Inside Asian Gaming

IAG JAN 2023年1月 亞博匯 86 COLUMNISTS Of the four criteria, the first two are essentially questions of fact, and therefore particular to the individual raising the defense. The third and fourth criteria are however clearly subjective, hence the terms “reasonably believe” and “rationally believe”. Taken together, judicial authority suggests the two criteria require any judgement complained of as constituting a breach of the statutory duty of care and diligence to be evaluated in the context of factors such as the importance of the decision (whether financial, reputational or otherwise), the information available to inform the decision, the time and expense involved in obtaining further information, and the skills and capabilities of the individual exercising the judgement. Without prognosticating as to the outcome of the business judgment defense in this case, a Federal Court decision in 2015 has aided an understanding of the likely judicial approach to deciding that issue. Mr Justice Beach remarked as follows in regard to criteria (iv) above: “…relevant to the question of breach of duty is the balance between, on the one hand, the foreseeable risk of harm to the company flowing from the contravention and, on the other The judgement must have been made in good faith and for a proper purpose i. The person making the judgement cannot have a material personal interest in the subject matter of the judgement ii. The director or officer must inform themselves about the subject matter of the judgement to the extent they reasonably believe to be appropriate iii. They must rationally believe that the judgement is in the best interests of the corporation in which they are (or were at the relevant time) directors or officers. iv. In order to successfully mount the business judgement defense, there are four criteria which must be satisfied, as follows: