QUESTION 1 Wealth Ltd (Wealth) is an asset management and consulting company which listed on the ASX (Australian Stock Exchange) five years ago. It has eight directors. Alan, Ben, Chris, David and Elias are non-executive directors, with Alan, David and Elias making up the audit committee. Fred, Gerald and Hal are executive directors, being the chief executive officer, chief financial officer and chief operating officer respectively. The company has around 20,000 shareholders although the precise number changes on a daily basis. Fifteen years ago, Gerald was disqualified from managing companies for eight years for failing to keep adequate accounting records and causing significant losses to the company he directed. Two years ago, Fred, Gerald and Hal set up another company, Boss Enterprises Pty Ltd (Boss), of which they own all the shares and are the only directors. They then caused Wealth to enter into a number of contracts for the supply of services with Boss on terms which are unfavourable to Wealth. They have also been diverting a substantial amount of business from Wealth to Boss. For a while they managed to conceal the losses these actions were causing to Wealth by producing fake accounting figures. While the figures were very obviously fake, the fraud was not discovered by the company’s auditors or the audit committee for a couple of years, but with the appointment of new auditors, the true position has been uncovered. As a result of this, Wealth’s turnover and profits are down, and its share price has fallen considerably. A number of shareholders have complained to ASIC, which has launched an investigation. Focusing on duties and remedies found in the Corporations Act 2001 (Cth) and related case law, advise Alan, Ben and Fred as to whether they are at risk of liability or other sanctions.
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