The claimant asserted that the defendant had, having at one point been a creative director of the claimant, left to set up an alternate competing business, and diverted business from the first company to the new one. There had been disagreements about the extent of capital to be introduced. The defendant asserted that this happened after he had been marginalised within the old company and had resigned as director at the invitation of the other partner.
Held: The power to resign is not itself a fiduciary power. A resigning director could not take to himself a business opportunity maturing within the first company. He became a constructive trustee of that maturing business opportunity. In this case the defendant had so acted. He was liable personally even though the opportunity was pursued through a second limited company.
Lawrence Collins J said: ‘In my judgment the underlying basis of the liability of a director who exploits after his resignation a maturing business opportunity of the company is that the opportunity is to be treated as if it were property of the company in relation to which the director had fiduciary duties. By seeking to exploit the opportunity after resignation he is appropriating for himself that property. He is just as accountable as a trustee who retires without properly accounting for trust property. In the case of the director he becomes a constructive trustee of the fruits of his abuse of the company’s property, which he has acquired in circumstances where he knowingly had a conflict of interest, and exploited it by resigning from the company.’
Judges:
Justice Lawrence Collins
Citations:
[2001] EWHC Ch 415, [2001] 2 BCLC 704
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Canadian Aero Service Ltd v O’Malley 1973
(Supreme Court Canada) Mr O’Malley and Dr Zarzycki were senior officers of the claimant (‘Canaero’). Having attempted, unsuccessfully, to procure a contract for Canaero to carry out a topographical survey and mapping of part of Guyana, they resigned . .
Cited – Regal (Hastings) Ltd v Gulliver HL 20-Feb-1942
Directors Liability for Actions Ouside the Company
Regal negotiated for the purchase of two cinemas in Hastings. There were five directors on the board, including Mr Gulliver, the chairman. Regal incorporated a subsidiary, Hastings Amalgamated Cinemas Ltd, with a share capital of 5,000 pounds. There . .
Cited – Imperial Mercantile Credit Association v Coleman HL 1873
Where a company director puts the benefit of a company contract into a partnership, he is fully accountable even if his partners are entitled to part of the profit and are ignorant of his breach of fiduciary duty. . .
See Also – Profilati Italia SRL and Painewebber Inc v Painewebber International Futures Ltd ComC 23-Jan-2001
An award was challenged on the grounds that the successful party had failed to make proper disclosure.
Held: Moore-Bick J applied the test whether there was ‘any substantial likelihood that disclosure . . would have resulted in the tribunal . .
Cited by:
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Lists of cited by and citing cases may be incomplete.
Company, Arbitration
Updated: 04 June 2022; Ref: scu.163019