Assignment First


一、多数台在Gwalia v. Margaretic坚持资本维持原则是不允许margaretic债权在破产的情况下侵犯了儿子。
二、Kirby J,与Gleeson CJ一致,也认为是563a并不一定规定的优先次序,公司的成员都应该被取代。因此,受让人的虚假陈述损害赔偿不涉及对公司资本的索赔。这代表了《公司法》第2001条中的多数意见,该法规定,成员必须在企业内部提出股份,而事实并非如此。


For instance, these claims included the right to recover paid-up capital, the right to be paid an appropriate dividend, and the right to avoid a liability towards the objective of making a significant contribution to the company’s capital.
i.The majority bench in the case of Sons of Gwalia v. Margaretic upheld that the doctrine of maintenance of capital was not infringed by allowing Margaretic’s claims in insolvency.
ii.Kirby J, in agreement with Gleeson CJ, also concluded that s 563A does not necessarily stipulate that in the order of priorities, the members of the company are supposed to be superseded. Thereby, the misrepresentation damages claim by a transferee member did not involve a claim on the company’s capital. This represents the majority opinion in the context of the Corporations Act 2001, which had stipulated that members had to lay claim also with shareholding within the enterprise, which was not the case with the facts of this appeal.

iii.All members of the Court agreed that the reluctance to allow members to compete with general creditors in insolvency was based, at least partly, on the maintenance of capital doctrine. The principle of capital doctrine mandates that a company should give precedence to creditors and creditor interest should be paramount. However, modern legislations have generally made light of the principle of capital doctrine and have allowed companies to reduce capitals.The majority in this case opined that the damages claimed by the petitioner in no way infringed the principle of capital doctrine and that the claims did not involve the company’s capital. This relates to the presumption that a member can lodge a proof of debt, even if he personally owes the debt in his capacity as a member.

iv.Here, the operative clause becomes the fact that the member owes the debt and not the fact that the debt is owed to the member. So, the mandate is given in light of the operative fact.