Law of Associations -Exam Notes

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PARTNERSHIP 5 COMPANIES: INCORPORATION - REGULATION, LEGISLATIVE 15 AUTHORITY (CHAPTER 2: THE HISTORICAL INSTITUTIONAL AND SOCIAL CONTEXT OF CORPORATE LAW) 15 THE AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION 16 THE AUSTRALIAN SECURITIES EXCHANGE 17 THE OWNERSHIP AND CONTROL OF CORPORATE AUSTRALIA 18 CORPORATE GOALS AND SOCIAL RESPONSIBILITIES 20 THEORIES OF THE CORPORATION 21 GLOBAL DIMENSIONS OF CORPORATE ACTIVITY 22 SOME CONSEQUENCES OF CORPORATE PERSONALITY (CH 4) 23 THE CORPORATE LIFE CYCLE PP92-121 40 COMPANY LAW - CORPORATE GOVERNANCE, MEETINGS AND DIRECTORS 69 COMPANY LAW - LIABILITY, DUTIES OF DIRECTORS 87 THE DIRECTOR’S DUTY TO ACT BONA FIDE FOR THE BENEFIT OF THE COMPANY AS A WHOLE 87 DIRECTOR’S INTERESTS IN TRANSACTIONS WITH THEIR COMPANY 96 ASIC APPROVAL – IS PROVIDED UNDER S 195 (3) OR REFER TO (4). 98 SECRET PROFITS: THE APPROPRIATION OF CORPORATE PROPERTY, INFORMATION AND OPPORTUNITY 98 CONTROL & MANAGEMENT - DEALINGS WITH OTHERS 107 OSTENSIBLE AUTHORITY 110 INDOOR MANAGEMENT RULE 111 COMPANY LAW – SHAREHOLDERS, SHARES AND DIVIDENDS 116 COMPANY LAW – REMEDIES FOR SHAREHOLDERS AND OTHERS 142 THE PROTECTION OF MINORITY SHAREHOLDERS IN OVERVIEW 144 EQUITABLE LIMITATIONS UPON THE VOTING POWER OF THE MAJORITIES 145 THE STATUTORY DERIVATIVE ACTION 170 SHAREHOLDERS PERSONAL ACTION 173 COMPULSORY LIQUIDATION REMEDIES 175 THE STATUTORY REMEDY FOR OPPRESSION 178 LAW OF ASSOCIATIONS – CASES AND STATUTES 177 TOPIC 1: UNINCORPORATED NON-PROFIT ASSOCIATIONS 177 NON-LEGAL ENTITY STATUS 177 THE ROLE OF THE CONSTITUTION: 178 MEMBER LIABILITY: 178 GIFTS AND PROPERTY: BACON V PIANTA 178 INTERNAL MANAGEMENT & JUDICIAL INTERVENTION: 178 THE GENERAL RULE OF NON-INTERVENTION 178 EXCEPTIONS WHERE COURTS WILL INTERVENE 179 PROFESSIONAL AND SPORTING ASSOCIATIONS 179 CONTRACTS AND UNINCORPORATED NON-PROFIT ASSOCIATIONS 180 LIABILITY IN TORT 181 TOPIC 2: INCORPORATED NON-PROFIT ASSOCIATIONS AND SOME INCORPORATED BODIES 181 OBJECTS AND REGISTRATION 181 FEATURES AND MANAGEMENT 182 EXTERNAL ADMINISTRATION AND LIABILITY 182 CORPORATIONS LEGISLATION (SS 95–97): 182 THE CORPORATIONS (ABORIGINAL AND TORRES STRAIT ISLANDER) ACT 2006 (CTH) 182 THE AUSTRALIAN CHARITIES AND NOT-FOR-PROFITS COMMISSION ACT 2012 (CTH) 183 3. INTERACTION