Australian Securities and Investments Commission v King [2020] HCA 4

HIGH COURT OF AUSTRALIA

KIEFEL CJ, GAGELER, KEANE, NETTLE AND GORDON JJ

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION APPELLANT

AND

MICHAEL CHRISTODOULOU KING & ANOR RESPONDENTS

Australian Securities and Investments Commission v King [2020] HCA 4 Date of Hearing: 9 October 2019 Date of Judgment: 11 March 2020 B29/2019

ORDER

1. Appeal allowed.

2. Set aside paragraphs 1, 2 and 7 of the order made by the Court of Appeal of the Supreme Court of Queensland on 18 December 2018 in Appeal No 6320 of 2017 and, in their place, order that the appeal to the Court of Appeal be dismissed.

3. Set aside the order made by the Court of Appeal dated 18 June 2019 in Appeal No 6320 of 2017 and, in its place, order that Mr King pay the Australian Securities and Investments Commission's costs of the appeal to the Court of Appeal.

4. Mr King pay the Australian Securities and Investments Commission's costs of the appeal to this Court.

On appeal from the Supreme Court of Queensland

Representation

S P Donaghue QC, Solicitor-General of the Commonwealth, with M T Brady QC and O M Ciolek for the appellant (instructed by Corrs Chambers Westgarth)

D F Jackson QC with B J Kabel for the first respondent (instructed by Tucker & Cowen Solicitors)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Australian Securities and Investments Commission v King

Corporations – Officers – Meaning of "officer" of corporation – Where para (b)(ii) of definition in s 9 of Corporations Act 2001 (Cth) defined "officer" of corporation as person who had capacity to affect significantly corporation's financial standing – Where MFS Investment Management Pty Ltd ("MFSIM") responsible entity of registered managed investment scheme, Premium Income Fund ("PIF") – Where MFSIM entered into loan facility to be used solely for purposes of PIF – Where MFSIM drew down on loan facility to pay debts of other related companies in MFS Group – Where MFSIM secured no promise of repayment of funds to PIF – Where first respondent was Chief Executive Officer of parent company of MFS Group – Where first respondent acted as "overall boss" of MFS Group and assumed "overall responsibility" for MFSIM – Where first respondent approved and authorised disbursement of funds from loan facility knowing no benefit or consideration would pass to PIF – Where first respondent not director of MFSIM at relevant time – Where Australian Securities and Investments Commission alleged first respondent breached duties as officer of MFSIM in contravention of Corporations Act – Whether para (b)(ii) of definition of "officer" in Corporations Act requires person to have acted in recognised position within corporation with rights and duties attached to it – Whether first respondent "officer" of MFSIM.