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139 Pages • Complete Study Notes • Year: Pre-2018
Introduction What is a corporation? Definition of a corporation Types of companies Classification according to liability Classification according to membership Classification of proprietary companies according to size Corporate groups How do you form a company Appendix: Shares and Share Capital Corporate Personality and Limited Liability The separate legal entity principle“Piercing the corporate veil” – common law exceptions to the separate entity principle Fraud and/or improper purpose Agency…Corporate groups Other categories “Piercing the corporate veil” – statutory exceptions to the separate entity principle 17 Insolvent trading 17 Shadow directors 19 The position of employees upon insolvency 19 Corporate Constitution 22 The corporate constitution and its content 22 What is a corporate constitution? 22 Replaceable rules 23 Mandatory rules 25 Alteration of the corporate constitution 25 The power to alter the corporate constitution 25 Limits on the power to alter the corporate constitution 26 Effects of the corporate constitution 29 The statutory contract 29 Limits of the statutory contract 29 Enforcement of the statutory contract 30 Contracts outside the corporate constitution 33 Inconsistency between the outside contract and the statutory contract 33 The effect of altering the statutory contract on outside contracts 34 Corporate Organs 36 Division of powers between the corporate organs 36 Powers exercised by the board of directors 36 Powers exercised by shareholders at the general meeting 38 The general meeting 39 Formal decisions 39 Informal decisions 51 Shareholders’ access to information 53 The board of directors 55 Types of directors 57 Procedural matters 58 Directors’ access to information 60 Curing irregularities 61 Binding the Corporation 63 Capacity of the corporation 63 Authority of organs and agents 63 Contracting by corporate organs and agents 63 Authority at common law 64 Statutory assumptions as to authority 66 The assumptions 66 The exceptions to the assumptions 67 Directors’ Duties 69 General 69 Duty to act in good faith for the benefit of the company as a whole and for a proper purpose 71 Statutory Duty 71 Duty to act in good faith for the benefit of the company as a whole 72 Duty to exercise powers for a proper purpose 75 Remedies 78 Duty to avoid conflicts of interest 81 Directors’ interests in contracts with their own company 81 Secret profits: the appropriation of corporate property, information and opportunity 84 Nominee directors and competing directors 86 Remedies 87 Related party transactions 90 Duty of care, diligence and skill 93 The scope of the duty 93 The statutory right to delegate and rely on others 96 Defence: the statutory business judgement rule 98 Remedies 100 Duty not to fetter discretion 103 Duty to prevent insolvent trading 103 The elements of the duty 104 Defences 105 Remedies 107 Equitable remedies 107 Remedies under the Corporations Act 2001 (Cth) 107 Liability under Corporations Act s 588V 113 Ratification and Indemnification 115 Ratification 116 By the general meeting 116 By the board of directors 117 Relief granted by the court 118 Indemnification 120 Shareholders’ Rights and Remedies 123 Equitable limitation on the voting rights of majorities 123 Equitable principle relevant to voting rights 123 Release of directors’ duties 124 Alteration of articles 124 Acquisition of shares 124 Shareholder action 125 Shareholder remedies 128 Compulsory liquidation remedies 128 Oppression 131 Class rights 134 Statutory injunctive relief 137 Where there is conduct which is, was or would be (past, future and present breaches) in contravention of this Act then an injunction may be sought. 137
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