Take Home Exam Essay Example for Free

Take Home Exam Essay 2. The decision in IATA v Ansett Australia Holdings (2008) 82 ALJR 419; [2008] HCA 3 allows contracting parties to ignore the effect of the pari passu rule to the detriment of general creditors. Discuss and examine the reasoning in the case. One of the principle aims of insolvency law is to provide an equal, fair and orderly procedure in handling the affairs of insolvents ensuring that creditors receive an equal and equitable distribution of the assets of the debtor. This is the pari passu (equal sharing) principle, which is generally regarded as being the foremost principle of insolvency law. The rule operates to ensure that creditors of the same priority receive an equal percentage return from the insolvents company’s assets. However, there are often many exceptions to the principle that overcome it such that there are often few assets to be shared, equally or not. Although not in the nature of a secured creditor, a creditor may enter into an arrangement with a debtor company that subsequently goes into liquidation that serves to give that creditor priority rights outside the liquidation. This can apply in clearing house arrangements in certain industries where payments between members of the clearing house are dealt with by mutual set off; in insolvency terms such an arrangement serves to negative the debtor/creditor relationship in respect of the obligations to which the arrangements apply. ‘Ansett collapsed on 12 September 2001 and administrators were appointed. It was then a member of the IATA Clearing House, which pays out airlines for services provided to other airlines in accordance with agreements between IATA and the airlines, including Ansett. International airlines regularly carry passengers and goods on behalf of other airlines. The Clearing House avoids the necessity for the airlines to make and receive numerous payments for such operations. Each month, airlines with a net credit balance receive a payment from the Clearing House while those with a net debit balance are obliged to pay funds into the Clearing House. The agreements between IATA and the airlines provided that settlement of amounts payable would be in accordance with IATA’s Regulations. IATA claimed to be a creditor of Ansett and alleged that Ansett had a net debit balance of $US4,370,989 outstanding as at December 2001.’ The high court in International Air Transport Association v Ansett Australia Holdings Ltd (2008) 82 ALJR 419 rejected an argument that this was contrary to public policy as being against the pari passu principle, as found by the House of Lords in British Eagle International Airlines v Compagnie Nationale Air France [1975] 2 All ER 390; [1975] 1 WLR 758. The house of Lords had decided that the IATA clearing house arrangements were against public policy because they sought to exclude certain property of the insolvent company from the pool available for the distribution to creditors and thereby infringed the pari passu rule. In the particular circumstances in Ansett, which was under a Deed of Company Arrangement, the administrators unsuccessfully claimed credits due to Ansett (but not processed through the clearing house) as at the commencement of the administration, contending hat the deed prevailed over the clearing house agreement. The High Court found that the IATA agreement and regulations applied and Ansett’s rights were not to debts owed to it by other members of the clearing house scheme, but rather the contractual right to receive payment from the IATA if, on clearance, a credit was due to it. Overall, the pari passu principle operates strictly, but it also operates within very confined limits. Apart from the explicit statutory exceptions that have been made, equal treatment of claims applies only among the general body of unsecured creditors. Secured creditors, and others such as those who have retained title to goods supplied to the debtor, are a separate group and are generally entitled to withdraw ‘their’ property that is left, that is, the unsecured property. 