Friday, 5 March 2021

Australia: board meetings and differences in recollection

A recent decision of the New South Wales Court of Appeal - International Holdings Ltd v Cheung [2021] NSWCA 24 - is worth noting because of the discussion it contains, albeit brief, regarding differences of recollection in respect of board meetings. To quote Bell P (with whom Bathurst CJ and Leeming JA agreed) (at para. [197]):
It is not unknown, still less uncommon, for disputes to arise as to what may have been said at meetings of boards of companies ... Sometimes, the differences may be substantial; sometimes, they may go to matters of emphasis or the extent of detail recorded about particular issues discussed. The mere fact that there may be competing versions of minutes does not mean, moreover, that one of the different versions is necessarily false: recollections of events may differ. Obviously it is desirable that directors reach accord as to the accuracy of minutes but that may not always be possible."

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