2009年6月ACCA试题：F4试题（全球）答案十八

　　9 This question requires an analysis of the doctrine of corporate opportunity and the rules relating to directors‘ duties. Section 178 of the Companies Act （CA） 2006 places directors’ duties on a statutory basis， and although s.170 provides that the new statement of duties replaces the old common law rules and equitable principles， it nonetheless expressly provides that the duties now stated in the Act are to be interpreted and applied in the same way as those rules and principles were. Section 178 specifically preserves the existing civil consequences of breach of any of the general duties， so the remedies for breach of the newly stated general duties will be exactly the same as those that were available following a breach of the equitable principles and common law rules that the general duties replace. Section 178（2） specifically provides that the directors‘ duties are enforceable in the same way as any other fiduciary duty owed to a company by its directors and remedies available may include：

　　（i） damages or compensation where the company has suffered loss；

　　（ii） restoration of the company‘s property；

　　（iii） an account of profits made by the director； and

　　（iv） rescission of a contract where the director failed to disclose an interest.

　　It should be noted that the foregoing does not apply to the duty to exercise reasonable care， skill and diligence under s.174， which is not considered to be a fiduciary duty. Section 175 of the Act specifically deals with the duty to avoid conflicts of interest and replaces the previous no-conflict rule. Under the previous rule， certain consequences followed if directors placed themselves in a position where their personal interests came into conflict with their duties to the company， unless the company knew about the conflict and specifically consented to it. Section 175 continues that procedure in an amended form， which allows the other directors to authorise the conflict. The section makes clear that a conflict of interest may， in particular， arise when a director makes personal use of information， property or opportunities belonging to the company or specifically under ss.177 and 182 where the duties to declare interests in transactions are set out， when a director enters into a contract with his company. This is the case whether or not the company itself could have taken advantage of the property， information or opportunity， so once again the previous common law and equitable rules are maintained. As well as allowing the directors to approve a conflict under s.175， s.180 preserves the ability of the members of a company to authorise conflicts that would otherwise be a breach of this duty.

　　Applying the preceding rules to the facts of the problem scenario it can be seen that Des has breached his statutory duty under CA 2006 s.175 by allowing a conflict of interest to arise with declaring it to the board and getting the approval of the other directors or indeed the members.

　　The operation of the previous fiduciary duty not to make an undisclosed benefit from the position as directors and not to profit personally from what is a corporate opportunity even survived after the director in question has left the company （IDC v Cooley （1972））。 As the CA 2006 continues the previous equitable principles and specifically states that the duty to avoid conflicts of interest applies to former directors， Des will still be liable for his action.

　　It is also now clear that the rules against allowing a conflict of interest to arise apply even if the company cannot itself take advantage of the opportunity wrongly misappropriated， which continues the previous very strict application of principle （Regal （Hastings） v Gulliver （1942））。 However the duty is not infringed if the situation cannot reasonably be regarded as likely to give rise to a conflict of interest： s.175（4）（a）。

　　Applying this to the facts of the problem it would appear that Des has acted in breach of his statutory duty and will be held liable to account to the company for any profits he made on the transaction.

　　He will not be allowed to hide his personal profit behind the separate personality of Flush Ltd as the courts will simply lift the veil of incorporation as in Gilford Motor Co. v Horne （1933）。

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