Corporate Law Assignment: Austin Retail Ltd. Case Study Analysis

This essay provides a comprehensive analysis of corporate law principles, specifically focusing on the Corporations Act 2001 and its implications for Australian businesses. The essay delves into key aspects such as disclosure obligations, company liabilities, and the issuance of shares, referencing relevant sections of the Act. A significant portion of the essay is dedicated to a case study involving Austin Retail Ltd., examining issues related to misleading conduct, the accuracy of financial disclosures in a prospectus, and the responsibilities of company directors and officers. The analysis explores breaches of duty of care and diligence, as well as the consequences of misleading statements and omissions. The essay highlights the potential liabilities of various parties, including the company and its underwriters, under the Corporations Act. Overall, the essay provides a clear understanding of the legal framework governing corporate conduct and the potential ramifications of non-compliance.

Running head: CORPORATE LAW ASSIGNMENT
Corporate Law Assignment
Name of the Student
Name of the University
Author note

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INTRODUCTION
This essay discusses the relevant provisions of the Corporations Act 2001. They are
related to the obligations of disclosure, liabilities of the company and issuance of the shares
for associating in misleading conduct. The related issue to this situation deal with the issue of
shares, disclosure obligations of the financial statements and misleading conduct regarding
the process of advertisement of financial products. Therefore, these issues have been
recognized in the case study o Austin Retail Ltd.
FORECAST
The Corporations Act 2001 deals with the operations and conduct of all the existing
businesses of Australia1. As per this act, duties and rights are provided to the individuals who
are in charge of the activities of the business and manage the operations of the organization.
Therefore, after the company is created or incorporated, it has the power to enjoy the concept
of separate legal entity. This concept has been observed in the case of Solomon V Solomon.
It can be stated that an organization can use the benefits and enjoy the concept of it artificial
existence. This means that a company does not have to depend on the process of conduction
of the activities of the business.
According to the law, the officers or directors of a company generally has the
obligations to make sure that the organization links with the provisions as it have been
mentioned in the legislation. However, if any of the individuals do not succeed in complying
with the provisions of the above mentioned act, then he will be liable for a specific penalties
and fine. The company imposes such penalties on the officers and directors if such situations
arise. The defense will be considered only if it has been determined based on good faith and
1 Corporation Act 2001 (Cth)

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the director has created an independent assessment of the information and it was reasonable
as well.
As per Section 180(1) of the Corporations Act 2001, it provides the provisions
related to the breach of duties of the directors. In relation to this section, it can be observed
and said that the duty of diligence and care while carrying out the duties exists within the
officers or the directors of the company. The position of the directors gives them the right and
authority to carry out all the activities with duty of care and diligence in every possible
circumstance. From the legislation, it can be stated that directors have specific statutory
authority in carrying out the duties as any other director having that position would have
exercised. In the matter of ASIC v Australian Property Custodian Holdings Limited [2013]
FCA 1342, it was established by the Court that the director cannot be asked to have acted
with proper diligence and care2. Thereafter it is determined that he failed to make the
personal enquiries regarding the truth of the information that has been produced by a third
party on which he had relied on. If it has been determined that any other director discharges
their duties with proper amount of diligence and care then the director will be held
responsible for breaching the duties as per the above mentioned section of the legislation.
As per the Section 189 of the Corporations Act 2001, all the directors and officers
involved with the company can have faith on the professional for advice. This will only be
possible if the directors and officers believe that the advice that have been provided by the
expert is considered to be within the knowledge of the director. However, if the expert
considers it to be reasonable and accepted by the Court, it will be treated as a ground defense.
Section 189 of the Corporations Act 2001, mentions that a director of the company has the
authority to rely on the professional advice since the director had faith on it. Therefore, the
2 ASIC v Australian Property Custodian Holdings Limited [2013] FCA 1342

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Court as a ground of defense accepted it since good faith was established and the directors
made a reasonable and an independent assessment of the available information.
Thereafter as per Section 674 of the Corporations Act 2001, it can be said that every
existing company has a few and certain responsibilities about informing the ASX regarding
the information that are available to all the participants of the market. The ASX is not the
dependent bodies of government that act as the operators of the market. Under Section 674(2)
of the Corporations Act 2001, discusses the purpose of disclosing the entity. As per this
section, the corporations and organizations have a specific duty regarding informing to the
operators of the market about the information that is not easily available to the public. It is
generally expected by an individual who has the material effect on the value of the companies
specially when public are aware of the relevant information. The operator of the market has
been informed regarding the mentioned information for disclosing it to the public. It is
expected by an individual to be reasonable in nature to have the effect of material. There are a
few contraventions related to this section where it imposes a civil penalty as per the
provisions of mentioned under section 1317 e on the party3. As per the section mentioned
above, an individual who is held responsible for making the company breach the obligation
of the company for the process of disclosing the information. That particular individual will
be said to be liable personally for contravening the provisions of the this specific section. The
contraventions of this provision are treated to be as an offence under the act mentioned
above.
The Section 728 of the Corporations Act 2001, lays down the principles of the
misstatements and omissions that are related to the document of disclosure. It can therefore
be said that according to this section if a person engages in the securities by a document that
3 Witney, Simon. "Corporate opportunities law and the non-executive director." Journal of Corporate Law
Studies 16.1 (2016): 145-186.

