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rall of them, shall provide working capital to the company by means of loans, it would … beinconsistent with the purpose of these statutory provisions to limit the availability of the remedies theyoffer to cases where the value of the … shares held by the applicant member would be enhanced bythe grant of the relief sought. If the relief sought would … be of real, as opposed to merely nominal,value to an applicant joint venturer … in facilitating recovery of some part of its investment in the jointventure company, that should…suffice to provide the requisite locus standi
… ”.

It follows that, as long as the petitioner is nominally a member, relief can be sought qua investor(where the investment is a combination of equity and loan) and not merely qua member.

The decision will no doubt be welcomed by investors such as private equity providers. It can be
supported by reference to established principles, notably the principle that “membership interests”
should be construed more broadly than strict legal rights under the corporate constitution. Nevertheless, Gamlestaden Fastigheter may prove to be an exceptional case. The usual course in
such circumstances is for the company to be wound up and the liquidator to pursue its cause of
action against the directors for the benefit of creditors.

1. [2007] UKPC 26, [2007] B.C.C. 272.
2. Restated as Companies Act 2006, ss.994-996 (due in force on October 1, 2007).
3. (1843) 2 Hare 461. See further the Privy Council's advice in Gamlestaden Fastigheter, above fn.1, [22].
4. Pavlides v Jensen [1956] Ch. 565. Once the Companies Act 2006, ss.260-264 come into force this will no longer be an obstacle to a statutory derivative action (which may be premised on “a cause of action arising from an actual or proposed act or omission involving negligence, default, breach of duty or breach of trust by a director”).
5. Relief under the equivalent of s.461(2)(c) in the form of an order authorising Gamlestaden to bring civil proceedings against the directors in Baltic's https://www.51lunwen.org/liuxuelunwendx/name was not pursued because of concerns that any fresh derivative action would have been time-barred under Jersey law:see Gamlestaden Fastigheter, above fn.1, [25]. Presumably, a second derivative action would not have been res judicata because the scope of the civil action that the court can authorise to remedy ‘unfair prejudice’ is broader than that available under the common law exception to Foss v Harbottle.
6. Delivering the Privy Council's advice, Lord Scott of Foscote prayed in aid the decision of the Hong Kong Court of Final Appeal in ReChime Corp Ltd (2004) 7 H.K.C.F.A.R. 546. It is suggested that Anderson v Hogg 2002 S.L.T. 354 and Clark v Cutland [2003] EWCA Civ10, [2004] 1 W.L.R. 783 at [8] also support this conclusion.
7. Gamlestaden Fastigheter, above fn.1, [33].

 

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