DIRECTORS’ DUTIES

Lipton, Herzberg & Welsh, Understanding Company Law chapters 13.2 – 13.7

General Principles

I Ramsay “The Corporate Governance Debate and the Role of Directors’ Duties” chapter 1, Corporate Governance & the Duties of Company Directors (I. Ramsay ed)

CAMAC, Guidance for Directors Report 2010

Who is a director or officer?

Lipton, Herzberg & Welsh, Understanding Company Law chapter 12 [12.10-12.20], [13.0.20]-[13.0.23].

Section 9 of the Corporations Act defines a director as a person appointed to that position. The definition also regards ‘a de facto director’ or a ‘shadow director’ as a director for purposes of the Corporations Act even if that person has not been validly appointed as a director.

M Hobson “The Law of Shadow Directorships” (1998) 10 Bond Law Review 184.

R. Carroll, “Shadow Director & Other Third Party Liability for Corporate Activity” chapter 10 p 162, Corporate Governance & the Duties of Company Directors (I. Ramsay ed)

S. Watson & C. Noonan, “Defining Directorship’”

The Corporations Act imposes duties on ‘officers of a corporation’.  Under s 9 ‘officers of a corporation’ include company executives who hold senior positions below board level.

CAMAC,  Corporate Duties Below Board Level 2006

Duty to act in good faith in the best interests of the company

Lipton, Herzberg & Welsh, Understanding Company Law chapter 13.2

R Teele Langford and I Ramsay “Directors’ Duty to Act in the Interests of the Company: Subjective or Objective?” 2015

Position of nominee directors

Lipton, Herzberg & Welsh, Understanding Company Law chapter 13.2 [13.2.55]-[13.2.85]

R P Austin, “Representatives and Fiduciary Responsibilities – Notes on Nominee Directorships and Like Arrangements” (1995) 7 Bond Law Review 19.

CASAC, Report to the Minister for Financial Services and Regulation on Sections 181 and 189 of the Corporations Law (October 2000)

E W Thomas, “The Role of Nominee Directors and the Liability of their Appointors” chapter 7, Corporate Governance & the Duties of Company Directors, I Ramsay ed

Duty to non-shareholder stakeholders

Lipton, Herzberg & Welsh, Understanding Company Law [13.2.135 ]

CAMAC, The Social Responsibility of Corporations 2006

Parliamentary Joint Committee on Corporations and Financial Services Corporate Responsibility: Managing Risk and Creating Value June 2006 esp Chapters 2 and 3

P Dermansky “Should Australia Replace s 181 of the Corporations Act with Wording Similar to s 172 of the Companies Act 2006 (UK)?” (2009)

S Marshall & I Ramsay, “Stakeholders and Directors’ Duties: Law, Theory & Evidence

P Davies “Enlightened Shareholder Value and the New Responsibilities of Directors” (2005)

T Bostock “To Whom are the Duties of a Company Director Owed?” (2000)

 

Duty to exercise powers for proper purposes

Lipton, Herzberg & Welsh, Understanding Company Law [13.2.145 – 13.2.230]

Fridman “An Analysis of the Proper Purpose Rule“. (1998) 10 Bond Law Review 164.

 

Conflicts of interest

Lipton, Herzberg & Welsh, Understanding Company Law chapter 13.3

R Teele Langford and I Ramsay “Conflicted Directors: What is Required to Avoid a Breach of Duty?” (2014)

I Ramsay & G Stapledon, “Directors’ Conflicts – Empirical Study” (2000)

D Jessep, J Farrar & S Watson, “Related Party Transactions in New Zealand: An Empirical Study of a Flawed System” (2012)

J Farrar & S Watson, “Self Dealing and Related Party Transactions – History, Policy & Reform” (2011)

J Farrar “A Note on Dealing with Self Interested Transactions by Directors” (2000) 12 Bond Law Review 106

 

Duties of care, diligence & skill

Lipton, Herzberg & Welsh, Understanding Company Law chapter 13.4

A Greenhow “The Statutory Business Judgment Rule: Putting the Wind in Directors’ Sails” (1999) 11 Bond Law Review 33

Justice Michael Kirby “The Company Director: Past, Present and Future” (1998)

G Flint “Non-Executive Directors’ General Law Duty of Care and Delegation of Duty: But Do We Need a Common Law Duty of Care?” (1997) 9 Bond Law Review 198

A Lumsden, “The Business Judgment Defence – Insights from ASIC v Rich” (2010)

J Farrar, “The Duty of Care of Company Directors in Australia & New Zealand” chapter 6, Corporate Governance & the Duties of Company Directors, I Ramsay ed

Baxt, The Duty of Care of Directors: Does it Depend on the Swing of the Pendulum?’ chapter 7, Corporate Governance & the Duties of Company Directors, I Ramsay ed

Redmond, “Safe Harbours or Sleepy Hollows: Does Australia Need a Statutory Business Judgment Rule?” chapter 10, Corporate Governance & the Duties of Company Directors, I Ramsay ed

J Hill, “Centro and the Monitoring board – Legal Duties Versus Aspirational Ideals in Corporate Governance” (2012)

K Barker “Economic Loss and the Duty of Care: a Study in the Exercise of Economic Justification” (2009)

 

Directors of insolvent companies

Lipton, Herzberg & Welsh, Understanding Company Law chapter 13.5

P James, I Ramsay & P Siva “Insolvent Trading: an Empirical Study” (2004)

I Ramsay ed, Company Directors’ Liability for Insolvent Trading A collection of 8 essays on various aspects of insolvent trading.

A Keay, “Directors Duty to Take Into Account the Interests of Creditors: When is it Triggered?” [2001] Melbourne University Law Review 11 and 315

H Anderson, A O’Connell, I Ramsay, M Welsh and H Withers “Defining and Profiling Phoenix Activity” (2014)

ASIC RG 217 Duty to prevent insolvent trading: Guide for directors

ASIC National Insolvent Trading Program Report

Australian Government Treasury “Action Against Fraudulent Phoenix Activity: Proposals Paper” (2009)

H Anderson, “Creditors’ Rights of Recovery: Economic Theory, Corporate Jurisprudence and the Role of Fairness” (2006) 30 Melb Uni LR 1

A Keay & H Zhang, “Incomplete Contracts, Contingent Fiduciaries and a Director’s Duty to Creditors

D Morrison, ‘The Addition of Uncommercial Transactions to s 588G and its Implications for Phoenix Activities”

 

Remedies for breach of duty

Lipton, Herzberg & Welsh, Understanding Company Law chapter 13.6

G Gilligan, H Bird & I Ramsay, “Regulating Directors’ Duties: How Effective are the Civil Penalty Sanctions in the Australian Corporations Law?” (2006)

G Gilligan, P Ali, A Godwin, J Hedges & I Ramsay “An Analysis of Penalties under ASIC Administered Legislation: Scoping the Issues” (2015)

M Welsh, ‘The Use of Civil Sanctions for Breaches of Corporate Law” (2007)

Welsh, “Civil Penalties and Responsive Regulation: The Gap Between Theory and Practice” (2009) 33 Melb Uni LR 908

CAMAC Report, Personal Liability for Corporate Fault  (2006)

Commonwealth Treasury, Review of Sanctions in Corporate Law (2007)

CAMAC Report, Personal Liability for Corporate Fault (2006)

 

Exoneration and relief for breach of duty

Lipton, Herzberg & Welsh, Understanding Company Law chapter 13.7

S Wong, “Forgiving a Director’s Breach of Duty: a Review of Recent Decisions

CAMAC Report, Directors and Officers Insurance (2004)