› Reasonable grounds to believe competent and reliable person providing information
Quick Take
1A former de jure director who continues to perform functions characteristic of a director — including negotiating business acquisitions, providing personal guarantees, instructing solicitors, negotiating with creditors, executing employment contracts under the title 'director', and being the primary point of contact for the company — is a de facto director under s 9AC(1)(b)(i) notwithstanding formal resignation, particularly where no evidence is led to offer an alternative explanation for that conduct.
2A company's general ledger recording a running balance of advances to a director or related entity is admissible under s 1305 of the Corporations Act as prima facie evidence of a loan debt, and where the counterparty leads no evidence to displace that presumption or cross-examine the liquidator, the court may infer the advances were loans giving rise to a presently due and payable debt.
3Statutory defences under ss 588H(2) and 588H(3) cannot succeed where the director bears the onus of proof but elects not to give evidence, calls no witnesses, and files no documentary evidence supporting an expectation of solvency or reliance on a competent and reliable person.
