Resource Equities v Carr Resource Equities v Garrett [2009] NSWSC 1385

New South Wales Supreme Court

CITATION : Resource Equities v Carr Resource Equities v Garrett [2009] NSWSC 1385

HEARING DATE(S) : 2/11/09, 3/11/09, 4/11/09, 5/11/09 and 6/11/09

JUDGMENT DATE : 15 December 2009

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : McDougall J at 1

DECISION : See paragraphs [386] to [392] of the judgment.

CATCHWORDS : COMPANIES – directors and other officers – directors' duties – whether multiple breaches of ss 180, 181 and 182 Corporations Act and common law duties – directors' fees – whether directors had performed work which warranted additional fees – whether directors personally liable for overpayments – dividends - whether a payment to shareholders properly characterised as a dividend or return of capital – whether dividend payable when no profit demonstrable – whether payment otherwise justified – voluntary administration – whether administrator appointed for a proper purpose – whether directors personally liable for resultant costs – loans – whether loan made by company improper – whether directors personally liable – whether directors can be sued when debtor has not been pursued to bankruptcy – issue of shares – whether shares improperly issued to allow directors to maintain control of company – whether resultant litigation defended when no prospects of success – whether directors personally liable for consequent legal costs – defences – whether business judgment rule available – whether to exercise discretion under s1318 Corporations Act – remedies – damages - quantum - CONTRACTS – construction – whether cross claimant indemnified by settlement deed - DAMAGES – whether liability apportionable under the Civil Liability Act – whether available for breaches of the Corporations law - PRACTICE – pleadings – whether issue arguable when not pleaded