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Advice to the directors of WSDL

Discuss about the New Zealand Jurisdiction and Legislation for Waikato Drainage Systems.

The organization Waikato Drainage Systems Limited (WDSL) is the company that follows Companies Act 1993 thoroughly. They have five directors with equal shares of 20%. Two of the directors Felicity and Harriet formed new organization DDCL and got the tender that WDSL was interested in bidding for the three contracts. The purpose of this paper is to provide a suitable view on the legal advice that could be presented to the organization WDSL directors as they have been cheated by two of their members regarding the contract of HCC. Maintenance of the Companies Act 1993 for the various activities in the organization is essential, and this will be discussed thoroughly with the paper. Valuable law cases are also considered to understand the effectiveness of the fact within the market.

The situation contains some of the violations regarding the information and the activities that have been performed within WSDL. As the accused Felicity along with Harriet is the board of director in WSDL they are not liable for any kind of data breach[1]Within the organization at the management level. This is due to the facts that they did not try to make a new company in the market, but once they face the issue in the business and the other three director are leaving the company, they tend to maintain their position within the market. According to the case law of Industrial Development[2] Consultants Ltd v Cooley [1972] 2 All ER 16 show that the director of the firm needs to provide suitable information to the team for performing their activity. In this scenario, it can be seen that resigning of three board member from WSDL was acknowledged by Felicity and Harriet while conversing with the wife of board members. In this process, the primary activity that could be performed by the accused is to move on from the organization and perform their action. Section 131 of companies act 1993 show that Director has the entire power[3]To perform the various activity in the organization. This is the power that Felicity and Harriet have misused for their benefits. They have a valuable position[4]In the market and could maintain suitable and useful working function.

From this case, it can be clearly understood that Felicity and Harriet have provided the news of HCC drainage contract and all the information that they received from their friend. But rest of the board members did not accept the advice for bidding in this tender. This one of the best and the biggest contract for the firm but as per the board of director it might reduce the business cost. If any breaches that are held within the organization in which Felicity and Harriet are liable then some steps could be eventually taken to provide stay order for the contract. If this case occurs when the first step is to complain about the accused person and seized all the information of their new organization. The fact of Holden v Architectural Finishes Ltd (1996) 7 NZCLC 260,976 provides the view that the director[5]Of the firm for their interest has taken the opportunity from their previous business. Being a director that they can perform this kind of activity, if Felicity and Harriet have performed this activity and with the opportunity of WSDL they have formed DDCL, then it is a punishable offense as the old company might get insolvent. Section 143 of Companies Act 1993[6] provides the clear view that board of director needs to maintain the information within the organization or they can be lead to court.

If any kind of breaches are present

It can be quite sure that Felicity and Harriet will have their possible defense regarding the case. In this, the most important fact is to understand what kind of information they have accessed and from where. The example of Baigent v D McL Wallace Ltd (1984) 2 NZCLC 99,122 it can be seen that the issue is regarding the bidding process. Here the problem also started with the bidding information that Felicity and Harriet received from their friends regarding the contract. This is one of the beneficial[7]Activity for the rest of the board of members of WDSL to claim compensation[8]From DDCL regarding their project and the information. The fact is that Felicity and Harriet have clear information regarding the contract and also regarding the situation of WSDL that they eventually used to get HCC contracts[9]In the market. In this case, the information and all the documents that are essential for WDSL and which is being used by DDCL need to be presented to the court and the legal authorities. Creating insolvent for an organization is the offensive activity, and for that, they cannot get spare. The accused might depend on the potential defenses regarding the case which can create a significant impact on the matter of WSDL.

In the contract process of HCC, it can be seen that the accused have eventually used the information and provided substantial evidence to the jurisdiction[10]. In this kind of situation, the board of director of WSDL needs to maintain their business record and also all the information that is associated with Felicity and Harriet. In this case, the most important fact is regarding the information of being the director of the firm and also resigning from the firm without any kind of previous notice. Maybe the accused have some of the defensive possibility regarding their situation, but they have to provide proper notice to break the business share[11]As well as they cannot use the information of the previous organization. In this situation, the other three directors[12]Of WSDL did not have any idea regarding the formation of DDCL and also regarding the tender for three contracts. In this situation, it can be seen that Felicity and Harriet have misused their position to gain the agreement which will help WSDL to win over DDCL. In this case, WSDL could apply to have another tender bidding with the new process. Written application regarding the situation can also be provided to the jurisdiction to take a vital step for the organization DDCL.

If the potential defense is available

If any of the accused or the both the accused is in the violation, then it is essential for the organization to get several remedies for their breach of contract. It can be seen that in the breach of contract the vital resource is award of the damages, then the specific performance and so on. In this case, WSDL could insist on the distinction of damage from the accused organization that is DDCL and their director. In this case, the organization WSDL have to claim for the compensatory damages or the punitive damages. In the compensatory damages, the organization DDCL need to pay the compensation or any losses that are incurred by WSDL due to their activity[13]. This is highly applicable as the director of DDCL was the previous director of WSDL. Compensation is one of the ways that could be performed when both of the accused are in the breach, and this would help the organization to maintain their operation in the field and also it will help to get tender of numerous contract within the market. Another remedy that could be used in this situation is the punitive damage.

