Top Small Business Consulting Firms

Richard asks…

Work experience to get in a top 10 MBA program?

I know that in general you need 3/4 years of experience to get in a top MBA school.
My question is: what type of work experience is better appreciated by top business school?

I know that they select people from different background, but I am sure that there must be something they prefer (Management Consulting?, I-Banking?, etc)
Do they prefer big known companies to smaller ones?


AustinBusinessConsulting answers:

You are in the same position as a friend of mine. You do need a solid work experience from finance or brokerage firm.

Thomas asks…

What qualifications do you need for a website/graphic designer?

Okay, i’m in year 10 and i pick my GCSE subjects. :s I want to be a website or graphic designer and i need to know what qualifications i need. I’ve tried to search on my school’s career program but since it’s out of date, i haven’t got a clue. Can anyone help me? :S

AustinBusinessConsulting answers:

Try looking at this websites:

Training, Other Qualifications, and Advancement [About this section] Back to Top Back to Top

A bachelor’s or an associate degree in graphic design is usually required for a job as a graphic designer. Creativity, communication, and problem solving skills and familiarity with computer graphics and design software also are important.

Education and training. A bachelor’s degree is required for most entry-level and advanced graphic design positions; although some entry-level technical positions may only require an associate degree. Bachelor’s degree programs in fine arts or graphic design are offered at many colleges, universities, and private design schools. Most curriculums include studio art, principles of design, computerized design, commercial graphics production, printing techniques, and Web site design. In addition to design courses, a liberal arts education that includes courses in art history, writing, psychology, sociology, foreign languages and cultural studies, marketing, and business are useful in helping designers work effectively.

Associate degrees and certificates in graphic design also are available from 2-year and 3-year professional schools. These programs usually focus on the technical aspects of graphic design and include few liberal arts courses. Graduates of 2-year programs normally qualify as assistants to graphic designers or for positions requiring technical skills only. Individuals who wish to pursue a career in graphic design—and who already possess a bachelor’s degree in another field—can complete a 2-year or 3-year program in graphic design to learn the technical requirements.

The National Association of Schools of Art and Design accredits about 250 postsecondary institutions with programs in art and design. Most of these schools award a degree in graphic design. Many schools do not allow formal entry into a bachelor’s degree program until a student has successfully finished a year of basic art and design courses. Applicants may be required to submit sketches and other examples of their artistic ability.

Increasingly, employers expect new graphic designers to be familiar with computer graphics and design software. Graphic designers must keep up with new and updated software, on their own or through software training programs.

Other qualifications. In addition to postsecondary training in graphic design, creativity, communication, and problem-solving skills are crucial. Graphic designers must be creative and able to communicate their ideas visually, verbally, and in writing. They also must have an eye for details. Designers show employers these traits by putting together a portfolio—a collection of examples of a person’s best work. A good portfolio often is the deciding factor in getting a job.

Because consumer tastes can change quickly, designers also need to be well read, open to new ideas and influences, and quick to react to changing trends. The ability to work independently and under pressure are equally important traits. People in this field need self-discipline to start projects on their own, to budget their time, and to meet deadlines and production schedules. Good business sense and sales ability also are important, especially for those who freelance or run their own firms.

Advancement. Beginning graphic designers usually receive on-the-job training and normally need 1 to 3 years of training before they can advance to higher positions. Experienced graphic designers in large firms may advance to chief designer, art or creative director, or other supervisory positions. Some designers leave the occupation to become teachers in design schools or in colleges and universities. Many faculty members continue to consult privately or operate small design studios to complement their classroom activities. Some experienced designers open their own firms or choose to specialize in one area of graphic design.

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Internet Marketing Austin

Linda asks…

Where should we move to in the U.S.?

My husband and I are in our twenties (25 and 27). We have no children (our pets are our kids… we have two huskies and two cats). We are looking for a change but are not sure where to move to. We had been hoping to take an extended roadtrip across the U.S. to find a place to live, but our business took off (not complaining!) and we have decided it would be unwise to go on an extended trip at this time, so we’ve been trying to research places online instead.

We both work from home and all our business comes through the internet or the mail so we can live pretty much anywhere in the U.S. as long as there is a UPS store nearby. :)

We would like to avoid long cold winters (been there, done that, yuck!). Some snow is ok, if everything else fits. Lots of sunshine is a good thing – we are both much more productive when the sun is out!

