...1. Were there any abuses of power by the management and breach of fiduciary on the part of the directors? Yes, there are breached of fiduciary duties by the management or directors of Delima Enterprise Sdn Bhd. In general, directors take up a fiduciary position or relationship with the company. A fiduciary relationship is the relationship between a person in a position of trust in which the fiduciary and the person for whose benefit the fiduciary acts. In other words, a fiduciary’s powers are exercised on behalf of others who are being in a position of dependence. In this case, directors of Delima Enterprise Sdn Bhd have fiduciary duties to the shareholders and stakeholders of the company. In addition, they also control property in which others have an interest. According to Section 132(1) of Companies Act 1965, a director shall at all times act honestly and use reasonable diligence in the discharge of the duties of his office. The directors have the following duties as being in fiduciary position: a. Duty to exercise power in good faith and in the interest of the company. b. Duty to avoid conflict of interest. c. Duty to exercise power for the proper purpose. a. Duty to exercise power in good faith and in the interest of company The directors of a company must exercise their powers in good faith and in the best interest of the company as a whole. It means that, directors of the company must act in the interest of the shareholders as a collective group of...
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...McGill Law Journal ~ Revue de droit de McGill JUSTIFYING FIDUCIARY DUTIES Paul B. Miller* Fiduciary duties are critical to the integrity of a remarkable variety of relationships, including those between trustee and beneficiary, director and corporation, agent and principal, lawyer and client, doctor and patient, parent and child, and guardian and ward. Notwithstanding their variety, all fiduciary relationships are presumed to enjoy common characteristics and to attract a core set of demanding legal duties, most notably a duty of loyalty. Surprisingly, however, the justification for fiduciary duties is an enigma in private law theory. It is unclear what makes a relationship fiduciary and why fiduciary relationships attract fiduciary duties. This article takes up the enigma. It assesses leading reductivist and instrumentalist analyses of the justification for fiduciary duties. Finding them wanting, it offers an alternative account of the juridical justification for fiduciary duties. The author contends that the fiduciary relationship is a distinctive kind of legal relationship in which one person (the fiduciary) exercises power over practical interests of another (the beneficiary). Fiduciary power is a form of authority derived from the legal capacity of the beneficiary or a benefactor. The duty of loyalty is justified on the basis that it secures the exclusivity of the beneficiary’s claim over fiduciary power so understood. Les obligations fiduciaires sont essentielles pour assurer...
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...2ND SUBJECT: - SOCIOLOGY TITLE OF THE PROJECT: - POWER AND AUTHORITY RESEARCH METHODOLOGY: - The researcher will have a doctrinal approach towards the Project. Information for the Project will be collected from Books, Journals and Internet. ACKNOWLEDGMENT This Project couldn’t have been successfully completed without the support and guidance of our Sociology Professor, M. Lakshmipati Raju Sir and we would like to express our immense gratitude to him for his constant support and motivation that has encouraged us to come up with this project. Lastly, we would like to thank our classmates for their whole hearted support at all times during the course of the Project. Thanking You Rahul Kr. Dubey CONTENTS 1. INTRODUCTION……………………………………………………………………..4 2. WHAT IS POWER?.......................................................................................................5 A. THE EMERGENCE OF POWER…………………………………………6 B. THE DIVISION OF POWER……………………………………………..9 3. WHAT IS AUTHORITY…...…………………………………………………………9 A. POLITICAL AUTHORITY……...………………………………………11 4. THE DEMOCRATIC CONCEPTION OF POLITICAL AUTHORITY………..….15 5. THE RELATIONSHIP AND DISTINCTION BETWEEN POWER AND AUTHORITY…………………..................................
