Home Improvement Contractor - Licensed Contractors

What is an independent contractor, when acting as a newspaper delivery-person? I sent an e-mail to my local newspaper about an ad they had posted seeking "independent contractors" to deliver papers along various routes at times early in the morning. I'm not really sure what's implied by "independent contractor". How do I get paid, and what sort of pay could I expect to be making, delivering papers? I know it's all very variable, but are there any rough estimates? I'm almost 18 and looking to move out of my house in September (while attending school), and need to pick up a new source of income so I'm not just scrounging by on a few extra dollars per month. If I get lucky, I'll get a job working at Michigan State University, which means by the time I'm ready to transfer, I'll get great discounts on tuition. EDIT: Does that mean the State Journal will pay me a salary, or will I be reliant on tips?

How to start an independent business ? I want to self-employ myself as being a mystery shopper. Someone who is hired by stores to go into their work place and act like a customer, then report on the kind of service I received. How do I go about doing that? Do I need a license? Are there any programs out there that would give me free advice on how to start my own business as an independent contractor?

I'm thinking being an independent contractor as a customer service agent..How would I get customers? I saw this on the Fox Business Channel about some companies save money by hiring on a contract basis people to act as customer service agents taking reservations, product orders etc. from their homes. I'm thinking of doing the same thing from my home. I'm doing research for a business plan, financing, equipment etc. My question is what's the best way to reach potential customers when you're unable to be mobile.

As an independent contractor in a dispute with my client, may I subpoena his client as a witness? I'm an independent contractor who acts as a salesman for a small company and my contract states any client that I have a meaningful conversation with and results in additional money earned by the company, I am entitled to a percentage of profit. I believe such conditions have been met with one client in particular. The company that I work with disagrees, feels that I was not instrumental in the sale. Legally speaking, am I allowed to subpoena the client (in question) as a witness if I take the company to court? Of course, I don't believe it would ever come down to a law suite---in fact, the mere mentioning of such a subpoena would scare my company into paying me---at least that is what I'm hoping for, but I want to make sure that such a subpoenas can be issued by me

My new job has classified me as an independent contractor and I need to know what to do? My job I just started classifies me as an independent contractor but acts like I'm an employee by telling me things such as what I can and can't wear, the way I have to do things, and etc... When I went in for the interview they said that I would be hired as an employee. I think they are classifying people as an independent contractor so they don't have to pay taxes on us. I need to know what I can do legally? Also I want to keep my job but if they are doing something against the law I want it fixed as they are going to be screwing me by putting me as an independent contractor. Please help.

Can I hire and outside commision based salesman as an Independent contractor? I own a contracting business and am a sole proprietor. I have employees and sub contractors. One of my subs is getting older and is tired of pounding nails. He is excellent at generating work. He asked me if in the near future I would like him to go out and sell jobs for a % of each one. He doesn't want to do anything but act as an independent sales rep for myself and other contractors he knows. Is it legal to do this and take him on as a 1099 subcontractor? Also, when it comes time for a workman's comp audit, how do I prove to them that he isn't a sub without liability insurance who they would in turn nail me for comp fees on his wages? What documents would I need from him? BTW it just occured to me that it would appear that I would be a subcontractor for him. The difference is that after he sells a job, that is it. I take over and he holds no responsibility. I'll pay him a % when I get paid. Hope I didn't lose anyone here. To sum it all up>>> I want a salesman to generate work for my business but DO NOT WANT ANOTHER EMPLOYEE.

Carol hires Dick to act as her agent in the purchase of an office building. Carol does not want the seller to? A. disclosed principal. B. an independent contractor. C. an undisclosed principal. D. a partially disclosed principal.

What is the most appropriate way to ask for a raise... (I am an independent contractor)? I am a self employed medical transcriptionist. I have been working for the same doctor's office for five years this September. They got a new office manager about a year ago who I actually worked with previously and do not have a good track record with (however she acts sweet on the outside). She is the one that pays the bills for the doctors. I would like to ask for a 1 cent raise ( i get paid by the line, not by the hour) bringing it up to 13 cents a line (65 characters). I have been making 12 cents for five years. Is this an appropriate time to ask, and does anyone know how I should go about it? (i'm 25 and have never been in this situation cause I've always had the same job :) Thanks guys My "boss" is a woman, thanks

I have been miss-classified as an independent contractor, what do I do? I and about 10 other people have signed a contract stating we were independent contractors, and accordingly, we do not have taxes taken out of our checks and cannot receive unemployment. That is pretty much the only thing that makes us independent. As far as common law goes, it appears to me that we are employees. For example, our employer has a great level of control over us. He sets our schedule, decides what our pay will be, is able to fire us, etc. We work from home on computer but we still are under his supervision and we have chat-meetings every morning. We do not come and go as we please. The fact that he is considered our "Boss" alone is enough to make me think we are not contractors!! I have talked to friends and family and they all think that I am being taken advantage of. I want to add that I have been considered by my employer as independent for the past year or so. Before that however, we were a regular business with employer-employee format. We had about 100 employees. THEN, we lost our major client and there were lay-offs, leaving me and about 10 others. This is when our employer decided it would be in their best interest to make us independent contractors. He straight out told us it was to save money. I have always felt this man was malevolent and I feel what he is doing is very wrong. He's very sneaky and he tells us to keep quiet about our status as independent contractors. Also, I am very worried about tax time. I have not been issued a 1099 form, I'm not even sure if that's what I need to be filing. Our boss pretty much told us, come tax time, we will have to '"figure it out ourselves". >___< So I am basically wondering who or where I need to report my employer, becasue I know both federal and state government have become very interested lately in the missclassification of independent contractors because there's a lot of unpaid taxes there. I also need to know WHAT I should be reporting, is it tax evasion or tax fraud or something else entirely? p.s. I am not worried about getting fired if the business closes down, I'm looking for a different job anyway. I just want to act before tax time comes and I end up having to payback money when there is no reason to since I have been missclassified (atleast I think so, if I am wrong about all this, please tell me) Thank you so much in advance, any advice is greatly appreciated.

Carol hires Dick to act as her agent in the purchase of an office building.? Carol does not want the seller to know that she is the buyer, so she asks Dick to represent that he is buying the building for himself. Carol is: A) a disclosed principal B) an independent contractor C) an undiscloded principal D) a partially disclosed principal

Why would some Republicans protect defense contractors & not the right of employees who becomes victims? 30 Republicans voted against an amendment ( SA 2588) to the 2010 Defense Appropriations bill that would withhold defense contracts from companies if they restrict their employees from taking workplace sexual assault, battery and discrimination cases to court. Sec. 8104. (a) None of the funds appropriated or otherwise made available by this Act may be used for any existing or new Federal contract if the contractor or a subcontractor at any tier requires that an employee or independent contractor, as a condition of employment, sign a contract that mandates that the employee or independent contractor performing work under the contract or subcontract resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention. VOTED NO: Alexander (R-TN) Barrasso (R-WY) Bond (R-MO) Brownback (R-KS) Bunning (R-KY) Burr (R-NC) Chambliss (R-GA) Coburn (R-OK) Cochran (R-MS) Corker (R-TN) Cornyn (R-TX) Crapo (R-ID) DeMint (R-SC) Ensign (R-NV) Enzi (R-WY) Graham (R-SC) Gregg (R-NH) Inhofe (R-OK) Isakson (R-GA) Johanns (R-NE) Kyl (R-AZ) McCain (R-AZ) McConnell (R-KY) Risch (R-ID) Roberts (R-KS) Sessions (R-AL) Shelby (R-AL) Thune (R-SD) Vitter (R-LA) Wicker (R-MS) http://thomas.loc.gov/cgi-bin/query/F?r111:1:./temp/~r111cX44Rt:e0: The vote results is for the amendment not on the defense bill.

What is the most appropriate way (and is it) to ask for a raise ( i am an independent contractor)? I am a self employed medical transcriptionist. I have been working for the same doctor's office for five years this September. They got a new office manager about a year ago who I actually worked with previously and do not have a good track record with (however she acts sweet on the outside). She is the one that pays the bills for the doctors. I would like to ask for a 1 cent raise ( i get paid by the line, not by the hour) bringing it up to 13 cents a line (65 characters). I have been making 12 cents for five years. Is this an appropriate time to ask, and does anyone know how I should go about it? (i'm 25 and have never been in this situation cause I've always had the same job :) Thanks guys

independent contractor law? I live in Indiana. I was an independent contractor for a newspaper for five months. My driver's license was suspended and I had to quit without giving 28 days notice The people I was contracted with owe me approximately $800, and are refusing to pay it. Since continuing to drive would cause me to commit an illegal act, is the contract that I had with them enforceable? I have tried peaceful mediation to no avail. Can I sue them in small claims court to recover what is owed? *********************** The monies owed were for work that WAS completed already. They held two weeks worth of pay when I started. My license was suspended because my insurance lapsed by a couple of days. In that time, I hit a deer. Since the accident I have carried appropriate auto insurance. I did not drive intoxicated, under the influence of drugs, etc.

I was hired as a independent contractor. I am a entertainer. Can I be forced to sign a 1099? I was hired as a independent contractor. I pay a fee every evening I work at this club. The club pays me nothing. Now at the end of the year, I was approached by the manager, and he told me that if I do not sign his 1099, that I am not allowed to work. Is this legal? This is a bit confusing so please try to stay with me...... okay the way the entertainers make money is all by cash "tips". If a entertainer is sitting with a customer who wants to put some "table dances" on his credit card for the dancer, then the club charges the customer a 5.00 fee per dance. So the entertainer gets $20.00 and the club gets $5.00. The customer is charged $25.00 per dance. The 1099 that I am suppose to sign is all the dances I have done over the past year. So this money is actually coming from the customer, not the club. But the club is acting as if the club is paying this money to the entertainers. This is how they are writing us off as independent contractors. So is this legal?

Employers' Vicarious Liability when there is an Independent Contractor? Hey guys, I have my first moot soon, on a topic which I've never studied before, so a bit of help would be much appreciated.... Essentially, the problem surrounds caterers who were employed by a school on a 'fixed term' contractual basis. Despite being specifically instructed not to include nuts in meal, they included walnuts in the meal, which lead to a pupil suffering an allergic reaction. At the trial it was held that the School was liable on the basis that: 1) The Cooks were employees of the School and therefore the School could be held vicariously liable for their actions; 2) In disobeying instructions, the Cooks were not acting on a frolic of their own but in the course of their employment. School now appeals on the following grounds: 1) The Cooks were not employees but independent contractors. As a result, the School cannot be vicariously liable for their actions; 2) In disobeying Miss Craig’s direct instructions the Cookes put themselves outside the course of their employment and therefore the School cannot be liable for their actions. So yeah, basically, I just need help with how to approach the appeal, particularly the point in bold. Any cases/precedent/other authorities would be very much appreciate

Business Law Help!!! Please!!!! T/F? 1.In sales law, a warranty is an assurance by one party of the existence of a fact on which the other party can rely. 2.A contract cannot contain both a warranty of merchantability and a warranty of fitness for a particular purpose. 3.Manufacturers are liable in strict product liability for injuries caused by commonly known dangers. 4.A plaintiff cannot succeed in a suit for negligence against a manufacturer unless the plaintiff bought the defective good from the manufacturer. 5. To succeed in a product liability suit based on strict liability, a plaintiff must be more than a bystander. 6.One requirement for a product liability suit based on strict liability is a failure to exercise reasonable care. 7.In many states, the plaintiff’s negligence is a defense that may be raised in a product liability suit based on strict liability. 8.A merchant can disclaim an implied warranty of merchantability. 9.Assumption of risk is a defense that may be raised in a product liability suit based on negligence. 10.An implied warranty of merchantability arises in every sale or lease by a merchant who deals in goods of the kind sold or leased. 11.A manufacturer’s duty of care does not extend to the inspection and testing of products bought to incorporate in the final product. 12. A manufacturer may be liable for a failure to exercise due care to any person who sustains an injury caused by a defective product. 13. Information acquired through an agency relationship is not considered confidential. 14. If an agent acts within the scope of authority, a partially disclosed principal is liable to a third party for contracts made by the agent. 15. All employer-employee laws apply to employer–independent contractor relationships. 16. Even after an agency relationship has terminated, there are circumstances under which a principal may be bound by his or her agent’s act. 17. Employees who deal with third parties are agents of their employers. 18. Firing a worker who refuses to perform an illegal act violates public policy. 19. Wrongful termination of an agency relationship can subject the canceling party to a suit for damages. 20. If an agent acts within the scope of authority, an undisclosed principal is liable to a third party for contracts made by the agent. 21. A principal is not liable for an agent’s crime simply because it was committed while the agent was acting within the scope of employment. 22. A principal can ratify an agreement made without authorization on his or her behalf by one who is not his or her agent. 23. When a principal places an agent in a position to defraud a third party, the principal is liable for the agent’s fraudulent acts. 24. An independent contractor is one whose physical conduct is controlled, or subject to control, by his or her employer. 25. An independent contractor may act in the capacity of an agent. Multiple Choice 26. In most cases before the court where there is a dispute as to whether one is an employee or independent contractor, most parties are arguing for the status of: a. Principal status b. Agent status c. Independent contractor status 27.In an agency relationship, which party directs traffic? a. The Principle b. The Agent c. The Principal d. Independent Contract 28.A Bouncer at a club is most likely a(n) a. Employee of the club b. Independent Contractor of the club 29.In an agency relationship, there are two primary parties: a. The Principle and the Agent b. The Principal and the Agent c. The Agent and Independent Contractor 30.Principal is to _________________as Agent is to_______________. a. Employee, Employer b. Independent Contractor, Employee c. Employer, Agent d. Employer, Employee

Why should I have any loyalty to my employer when they show none for me? I am a part-time employee with no benefits, like many Americans, unfortunately. At my job, I am not even given the opportunity to buy into the healthcare plan that supervisors are in. My employer asked me to come in and work an unscheduled shift and I asked for time and a half pay to do it. They made me feel guilty for asking. Our owner drives a Bentley and just bought $13,000 remote-control louvers for his ocean-view windows at home. In an era of offshoring/globalization of jobs, shouldn't most people just act as independent contractors when their employer has no dedication to them? BTW, I have a skill that has employers begging to fill, so I would have no problem at all getting another job, but that isn't my point.

Why I have to pay $2000 and $973 for SS and Medicare? For 2 years I have been an independent contractor and get 1099-Misc forms from the company. Last year I entered the amount on the "other income" line and paid a couple of hundred dollars in taxes. This year, I used the same software -Taxact - and there was no "other income" question. The software had a "are you a business" question and I went through the questions and have to pay $2000 in taxes and $973 in SS and medicare taxes. Did the IRS change their policy? On the 1040 form there is a line for "other income". Should I just scrap Tax act and do the taxes manually and add the $7000 income on "other income" line?

I am thinking about renewing my lease, but i am having some reservations due to the new lease agreement? As part of my new leasing agreement, there is an abdendum which states that all rent is to be due by the 5th of the month and failure to make payment by the 5th shall result in termination of the lease, without further notice of default and will be subject to eviction and notices to default under the Landlord & Tenant act of 1951 are waived. Now, this part of the abdenum makes me a bit uneasy. Can anyone tell me if this is typical with leasing agreements and does the fact that my landlord is an independent contractor has anything to do with the new leasing agreement? What can i do to ensure i am protected as a tenant (pennsylvania)? By the way, i haven't signed the renewal yet and i don't plan to either until i have concluded my research on this issue.

Help with starting as independent contractor? If you really do help with this, then thank you so much. I am a 23 year old actress/permatemp in NYC. I work multiple jobs to support my acting habits in the downtime between gigs. I currently hold a job as a part-time employee at a normal, W-2 issuing firm. I now have a reputable company who wishes to employ me for clerical uses as an independent contractor for the next 6 months. I would set my own schedule, etc, and the pay offer is great. I am, however, terrified of having to file quarterly taxes and create my own invoices! My father (never a good source) insists if I am paying taxes in on my part time job through that employer, I shouldn't have to file until April on the independent contractor money, and just to put 35% of my salary away or so each check and pay in April. I, however, think otherwise. I would be making approx $25-26/hr as a contractor. Would the 35% withholding on my own be a safe bet as far as amount goes? And what forms would I be required to file quarterly? Absolutely agree on clueless. I am. No offense taken. And I'm not concerned with benefits or overtime or anything like that. I'll set my own hours within the office; I have worked previously in offices dealing with this specific legal paperwork for International Students, so that's why the designation, apparently. It's really the only offer I have... and I'm fine with being an IC instead of an employee. If you could help with the other, I'd appreciate it.

Can someone please answer these multiple choice questions? 21) The DEF Corporation is incorporated in Texas. It wishes to do business in Oklahoma. Before DEF can legally do businesses in Oklahoma, which of the following must it do? A. Nothing; DEF automatically has constitutional rights to do business in Oklahoma. B. DEF must incorporate in Oklahoma. C. DEF must qualify (register) to do business in Oklahoma. D. DEF must domicile itself in Oklahoma. 22) What types of business can be converted to an LLC? A. General partnerships only B. General partnerships and limited partnerships only C. Corporations and limited partnerships only D. Corporations, general partnerships, and limited partnerships 23) Which of the following best describes the status of the employment at-will doctrine in the United States today? A. It applies in most states to most employment relationships, but there are many exceptions that limit its application. B. It applies more today than in the last century, and the quantity of corporate layoffs is evidence of this. C. It today applies only to the employer, although in the past it applied to both the employee and employer. D. It still applies today, but only to employees who are expressly told that they are an at-will employee when they are hired. 24) Which of the following rejected applicants may have a valid claim for discriminatory hiring practices? A. A public health service did not hire a registered nurse because his shaking hands prevented him from administering injections. B. A Catholic school did not hire a teacher because he was not Catholic. C. A trucking company did not hire a truck driver because she was pregnant. D. A university did not hire a 22-year-old woman to be a director of faculty because she was too young. 25) Which of the following people is protected from employment discrimination on the basis of age? A. A 90-year-old person who wants a job as an airline pilot B. A 50-year-old person who wants a job as an accountant C. A 30-year-old person who wants a job as a waitress D. A 10-year-old person who wants a job as a bartender 26) Marie works as a receptionist for a plumbing company. She works from 9 a.m. to 6 p.m. Monday through Friday. She earns $12 per hour, and is told how to do her job and what she should be working on at any particular time. Her boss does not withhold any taxes from her paycheck. Which of the following is true? A. Marie would be treated as an employee because she is paid for the work that she does. B. Marie would be treated as an employee because of the control exercised by the plumbing company over her work. C. Marie would be treated as an independent contractor because she is paid hourly. D. Marie would be treated as an independent contractor because the employer doesn’t take any taxes out of her check. 27) Company employee handbooks have been found in some cases to amount to a(n) ______________ exception to the employment at will doctrine. A. apparent B. tort C. public policy D. implied contract 28) Which of the following is a correct statement of the requirements for a Bona Fide Occupational Qualification (BFOQ)? A. The occupational qualification is job-related and cost-effective. B. The occupational qualification is job-related and nondiscriminatory. C. The occupational qualification is job-related and is a business necessity. D. The occupational qualification is rationally based and evenly applied. 29) What federal legal protection is there with respect to trade secrets? A. Trade secrets are protected under the federal patent laws. B. Trade secrets are protected under the federal copyright laws. C. Trade secrets are protected under the Trade Secret Protection Act of 1952. D. Trade secrets are protected under the Economic Espionage Act of 1996. 30) Which of the following is true about misappropriation of trade secrets? A. Although it is not necessary that the trade secret be patented, the secret must be such that it could be patented. B. Trade secrets are always protected regardless of the actions of the trade secret owner. C. The plaintiff can recover damages from theft of a trade secret only if the defendant acquired the trade secret through unlawful means. D. Injunctions are generally not available to protect trade secrets.

Are there differences between corporations and partnerships in their agency liabilities? In other words, are corporations and partnerships able to avail themselves of different defenses than each other, are they liable in different circumstances than each other, etc. Or is the general rule applicable to all business types--that principles are liable for their agents' acts if the principle controls the manner and means of the work, if the agent is within the scope of employment and is not an independent contractor? Thanks, any help is appreciated.

Anyone feel like answering a question of Ethical Conduct? Richard Fraser was an "exclusive career insurance agent" under a contract with Nationwide Mutual Insurance Co. Fraser leased computer hardware and software from Nationwide for his business. During a dispute between Nationwide and the Nationwide Insurance Independent Contractors Association, an organization representing Fraser and other exclusive career agents, Fraser prepared a letter to Nationwide's competitors asking whether they were interested in acquiring the represented agents; policyholders. Nationwide obtained a copy of the letter and searched its electronic file server for e-mail indicating that the letter had been sent. it found a stored e-mail that Fraser had sent to a co-worker indicating that the letter had been sent to at least one competitor. The e-mail was retrieved from the co-worker's file of already received and discarded messages stored on the server. When Nationwide canceled its contract with Fraser, he filed a suit in a federal district court against the firms alleging, among other things, violations of various federal laws that prohibit the interception of electronic communications during transmission. In whose favor should the court rule, and why? Did Nationwide act ethically in retrieving the e-mail? Explain. [Fraser v. Nationwide Mutual Insurance Co., 352 F.3d. 107 (3d Cir. 2004)

I was hired to do some freelance work as an independent contractor, now company wants to take taxes out? I did some ad writing for an ad agency and they haven't paid me in over net 30. The issue is that when they hired me and asked me for my day rate, I quoted them my rate based on my business rate- what I need to cover my taxes, etc...After the work was completed and the invoice sent, they came back to me with a W-9, requiring me to act as an employee- and taxes taken out- which is going to be a detriment to my own business since I can't count it toward my business income. Had I known this in advance, I would have quoted them a rate that took into account the taxes I would be forced to pay on it at the end of the year. Thus far, no response and no payment from the agency, This is me emailing the Creative Director- who I think is really disorganized and clearly doesn't know how to handle it- she realizes she should have told me the terms upfront about the need to work as an employee but she didn't. What do you think I should do? I need to get paid and It's going to be a wash if I have to pay taxes against one stint. The form is a W-9 and from my understanding, subject to witholding taxes. I function as a sole contractor, and I save a large amount off my taxes yearly by the write offs I am legally able to take from having my home office, paying my own heath insurance and benefits, deducting my commuting expenses. If I am taxed on them then these deductions cannot be counted against my income. OK, so maybe I worded it incorrectly- Not a full time employee but a contractor forced to have a witholding of at least 28% that would use on my own taxes to deduct against my own costs at the end of the year as an independent contractor. Now I can't.

