Australian Securities and Investments Commission v Healey (No 2)
[2011] FCA 1003
•31 August 2011
FEDERAL COURT OF AUSTRALIA
Australian Securities and Investments Commission v Healey (No 2)
[2011] FCA 1003
Citation: Australian Securities and Investments Commission v Healey (No 2) [2011] FCA 1003 Parties: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v BRIAN HEALEY, ANDREW THOMAS SCOTT, SAMUEL KAVOURAKIS, JAMES WILLIAM HALL, PAUL ASHLEY COOPER, PETER GRAHAM GOLDIE, LOUIS PETER WILKINSON and ROMANO GEORGE NENNA File number: VID 750 of 2009 Judge: MIDDLETON J Date of judgment: 31 August 2011 Catchwords: CORPORATIONS – penalties – declarations of contravention – pecuniary penalties – disqualification from management of corporations – contraventions of the Corporations Act 2001 (Cth) – directors and officers liable to penalty under the Corporations Act 2001 (Cth)
CORPORATIONS – whether directors and officers should be relieved from liability under s 1317S or s 1318 of the Corporations Act 2001 (Cth) – discretion to relieve directors and officers from liability not exercised – relevant principles and factors to be taken into consideration
Legislation: Corporations Act 2001 (Cth) Cases cited: Rich v Australian Securities and Investments Commission (2004) 220 CLR 129
Australian Securities and Investments Commission v MacDonald (No 12) (2009) 259 ALR 116
Australian Securities and Investments Commission v Citrofresh International Ltd (No 3) (2010) 268 ALR 303; [2010] FCA 292
Elliott v Australian Securities and Investments Commission; Plymin v Australian Securities and Investments Commission (2004) 10 VR 369; 205 ALR 594; 48 ACSR 621; [2004] VSCA 54
Australian Securities and Investments Commission v Vizard (2005) 145 FCR 57; 219 ALR 714; 54 ACSR 394; [2005] FCA 1037
Australian Securities and Investments Commission v Vines (2006) 58 ACSR 298
Australian Securities and Investments Commission v White (2006) 58 ACSR 261; [2006] VSC 239
Australian Securities and Investments Commission v Beekink (2007) 238 ALR 595; 61 ACSR 305; [2007] FCAFC 7
Re One.Tel Ltd (in liq); Australian Securities and Investments Commission v Rich (2003) 44 ACSR 682
ASC v Donovan (1999) 28 ACSR 583
Australian Competition Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247
R v Fodera [2007] NSWSC 1194
Re HIH Insurance Ltd (in prov liq) and HIH Casualty and General Insurance Ltd (in prov liq); Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80
ACCC v Telstra Corporation Limited [2010] FCA 790
Australian Securities and Investments Commission, Re Chemeq Ltdv Chemeq Ltd (2006) 58 ACSR 169
Australian Securities and Investments Commissionv Fortescue Metals Group Ltd (2011) 190 FCR 364
Morley v Australian Securities and Investments Commission (No 2) [2011] NSWCA 110
Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169; [2002] FCA 559Date of hearing: 1 and 2 August 2011 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 229 Counsel for the Plaintiff: Mr DMB Derham QC with Mr R Strong Solicitor for the Plaintiff: Australian Securities and Investments Commission Counsel for the First, Third, Fourth, Fifth, Sixth and Seventh Defendants: Mr PD Crutchfield SC with Mr NP De Young and Ms CG Button Solicitor for the First, Third, Fourth, Fifth, Sixth and Seventh Defendants: Gadens Lawyers Counsel for the Second Defendant: Mr L Glick SC with Mr MS Osborne and Ms FJ Bentley Solicitor for the Second Defendant: Strongman & Crouch Counsel for the Eighth Defendant: Mr C Scerri QC with Mr T Woodward SC Solicitor for the Eighth Defendant: Schetzer Brott and Appel Counsel for Centro Properties Ltd and Centro Retail Ltd: Mr P Wallis Solicitor for Centro Properties Ltd and Centro Retail Ltd: Freehills
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 750 of 2009
BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
PlaintiffAND: BRIAN HEALEY
First DefendantANDREW THOMAS SCOTT
Second DefendantSAMUEL KAVOURAKIS
Third DefendantJAMES WILLIAM HALL
Fourth DefendantPAUL ASHLEY COOPER
Fifth DefendantPETER GRAHAM GOLDIE
Sixth DefendantLOUIS PETER WILKINSON
Seventh DefendantROMANO GEORGE NENNA
Eighth Defendant
JUDGE:
MIDDLETON J
DATE OF ORDER:
31 AUGUST 2011
WHERE MADE:
MELBOURNE
Brian Healey (First Defendant)
THE COURT DECLARES THAT:
1.The first defendant, Brian Healey, contravened ss 344(1) and 180(1) of the Corporations Act 2001 (Cth) (the ‘Act’) in relation to Centro Properties Limited (CPL), by his conduct as a director of CPL on 6 September 2007, in participating in and voting in favour of a resolution to approve the annual financial report (‘CPL Financial Report’) and annual directors’ report (‘CPL Directors’ Report’) for the year ended 30 June 2007 (‘CPL Reports’) in circumstances where:
(a)in breach of s 296 of the Act the CPL Financial Report did not comply with the accounting standards in that:
(i)contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $1,514,097,581 were classified and shown in the financial statements as non-current liabilities;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPL had given the following guarantees of a material amount:
A.Amended and Restated Guaranty Agreement (‘Non-Recourse Carveouts’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
B.Guaranty Agreement (‘Payment’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
C.Guaranty Agreement (‘JPMCB’) executed as of 5 August 2007 in favour of JPMorgan Chase Bank NA;
D.Amended and Restated Guaranty Agreement executed as of 31 July 2007 in favour of Bank of America, NA;
(‘Relevant Guarantees’);
(b)in breach of s 297 of the Act, the financial statements and notes in the CPL Financial Report did not give a true and fair view of the financial position of the consolidated entity in that:
(i)the financial statements and notes represented that the interest bearing current liabilities of the consolidated entity were $1,096,936,000 when in fact the current liabilities of the consolidated entity were $2,611,033,581;
(ii)the notes did not disclose the fact that CPL had given the Relevant Guarantees;
(c)in breach of s 298 of the Act, CPL Directors’ Report did not give details of the Relevant Guarantees when those details were required to be given in the report by ss 299(1)(d) and 299A of the Act;
(d)he knew or ought to have known that:
(i)the interest bearing current liabilities of the consolidated entity were substantially in excess of $1,096,093,000;
(ii)CPL had given the Relevant Guarantees;
(e)he ought to have known that the CPL Reports did not comply with the Act in the manner described in paragraphs (a), (b) and (c) above;
when prior to his participating in and voting on the resolution:
(f)he failed to properly read, understand and give sufficient attention to the content of the CPL Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(g)he failed to consider or properly consider the content of the CPL Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(h)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning:
(i)the apparent failure of the CPL Financial Reports to properly classify current and non-current liabilities;
(ii)the apparent failure of the CPL Reports to properly disclose the Relevant Guarantees;
(i)he failed to have the apparent failures with respect to the CPL Reports corrected;
(j)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A of the Act;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(k)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(l)failed to take all reasonable steps to secure compliance by CPL with ss 295A, 296, 297 and 298 of the Act; and
(m)failed to exercise the degree of care and diligence required by s 180(1) by failing to take each of the steps referred to in paragraphs 1(f) to 1(k) above in the course of his review of the CPL Reports.
2.The first defendant, Brian Healey, contravened s 601FD(3) of the Act in relation to Centro Property Trust (‘CPT’), by his conduct on 6 September 2007 as an officer of CPT Manager Limited (‘CPTM’), the responsible entity of CPT, in participating in and voting in favour of a resolution to approve the annual financial report (‘CPT Financial Report’) and annual directors’ report (‘CPT Directors’ Report’) for the year ended 30 June 2007 (‘CPT Reports’) in circumstances where:
(a)in breach of s 296 of the Act the CPT Financial Report did not comply with the accounting standards in that:
(i)contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $1,514,097,581 were classified and shown in the financial statements as non-current liabilities;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPTM as responsible entity of CPT had given the Relevant Guarantees;
(b)in breach of s 297 of the Act, the financial statements and notes in the CPT Financial Report did not give a true and fair view of the financial position of the consolidated entity in that:
(i)the financial statements represented that the interest bearing current liabilities of the consolidated entity were $1,096,936,000 when in fact the current liabilities of the consolidated entity were $2,611,033,581;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPTM as responsible entity of CPT had given the following guarantees of a material amount:
A.Amended and Restated Guaranty Agreement (‘Non-Recourse Carveouts’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
B.Guaranty Agreement (‘Payment’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
C.Guaranty Agreement (‘JPMCB’) executed as of 5 August 2007 in favour of JPMorgan Chase Bank NA;
D.Amended and Restated Guaranty Agreement executed as of 31 July 2007 in favour of Bank of America, NA;
(‘Relevant Guarantees’);
(c)in breach of s 298 of the Act, the CPT Directors’ Report did not give details of the Relevant Guarantees when those details were required to be given in the report by ss 299(1)(d) and 299A of the Act;
(d)he knew or ought to have known that:
(i)the interest bearing current liabilities of the consolidated entity were substantially in excess of $1,096,093,000;
(ii)CPTM had given the Relevant Guarantees;
(e)he ought to have known that the CPT Reports did not comply with the Act in the manner described in paragraphs (a),(b) and (c) above;
when prior to his participating in and voting on the resolution:
(f)he failed to properly read, understand and give sufficient attention to the content of the CPT Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(g)he failed to consider or properly consider the content of the CPT Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(h)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning:
(i)the apparent failure of the CPT Financial Report to properly classify current and non-current liabilities;
(ii)the apparent failure of the CPT Reports to properly disclose the Relevant Guarantees;
(i)he failed to have the apparent failures with respect to the CPT Reports corrected;
(j)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A of the Act;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(k)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(l)contrary to s 601FD(1)(f) of the Act, failed to take all steps that a reasonable person in his position would take to ensure compliance by CPTM with ss 295A, 296, 297 and 298 of the Act;
(m)failed to exercise the degree of care and diligence required by s 601FD(1)(b) of the Act by failing to take each of the steps referred to in paragraphs 2(f) to 2(k) above in the course of his review of the CPT Reports.
