The case brought by the liquidators on behalf of unsecured creditors sought contributions of between $32.8m and $75.3m from the four former directors. The Court awarded a total of $36m. Three of the directors were found liable for $6m each with a fourth liable for the total of $36m.
The Court took a novel approach to assessing damages. It used the estimated loss to creditors, $110m, then applied discounts for other factors which contributed to the loss. The final $36m also reflected the sum which had been extracted from the company in favour of a group of substantial shareholders.
Of particular interest to insurers is, that in settling on the amount of damages the Court considered the insurance cover held by the directors. Whilst in the outcome, the court found that the existence of liability insurance had no bearing on liability it may have been relevant to the amount of damages awarded. But it ruled that there was no need to change its award on the basis of the insurance cover. Of interest, it appears that there was underinsurance.