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Most jurisdictions in Australia have enacted statutes which abolished the criminal and
tortious consequences of the doctrine of maintenance and champerty- See s 221 of the
Civil Law (Wrongs) Act 2002 (ACT); sections 3, 4, 6 of the Maintenance, Champerty and
Barratry Abolition Act 1993 (NSW); Sch 11 section 1(3) and section 3 of the Criminal
Law Consolidation Act 1935 (SA); section 32 of the Wrongs Act 1958 (Vic) and section
322A of the Crimes Act 1958 (Vic.
The amendment in 2006 to the New Zealand Companies Act 1993 says that a new section
260A is to be inserted. The section allows the liquidator to assign the right under the Act
to sue 4 and the application must be made to the court either by the liquidator or the
person to whom the right is to be assigned. 5
Remedies referred to in thesis chapter 11 at page 345
Breach of sections 135 and 136 give claims under section 301 of the Companies Act
1993.
Lewis v Mason (2009) 10 NZCLC 264,545- the case referred back to the High Court
following the successful claim by the liquidator against the Lewis‟s in the Court of
Appeal. The High Court then made orders under sections 300 and 301 of Companies Act
under which Mr Lewis was ordered to pay $1,261,330 and Mrs Lewis paid $983,100 as a
contribution to the debt of the company (Global) under section 300(1). In addition, Mr
Lewis was made to pay $ 1,168,330 and Mrs Lewis $890,100 by way of compensation to
Global.
In its decision, the Court of Appeal held that the section 301(1) order ought to have
required contribution to the assets of the company itself to reflect the fact that both
directors have breached their duties owed to the company and not to its creditors. 6 As
such the court held that it was untenable for the Lewises to argue that they could have
done nothing in this case for they could have in the circumstances “obtain advice on how
4 See section 260A(1)of the New Zealand Companies Act 1993.
5 See section 260A((2) (a)of the New Zealand Companies Act 1993.
6 Lewis v Mason (2009) 10 NZCLC 264,545 at [117]
446