{"id":5592,"date":"2013-10-10T16:02:04","date_gmt":"2013-10-10T05:02:04","guid":{"rendered":"http:\/\/sites.thomsonreuters.com.au\/journals\/?p=5592"},"modified":"2013-10-10T16:02:04","modified_gmt":"2013-10-10T05:02:04","slug":"company-and-securities-law-journal-update-october-2013","status":"publish","type":"post","link":"https:\/\/sites.thomsonreuters.com.au\/journals\/2013\/10\/10\/company-and-securities-law-journal-update-october-2013\/","title":{"rendered":"Company and Securities Law Journal update: October 2013"},"content":{"rendered":"

*Please note that the links to the content in this Part will direct you to Westlaw AU. If you are still using Legal Online, the links can be found in the LOLA PDF<\/strong> at the bottom of this post. If you are using Checkpoint, the links can be found in the CP PDF <\/strong>at the bottom of this post.<\/p>\n

The latest issue of the Company and Securities Law Journal <\/em>(Volume 31 Part 7) contains the following material:<\/p>\n

EDITORIAL<\/a><\/p>\n

Articles<\/h3>\n

Interaction between statutory and general law duties concerning company director conflicts <\/i><\/b><\/a>\u00e2\u20ac\u201c Matthew Conaglen<\/p>\n

This article addresses some aspects of the interaction between statute and the general law duties governing directors\u00e2\u20ac\u2122 conflicts of interest. In order to understand that interaction fully, it is instructive first to recognise the interaction between different kinds of general law duties owed by directors, as that helps to elucidate the role played by fiduciary doctrine\u00e2\u20ac\u2122s general conflict principles. The article then explores two aspects of the interaction between the Corporations Act 2001 <\/i>(Cth) and those general law duties, investigating in particular the effect of the statutory regime on fiduciary doctrine\u00e2\u20ac\u2122s profit principle and on the effectiveness of conflicts authorisation clauses in company constitutions. The legislative history of the Corporations Act <\/i>makes it relevant to consider the equivalent position in England as well.<\/p>\n

To purchase this article, complete the Individual Article Sale<\/a> order form and email it to tlranz.journal.orders@thomsonreuters.com<\/a>.
\n <\/b><\/p>\n

Directors\u00e2\u20ac\u2122 fiduciary duties: The relationship between conflicts, profits and bona fides <\/i><\/b><\/a>\u00e2\u20ac\u201c Rosemary Teele Langford<\/p>\n

The duty to act bona fide in the interests of the company is essential to directors\u00e2\u20ac\u2122 fiduciary loyalty and proscribes a number of forms of disloyalty. These include pursuit of self-interest, non-consideration of the company\u00e2\u20ac\u2122s interests and conferral of benefits on third parties in the absence of attendant corporate benefit. With respect to the first of these aspects of loyalty, the duty to act bona fide in the interests of the company overlaps with the duties to avoid conflicts and profits. However, the duty to act bona fide in the interests of the company has an independent operation as concerns the second and third forms of disloyalty. This article examines the relationship between the duty to act bona fide in the interests of the company and the duties to avoid conflicts and profits. In so doing, it demonstrates the overarching nature of the duty to act bona fide in the interests of the company and its fundamentality in terms of the fiduciary loyalty exacted of directors. These issues will be of direct relevance in any decision of the High Court in relation to the Bell Group of companies.<\/p>\n

To purchase this article, complete the Individual Article Sale<\/a> order form and email it to tlranz.journal.orders@thomsonreuters.com<\/a>.<\/p>\n

Corporate crime and officer liability under WH&S legislation now in harmony: But will it please the ear of the indemnified and insured? <\/i><\/b><\/a>\u00e2\u20ac\u201c Leigh Howard<\/p>\n

