Lecture 3
Lecturer/stream details
Legal nature of companies
► The
separate entity doctrine
► Corporate capacity
► Limited liability
► Piercing the corporate veil
► Corporate liability
Separate legal entity doctrine
► The
company is a legal person separate from its participants
► This means that:
its obligations and property are its own and not those of its participants
its existence continues unchanged even if the identity of the participants changes Salomon v Salomon (1897) shoe business
Salomon
cash, debenture
20,001 shares family 6 shares
Pty Ltd company Salomon (cont)
► Issue
– was Mr Salomon entitled to priority under the debenture over other, unsecured creditors of the company? ► Depends on whether the company and its controller are separate legal entities and not agents or trustees for each other
► Court said “yes”
Characteristics of companies
► Important
features of companies arising from their separate legal personality can incur obligations and hold rights, and sue and be sued, in their own name
can contract with their controllers
have perpetual succession
are separate taxpayers
participants (may) have limited liability
Companies are separate from their controllers
► Lee
v Lee’s Air Farming Ltd: issue – could Mr Lee be both the controller of a company and its employee?
► Macaura v Northern Assurance: issue – was Mr Macaura the
“owner” of property that belonged to a company controlled by him?
Corporate capacity
► Can
companies (which are artificial legal persons) do everything that natural persons can do?
► Companies can carry on business and other activities because the law confers on them the capacity to do so Corporate capacity (cont)
► Section
124 – Companies have the capacity to do most things that a natural person can do, and some additional things, including issuing shares Corporate capacity (cont)
► What
is the effect of internal limitations on powers, such as in the constitution? ► Section 125 – constitution may limit power or objects, but acts outside those limitations not invalid as against third parties
► Internal remedies may be available
Limited liability
► In
a company limited by shares, a member’s liability is limited to the amount (if any) remaining unpaid on their shares
► Allows investors to quarantine the risk of a particular venture from their other assets
In practice, creditors may negotiate personal guarantees etc from controllers Limited liability (cont)
► Economic
benefits:
reduces the need for investors to monitor their investment, allowing efficient diversification and reducing agency costs
promotes free transferability of shares
► At
whose cost?
Unsecured creditors
Victims of negligence
What is the corporate veil?
► Expression
that lawyers use to describe the legal rules that keep participants
(members, officers) separate from the company in a legal sense
► Means that the law cannot look through the veil of incorporation and say that the
company’s