//
[2025] NSWSC 888
General information, not legal advice.
Supreme Court of NSW
2025-07-28
Nixon J
Original judgment source is linked above.
Zoe will write a short plain-English summary of this judgment and email it to you for free: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: In the matter of Mitsubishi Electric Australia Pty Ltd [2025] NSWSC 888
Hearing dates: 28 July 2025
Date of orders: 28 July 2025
Decision date: 28 July 2025
Jurisdiction: Equity - Corporations List
Before: Nixon J
Decision: 1. Pursuant to section 203AA(2) of the Corporations Act 2001 (Cth) (Act), the day that Meighan Anne Heard’s resignation as a director of the Plaintiff took effect be fixed as 16 August 2024.
2. Pursuant to section 1322(4)(c) of the Act, the Plaintiff and its current and former directors, secretaries and other officers be relieved from any civil liability in respect of:
a. the Plaintiff’s failure to lodge notice of Ms Heard’s resignation as a director of the plaintiff with the Australian Securities & Investments Commission within 28 days of her ceasing to be a director in accordance with section 205B(5) of the Act; and
b. any contravention of section 188(1)(f) of the Act in respect of the Plaintiff’s failure referred to in subparagraph (a) above
Catchwords: CORPORATIONS — directors and officers — appointment, removal and retirement of directors — where director resigned by written notice to company chairman — where company did not provide notice of director’s resignation to the Australian Securities and Investment Commission within 28-day period — where relief sought under s 203AA of the Corporations Act 2001 (Cth) — orders made fixing director’s resignation date at the time that notice of resignation was provided to company’s managing director
Legislation Cited: Corporations Act 2001 (Cth) s 188, 203AA, 205B, 1322
Cases Cited: In the matter of Mosaic Brands Ltd (admins apptd) (recs & mgrs apptd) [2025] NSWSC 722
In the matter of WSP Australia Pty Ltd [2024] NSWSC 1375
One Tree Agriculture v Lye [2025] FCA 126
Re Deterra Royalties Ltd [2024] FCA 891
Category: Principal judgment
Parties: Mitsubishi Electric Australia Pty Ltd (Plaintiff)
Representation: Counsel:
R J Pietriche (Plaintiff)
Solicitors:
Addisons (Plaintiff)
File Number(s): 2025/00269654
Publication restriction: Nil
By Originating Process filed 14 July 2025 (Application), the Plaintiff, Mitsubishi Electric Australia Pty Ltd (C****ompany), seeks:
an order pursuant to s 203AA(2) of the Corporations Act 2001 (Cth) (Act) that the date that Ms Meighan Heard resigned as a director of the Company be fixed as 16 August 2024 (or alternatively, as 23 August 2024); and
an order pursuant to s 1322(4)(c) of the Act that the Company and its current and former directors, secretaries and officers be relieved from any civil liability in respect of the failure to lodge notice of Ms Heard's resignation within 28 days of her ceasing to be director.
The Company read the following affidavits in support of its application:
an affidavit of Ms Fe Sison, who is the Company Secretary and a director of the Company; and
an affidavit of Mr Hayden Martin, who is a solicitor employed by Addisons, the solicitors for the Company.
Ms Heard was appointed as a director of the Company on 5 October 2021.
During the period from 15 August 2024 to 23 August 2024, discussions occurred between Ms Heard and Mr Jeremy Needham, the Managing Director of the Company, regarding Ms Heard’s employment with the Company coming to an end, and the terms of her resignation.
On 23 August 2024, an agreement was reached between Ms Heard and the Company that her employment and tenure as director would end by way of Ms Heard resigning with effect from 16 August 2024. That same day, Ms Heard provided the Company with a written resignation notice which stated that she, "hereby tendered [her] resignation as a director of [the Company] effective at the end of 16 August 2024."
Ms Sison deposes that Ms Heard did not attend the offices of the Company or perform any tasks in respect of her employment between 16 and 23 August 2024, and that she has not performed any functions or duties as a director of the Company since 16 August 2024. For instance, Ms Sison gives evidence that Ms Heard was not invited to and did not attend a board meeting of the directors of the Company on 22 August 2024. Accordingly, I am satisfied that the evidence before me establishes that, at all times after 16 August 2024, the Company conducted its affairs on the basis that Ms Heard was no longer a director of the Company.
On 2 December 2024, Ms Sison caused an ASIC Form 484 regarding Ms Heard's cessation as a director to be lodged with the Australian Securities and Investments Commission (ASIC). The form completed by Ms Sison indicated that the date Ms Heard ceased to be a director of the Company was 16 August 2024.
On 27 May 2025, Ms Sison became aware that ASIC had recorded the date of Ms Heard ceasing to be a director of the Company as 2 December 2024 (being the date when the Form 484 was lodged) and not 16 August 2024.
