Category: Company

Small And Others v Attwood And Others; 1 Nov 1832

References: , [1832] EngR 776, (1831-1832) You 407, (1832) 159 ER 1051
Links: Commonlii
Where a contract is entered into for the purchase of an estate by certain persons in their own names, but in fact on their own account, and also as agents for other parties, a bill to rescind the contract may be filed in the names of the agents and the other parties. Where the partners in a Company or partnership are numerous, a bill may be filed by some of the partners on behalf of themselves and the other partners to rescind the contract. In a case where it is manifest, from the circumstances, and the evidence, that it is for the benefit of all the partners that the contract should be rescinded. A contract for the sale of iron mines was rescinded on the ground of fraudulent misrepresentations of the value of the estate, and of the prices of ironstone and other materials, and of the quantities of materials required for the manufacture of iron, notwithstanding possession had been taken, the mines worked, and other acts of ownership had been exercised, and notwithstanding some acts in confirmation of the contract.
This case cites:

  • See Also – Attwood -v- Small And Others (Commonlii, [1827] EngR 729, (1827) 7 B & C 390, (1827) 108 ER 768 (B))
    . .
  • See Also – Attwood -v- Small And Others (Commonlii, [1827] EngR 659, (1827) 3 Car & P 208, (1827) 172 ER 389)
    An agreement, contained by itself less than 1080 words, but there was in it a stipulation that a clause in a previous agreement, which was duly stamped, should be taken as part of the new agreement.
    Held: That although with the clause referred . .
  • See Also – Attwood -v- Small (Commonlii, [1827] EngR 853, (1827) 2 Y & J 72, (1827) 148 ER 837 (A))
    Where a great number of exceptions were taken to an answer, and shortly before the argument the defendant submitted to answer them, in consequence of which, it was urged, that the answer was clearly evasive, and that the ordinary costs were greatly . .
  • See Also – Small And Others -v- Attwood And Others (Commonlii, [1828] EngR 545, (1828) 2 Y & J 512, (1828) 148 ER 1021 (B))
    Amendment of pleadings . .

This case is cited by:

  • Cited – Attwood -v- Small and Others HL (Bailii, [1838] UKHL J14, 7 ER 684, Bailii, [1838] UKHL J60)
    The plaintiffs had bought land including iron mines from the defendants. They sought and were given explicit re-assurances about the mine’s capacity, but these proved false after the plaintiffs had begun to work the mine themselves.
    Held: . .
  • See Also – Attwood -v- Small etc (, Commonlii, [1838] EngR 515, (1835-40) 6 Cl & Fin 232, (1838) 7 ER 684)
    . .
  • See Also – Attwood -v- Small (, Commonlii, [1840] EngR 125, (1840) 1 Man & G 279, (1840) 133 ER 340)
    . .

In The Matter Of The British Sugar Refining Company And In The Matter Of The Joint Stock Companies Act, 1856; 18 Feb 1857

References: [1857] EngR 280, (1857) 3 K & J 408, (1857) 69 ER 1168
Links: Commonlii
The 25th section of the Joint Stock Companies Act, 1856 (19 & 20 Vict, c. 47), enabling a shareholder whose name is without sufficient cause omitted to be entered in the company’s register to apply by motion for an order that the register may be rectified was not meant to give to every shareholder ex debito justiciae this summary remedy. The object of that section was to enable the Court to avoid the inconvenience and injustice which occasionally arise from capricious or frivolous objections on the part of companies to complete the registration of their shareholders. It was not intended by the Act that, in the event of there being a serious question to be tried, the matter should be disposed of summarily.
A resolution for a call may be good, though resolutions for calls for smaller sums had been previously negatived at the same meeting.
Whether, provided shareholders have had notice by means of circulars of a meeting for the purpose of making calls, a shareholder who has attended such meeting can object to calls made thereat, on the mere ground that the company omitted to advertise the meeting in any newspaper, as required by their deed of settlement – quaere.
But where a shareholder, having so attended at such meeting, had allowed others to pay their calls, and after lying by for six months assigned his shares : Held, that his assignee could not, by motion under the 25th section of the Act, apply to have his name entered on the register, so long as the calls remained unpaid; and his motion was dismissed with costs.
Statutes: Joint Stock Companies Act 1856 25

