Adaptación en el largo plazo

Directors do owe certain duties to a company’s lenders. The recognition of the duties owed by a director to a company’s lenders has been highlighted in a number of cases. Irish case in this line refer to the New Zealand case of Kinsela v Russell Kinsela167 which gives strong judicial recognition to the fiduciary duty owed by the director of a company to its secured lender. In

Kinsela, the court held that where a company is in a position of marginal commercial solvency the duty owed by directors to the company as a whole extends not only to the interests of the shareholders of that company, but to the interests of its lenders as lenders as well. Where the directors act in breach of this fiduciary duty, to the detriment of the company's lenders, the shareholders of the company do not have the power or authority to absolve the directors of their breach. Members of the Kinsela family as directors of and shareholders in various family companies carried on a business as funeral directors. These companies were well established, well known and had a reputation of which the family members were proud.

One such company, Russell Kinsela Pty Ltd ('the company') offered, in addition to the provision of funeral services, a form of contributory insurance against the cost of its clients' funerals. Regular payments, of small amounts, were received from contributors in return for which they became entitled to cost-free funerals. The company did not structure the scheme properly, failing to make adequate provision for rising costs and it began to incur regular trading losses and its liabilities exceeded its assists. Following issues over a lease, proceedings were brought to have the company wound up. At first instance Powel J held that while the directors had power to lease company premises under the company's Memorandum of Association, the power had been exercised otherwise than in furtherance of the company's stated objects. The court was bound by a previous decision in Winkworth v Edward Baron Development Co Ltd168where Lord Templeman held that directors owe a fiduciary duty to the company, present, and future, to ensure that its affairs are properly administered and to keep the company’s property inviolate and available for the repayment of its debts.169

On appeal to the Court of Appeal, Street CJ found that at the time of the making of the lease, the company was in severe economic difficulties, bordering upon liquidation. Under these

167_{Kinsela & Others v Russell Kinsela Pty Ltd (in liquidation) [1986] 4 NSWLR 722.} 168_{Winkworth v Edward Baron Development Co Ltd [1986] 1 WLR 1512.}

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circumstances, the directors were under a fiduciary duty to the secured lenders of the company and this duty had been breached by the execution of the lease as its intended effect was to place one of the company's assets beyond the immediate reach of the company's lenders. His Honour therefore concluded that while the lease was not ultra vires and void as exceeding the capacity of the company", it was entered into by the directors in breach of their duty to the company, to the detriment of the company's secured lenders at a time of insolvency and therefore could not be affirmed by the company.

This case provides the first authoritative statement of the existence, extent, and scope of the duty owed to the secured lenders of a company. The Court's finding that in certain circumstances the duty owed by directors of a company extends beyond the interests of the company's shareholders is of interest given the increasing demand for and expectations of greater corporate social responsibility on the behalf of a company. The interests of lenders are extended to the rights of shareholders in relation to breaches of duty by a director, but only in circumstances of insolvency, or near insolvency.

Set against this landscape is the decision in Yukong Line Ltd of Korea v Rendsburg Investment Corporation of Liberia170 where the Toulson J held that a director of an insolvent company who, in breach of his duty owed, transferred assets beyond the reach of its lenders owed no equal fiduciary duty to any creditor or lender of the company.171 The issue of directors’ duties to secured lenders also emerged in Re Pantone172where Richard Reid QC, sitting as a deputy judge in the High Court, observed “… the human equivalent of the company for the purposes of the directors’ fiduciary duties is the company’s [lenders]…173 _{Further, in Colin Gwyer and}

Associates174 _{it was held that a resolution of the board of directors passed without proper}

consideration being given by certain directors to the interests of secured lenders would be open to challenge if the company had been insolvent at the date of the resolution. The directors, when considering the company’s interests, must have regard to the interests of the lenders.

170_{Yukong Line Ltd of Korea v Rendsburg Investment Corporation of Liberia (No 2) [1998] 2 BCLC 266.} 171 _{The appropriate means of redress would be for the liquidator to bring an action for misfeasance under section}

212 of the Insolvency Act 1986.

172_{Re Pantone 485 Ltd [2002] 1 BCLC 266.} 173 _{Ibid [298] per Richard Reid QC.}

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The first Irish case to consider this matter was Parkes v Hong Kong & Shanghai Bank Corp175

where the issue before the court was whether the fact that the company was insolvent meant that the disposition was ultra vires. Blayney J approved the principle stated by Street CJ in

Kinsella and accepted the distinction between solvent and insolvent companies and that the directors of insolvent companies owed duties to the company’s lenders. The landmark Irish case was Re Fredrick’s Inns176where Blayney J held that the directors of a company do owe duties to its lenders when the company is insolvent. Thus, where directors act in breach of their duties to the lenders of an insolvent company their actions will be deemed as being unlawful.177

While it may be true to say that directors should take into account the interests of secured lenders in considering what is for the benefit of the company as a whole, once a duty to secured lenders is recognised a real possibility exists that the duty may conflict with the duty owed by the directors to the shareholders and others associated with the company. It is not hard to imagine the potential difficulties that would be faced by the courts in attempting to find solutions to the problems caused by these competing and conflicting duties. Although the Court of Appeal did break new ground in the Kinsela decision it would be wrong to overstate the implications of a basically conservative judgment. As noted above, the concept that directors of a company owe a duty to company secured lenders, at least in some circumstances, had previously received recognition. Moreover, the circumstances in which the Court stated that such a duty arises have been drawn very narrowly. This with the current position of the judiciary in interpreting the duty to act ‘in the interests of the company’ provides that much reasoning will be required before the interests of secured lenders can be fully accounted for by the directors of a company.