The central issue is to offer Tim legal advice in the capacity of legal advisor for Modern Design Pty Ltd in relation to the issues that the company is facing regarding potential breach of duty by directors with reference to both common law and Corporations Act 2001 (Cth).
The directors occupy a significant position in the company and play a vital role in the success of the company. Considering the importance of their role, there are certain set of duties which are expected from them. These duties may be common law duties or dictated by statute particularly the Corporations Act 2001.
It is noteworthy that the companies are owned by shareholder who are real owners and these tend to appoint directors to manage the affairs of company. Hence, it can be concluded that there is an agency relationship with the directors acting as agents to the shareholders who act as principal. Owing to this relationship, there are fiduciary duties on the agents to safeguard the interest of the principal. For the directors, these are summarised below.
There are statutes which tend to list down the duties of directors and the potential liabilities for breach of these duties. The relevant statutory duties are highlighted below.
The directors can use the business judgement rule as cited in s. 180(2) as their defence against the potential breach of the above duty since no liability would arise if the underlying judgement was made in good faith, with appropriate knowledge and was aimed at safeguarding the shareholders’ interest (Pathinayake, 2014).
Additionally, directors have other duties related to taking part in the board meeting which are meant to discuss critical issues from the company’s viewpoint. Also, it is required that the directors must take active participation in such board meetings and must use their vote properly. Besides, there are duties of the directors owed to the third parties such as the regulators so as to comply with the various regulations laid down for the company structure in the Corporations Act 2001 (Harris, 2014).
Based on the given information, it is apparent that Alana, Ursula and Tim are the three directors of Model Design Pty Ltd. Since they are directors of the proprietary company, hence they would have to adhere to the duties imposed by both common law and also Corporations Act 2001. The conduct of these directors in wake of the relevant rules has been discussed as shown below.
It is known that she is a retired accountant who has failed to update her knowledge about the applicable legislation. Also, she does not possess any experience or knowledge with regards to design industry. She is on the board of the company primarily because of her financial expertise. Also, it is known that the relation between profits and cash flow is not understood by any director including Alana. Further, all the major decisions are taken by Alana and Tim.
It is apparent that there is a breach of duty of directors by Alana. The conduct of Alana is clearly in violation of Section 180 primarily because of her lack of skills owing to which she is not capable of taking decisions with due care and requisite due diligence. This is most evident from the fact that despite being an accountant, she does not understand the relation between profits and cash flow. Further, when Alana is aware that she is part of the board only because of her financial skills, but still she does not take any concrete measures for upgrading her skills and relevant legislation. Also, despite her limited knowledge she continues as director and engages in decision making.
Also, through her conduct, there is breach of section 588G, since the company is facing cash crunch which may be attributed to the financial mismanagement. Considering that Tim has very limited knowledge of finance , hence the onus lies on Alana to take requisite decisions in order to manage the cash flow problem. But her failure to take such decisions is directly for the current insolvency risk that the company faces.
Ursula has wide experience in the design industry and looks at the operational aspects of the business with a focus on the client. She does not participate in the board meetings as she considers her more suitable in operations and also is not able to spare out time. The orders are placed by both Tim and Ursula. Ursula has ambitions to start a competitive business on her own. Further, with the assistance of the warehouse manager Bob, she takes spare items after the project completion which are then falsely recorded as written off stock.
Ursula is clearly in breach of her duties as director primarily because she does not participate in the board meetings. If she thinks she lacks managerial decision making capabilities, she should resign from the position of director and assume only the position of an operational head or manager. Further, she is neglecting the fact that she has extensive knowledge about the customer preferences and the design industry and hence her expertise may allow the board to make better decisions. Thus, there is breach of s. 180 since through her conduct she does not discharge the duty to care towards the shareholders.
Also, her conduct is in violation of s.182 since she is siphoning off high value inventory from the company for her own personal use and thereby causing harm to the company since this is shown as written off inventory. Further, she has plans to start her own business and hence she also is in breach of s.191 since she intends to open her own business in the same line. Further, it is highly likely that in her new business she would use the information about the clients of the company and leverage the existing relationship which would breach duty under s. 183.
Tim is responsible for marketing and advertisement. However, his financial knowledge is quite basic. The conduct of Tim is in violation of s. 180 since he continues to insist that Alana continue to serve as a director despite her poor financial skills which is apparent from the poor cash flow management by the company. Additionally, despite all the directors lacking expertise on deriving cash flow from profits, but no external consultant or specialised position such as accountant seems to have been created owing to which the company is suffering as the credit period for the company have been shaved off.
On the basis of the above discussion, it is apparent that both common and statutory duties have been breached by all the directors. As a result there would be potential liabilities for these directors which are explained as follows.
Alana – There would be civil penalty for violation of duty to care under section 180 which could lead to levying of fine along with ASIC barring her from being the director of any other company for a fixed period. In relation to s. 588G potential breach, if the company becomes insolvent while she retains the position of director, then criminal charges may also be levied on her by the unsettled creditors and shareholders.
Ursula – Ursula doesn’t only breach her common duty to care for the shareholders by not attending board meeting and taking part in the decision making but it is evident that he is taking action to financially harm the company through inventory siphoning. Also, she has plans to commence her own business and has not disclosed these plans to other directors. Hence, both civil liability and criminal charges would be levied against Ursula. Hence, she may have to pay fines for the loss caused to the company besides being barred by ASIC from being director in the future. Further, she may also be given capital punishment if the loss of her wrongdoing is considerable.
Tim – He has violated the statutory and common duty related to duty to care for which there is only civil liability and hence he would have to pay fine as determined by the court based on potential loss faced by the shareholders.
Conclusion & Recommendations
Based on the above discussion, it is apparent that statutory and common duties of directors have been breached by all the three directors of the company. However, in order to improve the current situation, the following recommendations are advisable.
References
Cassidy, J. (2013) Corporations Law Text and Essential Cases 4th ed. Sydney: Federation Press.
Ciro, T. & Symes, C. (2014) Corporations Law in Principle 9th ed. Sydney: LBC Thomson Reuters
Gibson, A. & Fraser, D. (2014) Business Law. 8th ed. Sydney: Pearson Publications.
Harris, J. (2013) Butterworths Questions and Answers Corporations Law 4th ed. Sydney: LexisNexis Australia.
Harris, J. (2014) Corporations Law. 2nd ed. Sydney: LexisNexis Study Guide.
Harvey, C. (2009) Foundations of Australian law 3rd ed. Victoria: Tilde University Press.
Lindgren, K.E. (2011) Vermeesch and Lindgren’s Business Law of Australia 12th ed. Sydney: LexisNexis Publications
Pathinayake, A. (2014) Commercial and Corporations Law 2nd ed. Sydney: Thomson-Reuters.
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