Nichol v Discovery Africa Limited [2016] FCAFC 182

FEDERAL COURT OF AUSTRALIA

Nichol v Discovery Africa Limited [2016] FCAFC 182 Appeal from: Application for leave to appeal: Discovery Africa Ltd v Nichol [2015] FCA 1497

File numbers: WAD 40 of 2016 WAD 47 of 2016

Judges: GREENWOOD, MCKERRACHER AND MOSHINSKY JJ

Date of judgment: 15 December 2016

Catchwords: CORPORATIONS – termination payments – managers and executives – where director's details not included in directors' report for previous financial year – whether director held a "managerial or executive office" – Corporations Act 2001 (Cth) s 200AA Held: open to construe s 200AA(3) as applicable in cases where a person's name not included in directors' report for previous financial year CORPORATIONS – termination payments – managers and executives – where director employed by related foreign company – where consultancy agreement between related company and company that paid the benefit for the provision of the director's services – where director relied on legal advice that the payment was lawful – identification of the entity that gave the benefit – whether payment was a "benefit" requiring member approval – whether payment made "in connection with" retirement from an office or position of employment with the entity that gave the benefit – whether benefit exempt as conferred under an agreement of the character required by s 200F(2)(a)(ii) – whether payment exempt as payment under the threshold in s 200F(4) – whether conferral of the benefit was required by law – whether company estopped from recovering payments – whether set-off possible where obligation under s 200J to repay – whether summary judgment appropriate in the circumstances