Issue (a) The first issue in the given case scenario is to identify any breaches of duty by Tony Stark as the director of the company Marvel Universe Pty Ltd and the remedies available against the same. Rule (a) The rules in the given case scenario relate to the Corporations Act 2001 (Cth) that is comprised of the guidelines for the various aspects of the company management. The act lays down certain general duties of the director in the “sections 180, 181, 182 and 183.” The section 181 states that it is the duty of the directors to act in good faith and in amanner, that represents the best interest of the company. In addition, the section 183 prescribes the duty of the director to not to use the information gained during the course of the employment, for purposes that are improper (Australian Institute of Company Directors, 2019). The improper purpose here is referred to as the purposes that lead to the detriment to the interests of the company and advantage for self or someone else. Application (a) The application of the above rules to the given case study leads to the observation that the director Tony Stark of the company Marvel Universe Pty Ltd, has been a part of the syndicate including Dr Thanos and Steve Rogers for the offer of the academic software which was earlier rejected by the company. The fact of formation of a syndicate for the purpose of controlling a new company and marketing the software is beyond the best interests and purposes of the company Marvel Universe Pty Ltd. Further, Tony Stark indulges in contacting customers of the company which leads to the observation that the director has used the confidential information of the company. Conclusion (a) The conclusion from the previous discussions is that the directors has breached the general duties of the position. In terms of the remedies, the company can sue the director for the damages of breaching the duties. Issue (b) The issue in the case study is to identify is there is a breach of duty on the part of a director Tony Stark if he has resigned from the directorship of the company Marvel Universe Pty Ltd, prior to the formation of the Endgame Pty Ltd.
Rule (b) It is significant to note that there have been pronouncements in the Australian Corporate climate, where the courts have upheld the restraints of trade when the directors have access to the confidential information of the company. However, for the same there is a necessity of a deed being executed in between such a member/director of the company and the company. The restraint trade principles were pronounced in the case ofMiles v Genesys Wealth Advisers Limited(2009). Application (b) On the application of the above principles of the law to the given case scenario, it can be stated that there if there is a deed of release being executed between Tony Stark and the company Marvel Universe Pty Ltd, stating the restraint of trade, then the former director of the company cannot solicit the clients or compete with the business of the earlier company, by way of being the director in the new company. Conclusion (b) The discussions in the previous parts lead to the conclusion that if the director Tony Stark had already resigned from the company Marvel Universe Pty Ltd and there was a deed stating the restraint of trade, the duties of the director would still be breached till the time mentioned in such deed. Issue (c) The issue in the case study is to identify whether there is a breach of the duties on the part of Tony Stark as the director of the company Iron Man Pty Ltd, and the recognition of remedies if any. Rule (b) As stated, the general duties of the directors of Australia are stated in the sections 180, 181, 182 and 183 of the Corporations Act, 2001. It must be essentially noted that the directors of the companies are in a fiduciary relationship with the company and work in the best interests of the company and the stakeholders. One of the duties of the directors is thus to avoid the misappropriation of the assets of the company for the personal purposes. Section 182 specifically states that the directors must not improperly use the position in light of the conflict of the interests. If the directors are found to be guilty of the above conduct, they
would be attracting civil penalty and personal liability. The above principles were held in the case ofAustralian Securities and Investments Commission v Hellicar(2012). Application (c) The application of the above stated rules, lead to the noteworthy point that the director Tony Stark of the company Iron Man Pty Ltd has improperly used his position as a director by transferring cash to himself and his friend to the tune of the amount of $50000 and $ 650000 out of the funds of the company Iron Man Pty Ltd. The said amounts were transferred for the personal enrichment in the light of the conflict of the interest that is for the investment in the shares of the company Endgame Pty Ltd. The latter company has been controlled by the syndicate of which Tony Stark is a member. Hence, there is a breach of duty of the general duties of the director and application of the principle of case ofAustralian Securities and Investments Commission v Hellicarlead that directors would be personally liable for said amounts and damages. Conclusion (c) It can be concluded that there is a breach of duty of section 181 and section 182 of the Corporations Act and consequently directors would be personally liable. Answer (d) There have been prescribed mandatory general duties of the directors as mentioned in the sections 180, 181, 182, and 183, together with the several other duties mentioned in the various other sections of the Corporations Act, 2001. For instance, section 344 prescribes the duty for the director of the maintenance of the appropriate financial records and data by the company, section 191 prescribes for mandatory disclosure of the directors interests and , section 588G restricts insolvent trading practices. These sections encourage the corporate activity, because in present times there is huge significance of the interests of the various stakeholder groups of the company in the management of the affairs of the company. Further, the pronouncements in the numerous case laws by the judges have led to the observation that the companies must be managed in a manner by the directors in the light of the agency relationship. The duties of care, transparency and accountability must be adhered to at all times by the directors.
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References Australian Institute of Company Directors (2019).Duties of directors.Retrieved from: https://www.companydirectors.com.au/dutiesofdirectors Australian Securities and Investments Commission v Hellicar[2012] HCA 17 Miles v Genesys Wealth Advisers Limited[2009] NSWCA 25