View/Open - Research Commons - The University of Waikato

More documents

Recommendations

Info

In New Zealand, section 301 allows a liquidator, creditor or shareholder to bring an action, although in most cases sections 135 and 136 are invoked at times when the company is already wound up. The requirement that the company has to be in liquidation before the sections can be invoked may result in creditors whose companies are not wound up being left without compensation. Apart from taking action under section 301, shareholders have the right to bring a derivative action under section 165 in respect of a breach of sections 135 and 136. It is argued that if the action against directors is brought under section 165, their liability will be higher than if it is brought under section 301 because the courts do not have discretion to reduce the amount, unlike section 301. 250 Due to the discrepancy in the sums awarded, depending on which statutory provision is invoked, it has been suggested that the relevant factors for the court to consider should be the knowledge and conduct of creditors. 251 Creditors are reluctant to take proceedings because they would have to pay into the company for distribution according to the insolvency rules. Hence, in most cases it is the issue of costs exceeding benefits obtained. In addition, a company may also bring an action for breach of section 135 against the director on the basis that he or she has breached a duty owed to the company. In Malaysia, an individual creditor has a cause of action under section 304(1) which means that in order for all creditors to be compensated, multiple proceedings are unavoidable. This also indicates that only creditors with adequate means will be able to recover losses from directors since court proceedings are costly. In this situation, it can be argued that the objective to protect unsecured creditors is not met and some creditors may be precluded from receiving any compensation. In this regard, the Australian provision which requires a creditor to obtain a written consent from the liquidator before commencing a proceeding is preferable to prevent multiple actions. 250 Noonan and Watson above n117 at 42. 251 Ibid. 368
In relation to an action against a holding company for the insolvency of its subsidiary, in Australia the right is vested solely in the liquidator. In New Zealand, the right to apply for a pooling order lies with the liquidator, creditors or shareholders. 252 When compared to the UK and Malaysia, creditors in Australia and New Zealand are in a better position because there are specific provisions in the statute, which requires in certain circumstances, that the holding company be liable for the debts of its subsidiary. Creditors in the UK and Malaysia, on the other hand, have to rely on the common law principle of lifting the corporate veil. Cases have shown that courts are reluctant to depart from the principle of separate legal entity except in cases where fraud exists. 253 The requirement of liquidation before wrongful trading can be invoked, as in the UK, may prevent some creditors from getting compensation. This is because not all companies will end up in liquidation despite being hopelessly insolvent. In Australia, the company does not have to be in liquidation in order for section 588G to be used, but in calculating the amount of the award to be granted, courts have insisted on the link between recovery and liquidation. 254 The condition which attaches to liquidation as a pre requisite to recover for compensation could prejudice the rights of creditors. This is because although in the majority of cases insolvency is followed by liquidation of the company, there are circumstances where the company may opt for other insolvency regimes such as administration or receivership. In this circumstance, directors could not be held personally liable under the Act and the protection it confers on creditors would not be available. Another aspect of this stipulation which may cause injustice is when liquidation intrudes; the company normally does not have enough assets to pay creditors in full. Hence it would grant more protection to creditors if the rights are 252 See section 271 of the New Zealand Companies Act 1993. 253 See discussions in Chapter 5 of the thesis. 254 Justin Dabner ―Trading Whilst Insolvent- A Case for Individual Creditor Rights Against Directors‖ (1994) 17 UNSWLJ 546 at 568. 369
Page 1 and 2:
http://researchcommons.waikato.ac.n
Page 3 and 4:
ABSTRACT This study examines the le
Page 5 and 6:
TABLE OF CONTENTS ABSTRACT i ACNOWL
Page 7 and 8:
CHAPTER 5 THEORY OF THE CORPORATION
Page 9 and 10:
7.3.3.3 Distribute its Capital to M
Page 11 and 12:
10.2.5.1 Meaning of Insolvency 10.2
Page 13 and 14:
10.6.2.2 Carrying on of any Busines
Page 15 and 16:
CHAPTER 12 CONCLUSION AND RECOMMEND
Page 17 and 18:
CLC Australian Company Law Cases CL
Page 19 and 20:
Stanford LR Stanford Law Review Ste
Page 21 and 22:
Facia Footwear Ltd (in administrati
Page 23 and 24:
Re Avon Chambers Ltd [1978] 2 NZLR
Page 25 and 26:
Re Produce Marketing Consortium Ltd
Page 27 and 28:
Ultraframe (UK) v Fielding & Ors [2
Page 29 and 30:
Mountford v Tasman Pacific Airlines
Page 31 and 32:
Australia 3M Australia Pty Ltd v Ke
Page 33 and 34:
Linton v Telnet Pty Ltd (1999) 30 A
Page 35 and 36:
Malaysia Abdul Aziz bin Atan v Lada
Page 37 and 38:
Perman Sdn Bhd & Ors v European Com
Page 39 and 40:
Other Jurisdictions Singapore Rahj
Page 41 and 42:
Companies Act 2006 Section 60(3)(c)
Page 43 and 44:
Section 993 Section 993(2) Section
Page 45 and 46:
Insolvency Act 1985 37, 70 Insolven
Page 47 and 48:
Section 251 255 Part II Schedule 6
Page 49 and 50:
Section 52(1) Section 52(2) Section
Page 51 and 52:
Section 272(2) Section 272(2)(a) Se
Page 53 and 54:
Section 385(4)(b) Section 385(4)(b)
Page 55 and 56:
AUSTRALIA Absent Debtors Act (NSW)
Page 57 and 58:
Section 206D(1)(b)(b)(ii) 374 secti
Page 59 and 60:
Section 588FE(2)(a) Section 588FE(2
Page 61 and 62:
section 588H (5) 241 Section 588H(6
Page 63 and 64:
Section 598(3)(b) Section 598(3)(c)
Page 65 and 66:
Bankruptcy Act 1967 MALAYSIA Sectio
Page 67 and 68:
Section 130A(6) 391 Section 131 221
Page 69 and 70:
Companies Regulation 1966 Regulatio
Page 71 and 72:
CHAPTER 1 THE STRUCTURE OF THE THES
Page 73 and 74:
A discussion of directors’ duties
Page 75 and 76:
The far-reaching implication of cor
Page 77 and 78:
2.2.1 The United Kingdom The common
Page 79 and 80:
2.2.3 Australia Australia has been
Page 81 and 82:
CHAPTER 3 LITERATURE SURVEY - AN OV
Page 83 and 84:
shareholders, had failed to mitigat
Page 85 and 86:
was mainly responsible for the chal
Page 87 and 88:
3.3 Interests in the Company-Shareh
Page 89 and 90:
contributed by the shareholders and
Page 91 and 92:
Statutes have attempted to address
Page 93 and 94:
how the matter should be dealt with
Page 95 and 96:
4.2 Development of Corporate and In
Page 97 and 98:
colonies. 14 The emergence of compa
Page 99 and 100:
originally incorporated in order to
Page 101 and 102:
usiness fraud. 42 In 1825, the Bubb
Page 103 and 104:
Companies Act also reveals providin
Page 105 and 106:
Companies Ordinance 1953 of Sabah a
Page 107 and 108:
In 1977, the Cork Committee was app
Page 109 and 110:
the Committee foresaw difficulty du
Page 111 and 112:
operation and termination of a comp
Page 113 and 114:
enforceability of security interest
Page 115 and 116:
procedure, and dispensed with the o
Page 117 and 118:
The creditors‟ protection princip
Page 119 and 120:
shareholders and on personal bankru
Page 121 and 122:
directors as trustees. 162 Members
Page 123 and 124:
4.3.3 Development of Insolvency Leg
Page 125 and 126:
In Australia, the government respon
Page 127 and 128:
appointment of an administrative re
Page 129 and 130:
the current statutes were not effic
Page 131 and 132:
insist on protection to directors i
Page 133 and 134:
and judgment to run the company. 21
Page 135 and 136:
due to the difficulty in obtaining
Page 137 and 138:
The Australian Law Commission in 19
Page 139 and 140:
instead, enacted section 135 253 in
Page 141 and 142:
4.5 Conclusion Malaysia, New Zealan
Page 143 and 144:
CHAPTER 5: THE THEORY OF THE CORPOR
Page 145 and 146:
needs someone to run it on its beha
Page 147 and 148:
The implication of the decision is
Page 149 and 150:
English decisions as guidance and t
Page 151 and 152:
Shareholders who have to incur high
Page 153 and 154:
interests of shareholders by maximi
Page 155 and 156:
situation, directors have a duty to
Page 157 and 158:
concluded purchasing goods from thi
Page 159 and 160:
stipulates directors “may conside
Page 161 and 162:
subsidiary and may continue to pros
Page 163 and 164:
A holding company may use a subsidi
Page 165 and 166:
section 187 of the Australian Corpo
Page 167 and 168:
its holding company), act in a mann
Page 169 and 170:
is just and equitable, to make an o
Page 171 and 172:
Syndicates (NZ) Limited (in liq) 13
Page 173 and 174:
a) Extent to which the Related Comp
Page 175 and 176:
That the management did not differe
Page 177 and 178:
equirement of insolvency and it doe
Page 179 and 180:
The House of Lords in Woolfson v St
Page 181 and 182:
subsidiary. Abdul Malik J held that
Page 183 and 184:
defendant company. During a meeting
Page 185 and 186:
Uniphoenix Corporation Bhd v Raymon
Page 187 and 188:
justice alone is not sufficient; th
Page 189 and 190:
lenders, employees, suppliers and c
Page 191 and 192:
company and as the residual claiman
Page 193 and 194:
The claim that shareholders‟ righ
Page 195 and 196:
particularly lack of effective mana
Page 197 and 198:
management of the companies. Credit
Page 199 and 200:
players‟ interests intertwine wit
Page 201 and 202:
important for directors to build lo
Page 203 and 204:
Despite having included favourable
Page 205 and 206:
at the intersection of a number of
Page 207 and 208:
Directors must weigh any particular
Page 209 and 210:
Directors will also enlist the serv
Page 211 and 212:
Contractarians regard employees in
Page 213 and 214:
terms to their liking, they either
Page 215 and 216:
to boycott the company. 134 The com
Page 217 and 218:
On the other hand, the duty owed to
Page 219 and 220:
and experiences in order to dischar
Page 221 and 222:
CHAPTER 7: A CONCEPTUAL ANALYSIS OF
Page 223 and 224:
Economists divided real capital whi
Page 225 and 226:
the transformation of shares as rea
Page 227 and 228:
the company‟s ability to pay its
Page 229 and 230:
purchase or will not become insolve
Page 231 and 232:
available where special resolution
Page 233 and 234:
The idea that maintaining share cap
Page 235 and 236:
must be satisfied by the company in
Page 237 and 238:
7.4 Conclusion The doctrine of capi
Page 239 and 240:
and once a resolution is passed, to
Page 241 and 242:
The term 'insolvency' has also long
Page 243 and 244:
equivalent to medical negligence ca
Page 245 and 246:
meaning of inability to pay debts.
Page 247 and 248:
It is important to distinguish as t
Page 249 and 250:
long as the accounts give true and
Page 251 and 252:
current assets must be taken stock
Page 253 and 254:
cases the presumption of insolvency
Page 255 and 256:
It is interesting to note in reachi
Page 257 and 258:
CHAPTER 9 THE COMMON LAW DUTIES OF
Page 259 and 260:
Voluntary creditors can be divided
Page 261 and 262:
are not personally liable for any l
Page 263 and 264:
confidence, a trustee who has been
Page 265 and 266:
interests of various parties in the
Page 267 and 268:
overriding duty is to the sharehold
Page 269 and 270:
to look at the directors‟ purpose
Page 271 and 272:
9.3.3 Duty not to Fetter Discretion
Page 273 and 274:
The decisions of the Federal Court
Page 275 and 276:
case, directors should disclose the
Page 277 and 278:
misconception that the case law and
Page 279 and 280:
other reference as to the developme
Page 281 and 282:
Australia and Malaysia have express
Page 283 and 284:
out “ ...the judgment is in the b
Page 285 and 286:
the prospect of success as well as
Page 287 and 288:
judge adopted the principle of iden
Page 289 and 290:
individual trading through a compan
Page 291 and 292:
liability can be imposed on them wh
Page 293 and 294:
liquidators when it is insolvent. C
Page 295 and 296:
CHAPTER 10 DIRECTORS’ DUTY TO PRE
Page 297 and 298:
Malaysia did not make any changes o
Page 299 and 300:
interpretation of these provisions.
Page 301 and 302:
sum of money that is owed or due.
Page 303 and 304:
Hence, action can be brought agains
Page 305 and 306:
Directors in Australia can be held
Page 307 and 308:
to the director to prove that he or
Page 309 and 310:
expect that the company was solvent
Page 311 and 312:
In the case of Secretary of State f
Page 313 and 314:
trading at a deficit. 64 In other w
Page 315 and 316:
maintained in section 213 of the In
Page 317 and 318:
not „a party‟ if he knew that m
Page 319 and 320:
econcile the two judgments with one
Page 321 and 322:
carrying it on (whether because of
Page 323 and 324:
10.3.1.3 For any other Fraudulent P
Page 325 and 326:
company. In this aspect, section 21
Page 327 and 328:
to Australia and New Zealand which
Page 329 and 330:
even though it was evident from the
Page 331 and 332:
the steps taken were with the aim o
Page 333 and 334:
decisions. 150 Therefore, directors
Page 335 and 336:
The Law Commission proposed that th
Page 337 and 338:
to reform the law, namely to reduce
Page 339 and 340:
A similar issue was raised in the E
Page 341 and 342:
The decision was later upheld by th
Page 343 and 344:
10.4.3 Duty in relation Obligation
Page 345 and 346:
fraudulent purpose.” 201 Although
Page 347 and 348:
from the carrying on of the busines
Page 349 and 350:
The first civil version of the inso