Ms Sison was made aware of this when a representative of KPMG (who was preparing the Company's annual report for the financial year ending 30 June 2025) raised a query regarding the discrepancy between the Company's internal documents and the relevant ASIC records in relation to Ms Heard's cessation date as a director of the Company.
On the date that she was made aware of this issue, Ms Sison contacted ASIC by telephone to discuss the matter. That discussion led to the Company making the Application, which was filed approximately six weeks later.
Ms Sison, in her affidavit, provides an explanation of the reasons for her failure to lodge the Form 484, notifying ASIC of Ms Heard's cessation as a director, until 2 December 2024.
Ms Sison was a key Company participant and contact for a combined assurance tax review undertaken by the Australian Taxation Office (ATO) in respect of the Company, which took place from August to November 2024 (Review).
The work arising from the Review meant that Ms Sison was responsible for reviewing Company documentation and submitting material to the Company's advisors and to the ATO; answering questions from the ATO; and participating in interviews on a practically full time basis for the entirety of the period from August to November 2024. Whilst the Review concluded in November 2024, Ms Sison deposed that internal work arising from the Review, such as implementing action items identified during the Review, did not conclude until December 2024.
Further, Ms Sison deposed that during the period of the Review, she was performing her normal responsibilities with the Company, including as Company secretary, a director, and general manager of finance, around her commitments in respect of the Review and often outside normal business hours. She explained that her workload and the allocation of work amongst other senior personnel within the Company was made more challenging by the fact that Ms Heard's departure from the Company was not anticipated and occurred on short notice. This meant that, initially, Ms Sison was required to take on many of the day-to-day responsibilities previously performed by Ms Heard until other personnel could be appointed or reassigned to perform Ms Heard's former responsibilities.
Having regard to those matters, I am satisfied that the failure to lodge the Form 484 in a timely manner was due to inadvertence or oversight as a result of Ms Sison's preoccupation with other matters during the period from mid August to early December 2024.
"On the strict understanding that no orders are sought against or directly affecting ASIC, then ASIC does not oppose the application and will not attend the hearing of the matter."
"Agrees to the Court making an order for the date of her resignation as a director of Mitsubishi Electric Australia taking effect to be fixed as 16 August 2024".
Section 205B(5) of the Act provides that if a person stops being a director of a company, the company must lodge with ASIC notice of that fact within 28 days of the change, and the notice must be in the prescribed form. As Ms Heard tendered her resignation “effective at the end of 16 August 2024”, the Company was required, by operation of s 205B(5), to lodge notice with ASIC by 13 September 2024.
Section 205B(7) provides that an offence based on a breach of subs 205B(5) is an offence of strict liability. As noted above, the Company did not comply with that obligation, as the Form 484 was lodged on 2 December 2024, some period after the expiry of the 28 day period on 13 September 2024.
Section 203AA(1) provides, relevantly, that [the person's resignation as a director of a company takes effect] in circumstances where ASIC is notified more than 28 days after a person has ceased being a director, on the day that written notice is lodged with ASIC stating that the person has ceased being a director.
Accordingly, pursuant to that provision (and subject to this Application), the notice in respect of Ms Heard took effect on the day that it was lodged with ASIC; namely, 2 December 2024.
Section 203AA(2) provides that if, because of s 203AA(1), the person's resignation takes effect on the day that is not the day the person stopped being a director, and the person or the company applies to, relevantly, the Court for it to fix the day the person's resignation takes effect, and the application is made in accordance with s 203AA(5), then the Court may fix the resignation day as the day that the person stopped being a director.
Section 203AA(5) requires that any such application to the Court to fix the resignation date of a director is to be made within 12 months after the day the person stopped being a director. As Ms Heard’s ceased to be a director of the Company on 16 August 2024, and the application was brought on 14 July 2025, the Application has been brought within time.
Section 203AB(1) provides that the resignation of a director of a company is without effect if, at the end of the day that the resignation is to take effect, the company does not have at least one director. In the present case, as at the date of Ms Heard's resignation, the Company had several other directors and so this provision does not raise any issue for the Application.
In Re Deterra Royalties Ltd [2024] FCA 891 (at [28]), Jackson J made the following observations regarding the purpose of s 203AA of the Act:
“Section 203AA of the Corporations Act was introduced to ensure that directors are held accountable for misconduct by preventing the improper backdating of their resignations, and relatedly, to reduce illegal phoenix activity and its effect on employees, creditors and government revenue: Explanatory Memorandum, Treasure Laws Amendment (Combating Illegal Phoenixing) Bill 2019 (Cth) paras 3.1, 3.10, 3.14…As with s 1322(4), s 203AA(2) has a remedial and practical purpose…”
These observations were cited with approval by Derrington J in One Tree Agriculture v Lye [2025] FCA 126 (at [34]), to which his Honour added (at [35]) that the purpose of the section is to ensure that ASIC’s register can be relied upon as “accurately recording those who have directorial control of a company at any particular time”: see also the decision of Black J in In the matter of Mosaic Brands Ltd (admins apptd) (recs & mgrs apptd) [2025] NSWSC 722 at [3].
