Corporate Law and Breach of Duty Cases

This assignment delves into the complexities of corporate law by analyzing the landmark case of ASIC v Cassimatis. It examines how Mr. and Mrs. Cassimatis breached their duties of care as directors of Storm Financial, leading to significant financial losses for investors. The assignment explores the legal framework surrounding director responsibilities under the Corporations Act 2001 and the consequences of such breaches. Furthermore, it discusses potential remedies sought by ASIC, including penalties, disqualification from acting as company directors, and restrictions on holding Australian Financial Services licenses.

Running Head: LAW OF BUSINESS ORGANIZATION
Law of business organization
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1LAW OF BUSINESS ORGANIZATION
Table of Contents
Answer One: The corporate legal issues facing Rio Tinto Limited in Australia............................................2
Answer Two: Avenues open to the law authorities and Directors..............................................................3
Answer Three: Relevant Case.....................................................................................................................4
Reference List:.............................................................................................................................................6

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Answer One: The corporate legal issues facing Rio Tinto Limited in Australia
According to section 180 of the Corporations Act 2001 it can be said that the directors
and officers of a company has to exercise their powers with due care and diligence while
discharging their duties (Corporations Act, 2001). The duty of the director or the officer would
be assessed from the point of view of a reasonable person. The exercise of power by the director
or officer of a company would be considered to be without due care and diligence if it is
established that a reasonable man acting as a director in his position would not have done the
same in the given circumstance. However, to assess the same it is necessary to hypothetically
place a reasonable person in the same position as a director. According to subsection 180(2) it is
essential the decision taken and the powers exercised by the directors or officers of a company
must be in good faith. Any of the powers exercised by the director or officers of a company
cannot be in self interest of such director and officer. It is to be mentioned that according to
subsection 180(2d) of the aforementioned act, powers exercised by the director or officer must
be in the belief that such exercise of power would be in the best interest of the company.
In this case the former executives of the mining giant Rio Tinto, Tom Albanese and Guy
Elliot have been charged with fraud by the U.S authorities (ABC News, 2018).They are accused
of not following the accounting standards and concealing the losses suffered. It can be said that
the aforementioned parties concealed from the investors about the loss suffered due to the
unsuccessful deal which happened under the watch of the aforementioned parties. Therefore it
can be said that the corporate legal issues faced by the officers of Rio Tinto are failure to act with
due care and diligently. It can also be said that they had not taken due care to act in good faith
and did not act in the best interests of the company. Therefore they failed to comply with the

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provisions stated in section 180 of the aforementioned act. The parties have also been charged
with fraud as stated in section 596 of the Corporations Act 2001. According to this section an
officer will of a company will be held to have committed fraud if he has acted in a way to
defraud the company and creditors of the company. Therefore the act of concealing the loss
suffered t the investors would constitute fraud.
Answer Two: Avenues open to the law authorities and Directors
It is to be said that the government body which is responsible for governing the
provisions of the Corporations Act 2001, is the Australian Securities and Investment
Commission. It can be said that the powers of the Australian Securities and Investment
commission is governed by the Australian securities and Investment Commission Act. Therefore,
in reference to the chosen case it can be said that the Australian Securities and Investment
commission can be appealed to for violation of the provisions of Corporations Law by the
director and officer of Rio Tinto as mentioned before. The Australian Securities and Investment
Commission and the Australian Competition and Consumer Commission and the Australian
Taxation Office have a wide range of powers which includes conducting investigation to support
the law enforcement authorities with the evidence (Shekhar & Zheng, 2017).
Some of the Investigation powers of the aforementioned bodies include power to inspect
the books of production, the power to interrogate a person for obtaining relevant information,
power to conduct inspection in the premises (Gilligan & Bird, 2015). It is to be mentioned that
there are some protections and privileges available to the corporation and its directors. The
corporations and the directors of the corporations have the privilege of making claim over the
documentation. It can be stated that the in the inspections conducted by the aforementioned

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Australian Security and Investment Commission, the officer and the director who is interrogated
does not have the right to remain silent. However it can be mentioned that the directors and
officers of a corporation are provided immunity which prohibits the investigator from using the
answers obtained in civil and criminal proceedings. After conducting the investigation the
regulators of the investigation may pursue law enforcement as civil and criminal proceedings
(Bainbridge, 2015). It can be noted that Enforcement proceedings by the aforementioned bodies
can include issue of interim orders and injunction to freeze the assets of the corporation. The
injunction order is generally issued by the court at its discretion and the injunctive Relief can be
obtained within 24 hours of application for such injunction. Some of the provisions of the
Corporations Act 2001 have application in extraterritorial locations. Therefore, in this case The
US Securities and Exchange Commission can appeal to the ASIC for conducting an investigation
and can pursue enforcement of civil and criminal proceedings against the aforementioned parties.
Answer Three: Relevant Case
In the remarkable case ASIC v Cassimatis (No 8) [2016] FCA 1023 it was held that they had
committed Beach of Duty of care according to section 180(1) of the Corporations Act 2001. It
can be stated that Mr. and Mrs. Cassimatis had started a financial planner called Storm Financial.
They had developed a scheme which involved borrowing of money from investors. However, the
scheme developed by Cassimatis involved manipulation and concealing some of the provisions
of the scheme which would make the investors invest more than they wished to for a period of
not less than 5 years. The strategy or the Scheme devised by the defendant involved borrowing
gainst security, obtaining margin loan and using the funds from the loan to invest in index fund.
The aim of the strategy was to establish a cash reserve. It is to be stated that Storm Financial had
collapsed with a loss in investment funds worth of three billion dollars. The liquidator found out

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that the aforementioned financial planner had no financial capacity of neither monitoring the
debts of the clients nor manage their portfolios. The investors of the aforementioned financial
planner had not been intimated of the deteriorating value of the investments made by them.
The report by the ASIC found that Mr. and Mrs. Cassimatis were primarily responsible for
the loss and collapse of the company. It was also found out that Mr. Cassimatis and his wife were
paid $500,000 every year. In the Cassimatis case, it was held by the Federal Court that Mr. and
Mrs. Cassimatis had breached the duties of the director as they failed to prevent the company
from facing the loss which was inevitable. It was held that they had also failed to provide
reasonable investment advice to Storm Financial. The court had stated that any reasonable man
acting in the position of Mr. Cassimatis would have taken reasonable steps to prevent the loss
suffered and would have realized that the operations of Storm Financial were breaching the law.
It was also held that the reasonable man would have necessary precautions to prevent such loss.
Justice Edelman further stated in this remarkable case he was doubtful whether any breach of
duty by a corporation is an essential requirement for breach of duty by a director. The ASIC is
demanding:
 Emanuel Julie Cassimatis should pay a penalty for breach of duties as directors,
 both the parties should be disqualified from acting as managers of any company
 the parties should not be allowed to hold license of Australia Financial Service

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Reference List:
ASIC v Cassimatis (No 8) [2016] FCA 1023
Bainbridge, S. (2015). Corporate Law. West Academic.
Corporations Act 2001. (2018). Legislation.gov.au. Retrieved 4 January 2018, from
https://www.legislation.gov.au/Details/C2017C00328
Gilligan, G., & Bird, H. L. (2015). Financial Services Misconduct and the Corporations Act
2001.
Rio Tinto, former execs face fraud charges over African coal losses. (2018). ABC News.
Retrieved 4 January 2018, from http://www.abc.net.au/news/2017-10-18/rio-tinto-and-
former-bosses-charged-with-fraud-over-mozambique-/9060898
Shekhar, C., & Zheng, J. (2017). Corporate Fraud, Local Connections and Directors.