BETWEEN THE ACTS 183 TOPIC 3: THE LAW OF PARTNERSHIP 183 STATUTORY DEFINITION 183 GENERAL LIMIT 184 FUNDAMENTAL ELEMENTS (SECTION 1) 184 KEY JUDICIAL AUTHORITIES ON EXISTENCE 184 FIDUCIARY OBLIGATIONS: 185 TESTING THE ELEMENTS 185 STATUTORY RULES (SECTION 2) 185 BUSINESS "IN COMMON" VS. PRELIMINARY ACTS 186 SUBSTANCE OVER FORM (OVERRULING INTENTION) 186 STATUTORY RULES (SECTION 2) 186 RELATIONSHIP OF PARTNERS TO OUTSIDERS 186 LIABILITY FOR DEBTS AND OBLIGATIONS (SECTION 9) 186 THE SCOPE OF AUTHORITY (SECTION 5 ELEMENTS) 187 KNOWLEDGE AND BELIEF OF THE THIRD PARTY 187 LIABILITY IN TORT (SECTIONS 10–13) 187 INCOMING AND OUTGOING PARTNERS (SECTIONS 17–18) 188 LIABILITY BY ESTOPPEL / "HOLDING OUT" (SECTION 14) 188 RELATIONSHIP OF PARTNERS TO EACH OTHER (SECTIONS 19–31) 188 FIDUCIARY PRINCIPLES: 188 STATUTORY DEFAULT RULES (S 24): 189 TOPIC 4: COMPANY LAW - A COMPANY AS A CORPORATE ENTITY AND ITS LIFE CYCLE 189 TYPES OF COMPANIES 189 THE SEPARATE LEGAL ENTITY DOCTRINE 189 EFFECT OF REGISTRATION (SS 124–125) 190 THE COMPANY AS AN EMPLOYER 190 THE COMPANY AS A PROPERTY OWNER 191 MITIGATING THE RIGOUR OF THE SEPARATE LEGAL ENTITY DOCTRINE 191 THE MODERN TEST: EVASION VS. CONCEALMENT 191 FRAUD, SHAM, AND "FAÇADE" 191 AGENCY AND CONTRACTUAL OBLIGATIONS 192 AGENCY AND THE "SIX TESTS" 192 GROUPS OF COMPANIES: SINGLE ECONOMIC ENTITY? 192 KEY DISTINCTION 193 DIRECT DUTY VS. VICARIOUS LIABILITY 193 IDENTIFYING INSOLVENCY: INDICATORS 194 JUDICIAL EVOLUTION OF DIRECTOR LIABILITY 194 EXPECTATION OF PAYMENT: 194 STATUTORY DEFENCES (S 588H) 194 MODERN DEVELOPMENTS: SAFE HARBOUR (S 588GA) 195 HOLDING COMPANY LIABILITY (S 588V) 195 TOPIC 5: HOW DO COMPANIES RAISE MONEY TO FUND THEIR OPERATIONS? 195 TYPES OF DEBT AND EQUITY 195 TOPIC 6: COMPANY LAW – THE LAW OF CORPORATE GOVERNANCE 196 SOURCES OF GOVERNANCE RULES 196 THE STATUTORY CONTRACT (S 140) 196 KEY LIMITATIONS OF THE CONTRACT: 196 MEMBERSHIP AND SPECIAL CONTRACTS 197 AMENDING THE CONSTITUTION (S 136) 197 LEGAL PRINCIPLES AND BOARD STRUCTURE 198 REASONABLE NOTICE OF MEETINGS: 198 KEY PROCEDURAL RULES 198 BOARD VS. MEMBER AUTHORITY 198 O STATUTORY VALIDATION OF IRREGULARITIES (SECTION 1322) 199 DOCTRINE OF UNANIMOUS ASSENT (DUOMATIC PRINCIPLE) 199 NATURE AND FUNCTION OF DUTIES 199 WHO IS SUBJECT TO THESE DUTIES? 