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

Explain self determination, Explain Self determination Self determinat...

Explain Self determination Self determination is actually the foundation of United Nations (UN) Charter. It is defined as a right of people to determine and to choose their ow

Undischarged bankrupts, Undischarged Bankrupts: S.188 provides that if...

Undischarged Bankrupts: S.188 provides that if an undischarged bankrupt acts as director of any company without leave of the court he shall be liable to imprisonment for a ter

Payee - negotiable instruments, Payee - Negotiable Instruments Some th...

Payee - Negotiable Instruments Some the payee like: (i) Section 7(1) gives such where a bill is not payable for the bearer, such the payee must be named otherwise indicated

Impact on businesses of phoenix activity, Q. Impact on businesses of phoeni...

Q. Impact on businesses of phoenix activity? In 1996 the Australian Securities Commission (ASC), published a report on phoenix activity titled Phoenix Activities and Insolvent

Types of transaction - reconstructions , Types of transaction - reconstruct...

Types of transaction - reconstructions: It will be seen that methods (a) and (b) relate to specific types of transaction.  They can only be used in those transactions.  The fl

Common law rules, Common law rules: The above common law rules have be...

Common law rules: The above common law rules have been modified by the following statutory provisions:  VOID ALLOTMENTS a) S.50 A renders an allotment void if it was mad

State article 22 of international law, State Article 22 of international la...

State Article 22 of international law Article 22 declares the premises of the mission as inviolable and agents of receiving State are not to enter them without the consent of

Delays and inadequate remedies - equity, Delays: However certain stand...

Delays: However certain standard defences knows as "essoins" caused considerable delay earlier than a case could be heard.  Now for a certain condition like the hearing of a c

Why international law is very different from domestic law, Why Internationa...

Why International law is very different from domestic law International law is very different from domestic law because in domestic disputes there are Courts to adjudicate upon

High court registrars, High Court Registrars Therefore these are magis...

High Court Registrars Therefore these are magistrates that who in addition to judicial functions perform administrative responsibility. Thus they are appointed through the Jud

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