Case S47-8/2023

Potts & Anor v. DSHE Holdings Ltd (receivers and managers appointed) (in liquidation) & Ors
Potts v. National Australia Bank Limited

Case No.

Case nos S47 and S48/2023

Case Information

Lower Court Judgment

26/08/2022 Supreme Court of New South Wales (Court of Appeal) (Leeming, Kirk JJA and Basten AJA)

[2022] NSWCA 165


Corporations law – Compensation orders – Breach of directors’ duties – Damage – Where directors found to have breached s 180 of Corporations Act 2001 (Cth) by voting in favour of payment of dividends – Where s 254T sets out circumstances in which dividend may be paid – Where s 1317H provides Court may order person to compensate corporation if person contravened corporation civil penalty provision and "damage resulted from contravention" – Whether payment by Dick Smith Holdings Ltd ("DSH") of dividend constitutes damage which resulted from contravention of s 180 within meaning of s 1317H – Whether, when assessing compensation under s 1317H for damage company suffered by contravention of s 180(1), Court must have regard to normative considerations in addition to considering "but for" causation – Whether, when assessing compensation under s 1317H for damage which company has suffered by contravention of s 180(1), dividend paid to shareholders is "damage" suffered by company within meaning of s 1317H where no breach of s 254T. 

Corporations law – Proportionate liability – Where appellant Chief Financial Officer and director of DSH – Where National Australia Bank Ltd ("NAB") became DSH's financier after entering into Syndicated Facility Agreement ("SFA") – Where SFA contained representation as to accuracy of information provided by DSH to NAB – Where NAB relied on three causes of action for misleading conduct and appellant raised proportionate liability defences under ss 87CB of Competition and Consumer Act 2010 (Cth), 1041L of Corporations Act 2001 (Cth), and 12GP of Australian Securities and Investments Commission Act 2001 (Cth), claiming DSH concurrent wrongdoer – Whether DSH concurrent wrongdoer – Whether, when determining if corporation, having regard to matters within its knowledge, engaged in misleading conduct by making representations in document authorised by board, issue should be determined solely by reference to matters within knowledge of board, rather than by reference to any knowledge attributable to corporation applying orthodox principles – Whether, when determining if corporation engaged in misleading conduct by making representations in document authorised by board, appropriate to exclude from consideration matters known to a particular member of board against whom allegations of misleading conduct been made, but not established.


21/04/2023 Hearing (SLA, Canberra)

05/05/2023 Notice of appeal

09/06/2023 Written submissions (Appellants in S47/2023)

09/06/2023 Chronology (Appellants in S47/2023)

09/06/2023 Written submissions (Appellant in S48/2023)

09/06/2023 Chronology (Appellant in S48/2023)

07/07/2023 Written submissions (First Respondent in S47/2023)

07/07/2023 Written submissions (Respondent in S48/2023)

28/07/2023 Reply (Appellants in S47/2023)

27/07/2023 Reply (Appellant in S48/2023)

*The due dates shown for documents on this page are indicative only.