Corporate and directors’ duties
David Friar is an Auckland barrister specialising in directors’ duties, shareholder and company disputes, and governance issues for boards.
Expertise
David has significant expertise in relation to directors’ duties and corporate governance, including:
- Acting for and against directors in proceedings alleging breach of duty
- Bringing derivative claims against directors
- Advising boards of directors on governance and directors’ duties issues
- Claims by receivers and liquidators against directors
- Advising directors, boards and insurers on D&O policies and deeds of indemnity
David is also experienced in shareholder and company disputes, including:
- Disputes concerning shareholder agreements
- Warranty claims arising from sale of business
- Securities claims for breach of disclosure obligations
- Continuous disclosure obligations under the NZX Listing Rules
- Disputes concerning incorporated societies and other corporate entities
What clients say
David is “lauded by clients for his ‘depth of enquiry and understanding’ and strong courtroom advocacy”
David “focuses on complex commercial disputes … and corporate and insolvency disputes”
David “provides excellent advice regarding merits of disputes and strong tactical advice how to navigate disputes”
David is “commercial, practical and has a strong understanding of our business that he is able to apply to engagements”
Examples of directors’ duties cases
Fruit Shippers v Petrie
Senior counsel in proceedings alleging breach of directors’ duties and trust by a director. The High Court allowed a “double derivative” claim to be brought for the first time in New Zealand
High Court Auckland · [2020] NZHC 749 · [2019] NZAR 1832
Fullarton v Arowana International
Senior counsel for the promoter and one of its directors defending a multi-million dollar High Court securities class action concerning the public listing of Intueri
High Court Auckland · [2021] NZHC 931 · [2021] NZCCLR 28
Bridgecorp v Davidson
Junior counsel for the receivers in High Court proceedings against three former Bridgecorp directors for breach of their duties as directors
High Court Auckland ·
Advice to directors and boards
Advice on directors’ duties and corporate governance, including disclosure, decisions on whether to continue to trade, solvency, conflicts and related issues
Examples of shareholder and corporate disputes
Amphenol Phitek Ltd v Moody
Senior counsel for the vendor shareholders of Phitek Systems defending a High Court claim for breach of warranty, misrepresentation and misleading conduct in respect of the due diligence material
High Court Auckland ·
Donnelly v RACP
Senior counsel for RACP defending a review of the board’s decision not to call an extraordinary meeting of members under the constitution, including the scope of the board’s powers
High Court Wellington · [2020] NZHC 242
Examples of D&O insurance cases
BFSL 2007 v Steigrad
Junior counsel for the Bridgecorp receivers on whether a statutory charge under section 9 of the Law Reform Act 1936 gives third-party claimants priority over directors’ defence costs under a D&O policy
Supreme Court · [2013] NZSC 156 · [2014] 1 NZLR 204
Directors
Advised a number of boards and individual directors on their D&O policies and deeds of indemnities, including the scope of cover, disclosure obligations, runoff cover, claims under the policy and related issues
Examples of regulatory work for companies and directors
FMA v Jackson
Acted for the voluntary administrators of CBL Corporation opposing orders sought by the FMA on whether administrators of a listed company must comply with the continuous disclosure obligations in the NZX Listing Rules
High Court Auckland · [2018] NZHC 2052
Major New Zealand bank
Advised on the joint FMA and Reserve Bank review into the conduct and culture of New Zealand banks in , following the Hayne Royal Commission in Australia
Publications
- High Court limits the corporate opportunity doctrine to a director who profits () Legal update
- UK Supreme Court rules a director cannot go it alone () Legal update
- “Liability Trends for Directors and Officers”, opening presentation and panel member at the ANZIIF Annual Liability Conference ()
- High Court widens what counts as a corporate opportunity () Legal update
- Privy Council abolishes a shareholder’s right to see a company’s legal advice () Legal update
- BusinessDesk, “Battle over Du Val begins, with other secured lenders likely to act”, on the FMA’s appointment of receivers ()
- Law Commission announces review of directors’ duties () Legal update
- “The Mainzeal Decision: What Does It Mean For Directors?”, Chartered Accountants Australia & New Zealand seminar ()
- “Directors’ Duties Following the UK Supreme Court’s Decision in Sequana”, RITANZ seminar ()
- Newsroom, “Personal millions at stake as Mainzeal directors win and lose”, with Fitzgerald ()
- “Supreme Court finds director personally liable for company debts”, on Debut Homes, with Leslie, Newsroom ()
- “Advising Company Directors: The Implications of the Supreme Court’s Decision in Debut Homes”, with Fitzgerald, ADLS CLE seminar ()
- Newsroom, “Mainzeal judgment brings lessons in corporate governance” ()
- “Directors’ Duties” chapter, Morison’s Company Law ( to ). Cited by the Supreme Court in Madsen-Ries v Cooper (Debut Homes) [2020] NZSC 100
- “Directors’ Duties in Light of the Failed Finance Companies”, Annual Corporate Insolvency Conference ()
- “The Lombard Finance decision: more important lessons for directors”, New Zealand Lawyer ()