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Officer or Not? – Australian Security Investments Commission v King

By Ellen Ferris, a Solicitor in Matthews Folbigg’s Insolvency, Restructuring and Debt Recovery Group.

This week the High Court in Australian Securities and Investments Commission v King & Anor [2020] HCA 4, decided an appeal from the Supreme Court of Queensland concerning the construction of the word ‘officer’ in section 9 of the Corporations Act 2001 (Cth).

This much anticipated decision has provided clarity as to the construction of the term; a decision which will be well received by ASIC.

The relevant section provides that:

    ‘officer of the corporation means:

         (b) a person:

                (ii) who has the capacity to affect significantly the corporations financial standing’

In essence, the High Court held that an ‘officer’ of a corporation is not limited to those who hold or occupy a named office in the corporation to be captured under the section 9(b)(ii) definition. The relevant test is instead a matter of fact and circumstance which will determine whether a person has the requisite capacity to significantly affect the financial standing of the corporation.
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