Question One

Uncle is a lawyer. Niece is a young lady who is thinking of commencing a business in partnership with another individual. Niece consults Uncle. She asks what attributes or qualities she should look for in a partner. Uncle provides the following advice.

(i) Select as a partner someone who you can trust to stick to the deal. Avoid those who can’t.

(ii) Select as a partner someone who is richer than yourself. Avoid the poor.

(iii) Select as a partner someone who is honest and trustworthy. Avoid the untrustworthy.

(iv) Select as a partner someone who is competent and skillfull. Avoid the incompetent.

Select as your business partner someone who can stick to the deal, who is well off, who is honest and trustworthy and competent and skilful. Avoid people lacking these qualities. This sounds like obvious and sensible business advice. And indeed it is. But Uncle intends this to be more than business advice. Uncle intends this to be legal advice. Uncle advises Niece that partnership law ensures that these are desirable qualities to look for when forming a partnership.

Required:

Deal with each item of advice ((i) to (iv)) in turn.

In relation to each item explain what rule or rules of partnership law lay behind the advice. Include reference to the section/s of the Partnership Act of direct and immediate relevance to the particular item. If appropriate and useful include an illustration.

Question Two

Viti Co Pte Ltd (‘Vitico’) is a private company. Vitico conducts a retailing business. The company owns a number of retail stores throughout the Fiji island of Viti Levu.

Vitico has two directors, A and B. Both are executive directors with many years of experience in the retail field. Neither is a shareholder of Vitico.

Hold Co Pte Ltd (‘Holdco’) is a private company. Holdco owns all of the issued shares of Vitico. Holdco has no other assets.

Holdco has three directors; X, Y and Z. The same three individuals own all of the issued shares of Holdco in equal proportions.

Vitico decides to expand its chain of retail stores in Viti Levu. The company does a deal to acquire several existing stores of a trade competitor. This is a cash sale.

Bankco agrees to provide Vitico with financing for the acquisition provided the financing is adequately secured. Specifically Bankco requests;

Vitico grant Bankco a mortgage over all of its assets; and

as additional security, Holdco grant Bankco a mortgage over all of its assets.

Required:

(i) Draw a diagram depicting the facts related above.

Answer the following 2 questions.

(ii) Do these two mortgages grant security over the same assets?

(iii) On the facts as they exist at present, which mortgage (the Vitico mortgage or the Holdco mortgage) provides the greater security to Bankco?

Explain your answers fully.

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