Cassimatis v Australian Securities and Investments Commission

• Jurisdiction: Australia Federal only
• Judgment Date: 27 March 2020
• Neutral Citation: [2020] FCAFC 52
• Date: 27 March 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Cassimatis v Australian Securities and Investments Commission

[2020] FCAFC 52

Appeal from:	Australian Securities and Investments Commission v Cassimatis (No 8) [2016] FCA 1023
File number(s):	QUD 247 of 2018
Judge(s):	GREENWOOD, RARES AND THAWLEY JJ
Date of judgment:	27 March 2020
Catchwords:	CORPORATIONS – consideration of whether the primary judge erred in concluding that the appellants, Mr and Mrs Cassimatis, engaged in conduct in contravention of s 180(1) of the Corporations Act 2001 (Cth) (the “Act”) – consideration of the construction of the text of s 180(1) and the history of the development of that section of the Act – consideration of the extent to which the appellants exercised power and control over the management of the affairs of the corporation, Storm Financial Pty Ltd – consideration of the “corporation’s circumstances”, the “office occupied” by each appellant and the “responsibilities” within the corporation of each appellant for the purposes of the integers of s 180(1) of the Act ; CORPORATIONS – consideration of the contraventions, as found by the primary judge, by the corporation of s 945A(1)(b) and (c) – consideration of the contraventions of s 912A(1)(a) and s 912A(1)(c) of the Act – consideration of the relationship between conduct on the part of the appellants giving rise to the contravention of those sections and the liability of the appellants arising under s 180(1) of the Act – consideration of the distinction between the accessorial liability of a person arising under s 79 of the Act and a liability arising in a director or officer of a corporation by reason of conduct in contravention of s 180(1) of the Act – consideration of the notion of a “stepping stone” to liability on the part of a director of officer of the corporation – consideration generally of the relationship between contended contraventions of s 180(1) by the appellants and contraventions by the corporation of particular provisions of the Act ; CORPORATIONS – consideration of the integers of s 945A(1)(b) and (c) of the Act – consideration of contraventions by the corporation of those provisions of the Act – consideration of the relationship between contraventions of those provisions of the Act by the corporation and a liability arising in the appellants by reason of conduct engaged in by the appellants in contravention of s 180(1) of the Act
Legislation:	Companies Act 1896 (Vic), s 116(2) Companies Act 1958 (Vic), s 107(1) Companies Act 1981 (Cth), s 229 Companies (Western Australia) Code 1961, s 229(2) Corporations Act 1989 (Cth), s 232 Corporate Law Reform Act 1992 (Cth), s 11 Corporate Law Economic Reform Program Act 1999 (Cth), s 3, Sch 1 Corporations Act 2001 (Cth), ss 79, 180, 198A, 761A, 763B, 766A, 766B, 912A, 915C, 920A, 944A, 945A, 947A, 947B, 947C, 1041E, 1101B, 1311 Criminal Code Act 1995 (Cth), Sch 1, s 11.2(1) Life Insurance Act 1995 (Cth), s 48
Cases cited:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Agar v Hyde (2000) 201 CLR 552 AldiFoods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301 Angas Law Services Pty Ltd (in liq) v Carabelas (2005) 226 CLR 507 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Astley v Austrust Ltd (1999) 197 CLR 1 Attorney General for Hong Kong v Reid[1994] 1 AC 324 Australian Securities and Investments Commission v Cassimatis (No 8) [2016] FCA 1023; (2016) 336 ALR 209 Australian Securities and Investments Commission v Cassimatis (No 9) [2018] FCA 385 Australian Securities and Investments Commission v Citrofresh International Ltd (No 2) (2010) 77 ACSR 69 Australian Securities and Investments Commission v Fortescue Metals Group Ltd (2011) 190 FCR 364 Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345 Australian Securities and Investments Commission v King [2020] HCA 4 Australian Securities and Investments Commission v Mariner Corporation Limited (2015) 241 FCR 502 Australian Securities and Investments Commission v Maxwell (2006) 59 ACSR 373 Australian Securities and Investments Commission v Rich (2009) 236 FLR 1 Australian Securities and Investments Commission v Warrenmang Ltd (2007) 63 ACSR 623 Blatch v Archer(1774) 1 Cowp 63 Boardman v Phipps [1967] 2 AC 46 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 Brumder v Motornet Service and Repairs Ltd [2013] 1 WLR 2783 Chan v Zacharia (1984) 154 CLR 178 Commonwealth Bank of Australia v Friedrich (1991) 5 ACSR 115 Daniels (formerly practising as Deloitte Haskins & Sells) v Anderson (1995) 37 NSWLR 438 David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 In re City Equitable Fire Insurance Co Ltd [1925] Ch 407 Jones v Dunkel (1959) 101 CLR 298 Kinsela v Russell Kinsela Pty Ltd(in liq)(1986) 4 NSWLR 722 Kizbeau Pty Ltd v W G & B Pty Ltd (1995) 184 CLR 281 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Multinational Gas and Petrochemical Co v Multinational Gas and Petrochemical Services Ltd [1983] Ch 258 New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd [1975] AC 154 Optical 88 Ltd v Optical 88 Pty Ltd (2011) 197 FCR 67 Panganiban v Australian Securities and Investments Commission [2016] FCA 510 Permanent Building Society (in liq) v Wheeler (1994) 11 WAR 187 Reading v Attorney-General [1951] AC 507 Re D’Jan of London Ltd [1993] BCC 646 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 Salomon v A Salomon & Co Ltd [1897] AC 22 Shafron v Australian Securities and Investments Commission (2012) 247 CLR 465 Sullivan v Moody (2001) 207 CLR 562 The Overend & Gurney Co v Gibb (1872) LR 5 HL 480 Vines v Australian Securities and Investments Commission (2007) 73 NSWLR 451 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Walker v Wimborne (1976) 137 CLR 1 Warren v Coombes (1979) 142 CLR 531 Willis v Commonwealth (1946) 73 CLR 105 Woods v Multi-Sport Holdings Pty Ltd(2002) 208 CLR 460 ; Report on the Social and Fiduciary Duties and Obligations of Company Directors, Senate Standing Committee on Legal and Constitutional Affairs, November 1989 The Changing Position and Duties of Company Directors, Nettle J, Melbourne University Law Review (2018), Vol 41, 1402 The Origins of Company Directors’ Statutory Duty of Care (2015) 37 Sydney Law Review 489, Rosemary Teele Langford, Ian Ramsay and Michelle Welsh
Date of hearing:	20 and 21 February 2019

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