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

Amount of compensation payable, Amount of compensation payable: In CLA...

Amount of compensation payable: In CLARK V URQUHART (44) the court explained that the amount of compensation payable under S.45 of the Act is calculated or measured in the sam

Differences members and creditors voluntary wind up, Differences members an...

Differences members and creditors voluntary wind up: main differences between a members' and a creditors' voluntary winding up are that : (a) in a creditors' voluntary win

What are the three main features of security, QUESTION 1 (a) What are t...

QUESTION 1 (a) What are the three main features of security? Define the different types of security that banks normally take to secure credit facilities (b) The Borrower Pro

Possessory lien, Possessory Lien Possessory Lien right of a party in p...

Possessory Lien Possessory Lien right of a party in possession about anothers goods to retain like the m as security about an obligation owned as in the owner.  Therefore the

What is the procedure for setting up a company, Question a) What is a...

Question a) What is a company? b) The Companies Act 2001, there shall be a Registrar of Companies. What are the functions of the Registrar? c) What is the procedure fo

Business law for commercial transactions, (These are short answer assignmen...

(These are short answer assignments; just a few paragraphs for each part is all that is required) Assignment 1: Discussion Questions In this assignment, you will research and appl

Advise alan and brian, Alan and Brian wished to obtain tickets to the Footb...

Alan and Brian wished to obtain tickets to the Football Cup Final at Hambley Park, but the owners of the stadium, Stein Ltd, did not wish to allow Alan and Brian to attend the mat

Estoppel - law of agency and partnership, Estoppel - Law of Agency and Part...

Estoppel - Law of Agency and Partnership Further the basis of estoppel was explained through the court like Spiro v. Lintern  in giving such; "Where a man is below a duty -

Analyse the extent of the criminal liability, One night Mr Kokintou and Ms ...

One night Mr Kokintou and Ms Mangetou, entered into a housethrough a window which was negligently left open by the owner of the house.  Whilst Ms Mangetou was keeping guard at the

Describe the definition of a valid contract, Question 1 It is significant ...

Question 1 It is significant for any person to know law as ignorance of law is no excuse. Modern USA law has been derived from some sources. Describe the primary and secondary sou

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