Question
Creaky Cauldron Ltd (Creaky) operates several guest houses for the wizarding community in Melbourne, the largest of which is Dumblemore's Dorms in Maribyrnong. It has
Creaky Cauldron Ltd ("Creaky") operates several guest houses for the wizarding community in Melbourne, the largest of which is "Dumblemore's Dorms" in Maribyrnong. It has the following four directors:- - Fleur - the Managing Director and majority shareholder; and - Dudley, Cho, and Remus - all non-executive directors. Harry, the company's Chief Operating Officer and finance manager, is in charge of Creaky's finances. He is responsible for providing the directors with monthly budgets and profit forecasts. He often attends board meetings and gives advice to the directors. Harry's remuneration includes a large annual bonus payable if the company's expenses are less than an amount forecasted and agreed upon each year by the company's directors. Approximately 12 months ago, occupancy levels at Creaky's guest houses fell and its expenses increased significantly. This had an impact on the company's cash flow. During the early months of 2021, invoices due to Creaky's many suppliers were not paid on time, and they refused to supply goods or services to Creaky unless they were paid for on delivery. Harry arranged for those suppliers to be paid with company cheques that Creaky's bank later refused to pay because of insufficient funds in the company's bank account. For a very long time, the directors of Creaky were unaware of the company's financial difficulties. To protect his bonus, Harry began to supply them with obviously false information that indicated that the company was doing well, when it was not. In April 2021, the directors discovered the company's true financial position and fired Harry immediately. At that time, Creaky owed more than $200 million to over 50 different unsecured creditors. In May 2021, the following happened:- 1. Despite Creaky's financial position, the company paid a dividend to its shareholders, including Fleur. 2. The directors of Creaky decided that the company should sell Dumblemore's Dorms to Fleur's family company (which Fleur controls), Beauxbattons Pty Ltd. While the contract price was the true market value of Dumblemore's Dorms, Beauxbattons Pty Ltd could pay for it in 25 equal annual instalments over the next 25 years. Advise ASIC whether it may take any legal action against Fleur, Dudley, Cho, Remus, or Harry. Your answer should consider any defences (if available) and consequences for any and all breaches of the Corporations Act 2001. (DO NOT discuss s180 of the Corporations Act 2001 or its general law equivalents.).
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