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The Case Of ASIC V Soust

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The Case Of ASIC V Soust

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Discuss the foundations of Australian Corporations law and Constitutional aspects and administration.

The Corporations Act, 2001, herein refereed as CA, is the act of the Parliament of Australia, hence, the act of Commonwealth (Federal Register of Legislation, 2017). Due to these reasons, it is applicable on all the companies which have its operations or business in Australia, unless specifically exempted (Latimer, 2012). This act puts an obligation over the directors of the company to run the business of the company, in which they hold the position of a director, for the company’s shareholders. In absence of doing so, they are held both liable under both the civil and criminal law, depending on the breach of the duties contained in the CA (Cassidy, 2006).
The case of ASIC v Soust [2010] FCA 68 is one of such cases, where the duties given to the directors of the company, were breached, as a result of which, Soust was held liable by the Federal Court (Hodgkinson, 2010). In the ensuing parts, the background of this case, the breached duties and the decision of the court has been summarized.
The case revolves around Martin Soust, herein referred as the Director, who was the Select Vaccines Limited’s CEO and MD. The terms of service of the Director were properly covered under the Executive Service Agreement in which the conditions which made the applicability of bonus for the Director were mentioned (Woodhead, 2012). As per this condition, the Director had to be paid the bonus, apart from his annual fee, only when the prices of shares moved beyond ten percent on the basis of the Intersuisse Citotech Index. Further, this moment of shares was to be evaluated at the calendar year ending date and the same were to be reported (ASIC, 2010).
The Director was a part of the company’s board of directors and due to this reason he had to comply with the Select Vaccines Limited’s share trading policy. Under this share trading policy, the Director had been prohibited from trading in Select Vaccines Limited’s new shares, except for a period of six weeks after the Annual General Meeting of the company, along with six weeks after the release of the annual and half yearly results of Select Vaccines Limited (Hodgkinson, 2010).
Ignoring these policies and restrictions, the Director placed a bid through his stock broker through phone on the last day of 2007 in the closing hours. Such trading was done beyond the allowed windows of trading. At that time period, the last sale was done at the price of 2 cents per share, which depicted a lack of market depth. The Director was aware that the same would be translated into the requirement of different trades so as to fill his order and due to which, the price would go higher than 2.4 cents per share, which was the price which was offered in the last. The Director made a decision to undergo a transaction at this price and as soon as he did do, trade of shares was made at 2.5 cents for every share. Due to this, the share prices were inflated by 19.05% as compared to previous year, where the shares held the value of 2.1 cents. As a result of this entire transaction, the requirements contained in the Executive Service Agreement of the Director, with regards to the outperformance of the Intersuisse Citotech Index were attained. Had the Director not been involved in such transaction, the value would have shown a decrease of the prices of share by 4.76%, resulting in the Intersuisse Citotech Index being underperformed by 3.27% (Hodgkinson, 2010).
The Director contained to attend the meetings of board and that of the remuneration committee. And yet he did not make a disclosure with regards to the transaction undertaken by him. This disclosure was required under his Executive Service Agreement and the lack of the same resulted in him being paid the performance bonus as was promised. Had the transaction not been undertaken by the Director, the bonus would not have been paid to him (Hodgkinson, 2010).
The accusation was made by the ASIC with regards to the creation of artificial price on part of the Director and which resulted in market manipulation (Bowley, 2013). The actions undertaken by the Director resulted in false and misleading appearances being created (O’Connell, 2013). And these appearances resulted in such an indication being given that the shares of the company had an active market and were regularly traded at the high prices, and this practice could be deemed as market rigging. It was also claimed by ASIC that the Director had contravened his duties as being the company’s director as he did not undertake his duties which were put on him through the CA (Hodgkinson, 2010).
The Director claimed that he had not contravened any provisions of CA, even though the factual evidence was not challenged by him. He stated that he had taken part in a genuine transaction, deeming which as fictitious would be wrong. Further, he stated that he never misled any seller and that there was not artificial in the shares being purchased at the prices at which they were offered. He also made a contention that taking steps to increase the share prices could not be deemed as unlawful. However, the claims of ASIC differed from the claims of the Director (Jade, 2010).
Duties Breached
Under CA’s section 181(1), the directors have been given the responsibility of undertaking their obligations and using the powers which have been given to them in such a manner which can be deemed as having being carried on good faith, for proper purpose and in the best interest of the company (Australian Government, 2017). CA’s section 182(1) brings forward the obligation with regards to making proper use of the position which the director or the officer holds in the company, by being the director or officer of the company, in such a manner, which does not prove to be in the detriment of the company, and of such nature, where some other person attains a benefit out of it (Australasian Legal Information Institute, 2017).
