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Company Law News October 2011

Timbercorp and directors’ duties of disclosure

Timbercorp offered managed investment schemes centred on forestry and horticulture, and financed investment in these schemes by investors.  In April 2009, the company collapsed, at which time Timbercorp was owed some $478million by investors pursuant to some 14,500 loans.  

Timbercorp’s investors sought to mount a class action against the company, arguing that they were not obliged to repay their loans to the company.  Investors argued that they were absolved from repaying their loans since Timbercorp had failed to make a number of disclosures that would have alerted investors to several risks which exposed the company to an increased risk of failure.  However, the class action was dismissed, the Court finding that Timbercorp’s directors had competently managed the affairs of the company and had made adequate disclosure in the Product Disclosure Statements that were provided to investors.

The court considered that, in order to succeed in a class action such as this, investors will be required to point to misrepresentations or non-disclosures on the part of directors that they have relied upon in entering into an investment scheme.  The judgment also provides a useful illustration of the extent of disclosure that will be sufficient to discharge directors’ duties of disclosure to investors. 

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