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Written by Easy Rider
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Friday, 18 July 2008 |
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Costy,
The 2006 Act does not codify remedies and s178 states that consequences
of a breach are "the same as would apply" had the corresponding common
law duty applied. Therefore, you must look to the usual Common Law
remedies: equitable remedies etc...
Of note is that except for the duty of reasonable care and skill (S174), each duty is enforceable as a fiduciary duty. A director in breach is potentially liable to the company for damages, and where appropriate, to restore the company's property or account for any profits made. A transaction entered into in breach of a fiduciary duty may be voidable by the company or enforced by a third party. Breach of one fiduciary duty usually also entails breach of others so a claimant can apply for additional remedies attached to those breaches.
Finally, do note that a director's fiduciary duties cannot be enforcd by a fellow director because they are owed to the company. The company could take action againt the director in question and, in the event that the company halts or abandons the action for whatever reason, a shareholder may be able to continue or commence the action via the new statutory derivative action.
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