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ISBN 10: 0730335925
ISBN 13: 978-0730335924
Author:Alex Wong
A detailed understanding of Company Law in Australia, with major reference to Corporations Act 2001.
Company Law An Interactive Approach 1st Table of contents:
Chapter 1 Business organisations
Introduction
1.1 Choosing a business structure
1.1.1 Sole trader
1.1.2 Partnership
1.1.3 Joint venture
1.1.4 Trust
1.1.5 Company
1.1.6 Cooperative
1.1.7 Incorporated association
1.1.8 Hybrid business structures
1.2 Sole traders
1.2.1 What is a sole trader?
1.2.2 Advantages of being a sole trader
1.2.3 Disadvantages of being a sole trader
1.3 Partnerships
1.3.1 What is a partnership?
1.3.2 Advantages of a partnership
1.3.3 Disadvantages of a partnership
1.3.4 Partners’ dealings with each other
1.3.5 Partners’ fiduciary and statutory duties
1.3.6 Property of a partnership
1.3.7 Changes to partners
1.3.8 Dissolving a partnership
1.3.9 Alternative forms of partnership
1.4 Joint ventures
1.4.1 What is a joint venture?
1.4.2 Advantages of a joint venture
1.4.3 Disadvantages of a joint venture
1.4.4 The joint venture agreement
1.5 Trusts
1.5.1 What is a trust?
1.5.2 Advantages of a trust
1.5.3 Disadvantages of a trust
1.5.4 Types of trust
1.5.5 Duties, rights, liabilities and powers of trustees
1.5.6 Other administrative issues for trustees
1.6 Companies
1.6.1 Key elements of a company
1.6.2 Types of companies in Australia
1.6.3 Advantages of a company
1.6.4 Disadvantages of a company
1.7 Cooperatives
1.7.1 Trading cooperatives
1.7.2 Non-trading cooperatives
1.7.3 The difference between cooperatives and not-for-profit organisations
1.8 Incorporated associations
1.8.1 Key features of an incorporated association
1.8.2 Advantages of an incorporated association
1.8.3 Disadvantages of an incorporated association
1.9 Hybrid business structures
1.9.1 Why have hybrid business structures?
1.9.2 Examples of hybrid business structures
1.10 Business names
1.10.1 Registration
1.10.2 What names cannot be registered?
1.10.3 Display and use of the business name
Summary
Key terms
Concept check
Applied problems
Acknowledgements
Chapter 2 Companies and incorporation
Introduction
2.1 Company regulation in Australia
2.1.1 The Corporations Act 2001 (Cth)
2.2 Classes of companies
2.2.1 Proprietary companies
2.2.2 Public companies
2.2.3 Listed or unlisted
Principles
Matters addressed
2.2.4 Member liability
2.2.5 Comparing company types
2.2.6 Conversion between proprietary and public company status
2.3 Starting a company
2.3.1 Step 1: Choose a company structure
2.3.2 Step 2: Choose a company name
2.3.3 Step 3: Decide how to operate the company
2.3.4 Step 4: Understand the legal obligations
2.3.5 Step 5: Obtain consent from officers, members and occupiers
2.3.6 Step 6: Formally register the company
2.3.7 Step 7: Meet legal obligations regarding use of company name, ACN and ABN
2.4 Separate legal entity
2.5 Corporate groups
2.5.1 Legal issues relating to corporate groups
2.6 The corporate veil
2.6.1 The legal principle of the corporate veil
2.6.2 The corporate veil in relation to corporate groups
2.6.3 Lifting the corporate veil
2.7 Limited liability
Summary
Key terms
Concept check
Applied problems
Acknowledgements
Chapter 3 Company constitution
Introduction
3.1 Rules and procedures
3.1.1 Companies established prior to July 1998
3.1.2 Companies established after July 1998
3.2 Replaceable rules
3.3 The company constitution
3.3.1 When is the company constitution adopted?
3.3.2 The contents of the company constitution
3.4 Objects clause
3.4.1 Practical implications of the objects clause
3.5 Who is bound by the replaceable rules and constitution?
3.5.1 Contract between the company and each member
3.5.2 Contract between the company and each director and company secretary
3.5.3 Contract between a member and each other member
3.5.4 Remedies for breach of statutory contract
3.6 Changing the rules of a company
3.6.1 Process to change the constitution
3.6.2 The purpose and fairness of the change
3.6.3 Application of changes to existing members
3.6.4 Entrenched provisions
Summary
Key terms
Concept check
Applied problems
Acknowledgements
Chapter 4 Promoters and pre‐registration contracts
Introduction
4.1 Promoters
