Discovery Africa Ltd v Nichol [2015] FCA 1497

FEDERAL COURT OF AUSTRALIA

Discovery Africa Ltd v Nichol [2015] FCA 1497 Citation: Discovery Africa Ltd v Nichol [2015] FCA 1497

Parties: DISCOVERY AFRICA LIMITED (ACN 147 324 847) v KEVIN WILLIAM NICHOL, DANIE VAN DEN BERGH, SINDISE MINING CC, IAN BERT LOVETT, PHILLIP ANDREW THICK, PETER JAMES AVERY and CBP PTY LTD (ACN 166 080 682)

File number: WAD 87 of 2014

Judge: GILMOUR J

Date of judgment: 23 December 2015

Catchwords: CORPORATIONS – whether the relevant payments constituted Termination payments for the purposes of Part 2D.2 of the Corporations Act 2001 (Cth) –whether the payments constituted a "benefit" paid to the respondents – resignation as directors of the applicant company – execution of deeds of release – whether the payments were made "in connection with" retirement as a director of the company – whether the "benefits" are exempt under s 200F – whether the "benefits" were approved pursuant to s 200E – whether the applicant is estopped from asserting that the first respondent is not entitled to the termination payment – whether deed of release acts as a bar to the claim. PRACTICE AND PROCEDURE – application for summary judgment – whether the respondents have a reasonable prospect of success of defending the claim.

Legislation: Corporations Act 2001 (Cth) ss s 200AA, 200AB(1), 200B, 200D, 200E, s 200F(2), 200J(1)(a) Fair Work Act 2009 (Cth) ss 87, 90 and 117 Federal Court of Australia Act 1976 (Cth) s 31A Federal Court Rules 2011 (Cth) r 26.01, 29.07