Love greenery, love mountains, love water (whether it be ocean or lake or river). We would like to live in a more dog friendly area – or at least somewhere we can bring our dogs on nice hikes.

Housewise, we would like to be able to get a 3+BR, 2+BA home on 0.5+acres with a 2 car garage for under $250k for sure, preferably more in the $150-200k range. We don’t want to live in a big city, but neither do we want to live in a small town. Somewhere in the middle would be great. Being near a Whole Foods or equivalent store would be awesome (within 30 minutes, nearest one now is over 2.5hrs).

Things we enjoy doing: going on beautiful rides, eating out, walking on the beach, hikes with our dogs.

Having grown up in the northeast, we are used to a little more fast pace than we are currently experiencing in the southeast. We haven’t written off the southeast completely… but almost. Greenville, SC has come up several times in taking quizzes online and we have visited the area and it’s ok. Not perfect, but doable.

We’ve sort of been thinking of Colorado, but aren’t sure about the weather and housing prices. We loved the northeast – except for the long cold winters. We really have no idea where to go… any suggestions would be helpful. :)
I should add: we are not hugely into organic food or anything like that, I just love the shopping atmosphere at Whole Foods – everything is so fresh and nice! I always feel more inspired to cook and eat healthier when shopping there. :)

In things we love doing, I forgot to mention that we LOVE cool coffee shops. In Quebec, our favorite place was a coffee shop called Caffuccinos – had awesome drinks & amazing desserts! That place is pretty high up on the list of things we miss the most from up north!

AustinBusinessConsulting answers:

Middle Tennessee (the part of the state where Nashville is) is at the foothills of the Appalachian mountains so it’s hilly and forested. The metro Nashville area has 2 Whole Foods, a few excellent small organic stores, a pretty thriving farmers market culture, and it’s cold (Southern cold) from around November-March. Moving 30 min.- 1 hour outside of the city will get you plenty of farm land close to major interstates.

You might also look around Austin, Texas, which is the headquarters for liberal living in Texas. It’s hot there, but it really is beautiful.
Lots of Whole Foods, great music, and if you leave the city and suburbs you can still afford a house. A great international airport, too.

Most of the major cities in the South have had a huge influx of Northern/Western city people, so things move faster than if you went into the Deep South. But it is a change of pace that takes some getting used to.

Maria asks…

I need hair experts!?

Where can I get hair cream and dry shampoo. I want the highest quality and best brands. How much are they? Where can I get some hair gel. I also want the highest quality and best brands. How much is it also. Can I use all those supplies to make my hair look like this?

BTW, if you were wondering, I am a guy.

AustinBusinessConsulting answers:

It is doubtful that guy uses any of those products. Hair cream usually refers to products like brylcreem and wildroot and is used for neatly groomed and even wet look styles like guys wore up till the early to mid 1960′s before President Kennedy and then the Beachboys and Beatles ushered in the dry look as the standard. Hair gel makes hair hard and stiff and it will not look like that. If a guy’s hair is straight and he wants the sort of windblown somewhat wavy surfer look that guy has, he needs to dry his hair with a towel till damp and then scrunch it while continuing to dry it with a blow dryer that has a heat diffuser attached. A mousse can also be added but like gel, a mousse sets up a stiff hold. Some guys spray their hair with a surf spray/sea salt spray to achieve that look. My guess is that is probably what that guy used. To achieve that look, try using a surf spray, also marketed as sea slat spray, and get a heat diffuser to put on the end of a blow dryer. There are beach styles that involve less effort and fewer to no bad hair days….
Pg 27, two sixteen year old guys with old school surfer/beach haircuts; pg 26, same guys with regular haircuts groomed with brylcreem:

regular haircut:


ivy league(long crew cut):
worn spiked up….


worn down and brushed to the side…


medium crew cut:

short crew cut:

Some barbers consider that all crew cuts should have a flat top, so it is best to not rely on words alone for even a widely recognized style like a crew cut.
Flat top crew cut:

Search the internet for images of football(soccer)star Lukas Podolski for examples of ivy league and crew cut styles. A minute dab of control wax aka butch wax will keep the hair looking well groomed at crew cut and ivy league length. A butch comb also helps with grooming the short pomp styles- the small, flat, plastic, oval, pocket brushes that one finger fits through and barbers sell for about a dollar. A boar bristle military brush is usually available for a few dollars and while too large for a guy to carry in his pocket, is nice to have at home.
Surfer/Beach Hair…….