3.The first defendant, Brian Healey, contravened s 601FD(3) of the Act in relation to Centro Retail Trust (‘CRT’) by his conduct on 6 September 2007 as an officer of Centro MCS Manager Limited (‘CMCSM’), the responsible entity of CRT, in participating in and voting in favour of a resolution to approve the annual financial report of CRT for the year ended 30 June 2007 (‘CRT Financial Report’) in circumstances where:
(a)in breach of s 296 of the Act the CRT Financial Report did not comply with the accounting standards in that contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $598,292,097 were classified and shown in the financial statements as non-current liabilities;
(b)in breach of s 297 of the Act, the financial statements and notes in the CRT Financial Report did not give a true and fair view of the financial position of the consolidated entity in that the financial statements and notes represented that the interest bearing current liabilities of the consolidated entity were zero when in fact the interest bearing current liabilities of the consolidated entity were $598,292,097;
(c)he knew or ought to have known that the interest bearing current liabilities of the consolidated entity were substantially in excess of zero;
(d)he ought to have known that the CRT Financial Report did not comply with the Act in the manner described in paragraphs (a) and (b) above;
when prior to his participating in and voting on the resolution:
(e)he failed to properly read, understand and give sufficient attention to the content of the CRT Financial Report in so far as it related to the classification of liabilities as either current or non-current;
(f)he failed to consider or properly consider the content of the CRT Financial Report in so far as it related to the classification of liabilities as either current or non-current;
(g)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning the apparent failure of the CRT Financial Report to properly classify current and non-current liabilities;
(h)he failed to have the apparent failure with respect to the CRT Financial Report corrected;
(i)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(j)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(k)contrary to s 601FD(1)(f) of the Act, failed to take all steps that a reasonable person would take if they were in his position to ensure compliance by CMCSM with ss 295A, 296, 297 and 298 of the Act; and
(l)failed to exercise the degree of care and diligence required by s 601FD(1)(b) of the Act by failing to take each of the steps referred to in paragraphs 3(e) to 3(j) above in the course of his review of the CRT Financial Report.
AND THE COURT ORDERS THAT:
4.The first defendant’s application for relief from liability brought pursuant to ss 1317S and 1318 of the Corporations Act 2001 (Cth) is dismissed.
5.The first defendant pay:
(a)one-eighth of the plaintiff’s costs (including reserved costs) of and incidental to this proceeding (other than the costs referred to in paragraph (b)); and
(b)one-seventh of the plaintiff’s costs (including reserved costs) of and incidental to this proceeding incurred on and after 4 April 2011 up to and including 27 May 2011.
Andrew Thomas Scott (Second Defendant)
THE COURT DECLARES THAT:
1.The second defendant, Andrew Thomas Scott, contravened ss 344(1) and 180(1) of the Corporations Act2001 (Cth) (‘the Act’) in relation to Centro Properties Limited (‘CPL’), by his conduct as a director of CPL on 6 September 2007, in participating in and voting in favour of a resolution to approve the annual financial report (‘CPL Financial Report’) and annual directors’ report (‘CPL Directors’ Report’) for the year ended 30 June 2007 (‘CPL Reports’) in circumstances where:
(a)in breach of s 296 of the Act the CPL Financial Report did not comply with the accounting standards in that:
(i)contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $1,514,097,581 were classified and shown in the financial statements as non-current liabilities;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPL had given the following guarantees of a material amount:
A.Amended and Restated Guaranty Agreement (‘Non-Recourse Carveouts’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
B.Guaranty Agreement (‘Payment’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
C.Guaranty Agreement (‘JPMCB’) executed as of 5 August 2007 in favour of JPMorgan Chase Bank NA;
D.Amended and Restated Guaranty Agreement executed as of 31 July 2007 in favour of Bank of America, NA;
(‘Relevant Guarantees’);
(b)in breach of s 297 of the Act, the financial statements and notes in the CPL Financial Report did not give a true and fair view of the financial position of the consolidated entity in that:
(i)the financial statements and notes represented that the interest bearing current liabilities of the consolidated entity were $1,096,936,000 when in fact the current liabilities of the consolidated entity were $2,611,033,581;
(ii)the notes did not disclose the fact that CPL had given the Relevant Guarantees;
(c)in breach of section 298 of the Act, CPL Directors’ Report did not give details of the Relevant Guarantees when those details were required to be given in the report by sections 299(1)(d) and 299A of the Act;
(d)he knew or ought to have known that:
(i)the interest bearing current liabilities of the consolidated entity were substantially in excess of $1,096,093,000;
(ii)CPL had given the Relevant Guarantees;
(e)he ought to have known that the CPL Reports did not comply with the Act in the manner described in paragraphs (a), (b) and (c) above;
when prior to his participating in and voting on the resolution:
(f)he failed to properly read, understand and give sufficient attention to the content of the CPL Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(g)he failed to consider or properly consider the content of the CPL Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(h)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning:
(i)the apparent failure of the CPL Financial Reports to properly classify current and non-current liabilities;
(ii)the apparent failure of the CPL Reports to properly disclose the Relevant Guarantees;
(i)he failed to have the apparent failures with respect to the CPL Reports corrected;
(j)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A of the Act;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(k)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(l)failed to take all reasonable steps to secure compliance by CPL with ss 295A, 296, 297 and 298 of the Act; and
(m)failed to exercise the degree of care and diligence required by s 180(1) by failing to take each of the steps referred to in paragraphs 1(f) to 1(k) above in the course of his review of the CPL Reports.
2.The second defendant, Andrew Thomas Scott, contravened s 601FD(3) of the Corporations Act 2001 (Act) in relation to Centro Property Trust (‘CPT’), by his conduct on 6 September 2007 as an officer of CPT Manager Limited (‘CPTM’), the responsible entity of CPT, in participating in and voting in favour of a resolution to approve the annual financial report (‘CPT Financial Report’) and annual directors’ report (‘CPT Directors’ Report’) for the year ended 30 June 2007 (‘CPT Reports’) in circumstances where:
(a)in breach of s 296 of the Act the CPT Financial Report did not comply with the accounting standards in that:
(i)contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $1,514,097,581 were classified and shown in the financial statements as non-current liabilities;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPTM as responsible entity of CPT had given the Relevant Guarantees;
(b)in breach of s 297 of the Act, the financial statements and notes in the CPT Financial Report did not give a true and fair view of the financial position of the consolidated entity in that:
(i)the financial statements represented that the interest bearing current liabilities of the consolidated entity were $1,096,936,000 when in fact the current liabilities of the consolidated entity were $2,611,033,581;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPTM as responsible entity of CPT had given the following guarantees of a material amount:
A.Amended and Restated Guaranty Agreement (‘Non-Recourse Carveouts’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
B.Guaranty Agreement (‘Payment’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
C.Guaranty Agreement (‘JPMCB’) executed as of 5 August 2007 in favour of JPMorgan Chase Bank NA;
D.Amended and Restated Guaranty Agreement executed as of 31 July 2007 in favour of Bank of America, NA;
(‘Relevant Guarantees’);
(c)in breach of s 298 of the Act, the CPT Directors’ Report did not give details of the Relevant Guarantees when those details were required to be given in the report by ss 299(1)(d) and 299A of the Act;
(d)he knew or ought to have known that:
(i)the interest bearing current liabilities of the consolidated entity were substantially in excess of $1,096,093,000;
(ii)CPTM had given the Relevant Guarantees;
(e)he ought to have known that the CPT Reports did not comply with the Act in the manner described in paragraphs (a), (b) and (c) above;
when prior to his participating in and voting on the resolution:
(f)he failed to properly read, understand and give sufficient attention to the content of the CPT Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(g)he failed to consider or properly consider the content of the CPT Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(h)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning:
(i)the apparent failure of the CPT Financial Report to properly classify current and non-current liabilities;
(ii)the apparent failure of the CPT Reports to properly disclose the Relevant Guarantees;
(i)he failed to have the apparent failures with respect to the CPT Reports corrected;
(j)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A of the Act;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(k)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(l)contrary to s 601FD(1)(f) of the Act, failed to take all steps that a reasonable person in his position would take to ensure compliance by CPTM with ss 295A, 296, 297 and 298 of the Act;
(m)failed to exercise the degree of care and diligence required by s 601FD(1)(b) of the Act by failing to take each of the steps referred to in paragraphs 2(f) to 2(k) above in the course of his review of the CPT Reports.
3.The second defendant, Andrew Thomas Scott, contravened s 601FD(3) of the Act in relation to Centro Retail Trust (‘CRT’) by his conduct on 6 September 2007 as an officer of Centro MCS Manager Limited (‘CMCSM’), the responsible entity of CRT, in participating in and voting in favour of a resolution to approve the annual financial report of CRT for the year ended 30 June 2007 (‘CRT Financial Report’) in circumstances where:
(a)in breach of s 296 of the Act the CRT Financial Report did not comply with the accounting standards in that contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $598,292,097 were classified and shown in the financial statements as non-current liabilities;
(b)in breach of section 297 of the Act, the financial statements and notes in the CRT Financial Report did not give a true and fair view of the financial position of the consolidated entity in that the financial statements and notes represented that the interest bearing current liabilities of the consolidated entity were zero when in fact the interest bearing current liabilities of the consolidated entity were $598,292,097;
(c)he knew or ought to have known that the interest bearing current liabilities of the consolidated entity were substantially in excess of zero;
(d)he ought to have known that the CRT Financial Report did not comply with the Act in the manner described in paragraphs (a) and (b) above;
when prior to his participating in and voting on the resolution:
(e)he failed to properly read, understand and give sufficient attention to the content of the CRT Financial Report in so far as it related to the classification of liabilities as either current or non-current;
(f)he failed to consider or properly consider the content of the CRT Financial Report in so far as it related to the classification of liabilities as either current or non-current;
(g)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning the apparent failure of the CRT Financial Report to properly classify current and non-current liabilities;
(h)he failed to have the apparent failure with respect to the CRT Financial Report corrected;
(i)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A of the Act;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(j)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(k)contrary to s 601FD(1)(f) of the Act, failed to take all steps that a reasonable person would take if they were in his position to ensure compliance by CMCSM with ss 295A, 296, 297 and 298 of the Act; and
(l)failed to exercise the degree of care and diligence required by s 601FD(1)(b) of the Act by failing to take each of the steps referred to in paragraphs 3(e) to 3(j) above in the course of his review of the CRT Financial Report.
