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Alora Davies Developments 104 Pty Ltd (in liq) v Raphael

Alora Davies Developments 104 Pty Ltd (in liq) v Raphael

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Case Copied 10 May 2024 78 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Alora Davies Developments 104 Pty Ltd (in liq) & Ors v Raphael & Anor [2024] NSWSC 547
Hearing dates: 20-22 March 2024, 9-10, 23 April 2024
Date of orders: 10 May 2024
Decision date: 10 May 2024
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
Declarations and orders in respect of directors’ duties and under Part 5.7B of the Corporations Act 2001 (Cth) made against the Defendants.

Catchwords:
CORPORATIONS – Directors and officers – Whether Second Defendant was a de facto or shadow director of the company.
CORPORATIONS – Directors and officers – Breach of duties under ss 180–182 of the Corporations Act 2001 (Cth) – Breach of fiduciary duties – Whether directors caused company to enter uncommercial transactions – Whether directors caused funds to be transferred to related entity absent any benefit to the company – Whether directors procured loan to the company while it was insolvent.
CORPORATIONS – Whether transactions amount to unfair preferences, uncommercial transactions, unreasonable-director related transactions and insolvent transactions under Part 5.7B of the Corporations Act 2001 (Cth).

Legislation Cited:
- Civil Procedure Act 2005 (NSW) ss 100, 101
- Corporations Act 2001 (Cth) ss 9, 95A, 180-183, 588FA, 588FB, 588FC, 588FDA, 588FE, 588FF, 588G, 588M, 1317H
- Evidence Act 1995 (NSW) ss 136, 140
- Environmental Planning and Assessment Act 1979 (NSW) s 7.6

Cases Cited:
- Armagas Ltd v Mundogas SA [1985] 1 Ll R 1
- Australian Securities and Investments Commission v Cassimatis (No 8) (2016) 336 ALR 209; [2016] FCA 1023
- Australian Securities and Investments Commission v Plymin (No 1) (2003) 46 ACSR 126; [2003] VSC 123
- Australian Securities Commission v AS Nominees Ltd (1995) 62 FCR 504; (2019) 133 ALR 1; (2019) 18 ACSR 459; [1995] FCA 1663
- Bentley Smythe Pty Ltd v Anton Fabrications (NSW) Pty Ltd (2011) 248 FLR 384; [2011] NSWSC 186
- Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
- Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd (2010) 238 FLR 384; (2010) 77 ACSR 410; [2010] NSWSC 233
- Buzzle Operations Pty Ltd v Apple Computers Australia Pty Ltd (2011) 250 FLR 242; (2011) 82 ACSR 703; [2011] NSWCA 109
- Capital Finance Australia Ltd v Tolcher (2007) 164 FCR 83; (2007) 64 ACSR 705; [2007] FCAFC 185
- Cassimatis v Australian Securities and Investments Commission (2020) 376 ALR 261; (2020) 144 ACSR 107; [2020] FCAFC 52
- Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36
- Canstruct Pty Ltd v Project Sea Dragon Pty Ltd (subject to DOCA) (No 4) [2024] FCA 112
- Coope v LCM Litigation Fund Pty Ltd (2016) 333 ALR 524; [2016] NSWCA 37
- Crowe-Maxwell v Frost (2016) 91 NSWLR 414; 111 ACSR 583; [2016] NSWCA 46
- Deputy Commissioner of Taxation v Austin (1998) 28 ACSR 565 at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWSC 547
Decision Date: 10 May 2024

CaseChat Overview and Summary

The case of Alora Davies Developments 104 Pty Ltd (in liq) v Raphael involved the liquidator of Alora Davies Developments 104 Pty Ltd, a company that had entered liquidation, suing Raphael, the second defendant, over his role and conduct as a director and officer of the company. The central dispute was whether Raphael acted as a de facto or shadow director of the company, and whether his actions breached the fiduciary duties owed under sections 180-182 of the Corporations Act 2001 (Cth). Specifically, the court needed to determine if Raphael, along with other directors, caused the company to enter into uncommercial transactions, facilitated the transfer of funds to a related entity without any benefit to the company, and procured loans to the company while it was insolvent. Additionally, the liquidator argued that these actions resulted in unfair preferences, uncommercial transactions, unreasonable director-related transactions, and insolvent transactions under Part 5.7B of the Corporations Act 2001 (Cth).

The court examined whether Raphael's influence over the company's decision-making process made him a de facto or shadow director, even though he was not formally appointed. It also assessed the nature and consequences of the transactions in question, focusing on whether they were commercially reasonable and beneficial to the company. The analysis included scrutiny of the timing and purpose of the loans and transfers, and their impact on the company's financial health. The court considered if Raphael's actions breached the statutory duties of care, diligence, and loyalty, and if they amounted to an abuse of position or improper use of information.

In its decision, the court found that Raphael was indeed a de facto director due to his significant influence over the company's operations and decision-making. The court ruled that Raphael, along with other directors, had breached their fiduciary duties by causing the company to enter into uncommercial transactions and facilitating the transfer of funds to a related entity without any benefit to the company. Additionally, the court determined that the directors had procured loans while the company was insolvent, which further breached their duties under the Corporations Act. The court concluded that these actions constituted unfair preferences, uncommercial transactions, unreasonable director-related transactions, and insolvent transactions.

The court ordered that Raphael and the other directors be personally liable for the breaches of duty and for the uncommercial and insolvent transactions. The liquidator was granted the authority to recover the funds transferred to the related entity and to seek compensation for the losses suffered by the company. The court's decision underscored the importance of directors adhering to their fiduciary duties and the severe consequences of failing to do so, especially in the context of corporate insolvency.

Orders