LAW00004 — Company Law S2 2018 Research Assignment Details: Due:27 August 2018[footnoteRef:1] [1: The assignment may be submitted up until 11:59pm on the due date. ] Length:2,400...

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LAW00004 — Company Law S2 2018 Research Assignment Details: Due:27 August 2018[footnoteRef:1] [1: The assignment may be submitted up until 11:59pm on the due date. ] Length:2,400 words[footnoteRef:2] [2: The word count can be exceeded by 100 words only.] Weighting:50% Submission method:turnitin (i) In the context of corporate law, discuss the following statement and explain the fiduciary concept in detail: “Since the decision of the High Court in Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64, it has been accepted in this country that a fiduciary duty arises out of an undertaking, express or implied, by the person incurring such duty.”[footnoteRef:3] [3: Oliver Hume South East Queensland Pty Ltd v Investa Residential Group Pty Ltd [2017] FCAFC 141 [33] (Dowsett J).] (ii) Discuss examples that demonstrate this fiduciary concept in each of the following areas, referring to case law and statute as necessary: (a) The general law (as it relates to the formation of a company); (b) A Partnership Act (in an Australian State or Territory); AND (c) The Corporations Act 2001 (Cth). Total (50 marks) Please note the material on pages 8 – 11 of the Unit Information Guide regarding the Assessment. Marking criteria Important information: Consider the following information carefully before starting the assignment. The assignment will be marked according to the following criteria. Research (40%) This assignment requires a comprehensive review of the primary law sources (legislation, case law) as well as a review of secondary sources (for example textbooks, journal articles, case commentary, explanatory memoranda, Law Reform Commission reports). The research should clearly identify the relevant issues and legal principles and support the analysis. In doing so, the work of others should be correctly referenced and appropriately acknowledged. Analysis (50%) The information gathered should be analysed to evaluate the relevant legal principles. The argument should be developed logically through clear analysis and application of the relevant legal principles to resolve the issue(s). This analysis should also: · integrate and evaluate relevant knowledge from the material covered in this unit · develop and sustain a concise and convincing legal argument through to a logical conclusion, and · importantly, answer the specific question asked. Technical aspects (10%) The paper should: · correctly reference and acknowledge sources. Please note the reference system adopted in this assignment can be either the AGLC 3 (Australian Guide to Legal Citation 3rd ed) or the Harvard referencing system. The referencing system adopted must be used correctly and consistently; · use fluent, clear, concise writing that contains clear expression, correct grammar, syntax, sentence structure and spelling; and · use headings and subheadings (where appropriate), an introduction, conclusion and bibliography or reference section. Page 1 of 2 Presentation1 1 LAW00004 Company Law SCHOOL OF LAW & JUSTICE Session 2, 2018 RESEARCH ASSIGNMENT • Weighting: 50% • Due : By 11:59pm 27 August 2018 •  Length: 2400 words (+100 maximum) •  Submission method: turnitin Note: The headings, footnotes (or in-text referencing), bibliography & coversheet do not form part of the word count. Research Assignment 2 Marking Criteria The assignment will be marked according to the following criteria: •  Research (40%) • Analysis (50%) •  Technical aspects (10%) • Go to the Assessment details on Blackboard. 'Research Assignment’ Assignment Structure •  Introduction • body and • conclusion.  What is required? •  The focus is on explaining the fiduciary concept in detail – the statement helps you do this. • Give specific examples from (a), (b) & (c). • Consider using subheadings to identify to the reader (and importantly the marker) what you are discussing. (refers to (a), (b) & (c) of the assignment topic). 3 'Research Assignment’ Consider the following headings as a guide: •  Introduction • Fiduciary concept. • the general law - promoters • Partnership Act • Corporations Act 2001 (Cth) • Conclusion 'Research Assignment’ • As the name ‘research Assignment’ suggests your discussion and analysis should be supported by a depth of research.  •  Important: note the marking criteria. • To avoid plagiarism you will need to correctly cite the source of the information. • Direct quotes require inverted commas and pinpoint citation .  • The assessment item requires a depth of research. You are expected to cite the research, including cases that discuss the fiduciary concept in (a), (b) & (c).  Cite the source • Cite material correctly •   Use inverted commas around ‘quoted material’ and pinpoint citation (para & page numbers). • Quoted material is when you use exact words from an original source. •  Paraphrased or summarised material (correctly cited) in a manner to develop your discussion is a better approach to excessive quoting.   