澳大利亚公司法：董事义务和派生诉讼

本文论述了澳大利亚公司法相关问题。

1、董事义务

2、公司和外部的关系。

Word count: 998

Answer to Question A

The legal issues

The legal issues are mainly as follows: (1) whether Alice breached her duties as a director of All Fired Up Pty Ltd; (2) the relationships between All Fired Up Pty Ltd and its outsider, Pots N Plates Pty Ltd.

Relevant law

To judge whether Alice breached her duties as a director, Sections 180 to 184 of the Corporations Act must be referred, which has provided “care and diligence”, “good faith”, use of position and information properly as civil obligations as well as under some certain circumstances breach the obligations of “good faith”, using position and information improperly may constitute criminal offences1.

To decide what actions Pots N Plates Pty Ltd may take, section 237 and other relevant sections of the Corporations Act should be referred2.

Main legal principles

(1)A person as a director of a company owes a duty of fiduciary to the company3; he

also should use every effort to avoid conflict of interests; a director should disclose personal advantages (if any) in any transaction4.

(2)A person who is entitled to be registered as a shareholder of the company may

initiate a derivative action against an infringer for the benefits of the company. Legal facts summary

(1)Alice was the dominant shareholder of All Fired Up Pty Ltd;

(2)As a director, she arranged to lease surplus space in the Firefly Gallery to her

boyfriend Zack at a improperly low rent;

(3)Zack badly damaged the leased space of the Gallery but Alice exempted his

liability of compensation by persuading Chris;

(4)Pots N Plates Pty Ltd prepared to purchase shares of All Fired Up Pty Ltd, but

before the purchase Pots N Plates Pty Ltd found out the fact of losses they wanted Alice removed and action taken against Alice, Zack and Chris.

Application

As a director, Alice owed duties of fiduciary and avoiding conflict of interests and for the best benefits of the company5, Since the relationship (Zack is the boyfriend of Alice) between them Alice should avoid any transaction with him due to that such transaction may lead to potential harm to the company, but she released the property of the company to her boyfriend, which had breached her duties. Meanwhile Alice 1Sections 180 to 184, the Corporations Act 2001.

2Sections 237 and 238, the Corporations Act 2001.

3Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134

4Industrial Development Consultants Ltd v Cooley [1972] 1 WLR 443

5 Fur v Tomkies (1935) 54CLR 583