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has been disclosed should not disclose any kind of document that will be suspected to have
such misleading statements4. When a new situation occurs after the document has been
disclosed and the individual who is concerned should not offer any kind of securities. It has
been stated under Section 728(2) that if any individual who produces any statements related
to the matters of the future by not having any sort of reasonable grounds for believing that the
statements stated are linked to the future which would has provided a misstatement5.
According to the Section 728(3), it was stated that if any individual who contravenes the
provisions of Section 728(1), that person would be said to have committed an offence of
misstatement that has adverse impacts on the investors. In the case of Australian Securities
and Investment Commission V Sino Australia Oil and Gas Limited (in liq) [2016] FCA 934
explained the provisions of misstatements as it has been provided before6.
The provisions of the Corporations Act states that the individual who has given the
consent to the statements linked to the scenario of the company, the director of the office will
be held liable to all the investors for all the losses that was incurred by all the investors. This
is because of whom the mistakes had appeared in the prediction of the company. A
prospectus can also be considered to make use of the defective if it includes any kind of
omission that is linked to the alterations of the scenario that has not been disclosed7.
Under Section 764 (a) of the Corporations Act 2001, it has been mentioned that the
company’s security is a form of a financial product. Under the Corporations Act, Section
1041 lays down the provisions that it misleads and provides deceptive conduct to the
financial products. Section 1041(H) provides that if any individual engages with a company
4 Gray, Stephen, and John Nowland. "The diversity of expertise on corporate boards in Australia." Accounting &
Finance 57.2 (2017): 429-463.
5 Hayne, K. M. "Directors' duties and a company's creditors." Melb. UL Rev. 38 (2014): 795.
6 Australian Securities and Investment Commission v Sino Australia Oil and Gas Limited (in liq) [2016] FCA
934
7 Carson, Bill, and Scott Wilson. "The Director Duties Bill: Amendments to Section 2-405.1 of the Maryland
General Corporation Law." Md. BJ 49 (2016): 40.

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should not associate in any kind of conduct that will deceive the general audience when such
kind of conduct is related to the services of the company. Thereafter, it states and mentions
that if any company does not succeed to inform regarding the financial condition of the
company, it will have an impact on the values of the shares. Therefore, such conduct will be
treated to be misleading8. When there is a breach of this particular section, a civil penalty is
imposed on that individual who associates in the process of misleading.
LIABILITY
From the above mentioned facts of the case, it can be analyzed that the prospectus
was issued by Austin as the objective was to raise twelve million dollars. As observed, the
company had issued shares from raising the capital. Accordingly, as per the provisions of the
Corporation Act, the prospectus was lodged with the ASIC. Thereafter, it was noticed that the
issue of the Prospectus was faulty as the information included depended on the research that
was not carried out by the DB consultants in a fair manner. Therefore, in this situation, it was
observed with clarity that the Sales manager Bob Brown had produced an intuition where the
information produced was found to be erroneous9. However, there was no effort provided for
inspecting the validity of the report produced by the consultants of DB. On the other hand, no
enquiries were made into the matter personally. According to the provisions of the section
mentioned above, it was made quite evident that an officer of the company, Bob Brown did
not succeed to comply with the provisions of the section. It can be said that if a valid reliance
is claimed, he had the duty to be sure that the information that was produced with the help of
the reports was accurate10. However, he had failed to make the enquiries regarding personal
matters about the correctness of the report that was provided by the consultants of DB.
8 Hargovan, Anil. "Corporate law: Foreign directors of Australian companies put on notice: No leniency for
ignorance of duties." Governance Directions 69.1 (2017): 37.
9 Austin R.P. & Ramsay, I., Ford's Principles of Corporations Law, Butterworths, Australia, 16th edition, 2014.
10 Broderick, Phil, and Melissa Brazzale. "A matter of trusts: Director's breach of fiduciary duties results in a
clawback of super contributions." Taxation in Australia 49.9 (2015): 547.

