Howard Media and Court Decision on the Alleged Partnership - Essay Example

COMPLETE VERSION – Please just send me a message if you anything. Thanks! Assessment Item 1 – Written Assignment Part A: 1. Plaintiff want in this case Initially, the plaintiff or AM Marketing is seeking payment of unpaid invoices for services rendered amounting to $35,830 but Howard Media paid AM Marketing $5,000 a day after the proceedings commenced (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803). The amount is from the combined total of Howard Medias’ unpaid invoices from September 1, 2006 to March 1, 2007. 2. Answer: a. Defendant’s argument and primary defence The defendant Howard Media defended the claim of AM Marketing by arguing that there is an existing partnership between them (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803). In paragraph 71 of (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803), Howard Media claim that “by way of conduct and oral agreement”, they agreed to do business together last October 2001. The used of “partnership” argument against AM marketing among other things is supported by the belief that they equally share profits and bear losses together. They are both entitled for expenses incurred while doing their share of work. For instance, in paragraph 72 of (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803) AM marketing was in charge of soliciting advertising and bookings to raise funds for magazine, periodicals, and guide books production while Howard Media do the administration, distribution, and publishing. b. Other arguments Howard Media or the defendant in this case further argues existence of profit sharing arrangement is adequate proof of partnership as indicated in s 2 (3) of the Partnership Act. In view of this argument, the Court tested the existence of partnership and through examination of s 1 of the Partnership Act 1892 ruled that existence of partnership should satisfy three important conditions. These include evidence that the business was carried on, “carried on by persons in common”, and conducted “with a view of profit” (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803). Since the business was clearly carried on and conducted with a view of profit, the only issue that must be address by Court is whether it was carried on “in common” by both parties or AM Marketing and Howard Media (see paragraph 78 of AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803). The case of Momentum Productions Pty Ltd v Lewarne [2009] FCAFC 30; FCR 268 174, was used to argue about the existence of evidentiary presumption. However, the Court noted that the same case is not only referring to profit sharing as evidence to presume partnership but absence of factual circumstances to disprove it (see paragraph 81 and 82 of AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803). For this reason, citing Badeley v Consolidated Bank (1888) 38 Ch D 238 at 258, the Court finds it necessary to examine the terms and course of dealing of the parties involved and discover their true intentions or “the real agreement between the parties”. Citing the case of Cox v Hickman where it was held that partnership requires every partner to be an agent of another (Cox v Hickman (1860) 8 H.L.C., 268), the Court feels that it is no longer enough to establish a partnership based on profit sharing. Moreover, the Court also noted the fact that in Mollwo, March & Co. v The Court of Wards, Sir Montague Smith highlighted the need to look over the terms and scope agreement before any presumption of intention can be made (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803 at 82). As stated in paragraph 87 of AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803, Howard Media also presented an affidavit dated April 1, 2010 referring to a conversation with Mr. Burke-Smith resulting to an agreement to share losses, which is again proof of partnership according to the defendant,’s counsel. Moreover, Mr. Howard, relies on the fact that he and Mr. Burke-Smith is operating a joint bank account and presented three cheques signed by the latter to prove the existence of a partnership (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803 at 104). However, the Court found inconsistencies with Mr. Howard’s April 1, 2010 affidavit, as aside from the fact that it was made just before the hearing, the information was not included in his June 24, 2008 affidavit, which was intended to provide evidence about the partnership (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803 at 91). Mr. Howard himself admitted that his contribution to the writing of affidavit was minimal and possibly mere reconstruction of Mr. Burke-Smith’s affidavit (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803 at 92). More importantly, Mr. Howard’s contention about sharing of losses was changed during the cross-examination and denied that they ever discuss anything about equally bearing the losses (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803 at 93). For this reason, the Court feels that there was no agreement for sharing losses at all and such absence is detrimental to Mr. Howard’s defence. The defendant’s counsel however cited Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd [1974] HCA 22; (1974) 131 CLR 321 to show the existence of informal agreement that could justify equal sharing of losses regardless of oral agreement. In response however, the Court cited the case of Amadio Pty Ltd v Henderson (1998) 81 FCR 149 at 172 and stressed the need to determine all facts and circumstances surrounding the relationship of the parties involved (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803 at 97). 