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Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6

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Image result for murchison metals ltd logo

Haven ... Vanuatu, where the Australian accountant Robert Agius (inset) is alleged to have based his schemes.

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FEBRUARY 2004 WINTERFALL ENTERED INTO AGREEMENTS WITH IRON JACK VENDORS

MAY 2004 MURCHISON AND WINTERFALL SIGNED AN AGREEMENT

JUNE 2004 ADDENDUM TO THE AGREEMENT FOR GRIMALDI & BARNES TO RECEIVE SPOTTER’S FEE

JUNE 2004 GRIMALDI USED CHAMELEON’S SHARE CAPITAL TO RAISE FUNDS FOR THE TENEMENTS

JULY 2004 MR. BARNES ALSO DREW CHEQUES ON CHAMELEON’S BANK A/C.

NOVEMBER 2004 MURCHISON INITIATED WINTERFALL’S REVERSE TAKEOVER. GRIMALDI AND BARNES RECEIVE THEIR SPOTTER’S FEE

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ISSUE: Was Grimaldi in a fiduciary relationship with Chameleon, and if so, did he breach his fiduciary duty?

HELD: It was held by the federal court that Grimaldi was in a fiduciary relationship with Chameleon even though he was a de-facto director and had thus breached his fiduciary and Corporations Act statutory duties.

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“Because the definition of ‘officer’ includes a person “who has the capacity to affect significantly the corporation's financial standing”, proof that a person exercises senior management functions, while ordinarily “a necessary condition of acting as a director” will not necessarily be a sufficient condition: ibid. We would note in relation to this, first, that the Corporations Act's s 9 definition of ‘senior manager’ mirrors exactly that part of the “officer” definition given above and, secondly, in many cases (of which the present is one), the application of ss 180 to 183 to a “director or officer” can eliminate the need to differentiate between a de facto director and an officer (de facto or not) who is not a director for the sharply contrasting situation in the UK see Re  Hydrodam  at 183.”