Standard Chartered Bank of Australia Ltd v Antico (1995) 131 ALR 1

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Facts

  • Pioneer International Ltd (Pioneer) had a 42% holding in its subsidiary Giant Resources Ltd (Giant) and appointed three nominee directors to Giant.
  • Giant had a number of financial agreements with the Standard Chartered Bank of Australia Ltd (Standard).
  • This included a discount and bill acceptance facility of $30 million, which had been extended multiple times by Standard.
  • When Giant went into liquidation and was wound up, Standard commenced proceedings against Giant, alleging insolvent trading under s 588G of the Corporations Act 2001 (Cth).
  • Standard claimed that Pioneer was a director of Giant and was liable for the insolvent trading.

Issues

  • Was Pioneer, the holding company of Giant, a director of Giant and therefore liable for insolvent trading?

Held

  • Hodgson J held that Pioneer was indeed a shadow director of Giant: there was a particular willingness and ability to control Giant which Pioneer exercised.
  • The real source of decision making lay in Pioneer, rather than Giant, and as a result the Court determined Pioneer to be a shadow director.
  • When considering the above in respect of a holding company and its subsidiary, attention must be had towards the relevant circumstances, including the financial management of the company.
  • Pioneer was liable for insolvent trading.

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