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Despite having the suspicion, there was a clear indication where it was observed that it was
not reasonable and hence he will not have the authority to claim his right for relying on the
advice of the expert.
It was thereafter evident to note that there have been a set of circumstance that have
been provided by the virtue of being the Sales manager of the company. As per Section 180
of the Corporations Act, Austin had a duty and had to act accordingly. His duty was to act
with diligence and care. However, Austin failed to inspect the forward book of orders by
himself that was treated to be within the scope of being a sales manager11. Thus, it can be said
that along with the provisions that have been provided under section 180, any officer of
Austin by being such circumstances as Bob Brown is would have provided proper and extra
care for inspecting the forward books and making personal enquiries stating that the
information was not precise. Therefore, as illustrated and observed from the above scenario,
Bob Breach had breached his duty of care and diligence as it has been mentioned under
section 180 of the Corporations Act. Accordingly, with the provisions of Section 180(1) of
the Corporation Act, it can be said that Bob can be held to personally liable as he was held
responsible for making the Company go against and breach the provisions of the said act.
It was evident in this scenario that the company’s director had breached under the
provisions of Section 72812. By the facts, it can be said that the information that was included
in the prospectus was related to the matters of the company in future. It was held to be not
correct and appropriate. The underwriters of Austin Ltd. will be held liable in such a given
situation. Section 1041H was also breached by the company as it did not inform about the
current financial situation of the company. Hence, it was associated in the process of
11 Ramsay, Ian. "Increased Corporate Governance Powers of Shareholders and Regulators and the Role of the
Corporate Regulator in Enforcing Duties Owed by Corporate Directors and Managers." European Business Law
Review 26.1 (2015): 49-73.
12 Banerjee, Suman, and Mark Humphery-Jenner. "Directors’ duties of care and the value of auditing." Finance
Research Letters 19 (2016): 1-14.

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deceptive conduct. In this provided case study it was quite evident that the company of
Austin had issued a prospectus for the purpose to raise the capital money of the company13.
As per Section 674(2) of the above mentioned act, it was analyzed that the responsibility and
obligation of Austin was to make ASX aware of the modifications and circumstances of the
financial prospects.
DEFENSES
As provided under section 731 of the Corporations Act, a person who has not
committed the breach will not be held liable. Thereafter, under section 732, an individual is
not said to have committed a breach of section 728 of the said act. These defenses that can be
based on this case are the ones that are caused because of care and diligence as it have been
provided under section 731. It is treated to be as defense. Therefore, Bob was not being able
to abide by the relevant provision of section 189 and the underwriter did not succeed in doing
so. The DB Consultants were noticed to mention in the report in a ruthless way and hence,
the defense could not be accessed.
CONCLUSION
In this given scenario, it can be concluded stating that for the inappropriate disclosure
of documents, Bob Brown, Austin, Dendy Securities and consultants of DB can be held
liable.
OBSERVATION
It was illustrated and discussed that a similar kind of issue was observed in the
case of ASIC v Sino Oil and Gas Ltd. In this case, the Court decided that the director was
held liable for the breach caused under section 180(1) and 728(3) of the Corporations Act.
13 Harris, J. Hargovan, A. Adams, M., Australian Corporate Law LexisNexis Butterworths 5th edition, 2015.

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These similar provisions was acquired in the case ASIC v Forrest and Fortescue [2012]
HCA 39.

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Bibliography:
ASIC v Australian Property Custodian Holdings Limited [2013] FCA 1342
Austin R.P. & Ramsay, I., Ford's Principles of Corporations Law, Butterworths, Australia,
16th edition, 2014.
Australian Securities and Investment Commission v Sino Australia Oil and Gas Limited (in
liq) [2016] FCA 934
Banerjee, Suman, and Mark Humphery-Jenner. "Directors’ duties of care and the value of
auditing." Finance Research Letters 19 (2016): 1-14.
Broderick, Phil, and Melissa Brazzale. "A matter of trusts: Director's breach of fiduciary
duties results in a clawback of super contributions." Taxation in Australia 49.9 (2015): 547.
Carson, Bill, and Scott Wilson. "The Director Duties Bill: Amendments to Section 2-405.1 of
the Maryland General Corporation Law." Md. BJ 49 (2016): 40.
Corporation Act 2001 (Cth)
Gray, Stephen, and John Nowland. "The diversity of expertise on corporate boards in
Australia." Accounting & Finance 57.2 (2017): 429-463.
Hargovan, Anil. "Corporate law: Foreign directors of Australian companies put on notice: No
leniency for ignorance of duties." Governance Directions 69.1 (2017): 37.
Harris, J. Hargovan, A. Adams, M., Australian Corporate Law LexisNexis Butterworths 5th
edition, 2015.
Hayne, K. M. "Directors' duties and a company's creditors." Melb. UL Rev. 38 (2014): 795.

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Ramsay, Ian. "Increased Corporate Governance Powers of Shareholders and Regulators and
the Role of the Corporate Regulator in Enforcing Duties Owed by Corporate Directors and
Managers." European Business Law Review 26.1 (2015): 49-73.
Witney, Simon. "Corporate opportunities law and the non-executive director." Journal of
Corporate Law Studies 16.1 (2016): 145-186.