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