Misfeasance - winding up, Business Law and Ethics

Assignment Help:

Misfeasance:

Under s.324, misfeasance proceedings may be instituted against a director, promoter, manager, liquidator or "officer" (including an auditor) of a company in liquidation either to recover the company's property from him or to claim compensation for the loss to the company caused by his misfeasance.

The most obvious case of misfeasance is where a director or other officer of the company is found to have misappropriated property of the company.  He can be compelled by misfeasance proceedings to return it.  His conduct may also be criminal misappropriation of property for which he can be prosecuted.

The other type of misfeasance case is where the company has suffered loss owing to the incompetence or neglect of a director or other officer.  It is not however easy to establish that there has been breach of a fiduciary duty such that an order should be made (on grounds of misfeasance) for payment of compensation.  For some lesser default the liquidator could bring an action for negligence.

In the context of misfeasance proceedings an auditor is exceptionally an "officer" who can be liable: he is not an "officer" in any other situation since he has no management functions.

A receiver is not an "officer" who can be held liable (if the company later goes into liquidation) for misfeasance.

                                      Case. RE B JOHNSON & JOHNSON CO (BUILDERS) (1955)

Misfeasance proceeds were brought against a receiver on the ground that he had in his management of the company's business taken decisions which were "detrimental from the company's point of view", eg. closing down parts of its business. 

Held:

A receiver is a representative of the secured creditors by or for whom he is appointed.  He is not an officer of the company who can be liable for misfeasance. If however a receiver does not act bona fide (ie. honestly) the company might have a claim against him but not misfeasance.


Related Discussions:- Misfeasance - winding up

Managing director - company management, Managing Director: In Ellis v ...

Managing Director: In Ellis v Bailey and Company (East Africa) Limited (76) it was stated that "without specific authority in the articles directors may not appoint one of the

Recommendations for addressing phoenix activities, Recommendations for addr...

Recommendations for addressing phoenix activities Over the past two decades there have been a significant range of proposals for addressing phoenix activity. Most of these opt

Explain the elements of governmental authority, Explain the elements of gov...

Explain the elements of governmental authority The theme of these draft laws is mentioned in Article 1, which says that every internationally wrongful act of a State entails th

Explain about international civil aviation organization, What is Internatio...

What is International Civil Aviation Organization The Chicago Convention on International Civil Aviation 1944 governs and regulates the laws of air space and outer space. Furth

Define the term - agenda amendments, Define the term - agenda amendments ...

Define the term - agenda amendments The solution to the above lies in the rules of policy or agenda amendments and the real weapon in the hands of the voter is their ability t

Directors liability, Directors liability: This was fraudulent preferen...

Directors liability: This was fraudulent preference and the bank must repay the sums received. The directors' liability under their guarantee to the bank then revived. A paym

Statutory power - mergers and winding up, Statutory power - mergers and win...

Statutory power - mergers and winding up: It is usual to proceed under s.207 as there are technical difficulties over s.300 procedure.  The liquidator's powers to reach a comp

The policy process - advocacy coalitions and policy learning, The policy pr...

The policy process - Advocacy coalitions and Policy learning The mobilization of attention is what policy advocacy is primarily about. And the systematic mobilization of attent

Differences between cheques and other bills of exchange, Differences Betwee...

Differences Between Cheques And Other Bills of Exchange However the following are some of such the differences between like cheques and such other bills of exchange: like;

Define your point of view about international legal relation, Define your p...

Define your point of view about international legal relation. International legal relations: International law covers the matters which may occur between countries not li

Write Your Message!

Captcha
Free Assignment Quote

Assured A++ Grade

Get guaranteed satisfaction & time on delivery in every assignment order you paid with us! We ensure premium quality solution document along with free turntin report!

All rights reserved! Copyrights ©2019-2020 ExpertsMind IT Educational Pvt Ltd