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beyond resignation is an understanding that if not extended a director
could with impunity exploit opportunities for himself after merely
having resigned at the expense of the company he was a director
at. This implies though that the courts would not deem this to apply
to a situation where a former director acquired an opportunity after
his resignation or where the opportunity was not an opportunity that
could be classified as belonging to his previous company.

The point remains, that resignation from the position of director does
not, in itself, breach the fiduciary relationship between the resigning
director and the company. It is the reasons behind the resignation
which may result in the fiduciary duties being considered to have been Commercial
extended post-resignation and consequently breached by certain
conduct. Some of such reasons could include:

• Where a director resigns in order to personally benefit from a
maturing corporate opportunity that the company was
actively pursuing.
• Where the director acquires the opportunity in his/her
personal capacity.
• Where the resignation of the director is influenced by a desire
to acquire the corporate opportunity for his/her own benefit.
• Where the position of the director in the company was the
cause which led his/her to the opportunity which he/she
acquired after his/her resignation.
Notwithstanding the above, our courts have also held that the setting
up of a competing business after resignation is not in itself unlawful. It
is only when a resigning director takes advantage of his position in the
company and divests interests or opportunities of the company to the
new competing business which he is desirous to start, that things get
tricky and a potential breach of fiduciary duty must be considered.
In your case, it does not sound like you are contractually restricted from
setting up a competing business. Additionally, as stated, the setting up
of a competing business is also not of itself unlawful. Where it becomes
more complex is whether you would be taking advantaged of your
current position as a director to create opportunities for your new
business. It is advisable to obtain legal assistance to help you carefully
navigate the setting up of your competing business to ensure that
no fiduciary duty is breached and to ensure that you start your new
business on a good footing.

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