200 TO WHOM ARE DUTIES OWED? 201 DUTY TO ACT IN GOOD FAITH AND THE COMPANY'S INTERESTS (S 181) 201 CORPORATE GROUPS 201 DUTY TO ACT FOR A PROPER PURPOSE 201 STATUTORY AND GENERAL LAW DUTIES OF CARE: S 180 202 THE MODERN STANDARD OF CARE 202 HIGH-STAKES DISCLOSURE AND "STEPPING STONES" 202 THE BUSINESS JUDGMENT RULE (S 180(2)) 203 STATUTORY BUSINESS JUDGMENT RULE: S 180(2) 203 POWER TO DELEGATE (S 198D) 204 STATUTORY RELIANCE (S 189) 204 JUDICIAL PRINCIPLES: ASIC V ADLER [2002] 204 CONFLICTS OF INTEREST AND SPECIAL CASES 205 STATUTORY DISCLOSURE AND PARTICIPATION (SS 191–195) 205 IMPROPER USE OF POSITION OR INFORMATION (SS 182–183) 205 RELATED PARTY TRANSACTIONS (CHAPTER 2E) 206 RECENT JUDICIAL GUIDANCE 206 CIVIL REMEDIES FOR BREACH OF FIDUCIARY DUTY 206 WHO CAN APPLY? (SS 1317J & 1317P) 206 RELIEF FROM LIABILITY (SS 1317S & 1318) 207 TIME LIMITS (S 1317K) 207 LIMITATION PERIODS AND "NEW" CLAIMS 207 NOTE: LIABILITY OF THIRD PARTIES 207 THE TWO LIMBS OF BARNES V ADDY 207 DEFINING "KNOWLEDGE" 208 APPLICATION IN MAJOR CORPORATE COLLAPSES 208 STATUTORY ACCESSORIAL LIABILITY 208 CURING BREACHES OF DUTY – EXONERATION BY THE COURT - RELIEF FROM CONSEQUENCES OF BREACH 208 RELIEF FROM LIABILITY BY THE COURT (SS 1317S & 1318) 208 RATIFICATION BY MEMBERS 209 THE OPPRESSION REMEDY (PART ) 209 COURT ORDERS FOR OPPRESSION (S 233) 210 OPPRESSION AND EQUITABLE CONSTRAINTS 210 CLASS RIGHTS (PART ) 210 INSPECTION OF BOOKS (PART ) 210 STATUTORY INJUNCTIONS (S 1324) 210 JUST AND EQUITABLE WINDING UP (S 461) 211 SUMMARY OF REMEDIES 211 DERIVATIVE ACTIONS 211 THE STATUTORY REQUIREMENTS (S 237) 211 JUDICIAL INTERPRETATION OF THE CRITERIA 212 GOOD FAITH (S 237(2)(B)): 212 BEST INTERESTS OF THE COMPANY (S 237(2)(C)): 212 SERIOUS QUESTION TO BE TRIED (S 237(2)(D)): 212 COSTS AND FUNDING (S 242) 212 THE "GOOD FAITH" REQUIREMENT 213 OVERLAP WITH OPPRESSION 213 TOPIC 7: COMPANY LAW – THE LAW OF CORPORATE LIABILITY 214 CORPORATE CAPACITY AND "ACTING AS" THE COMPANY 214 AUTHORITY TO BIND THE COMPANY (PART ) 214 ACTUAL VS. APPARENT AUTHORITY 214 STATUTORY ASSUMPTIONS (SS 128–129) 215 THE INDOOR MANAGEMENT RULE AND THE CORPORATIONS ACT, SS 126, 127, 128-130 215 THE COMMON LAW: ROYAL BRITISH BANK V TURQUAND 215 THE STATUTORY REGIME (SS 128–130) 215 LIABILITY IN TORT: ATTRIBUTION AND PERSONAL LIABILITY 216 LIABILITY IN CRIMINAL LAW 217 THE COMMONWEALTH CRIMINAL CODE (PART ) 217 CORPORATIONS ACT PENALTIES 217