Groeneveld Australia Pty Ltd & Ors v Nolten & Ors (No 3) [2010] VSC 533

Groeneveld Australia Pty Ltd & Ors v Nolten & Ors (No
3) [2010] VSC 533, 80 ACSR 562
GROUP MEMBERS
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.

Parties to the case
 Plaintiffs
Groeneveld Australia Pty Ltd & Ors
Judge: Davies J, Supreme Court of
Victoria
 Defendants
Wouter Nolten & Ors

Case Introduction
 In this case the defendant was Mr. Nolten, managing director of Groeneveld
Australia Limited (GA) between 1999-2009 and the plaintiff was GA Company.
 GA took Nolten to court seeking entitlement to equitable and common law
remedies for alleged breaches that included claims of failure to disclose his
interests to the company board, failure to fulfill statutory and fiduciary duties owed
to the company, deceit, misleading and deceptive conduct.
 Mr. Nolten breached section 181,182 and 183 of the Corporations Act 2001 that
clearly state the responsibilities of a director owed to the company employed as
well as the Fair Trading Act of 1999 on disclosure of information.
 Moreover, GA presented claims concerning the call and put options whereby he
exercised the first call options before he got notification of termination of his
employment. He also exercised the second call after his dismissal. The company
failed to issue shares based on the second call as they were invalidly made.

Legal Issues
 1. Whether declaratory relief for breaches of statutory duties was available.
 2. Whether director’s breach of fiduciary and statutory duties was a breach
of the implied term of good faith.
 3. Whether there was a breach of Section 9 of the Fair Trading Act 1999.
 4. Whether the GA Company was entitled to any of the following remedies-
account of profits, allowance for fiduciary skill, equitable compensation,
property or resources.
 5. Whether Mr. Nolten took advantage of his position as director to exploit
the opportunity presented by Groeneveld South Island Ltd without disclosing
his interests to the GA board.
 6. Whether there was proof of fraud and false representations by the
director in his course of discharging duties.