Company and Association Law - Mr Kindle and Mr Byrnes and Mrs Byrnes - Assignment Example

Company and Associate Law Student’s Name Institutional Affiliation SECTION A Question 1 In the case, the parties include Mr. Kindle and Mr. Byrnes and Mrs. Byrnes. Mr. Kindle and Mrs. Byrnes married in 1980 and later divorced in 2007 while Mr. Kindle stills the registered proprietor of house at Rachel Street. They both acquired knowledge on Acknowledgment of Trust and both decided to be registered partners in 1997. In there agreement, Mr. kindle acknowledged half sharing interest as tenants upon the trust of Mrs. Byrnes and their survivors to use the property for life. Mr. Kindle was allowed to be the registered proprietor so as to have an easy access a loan. Later Mr. Kindles’ son occupied the house from 2001 to 2007 and failed to pay the rent to Mr. Kindle as agreed (Twomey& Jennings2010). The house was then sold in 2008 and Mr. Byrnes and Mrs. Byrnes claim through the court one half sale. Question 2 Whether to give half of the sale to Mr. Byrnes and Mrs. Byrnes or not is the legal question the court should decide. The court should also decide whether Mr. Kindle should be responsible for paying half the rent that his son refused to pay. Finally, the court should decide whether to deduct the amount of $ 8,000 from the sale to his son. Question 3 (a) Mr. Kindle defended himself by claiming that the loan to the son was not discussed in depth between them. On the issue of Mr. Kindle failing to collect rent from the son, the defendant claimed have done so for the sake of matrimonial harmony. (b) The judge found the sum supposed to be paid by the son amounted to $48,860. The also the son made mortgage repayments, paid water charges, insurance and paid the rates amounting to $36,240. The judge decided that Mr. Kindle was to deduct $ 10,000 from the sale. The judge decided to accept the action taken by Mr. Kindle to the son and advised the claimant to choose to do so for the sake matrimonial harmony. Question 4 (a) Evidence from Mr. Kindle was preferred where it differed from Mrs. Byrnes and Mr. Byrnes. (b) The courts made its final conclusion by hearing claims and supporting evidence from both parties. Before it made the final decision, the court preferred to use trusted evidence from the involved parties. (TOMASIC, BOTTOMLEY & MCQUEEN, 2002). (c) The appellant court argues that a trustee will have various duties and powers such that those powers and duties must depend on terms of trust the operations and nature of the trust. The court did not work according to this argument since both Mr. Kindle was asked to be deducted the loan he offered to the son and give out half sale of the property. Question 6 (a) The court found out that an express trust is not created by acknowledgment (b) In the case, the judge found out that there was breach of trust from Mr. Byrnes and Mrs. Byrnes and even decided to withdraw their evidences and use evidence from Mr. Kindle. The judge found the trust by realizing that Mr. Kindle was under no duty as asked by Mrs. Byrnes. SECTION B Question 1 Under Australian Security and investment commission (ASIC) has power to direct a company to change its name within a duration two months. For example if the company will fail to register within the articulated time. The company is also changed if the name has not been registered. If the company ceased to be permitted to use the name. If under subsection 601DC (40(b), assume that the name was withdrawn. Finally the company is instructed to change its name if the companies cease to be permitted to use the name. Question 2 On e of the duty to the borrower is to call meetings. The borrower will call a meeting involving debenture holders if: a debenture holder who holds 10 percent and above of Of nominal value debentures to which the trust is directly related to so doing. Meetings can also me held in a situation where the borrower is given direction in form of writing at it registered office. Section 283. Question 3 Under section 348 A. ASIC may give a responsible entity to a company a registered scheme of particulars or scheme if by the due date the responsible entity or company has not paid the scheme’s review fee. Return of the particulars may also be issued if for the last one year there no document lodged with ASIC relative to the scheme or company. Finally, there are issues of return of particulars if the ASIC believe or suspect that the recorded particulars in relation to the scheme or the company are not correct under subsection 1274(1). Question 4 In section 330 subdivision C, outline the fees and expenses of an auditor Question 5 Under section 601 AD- When a company is deregistered cease to exist but the officer of the company remains reliable for things done before