scholarly journals "Directors' duties" imposed below board level

2021 ◽  
Author(s):  
◽  
Fran Barber
Keyword(s):  
New Zealand ◽  
Senior Managers ◽  
High Court ◽  
Corporate Leaders ◽  
Statutory Duty ◽  
High Court Of Australia ◽  
Board Level

<p>Recently, the High Court of Australia considered the scope of the term “officer” in a case concerning the breach of a statutory duty under the Corporations Act 2001 (Cth). The equivalent duties prescribed by the New Zealand Companies Act 1993 are owed by an ostensibly narrower class. In considering how New Zealand law would apply to the same facts, this essay discusses the extent to which directors’ duties are, or should be owed by those below directorship level. It concludes that an expansive interpretation of the “director” definition is unnecessary and undesirable, and that explicitly extending directors’ duties to encompass certain senior managers would merely create uncertainties for courts and corporate leaders.</p>

scholarly journals "Directors' duties" imposed below board level

2021 ◽  
Author(s):  
◽  
Fran Barber
Keyword(s):  
New Zealand ◽  
Senior Managers ◽  
High Court ◽  
Corporate Leaders ◽  
Statutory Duty ◽  
High Court Of Australia ◽  
Board Level

<p>Recently, the High Court of Australia considered the scope of the term “officer” in a case concerning the breach of a statutory duty under the Corporations Act 2001 (Cth). The equivalent duties prescribed by the New Zealand Companies Act 1993 are owed by an ostensibly narrower class. In considering how New Zealand law would apply to the same facts, this essay discusses the extent to which directors’ duties are, or should be owed by those below directorship level. It concludes that an expansive interpretation of the “director” definition is unnecessary and undesirable, and that explicitly extending directors’ duties to encompass certain senior managers would merely create uncertainties for courts and corporate leaders.</p>

scholarly journals Indirectly Directors: Duties Owed Below the Board

2014 ◽  
Vol 45 (1) ◽  
pp. 27 ◽  
Author(s):  
Fran Barber
Keyword(s):  
New Zealand ◽  
General Counsel ◽  
Senior Managers ◽  
High Court ◽  
Corporate Leaders ◽  
Statutory Duty ◽  
High Court Of Australia ◽  
A Company

In 2012, the High Court of Australia considered the scope of the term "officer" in a case concerning the breach of a statutory duty by a company secretary and general counsel. The equivalent duties under the New Zealand Companies Act 1993 are owed by an ostensibly narrower class. In considering how New Zealand law would apply to the same situation, this article discusses the extent to which directors' duties are, or should be, owed by those below directorship level. It concludes that an expansive interpretation of the "director" definition is unnecessary and undesirable, and that explicitly extending the definition to encompass certain senior managers would create uncertainties for courts and corporate leaders.

Search for Principle - The Government's Liability in Negligence for the Careless Exercise of its Statutory Powers

2000 ◽  
Vol 31 (3) ◽  
pp. 629
Author(s):  
Thomas Geuther
Keyword(s):  
New Zealand ◽  
Public Law ◽  
Public Authority ◽  
Special Treatment ◽  
Duty Of Care ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
High Court ◽  
The Supreme Court ◽  
High Court Of Australia

For many years the English courts have struggled to develop a principled approach for determining when a public authority can owe a duty of care in respect of the exercise of its statutory powers. Initially, public authorities received no special treatment. Then the courts conferred an almost complete immunity on them, requiring public law irrationality to be established before considering whether a duty could arise. The English approach has not been adopted elsewhere in the Commonwealth. The High Court of Australia and the Supreme Court of Canada have developed different tests, and the New Zealand courts, while never explicitly rejecting the English position, have never followed it. This paper argues that a modified version of the Canadian Supreme Court's approach should be adopted in New Zealand. It proposes that irrationality be a precondition to the existence of a duty of care only where policy considerations are proved to have influenced the decisions of a public authority in exercising its statutory powers.

scholarly journals Who are we Trying to Protect? The Role of Vulnerability Analysis in New Zealand's Law of Negligence

2016 ◽  
Vol 47 (1) ◽  
pp. 19
Author(s):  
Scott William Hugh Fletcher
Keyword(s):  
New Zealand ◽  
City Council ◽  
High Court ◽  
North Shore ◽  
The Law ◽  
High Court Of Australia ◽  
Negligence Law ◽  
Insight Into ◽  
Consistent Application

New Zealand has incorporated ideas of vulnerability within its law of negligence for some years. It has not, however, clarified what is meant by vulnerability or the role the concept plays within the broader duty of care framework. Several obiter comments in Body Corporate No 207624 v North Shore City Council (Spencer on Byron) suggest the concept ought not to be part of the law due to its uncertain and confusing nature. Subsequent cases have, however, continued to use the concept, and continue to use it despite both its historically ill-defined nature and the additional uncertainty added by Spencer on Byron. This article argues that vulnerability can and ought to be a part of New Zealand negligence law. With a consistent application of a single test for vulnerability – that established in the High Court of Australia in Woolcock Street Investments Pty Ltd v CDG Pty Ltd – vulnerability can be conceptually certain and provide useful insight into the issues posed by the law of negligence.

