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FARRAR, John and Hannigan, Brenda, Farrar's Company Law (4th ed, Butterworths, 1998). FARRAR, John, 'Corporate Insolvency Law and the Law' (1976) JBL 214. FARRAR, John and RUSSELL, Mark Company Law and Securities Regulation in New Zealand (Butterworths, Wellington 1985) FATUPAITO, Vivian, ‗Creditors Remedies: Turning the clock back [2006] CSLB 53 FAZZARI, Steven M.; HUBBARD, R. Glenn; PETERSEN, Bruce C.; BLINDER, Alan S. and POTERBA, James M., ‗Financing Constraints and Corporate Investment‘ (1988) 1 Brookings Pap. Econ. Act.141. FERRAN, Eilis, 'Creditors' Interests and "Core" Company Law' (1999) 20 Co Law 314. FERRAN, Eilis, ‗Floating Charges-The Nature of the Security; (1988) 47 CLJ 213. FINCH, Vanessa, Corporate Insolvency Law Perspective and Principles (2 nd ed, Cambridge University Press, 2009). FINCH, Vanessa, 'Corporate Rescue in a World of Debt' (2008) JBL 756. FINCH, Vanessa, 'Directors' Duties: Insolvency and the Unsecured Creditor' in Alison Clarke (ed), Current Issues in Insolvency Law (Sweet & Maxwell, 1991). FINCH, Vanessa, 'Disqualification of Directors: A Plea for Competence ' (1990) 53 MLR 3. FINCH, Vanessa, 'Doctoring in the Shadows of Insolvency' (2005) JBL 690. FINCH, Vanessa, 'The Measures of Insolvency Law' (1997) 17 OJLS 227. FINCH, Vanessa, 'Personal Accountability and Corporate Control: The Role of Directors' and Officers' Liability Insurance' (1994) 57 MLR 880. FINCH, Vanessa, 'The Recasting of Insolvency Law' (2005) 68 MLR 713. FINCH, Vanessa, 'Security, Insolvency and Risk: Who Pays the Price?' (1999) 62 MLR 633. FINCH, Vanessa and WORTHINGTON, Sarah, 'The Pari Passu Principle and Ranking Restitutionary Rights' in Francis Rose (ed), Restitution and Insolvency (Mansfield Press, 2000). 415
FISHER, Gregory, LEE , Janet and JOHNS, Leanne, ‗An Exploratory Study of Company Turnaround in Australia and Singapore Following the Asia Crisis‘ (2004) 21 Asia Pacific J. Manage. 149. FLANNIGAN, Robert, 'Fiduciary Duties of Shareholders and Directors' (2004) JBL 277. FLETCHER, Ian, The Law of Insolvency (Sweet & Maxwell, 2002). FORMOY, Ronald R, The Historical Foundations of Modern Company Law (Sweet and Maxwell, 1923). FOSTER, Nicholas H. D., 'Company Law Theory in Comparative Perspective: England and France' (2000) 48 Am. J. Comp. L 573. FREEMAN, R. Edward, Strategic Management: A Stakeholder Approach (Pittman Publishing Inc, 1984). FRIDMAN, Saul, ' Removal of the Corporate Veil ' (1991) 19 ABLR 211. FRISBY, Sandra, 'In Search of a Rescue Regime: The Enterprise Act 2002' (2004) 67 MLR 247. FUREY, Nigel, 'The Protection of Creditors' Interests in Company Law' in David Feldman and Frank Meisel (eds), Corporate and Commercial Law: Modern Developments (Lloyd's Of London Press Ltd, 1996). GALLAGHER, Lynn and ZIEGLER, Peter, 'Lifting the Corporate Veil in the Pursuit of Justice' (1990) JBL 292. GILLIES, Peter, 'Misleading and Deceptive Conduct: Immunising the intermediary – the Conduit Defence' (2006) 14 TPLJ 209. GILLIES, Peter, 'Section 52 and Misrepresentations to a Class: Principles, Proof and Appellate Review' (2007) 15 TPLJ 206. GLENN, H. Patrick, On Common Laws (Oxford University Press, 2005). GODDARD, David, 'Company Law Reform-Lessons From the New Zealand Experience' in Andrew Borrowdale, David Rowe and Lynne Taylor (eds), Company Law Writings: A New Zealand Collection (The Centre For Commercial & Corporate Law Inc, 2002). GODDARD, David, 'Directors' Liability for Trading While Insolvent: A Critical Review of the New Zealand Regime' in Ian Ramsay (ed), Company Directors' Liability for Insolvent Trading (CCH Australia Ltd and Centre of Corporate Law and Securities Regulation, Faculty of Law, University of Melbourne, 2000). 416
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ABSTRACT This study examines the le
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TABLE OF CONTENTS ABSTRACT i ACNOWL
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CHAPTER 5 THEORY OF THE CORPORATION
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7.3.3.3 Distribute its Capital to M
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10.2.5.1 Meaning of Insolvency 10.2
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10.6.2.2 Carrying on of any Busines
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CHAPTER 12 CONCLUSION AND RECOMMEND
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CLC Australian Company Law Cases CL
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Stanford LR Stanford Law Review Ste
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Facia Footwear Ltd (in administrati
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Re Avon Chambers Ltd [1978] 2 NZLR
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Re Produce Marketing Consortium Ltd
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Ultraframe (UK) v Fielding & Ors [2
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Mountford v Tasman Pacific Airlines
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Australia 3M Australia Pty Ltd v Ke
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Linton v Telnet Pty Ltd (1999) 30 A
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Malaysia Abdul Aziz bin Atan v Lada
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Perman Sdn Bhd & Ors v European Com
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Other Jurisdictions Singapore Rahj
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Companies Act 2006 Section 60(3)(c)
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Section 993 Section 993(2) Section
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Insolvency Act 1985 37, 70 Insolven
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Section 251 255 Part II Schedule 6
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Section 52(1) Section 52(2) Section
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Section 272(2) Section 272(2)(a) Se
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Section 385(4)(b) Section 385(4)(b)
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AUSTRALIA Absent Debtors Act (NSW)
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Section 206D(1)(b)(b)(ii) 374 secti
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Section 588FE(2)(a) Section 588FE(2
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section 588H (5) 241 Section 588H(6
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Section 598(3)(b) Section 598(3)(c)
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Bankruptcy Act 1967 MALAYSIA Sectio
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Section 130A(6) 391 Section 131 221
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Companies Regulation 1966 Regulatio
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CHAPTER 1 THE STRUCTURE OF THE THES
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A discussion of directors’ duties
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The far-reaching implication of cor
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2.2.1 The United Kingdom The common
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2.2.3 Australia Australia has been
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CHAPTER 3 LITERATURE SURVEY - AN OV