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Marketing Strategy Consultants

Susan asks…

Do you have recommendation for a marketing firm or consultant to assist me in developing a marketing strategy?

I am starting up a new healthcare service company and need to develop a thoughtful and executable marketing strategy.

AustinBusinessConsulting answers:

I would say to go with these guys if it’s within your budget. They do marketing strategy for health care. Http://

Lizzie asks…

develop a marketing strategy how you would conduct environmental scanning and annalysis what is ment by market?

develop a marketing strategy how you would conduct environmental scanning and annalysis what is ment by marketing concept? What departments of a company does it affect?

Its just a question i wanna know before i go into class or get the jist of it. thankyou for help

AustinBusinessConsulting answers:

The environmental scanning and analysis is the most required & necessary step before developing any business strategy because it make you aware about current market situations.
There are so many techniques for environmental scanning and analysis like SWOT analysis, PEST analysis etc…

Environmental scanning is the process that seeks information about events and relationships in a firm’s environment, the knowledge of which help top management chart the firm’s future. Environmental scanning entails partitioning the external environment into sectors, namely, cultural, economic, political, technological, and so on. This helps establish a firm’s information needs within those sectors. Data are usually collected by monitoring and forecasting changes in important variables identified in each sector. That data are then transformed into consolidated information, which is integrated into the firm’s strategic planning process (Georgantzas and Acar 1995). Environmental scanning is used to gather information from the environment. These information are used to craft a strategic plan that will help an organization achieve and maintain a competitive advantage. In order to be successful, the organization must align its strategies and plans with the information gathered from the environmental scanning.

SWOT Analysis
SWOT (Strengths and Weaknesses, and Opportunities and Threats) is a basic analytical tool in management that has become popular in recent years. SWOT analysis is often used by strategic planners and top management in developing competitive strategies. It is typically used to decide corporate strategies and to make product or market level analyses (Reddy 1994). SWOT is a widely used thinking framework for identifying Strengths, Weaknesses, Opportunities and Threats. It enables key factors to be visibly recorded as a high-level summary of a business. SWOT analysis is a summary that is simple but powerful. The technique is commonly used by consultants to document the key factors arising from the review of a particular project or business. The use of SWOT enables an assessment to be made of the overall internal state of a business and the direction in which it is heading, through looking at its Strengths and Weaknesses. It also enables a judgment to be made about aspects of the external business environment, which can affect the performance of the business, through looking at the Opportunities and Threats it faces in the wider world (Elkin 1998). The SWOT analysis on its own is not a strategy. It is merely a tool that helps an organization in making informed decisions. The SWOT analysis is primarily used to identify and analyze the strengths and weaknesses of the organization, as well as the opportunities and threats exposed by the information collected of the external environment. The SWOT analysis is a simple yet useful tool in analyzing both the internal and external environments of the organization. SWOT analysis together with other tools such as PEST (Political, Economic, Social, and Technological) analysis can be used as a basis for the analysis of business and environmental factors.

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Small Business Marketing Austin Texas

Nancy asks…

Business Research?

I currently am a junior at a small university in East Texas. I have a few research oriented courses under my belt and plan on attending either UNT, UT Arlington, or an Ivy League for my doctoral studies.

My question is, are areas such as career/personality or entrepreneurship viable topics for a professor of business? For my short college career, I’ve been really interesting in the individual and career selection and start up businesses/private businesses.

Organizational Behavior is a tertiary topic I also would like to dabble in. I’ve read various journals and abstracts on topics in Finance, Accounting, Economics, and Marketing, and they really bore me. I just don’t have an interest in those fields. Another field that bores me is Operations Management.

Is there any hope to find something interesting with the topics I have listed above?

AustinBusinessConsulting answers:

I’m a little worried that you are bored by so many topics; most people who go on successfully for doctorates have a strong intellectual curiosity, which would mean that even if this is not your area of expertise, you shouldn’t discredit it. Furthermore, all of these areas are related to one another. I’m in marketing, but got the idea for my dissertation from an organizational behavior class that I took.