Accordingly, in order to grant relief under s 203AA(2) of the Act, the Court must be satisfied of the following:
that the relevant person, namely, Ms Heard, stopped being a director of the Company on the resignation day; and
that it is just and equitable to fix the resignation day as the day the person's resignation took effect (see s 203AA(2)(d) and s 203AA(3) of the Act).
I am satisfied that the date of Ms Heard’s actual resignation was 16 August 2024. As I have set out above, from that date, Ms Heard did not perform any functions as a director. She did not attend any board meetings or carry out any duties as a director. Her resignation letter states that her resignation took effect as at 16 August 2024 and she has consented to an order fixing the date of her resignation as 16 August 2024.
I am also satisfied that it is just and equitable to fix 16 August 2024 as the date that Ms Heard's resignation took effect. As I have found above, the failure to lodge the Form 484 with ASIC within the required 28 day period was the result of oversight or inadvertence and has been explained by Ms Sison. The evidence establishes that the Company has conducted business on the basis that Ms Heard has not been a director since August 2024. Further, ASIC has been notified of the application and does not oppose it. Accordingly, there is no basis to conclude that any prejudice would be caused to any third party by making the order sought in the Application.
In short, I am satisfied that it is appropriate to make the order sought by the Company to correct an administrative oversight so as to reflect the state of affairs with respect to which both the Company and Ms Heard have conducted their affairs since 16 August 2024; namely, that she ceased to be a director on that day.
The Company also seeks an order pursuant to s 1322(4)(c) of the Act that it, and its current and former directors and officers and secretaries, be relieved from any civil liability in respect of the Company's failure to lodge notice of Ms Heard's resignation as a director of the Company with ASIC within 28 days of her ceasing to be a director in accordance with s 205B(5) of the Act.
The Company also seeks such relief in respect of any contravention of s 188(1)(f) of the Act in respect of the failure to comply with s 205B(5). Section 188(1)(f) of the Act provides that a secretary of a company contravenes that section if the company contravenes s 205B. This is a civil penalty provision.
The Company is plainly an interested person pursuant to s 1322(4) of the Act insofar as it seeks such relief in respect of its own contravention of s 205B. I am also satisfied that the Company is an interested person insofar as it seeks relief in respect of any contravention by Ms Sison in respect of s 188(1)(f) of the Act.
A company has standing to seek such relief with respect to non-compliance by its officers and directors as it is an “interested person” for the purposes of s 1322(4) of the Act by virtue of its employment and engagement of those officers and directors, in causing them to be relieved from any liability for past non-compliance: see In the matter of WSP Australia Pty Ltd [2024] NSWSC 1375 (per Black J at [36]).
Section 1322(6) of the Act provides that the Court may not make an order under s 1322(4)(c) unless it is satisfied that the person subject to the civil liability concerned acted honestly, and that no substantial injustice has been or is likely to be caused to any person.
For the reasons I have given above, I am satisfied that these requirements are established. The failure to comply with the requirements of s 205B, which caused Ms Sison to breach s 188(1)(f), was the result of inadvertence or oversight and not the result of any dishonest conduct on the part of either the Company or Ms Sison.
I am also satisfied that no substantial injustice has been or is likely to be caused to any person where, as I have explained, the Company and Ms Heard have, at all times since 16 August 2024, conducted their affairs on the basis that she ceased to be a director as at that date. Further, as noted above, ASIC has been notified of and does not oppose the relief sought on the Application.
For those reasons, I make the following orders:
Pursuant to section 203AA(2) of the Corporations Act 2001 (Cth) (Act), the day that Meighan Anne Heard’s resignation as a director of the Plaintiff took effect be fixed as 16 August 2024.
Pursuant to section 1322(4)(c) of the Act, the Plaintiff and its current and former directors, secretaries and other officers be relieved from any civil liability in respect of:
(a) the Plaintiff’s failure to lodge notice of Ms Heard’s resignation as a director of the plaintiff with the Australian Securities & Investments Commission within 28 days of her ceasing to be a director in accordance with section 205B(5) of the Act; and (b) any contravention of section 188(1)(f) of the Act in respect of the Plaintiff’s failure referred to in subparagraph (a) above.
**********