Page 351 and 352:
amounts. 223 In Hussein v Good, 224
Page 353 and 354:
of law of contract. The court must
Page 355 and 356:
defendant. 244 Therefore, a directo
Page 357 and 358:
additional capital, as well as a re
Page 359 and 360:
trading without any other action ta
Page 361 and 362:
Another defect of the section is in
Page 363 and 364:
argue that there are reasonable gro
Page 365 and 366:
10.6.2 Responsibility for Fraudulen
Page 367 and 368:
Siow Yoon Keong v H Rosen Engineeri
Page 369 and 370:
The courts have acknowledged that t
Page 371 and 372:
The defendant in the case relying o
Page 373 and 374:
To date, there have been few cases
Page 375 and 376:
ability of the company to pay off i
Page 377 and 378:
can be disqualified from taking par
Page 379 and 380:
power to do so is an archaic equita
Page 381 and 382:
is for a short period of time. This
Page 383 and 384:
ights against the company are froze
Page 385 and 386:
involves a situation where the comp
Page 387 and 388: 11.2.3 Winding-up Liquidation is a
Page 389 and 390: 11.2.3.1 Effects of Successful Avoi
Page 391 and 392: transactions, 59 the provisions cle
Page 393 and 394: 11.2.3.1.2 Recovery from Third Part
Page 395 and 396: ecover the proceeds of sale or to p
Page 397 and 398: order. 83 If the value of the asset
Page 399 and 400: Without this class action, the unse
Page 401 and 402: the power to apply for a compensati
Page 403 and 404: defraud, which implies their culpab
Page 405 and 406: also be enforced by the company. 11
Page 407 and 408: The court has the power if it think
Page 409 and 410: contravention or pecuniary penalty
Page 411 and 412: discretion to order the director‘
Page 413 and 414: Marketing Consortium (No 2) 147 cle
Page 415 and 416: discovered that the director had en
Page 417 and 418: compensatory. 163 Damages are asses
Page 419 and 420: of causation similar to torts in as
Page 421 and 422: ecause the court considered that it
Page 423 and 424: It should be noted that Re Cyona Di
Page 425 and 426: 11.3.7.2.3 Duration The court also
Page 427 and 428: contribution order is made to the
Page 429 and 430: This is similar to the case of frau
Page 431 and 432: company is using funds belonging to
Page 433 and 434: Since section 304(1) originates fro
Page 435 and 436: 11.3.8.2 Problems of Enforcement/Pr
Page 437: However, extracting promise of inde
Page 441 and 442: Investments Commission is entitled
Page 443 and 444: The position in Australia has clear
Page 445 and 446: Disqualification on the grounds of
Page 447 and 448: As a result of the recommendations
Page 449 and 450: exercised by the Registrar or the O
Page 451 and 452: actions which are committed with a
Page 453 and 454: The court has to deduce evidence of
Page 455 and 456: 11.4.2.1 Standard of Proof Disquali
Page 457 and 458: 11.4.2.2 Court’s Order Section 6
Page 459 and 460: of disqualification. 322 However, t
Page 461 and 462: mitigating factors considered by th
Page 463 and 464: 11.5 Other Remedies 11.5.1 Mareva I
Page 465 and 466: for under the Act. 348 The action p
Page 467 and 468: of trust or breach of duty in relat
Page 469 and 470: CHAPTER 12 CONCLUSION AND RECOMMEND
Page 471 and 472: The separate legal personality conc
Page 473 and 474: deemed to be an alien concept to Br
Page 475 and 476: positive action to minimize losses
Page 477 and 478: insolvent. In Malaysia, there is no
Page 479 and 480: BIBLIOGRAPHY BOOKS and ARTICLES AHM
Page 481 and 482: BENNETT, Howard, 'Late Floating Cha
Page 483 and 484: COBURN, Niall F, 'Insolvent Trading
Page 485 and 486: http://ssrn.com/abstract=988944 at
Page 487 and 488: FISHER, Gregory, LEE , Janet and JO
Page 489 and 490:
GUNASEKARA, Gehan and TOY, Alan, 'L
Page 491 and 492:
HOPT, Klaus J., 'Comparative Compan
Page 493 and 494:
KEAY, Andrew and Murray, Michael, '
Page 495 and 496:
McCHESNEY, Fred S., 'Economics, Law
Page 497 and 498:
OTTOLENGHI, S, 'From Peeping Behind
Page 499 and 500:
ROSS, Mike, Corporate Reconstructio
Page 501 and 502:
SCHWARTZ, Alan, ‗A Normative Theo
Page 503 and 504:
WALTERS, Adrian, 'Void Dispositions
Page 505 and 506:
WORTHINGTON, Sarah, 'Subrogation Cl
Page 507 and 508:
REPLIES TO EXAMINERS APPENDIX 1 Pag
Page 509 and 510:
Page 220-it is asserted that direct
Page 511 and 512:
What are the criteria for determini
Page 513 and 514:
addition it provides incentive for
Page 515 and 516:
See also Secretary of State for Tra
Page 517 and 518:
Most jurisdictions in Australia hav
show all

View/Open - Research Commons - The University of Waikato

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?