Bob Brown is the managing director and a major shareholder of Dodgy Insurance Ltd (DIL), which is a large insurance company listed on the Australian Securities Exchange (ASX). DIL has approximately 20% of the professional indemnity insurance market in Australia. Lately, DIL has been experiencing serious cash flow problems with the result that many legitimate insurance claims made by DIL policy holders have been denied without good reason. These problems have not prevented DIL continuing to offer insurance contracts to new clients. The internal auditors of DIL estimate that the company is incurring losses of $1 million per month. They compile this information in an internal memo to Bob Brown, but he does not read the memo as he has not been into his office for the last two weeks.

Bob has been very busy lately so he has not been attending any of the board meetings of DIL and has no idea about the current financial status of the company. Bob is busy because he is a director of many different Australian companies, including Here to Help Ltd (HTHL), a large insurance company listed on the ASX with approximately 30% of the general insurance market.

HTHL is keen to expand its Australian insurance business and is actively looking to acquire other insurance companies. The possibility of HTHL acquiring another insurance company in Australia is raised at a HTHL board meeting in December 2022 which is attended by Bob, who never misses HTHL board meetings. At the board meeting Bob suggests that HTHL take over DIL and thus acquire a larger share of the professional indemnity insurance market in Australia. The members of the board know that Bob is a director and major shareholder in DIL and assume that he is fully aware of the company's financial position. When they ask Bob if DIL is good value, Bob responds by saying 'Absolutely it is'. If the takeover is successful, Bob is likely to make a large profit on the shares he owns in DIL.

Josh Middleton is the managing director of HTHL. He is also a close friend of Bob Brown. Josh is very excited about the prospect of taking over his friend's insurance company because he knows that DIL has not been performing well and believes that his excellent management can make DIL profitable again. Josh directs HTHL's company lawyer to draw up a takeover agreement to allow HTHL to buy DIL, without performing the usual due diligence checks to verify the financial status of DIL. Josh is relying solely on Bob's advice that DIL is good value. He does not see any further audits or investigations to be undertaken by HTHL asnecessary, even though it is common knowledge that the professional indemnity insurance market in Australia is not very profitable.

By March 2023, HTHL completes its successful takeover of DIL. In June 2023, reports emerge in the financial press that DIL may have been insolvent at the time of the takeover by HTHL. Bob Brown and Josh Middleton are now concerned about possible ASIC investigations into the takeover.

1. Advise Bob as to his potential liability under s180(1) of the Corporations Act 2001 (Cth).