AND THE COURT ORDERS THAT:
4.The second defendant’s application for relief from liability brought pursuant to ss 1317S and 1318 of the Corporations Act 2001 (Cth) is dismissed.
5.The second defendant pay to the Commonwealth a penalty in the amount of $30,000.
6.The second defendant pay:
(a)one-eighth of the plaintiff’s costs (including reserved costs) of and incidental to this proceeding (other than the costs referred to in paragraph (b)); and
(b)one-seventh of the plaintiff’s costs (including reserved costs) of and incidental to this proceeding incurred on and after 4 April 2011 up to and including 27 May 2011.
Samuel Kavourakis (Third Defendant)
THE COURT DECLARES THAT:
1.The third defendant, Samuel Kavourakis, contravened ss 344(1) and 180(1) of the Corporations Act 2001 (‘the Act’) in relation to Centro Properties Limited (‘CPL’), by his conduct as a director of CPL on 6 September 2007, in participating in and voting in favour of a resolution to approve the annual financial report (‘CPL Financial Report’) and annual directors’ report (‘CPL Directors’ Report’) for the year ended 30 June 2007 (‘CPL Reports’) in circumstances where:
(a)in breach of s 296 of the Act the CPL Financial Report did not comply with the accounting standards in that:
(i)contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $1,514,097,581 were classified and shown in the financial statements as non-current liabilities;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPL had given the following guarantees of a material amount:
A.Amended and Restated Guaranty Agreement (‘Non-Recourse Carveouts’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
B.Guaranty Agreement (‘Payment’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
C.Guaranty Agreement (‘JPMCB’) executed as of 5 August 2007 in favour of JPMorgan Chase Bank NA;
D.Amended and Restated Guaranty Agreement executed as of 31 July 2007 in favour of Bank of America, NA;
(‘Relevant Guarantees’);
(b)in breach of s 297 of the Act, the financial statements and notes in the CPL Financial Report did not give a true and fair view of the financial position of the consolidated entity in that:
(i)the financial statements and notes represented that the interest bearing current liabilities of the consolidated entity were $1,096,936,000 when in fact the current liabilities of the consolidated entity were $2,611,033,581;
(ii)the notes did not disclose the fact that CPL had given the Relevant Guarantees;
(c)in breach of s 298 of the Act, CPL Directors’ Report did not give details of the Relevant Guarantees when those details were required to be given in the report by ss 299(1)(d) and 299A of the Act;
(d)he knew or ought to have known that:
(i)the interest bearing current liabilities of the consolidated entity were substantially in excess of $1,096,093,000;
(ii)CPL had given the Relevant Guarantees;
(e)he ought to have known that the CPL Reports did not comply with the Act in the manner described in paragraphs (a), (b) and (c) above;
when prior to his participating in and voting on the resolution:
(f)he failed to properly read, understand and give sufficient attention to the content of the CPL Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(g)he failed to consider or properly consider the content of the CPL Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(h)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning:
(i)the apparent failure of the CPL Financial Reports to properly classify current and non-current liabilities;
(ii)the apparent failure of the CPL Reports to properly disclose the Relevant Guarantees;
(i)he failed to have the apparent failures with respect to the CPL Reports corrected;
(j)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A of the Act;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(k)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(l)failed to take all reasonable steps to secure compliance by CPL with ss 295A, 296, 297 and 298 of the Act; and
(m)failed to exercise the degree of care and diligence required by s 180(1) by failing to take each of the steps referred to in paragraphs 1(f) to 1(k) above in the course of his review of the CPL Reports.
2.The third defendant, Samuel Kavourakis, contravened s 601FD(3) of the Act in relation to Centro Property Trust (‘CPT’), by his conduct on 6 September 2007 as an officer of CPT Manager Limited (‘CPTM’), the responsible entity of CPT, in participating in and voting in favour of a resolution to approve the annual financial report (‘CPT Financial Report’) and annual directors’ report (‘CPT Directors’ Report’) for the year ended 30 June 2007 (‘CPT Reports’) in circumstances where:
(a)in breach of s 296 of the Act the CPT Financial Report did not comply with the accounting standards in that:
(i)contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $1,514,097,581 were classified and shown in the financial statements as non-current liabilities;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPTM as responsible entity of CPT had given the Relevant Guarantees;
(b)in breach of s 297 of the Act, the financial statements and notes in the CPT Financial Report did not give a true and fair view of the financial position of the consolidated entity in that:
(i)the financial statements represented that the interest bearing current liabilities of the consolidated entity were $1,096,936,000 when in fact the current liabilities of the consolidated entity were $2,611,033,581;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPTM as responsible entity of CPT had given the following guarantees of a material amount:
A.Amended and Restated Guaranty Agreement (‘Non-Recourse Carveouts’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
B.Guaranty Agreement (‘Payment’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
C.Guaranty Agreement (‘JPMCB’) executed as of 5 August 2007 in favour of JPMorgan Chase Bank NA;
D.Amended and Restated Guaranty Agreement executed as of 31 July 2007 in favour of Bank of America, NA;
(‘Relevant Guarantees’);
(c)in breach of s 298 of the Act, the CPT Directors’ Report did not give details of the Relevant Guarantees when those details were required to be given in the report by ss 299(1)(d) and 299A of the Act;
(d)he knew or ought to have known that:
(i)the interest bearing current liabilities of the consolidated entity were substantially in excess of $1,096,093,000;
(ii)CPTM had given the Relevant Guarantees;
(e)he ought to have known that the CPT Reports did not comply with the Act in the manner described in paragraphs (a),(b) and (c) above;
when prior to his participating in and voting on the resolution:
(f)he failed to properly read, understand and give sufficient attention to the content of the CPT Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(g)he failed to consider or properly consider the content of the CPT Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(h)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning:
(i)the apparent failure of the CPT Financial Report to properly classify current and non-current liabilities;
(ii)the apparent failure of the CPT Reports to properly disclose the Relevant Guarantees;
(i)he failed to have the apparent failures with respect to the CPT Reports corrected;
(j)
he failed:(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A of the Act;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(k)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(l)contrary to s 601FD(1)(f) of the Act, failed to take all steps that a reasonable person in his position would take to ensure compliance by CPTM with ss 295A, 296, 297 and 298 of the Act;
(m)failed to exercise the degree of care and diligence required by s 601FD(1)(b) of the Act by failing to take each of the steps referred to in paragraphs 2(f) to 2(k) above in the course of his review of the CPT Reports.
3.The third defendant, Samuel Kavourakis, contravened s 601FD(3) of the Act in relation to Centro Retail Trust (‘CRT’) by his conduct on 6 September 2007 as an officer of Centro MCS Manager Limited (‘CMCSM’), the responsible entity of CRT, in participating in and voting in favour of a resolution to approve the annual financial report of CRT for the year ended 30 June 2007 (‘CRT Financial Report’) in circumstances where:
(a)in breach of s 296 of the Act the CRT Financial Report did not comply with the accounting standards in that contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $598,292,097 were classified and shown in the financial statements as non-current liabilities;
(b)in breach of section 297 of the Act, the financial statements and notes in the CRT Financial Report did not give a true and fair view of the financial position of the consolidated entity in that the financial statements and notes represented that the interest bearing current liabilities of the consolidated entity were zero when in fact the interest bearing current liabilities of the consolidated entity were $598,292,097;
(c)he knew or ought to have known that the interest bearing current liabilities of the consolidated entity were substantially in excess of zero;
(d)he ought to have known that the CRT Financial Report did not comply with the Act in the manner described in paragraphs (a) and (b) above;
when prior to his participating in and voting on the resolution:
(e)he failed to properly read, understand and give sufficient attention to the content of the CRT Financial Report in so far as it related to the classification of liabilities as either current or non-current;
(f)he failed to consider or properly consider the content of the CRT Financial Report in so far as it related to the classification of liabilities as either current or non-current;
(g)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning the apparent failure of the CRT Financial Report to properly classify current and non-current liabilities;
(h)he failed to have the apparent failure with respect to the CRT Financial Report corrected;
(i)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(j)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(k)contrary to s 601FD(1)(f) of the Act, failed to take all steps that a reasonable person would take if they were in his position to ensure compliance by CMCSM with ss 295A, 296, 297 and 298 of the Act; and
(l)failed to exercise the degree of care and diligence required by s 601FD(1)(b) of the Act by failing to take each of the steps referred to in paragraphs 3(e) to 3(j) above in the course of his review of the CRT Financial Report.
AND THE COURT ORDERS THAT:
4.The third defendant’s application for relief from liability brought pursuant to ss 1317S and 1318 of the Corporations Act 2001 (Cth) is dismissed.
5.The third defendant pay:
(a)one-eighth of the plaintiff’s costs (including reserved costs) of and incidental to this proceeding (other than the costs referred to in paragraph (b)); and
(b)one-seventh of the plaintiff’s costs (including reserved costs) of and incidental to this proceeding incurred on and after 4 April 2011 up to and including 27 May 2011.
