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Several rules for Fraudulent trading:
Various rules have been established to determine what is fraudulent trading:
(a) Only persons who take the decision to carry on the company's business in this way or play some active part are liable. An employee who is aware that the debts incurred may not be paid and who merely fails to inform the directors of the situation is not a "party" to carrying on business since it is not a decision or action on his part.
Case: RE MAIDSTONE BUILDING PROVISIONS (1971)
The secretary of the company also acted as financial adviser to the directors. The secretary was aware but did not tell the directors that in carrying on its business the company was incurring debts which it was not likely to pay. Proceedings were brought against the secretary for fraudulent trading.
Held:
As the secretary did not take the decision to continue trading he was not a "party" to fraudulent trading. In so far as he had failed to provide information and advice which it was his duty to give he might have been negligent but that was not an issue in these proceedings.
(b) "Carrying on business" can include a single transaction and also the mere payment of debts as distinct from making trading contracts.
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