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Director's Liability

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Submitted By alvindeo
Words 11734
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DIRECTORS' DUTIES – THE INSOLVENT TRADING
ISSUES FROM A LAWYER’S PERSPECTIVE
1.

OVERVIEW
The aim of this paper is to: provide an overview of the insolvent trading provisions under Australian law; look at the liabilities which might be imposed on a director for breach of those provisions; examine the defences and in particular: when directors can rely on someone else to tell them about the solvency of their company after Manpac v Ceccatini and Scott v Williams; and the loss of the Southern Cross Interiors defences; look at the decisions in the Solomon; Murawai and the Clark v Perkins cases and the potential for de facto or shadow directors to be exposed to an insolvent trading action; and finally to look at the potential for directors to set-off any exposure they have to a company for insolvent trading from any liability owed by the company to them such as unpaid salary or outstanding loan repayments.

1.1

So what is insolvent trading?
Section 588G of the Corporations Act (the Act) imposes liability on a director of a company who allows the company to incur a debt at a time when the company is insolvent when at the time that the debt was incurred there existed reasonable grounds for suspecting that the company was, or may become as a result of incurring the debt, insolvent. A director will be liable if at the time the debt was incurred he or she was actually aware of the existence of reasonable grounds to suspect insolvency or a reasonable person in a similar position within a similar company would have been so aware.
One of the main problems directors face is being able to identify when a company is insolvent. The somewhat vague definition of insolvency does not assist. Prior to 23 June
1993 no statutory definition of insolvency existed. The Act now contains section 95A which states that a person (including a company) is insolvent

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