James William Hall (Fourth Defendant)
THE COURT DECLARES THAT:
1.The fourth defendant, James William Hall, contravened ss 344(1) and 180(1) of the Corporations Act 2001 (‘the Act’) in relation to Centro Properties Limited (‘CPL’), by his conduct as a director of CPL on 6 September 2007, in participating in and voting in favour of a resolution to approve the annual financial report (‘CPL Financial Report’) and annual directors’ report (‘CPL Directors’ Report’) for the year ended 30 June 2007 (‘CPL Reports’) in circumstances where:
(a)in breach of s 296 of the Act the CPL Financial Report did not comply with the accounting standards in that:
(i)contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $1,514,097,581 were classified and shown in the financial statements as non-current liabilities;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPL had given the following guarantees of a material amount:
A.Amended and Restated Guaranty Agreement (‘Non-Recourse Carveouts’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
B.Guaranty Agreement (‘Payment’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
C.Guaranty Agreement (‘JPMCB’) executed as of 5 August 2007 in favour of JPMorgan Chase Bank NA;
D.Amended and Restated Guaranty Agreement executed as of 31 July 2007 in favour of Bank of America, NA;
(‘Relevant Guarantees’);
(b)in breach of s 297 of the Act, the financial statements and notes in the CPL Financial Report did not give a true and fair view of the financial position of the consolidated entity in that:
(i)the financial statements and notes represented that the interest bearing current liabilities of the consolidated entity were $1,096,936,000 when in fact the current liabilities of the consolidated entity were $2,611,033,581;
(ii)the notes did not disclose the fact that CPL had given the Relevant Guarantees;
(c)in breach of s 298 of the Act, CPL Directors’ Report did not give details of the Relevant Guarantees when those details were required to be given in the report by ss 299(1)(d) and 299A of the Act;
(d)he knew or ought to have known that:
(i)the interest bearing current liabilities of the consolidated entity were substantially in excess of $1,096,093,000;
(ii)CPL had given the Relevant Guarantees;
(e)he ought to have known that the CPL Reports did not comply with the Act in the manner described in paragraphs (a), (b) and (c) above;
when prior to his participating in and voting on the resolution:
(f)he failed to properly read, understand and give sufficient attention to the content of the CPL Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(g)he failed to consider or properly consider the content of the CPL Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(h)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning:
(i)the apparent failure of the CPL Financial Reports to properly classify current and non-current liabilities;
(ii)the apparent failure of the CPL Reports to properly disclose the Relevant Guarantees;
(i)he failed to have the apparent failures with respect to the CPL Reports corrected;
(j)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A of the Act;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(k)
the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(l)failed to take all reasonable steps to secure compliance by CPL with ss 295A, 296, 297 and 298 of the Act; and
(m)failed to exercise the degree of care and diligence required by s 180(1) by failing to take each of the steps referred to in paragraphs 1(f) to 1(k) above in the course of his review of the CPL Reports.
2.The fourth defendant, James William Hall, contravened s 601FD(3) of the Act in relation to Centro Property Trust (‘CPT’), by his conduct on 6 September 2007 as an officer of CPT Manager Limited (‘CPTM’), the responsible entity of CPT, in participating in and voting in favour of a resolution to approve the annual financial report (‘CPT Financial Report’) and annual directors’ report (‘CPT Directors’ Report’) for the year ended 30 June 2007 (‘CPT Reports’) in circumstances where:
(a)in breach of s 296 of the Act the CPT Financial Report did not comply with the accounting standards in that:
(i)contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $1,514,097,581 were classified and shown in the financial statements as non-current liabilities;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPTM as responsible entity of CPT had given the Relevant Guarantees;
(b)in breach of s 297 of the Act, the financial statements and notes in the CPT Financial Report did not give a true and fair view of the financial position of the consolidated entity in that:
(i)the financial statements represented that the interest bearing current liabilities of the consolidated entity were $1,096,936,000 when in fact the current liabilities of the consolidated entity were $2,611,033,581;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPTM as responsible entity of CPT had given the following guarantees of a material amount:
A.Amended and Restated Guaranty Agreement (‘Non-Recourse Carveouts’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
B.Guaranty Agreement (‘Payment’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
C.Guaranty Agreement (‘JPMCB’) executed as of 5 August 2007 in favour of JPMorgan Chase Bank NA;
D.Amended and Restated Guaranty Agreement executed as of 31 July 2007 in favour of Bank of America, NA;
(‘Relevant Guarantees’);
(c)in breach of s 298 of the Act, the CPT Directors’ Report did not give details of the Relevant Guarantees when those details were required to be given in the report by ss 299(1)(d) and 299A of the Act;
(d)he knew or ought to have known that:
(i)the interest bearing current liabilities of the consolidated entity were substantially in excess of $1,096,093,000;
(ii)CPTM had given the Relevant Guarantees;
(e)he ought to have known that the CPT Reports did not comply with the Act in the manner described in paragraphs (a),(b) and (c) above;
when prior to his participating in and voting on the resolution:
(f)he failed to properly read, understand and give sufficient attention to the content of the CPT Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(g)he failed to consider or properly consider the content of the CPT Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(h)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning:
(i)the apparent failure of the CPT Financial Report to properly classify current and non-current liabilities;
(ii)the apparent failure of the CPT Reports to properly disclose the Relevant Guarantees;
(i)he failed to have the apparent failures with respect to the CPT Reports corrected;
(j)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A of the Act;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(k)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(l)contrary to s 601FD(1)(f) of the Act, failed to take all steps that a reasonable person in his position would take to ensure compliance by CPTM with ss 295A, 296, 297 and 298 of the Act;
(m)failed to exercise the degree of care and diligence required by s 601FD(1)(b) of the Act by failing to take each of the steps referred to in paragraphs 2(f) to 2(k) above in the course of his review of the CPT Reports.
3.The fourth defendant, James William Hall, contravened s 601FD(3) of the Act in relation to Centro Retail Trust (‘CRT’) by his conduct on 6 September 2007 as an officer of Centro MCS Manager Limited (‘CMCSM’), the responsible entity of CRT, in participating in and voting in favour of a resolution to approve the annual financial report of CRT for the year ended 30 June 2007 (‘CRT Financial Report’) in circumstances where:
(a)in breach of s 296 of the Act the CRT Financial Report did not comply with the accounting standards in that contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $598,292,097 were classified and shown in the financial statements as non-current liabilities;
(b)in breach of s 297 of the Act, the financial statements and notes in the CRT Financial Report did not give a true and fair view of the financial position of the consolidated entity in that the financial statements and notes represented that the interest bearing current liabilities of the consolidated entity were zero when in fact the interest bearing current liabilities of the consolidated entity were $598,292,097;
(c)he knew or ought to have known that the interest bearing current liabilities of the consolidated entity were substantially in excess of zero;
(d)he ought to have known that the CRT Financial Report did not comply with the Act in the manner described in paragraphs (a) and (b) above;
when prior to his participating in and voting on the resolution:
(e)he failed to properly read, understand and give sufficient attention to the content of the CRT Financial Report in so far as it related to the classification of liabilities as either current or non-current;
(f)he failed to consider or properly consider the content of the CRT Financial Report in so far as it related to the classification of liabilities as either current or non-current;
(g)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning the apparent failure of the CRT Financial Report to properly classify current and non-current liabilities;
(h)he failed to have the apparent failure with respect to the CRT Financial Report corrected;
(i)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(j)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(k)contrary to s 601FD(1)(f) of the Act, failed to take all steps that a reasonable person would take if they were in his position to ensure compliance by CMCSM with ss 295A, 296, 297 and 298 of the Act; and
(l)failed to exercise the degree of care and diligence required by s 601FD(1)(b) of the Act by failing to take each of the steps referred to in paragraphs 3(e) to 3(j) above in the course of his review of the CRT Financial Report.
AND THE COURT ORDERS THAT:
4.The fourth defendant’s application for relief from liability brought pursuant to see 1317S and 1318 of the corporations Act 2001 (Cth) is dismissed.
5.The fourth defendant pay:
(a)one-eighth of the plaintiff’s costs (including reserved costs) of and incidental to this proceeding (other than the costs referred to in paragraph (b)); and
(b)one-seventh of the plaintiff’s costs (including reserved costs) of and incidental to this proceeding incurred on and after 4 April 2011 up to and including 27 May 2011.
Paul Ashley Cooper (Fifth Defendant)
THE COURT DECLARES THAT:
1.The fifth defendant, Paul Ashley Cooper, contravened ss 344(1) and 180(1) of the Corporations Act 2001 (Cth) (‘the Act’) in relation to Centro Properties Limited (‘CPL’), by his conduct as a director of CPL on 6 September 2007, in participating in and voting in favour of a resolution to approve the annual financial report (‘CPL Financial Report’) and annual directors’ report (‘CPL Directors’ Report’) for the year ended 30 June 2007 (‘CPL Reports’) in circumstances where:
(a)in breach of s 296 of the Act the CPL Financial Report did not comply with the accounting standards in that:
(i)contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $1,514,097,581 were classified and shown in the financial statements as non-current liabilities;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPL had given the following guarantees of a material amount:
A.Amended and Restated Guaranty Agreement (‘Non-Recourse Carveouts’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
B.Guaranty Agreement (‘Payment’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
C.Guaranty Agreement (‘JPMCB’) executed as of 5 August 2007 in favour of JPMorgan Chase Bank NA;
D.Amended and Restated Guaranty Agreement executed as of 31 July 2007 in favour of Bank of America, NA;
(‘Relevant Guarantees’);
(b)in breach of s 297 of the Act, the financial statements and notes in the CPL Financial Report did not give a true and fair view of the financial position of the consolidated entity in that:
(i)the financial statements and notes represented that the interest bearing current liabilities of the consolidated entity were $1,096,936,000 when in fact the current liabilities of the consolidated entity were $2,611,033,581;
(ii)the notes did not disclose the fact that CPL had given the Relevant Guarantees;
(c)in breach of s 298 of the Act, CPL Directors’ Report did not give details of the Relevant Guarantees when those details were required to be given in the report by ss 299(1)(d) and 299A of the Act;
(d)he knew or ought to have known that:
(i)the interest bearing current liabilities of the consolidated entity were substantially in excess of $1,096,093,000;
(ii)CPL had given the Relevant Guarantees;
(e)he ought to have known that the CPL Reports did not comply with the Act in the manner described in paragraphs (a), (b) and (c) above;
when prior to his participating in and voting on the resolution:
(f)he failed to properly read, understand and give sufficient attention to the content of the CPL Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(g)he failed to consider or properly consider the content of the CPL Reports in so far as they related to:
(i) the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(h)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning:
(i)the apparent failure of the CPL Financial Reports to properly classify current and non-current liabilities;
(ii)the apparent failure of the CPL Reports to properly disclose the Relevant Guarantees;
(i)he failed to have the apparent failures with respect to the CPL Reports corrected;
(j)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A of the Act;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(k)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(l)failed to take all reasonable steps to secure compliance by CPL with ss 295A, 296, 297 and 298 of the Act; and
(m)failed to exercise the degree of care and diligence required by s 180(1) by failing to take each of the steps referred to in paragraphs 1(f) to 1(k) above in the course of his review of the CPL Reports.
