The liability of a company director

Australia was shocked with the news of George Calombaris underpaying his hard-working restaurant staff.

While it can be difficult navigating the mine field of employment award conditions, many were left wondering whether he knew, if he would be held accountable, and what would happen if they were in a similar position.

Bennett & Philp’s Business Advisory Expert Nadia Sabaini sheds light on the legal obligations of a company director (of which there are many in the small cap world) and the extent to which a director can be personally liable for the actions of their company.

Trading while insolvent and company debts

Directors are not usually liable for the debts of their company, unless they have given a personal guarantee. That said, if a company continues to trade after becoming insolvent, directors become personally liable for debts incurred by the company while insolvent. Additionally, the Australian Tax Office can claim against directors personally for any unpaid tax liabilities of the company in certain cases. This is because all directors are under a positive duty not to permit the company to trade while insolvent and to ensure the company meets its tax obligations when due.

There are two other situations where a director can also be personally liable for the debts of a company:

a) Debts incurred by companies acting as trustees, if the company cannot be indemnified from the assets of the trust because of a breach of trust by the company; and

b) Illegal phoenix activities, where companies are wound up and restarted to avoid outstanding debts, tax or employee liabilities.

Breach of directors’ duties

As briefly outlined above, directors have certain duties and obligations which are set out in the Corporations Act 2001 (Cth), the body of legislation governing companies in Australia.

In addition to preventing insolvent trading, the primary duties of directors include:

a) Exercising the director’s powers and duties with the care and diligence that a reasonable person would have.

b) Exercising the director’s powers and duties in good faith, in the best interests of the company and for a proper purpose. c) Not using the director’s position improperly to gain an advantage for themselves or someone else, or to cause detriment to the company.

d) Not using company information improperly to gain an advantage for themselves or someone else, or to cause detriment to the company.

e) Avoiding (and disclosing) conflicts of interest.

Breaches of directors’ duties can attract civil penalties and prosecution. The maximum civil penalty for directors was increased five-fold in 2018 to a whopping $1.05m per person or three times the amount of the benefit derived from the contravention. Further, a breach of a directors’ duties can be the basis of a law suit by anyone affected, including a third-party claimant or even the company and fellow directors.

Whilst it is possible to delegate roles or specific powers under the Corporations Act, a director remains liable to keep a watchful eye on the company as part of their director’s duties and a lack of interest or supervision is no excuse. Being a silent director is no legal defense.

Statutory fines and penalties

There are laws that impose civil and criminal penalties on individuals and companies which could extend to directors of those companies beyond the directors duties contained in the Corporations Act. This includes workplace health and safety laws, environmental laws and trade practices laws.

Although personal liability could depend on the level of a director’s involvement in a matter, and it is possible to delegate a directors powers in compliance with the Corporations Act, it is important to know that vicarious liability can arise for persons in control of a company in breach, particular if you are the sole director.

When you are personally involved

Following on from the last points, directors sometimes forget that the corporate veil cannot be used to cover up personal negligence. If a director commits a criminal offence (for example fraud) or a civil wrongdoing (for example bullying or harassment) or becomes involved in a criminal offence or civil wrongdoing, then it is of course the director, not the company, that is committing the act, and it is certainly possible for directors to be sued personally because of their personal involvement in a matter.

Key recommendations

At Bennett & Philp, our recommendation to company directors is to:

1. Keep informed, even if you are not directly engaged in the day to day running of the company;
2. Delegate where appropriate, verifying the delegate’s credentials and asking for reports;
3. Maintain a good level of record keeping, ensuring all advices, instructions, reports and minutes are in writing;
4. Ensure bills are paid on time and accounts are lodged when due;
5. Step in when you need to in board matters, even if it’s not within your ordinary sphere of responsibility; and
6. If something goes wrong, seek advice promptly.

Bennett & Philp is a leading provider of solutions-focused legal services to large corporates, small and medium enterprises and individuals.