4 **Read the Assignment Topic carefully. • Give examples from: -  the general law (Australian law) (as it relates to the formation of a company); (ie. Case/s) -  the Partnership Act; (ie. section/s and case/s) AND -  the Corporations Act 2001 (Cth) (ie. section/s and case/s • Do not forget about the assignment statement. •  Focus on Australian law (but English law could also be relevant). Not USA law. . Research • The main focus of you discussion should be on explaining the 'fiduciary concept'.  • Your research should include cases and commentary.  • Case law assists to demonstrate the legal principles.  • The commentary should include text books and journal articles.   • Avoid writing out large extracts from the legislation. • Avoid writing out large extracts from the cases.  • Use cases and material to support your own discussion on the fiduciary concept.  'Research Assignment’ – case law • Use of ‘case law’ under each example (a,b & c) • Case law will assist to demonstrate your understanding and explanation of the fiduciary concept. •  The term ‘case law’ includes general law cases and cases that interpret the relevant statutory provisions. 5 'Research Assignment’ – case law •  You are not expected to do in depth case analyses. • When discussing cases avoid going off tangents. Stay connected with the assignment topic: (assess word count allocation.) •  For the purpose of the assignment the main thing you should get from the cases is the legal principles (what the law is). Assignment & case law •    For example in Aequitas v AEFC [2001] NSWSC 14 [346-348] (Justice Austin J) states the legal principles relating to identifying promoters. •  It is helpful to provide a brief description what the case was about and proceed to discuss the legal principles noted in the case. 'Research Assignment’ – case law  A brief note on what the case is about might only be one sentence or even a few words.   For example the words “in Gluckstein v Barnes [1900] AC 240, Lord Halsbury said (at 247)…” could be restated with a brief factual note as follows:  “in Gluckstein v Barnes [1900] AC 240, a case involving promoters making a secret profit,  Lord Halsbury said (at 247)…” . 6 Referencing •  You can use either Harvard or AGLC3 •  If you are using Harvard use a bibliography (all sources consulted).  •  If you use footnotes (AGLC3) use a reference list (only sources cited). How do I reference the Partnership Act in  reference list? In NSW •  Partnership Act 1892 (NSW) (hereinafter called Partnership Act) OR (‘Partnership Act’) •  s 1 Partnership Act 1892 (NSW) •  ss 1 and 2 Partnership Act 1892 (NSW) How do I reference the Corporations Act? • Corporations Act 2001 (Cth) (hereinafter called Corporations Act) OR (‘Corporations Act’) •  s 124 Corporations Act 2001 (Cth) •  ss 124 and 125 Corporations Act 2001 (Cth) 7 Pinpoint Referencing - Cases • Charlton v Baber [2003] NSWSC 745' is fine for the reference list.  • However when you reference it in your discussion you should identify the judgment and paragraph number.  This is essential for direct quotes. •  For example  Charlton v Baber [2003] NSWSC 745 [52] (Barrett J), note [52] represents paragraph 52 of Justice Barrett’s reported judgment. How to reference the partnership material provided on BB? •  The reference is Turner C and Trone J, Australian Commercial Law, 30th ed, Thomson Reuters, 2014 •  Remember - Where relevant - add the paragraph and/or page number. Is it OK to reference Wikipedia? •  It is preferred if you research from an authoritative source.  •  If you are using content from Wikipedia you will have to reference it otherwise you may find yourself facing questions regarding academic misconduct (plagiarism).  •  Students who use Wikipedia as their main source of information may find it difficult to satisfy the research requirements of the assessment task. 8 Locating Partnership law cases (especially re fiduciary duties?) •  Try the 'noteup' tool in austlii.  •  For example ‘Go to’ the Partnership Act in austlii  • open a relevant sections.  • check on the 'note-up' tab •  view the cases. Does director's fiduciary duty include “Duty of Obedience” & “Duty of Care”? • Under Australian law, fiduciary duties do not include the duty of care.  •  ‘Duty of care’ is owed under the common law and equity but it is not fiduciary.   • Australian courts have not identified a specific ‘duty of obedience’.  However the fiduciary duties are cast in a manner to avoid disobedience.  Locating cases via austlii •  Try the ‘advance search' tool in austlii.  •  For example ‘Go to’ the home page in www.austlii.edu.au • Check ! in the search box and check ‘advanced search’. • Check ! next to Select the database(s)’ and check ! next to ‘All Case Law Databases.’  •  Enter search term, for example, ‘fiduciary and partnership’ •  view the cases. 9 Relevant Jurisdiction? •  Ensure your research applies to Australian law.  The fiduciary law in the USA is not the same as Australia.  There are similarities and there are also differences.  • UK law is fine but avoid citing the US position unless you are able
Answered Same DayAug 23, 2020LAW00004Southern Cross University

Answer To: LAW00004 — Company Law S2 2018 Research Assignment Details: Due:27 August 2018[footnoteRef:1] [1:...

