The Corporations Act of 2001 (Cth) is at times referred to simply as the Corporations Act. This is generally the actual act of the Commonwealth of Australia that overly sets out the laws and regulations that deal with various business entities within the borderlines of Australia. The scope and geographical jurisdiction with reference to the Corporations Act is applicable at both federal and interstate levels. The main focus of the Corporations Act, just as its respective name suggests is on companies. However, this aspect is not so entirely as various partnerships and also managed investment structures are within the mandate of the constitutional provisions of the Corporations Act of 2001. Currently, the Corporations Act is overly one of the biggest and largest corporate governing statutes in the world. Interestingly, even with diverse simplification by the CLERP reforms, the statute provisions are still several thousand pages (Pergola & Gilbert 200). Evidently, the length and scope of the Australian Corporate Acts would simply dwarf the related governing provisions of other countries in the world. Generally, the Corporations Act is the basic legislation that overly regulates companies within the Australian jurisdiction. The Act authoritatively regulates matters and events such as the formation and consequent operations of given companies. This is applied alongside the provisions and constitution of the respective company. Other factors and functions regulated by the Act include the overall obligations of individuals, fundraising, and even takeovers. The basis of this paper regards the critical analysis of the provisions and regulations of the Corporations Acts in relation to Cedric Spenser’s and the Melbourne University Law review articles. The analysis and critique have been randomly selected though not entirely considering the fact that the Corporations Act is very wide in scope.
Critique and Analysis
The article on White vs. Tomasel is also controversial to the author himself. This aspect actually forms the basis of an argument and consequently, legal analysis of the provisions and regulations of the law and constitution of Australia. Indefeasibility, which is a rare exception to such situations as related to the article on the case of White vs. Tomasel is the key factor and source of discussion in this context. The author seems to ask the question regarding what situations and circumstances as provided by the law allow for this exception.
In this case, Davies argues the aspect of unreliability of the three panel judge of the court of appeal regarding their decision and point of view on the referred case. The three panel judge seemed convinced that the principle and provision of registration indefeasibility is very applicable as a relevant and most importantly legal exception of the general presented situation.
From a personal and legal perspective, the argument and reasoning of Davies J. A. is seemingly relevant and solid to a large extent. The Torrens system of title by registration has been inferred to by the complainant in whom the three panel judge misruled against according to the held belief and perception. It is true as stated and based by the complainant that the Torrens system of registration indicates that the simple form of registration often trumps everything related. As such, the decisive factor of the overall process of registration helps in creating the referred title.
However the side adopted by Davies J. A. is not in line with numerous Australian legal provisions. From a simple structured and baseless but rather vital perspective, it can be ideally argued that a three judge court of appeal presenters could not have made the wrong move in their end ruling. However, this position cannot be easily adopted or even depended on considering that the discipline and context here is law. The complainant in the court seems to have a very moral and situational convincing principle and argument regarding to the case. The legal backing of the Torrens systems of title by registration is a heavy inclusion to basis of argument of Davies J. A. How does this case and legalities presented in this case scenario relate to the Corporations Act of 2001? As stated earlier, the basis of the Corporations Act of 2001 regards the normal operations and activities of companies and their related concerns. As such, the aspect of registration comes into play. As for the complainant, the relation to the Corporations Act of 2001 will ideally refute his stand and consequently provide a negative legal feedback.
The Corporations Act of 2001 has the basic provisions regarding the registration processes and procedures of companies and other business related organizations. The emphasis laid on section 2A of the Act regards the use of proper procedure and vitality of keen follow up of set legal structures. Therefore, registration of companies is based on numerous transactions and legal “bottleneck” that have to be satisfactorily addressed before the legal recognition and consequently protection of any company. Further, the follow up of the based legal ground for company registrations is found in Volume 2 Chapter 2N of the Corporations Act of 2001. Without the legal framework and procedure in ensuring that a company is duly registered in accordance with the constitution of the land, the given company does not have the right of operation in Australia. The concerned authorities will in time surely catch up with such cases and consequently the individual behind such procedures. As such, it is vital to note that the closure or immediate termination of operations of said companies, according to the punishments as stated in the Corporations Act of 2001 will be fully put in effect upon such illegal and immoral procedures.