In a commendable act of cooperative federalism, harmonised workers\u00e2\u20ac\u2122 health and safety legislation has recently been enacted across seven Australian jurisdictions. One of the most important changes brought about has been the imposition of a positive duty upon company officers to exercise \u00e2\u20ac\u0153due diligence\u00e2\u20ac\u009d. This article considers whether the structure of this new duty alters a company\u00e2\u20ac\u2122s ability to provide an indemnity or insurance policy for the officer\u00e2\u20ac\u2122s benefit should they be found in breach. Through a process of statutory interpretation, application of parliamentary intention and common law analysis, it is concluded that no such indemnity or insurance policy could lawfully respond under the law. Possible options open to companies in light of this are considered by way of conclusion.<\/p>\n

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Beck v Weinstock: Preference in name but not in nature? <\/i><\/b><\/a>\u00e2\u20ac\u201c Kathryn Tomasic<\/p>\n

In Beck v Weinstock <\/i>(2013) 87 ALJR 570; 93 ACSR 251, the High Court of Australia considered whether a share in a company could be characterised as a \u00e2\u20ac\u0153preference share\u00e2\u20ac\u009d notwithstanding that there had never been any other class of shares on issue by the company over which the relevant shares actually enjoyed preferential rights. If the shares could not be characterised as \u00e2\u20ac\u0153preference shares\u00e2\u20ac\u009d, they would not be capable of being validly redeemed pursuant to the relevant provisions of the Corporations Act 2001 <\/i>(Cth). The court found that, although the preferential rights conferred by the shares remained \u00e2\u20ac\u0153potential\u00e2\u20ac\u009d until other classes of shares were issued, the shares in question could nevertheless be characterised as preference shares because the company\u00e2\u20ac\u2122s constitution made provision for the issue of other classes of shares over which the shares could enjoy preferential rights. As such, despite the fact that the shares did not presently confer preferential rights over any other class of shares on issue, the court held that the shares constituted \u00e2\u20ac\u0153preference shares\u00e2\u20ac\u009d and were therefore liable to redemption.<\/p>\n

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For the PDF version of the table of contents, click here:\u00c2\u00a0CP – C&SLJ Vol 31 Pt 7 Contents<\/a> or here:\u00c2\u00a0LOLA – C&SLJ Vol 31 Pt 7 Contents<\/a> or here:\u00c2\u00a0WAU – C&SLJ Vol 31 Pt 7 Contents<\/a>.<\/p>\n

Click here to access this Part on Legal Online<\/a><\/p>\n

Click here to access this Part on Westlaw AU<\/a><\/p>\n

Click here to access this Part on Checkpoint<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

The latest Part of the Company and Securities Law Journal publishes the following articles: “Interaction between statutory and general law duties concerning company director conflicts” \u00e2\u20ac\u201c Matthew Conaglen; “Directors\u00e2\u20ac\u2122 fiduciary duties: The relationship between conflicts, profits and bona fides” \u00e2\u20ac\u201c Rosemary Teele Langford; “Corporate crime and officer liability under WH&S legislation now in harmony: But will it please the ear of the indemnified and insured?” \u00e2\u20ac\u201c Leigh Howard; and “Beck v Weinstock: Preference in name but not in nature?” \u00e2\u20ac\u201c Kathryn Tomasic.<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[260,39],"tags":[3712,3713,259,3714,3715,3514,3716,812,3717,3718,3338,3719],"class_list":["post-5592","post","type-post","status-publish","format-standard","hentry","category-company-and-securities-law-journal","category-update-summaries","tag-beck-v-weinstock","tag-bona-fides","tag-cslj","tag-company-director-conflicts","tag-corporate-crime","tag-directors-fiduciary-duties","tag-kathryn-tomasic","tag-leigh-howard","tag-matthew-conaglen","tag-preference-share","tag-rosemary-teele-langford","tag-whs-legislation"],"_links":{"self":[{"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/posts\/5592","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/comments?post=5592"}],"version-history":[{"count":0,"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/posts\/5592\/revisions"}],"wp:attachment":[{"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/media?parent=5592"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/categories?post=5592"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/sites.thomsonreuters.com.au\/journals\/wp-json\/wp\/v2\/tags?post=5592"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}