2.The fifth defendant, Paul Ashley Cooper, contravened s 601FD(3) of the Act in relation to Centro Property Trust (‘CPT’), by his conduct on 6 September 2007 as an officer of CPT Manager Limited (‘CPTM’), the responsible entity of CPT, in participating in and voting in favour of a resolution to approve the annual financial report (‘CPT Financial Report’) and annual directors’ report (‘CPT Directors’ Report’) for the year ended 30 June 2007 (‘CPT Reports’) in circumstances where:
(a)in breach of s 296 of the Act the CPT Financial Report did not comply with the accounting standards in that:
(i)contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $1,514,097,581 were classified and shown in the financial statements as non-current liabilities;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPTM as responsible entity of CPT had given the Relevant Guarantees;
(b)in breach of s 297 of the Act, the financial statements and notes in the CPT Financial Report did not give a true and fair view of the financial position of the consolidated entity in that:
(i)the financial statements represented that the interest bearing current liabilities of the consolidated entity were $1,096,936,000 when in fact the current liabilities of the consolidated entity were $2,611,033,581;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPTM as responsible entity of CPT had given the following guarantees of a material amount:
A.Amended and Restated Guaranty Agreement (‘Non-Recourse Carveouts’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
B.Guaranty Agreement (‘Payment’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
C.Guaranty Agreement (‘JPMCB’) executed as of 5 August 2007 in favour of JPMorgan Chase Bank NA;
D.Amended and Restated Guaranty Agreement executed as of 31 July 2007 in favour of Bank of America, NA;
(‘Relevant Guarantees’);
(c)in breach of s 298 of the Act, the CPT Directors’ Report did not give details of the Relevant Guarantees when those details were required to be given in the report by ss 299(1)(d) and 299A of the Act;
(d)he knew or ought to have known that:
(i)the interest bearing current liabilities of the consolidated entity were substantially in excess of $1,096,093,000;
(ii)CPTM had given the Relevant Guarantees;
(e)he ought to have known that the CPT Reports did not comply with the Act in the manner described in paragraphs (a),(b) and (c) above;
when prior to his participating in and voting on the resolution:
(f)he failed to properly read, understand and give sufficient attention to the content of the CPT Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(g)he failed to consider or properly consider the content of the CPT Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(h)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning:
(i)the apparent failure of the CPT Financial Report to properly classify current and non-current liabilities;
(ii)the apparent failure of the CPT Reports to properly disclose the Relevant Guarantees;
(i)he failed to have the apparent failures with respect to the CPT Reports corrected;
(j)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A of the Act;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(k)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(l)contrary to s 601FD(1)(f) of the Act, failed to take all steps that a reasonable person in his position would take to ensure compliance by CPTM with ss 295A, 296, 297 and 298 of the Act;
(m)failed to exercise the degree of care and diligence required by s 601FD(1)(b) of the Act by failing to take each of the steps referred to in paragraphs 2(f) to 2(k) above in the course of his review of the CPT Reports.
3.The fifth defendant, Paul Ashley Cooper, contravened s 601FD(3) of the Act in relation to Centro Retail Trust (‘CRT’) by his conduct on 6 September 2007 as an officer of Centro MCS Manager Limited (‘CMCSM’), the responsible entity of CRT, in participating in and voting in favour of a resolution to approve the annual financial report of CRT for the year ended 30 June 2007 (‘CRT Financial Report’) in circumstances where:
(a)in breach of s 296 of the Act the CRT Financial Report did not comply with the accounting standards in that contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $598,292,097 were classified and shown in the financial statements as non-current liabilities;
(b)in breach of s 297 of the Act, the financial statements and notes in the CRT Financial Report did not give a true and fair view of the financial position of the consolidated entity in that the financial statements and notes represented that the interest bearing current liabilities of the consolidated entity were zero when in fact the interest bearing current liabilities of the consolidated entity were $598,292,097;
(c)he knew or ought to have known that the interest bearing current liabilities of the consolidated entity were substantially in excess of zero;
(d)he ought to have known that the CRT Financial Report did not comply with the Act in the manner described in paragraphs (a) and (b) above;
when prior to his participating in and voting on the resolution:
(e)he failed to properly read, understand and give sufficient attention to the content of the CRT Financial Report in so far as it related to the classification of liabilities as either current or non-current;
(f)he failed to consider or properly consider the content of the CRT Financial Report in so far as it related to the classification of liabilities as either current or non-current;
(g)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning the apparent failure of the CRT Financial Report to properly classify current and non-current liabilities;
(h)he failed to have the apparent failure with respect to the CRT Financial Report corrected;
(i)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(j)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(k)contrary to s 601FD(1)(f) of the Act, failed to take all steps that a reasonable person would take if they were in his position to ensure compliance by CMCSM with ss 295A, 296, 297 and 298 of the Act; and
(l)failed to exercise the degree of care and diligence required by s 601FD(1)(b) of the Act by failing to take each of the steps referred to in paragraphs 3(e) to 3(j) above in the course of his review of the CRT Financial Report.
AND THE COURT ORDERS THAT:
4.The fifth defendant’s application for relief from liability brought pursuant to ss 1317S and 1318 of the Corporations Act 2011 (Cth) is dismissed.
5. The fifth defendant pay:
(a)one-eighth of the plaintiff’s costs (including reserved costs) of and incidental to this proceeding (other than the costs referred to in paragraph (b)); and
(b)one-seventh of the plaintiff’s costs (including reserved costs) of and incidental to this proceeding incurred on and after 4 April 2011 up to and including 27 May 2011.
Peter Graham Goldie (Sixth Defendant)
THE COURT DECLARES THAT:
1.The sixth defendant, Peter Graham Goldie, contravened ss 344(1) and 180(1) of the Corporations Act 2001 (Cth) (‘the Act’) in relation to Centro Properties Limited (‘CPL’), by his conduct as a director of CPL on 6 September 2007, in participating in and voting in favour of a resolution to approve the annual financial report (‘CPL Financial Report’) and annual directors’ report (‘CPL Directors’ Report’) for the year ended 30 June 2007 (‘CPL Reports’) in circumstances where:
(a)in breach of s 296 of the Act the CPL Financial Report did not comply with the accounting standards in that:
(i)contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $1,514,097,581 were classified and shown in the financial statements as non-current liabilities;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPL had given the following guarantees of a material amount:
A.Amended and Restated Guaranty Agreement (‘Non-Recourse Carveouts’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
B.Guaranty Agreement (‘Payment’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
C.Guaranty Agreement (‘JPMCB’) executed as of 5 August 2007 in favour of JPMorgan Chase Bank NA;
D.Amended and Restated Guaranty Agreement executed as of 31 July 2007 in favour of Bank of America, NA;
(‘Relevant Guarantees’);
(b)in breach of s 297 of the Act, the financial statements and notes in the CPL Financial Report did not give a true and fair view of the financial position of the consolidated entity in that:
(i)the financial statements and notes represented that the interest bearing current liabilities of the consolidated entity were $1,096,936,000 when in fact the current liabilities of the consolidated entity were $2,611,033,581;
(ii)the notes did not disclose the fact that CPL had given the Relevant Guarantees;
(c)in breach of s 298 of the Act, CPL Directors’ Report did not give details of the Relevant Guarantees when those details were required to be given in the report by ss 299(1)(d) and 299A of the Act;
(d)he knew or ought to have known that:
(i)the interest bearing current liabilities of the consolidated entity were substantially in excess of $1,096,093,000;
(ii)CPL had given the Relevant Guarantees;
(e)he ought to have known that the CPL Reports did not comply with the Act in the manner described in paragraphs (a), (b) and (c) above;
when prior to his participating in and voting on the resolution:
(f)he failed to properly read, understand and give sufficient attention to the content of the CPL Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(g)he failed to consider or properly consider the content of the CPL Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(h)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning:
(i)the apparent failure of the CPL Financial Reports to properly classify current and non-current liabilities;
(ii)the apparent failure of the CPL Reports to properly disclose the Relevant Guarantees;
(i)he failed to have the apparent failures with respect to the CPL Reports corrected;
(j)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A of the Act;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(k)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(l)failed to take all reasonable steps to secure compliance by CPL with ss 295A, 296, 297 and 298 of the Act; and
(m)failed to exercise the degree of care and diligence required by s 180(1) by failing to take each of the steps referred to in paragraphs 1(f) to 1(k) above in the course of his review of the CPL Reports.
