HI6006 Competitive Strategy Editing Service
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Issue:It is required to analyse whether Bob Beech would be able to catch more scallop having incorporated the company.
Law:Under the Corporations Act, 2001, the legal capacity and powers of an incorporated company is defined under Section 124. It determines that the company has a legal capacity and powers of an individual when functioning. It may also operate as the a corporate while issuing and cancelling shares for the company, issue debentures, grant options, distribute the company’s property within the members, grant security and get the company registered. A company that is limited by the guarantee does not have the power to issue the shares. A company under Section 125, having a constitution shall include restriction, prohibition for the company powers and exercising the same shall be primary in nature. The constitution of the company shall be able to define the object of the existence in order to define the purpose of incorporation that is required to be achieved. Every company according to Section 286 should be involved in maintaining the financial records to perceive the financial performance and the position so present for the purpose of auditing. The same applies to the transactions undertaken in the capacity of a trustee. The financial records should be maintained till the extent of the seven years after the transaction has been completed. According to Section 53AA, a body corporate shall include the business affairs and matters concerning the ascertainment of the corporations with which the company is connected. (Australian trade practices legislation, 2010)
Application: As per the facts of the case scenario, Bob Beech was a fisherman and had been involved in the fishing of scallops at the coastal water of Jervis Bay. The Bay has a limited stock of the scallops and the fishing quantity is limited to 50 tonnes of scallops in a calendar year. The same has been prescribed under the Scallop Fishing and Marketing Act providing for the quota system. According to the Act, the individual shall apply for the permit to fish and would only be then entitled to scallop fishing. It has also been determined that Scallop Marketing Authority may purchase any of such scallops fished up to the quota limit. The offences so determined are in terms of the offence to sell the amount of scallops so caught to the person other than Scallop Marketing Authority. Also, that when the scallop so fished exceeds than the prescribed amount per person the same would be fines for an amount up to $100,000. It was determined that Bob had a capacity and resources to catch more than the allotted quota. To meet the capacity it was advised by the daughter that Bob should incorporate a company in order to meet the capacity since a corporation would have a comparatively more quota assigned that would be double the individual quota. It may be analysed that incorporation the business would lead to growing the investment capital and transferability processes under the company. (Corones, 2011)
Being a company it would be easy to gather members contributing to the floating of company under the market. The taxation would be reduced so charged from the companies. Bob Beech by incorporating a company would have the access to hiring fishermen as employees and increase his company’s capacity. Fisheries department also sets a limit on the divers that catch the scallops. The same may be hired as employees in order to meet the capacity so available at his disposal. The investment would increase thereby, increasing the amount of scallops being caught by Bob Beech thereby validating him to have an access to catching more scallop as a group entity rather than an individual. Bob would also be able to retain the cost at a cheaper rate as it would be less taxed and would surpass more barriers. To build a company however, Bob would have to approach ASIC with the constitution of the company, structure of the company, and such other factors required under the formation of the company.
Conclusion: It may be concluded that since a corporation would be able to escape certain specific taxes imposed on the fishermen catching scallops the corporation would be a better and more viable option for Bob to realise his capacity. (Corones, 2011)
Issue: It is required to be discussed whether the injuries so caused by the acts of Nuclear Blast Sounds Pty Ltd’s Negligence would be the responsibility of New Nirvana Ltd.
Law: Under the law of tort it is determined that the tort arises from the breach of the duty that is owed to the society towards the nest person from the actions so ignorantly performed. The tot of negligence is required to have basic elements of the duty so owed and breached. The duty shall be assumed and obvious in nature. The duty so owed shall be breached from negligence and such other factor leading to cause the damages to the affected party. The damages so caused towards the affected party shall be measurable in terms of monetary, psychological or physical damages. The damage so caused is generally determined by the courts depending on the situation so arising. The negligence so caused by the party shall be direct in terms or causation and remoteness of damage. Sometimes the negligence may occur while performing certain duties as asked by someone else. Such a neglect in this case would be that of vicarious nature making the party assigning the work. The nature of vicarious liability arises from the relationship so existing between the parties for the performance of the certain act. It is mostly seen under the employer-employee relationship. This because the employee performs the act for the benefit of the employer and the same is the responsibility of the employer for delegating the work. If the employee has been negligent and causes the damage to the employer’s client it would be the responsibility of the employer. It should be important to consider that the wrongful act so committed should be arising from the duties so required to be performed by the employee in the course of employment and not the personal wishes of unprofessional nature. (Lane & Young, 2007)
Application:In the given case study it may be determined that New Nirvana is company run by the hard rock band members. The company further owns various subsidiaries that help in regulating and organising the band concerts. The subsidiary called Nuclear Blast Sounds regulates the sound systems at the concerts. The subsidiary had set the sound levels at such a frequency that it led to causing a permanent hearing loss of five audience members. However, when they wanted to claim the damage so caused from the subsidiary they stated that the company does not have a negligence insurance. It may be determined that Nuclear Blast Sounds is the subsidiary of the New Nirvana Ltd. The negligence so undertaken was while regulating the concert of the band organised by the New Nirvana Ltd. Thereby, the subsidiary would not have undertaken the role if not asked by New Nirvana. New Nirvana would be liable for the loss so suffered to the audience from the loss of hearing. (Courtney, 2014)
Conclusion:It may be concluded that the subsidiary was not the primary performer. It was hired by New Nirvana to perform the duties. Thereby, negligence occurring on the job would the responsibility of the company and not Nuclear Blast Sounds.