The West Cornwall Railway Company v Mowatt; 4 Jun 1850

References: [1850] EngR 623, (1850) 15 QB 521, (1850) 117 ER 556
Links: Commonlii
Debt for calls on railway shares : plea, that defendant was not shareholder : issue thereon. A special verdict found that, by agreement of 21st July 1847, between the directors of the railway company and defendant, he agreed to take all the unappropriated shares in the compariy, being 4935, and to pay 4l. per share on 15th August then next, and, meanwhile, to deposit securities to the amount of 20,000l. ; and the company agreed that, ‘so soon as 15l. per share shall have been paid on the 4935 shares, and that the company is in a position legally to do so, they shall deliver’ to defendant mortgage debentures of the company payable three years after date, and bearing 5 per cent. interest, for 24,675l, being at the rate of 5l. per share. At a meeting of the shareholders, on 10th August 1847, convened for the purpose, the agreement was confirmed by the shareholders, and the shares were registered to defendant with his consent. The call, on which the action was brought, was made in December 1847. Held, that the production of the register made a prima facie case that defendant was a shareholder, which case was not rebutted by any thing in the other evidence; that, even if the stipulation to deliver mortgage debentures in consideration of the shares taken were illegal, this would be no defence, as the action was not on the agreement, and the agreement had been, in part, executed by the transfer of the shares, which transfer took effect in praesenti. But that the stipulation to deliver such debentures, as soon as the company should be in a position legally to do so, was not illegal.

The Electric Telegraph Company Of Ireland Cookney’s Case; 19 Jul 1858

References: [1858] EngR 1000, (1858) 26 Beav 6, (1858) 53 ER 798
Links: Commonlii
A. gave to B. a cheque for £50 to obtain fifty shares in a company. B applied for fifty shares, and they were allotted to A, and his name was entered in the books, &c., as a shareholder. It did not appear that anything had been done further than that A. had refused to sign the deed. Held, that not having repudiated the shares, he was a contributory Held, also, that a change iri the company’s books in the the number of the shares first allotted to B. did not relieve him from his liability.

In The Matter Of The Electric Telegraph Company Of Ireland, And In The Matter Of The Joint Stock Companies Winding-Up Acts, 1848 And 1849 Cookney’s Case; 3 Nov 1858

References: [1858] EngR 1072, (1858) 3 De G & J 170, (1858) 44 ER 1233
Links: Commonlii
Shares in a company which was in the course of formation were allotted to an applicant whose application was merely a verbal request to a director to obtain the shares, but who subsequently paid the deposit. On being requested to execute the deed af settlement the allottee refused to do so. The company afterwards obtained an Act of Parliament, and in the register of shareholders made under the Act the name of the allottee, omitting however his first Christian name, was inserted in the register as a shareholder in respect of the same number of shares as had been allotted to him, but which were differently numbered, numbers corresponding to those on the allotment being ascribed in the new register to another shareholder. Held, that no written agreement to take shares was necessary, but that the Appellant had become liable as a contributory, and was not relieved from his liability either by his refusal to execute the deed, by the change in the numbers of the shares ascribed to him, or by the mistake in his name.

Baring v Noble; 9 Mar 1831

References: , [1831] EngR 491, (1831) 2 Russ & My 495, (1831) 39 ER 482
Links: Commonlii
The creditor of a partnership, in which one of the partners dies, and the surviving partners afterwards become bankrupt, has a right to resort to the assets of the deceased partner for payment, without regard to the state of the account as between such deceased partner and the surviving partners.
This case cites:

  • See Also – Devaynes -v- Noble; Baring -v- Noble, Clayton’s Case CA ([1816] 1 Mer 572, [1814-23] All ER Rep 1, [1816] 35 ER 781, Worldii)
    A partner in a banking firm died. The surviving partners continued to trade without making any changes. They later fell into bankruptcy. Creditors of the bank at the date of the death still traded with the bank with varying changes in their banking . .

Kaneria, Kaneria v Patel, Kaneria, Kaneria, Kaneria, Kaneria, Guidezone Ltd Sub Nom In The Matter Of Guidezone Ltd (2000); 13 Jul 2000

References: (2000) 2 BCLC 321
Coram: Jonathan Parker J
cw The petitioners’ case was that they had a legitimate expectation that the company’s business would be sold, either by virtue of an agreement to that effect or at their request, was not made out on the facts.
This case is cited by:

  • Approved – Anderson -v- Hogg IHCS (Times 22-Jan-02, ScotC)
    The appellant sought an order under the section for repayment to the company of sums paid to a director by way of extra redundancy payments. He said the payments were improper. His application had been refused, in part because he had not chosen the . .