Okay, having said that, there is no such thing as a doctorate in business which has as its focus career/personality. Within either management/human resources or marketing, you can do work that includes these topics, but it is not a discipline on its own. Entrepreneurship is a little different. It is a discipline which has been emerging for the past decade as one offered in business schools, but I don’t think that any of the better schools actually offer doctorates specifically in that field – you generally get your doctorate in something like Finance and do your research in entrepreneurial organizations to get a position in that area.

The one area you mention in which programs exist is Organizational Behavior. There are a number of schools which offer this, but make sure you go to a good one, because this field is NOT one which is hurting for faculty, so getting a job may be more difficult than in most business fields.

I also want to caution you to look more broadly into your choice of schools for a doctorate, as it can make a huge difference. UNT is generally considered, at least in my field, to be one of the weaker doctoral programs – they seem to put out a lot of candidates, but many of them don’t seem to be very well-trained. UT Arlington doesn’t seem to have a program in my field at all, so I can’t comment on how they are perceived in other areas. As far as the Ivies are concerned a few, like Columbia and Wharton are highly-respected; for others, many other schools, including state schools like the University of Michigan (or, in fact, UT Dallas and UT Austin), have stronger reputations than the Ivies do. Don’t get trapped into looking at the university’s overall reputation and assuming that means a strong Ph.D. Program in business.

Mary asks…

Is a Marketing job available in any U.S. state or are some areas much better for Marketing than others?

I’m about to graduate in a year and I want to start planning where I’m going to live. I currently live on the east cost but I don’t really want to stay on the east coast. I want to go into the field of Marketing and open up my own little cafe business as well. I have been wanting this since I was a senior in high school!

I know I have to go “where the job is available” but that doesn’t mean I can’t have a general state or area. So suggestions please? Where should I go for a marketing job and a small cafe business?

AustinBusinessConsulting answers:

Well, your interests are quite different from one another, but I live in New York City and there are tons of jobs out here, however the demand for jobs is also really high. At times, thousands of people apply for any given position, especially in the field of Business. Texas is probably the state with the best economy and cities like Austin, San Antonio, etc are constantly growing, but it may be hard for someone from the East Coast to live in the MidWest or the South. If i were you, I would try to figure out what areas I like the best and then based on that start my job search.

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Small Business Consultant Blog

David asks…

How to earn money for a school trip to France?

I need about 4000 dollars for my school trip to France next year… I figure without doing anything new I can get about 1,700, but obviously, that is way far off!!! So I need help on how to get money for this, any suggestions will be appreciated!!! Thanks in advance!!!!

AustinBusinessConsulting answers:

1. Social Marketing Consultant

Many companies are looking for qualified candidates who know the ins and outs of Myspace, Facebook, and Twitter to help them with their social marketing efforts. Head over to a job site and search for “social media”.
2. Sell stuff on eBay for Mom and Dad

I am sure mom and dad wouldn’t mind sharing some of the profits, if you sell some of their clutter for them.
3. Freelance Write

As they say on the web “content is king” and everyone wants it. I have a consistent flow of passive income coming in from writing I did for Hubpages and Squidoo. For more on this method, check out How to make money with Hubpages.
4. Have a Garage Sale

If it is something too large or that won’t sell on eBay for some reason, you can always have an old-fashioned garage sale!
5. Write product reviews

There are places like Ciao,, that pay for product reviews – if you have an opinion and can type quickly this might be a good option.
6. Find odd-jobs on Craigslist

Some of these might be landscaping work, or similar odd-jobs, but it might be great summer time work for teens!
7. Bank Account Opening Bonuses

Not sustainable, but it’s a quick way to make money. ING Direct offers $25 for opening a new account and Virtual Bank offers $20. If you do some digging you will probably find many other companies offering cash bonuses for opening accounts.
8. Take online surveys

I am not particularly fond of the whole online survey thing since I had a bad experience using CashCrate. But there are lots of online survey sites and people who do it successfully.
9. Sell Digital Photos

Making money as a photographer has become easier over the last decade. There are now lots of sites looking to buy digital photos:,,,, As with most things, the better you are the more money you will make, but it can be nice passive income if you work at it.
10. Sell Plasma