How should I set up the business side of my acting career? I am a beginning actor and I am trying to get as much of the business side set up as I can right now. I am aware of the tax and legal advantages of LLCs and Corporations, but I was wondering what other actors have done. Do I remain an independent contractor in the form of a sole proprietership or should I build a LLC or Corporation.

Is it legal to be a (no sex) dominatrix in North Carolina? I've been reading through the statutes, and my services don't seem to fall under the definition of prostitution, but I'm not sure about assault, and possibly obscenity. I can't find an absolute definition of assault, much less consensual assault, or BDSM, sadism/masochism. If these acts are legal, is it legal to charge for them? To operate out of my home? Are there zoning laws? Can I sign up for a business license? I currently pay taxes as an independent contractor, or "entertainer".

Obama Healthcare Reform? Judging from everything that has been reported so far, would Obama's health care reform forced doctors to be employees of the government (similar to Europe and Canada)? Or will doctors still be independent contractors, but the government will act like one big insurance company, albeit with better premiums? I think the better the way is to control the staggering malpractice rates of physicians. This is the reason why hospitals advise their docs to be "extra sure" of their diagnosis, which means more expensives and potential unnecessary tests.

Are contractors Narcissists with power tools? Are contractors Narcissists with power tools? I previously posted a question on how to talk to contractors, how to come to an understanding and agreement with them on how I want a job done in MY HOUSE that I am paying MY MONEY for to get fixed, remodeled, etc... I shared how I have had problems with past contractors who did lousy jobs. Despite after all our conversations and drawing pictures and agreement, and my willingnesss to pay extra money, the contractors couldn't understand why I wasn't pleased with the lousy job they did. They acted like wounded little kids who were upset that their "parent" didn't approve of the lopsided clay ashtray they build in craft class. I was told that contractors are "very independent" and want a carreer where they can work independently. This is why they go into the field of construction/remodeling/siding, etc...If you "bug them" too much, they will do a bad job. Sounds Passive-aggressive to me. How can you expect to work independently, and yet go into someones home, and take their money and not listen to their wishes on how they want their home to look in the final product? If it's your home, do what you wish to it, but in MY home, I have different ideas and standards. I do clothing alterations for people. If you think that contractors have a hard time dealing with picky people, try dealing with women who want you to make them look younger, skinnier, taller, etc... and can't understand why I can't work magic! You ever heard of a "Bridezilla"? I have had women want me to redo the hem on their skirt or pants by 1/16 of an inch! They are paying for it, so I do it. I charge them extra, but I do it to their satisfation! Other contractors have told me that even though they agree that a fellow contractors job was BAD, they will not redo it for some reason. I still don't get this. When a contractor comes into remodel an older home, they are 'redoing' someone elses work! Is there some unwritten timelimit on when another contractor can come in and redo another workers job? Does this mean that 20 years, or more have to pass before another contractor will redo a bad job? I don't understand this this logic. Why would the above rule apply to such things as aluminum siding? It is not a "structural" change to the building, it is "cosmetic" and not something that could cause the home to collapse. Why would another contractor not want to redo this? If we asked to have a different color put on, would this nullify the former contractors "power" of territory over the previous job? It all sounds a bit goofy to me. Contractors appear to be (NOT ALL OF THEM) a group of people who have Personality Problems with power tools. Please correct me if I am wrong! Some people have suggested I get a contract in writing before having a contractor do work. It doesn't work! They can still mess up, and I would still have to deal with their bad attitude to a REASONABLE request. I had a friend whose husband was a lawyer, who did everything 'right' by getting a contractor to sign a contract guaranteeing their work. Well, they still had big holes in their poured foundation wall, and other issues, that they had to take the contractor to court over - despite a contract. This issue is so frustrating - help me get some clarity. I thank you for your answers, but I find it interesting that it is assumed that I am the one at fault! Do contractors never do wrong? As I shared before, I do clothing alterations, and this really isn't much different than a contractor who works on houses. In some ways it is more difficult - having to make a two dimensional piece of material fit a three dimensional body form. This can be a real challenge - especially for some bodies! It takes time and patience to deal with people, and if you can't learn to do this, maybe it isn't the right job for you. I have had to "REDO" a lot of work done by other alterationists, and their sloppy way of putting together a garment. I don't see why contractors are above having sloppy workers within their ranks also. If a contractor can't take someone who knows what they want, and is willing to PAY FOR IT, I think there is something wrong there.

change from 1099 to w4? For 2008 .. I acted as an independent contractor so I received a 1099 ... after doing some research I think i'm leaning more towards an employee due to the fact that I used company vehicle, etc... How do I change to a w-4 employee?

My boss refuses to pay above the table and now demands drug tests. Must I submit to testing? Do I whistleblow? There would be little issue if my boss would legitimize my employment. This outcome is unlikely. This is my only job. I enjoy the work and the logistics are convenient. I value reporting/paying payroll tax. I am proud when integrity guides me to higher self-worth and thankful for having work. Upon commencing employment, my boss never specified voluntarily the Er-Ee relationship or pay structure. During my inquiries to understand the job position, I was ignored and misinformed. To my surprise, on one occasion, I was paid by check (not cash), and twice paid cash net tax (no stub). On one occasion I was told I was an independent contractor and conntinually lead to believe skewed truths about my employment questions. Likely, there are other misconducts and shady business practices by my employer. I am concerned my lack of exposing potentially illegal acts, with my acceptance of under the table pay, exhibits fault to some degree on my behalf. What are my legal rights?

can you guys read essay and give me some ideas ,thank you? if you be a judge what should you do? my answer was on the bottom, but i dont know are they good reasons or not. can you guys give me some ideas? sorry some sentences were break to the other line, but just continue read. i dont know when i typed i was messed up Facts: Sara Kearns went to an auction at Christie’s to bid on a tapestry for her employer, Nardin Fine Arts Gallery. The good news is that she purchased a Dufy tapestry for $77,000. The bad news is that it was not the one her employer had to her to buy . in the excitement of the auction she forgot her instructions. Nardin refused to pay, and Christie’s filed suit. Issues: is Nardin liable for the unauthorized act of its agent? Decision: Nardin’s company would be responsible for paying breach contract with Christie’s because it seems that they chose to send Sara on their behalf, so they are responsible for her actions. Reasoning: Sara’s bid was a contract to purchase the tapestry, so Christie’s tried to collect the money. When Sara Kearns signed a contract with Christie’s and she said “her employer, Nardin, was going to pay for it. Therefore, Christie’s want to sued Nardin because he refused to pay. On the other hand, Sara Kearns had made herself a decision, she would have been as a agent for Nardin, but she was just like not as a mere Nardin’s agent, she certainly had Apparent authority. according to Apparent Authority definition: “a principal is liable for the acts of it an agent who is not, in fact, acting with authority if the principal’s conduct causes a thirty party reasonably to believe that the agent is authorized”.Also, Nardin argues that Sara Kearns was not authorized to purchase the Dufy tapestry because it was not the one he want to buy. It’s not a good reason for Nardin to avoid the problem. Sara Kearns represented for Nardin to be a bidder/purchaser, so Christie’s must be recover Nardin, not Sara. Only Sara is liable when she is an agent for the torts of an independent contractor. through the book: “principals prefer agents to be consideration independent contractors and not servants because, as a general rule, principals are not liable for the torts of an independent contractor.

What do I need to do to start this kind of business? I'm interested in starting a tutoring company. Basically, I want to act as the "middle man" between families and tutors. I want to hire tutors to work for my company as independent contractors and tell them when to go to which families. Obviously, I'd like all of my "ducks in a row" as far as licensing and taxes go. Because the tutors would be independent contractors who go to the families' homes, I don't think I would need insurance. What do you think? From my understanding, when hiring independent contractors, I would need to supply them with a 1099 form. Is that right? Would I need anything else? How would business taxes work for this set up? What I envision is the families paying the company, and the company paying the independent contractors. So it seems to me that I wouldn't need to worry about income tax; is that right? But I would have to worry about self employment tax? And what about paying tax on the money that stays within the company? If you have the answer to any or all of these questions I would appreciate it. Or, if you can think of anything else I need to know or think about. Thank you!

Do you know what Obama HAS accomplished in 6 months? Signed executive orders to close the U.S. military prison at Guantanamo Bay, Cuba, within a year, ban torture and end the CIA’s secret overseas prisons and define treatment of Detainees. Reversed restrictions on stem cell research. Signed the Lilly Ledbetter Fair Pay Act. Reducing discrimination based on gender, age, religion, or race. Signed an executive order reversing the ban that prohibits funding to international family planning groups that provide abortions. Gag rule revoked (Mexico City policy). Creates the White House Council on Women and Girls "to provide a coordinated federal response to the challenges confronted by women and girls and to ensure that all Cabinet and Cabinet-level agencies consider how their policies and programs impact women and families." Signed a Presidental Memorandum extending federal benefits to same-sex partners of federal workers and announced support for the Domestic Partners Benefits and Obligations Act of 2009. Reverses U.S. position on LGBT Issues at the UN: At the "Durban Review Conference," U.S. supports language condemning “all forms of discrimination and all other human rights violations based on sexual orientation.” Signed executive order requiring federal contractors to offer jobs to current workers when contracts change. Reversed a Bush order requiring federal contractors to post notice that workers can limit financial support of unions serving as their exclusive bargaining representatives. Signed executive order preventing federal contractors from being reimbursed for expenses meant to influence workers deciding whether to form a union and engage in collective bargaining. Created a foreclosure prevention fund for homeowners. Expanded eligibility for the refinancing portion of the Making Home Affordable plan to help Americans struggling with distressed mortgages refinance at lower interest rates, even if they owe up to 25 percent more than their homes are now worth. Established a credit card "bill of rights". Expanded loan programs for small businesses. Extended and index the 2007 Alternative Minimum Tax patch. Expanded eligibility for State Children's Health Insurance Fund (SCHIP). Expanded funding to train primary care providers and public health practitioners. Created a new White House task force on the problems of middle-class Americans, and installed Vice President Joe Biden as its chairman. Appoints Vice President Joe Biden to Oversee Stimulus Plan Payouts. Granted a reprieve to Liberian immigrants facing imminent expulsion. Directed military leaders to end war in Iraq. Allowing Caskets to be photographed when the return from Iraq with family approval. Released nine previously secret internal Justice Department memos and opinions defining the legal limits of government power in combating terrorism. On Arab TV Network, Obama Urges Dialogue. Gave a speech in Cairo engaging the Muslim and Arab world. Bars independent contractors from conducting interrogations of terror suspects. Granted Americans unrestricted rights to visit family and send money to Cuba. Ordered the release of nearly a quarter of a million pages of records from the Reagan White House that were kept from the public during a lengthy review by President George W. Bush. Restored funding for the Byrne Justice Assistance Grant (Byrne/JAG) program. Released presidential records. Required new hires to sign a form affirming their hiring was not due to political affiliation or contributions. Pushed for enactment of Matthew Shepard Act, which expands hate crime law to include sexual orientation and other factors. Invites gay families to the Easter Egg Roll as part of the Obama administration's outreach to diverse communities. Created a White House Office on Urban Policy. Increased funding for the NEA. Appointed an assistant to the president for science and technology policy. Funded a major expansion of AmeriCorps. Banned lobbyist gifts to executive employees. Investment in all types of alternative energy. Enacted tax credit for consumers for plug-in hybrid cars. Support for high-speed rail. Provided grants to encourage energy-efficient building codes. Extended unemployment insurance benefits and temporarily suspend taxes on these benefits. Created the White House Council on Automotive Communities and Workers to help auto industry workers transition to new manufacturing opportunities, including jobs in alternative energy. Stopped raids on medical marijuana dispensers. Nominated Sonia Sotomayor to the Supreme Court of the United States. If confirmed, Sotomayor would be the first Hispanic to ever serve on the Supreme Court. Appointed more than 60 openly LGBT persons to positions in the executive branch. Issues Presidential Proclamation for Pride, proclaiming June 2009 as Lesbian, Gay, Bisexual, and Transgender Pride Month. Signed a mercury reduction pact with 14

Why does society look down on blue collar people? In high school the teachers act like if you don't grow up to be an executive, a national leader, lawyer, astronaut, professor, doctor, accountant, CEO you will be unhappy and a loser in life. Many teachers act like every adult in the USA has a college degree and that people who don't have a degree are lazy, and unmotivated. Well, approximately 30% of adults in the US have a degree, does that mean 70% of US adults have limited career opportunities, are unmotivated, and "ignorant"? If "higher salary with education" is the argument, there are some independent contractors, prison guards, restaurant managers, licensed home cleaners, garbage disposal owners, gardeners, among others who do make a good salary and are able to provide their family a good lifestyle. I remember one time in French class, the class began to get off task and visiting, and then the teacher yelled and said "LISTEN TO ME OR ELSE YOU'LL BE CLEANING PEOPLE'S HOUSES AND FLIPPING BURGERS!". A) There are plenty of people who are successful without learning French since it's not practical in the USA, and B) The teacher completely degraded people whose occupations it is to clean homes or work at a fast food restaurant. Plus, fast food managers do make decent salaries - about the same as school teachers. Was society so hierarchical about jobs 30+ years ago? Were people with "simple minded" jobs so looked down upon? Not every young person wants an occupation that requires a degree and there some people who don't have the capacity to complete college. Is it really practical for a kid who wants to be a house painter or exterminator to go to college? Plus, do you really think a person with an IQ of 95 can successfully obtain an a Masters or PhD? Some people don't obtain a degree because their career interest doesn't need it and some people just don't have the capacity. It's not right to knock people because of those reasons.

Tax considerations: hiring "household" employees? I'm needing to hire and pay some people to sit with my elderly mother in a nursing home, since she has had a stroke and can't easily communicate to the nursing home staff on her own behalf. (Basically these people will act as secondary caregivers and patient advocates.) I'll be acting as my mother's Power of Attorney (yes, I have the legal paperwork) in handling everything and using her savings to pay for these people's services. Will I need to get a Federal Tax ID (as my mother's representative) in order to withhold Federal, State, Medicare and so on? Will I need to pay for unemployment compensation, workman's compensation, etc.? And what are the differences between a "household" employee and other employees (I know there are some)? The problem with going through agencies is that they cost rather much more than hiring individuals. My mother's finances are very limited and there is no telling how long she may live. We must be very frugal with this. I need answers to the questions as I have posed them, not suggestions for alternative solutions. I have already done all my homework there, but taxes are a big unknown to me. Thanks much for any help given. By the way, I cannot treat these people as independent contractors. For reasons see http://www.accountingpartners.com/irschecklist.shtml Useful and interesting answers (finally) ... thanks to all. Since I can't reasonably treat these people as independent contractors (by the 20 point guidelines -- and I take a large risk if doing so) and they may not be considered "household" employees, AND the nursing home will certainly not provide any warrantee or protection, even if I pay them for it, it APPEARS to me that my only other options would be to either hire them through an agency, or set up a corporation (like an LLC) to pay them. Does this analysis seem reasonable?

How much will a hospital discount the bill if I prepay it? My husband and I are wanting to start a family. We are both independent contractors so we have to get our insurance on our own. We have health insurance but due to the Health Care Reform Act that was passed in September, we are not able to add Maternity coverage to our current plan. The plan that it is offered on is much more expensive and no where close to the same amount of coverage. So we are considering paying for the birth out of pocket. (We do not qualify for Medicaid and I haven't been able to find any stand alone maternity coverage plans.) We are in the position where we could pay for the birth in cash ahead of time. Does anyone have an idea of how much we could reasonably expect the hospital to discount the bill if we did this? Any suggestions on how to negotiate the bill? About how much does it cost for a delivery? We are in Indianapolis. I'm new to all of this so any suggestions are greatly appreciated!

What does this contract mean? PERSONAL MANAGEMENT CONTRACT I desire to obtain your advice, counsel and direction in the development and enhancement of my artistic and theatrical career. The nature and extent of the success or failure of my career cannot be predetermined and it is therefore my desire that your compensation be determined in such manner as will permit you to accept the risk of failure and likewise benefit to the extent of my success. In view of the foregoing we have agreed as follows: I do hereby engage you as my personal manager for a period of years from date. As and when requested by me during and throughout the term hereof you agree to perform for me one or more of the services as follows: advice and counsel in the selection of literary, artistic and musical material; advice and counsel in any and all matters pertaining to publicity, public relations and advertising; advice and counsel with relation to the adoption of proper format for presentation of my artistic talents and in the determination of proper style, mood, setting, business and characterization in keeping with my talents; advice, counsel and direction in the selection of artistic talent to assist, accompany or embellish my artistic presentation; advice and counsel with regard to general practices in the entertainment and amusement industries and with respect to such matters of which you may have knowledge concerning compensation and privileges extended for similar artistic values; advice and counsel concerning the selection of theatrical agencies and persons, firms and corporations to counsel, advise, seek and procure employment and engagements for me. You are authorized and empowered for me and in my behalf and your discretion to do the following: approve and permit any and all publicity and advertising; approve and permit the use of my name, photograph, likeness, voice, sound effects, caricatures, literary artistic and musical materials for purposes of advertising and publicity and in the promotion and advertising of any and all products and services; execute for me in my name and/or in my behalf any and all agreements, documents and contracts for my services, talents and/or artistic literary and musical materials, collect and receive sums as well as endorse my name upon and cash any and all checks payable to me for my services, talents and literary and artistic materials and retain therefrom all sums owing to you; engage, as well as discharge and/or direct for me, and in my name theatrical agents and employment agencies as well as other persons, firms and corporations who may be retained to obtain contracts, engagements or employment for me. The authority herein granted to you is coupled with an interest and shall be irrevocable during the term hereof. I agree to at all times devote myself to my career and to do all things necessary and desirable to promote my career and earnings therefrom. I shall at all times engage proper theatrical agencies to obtain engagements and employment for me and I agree that I shall not engage any theatrical or employment agency of which you may disapprove. It is clearly understood that you are not an employment agent or theatrical agent, that you have not offered or attempted or promised to obtain employment or engagements for me that you are not obligated, authorized or expected to do so. This Agreement shall not be construed to create a partnership between us. It is specifically understood that you are acting hereunder as an independent contractor and you may appoint or engage any and all other persons, firms and corporations throughout the world in your discretion to perform any or all of the services which you have agreed to perform hereunder. Your services hereunder are not exclusive and you shall at all times be free to perform the same or similar services for others as well as engage in any and all other business activities. You shall only be required to render reasonable services as and when reasonably requested by me. Due to the difficulty which we may have in determining the amount of services to which I may be entitled, it is agreed that you shall not be deemed to be in default hereunder until and unless I shall first deliver to you a written notice describing the exact service which I require on your part and then only in the event that you shall thereafter fail for a period of fifteen consecutive days to commence the rendition of the particular service required. You shall not be required to travel or to meet with me at any particular place or places except in your discretion and following arrangements for costs and expenses of such travel. In compensation for your services I agree to pay to you, as and when received by me, and during and throughout the term hereof, a sum equal to percent of any and all compensation, sums and other things of value which I may receive as a result of my activities in and throughout the entertainment, amusement, musical recording and publishing industries, including any and all sums resulting from the use of my artistic talents and the results and proceeds thereof and, without in any manner limiting the foregoing, the matters upon which your compensation shall be computed shall include any and all of my activities in connection with matters as follows: motion pictures, television, radio, music, literary, theatrical engagements, personal appearances, public appearances, in places of amusement and entertainment, records and recordings, publications, and the use of my name, likeness and talents for purposes of advertising and trade. I likewise agree to pay you a similar sum following the expiration of the term hereof upon and with respect to any and all engagements, contracts and agreements entered into during the term hereof relating to any of the foregoing, and upon any and all extensions, renewals and substitutions thereof. In the event of any dispute under or relating to the terms of this agreement it is agreed that the same shall be submitted to arbitration to the American Arbitration Association in (Insert New York City or Los Angeles) and in accordance with the rules promulgated by the said association. In the event of litigation or arbitration the prevailing party shall be entitled to recover any and all reasonable attorney's fees and other costs incurred in the enforcement of the terms of this agreement. This agreement shall be deemed to be executed in the State of and shall be construed in accordance with the laws of said State. In the event any provision hereof shall for any reason be illegal or unenforceable then, and in any such event, the same shall not affect the validity of the remaining portions and provisions hereof. This agreement is the only agreement of the parties and there is no other or collateral agreement (oral or written) between the parties in any manner relating to the subject matter hereof. If the foregoing meets with your approval please indicate your acceptance and agreement by signing in the space hereinbelow provided. Very truly yours, ____________________________________________________ (Artist) I DO HEREBY AGREE TO THE FOREGOING Manager___________________________ Date:_____________________________

Wow! People really wanna know a lot of stuff here! What I want to know is...? What would you accept for free if I knocked on your door? I'm an Independent Contractor and I need to ask people for their business. I don't have a lot to spend, but I look forward to doing this... I love giving stuff away. Be for real, please. (...And PLEASE do NOT say anything that would be illegal or obscene. Act your age, not your shoe size ~ LOL ~ Old school attitude adjuster!) Thank you. Best answer will get the product in the mail in 3 weeks, plus 10 pointeroos!!

any insight to these issues? can any one analyse the nature of the behaviour on the part of employees(working under a contract of services) or independent contractors(working under a contract for services)which will make employers liable for their negligent acts.

