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mitigating factors considered by the court in Australia would be relevant in the
application for leave of the court
11.4.2.3 Consequences of Disqualification
The laws in all four jurisdictions are the same in terms of effects, the right to apply to
court for leave and also the penalty imposed for acting without leave while
disqualified. As a consequence of disqualification, a person could not become a
director, or be a liquidator or an administrator or be a receiver or take part in any
way with the promotion, formation or management of the company. 332 A director
who has been subjected to a disqualification order has the right to apply for leave of
the court under section 17 of the CDDA 1986. 333 The court can take into account
332 See section 1 of the UK Company Directors Disqualification Act 1986 ―In the circumstances
specified below in this Act a court may, and under section 6 shall, make against a person a
disqualification order, that is to say an order that he shall not, without leave of the court—
(a) be a director of a company, or
(b) be a liquidator or administrator of a company, or
(c) be a receiver or manager of a company's property, or
(d) in any way, whether directly or indirectly, be concerned or take part in the promotion, formation
or management of a company,
for a specified period beginning with the date of the order.‖
See section 206A(1) of the Australian Corporations Act 2001- ―A person who is disqualified from
managing corporations under this Part commits an offence if:
(a) they make, or participate in making, decisions that affect the whole, or a substantial part, of the
business of the corporation; or
(b) they exercise the capacity to affect significantly the corporation‘s financial standing; or
(c) they communicate instructions or wishes (other than advice given by the person in the proper
performance of functions attaching to the person‘s professional capacity or their business
relationship with the directors or the corporation) to the directors of the corporation:
(i) knowing that the directors are accustomed to act in accordance with the person‘s instructions or
wishes; or
(ii) intending that the directors will act in accordance with those instructions or wishes.‖
See section 385(6) of the New Zealand Corporations Act 1993: ― No person to whom a notice under
subsection (3) applies shall be a director or promoter of a company, or be concerned or shall take part
(whether directly or indirectly) in the management of a company.‖
See section 130A of the Malaysian Companies Act 1965: ―…the Court may make order that that
person shall not, without leave of the Court, be a director of or in any way, whether directly or
indirectly, be concerned or take part in the management of the company….‖
333 Section 17(1)- ―As regards the court to which application must be made for leave under a
disqualification order, the following applies:
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