Care and Diligence Corporations Act Assignment Sample

Subject Name : Law

Legal Regulation of Business Structures

Issue:

Whether Mr. Rex Raj is eligible to be appointed as Director of the Bellum Vino Pty Ltd (BV).
What was Rex Raja’s position within Bellum Vino Pty Ltd? Did he hold a position of director, such as to attract duties, obligations and liabilities under the Corporations Lawand associated fiduciary duties?
Whether the board will succeed to take action against Rex.

Rule:

Corporations Act 2001 – section 9
Section 201b who can be a director of corporations act 2001
Section 206b Automatic Disqualification — 206B(3) Bankruptcy or personal insolvency agreement
Section 201H of Corporations Act 2001
Care and diligence Section 180 of Corporations Act 2001
Good faith - Section 181 of Corporations Act 2001
Use of position - Section 182 of Corporations Act 2001
Use of information - Section 183 of Corporations Act 2001
Grimaldi v Chameleon Mining NL (No 2) (2012)
Mistmorn Pty Ltd v Yasseen (1996) 14 ACLC 1387
Fork serve Pty Ltd v Jack and Aussie Forklift Repairs(2001) 19 ACLC 299

Application:

The first and foremost important aspect to discuss the eligibility of Mr. Rex Raj to be appointed as director. As he was undischarged bankrupt due to this reason he formally resigned from the Vino Pty Ltd. He again rejoined the company in the month of May last years. However The appointment is not formally made and approved by the other directors as per required under - Section 201H[1] i.e. In proprietary companies, the appointment has to be confirmed by a resolution of the company within two months otherwise the appointment ceases at the end of this period. Later on Mr. Rex Raj started attending the board meetings, took an active part in discussions and voted on resolutions. He was also paid director fees. Rex was not an employee and held no other office within the company.

As per SECTION 206B (3) AUTOMATIC DISQUALIFICATION — an individual is disqualified from managing organizations if the individual is an undischarged bankrupt under the law of Australia, its outside domains, or another nation. In this case Mr. Rex was not legally eligible to be appointed as director of the Corporations. Further his workings and decision making powers are similar to the Non-executive director. He fits in the shoes of De facto Director because the De facto director is generally an individual who has not been officially or appropriately designated as a director however who acts as a director, for example, an individual may consider themselves an advisor, however, be completing errands related to being a director The term can also refer to a person formally appointed to the position of a director regardless of the position, title, or job description they use in practice. Where an individual isn't officially designated as a director, regardless of whether an individual is an accepted director relies upon the idea of the exercises or work they act with regards to the tasks and conditions of the corporation concerned. There is no broad test to decide if an individual has gone about as a director. Variables that are viewed as significant in this assurance incorporate the size of the organization; inward practices and structure of the organization, and the impression of untouchables. In Grimaldi v Chameleon Mining NL (No 2) (2012)[2], the Full Court of the Federal Court found that an advisor was a 'de facto' director.

An individual who acts in the situation of a Director and appears to one and all to be a Director might be a De facto Director. In Mistmorn Pty Ltd v Yasseen (1996) 14 ACLC 1387[3], procedures brought by the organization and its vendor, the respondent, even though not authoritatively designated to the situation of Director, was seen as a De facto Director and to have breached his fiduciary obligations, since it was obvious from his association in the family organization that he was the main thrust behind its professional interactions. De facto directors are not an exceptional case thus, they have the same duties and responsibilities as compare to the other directors as stated in the cases of Fork serve Pty Ltd v Jack and Aussie Forklift Repairs (2001) 19 ACLC 299[4].

The term fiduciary duties can be defined as the duties that Directors have which are owed to the corporation. This is a significant legitimate relationship, and is an obligation of trust and most extreme great confidence. In this specific circumstance, directors must put the interests of the corporation in front of their own.

There are a few sorts of directors in a company. An Executive director is generally a representative of the Corporation and is engaged with its everyday administration, though a non-chief director will frequently hold a level of freedom and become associated with the issues of the organization on a restricted premise, regularly simply joining in and getting ready for Board gatherings. Nonetheless, there is no differentiation on a fundamental level between the duties owed by a chief and non-leader directors. Generally, Executive and non-chief directors will have their subtleties enlisted with Companies House. Now and again, workers are given the title of director and held out by the Corporation as being such, even though they have not been legitimately elected.