The breach of 181(1) and 182(1) result in the penalties being imposed as are given under section 1317E of CA (ICNL, 2017). A declaration of contravention can be made under section 1317E, following which, the ASIC can make an application for section 206C disqualification order or for section 1317G pecuniary penalties (WIPO, 2015).
Court’s Decision
The Federal Court provided that in order for the contentions of the ASIC to be proved right, the test had to be applied with regards to t he prices so as to examine if the breach had indeed taken place in comparison to the normal course of activities. The court viewed that it was important that the integrity of the market was maintained so that the interest of the concerned buyers could be protected by lowest prices being offered and for the seller by higher prices being offered. This was crucial for the demand and supply of the normal market force. It was held by the Federal Court that by buying the shares at artificially high prices, the share trading policy was breached by the Director. In addition to this, the Federal Court held that by failing to disclose the undertaken transaction to the remuneration committee and to the board of directors, the Director breached the provisions of good faith contained in the CA. This necessitated the application of pecuniary penalties on the Director, along with considering the need of passing the disqualification order (Hodgkinson, 2010).
To make a decision on this, the use of position of the Director was analyzed. As per the obligations imposed on the Director, by holding the position, the best interest of the company had to be given the priority. The bonus made by the Director depicted just the opposite of this, as the position was misused, as a result of which the Director was awarded the bonus, which would be construed as detriment of the company. Had the director made proper disclosure with regards to the transaction undertaken by him, the bonus would not have been awarded, which would have resulted in the company not being wronged. But the contrary was done by the Director. So, both 181(1) and 182(1) were contravened by the Director (Australasian Legal Information Institute, 2010).
Through the case of ASIC v Soust, it is clarified that the company’s directors are required to stay away from such dealings, which cause detriment to the company, while resulting in an advantage for their personal selves. In case any director takes part in such transactions, it becomes their duty to make complete disclosures regarding it, so that the board and the other bodies can be aware about such transaction. The disclosure of such policies is taken as the fulfillment of director duties, which was not done in this case. And the result of this was seen in a case being brought forward against the Director by the ASIC and ultimately the breach of CA being established by the Federal Court. This case also acts as guidance to the directors and officers in the companies across the nation, to not indulge in such activities, which can result in the provisions of CA being contravened.
ASIC. (2010) 10-88AD ASIC obtains pecuniary penalty and disqualification order against former Select Vaccines director. [Online] ASIC. Available from: https://asic.gov.au/about-asic/media-centre/find-a-media-release/2010-releases/10-88ad-asic-obtains-pecuniary-penalty-and-disqualification-order-against-former-select-vaccines-director/ [Accessed on: 17/06/17]
Australasian Legal Information Institute. (2010). Australian Securities & Investments Commission v Soust [2010] FCA 68 (15 February 2010). [Online] Australasian Legal Information Institute. Available from: https://www.austlii.edu.au/au/cases/cth/FCA/2010/68.html [Accessed on: 17/06/17]
Australasian Legal Information Institute. (2017) Corporations Act 2001. [Online] Australasian Legal Information Institute. Available from: https://www.companydirectors.com.au/director-resource-centre/organisation-type/organisation-definitions [Accessed on: 17/06/17]
Australian Government. (2017) Corporations Act 2001. [Online] Australian Government. Available from: https://www.legislation.gov.au/Details/C2013C00605 [Accessed on: 17/06/17]
Bowley, R. (2013). DPP v JM: High Court clarifies the meaning of “artificial price” under s 1041A. [Online] University of Technology Sydney. Available from: https://opus.lib.uts.edu.au/bitstream/10453/44097/4/58340B2B-D59F-4207-BCF1-1B5BA8631498.pdf [Accessed on: 17/06/17]
Cassidy, J. (2006) Concise Corporations Law. 5th ed. NSW: The Federation Press.
Federal Register of Legislation. (2017) Corporations Act 2001. [Online] Federal Register of Legislation. Available from: https://www.legislation.gov.au/Details/C2013C00605 [Accessed on: 17/06/17]
Hodgkinson, J. (2010). CEO guilty of market manipulation. [Online] John Hodgkinson. Available from: https://johnhodgkinson.wordpress.com/2010/02/19/ceo-guilty-of-market-manipulation-and-market-rigging/ [Accessed on: 17/06/17]
ICNL. (2017) Corporations Act 2001. [Online] ICNL. Available from: https://www.icnl.org/research/library/files/Australia/Corps2001Vol4WD02.pdf [Accessed on: 17/06/17]
Jade. (2010). Australian Securities & Investments Commission v Soust [2010] FCA 68. [Online] Jade. Available from: https://jade.io/article/126608 [Accessed on: 17/06/17]
Latimer, P. (2012) Australian Business Law 2012. 31st ed. Sydney, NSW: CCH Australia Limited.
O’Connell, A. (2013). Protecting the Integrity of Securities Markets — What is an ‘Artificial Price’?: DPP (Cth) v JM. [Online] The University of Melbourne. Available from: https://blogs.unimelb.edu.au/opinionsonhigh/2013/08/01/o-connell-jm/#more-1608 [Accessed on: 17/06/17]
WIPO. (2015) Corporations Act 2001. [Online] WIPO. Available from: https://www.wipo.int/wipolex/en/text.jsp?file_id=370817 [Accessed on: 17/06/17]
Woodhead, B. (2012). ASIC hits and misses. [Online] The Australian Financial Review. Available from: https://webcache.googleusercontent.com/search?q=cache:FM1rFQRrOIcJ:www.afr.com/business/asic-hits-and-misses-20120503-j2xi4+&cd=1&hl=en&ct=clnk&gl=in [Accessed on: 17/06/17]

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