New Cap Reinsurance Corporation Ltd v Daya [2008] NSWSC 64

New Cap Reinsurance Corporation Ltd v Daya [2008] NSWSC 64

Claims for indemnity or contribution against NCRA for liability under insolvent trading laws are barred by statute and do not arise under company constitution for improper conduct; misleading or deceptive conduct claims relating to internal board communications fail as not 'in trade or commerce.' Only claims based on conduct toward Due Diligence Committee may proceed; claims against NCRA are doomed and dismissed.

Parties
First Plaintiff: New Cap Reinsurance Corporation Limited; Second Plaintiff: John Raymond Gibbons as Liquidator for the First Plaintiff; First Defendant: Azmin Firoz Daya; Second Defendant: Paul Laurence Williams; Third Defendant: Udayan Daniel Ghose; Fourth Defendant: William Peck; Cross Claimant: Paul Laurence Williams; First Cross Defendant: Azmin Firoz Daya; Second Cross Defendant: William Peck; Third Cross Defendant: Peter Aroney; Fourth Cross Defendant: Udayan Daniel Ghose; Fifth Cross Defendant: New Cap Reinsurance Corporation Limited
Jurisdiction
Australia
Judgment Date
13 February 2008
Procedural Posture
Corporations/winding Up Proceedings / Ruling on Amendment and Summary Dismissal of Cross Claim
Outcome
Various claims in proposed amended cross claim to be dismissed
Legal Topics
Insolvent Trading, Director Indemnity, Misleading and Deceptive Conduct, Internal Corporate Communications, Contribution, Corporations—related Bodies Corporate
Corporations Law Equity Commercial Law Civil Procedure Insolvent Trading Director Indemnity Misleading and Deceptive Conduct Internal Corporate Communications +2 more

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Parties

New Cap Reinsurance Corporation Limited

First Plaintiff

John Raymond Gibbons as Liquidator for the First Plaintiff

Second Plaintiff

Azmin Firoz Daya

First Defendant

Paul Laurence Williams

Second Defendant

Udayan Daniel Ghose

Third Defendant

William Peck

Fourth Defendant

Paul Laurence Williams

Cross Claimant

Azmin Firoz Daya

First Cross Defendant

William Peck

Second Cross Defendant

Peter Aroney

Third Cross Defendant

Udayan Daniel Ghose

Fourth Cross Defendant

New Cap Reinsurance Corporation Limited

Fifth Cross Defendant

Procedural Posture

Corporations/winding Up Proceedings / Ruling on Amendment and Summary Dismissal of Cross Claim

Legal Issues

  1. 1 Whether director is entitled to indemnity by company for liability arising under insolvent trading provisions
  2. 2 Whether conduct alleged (representations) occurred 'in trade or commerce' for purposes of misleading and deceptive conduct statutes
  3. 3 Whether certain debts constitute 'securities' under Corporations Law

Ratio Decidendi

Claims for indemnity or contribution against NCRA for liability under insolvent trading laws are barred by statute and do not arise under company constitution for improper conduct; misleading or deceptive conduct claims relating to internal board communications fail as not 'in trade or commerce.' Only claims based on conduct toward Due Diligence Committee may proceed; claims against NCRA are doomed and dismissed.

Court Disposition

Various claims in proposed amended cross claim to be dismissed

Orders

  • Claims for indemnity or contribution against NCRA dismissed
  • Claims for indemnity or contribution under Law Reform (Miscellaneous Provisions) Act 1946 dismissed