Comparing the institutional constructive trust with the remedial constructive trust

2019 ◽  
Vol 25 (9) ◽  
pp. 919-938
Author(s):  
David K L Raphael
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
The State ◽  
High Court ◽  
The Law ◽  
Uk Supreme Court ◽  
The Uk ◽  
High Court Of Australia

Abstract The concept of the Institutional Constructive Trust was first recognised in Australia in 1907 by the most senior court, i.e. the High Court of Australia, in Black v S Friedman & Co. This arose in a decision involving stolen funds. Its importance was addressed in the State of Victoria in Nolan v Nolan where what was in issue involved the Limitations Act of the State of Victoria. It must be appreciated that in the Commonwealth of Australia, State Acts can, and sometimes do, differ. In 1985, in Muschinski v Dodds, Deane J of the Australian High Court placed different emphasis on the court’s ability to recognise and construe such a trust and gave it the imprimatur of “Remedial Constructive Trust”. The latter, whilst adopted in New Zealand and Canada, has had what might fairly be described as its critics in the UK and, indeed the UK Supreme Court in FHR European Venture LLP v Cedar Capital Partners LLC has stated at [47] that the remedial constructive trust is not part of the law of the UK.

scholarly journals INTERPRETATION AND RECTIFICATION IN AUSTRALIA

2017 ◽  
Vol 76 (3) ◽  
pp. 483-486 ◽  
Author(s):  
Paul S. Davies
Keyword(s):  
New South ◽  
Common Law ◽  
New South Wales ◽  
High Court ◽  
South Wales ◽  
Housing Corporation ◽  
Lower Courts ◽  
The Law ◽  
High Court Of Australia

Both interpretation and rectification continue to pose problems. Difficulties are compounded by blurring the boundary between the two. In Simic v New South Wales Land and Housing Corporation [2016] HCA 47, the High Court of Australia overturned the decisions of the lower courts which had held that performance bonds could be interpreted in a “loose” manner in order to correct a mistake. However, the documents could be rectified in order to reflect the actual intentions of the parties. This decision should be welcomed: the mistake was more appropriately corrected through the equitable jurisdiction than at common law. Significantly, the concurring judgments of French C.J. and Kiefel J. highlight that the law of rectification now seems to be different in Australia from the law in England. It is to be hoped that the English approach will soon be revisited (see further P. Davies, “Rectification versus Interpretation” [2016] C.L.J. 62).

scholarly journals An open and reproducible analysis of a controversial criminal law decision: Mission IMM-possible?

2020 ◽  
Author(s):  
Jason Chin
Keyword(s):  
Open Source Software ◽  
Research Process ◽  
High Court ◽  
The Public ◽  
Judicial Decisions ◽  
Research Fields ◽  
Law And Policy ◽  
Criminological Research ◽  
Reproducible Analysis ◽  
High Court Of Australia

Reproducibility and open access are central to the research process, enabling researchers to verify and build upon each other’s work, and allowing the public to rely on that work. These ideals are perhaps even more important in legal and criminological research, fields that actively seek to inform law and policy. This article has two goals. First, it seeks to advance legal and criminological research methods by serving as an example of a reproducible and open analysis of a controversial criminal evidence decision. Towards that end, this study relies on open source software, and includes an app (https://openlaw.shinyapps.io/imm-app/) allowing readers to access and read through the judicial decisions being analysed. The second goal is to examine the effect of the 2016 High Court of Australia decision, IMM v The Queen, which appeared to limit safeguards against evidence known to contribute to wrongful convictions in Australia and abroad.

scholarly journals Impressions of Life and Law on the High Court Bench

2018 ◽  
Vol 49 (3) ◽  
pp. 297
Author(s):  
Matthew SR Palmer
Keyword(s):  
New Zealand ◽  
Public Law ◽  
High Court ◽  
Public Lecture

The following is a public lecture given at Victoria University of Wellington on 27 March 2018, organised by the New Zealand Centre for Public Law. In it Justice Matthew Palmer compares his impressions of life and law on the High Court Bench with that in practice and in academia.

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