Introduction

This assignment has discussed the case scenario of ASIC v Adler (2002) 41 ACSR 72, which was filed in 2001 by ASIC against the non-executive director of HIH, MR. Adler. ASIC filed this case against MR. Adler for using the financial instrument of HIH in illegal ways to utilize it for the benefit of another company owned by him named Adler corp. The assignment has offered a brief overview of the case by highlighting the roles and responsibilities of all of the parties involved in this case. It has described the legal issues associated with all prosecuted officers and directors and has highlighted different penalties offered to all involved individuals. The actions of the HIH company were about to become insolvent. ASIC’s involvement, in this case, has been explored thoroughly and a detailed reflection on the case has also been provided in this assignment.

Case Scenario and positions of prosecuted parties

This case was filed by ASIC in 2001 against Mr. Adler, for breaching different sections of the corporation’s activities, such as s180, s.181, s182, and s183. Adler was the sole proprietor of PEE or Pacific Eagle Equity Pty (ASIC v Adler, 2002) and a non-executive director of HIH. HIH was the second-largest insurance company in Australia until its collapse in 2002 due to the criminal charges enforced by ASIC on its founders. Adler along with the founders of HIH Mr. Dominic Fodera and Mr. Raymond Williams, transferred a loan amount of around $10 million, to the accounts of Adler Corp, in an illegal manner (Huggins et al. 2015, p.180). They did not seek any approval from other shareholders of HIH regarding the transfer and used a part of that $10 million amount for buying shares of HIH on behalf of Adler Corp.

Adler used the remaining amount to buy shares on behalf of HIH to enhance the market price of HIH shares. As influenced by (Bowley 2018, p.40), ASIC filed a case against the owners of PEE and Adler corporation, for breaching different sections of the corporation’s activities. ASIC is the independent governing body in Australia that manages corporate regulations and operations. ASIC’s case file also included a fifth defendant, Mrs. Lynda Adler, who was the wife of Mr. Adler and 50% of Adler Corporation.

Legal Issues regarding duties of responsible officers

The case was dealt with in the NSW Supreme Court and was the judge, Mr. Santow J., announced the final judgment. He announced that all of the five defendants or prosecuted persons, in this case, are associated with the following areas of criminal offenses:

Using the loan amount of $10million for the sole benefit of Adler Corp and Mr. Adler, since no approval was collected from shareholders of HIH (Wan, 2015, p.80)

They documented this entire payment in an inadequate and insecure manner and used it for self-acquisition of security products, on behalf of HIH.

This situation was considered as a ‘non-arm’s length basis which includes the conduction of transactions between parties for self benefits’ (Du Plessis and Mathiopoulos, 2016, p.20).

The court accused all of the five defendants to breach the following sections:

Section 180

This section deals with diligence and care associated with corporate operations (Corporations Act 2001 (Cth) s180). All of the defendants, in this case, were accused of breaching this section by carrying out transactions without proper diligence and care (Hansmann and Kraakman, 2017, p.50).

Section 181

This section deals with good faith related to any corporate activity (Corporations Act 2001 (Cth) s181). All accused persons, in this case, have been prosecuted for lacking good faith in their activities of transferring loans in an insecure manner.

Section 182

This section deals with the utilization of positions for the benefit of corporate. As opined by Hill and Conaglen (2017, p.30), the four defendants of the ASIC v Adler case such as Mr. Adler, Mr. Williams, Mr. Dominic, and Mrs. Adler were accused of breaching this section. They had used the power of their respective positions such as founder, non-executive director, and shareholder, for their own benefit (Corporations Act 2001 (Cth) s182).

Section 183

This section deals with the usage of corporate information in a proper manner and for good purposes only. The five accused persons, in this case, had breached this section by violating the investment guidelines prevalent within the HIH. They also used the credential information of the Investment committee in an improper manner and did not maintain proper documentation of the transaction of the loan amount of $10million (Corporations Act 2001 (Cth) s183).

Penalties offered to the parties involved

All of the five defendants of the ASIC v Adler case were announced as guilty of breaching different sections of the Corporations Act 2001 and improper usage of commercial laws. They were announced different penalties with reference to Corporations Act sections such as 206E, 206C, 1317G, and 1317H. 206C of the Corporations Act, guided judge Santow, to disqualify Mr. Adler from being the owner of any company for the next 20 years (Corporations Act 2001 (Cth) s. 206C). The 206E section allowed judge Santow, to accuse Mr. Adler of taking breaching his duties as director and offered the disqualification of the role (Corporations Act 2001 (Cth) s206E). Section 1317H allowed judge Santow to order Mr. Adler for paying a compensation amount of around A$7 million, jointly with Mr. Williams and Adler Corp, for causing damage to any other by own actions (Corporations Act 2001 (Cth) s1317H).