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...In the essay given, it identifies fiduciary duties of directors as the main issue. There are a few consequences of breaching fiduciary duties. Under general law, a failure to disclose a conflict of interest rendered the transaction voidable at the option of the company. Aside from rescinding the contract, the company can seek to obtain a range of remedies such as an injunction to stop the breach of duty continuing, a constructive trust over assets acquired arising from the breach of duty, an account of profits to strip away gains made by the breach of the duty or equitable compensation. For contraventions of the statutory duties, both ss182 and 183 are civil penalty provisions under s1317E. Therefore, breach of these provisions may result in a declaration of contravention being made by the court and thereafter ASIC may apply for a pecuniary penalty order (s1317G) and/or a disqualification order (s206C) and/or compensation for the company (s1317H). A serious contravention of ss182 or 183 which is dishonest or reckless may result in a criminal liability under s184 (2). This action may be taken by ASIC and/or the Commonwealth Director of Public Prosecutions. The word ‘fiduciary’ has its roots in the Latin word fiducia, which means trust or confidence. A fiduciary duty is a legal duty to act solely in another party’s interest. Parties owing this duty are called fiduciaries. The individuals to whom they owe a duty to are called principals. Fiduciaries may not profit from their...
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...DIRECTOR’S DUTIES * Director’s fiduciary duties: Hospital products ltd v united states surgical corp “the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practicable sense.” * Bristol & West building society v Mothew – Duty of loyalty – the principal is entitled to the single-minded loyalty of his fiduciary. “this core liability has several facets. A difuciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict” - fiduciary duties stem from equitable principles developed through case law act in good faith in the best interest of the company exercise their powers for proper purposes retain their discretionary powers avoid undisclosed conflicts of interest Also owe a duty of care * Fiduciary duties overlap with Corporations law Fiduciary duties are supplemented by statutory duties, * S 182 and 183, directors’ fiduciary duties to avoid undisclosed conflicts between their personal interests and the interests of their company – improper use of position and improper use of information * S 180(1) owe a duty at common law to exercise reasonable care, skill and diligence – business decisions, gaining knowledge of the business and financial position, making inquiries where necessary and relying on...
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...The role of a director of a company carries with it much legal responsibility This is the topic that will be discussed in this essay. It will begin with a definition of what a director is, followed by the relevant legislation. I will go on to discuss the different types of directors in a company followed by the main duties directors owe to a company. I have taken a look then at the powers directors have in a company and ended this topic with the personal and criminal accountability directors may experience if they don’t exercise their powers in good faith and in the interests of the company. Section 2(1) of the Companies Act 1963 defines ‘director’ as “including any person occupying the position of director by whatever name called.”(Keane 1991) The primary function of a director is to manage the company on behalf of the members. The Articles of Association usually provide for the delegation of the members’ management powers to the Board of Directors and many of the functions of the directors are set out in a company’s Articles of Association. (Abbott et al 1993) The relevant legislation that applies to companies and its directors is the Companies Act 1963. It states regulations for management of a company limited by shares not being a private company. (Callanan 2007) There are numerous types of company directors, Shadow Director, Alternative Directors, De Facto Directors, Executive Directors and Non Executive Directors. A shadow director is any person other...
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...G34/3399/2014 | | WANJALA GILBERT MASINDE | G34/1417/2010 | | MURIMI MARTIN MUCHIRI | G34/3255/2014 | | Question 2:“The courts should draw the limits to discretionary power in a way which strikes the most suitable balance between executive efficiency and legal protection of the citizen” Discuss above statement With the exponential expansion of powers of the executive arm of government and equally massive interests in civil liberties, it is therefore inevitable that we re-examine the relationship between these discretionary powers and what is essentially the rule of law. This essay seeks to analyse the role played by the courts in the limitation of this powers while ensuring that the Executive runs efficiently while ensuring that that the rights of civilians are protected. Discretionary power is the individual judgement; the power of free decision making, a public official’s power to act in a certain circumstances according to the personal judgement and conscience, often in official or representative capacity. Discretion can also be defined as powers granted to an administrator to make a decision with the highest...
