A brief review of the ultra vires doctrine before the companies act 1989

It is cited in this application by virtue of the interest he Minister or it Department may have in the outcome. No order for costs was sought against the third respondent save insofar as he or it elects to oppose this application, which he or it did.

A brief review of the ultra vires doctrine before the companies act 1989

Shareholder rights[ edit ] Under s. This means a broad group of people who sit behind investment dealers or other intermediaries in the investment chain are now enfranchised. Extensive jurisprudence in the Canadian courts have expanded on the matter: In Peoples Department Stores Inc.

Wise [28] it was held that the duty is not merely owed to the corporation itself, but also to corporate stakeholders, namely "shareholders, employees, suppliers, creditors, consumers, governments and the environment.: This duty is not mandatory.

A director has to meet a minimum standard of care, regardless of how clever or incompetent he is.

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It has also been implied by the case law, that if directors have special skills or qualifications, this will raise the standard expected further above the minimum. This was not long enough to consider the issues, properly inform themselves about the package, especially given their own compensation consultants, and the former compensation committee, had expressed serious concerns.

Neither was this an issue of "business judgment" because that can logically only apply where some real judgment has in fact been exercised, where the board has "been scrupulous in its deliberations and demonstrated diligence in arriving at decisions. The same strict standard as in the UK applies to this day, so even having a close friendship with someone that benefits from a company contract counts.

They must state any conflict of interest that may result from the conclusion of a contract with a third party, and if they do not respect this obligation any shareholder or interested person may ask for the annulment of the decision taken.

If a breach of duty has already taken place, the Canadian rules on ex post shareholder approval provide that a shareholder resolution does not affect the invalidity of a transaction and the liability of the director, but it may be taken into account when the court decides whether or not to let a derivative action continue by a minority shareholder.

The position on taking corporate opportunities begins with the case of Cook v Deekswhere directors must have authorization by independent directors before they try to make any profit out of their office, when the company itself could possibly have an interest in the same deal.

More modern cases show some differences in the strictness of the courts' approach: In Peso Silver Mines Ltd. Cropper [32] the board, after getting advice, turned down mining claims because it lacked funds.

A director, Mr Cropper, formed a company and bought them.

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Later, the company sued him. The Supreme Court of Canada held that there had been no breach in this case, since the company had positively decided not to take that opportunity, and just because the director found out about the opportunity whilst in his office did not mean the opportunity had to be turned over to the company.

Another leading case is Canadian Aero Service Ltd. O'Malley [33] where two directors, Mr O'Malley and Mr Zarzacki worked for a mapping and exploring business, and got involved in a project to map Guyana.

They resigned, started a new company, Terra Surveys, and bid for a government tender to continue the work. The Supreme Court of Canada held that the proper questions to ask were whether the opportunity was closely connected to the company, and what relationship the directors had to the opportunity.

The two types of action are not mutually exclusive, [35] and the differences between them were noted in A derivative action is commonly said to arise where it is the corporation that is injured by the alleged wrongdoing.

The "corporation" will be injured when all shareholders are affected equally, with none experiencing any special harm. By contrast, in a personal or "direct" action, the harm has a differential impact on shareholders, whether the difference arises amongst members of different classes of shareholders or as between members of a single class.

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It has also been said that in a derivative action, the injury to shareholders is only indirect; that is, it arises only because the corporation is injured, and not otherwise. Wisethe Supreme Court of Canada noted: The oppression remedy of s.

Where conflicting interests arise, it falls to the directors of the corporation to resolve them in accordance with their fiduciary duty to act in the best interests of the corporation. There are no absolute rules and no principle that one set of interests should prevail over another.

This tripartite structure encapsulates the duty of directors to act in the "best interests of the corporation, viewed as a good corporate citizen".Jan 10,  · Ultra vires is a Latin phrase meaning "beyond the powers".

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If an act requires legal authority and it is done with such authority, it is characterised in law as intra vires ("within the powers"). If it is done without such authority, it is ultra vires. ABATEMENT (RCW ) Where the widow died leaving no surviving beneficiaries after the Board had granted the Department's petition for review from a proposed decision and order granting the widow a pension, but before the Board had issued its decision and order, the widow's accrued pension benefits were not payable to her estate.

. BLR p citizenship - Denial of citizenship to children born in Botswana to female citizens married to non-citizens - A Whether permissible to enact legislation discriminating on basis of sex - Whether discriminatory enactment ultra vires - Constitution, ss.

3 and 15 - Citizenship Act, (Act No. 25 of ), ss.

A brief review of the ultra vires doctrine before the companies act 1989

4 and 5 as amended by Citizenship (Amendment) Act, (Act No. 17 of. the LLP Act keeps individual Tort liability of the tortfeasor partner and also imposes it on the LLP but with limited liability for the other partners under the substituted section 74 of Insolvency Act A doctrine or policy of the federal courts to refrain from deciding a case so that the issues involved may first be definitively resolved by state courts.

The Rule in British Bank v Turquand in T E. Cain Bond University Companies Code in the light of a number of recent decisions, including one in the New South Wales Court of 7 The former ultra vires rule was abolished as regards outsiders by ss 66B, 66C and.