2014年6月ACCA考試F4真題及解析

　　Question：Gim and Hom formed an online supply company, IMP Ltd, in 2010 and have been its sole directors since then. The business has never made a profit and has only managed to carry on trading by using its ?50,000 overdraft facility with Just Bank plc.

　　In January 2012, IMP Ltd entered into a large deal and by October 2012 it was obvious that it had lost ?100,000 on the contract. Gim and Hom treated the loss as merely unfortunate and carried on trading although this meant unilaterally ignoring the limit on their agreed overdraft with Just Bank plc, and delaying the payments on their other outstanding contracts. They justified their decision on the grounds that they could recover all their losses to date from the profits of a new contract. Unfortunately, their optimism was misplaced and the new contract lost an additional ?100,000.

　　In February 2014 Gim and Hom applied to have IMP Ltd wound up, owing debts of ?250,000.

　　The realisable value of the company’s assets is ?10,000.

　　Analyse the above situation from the perspective of Gim and Hom’s potential liability for either fraudulent or wrongful trading under the Insolvency Act 1986. (10 marks)

　　解析：This question requires candidates to consider and explain a problem scenario which raises issues relating to directors’ statutory duties under ss.213 and 214 Insolvency Act (IA) 1986 as they apply to fraudulent and wrongful trading.

　　At common law, the duties owed by directors to their company and the shareholders, employees and creditors of that company were notoriously lax. Statute has, by necessity, been forced to intervene to increase such duties in order to provide a measure of protection for those concerned.

　　Common law did not place any great burden on directors in regard to liability for company losses. Damages could be recovered against directors for losses caused by their negligence but the level of such negligence was high. As was stated in Lagunas Nitrate Co v Lagunas Syndicate (1899), it must, in a business sense, be culpable or gross. The laxity of the situation at common law has been much tightened by statute, particularly by the development of civil liability for wrongful trading, which was introduced by s.214 IA 1986.

　　There has long been civil liability for any activity amounting to fraudulent trading. Thus, s.213 IA 1986 governs situations where, in the course of a winding up, it appears that the business of a company has been carried on with intent to defraud creditors, or for any fraudulent purpose. In such cases, the court, on the application of the liquidator, may declare that any persons who were knowingly parties to such carrying on of the business are liable to make such contributions (if any) to the company’s assets as the court thinks proper. The major problem in making use of s.213, however, lies in meeting the very high burden of proof involved in proving dishonesty on the part of the person against whom it is alleged.

　　Wrongful trading does not involve dishonesty but, nonetheless, it still makes particular individuals potentially liable for the debts of their companies. Section 214 IA 1986 applies where a company is being wound up and it appears that, at some time before the start of the winding up, a director knew, or ought to have known, that there was no reasonable chance of the company avoiding insolvent liquidation. In such circumstances, then, unless the directors took every reasonable step to minimise the potential loss to the company’s creditors, they may be liable to contribute such money to the assets of the company as the court thinks proper. In deciding what directors ought to have known, the court will apply an objective test, as well as a subjective one and s.214 IA establishes a minimum standard of what may reasonably be expected of a person carrying out the same functions as are carried out by that director in relation to the company.

　　The manner in which incompetent directors will become liable to contribute to the assets of their companies was shown in Re Produce Marketing Consortium Ltd (1989), in which two directors were held liable to pay compensation from the time that they ought to have known that their company could not avoid insolvent liquidation, rather than the later time when they actually realised that fact.

　　In addition, directors may be disqualified from holding office for a period of up to 15 years under the provisions of the Company Directors Disqualification Act (CDDA)1986 if they are found liable for either fraudulent or wrongful trading.

　　Applying the foregoing law to the problem scenario, it is unlikely that there is sufficient evidence to substantiate a claim against Gim or Hom for fraudulent trading, as apparently they genuinely thought they could trade their way out of difficulty. Although it has to be recognised that Gim and Hom did actually disguise the debts of the company, they did not do so in order to benefit themselves.

　　It would appear, however, that the two of them are certainly liable for an action for wrongful trading, as they carried on trading after it was clear that they ought to have known that there was no reasonable chance of the company avoiding insolvent liquidation. Nor can it be claimed that they took every reasonable step to minimise the potential loss to the company’s creditors. Indeed, it was their continued trading which caused the creditors to suffer an additional loss beyond what they would have suffered had IMP Ltd been wound up at an earlier date.

　　It remains to determine from which date Gim and Hom should be held responsible for the debts of the company and it is immediately apparent that there was no real prospect of the company avoiding insolvent liquidation as early as October 2012. Consequently, they will be personally liable for any debts accrued by the company after that date.

　　They will also be liable to be disqualified from acting as company directors under the CDDA.