I need information about FETCH Pet Care? Generally when professionals are engaged in litigation they don't leak information, due to respect for the legal process. Apparently as other posts suggest, corporate has taken that step. In response to queries by other NJ franchises--Yes , 2 franchises, Greater Wayne-East Hanover and Somerset Hills-Long Valley, are joined in a law suit against Fetch and Paul Mann. In addition, at this point, one—Greater Wayne is being audited by the state of NJ. Contrary to buzz, the case has not been moved to California. It is before the Appellate Court of NJ. Paul Mann and Fetch were served with complaints on the following counts: First Count: Breach of Contract Second Count: Breach of Implied Covenant of Good Faith and Fair Dealing Third Count: Fraud and Misrepresentation Fourth Count: Violation of the Franchise Practices Act Fifth Count: Violation of the New Jersey Consumer Fraud Act In order to determine the integrity, stability and future of Fetch, these are just a few of the questions/requests put to Paul Mann and Fetch via attorney: Paul Mann set forth in March, 2010 that the 2009 FDD had been completed, and according to All Business Website, which gave Fetch the "Full Disclosure Award" all financial performance has been disclosed. Please make that available. The FDD received [by Greater Wayne and Somerset Hills] in May of 2009 prior to signing the Franchise Agreement was dated November 2008. Based on FDD guidelines, shouldn't they have received an FDD dated March, 2009? Why is there a major discrepancy in the financial declarations of Fetch, which are represented to be 6.25 million dollars in the media and only 1.3 million dollars with reported losses in legal papers forwarded to Brooks and Hughes? Has Fetch reported this 1.3 million dollars with respect to reported losses to all Fetch franchisees? Has it been disclosed to prospective investors and prospective franchisees and/or the media? Does Paul Mann assert that the Fetch "successful" independent contractor model he represented in May of 2009 is the same model that he is representing today? When was Paul Mann first aware of issues pertaining to the independent contractor model that would affect franchisees? When did Paul Mann start refining the independent contractor model and why? When was the newly refined independent contractor model deemed to be successful, and what benchmarks, proofs, and time periods were used to determine the success and viability of this new model? Paul Mann has himself stated that if the company has to pay 100% of the rescission money it owes, the company would be devastated. Has Paul Mann indicated to franchises to keep current financial and legal issues quiet in order to attract investors? How many active, viable franchises exist at this time? How many franchises have closed their doors in the past 2 years and why? To these inquiries and many others, Paul Mann responded that he is under no obligation to make disclosure. So much for transparency, good faith, fair business and truth. _

Is there any difference in the ones who employ illegals and the ones who aid and abet them? We have many who are breaking the law by employing illegals, many do not know it because of the document fraud. Then there are these who aid and abet illegals who are not being charged. Ones who marry illegals, churches, racist groups such as la raza etc... Why are we not going after these who are encouraging illegals to remain? Should there be more enforcement on these who do aid and abet or harbor illegals? Are they just as guilty if not more guilty than the ones who hire them? _______________________________________________________________________________________________________________________________________________________________________ Federal Immigration and Nationality Act Section 8 USC 1324(a)(1)(A)(iv)(b)(iii) "Any person who . . . encourages or induces an alien to . . . reside . . . knowing or in reckless disregard of the fact that such . . . residence is . . . in violation of law, shall be punished as provided . . . for each alien in respect to whom such a violation occurs . . . fined under title 18 . . . imprisoned not more than 5 years, or both." Section 274 felonies under the federal Immigration and Nationality Act, INA 274A(a)(1)(A): A person (including a group of persons, business, organization, or local government) commits a federal felony when she or he: * assists an alien s/he should reasonably know is illegally in the U.S. or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or * encourages that alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way, or * knowingly assists illegal aliens due to personal convictions. Penalties upon conviction include criminal fines, imprisonment, and forfeiture of vehicles and real property used to commit the crime. Anyone employing or contracting with an illegal alien without verifying his or her work authorization status is guilty of a misdemeanor. Aliens and employers violating immigration laws are subject to arrest, detention, and seizure of their vehicles or property. In addition, individuals or entities who engage in racketeering enterprises that commit (or conspire to commit) immigration-related felonies are subject to private civil suits for treble damages and injunctive relief. Recruitment and Employment of Illegal Aliens It is unlawful to hire an alien, to recruit an alien, or to refer an alien for a fee, knowing the alien is unauthorized to work in the United States. It is equally unlawful to continue to employ an alien knowing that the alien is unauthorized to work. Employers may give preference in recruitment and hiring to a U.S. citizen over an alien with work authorization only where the U.S. citizen is equally or better qualified. It is unlawful to hire an individual for employment in the United States without complying with employment eligibility verification requirements. Requirements include examination of identity documents and completion of Form I-9 for every employee hired. Employers must retain all I-9s, and, with three days' advance notice, the forms must be made available for inspection. Employment includes any service or labor performed for any type of remuneration within the United States, with the exception of sporadic domestic service by an individual in a private home. Day laborers or other casual workers engaged in any compensated activity (with the above exception) are employees for purposes of immigration law. An employer includes an agent or anyone acting directly or indirectly in the interest of the employer. For purposes of verfication of authorization to work, employer also means an independent contractor, or a contractor other than the person using the alien labor. The use of temporary or short-term contracts cannot be used to circumvent the employment authorization verification requirements. If employment is to be for less than the usual three days allowed for completing the I-9 Form requirement, the form must be completed immediately at the time of hire. An employer has constructive knowledge that an employee is an illegal unauthorized worker if a reasonable person would infer it from the facts. Constructive knowledge constituting a violation of federal law has been found where (1) the I-9 employment eligibility form has not been properly completed, including supporting documentation, (2) the employer has learned from other individuals, media reports, or any source of information available to the employer that the alien is unauthorized to work, or (3) the employer acts with reckless disregard for the legal consequences of permitting a third party to provide or introduce an illegal alien into the employer's work force. Knowledge cannot be inferred solely on the basis of an individual's accent or foreign appearance. Actual specific knowledge is not required. For example, a newspaper article stating that ballrooms depend on an illegal alien work

Cumulative voting is a method of voting designed to allow minority shareholders representation on the board of 18. Damages awarded in a shareholder's derivative suit are paid to the shareholder who filed the suit. (Points: 4) True False 19. Delivery of intangible personal property must be done by symbolic delivery. (Points: 4) True False 20. A gift made during one's lifetime is a gift causa mortis. (Points: 4) True False 21. A gift made to a dying donee is a gift inter vivos. (Points: 4) True False 22. In a bailment, possession of the property is transferred to the bailee. (Points: 4) True False 23. In a bailment, title to the property is transferred to the bailee. (Points: 4) True False 24. For an effective bailment, the bailed property must be physically delivered to the bailee. (Points: 4) True False 25. A gratuitous bailment is one in which consideration is not required. (Points: 4) True False 26. Regional Bank wants to perfect its security interest in timber owned by Standard Lumber, Inc. Most likely, a financing statement should be filed with (Points: 4) the local chamber of commerce. the county clerk. the federal loan officer. the secretary of state's office. 27. Fine Furniture Store sells household consumer goods. To create a purchase-money security interest, Fine Furniture must (Points: 4) assign, to a collecting agent, a portion of its accounts payable. assign, to a collecting agent, a portion of its accounts receivable. extend credit for part or all of the purchase price of the goods. refer purchasers to a third-party lender. 28. Joyce works for Kappa Services Corporation as an independent contractor, and not as an employee, if (Points: 4) Joyce says that she works as an independent contractor. Joyce works on a permanent basis. Kappa does not control Joyce's work. Kappa withholds taxes from its payments to Joyce. 29. Holly takes temporary leave from her job at Interstate Assembly Company to care for her new baby. When she attempts to return to work, Interstate refuses to reinstate her. Under the Family and Medical Leave Act, Holly may be entitled to (Points: 4) damages only. damages or job reinstatement only. double damages, job reinstatement, a promotion, and more. nothing. 30. Standard Company denies a promotion to Tony, a member of a minority, when he fails to pass a required test. Few members of minorities have passed the test. The number of promoted employees who are members of minorities does not reflect their percentage in the local labor market. In a suit against Standard, if Tony can show a connection between the test and the number of promoted minority members, (Points: 4) it must be proved that Standard had discriminatory intent. it must be proved that Standard has other discriminatory practices. it must be proved that the test had a discriminatory purpose. no evidence of discriminatory intent is necessary. 31. Ken, who is Hispanic, applies for a job at Local Plant, Inc. The interviewer says that Local Plant does not hire Hispanics. This is (Points: 4) impermissible discrimination on the basis of race. permissible discrimination because it is an honest response. permissible discrimination because it occurs before employment. permissible discrimination because "Ken" is not an Hispanic name. 32. Macro Corporation replaces Neal, a fifty-two-year-old employee, with Olivia. Neal files a suit against Macro under the Age Discrimination in Employment Act of 1967. To establish a prima facie case, Neal must show that he was discharged under circumstances that give rise to (Points: 4) a certainty of discrimination. an impossibility of discrimination. an inference of discrimination. an unlikelihood of discrimination. 33. Eagle Equipment Corporation discharges Jay, who then sues Eagle for employment discrimination under Title VII of the Civil Rights Act of 1964. Eagle learns that Jay lied on his job application and argues that, had Eagle known of the lie, it would have fired him. This is (Points: 4) an affirmative action defense. a bona fide occupational qualification defense. a business necessity defense. no defense. 34. Amy wants to go into the business of construction contracting. Among the reasons that would probably convince Amy to set up her business as a sole proprietorship would be (Points: 4) its greater organizational flexibility. its limited liability. its perpetual existence. the ease of transferring the business to other family members. 37. Sandy is a limited partner in Total Enterprises, a limited partnership. To avoid personal liability for partnership obligations, Sandy must not (Points: 4) acquire an interest in the firm. contribute property to the firm. engage in activities independent of the firm's business. participate in the firm's management. 38. Dan is considering forms of business organization for his financial advisory firm. Like most states, Dan's state requires that to form a limited liability company, he must file with a central state agency (Points: 4) articles of certification. articles of formation. articles of organization. no specific documents. 39. Web Services, LLC, is a member-managed limited liability company. If the law in Web's state is like the law in most states, unless the members have agreed otherwise, decisions are made by (Points: 4) majority vote. minority vote. plurality vote. seniority vote. 40. Omega Sports Corporation licenses its trademark to Personality Products, Inc., to use in selling caps, sweatshirts, and similar goods. This is (Points: 4) a franchise. an entrepreneur. a principal-agent relationship. a sole proprietorship. 41. Jill and Kelly are architects and members of Jill & Kelly, P.C., a professional corporation. Jill supervises Lucy, an employee of the firm. As a member, Jill (Points: 4) is personally liable for any tort committed by Kelly. has limited liability for any of Kelly's acts of malpractice. has no liability for any torts committed by Kelly or Lucy. may be personally liable for malpractice committed by Lucy. 42. Stan is a registered agent for Transport, Inc., which incorporated in Utah. As a registered agent, Stan (Points: 4) agreed to buy stock in Transport before it existed. applied to Utah on behalf of Transport to obtain its corporate charter. does business for Transport in Utah. receives legal documents on behalf of Transport. 43. Lou and Mary act as the incorporators for National Corporation. After the first board of directors is chosen, subsequent directors are elected by a majority vote of National's (Points: 4) board of directors. incorporators. officers. shareholders. 44. Bart and Cary are directors of Digital Designs, Inc. Voting by Bart and Cary at corporate directors' meetings (Points: 4) may be cumulative. may be done by proxy in all states. must be done in person. all of the above. 45. Irma, Jim, and Kelly are the directors of Liberty Corporation. Liberty has nine officers and forty-six shareholders. Dividends are ordered by the firm's (Points: 4) board of directors. incorporators. officers. shareholders. 46. Visual Play Company makes DVD players. Visual Play is like most corporations in that its officers are hired by the firm's (Points: 4) board of directors. incorporators. other officers. shareholders. 47. Adam and Beth are officers of Computer Products Corporation. As corporate officers, the rights of Adam and Beth are (Points: 4) determined by their employment contracts. specified in state corporation statutes. the same as those of the directors. the same as those of the shareholders. 48. Applied Innovations, Inc., has thirty-five shareholders. The minimum number that must be present at a meeting for a shareholders' vote is (Points: 4) a proxy. a quorum. eighteen. thirty-five. 49. Tom is a shareholder of United Company. As a shareholder, Tom does not have (Points: 4) a right to compensation. dividend rights. inspection rights. preemptive rights. 50. April owns six 1967 Ford Mustangs in fee simple. April can (Points: 4) use the cars as she chooses, but not dispose of them or transfer them. use or dispose of the cars, but not transfer them. use or transfer the cars, but not otherwise dispose of them. use, transfer, or dispose of the cars, as she chooses.

This is a relationship where an agent represents a principal ? 3 With this, the principal would have to reimburse the agent for any legal expenses incurred when defending himself in a lawsuit; the agent also has to do this for the principal, if (because of his actions) the principal incurs legal costs 23 Probably the most significant thing you look at to determine if a worker is an employee or independent contractor is how much _____ the employer has over the worker 24 A defense that an employer may have if being sued for employment discrimination is the “_____ acquired evidence doctrine.” The argument is, “Yeah, I discriminated, but I found out later that I had good legal grounds to fire him/her anyway.” 25 The federal agency where you would file a claim of discrimination against an employer (abbreviation; 4 words) 26 Under the old standard with Affirmative Action (e.g., the Bakke case), the courts would use “intermediate scrutiny” to make sure there was no reverse discrimination. Modernly (e.g., the Adarand case) the courts use a more stringent scrutiny to make sure there is no reverse discrimination. This is called “_____ scrutiny” by the courts 27 With this “compensation” insurance, purchased by the employer, employees are paid for any job-related injuries. -NOTE that it is “ers,” not “mens”! 4 According to an old maxim in agency law, if the agent has had _____ about something, “everything the agent knows … the principal also knows” (even if the agent never tells the principal). 5 Under the ADA, employers cannot discriminate against people with disabilities; they must try to make a reasonable _____ to meet the needs of the disabled worker (but can apply for an exemption by claiming an undue hardship) 6 This is a defense to a charge of discrimination in employment; when the discrimination is essential to a job. E.g. editor of a men’s magazine can hire only male models (abbreviation; 4 words) 8 This kind of agent’s authority is implied where a 3rd party reasonable believes that an “agent” has authority to act, (even though this party really has no authority). 9 Ordinarily, an agent cannot be sued if his principal breaches a contract, however if there is an undisclosed or partially disclosed _____, the agent CAN be sued by a third party 1 Sexual harassment where one is bargaining “this for that“ is called “_____ pro quo” 2 An agreement whose terms are expressed in a document that is located inside the box in which goods are shipped is called a “_____ -wrapped agreement” 12 The “_____ and Medical Leave Act “allows family members to take up to 12 weeks of Unpaid leave each year for serious injuries or illness, etc. NOTE: in 2003, California changed this to “up to weeks of PAID leave” 14 Can be adverse “impact” (unintentional) or adverse “treatment” (intentional) actions … resulting in discrimination. 16 The relationship that the agent has with the principal is one of being a _______; a position of very close trust 17 With this independent kind of worker, the worker is responsible for his own torts; the employer cannot be sued for torts committed by this worker 19 The “___ Discrimination in Employment Act” says employers cannot discriminate against an employee if the employee is 40 years of age or older 20 “Affirmative _____” is a job-hiring policy that gives special consideration to protected classes in an effort to overcome effects of past discrimination 21 _____ or insanity of the principal or agent automatically terminates the ordinary agency relationship 22 If an agency is terminated, the agent’s authority continues until the principal gives ______ to the agent that the agent’s authority has been taken from him/her

I get paid less than minimum wage? i live in Ohio, minimum wage here is 7.00, i work for a small gym doing daycare for 6.15 (without taxes taken out) under an "independent contractor" contract...and i also do receptionist work here under and i'm paid minimum wage 7.00 with my taxes being taken out...so i have 2 differnt positions here for 2 different wages...someone at work said they briefly read over the Fair Labor Standards Act and it kind of explained how its legal...but all i can find online is that it's illegal? can some one tell me how its legal to get paid less than minimum wage without taxes taken out in OHIO, is it because i'm under independent contractor???? serious answers only please

What is "new" about AZ's immigration ENFORCEMENT law? U.S. Government Law Federal Immigration and Nationality Act Section 8 USC 1324(a)(1)(A)(iv)(b)(iii) "Any person who . . . encourages or induces an illegal alien to . . . reside . . . knowing or in reckless disregard of the fact that such . . . residence is . . . in violation of law, shall be punished as provided . . . for each illegal alien in respect to whom such a violation occurs . . . fined under title 18 . . . imprisoned not more than 5 years, or both." State of Arizona Law AZ SB 1070, The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States. ARS 23-212.01. Intentionally employing unauthorized aliens; prohibition; false and frivolous complaints; violation; classification; license suspension and revocation; affirmative defense. "An employer shall not knowingly employ an unauthorized alien... when an employer uses a contract, subcontract or other independent contractor agreement to obtain the labor of an alien in this state... knowingly contracts with an unauthorized alien or with a person who employs or contracts with an unauthorized alien... violates this subsection." Read it before you rip it: Federal Law: http://codes.lp.findlaw.com/uscode/8/12/II/VIII/1325 AZ Law: http://www.azleg.gov/legtext/49leg/2r/bills/sb1070s.pdf

What has Obama done for America so far? I mean, besides: 1.American Recovery and Reinvestment Act has created 2.1 million jobs (as of 12/31/09). 2.Ended previous policy of not regulating and labeling carbon dioxide emissions 3.Ended previous policy of offering tax benefits to corporations who outsource American jobs; the new policy is to promote in-sourcing to bring jobs back 4.Ended previous policy on torture; the US now has a no torture policy and is in compliance with the Geneva Convention standards 5.. Launched Recovery.gov to track spending from the Recovery Act, an unprecedented step to provide transparency and accountability through technology. 6.Ended previous practice of protecting credit card companies; in place of it are new consumer protections from credit card industry’s predatory practices 7.Ended previous “stop-loss” policy that kept soldiers in Iraq/Afghanistan longer than their enlistment date 8.Energy producing plants must begin preparing to produce 15% of their energy from renewable sources 9.Established a National Performance Officer charged with saving the federal government money and making federal operations more efficient 10.Established a new cyber security office 11.Expanded the SCHIP program to cover health care for 4 million more children 12.Expanding vaccination programs 13.Families of fallen soldiers have expenses 14.. Provided the Department of Veterans Affairs (VA) with more than $1.4 billion to improve services to America’s Veterans. 15.Federal support for stem-cell and new biomedical research 16.Funds for high-speed, broadband Internet access to K-12 schools 17.Responded with compassion and leadership to the earthquake in Haiti 18.Immediate and efficient response to the floods in North Dakota and other natural disasters 19.. Launched Business.gov – enabling conversation and online collaboration between small business owners, government representatives and industry experts in discussion forums relevant to starting and managing a business. Great for the economy. 20.Improved housing for military personnel 21.Improved conditions at Walter Reed Military Hospital and other military hospitals 22.Changed failing war strategy in Afghanistan. 23.Improving benefits for veterans 24.Increased infrastructure spending (roads, bridges, power plants…) after years of neglect 25.Donated his $1.4 million Nobel Prize to nonprofits. 26.Increasing opportunities in AmeriCorps program 27.Provided tax credits to first-time home buyers through the Worker, Homeownership, and Business Assistance Act of 2009 to revitalize the U.S. housing market. 28.Increasing pay and benefits for military personnel 29.Increasing student loans 30.Instituted a new policy on Cuba, allowing Cuban families to return “home” to visit loved ones 31.Cracked down on companies that deny sick pay, vacation and health insurance to workers by abusing the employee classification of independent contractor. Such companies also avoid paying Social Security, Medicare and unemployment insurance taxes for those workers. 32.Limited salaries of senior White House aides; cut to $100,000 33.Limits on lobbyists’ access to the White House Here's one for TheBaron: 34. Be the first president in the history of the United States to force Israel to abide by his orders.

Have you received an email from Barry Reeds barryreeds@yahoo.com Testokis Inc.? If you have, please do not respond to the email as this is a fraudulent scheme aimed at getting contact information and bank information from you. There is no such company as Testokis, Inc!!!! DO NOT RESPOND. Contact the FBI, or your state attorney general. These schemes are exactly the ones shown on "how to catch an identity thief." Here is the email I received . . Dear XXXXX, Your application has been reviewed and your zeal is deemed appropriate for the tasks of a mystery shopper. You are hereby offered the opportunity work for Testokis Inc. You have been assigned Staff ID "TXXXXXX". This should be quoted when sending a report to us. Testokis Inc. is hired by restaurants, retail businesses and other service businesses to help them determine how the consumers perceive the quality of their services and products. We send shoppers anonymously into their locations to order meals in restaurants, make purchases in a retail establishments or make inquiries about service businesses. The shoppers act like normal customers. After the visit, the shoppers send in reports, and comment about the events that happened during the visit. The information must be objective and should contain only the facts about the visit.. REMUNERATION: You will be provided with mobilization fee when a task is assigned to you. This will enable you to carry out the tasks as a normal shopper would.You will be entitled to a flat fee of $200 for every task.You would also have to yourself whatever you shop for during the tasks assigned to you. TERMS: * Please bear in mind that tasks could be assigned to you as frequent as 5 times in a month. * If you decide to become a Teskosis Inc. shopper, you would be an independent contractor. * You would have the option to accept or decline any assignment we offer you. * However, if you do accept an assignment, you must fulfill the requirements of the assignment according to our instructions. * Once you accept an assignment, your report must be completed and Submitted within 24 hours after the visit. We look forward to your acceptance of the offer and a good working relationship with you. Best Regards, Barry Reeds for: (Testokis)

How should I interact with him when I see him again? I know this is a relationship etiquette question, but I'm posting it here because I'm interested to know how others in my age group would act in this situation. Most of the people who answer in the relationship category are teens and I'm in my mid twenties. To make a long story short, I've been having a pseudo-relationship with a guy who is an independent contractor at my office. He comes up about once per week, and had asked me out several times. He and I began texting (and 'sexting') and the relationship progressed when we were able to see each other (we've known and flirted with each other for a total of about 5 months before anything happened between us). We had been texting each other every day and our relationship turned sexual. He told me we have 'chemistry' and that he wants to see me again, but now this week he has been completely off the grid. He hasn't texted at all and will email occasionally, but it's just one line emails about work that end in an :) or something like that. I'm just wondering what/if something went wrong and I think I deserve an answer. I don't want to be a b***h to him when I see him next week, but I do want to ask him about why he isn't texting me and our contact has dropped to almost zero. I feel a bit hurt by it and don't know if I did or said anything wrong-- I don't think I did. Anyway, I was planning on asking him when I see him something like this: "are we not on texting terms anymore"? just to see what he says. I don't want to be rude, but then again, I don't want him to think I'm just being a passive person with no feelings. Any insight would be helpful. Thank you!