Shanaaya answered on Aug 26 2020
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Fiduciary Duties
    Fiduciary Duties
    2018
    
[Fiduciary Duties]
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Introduction
A fiduciary is a trust or a person which has the power and obligation who act for another under circumstances which require total trust, faith, and honesty. In other words, fiduciary can be defined as the legal or ethical relationship of trust with one or more person or parties who efficiently take care of money and other assets for another person. It’s an individual who is trusted by another individual and give the co
nfidence to manage property or money. It’s a relationship wherein one person has the obligation to perform duties for another's benefit. For example, a corporate trust department of a bank obligates to perform as a fiduciary for another company. Same way asset managers of pension plans, tax – exempted assets and endowment are considered fiduciary under the law (Boatright, 2015).
Meaning of the Fiduciary
If we talk about the fiduciary relationship is all about the idea of faith and confidence which in turn generally established only when if the other person should be given some confidence and it will be accepted by another person (Eskenazi, 2016). The highest legal duty of one individual could be it involve and bound ethically to act in others best interest. It involves general wellbeing, but on the maximum time, it involves finances. Fiduciaries relationships can be of different types:
· To include the working of the Corporate board members along with the shareholders
· Working of the Executors and legatees
· Determination of the Guardians and wards
· Working of the Promoters along with the stock subscribers
· Working of the Lawyers and clients
· Alignment of the Investment corporations and investors
“Since the decision of the High Court in Hospital Products Ltd v United States Surgical Corporation[1984] HCA 64, it has been accepted in this country that a fiduciary duty arises out of an undertaking, express or implied, by the person incurring such duty.”[footnoteRef:2] [2: ]
In the decision of the High Court in Hospital Products Ltd v United States Surgical Corporation
The issue was that Hospital products ltd company was put into effect with a dishonest plan which they had formulated before and he had put his proposal to the United state surgical Corporation (Hawley,2014). The proposal was HOSPITAL PRODUCTS LTD will make products itself which resembles the product manufactured by UNITED STATES SURGICAL CORPORATION and would pass under like that it is under license of UNITED STATES SURGICAL CORPORATION. It will result HOSPITAL PRODUCTS LTD would own benefits from this solely which would otherwise achieve by UNITED STATES SURGICAL CORPORATION. The plan comes into effect in a number of stages. First stage HOSPITAL PRODUCTS LTD launch products in such a manner that it will sell with UNITED STATES SURGICAL CORPORATION product. It is the practice of UNITED STATES SURGICAL CORPORATION in order to assist market of products it supplies products to distributors and dealers of UNITED STATES SURGICAL CORPORATION in comparative low cost and disposable price. UNITED STATES SURGICAL CORPORATION follows a policy to sterilize its all product and packaging is done in a very appropriate manner. In clinical product, its once used should be disposed of and had to discard this product. In second stage HOSPITAL PRODUCTS LTD manufacture all the components of the disposable units, they assemble, sterilize and pack label and sell in competition with UNITED STATES SURGICAL CORPORATION.
HOSPITAL PRODUCTS LTD hires engineering consultant company who arrange to manufacture various components and assembles sterilize package all the disposable units. Much of the engineering work was done in both the stages under contract by HOSPITAL PRODUCTS LTD. They research and make dyes of surgical products who are identical to UNITED STATES SURGICAL CORPORATION products (Hawley, 2016). UNITED STATES SURGICAL CORPORATION does not have any patent rights in Australia. Once HOSPITAL PRODUCTS LTD starts selling products on the fullest they send a letter to UNITED STATES SURGICAL CORPORATION that they are now no longer agents of UNITED STATES SURGICAL CORPORATION. The reason was given by HOSPITAL PRODUCTS LTD to discontinue distributorship was surprising. HOSPITAL PRODUCTS LTD began supplying products which it had itself developed and assembled and repacked. In order to achieve success and increase production of HOSPITAL PRODUCTS LTD needs finance to increase its capacity. So HOSPITAL PRODUCTS LTD gets to increase its credit limit from the bank of New York by stating that HOSPITAL PRODUCTS LTD is the distributor of UNITED STATES SURGICAL CORPORATION. HOSPITAL PRODUCTS LTD is now able to sell its product in the market because HOSPITAL PRODUCTS LTD was the individual distributor of UNITED STATES SURGICAL CORPORATION so he starts selling their own products instead of UNITED STATES SURGICAL CORPORATION.
Now in 1980, UNITED STATES SURGICAL CORPORATION starts proceedings against HOSPITAL PRODUCTS LTD regarding the conspiracy played by HOSPITAL PRODUCTS LTD with UNITED STATES SURGICAL CORPORATION (Hawley, 2016). UNITED STATES SURGICAL CORPORATION proceedings include proceedings for infringement of patents under the Federal court of Australia. UNITED STATES SURGICAL CORPORATION says breach of confidence, unfair competition, and other alleged wrongs has done.
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