Not sure how old you have to be, nor how painful it is, but if you are into that sort of thing, it can be a way to make some quick money.
11. Take part in medical studies

I have a couple friends who have almost done this exclusively as a job. They were basically human guinea pigs, but they made some decent cash at it. Sometimes they would have be at the medical facility for up to 48 hours, so your schedule may need to be flexible. Just google “medical studies” + your city to find some options.
12. Tutor or give lessons
Are you great at math, science, or kicking a field goal? Why not advertise your skills to those a few years younger than you? Many parents are willing to pay a teenager to tutor their child in an area that needs development.
13. Create Myspace backgrounds

or Twitter backgrounds for that matter. Just set up a simple site to sell your work, get a paypal “buy it now link” and you are off and running.
Jobs requiring a uniquely mature teenager
14. Create Websites

I can’t tell you how many people have asked me to build them a website since I started this one a couple years ago. I am not seeking the work and people are requesting it, so if you do a little legwork and pursue small business owners, there is a lot of work available. Teens might be great for this, because they would be able to work for less than some higher end website developers, which would put them in the price range that it seems many small businesses are looking to spend.
15. Blogging

Two years ago I wasn’t sure if there was money to be made blogging, but I have since found it to work out nicely. It isn’t something that will provide much income quickly, but if you stick at it, it can. I wrote extensively about how to make money from a blog a few months ago.
16. Design Web Logos

If you have a flair for design, it may be worth trying to make some money designing logos for small business or blogs.
17. Freebie Trading

I first heard about freebie trading from Leslie who made $28K last year doing it part time. It seems like it requires a certain kind of person, but clearly there is potential as a decent money maker.
18. Become a Census Taker

The 2010 census is underway and there may still be census taker positions available in your area. You may need to be 18 to apply.
19. Sell articles

Following in that same vein, you can sell articles you write at places like,,
20. Start an eBay business

Last year I experimented with starting an eBay business to see if there was money to be made. While profit margins can be thin selling on eBay, there are over a million eBay businesses, so it is a viable option.
21. Sell widgets on

If you create any kind of arts or crafts or widgets of any sort, you should check out
22. Join a Focus Group

There are likely to be focus groups in your area that may be willing to hire teens. Google “focus group” and your city to get started.

Lisa asks…

Starting a small cleaning business, Help with choosing the legal structure?

It will just be me cleaning offices, and I don’t know which is better to choose. I will not be hiring people, at least not now. I would like to know which one is better when it comes to taxes? I did do a lot of research on them but still don’t know which to pick. Sole Proprietorship or an LLC, also I live in NY.

AustinBusinessConsulting answers:

Check out the “business” section on NYC.GOV, where they provide tons of free resources and legal advice to entrepreneurs. I think you should check out their articles and speak to a consultant at one of the agencies they work with, before starting your business. You can get tons of FREE resources for your business, don’t pay for anything starting out. I also have a lot of tips on free business resources on my blog:

Good luck!

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Hiring In Austin Tx

John asks…

Do anyone know of any over the road driving companies that are hiring down by Austin Tx? ?

I’ve tried most of the big companies but they all got hiring freezes, in my area( Austin Tx) Thanks for your info.

AustinBusinessConsulting answers:

Swift will hire anybody

Ruth asks…

what’s the average cost of hiring a contractor to paint your garage door?

i’m not sure if it differs by the state, but i’m in austin, tx.

AustinBusinessConsulting answers:

I would imagine it would be by the sq foot being covered and whether its enamel or water base– you may be able to purchase a spray gun and do it yourself for the cost of a contractor if you feel the gumption

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International Business Consulting Firms San Francisco

Sandy asks…

Bayarea startup salary and percentage stock equity?

Hi, I am a hardware design engineer in silicon valley with 10 yrs experience of IC design. Recently trying to switch job and wanna try out startups in bay area.

How much salary and % equity of startup company should I expect as stock options (lets say joining after first round of funding) ?

Switching job after a long time so just wanted to make sure that I don’t accept any low ball offer and am properly informed on offer letter figures before joining.

didn’t get any response so asking for help again :)

AustinBusinessConsulting answers:

This is a very specialized area and not many at this site can help.

Very few of us live in the Bay area, and likely none of us are microcircuit engineers. I’m about as close as you’ll get. I’m an electronics technician (several levels of education below you, obviously) and I’m also a CPA candidate, so the business side will not frighten me.