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...obligations or duty is one of the most important areas in Australian law. In this project, I will try to illustrate and explain the duties in three kinds of relationships including the relationship between a director and a company, the relationship between the promoters and the corporation and the relationship between business partners. In each relationship, what kinds of the fiduciary duties should be performed is elaborated in details. The aim of the project is to help the readers to understand what “fiduciary obligations” actually means in Australian law. Fiduciary Duty of Directors According to the general law and the Corporations Act ss181 -184, as fiduciaries, the directors must have the fairness, loyalty and good faith when they implement the discretions and powers entitled to them. They cannot use their position of trust to benefit themselves at the expenses of the business without the company’s consent and full knowledge. In other words, we can say since the directors are acting on behalf of their company, they owe the duties of loyalty and good faith due to the fiduciary relationship with the companies. In addition, refer to the Corporation Act ss180, and the case of Percival v Wright 1902, the directors owed duties to the company but not shareholders individually. On the other hand, in depth, the fiduciary obligations of the directors can be divided into four aspects: 1. Directors have the duty to act in good faith for the interests of the company This duty arises...
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...1. Delima Enterprise had practiced a poor management system and not well organized. There were abuses of power breach of directors’ fiduciary duties in the business itself. The definition of fiduciary duty is a legal obligation of one party to act in the best interest of another. The obligated party is typically a fiduciary that is someone entrusted with the care of money and property.. In this case, there are abuses of power by management and breach of fiduciary on the part of directors. A fiduciary obligation exists whenever the relationship with the client involves a special trust, confidence, and reliance on the fiduciary to exercise his discretion or expertise in acting for the client. One of the two fiduciary duties categories are the duty to exercise power in good faith and interest of the company. These duties vary with different types of relationships between fiduciaries and their counter-parties. Encik Zayed was planned to terminate the auditor’s appointment and appoint a new ’friendly party’ auditor. Secondly, the duty of care states that duty to pay attention and to try to make good decisions. The duty of director to act for the proper purpose and should not misuse their power. The exercise of director power for an improper purpose is a breach of duty. In this case, the directors’ abuses of power happened when Encik Zayed and Puan Hashimah charged personal vehicle expenses totaling RM50,150 to company during the year 2005. In addition to that, several withdraws...
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...Maximum Power Point Tracking for Photovoltaic Generators Advisor: Dr. Chokri, Belhadj Ahmed Mufti 200717070 Ahmad Al-Shammari 200736450 Abdullah Al-Shehri 200739630 Abdullah Al-Omran 200832100 Abdulillah Al-Saaedi 200832820 15th of December, 2012 ACKNOWLEDGEMENTS We would like to express our gratitude towards all the people who have contributed their precious time and efforts to help us in completing this project. We would like to thank Dr. Chokri Belhaj Ahmed, our Project Supervisor for his guidance, support, motivation and encouragement throughout the period of this project. We would like to thank Dr. Alaa El-Din Hussein Ahmed, for his precious time and efforts to help us in completing this project. We would also like to thank the Department of Electrical Engineering for providing us with a good environment, facilities and the equipment to complete this project. We are also grateful to the lab technician Mr. Edmana Abbas for support and help. ABSTRACT Solar energy has become an alternative source of energy. Several researches have been focused on the photovoltaic (PV) systems efficiency development and the availability of this technology. Today, PV power generation has gained more consequence due to its numerous advantages such as fuel free, no maintenance and environmentally green. This report gives a smart approach for the improvement of the PV control performances. Photovoltaic systems normally use a maximum power point...
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...company as well as shareholders. Directors are basically fiduciary agents and they owe duties to the company, directors' are appointed by the company's shareholders to run the company's affairs for the benefits of the shareholders. Moreover, no company can get success without having the good and honest directors, so company success can only be achieved, if the directors of the company fulfil their duties and complete enforcement of the director's duties. Therefore directors play very significant role in any corporate governance system. Director's general duties are based on the certain common law rules and equitable principles. Lord Judge Bowen explains director's duties in these beautiful words that “directors are described sometimes as agents, sometimes as trustees and sometimes as managing partners. But each of this expression is to be used not as exhaustive of their powers and responsibilities, but indicating useful points of view from which they may for the moment and for the particular purpose be considered.” The Chapter 1 of this paper is amid to critically analyze that what are the duties and responsibilities of directors under Companies Act 2006. The duties of directors alone are of no importance if they cannot be fully enforced, the chapter 2 of this piece of work relates to the system of enforcement which provides the different kind of controls which gives assurance than how these duties of directors are implemented. Basically Common law provides three ways of enforcement...