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shareholders, had failed to mitigat
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was mainly responsible for the chal
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3.3 Interests in the Company-Shareh
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contributed by the shareholders and
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Statutes have attempted to address
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how the matter should be dealt with
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4.2 Development of Corporate and In
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colonies. 14 The emergence of compa
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originally incorporated in order to
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usiness fraud. 42 In 1825, the Bubb
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Companies Act also reveals providin
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Companies Ordinance 1953 of Sabah a
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In 1977, the Cork Committee was app
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the Committee foresaw difficulty du
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operation and termination of a comp
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enforceability of security interest
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procedure, and dispensed with the o
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The creditors‟ protection princip
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shareholders and on personal bankru
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directors as trustees. 162 Members
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4.3.3 Development of Insolvency Leg
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In Australia, the government respon
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appointment of an administrative re
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the current statutes were not effic
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insist on protection to directors i
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and judgment to run the company. 21
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due to the difficulty in obtaining
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The Australian Law Commission in 19
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instead, enacted section 135 253 in
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4.5 Conclusion Malaysia, New Zealan
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CHAPTER 5: THE THEORY OF THE CORPOR
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needs someone to run it on its beha
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The implication of the decision is
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English decisions as guidance and t
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Shareholders who have to incur high
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interests of shareholders by maximi
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situation, directors have a duty to
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concluded purchasing goods from thi
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stipulates directors “may conside
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subsidiary and may continue to pros
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A holding company may use a subsidi
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section 187 of the Australian Corpo
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its holding company), act in a mann
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is just and equitable, to make an o
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Syndicates (NZ) Limited (in liq) 13
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a) Extent to which the Related Comp
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That the management did not differe
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equirement of insolvency and it doe
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The House of Lords in Woolfson v St
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subsidiary. Abdul Malik J held that
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defendant company. During a meeting
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Uniphoenix Corporation Bhd v Raymon
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justice alone is not sufficient; th
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lenders, employees, suppliers and c
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company and as the residual claiman
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The claim that shareholders‟ righ
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particularly lack of effective mana
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management of the companies. Credit
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players‟ interests intertwine wit
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important for directors to build lo
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Despite having included favourable
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at the intersection of a number of
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Directors must weigh any particular
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Directors will also enlist the serv
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Contractarians regard employees in
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terms to their liking, they either
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to boycott the company. 134 The com
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On the other hand, the duty owed to
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and experiences in order to dischar
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CHAPTER 7: A CONCEPTUAL ANALYSIS OF
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Economists divided real capital whi
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the transformation of shares as rea
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the company‟s ability to pay its
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purchase or will not become insolve
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available where special resolution
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The idea that maintaining share cap
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must be satisfied by the company in
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7.4 Conclusion The doctrine of capi
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and once a resolution is passed, to
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The term 'insolvency' has also long
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equivalent to medical negligence ca
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meaning of inability to pay debts.
