oppression actions: sections 232 and 233 of the corporations act (cth) law society of the northern...
TRANSCRIPT
Oppression Actions: Sections 232 and 233 of the Corporations Act (Cth)
Law Society of the Northern Territory
Geoff Clift
General Principles
Section 232: 4 Distinct Grounds and a Composite Whole
Section 232(d) and (e): Commercial Unfairness Section 232 (d): Independent Ground Objective Test of Unfairness Scope and Aim of Sections 232 and 233 Past Conduct Acquiescence and Consent Self-help Onus of Proof
Board Decisions
Role of Management
When a Court May Intervene
Quasi- Partnership Cases
3 Elements Identified in Ebrahimi v Westbourne Galleries Ltd
Implication of a Right to Participate in Management
Unjust, inequitable and Unfair for the Use of Majority Voting Power to Remove the Minority from Management
Circumstances in Which a Right to Participate in Management May be Lost
Relief May Only be Granted Where Participation in Management Affords a “Return for Investment”
Management Fees and Payment of Dividends
”Ripping off” the Company
Independent Advice on Management Fees
Dividend Policies
Management Fees as De Facto Dividends
Share Issues
Purpose of the Share Issue
When Dilution of the Voting Power of the Minority via a Share Issue May be Permitted
Litigation Costs
When Payment by the Company of Legal Costs Incurred by the Majority in Defending Proceedings May Constitute Oppression
Considerations which Militate Against a Finding of Oppression
Denial of Access to Information
When Denial of Access to Information may Amount to Oppression
Remedies
Plenary Power under Section 233
General Principles Governing the Exercise of Discretion
Winding Up as a Last Resort
The Ordinary Order
Valuation of Shares
Extraordinary Orders
Related Remedies
Section 461 (1) (k)
Section 109 of the Associations Act
Conclusion and Questions
Claims against Creditors and Directors by a Company in Liquidation
Law Society of the Northern Territory
Guy Newton