3. The automatic discharge available to most bankrupts under the current legislation is too lenient and encourages reckless business behaviour. Discuss. A person is automatically discharged from bankruptcy three years after filing their statement of affairs, unless there is an objection by the trustee. Also, a bankruptcy person can continue or start proceedings concerning their employment, such as unfair dismissal or harassment in the workplace. Any other legal proceeding commenced before bankruptcy are automatically stopped, but if the trustee believes that the proceedings have merit, and creditors are willing to fund the action and indemnify the trustee for costs then the trustee can continue them. Trustees must act reasonably, and they have a duty to consider whether the proceedings have merit and should be continued. After discharge from bankruptcy, the bankrupt is released form most of their outstanding debts, called provisional debts. On discharge, the bankrupt is relieved of any debt created by a provisional order and/or a final determination by the Victims Compensation Tribunal made before the date of bankruptcy. Many amendments have been made to the Bankruptcy Act 1966 in recent years to better balance the interests of debtor and creditor, to overcome the view that bankruptcy is â€Å"too easy† and to prevent debtors form using bankruptcy to evade their responsibilities. Although the current legislation is thus quite lenient towards bankrupts, the consequent disadvantages of bankruptcy for the debtor suggest the current legislation is not an encouragement for reckless business behaviour. These consequences include; losing virtually all property (car and household property is protected), losing the ability to obtain credit or enter other commercial transactions without disclosing that they are bankrupt, carry on a business under an assumed name or firm name without disclosing their true name and that they are bankrupt, and any partnership of which the bankrupt is a member of is automatically dissolved by the bankruptcy, unless otherwise provided by the partnership agreement. Not only that but the bankrupt also cannot be a director of a company or a member of a local authority, a member of the House of Representatives or of the Senate . Overall, being bankrupt is public; a record of the bankruptcy goes on the National Personal Insolvency Index (an electronic public register), so bankruptcy can be searched by the public and may be advertised by the trustee, thus certainly affecting the bankrupt’s credit rating. Bankruptcy is normally a last resort. It had both advantages and quite serious disadvantages. There are also some debts from which the bankrupt person is not released from including: †¢Child support debts: The creditor can continue recovery action for child maintenance debts incurred before and during bankruptcy. The bankrupt is only released form liability for interest owing on such debts at the date of bankruptcy. †¢Bail bonds and court fines: The person is not released form debts arising form bail bonds and court fines. †¢Proceeds of crime: The person remains liable for pecuniary penalty orders under the federal Proceeds of Crime Act 1987. †¢Debts incurred through fraud: The person is not released from debts incurred through fraud or a breach of trust, including money owed to Centrelink or the ATO obtained through fraud or misrepresentation. †¢Unliquidated claims: The person is not released from debts arising from unliquidated claims which, although arising from something that happened before the bankruptcy, are not resolved at the date of bankruptcy. †¢Debts incurred since entering bankruptcy: The person is liable for any debts incurred since the date of bankruptcy. It is thus evident that whilst the automatic discharge after three years is quite lenient, it does not encourage reckless business behaviour as the consequences and disadvantages of entering bankruptcy often do not outweigh the advantages. 5. The question of what constitutes an uncommercial transaction is, in the light of authority, difficult to state precisely. Discuss the recent authority and the concept of uncommercial transaction. An ‘uncommercial transaction’ is defined broadly as a transaction that a reasonable person in the company’s circumstances would not have entered into in regard to: a)The benefits to the company of entering into the transaction b)The detriment to the company of entering into the transaction c)The respective benefits to other parties to the transaction of entering into it d)Any other relevant matter ‘Transaction’ is not defined but examples include a transfer, charge, guarantee, payment, obligation incurred, a release or waiver and a loan. Section 9 also provides that a transaction must be one ‘of the company’. That is, one to which the company is a party. This requirement has given rise to some difficulties in the context of unfair preferences. An uncommercial transaction is ‘a bargain of such magnitude that is could not be explained by normal commercial practice’. Section 588FB (2) makes it clear that the transaction does not need to involve a creditor of the company as a party nor does it prevent the transaction being uncommercial if it