Directorship changes and the law of prima facie evidence

🚨 When can you not use an ASIC record as prima facie evidence in a court proceeding that you are a director of a company – the WA Court of Appeal has just told us 🚨

Barboutis v the Kart Centre [2020] WASCA 41

In this case, Director B resigned and was replaced by Director C. The resignation and replacement were done informally, without documenting same (ie no meeting minutes or resolutions) in accordance with the relevant Shareholder Agreement and Constitution.

… and were only recorded by lodging the relevant Form 484 with ASIC.

So the question was, can you rely upon this Form 484 to say that Director C was actually a director?

directorship

The section you would rely upon is s1274B(2) Corporations Act, which says: “… the writing [or lodgment] is proof of such a matter in the absence of evidence to the contrary.”

In a round about way, the WASCA has held that the absence of the things I mentioned in the second paragraph of this post was “evidence to the contrary” 💡

It was not relevant that Director C had been carrying out the duties of a director.

Therefore, the Form 484 was not prima facie evidence‼️

Note: this is not a decision on shadow/de-facto directorship law.

#svvoidables #justandequitable #directorship

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