A brief understanding of a quasi-director is an individual as per whose bearings or guidelines the Board is acquainted with the act. Regularly, this will be a greater part investor. This individual will be a "shadow director”. It isn't adequate for the shadow director just to give guidelines, the Board, or possibly most of the Board must be prone to adhere to those guidelines. A shadow director may likewise owe a scope of fiduciary duties however this will frequently be needy upon his position and functions.

A director owes his fiduciary duties to the Corporation and just the Corporation can uphold them. As a rule, the main manner by which an investor can authorize a fiduciary obligation against a director is through the Corporation itself, frequently by methods for a subsidiary activity for the Corporation's benefit.

Regularly, a director will just owe fiduciary duties to his Corporation for the term of his directorship and they will conclude his acquiescence or expulsion. In any case, a portion of the duties that emerge during the directorship has a proceeding with impact after the directorship has concluded, e.g. the obligation not to abuse classified data and developing business openings. In the given scenario Mr. Rex Raj deliberately misguided the board by reporting them not to invest in the deal offered by Doctor Cooper. On his advice Board unanimously opted not to invest in that proposal. Mr. Rex not only took the business opportunity for his profit-making motive but also fails to justify his role under Section 182 i.e. Use of position and Section 183 Use of Information. He breached his fiduciary duties i.e. of duty of trust towards the company. He put his personal profit-making motive first rather than Corporation’s Interest.

Director’s duties and responsibilities are governed under following laws:

(a) The common law;

(b) Statute law, under the Corporations Act 2001 (CT) Corporations Act; and

Directors have Fiduciary Duties under broad law in Australia. They are:

Duty to act in accordance with some basic honesty and not to act in opposition to the interest of the Corporation: A director needs to act consistently in compliance with common decency in what he considers to be the eventual benefit of his Corporation. This is an abstract test and given a director can show that he has practiced his forces determinedly and in compliance with common decency, a court won't meddle regardless of whether the court may have practiced these forces unexpectedly.

What is to the greatest advantage of the Corporation is typically surveyed by reference to the present moment and long haul interests of its current and future investors. Where there are various gatherings of investors with varying premiums, the directors need to act decently between the diverse groups .Be that as it may, where the interests of the organization and the investors are dissimilar, the premiums of the organization will prevail.

Duty not to utilize power for an ill-advised reason: A director must not make a corporation embrace exercises that fall outside of its notice and articles or to practice his forces for any inappropriate reason, regardless of whether he accepts that his lead might be to the greatest advantage of the company.
Duty to avoid conflicts of interest:

A director must abstain from putting himself in a position where there is a contention or even an expected clash between the duties he owes to the corporation and either his very own advantages or duties he owes to an outsider. This obligation stretches out to:-

Going into contracts with the corporation without the endorsement of the investors following total honesty (except if approved under the organization's articles)
The utilization of data or prospects
Contending with the corporation

The law managing the degree to which the fiduciary can profit by business openings that he gets mindful of during the cash of the fiduciary relationship is intricate and tangled. It is impacted both by the obligation to maintain a strategic distance from irreconcilable situations, the obligation not to make unapproved benefits (see underneath), and the legally binding obligation of constancy.

Duty to retain discretion:

As it were, a director needs to practice free judgment for the corporation's sake and can't concur with a third individual to cast a vote at any meeting of directors in a specific manner, except if allowed to do as such under the corporation's articles.

The Provisions, under the Corporations Act 2001 (CT);

The Corporations Act determines four principle general duties for directors:

Care and diligence Section 180: This is an obligation to practice your forces and duties with the consideration and tirelessness that a sensible persona would have, which incorporates finding a way to guarantee you are appropriately educated about the money related situation of the organization and guaranteeing the organization doesn't exchange on the off chance that it is bankrupt.
Good faith - Section 181: A director or other official must exercise their forces and duties under some basic honesty to the greatest advantage of the Corporation and for a legitimate reason.
Use of position - Section 182: A director, secretary, other official or worker must not inappropriately utilize their situation to increase a favorable position for themselves or another person or cause mischief to the Corporation.
Use of information - Section 183: This section likewise applies to directors, officials and workers; they can't inappropriately utilize data to increase a bit of leeway for themselves or another person or cause mischief to the Corporation.