3. Answer: a. Court decision on the alleged partnership The Court turned to previous cases such as The Duke Group Ltd v Pilmer [1999] SASC 97; (1999) 31 ACSR 213 and Lang v James Morrison & Co Ltd (1911) 13 CLR 1 at 11 and later found that agency and mutuality is an essential feature of partnership (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803 at 99). The Court did not accept that the establishment and operation of the joint account or the “Howard No. 2 account” as evidence of the existence of partnership because no mutuality was present in the control and operation of the account (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803 at 111). Similarly, the cheque co-signed by Mr. Burke-Smith in February of 2003 in favour of Stone and Partners, the meeting held in February 2002 which was allegedly a meeting intended to discuss a partnership agreement, and the letter supposedly from Stone and Partners were not accepted by the Court. This is because there is no objective evidence about the purpose of the meeting, no evidence that an agreement was reached as well as any physical evidence of the alleged letter from Stone and Partners (.AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803 at 119-121). b. Legal issues that must be satisfied before making judgement Primarily, the Court finds it necessary to test the existence of partnership by consulting the Partnership Act of 1892. Secondly, it must determine of the business was carried on with a “view of profit” and “in common”. Thirdly, it must satisfied the legal issues surrounding presumption of partnership, sharing of profits, terms and course of dealing between parties, informal and oral agreement, existence of agency and mutuality as essential element of partnership (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803 at 75, 76, 78, 82, 94, & 95). 4. Answer: a. Presumption of partnership relied on by the defendant The counsel for Howard Media make used of s 2 (3) of the Partnership Act regarding profit sharing as prima facie evidence of partnership. The defendant also relied to the presumption of partnership referred to in Momentum Productions Pty Ltd v Lewarne [2009] FCAFC 30; (2009) FCR 268 174 where evidentiary presumption is not required (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803 at 79). Howard Media also relied on the supposed oral agreement to share losses and informal agreement between Mr. Howard and Mr. Burke-Smith. b. Court decision regarding this presumption The Court did not find any evidence to support the defendant’s presumption of partnership particularly any agreement to share losses thus ruled that such partnership never exist. The Court cited inconsistencies in Mr. Howard’s April 1, 2010 affidavit including his statement during the cross-examination. There was lack of any evidence to support the existence of any oral agreement (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803 at 93). The defendant’s argument supported by the decision of the court in Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales Pty Ltd regarding the relevance of informal agreement was contradicted by the Court in citing Amadio Pty Ltd v Henderson. In this case, the Full Federal Court requires presentation of all facts and circumstances surrounding the relationship of the parties in order to determine the existence of a partnership (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803 at 97). 5. Business in common The parties did not carry on a business “in common”. Citing the decisions in The Duke Group Ltd v Pilmer, Cox v Hickman, Lang v James Morrision & Co Ltd, and Smith v Anderson, the Court explained the need to establish an agency relationship as well as mutuality of rights and obligations before a partnership can be established (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803 at 99). The Court further clarify that there cannot be any partnership if agency and mutuality of right and obligations are missing because they are not merely additional definitional requirements but part a statutory criteria of the Partnership Act (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803 at 102). 6. Factors that influenced the court’s decision Other factors the influenced the Court’s decision includes the fact that AM Marketing was seeking payment from Howard Media for services rendered from the very beginning. Moreover, instead of paying a fee for every issue of Better Business Magazine, Mr. Howard intentionally manoeuvred the payment to profit sharing in order to protect his financial interest (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803 at 85). The Court was also influenced by the inconsistencies in his affidavit regarding the existence of an agreement to share losses and the fact that the “Howard Media No 2 Account” is in the name of Howard Media alone (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803 at 87 -104). The decision of the Court in these matters is influenced by the s 24 (1) (1) of the Partnership Act and the case Amadio Pty Ltd v Henderson where facts and circumstance surrounding the supposed partnership played a major in establishing its existence (AM Marketing Pty Ltd v Howard Media Pty Ltd (2010) NSWSC 803 at 97). Part B: 1. Definition of “registered office” according to Corporations Act 2001 (Cth) In the Corporations Act 2001, the term “registered office” is referring to a body (a body corporate or unincorporated body such as society or association) entity registered or listed under section 142 or 601 CT. In Part 2B.5, 142, a company is required to have a registered office where communication and notices may be sent. In Section 117, Part 2A.2 of the Corporations Act 2001, the company must lodge an application with ASIC in order to be officially registered. These include stating the type, proposed name, name and address of the owner, address of the company, principal place of business, and others. In return, ASIC will issue an ACN or Australian Business Number, register the company, and issue a certificate of registration (Corporations Act, 2001, Section 117-118) 2. Power of a company director to inspect the books of the company for the purposes of legal proceedings under Corporations Act 2001 (Cth). Under the Act, a director of a company is a person appointed to the position or acting in that capacity (Corporations Act, 2001, Section 9). The director of a company under the Act Section 198F (1) have rights to access company books for the purpose of a legal proceedings. This right is still in effect during 7 years after ceasing to be director of the company (Section 198F, 2). 3. Answer: a. Number of Secretaries for Proprietary and Public Company In Section 204A (1), (2) of the Corporations Act 2001, although it may choose to have a company secretary, a proprietary company is not required by the Act to have a secretary. In contrast, at least one secretary is required for a public company but that secretary must ordinarily reside in Australia. b. Number of Secretaries for each company type Under Section 5.4 of the Corporations Act 2001 (Cth), except for proprietary company all other company must have at least one secretary ordinarily residing in Australia. If a company happens to have more than one secretary, one of them should be a resident of Australia. For instance, in section 204A (1), proprietary companies can have 1 or more secretaries but one of them must be a resident of Australia. Similarly, there is no limit in the number of secretary in public companies for as long as one of them reside in Australia (s 204A (2)). 4. How “financial year” is defined by the Corporations Act 2001 (Cth)? In Section 323D (1) of the Corporations Act 2001, a financial year starts on the day of company registration or incorporation and ends after 12 months or any period determined by the directors but no longer than 18 months. After the first financial year, the following financial year must start at the end of the previous financial year and end after 12 months. However, the directors can shorten or extend the financial year but this time it should not be more than 7 days both ways (Section 323D, (2)). 5. Section of the Act “accounting standard” is defined and the definition given. In Section 9 of the Corporations Act 2001 (Cth), accounting standard is defined as “an instrument or any provision of such an instrument as it so has effect” in force under Section 334. Section 334 of the Corporations Act 2001 (Cth) on the other hand, clarifies that an acceptable accounting standard is a standard produced by AASB or the Australian Accounting Standards Board for the purposes of the Corporations Act 2001. It is applicable to “periods ending after the commencement of the standard or starting on or after a later date specified in the standard” (Section 334 (4)). The accounting standard may be applied by a registered company earlier if the standard permits and approved by AASB (Section 335 (5)). 6. Answer: a. Pursuant to the provisions of the Act, would a share jointly owned by two people allow both people to vote? In a share jointly owned by two people, the Act in Section 250F clarify that only the vote of the member who first appear in the register will be counted. In other words, jointly held shares are considered only one vote. However, the rule contained in Section 250F is a replaceable rule or subject to the provisions contained in Section 135 of the Act as discussed below. b. Does this rule have to apply to a proprietary company if it decides otherwise? As mentioned above Section 250F for “Jointly Held Shares” is a replaceable rule thus subject to the provisions contained in Section 135 “Replaceable Rule”. Replaceable rule is only applicable to proprietary company registered after July 1, 1998” (Section 135 (b), (i), or “was registered before but repeal its constitution after that day (Section 135 (b) (iii)). 7. What section of the Act imposes the duty of care and what does the section require a controller do to satisfy their duty? Section 420A of the Act, requires a “controller’s duty of care in exercising power of sale” thus he or she must take all precautions when selling a property. These include ensuring that it has market value equal or larger than the existing market value and a reasonable price when it was sold (Section 420A (1a), (1b)). 