Gina has cerebral palsy, Hal has kelptomaina and both work for investment unsurance company? Gina has cerebral palsy, Hal has kleptomania and both work for investment insurance company. Considered disabled under the Americans with Disabilities Act? A.) are Gina and Hal B.) is neither Gina nor Hal C.) is Gina only D.) is Hal only 2.) Bob contracts with Computerama, Inc. to develop a new computer game. Computerama does not withhold taxes from his pay or control from his pay or control his work methods. Bob claims the game's copyright, which Computerama also claims, dispute ends up in court. The court is most likely to rule in favor of A.) Bob, because is an independent contractor B.) Computerama, because Bob is its employee C.) Computerama, because it distributes the game. D.) Bob, because he created the game.

Is this another scam? Thanks a lot!? JOB OPPORTUNITY My name is Leslie Miller, CEO of Dav Trading Stores.An establishment that deals in the Import and export of high carbon content charcoal (100% carbonised).We are fast developing/growing company having long experience in the business. We are looking for a trustworthy representative in the united states that will aid as a link between us and our customers in the USA and Canada. I would like to know if you are interested. Respond only if you will like to work from home part-time and get paid weekly without leaving or it affecting your present job.Retired or Unemployed Person can also benefit. (PAY IS GOOD) Actually we need someone to work for the company as a Representative/Book keeper in the USA. This is in view of our not having an office presently in the USA and Canada.The average monthly income is about 4000.00 USD.* No form of investments from you.Only required 1-2 hrs to update us online/phone on the payment sent to you by our sales partners/ customer in usa and canada.More About the Job: We have some people selling for us in the state . You know, that it's not easy to start a business in a new market (being the US and Canada ). There are hundreds of competitors, close direct contacts between suppliers and customers and other difficulties, which impede our sales promotion. We have decided to deliver the goods upfront, it's very risky but it should push up sales on 25 percent. We need to get payments for the goods supplied as soon as possible. Unfortunately we are unable to open Bank Accounts in the United US without first registering the company name. Presently with the amount of Orders we have, we cannot put them on hold. For fear of loosing the customers out rightly. Secondly we cannot cash these payments from the US soon enough, as international Checks take about 21 working days for cash to be made available.We lose about 45,000 USD of net income each month because we have money transfer delays. About 90 percent of our customers prefer to pay through Certified Cheque and Money orders based on the amount involved. YOUR TASK ARE: 1. Receive payment from Customers 2. Cash Payment at your Bank 3. Deduct 10% which will be your percentage/pay on Payment processed 4. Forward balance after deduction of percentage/pay to any of the offices you will be instructed to send payment to. Our payments will be issued out in your name and you can have them cashed in your bank or other Cashing Services.Deduct your weekly salary and forward the balance to the company via western union money transfer .We understand it is an unusual and incredible job position. This job takes only 3-7 hours per week. You'll have a lot of free time doing another job. This are the information that will be required from you if you are interested... (A) Your FULL NAMES....... (B) FULL ADDRESS DETAILS,PLEASE NO P.O BOXES..... (C) HOME AND WORK PHONE NUMBERS (INCLUDING CELL PHONE NUMBER)..... (D) AGREEMENT AND ACCEPTANCE OF THIS REQUEST.It wouldn't cost you any amount,you are to receive payments which will be sent to you by fedex or usps from our business patners, (E)Age and Gender Thanks..... (F)Occupation,,,,,,, WHAT IS YOUR BEST MEANS OF COMMUNICATION? E-mail or phone Please I would be expecting your email as soon as possible. You can also send a fax to: 44-136-1310104. YES! It is legal (article 15.3) Employment Opportunity Act. Our lawyer checked all legal provisions concerning any domestic or international law against businesses or deals of domestic monetary trade. Doing this business is 100% safe and legal. ADVANTAGES You do not have to go out as you will work as an independent contractor right from your home office.

I'm a new nurse working privAte duty.. How do I get a hospital job? Hi there I'm a new grad nurse. After searching and seArching my native NYC I found a private duty job.. I am unhappy because I am not using any skills or gaining any knowledge. I also am my own boss which sucks because I work for a staffing agency and therefore I am an independent contractor for Medicaid. I don't have anyone over me to turn to for help or to ask questions or to back me up in certain situations..... I have interviewed at 3 hospitals so far where the recruiters know my situation- I have a bsn and am lucky to have even this job as some new nurses are still searching for a year without success..the first two didn't hire me and told me to keep in touch because they will inteview me for otHer positions and the third place said they will know the secod week of January if the spots I inteviewed for will actually be open withthe new budget. What can I do to help myself get a job? I am friendly and polite I know why I wanna work at the instituions I interview at and how the hospitals mission pertains to my career goals. I have good recommendations, great grades and I dress very professionally and send hand written thank u letters. And I KNOw I don't Act bizarre or anything when I go to theSe places.. I have applied to these places over the course of 9 months and they have all gotten to know me in recruitment. One hospital I applied to 34x. What can I do to beter my chances of getting hired???

Insurance/Liability Needed? Does someone who acts as a independent contractor to provide office support: data entry is required to carry an insurance for themselves etc..?

Should we give money to poor ppl? ZAKAAT (Alms) Ramadan is the month of giving and benevolence, the Messenger was more benevolent than a falling rain. Muslims are encouraged to emulate the Messenger of Allah (saas), to assess and pay their Zakaat during the month of Ramadan, thus combining the two pillars of Islam at the same time. Zakaat (alms) is the name of what a believer returns out of his or her wealth to the neediest of Muslims for the sake of the Almighty Allah. It is called Zakaat because the word Zakaat is from Zakaa which means, to increase, purify and bless. Who Should Give Zakaat The obligation of Zakaat is mandatory on every Muslim who possesses the minimum Nisaab, whether the person is man, woman, young, old sane or insane. Because the proof of Zakaat in Al-Qur`an and Sunnah is general and does not exclude young or insane. Allah (SWT) stated that: "Of their goods take alms so that thou mightiest purify and sanctify them..." (Al-Qur`an, 9: 103) Imam Ibn Hazim said that every Muslim young or old sane or insane needs to cleanse his or her wealth with Zakaat because of generality of the evidence. Anas bin Malik reported that the Messenger of Allah (saas) said: "Trade with the money of the orphan, lest it is eaten up by Zakaat." (At-Tabraani) In another Hadith `Amru bin Shuaib related from his grandfather that the Messenger of Allah said: "Whoever is entrusted with money of an orphan should trade with it and should not leave it sitting to be used up by charity." (Tirmidhi) The point of reference in these reports is that the Messenger (saas) urged the trustee on the estate of people who due to age or other reasons cannot manage their own financial affairs, to invest it in a business that will yield a return and make it grow until they are in a position to do so themselves. For, if proper investment is not made with an ophan's inheritance, it will be depleted by charity, thus leaving the orphan with little or nothing. The Nisaab The Lawgiver, Allah has prescribed the minimum amount that is obligatory for Zakaat in different ranges of properties, and that minimum amount is known as nisaab. The reason for nisaab is to ensure that no one is forced to give Zakaat out of what he or she does not have, and that no wealth goes without Zakaat. Nisaab is also an insurance against the tyranny of the state to tax the poor and or the neediest as is the case in many countries. Nisaab is a reference point for the average Muslim who is not sure whether he possesses the minimum wealth on which Zakaat is obligatory. The wealthy need not worry about the Nisaab. Zakaat is obligatory on their entire wealth and must be paid out at the end of financial year that they set for their Zakaat. The Nisaab will not be valid unless it fulfills two conditions: 1) The amount that has reached Nisaab must be the excess or surplus known as "faadil" from one's essential needs such as food, clothing, housing, vehicles, tools and machinery that is used in business. The essentials for living are exempted from Zakaat. Although what constitutes nisaab may change from one country to another, the amount that is needed for the basic needs of living in different countries is very similar, because the market place determines the prices, whether it is an official market or a non-official market. In the poorest countries people do without or live below the poverty standard, and that is why many go hungry or without basic essentials. However, we must realize that Zakaat is an act of worship (ebadah) like Salaat. The element of intention (niyyah) is necessary, and we should not overly rely on state agencies to determine for us the requirements of our religious duty. The so called the "consumption basket" (that is poverty level as determined the social security administration which are updated every fiscal year) may not be the same as what Islam considers minimum Nisaab. In the industrialized countries, the consumption basket may include items that are not necessarily essential, such as entertainment, extra clothing, variety of food, eating in restaurant or eating at home, owning more than one car as opposed to having three cars in the driveway, drinking water as opposed to juices, eating regular food or special "health" food. This is why I believe it is essential that we do not lose site of the fact that Zakaat is ebadah of wealth, like salaat and fasting. Non Muslims may consider all the things mentioned above as essentials while Muslims will not. Indeed, no Muslims in good standing will attempt to hide behind the label of consumption basket so as to evade Zakaat. Nisaab eliminates the possibility of injustice or unfair treatment of the Zakaat payer. To suggest that if we do not follow the rules of International Monetary Fund or the arbitrary figures of social security administration or department of agriculture we will be doing injustice to the Zakaat payer is ludicrous. 2) Nisaab must mature, that is the money is not liable for Zakaat unless it has remained a full year in the possession of a person. This is the understanding of the majority of the scholars. Imam Abu Hanifah (raa) said: "What should be considered is the existence of nisaab at the beginning and the end of the Zakaat year set by the payer". It does not matter if the nisaab money increases or decreases during the calendar year, as we will explain later. This condition does not include farm produce, for it is due on the day it is harvested. Allah (SWT) stated: "... But render the dues that are proper on the day that the harvest is gathered..." (Al-Qur`an, 6: 141) According to Imam Al-`Abadi, (raa) Zakaat money is of two kinds: one that by its nature can not be invested and Zakaat of this category is due on the day of harvest. This includes all the farm produce that is liable for Zakaat. The other is wealth that can be invested in the hope of a good return, like cash, gold or silver, because the opportunity is there that cash in one's hand can be invested for a good return. This includes currency investment, merchandise and livestock. Their Zakaat is not due until they have matured in one full year. The proof of this condition is the Hadith related by Ibn `Umar that the Messenger of Allah (saas) said: "He who acquires property is not liable for Zakaat on it till a year passes." According to Ibn Rushd (raa) this is the understanding of the majority of scholars, including the four rightly guided Khalifahs. Zakaat Of Salaries The condition of yearly term maturity applies to the commodities on which the Lawgiver said Zakaat is due, and this includes silver, gold, modern paper currency and livestock. Paper currency is analogous to silver, therefore, it takes the case of silver. There is no Zakaat on salary, earned income from wage earners or professionals or independent contractors until such money matures in a full year. There is no such thing as paying your Zakaat on the day you receive your paycheck. What the wage earner must know is that he or she can purify that money with charity (sadaqah) anytime they cash the paycheck. Allah (SWT) states: "And in their wealth and possessions (was remembered) the right of the needy, he who asks and he who (for some reason) was prevented (from asking)." (Al-Qur`an, 51: 19). We can deduce from the concept of "yearly maturity" of wealth on which Zakaat is due as encouraging, among other things, saving on the part of the Zakaat payer, and enhances the chances for eradicating poverty, because if the poor receives his rightful share of Zakaat there will be the possibility that he can take Zakaat money and invest it and become a Zakaat payer instead of recipient. This possibility will be lost if he receives few Zakaat dollars every month. To say that the wage earner just brings his check home and spends everything on necessities and lives from check to check with nothing left over means the person is eligible for Zakaat. Using farm produce as analogous to salary for Zakaat is wrong analogy. As Imam Al-`Abadi said, these are two different categories of money. $2, 500.00 cash can be invested by the person and expect a good return whereas it will be difficult to invest a bushel of corn. It can be traded as a commodity, which is what it is. This why we must know that analogy has rules that must be followed before it is applied. Certainly the jurists are unanimous that earned income, known as almal al-mustafadah, should either be added to existing money and wait until that amount reaches maturity and then give their Zakaat; or if there is no money on hand the time one possesses this money, he or she should wait one full year before assessing it for Zakaat. Zakaat is one of the five pillars of Islam and a vital element in the religion of Islam. It is the twin sister of Salaat. In Al-Qur`an, Allah (SWT) stated: "So establish regular Prayer and give regular Alms; and obey the Messenger; that you may receive mercy." (Al-Qur`an, 24: 56) Also, "...Establish regular Prayer and give regular Alms, and loan to Allah a beautiful loan...." (Al-Qur`an, 73: 20) "And they have been commanded no more than this: to worship Allah, offering Him sincere devotion, being true (in faith); to establish regular Prayer and to practice regular charity; and that is the religion right and straight." (Al-Qur`an, 98: 5) In a famous Hadith reported by `Umar Bin Khattab (raa), the Messenger of Allah (saas) responded to Jibreel (as) and said: "... Islam is to testify that there is no deity but Allah and Muhammad is the Messenger of Allah, to perform the prayer, to pay Zakaat, to observe fasting in Ramadan, and to make pilgrimage to the house of Allah if you are able to do os...." (Bukhari, Muslim) There is consensus among Muslim scholars that it is mandatory on every believer who is financially able. Whoever knowingly denies this obligation, while he possesses the minimum amount, would be considered a disbeliever and a renegade from Islam. Whoever is stingy, or tries to cheat, is considered among the wrongdoers. Zakaat is mandatory on four categories of items. 1. Farm produce of seeds and fruits, such as wheat, barley, rice, dates, raisins, cocoa, pistachios, coffee, cashews. Allah (SWT) stated: "O you who believe, give of the good things which you have (honorably) earned, and of the fruits of the earth which We have produced for you..." (Al-Qur`an, 2: 267) Also: "... But render the dues that are proper on the day that the harvest is gathered..." (Al-Qur`an, 6: 141) Thus, these two verses and many others indicate that Zakaat is due on farm products that reached the minimum amount (nisaab). No farm product is liable for Zakaat unless it is a product that is considered as food and can be stocked or saved naturally without refrigeration. If the produce is perishable fruit, such as grapes, there is no Zakaat. But if one sells them they will pay their Zakaat on the profit earned when it matures. The nisaab is 612 kilos, which equals 1,346.40 lb. There is no Zakaat on produce that is less than this amount. If the farm produce or crops grow dependant on rainwater, or without any man's labor or irrigation, Zakaat due is one-tenth of the total. If it is grown by irrigation, then the Zakaat due is half of one-tenth of the total produce. There is no Zakaat on fruits like apples or oranges or vegetables which are perishable and need refrigeration for long storage, but they should be considered as any income if the profit earned from their sale reaches the amount of Zakaat, then Zakaat should be given. 2. Cattle, including camels, cows, sheep and goats, that are freely graze and are raised for trade and production. For Zakaat to be obligatory, the number must reach the nisaab. The nisaab of camels is five, of cows 30, of sheep and goats, 40. By freely grazing is meant the animal goes out to feed without the owner buying or bringing it feed or hay. If it is not a grazing animal, there is no Zakaat in the stock by itself. The stock will, however, be considered as articles of trade, then will be assessed for Zakaat as articles of trade when the profit earned from their sale reaches the amount by itself or in combination with other articles of the trade. 3. Merchandise and goods of trade and commerce. This includes anything that is obtained for the business of buying and selling: land, animals, food provisions, fabric, cars, spare parts, etc. This inventory is evaluated annually and assessed for Zakaat, whether the value is the same as the amount spent on it, more, or less. The owners of grocery stores, like any other business, must evaluate every item and give their Zakaat. Simple bookkeeping of inventory, orders, cash on hand, and credits, that is non-delinquent loans, will give one a good picture of the zakaatable assets. But if one is unable to account for everything in the store or shop, he should assess it according to his ability until he is sure that his conscience is clear. There is no Zakaat on what is within one's dwelling or property which includes food, drinks, furniture, houses, animals, cars, clothes and shoes. The only exception is gold and silver. There is no Zakaat on assets from rentals or lease, whether they are apartment units, taxi cabs, etc. That is, there is no Zakaat on the apartment units, buses or cars for rental like yellow cabs company or trucks for rental or equipments. But there is Zakaat on the proceeds or incomes from these rental assets if these assets reach the executable amount, either by themselves or in combination with other assets. Business Activities Many scholars are of the opinion that any business activity that brings any return to the entrepreneur or investor should be assessed for Zakaat. If the activity has a prescribed nisaab, such as gold, silver or paper currency, that nisaab is applied for Zakaat. But if the business has no declared nisaab, its nisaab is the nisaab of commerce, one reason being that most business activities are considered as commerce and because, in actual fact, it is not factitious business name, such as GM, Apple or GE that is taxed for Zakaat, it is the individual investor. We do not tax cooperations such IBM, Apple, GM or Rajihy Bank but the individual investors, share holders and owners of these corporations. Indeed, there are enough rules in Zakaat books to cover all types of business activity, be it cash or risk investment. If the business activity is analogous to commerce, it should be assessed the same rate as commerce. To subject the business to a different Zakaat rate of 10%, which is the rate of farm products instead of its correct rate of 2.5%, the rate of commerce, is unfair and unjustified. Besides, there is no proof, even a weak one, to justify this unfair arbitrary taxation. The difference between 2.5% and 10% is high. The Zakaat system is not like a state revenue collection, but Allah's `ebadah. However, if a business person decides to give more than 2.5% after deducting all the expenses including depreciation, Allah (SWT) will accept it from him. 4. Gold and silver, whether used for commerce or jewelry. Allah (SWT) states: "...And there are those who bury gold and silver and spend it not in the way of Allah: announce unto them a most grievous penalty. On the day when heat will be produced out of that (wealth) in the fire of hell, and with it will be branded their foreheads, their flanks and their backs. This is the (treasure) which you buried for yourselves: taste you, then, the (treasures) you buried." (Al-Qur`an, 9: 34-35). By hoarding is meant refusal to give it in the path of Allah, which includes Zakaat. In a hadith reported by Abu Hurairah (raa), the Messenger of Allah (saas) said: "For the owner or possessor of gold and silver who does not fulfill its obligation, on the Day of Resurrection it will be cast into sheets of fire and be branded on his forehead, side and back. Whenever it cools it is to be repeated for him in a day whose length is the length of fifty thousand years, until the judgement is rendered among the people." (Muslim). By its obligation is meant assessing it for Zakaat. In another version: "No possessor of a treasure who does not give its Zakaat." Zakaat is mandatory in gold and silver, irrespective of its form: in coins, raw or nugget, or jewelry for wearing, or for rent, because of the generality of evidence of Zakaat without any detail. In a report by Abdullah bin `Amr bin `Aas (raa), he related that a woman came to the Messenger of Allah with her daughter. On the daughter's wrist were two heavy gold bracelets. The Messenger asked her, "Do you pay Zakaat on this?" She replied, "No." The Messenger said: "Would it please you that Allah will encircle you with two bracelets of fire?" The reporter commented that she took them off and threw them down in front of the Messenger, and said: "They are for Allah and his Messenger." (Ahmed, Tirmidhi). The Messenger's wife reported that: "The Messenger entered into my house and saw in my hand a huge ring made of silver, so he asked, `What is this?' I replied, `I made them to beautify myself for you, O Messenger of Allah.' He inquired, `Do you give their Zakaat?' I said, `No,' or `Allah willing.' He said: `It will suffice you in the hellfire.'" (Abu Dawuud). Zakaat is due on gold when it reaches the amount of (nisaab), which is 20 Dinaar. According to a hadith, the Messenger said: "No Zakaat on you is due until it reaches 20 dinaar." (Abu Dawud) The Islamic dinaar (currency) is one mithqal, a unit of weight which weighs four and one quarter of a gram. Thus, the nisaab is 85 grams. This is equal to $30.00 US dollars. Similarly, there is no Zakaat on silver until it reaches five oqiyah, because the Messenger said: "There is no Zakaat on less then five oqiyah." (Muslim/Bukhari) Oqiyah is equal to forty Islamic dirhams. The nisaab is 200 dirhams. One dirham is equivalent to 595 grams. The zakaatable amount in both the gold and silver is a quarter of a tenth only. Paper Currency There is Zakaat on modern paper currency because it is equivalent to silver. During the early days of Islam, silver and gold were the currency of exchange minted into dirham for silver and dinaar for gold. Silver, not gold, had a larger circulation. Thus many scholars are of opinion that silver should be the standard for the paper currencies of today because that is more advantageous to the Zakaat payer, as it raises the minimum nisaab whereas gold lowers it. Although both metals are no longer circulated, they are still considered as a security against ever fluctuating paper money. Silver should be used as a standard to assess Zakaat annually, not paper currency, even if the currency is hard currency like the US dollar, Yen and Deutch Mark or Pound Sterling. Because these currencies are backed by political decisions that may not have anything to do with the economy, the value and strength of this paper money depends largely on all haram usury system of interest rates. Thus, the Zakaat payer should look up in the local newspaper's financial or business section for the price of silver which is currently about $3.82. per ounce. The nisaab, then, is 596 x .04=28.80 ounce multiplied by$3.82= 90.91. therefore. The nisaab is about $100.00, as of December 17, 1991. The nisaab should be based on the market value of the currency. If the money is hard currency, there will be no problem, but if the money is a non-marketable currency, like most currencies in the third world countries, the nisaab should be based on the black market, which realistically reflects the value of the currency on the money market. In any case, the silver rate should be used to assess the Zakaat. If the nisaab is determined, the zakaatable amount is 2.5%, or .025 multiplied by the amount. For instance, if the zakaatable amount is $56,000.00 it will be 56,000. x .025 = $1,400.00. Zakaat is due on gold, silver, and or paper currency, whether it is cash in hand or credit in the hands of borrowers. Zakaat is due on debts or cost of merchandize or rental money. If the borrower is a wealthy person that you know will pay back the debt, the lender (that is Halaal lending free of usury) should include that money in the assessment and give its Zakaat. However, one can delay Zakaat on a loan until he receives payment, then return its Zakaat for the past years that he was unable to assess for Zakaat. If the borrower is poor or is refusing to pay the debt, there will be no Zakaat on the money until the lender receives the money. Then he will assess it for Zakaat of one past due year, but there will be no Zakaat in the years before that. There is no Zakaat on precious stones such as diamonds, or metals such uranium, regardless of their value. Gold and silver, of course are assessed for Zakaat. However, if a person possesses any of these stones or metals, he should give their Zakaat like any other articles of trade. If a person possesses diamonds or any other precious stones as an edge against inflation or for ornaments, there will no Zakaat on these. How To Give Zakaat Zakaat may be assessed and returned in two ways: a) Make a record of all money earned, either daily or monthly, which has reached the nisaab and remains in the treasury. The Zakaat of that money would be due one year later on the same day the money was earned and reached nisaab. This means every month's income must be set aside and assessed for Zakaat and so will be the case for the rest of the months. For instance, the income of January, 1991 will be assessed for Zakaat in January, 1992, and the income of February, 1991 will be assessed for Zakaat in February 1992, etc. This method of assessing Zakaat is very difficult because it entails complete bookkeeping of daily or monthly earnings. b) The best way is to set a day or a month, preferably Ramadan, for your annual Zakaat return calendar, say Ramadan 1st, 1412. One year later on the same day Ramadan, 1413, your Zakaat is due and payable. Whatever is in the savings is due for Zakaat, regardless of whether all the amount in the savings reaches a year or not. For instance: if you have $20,000.00 in the savings account on the 1st of Ramadan, 1412 and one year later by the 1st of Ramadan, 1413 there is $50, 000.00, your Zakaat will be assessed for $50,000.00, that is: $50.000.00 x .025= $1,250.00. If, on the other hand, by the 1st of Ramadan, 1413 the amount in the savings is $15,000.00, your Zakaat will be for the amount in the savings, that is $15,000.00 x .025= $375.00. This method is the best because it is easy to assess, meets one's obligation and relieve one's conscience. The Recipient Of Zakaat Knowing who qualifies as recipient of Zakaat is an important aspect of Zakaat collection in Islam. Fortunately, Allah (SWT) has been merciful to us in that He Himself spelled out the people eligible to receive Zakaat. In Surah Tawbah He stated: "Alms are for the poor and the needy; and those employed to administer (the funds); for those whose hearts have been (recently) reconciled (to truth); for those in bondage and in debt; in the cause of Allah; and for the wayfarer: (thus is it) ordained by Allah, and Allah is full of knowledge and wisdom." (Al-Qur`an, 9: 60) In this verse Allah enumerated the people who deserve this divine welfare, and they are as follows: The poor and the needy. These are individuals, and those under their care, to live on. By the poor and needy is meant the people whose income or salaries, or whatever material goods they have, fall short of the cost of living in a given environment and economy. The poor and the needy should be given what will suffice them and their families for one full year. The needy who want to get married and have no means should be given enough for this purpose, and so, too, the student who needs money for tuition, rent, food, and books. The working poor should be given supplementary Zakaat. But the wealthy, or any person with enough income to live on should not be given Zakaat, even if they asked for it. Instead, they should be warned and admonished for asking for what does not belong to them. In a hadith reported by Abdullah bin `Umar, the Messenger of Allah (saas) stated: "A man keeps on asking others for something till he comes on the day of Resurrection without any piece of flesh on his face." (Bukhari/Muslim). This hadith indicates a humiliating appearance before Allah (SWT) that awaits a person who asks illegally. Some said: this hadith implies Allah will punish a person with the very limb, the face, that he used to impress on others to give him their money unlawfully. In another hadith reported by Abu Hurairah, the Messenger of Allah said: "Whoever asks people for their money so as to get rich, he is asking for flames of fire. It is up to him to ask for more or less (he should beware)." (Muslim) This hadith indicates the severity of the punishment, the more one asks the more punishment, the less one asks the less the punishment. In another hadith, reported by Hakeem bin Hizaam said: I begged the Messenger of Allah and he gave me. I begged again, and he gave me. I begged again and he gave me. He then said: "This money is green and sweet; he who receives it from people with a cheerful heart, Allah will bless him in it; he who receives it, with an avaricious mind would not be blessed in it. He will be like the person who eats without being satisfied; and the upper hand is better than the lower hand" (Muslim) This hadith gave an analogy between money and green, ripened fruit that people love to eat. Thus, it indicates that both are greatly loved but easily finished. For money that is easy come easy go, one must be careful about the punishment that awaits the illegal eater. If a person asks for Zakaat and there are no signs of wealth, and he does not know that he should not ask, or a person who is well and able, who can work, but does not; if these people do not know that it is not permissible for them to ask, it may be given anyway. In a hadith reported by Ahmed, Abu Dawud, and Nasa'e, two men came to the Messenger of Allah (saas) and asked for Zakaat. He looked at them closely and found them strong and able, he said, "If you want I will give you. But you should know that the wealthy or an able person who can work has no share in Zakaat" (Ahmad) Those who administer the Zakaat department, assigning people for collecting, bookkeeping, making lists of people eligible for Zakaat, and a financial calendar. These people will receive Zakaat as compensation for their work, even if they are wealthy. This does not include a person who works as an agent for one or two wealthy people to take Zakaat for himself. They should donate their time for Zakaat disbursement and do it with honesty and truthfulness. If they can not, they should be paid or rewarded for their time. In a hadith related by Abu Musa Al-Ashi`ari (raa), the Messenger of Allah said: "A trustworthy Muslim executor is the one who executes completely what has been entrusted to him of Zakaat money in good faith." (Bukhari) That is, he will give the Zakaat money to any of the eligible recipients of Zakaat. He should carry on the duty voluntarily, but if he can not distribute the money without being paid, the Zakaat payer should pay him for his work. The payment for the service of distributing Zakaat should not come out of Zakaat money. The new converts to Islam whose hearts we want to harmonize into the fold of Islam, either because their faith is weak or we are afraid of their being harmed, should be given Zakaat to strengthen their Iman or until we no longer fear their harm. The bonds person who has contracted with his master to buy himself out of bondage deserve Zakaat and should be given enough to pay off their debt to the master and be freed themselves; similarly, Muslim prisoners of war if their freedom is tied to monetary payment, deserve Zakaat sufficient enough to secure their release. On the other hand, if a pearson accidently killed someone and have no means to pay off the blood money, he should be helped from Zakaat funds. The people in debt are of two kinds: (A) The guarantor, who takes the responsibility of someone else's debt so as to reconcile the two warring parties, to extinguish the fire of fitnah between them. If the person requests Zakaat money to pay off this debt he should be given it, which will encourage him to continue in this noble cause. In a hadith reported by Qubaysah Al-Hilaaly (raa), he said I was under debt (hamaalah) and I came to the Messenger (saas) and begged him to help me pay it off. The Messenger told him: "Wait until we receive charity, so we will command that it be given to you." However, the Messenger stated: "O Qubaysah, begging is not permitted except for one of three categories of people: A man who has incurred debt (as guarantor to reconcile blood wit) for him begging is permissible till he pays that off, after which he must stop it; a man whose property has been destroyed by calamity which has smitten him; for him begging is permissible till he gets what will support life or will provide him reasonable subsistence; and a man who has been smitten by poverty, the genuineness of which should be confirmed by three knowledgeable members of his people; for him begging is permissible till he gets what will support him, or will provide him subsistence. Besides these three, Qubaysah, begging is forbidden for every other persons, and one who engages in such consumes that which is forbidden." (Muslim) (B) Whoever incurs debt and has no money to pay it back will be given from Zakaat to help pay his debt, whether the amount is large or small; or his creditor should be paid directly on his behalf, so long as it is paid off. Zakaat can be given in the path of Allah. By this is meant to finance a Jihad effort in the path of Allah, not for Jihad for other reasons. The fighter (mujahid) will be given as salary what will be enough for him. If he needs to buy arms or some other supplies related to the war effort, Zakaat money should be used provided the effort is to raise the banner of Islam. The wayfarer. This is the traveller who in a strange land runs out of money. He or she deserves Zakaat, enough money to take him back to his country, even if he is wealthy and can find someone to loan him the money. On his part, he should take with him on his trip sufficient money, if he is wealthy, so that he will not need Zakaat. Zakaat money can not be used to pay off other obligations, such as giving Zakaat money to people you are obligated to take care of by law; or Zakaat money can not be used to pay for hotel and food expenses. It is, however, permissible to give Zakaat to a wife or family member, provided it is not part of their daily living expense money, but is needed to pay off a debt for one's wife if she can not pay it. So is the case for one's parents if they can not pay their debt. Zakaat money may be given to members of the family for their expenses if one is not obligated to take care of them financially. The wife can pay off a debt of her husband with Zakaat money, because he may be among the eight eligible recipients and she is not obligated to spend on him as he is on her. The eight eligible recipients of Zakaat can be denied their right to Zakaat without proof from Al-Qur`an or Sunnah. In a hadith reported by Ibn Mas`ud, his wife Zaynab heard the Messenger of Allah order women to give Zakaat, so she asked the Messenger (saas): " O Messenger of Allah, you commanded us to give Zakaat, and I have jewelry that I wanted to assess for Zakaat, but my husband Abdullah bin Mas`ud claimed that his son deserves it more than anyone." The Messenger replied: Your husband Ibn Mas`ud is right. Your son deserves your charity more than anyone." In another hadith reported by Salman bin `Aamir, he said the Messenger of Allah said: " Charity to the poor is only charity, but charity to the rest of kind is charity and maintenance of relations (sillah)." (Nisaee) No loan should be written off as Zakaat because Zakaat is taken and given. Allah (SWT) said: "Of their goods take alms...." (Al-Qur`an, 9: 103) And in a Hadith the Messenger has been reported as saying: "Allah has mandated on you Zakaat to be taken from the wealthy and to be given to the poor." Thus, writing off debt is not taken. For instance, If you loan a person money, you can not write off that loan as a Zakaat. However, it could be written off as sadaqah charity. Furthermore, loan, delinquent or not, is considered an absent money, therefore, it should not be transacted in Zakaat. for Zakaat is assessed only in cash in hand. Besides, debt money is valued less than cash in the hand, and using that money for alms is like exchanging good money for bad. The assessor of alms should try to give his Zakaat to an eligible person, but if he makes a mistake and gives it to an ineligible person it is accepted. In a hadith related by Abu Hurairah, he said the Messenger said: "A man expressed his intention to give charity, so he came with his charity and placed it in the hand of an adulteress. In the morning the people were talking and saying charity was given to an adulteress last night. The donor said: O Allah, to thee be the Praise - charity to an adulteress! He then again expressed his intention to give charity, so he went out with it and placed it in the hand of a rich person. In the morning the people were talking and saying charity was given to a rich person. The donor said, O Allah to You be the praise - charity to a rich man! He then expressed his intention to give charity, so he went out with his charity and placed it in the hand of a thief. In the morning the people were talking and saying charity to the thief. So the man said, O Allah to You be the praise (what a misfortune that charity has been given) to the adulteress, the rich and the thief! Then someone came to him and told him your charity has been accepted. As for the adulteress the charity might become the means whereby she might restrain from fornication. The rich man might perhaps learn a lesson and spend from what Allah has given him, and the thief might thereby restrain from committing theft. (Muslim/ Bukhari) http://www.islamfortoday.com/beliefs.htm