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It is important to distinguish as t
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long as the accounts give true and
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current assets must be taken stock
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cases the presumption of insolvency
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It is interesting to note in reachi
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CHAPTER 9 THE COMMON LAW DUTIES OF
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Voluntary creditors can be divided
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are not personally liable for any l
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confidence, a trustee who has been
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interests of various parties in the
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overriding duty is to the sharehold
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to look at the directors‟ purpose
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9.3.3 Duty not to Fetter Discretion
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The decisions of the Federal Court
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case, directors should disclose the
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misconception that the case law and
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other reference as to the developme
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Australia and Malaysia have express
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out “ ...the judgment is in the b
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the prospect of success as well as
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judge adopted the principle of iden
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individual trading through a compan
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liability can be imposed on them wh
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liquidators when it is insolvent. C
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CHAPTER 10 DIRECTORS’ DUTY TO PRE
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Malaysia did not make any changes o
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interpretation of these provisions.
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sum of money that is owed or due.
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Hence, action can be brought agains
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Directors in Australia can be held
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to the director to prove that he or
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expect that the company was solvent
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In the case of Secretary of State f
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trading at a deficit. 64 In other w
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maintained in section 213 of the In
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not „a party‟ if he knew that m
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econcile the two judgments with one
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carrying it on (whether because of
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10.3.1.3 For any other Fraudulent P
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company. In this aspect, section 21
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to Australia and New Zealand which
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even though it was evident from the
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the steps taken were with the aim o
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decisions. 150 Therefore, directors
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The Law Commission proposed that th
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to reform the law, namely to reduce
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A similar issue was raised in the E
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The decision was later upheld by th
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10.4.3 Duty in relation Obligation
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fraudulent purpose.” 201 Although
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from the carrying on of the busines
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The first civil version of the inso
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amounts. 223 In Hussein v Good, 224
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of law of contract. The court must
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defendant. 244 Therefore, a directo
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additional capital, as well as a re
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trading without any other action ta
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Another defect of the section is in
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argue that there are reasonable gro
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10.6.2 Responsibility for Fraudulen
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Siow Yoon Keong v H Rosen Engineeri
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The courts have acknowledged that t
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The defendant in the case relying o
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To date, there have been few cases
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ability of the company to pay off i
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can be disqualified from taking par
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power to do so is an archaic equita
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is for a short period of time. This
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ights against the company are froze
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involves a situation where the comp
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11.2.3 Winding-up Liquidation is a
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11.2.3.1 Effects of Successful Avoi
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transactions, 59 the provisions cle
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11.2.3.1.2 Recovery from Third Part
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ecover the proceeds of sale or to p
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order. 83 If the value of the asset
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Without this class action, the unse
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the power to apply for a compensati
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defraud, which implies their culpab
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also be enforced by the company. 11
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The court has the power if it think
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contravention or pecuniary penalty
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discretion to order the director‘
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Marketing Consortium (No 2) 147 cle
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discovered that the director had en
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compensatory. 163 Damages are asses
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of causation similar to torts in as
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ecause the court considered that it
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It should be noted that Re Cyona Di
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11.3.7.2.3 Duration The court also
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contribution order is made to the
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This is similar to the case of frau
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company is using funds belonging to
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Since section 304(1) originates fro
Page 435 and 436: 11.3.8.2 Problems of Enforcement/Pr
Page 437 and 438: However, extracting promise of inde
Page 439 and 440: In relation to an action against a
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: http://ssrn.com/abstract=988944 at
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
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