Understanding Director Liability

The insights presented in this article are derived from ‘Director liability – When are directors personally liable?’ published by Mondaq on November 23, 2023.

The concept of the “corporate veil” is a cornerstone of corporate law, marking the legal distinction between a company and its shareholders, directors, and officers. This principle ensures that a corporation is treated as a separate legal entity, safeguarding its owners from personal liability for the company’s obligations. Yet, this veil is not impenetrable. Under certain circumstances, it can be “pierced” holding individuals personally liable. Let’s delve into what this means for directors and shareholders of established companies and start ups alike.

Understanding the Corporate Veil

The corporate veil serves as a shield, encouraging business formation while protecting owners and directors from personal liability for business debts and legal actions. This separation is crucial for risk-taking and entrepreneurship, allowing individuals to partake in business ventures without jeopardising personal assets. However, the veil’s integrity is contingent upon lawful and fair operation of the business.

When is the Veil Pierced?

Piercing the corporate veil occurs under various scenarios, including:

• Agency: Liability may extend to a parent company for a subsidiary’s debts, particularly if the subsidiary is financially incapable.
• Fraud: Personal liability can arise if a director uses the company for fraudulent purposes.
• Avoiding Legal Obligations: Using the corporate structure to evade responsibilities can lead to personal accountability.
• Unfairness/Justice: In cases of injustice, like a subsidiary causing irreparable damages, the parent company might be held responsible.

Other Avenues to Personal Liability

Beyond these, directors may face personal liability through insolvent trading, illegal phoenix activity, personal guarantees, and certain statutory obligations. For instance, under the Corporations Act 2001(Cth), directors can be personally liable for insolvent trading or fraudulent conduct.

Limited Liability: A Double-Edged Sword

While limited liability is a fundamental aspect of corporate law, offering protection to individuals behind a company, it’s not absolute. Directors must be vigilant of their actions and the company’s financial health to avoid scenarios where they could be held personally liable.

Preventing Personal Liability

To mitigate risks, directors can employ strategies like obtaining Directors and Officers Insurance, ensuring diligent financial management, and securing a Deed of Indemnity. However, these measures are not foolproof, especially against fraudulent or criminal actions.

The Balance of Protection and Responsibility

The corporate veil represents a delicate balance between encouraging business growth and protecting public interest from corporate misconduct. Directors must navigate their roles responsibly, understanding the scenarios under which they could face personal liability. This awareness is important for maintaining the integrity and sustainability of the corporate framework, fostering an environment of responsible and accountable business operations.

Connect with us at Allied Legal on 03 8691 3111 or drop us an email at hello@alliedlegal.com.au to discuss your compliance with directors’ duties.