is a transaction that is given effect to, or is required to be given effect to, because of an order of Australian court or a direction by an agency. Section 588FB needs s 588FC, that is, an uncommercial transaction will not be voidable unless it is an insolvent transaction. Section 588FC provides: ‘A transaction of a company is an insolvent transaction of the company if, and only if, it is†¦ an uncommercial transaction of the company’ and: a)Any of the following happens at a time when the company is insolvent: (i)The transaction is entered into; or (ii)An act is done or an omission is made, for the purpose of giving effect to the transaction b)The company becomes insolvent because of, or because of matters including: (i)Entering into the transaction; or (ii)A person doing an act, or making an omission, for the purpose of giving effect to the transaction During the case of Ziade Investments Pty Ltd v Welcome Homes Real Estate Pty Ltd [2006] NSWSC 457 the question ask to the court was whether certain transactions involving grants of mortgages over the company benefited person due to their ‘uncommercial’ nature while the company was insolvent. The court help that the mortgages were uncommercial transactions under s 588FB(1) and that they were also insolvent transactions under s 588FC. In the case there was no evidence that the mortgages secured future advances; only previously unsecured debt. They were not granted in consideration of forbearance to sue by the creditors. The mortgages did attempt to grant security for partially statute-barred debts and this helped to show that the transactions were uncommercial. Under s 588FE(3), a liquidator will expect to have disgorged any uncommercial transaction, which qualifies as an insolvent transaction, if it was entered into, or an act was done for the purpose of giving effect to it, during the two years ending on the relation-back day. A time period of four years ending on the relation-back day applies to uncommercial transactions, which qualify as insolvent transactions involving related entities of the company. The time is even greater where the uncommercial transaction as an insolvent transaction was entered into for the purpose of defeating, delaying, or interfering with, the rights of any or all of its creditors in a winding up. In such circumstances the transaction is voidable under s 588FE(5) if it was entered into, or an act was done for the purpose of giving effect to the transaction during the 10-year ending on the relation-back day. 8. Discuss in 750 words any particular aspect of insolvency, which has interested you and say why it is of practical importance. – Effects of bankruptcy on property. The effects of bankruptcy on property is particularly of practical importance as it is a substantially key concept in the area if insolvency. It covers essential aspects including divisible property, property a bankrupt can keep, the bankrupt’s home, money and goods received and property previously disposed of. Beginning with divisible property, a trustee can take certain of a bankrupt’s property, in Australia or elsewhere (subject to the law of the country where the property is). Property the trustee can take to pay creditors include: †¢The bankrupt’s interest in a house †¢Cash in the bank †¢Jewellry †¢Stocks, shares and debentures †¢Fixtures and fittings †¢Gifts and legacies under a will †¢Crops The trustee’s decision about what to do with the assets available for sale and distribution among creditors will depend on what they are. If the assets have little value, the trustee may ask the bankrupt to find a buyer rather than incur the expense that might be involved if the trustee had to find one. The trustee may even be prepared to accept less than market value where costs will be saved by not seizing and selling the goods. Secondly, the property a bankrupt can keep is listed in the Bankruptcy Act . These include: †¢Ordinary clothing †¢Necessary household goods †¢Tools or trade if they are to be used to earn income, up to the value of $3500 †¢Most policies of life insurance, endowment assurance, endowment or annuities †¢Amounts paid to the bankrupt under certain rural assistance agreements between the Commonwealth and the states. A bankrupt can keep a vehicle used for personal transport in which they have a net equity or up to $7050 to the bankrupt form the proceeds so they can buy another. The trustee may not take money received as damages or compensation for personal injury or death to the bankrupt of their family, defamation payments, or any property bought with or mostly with, that money. Thirdly, if a bankrupt owns, or is purchasing a