An historical and comparative analysis of the development of the avenues of recovery available to creditors of insolvent companies and the consequential erosion of the privilege of limited liability

TL;DRAbstract

This thesis provides an historical and comparative analysis of the development of the avenues of recovery from corporate controllers available to creditors of limited liability companies. The thesis proposes that the conflicting goals of the promotion of enterprise through the provision of the privilege of limited liability and the protection of creditors through the provision of a recovery regime have presented both the judiciary and legislatures with a difficult balancing act. This will be demonstrated with evidence of a history of piecemeal and reactive common laws and legislation. In particular it will be observed that the common law has identified a limited category of circumstances where the privilege of limited liability will be rescinded although these have seldom been of advantage to creditors with the exception of a limited fiduciary duty owed by directors to creditors. It will also be demonstrated that whilst the legislature initially perceived creditor protection in terms o

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