ACCOUNTING-Melbourne Pty Ltd has one company secretary, Jill and four directors

QUESTION

VICTORIA
UNIVERSITY

FACULTY
OF BUSINESS

SCHOOL
OF LAW

BLO 2205 CORPORATE LAW ASSIGNMENT Semester 2 2012

Melbourne
Pty Ltd has one company secretary, Jill and four directors: William, Jack,
Susan and Sarah. William is the managing director of the company while the rest
of the directors are non executive directors of the company. Susan is an
experienced business woman with other business interests and she is not
involved in the running of the company. She leaves the running of the company
to William and relies on him. She believes that if there is any problem in the
company William will let her know. Sarah is William’s wife and she never
attends any company board meetings. Sarah always relies on William and never
questions his management of the company because she trusts him implicitly in
relation to all company matters. Jack has always been actively involved in the
running of the company business until July 2008 when he was diagnosed with a
heart condition when he became very ill. Following his illness Jack was unable
to attend Board meetings and could no longer carry out his main function which
was to monitor the financial situation of company. In June 2009 Jack intended
to resign from his position as a director but was hospitalised and forgot to lodge
his resignation with the company and ASIC.

In June 2009 the financial position of the company
worsens. Despite being fully aware of the company’s deteriorating financial
position William does not inform the other directors of this as he does not
wish to worry them. If ever questioned about the company’s financial
performance William always stated that the company’s financial position was
solid and he distributed to the board members a summary report confirming this.

As a result of this favourable report, the board of
directors decides to declare a dividend to members. Susan was absent from the
meeting. Shortly after the dividend was paid the company went into liquidation.
The liquidator discovers that the company was not keeping proper financial records
since Jack’s illness.

REQUIRED:

Advise
whether there have been any breaches of the directors’ duties in relation to
insolvent trading. Also advise whether any defences are available to the
directors and what penalties may be imposed upon them if they are found to have
breached the insolvent trading provisions under the Corporations Act 2001.

(Total
of 30 marks)

ONE ANSWER FORMAT

ISSUE – means the legal question
which has to be resolved based on the facts of the question. The issue may be narrowed by eliminating
other possible contentious elements – allowing you to concentrate on the more
controversial aspects of the problem.
The issue usually dictates the most appropriate remedy.
RULE – the relevant law or key legal principle which would
resolve the problem. the rule was backed
up by an authority that is, the place where that rule was authoritatively
stated – normally the court and the report that decision was reported in.
APPLICATION/Analysis Apply relevant law to the facts of the
problem. Break the rule down into its constituent elements and attempt to
satisfy each element in turn. Look at
previous decisions, that is, precedent (previous cases). The application stage is where you argue and
put forward a balanced case, that is, discuss both sides of an argument.
CONCLUSION
– it is necessary to come to a conclusion about the issues and arguments you
have considered in your answer.

SUGGESTED REFERENCES:
Lipton, P., and Herzberg, A., Welsh, M, Understanding Company Law,
16 edition Thomson Reuters 2012.
Students should
remember to look at the Lipton and Herzberg website.
.lipton-herzberg.com.au/”>www.lipton-herzberg.com.au

Harris, J. Hargovan, A.
Adams, M. Australian Corporate Law LexisNexis Butterworths 3rd
edition, 2011.

Austin R.P. & Ramsay, I., Ford’s Principles of Corporations Law,
Butterworths, Australia, 14th edition, 2010.

Baxt, R., and Fletcher, K.L., Fridman, S., Corporations and
Associations Cases and Materials on, Butterworths, Australia, 10th edition,
2008.

Hanrahan, P., Ramsay I., Stapledon G., Commercial Applications of
Company Law. CCH 11th edition 2010

Redmond, P., Companies and Securities Law – Commentary and Materials,
Law Book Co., Sydney, 5th, 2009.

Ciro T, Symes C, Corporations Law in Principle LBC Thomson
Reuters, Sydney, 8th edition 2009

Li, G, Riley, S. Applied Corporate Law: A Bilingual Approach LexisNexis 1st Edition 2009.

Cassidy, J. Corporations Law Text and Essential Cases. Federation
Press, 3rd edition Sydney 2010

Harris, J. Corporations Law, LexisNexis Study Guide 1st
edition 2008

Harris, J. Butterworths Questions and Answers Corporations Law:,
LexisNexis, 3rd Edition Sydney 2009.

Fisher S, Anderson C, Dickfos, Corporations Law – Butterworths Tutorial
Series, 3rd Edition Butterworths, Sydney 2009

Tomasic,R.,Jackson,J.,Woellner,R., Corporations
Law – Principles, Policy and Process 4th Edition Butterworths., Sydney,
2002.

Tomasic, R. Bottomley,S. McQueen,R. Corporations Law in Australia, 2nd
Edition Federation Press, Sydney 2002.

Latimer, P, Australian Business Law CC, 2012 Edition.

Vermeesch,R B, Lindgren, K E, Business Law of Australia
Butterworths, 12th Edition, 2011.

Pentony, Graw, Lennard & Parker, Understanding Business Law
4th ed Butterworths, 2011.
Davenport, S and Parker D, Business and Law in Australia, Thomson
Reuters, 2012

Fitzpatrick, Synes, Veljanovski, Parker, Business and Corporations Law;
LexisNexis 1st edition 2011

Parker, Clarke, Veljanovski, Posthouwer, Corporate Law, Palgrave 1st
edition 2012

Crosling G M, Murphy H M, How to Study Business Law 4th Edition,
Butterworths, 2009.