8. What section of the Act is there capacity for two or more people to be appointed as administrators of the company? Section 451A of the Corporations Act 2001 (Cth) allows the appointment of two or more administrators for the company. The power maybe exercised by one of them or all of them together for as long as there is no provision in their appointment that prevent them to do so. Similarly, the Act also allows the appointment of two or more administrators of deed of company arrangement in s 451B. They can also perform and have the same arrangement as provided in s 451A. Part C: “The concept of piecing the corporate veil is troublesome and should be abolished, especially in corporate groups” In law, corporations are generally viewed as separate legal entities1. In Australia for instance, a company becomes a separate legal person the moment it registered and certified under the Corporations Act 20012. A good example of this is the case of Salomon v Salomon & Co3 where the court held the concept that a corporation is an independent legal entity, separate and distinct from the shareholders. Unlike sole proprietorship and general partnership, which are typically an extension of the individual owner, a corporation has a personality separate and distinct from its owners or shareholders4. In fact, the term “body corporate” is used to describe all artificial legal entities, a separate person with its own legal rights5. For instance, it can enter into contracts using its own name or commences or be a defendant in a legal proceeding on its own. Piercing or lifting the corporate veil is the possibility of looking behind the corporations separate personality to make their members liable6. In other words, this is an exception to the rule and penetration of the corporate shell contrary to the principle of separate corporate personality demonstrated in Salomon’s case, which is considered the “cornerstone of company law”7. The process of lifting the veil primarily involves disregarding the personality of the corporation and looking into the realities of the situation8. This can be done through a statute or pursued by the court based on its own judgement. Some example of these statutory directions to pierce corporate veil of are the United Kingdom’s Landlord and Tenant Act 1954 s 30(3)9, Trading with the Enemy Act 1939 s 210, and the Companies Act 200611 that made directors of a company liable for the organisations failure. In Australia according to Roman Tomasic et al12, court’s decision to pierce the corporate veil is merely confined to the fact of the case and the notion of public policy and equity. For instance, in Littlewoods Mail Order Stores Ltd v McGregor13 Lord Denning gave an alternative conceptualization of the doctrine laid down in Salomon v Salomon & Co [1897] AC 22 and warned that such doctrine should be carefully watched. Although such doctrine cast a veil over corporate personality, the court can see what really behind the veil and draw aside the veil if necessary14. According to Michael Gillooly15, the court lifting of corporate veil is not predictable but in Australia, one strong indication that the corporate veil will be lifted is when there is proof that the company is being used as a cover. Similarly, the Australian Corporations Act 2001 (Cth) in s 95A allows corporate veil to be lifted particularly when it is involved insolvent trading or when the directors failed to prevent incurring a debt despite evidence that such debt will result to insolvency16. By analysis however, piercing the corporate veil is only “troublesome” to corporations because of its structure and the subsequent mismanagement if any. For instance, the investor in a sole proprietorship is in control of all the aspects of the business while each investor in a partnership has equal voice in business management17. In contrast, management of business in a corporation depends on number of stock thus who owns and control the majority of the voting stock are the dominant voice in management and free to run the corporation whatever direction they wish18. However, this does not necessarily mean that the court will often pierce the veil of corporations since according to the study conducted by Muzaffer Eroglu19, out of 55 Australian cases involving insolvency and clearly requiring piercing of the veil, only 24 percent was actually pierced. Similarly, although there is an increased demand for piercing the veil, most of them were dependent on contract or statutory basis. More importantly, the percentage of piercing the veil on group enterprises is the lowest. In Briggs v James Hardie & Co Pty Ltd20, the court implies that absence of unifying principle concerning the occasional decision to pierce the corporate veil. In terms of corporate groups in Australia, piercing the corporate veil is not the only problem because there are other regulatory approaches aimed to regulate corporate groups. These include imposition of statutory directors’ duties, use of oppression provision to prevent abuses in corporate groups, and the introduction of laws concerning insolvent trading21. Moreover, a 1999 study of piercing cases in Australia reveal that although the courts are doing more piercing than before, the piercing is more often done in proprietary than public companies and often targeting the controller who may be taking advantage of the veil22. Abolishing veil piercing in corporate groups may not the right approach since such there are already specific statutory obligations imposed on directors and officers in relations corporate accounts thus no piercing is necessary23. As mentioned earlier, court only ignores corporate entity in extreme cases24. For instance, according to Michael Spadaccini25, it is very likely that the court will use either alter ego or instrumentality rule in deciding the applicability of piercing the corporate veil in a certain case. The