Statutory Remedies:

A breach of Section 180-183 and 588G (or h) requires the court to give a presentation of repudiation under Section 1317E. The giving of a presentation is critical in light of the fact that it permits ASIC to apply for a monetary (money related, financial) punishment request and to apply to the court for a request that the director be precluded from overseeing partnerships under Section 206C
The court may likewise arrange that: the director pay damages to the corporation: Section 1317H An order be forced controlling the future breach of obligation: s 1324 o A recipient be designated over the property of the corporation: Section 1323 Civil punishment system
The common punishment system in Pt 9.4B speaks to an endeavor by the Parliament to give an adaptable approval system that isn't as extreme as forcing criminal law discipline on directors who neglect to satisfy network guidelines of lead.
Prior to the enlistment of this system, the legal criminal guideline of directors duties made it hard to arraign penetrates, given the broad insurances offered to denounced people under the criminal law (counting a higher weight of verification where the indictment needed to demonstrate its case past a sensible uncertainty)

Conclusion:

Mr. Rex Raj was an undischarged bankrupt which makes him legally ineligible to be appointed on any position on board as per section 201B of CORPORATIONS ACT 2001[5]. Further Mr. Rex Raj was informally appointed by the board and he continues to give his services as he was used to give before his resignation. In this case he stepped into the shoes of the De facto director as per definition of director given under section 9 of CORPORATIONS ACT 2001[6].as discussed above there are various judgments which supports the fact that there is no difference in the obligation to follow the common law and statutory duties. Fiduciary duties of directors don't simply end once they leave the office. In any case, the extent of the fiduciary commitments that quandary a director once they have left a Corporation and when they can start to appropriately contend with the Corporation will be an issue of reality and will rely upon the conditions and the lead of the individual director being referred to.

Rex Raj must act in what they sincerely accept to be the eventual benefits of the company, and he should utilize his capacity for their expected reason, not an insurance reason. This is an abstract trial of trustworthiness and great confidence. He breached the obligation where he fails subjectively to give legitimate thought to the Corporation's advantages. This happens when he expects the Corporation's advantages compare with his inclinations and doesn't consider the Corporation or its individuals' eventual benefits. This abstract test is qualified by a target standard that requires the appraisal of whether a shrewd and legitimate individual in the situation of a director of the company concerned could have sensibly accepted that the exchanges were to serve the members of the Corporation overall.

Directors are legally obliged not to wrongly exploit their position, or information acquired by the discretion of their situation, to increase a favorable position for themselves or other individuals, or to create disservice the corporation. Such lead is "ill-advised" if it breaches the guidelines of direct that would sensibly be normal of an individual in the director's position, whether or not the director thinks of it as ill-advised. The obligation not to abuse corporation data and make personal benefits out of it.

For this situation, the extent of the fiduciary obligation of the director and restriction upon him contending with his previous Corporation was seen as generally constrained because of the conditions wherein he left the Corporation and the idea of his lead paving the way to his acquiescence. Therefore, the Court may found the extent of his obligation kept him from utilizing data acquired from the Corporation to go after plainly settled new business avenues of the Corporation that were going to be made sure about by the Corporation.

References for Care and Diligence Corporations Act

Corporations act 2001 – section 9
Section 201b who can be a director of corporations act 2001
Section 206b automatic disqualification — 206B(3) Bankruptcy or personal insolvency agreement
Section 201H of Corporations Act 2001
Care and diligence Section 180 of Corporations Act 2001
Good faith - Section 181 of Corporations Act 2001
Use of position - Section 182 of Corporations Act 2001
Use of information - Section 183 of Corporations Act 2001
Grimaldi v Chameleon Mining NL (No 2) (2012)
Mistmorn Pty Ltd v Yasseen (1996) 14 ACLC 1387
Forkserve Pty Ltd v Jack and Aussie Forklift Repairs(2001) 19 ACLC 299

[1] CORPORATIONS ACT 2001 - Section 201H

[2] Grimaldi v Chameleon Mining NL (No 2) (2012)

[3] Mistmorn Pty Ltd v Yasseen (1996) 14 ACLC 1387

[4] Forkserve Pty Ltd v Jack and Aussie Forklift Repairs (2001) 19 ACLC 299

[5] section 201B of CORPORATIONS ACT 2001-Who can be a director

[6] section 9 of CORPORATIONS ACT 2001- "director" of a company or other body means:

(a) a person who: (i) is appointed to the position of a director; or

(ii) is appointed to the position of an alternate director and is acting in that capacity; regardless of the name that is given to their position; and

(b) unless the contrary intention appears, a person who is not validly appointed as a director if:

(i) they act in the position of a director; or

(ii) The directors of the company or body are accustomed to act in accordance with the person's instructions or wishes.

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