Your best bet, really, is to approach companies in the San Francisco area and just ask what packages they offer. You’re qualified, really, to start your own company, as well. All you really need is to find an interest, get the equipment you need, find some distributors or marketing companies to partner with, and you get 100% equity.

You’re on the cutting edge of innovation already, why not put it to work for you?

(There are also other areas in the country with booming integrated circuit industries, such as in Idaho right now. Nothing compared to Silicon Valley, obviously, but you’re LEAVING the valley, so you’re moving out of the hub anyway.)

If you need financial advising, wander into a Deloitte and Touche office. They are the largest CPA firm in the world and they handle the auditing of most international software and hardware manufacturers and suppliers, and they have consulting services.

Sharon asks…

Essentials for Public Relations?

I want to know everything I need to get a good job in PR for a corporate company.

I’m currently a Psychology major, but it has become apparent for me that it’s not going to give me the money I want.
I’m very interested in PR, after talking to my cousin who is in PR for Royal Caribbean.

So what will I need to do now in college? (I’m a freshman)
What exactly should I change my major to?
Should I minor in anything? I’m very apprehensive about minoring in Business, since I’m absolutely terribly at math.
How can I get a good internship in two years and where should I apply?
What specific type of PR is there? Events, financial…?

Thank you so much for the help!

AustinBusinessConsulting answers:


Public relations specialists held about 275,200 jobs in 2008. They are concentrated in service-providing industries, such as advertising and related services; healthcare and social assistance; educational services; and government. Others work for communications firms, financial institutions, and government agencies.

Public relations specialists are concentrated in large cities, where press services and other communications facilities are readily available and where many businesses and trade associations have their headquarters. Many public relations consulting firms, for example, are in New York, Los Angeles, San Francisco, Chicago, and Washington, D.C. There is a trend, however, toward public relations jobs to be dispersed throughout the Nation, closer to clients.

Median annual wages for salaried public relations specialists were $51,280 in May 2008. The middle 50 percent earned between $38,400 and $71,670; the lowest 10 percent earned less than $30,140, and the top 10 percent earned more than $97,910. Median annual wages in the industries employing the largest numbers of public relations specialists in May 2008 were:

Management of companies and enterprises $55,530
Business, professional, labor, political, and similar organizations 55,460
Advertising, public relations and related services 55,290
Local government 51,340
Colleges, universities, and professional schools 46,660

Training, Other Qualifications, and Advancement About this section

A bachelor’s degree in a communications-related field combined with public relations experience is excellent preparation for a person interested in public relations work.

Education and training. Many entry-level public relations specialists have a college degree in public relations, journalism, marketing, or communications. Some firms seek college graduates who have worked in electronic or print journalism. Other employers seek applicants with demonstrated communication skills and training or experience in a field related to the firm’s business—information technology, healthcare, science, engineering, sales, or finance, for example.

Many colleges and universities offer bachelor’s and postsecondary programs leading to a degree in public relations, usually in a journalism or communications department. In addition, many other colleges offer courses in this field. Courses in advertising, business administration, finance, political science, psychology, sociology, and creative writing also are helpful. Specialties may be offered in public relations for business, government, and nonprofit organizations.

Internships in public relations provide students with valuable experience and training and are the best route to finding entry-level employment. Membership in local chapters of the Public Relations Student Society of America (affiliated with the Public Relations Society of America) or in student chapters of the International Association of Business Communicators provides an opportunity for students to exchange views with public relations specialists and to make professional contacts that may help them to find a full-time job after graduation.

Some organizations, particularly those with large public relations staffs, have formal training programs for new employees. In smaller organizations, new employees work under the guidance of experienced staff members. Entry-level workers often maintain files of material about company activities, skim newspapers and magazines for appropriate articles to clip, and assemble information for speeches and pamphlets. New workers also may answer calls from the press and the public, prepare invitation lists and details for press conferences, or escort visitors and clients. After gaining experience, they write news releases, speeches, and articles for publication or plan and carry out public relations programs. Public relations specialists in smaller firms usually get well-rounded experience, whereas those in larger firms become more specialized.