alter theory is most likely to be applied if the owner of an entity ignore the legal separation of the entity or disregard required formalities as the court will logically protect the creditors by ignoring the corporate form. In contrast, the instrumentality rule can be use only when the owner or owners totally dominate the finances, policy, and business practices of the entity particularly when this domination result to fraud or violation of a statute and breach of legal duty. More importantly, it is almost likely that the court will examine the circumstances where this domination and violation caused injury or inconveniences to the claimant. For this reason, abolishment of veil piercing in corporate groups is not a solution since lifting the veil for justice and equality appears troublesome to betrayers of public trust. Although piercing the corporate veil is a “drastic remedy”26, one important consideration is the fact that it is specifically designed to terminate limited liability that corporations enjoy only when it is necessary to achieve justice27. For instance, although fraud is a criminal act, it is not a necessary element of veil piercing and in some countries, implementation of the veil piercing is complex28. For instance, in the State of Iowa, instead of using alter ego the court applies a six-factor test in order to determine if it can pierce or not. In Australia, the fact that the legal separation of corporation from its shareholders and managers is automatically recognize upon registration under the Corporations Act 200129, the court will not generally pierce the corporate veil particularly when the purpose is to impose a liability30. Avoiding an existing legal obligation using corporate veil is certainly not permissible and therefore the concept of piercing the corporate veil may be applied31. Note that the reason is undoubtedly valid and the subsequent actions may be troublesome but justice seems more important than the most attractive features of a corporation – limited liability. In cases like Gilford Motor Co Ltd v Horne [1933] Ch 935, the court lifted the corporate veil because there was sufficient evidence that Horne fraudulently created the company so he can solicit his former employer’s customers. In Jones v Lipman [1962] 1 WLR 832, the court found evasion of legal obligation and lifted the corporate veil of the company built by Lipman to mask his wrongdoings. However, there also proof that the court refused to lift the corporate veil and according to Julie Cassidy32, the court did not find any illegitimate object to warrant lifting of the veil in cases like Electric Light and Power Supply Corporation Ltd v Cormack (1911) 11 SR (NSW) 350; Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 252; and Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337. Apparently, the use of the concept is selective, legal, and in the spirit of justice and equality. The concept of piercing the corporate veil being “troublesome” in corporate groups is merely a matter of understanding, which is more important between corporate veil against liability and court action against injustice and inequality. This is the reason why most courts treat piercing of corporate veil as an “extraordinary act”33 that should be taken only when it is necessary to promote justice. The concept is not applicable to anybody but to only to the wrongdoers and individuals intentionally hiding behind the corporate veil34. Moreover, there is a limitation in the parent corporation’s responsibility for a subsidiary corporation thus equal and inoffensive35. Assuming that the concept does not exist and corporations continue to enjoy the protection of the veil, then how can anyone seek damages for wrongdoings done by a subsidiary. It seems unreasonable to let a corporation go in one piece just because they are protected by a principle that seems self-serving. For instance, in the UK Court of Appeal decision in Adams v Cape Industries plc [1990] Ch 433, the court rationalized the judicial exceptions to the rule in Salomon v A Salomon & Co. Ltd36. However, the court ended up rejecting the claims of asbestos poisoning victims despite valid argument that the subsidiary (an agent of the parent) and the parent (who is also escaping liability through a facade) is a single economic unit37. The above example seems more troublesome than the concept of piercing the corporate veil because justice was not served. Certainly, abolishing the concept of piercing the corporate veil will result to similar judgement particularly when the rationalization is based Salomon v A Salomon & Co. Ltd, a very old court decision made in 1897 when toxic materials produced by corporations and subsidiaries were not yet known. It is somewhat obvious that changes in statutory requirements for corporations and other businesses were done for a reason. For instance, it is obvious that the directors liability and controllers duty of care in Corporations Act 2001 s 420A are there to protect the public interest. It is also obvious that the harmful effects of corporate veil are already known as most courts begin with an evidentiary presumption that corporation will use its liability shield against any complaints38. A statement claiming that the concept of piercing the corporate veil is troublesome and should be abolished is therefore far from being relevant as there is no such thing as absolute protection from justice. 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