home, the trustee normally sells the home if there will be a surplus after paying the mortgage and sale costs. If the home is owned jointly by the bankrupt and someone who is not bankrupt, the trustee either: †¢Becomes registered as a tenant-in-common of the home with the non-bankrupt person or, †¢Lodges a caveat on the title to protect the bankrupt’s interest. Non-bankrupt joint owners have first option to buy the bankrupt’s interest in the home form the trustee. If they cannot afford to do so they may agree with the trustee to sell the home, and receive an equal share of any money left over after the mortgage and costs are paid. Fourthly, at any time during the bankruptcy the trustee may take any money (excluding accumulated income) or other items the bankrupt receives, such as gifts, lottery winnings or money received under a will. If the bankrupt does save up and buys items that are nit protected during bankruptcy, these may also be taken by the trustee in certain circumstances. However a bankrupt’s accumulated income held in a bank account is protected. Finally, some debtors, seeing the threat of bankruptcy, try to put their property beyond the reach of creditors by transferring it to others, often family members. Property can be reclaimed by the trustee if it was: †¢Given away or sold in the five years before bankruptcy for less than its full value, or †¢Given away or sold at any previous time with the intention of defeating creditors. Transfers or property under a maintenance agreement before the bankruptcy are not affected unless fraud can be established. This it is evident that the effects of bankruptcy on property are a vital area of insolvency and one of practical importance. Bibliography Australian Bankruptcy Act 1966: with Regulations and Rules. Also includes Forms, Charges Acts, Index. Consolidated to 1 October 2008.. 9th ed. North Ryde, N.S.W.: CCH Australia, 2008. Print. Duns, John. Insolvency: law and policy. Oxford: Oxford University Press, 2002. Print. Goldie, Cassandra. Community legal education handbook. 2nd ed. Redfern, NSW: Redfern Legal Centre Pub., 1997. Print. Lewis, A. N., and Dennis J. Rose. Australian bankruptcy law. 10th ed. Sydney: Law Book Co. ;, 1994. Print. Nichols, P. W.. Bankruptcy Act 1966. 2009 ed. Sydney: LexisNexis Butterworths,, 2009. Print. Symes, Christopher F., and John Duns. Australian insolvency law. Chatswood, N.S.W.: LexisNexis Butterworths, 2009. Print. http://www.hcourt.gov.au/assets/publications/judgment-summaries/2008/hca3-2008-02-6.pdf

Bridge to Terabithia :: essays research papers

This takes place in a small town in the 1970's. It is based on a boy named Jesse Aarons but he is called Jess. He cannot wait until fifth grade starts because he will be the fastets runner, he even practiced all summer. He has two older sisters and two younger sisters. His older sisters never seem to do anything and are always ridiculing him. His younger sisters look up to him, mostly May Belle though. Jess's dad works in Washington ans so he is gone during the day a lot. It is up to Jess to milk their cow Miss Bessie everyday. His dad isn't affectionate to him and seems only to be nice to the girls, the same goes for his mom. They try to treat him too much like a man. One day, a new family moves into the old Perkin's farmhouse. There are usually families moving in and out of it all the time. There ends up being a girl named Leslie Burke who is the only child and Jess's age. She walks over to his house and says hi, but he ignores her. On the first day of school she is in his class. She hangs around him during recess and is the first girl to race and beat all the boys. This hurts Jess because he had practiced all summer. They end up becoming real good friends though and hang around each other everyday. They help May Belle get the school bully Janice Avery back after she stole May Belle's twinkie. They did it by writing Janice a fake love letter from Willard Hughes saying that he liked her and for her to walk home from school with him. So, Janice ended up walking all alone back home from school. Jess and Leslie create a secret place together in between their woods called Terabithia where Jess is the king and Leslie the queen. They built a small fort and try to talk like royalty does. In order to get to Terabithia they swing on a rope over a small creek. When Christmas comes around Leslie got Jess a new paint set since he loves to paint and his family is sort of poor. Leslie's family is rich but doesn't show it because she wears raggedy clothes and doesn't have a tv. Both her parents are authors trying to live the country lifestyle after moving from the scity.