Other qualifications. In addition to the ability to communicate thoughts clearly and simply, public relations specialists must show creativity, initiative, and good judgment. Decision-making, problem-solving, and research skills also are important. People who choose public relations as a career should have an outgoing personality, self-confidence, an understanding of human psychology, and an enthusiasm for motivating people. They should be assertive but able to participate as part of a team and be open to new ideas.

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Austin Business Consulting

Sandra asks…

Minor: business vs statistics?

I’m majoring in international relations concentrating on political economics. I’m a junior already but I’ve just started in my major this semester. I’m fretting about getting my first job. I’v been thinking that I wanna work for a business and wondering if a business minor or a statistics minor would make me more competitive in landing my first job. A good job would be consulting.

I just notice that a lot of the jobs in the job posts look favorably to quantitative skills. I’m wondering if statistics/scientific computation would be helpful to me. On the other hand, I’m wondering if business foundations would give me better prospects. I go to UT Austin and McCombs Business School has a solid reputation. Or do you think that I should just blow all these off since I’m already spending too much time in school? (projected ~6 yrs total) I’m just worried that I (especially w/ my low GPA) will not be a competitive applicant w/ just an IR major even for a good internship …

AustinBusinessConsulting answers:

Business, there are so many more options.

Carol asks…

Grace Marketing?

Has anyone ever heard of this company? I just graduated with a Bachelor’s in Business and am trying to decide what kind of job is right for me. Any information would be great! Thanks!

AustinBusinessConsulting answers:

I believe I found them online at

:::Mission Statement:::
Grace Marketing & Consulting is a direct marketing company. Our mission is to utilize our most valuable assets, our team members, to exceed the expectations of our clients. Combining professional demeanor and extreme dedication will ensure successful marketing and advertising campaigns, and most importantly, opportunity for growth both personally and professionally.

With the momentum we have from the success of our campaigns we look forward to growing our client portfolio and expanding further in the Austin market.

Grace Marketing owes much of its success to its progressive approach to people. Every successful candidate that is accepted starts at the same level because our philosophy emphasizes the importance of leading by example and of having a full understanding of the entire business model. All candidates must be willing to cross train in all aspects of our business model starting at the entry-level. In addition, all candidates must possess 3 critical attributes: above average people skills, student mentality and intensity for success.

Good luck on your job search!

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Austin Business Consulting

John asks…

Should cars be emission tested daily?

Surely we could all take an hour or 2 out of our day to help our children? This might solve the problem.

AustinBusinessConsulting answers:

I’m sure you would definitely be in the minority as for as testing your vehicle daily when it comes to emissions. I do agree that everybody should do their part when it comes to keeping the air we breathe clean. There are many cities in our country that are not required to do annual emissions test at all. I think that emissions test should be required nationally without exception. I got involved about a year ago with a device that dramatically reduces emissions, before that I worked in the automotive industry so I understand how the automotive industry works. It’s my opinion that emissions failure is big business for the automotive industry and the devices that are available to keep vehicles clean are not used and made more readily available for that reason. My 18 year old son owns a 1990 Mazda RX7 that failed the emissions test in Austin Texas. After consulting with our mechanic it was determined that a tune up was in order to help the car pass the emissions test. After having the tune up completed we took it back expecting the car to pass the test, it failed again. We took it back to him again and he informed us that it would most likely require a new catalytic converter or we could try a new device that he was testing called the ECO-System fuel vapor enhancer. The ECO System was much cheaper so I elected it, after installing it the car passed with flying colors. Check it out at

William asks…

the actual decision of the case and the legal issues?


CITATION: Ehsman v Nutectime International [2006] NSWSC 887


FILE NUMBER(S): 5189/05

HEARING DATE{S): 31 March 2006

DECISION DATE: 01/09/2006

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)



R Harper SC (P/A)
M J Cohen (D1-4/R1-4)

McDonald Johnson (P/A)
Sparke Helmore (D1-4, R1-4)

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

Corporations Act 2001 (Cth) ss 180-184, 232, 236-242

See under heading “Conclusions”





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.

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.

