Simon Lowes was awarded more than $2 million after a West Australian court ruled in his favor against James Hardie. Lowes has cancer resulting from exposure to asbestos.

The controversy over Hardie's ambiguous statements about asbestos compensation has led to the discovery of skeletons in their closet.

James Hardie counsel alleges that it would have been straightforward for the Australian Securities and Investments Commission (ASIC) make a case saying that the directors approved, in principle the key message of certainty of sufficient funds. However, they chose to allege that at a board meeting held in February 2001the board gave the go ahead for a new compensation trust that would be completely funded and offered certainty for asbestos disease claimants to the Australian Stock Exchange (ASX). Three years later it was found that the trust was short of close to $ 1.5 billion.

The directors say that the minutes of the meeting of that particular board meeting were incorrectly recorded and the New South Wales Court of Appeal said last years that the ASIC had not been able to establish their approach to the case.

Peter Shafron, James Hardie's former general counsel is challenging the finding that he failed to do his duty and advise the directors of the inadequacy in the estimates of asbestos liabilities.

The debate over the exactness of the minutes of the meeting at the first trial did not let the ASIC use a wider base of evidence to fight the claim. It was too late in the case to make any changes like allowing a finding against the directors of they actually had voted to make than announcement to the ASX.

The justice faulted the ASIC for violating a regulator's obligation of fairness by not calling a central witness.