Construction Mediation in Australia - Assignment Example

Corporate Law Assignment Corporate Law Assignment Part A Question Explain who the respective parties to the action were. Why were there so many parties? The respective groups in this case were as follows: (1) Ian Derek Meyer, otherwise known as Mr. Meyer, who was the first respondent of the case; (2) the Public Trustee of Queensland, which acted as the Executor of the Estate of Joseph Edwin James, who was the first applicant; (3) Rosemary Lynn Meyer, also known as Mrs. Meyer and the second respondent; (4) Pitgate Pty Ltd., who was the second applicant; and finally, Meyer Gold Mining Pty Ltd, which was the third respondent. Formerly, there was a partnership between Meyer Gold Mining (MGM) and Joseph Edwin James. The constitution that governed the partnership changed and a fresh partnership was created between MGM and Pitgate. Mr. James still held a substantial share (49 percent) in their mining lease, which was still being used in the MGM and Pitgate partnership. The late Mr. James’ interest of the estate is represented by the Public Trustee since they had been appointed managers and receivers of the partnership between MGM and Mr. James and trustees of a numbers of the properties. Finally, Mr. and Mrs. Meyer directed MGM and were responds of the action. Question 2: What were the legal issues to be determined with regards to MDLA 415? The legal issues to be determined with regards to the MDLA 415 were the entitlement of the assets benefits and whether this entitlement lies exclusively with Mr. Meyers. There were other issues such as the application for the license in paragraph 17 and also in paragraph 35 about the constructive trust, whether Mr. Meyer is entitled to the benefit of the license when the application was made by a reasonably rouge agent of the partnership and whether the entitlement is held on constructive trust. Also, in the first paragraph, we can see that major questions were asked as to whether or not certain plant and equipments were properties of the partnership and also whether Mr. Meyer was totally entitle to the benefit of the application for a Mineral Development License. It also wanted to establish whether the mining lease, though not officially held in the name of the partners, was the subject of the partnership activity. Question 3: What did the first Respondent argue with respect to the MDLA 295 and MLDA 415? The respondent argued that no time did he ever treat Mr. James’ interest in the MDLA 295 as part of the partnership business and sought to explain why it was it was listed by him as an asset of the partnership in reference of correspondence to the applicants when asked to list partnership property upon the winding up of the partnership. The explanation given in paragraph 34 is that when he listed the asset, which had potential value to the Chillagoe Perlite partnership business venture as an undeveloped and untested resource, it played no huge role in the operation of the Chillagoe Perlite venture as partnership property. He merely reasoned that this would assist in the finalisation of the administration of Mr. James’ estate. Mr. Meyer argued that he made MDLA 415 to protect his personal interest and that of his company as the potential future operator of the partnership. Question 4: What did the Applicants allege with respect to the requirement for ‘partners to account to the firm’ in respect of MDLA 415? This question refers to the entire paragraph 27. The applicants referred to section 32 of the Partnership Act 1891of Queensland that Mr. Meyer has to account to the firm for any benefit derived by the partner without the consent of the other partners, from any use by the partner, who is Mr. Meyer himself, of a partnership business connection. The operation of this provision is extended to transactions undertaken after a partnership has been dissolved by the death of a partner. Question 5: What did the court decide with respect to the Applicants’ arguments on partners having to account to the firm and MDLA 415? The court decided that neither Mr. Meyer nor Mr. James where personally members of the partnership and unaided the provision under section 32 of the Partnership Act 1891 could not apply unless it were possible to identify Mr. Meyer and MGM as a single entity. However, Reliance was also placed on Chanv Zacharia in which the court held that the relationship between partners is a fiduciary one and should lead to the dissolution of the partnership Again, it may be argued that Mr. Meyer was not personally a member of the partnership, and accordingly the propositions formulated by the court do not apply to him. The court also held that Mr. Meyer and Mr. James made the application which became MDLA 295 as agents for the partnership. The justice held that they did so, in connection with the partnership business, with a view to its expansion beyond the area the subject of ML 20152. Because of this, the court had to consider the better view to be that ML 20152 came to be held by Mr. James and Mr. Meyer on trust for the partnership. Question 6: With regards to MDLA 415, what declaration did the court make and why? The counsel for the applications referred to the cases Tasmanian Seafoods Pty Ltd v Peters and Swift v Dairywise Farms Ltd, which helped forward the declaration Mr. Meyer did use his collection to the partnership to form the basis of his application in respect of MDLA 415, and; therefore, deriving the benefit from his correction with the partnership. In accordance to the submission by the applicants for their rights and interests held in MDLA 415 by Mr. Meyer are subjective of the constructive trust in favour of the partnership. The court accepted this submission declaring Mr. Meyer has fiduciary relationship with the partnership, and; thus owes the rights and benefits in MDLA 415 and trust for the benefit. The court considered that, in respect of that application, he has fiduciary obligations to the partnership and holds such rights and interests as he might have for their benefit. Question 7: On what grounds did the Applicants claim that the plant and machinery was partnership property? The main applicants’ claim was that the disputed plant and equipments were partnership property for application of section 23 of the Partnership Act because as long as the failure of Mr. Meyer to list the disputed plant and equipment as personal property when called to compile the inventory of the partnership property and personal property on 15 May, 2007. The applicants drew further attention to the fact that it is impossible to obtain evidence for Mr. James on the arrangements made about the property. Question 8: What did the court decide with respect to the plant and equipment? The court decided that the disputed plant and equipment were not partnership property, but the property of Mr. Meyer and his interest. The court relied on the fact that the financial statements of the partnership have no records of the plant and equipment purchase by the partnership or being contributed as capital to the partnership by Mr. Meyer’s interest. The final financial statements also have records of the plant and equipment supporting Mr. Meyer’s claim that the plant and equipment were indeed leased by the partnership on his interest. Part B A number of case laws in Australia have proved that their courts are basically reluctant when it comes to lifting the corporate veil (Tham, 2014). Nevertheless, the restrictions of an occasional decision of a court of law to lift the Australian corporate veil is not concluded, thus, it is hard to tell situation that might allow the court to pierce the veil and there also appears to be a tendency to reinvent the wheel each and every time this argument comes up. The term lifting the corporate veil, other times known as piercing, refers to a court’s decision to look behind a different legal personality of an organisation (Grantham, 2013). In essence, the court will choose to look behind the company to assign in order to assign a privilege, corporate right, liability or duty to a member of the organisation where a firm application of the separate legal character doctrine would vest the rights or liabilities only in the organisation. Australian courts have viewed veil–lifting cases in an ad hoc way with fundamental policy considerations in mind. Critics have confirmed that the threshold issue comes from the truth that we lack a common, unifying principle that dictates the occasional resolutions of courts to lift the corporate veil, and, even though, an ad hoc clarification might be provided by a court house which so opts, there is no set approach to be derived from the law authorities (Anderson, 2012). Other critics have confirmed that a court of law can lift the corporate veil only if they see that there is a partnership between organisations in a group or any sham or fraud which the organisation has played a part or that the development of the company was planned to hide fiduciary obligations (Anderson et al., 2012). On September 13th, 2001, the Australian Supreme Court delivered ruling for security for costs against the plaintiff in Idoport Pty Ltd v National Australia Bank Ltd (Idoport Pty Ltd v. National Australia Bank Ltd, 2004). The groups applicable to ruling for the provision for security for costs against any plaintiff, in this case being Idoport Pty Ltd, are: (1) a court has the authority to call for security for costs against any plaintiffs who act as natural persons; (2) a court’s carefulness in making the ruling is broad; (3) the aim is to guard the court’s capacity to correctly put into practice its jurisdiction in order to order costs to the winning party; (4) a court has to search for a balance between avoiding unfairness to a destitute plaintiff and safeguarding the defendant through shutting him or her out of the court proceedings or otherwise letting him or her attend only a few proceedings; (5) the incapability of the plaintiff to gratify a costs order weights profoundly in the act of the court’s judgment; (6) a court has to be sure that a plaintiff cannot offer security for costs before it considers the proceedings to be deadened by the order; (7) the defendant might want security for the incurred costs prior to commencement of the proceedings, only if they were incurred in anticipation of proceedings; (8) expenses are to be gauged through reference to a clear methodology instead of mathematical certainty; and finally (9) courts are to look into their approximation a discount for the view that the court cases will not move to a full hearing, as well as settle at mediation (Idoport Pty Ltd v. National Australia Bank Ltd, 2004). In this case, the court depended partly on s 57 as authorising a widening of the cases in which proof might be admitted conditional on relevance, but did not complicate the basis for that perception (Cohen, 2014). When a witness’s awareness