Einde inhoudsopgave
Exit remedies for minority shareholders in close companies (IVOR nr. 82) 2011/4.4.4.5
4.4.4.5 Actual or proposed act
dr. Q. Wang, datum 02-05-2011
- Datum
02-05-2011
- Auteur
dr. Q. Wang
- JCDI
JCDI:ADS405255:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
Hough v. Hardcastle, [2006] B.C.C. 73.
Ibid.
Re Kneyon Swansee Ltd, [1987], BCLC 514.
Ibid., see also Jesner v. Jarrad Properties Ltd, [1993] S. C. 34, [1994] S. L. T. 83, [1992] B. C.C. 807 (It was common ground that the three essenbal elements of a quasi-partnership had been present, namely mutual trust, an understanding that some but not all of the members should participate in management, and restrictions on the transfer of shares (Ebrahimi v. Westbourne Galleries Ltd [1973] A.C. 360, applied). It was apparent from the evidence that there had been a loss of trust; there were similafities with the facts in Ebrahimi. Moreover, the defenders accepted that D genuinely feared that a continuing relationship would involve constant resort to their legal advisers by both sides, and in evidence I had agreed that he would be prepared to accept a continuing interdict; it was a curious form of mutual confidence which required to be supported by a permanent interdict. D's fears were justified. Accordingly, a winding up order was necessary.)
Actual acts can be acts that happened in the past as well as acts in process. While there is no explicit time limit in s. 994 on how far this remedy can go back to a previous act, relief considered under this section is always subject to the discretion of the court.1 In Hough, the court dismissed the petition because it did not contain any allegation that was likely to be successful at trial, but it also stated that a could should not countenance a petition where the complaint was presented nearly 10 years after the event took place.2
Within this remedy, proposed acts and anticipated unfairly prejudicial acts can qualify for relief. It cannot protect a defendant if he argues that the proposed act is capable of being unfairly prejudicial but is not really so sine it still has not taken place, such as a resolution waiting to be passed in the shareholder meeting.3 It is immaterial that there is no immediate threat to the petitioner at the date of the petition onder s. 994; it is sufficient that a prejudicial act has been proposed or that there has been prejudicial conduct of the company in the past.4