the actual decision of the case and the legal issues? NEW SOUTH WALES SUPREME COURT CITATION: Ehsman v Nutectime International [2006] NSWSC 887 CURRENT JURISDICTION: Equity FILE NUMBER(S): 5189/05 HEARING DATE{S): 31 March 2006 DECISION DATE: 01/09/2006 PARTIES: Patricia Mary Ehsman (P/A) Nutectime International Pty Ltd (D1/R1) David Neilan Brady (D2/R2) Francis Joseph Frasca (D3/R3) David Bruce Paix (D4/R4) Timentel Pty Ltd (D5) JUDGMENT OF: Austin J LOWER COURT JURISDICTION: Not Applicable COUNSEL: R Harper SC (P/A) M J Cohen (D1-4/R1-4) SOLICITORS: McDonald Johnson (P/A) Sparke Helmore (D1-4, R1-4) CATCHWORDS: CORPORATIONS - statutory derivative action - application by 35% shareholder/director to bring derivative proceedings after company's assets were transferred to a company from which the applicant is excluded - inadequacies of proposed points of claim - whether those inadequacies prevent the court from determining the application under s 237 - distinction between personal and derivative claims - whether court is satisfied concerning good faith, best interests of company and serious question to be tried - ancillary order for applicant to indemnify company with respect to costs of derivative proceedings - considerations relating to the bringing of derivative and personal claims in single proceedings ACTS CITED: Corporations Act 2001 (Cth) ss 180-184, 232, 236-242 DECISION: See under heading "Conclusions" JUDGMENT: IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST AUSTIN J FRIDAY 1 SEPTEMBER 2006 5189/05PATRICIA MARY EHSMAN V NUTECTIME INTERNATIONAL PTY LTD & 4 ORS JUDGMENT 1HIS HONOUR: Before me is an application by the plaintiff, Mrs Ehsman, for leave under s 237 of the Corporations Act 2001 (Cth) to bring proceedings on behalf of the fifth defendant company, Timentel, by filing and serving a further amended originating process and amended points of claim. 2 , 3, 4, 5 and 6 Deleted The plaintiff's case 7The parties agree that Mr Brady and Mr and Mrs Ehsman came together in a business venture before Timentel was formed. Mrs Ehsman owned some patents for a split face wristwatch display, and she wished to exploit them commercially. Mr Brady had some marketing experience. There are disagreements about the commercial utility of Mrs Ehsman's patents, and as to the precise terms of their arrangements, which need not be resolved for present purposes. It is common ground that they respectively brought to the business of Timentel, when it was formed in 1998, the patents (such as they were) and a measure of marketing/commercial input. 8When Timentel was formed, Mrs Ehsman granted it a licence over her patents, for no consideration (although she received shares in the licensee entity). There is disputed evidence as to whether, as Mrs Ehsman asserts, she entered into the licence agreement in reliance on the assumption, encouraged by Mr Brady, that the licence would always be held by a company in which she would be a director and shareholder. The licensee's interest in the licence agreement was assignable. Mrs Ehsman claims, and the defendants deny, that it was a term and condition of the licence agreement that the licence would not be assigned by Timentel to a company in which Mrs Ehsman was not a shareholder and director. 9Initially the only shareholders were the Ehsmans and Mr Brady, and Mr Brady and Mrs Ehsman were the directors. Mr Brady's evidence is that he devoted very considerable time and effort, and expense, to travelling to Europe to negotiate for the commercial exploitation of the split face wristwatch display. According to him, the people he consulted in Europe told him that Mrs Ehsman's patents were just concepts and it would be necessary to work out the most efficacious interior wristwatch mechanisms to support the split face. That is disputed by Mrs Ehsman. But it is clear enough that Mr Brady did do some amount of developmental/marketing work in Europe, the cost of which was shared or partly shared with the Ehsmans. 10Mr Brady's evidence is that he came up with the idea of having movements in each half of the split face watch case for the forward and return hand movements, all controlled by an electronic integrated circuit, and that Mr Claude Ray, an experienced watchmaker, carried out the necessary design work. The eventual product, which he called a "hinged electronic watch", was based on ideas that were fundamentally different, he said, from Mrs Ehsman's patents. These matters are contested. 11Mr Brady said he negotiated a development agreement with Mr Ray's company, using a company with which he was associated, Renaissance Management, for that purpose. In turn he caused Renaissance Management to enter into an agreement with another company with which he was associated, DNB Global Corporation (registered in the Philippines), which made advance payments to Mr Ray's company. At a final hearing of this case it will be necessary to explore these corporate relationships and their purpose, and to understand better the nature of Mr Brady's interests. DNB Global appears to bear his initials, but there is some evidence that he is just one of five directors and is indirectly a shareholder. DNB Global is important in this case because, according to Mr Brady, it incurred substantial expenses through payments for development work, for which Timentel reimbursed it out of monies borrowed by Timentel from Mr Brady, Mr Frasca and Mr Paix. But Mrs Ehsman questions whether loans were ever in fact made by those three directors. 12Mr Brady said the development of the hinged electronic watch was very expensive and under the arrangements between them, Ms Ehsman was to contribute to that development. He alleges that she defaulted in that obligation. He claims that by March 2005 she owed and had not paid about $86,000. That is contested. According to Mr Brady, the development was eventually successful and the hinged electronic watch is protected by patents in various countries, procured at a cost to DNB Global, recoverable from Timentel. 13In about June 2002 Ms Ehsman and Mr Brady decided to bring in two other parties, namely Mr Frasca and Mr Paix. There is quite a bit of evidence, not all consistent, about the circumstances in which Mr Frasca and Mr Paix were invited into the company. What is clear is that Mr Frasca and Mr Paix joined the board of directors and acquired shares, they provided some capital, and in due course they sided with Mr Brady and against Mrs Ehsman. After they joined the board, the company's issued 100 ordinary shares were divided as follows: Mr Brady 35 shares, Mr and Mrs Ehsman 35 shares, Mr Frasca 15 shares, and Mr and Mrs Paix 15 shares. 14During 2002, it seems, Mrs Ehsman visited Europe and met with one of Mr Brady's contacts, Manuel Spode of Les Artisans Horlogers. There is conflicting evidence as to what happened at the meeting. Mr Frasca gives evidence in his affidavit that the meeting led to Mrs Ehsman being criticised by the other directors for intervening secretly without the board's authority, and for her suspicious approach. Mr Frasca also says that at a meeting he had with Mr and Mrs Ehsman in 2003, they told him that they were determined to bring Mr Brady down. These matters are also disputed. Nevertheless it appears that, some time after Mr Frasca and Mr Paix arrived on the board, if not earlier, the relationship between Messrs Brady, Frasca and Paix, on the one hand, and the Ehsmans, on the other hand, deteriorated. By now the relationship has completely broken down. 15There is a considerable amount of correspondence in evidence, and minutes of board meetings. I shall not describe this material in detail here. The correspondence shows that at least since early 2005, Mrs Ehsman has been concerned about verifying payments allegedly due by Timentel to DNB Global, and also about the financial management of Timentel more generally. The evidence is that the only bank account of Timentel has been relatively dormant at times when, the defendants allege, Timentel made payments to DNB Global. Mrs Ehsman's solicitors have written to Timentel's solicitors about these matters. 16Mr Brady claims that by about May 2005 there was a pressing need for capital for Timentel, to pay invoices to DNB Global of about $216,000 and certain other smaller debts. It appears that at this time Mr Brady, Mr Frasca and Mr Paix developed a proposal to lend Timentel up to $246,000 for a term of 60 days with interest of 17% compounding monthly, secured by a registered charge. Mrs Ehsman asked the copies of the draft loan facility and charge documents but received them only after they had been executed. A board meeting attended by Mr Brady, Mr Frasca and Mr Paix, but not Mrs Ehsman, on 9 May 2005 approved the loan proposal and authorised execution of the documents. Mr Brady, Mr Frasca and Mr Paix, acting as directors of the company, purported to authorise the company to enter into the loan facility and charge agreements in which they were the counterparties, without the consent of the other director/shareholder, Ms Ehsman. 17The defendants claim that the loan facility was drawn down and the money was used directly for payment of outstanding debts of Timentel, rather than for deposit into Timentel's bank account. Mrs Ehsman, by her solicitor, sought to verify the making of the loan but she says she has not received proper documentation. The evidence includes minutes of the board meeting of DNB Global on 18 August 2005, at which the directors of that company confirmed that the company had been paid for certain invoices, but the evidence is incomplete because, for example, the identity of the paying entity is not given. 18On 11 July 2005 Messrs Brady, Frasca and Paix as lenders made a formal notice of demand for payment to Timentel of an amount of about $247,000. But they gave the company a limited extension of time to repay. Mrs Ehsman's solicitors alleged in correspondence that any attempt to enforce the charge would render it void under s 267 of the Corporations Act, because the chargees were "relevant persons" for the purposes of that section. 19The security was not enforced but instead, at some stage it was proposed that the company would enter into an asset sale agreement and a deed of assignment of the licence, in favour of the other three directors or their vehicle, for a price supported by a valuation by Les Artisans Horlogers. In correspondence, Mrs Ehsman's solicitors endeavoured unsuccessfully to obtain information about the valuation - indeed, they approached the valuer directly without success. They alleged that the valuation did not cover all of the assets sold. They strenuously opposed the proposed transaction, on several grounds including that the transaction would be in breach of the contractual arrangements and understandings between Mrs Ehsman and the other three directors. 20Nutectime was formed in August 2005. The directors are Mr Brady, Mr Frasca and Mr Paix. The company has issued 100 ordinary shares. Mr Brady owns 60 shares, Mr Frasca owns 20 shares in Mr and Mrs Paix own 20 shares. Mr and Mrs Ehsman do not hold any shares. 21The asset sale agreement and the deed of assignment of licence were entered into by Timentel and Nutectime on 2 September 2005. The transaction was considered at a board meeting not attended by Mrs Ehsman. Messrs Brady, Frasca and Paix went through a procedure of formally disclosing their interest in the purchaser but then they proceeded, purporting to act as directors of the company, to approve the transaction. It appears that the contract was made and completion took place on the same day. The total sale price $277,000. According to Timentel's solicitors, the sale proceeds were used to pay out and discharge the charge over the company's assets. That appears to have meant that the bulk of the sale proceeds were directed to Mr Brady, Mr Frasca and Mr Paix. It is not clear from the evidence whether there was any actual movement of money. 22Up until May 2005 Mrs Ehsman had been a director and (with her husband) substantial shareholder of Timentel, which was the licensee for no consideration of her patents. On one view, the company owed a substantial amount of money to DNB Global, but it had procured substantial development work for its split face watch design. Any profits from the realisation of that development work would have come to Timentel, and Mr and Mrs Ehsman would have had a 35% interest in those profits. After 2 September 2005, Mrs Ehsman was still a director of Timentel and Mr and Mrs Ehsman remained 35% shareholders. But the company's substantial assets, and any prospect it may have had of earning profits from the development of the split face watch, had gone. Mrs Ehsman was still the licensor of her patents, but she was entitled to receive no consideration for the licence. The new licensee, Nutectime, was a company in which she had no interest, and that company had acquired Timentel's assets and any profit-making opportunity relating to the split face watch. The controllers and shareholders of Nutectime were her fellow directors and shareholders of Timentel. The draft APC and draft FAOP 23From this brief account it appears that if Mrs Ehsman could substantiate her allegations, this would be a case of self-dealing by her co-directors to her considerable disadvantage, and unauthorised diversion of a corporate opportunity. Experience shows that in such cases it is important for the plaintiff to identify with particularity the precise duties said to have been breached and the circumstances of the breach. That is important in the interests of clarity of presentation of the plaintiff's case, and to ensure that the defendant is not surprised by having to meet a case at trial different from what she had been led to expect. These considerations strongly suggest that in such a case, the plaintiff should proceed by statement of claim. Where the plaintiff is proceeding in her own right, invoking the oppression remedy, and also seeking to assert the company's rights in a derivative action, the need for clarity of pleading is especially strong. 24 Deleted 25I have endeavoured to identify those allegations that relate to some right of Timentel, and distinguish them from allegations relating to some right of Mrs Ehsman personally. In summary, for reasons given below, paras 7, 18-21, 22, 23-26, and 27-29 (and the claims to relief in paras 1-5, perhaps 7, and 8) of the draft APC are claims made on behalf of Timentel, and paras 8-16, 17, 30 and 31 (and claims to relief in para 6 and perhaps 7) are claims made by Mrs Ehsman personally. 26It is important to maintain the distinction between derivative and personal claims in the interests of clarity. But nothing in Part 2F.1A requires that a derivative action be in a separate proceeding in which no personal claims are made by the person who has carriage of the proceeding. For example, in Fiduciary Ltd v Morningstar Research Pty Ltd (2005) 53 ACSR 732 the plaintiffs were an individual and corporate plaintiffs, and leave was granted under s 237 so as to permit the individual plaintiff (who was a shareholder and officer of the corporate plaintiffs) to assert the rights of the companies in a proceeding in which he also asserted rights of his own. The combination of corporate and personal claims was not unlike the combination of claims in the present case, though the pleading was by an elaborate statement of claim. In that case, and here, the asserted derivative and personal rights arise to a large degree out of the same alleged facts. 27Here the sole plaintiff is Mrs Ehsman, and Timentel is a defendant. It is not proposed that Timentel should become a plaintiff if s 237 leave is granted, because Timentel is properly a defendant to some of Mrs Ehsman's claims. Nor is it proposed that the derivative action be constituted as a separate proceeding, because there are substantially overlapping facts concerning the derivative and personal claims, which should therefore be heard together. Section 236(2) says that proceedings brought on behalf of a company must be brought in the company's name. But there is now a substantial line of decisions holding that, despite the literal wording of s 236(2), leave under s 237 can be given where the company is a party to the proceeding as a necessary defendant in respect of other claims, without requiring the company become a plaintiff or insisting that the derivative action be brought in a separate proceeding: see especially Keyrate Pty Ltd v Hamarc Pty Ltd (2001) 38 ACSR 396, per Santow J at [18]-[19]; Metyor Inc v Queensland Electronic Switching Pty Ltd (2002) 42 ACSR 398, per McPherson JA at [14]-[15]; Charlton v Baber (2003) 47 ACSR 31, per Barrett J at [5]. 28I turn now to consider the draft APC, paragraph by paragraph. 29After preliminary allegations, para 7 of the draft APC asserts that by reason of their appointment as directors of Timentel, Mr Brady, Mr Frasca and Mr Paix owed Timentel various duties. There is a list of the standard duties of directors. The list reflects ss 180, 181, 182 and 183 of the Corporations Act, and also a duty to act honestly in the exercise of their powers and the discharge of their duties as directors (a formulation no longer found in the statute). [deleted latter part of paragraph] 30Having made allegations about the defendants' duties as directors of Timentel, the draft APC (paras 8-16) makes allegations about the licence agreement, leading to the assertion that the purported sale by Timentel to Nutectime of its rights under the licence agreement was in breach of the licence agreement. That is a personal claim by Mrs Ehsman against Timentel (and no other defendant) for breach of contract. It is not a claim for breach of any duty owed to Timentel. 31Para 17 pleads that, by reason of matters pleaded in paras 8-11, the first to fourth defendants are estopped from asserting that Timentel was entitled to sell or assign to the first defendant the rights of Timentel under the licence agreement. This was said to arise because Mrs Ehsman entered into the licence agreement in reliance on the assumption, encouraged by Mr Brady, Mr Frasca and Mr Paix, that the licence would always be held by a company of which she was a director and shareholder. Clearly the allegation of estoppel is made for the benefit of Mrs Ehsman personally rather than to vindicate some right or interest of Timentel. The document does not reveal how the allegation can be made against any defendant other than Mr Brady, given that the assumption is said to have been created and acted upon at the time of the licence agreement, which was made well before Mr Frasca and Mr Paix became involved. 32Paras 18-21 make allegations about breaches of duties owed by the other three directors to Timentel. They allege that Timentel did not receive any of the proceeds of sale of assets, or received only part of the proceeds, and Messrs Brady, Frasca and Paix received those proceeds or part of them. It is claimed that their conduct in receiving those proceeds constituted a breach of all of the duties pleaded in paragraph 7. I find it impossible to justify that claim, with respect to some of the duties identified in para 7, even taking into account the "particulars" to para 21. Moreover, the mere assertion that Timentel did not receive proceeds of sale and the other three directors did (even when the "particulars" to para 21 are added) cannot, per se, establish a breach of any of the duties identified in para 7. These allegations fall well short of a proper pleading. 33Para 22 alleges that by reason of the matters alleged in certain other paragraphs, Messrs Brady, Frasca and Paix have been unjustly enriched as a result of breach of the duties referred to in para 7. Presumably this is intended to establish a ground of recovery for Timentel. Again, the precise matters that might constitute unjust enrichment have not been adequately pleaded and, moreover, it is not easy to see why para 22 combines breach of directors' duties with unjust enrichment. 34Paras 23-26 make allegations against Nutectime, intended to support orders declaring void and setting aside the purported sale of assets or requiring Nutectime to hold the assets in trust for Timentel. These paragraphs seem to assert some entitlement to relief on the part of Timentel rather than Mrs Ehsman, although the remedies would obviously operate for her benefit as well. The precise foundation of the remedies is not clear. The drafter has not invoked the equitable principles concerning accessory liability for breach of trust with any specificity or clarity. To the extent that entitlement to the relief is said to arise out of Nutectime being "knowingly concerned in the breach" there is a suggestion of statutory accessory liability, but the statutory directors' duties do not create any accessory civil reliability for being knowingly concerned in the primary breach. There is "accessory" liability under the statute for de facto and shadow directors, but the allegations in the draft APC do not in terms invoke that liability. 35Paras 27-29 allege that the deed of charge dated 9 May 2005 is void and should be set aside because Timentel did not receive the benefit, or received only part of the benefit, of the money purported to be advanced. This seems to be the assertion of rights of Timentel rather than Mrs Ehsman personally. A deed of charge merely provides security for advances made under some other arrangement such as a loan facility agreement. It is not easy to see why the fact (if it be so) that the chargor did not receive the benefit of loan monies purported to be advanced under a loan facility agreement should, per se, lead to the consequence that the security for the loan is void. If the charge is security for money advanced under a loan facility agreement, and no money is advanced to the chargor, then nothing is secured by the charge but the charging instrument is nevertheless valid. 36Para 30 contends that the other three directors repeatedly failed or refused to furnish information to Mrs Ehsman relating to the affairs of Timentel. Particulars are given. As expressed, this is an allegation of breach of duty to Mrs Ehsman rather than Timentel. There is no allegation of any particular duty but it seems that the drafter had in mind either or both of the statutory rights of a director to gain access to certain information under ss 198F and 290, or the director's general law right of access to the information needed to discharge her fiduciary duty (eg Edman v Ross (1922) 22 SR(NSW) 351). A director seeking to assert those rights is not required to show that inspection is sought in good faith and for a proper purpose, whereas a shareholder seeking inspection under s 247A must do so. Para 30 is not clear enough. 