4
Professional and Management Liability Gazette
Case Note
Boorer v HLB Mann Judd (NSW) Pty Ltd
[2014]
NSWCA 100
Financial Advisors and Accountants
Accountant’s role in the disqualification by ASIC of company directors.
The facts
The appellant, Mr Boorer was, along with his son,
the director of an unlisted public company, Techontap
International Ltd (
Techontap
). Techontap engaged
the respondent, HLB Mann Judd (NSW) Pty Ltd (
HLB
)
to (amongst other things) prepare and lodge forms
with ASIC from time to time.
Mr Boorer invited Mr Leonard King and Mr Brett King
(
the
Kings
) to become directors of Techontap, with
Leonard King as company secretary. Mr Boorer told
Ms Mariana von-Lucken of HLB that the Kings and
a Mr Walter Adamson consented to their respective
appointments. Ms von-Lucken subsequently prepared,
and Mr Boorer signed, a Form 484 notifying ASIC of Mr
Adamson’s and the Kings’ appointments as directors
and Leonard King’s appointment as secretary.
Under s 201D(1) of the
Corporations Act 2001
(Cth)
(
Act
) a company must first obtain a person’s signed
consent prior to appointing them as director. Despite
this, HLB lodged the Form484 withASIC notifying of the
appointments having only received the signed consent
of Mr Adamson. ASIC’s records were subsequently
updated to reflect the appointments. The Kings never
provided written consents to being appointed.
Techontap was wound up in December 2005. Prior
to Techontap’s failure, Mr Boorer had been a director
of two companies to which a liquidator had been
appointed. ASIC disqualified Mr Boorer frommanaging
corporations without the leave of ASIC for two years,
partly due to the finding that the misleading Form
484 was lodged by HLB on Mr Boorer’s instructions.
However, there were other grounds relied upon for the
disqualification order.
On review, the Administrative Appeals Tribunal (
AAT
)
set aside ASIC’s decision and replaced it with a
decision that Mr Boorer’s disqualification period be
reduced to one year. The AAT found the error was on
the part of HLB in the lodgement of the Form 484 and
that there was no blameworthy conduct on Mr Boorer’s
part. The AAT’s decision was made almost two years
after ASIC’s decision, so Mr Boorer had still effectively
served his two year disqualification.
Mr Boorer claimed for breach of duty against HLB
regarding the lodgement of the Form 484 and also in
relation to HLB’s alleged failure to warn him that he
might have been trading while insolvent. In relation
to the Form 484 issue, Mr Boorer alleged that the
disqualification had damaged his reputation and that
his income had been adversely affected. He claimed
damages for that alleged loss.