2.The sixth defendant, Peter Graham Goldie, contravened s 601FD(3) of the Act in relation to Centro Property Trust (‘CPT’), by his conduct on 6 September 2007 as an officer of CPT Manager Limited (‘CPTM’), the responsible entity of CPT, in participating in and voting in favour of a resolution to approve the annual financial report (‘CPT Financial Report’) and annual directors’ report (‘CPT Directors’ Report’) for the year ended 30 June 2007 (‘CPT Reports’) in circumstances where:
(a)in breach of s 296 of the Act the CPT Financial Report did not comply with the accounting standards in that:
(i)contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $1,514,097,581 were classified and shown in the financial statements as non-current liabilities;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPTM as responsible entity of CPT had given the Relevant Guarantees;
(b)in breach of s 297 of the Act, the financial statements and notes in the CPT Financial Report did not give a true and fair view of the financial position of the consolidated entity in that:
(i)the financial statements represented that the interest bearing current liabilities of the consolidated entity were $1,096,936,000 when in fact the current liabilities of the consolidated entity were $2,611,033,581;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPTM as responsible entity of CPT had given the following guarantees of a material amount:
A.Amended and Restated Guaranty Agreement (‘Non-Recourse Carveouts’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
B.Guaranty Agreement (‘Payment’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
C.Guaranty Agreement (‘JPMCB’) executed as of 5 August 2007 in favour of JPMorgan Chase Bank NA;
D.Amended and Restated Guaranty Agreement executed as of 31 July 2007 in favour of Bank of America, NA;
(‘Relevant Guarantees’);
(c)in breach of s 298 of the Act, the CPT Directors’ Report did not give details of the Relevant Guarantees when those details were required to be given in the report by ss 299(1)(d) and 299A of the Act;
(d)he knew or ought to have known that:
(i)the interest bearing current liabilities of the consolidated entity were substantially in excess of $1,096,093,000;
(ii)CPTM had given the Relevant Guarantees;
(e)he ought to have known that the CPT Reports did not comply with the Act in the manner described in paragraphs (a),(b) and (c) above;
when prior to his participating in and voting on the resolution:
(f)he failed to properly read, understand and give sufficient attention to the content of the CPT Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(g)he failed to consider or properly consider the content of the CPT Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(h)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning:
(i)the apparent failure of the CPT Financial Report to properly classify current and non-current liabilities;
(ii)the apparent failure of the CPT Reports to properly disclose the Relevant Guarantees;
(i)he failed to have the apparent failures with respect to the CPT Reports corrected;
(j)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A of the Act;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(h)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning:
(i)the apparent failure of the CPT Financial Report to properly classify current and non-current liabilities;
(ii)the apparent failure of the CPT Reports to properly disclose the Relevant Guarantees;
(i)he failed to have the apparent failures with respect to the CPT Reports corrected;
(j)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A of the Act;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(k)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(l)contrary to s 601FD(1)(f) of the Act, failed to take all steps that a reasonable person in his position would take to ensure compliance by CPTM with ss 295A, 296, 297 and 298 of the Act;
(m)failed to exercise the degree of care and diligence required by s 601FD(1)(b) of the Act by failing to take each of the steps referred to in paragraphs 2(f) to 2(k) above in the course of his review of the CPT Reports.
3.The fifth defendant, Paul Ashley Cooper, contravened s 601FD(3) of the Act in relation to Centro Retail Trust (‘CRT’) by his conduct on 6 September 2007 as an officer of Centro MCS Manager Limited (‘CMCSM’), the responsible entity of CRT, in participating in and voting in favour of a resolution to approve the annual financial report of CRT for the year ended 30 June 2007 (‘CRT Financial Report’) in circumstances where:
(a)in breach of s 296 of the Act the CRT Financial Report did not comply with the accounting standards in that contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $598,292,097 were classified and shown in the financial statements as non-current liabilities;
(b)in breach of s 297 of the Act, the financial statements and notes in the CRT Financial Report did not give a true and fair view of the financial position of the consolidated entity in that the financial statements and notes represented that the interest bearing current liabilities of the consolidated entity were zero when in fact the interest bearing current liabilities of the consolidated entity were $598,292,097;
(c)he knew or ought to have known that the interest bearing current liabilities of the consolidated entity were substantially in excess of zero;
(d)he ought to have known that the CRT Financial Report did not comply with the Act in the manner described in paragraphs (a) and (b) above;
when prior to his participating in and voting on the resolution:
(e)he failed to properly read, understand and give sufficient attention to the content of the CRT Financial Report in so far as it related to the classification of liabilities as either current or non-current;
(f)he failed to consider or properly consider the content of the CRT Financial Report in so far as it related to the classification of liabilities as either current or non-current;
(g)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning the apparent failure of the CRT Financial Report to properly classify current and non-current liabilities;
(h)he failed to have the apparent failure with respect to the CRT Financial Report corrected;
(i)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(j)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(k)contrary to s 601FD(1)(f) of the Act, failed to take all steps that a reasonable person would take if they were in his position to ensure compliance by CMCSM with ss 295A, 296, 297 and 298 of the Act; and
(l)failed to exercise the degree of care and diligence required by s 601FD(1)(b) of the Act by failing to take each of the steps referred to in paragraphs 3(e) to 3(j) above in the course of his review of the CRT Financial Report.
AND THE COURT ORDERS THAT:
4.The fifth defendant’s application for relief from liability brought pursuant to ss 1317S and 1318 of the Corporations Act 2011 (Cth) is dismissed.
5. The fifth defendant pay:
(a)one-eighth of the plaintiff’s costs (including reserved costs) of and incidental to this proceeding (other than the costs referred to in paragraph (b)); and
(b)one-seventh of the plaintiff’s costs (including reserved costs) of and incidental to this proceeding incurred on and after 4 April 2011 up to and including 27 May 2011.
Peter Graham Goldie
THE COURT DECLARES THAT:
1.The sixth defendant, Peter Graham Goldie, contravened ss 344(1) and 180(1) of the Corporations Act 2001 (Cth) (‘the Act’) in relation to Centro Properties Limited (‘CPL’), by his conduct as a director of CPL on 6 September 2007, in participating in and voting in favour of a resolution to approve the annual financial report (‘CPL Financial Report’) and annual directors’ report (‘CPL Directors’ Report’) for the year ended 30 June 2007 (‘CPL Reports’) in circumstances where:
(a)in breach of s 296 of the Act the CPL Financial Report did not comply with the accounting standards in that:
(i)contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $1,514,097,581 were classified and shown in the financial statements as non-current liabilities;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPL had given the following guarantees of a material amount:
A.Amended and Restated Guaranty Agreement (‘Non-Recourse Carveouts’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
B.Guaranty Agreement (‘Payment’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
C.Guaranty Agreement (‘JPMCB’) executed as of 5 August 2007 in favour of JPMorgan Chase Bank NA;
D.Amended and Restated Guaranty Agreement executed as of 31 July 2007 in favour of Bank of America, NA;
(‘Relevant Guarantees’);
(b)in breach of s 297 of the Act, the financial statements and notes in the CPL Financial Report did not give a true and fair view of the financial position of the consolidated entity in that:
(i)the financial statements and notes represented that the interest bearing current liabilities of the consolidated entity were $1,096,936,000 when in fact the current liabilities of the consolidated entity were $2,611,033,581;
(ii)the notes did not disclose the fact that CPL had given the Relevant Guarantees;
(c)in breach of s 298 of the Act, CPL Directors’ Report did not give details of the Relevant Guarantees when those details were required to be given in the report by ss 299(1)(d) and 299A of the Act;
(d)he knew or ought to have known that:
(i)the interest bearing current liabilities of the consolidated entity were substantially in excess of $1,096,093,000;
(ii)CPL had given the Relevant Guarantees;
(e)he ought to have known that the CPL Reports did not comply with the Act in the manner described in paragraphs (a), (b) and (c) above;
when prior to his participating in and voting on the resolution:
(f)he failed to properly read, understand and give sufficient attention to the content of the CPL Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(g)he failed to consider or properly consider the content of the CPL Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(h)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning:
(i)the apparent failure of the CPL Financial Reports to properly classify current and non-current liabilities;
(ii)the apparent failure of the CPL Reports to properly disclose the Relevant Guarantees;
(i)he failed to have the apparent failures with respect to the CPL Reports corrected;
(j)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A of the Act;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(k)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(l)failed to take all reasonable steps to secure compliance by CPL with ss 295A, 296, 297 and 298 of the Act; and
(m)failed to exercise the degree of care and diligence required by s 180(1) by failing to take each of the steps referred to in paragraphs 1(f) to 1(k) above in the course of his review of the CPL Reports.
2.The sixth defendant, Peter Graham Goldie, contravened s 601FD(3) of the Act in relation to Centro Property Trust (‘CPT’), by his conduct on 6 September 2007 as an officer of CPT Manager Limited (‘CPTM’), the responsible entity of CPT, in participating in and voting in favour of a resolution to approve the annual financial report (‘CPT Financial Report’) and annual directors’ report (‘CPT Directors’ Report’) for the year ended 30 June 2007 (‘CPT Reports’) in circumstances where:
(a)in breach of s 296 of the Act the CPT Financial Report did not comply with the accounting standards in that:
(i)contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $1,514,097,581 were classified and shown in the financial statements as non-current liabilities;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPTM as responsible entity of CPT had given the Relevant Guarantees;
(b)in breach of s 297 of the Act, the financial statements and notes in the CPT Financial Report did not give a true and fair view of the financial position of the consolidated entity in that:
(i)the financial statements represented that the interest bearing current liabilities of the consolidated entity were $1,096,936,000 when in fact the current liabilities of the consolidated entity were $2,611,033,581;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPTM as responsible entity of CPT had given the following guarantees of a material amount:
A.Amended and Restated Guaranty Agreement (‘Non-Recourse Carveouts’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
B.Guaranty Agreement (‘Payment’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
C.Guaranty Agreement (‘JPMCB’) executed as of 5 August 2007 in favour of JPMorgan Chase Bank NA;
D.Amended and Restated Guaranty Agreement executed as of 31 July 2007 in favour of Bank of America, NA;
(‘Relevant Guarantees’);
(c)in breach of s 298 of the Act, the CPT Directors’ Report did not give details of the Relevant Guarantees when those details were required to be given in the report by ss 299(1)(d) and 299A of the Act;
(d)he knew or ought to have known that:
(i)the interest bearing current liabilities of the consolidated entity were substantially in excess of $1,096,093,000;
(ii)CPTM had given the Relevant Guarantees;
(e)he ought to have known that the CPT Reports did not comply with the Act in the manner described in paragraphs (a),(b) and (c) above;
when prior to his participating in and voting on the resolution:
(f)he failed to properly read, understand and give sufficient attention to the content of the CPT Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(g)he failed to consider or properly consider the content of the CPT Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(h)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning:
(i)the apparent failure of the CPT Financial Report to properly classify current and non-current liabilities;
(ii)the apparent failure of the CPT Reports to properly disclose the Relevant Guarantees;
(i)he failed to have the apparent failures with respect to the CPT Reports corrected;
(j)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A of the Act;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(k)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(l)contrary to s 601FD(1)(f) of the Act, failed to take all steps that a reasonable person in his position would take to ensure compliance by CPTM with ss 295A, 296, 297 and 298 of the Act;
(m)failed to exercise the degree of care and diligence required by s 601FD(1)(b) of the Act by failing to take each of the steps referred to in paragraphs 2(f) to 2(k) above in the course of his review of the CPT Reports.