deregistration of the company. The company’s asset’s vest in ASIC. Also under subsection (2), ASIC takes only the same property rights held by the company as well as having powers over property vested. In addition, if there happens to be an offence based on subsection (5) may be an offence of liability. Finally, immediately before the deregistration, the director of the company must keep company’s book for a duration of three years after deregistration. Question As indicated in section 292 (2), A small proprietary company can prepare its financial report if it is asked to do so as stipulate under section 293 or 294. A small proprietor can also carry out its financial report, if it has been controlled all part of the year by a foreign country and not consolidated in financial statement lodged with ASIC. Question 7 In section 347 A, the directors of the company is required that after every two months to pass a solvency resolution. If it is a negative resolution the company should inform ASIC within the 7 days. For example, the company is said to be solvent when the payment of the fee review as represented by the director if the company has cleared its review fee on the review date. Also if the company do not cleared its financial report as required by ASIC under chapter 2M in 12 months time. Question 8 Under section 289, there is a guideline on how financial record must be kept. A company, disclosed scheme or a registered scheme may decide on where to keep their financial records. However, keeping the records outside this jurisdiction, sufficient written information should be provided to true and fair financial statements. The company, disclosing entity and registered scheme must give a notice on where the information has been kept. The information may as well be kept outside this jurisdiction must indicate the direction. For example, in the jurisdiction there must be specification on where the records are to be kept as well as indicate the day of producing the records (SAHARAY2008). Part C Although right name can boost the talk of the company while the wrong one can lead to failure and obscurity, the kind of partnership expressed will always determining the performance of the business. Therefore, partnership is a strong foundation for the existence of the business (MCCORMACK, 2009). A partnership is build of several pillars to be successful. Communication is one the factor considered in holding together of the partnership (Twomey & Jennings, 2010). Communication has both internal and external role. It is very crucial for information to flow among the partners, own staff, among the members themselves as well as the managers. Communication will help partners understand on how the alliance functions, organization and people involved, respective role of the other partner and the operation constrain. Secondly, a good partnership involves coordination; the members involved should work as a team to meet the targets. For example the action of combining more effort, promote innovations and utilization of resources (Twomey& Jennings2010). Through the many activities that are happen in the organization, there should be trust within the members. This will help the partnership to grow as the competitors will not easily get information such as new innovations. Lastly, there should be a future plan indicating the process to of employing new workforce when the business expands and the profit share. Conclusion Through this paper, people involved in partnership should make effort in registering their business to avoid disputes, collision with law and also to understand the role and function of every member Reference AUSTRALIA. (2011). Australian corporations & securities legislation 2011. North Ryde, N.S.W., CCH Australia. BAUER, A. M., & SHEA, T. M. (2003). Parents and schools: creating a successful partnership for students with special needs. Upper Saddle River, N.J., Merrill/Prentice Hall. CITY LAW SCHOOL (LONDON, ENGLAND). (2008). Company law in practice. Oxford, Oxford University Press. Government of Australia. (2001).Corporations Act 2001 HOPKINS, B. R. (2006). The Tax Law of Associations. Hoboken, John Wiley & Sons. http://public.eblib.com/EBLPublic/PublicView.do?ptiID=265861 MCCORMACK, G. (2009). Registration of company charges. Bristol, Jordans. SAHARAY, H. K. (2008). Company law. Delhi, Universal Law Publishing. TOMASIC, R., BOTTOMLEY, S., & MCQUEEN, R. (2002). Corporations law in Australia. Sydney, Federation Press. Twomey, D., & Jennings, M. (2010). Anderson's Business Law and the Legal Environment, Comprehensive Volume. Stamford: Cengage Learning. WEISS, L., SERLIS-MCPHILLIPS, S., & MALAFI, E. (2011). Small business and the public library: strategies for a successful partnership. Chicago, American Library Association. Read More