Fawcett v Whitehouse; 21 Dec 1829

References: (1829) 1 Russ & M 132, [1829] EngR 859, (1829) 1 Russ & My 132, (1829) 39 ER 51
Links: Commonlii
The defendant, intending to enter into a partnership with the plaintiffs, negotiated for the grant by a landlord of a lease to the partnership. The landlord paid the defendant £12,000 for persuading the partnership to accept the lease.
Held: The defendant was accountable to the new partnership for the money. It would otherwise have been a fraud on his partners. An agent, who was negotiating on behalf of a prospective lessee and who accepted a ‘loan’ from the lessor, held the loan on trust for his principal, the lessee.
This case is cited by:

  • Cited – Simms -v- Conlon and Another CA ([2008] 1 WLR 484, Bailii, [2006] EWCA Civ 1749, Times 17-Jan-07, [2007] 3 All ER 802)
    Solicitors within a practice sued each other, and one wished to plead the fact of a finding of professional misconduct.
    Held: The defendant’s appeal succeeded. It was not an abuse for the appellant to continue to assert his innocence, and the . .
  • Cited – FHR European Ventures Llp and Others -v- Cedar Capital Partners Llc SC (Bailii, [2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P &CR DG1, Bailii Summary, WLRD, UKSC 2013/0049, SC, SC Summary, SC Video)
    The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .

Robert Hull Terrell v James Button; 16 Mar 1854

References: [1854] EngR 361, (1854) 4 HLC 1091, (1854) 10 ER 790
Links: Commonlii
The intention of the 11th and 12th Vict. c. 45 (the Winding Up Act of 1848), was to provide for debts recoverable only in equity, as well as for those recoverable at law ; and the Master has an uncontrolled discretion (subject to appeal) to allow or disallow, or to allow as a claim only, according to the proofs adduced before him, any demand against a Company.
Certain persons proposed to form a company; they employed A. as their solicitor; he was so named, on provisional registration, under the joint Stock Company’s Act; the Directors were not to be personally liable to the officers of the Company ; the solicitor was continuously employed, until after the company had been completely formed and registered, and until it was wound up. The 44th article of the deed of settlement declared, that ‘a sufficient part of the funds of the Company should, upon complete registration, be appropriated in payment of the expenses of and incidental to the formation of the Company, including those of or having reference to the preparation and execution of that deed.’ When the Company was before the Master on the Winding-up Act, the solicitor presented a demand for services from the earliest period up to that time. The Master allowed the demand as a claim only, and not as a debt, leaving the solicitor to proceed at law : Held, reversing an order of Vice Chancellor Kindersley which had permitted the order of the Master to stand, that the Master ought to have allowed this demand as a debt, but subject to proof that the items came under the description contained in the 44th article, and subject also to taxation. As the solicitor had omitted to bring the 44th article to the notice of the Vice Chancellor, his order, though reversed, was reversed without costs.
Statutes: Winding Up Act of 1848

Macmillan Inc v Bishopsgate Investment Trust Plc; Chd 17 Mar 1993

References: Gazette 17-Mar-1993
Evidence given to a liquidator was not discoverable in civil proceedings.
Statutes: Companies Act 1985
This case cites:

  • Appealed to – Macmillan Inc -v- Bishopsgate Investment Trust Plc CA (Times 17-May-93, Gazette 01-Sep-93)
    A subpoena ad duces tecum issued against a third party was to be used to bring evidence before the court, not as an equivalent to discovery.
    Judge’s discretion not to order production not to be interfered with. . .

(This list may be incomplete)
This case is cited by:

  • Appeal from – Macmillan Inc -v- Bishopsgate Investment Trust Plc CA (Times 17-May-93, Gazette 01-Sep-93)
    A subpoena ad duces tecum issued against a third party was to be used to bring evidence before the court, not as an equivalent to discovery.
    Judge’s discretion not to order production not to be interfered with. . .