AustinBusinessConsulting answers:

The Plainitff was granted leave to commence both sets of proceedings, provided she agree to indemnify the 5th Defendant for any costs of the derivative action; she does not have to indemnify the 5th Defendant for costs of her personal action. The Plaintiff must file the proceedings on a date to be fixed. The 1st-4th Defendants have to pay the Plaintiff’s costs of this application. On all othe rmatters, the Plaintiff’s application is dismissed. The claims are to be referred to a mediator. All parties may approach the judge on the issue of costs if they wish to make further submissions on that point.
The issue was whether the Plaintiff should be granted leave to commence proceedings personally and on behalf of the 5th Defendant, against the 1st-4th Defendants.
If you don’t actually understand the Corporations Act and its application to this case, you need to concentrate more during your law classes.

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Austin Business Consulting

Nancy asks…

Is getting a Finance degree a good idea?

I’m going to college soon and trying to find the right major for me. I want to become a Management Consultant when I grow up. However, from what I’ve heard, a bachelor’s in management is pretty useless, so I was thinking about getting my bachelor’s in Finance (to have a more stable, reliable education in case I can’t get a job in consulting) and then pursue my Masters in Consulting Management.
I’ve also heard that it’s practically impossible to go into consulting at a big firm unless you go to a top school. But I will be attending UT Austin which has one of the best business schools in the country. I hope to get accepted into their Business Honors program. I already have a lot of the skills needed to go into consulting; I’m a good communicator, work well in teams, and have great analytical skills.
So finally, am I on the right track? Should I go ahead with my Bachelor’s in Finance and Masters in Consulting Management at UT? Or should I go with a degree like Statistics and then pursue a masters in Consulting Management?
In the end, I just really want to go into consulting. I’d appreciate any opinions and advice, but please no negativity.

AustinBusinessConsulting answers:

Yes. You are on the right track.

My aunt only got her bachelors in Finance from csulb and makes over 110,000 working for The City of L.A.

My uncle got his bachelors in poly sci from Berkeley and then his company paid for him to go back to school to get his masters in business mgmt. I know its not the same thing, but its a little similar. Your might even be able to work for a bit when you graduate then find a company to send you back and pay for your masters.

You should join a lot of clubs, organizations, and student chapters all four years at your school. You will be able to get a lot of networking done by being in clubs as well as get internships through the club. You said you want to work for the big companies, well you can network to do that.

I am personally not sure which is better. Finance or stats. Its not my area of expertise but both sound like smart options.

Your plan sounds great to me

John asks…

Opening an auto shop and sell car in dallas texas?

hey i wanna know what to do…im moving to texas and im wanna open a auto repair shop plus sell used car
-what are my first steps
-where do i go to ask
-and what kind of licenses do i need to get first

Thank You

im a first time running a shop and need help how to open and run a shop


AustinBusinessConsulting answers:


Write a business plan. A thorough business plan needs to include a description of the business, marketing, finances, and management. Dallas is a sprawling city with many businesses that will be in competition with you, so your business plan should include your strategies for competing and making your business stand out. Search for businesses similar to yours and study their successes and failures when building your business model.


Consult a Dallas attorney and accountant. Though Dallas enjoys liberal business laws, it is likely there are still legal and tax factors in forming your business that you are not aware of. Working with experienced professionals who know the business landscape can help you solve potential problems before they occur.


Choose the legal form of your business and file with the Texas Secretary of State. You can choose either a corporation, general partnership, sole proprietorship, limited partnership, or limited liability company. Your attorney and accountant can take you through the legal and tax implications that come with each formation option and help you make a choice. You can mail the forms to the office of the Texas Secretary of State or file in person for a faster turnaround. Dallas is nearly 200 miles from Austin, where in-person filing must occur.


Contact the Internal Revenue Service and apply for a Federal Employer Identification Number (FEIN). Registering for federal taxes is a requirement of all U.S. Businesses, and must be done before you can begin conducting business in Dallas. The process may be completed online (see Resources below).


Register with the state of Texas for taxes. Like all other Texas businesses, your Dallas company must register with the state for tax purposes. The application may be completed online (see References below).


Obtain Dallas licenses and permits. Most businesses within Dallas city limits are required to have a business license from the city before they operate. To inquire about the license and permit requirements of your business, contact the Dallas Permit Center at 214-948-4372.

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It is so pleasant to work with experts. cccam server in uk to find out more regarding cccam server. rentvest made a real revolution in the industry. Joyetech marka elektronik sigaralar için elektronik sigara joyetech sitesine bakın