3.The sixth defendant, Peter Graham Goldie, contravened s 601FD(3) of the Act in relation to Centro Retail Trust (‘CRT’) by his conduct on 6 September 2007 as an officer of Centro MCS Manager Limited (‘CMCSM’), the responsible entity of CRT, in participating in and voting in favour of a resolution to approve the annual financial report of CRT for the year ended 30 June 2007 (‘CRT Financial Report’) in circumstances where:
(a)in breach of s 296 of the Act the CRT Financial Report did not comply with the accounting standards in that contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $598,292,097 were classified and shown in the financial statements as non-current liabilities;
(b)in breach of s 297 of the Act, the financial statements and notes in the CRT Financial Report did not give a true and fair view of the financial position of the consolidated entity in that the financial statements and notes represented that the interest bearing current liabilities of the consolidated entity were zero when in fact the interest bearing current liabilities of the consolidated entity were $598,292,097;
(c)he knew or ought to have known that the interest bearing current liabilities of the consolidated entity were substantially in excess of zero;
(d)he ought to have known that the CRT Financial Report did not comply with the Act in the manner described in paragraphs (a) and (b) above;
when prior to his participating in and voting on the resolution:
(e)he failed to properly read, understand and give sufficient attention to the content of the CRT Financial Report in so far as it related to the classification of liabilities as either current or non-current;
(f)he failed to consider or properly consider the content of the CRT Financial Report in so far as it related to the classification of liabilities as either current or non-current;
(g)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning the apparent failure of the CRT Financial Report to properly classify current and non-current liabilities;
(h)he failed to have the apparent failure with respect to the CRT Financial Report corrected;
(i)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(j)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(k)contrary to s 601FD(1)(f) of the Act, failed to take all steps that a reasonable person would take if they were in his position to ensure compliance by CMCSM with ss 295A, 296, 297 and 298 of the Act; and
(l)failed to exercise the degree of care and diligence required by s 601FD(1)(b) of the Act by failing to take each of the steps referred to in paragraphs 3(e) to 3(j) above in the course of his review of the CRT Financial Report.
AND THE COURT ORDERS THAT:
4.The sixth defendant’s application for relief from liability brought pursuant to ss 1317S and 1318 of the Corporations Act 2011 (Cth) is dismissed.
5. The sixth defendant pay:
(a)one-eighth of the plaintiff’s costs (including reserved costs) of and incidental to this proceeding (other than the costs referred to in paragraph (b)); and
(b)one-seventh of the plaintiff’s costs (including reserved costs) of and incidental to this proceeding incurred on and after 4 April 2011 up to and including 27 May 2011.
Louis Peter Wilkinson
THE COURT DECLARES THAT:
1.The seventh defendant, Louis Peter Wilkinson, contravened ss 344(1) and 180(1) of the Corporations Act 2001 (Cth) (‘the Act’) in relation to Centro Properties Limited (‘CPL’), by his conduct as a director of CPL on 6 September 2007, in participating in and voting in favour of a resolution to approve the annual financial report (‘CPL Financial Report’) and annual directors’ report (‘CPL Directors’ Report’) for the year ended 30 June 2007 (‘CPL Reports’) in circumstances where:
(a)in breach of s 296 of the Act the CPL Financial Report did not comply with the accounting standards in that:
(i)contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $1,514,097,581 were classified and shown in the financial statements as non-current liabilities;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPL had given the following guarantees of a material amount:
A.Amended and Restated Guaranty Agreement (‘Non-Recourse Carveouts’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
B.Guaranty Agreement (‘Payment’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
C.Guaranty Agreement (‘JPMCB’) executed as of 5 August 2007 in favour of JPMorgan Chase Bank NA;
D.Amended and Restated Guaranty Agreement executed as of 31 July 2007 in favour of Bank of America, NA;
(‘Relevant Guarantees’);
(b)in breach of s 297 of the Act, the financial statements and notes in the CPL Financial Report did not give a true and fair view of the financial position of the consolidated entity in that:
(i)the financial statements and notes represented that the interest bearing current liabilities of the consolidated entity were $1,096,936,000 when in fact the current liabilities of the consolidated entity were $2,611,033,581;
(ii)the notes did not disclose the fact that CPL had given the Relevant Guarantees;
(c)in breach of s 298 of the Act, CPL Directors’ Report did not give details of the Relevant Guarantees when those details were required to be given in the report by ss 299(1)(d) and 299A of the Act;
(d)he knew or ought to have known that:
(i)the interest bearing current liabilities of the consolidated entity were substantially in excess of $1,096,093,000;
(ii)CPL had given the Relevant Guarantees;
(e)he ought to have known that the CPL Reports did not comply with the Act in the manner described in paragraphs (a), (b) and (c) above;
when prior to his participating in and voting on the resolution:
(f)he failed to properly read, understand and give sufficient attention to the content of the CPL Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(g)he failed to consider or properly consider the content of the CPL Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(h)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning:
(i)the apparent failure of the CPL Financial Reports to properly classify current and non-current liabilities;
(ii)the apparent failure of the CPL Reports to properly disclose the Relevant Guarantees;
(i)he failed to have the apparent failures with respect to the CPL Reports corrected;
(j)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A of the Act;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(k)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(l)failed to take all reasonable steps to secure compliance by CPL with ss 295A, 296, 297 and 298 of the Act; and
(m)failed to exercise the degree of care and diligence required by s 180(1) by failing to take each of the steps referred to in paragraphs 1(f) to 1(k) above in the course of his review of the CPL Reports.
2.The seventh defendant, Louis Peter Wilkinson, contravened s 601FD(3) of the Act in relation to Centro Property Trust (‘CPT’), by his conduct on 6 September 2007 as an officer of CPT Manager Limited (‘CPTM’), the responsible entity of CPT, in participating in and voting in favour of a resolution to approve the annual financial report (‘CPT Financial Report’) and annual directors’ report (‘CPT Directors’ Report’) for the year ended 30 June 2007 (‘CPT Reports’) in circumstances where:
(a)in breach of s 296 of the Act the CPT Financial Report did not comply with the accounting standards in that:
(i)contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $1,514,097,581 were classified and shown in the financial statements as non-current liabilities;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPTM as responsible entity of CPT had given the Relevant Guarantees;
(b)in breach of s 297 of the Act, the financial statements and notes in the CPT Financial Report did not give a true and fair view of the financial position of the consolidated entity in that:
(i)the financial statements represented that the interest bearing current liabilities of the consolidated entity were $1,096,936,000 when in fact the current liabilities of the consolidated entity were $2,611,033,581;
(ii)contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPTM as responsible entity of CPT had given the following guarantees of a material amount:
A.Amended and Restated Guaranty Agreement (‘Non-Recourse Carveouts’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
B.Guaranty Agreement (‘Payment’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
C.Guaranty Agreement (‘JPMCB’) executed as of 5 August 2007 in favour of JPMorgan Chase Bank NA;
D.Amended and Restated Guaranty Agreement executed as of 31 July 2007 in favour of Bank of America, NA;
(‘Relevant Guarantees’);
(c)in breach of s 298 of the Act, the CPT Directors’ Report did not give details of the Relevant Guarantees when those details were required to be given in the report by ss 299(1)(d) and 299A of the Act;
(d)he knew or ought to have known that:
(i)the interest bearing current liabilities of the consolidated entity were substantially in excess of $1,096,093,000;
(ii)CPTM had given the Relevant Guarantees;
(e)he ought to have known that the CPT Reports did not comply with the Act in the manner described in paragraphs (a),(b) and (c) above;
when prior to his participating in and voting on the resolution:
(f)he failed to properly read, understand and give sufficient attention to the content of the CPT Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(g)he failed to consider or properly consider the content of the CPT Reports in so far as they related to:
(i)the classification of liabilities as either current or non-current;
(ii)the disclosure of the Relevant Guarantees;
(h)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning:
(i)the apparent failure of the CPT Financial Report to properly classify current and non-current liabilities;
(ii)the apparent failure of the CPT Reports to properly disclose the Relevant Guarantees;
(i)he failed to have the apparent failures with respect to the CPT Reports corrected;
(j)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(k)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(l)contrary to s 601FD(1)(f) of the Act, failed to take all steps that a reasonable person in his position would take to ensure compliance by CPTM with ss 295A, 296, 297 and 298 of the Act;
(m)failed to exercise the degree of care and diligence required by s 601FD(1)(b) of the Act by failing to take each of the steps referred to in paragraphs 2(f) to 2(k) above in the course of his review of the CPT Reports.