Chapter 2 Quiz + Answers Essay

1. When companies adopt the strategy-making and strategy execution process it requires they start by developing a strategic vision, mission and values 2. The strategic management process is shaped by external factors such as the industry’s economic and competitive conditions and internal factors such as the company’s collection of resources and capabilities 3. When a company is confronted with significant industry change that mandates radical revision of its strategic course, the company is said to have encountered a strategic inflection point 4. A company’s strategic plan consists of a vision of where it is headed, a set of performance targets, and a strategy to achieve them 5. Top management’s views about where the company is headed and what its future product-customer-market-technology will be constitutes the strategic vision for the company 6. Well-conceived visions are distinctive specific to a particular organization free of generic, feel-good statements not innocuous one-sentence statements All of these 7. Effectively communicating the strategic vision down the line to lower-level managers and employees has the value of  not only explaining â€Å"where we are going and why† but, more importantly, also inspiring and energizing company personnel to unite to get the company moving in the intended direction 8. A company’s mission statement typically addresses which of the following questions Who we are, what we do, and why we are here 9. A company’s values relate to such things as  fair treatment, integrity, ethical behavior, innovativeness, teamwork, top-notch quality, superior customer service, social responsibility, and community citizenship 10. The managerial purpose of setting objectives includes  converting the strategic vision into specific performance targets  using the objectives as yardsticks for tracking the company’s progress and performance  challenging the organization to perform at its full potential and deliver the best possible results  establishing deadlines for achieving performance results 11. A company needs financial objectives  because without adequate profitability and financial strength, the company’s ultimate survival is jeopardized 12. Strategic objectives  relate to strengthening a company’s overall market standing and competitive vitality 13. A balanced scorecard for measuring company performance entails striking a balance between financial objectives and strategic objectives 14. A balanced scorecard that includes both strategic and financial performance targets is a conceptually strong approach for judging a company’s overall performance because financial performance measures are lagging indicators that reflect the results of past decisions and organizational activities whereas strategic performance measures are leading indicators of a company’s future financial performance 15. A company needs performance targets or objectives for its operations as a whole and also for each of its separate businesses, product lines, functional departments, and individual work units 16. Business strategy concerns ensuring consistency in strategic approach among the businesses of a diversified company 17. In a single-business company, the strategy-making hierarchy consists of business strategy, functional strategies, and operating strategies 18. Functional strategies concern the actions, approaches, and practices related to particular functions or processes within a business 19. Operating strategies concern the relatively narrow strategic initiatives and approaches for managing key operating units within a business and for performing strategically significant operating tasks 20. Management is obligated to monitor new external developments, evaluate the company’s progress, and make corrective adjustments in order to decide whether to continue or change the company’s strategic vision, objectives, strategy and/or strategy execution methods

The Study of Motivation Essay - 2041 Words

Literature Review Motivation MacIntyre et al. (2001) define motivation as â€Å"an attribute of the individual describing the psychological qualities underlying behavior with respect to a particular task† (p. 463). The study of motivation as a predictor of second language learning performance was initiated by Gardner and his Canadian colleagues (1972). According to Gardner and Lambert (1972), there are two kinds of motivation: integrative motivation, referring to a holistic learning approach toward the speech and culture of the target language group, and instrumental motivation, referring to language learning for more immediate or practical goals. Intrinsic and extrinsic are the new classifications of motivation. Intrinsic motivation is the†¦show more content†¦Both types are important. A learner might learn an L2 well with an integrative motivation or with an instrumental one, or indeed with both (Cook, 1991). . The level of identification with bilingual or trilingual identity is also influenced by the learners’ attitudes toward the learning situation. These attitudes refer to the individuals’ reactions to anything associated with the immediate context (e.g., the course and the teaching environment) in which the language is taught (Gardner, 1985).All the men show higher instrumental motivation towards foreig n language learning than woman. Instrumental motivation, also called rational, pragmatic and utilitarian, refers to the individual’s desire to acquire a second language in order to use it for operational purposes, to pass an examination, acquire a job, or visit a foreign country (ibid). Rahman explains rational language learning as the learning of a language â€Å"in order to empower oneself by acquiring the potential to acquire employment† (2002). . 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