37Para 31 asserts that, by reason of the matters asserted, the other three directors have conducted the affairs of Timentel in a manner oppressive to, unfairly prejudicial to or unfairly discriminatory against Mrs Ehsman, or contrary to the interests of the members as a whole, contrary to s 232. Mrs Ehsman has personal standing to complain under that provision. The difficulty with para 31 is that it relies globally on all of the other allegations, some of which do not seem to be pertinent (for example, the pleadings against Timentel itself based on breach of contract and against Mr Brady based on estoppel). It should be re-formulated with more precision. 38 Deleted 39The draft FAOP contains the same claims for relief as the draft APC, and therefore suffers from the defects just noted. It also contains a prayer for an order under s 237. This is inappropriate, given that the interlocutory application presently under consideration seeks a s 237 order and also leave to file the FAOP, so that the question of s 237 leave will have been addressed before the FAOP is filed. Further, in the draft FAOP the application is said to be made pursuant to ss 232, 236 and 237. Sections 236 and 237 do not need to be mentioned, for the reason just given, and s 232 appears from the draft APC to be only one of the statutory provisions under which relief is sought, the others being the various directors' duties provisions. 40My conclusion is that the draft APC and the draft FAOP are seriously defective, and therefore I shall not accede to Mrs Ehsman's application for leave to file and serve them in their present form. What is needed is a carefully considered pleading by statement of claim. However, my view is that the draft APC identifies in broad terms, though imprecisely and at times in a confused way, some derivative and personal causes of action that emerge on Mrs Ehsman's account of the evidence. The causes of action are: (A)a personal claim by Mrs Ehsman against Timentel for breach of contract arising out of Timentel's purported sale and assignment to Nutectime, sounding in damages (paras 8-16); (B)a personal claim by Mrs Ehsman against Mr Brady based the allegation that at the time of the making of the licence agreement he encouraged her to assume that the licence would always be held by a company of which she was a director and shareholder - though the appropriate remedy, if this ground is established, is debatable (para 17); (C)claims by Timentel against Messrs Brady, Frasca and Paix for breach of ss 182 and 183 and their general law duty to avoid conflicts of interest, by virtue of their self-dealing in the loan and security transactions and then the sale and assignment transactions, leading an order for an account of profit or an order setting aside the transactions, or a compensation order under s 1317H (paras 18-21 and 22); (D)a claim by Timentel against Nutectime for accessory liability under equitable principles which apply to a person who assists in a breach of fiduciary duty or receives property transferred in breach of duty, leading to an order requiring Nutectime to hold acquired property on trust or to account as a constructive trustee (paras 23-26); (E)a personal claim by Mrs Ehsman against the other three directors asserting infringement of her right of access as a director to information of Timentel, under the general law and perhaps under ss 198F and 290, leading to an order for access or to restrain obstruction (para 30); (F)a personal claim by Mrs Ehsman for relief under the "oppression" remedy in s 232, arising out of specifically pleaded facts and circumstances, leading to a range of possible remedies to address the oppressive or unfair conduct (para 30). 41I am not persuaded that there is any viable course of action underlying paras 27-29. 42I think the appropriate course is to dismiss the application for leave to file and serve the amended points of claim, and to direct Mrs Ehsman to file and serve a statement of claim to give effect to her personal and derivative claims having regard to these reasons for judgment. 43Section 237 authorises the court to grant leave to permit a person to bring proceedings on behalf of a company. Part 2F.1A does not explain the word "proceedings" or give any direct indication of the level of specificity of pleaded allegations and prayers for relief that the applicant for leave must achieve. Typically the applicant will provide the court with a draft statement of claim or (as here) points of claim, or some other document giving particulars of the derivative claims. But in my view it cannot be the case that a full statement of the derivative claims must be presented before the court can consider and determine a leave application. Were that to be required, any subsequent amendments to the pleaded case would need to be treated as a leave application under s 237 to which the criteria in s 237(2) would have to be applied. That, in my view, would be an unnecessary burden for case management. 44In my opinion the applicant for leave must identify and describe the proposed proceedings with sufficient precision that the court can properly assess the application having regard to the criteria that it is required to consider under s 237(2), and the opponents can respond to the application in terms of those criteria. That may be achieved by presenting the court with a draft pleading, but it may be achieved in other ways such as by outlining the claims in affidavit evidence. It is not hard to envisage an application that falls so far short of identifying the derivative causes of action to be asserted that the court is left unable to assess, for example, whether it is in the best interests of the company that the applicant be granted leave, and whether there is a serious question to be tried. Here, however, Mrs Ehsman has done enough in her draft points of claim (defective though they are) and in the voluminous evidence that has been adduced, to permit me to identify the causes of action broadly described in paragraphs (A)-(F) above, of which paras (C) and (D) are derivative claims. I am able to consider the application for leave under s 237 as an application for leave to bring proceedings on behalf of Timentel by a statement of claim that would assert the causes of action identified in paras (C) and (D) and seek appropriate equitable and statutory relief. The requirements for leave to bring a derivative action 45Section 236(1)(a) allows a member or officer, inter alios, to bring proceedings on behalf of the company with the court's leave. Ms Ehsman has standing both as a member and an officer of Timentel. 46Under s 237(2) the court is required to grant the application for leave if it is satisfied of five matters set out in subparagraphs (a) to (e). Subsection 237(3) and (4) establish a rebuttable presumption that the granting of leave is not in the best interests of the company in certain circumstances, but it is agreed that those circumstances have no application to the present case. There is no suggestion of the members of the company purporting to ratify or approve the conduct of the other three directors, so as to invoke s 239. 47Of the five matters that the court must address under s 237(2), the parties agree that the notice requirement in subparagraph (e) has been satisfied here. The defendants did not concede, in terms of subparagraph (a), that it is probable that the company will not itself bring the proceedings, or properly take responsibility for them, or for the steps in them. However, the evidence before me plainly establishes that this criterion is satisfied, in respect of proceedings to pursue any derivative claims of the kind identified at paras (C) and (D) above. Timentel is under the control of the other three directors, who are acting together in respect of the company's dealings with Mrs Ehsman. The other directors (and spouse, in the case of Mr Paix) are the majority shareholders. They have caused the assets of Timentel to be passed to Nutectime, a company in which they but not Ms Ehsman are the directors and shareholders. They have asserted, in answer to the present application, both on their own behalf and on behalf of Timentel, that there is no foundation for derivative claims to be brought. It is clear from their attitude, revealed in the evidence and upon the application, that they would not authorise the company to bring such proceedings. 48That leaves for consideration subparagraphs (b), (c) and (d) of s 237(2). In their submissions, the parties referred me to a substantial number of decided cases. It seems to me, however, that the courts' approach to these subparagraphs has become relatively clear in the course of decisions, and it is unnecessary for me to refer to authorities extensively. Additionally, I have reached the conclusion that this is a plain case in which all three criteria have been established, and that extensive exposition is unnecessary. Good faith 49In the Swansson case, Palmer J expressed the opinion at least two questions are generally relevant to this issue: namely, whether the applicant honestly believes that a good cause of action exists and has reasonable prospects of success; and whether the applicant is seeking to act in a derivative capacity for such a collateral purpose as will amount to an abuse of process. This approach has been followed frequently in subsequent cases. I was referred, inter alia, to the discussion by Brereton J. in Maher v Honeysett & Maher Electrical Contractors Pty Ltd [2005] NSWSC 859, at [30]. 50The evidence shows that Mrs Ehsman believes that a derivative action exists which has reasonable prospects of success. She has given sworn evidence in para [24] of her affidavit of 9 December 2006 to the effect that the company has a good cause of action with reasonable prospects of success for the claims that she outlines. I can see no proper basis in the evidence for doubting that this belief is honest. The highest the evidence goes is in the affidavit of Mr Frasca, where he deposes to a discussion with Mr and Mrs Ehsman in 2003 in which, on his version of it, they conveyed an implacable desire to destroy Mr Brady. But that evidence is contested and in any event, if accepted, it would not point to any lack of honesty in Mrs Ehsman's belief at the present time of her prospects of success in a derivative action. 51Mr Frasca's evidence might be taken to point to a collateral purpose on the part of Mrs Ehsman. But the evidence, if accepted, relates to a conversation some years ago, and the assertion of a collateral purpose is inconsistent with Mrs Ehsman's affidavit evidence. It seems to me that if Mrs Ehsman succeeds in making out her factual contentions, there is a plausible derivative action along the lines of paras (C) and (D) above. If such a derivative action is pursued successfully it will have a beneficial effect on the position of Mrs Ehsman in Timentel. Those conclusions, arising out of the evidence as a whole, makes it difficult to maintain that Mrs Ehsman's purpose in pursuing the derivative cause of action is a collateral one. As Brereton J remarked in Maher v Honeysett (at [33]), the objective facts and circumstances speak louder than an applicant's words about her honesty and purpose, and here the objective facts and circumstances, supported by much evidence, are reasonably eloquent. 52My conclusion is that Ms Ehsman has succeeded in satisfying me that she is acting in good faith for the purposes of s 237(2)(b). Best interests of the company 53In Maher v Honeysett, at [44], Brereton J observed that the phrase "best interests" directs attention to the company's separate and independent welfare, a notion that imports the familiar concept of the interests of the company as a whole. Here it is unnecessary to investigate the qualifications to that proposition arising where the company is insolvent or near to insolvency. In the present case Mrs Ehsman's pursuit of derivative claims will, if she is successful, enure to her benefit, as I have explained. 54As Brereton J pointed out (at [45]), "the existence in an applicant of a personal interest in the outcome of a proposed derivative action, or even of a personal animus against the company or other members of it, cannot be significant, let alone decisive, because they are usual concomitants of the types of disputes which lead to derivative actions, and few if any such actions would be brought but for personal interest on the part of the relevant applicant and in the absence of animus against the company or other shareholders". I respectfully agree. The fact that Mrs Ehsman has a personal interest in the outcome of Timentel's derivative claims, and even the existence of personal animus against Mr Brady (if Mr Frasca's disputed evidence is excepted), are not matters standing in the way of the conclusion that the pursuit of the derivative claims is in the best interests of Timentel. 55Relief having the effect of returning Timentel's assets or their beneficial ownership to the company cannot be obtained by Mrs Ehsman 's pursuit of personal claims (except perhaps through some creative orders on the "oppression" ground). The most direct and obvious way of recovery of the property is for Timentel to assert claims for recovery orders derivatively through Mrs Ehsman. If those claims are successful the result will be orders for the restoration of Timentel's property, an outcome which will be in the best interests of the company, although obviously not in the best interests of the majority shareholders. 56In my view it is appropriate for the derivative claims to be pursued in proceedings in which Mrs Ehsman also asserts personal claims, provided that great care is taken to distinguish the two categories of claims and the ingredients of the case to prove each category. I hope that a first step along that path will be taken by the preparation of a statement of claim. Although there is a risk of confusion in allowing a single proceeding that asserts personal and derivative claims, there is considerable advantage in doing so where, as here, there is a substantial common substratum of fact underlying the two categories of claims (see Maher v Honeysett at [53]). 57In all the circumstances I am satisfied that it is in the best interests of Timentel, for the purposes of s 237(2)(c), that Mrs Ehsman be granted leave under s 237. Serious question to be tried 58In my view this case should be treated as a case where the applicant is applying for leave to bring derivative proceedings, rather than to intervene in existing proceedings. The effect of my granting leave to her to file a new initiating pleading will be, if the job is done properly, to overhaul and substantially reconstitute the proceedings, as proceedings in which she pursues clearly articulated derivative and personal claims. Where the applicant is applying for leave to bring proceedings, s 237(2)(d) requires the court to be satisfied that there is a serious question to be tried. 59As Barrett J explained in Charlton v Baber at [55], the applicant bears the onus of proving sufficient material to enable the court to make this determination. But as I explained above, referring to Palmer J's judgment in Swansson (and see Maher v Honeysett at [19]), the court does not normally enter into the merits of the proposed derivative action to any great degree. The evidence must reach the same standard as applies for an interlocutory injunction, set out in such cases as Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148 and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. The standard has been described as "relatively low" (Maher v Honeysett at [19]). 60In this case Mrs Ehsman has filed quite extensive evidence, which she relies on for the purposes of the application, and I also have before me substantial evidence on behalf of the defendants. I infer that the evidence before me is substantially the evidentiary cases of the parties for final relief. This is certainly not a case of affidavits hurriedly cobbled together to meet the exigencies of an interlocutory occasion. Having considered the evidence my view is that, although there are many disputed questions of fact, which I am not in a position to resolve, Mrs Ehsman's allegations are sufficiently substantial to cross the "serious question to be tried" hurdle. I am therefore satisfied that s 237(2)(d) has been met. The court's powers 61The court is empowered by s 241 to make any orders, and give any directions, that it considers appropriate in relation to proceedings brought with leave, or an application for leave. That section affirms the court's power under the Civil Procedure Act 2005 (NSW) to make an order requiring that the proceedings be brought by statement of claim, a step that I shall take for the reasons I have explained. It also expressly permits the court to make orders requiring mediation, a step that the court is also empowered to take by s 26 of the Civil Procedure Act. During the course of the hearing, I floated with the parties the question whether it would be appropriate to make an order for compulsory mediation. The suggestion was not opposed and I formed the view that if the parties did not voluntarily agree to mediate I should make an order. Unless the parties have, in the meantime, organised for mediation to take place, I shall include a mediation order in the orders that I make pursuant to these reasons for judgment. 62Section 242 permits the court to make any orders it considers appropriate about the costs of various persons, including the company, in relation to proceedings brought with leave under s 237 (see Fiduciary Ltd v Morningstar Research Pty Ltd (2005) 53 ACSR 732, at [56]). In such a case as the present, where the company is essentially a vehicle to pursue the commercial interests of four parties, one of whom is at odds with the other three, who oppose the bringing of derivative claims, and the plaintiff wishes to combine derivative claims with personal claims largely arising out of the same facts, it seems to me appropriate to require the plaintiff to indemnify the company in respect of costs it may incur, either directly or by virtue of a court order against it, with respect to the pursuit of the derivative claims. If the indemnity were not given, the other three directors would as a practical matter be required to bear the burden of 65% of the company's costs of pursuing derivative claims which they do not want it to pursue. Obviously, to the extent that the plaintiff makes a personal claim against the company, she should not be required to give such an indemnity. Further, the indemnity needs to be qualified so that it does not apply to any cost order made by the court with the intention of overriding the effect of the undertaking. The main purpose of that qualification is to enable the trial judge to make such order as to costs as he or she thinks appropriate after the final hearing, untrammelled by an undertaking that may cause an order for costs against the company to rebound against the plaintiff; but the qualification may also be useful to allow the court to override the undertaking in circumstances not presently foreseeable. 63Mrs Ehsman has succeeded in establishing that leave should be granted to her to bring derivative proceedings on behalf of Timentel, and to file and appropriate pleading to initiate those proceedings (and also to clarify her personal claims). That suggests that she should have her costs of the interlocutory application of 12 December 2005, against the defendants other than Timentel. In my view the fact that she will be required to give an undertaking as to the company's future costs is immaterial to the question of the costs of the application. Although I have found that the draft amended points of claim are seriously defective, they nevertheless convey plainly enough the nature of the derivative claims that Mrs Ehsman wishes to pursue. The defects in the pleaded case did not, in my view, provided a justification for the attitude of complete opposition to the application that the defendants presented to the court. Conclusions 64For the reasons I have given, I propose to make orders along the following lines: (1)Subject to the condition identified in order (2), grant leave to the plaintiff, under s 237 of the Corporations Act 2001 (Cth), to bring proceedings on behalf of the fifth defendant against the first, second, third and fourth defendants, asserting the causes of action generally identified in these reasons for judgment and seeking all or any appropriate remedies; (2)Order (1) is subject to the condition that, before any such proceedings are brought, the plaintiff must indemnify the fifth defendant for and in respect of all costs that the fifth defendant may incur (either on its own account or under an order of the court) by reason of the bringing, maintenance and conduct of the derivative proceedings, provided however that the indemnity is not required to extend to costs that the fifth defendant may incur in the proceedings as a defendant in respect of any personal claim made by the plaintiff, and shall not apply with respect to any final order for costs in the proceedings; (3)Direct the plaintiff to file and serve a statement of claim to give effect to her personal and derivative claims, having regard to these reasons for judgment, by no later than a date to be specified; (4)Order the first, second, third and fourth defendants to pay the plaintiff's costs of her interlocutory process filed on 12 December 2005, as agreed or assessed; (5)Subject to orders (1), (2) (3) and (4), the plaintiff's interlocutory process filed on 12 December 2005 is dismissed; (6)Order that the proceedings be referred for mediation by a mediator agreed to by the parties, such mediation to take place by no later than a date to be specified; (7)Liberty to apply to Austin J on 2 days notice. 65However, I shall give the parties the opportunity to draw my attention to any particular matters that might affect the question of costs, by (for example) causing me to award costs on a different measure or to limit the order for costs in some way. I shall also give them the chance to consider my proposed orders. I shall stand the matter over for the purpose of hearing any such submissions and making orders.

