Both the Corporations Act and the Fair Work Act provide for accessory liability. Section 79 of the Corporations Act states:
Section 79 Involvement in contraventions
A person is involved in a contravention if, and only if, the person:
- has aided, abetted, counselled or procured the contravention; or
- has induced, whether by threats or promises or otherwise, the contravention; or
- has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention; or
- has conspired with others to effect the contravention.
Liability for a specified breach is then imposed through the particular contravention. An example is the Corporations Act s 182(1), which prohibits company directors, officers and employees from making improper use of their position to gain an advantage for themselves or someone else, or cause detriment to the corporation. This is the clearest section under which fraudulent phoenix activity is proscribed.
According to s 182(2), ‘[a] person who is involved in a contravention of subsection (1) contravenes this subsection’. The civil penalty provisions of pt 9.4B then contain the relevant consequences for those in contravention. Injunctions can also be sought under s 1324(1) of the Act against those who aid, abet, counsel, procure, induce, conspire or are ‘in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act’.
ASIC MEDIA RELEASE 5 March 2019
Mr Richard Ludwig of Broadbeach Waters Queensland, Mr Stephen O’Neill of Port Melbourne, Victoria and Mr John Narramore, of Main Beach Queensland, have appeared in the Brisbane Magistrates Court on charges that include breaching director duties and dealing in the proceeds of crime.
The charges follow an ASIC investigation into the affairs of Cap Coast Telecoms Pty Ltd and its former director, Richard Ludwig.
It is alleged that Mr Ludwig sought advice from Messers O’Neill and Narramore of pre-insolvency firm SME’s R Us, following a dispute he was having with a creditor of the company.
It is alleged that Messers O’Neill and Narramore facilitated Mr Ludwig to illegally remove a total of $743,050 of company money between October 2014 and January 2015 to accounts in their control. It is alleged that the three men acted jointly to remove the money before the company was wound up in liquidation.
Following the removal of the company money, it is alleged that a large portion of the money was redirected back to Mr Ludwig and that Messers O’Neill and Narramore retained a portion of the money.
Mr Ludwig has been charged with ten counts of breaching his director duties and one count of dealing in the proceeds of crime worth $100,000 or more, while Mr O’Neill and Mr Narramore have been charged with one count each of dealing in the proceeds of crime worth $100,000 or more.
The matter was heard on 1 March 2019. All three men were bailed to return to the Brisbane Magistrates Court on 3 May 2019.
The matter was referred to ASIC by Mark Hutchins of Cor Cordis who is the liquidator of Cap Coast Telecoms Pty Ltd.
The matter is being prosecuted by the Commonwealth Director of Public Prosecutions.
Breaching director duties is an offence under the Corporations Act and carries a penalty of 2000 penalty units or imprisonment for five years or both.
Dealing with the proceeds of crime is an offence under the Criminal Code (Clth) 1995 and carries a penalty of 1200 penalty units or imprisonment for 20 years or both.