Aquisite Pty Ltd v Moss

Aquisite Pty Ltd brought an action against Moss and others, seeking recovery of losses suffered by Amici Food Manufacturer Pty Ltd (in liquidation) under various sections of the Corporations Act 2001 (Cth). The central issue was whether Moss acted as a de facto director of Amici, thereby rendering him liable for the insolvent trading and other breaches committed by the company. Amici was a food manufacturing company that operated from May 2016 until its liquidation in May 2017. The plaintiff, Aquisite, claimed that Moss and Gigliotti were effectively in control of Amici's operations and that Moss should be held liable as a de facto director for the company's debts and liabilities.

The court had to determine whether Moss was a de facto director of Amici and, if so, whether he was liable for the company's insolvent trading and other breaches. This involved examining the extent of Moss's involvement in Amici's operations, the control he exercised, and whether his actions met the criteria for being considered a de facto director under the Corporations Act. The court also had to assess the claims for unfair preferences, unreasonable director-related transactions, and breaches of fiduciary duty against Moss.

The court found that Moss did not act as a de facto director of Amici. While Moss was involved in some aspects of Amici's operations, the court concluded that his role did not amount to acting in the position of a director. The evidence showed that Gigliotti was the sole director and that Moss's involvement was more that of an advisor or consultant rather than a controlling director. The court rejected the plaintiff's claims for insolvent trading, unfair preferences, and breaches of fiduciary duty against Moss. However, the court did find that Moss was liable for a transaction that constituted an unfair preference under section 588FA of the Corporations Act.

The court ordered that the proceedings against the second and fourth defendants be dismissed. The parties were directed to file short submissions to give effect to the court's reasons, including any further applications for interest, costs, or other relief, within 14 days of the publication of the reasons. Additionally, the Registrar of the Court was instructed to provide a copy of the reasons to ASIC for consideration of whether there should be an investigation into the circumstances leading to Amici's liquidation.