The Question Of Dual Solvency Test

The highly controversial case of Gambotto v WCP Ltd not only reduced the ability of companies to acquire shares compulsorily through an amendment to their constitutions, but also stimulated debate around the topic of share acquisition itself . The High Court decision in Gambotto was recognized immediately to be extremely important in the corporate world, with one headline stating it had “radically altered the balance of power within corporate Australia” . Despite the significance of the ruling, responses to Gambotto have generally been negative. Courts have almost uniformly chosen not to extend the principles in Gambotto to situations in other cases, with the result that the principles have stayed narrowly confined to the

A shareholder who provides share capital to a corporation can realize a return on investment from dividends or from capital gains when shares that have increased in value are sold. The two are related because dividend payments alter the value of the shares, thereby affecting the potential capital gain (loss) on sale.

In the above case, Alexa Ltd is insolvent. According to section 95A, “A company is if that company could not payback its debts as and when the become due.” Section 588G can be applied if the person is a director at the time company incurs a debt, company becomes insolvent as a result of the debt and there are reasonable grounds for suspecting that company is or would become insolvent. A director is liable if at the time the debt occur, he was aware of the presence of reasonable ground to suspect insolvency or a person in a similar position in similar firm would have been so

It also reflect that there is cost of financing with debt reflecting the bankruptcy costs as well as the financial distress in the form of costs of debt. The marginal benefit is increased in decline of debt with the increase in debt leading to the increase in marginal cost. It further optimises the overall value focusing on the trade-off while selecting the amount of debt and equity to be used for financing. This theory can provide the explanation for differences in ratios for debt to equity between industries without reflecting any explanation on the differences within similar industry (Lee, et al., 2009).

* Taking on debt gives the company the ability to use cash for projects and short term investments.

Investors: These are people who invest money into an organisation to obtain a particular number of shares and earn dividends relative to their proportion of investment.

In addition (Chen-Wishart n.d), notes that a company is categorized as a legal personal and operates as distinct from its shareholders. Based on these statements, Betty had not right to act on behalf of Bechdo Pty Ltd and Bechdo has the capacity to sue Betty for acting contrary to the company constitution. Based on the case study, Betty had breach the contract which existed between her and the company laws. If an act carried is outside the objects for which the company was founded to as contained in the company’s memorandum of association which is this case is the company’s constitution, then the acts are deemed to be ultra vires. In other words, the acts are beyond the capacity of the organization. In addition, contracts which are deemed ultra vires are categorized as void (Palmiter 2009, p.59). This can be referenced to Ashbury Railway Carriage and Iron Co v Richie 1875. The doctrine of ultra vires which have deemed the contracts between Bechdo Pty Ltd and BB Ltd, Jillo Pty Ltd, and Con Development Ltd as void has been applied with the aim of protecting the interests of lenders and company shareholders. As noted by Chen-Wishart (n.d), ultra vires is necessary in protecting the interest of its shareholders who depend on objective clause of the constitution to limit the acts in which their money may be used.

Any profits remaining after deducting operating costs, interest payments, taxation, and dividend are reinvested in the business and regarded as part of the equity capital. The finance manager will monitor the long-term financial structure by examining the relationship between loan capital, where interest and loan repayments are contractually obligatory, and ordinary share capital, where dividend payment is at the discretion of directors. This is known as gearing. There are two basic types of gearing, they are capital gearing which indicates the proportion of debt capital in the firm’s overall capital structure; and income gearing indicates the extent to which the company’s income is pre-empted by prior interest charges. Both are indicators of financial gearing.

There are several factors that guide the choice among debt financing and equity financing such as potential profitability, financial risk and voting control. Equity financing is a method used to obtain capital in order to finance operations, growth or expansion. Sources of equity financing are extremely important. Major sources of equity financial are Retained Earnings, sale of stock, and funds provided by venture capital firms. Profits that are kept and reinvested are called Retained earnings, which is a very attractive source fund due to the savings it provides to the entity by not paying the interests, dividends or underwriting fees related to issuing securities. This source of financing does not dilute ownership, but it

The moment the investment begins to yield profit the financial payouts are shared. The capital investment will be removed from the total revenue generated and the profits shared according to each investors. It is th option of such companies to decide to invest the profit or share them among the shareholders. The ratio of the amount shared among the investors and reinvested will have a positive effect on the company's growth. The investors that want a high current income

There is no clear framework of the rules that would cover the contingencies of a ruling to pierce the corporate veil Idoport Pty Ltd v National Australia Bank Ltd. The corporate Veil usually protects owners and shareholders from being held liable for corporate duties. Yet again a decision made by the court to lift that veil and would place the liability on shareholders, owners, administrators, executives and officers of the company without ownership interest. The purpose of this essay is to conduct an analysis on the concept of lifting the corporate veil and to review the different views on its fairness and equitability to present a better understanding of the notion, the methods used was throughout researching the numerous scholars views on the subject, case law and statutes examples, and the evidence provided by the empirical study of Ramsay & Noakes. When we discuss the lifting the corporate veil the first case that pops out is the case of Salomon V A. Salomon & Co Ltd, since the decisions of applying the corporate veil were first formed as a consequence of this case. The idea covers all of company law and distinguishes that a company is a separate legal entity from its members and directors. Furthermore, spencer (2012); have indicated that one of the core principles that followed the decision in Salomon v Salomon was the wide acceptance one man company’s. However In order to form a

Corporate governance refers to ‘the ways suppliers of finance to corporations assure themselves of getting return on their investment’ (Shleifer and Vishny, 1997: 736). Corporate governance discusses the set of systems, principles and processes by which a

For the purpose of this report, corporate governance is defined as the relationship that exists between company management, stakeholders and the board. Objectives of the company are usually set, attained and monitored through the structure corporate governance provides. (Balgobin 2008).The Guyana Corporate Code of Governance is similar to the UK codes of corporate governance and the Organisation for Economic Co-operation and Development (OECD 2004).These principles serve as a reference point that can be used by companies to develop their own frameworks for corporate governance that reflect their own circumstances or situations.

of minority shareholder claims (personal and derivative) for oppression under Section 216 of the Companies Act.

Harris and Reviv (1990) gave one more reason of using debt in capital structure. They say that management will hide information from shareholders about the liquidation of the firm even if the liquidation will be in the best interest of shareholders because managers want the perpetuation of their service. Similarly, Amihud and Lev (1981) suggest that mangers have incentives to pursue strategies that reduce their employment risk. This conflict can be solved by increasing the use of debt financing since bondholders will take control of the firm in case of default as they are powered to do so by the debt indentures. Stulz (1990) said when shareholders cannot observe either the investing decisions of management or the cash flow position in the firm, they will use debt financing. Managers, to maintain credibility, will over-invest if it has extra cash and under-invest if it has limited cash. Stulz (1990) argued that to reduce the cost of underinvestment and overinvestment, the amount of free cash flow should be reduced to