The term ‘director’ is defined in s.9 of the Corporations Act 2001 (Cth) (Act) to mean:
(a) a person who:
(i) is appointed to the position of a director; or
(ii) is appointed to the position of an alternate director and is acting in that capacity;
regardless of the name that is given to their position; and
(b) unless the contrary intention appears, a person who is not validly appointed as a director if:
(i) they act in the position of a director; or
(ii) the directors of the company or body are accustomed to act in accordance with the person’s instructions or wishes.
That is, (a) refers to directors notified to ASIC and (b) covers those who are de facto directors or shadow directors.
Consequently, a person who has not been validly appointed as a director of a company (and whose details are not therefore recorded in ASIC’s registers) may nonetheless be deemed a director of that company if they have influence to the extent that the directors of the company are accustomed to acting in accordance with the person’s instructions or wishes or if they act as if they are a director.
Indicators of being a shadow director
Examples of being a de facto or shadow director can include:
- having independent authority to negotiate and manage executive matters on behalf of the company (like negotiation of important contracts or the managing employment)
- promotion of the person to the public as having power to bind the company.
- having unfettered control of the company’s bank accounts
- being involved in setting up the company
Subparagraph (b)(ii) does not generally apply to advice given by the person in the proper performance of functions attaching to the person’s professional capacity (such as an external accountant, lawyer or professional adviser), but can include employees and spouses of directors (who may own assets as part of a risk minimization/asset protection strategy implemented by their director spouse).
Those that sit on so called “advisory boards” should pay particular attention to the way in which they carry out their roles and the way in which the company follows (or questions or considers) their recommendations or suggestions.
A shadow director will be required to comply with director duties under the Act and can become liable for things like insolvent trading under section 588G.
If you are determined to be a shadow director, penalties can include:
- a fine of up to $200,000, imprisonment for up to 5 years, or both;
- personal liability for any loss or damage incurred; and
- permanent or temporary orders prohibiting you from taking part in the management of a company.
How to help prevent being a shadow director
Steps that can be taken to help minimize the risk of being deemed a director of a company or the consequences of it include:
- documenting the authorities of key personnel, including limits on authorities, autonomy and decision making (including in employment contracts, workplace policies etc)
- putting in place robust internal procedures for decision making and approvals
- ensuring ASIC registers are accurate and up to date
- limiting advice provided to that which is within your professional qualifications
- advisors, key staff and ‘advisory boards’ presenting any advice as a recommendation for a company’s consideration, rather than being a direction or instruction to the company or its board
- otherwise, properly documenting communications
- consider appropriate insurances
For further information in relation to any business related or company matters, please contact McKillop Legal on (02) 9521 2455 or email firstname.lastname@example.org
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.