Hart Security Australia Pty Ltd v Boucousis [2016] NSWCA 307

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hart Security Australia Pty Ltd v Boucousis [2016] NSWCA 307 Hearing dates: 26, 27 and 28 October 2015 Decision date: 09 November 2016 Before: Bathurst CJ at [1]; Beazley P at [2]; Meagher JA at [3] Decision: 1. Appeal dismissed. 2. Appellant pay the respondents' costs of the appeal. Catchwords: EQUITY – fiduciary relationships – sole company director – where appellant company negotiating contract to provide services to third party – where negotiations at an impasse – where successful negotiation depends on financial support of company's shareholder – where director pursues opportunity to secure contract on basis which involves share issue to fourth party which changes control of company and dilutes value of existing shareholding interest to nil – where director stands to gain significant personal benefits from alternative proposal – whether respondent director in breach of fiduciary duty by pursuing proposal in circumstances where conflict between personal interest and duty

CORPORATIONS – directors – claim against company director for breach of statutory duties under Corporations Act 2001 (Cth) ss 181(1), 182(2), 183(3) – where not established that director not acting in good faith or for what believed to be a proper purpose – where not established that purpose of director to gain an advantage for himself or fourth party

DAMAGES – loss of chance – where proof of loss of valuable commercial opportunity depends on what appellant and other negotiating party would have done – whether proved on balance of probabilities that lost a valuable opportunity by reason of director's breach of duty