Issue:
In the given circumstances the issue that exists is whether Mike can limit and restrict his liability by relying on the exclusion clause printed on the invoice.
Law:
1). In this given scenario the principle of exclusion clause is relevant. Exclusion clause can be defined as a term in the contract which aims to limit or restrict the liability of either of the parties to the contract. However an exclusion clause will be ineffective if reasonable notice of such term is not given by the party who wishes to rely on such clause as held in the case Olley v Marlborough Court [1949] 1 K.B. 532. In this case the claimant had booked a room in the hotel. The contract had been formed between the claimant and the hotel authority however the contract had no mention of any clause which could limit the liability of the hotel. However on the door of the hotel room there was notice which aimed to exclude the liability of the hotel authorities for any loss of property of the guest from the hotel room. The claimant’s fur coat had been stolen from the room. It was held by the court that reasonable notice of the exclusion had not been given to the claimant and that the term was not present in the original contract and the clause hab no validity. However in the case L’Estrange v Graucob [1934] 2 KB 394 it had been held by the court that in circumstances where written contract had been by the parties the exclusion clause would be binding upon the parties even if the party who signed the contractual document had not read the clause in the document. In this notable case the claimant had purchased a cigarette vending machine by signing an invoice which contained the clause that any express, implied condition, statement or warranty was excluded. The vending machine did not work and wanted to reject it under the Sale of Goods Act. It was held by the court that the claimant was bound by the terms of the contract.
Application
By analyzing the facts of this case, it can be stated that John had given his car for repairing at Mike’s Auto. He had been a customer at Mike’s Auto for a long time. A sign had been put up on the wall of Mike’s Auto that all the vehicles would be subject to the terms of the invoice. Every time he came back to pick up his car from Mike’s Auto he used to sign an invoice which contained the exclusion clause that Mike’s Auto cannot be held liable for the damage sustained by any of customer’s cars which is caused by Fire or theft. He did the same on the occasion as mentioned in the case study. Thus by the application of the decision of the L’Estrange v Graucob on the facts of the case study it can be stated that the exclusion clause would be effective in limiting the liability of Mike’s Auto as it had been present in the invoice which was signed by John even though he had not the terms.
Conclusion:
Thus to conclude, it can be stated that Mike would be protected by the exclusion printed on the invoice which had been signed by John.
Issue:
In this given scenario the issue that is said to exist is whether the directors of the company had breached their duties when they incorrectly declared the financial statements of the company by relying on the expert advice of the auditors and whether they can take any defense under section 180(2) of the Corporations Act
Law:
2). The law related to governance of corporations and companies are governed by the Corporations Act 2001(Cth). It has been provided in section 180 of the Corporations Act that any director or officer of an organization has the responsibility to discharge their duties with due care and diligence. The actions of a director are analyzed from the perspective of a reasonable person acting as the director, in the similar circumstances as the director and having the similar powers. If it is established that a reasonable person acting in the given circumstances of a director, occupying the same powers of the directors and having the same responsibilities of the directors would have acted in a more diligent and careful manner, it would be considered that the directors breached their duty under section 180(1). However as provided in subsection 180(2) of the Corporations Act, it can be stated that a director making a business decision would be held to be meeting the requirements of subsection 180(1) if:
such director makes the judgment for the business in good faith
such director does not have any personal interest involved while making the decision
such director makes enquiries and informs himself about the judgment to the extent that such director reasonably believes to be appropriate
Such director is of the belief that the judgment is in the best interest of the company.
Further it has been provided in section 189(a)(i) of the Corporations Act that if a director relies on the information provided by an employee of a corporation whom believes to be competent and reliable on reasonable grounds such reliance can be considered to be reasonable unless evidence points to the contrary. Further in subsection 189(a)(ii) it has been provided that the directors have the can rely on the expert advice if such director has reasonable grounds to believe that the professional expert or the advisor has acted within his profession or competence while providing the advice. Further it can be stated in accordance with section 189(b)(i) of the CA that the director must establish that the reliance was made in good faith for the reliance to be considered to be reasonable.
Application
Thus by analyzing the facts of the case it can be stated that, the directors disclosed the financial statements by relying on the expert advice of the internal auditors as well as the external auditors of the company. However the financial statements were later realized to be incorrect. Thus in this given scenario, it can be stated that the directors had reasonable grounds to rely on the information provided by the auditors as it was reasonable for them to believe that producing the fina statements was within the expertise and competency of the auditors. Therefore such reliance can be considered to be reasonable. Further in accordance with section 180(2) it can be stated that the directors acted in good faith, did not have any personal interests involved and believed such information to be true.
Conclusion
Thus in conclusion it, can be stated that the directors will have defenses for breaching their directors’ duties as they relied on the expert advice of the auditors.
Issue:
In the given scenario the issue that can be identified is whether Peter, Clive and Don can sue Peter for breaching the his director’s duties as provided in section 181 of the Corporations Act.
Law:
3). It has been provided in section 181 of the Corporations Act that directors must act in the best interest of the corporations and such action should be fit for the purpose. Breaching this section imposes a civil penalty upon the directors as per the provisions of section 1317e of the Corporations Act. Thus, in relation to the provisions of this section it can be stated that Directors are obligated to act honestly and for the benefit of the shareholders. Further it can be said that a director must not exercise his power for his personal profit. If it is established that a director acted for personal profit or for the profit f third party such director would be held to have used their power for an improper purpose and subsequently breached his duty. Further it has been clearly provided in section 182(1) of the Corporations Act that a director or officer of the company must not use his power which has been derived by his position to gain an advantage for someone else or for himself and cause detriment to the company.
Application:
Thus by analyzing the facts of the case it can be stated that Paul after marrying Cleo issued a special category of shares to Cleo which would give her control over the affairs of the company after the death of Paul. It can be mentioned that the issue of special category of shares would dilute the voting rights of the holders of the “B” class shares who are in this scenario Peter Clive and Don. It can further be pointed out that Cleo had no prior experience neither qualifications of managing a manufacturing industry. Thus, in this case it is clearly evident that the act of issuing special class of shares to Cleo was a breach of the director’s duty as provided in section 181 of the CA to act in good faith in the best interest of the company and fit for proper purpose. In this scenario Paul acted in the interest of Cleo and not in the interest of the company as Paul was not eligible for handling the affairs of the business.
Conclusion:
Thus, in conclusion it can be stated that Paul had breached his duty according to the provisions of section 181 of the Corporations Act 2001 (Cth).
Reference:
Olley v Marlborough Court [1949] 1 K.B. 532
L’Estrange v Graucob [1934] 2 KB 394
Corporations Act 2001(Cth)
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