WA Getting ASIC to Change Company Directors Listing?

[Grewell]

Hi,

Can anybody tell me what the process is to get a court order for ASIC to change a listing in regards to the company directors? Can this be done or at least be started without the use of a lawyer?

The basic background:

Myself and another person both equal 50% shareholders and both directors in the company. I was employed by the business while the other director had a job working for somebody else. After he lost his job and our business relationship soured, I agreed to step aside from the business and sell my share to him.

Instead of agreeing to my offer or making a counter offer, he changed the locks to the business, told the staff he had fired me, and then sent me a letter demanding I resign as director and surrender my shares or he would buy some of the company debt and place the company into liquidation (the implied but unwritten part was that he would get rid of me and some debt and try to phoenix the business). Several months of letters from lawyers and all requests for a resolution or access to financial data of the business were ignored.

After I found out he entered into an agreement that under normal business would have required a signature of both directors and I questioned it, he lodged a form 484 with ASIC stating I was no longer a director and backdating it to 1 week before the agreement was entered into. He has since used the fact that I am not listed as a director to remove me as signatory on the company bank accounts and deny me access to bank statements.

My hesitation to use a lawyer for this or any other court action, is I do believe if he loses he will attempt to force the closure of the business and although I don't believe he would succeed in his phoenix plans I would still likely be out of pocket the money I have invested in the company and the money I have spent on lawyers already. I don't want to now spend even more money making it happen.

Any help anybody could provide would really be appreciated.

Thanks.

 

[Sophea]

Hi Grewell,

It's more than likely that in the course of this director's actions he has breached more than a few directors duties and other provisions of the Corporations Act.

He is also likely guilty of providing false and misleading information to ASIC. Therefore I would first perhaps contact ASIC and alert them to the false document he has lodged and what he is doing with that false document. They may decide to take him to court themselves and rectify the records etc.

Otherwise it's a fairly complex and convoluted process to bring an application yourself against the company in the Federal Court. It would require a good knowledge of the Corporations Act provisions and Federal Court process.

 

[Rod]

I agree with Sophea. Not easy to undo and will take both time and money to fix. He may also have committed crimes (fraud, financial advantage by deception). Police though will often say this is a civil matter and refuse to get involved.

 

[Grewell]

Hi Sophea and Rod,

Thanks to both of you for your responses. I figured this was likely to be the case regards the court order being involved.

I have reported his misconduct to ASIC, but I'm not holding out much hope of them taking action. It was as a result of my conversation with them that I am looking at the court order. It seemed at least with the person I spoke to they agreed he had likely made a false statement but wouldn't take action unless they had a court order requiring them to change the listing. They don't get involved in small business disputes unless it has an effect on the greater public (or I do all the work proving their case by getting the court order). They don't seem to care that the bank, the real estate agent and all the people who won't respond to me because he says I'm not a director are confirming this information by using the ASIC register.

It is just so frustrating that he seems to have more success by being unethical and dishonest then you can have by trying to do the right thing. He was fired from his last job for a dishonest act, one that would prohibit him from being a director if he was convicted, but I have no way of finding out if the company he worked for involved the police or just fired him.

I think I will just keep bombarding ASIC with details every time I am denied my rights as a director and hopefully they will get sick of me and take action then.