He was also ordered by the judge to pay a pecuniary amount of around $450,000, with reference to section 1317G, which deals with pecuniary penalty punishments (Corporations Act 2001 (Cth) s1317G). A similar amount of pecuniary penalty was also imposed on Adler Corp, for the same reason of causing damage for own benefits. The ASC versus Donovan case can be compared with this scenario since this case included the court’s verdict of imposing an amount of penalty to the accused within the allocated standards of commercial activities for the management of the corporation (Sise, 2016). The second defendant Mr. Williams was ordered to pay a pecuniary penalty of around $250,000, under the grounds of section 1317G the third defendant Mr. Dominic was ordered to pay an amount of around $5,000, as a pecuniary penalty by the judge Santow, under the same section (Corporations Act 2001 (Cth) s1317G).

Actions of officers regarding insolvency of the company

After the collapse of the HIH post, the judgment of the ASIC v Adler case in 2002, Adler was transferred to Metropolitan Remand and Reception Centre for further investigations (ASIC v Adler, 2002). Then he was then taken to Long Bay Correctional Centre, followed by Kirkconnell Correctional Centre, in 2005, for the purpose of rehabilitation. While staying in the Kirkconnell Correctional Centre, Adler started his career again in a secret manner, was caught thereafter, and was taken to Bathurst Correctional Centre. He was released from the St Heliers Correctional Centre, in 2007, under parole, and after spending more than two years in correctional facilities. The other two defendants such as Mr. Williams and Mr. Dominic were also suffered a lot due to the judgment of the ASIC v Adler case (ASIC v Adler, 2002). Mr. William was announced with payment of a huge compensation amount and a disqualification of the director’s duties for five years. He was also taken to the rehabilitation center for counseling and correctional purposes. Mr. Dominic was announced with payment of compensation amount, which he paid and stayed in a rehabilitation center for a couple of years. All available documents of HIH Company were seized and the company suffered a loss of around $800 million. The federal government of Australia termed it as the biggest corporate collapse in Australia.

Reason for ASIC being involved in this case and involvement of other authorities

As influenced by Harris and Hargovan, (2016, P.30), ASIC was involved in this case, for sough ting the main accused Mr. Adler and all other defendants such as Mr. Williams, Dominic, Adler Corp, and Mrs. Adler. ASIC identified the sections of the Corporation Act 2001, which were breached by all of the five defendants of the ASIC v Adler case, such as section 180. 181, 182, and 183. It sought orders for compensation, disqualification, and pecuniary penalties against all of the accused parties, under the grounds of sections such as 206E, 206C, 1317G, and 1317H. It also ensured that judge Santow makes future amendments for granting leave to the disqualified parties to be attached with any corporation under the sections of 206GAA and 206GAB (ASIC v Adler, 2002).

Comments of observers or writers

This case offered certain vital observations about corporate laws and their contravention areas. As influenced by Bainbridge et al. (2016), the punishments of all five accused parties, in this case, indicated that breaching of corporation act is a punishable crime. It is subjected to receive severe punishments such as huge compensations, disqualification from roles, and others. Mr. Adler’s actions including misusing the power of his directorial position, using company information for the wrong purpose,s, and others, have highlighted the importance of directorial duties and power in organizational and legal contexts. The different judgments of this case such as disqualification of roles, compensation, highlighted the need of offering authenticate information to the shareholders and use positional power for a good purpose, to ensure the sustainability of business (Chitimira, 2015, p.120).

Reflection on the case and learning’s

The case study highlights the injustices and frauds that arise in the corporate sector. I have figured out that the stakes of Adler and the misappropriate intention of benefiting from both the companies. I can conclude that Adler used a shrewd tactic to gain dual benefits. Moreover, Adler also increased the prices of the shares after purchasing further stocks. I think in the case of obtaining the loan, Adler should have sought permission from the remaining stakeholders in the company. If that would be the case, then the intentions of Adler could have been justified. This is because both the companies would be benefited from this move since the investors in HIH would rise and that too with the disbursement of a loan. Further, in the case of PEE, Adler could have distributed the shares among other investors and then seek the loan. In this way, the loan amount could have also been shared and the interests at the same time. For example, I have seen a retail company approving a loan to another video company for the purchase of shares of its own company.