4.1.1 Identifying promoters
4.2 Duties and liabilities of promoters
4.2.1 Disclosure
4.3 Remedies for breach
4.4 Pre‐registration contracts
4.4.1 The superseded common law
4.4.2 Pre‐registration contracts under the Corporations Act
Summary
Key terms
Concept check
Applied problems
Acknowledgements
Chapter 5 Companies, outsiders and corporate liability
Introduction
5.1 How companies exercise their legal capacity and powers
5.1.1 Corporate liability
5.2 Determining whether a contract is binding by and against the company
5.2.1 Entering a contract directly
5.2.2 Entering a contract indirectly
5.3 Determining whether an agent has substantive authority
5.3.1 Actual authority
5.3.2 Apparent authority
5.4 The indoor management rule
5.4.1 Ultra vires
5.4.2 Indoor management rule and constructive notice
5.5 Statutory assumptions by outsiders in dealings with the company
5.5.1 Entitlement to make assumptions
5.5.2 Assumptions that can be made
5.6 Liability in tort and in crime
5.6.1 Primary liability
5.6.2 Vicarious liability
5.6.3 Liability in tort
5.6.4 Liability in crime
Summary
Key terms
Concept check
Applied problems
Acknowledgements
Chapter 6 Membership, members’ powers and dividends
Introduction
6.1 Members as owners
6.1.1 Membership
6.1.2 Recording membership
6.1.3 Limit on members’ rights
6.2 Members’ meetings
6.2.1 Types of members’ meetings
6.2.2 Calling a meeting
6.2.3 Proceedings at members’ meeting
6.3 Dividends
6.3.1 Entitlement to dividends
6.3.2 Payment of dividends
6.3.3 Consequence of improper dividend payment
6.3.4 Taxation of dividends
Summary
Key terms
Concept check
Applied problems
Acknowledgements
Chapter 7 Corporate governance and company management
Introduction
7.1 Corporate governance
7.1.1 Theories of corporate governance
7.1.2 A working definition of corporate governance
7.1.3 Corporate governance and company management
7.2 Officers
7.2.1 Directors
7.2.2 Company secretary
7.2.3 Senior managers
7.3 Roles and powers of directors and members
7.3.1 Directors
7.3.2 Members’ powers over directors
7.4 Appointment, remuneration, resignation, removal
7.4.1 Appointment of a director
7.4.2 Directors’ remuneration
7.4.3 Resignation and vacation of office
7.4.4 Removal of directors
Summary
Key terms
Concept check
Applied problems
Acknowledgements
Chapter 8 Directors’ and officers’ duties A
Introduction
8.1 Officers’ duties
8.1.1 Duties under common law and equity
8.1.2 Duties under the Corporations Act
8.1.3 The interaction of general law and statutory duties
8.1.4 Penalties and remedies
8.2 The duty of care and diligence
8.2.1 Who owes the duty of care and diligence?
8.2.2 To whom is the duty of care and diligence owed?
8.2.3 Determining whether a director has breached their duty of care
8.2.4 The consequences of breaching the duty
8.3 The standard of care
8.3.1 The minimum standards of care
8.3.2 The standards of care by types of officers
8.4 Diligence
8.4.1 Attending board meetings
8.4.2 Delegation
8.5 Defences against a breach of duty of care and diligence
8.5.1 The business judgment rule in statute
8.6 The duty to prevent insolvent trading
8.6.1 The duty to prevent insolvent trading under s 588G of the Corporations Act
8.6.2 When is a debt incurred?
8.6.3 Other requirements as to incurring debts
8.6.4 The time at which a company becomes insolvent
8.6.5 Reasonable grounds for suspecting insolvency
8.6.6 Defences to a breach of s 588G
8.6.7 Penalties and remedies
8.6.8 A safe harbour against liability for insolvent trading and creditor-defeating dispositions
Summary
Key terms
Concept check
Applied problems
Acknowledgements
Chapter 9 Directors’ and officers’ duties B
Introduction
9.1 Good faith
9.2 Best interests of the company
9.2.1 Members’ interests — individuals, classes, and as a whole
9.2.2 Creditors’ interests
9.2.3 Employees’ interests
9.2.4 Corporate groups’ and nominee officers’ interests
9.3 Proper purpose
9.3.1 Determining a breach of the duty of proper purpose
9.3.2 Defences for breach of proper purpose
9.4 Conflict of interest under general law
9.4.1 When a conflict may arise
9.4.2 Defences
9.5 Statutory provisions relating to conflict of interest
9.5.1 Related party transactions
9.5.2 Defences
9.6 Remedies and penalties for breach of duty
