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

Statutory task force on phoenix activity, Q. Statutory task force on phoeni...

Q. Statutory task force on phoenix activity? A long term option could be the establishment of a statutory task force on phoenix activity. This could be supported by all the rel

What forces the policy maker to obey the law, What forces the policy maker ...

What forces the policy maker to obey the law When law directs a policy maker to carryout policy, what forces the policy maker to obey the law? When there is no restriction from

Registered companies, Registered Companies: A registered company is fo...

Registered Companies: A registered company is formed by registration under the Companies Act. It is this type of company that people usually have in mind when they talk of "a

Explain the difference between liquidation and receivership, QUESTION 1 ...

QUESTION 1 The principle of law set out in Salomon v Salomon & Co. Ltd is not always applied. Discuss when the judiciary or statutory provisions will not take into account of

Revival of a dissolved company, Revival of a Dissolved Company: Liquid...

Revival of a Dissolved Company: Liquidation leads on to dissolution of the company.  The court may, however, within the ensuing two years order that dissolution be rescinded a

Duties of the principal - agency law, Duties of the Principal - Agency Law ...

Duties of the Principal - Agency Law However the duties of the principal for the agent are like: Remuneration Whether to pay the agreed commission where it becomes du

Determine the term - cyclic majority voting, Determine the term - cyclic ma...

Determine the term - cyclic majority voting The cyclic majority voting, a problem first recognized by Marquis de Condorcet in 1785, the indeterminacy of voting process, has bee

The provisions of the law relating to a lost bill of exchang, QUESTION 1 ...

QUESTION 1 (a) By referring to the features documentary credits, explain how such an instrument can enhance and facilitate business activities (b) Discuss the applicability

Discuss the importance of the wto, QUESTION 1 The global business secto...

QUESTION 1 The global business sector has been expanding rapidly in Mauritius. Discuss the role of the FSC in this sector QUESTION 2 Tony is the director of Xservices L

What is the dispute resolving mechanism, What is the dispute resolving mech...

What is the dispute resolving mechanism Obligation to follow a treaty between states arises only when it has been concluded in a written form. Moreover, a treaty must be in a

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