The fact that there might not have been duly satisfactory and proper measures and procedures in ensuring that the given process as is being referred by Davies J. A, brings out numerous legality issues. Though the individual has a seemingly strong and considerable stand, the law is not entirely on his side. The procedures used by Davies J. A in this situation are not legally protected. Surprisingly, he understands and seemingly agrees to this aspect. If a given company, according to the Corporations Act of 2001 does not have the requisite legal backing and proper legal system procedures, then it is prone to dissolution and effectively discontinuation from public service. The stated argument helps into bringing in the aspect of indefensibility as a legal exception of some case scenario. The three judge bench court of appeal bosses seem to have overly made the right consultation of the law, though not entirely as the situation of legal support from the provisions of the Torrens system of registration help in supporting Davies.
On the issue of operation of the exception on personal equity, there ideally seems to be a common consensus as stated by the author. The provisions of the relevant law and regulation in this regard are derived and referred to from section 185(1) (a) of the constitution (Mitchell & Meacheam 154). As such, the interest must have prior derivatives from a recognized right of action at law or in equity. This further has to arise from the subsections of the RP and should also not be inconsistent with the policy of a Torrens system of title as a separate provision. The court of appeal judges made only one authoritative decision with reasoning and legal backing of the state provisions.
However, it is evident that the judges might have had some more legal decisions and conclusions to base regarding the related sector’s provisions of the law. The arguments and legal backings of Davies as expressed are weighty. However, this does not imply that the arguments cannot be addressed or combated especially with a three judge bench. Davies raises only three vital and weighty legal points to the judges. Surprisingly, the judges seem to be in a consensus with the reasoning of the defendant. Carefully analyzing the situation and consequently looking at the reasoning of Davies in this regard only helps in vitally identifying that the complainant has used various legal loopholes. The judges have seemingly been caught pants down by the wise provisions, reasoning, and legal quoting of the complainant.
The complainant has raised a number of challenging situational and legal analysis regarding his case. It is evident that the complainant is using every available legal set up or even set back to jump right back into the system by countering the provisions of the law with other elements and also relevant legal provisions. Further, the complainant addresses the situation by elevating the half baked or half reasoned three paneled judge thinking. The precision of the quoted counter law as provided by the constitution on section 185 (1) (a) has been made.
Whether a restitutionary duty is sufficient in giving legal rise to an in personam claim has been a discussed matter in this article. With reference to Williams J. A., he agreed that the unjust enrichment legal principle widely integrates the right of parties to legal proceedings. These proceedings are ideally and basically aimed at addressing the vitality of recovering respective money and other benefits that might have been transferred as a result of obedience to a given court order that has later been disputed (Adams 11). This factor raises the concern that sometimes judgments may not be entirely correct.
The position held by the court of appeal judges in this respect does not seem overly professional. The three panel judge clearly disregards the prior decision and findings of a lower court without much investigation. However, this aspect further helps to bring out the fact that courts of appeal have a vital role in giving convicted and decided cases a chance to remake and convince if their fate is to be altered. However, the blatant and rather directive implication that the lower court’s decision regarding this situation was erroneous brings numerous questions. It is a factor that dangerously gives the impression that huge and mark leaving mistakes might be sieving in through the justice measures.
Firstly, it is evident that the respondent might have rushed in seeking registration as a safe high ground of inhibiting or legally protecting their undertakings. With the slow wheels of justice in this regard, setting aside the previously reinstated lower court order regarding the situation would have been easily refuted or addressed.
However, the application and reference of the Torrens system of registration by the three court judge has been efficiently and within legal confines, been used. It is not true that the decisions made by the judges have compromised the inherent integrity with reference to the mirror principle as well as the curtain principle. To a large extent, the majority submitted decisions regarding this case are within the confines and provisions of the constitution. However, though not entirely, the Torrens system seems to have been misrepresented in some aspect in this case. As the author puts it, the Torrents system of indefeasible title might have been destabilized. The overall conditions and presented facts regarding this case should have been used in the proper and full force to letter application of the legal bindings and provisions of the Torrens system of indefeasible titles.
However, the three panel court of appeal judges must also take some credentials regarding the handing of the case. For instance, it is evident that the presented case in the article is overly confusing and even challenging to many even for simple comprehension. The intricacies of countering and crossing laws have been experienced here. Therefore, it is evident that the three judges must have had pressure in dealing with such a situation. This is so especially because it is evident that in the long run a judgment must be made.
Mitchell, Rebecca and David Meacheam. "Knowledge worker control: understanding via
principal and agency theory." Learning Organization 18.2 (2011): 149 – 160. Print
Adams, Michael.”Agency Theory and the Internal Audit." Managerial Auditing Journal 9.8
(1994): 8 – 12. Print
Pergola, Teresa and Gilbert W. Joseph. "Corporate governance and board equity ownership."
Corporate Governance 11.2 (2011): 200 - 213