In the matter of Australian Worldwide Pty Ltd [2019] NSWSC 1475

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Australian Worldwide Pty Ltd [2019] NSWSC 1475 Hearing dates: 24–27 September 2019; 1 October 2019 Decision date: 29 October 2019 Jurisdiction: Equity - Corporations List Before: Black J Decision: The proceedings be dismissed with costs. Catchwords: CORPORATIONS – directors and officers – statutory and fiduciary duties – where plaintiffs claim that director of company formulated terms of and provided assistance to counterparty to supply agreement to cause counterparty to terminate and have supply agreement awarded to new company – where counterparty terminated contract – where new supply agreement entered into with new company – whether director's acts were in breach of ss 181, 182 and 183 of the Corporations Act 2001 (Cth) – whether director's acts were in breach of fiduciary duties.

CORPORATIONS – accessorial liability for breach of statutory and fiduciary duties – where plaintiffs claim that shareholders of company and others caused director to divert supply agreement to another company – where those individuals had interest in the other company – where counterparty terminated supply agreement – where new supply agreement entered into with the other company – whether individuals involved in contravention of statutory duties by s 79 of the Corporations Act 2001 (Cth) – whether individuals liable for knowing assistance or knowing receipt for breach of fiduciary duties. Legislation Cited: - Bankruptcy Act 1966 (Cth) ss 58(3), 82(2) - Civil Procedure Act 2005 (NSW) s 100 - Corporations Act 2001 (Cth) ss 79, 79(a), 181, 181(1), 182, 182(1), 183, 183(1), 1317H, 1317H(2) - Evidence Act 1995 (NSW) ss 136, 140 Cases Cited: - Ahrkalimpa Pty Ltd v Schmidt (No 3) [2019] VSC 197 - Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd [2018] HCA 43; (2018) 360 ALR 1; 130 ACSR 359 - Australian Securities and Investments Commission v Drake (No 2) [2016] FCA 1552; (2016) 340 ALR 75; 118 ACSR 189 - Australian Securities and Investments Commission v Flugge [2016] VSC 779; (2016) 342 ALR 1 - Australian Securities and Investments Commission v Gallop International Group Pty Ltd [2019] FCA 1514 - Australian Securities and Investments Commission v Australian Investors Forum Pty Ltd (No 2) [2005] NSWSC 267; (2005) 53 ACSR 305 - Auto Group Ltd v England [2008] NSWSC 402 - Barnes v Addy (1874) LR 9 Ch App 244 - Briginshaw v Briginshaw (1938) 60 CLR 336 - Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373; 5 ALR 231 - Coope v LCM Litigation Fund Pty Ltd [2016] NSWCA 37; (2016) 333 ALR 524 - Digital Cinema Network Pty Ltd v Omnilab Media Pty Ltd (No 2) [2011] FCA 509 - Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 - Giorgianni v R (1985) 156 CLR 473 - Gordon in his capacity as liquidator of Lyon Form Pty Ltd (in liq) v Leon Plant Hire Pty Ltd (in liq) [2015] NSWSC 397 - Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6 - Hart Security Australia Pty Ltd v Boucousis [2016] NSWCA 307 - Hasler v Singtel Optus Pty Ltd [2014] NSWCA 266; (2014) 87 NSWLR 609; 101 ACSR 167 - Kalls Enterprises Pty Ltd (in liq) v Baloglow [2007] NSWCA 191; (2007) 63 ACSR 557 - Kerr v Australian Executor Trustees (SA) Ltd [2019] NSWSC 1279 - Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 - Ramsay v BigTinCan Pty Ltd [2014] NSWCA 324; (2014) 101 ACSR 415 - Re Central Management (NSW) Pty Ltd (in liq) [2017] NSWSC 1258 - Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789; (2014) 101 ACSR 233 - Re Galtari Pty Ltd (in liq) [2018] NSWSC 2037 - Re Waterfront Investments Group Pty Ltd (in liq) [2015] NSWSC 18 - Southern Real Estate Pty Ltd v Dellow [2003] SASC 318; (2003) 87 SASR 1 - Vanguard Financial Planners Pty Ltd v Ale [2018] NSWSC 314 - Westpac Banking Corporation v Bell Group Ltd (in liq) (No 3) [2012] WASCA 157; (2012) 44 WAR 1 - Yorke v Lucas (1985) 158 CLR 661 - Young Investments Group Pty Ltd v Mann (2012) 91 ACSR 89 Category: Principal judgment Parties: Australian Worldwide Pty Ltd (in liq) (First Plaintiff) Australian Worldwide Exports Pty Ltd (in liq) (Second Plaintiff) AW Exports Pty Ltd (First Defendant) Hugh Jones (Second Defendant) Mozammil Bhojani (Third Defendant) Warwick Broxom (Fourth Defendant) Jonathan Kaufman (Fifth Defendant) Representation: Counsel: G Lucarelli (Plaintiffs) T M Faulkner SC/M R Davis (First, Fourth, Fifth Defendants) B DeBuse (Third Defendant)