what are the legal issues? NEW SOUTH WALES SUPREME COURT CITATION: Ehsman v Nutectime International [2006] NSWSC 887 CURRENT JURISDICTION: Equity FILE NUMBER(S): 5189/05 HEARING DATE{S): 31 March 2006 DECISION DATE: 01/09/2006 PARTIES: Patricia Mary Ehsman (P/A) Nutectime International Pty Ltd (D1/R1) David Neilan Brady (D2/R2) Francis Joseph Frasca (D3/R3) David Bruce Paix (D4/R4) Timentel Pty Ltd (D5) JUDGMENT OF: Austin J LOWER COURT JURISDICTION: Not Applicable COUNSEL: R Harper SC (P/A) M J Cohen (D1-4/R1-4) SOLICITORS: McDonald Johnson (P/A) Sparke Helmore (D1-4, R1-4) CATCHWORDS: CORPORATIONS - statutory derivative action - application by 35% shareholder/director to bring derivative proceedings after company's assets were transferred to a company from which the applicant is excluded - inadequacies of proposed points of claim - whether those inadequacies prevent the court from determining the application under s 237 - distinction between personal and derivative claims - whether court is satisfied concerning good faith, best interests of company and serious question to be tried - ancillary order for applicant to indemnify company with respect to costs of derivative proceedings - considerations relating to the bringing of derivative and personal claims in single proceedings ACTS CITED: Corporations Act 2001 (Cth) ss 180-184, 232, 236-242 DECISION: See under heading "Conclusions" JUDGMENT: IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST AUSTIN J FRIDAY 1 SEPTEMBER 2006 5189/05PATRICIA MARY EHSMAN V NUTECTIME INTERNATIONAL PTY LTD & 4 ORS JUDGMENT 1HIS HONOUR: Before me is an application by the plaintiff, Mrs Ehsman, for leave under s 237 of the Corporations Act 2001 (Cth) to bring proceedings on behalf of the fifth defendant company, Timentel, by filing and serving a further amended originating process and amended points of claim. 2 , 3, 4, 5 and 6 Deleted The plaintiff's case 7The parties agree that Mr Brady and Mr and Mrs Ehsman came together in a business venture before Timentel was formed. Mrs Ehsman owned some patents for a split face wristwatch display, and she wished to exploit them commercially. Mr Brady had some marketing experience. There are disagreements about the commercial utility of Mrs Ehsman's patents, and as to the precise terms of their arrangements, which need not be resolved for present purposes. It is common ground that they respectively brought to the business of Timentel, when it was formed in 1998, the patents (such as they were) and a measure of marketing/commercial input. 8When Timentel was formed, Mrs Ehsman granted it a licence over her patents, for no consideration (although she received shares in the licensee entity). There is disputed evidence as to whether, as Mrs Ehsman asserts, she entered into the licence agreement in reliance on the assumption, encouraged by Mr Brady, that the licence would always be held by a company in which she would be a director and shareholder. The licensee's interest in the licence agreement was assignable. Mrs Ehsman claims, and the defendants deny, that it was a term and condition of the licence agreement that the licence would not be assigned by Timentel to a company in which Mrs Ehsman was not a shareholder and director. 9Initially the only shareholders were the Ehsmans and Mr Brady, and Mr Brady and Mrs Ehsman were the directors. Mr Brady's evidence is that he devoted very considerable time and effort, and expense, to travelling to Europe to negotiate for the commercial exploitation of the split face wristwatch display. According to him, the people he consulted in Europe told him that Mrs Ehsman's patents were just concepts and it would be necessary to work out the most efficacious interior wristwatch mechanisms to support the split face. That is disputed by Mrs Ehsman. But it is clear enough that Mr Brady did do some amount of developmental/marketing work in Europe, the cost of which was shared or partly shared with the Ehsmans. 10Mr Brady's evidence is that he came up with the idea of having movements in each half of the split face watch case for the forward and return hand movements, all controlled by an electronic integrated circuit, and that Mr Claude Ray, an experienced watchmaker, carried out the necessary design work. The eventual product, which he called a "hinged electronic watch", was based on ideas that were fundamentally different, he said, from Mrs Ehsman's patents. These matters are contested. 11Mr Brady said he negotiated a development agreement with Mr Ray's company, using a company with which he was associated, Renaissance Management, for that purpose. In turn he caused Renaissance Management to enter into an agreement with another company with which he was associated, DNB Global Corporation (registered in the Philippines), which made advance payments to Mr Ray's company. At a final hearing of this case it will be necessary to explore these corporate relationships and their purpose, and to understand better the nature of Mr Brady's interests. DNB Global appears to bear his initials, but there is some evidence that he is just one of five directors and is indirectly a shareholder. DNB Global is important in this case because, according to Mr Brady, it incurred substantial expenses through payments for development work, for which Timentel reimbursed it out of monies borrowed by Timentel from Mr Brady, Mr Frasca and Mr Paix. But Mrs Ehsman questions whether loans were ever in fact made by those three directors. 12Mr Brady said the development of the hinged electronic watch was very expensive and under the arrangements between them, Ms Ehsman was to contribute to that development. He alleges that she defaulted in that obligation. He claims that by March 2005 she owed and had not paid about $86,000. That is contested. According to Mr Brady, the development was eventually successful and the hinged electronic watch is protected by patents in various countries, procured at a cost to DNB Global, recoverable from Timentel. 13In about June 2002 Ms Ehsman and Mr Brady decided to bring in two other parties, namely Mr Frasca and Mr Paix. There is quite a bit of evidence, not all consistent, about the circumstances in which Mr Frasca and Mr Paix were invited into the company. What is clear is that Mr Frasca and Mr Paix joined the board of directors and acquired shares, they provided some capital, and in due course they sided with Mr Brady and against Mrs Ehsman. After they joined the board, the company's issued 100 ordinary shares were divided as follows: Mr Brady 35 shares, Mr and Mrs Ehsman 35 shares, Mr Frasca 15 shares, and Mr and Mrs Paix 15 shares. 14During 2002, it seems, Mrs Ehsman visited Europe and met with one of Mr Brady's contacts, Manuel Spode of Les Artisans Horlogers. There is conflicting evidence as to what happened at the meeting. Mr Frasca gives evidence in his affidavit that the meeting led to Mrs Ehsman being criticised by the other directors for intervening secretly without the board's authority, and for her suspicious approach. Mr Frasca also says that at a meeting he had with Mr and Mrs Ehsman in 2003, they told him that they were determined to bring Mr Brady down. These matters are also disputed. Nevertheless it appears that, some time after Mr Frasca and Mr Paix arrived on the board, if not earlier, the relationship between Messrs Brady, Frasca and Paix, on the one hand, and the Ehsmans, on the other hand, deteriorated. By now the relationship has completely broken down. 15There is a considerable amount of correspondence in evidence, and minutes of board meetings. I shall not describe this material in detail here. The correspondence shows that at least since early 2005, Mrs Ehsman has been concerned about verifying payments allegedly due by Timentel to DNB Global, and also about the financial management of Timentel more generally. The evidence is that the only bank account of Timentel has been relatively dormant at times when, the defendants allege, Timentel made payments to DNB Global. Mrs Ehsman's solicitors have written to Timentel's solicitors about these matters. 16Mr Brady claims that by about May 2005 there was a pressing need for capital for Timentel, to pay invoices to DNB Global of about $216,000 and certain other smaller debts. It appears that at this time Mr Brady, Mr Frasca and Mr Paix developed a proposal to lend Timentel up to $246,000 for a term of 60 days with interest of 17% compounding monthly, secured by a registered charge. Mrs Ehsman asked the copies of the draft loan facility and charge documents but received them only after they had been executed. A board meeting attended by Mr Brady, Mr Frasca and Mr Paix, but not Mrs Ehsman, on 9 May 2005 approved the loan proposal and authorised execution of the documents. Mr Brady, Mr Frasca and Mr Paix, acting as directors of the company, purported to authorise the company to enter into the loan facility and charge agreements in which they were the counterparties, without the consent of the other director/shareholder, Ms Ehsman. 17The defendants claim that the loan facility was drawn down and the money was used directly for payment of outstanding debts of Timentel, rather than for deposit into Timentel's bank account. Mrs Ehsman, by her solicitor, sought to verify the making of the loan but she says she has not received proper documentation. The evidence includes minutes of the board meeting of DNB Global on 18 August 2005, at which the directors of that company confirmed that the company had been paid for certain invoices, but the evidence is incomplete because, for example, the identity of the paying entity is not given. 18On 11 July 2005 Messrs Brady, Frasca and Paix as lenders made a formal notice of demand for payment to Timentel of an amount of about $247,000. But they gave the company a limited extension of time to repay. Mrs Ehsman's solicitors alleged in correspondence that any attempt to enforce the charge would render it void under s 267 of the Corporations Act, because the chargees were "relevant persons" for the purposes of that section. 19The security was not enforced but instead, at some stage it was proposed that the company would enter into an asset sale agreement and a deed of assignment of the licence, in favour of the other three directors or their vehicle, for a price supported by a valuation by Les Artisans Horlogers. In correspondence, Mrs Ehsman's solicitors endeavoured unsuccessfully to obtain information about the valuation - indeed, they approached the valuer directly without success. They alleged that the valuation did not cover all of the assets sold. They strenuously opposed the proposed transaction, on several grounds including that the transaction would be in breach of the contractual arrangements and understandings between Mrs Ehsman and the other three directors. 20Nutectime was formed in August 2005. The directors are Mr Brady, Mr Frasca and Mr Paix. The company has issued 100 ordinary shares. Mr Brady owns 60 shares, Mr Frasca owns 20 shares in Mr and Mrs Paix own 20 shares. Mr and Mrs Ehsman do not hold any shares. 21The asset sale agreement and the deed of assignment of licence were entered into by Timentel and Nutectime on 2 September 2005. The transaction was considered at a board meeting not attended by Mrs Ehsman. Messrs Brady, Frasca and Paix went through a procedure of formally disclosing their interest in the purchaser but then they proceeded, purporting to act as directors of the company, to approve the transaction. It appears that the contract was made and completion took place on the same day. The total sale price $277,000. According to Timentel's solicitors, the sale proceeds were used to pay out and discharge the charge over the company's assets. That appears to have meant that the bulk of the sale proceeds were directed to Mr Brady, Mr Frasca and Mr Paix. It is not clear from the evidence whether there was any actual movement of money. 22Up until May 2005 Mrs Ehsman had been a director and (with her husband) substantial shareholder of Timentel, which was the licensee for no consideration of her patents. On one view, the company owed a substantial amount of money to DNB Global, but it had procured substantial development work for its split face watch design. Any profits from the realisation of that development work would have come to Timentel, and Mr and Mrs Ehsman would have had a 35% interest in those profits. After 2 September 2005, Mrs Ehsman was still a director of Timentel and Mr and Mrs Ehsman remained 35% shareholders. But the company's substantial assets, and any prospect it may have had of earning profits from the development of the split face watch, had gone. Mrs Ehsman was still the licensor of her patents, but she was entitled to receive no consideration for the licence. The new licensee, Nutectime, was a company in which she had no interest, and that company had acquired Timentel's assets and any profit-making opportunity relating to the split face watch. The controllers and shareholders of Nutectime were her fellow directors and shareholders of Timentel. The draft APC and draft FAOP 23From this brief account it appears that if Mrs Ehsman could substantiate her allegations, this would be a case of self-dealing by her co-directors to her considerable disadvantage, and unauthorised diversion of a corporate opportunity. Experience shows that in such cases it is important for the plaintiff to identify with particularity the precise duties said to have been breached and the circumstances of the breach. That is important in the interests of clarity of presentation of the plaintiff's case, and to ensure that the defendant is not surprised by having to meet a case at trial different from what she had been led to expect. These considerations strongly suggest that in such a case, the plaintiff should proceed by statement of claim. Where the plaintiff is proceeding in her own right, invoking the oppression remedy, and also seeking to assert the company's rights in a derivative action, the need for clarity of pleading is especially strong. 24 Deleted 25I have endeavoured to identify those allegations that relate to some right of Timentel, and distinguish them from allegations relating to some right of Mrs Ehsman personally. In summary, for reasons given below, paras 7, 18-21, 22, 23-26, and 27-29 (and the claims to relief in paras 1-5, perhaps 7, and 8) of the draft APC are claims made on behalf of Timentel, and paras 8-16, 17, 30 and 31 (and claims to relief in para 6 and perhaps 7) are claims made by Mrs Ehsman personally. 26It is important to maintain the distinction between derivative and personal claims in the interests of clarity. But nothing in Part 2F.1A requires that a derivative action be in a separate proceeding in which no personal claims are made by the person who has carriage of the proceeding. For example, in Fiduciary Ltd v Morningstar Research Pty Ltd (2005) 53 ACSR 732 the plaintiffs were an individual and corporate plaintiffs, and leave was granted under s 237 so as to permit the individual plaintiff (who was a shareholder and officer of the corporate plaintiffs) to assert the rights of the companies in a proceeding in which he also asserted rights of his own. The combination of corporate and personal claims was not unlike the combination of claims in the present case, though the pleading was by an elaborate statement of claim. In that case, and here, the asserted derivative and personal rights arise to a large degree out of the same alleged facts. 27Here the sole plaintiff is Mrs Ehsman, and Timentel is a defendant. It is not proposed that Timentel should become a plaintiff if s 237 leave is granted, because Timentel is properly a defendant to some of Mrs Ehsman's claims. Nor is it proposed that the derivative action be constituted as a separate proceeding, because there are substantially overlapping facts concerning the derivative and personal claims, which should therefore be heard together. Section 236(2) says that proceedings brought on behalf of a company must be brought in the company's name. But there is now a substantial line of decisions holding that, despite the literal wording of s 236(2), leave under s 237 can be given where the company is a party to the proceeding as a necessary defendant in respect of other claims, without requiring the company become a plaintiff or insisting that the derivative action be brought in a separate proceeding: see especially Keyrate Pty Ltd v Hamarc Pty Ltd (2001) 38 ACSR 396, per Santow J at [18]-[19]; Metyor Inc v Queensland Electronic Switching Pty Ltd (2002) 42 ACSR 398, per McPherson JA at [14]-[15]; Charlton v Baber (2003) 47 ACSR 31, per Barrett J at [5]. 28I turn now to consider the draft APC, paragraph by paragraph. 29After preliminary allegations, para 7 of the draft APC asserts that by reason of their appointment as directors of Timentel, Mr Brady, Mr Frasca and Mr Paix owed Timentel various duties. There is a list of the standard duties of directors. The list reflects ss 180, 181, 182 and 183 of the Corporations Act, and also a duty to act honestly in the exercise of their powers and the discharge of their duties as directors (a formulation no longer found in the statute). [deleted latter part of paragraph] 30Having made allegations about the defendants' duties as directors of Timentel, the draft APC (paras 8-16) makes allegations about the licence agreement, leading to the assertion that the purported sale by Timentel to Nutectime of its rights under the licence agreement was in breach of the licence agreement. That is a personal claim by Mrs Ehsman against Timentel (and no other defendant) for breach of contract. It is not a claim for breach of any duty owed to Timentel. 31Para 17 pleads that, by reason of matters pleaded in paras 8-11, the first to fourth defendants are estopped from asserting that Timentel was entitled to sell or assign to the first defendant the rights of Timentel under the licence agreement. This was said to arise because Mrs Ehsman entered into the licence agreement in reliance on the assumption, encouraged by Mr Brady, Mr Frasca and Mr Paix, that the licence would always be held by a company of which she was a director and shareholder. Clearly the allegation of estoppel is made for the benefit of Mrs Ehsman personally rather than to vindicate some right or interest of Timentel. The document does not reveal how the allegation can be made against any defendant other than Mr Brady, given that the assumption is said to have been created and acted upon at the time of the licence agreement, which was made well before Mr Frasca and Mr Paix became involved. 32Paras 18-21 make allegations about breaches of duties owed by the other three directors to Timentel. They allege that Timentel did not receive any of the proceeds of sale of assets, or received only part of the proceeds, and Messrs Brady, Frasca and Paix received those proceeds or part of them. It is claimed that their conduct in receiving those proceeds constituted a breach of all of the duties pleaded in paragraph 7. I find it impossible to justify that claim, with respect to some of the duties identified in para 7, even taking into account the "particulars" to para 21. Moreover, the mere assertion that Timentel did not receive proceeds of sale and the other three directors did (even when the "particulars" to para 21 are added) cannot, per se, establish a breach of any of the duties identified in para 7. These allegations fall well short of a proper pleading. 33Para 22 alleges that by reason of the matters alleged in certain other paragraphs, Messrs Brady, Frasca and Paix have been unjustly enriched as a result of breach of the duties referred to in para 7. Presumably this is intended to establish a ground of recovery for Timentel. Again, the precise matters that might constitute unjust enrichment have not been adequately pleaded and, moreover, it is not easy to see why para 22 combines breach of directors' duties with unjust enrichment. 34Paras 23-26 make allegations against Nutectime, intended to support orders declaring void and setting aside the purported sale of assets or requiring Nutectime to hold the assets in trust for Timentel. These paragraphs seem to assert some entitlement to relief on the part of Timentel rather than Mrs Ehsman, although the remedies would obviously operate for her benefit as well. The precise foundation of the remedies is not clear. The drafter has not invoked the equitable principles concerning accessory liability for breach of trust with any specificity or clarity. To the extent that entitlement to the relief is said to arise out of Nutectime being "knowingly concerned in the breach" there is a suggestion of statutory accessory liability, but the statutory directors' duties do not create any accessory civil reliability for being knowingly concerned in the primary breach. There is "accessory" liability under the statute for de facto and shadow directors, but the allegations in the draft APC do not in terms invoke that liability. 35Paras 27-29 allege that the deed of charge dated 9 May 2005 is void and should be set aside because Timentel did not receive the benefit, or received only part of the benefit, of the money purported to be advanced. This seems to be the assertion of rights of Timentel rather than Mrs Ehsman personally. A deed of charge merely provides security for advances made under some other arrangement such as a loan facility agreement. It is not easy to see why the fact (if it be so) that the chargor did not receive the benefit of loan monies purported to be advanced under a loan facility agreement should, per se, lead to the consequence that the security for the loan is void. If the charge is security for money advanced under a loan facility agreement, and no money is advanced to the chargor, then nothing is secured by the charge but the charging instrument is nevertheless valid. 36Para 30 contends that the other three directors repeatedly failed or refused to furnish information to Mrs Ehsman relating to the affairs of Timentel. Particulars are given. As expressed, this is an allegation of breach of duty to Mrs Ehsman rather than Timentel. There is no allegation of any particular duty but it seems that the drafter had in mind either or both of the statutory rights of a director to gain access to certain information under ss 198F and 290, or the director's general law right of access to the information needed to discharge her fiduciary duty (eg Edman v Ross (1922) 22 SR(NSW) 351). A director seeking to assert those rights is not required to show that inspection is sought in good faith and for a proper purpose, whereas a shareholder seeking inspection under s 247A must do so. Para 30 is not clear enough. 37Para 31 asserts that, by reason of the matters asserted, the other three directors have conducted the affairs of Timentel in a manner oppressive to, unfairly prejudicial to or unfairly discriminatory against Mrs Ehsman, or contrary to the interests of the members as a whole, contrary to s 232. Mrs Ehsman has personal standing to complain under that provision. The difficulty with para 31 is that it relies globally on all of the other allegations, some of which do not seem to be pertinent (for example, the pleadings against Timentel itself based on breach of contract and against Mr Brady based on estoppel). It should be re-formulated with more precision. 38 Deleted 39The draft FAOP contains the same claims for relief as the draft APC, and therefore suffers from the defects just noted. It also contains a prayer for an order under s 237. This is inappropriate, given that the interlocutory application presently under consideration seeks a s 237 order and also leave to file the FAOP, so that the question of s 237 leave will have been addressed before the FAOP is filed. Further, in the draft FAOP the application is said to be made pursuant to ss 232, 236 and 237. Sections 236 and 237 do not need to be mentioned, for the reason just given, and s 232 appears from the draft APC to be only one of the statutory provisions under which relief is sought, the others being the various directors' duties provisions. 40My conclusion is that the draft APC and the draft FAOP are seriously defective, and therefore I shall not accede to Mrs Ehsman's application for leave to file and serve them in their present form. What is needed is a carefully considered pleading by statement of claim. However, my view is that the draft APC identifies in broad terms, though imprecisely and at times in a confused way, some derivative and personal causes of action that emerge on Mrs Ehsman's account of the evidence. The causes of action are: (A)a personal claim by Mrs Ehsman against Timentel for breach of contract arising out of Timentel's purported sale and assignment to Nutectime, sounding in damages (paras 8-16); (B)a personal claim by Mrs Ehsman against Mr Brady based the allegation that at the time of the making of the licence agreement he encouraged her to assume that the licence would always be held by a company of which she was a director and shareholder - though the appropriate remedy, if this ground is established, is debatable (para 17); (C)claims by Timentel against Messrs Brady, Frasca and Paix for breach of ss 182 and 183 and their general law duty to avoid conflicts of interest, by virtue of their self-dealing in the loan and security transactions and then the sale and assignment transactions, leading an order for an account of profit or an order setting aside the transactions, or a compensation order under s 1317H (paras 18-21 and 22); (D)a claim by Timentel against Nutectime for accessory liability under equitable principles which apply to a person who assists in a breach of fiduciary duty or receives property transferred in breach of duty, leading to an order requiring Nutectime to hold acquired property on trust or to account as a constructive trustee (paras 23-26); (E)a personal claim by Mrs Ehsman against the other three directors asserting infringement of her right of access as a director to information of Timentel, under the general law and perhaps under ss 198F and 290, leading to an order for access or to restrain obstruction (para 30); (F)a personal claim by Mrs Ehsman for relief under the "oppression" remedy in s 232, arising out of specifically pleaded facts and circumstances, leading to a range of possible remedies to address the oppressive or unfair conduct (para 30). 41I am not persuaded that there is any viable course of action underlying paras 27-29. 42I think the appropriate course is to dismiss the application for leave to file and serve the amended points of claim, and to direct Mrs Ehsman to file and serve a statement of claim to give effect to her personal and derivative claims having regard to these reasons for judgment. 43Section 237 authorises the court to grant leave to permit a person to bring proceedings on behalf of a company. Part 2F.1A does not explain the word "proceedings" or give any direct indication of the level of specificity of pleaded allegations and prayers for relief that the applicant for leave must achieve. Typically the applicant will provide the court with a draft statement of claim or (as here) points of claim, or some other document giving particulars of the derivative claims. But in my view it cannot be the case that a full statement of the derivative claims must be presented before the court can consider and determine a leave application. Were that to be required, any subsequent amendments to the pleaded case would need to be treated as a leave application under s 237 to which the criteria in s 237(2) would have to be applied. That, in my view, would be an unnecessary burden for case management. 44In my opinion the applicant for leave must identify and describe the proposed proceedings with sufficient precision that the court can properly assess the application having regard to the criteria that it is required to consider under s 237(2), and the opponents can respond to the application in terms of those criteria. That may be achieved by presenting the court with a draft pleading, but it may be achieved in other ways such as by outlining the claims in affidavit evidence. It is not hard to envisage an application that falls so far short of identifying the derivative causes of action to be asserted that the court is left unable to assess, for example, whether it is in the best interests of the company that the applicant be granted leave, and whether there is a serious question to be tried. Here, however, Mrs Ehsman has done enough in her draft points of claim (defective though they are) and in the voluminous evidence that has been adduced, to permit me to identify the causes of action broadly described in paragraphs (A)-(F) above, of which paras (C) and (D) are derivative claims. I am able to consider the application for leave under s 237 as an application for leave to bring proceedings on behalf of Timentel by a statement of claim that would assert the causes of action identified in paras (C) and (D) and seek appropriate equitable and statutory relief. The requirements for leave to bring a derivative action 45Section 236(1)(a) allows a member or officer, inter alios, to bring proceedings on behalf of the company with the court's leave. Ms Ehsman has standing both as a member and an officer of Timentel. 46Under s 237(2) the court is required to grant the application for leave if it is satisfied of five matters set out in subparagraphs (a) to (e). Subsection 237(3) and (4) establish a rebuttable presumption that the granting of leave is not in the best interests of the company in certain circumstances, but it is agreed that those circumstances have no application to the present case. There is no suggestion of the members of the company purporting to ratify or approve the conduct of the other three directors, so as to invoke s 239. 47Of the five matters that the court must address under s 237(2), the parties agree that the notice requirement in subparagraph (e) has been satisfied here. The defendants did not concede, in terms of subparagraph (a), that it is probable that the company will not itself bring the proceedings, or properly take responsibility for them, or for the steps in them. However, the evidence before me plainly establishes that this criterion is satisfied, in respect of proceedings to pursue any derivative claims of the kind identified at paras (C) and (D) above. Timentel is under the control of the other three directors, who are acting together in respect of the company's dealings with Mrs Ehsman. The other directors (and spouse, in the case of Mr Paix) are the majority shareholders. They have caused the assets of Timentel to be passed to Nutectime, a company in which they but not Ms Ehsman are the directors and shareholders. They have asserted, in answer to the present application, both on their own behalf and on behalf of Timentel, that there is no foundation for derivative claims to be brought. It is clear from their attitude, revealed in the evidence and upon the application, that they would not authorise the company to bring such proceedings. 48That leaves for consideration subparagraphs (b), (c) and (d) of s 237(2). In their submissions, the parties referred me to a substantial number of decided cases. It seems to me, however, that the courts' approach to these subparagraphs has become relatively clear in the course of decisions, and it is unnecessary for me to refer to authorities extensively. Additionally, I have reached the conclusion that this is a plain case in which all three criteria have been established, and that extensive exposition is unnecessary. Good faith 49In the Swansson case, Palmer J expressed the opinion at least two questions are generally relevant to this issue: namely, whether the applicant honestly believes that a good cause of action exists and has reasonable prospects of success; and whether the applicant is seeking to act in a derivative capacity for such a collateral purpose as will amount to an abuse of process. This approach has been followed frequently in subsequent cases. I was referred, inter alia, to the discussion by Brereton J. in Maher v Honeysett & Maher Electrical Contractors Pty Ltd [2005] NSWSC 859, at [30]. 50The evidence shows that Mrs Ehsman believes that a derivative action exists which has reasonable prospects of success. She has given sworn evidence in para [24] of her affidavit of 9 December 2006 to the effect that the company has a good cause of action with reasonable prospects of success for the claims that she outlines. I can see no proper basis in the evidence for doubting that this belief is honest. The highest the evidence goes is in the affidavit of Mr Frasca, where he deposes to a discussion with Mr and Mrs Ehsman in 2003 in which, on his version of it, they conveyed an implacable desire to destroy Mr Brady. But that evidence is contested and in any event, if accepted, it would not point to any lack of honesty in Mrs Ehsman's belief at the present time of her prospects of success in a derivative action. 51Mr Frasca's evidence might be taken to point to a collateral purpose on the part of Mrs Ehsman. But the evidence, if accepted, relates to a conversation some years ago, and the assertion of a collateral purpose is inconsistent with Mrs Ehsman's affidavit evidence. It seems to me that if Mrs Ehsman succeeds in making out her factual contentions, there is a plausible derivative action along the lines of paras (C) and (D) above. If such a derivative action is pursued successfully it will have a beneficial effect on the position of Mrs Ehsman in Timentel. Those conclusions, arising out of the evidence as a whole, makes it difficult to maintain that Mrs Ehsman's purpose in pursuing the derivative cause of action is a collateral one. As Brereton J remarked in Maher v Honeysett (at [33]), the objective facts and circumstances speak louder than an applicant's words about her honesty and purpose, and here the objective facts and circumstances, supported by much evidence, are reasonably eloquent. 52My conclusion is that Ms Ehsman has succeeded in satisfying me that she is acting in good faith for the purposes of s 237(2)(b). Best interests of the company 53In Maher v Honeysett, at [44], Brereton J observed that the phrase "best interests" directs attention to the company's separate and independent welfare, a notion that imports the familiar concept of the interests of the company as a whole. Here it is unnecessary to investigate the qualifications to that proposition arising where the company is insolvent or near to insolvency. In the present case Mrs Ehsman's pursuit of derivative claims will, if she is successful, enure to her benefit, as I have explained. 54As Brereton J pointed out (at [45]), "the existence in an applicant of a personal interest in the outcome of a proposed derivative action, or even of a personal animus against the company or other members of it, cannot be significant, let alone decisive, because they are usual concomitants of the types of disputes which lead to derivative actions, and few if any such actions would be brought but for personal interest on the part of the relevant applicant and in the absence of animus against the company or other shareholders". I respectfully agree. The fact that Mrs Ehsman has a personal interest in the outcome of Timentel's derivative claims, and even the existence of personal animus against Mr Brady (if Mr Frasca's disputed evidence is excepted), are not matters standing in the way of the conclusion that the pursuit of the derivative claims is in the best interests of Timentel. 55Relief having the effect of returning Timentel's assets or their beneficial ownership to the company cannot be obtained by Mrs Ehsman 's pursuit of personal claims (except perhaps through some creative orders on the "oppression" ground). The most direct and obvious way of recovery of the property is for Timentel to assert claims for recovery orders derivatively through Mrs Ehsman. If those claims are successful the result will be orders for the restoration of Timentel's property, an outcome which will be in the best interests of the company, although obviously not in the best interests of the majority shareholders. 56In my view it is appropriate for the derivative claims to be pursued in proceedings in which Mrs Ehsman also asserts personal claims, provided that great care is taken to distinguish the two categories of claims and the ingredients of the case to prove each category. I hope that a first step along that path will be taken by the preparation of a statement of claim. Although there is a risk of confusion in allowing a single proceeding that asserts personal and derivative claims, there is considerable advantage in doing so where, as here, there is a substantial common substratum of fact underlying the two categories of claims (see Maher v Honeysett at [53]). 57In all the circumstances I am satisfied that it is in the best interests of Timentel, for the purposes of s 237(2)(c), that Mrs Ehsman be granted leave under s 237. Serious question to be tried 58In my view this case should be treated as a case where the applicant is applying for leave to bring derivative proceedings, rather than to intervene in existing proceedings. The effect of my granting leave to her to file a new initiating pleading will be, if the job is done properly, to overhaul and substantially reconstitute the proceedings, as proceedings in which she pursues clearly articulated derivative and personal claims. Where the applicant is applying for leave to bring proceedings, s 237(2)(d) requires the court to be satisfied that there is a serious question to be tried. 59As Barrett J explained in Charlton v Baber at [55], the applicant bears the onus of proving sufficient material to enable the court to make this determination. But as I explained above, referring to Palmer J's judgment in Swansson (and see Maher v Honeysett at [19]), the court does not normally enter into the merits of the proposed derivative action to any great degree. The evidence must reach the same standard as applies for an interlocutory injunction, set out in such cases as Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148 and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. The standard has been described as "relatively low" (Maher v Honeysett at [19]). 60In this case Mrs Ehsman has filed quite extensive evidence, which she relies on for the purposes of the application, and I also have before me substantial evidence on behalf of the defendants. I infer that the evidence before me is substantially the evidentiary cases of the parties for final relief. This is certainly not a case of affidavits hurriedly cobbled together to meet the exigencies of an interlocutory occasion. Having considered the evidence my view is that, although there are many disputed questions of fact, which I am not in a position to resolve, Mrs Ehsman's allegations are sufficiently substantial to cross the "serious question to be tried" hurdle. I am therefore satisfied that s 237(2)(d) has been met. The court's powers 61The court is empowered by s 241 to make any orders, and give any directions, that it considers appropriate in relation to proceedings brought with leave, or an application for leave. That section affirms the court's power under the Civil Procedure Act 2005 (NSW) to make an order requiring that the proceedings be brought by statement of claim, a step that I shall take for the reasons I have explained. It also expressly permits the court to make orders requiring mediation, a step that the court is also empowered to take by s 26 of the Civil Procedure Act. During the course of the hearing, I floated with the parties the question whether it would be appropriate to make an order for compulsory mediation. The suggestion was not opposed and I formed the view that if the parties did not voluntarily agree to mediate I should make an order. Unless the parties have, in the meantime, organised for mediation to take place, I shall include a mediation order in the orders that I make pursuant to these reasons for judgment. 62Section 242 permits the court to make any orders it considers appropriate about the costs of various persons, including the company, in relation to proceedings brought with leave under s 237 (see Fiduciary Ltd v Morningstar Research Pty Ltd (2005) 53 ACSR 732, at [56]). In such a case as the present, where the company is essentially a vehicle to pursue the commercial interests of four parties, one of whom is at odds with the other three, who oppose the bringing of derivative claims, and the plaintiff wishes to combine derivative claims with personal claims largely arising out of the same facts, it seems to me appropriate to require the plaintiff to indemnify the company in respect of costs it may incur, either directly or by virtue of a court order against it, with respect to the pursuit of the derivative claims. If the indemnity were not given, the other three directors would as a practical matter be required to bear the burden of 65% of the company's costs of pursuing derivative claims which they do not want it to pursue. Obviously, to the extent that the plaintiff makes a personal claim against the company, she should not be required to give such an indemnity. Further, the indemnity needs to be qualified so that it does not apply to any cost order made by the court with the intention of overriding the effect of the undertaking. The main purpose of that qualification is to enable the trial judge to make such order as to costs as he or she thinks appropriate after the final hearing, untrammelled by an undertaking that may cause an order for costs against the company to rebound against the plaintiff; but the qualification may also be useful to allow the court to override the undertaking in circumstances not presently foreseeable. 63Mrs Ehsman has succeeded in establishing that leave should be granted to her to bring derivative proceedings on behalf of Timentel, and to file and appropriate pleading to initiate those proceedings (and also to clarify her personal claims). That suggests that she should have her costs of the interlocutory application of 12 December 2005, against the defendants other than Timentel. In my view the fact that she will be required to give an undertaking as to the company's future costs is immaterial to the question of the costs of the application. Although I have found that the draft amended points of claim are seriously defective, they nevertheless convey plainly enough the nature of the derivative claims that Mrs Ehsman wishes to pursue. The defects in the pleaded case did not, in my view, provided a justification for the attitude of complete opposition to the application that the defendants presented to the court. Conclusions 64For the reasons I have given, I propose to make orders along the following lines: (1)Subject to the condition identified in order (2), grant leave to the plaintiff, under s 237 of the Corporations Act 2001 (Cth), to bring proceedings on behalf of the fifth defendant against the first, second, third and fourth defendants, asserting the causes of action generally identified in these reasons for judgment and seeking all or any appropriate remedies; (2)Order (1) is subject to the condition that, before any such proceedings are brought, the plaintiff must indemnify the fifth defendant for and in respect of all costs that the fifth defendant may incur (either on its own account or under an order of the court) by reason of the bringing, maintenance and conduct of the derivative proceedings, provided however that the indemnity is not required to extend to costs that the fifth defendant may incur in the proceedings as a defendant in respect of any personal claim made by the plaintiff, and shall not apply with respect to any final order for costs in the proceedings; (3)Direct the plaintiff to file and serve a statement of claim to give effect to her personal and derivative claims, having regard to these reasons for judgment, by no later than a date to be specified; (4)Order the first, second, third and fourth defendants to pay the plaintiff's costs of her interlocutory process filed on 12 December 2005, as agreed or assessed; (5)Subject to orders (1), (2) (3) and (4), the plaintiff's interlocutory process filed on 12 December 2005 is dismissed; (6)Order that the proceedings be referred for mediation by a mediator agreed to by the parties, such mediation to take place by no later than a date to be specified; (7)Liberty to apply to Austin J on 2 days notice. 65However, I shall give the parties the opportunity to draw my attention to any particular matters that might affect the question of costs, by (for example) causing me to award costs on a different measure or to limit the order for costs in some way. I shall also give them the chance to consider my proposed orders. I shall stand the matter over for the purpose of hearing any such submissions and making orders.

