Elite Law 202 Corporate Law 法律 assignment 代写

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  • Elite Law 202 Corporate Law 法律 assignment 代写


    Who are directors of company?What are their duties of directors under Australia Corporation Law? 

    • Give a short history of the evolution of director’s duties and responsibilities. 

    Please enumerate their duties and responsibilities today. Are their duties the same in proprietary companies and public companies? 

    • Explain the consequences should directors contravene the law and the remedies available. 

    • What do you see in the future direction of director’s duties in Australia? 

    • Please cite relevant case law and the statutes in your answer and provide proper references. 



    CHAPTER 12 Directors
    Topic Overview
    Directors

    •s 9 definition includes
    – person appointed to the position regardless of the name that is given to their position
    – “de facto” director: not validly appointed but acts in the position
    – “shadow” director: not validly appointed but company is accustomed to act in accordance with the person’s instructions and wishes

    Proprietary company: at least one director needed needed
    Public company: at least three directors needed
    “A director is essential component of corporate governance. Each director is placed at the apex of the structure of direction and management of a company. The higher the office that is held by a person, the greater the responsibility that falls upon him or her..,A board should be established which enjoys the varied wisdom, experience and expertise of persons drawn from different commercial backgrounds…

    …A board should be established which enjoys the varied wisdom, experience and expertise of persons drawn from different commercial backgrounds…A director is not relieved of the duty to pay attention to the company’s affairs which might reasonably be expected to attract inquiry, even outside the area of the directors expertise…” ASIC v Healy (Centro case)

    Roles & Types of Directors

    •Roles

    -to manage and supervision the business of the company
    -”the business of the company is to be managed by or under the direction of the directors”: replaceable rules, s 198A CA 2001
    -need not be members
    -managing: small companies
    -supervising: large companies
    -collectively in properly constituted board meeting unless delegated to the MD or Committees (remuneration, audit, project)
    Roles & Types of Directors

    •Types

    -Executive: full time and employee
    -Non-executive: part-time and not employee
    -Managing director (CEO): in charge of managing the coy day to day
    “to deal with every day matters, o supervise the daily running of the coy, to supervise the other managers, and indeed, generally, be in charge of the business of the company.” Entwells Pty :td v National and General Insurance Co Ltd
    Chair: exercise procedural control over a meeting and signs minutes of meeting

    Australian BOD
    -68% of companies: 4 to 7 directors
    -89% of the companies:4 to 9 directors
    -Large companies more directors
    -77% of directors non executive
    -82% of directors non executive in 50 largest companies
    -Average age: 60
    -9.6% women
    -16.3% women, 50 largest companies
    -2.3% chair women
    -4.2% chair women in 50 largest companies
    -97% have audit committees (100% in 50 largest companies)
    -89% have remuneration committees (100% in 50 largest companies)
    Australian BOD
    -Average remuneration by non executive chairperson $241,687
    ($519,306n in 50 largest companies)
    -Average remuneration by non executive director $124,985)
    ($226,955 in 50 largest companies)
    Appointment of Directors

    •Initial directors: written consent to act
    •Alternate director: replacement or temporary substitute
    •Nominee director : appointed to represent particular shareholders or creditors or employees
    •Subsequent appointments rules :s 201G

    -shareholders’ resolution passed in general meeting

    •Casual vacancies

    -arising not by retirement at the end of the term i.e. directors die, resign, or otherwise unable to continue to act as director e.g. bankruptcy

    •Appointment by sole shareholder/director

    -another director


    Appointment & Removal of Directors
    Appointment cont

    •Who may be appointed

    >18 year old
    -a natural person not a body corporate
    -consent to appointment
    -not disqualified

    •Share qualification

    -added incentives to ensure the financial success of their company
    -directors risking their money
    Disqualification of Directors – Pt 2D.6

    •3 purposes

    -protect a coy’s shareholder against further abuse of directors
    -punish an offender/offending director
    -generally deter improper behaviour of directors

    •Undischarged bankrupts – s 206B  : automatic
    •Convicted persons previous 5 years of serious fraud – s 206B : automatic
    •Court orders: Breaches of Corporations Law – s 206E
    •Contravention of a civil penalty provision – s 206C
    •Directors of insolvent companies and non-payment of debts
    •ASIC: subject of a liquidator’s adverse report
    •Disqualification under a law of a foreign jurisdiction

    Disqualification cont

    •ASIC’s power to disqualify

    -up to 5 years: s 206F
    -’show cause’ notice requires the person to demonstrate why they should  not be disqualified

    •Consequences of disqualification : s 206A

    -5 years’ ban
    -Leave to manage – s 206G(1)
    - from court ; 21 day notice to ASIC
    Removal of Directors

    •General meeting

    -can remove a director if it has the power to do so under the replaceable rules or the company’s constitution

    •s 203C (proprietary), s 203D (public)

    Remuneration of Directors
    Payment and disclosure of remuneration and other benefits:

    •Fixing remuneration- shareholders’ permission needed
    •Disclosure in remuneration report
    •Non-binding vote on remuneration report- by shareholders
    •“Two-strikes and re-election” process-shareholders have rights to vote on a resolution requiring a director to stand for re-election if the shareholders’ concerns on remuneration issues are not adequately addressed over 2 consecutive years.


    Division of Powers Within a Company

    •The board of directors

    -day to day control and management

    •The members in the general meeting

    Elite Law 202 Corporate Law 法律 assignment 代写
    Management Power of the Board – s 198A

    •(1)The business of a company is to be managed by or under the direction of the directors.
    •(2)The directors may exercise all the powers of the company except any powers that this Act or the company’s constitution (if any) requires the company to exercise in general meeting.

    Strong v Brough & Son (see Lipton, Herzberg and Welsh at [12.75])
    Management Power of the Board cont

    •Delegation of management power – s 198D

    Shareholder Control over the Board

    •Can shareholders override management decisions?

    -In certain special situations

    –Automatic Self-Cleansing Filter Syndicate Co v Cuninghame
    –John Shaw & Sons (Salford) Ltd v Shaw

    Members’ Rights

    •Alter constitution to restrict director’s powers
    •Remove directors
    –proprietary company rep rules: s 203C
    –public companies: s 203D

    Ownership and Control

    •Implications of the separation of ownership and control

    -Shareholders cannot override the directors and involve themselves in the management of the coy
    -Separation of ownership and management
    -The interests of management may diverge from interests of the shareholders

    Elite Law 202 Corporate Law 法律 assignment 代写