(This list may be incomplete)
Last Update: 11-Nov-15 Ref: 83282

Foss v Harbottle; 25 Mar 1843

References: [1843] 67 ER 189, [1843] EngR 478, (1843) 2 Hare 461
Links: Commonlii
Coram: Wigram VC, Jenkins LJ
Ratio A bill was lodged by two of the proprietors of shares in a company incorporated by Act of Parliament, on their own and the other shareholders’ behalf. They claimed against three bankrupt directors, a proprietor, solicitor and architect charging them with fraudulent transactions misapplying the company’s assets, that there had ceased to be a sufficient number of qualified directors to make up a board, and the company had no clerk or office, that in such circumstance the proprietors had no power to take the property out of the hands of the defendant directors. Observations were made on the point at which a relationship of trust arises between company promoters and the company. The possibility of avoiding a transaction does not necessarily create a void transaction. A corporation may later choose to adopt the transaction, and hold the directors bound by them. They can be confirmed if a transaction is a mortgage not authorised by powers given by the Act, this is an act beyond the powers of the corporation and can not be confirmed whilst there is any one dissenting voise raised against it.
Ratio Jenkins LJ said: ‘The proper plaintiff in an action in respect of a wrong alleged to be done to a corporation is, prima facie, the corporation.’
This case is cited by:

  • Cited – Johnson -v- Gore Wood and Co (a Firm) CA (Bailii, [1998] EWCA Civ 1763, [1999] BCC 474)
    The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . .
  • Cited – Heyting -v- Dupont CA ([1964] 1 WLR 843)
    The plaintiff owned shares in a company registered in Jersey and created to make the most of an invention. The articles contained a deadlock provision.
    Held: This was ‘essentially a dispute between two discordant partners’ There was a general . .
  • Explained – Prudential Assurance Co Ltd -v- Newman Industries Ltd (No 2) CA ([1982] Ch 204)
    A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .
  • Cited – Cabvision Ltd -v- Feetum and others CA (Bailii, [2005] EWCA Civ 1601, Times 02-Jan-06)
    The company challenged the appointment of administrative receivers, saying there had been no insolvency.
    Held: No question arises of a derivative action arose here. The claimant had standing to apply for declaratory relief since they were . .
  • Cited – Stuart -v- Goldberg and Linde (a firm) CA (Bailii, [2008] EWCA Civ 2, [2008] CP Rep 18, [2008] 1 WLR 823)
    The claimant appealed against orders preventing him from suing his former solicitors in respect of heads of claim which the court said should have been included in earlier proceedings.
    Held: When deciding whether a claim was an abuse of . .
  • Cited – Webster -v- Sandersons Solicitors (A Firm) CA (Bailii, [2009] EWCA Civ 830)
    The claimant apealed against refusal of permission to amend his claim for negligence against his former solicitors by adding claims from 1993 and 1994 . .
  • Cited – Wallersteiner -v- Moir (No 2) CA ([1975] QB 373, [1975] 1 All ER 849, [1975] 2 WLR 389)
    The court was asked whether Moir would be entitled to legal aid to bring a derivative action on behalf of a company against its majority shareholder.
    Held: A minority shareholder bringing a derivative action on behalf of a company could obtain . .
  • Cited – Iesini and Others -v- Westrip Holdings Ltd and Others ChD (Bailii, [2009] EWHC 2526 (Ch), [2011] 1 BCLC 498, [2010] BCC 420)
    The claimants were shareholders in Westrip, accusing the Defendant directors of deliberately engaging in a course of conduct which has led to Westrip losing ownership and control of a very valuable mining licence and which, but for their . .
  • Cited – Smith -v- Croft (No 3) ChD ([1987] BCLC 355)
    Knox J said: ‘Ultimately the question which has to be answered in order to determine whether the rule in Foss v. Harbottle applies to prevent a minority shareholder seeking relief as plaintiff for the benefit of the company is, ‘Is the plaintiff . .
  • Cited – Bracken Partners Ltd -v- Gutteridge and Others ChD (Bailii, [2003] EWHC 1064 (Ch), [2003] 2 BCLC 84, [2003] WTLR 1241)
    The claimant sought to claim against former directors of a company in which it held shares under the rule in Foss v Harbottle. . .

(This list may be incomplete)
Last Update: 09-Mar-16 Ref: 180903