What are your thoughts about this report ? The 'W.' Stands for 'War Criminal' by Nat Hentoff In a June 6 letter to Attorney General Michael Mukasey—largely ignored by a press immersed in the future of Hillary Clinton—56 Democrats in the House of Representatives asked for "an immediate investigation with the appointment of a special counsel to determine whether actions taken by the President, his Cabinet, and other Administration officials are in violation of the War Crimes Act (18 U.S.C. 2441) . . . and other U.S. and international laws." This isn't front-page news? The letter began with a brief account of the notorious facts about Abu Ghraib ("sexual exploitation and torture") and Guantánamo ("an independent investigation by the International Committee of the Red Cross documented several . . . acts of torture . . . including soaking a prisoner's head in alcohol and lighting it on fire"). Nor was "coercive interrogation" in Afghanistan omitted: "In October 2005, The New York Times reported that three detainees were killed during interrogations in Afghanistan and Iraq by CIA agents or CIA contractors." This is not a call for articles of impeachment. Bush will soon be gone, and the new president and Congress have far too much to do to get mired in that quicksand. These are grave criminal charges, and since international crimes are involved as well as the U.S. War Crimes Act and the Anti-Torture Act, other nations whose laws include "universal jurisdiction" could prosecute.

Invisible War: IraQ Headlines....Real News .Democracy NOW.COM The War AND PEACE REPORT? Watch Whole Videos Before Commenting..... VIDEO>>>> http://www.democracynow.org/2010/9/1/invisible_war_how_thirteen_years_of While the US invasion and occupation of Iraq over the past seven years has inflicted multiple disasters on the country, many argue that the US assault on Iraq really began twenty years ago with the US-imposed economic sanctions. Joy Gordon, author of Invisible War: The United States and the Iraq Sanctions, writes, "U.S. policymakers effectively turned a program of international governance into a legitimized act of mass slaughter." Withdrawal or Enduring Presence? US Military Continues to Invest Hundreds of Millions in Iraq Bases....Video>>>> http://www.democracynow.org/2010/9/1/withdrawal_or_enduring_presence_us_military In his Oval Office address Tuesday night, President Obama said the US had closed or transferred hundreds of bases to the Iraqis. But many US bases remain in Iraq, as well as the massive US embassy in Baghdad, the size of eighty football fields. We play a report on US bases in Iraq by independent journalist Jacquie Soohen of Big Noise Films. "Iraq Is a Shattered Country"–Nir Rosen on Obama Declaring an End to US Combat Mission in Iraq President Obama declared an end to the combat mission in Iraq Tuesday night in the second Oval Office address of his presidency. Video>>>>>>>>>>>> http://www.democracynow.org/2010/9/1/iraq_is_a_shattered_country_nir Although tens of thousands of US troops, special operations forces and private contractors remain in Iraq, Obama announced that Operation Iraqi Freedom is now officially over. We go to Baghdad to speak with independent journalist Nir Rosen. News you the American Public Will Not see In any of your Local News Channels(NBC,FOX,ETC... Controlled And sanitized to make the public believe what they want you to believe...

Can I go into business for myself and call myself an agency? I am a RN, I want to provide my service to customer with out going through an employment agency or a hospital. I want my business to be from my home my house. I do not want to hire employees. I already know I can register myself as a business using either my name or a fictitious name "doing business as". I know I do not need additional licenses to contract my service out. I my taxes would be different because I would be an independent contractor. Can I legally say Jane Doe doing business as JD agency. Please note I am not saying Employment agency. My understanding of agency is one party acting on the behalf of another party. Please let me know if agency can be included legally.

coworker is pretending to be me? I work for a online company as an independent contractor/ model. The owner of the company made up an email address with my name and pretends to be me with it. I have no access to the account. He has also made a myspace page with pictures of me he owns the copyright to and acts like he is me to promote the site. He also will not give me the password for that account. He is not accurately portraying me and is posting information publicly. Its hurting me how he portrays me and If anyone I know in real life stumbled upon the site It could damage my personal life. What can I do about this? If you need more information to answer ask! Thank you! I signed an independent contractor contract, he has not given me a copy of it. I'm not sure if it is even a legal contract because the company was still in the process of getting licensed when I signed it. I threatened to have the myspace deleted if he did not give me the password and now he is saying he will stop my pay for something else entirely (being a couple minutes late on something else that I was supposed to do under contract). which i'm pretty sure he could not even prove even if it was true.. this is really a nightmare!

Non-Competition Clause Question? I work for a company and as part of the employment agreement that I signed, a non-competition clause was included: "While acting as, and for (24) months after his/her termination, the Employee shall not and agrees that he/she will not, directly own an interest in, operate, join, control, or participate in or be connected as an officer, employee, agent, independent contractor, partner, shareholder, or proprietorship, firm, association, person, or other entity soliciting orders for, selling, distributing or otherwise marketing products, goods, equipment, and/or services which directly compete with the Company at existing Company's customers or customers where the Company's proposals are pending without the written consent of the Company." Am opportunity has come my way (with a small start up company) that I am considering pursuing. It is in the same state and the same industry, however they do not share any clientele. However that could potentially be the case in the long term. 1) Does this clause apply in my situation? Does the situation change if I am offered stock with the new company? 2) If it does apply, how enforceable is this clause, especially since it is for 2 years? I've heard that clauses are only enforceable if they are within reason. My interpretation of the clause lies in the word "directly." I suppose this word kind of limits the scope of the clause. I don't think it will apply to me but I am unsure and wanted others' opinions. Thanks. State of New Hampshire is where the working parties are. Why would I ask HR of the company I am contemplating leaving? I need a 3rd party, to be objective. Obviously each side will be biased...

tax question related to acting income? In December 2006 I did a print gig as an independent contractor and that is the year I recorded the "income" as my business income to offset other acting-related expenses such as headshots, classes, etc. Just recently I received the 1099-MISC form for the print job I did in December 2006. My agent must have reported the income when they paid it (2007), whereas I recorded it when I earned it (2006). Because I already recorded the income on my 2006 taxes, can I just disregard the 1099-MISC form I received for 2007? Oh this is so confusing...I just want to deal with it in the simplest way possible. I guess I report my "acting profession" income and expenses on an accrual basis as there could be several weeks or months from when I perform a job til I actually get paid for it. I have a regular 40 hours/week job from which I get a W-2, and I treat my acting as my own "business". I only made about $500 in acting and my expenses are around $2000 so I have a net loss for my business. Any new advice or suggestions? I'm leaning towards making a note on my 2007 return stating that I already reported the income in 2006 when the work was performed. Well, I look forward to the answers, thanks.