Issue:It is required to determine that whether Don would be able to bring any action forward for the unfair dismissal so experienced by him at Millennium Pty Ltd.
Law:According to Section 125 of the Act it is determined that the company should have its own constitution in order to express the restriction, prohibition of the company’s powers. The company shall have an objects clause in the constitution in order to ensure the purpose of the company. If the company acts in contrary of the objects clause it would not mean the constitution is breached. The limitations on the powers of the company shall be defined under the constitution. Under the Section 136 it is derived that the company may adopt a constitution on registration if the members to the constitution have agreed to the same in writing. The same may be adopted after registration is the special resolution for the same has been passed by the company. The constitution may be modified or repealed through a special resolution. The leave of court is required to be undertaken in such a case through a court order. The constitution may also provide for a certain condition in addition to the special resolution to carry forward the changes in the constitution. (Paterson, 2011)
The special resolution has to be filed with ASIC for a public company within 14 days of it being passed. The replaceable rules are provided under the Section 135. Such rules are applicable towards the companies in case of absence of the constitution. Replaceable rules are the basic rules applicable to any company and are standard in nature. The ASIC may instruct the company to file a copy so consolidated with the commission. The rules under constitution and the replaceable rule would affect the company and the member, director and company secretary. If the member has not agreed to in writing to abide by the changes so made in the constitution the same change may not be applied to the member unless the same requires the member to take up extra shares. IT may also involve the increasing the member’s liability or impose or restrict in order to transfer the shares. In case of change of type of the company the proportional takeover approval shall be undertaken by the member to carry out the non-applicability of the changes so made. (Monahan & Carr-Gregg, 2007)
Application: In the provided case study it is given that Simon, Michael and Don are the directors of a firm. Don has been appointed as a solicitor for the cases related to the land purchases and sales so made by the company. The same is provided for under the constitution of the company. However, it was informed that the disputes so arising between the company and the members of the company would be held by an arbitrator before taking it to the court. Years later, Simon and Michael are of the opinion that Don shall be replaced with another solicitor better in their opinion. The new solicitor is hired replacing Don. It may be noted that the condition of Don being a solicitor is mentioned under the constitution. The same may not be voided by the other two directors without undertaking the special resolution. It would be required to undertake a special resolution and notify the changes so made in the constitution to the ASIC. The constitution of Millennium Pty Ltd has been discussed and decided between the directors and the members from the beginning. The replaceable rules may not apply in this situation as the same condition is a clear part of the constitution. (Courtney, 2014)
Conclusion:It may be concluded that whereby the rule of appointing Don as Solicitor was part of constitution of the company the same has to be followed without voiding the same. Simon and Michael are required to get majority under the special resolution while modifying the same. The hire of the new solicitor without making the modifications is illegal and can be claimed for by Don for breaching the constitution. Don may approach the court directly since he is the director as well and not just a member.
Australian trade practices legislation. (2010). Sydney.
Corones, S. (2011). The Australian consumer law. Rozelle, N.S.W.: Thomson Reuters (Professional) Australia.
Courtney, W. (2014). Contractual indemnities. Oxford: Hart Publishing.
Khoury, D. & Yamouni, Y. (2009). Understanding contract law. Chatswood, N.S.W.: LexisNexis Butterworths.
Monahan, G. & Carr-Gregg, S. (2007). Essential contract law. New York, NY: Routledge-Cavendish.
Paterson, J. (2011). Unfair contract terms law in Australia. Pyrmont, N.S.W.: Thomson Reuters (Professional) Australia.