In this situation, punishment is provided to the party who have breached the data. This is quite a rare steps that are being taken in the organization, but in this case, the accused have used information from both the parties and formed their organization to get the contract which is a criminal offense. The subsection 146-149 from the Companies Act 1993 provides the view that relevant interest[14] is being provided to the directors of the firm. Therefore, it can be seen that it is one of the best processes for the firm to get a remedy for their damage in the market. It is essential for the board of directors of WSDL to perform various actions in the field and maintain their information[15]To get the bidding in the market. These two process of remedy is the best for the firm to get their loss of tender[16]Within the market and also to maintain their position. It is essential to have a suitable remedy for retaining the situation within the market to preserve their process. From the section 16 of Companies Act, 1993 gives the organization WSDL full capacity to undertake the business of the DDCL or their transaction for the tender bidding that took place within the market. For the firm, it is essential to gain effective working process for the firm to maintain their activity in the field for performing various operations. The companies act show that suitable remedy is required as Felicity and Harriet have performed breach in their information for the firm.

If the accused are in breach

For the data breach in the organization, the advice would be the same as it is provided for the director. It can be seen that using the information of organization for wrong deed and breach of contract along with the data in the market is one of the criminal offense as per the companies’ act 1993 under the subsection 142. It can be seen from the case of Thorrington & Another v McCann & Another (1998) 8 NZCLC 261,560[17]That the data breach is one of the vital facts for the insolvent of the firm within the market. The fact is clear that when working within the organization the important activity is to maintain all the information[18]Of the firm and maintain their activity. This help to improve the business and the firm in the market. In this case, the accused have misused their power of position, and also they have set the different organization by the information of WSDL and took the tender of HCC. The entire legal advice would be same for the employees of the firm either they are a director or the regular employees. This is due to the facts that they provide a considerable contribution to the development of business within the market.

Data breach within the organization is one of the important activity that might be performed by the people of the firm. In this kind of cases, none of the people can get rid of the activity and implement their business within the business. The most common form that could be completed for the data breach in the organization is to get proper compensation[19]From the accused of the issues that have been faced by the firm due to their activity. It can be seen that the organization need to perform a various and suitable action for gaining their working function within the market. It can be understood that the firm needs to maintain their working function and get a proper view of the accused people. For the board of director, the compensation amount is little high as compared to the other employees of the firm. This is due to the facts that the most of the vital information regarding the organization is with the director and for that, they can make a company insolvent within the market. The fact is quite efficient for the firm, and they need to take a vital step to maintain their information in the market.

Conclusion

The paper eventually concludes the facts that the organization need to maintain the Companies Act 1993 so that they can perform effective and suitable working function within the market. The primary point of the law is to provide an appropriate and effective view on the working capacity of the firm. This paper also concludes the fact that WSDL has been cheated by the member of the board of directors Felicity and Harriet, regarding the business and the tender. The point is clear that the working function of the firm needs to take suitable and positive effects to understand the proper and effective working function within the market. The Companies Act 1993 provides adequate remedies for the organization WSDL to deal with the tender problem that they faced in the market. It can be seen that the organization DDCL need to provide massive compensation to the firm to perform their activity. 

References

Baxt R, Duties And Responsibilities Of Directors And Officers (2018)

Companies Act 1993, 'Company Law' (Lawskool.co.nz, 2018) https://www.lawskool.co.nz/content/nz_company_law_-_summary_sample.pdf

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Dries NS De Gieter, 'Information Asymmetry In High Potential Programs A Potential Risk For Psychological Contract Breach' (2014) 43

FETTAHLIO?LU ÖA AF?AR, 'The Effects On The Perception Of Alienation Of Breach Of Psychological Contract Occurred Due To The Emotional Witlessness' (2016) 6

Guest D, 'Trust And The Role Of The Psychological Contract In Contemporary Employment Relations'

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Jiang L, T ProbstW Benson, 'Organizational Context And Employee Reactions To Psychological Contract Breach: A Multilevel Test Of Competing Theories' (2017) 38

Kiazad K, S Seibert M Kraemer, 'Psychological Contract Breach And Employee Innovation: A Conservation Of Resources Perspective' (2014) 87

Lopez Bohle S and others, 'How Mass Layoffs Are Related To Lower Job Performance And OCB Among Surviving Employees In Chile: An Investigation Of The Essential Role Of Psychological Contract.'

Neville FR Currie, 'Toward A Psychological Contract Framework Of Director Effectiveness: The Role Of CEO Expectations.' (2015) 2015

Scarman L, 'CCH Iknow | Australian Tax & Accounting' (Iknow.cch.com.au, 2018) https://iknow.cch.com.au/document/atagUio389064sl10563156/queensland-mines-ltd-v-hudson-ors

Spamann H, 'Monetary Liability For Breach Of The Duty Of Care?.' [2016] Journal of Legal Analysis

Stevens R, 'The Legal Nature Of The Duty Of Care And Skill: Contract Or Delict?'

TRAUTMAN LP ORMEROD, 'CORPORATE DIRECTORS’ AND OFFICERS’ CYBERSECURITY STANDARD OF CARE: THE YAHOO DATA BREACH'

Van den Heuvel S, R SchalkM van Assen, 'Does A Well-Informed Employee Have A More Positive Attitude Toward Change? The Mediating Role Of Psychological Contract Fulfillment, Trust, And Perceived Need For Change' (2015) 51

Walker A, R AccadiaB Costa, 'VOLUNTEER RETENTION: THE IMPORTANCE OF ORGANISATIONAL SUPPORT AND PSYCHOLOGICAL CONTRACT BREACH' (2016) 44

Wan W, 'The Illegality Defence In Corporate Law Claims Against Directors And Officers'

Watts P, 'Recouping Liquidation Costs Through Litigation Against Directors—A Dubious Practice.'

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