澳大利亚公司法：董事义务、关联交易和股东的救济

Directors’ duties

1.Two sources of rules: a. General law

b.Statutory provisions (e.g. ss180 – 183; 191, 195,588G)

2.Generally speaking, directors’ fiduciary duties are owed to the company rather than

individual shareholders: Percival v Wright [1902] 2 Ch 421.

3.However, A director may be treated as a “fact-based” fiduciary of an individual shareholder

if the facts of the case warrants this conclusion: Brunninghausen v Glavanics (1999) 46

NSWLR 536.

4.The best interest of the company when the company is insolvent: the interests of the

creditors. Kinsela v Russell Kinsela (1986) 4 NSWLR 722:

5.Care & diligence: s180

Duty of care, skill, and diligence: s180(1)

-Obligagee: directors and other officers

-Standard of care

Fluid but objective: 1. Reasonable person in the def endant’s position

2. responsibility within the company, etc

In determining the standard of care and diligence, Tort principles applied, how careful a

director should be in making decisions: ASIC v Vine

The standard of care is determined by:

-The magnitude of the risk of harm and the probability of it occurring

-The seriousness of the loss that would result if the harm occurs;

-And the expense, difficulty and inconvenience of taking alleviating action

Causation

-Where a compensation order under s131H is sought, as was in Gold Ribbon, there is a need for the plaintiff to prove that loss or damage has been caused by the defendant through her breach of a civil penalty provision (s180 is a civil penalty provision)

-Whether the plaintiff will suffer the losses because of the defendant breached the duty of care?

-

‘Business judgment rule’ defence: see s180(2)

-Cases: Gold Ribbon (accountants) Pty Led v Sheers

6.Good faith and proper purpose: s181

Share issuance: Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821. Permanent Power to enter into transactions on behalf of the company: Building Society (in liq) v

Wheeler(1994) 12 ACLC 674

The power to register share transfer: Re Smith & Fawcett Ltd [1942] Ch 302

Other cases: PBS V WHEELER; ASIC ADLER

7.Improperly using of position: s182

Improperly: R v Byrnes: TB[13.3.130]

Gaining advantage for self or others OR causing damage to the company

Case: ASIC v soust; Adler, etc.

Conflict of interests: Sections 182, 191, 194, 195

➢Recall the Gildford Motor case;

➢Transvaal Lands Co v New Belgium (Transvaal) Land and Development Co [1914] 2 Ch 488 Constitution: art 98:

Directors or the firm where a director is a partner (“member”) can contract with the company, provided proper disclosure is made.

Profits from office: Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134

8.Improperly using of information: s183

ASIC V Vizard

R v Byrnes

Chew v R

9.Insolvent trading: s588G

-Obligagee: Directors: s588G(1)(a)

-Circumstances where this head of duty may become an issue (the company’s state of solvency and reasonable grounds for suspecting, etc.: s588G(1)(e)

-The circumstances in which the company is not permitted to incur a debt

a.The co is insolvent or becomes insolvent by incurring a debt s 588(1)(b), and

b.There a reasonable ground for suspecting that the company is insolvent or would so

become insolvent. S588G(1)(c)

-The director will be personally liable for the company’s debts if he/she has breached the duty to prevent the company from trading when it is insolvent

-Cases: Metropolitan Fire System Pty Ltd v Miller

-Insolvency

a.Cash flow test: s95A : a person is solvent if, and only if, the person is able to pay all the

person’s debts, as and when they become due and payable: s95A(1). A person who i s

not solvent is insolvent: s95A(2)

b.Presumption of insolvency: s588E

Continuance of proved insolvency: s588E(3): when the company is being wound up and it has been proven that the company was insolvent at a point of time during the 12

months ending on the filing of the winding up application – the company is presumed to be insolvent through that period.

c.ASIC v Plymin (factors indicating the company’s state of solvency)

-The ‘physical element (failure to prevent, etc)’: s588G(2)

a.The contravening act. Failure to prevent the company from incurring a debt while the

company is insolvent or to cause the insolvency.

b.Example:

•where a director acquiesced in the company continuing trading while

insolvent(Lipton et al, 13.5.165)