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...Ms. Dimwit will likely try to prove that Good Times is liable through negligence, and Good Times’ best defense is a superseding cause. Rule of Law Negligence: For the plaintiff to prove that defendant was negligent in their actions, she would need to prove that (1) the defendant maintained a duty of ordinary care to her (to conduct themselves as any reasonably prudent person would under similar circumstances), (2) that they breached that duty of care, and (3) that this breach of the duty of care caused her damages, and that she was actually harmed as a result of this breach. The plaintiff must prove that the defendant acted unreasonably and without the care that an ordinary person would. She also must prove that the defendant’s...
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...Directors of a company normally have exclusive power to manage the company’s business and exercise its powers. At common law, the duties were owed to the company, to employees, to individual shareholders and creditors. 1.0 Duties of Directors to the company It is convenient to categorise the duties of directors into fiduciary duties which arise because they are quasi-trustees of the assets of the company. The word ‘fiduciary’ refers to trust and confidence. ‘A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence’(Bristol and West Building Society v Mothew [1998] Ch1 per Millet LJ at p.18). Fiduciary duties of the directors of a company considered are imposed on them by equity for the protection of the persons for whom they act. Directors’ fiduciary duties are mandatory element of company law; they are imposed by the courts all directors of all companies. A director of a company holds an office not an employment, and is on duty all the time while holding the office: there are no off-duty hours when the director is free from his or her fiduciary duties (Gwembe Valley Development Co. Ltd v Koshy [1998] 2 BCLC 613) Some people argue that that is inappropriate to apply the concept of a fiduciary, which is derived from the concept of trustee, to company directors. Trustees are supposed to be prudent, risk-averse people whose priority is to preserve the capital value...
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...Concept of Fiduciary P.3 Fiduciary Concepts and Obligation vs Partnership Relations P.6 Fiduciary Concepts and Obligation vs Corporate Relations 1. Directors P.8 2. Promoters P.11 Conclusions P.13 Bibliography P.14 The Basic Concept of Fiduciary Fiduciary, under oxford’s dictionaries’ definition, is trustee who is given control or powers of administration of property in trust with a legal obligation to administer the beneficiary’s interest, and the Cambridge dictionary defines “relating to the responsibility to look after someone else's money in a correct way”. It is obvious that the fiduciary concept involves the element of mutual trust and confidence: the property or interest of the beneficiary which relied on the protection of the trustee, a correct way arise an obligation that the behavior is monitored by avoiding any equitable breaches. Besides, it also presumes that not only the beneficiary but the trustee’s benefit is also protected, the beneficiary have to keep his promise of the trustees’ interest when the duty is...
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...perfect balance of growth and fiscal rectitude § Challenging backdrop: The backdrop for FY13 budget is challenging given the context of slowing growth, lack of investment momentum and a difficult fiscal scenario of subdued tax and non-tax revenue generation even while various subsidy burden are ballooning. Toping these is a much weaker Central government after recent state elections debacle of Congress party, which weaken its ability to take critical reform measures § Multiple priorities amid rising structural imbalances: Fiscal imbalances and falling domestic savings pose significant structural challenges. We will look for a credible commitment towards fiscal consolidation, ways to raise tax revenue (200bp hike in excise duty or expanding the tax base by including more services), reduction in subsidy burden by raising prices of public utilities and services, ways to address the recurring deficits across multiple public sector undertaking and departments and most importantly providing the focus on capital spending and infra sectors. While implementation of GST is most ideally suited in the current context we think it is unlikely to happen in this budget. Broadly, there can be some progress towards meeting the recommendation of direct tax code (DTC) § Enablers more important than budget itself: While we expect some progress, expecting lot of reforms from the budget may be optimistic. Given that the government has failed to deliver on the promised fiscal ...
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