Sacca v El Saafin (No 2) [2021] FCA 987

Sacca v El Saafin (No 2) [2021] FCA 987

The transfer of the Licence from AAM to Baraka was procured by Mr El Saafin while he was a director of AAM and the sole director and shareholder of Baraka, without authority and for no consideration. That conduct breached ss 181, 182 and 183 of the Corporations Act 2001 (Cth), constituted oppressive conduct, and breached fiduciary duties. Because Mr El Saafin's knowledge was imputed to Baraka, Baraka was involved in the contraventions and was liable for knowing receipt. The transfer was therefore voidable at AAM's instance and should be declared void.

Jurisdiction
Australia
Judgment Date
19 August 2021
Procedural Posture
Corporations Proceeding Concerning Directors' Duties, Oppression, Knowing Receipt and Transfer of an Apparatus Licence / Judgment Against the Second Defendant After the Plaintiffs and the First Defendant Reached an in Principle Settlement and the Second Defendant Did Not Appear at Trial
Outcome
The transfer of the Licence from the Second Plaintiff to the Second Defendant was declared void and consequential orders were made against the Second Defendant, including costs.
Legal Topics
["directors' Duties" 'oppressive Conduct' 'knowing Receipt' 'accessorial Liability' 'deemed Admissions' 'voidable Transfer of Company Property']
['corporations' 'equity' 'civil Procedure'] ["directors' Duties" 'oppressive Conduct' 'knowing Receipt' 'accessorial Liability' 'deemed Admissions' 'voidable Transfer of Company Property']

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Procedural Posture

Corporations Proceeding Concerning Directors' Duties, Oppression, Knowing Receipt and Transfer of an Apparatus Licence / Judgment Against the Second Defendant After the Plaintiffs and the First Defendant Reached an in Principle Settlement and the Second Defendant Did Not Appear at Trial

Legal Issues

  1. 1 ["Whether the Second Defendant was involved in the First Defendant's contraventions of ss 181, 182 and 183 of the Corporations Act 2001 (Cth)." "Whether the First Defendant's conduct constituted oppressive conduct within the meaning of s 232 of the Corporations Act 2001 (Cth)." 'Whether the Second Defendant was liable for knowing receipt of property transferred in breach of fiduciary duty.' 'Whether the transfer of Apparatus Licence number 1308290/4 from the Second Plaintiff to the Second Defendant should be declared void.']

Ratio Decidendi

The transfer of the Licence from AAM to Baraka was procured by Mr El Saafin while he was a director of AAM and the sole director and shareholder of Baraka, without authority and for no consideration. That conduct breached ss 181, 182 and 183 of the Corporations Act 2001 (Cth), constituted oppressive conduct, and breached fiduciary duties. Because Mr El Saafin's knowledge was imputed to Baraka, Baraka was involved in the contraventions and was liable for knowing receipt. The transfer was therefore voidable at AAM's instance and should be declared void.

Court Disposition

The transfer of the Licence from the Second Plaintiff to the Second Defendant was declared void and consequential orders were made against the Second Defendant, including costs.

Orders

  • ['The Third Plaintiff is released from its undertaking given to the Court on 25 February 2019.' 'The Court declares that the transfer of the Licence from the Second Plaintiff to the Second Defendant that was processed by the Australian Communications and Media Authority (ACMA) on 9 October 2018 is void.' 'The Second...