·
See chapter 13 in
Lipton,Herzberg & Welsh 16th Edition

Submission: Essays must be
submitted on or before monday 24th of
September 2012 by 5.00pm. No
extensions will be considered unless a request is made in writing, before the due date, stating the reason for the
request. Marks will be deducted for essays that are submitted after the due
date.

The assignment should be written in
your own words. A hard copy must be submitted. As well an electronic copy is to
be submitted via the Turnitin link on the webct home page for the subject. The
Turnitin copy will be the ‘time mark’ for the purpose of the confirmation of
the date and time of submission.

Student must put their tutors name on
the assignment and must not attach the Turnitin report to their
assignment.

All assignments must be in print form
and submitted with a signed School of Law cover sheet to the assignment box
located outside the School of Law Office, Level 3, Building A by 5.00 pm on the
due date. Students must also submit an online copy of the assignment via WebCT
by the due date. The online submission will be regarded as verification of
submission by the due date. However, only the hard copy assignments that are
submitted will be marked..
Presentation
Readable connected prose NOT point form summaries
Accurate spelling, grammar,
punctuation, paragraph construction. Proofreading
Effective use of HEADINGS
Consistent and accurate acknowledgment
of sources using a recognised style – both in relation to in-text referencing
and bibliography (Note the warning about plagiarism below).

The papers will be marked on the
following basis:

Criteria

Percentage of marks
awarded

1.
Depth
of understanding of the topic and identification of relevant issues.
2.
Awareness
accuracy of the nature and content of relevant law.
3.
Clarity
and coherence of the analysis and quality of discussion and argument.

50
per cent

Writing and communication skills

30
per cent

Research skills

20
per cent

Referencing
In law, the preferred referencing style is
footnoting.Students are reminded that they will lose marks if they
merely reproduce passages copied word for word from texts and other references
without attempting to convey information and express ideas in their own
words. Of course this does not preclude
the intelligent use of relevant quotations in respect of which proper
references are given.

It should be noted that the references
must be given in respect of all
material included in the essay.
References are not to be confined to situations in which the writer is
citing a particular case or using a direct quotation. For example, if the writer is putting forward
a legal proposition or using a statement or idea drawn from a specific source,
that source must be acknowledged by reference.
It is essential that
references be properly acknowledged at all times and marks will be deducted if
this is not done. References may be
acknowledged by numbering them consecutively throughout the essay and by giving
details of the references by way of numbered footnotes at the bottom of the
relevant page, or by way of a list at the end of the essay. Note
carefully that the edition
and page numbers of
references must be given: it
is not sufficient to merely give the name and author of the work. When referring to cases, the full case citation
must be given. In addition, a bibliography should always be
included at the end of the essay.
Students should contact the lecturer if they are in any doubt as to the
requirements for the giving of references.
Referencing:Footnotes or end-notes must be used to acknowledge the
source or sources of information contained in the assignment. Footnotes are preferred, but either will be
accepted.In regard to the acknowledgment of
references and matters of style and presentation, students are referred to:
1. Australian
Guide to Legal Citation –.For all referencing
questions for your assignment or any legal writing See: Australian Guide to Legal Citation:.
See: .vu.edu.au/library/referencing/files/AGLC2.pdf”>http://w2.vu.edu.au/library/referencing/files/AGLC2.pdf

Also
see Monash Legal Abbreviations for abbreviations of legal publications.
See:
http://www.lib.monash.edu.au/legal-abbreviations

2. G.R.E.
Phillips and L.H. Hunt, Writing Essays and Dissertations,
3. G Campbell, The
Little Black Book. (available in the bookshop).
Students are required to pay careful
attention to spelling, expression, and legibility in the writing of their
essays. There should be a margin on the
left hand side of each page. Students
should keep a copy of the
essay submitted.
Plagiarism
Plagiarism
is taking another person’s ideas and presenting them as your own, that is,
without acknowledging the original source.
You must acknowledge your sources of information including both direct
and indirect quotations. A direct
quotation must always be in inverted commas or in another style that indicates
that it is a direct quotation. Your
assignment must not consist of only quotations.
Plagiarism
is regarded as a form of theft or cheating.
It is a serious offence and will be dealt with seriously, including a
fail grade in this subject.
Students
should use the Turnitin software to check their assignments for poor
referencing and plagiarism. Software such as “turn it in” and others are
available.
Format
Typed
preferably and double-spaced
·
Title
page with student name and number, Subject code and name, topic
·
A4
paper
·
Sequential
page numbering
·
No
folders
Assignments
must be typed (word processor), using one side of the page only and
leaving a wide margin. The word limit is
2,000 words.
Late Submissions
Students
who believe that they have a genuine case for extension of time must lodge a
formal written application for such an extension, stating relevant grounds and
attaching supporting documentation. Such
application must be made at least seven (7) days before the due date for
submission. Should the extension be
granted then a new deadline will be set.
Late submissions of the assignment will
incur a penalty mark of one (1) mark per day.Marks may be deducted in respect of essays which are excessive in
length.

The assignment will have a value of
30% for final assessment.

ANSWER:

REQUEST HELP FROM A TUTOR