(a) Analyse whether the directors have breached their duties. Your answer should include reference to relevant cases and sections.
Issue: whether the directors have breached their duties. It is questionable that whether the directors breached their fiduciary duty towards the company by not putting first the interests of the company.
Relevant legal principles:
Re Broadcasting Station 2GB Pty Ltd [1964–1965] NSWR 1648
Corporations Act (ss 180–184 and 588G)
CORPORATIONS ACT 2001 - SECT 180
Percival v Wright  2 Ch 421
Hutton v West Cork Railway Co (1883) 23 Ch D 654
Mills v Mills (1938) 60 CLR 150
Furs Ltd v Tomkies (1936) 54 CLR 583
R v Byrnes and Hopwood (1995) 183 CLR 501
Australian Securities and Investments Commission v Adler (No 3) (2002) 20 ACLC 576
Apply the relevant legal principles to the facts:
According to Re Broadcasting Station 2GB Pty Ltd [1964–1965] NSWR 1648, the directors of the company did not breach their fiduciary duties for the reason that their decision was not against the betterment of the company. In the case, two of directors are also shareholders in another computer hardware supplier, Zabriski Pty Limited. However, they favor a change in the hardware supplier to Zabriski Pty Limited does not necessarily have harm to the enterprise.
Directors’ and officers’ duties Corporations Act (ss 180–184 and 588G) states that a director or other officer of a corporation must exercise their powers and discharge their duties with the degree of
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Read the David Miller case from Chapter 5. After reading the case, describe a reason why someone who has been entrusted with the firm’s assets would commit a fraudulent act against the company. Based upon your understanding of the case and your professional and personal experience, recommend a series of actions that should have been taken in order to pre
What steps should management, the Board of Directors, or the Audit Committee of the Board of Directors take in response to allegations of possible fraud or illegal acts?
D) Can a shareholder bring a personal action, and against whom – the company or the director- based on the facts of the question? Do you think there are grounds for a shareholder to bring derivative action? What remedies can be obtained both for personal and derivative action? (6+6+3=15 marks)
In many misfeasance cases against directors, those breaches maybe relatively uncontroversial. This draws into focus the question of whether the director has any common law or statutory defence, including the Duomatic principle and ratification by shareholders (CA 2006 S.239), available to a claim against him for restitution to the company. S.239(6)(a) preserves the Duomatic rule that if an informal unanimous consent is reached among voting shareholders, it is unnecessary to pass such ratification resolution through general meeting or written resolution. The first part will examine the scope and requirements of this rule to illustrate the validity of such assent. S.239(7) leaves the door open for rules of law, which refers to common law principles, to continue guiding ratification. It will be assessed how these rules impose limitations on the general ratification power conferred by s.239.
According to UK Law, the directors should act in good faith in the interest of the company, and exercise care and skill in carrying out their duties. The Company Law Reform Bill (2005) defines, in section 154-161, the directors’ duties as follows:
The stakeholders are the shareholders, managers, and employees. The current situation has caused a dilemma that affects all stakeholders equally. When the business is at risk, everyone involved should be concerned about the future of the organization. However, the responsibility falls to the senior leaders of the organization to solve the current issues. However, holding 80% of the company’s stocks is concerned not only about the organizations current issues but also with the value of his investment, as he gets closer to retirement. This creates an ethical dilemma due to his personal finances and retirement being directly affected by the company’s performance. In addition, the CEO believes that the status of the organization is not as bad as some of the senior leadership team would say. The shareholders interest is purely profit. The impact of how Huffman Trucking runs the business and implements change has a direct reflection on the company’s image.
The duty of loyalty requires the fiduciaries to act in good faith and in what they believe to be the best interest of Chevron in lieu of their personal interest. Even if the committee finds enough evidence to support the complaint filed by Bezirdjian, the Board must bring the lawsuit against the alleged directors. If the committee does not pursue the investigation with impartiality and independence, the committee might be open to attacks regarding its objectivity in dealing with the directors under investigation and then they may not be protected under the business judgment rule. If this is the case, the court can reject the committee’s findings because the committee from the beginning was not truly independent and disinterested.
Corporations can be large or small but they all have some sort of ethical impact on their employees, shareholders, customers, community, and surrounding environments. Richard DeGeorge writes, “We can speak of corporations having moral responsibilities to act in certain ways, and they are morally responsible for the consequences of their actions on people.” (p. 200). Large corporations are comprised of the board of directors, management, and their workers. They also deal with suppliers, customers, and have competitors. This essay will examine the moral responsibilities within a corporation.
Based on the case scenario, Doris, Betty, and Charlie formed a company called Bechdo Pty Ltd. The three members are the directors and Betty who is major shareholder holds 40% followed by Charlie and Doris who hold 20% each while the 20% is held by the rest. Based on the company constitution, a managing director has capacity to enter into a contract o behalf of the company up to a maximum of $100,000. Moreover, he/she can enter into contracts to the value of $900,000 upon getting consent for the board of directors. In this case, Bechdo Pty Ltd operates without a managing director since none was elected. The major issue is that Betty being the majority shareholder went ahead and entered into contract with BB Ltd, Jillo Pty Ltd, and
Smith should have disclosed his share information with the board of directors and voted in favor of Johnsons Skyhooks Limited. Being a board of director of a competing company, he failed to execute his duty in good faith with best interest of the corporation. According to the act, he should be fined up to 5000$ and can go to jail for at least six months.
Throughout the case, it can be analyzed and expected to say that Deloitte & Touche have committed a breach to its fiduciary duty to Vertical Pharmaceutical at the end. Vertical Pharmaceuticals Inc., realized a huge loss as a result by Deloitte & Touche. Therefore, this shows that Deloitte & Touche did indeed breach their fiduciary duties. All the falsified reports and malpractices that were said to be revealed by Deloitte & Touche would be said to not be real by the forensic audit that was conducted. At the end, the court can rule that Deloitte & Touche did indeed breach their fiduciary duty to Vertical Pharmaceuticals.
There were also problem in board. Board members also involved in scandal. Boards of Directors, especially Audit Committees, are made some mechanisms were financial reporting parts for investors were oversight. They either didn’t perform their obligations, responsibilities or didn’t understand business complex duties to perform their work. Audit Committee members were much dependent on management as should be and they were not perform independent decisions. Stock market analysts, who make decision buy or sell company bonds and stock, and investment bankers that give companies loans or handle mergers and acquisition are another conflict. Banking practices conflict leading to a firm lends
Issue 2: Has Patricia breached her duty to act in good faith in the best interests of the company when advising her sister Faye, that SEPL were buying a large amount of shares in FPPL?