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(Cth) (CCA) affects almost every aspect of the day to day running of a company and regulates such areas as product liability, consumer protection and competition policy.
A director may not be liable for breach of the duty to exercise care and diligence if the director: Duties owed to third parties Once appointed, and for as long as the director is appointed, a director owes the following duties to third parties which, if breached, may lead to personal liability of the director.
Duty not to engage in insolvent trading Each director has a duty to prevent the company from trading while insolvent and also to prevent the company from trading in a way that will make it insolvent.
Duty of care and diligence A director is required to discharge its duties with the same degree of care and diligence that a reasonable person in a similar position would exercise.
Factors such as the size of the company and experience, position and responsibilities of the director are taken into account in establishing this objective standard of care.
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In Australia, every person from the age of 18 years or older who has not been disqualified from becoming a director of an Australian company may be appointed as a director of a company.
Directors need not reside in Australia, however there is a requirement that at least one of a company’s directors reside in Australia.
The necessary procedures to follow when dealing with conflicts of interest depend on the circumstances and usually require specialist advice.
In some instances, it may be appropriate for a director to disclose a conflict and refrain from voting on the issue, while in other instances, the director’s resignation may be required.