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

Fraudulent trading, Fraudulent Trading: Section 323 provides that if, ...

Fraudulent Trading: Section 323 provides that if, in the course of the  winding up of a company, it appears that any business of the company has been carried on with intent to

Determine the schemes of michael mandelbaum, Determine the schemes of Micha...

Determine the schemes of Michael Mandelbaum Michael Mandelbaum has offered a two fold scheme, the inside-out and outside-in approach. According to inside-out approach, a natio

Three main categories of international humanitarian laws, There are three m...

There are three main categories of international humanitarian laws: 1) The Hague conventions 2) The Geneva conventions 3) The additional protocols

Types of precedents, Types of Precedents There a precedent may be as; ...

Types of Precedents There a precedent may be as; A binding precedent here judge must tag along whereas he approves of it or not. Hence it is excludes his judicial discr

Loans given for necessaries - void contracts, Loans Given for Necessaries -...

Loans Given for Necessaries - Void Contracts       It may happen that an infant asks someone to a loan for buy necessaries like school uniforms or textbooks.  Therefore the per

Some provisions of the factories act, Some provisions of the Factories Act ...

Some provisions of the Factories Act and its amendments are given below. 1.   These provisions relate mainly to the health, safety and welfare of the workers in industry. 2.

Court, why is it important for a lawyer to address the victim

why is it important for a lawyer to address the victim

Agency law - agency and partnership, Agency Law - Agency and Partnership ...

Agency Law - Agency and Partnership Sources of Agency Law However the law of agency in the US is based on the common law rules that have been developed through the Engl

Distribution of surplus assets, Distribution of Surplus Assets: If the...

Distribution of Surplus Assets: If the debts are paid in full the liquidator should apply what remains in repayment of capital paid on shares and then distribute any residue t

Best arguments to support the objections, A man is standing at a bar. ...

A man is standing at a bar.  His friend Sam says to him, "Jim, it was Claude who scratched your car and slashed all your seats." Two days later Jim is found beaten i

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