A director who participates in misrepresenting a company's capital position to a third party to obtain a lease, allots shares without receiving subscription monies, and fails to convene a winding-up meeting when the capital condition cannot be met without misrepresentation, breaches the duty of care and diligence under s 232(4) of the Corporations Law and is not entitled to relief under s 1318(1). Fresh evidence on appeal relating only to alleged dishonesty will not be received where the trial judge's decision rested on negligence rather than dishonesty.
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