3.The seventh defendant, Louis Peter Wilkinson, contravened s 601FD(3) of the Act in relation to Centro Retail Trust (‘CRT’) by his conduct on 6 September 2007 as an officer of Centro MCS Manager Limited (‘CMCSM’), the responsible entity of CRT, in participating in and voting in favour of a resolution to approve the annual financial report of CRT for the year ended 30 June 2007 (‘CRT Financial Report’) in circumstances where:
(a)in breach of s 296 of the Act the CRT Financial Report did not comply with the accounting standards in that contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $598,292,097 were classified and shown in the financial statements as non-current liabilities;
(b)in breach of s 297 of the Act, the financial statements and notes in the CRT Financial Report did not give a true and fair view of the financial position of the consolidated entity in that the financial statements and notes represented that the interest bearing current liabilities of the consolidated entity were zero when in fact the interest bearing current liabilities of the consolidated entity were $598,292,097;
(c)he knew or ought to have known that the interest bearing current liabilities of the consolidated entity were substantially in excess of zero;
(d)he ought to have known that the CRT Financial Report did not comply with the Act in the manner described in paragraphs (a) and (b) above;
when prior to his participating in and voting on the resolution:
(e)he failed to properly read, understand and give sufficient attention to the content of the CRT Financial Report in so far as it related to the classification of liabilities as either current or non-current;
(f)he failed to consider or properly consider the content of the CRT Financial Report in so far as it related to the classification of liabilities as either current or non-current;
(g)he failed to raise or make enquiry or adequate enquiry with management, the Board Audit and Risk Management Committee and other members of the Board concerning the apparent failure of the CRT Financial Report to properly classify current and non-current liabilities;
(h)he failed to have the apparent failure with respect to the CRT Financial Report corrected;
(i)he failed:
(i)to take the necessary steps to ensure he had a sufficient knowledge of the requirements of s 295A of the Act;
(ii)to read, understand and give sufficient attention to the management representation letter provided to the directors;
(iii)to request that the directors be given a declaration pursuant to s 295A of the Act which accords with its requirements;
(j)the directors had not been given a declaration pursuant to s 295A of the Act;
and thereby:
(k)contrary to s 601FD(1)(f) of the Act, failed to take all steps that a reasonable person would take if they were in his position to ensure compliance by CMCSM with ss 295A, 296, 297 and 298 of the Act; and
(l)failed to exercise the degree of care and diligence required by s 601FD(1)(b) of the Act by failing to take each of the steps referred to in paragraphs 3(e) to 3(j) above in the course of his review of the CRT Financial Report.
AND THE COURT ORDERS THAT:
4.The seventh defendant’s application for relief from liability brought pursuant to ss 1317S and 1318 of the Corporations Act 2011 (Cth) is dismissed.
5. The seventh defendant pay:
(a)one-eighth of the plaintiff’s costs (including reserved costs) of and incidental to this proceeding (other than the costs referred to in paragraph (b)); and
(b)one-seventh of the plaintiff’s costs (including reserved costs) of and incidental to this proceeding incurred on and after 4 April 2011 up to and including 27 May 2011.
Romano George Nenna
THE COURT DECLARES THAT:
1.The eighth defendant, Romano George Nenna, contravened s 180(1) of the Corporations Act 2001 (Cth) (‘the Act’) in relation to Centro Properties Limited (‘CPL’), by his conduct as the Chief Financial Officer of CPL on or about 4 September 2007, in recommending to its directors a resolution to approve the annual financial report (‘CPL Financial Report’) and annual directors’ report (‘CPL Directors’ Report’) for the year ended 30 June 2007 (CPL Reports) in circumstances where:
(a)he knew that:
(i)as at 30 June 2007 CPL and its controlled entities had liabilities totalling $2,611,033,581 which were due for repayment before 30 June 2008 and in relation to which or any part of which neither CPL nor any relevant entity had an unconditional right to defer repayment for at least 12 months after 30 June 2007;
(ii)since 30 June 2007 CPL had entered into the following guarantees:
A.Amended and Restated Guaranty Agreement (‘Non-Recourse Carveouts’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
B.Guaranty Agreement (‘Payment’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
C.Guaranty Agreement (‘JPMCB’) executed as of 5 August 2007 in favour of JPMorgan Chase Bank NA;
D.Amended and Restated Guaranty Agreement executed as of 31 July 2007 in favour of Bank of America, NA;
(‘Relevant Guarantees’);
(iii)the Relevant Guarantees might significantly affect the state of affairs of CPL and its controlled entities in financial years subsequent to the year ended 30 June 2007;
(iv)a major liability had been wrongly classified in the consolidated balance sheet of CPL lodged with the Australian Securities Exchange on or about 9 August 2007;
(b)by reason of the matters referred to in paragraph (a) above, he ought to have known that CPL Reports did not comply with the Act, in that:
(i)in breach of s 296 of the Act, the CPL Financial Report did not comply with the accounting standards in that:
A.contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $1,514,097,581 were classified and shown in the financial statements as non-current liabilities;
B.contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPL had given the Relevant Guarantees;
(ii)in breach of s 297 of the Act, the financial statements and notes in the CPL Financial Report did not give a true and fair view of the financial position of the consolidated entity in that:
A.the financial statements and notes represented that the interest bearing current liabilities of the consolidated entity were $1,096,936,000 when in fact the current liabilities of the consolidated entity were $2,611,033,581;
B.the notes did not disclose the fact that CPL had given the Relevant Guarantees;
(iii)in breach of s 298 of the Act, CPL Directors’ Report did not give details of the Relevant Guarantees when those details were required to be given in the report by ss 299(1)(d) and 299A of the Act;
(c)he failed to take all reasonable steps to rectify that non-compliance,
and he thereby failed to exercise the degree of care and diligence required by s 180(1) of the Act,
(‘First Contravention’)2.The eighth defendant, Romano George Nenna, contravened s 601FD(3) of the Act in relation to Centro Property Trust (‘CPT’), by his conduct as the Chief Financial Officer of CPT Manager Limited (‘CPTM’), the responsible entity of CPT on or about 4 September 2007, in recommending to its directors a resolution to approve the annual financial report (‘CPT Financial Report’) and annual directors’ report (‘CPT Directors’ Report’) for the year ended 30 June 2007 (‘CPT Reports’) in circumstances where:
(a)he knew that:
(i)as at 30 June 2007 CPT and its controlled entities had liabilities totalling $2,611,033,581 which were due for repayment before 30 June 2008 and in relation to which or any part of which neither CPT nor any relevant entity had an unconditional right to defer repayment for at least 12 months after 30 June 2007;
(ii)since 30 June 2007 CPTM as responsible entity of CPT had entered into the following guarantees:
A.Amended and Restated Guaranty Agreement (‘Non-Recourse Carveouts’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
B.Guaranty Agreement (‘Payment’) executed as of 31 July 2007 in favour of JPMorgan Chase Bank NA;
C.Guaranty Agreement (‘JPMCB’) executed as of 5 August 2007 in favour of JPMorgan Chase Bank NA;
D.Amended and Restated Guaranty Agreement executed as of 31 July 2007 in favour of Bank of America, NA;
(‘Relevant Guarantees’);
(iii)the Relevant Guarantees might significantly affect the state of affairs of CPL and its controlled entities in financial years subsequent to the year ended 30 June 2007;
(iv)a major liability had been wrongly classified in the consolidated balance sheet of Centro Properties Limited lodged with the Australian Securities Exchange on or about 9 August 2007;
(b)by reason of the matters referred to in paragraph (a) above, he ought to have known that CPT Reports did not comply with the Act, in that:
(i)in breach of s 296 of the Act, the CPL Financial Report did not comply with the accounting standards in that:
A.contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $1,514,097,581 were classified and shown in the financial statements as non-current liabilities;
B.contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPTM as responsible entity of CPT had given the Relevant Guarantees;
(ii)in breach of s 297 of the Act, the financial statements and notes in the CPT Financial Report did not give a true and fair view of the financial position of the consolidated entity in that:
A.the financial statements represented that the interest bearing current liabilities of the consolidated entity were $1,096,936,000 when in fact the current liabilities of the consolidated entity were $2,611,033,581;
B.contrary to accounting standard AASB 110, the notes to the financial statements did not disclose that after the reporting date CPTM as responsible entity of CPT had given the Relevant Guarantees;
(iii)in breach of s 298 of the Act, the CPT Directors’ Report did not give details of the Relevant Guarantees when those details were required to be given in the report by ss 299(1)(d) and 299A of the Act;
(c)he failed to take all reasonable steps to rectify that non-compliance;
and thereby:
(d)contrary to s 601FD(1)(f) of the Act, he failed to take all steps that a reasonable person in his position would take to ensure compliance by CPTM with ss 295A, 296, 297 and 298 of the Act;
(e)he failed to exercise the degree of care and diligence required by s 601FD(1)(b) of the Act;
(‘Second Contravention’)
3.The eighth defendant, Romano George Nenna, contravened s 601FD(3) of the Act in relation to Centro Retail Trust (‘CRT’) by his conduct as the Chief Financial Officer of Centro MCS Manager Limited (‘CMCSM’), the responsible entity of CRT, on or about 4 September 2007, in recommending to its directors a resolution to approve the annual financial report of CRT for the year ended 30 June 2007 (‘CRT Financial Report’) in circumstances where:
(a)he knew that:
(i)as at 30 June 2007 CRT and its controlled entities had liabilities totalling $598,292,097 which were due for repayment before 30 June 2008 and in relation to which or any part of which neither CRT nor any relevant entity had an unconditional right to defer repayment for at least 12 months after 30 June 2007;
(ii)a major liability had been wrongly classified in the consolidated balance sheet of Centro Properties Limited lodged with the Australian Securities Exchange on or about 9 August 2007;
(b)by reason of the matters referred to in paragraph (a) above, he ought to have known that CRT Financial Report did not comply with the Act, in that:
(i)in breach of s 296 of the Act the CRT Financial Report did not comply with the accounting standards in that contrary to accounting standard AASB 101, interest bearing current liabilities of the consolidated entity totalling $598,292,097 were classified and shown in the financial statements as non-current liabilities;
(ii)in breach of s 297 of the Act, the financial statements and notes in the CRT Financial Report did not give a true and fair view of the financial position of the consolidated entity in that the financial statements and notes represented that the interest bearing current liabilities of the consolidated entity were zero when in fact the interest bearing current liabilities of the consolidated entity were $598,292,097;
(c)he failed to take all reasonable steps to rectify that non-compliance;
and thereby:
(d)contrary to s 601FD(1)(f) of the Act, he failed to take all steps that a reasonable person would take if they were in his position to ensure compliance by CMCSM with ss 295A, 296, 297 and 298 of the Act; and
(e)he failed to exercise the degree of care and diligence required by s 601FD(1)(b) of the Act.
AND THE COURT ORDERS THAT:
4.The eighth defendant, Romano George Nenna, is disqualified from managing corporations for a period of two years from 4.30pm on 10 October 2011.
5.The eighth defendant pay one-eighth of the plaintiff’s costs (including reserved costs) of and incidental to this proceeding other than costs (including reserved costs) incurred on and after 4 April 2011 up to and including 27 May 2011.
I certify that the preceding two hundred and twenty-nine (229) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate:
Dated: 31 August 2011
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