9.6.1 Summary of consequences for breaches of directors’ duties
Summary
Key terms
Concept check
Applied problems
Acknowledgements
Chapter 10 Financing a company via equity or debt
Introduction
10.1 Choosing between equity and debt
10.2 Issuing shares
10.2.1 Definition of a share
10.2.2 Share issues
10.2.3 The statutory power to issue shares
10.3 Different types of shares
10.3.1 Ordinary shares
10.3.2 Bonus shares
10.3.3 Preference shares
10.3.4 Partly paid shares
10.3.5 Equity crowd-sourced funding
10.4 Debt financing
10.5 Debentures
10.5.1 Statutory requirements to issue debentures
10.5.2 Parties to a debenture
10.6 Security for debts
10.6.1 Registration of a security
10.6.2 Circulating and non‐circulating security interest
10.6.3 Negative pledges
10.6.4 Romalpa clause
10.6.5 Voidable antecedent transactions in the event of insolvency
Summary
Key terms
Concept check
Applied problems
Acknowledgements
Chapter 11 Disclosure
Introduction
11.1 Why disclosure is required
11.2 Hard, hybrid and soft law
11.2.1 Australian Securities and Investments Commission
11.2.2 Australian Securities Exchange
11.2.3 Australian Accounting Standards Board
11.2.4 Auditing and Assurance Standards Board
11.3 Annual reporting
11.3.1 Financial report
11.3.2 Directors’ report
11.3.3 Auditor’s report
11.4 Fundraising
11.4.1 Disclosure when issuing securities in the primary markets — s 706
11.4.2 Disclosure when selling securities in the secondary markets (secondary sales) — s 707
11.4.3 When disclosure is not required for issuing securities
11.4.4 Form and content of fundraising disclosure documents
11.5 Misleading and deceptive disclosure
11.5.1 Liability for defective disclosure
11.6 Continuous disclosure
11.6.1 Section 674 and ASX Listing Rule 3.1
11.6.2 Continuous disclosure and generally available information
11.6.3 Continuous disclosure and material effect
11.6.4 Liability and offences relating to continuous disclosure
11.7 Insider trading
11.7.1 Sections 1043A and 1042A
11.7.2 Insider trading and information
11.7.3 Insider trading and materiality
11.7.4 Insider trading and generally available information
11.7.5 Insider trading exceptions
11.7.6 Liability and offences relating to insider trading
Summary
Key terms
Concept check
Applied problems
Acknowledgements
Chapter 12 Members’ remedies
Introduction
12.1 Members’ rights and remedies
12.1.1 The balance of majority and minority members’ rights
12.1.2 Statutory and contractual rights
12.1.3 Remedies
12.2 Statutory remedies
12.2.1 The oppression remedy
12.2.2 Winding up a company
12.2.3 Statutory injunction
12.3 Statutory derivative action
12.3.1 Parties that can seek to bring a statutory derivative action
12.3.2 Proceedings will be on behalf of the company
12.3.3 When the court will grant leave
12.4 Personal action
12.4.1 A member’s personal rights
12.4.2 Statutory contract
12.4.3 General law remedies
Summary
Key terms
Concept check
Applied problems
Acknowledgements
Chapter 13 Receivership and administration
Introduction
13.1 Insolvency
13.1.1 The test for insolvency
13.2 Receivership
13.2.1 Appointment of the receiver
13.2.2 Effects of receivership
13.2.3 Role of the receiver
13.2.4 Powers of the receiver
13.2.5 Duties and liabilities of the receiver
13.2.6 Termination of receivership
13.3 Voluntary administration and small business debt restructuring
13.3.1 Appointment of an administrator
13.3.2 Effects of administration
13.3.3 Role of the administrator
13.3.4 Powers of the administrator
13.3.5 Duties and liabilities of a voluntary administrator
13.3.6 Process of voluntary administration
13.3.7 Deed of company arrangement
13.3.8 Termination of voluntary administration
13.3.9 Small Business Restructuring Plan Part 5.3B
Summary
Key terms
Concept check
Applied problems
Acknowledgements
Chapter 14 Liquidation
Introduction
14.1 Liquidation or winding up
14.1.1 Voluntary winding up
14.1.2 Compulsory winding up
14.2 Appointment of a liquidator
14.2.1 Powers of the liquidator
14.2.2 Duties and functions of a liquidator
14.3 Property available to a liquidator
14.3.1 Voidable transactions
14.3.2 Types of voidable transactions
14.3.3 Defences for creditors
14.4 Final distributions and deregistration
14.4.1 Distribution to creditors
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