of an event or matter is appropriate, proof of that awareness is allowable; and if proof of that individual’s opinion is vital to obtain a sufficient understanding or account of his or her awareness, then an opinion rooted in what that individual heard, or saw otherwise considered about the event or matter is allowable as exception to the opinion rule (Aibinu, 2010). There is an obvious distinction between on the one hand, professionals called who were not in former days, in any way concerned as contemporary witnesses and, conversely, individual not fit as S.79 experts, but who can present S.78 proof of a contemporary nature as to their then views. The Court’s power to call for the separate determination of an issue is an optional power that has to be exercised sensibly, but cannot otherwise be restricted (Aibinu, 2010). In executing this power under Part 31, Rule 2, a court of law is now allowed to give effect to the superseding objective of the Supreme Court Rules; that is to facilitate the fair, fast and cheap resolution of the actual issues in the cases and cannot be defined in a more confined manner. This falls under Part 1, Rule 3 of the Supreme Court Rules (Aibinu, 2010). The court starts with the proposal that it is normally correct that each and every issue in their proceedings be disposed of in unison. Therefore, this applies for a party that yearns to have a question solely determined to prove that it is pleasing for that to take place (Aibinu, 2010). Devoid of being exhaustive, this separate determination of the Idoport Pty Ltd v National Australia Bank Ltd case might prove to be a suitable. This was especially where the judge considered that the resolution of the separate issue will impact the Idoport Pty Ltd through resolving its litigious controversies or significantly reduce the many controversies (McComish, 2007). The separation might also prove to be significant because the resolution of that separate issues carried with a tough prospect that the parties involved in this case will be able to rectify their dispute themselves making them avoid more litigation and court cases. In this Idoport Pty Ltd v National Australia Bank Ltd case, there was a clear demarcation between the main issue, as well as all other issues in the case including also issues of credit-worth of the witnesses. Thus, in such as situation, the court is granted right to uphold the corporate veil in order to come up with a fast ruling (Robertson, 2006). On the other hand, the separate determination of an issue can be suitable where there are linked issues, which the ruling of the separate issue will not affect the other significantly. For instance, in Idoport Pty Ltd v National Australia Bank Ltd the issue that caused the corporate veil to be lifted did not significantly affect the main case no wonder the court chose to lift the veil. In the Idoport Pty Ltd v National Australia Bank Ltd case, there was a commonality of witnesses, as well as issues of credit, as between the separate issue and other key issues which necessitated the ruling of the credit of some of the key witnesses (Spencer & Hardy, 2009). This precluded the same judicial officer for once more coping with the matters going to the credit of common witnesses. In some cases, courts has witnessed that there is a likelihood that the ruling of the separate issue will not eventually decide the issue but will only lead to an appeal from that ruling in references to that different issue, leading to a multiplicity of proceedings, disruption to the court cases and undesirable disintegration of the proceedings that is why it is significant, at times, to lift the corporate veil (Cohen, 2014). In conclusion to this part, the experience of courts brings forward that lifting of the veil normally results in the quicker and cheaper resolution of lawsuits as anticipated, and does not have the reverse effect as most expect. Thus, people who not put so much worry into it because before an issue is to be solely determined, a court house looks very closely to see that it will lead to the quicker and much cheaper resolution of the lawsuits. References Aibinu, A. A. et al. (2010). 2 Construction mediation in Australia. Mediation in the Construction Industry: An International Review, 19(4), 67-70. Anderson, H. (2012). Challenging the limited liability of parent companies: a reform agenda for piercing the corporate veil. Australian Accounting Review, 22(2), 129-141. Anderson, H. L., Welsh, M. A., Ramsay, I., & Gahan, P. G. (2012). Shareholder and creditor protection in Australia-a leximetric analysis. Company and Securities Law Journal, 30(6), 366-390. Cohen, J. (2014). Veil piercing-a necessary evil? A critical study on the doctrines of limited liability and piercing the corporate veil. Oxford: Oxford University Press. Grantham, R. (2013). Corporate Veil: An Ingenious Device, The. U. Queensland LJ, 32, 311. Idoport Pty Ltd v. National Australia Bank Ltd, 2004 N.S.W.S.C. 695 (2004). McComish, J. (2007). Pleading and proving foreign law in Australia. Melb. UL Rev., 31, 400. Robertson, A. (2006). Compulsion, delegation and disclosure--changing forces in commercial mediation. ADR Bulletin, 9(3), 4. Spencer, D., & Hardy, S. (2009). Dispute Resolution in Australia: cases, commentary and materials. New York: Thomson Reuters. Tham, S. S. (2014). Piercing the corporate veil: Australia and China (doctoral dissertation). South Street, Murdoch WA: Murdoch University. Read More