Highlights
Case Scenario
Modern Summer BBQ Ltd is a company registered in Australia manufacturing and selling beds and bed accessories. It proposes to expand its business to include either the manufacture of outdoor furniture such as gas heating units for outdoor use, BBQ cooktops, outdoor lamps and other outdoor electrical items or the manufacture of indoor replica antique furniture.
Before making any decision about the expansion, Modern Summer BBQ Ltd engages an external surveyor to conduct a survey into the feasibility and marketability of the two projects above. The board of directors subsequently meets and decides on the matter. Anna appears not to be interested in the topics being discussed. She lives in an apartment most of her adult life and has no appreciation for any of the outdoor entertainment furniture. She also has no interest in decorating homes with antique furniture. Thus during the board meeting, she plays with her latest mobile phone and her tablet and occasionally chats quietly on the phone. It is only towards the end of the meeting that she becomes active in her involvement and provides a passionate speech on why the board should vote on the indoor replica antique furniture project. The board simply agrees with her given that she has been "right most of the time". The board resolves to take on the indoor replica antique furniture project and expand its business and rejects the outdoor furniture project.
Two days before the board meeting, a 30-page report has been returned to the company documenting the outcomes of the survey, which has since been circulated to all the directors in the company. The overall overcome of the survey indicates that there is not a lot of demand for indoor replica antique furniture.
Two months after the board meeting, Anna resigns from the board of Modern Summer BBQ Ltd and goes to work for Adam Furniture Design Pty Ltd, a company that designs modern furniture and her brother Adam is the managing director. After a lengthy discussion with Adam about the survey results obtained from the previous company, Adam Furniture Design Pty Ltd decides to expand its business to include the manufacture of outdoor furniture for entertainment purposes, including the manufacture of gas heating units, BBQ cooktops and fancy outdoor lamps. The expansion at Adam Furniture Design Pty Ltd proves to be successful and lucrative.
Thomas is the managing director of Modern Summer BBQ Ltd. He approaches your law firm seeking legal advice. You have now received instructions from the Managing Partner of your law firm to provide a Memorandum of Advice on the following matters:
(A) What duties have been breached by Anna? Your discussion should include the relevant sections of the Corporations Act 2001 (C'th) and relevant court cases.
(B) A few shareholders of Modern Summer BBQ Ltd are threatening to initiate a statutory derivative action against the board of directors for failing to take on the outdoor entertainment furniture project. In the alternative, they wish to bring an oppression action against the directors. Can they bring either of these actions? Explain fully.
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