While observing the judge’s legal reasoning in this particular case, I could say that ”Ratio decidendi” depends on the current facts emphasized in the case and that “Obiter dicta’s” concept presents conclusions based on hypothetical situations.
- The major legal issues
The legal issues in this particular case are relied on the ASIC Act where a person becomes automatically disqualified from managing a corporation if the person is convicted of an offence that “involves dishonesty”. Accordingly, Mr. Schwartz has committed an offence by making (participating) decisions on behalf of the business. Moreover, he has communicated instructions to the director of the company Mr. Goodman, who was accustomed to act in accordance with Mr. Schwartz’s instructions. If we rely on the “Ratification” concept Mr. Goodman should have ratified that Mr. Schwartz is authorized by him to manage the business by written contract. Even though Mr. Schwartz pleaded guilty for a charge that he made almost 10 years ago, I believe that this evidence would have been more reasonable and acceptable for the judge. What’s more, if Mr. Schwartz was thinking about to sought leave under s 206G of the Corporations Act 2001 before transferring the business office to his own address and before starting to act as a manager, the judge might have considered the fact that the dishonesty obtained by Mr. Schwartz was related to an earlier period in his life.
Furthermore, according to Act’s 206G (1) section, a person can apply for leave to manage a particular corporation if the person was not disqualified by the ASIC. Therefore, because Mr. Schwartz was disqualified by ASIC, the court has dismissed his application.
- The relevant law relied on by the judge in making the decision
The court stated that the evidence provided by Mr. Goodman is unsatisfactory in a number of reasons. The indications stated by Mr. Goodman are just empty and non promising words. There is... [continues]
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