Directors’ Duty Not To Make Secret Profits Notes

Class 14 Directors’ duty not to make secret profits

Corporations Act ss 182, 183.

CORPORATIONS ACT 2001 - SECT 182

Use of position--civil obligations

Use of position--directors, other officers and employees

(1) A director, secretary, other officer or employee of a corporation must not improperly use their position to:

(a) gain an advantage for themselves or someone else; or

(b) cause detriment to the corporation.

Note: This subsection is a civil penalty provision (see section1317E).

(2) A person who is involved in a contravention of subsection(1) contravenes this subsection.

Note 1: Section79 defines involved .

Note 2: This subsection is a civil penalty provision (see section1317E).

CORPORATIONS ACT 2001 - SECT 183

Use of information--civil obligations

Use of information--directors, other officers and employees

(1) A person who obtains information because they are, or have been, a director or other officer or employee of a corporation must not improperly use the information to:

(a) gain an advantage for themselves or someone else; or

(b) cause detriment to the corporation.

Note 1: This duty continues after the person stops being an officer or employee of the corporation.

Note 2: This subsection is a civil penalty provision (see section1317E).

(2) A person who is involved in a contravention of subsection(1) contravenes this subsection.

Note 1: Section79 defines involved .

Note 2: This subsection is a civil penalty provision (see section1317E).

Redmond [7.455]-[7.495].

• The duty to avoid conflicts:

  • Duty and interest.

  • Profits and misappropriations.

  • When is there a conflict?

    • Strict formulation- no fiduciary enter ‘engagements which possibly may conflict with the interests of those he is bound to protect’- Aberdeen v Blaikie Bros.

    • Lenient formulation- ‘the reasonable man…would think there was a real sensible possibility of conflict- Phipps v Boardman

    • In Australia ‘a significant possibility’ of conflict- Chan v Zacharia, ‘a real or substantial possibility of conflict’- Hospital products.

    • Multiple conflicts within companies- shareholder/director; multiple or even competing directorships; nominee directorships.

• Fairness is irrelevant?

  • Implementation and evidential costs.

  • Occassional relaxation? Community values; in remedial orders, where breach is honest but mistaken.

• To whom is the duty owed?

  • To the company

  • Exceptionally- to the shareholders individually

  • Coleman v Myers

    • The idea that there may be exceptionally a director duty to the shareholders rather than to the company in deviation from an old rule from Persival v Right which in UK they said they owe their duties to the company. In this case there was a family company where there were family shareholdings over a number of different Myer generations.

  • Galavanics v Brunninghausen

Secret Profits: The Appropriation of Corporate Property, Information and Opportunity

Consider:

1. Is the director personally liable?

2. Is the transaction enforceable/reversible?

3. 3^rd parties?

The Distinct bases of Equitable Obligation

• Content of duty:

  • Use of position to obtain a benefit for self.

  • Use of information obtained from position to secure benefit for self.

  • Prophylactic and constraining control.

  • S182- note differences from general law.

  • S183- note differences from general law.

  • Reckless or dishonest- criminal- s184

  • Ratification

    • Sometimes confusion about how it should be carried out. Common law requires the informed consent and approval of shareholders.

• Secret profits: Furs v Tomkies.

• Diversion of opportunity: cook v deeks, regal Hastings v Gulliver, Peso v Cropper, Phipps v Boardman, IDC v Cooley, Canaero v O’Malley, Qld Mines v Hudson. What is the significance of dishonesty? Rurs, Cook, IDC, Canaero.

• While directors are not generally trustees of company property, they are treated as trustees of company funds in their hands or under their control. If directors misapply company funds, they are liable to make good the moneys upon the same footing as if they were trustees. Similarly, a director who misappropriates other property of the company will also be liable as constructive trustee of the property.

• A company director is under a fiduciary obligation to account to the company for benefits derived in 2 general situations:

  1. The first arises where the benefit was obtained in circumstances where there existed a conflict, or significant possibility of conflict, between the director’s duty to the company and personal interest or another interest which the director is bound to protect

  2. The second arises where the benefit was obtained or received by use or by reason of the office of director or of opportunity or knowledge resulting from it.

• A person who is under a fiduciary obligation must account to the person to whom the obligation is owed for any benefit or gain:

  • which has been obtained or received in circumstances where a conflict or significant possibility of conflict existed between his fiduciary duty and his personal interest in the pursuit or possible receipt of such a benefit or gain OR

  • which was obtained or received by use or by reason of his fiduciary position or of opportunity or knowledge resulting from it.

• Furs Ltd v Tomkies sets out the equitable principles, their rationale and remedies and canvasses release through informed shareholder consent.

7.460 Furs Ltd v Tomkies (1936) 54 CLR 583

High Court of Australia

Facts

• Tomkies was MD of Furs and manager of a certain section of the business. Another company wanted to buy that section but only if Tomkies would work for them. T told the chairman who said that T could no longer be retained by Furs if the sale went ahead but instructed him to make the best deal he could. After T agreed to the service contract with the purchaser, the purchase price dropped significantly. Nevertheless Furs accepted the offer without being aware of the payment to T. When the payment became known, Furs claimed it as an undisclosed profit received while acting in a fiduciary capacity.

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