self-insured employers...

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Lauren specialises in resolving disputes, and works collaboratively with her team and with clients to provide strategic advice and success for the client...

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Kathryn advises and represents clients in a wide range of matters, including general commercial litigation, banking and finance litigation involving mortgages, guarantees and loan agreements, debt recovery and enforcement and corporate insolvency advice.

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Brandon is an experienced insurance litigator specialising in workers’ compensation, medical treatment liability and public liability claims.

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Mitch is an experienced insurance and litigation lawyer who has defended claims on behalf of insurer and private clients as well as state government departments.

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Zoe acts predominately for corporate clients and company directors in cases involving contractual disputes, fraud, corporations and equity matters, competition and consumer law...

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Bridget is an experienced insurance and litigation lawyer who has acted for leading Australian and international insurers and underwriters...

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Shane has a broad commercial and regulatory litigation practice, encompassing investment fund and trustee disputes, banking and company law, financial services, civil and commercial fraud, aviation, construction and infrastructure disputes.

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Belinda is an insurance lawyer with decades of experience over a range of jurisdictions. Belinda is an Accredited Specialist in Personal Injury Law...

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Daisy has extensive experience within the Common Law Workers’ Compensation area. She has also acted in public liability, product liability, medical negligence and CTP cases...

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Ebonie has worked in the area of insurance law since 2011. She has a specific interest in representing employers in workers compensation claims, with her practice encompassing both physical injury and psychological injury claims in both litigated and non-litigated advice matters.

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Melissa is an experienced insurance lawyer who focuses on advising major national insurers on CTP and public liability claims ranging from homeowners to small businesses.

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Dr Wolfgang Babeck has more than 20 years’ experience as a corporate and commercial lawyer and is admitted in New South Wales, England & Wales and as Rechtsanwalt in Germany...

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Sumith Perera

Chief Operating Officer

Sumith is the Chief Operating Officer and the national Head of Corporate Services at Hall & Wilcox. He has over 20 years' experience in leading and managing teams at professional services firms.

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Peter is the Client Solutions Director at Hall & Wilcox where he drives their Smarter Law program and fosters innovation at the firm...

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Dean is the Head of Hall & Wilcox’s Finance team. He has over 15 years’ experience in finance within professional services firms.

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Katie is the Director of People & Culture for Hall & Wilcox. She has over 20 years’ experience in the legal industry.

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Melanie is the national head of Hall & Wilcox’s Business Development, Marketing & Communications team...

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Mike manages the Legal Excellence & Risk team at Hall & Wilcox and is responsible for the firm’s precedents, risk management and general counsel/company secretarial functions.

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Janneke is the operations manager and head of operations nationally at Hall & Wilcox. She has over 15 years’ experience in human resources and project management across a variety of industries, including professional services, IT, banking and utilities...

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Pious is the IT manager and head of IT nationally at Hall & Wilcox. He has over 18 years’ experience as a senior IT executive with a proven track record in legal and government technology management sectors.

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Melinda is the national marketing and communications manager at Hall & Wilcox. She has more than 20 years’ experience as a journalist, content creator and marketing communications specialist at professional services firms.

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The first tranche of draft regulations was released for public consultation on 26 March 2007 as part of the Corporations and Financial Services Regulation Review process. Some key issues dealt with in the first round of draft regulations are set out below: Keeping Financial Services Guides and Product Disclosure Statements up to date Where there […]

Thinking | Mon 05 2007

Compensation Arrangements for Financial Services Providers

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