The way in which Adler formulated the strategy to acquire extra shares from the company was not foolproof according to me. I think Adler has done injustice to the investors of HIH by not communicating with them. The interests of Adler could have been beneficial for both the companies if only the other stakeholders were informed and prepared to grant a loan. At the same time, I also figured that the way in which the loan was sanctioned has been quite inappropriate since it lacked properly documented papers and lack of security for the company HIH. As influenced by Chitimira (2015, p.111), the approval of the investors was mandatory to grant a loan although the loan was to increase the capital of the company. Adler has been prosecuted because the way in which the loan was granted was without informing other investors. I have also learned that for taking any decisions regarding the management of the company, shareholders need to be consulted and their approval is mandatory to execute any decisions

Conclusion

From the case study, it can be concluded that the prosecution was based on the misuse of the money that has been sought by Adler for the purchase of shares of HIH. At the same time, since Adler was not an executive of HIH the manner in which the process has been executed is inappropriate. The case study also highlights the fact that informing the investors is crucial in managing a company. In addition to this, informing the stakeholders is not the only thing that has to be obtained before lending but also the approval is mandatory. Further, the approval of the majority of the stakeholders is required or else it is illegal to approve or sanction a loan. The court also declared that the loan amount was a financial benefit for PEE and Adler corp. The transaction that involved the loan amount was also inappropriate as judged by the court due to insufficient documentation and security provided by PEE.

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Ancuta 4 Law Assignment Help

Ancuta 4 Law Assignment Help

TASK 1
Converse the merits of different types of licensed premises as they would apply to the proposed nightclub chain:
Licensed premises act 2003: In this act the responsibility of registration of clubs is transferred by the council from the magistrate’s court. For the registration there are various formalities has to be done for taking the permission and levied the fees. This appendix explained the formalities and fees which is charged for the registration of the club. When any premises want to provide the alcohol, hot food and entertainment between 11 p.m. to 5 a.m. then he the premises need to take the club premises certificate.
The different types of licensed premises are:
1. First are leasehold/ freehold.
2. Second is managed house/ tenancies
3. Member clubs/ open access and
4. Food, drink / dancing, gaming
Merits are:
• Age- License can be taken by any person aged 18 years or above for carry out the licensed premises.
• Applicants-An applicant may be husband and wife, partners.
• License-The applicant can have more than one license.
• Transfers – if any person wants to transfer the premises license, then he can transfer the premises license to the person. The person who want to transfer the premises license then he has to fulfill the conditions which are :

About the Book
Ancuta 4 Law Assignment Help

TASK 1

Converse the merits of different types of licensed premises as they would apply to the proposed nightclub chain:

Licensed premises act 2003: In this act the responsibility of registration of clubs is transferred   by the council from the magistrate’s court. For the registration there are various formalities has to be done for taking the permission and levied the fees. This appendix explained the formalities and fees which is charged for the registration of the club. When any premises want to provide the alcohol, hot food and entertainment between 11 p.m. to 5 a.m. then he the premises need to take the club premises certificate.The different types of licensed premises are:
  1. First are leasehold/ freehold.
  2. Second is managed house/ tenancies
  3. Member clubs/ open access and
  4. Food, drink / dancing, gaming
Merits are:
  • Age– License can be taken by any person aged 18 years or above for carry out the licensed premises.
  • Applicants-An applicant may be husband and wife, partners.
  • License-The applicant can have more than one license.
  • Transfers – if any person wants to transfer the premises license, then he can transfer the premises license to the person. The person who want to transfer the premises license then he has to fulfill the conditions which are :
  1. The application must be made by the applicant in prescribed form to the licensing authority.
  2. The person should has age 18 years or above.
  3. Prescribed fees have to be paid for the transfer of premises license.
  4. The consent form should be signed by the existing holder.
  • Interim authority- There is interim authority over the premises by the holder. It means that holder can continue his business as long as the holder wants. If any holder become:
  1. Insolvent
  2. Died
  3. Mentally incapacity
Then the interim authority is given to the licensing authority. And it is made up by the prescribed authority and with the prescribed fee.

Ancuta 4 Law Assignment Help

  • Prevent the crime and disorder- by taking the premises license then the crimes and other disorder should be prevented. There should be CCTV in pub, shops etc. If any CCTV is installing, and any incident is happened then police required to the shop watch and from the pub watch that share the information which is required by the police which is material evidence for the case.
Prevention of public nuisance- it also helps in preventing the public nuisance. It is necessary that any entertainment is not done in the outside areas in the evening for this prior consultation has to be taken from the licensing authority.
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