A flexible payment arrangement was not enough for directors to limber out of liability
Perrine v Carrello [2017] WASCA 151
THE COURT OF APPEAL in Western Australia recently upheld a trial judge’s decision that a holding company was insolvent, and that the Directors, Mr and Mrs Perrine, were liable for insolvent trading.
In this case there was a flexible payment arrangement between the holding company, Perrinepod, and its subsidiary company, Perrine Architecture. This flexible arrangement meant that payments on the running account were only made by Perrinepod to Perrine Architecture as and when Perrinepod had funds to make a payment.
The Directors appealed on the grounds that the specific payment arrangement meant that the debts owed to Perrine Architecture had not fallen due and payable, and thus Perrine Architecture had not actually suffered a loss, and the trial judge erred in finding otherwise.
The appeal was dismissed (see [58]-[61]).
The evidence was that the debt was repayable when (notably not ‘if and when’) the company was in a position to pay it; hence the company was insolvent.
See also Hussain v CSR Building Products [2016] FCA 392, and our recent blog post on that case here.
To access the full judgment, follow this link: http://decisions.justice.wa.gov.au/supreme/supdcsn.nsf/PDFJudgments-WebVw/2017WASCA0151/%24FILE/2017WASCA0151.pdf
Catchwords:
- Insolvent
- Insolvent trading
- As and when debt repayable
- If and when debt repayable
- Solvent
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