英语论文网

The court also noted the breadth of the discretion conferred on it by art.143, namely to “… make suchorder as it thinks fit for giving relief in respect of the matters complained of …”, as well as a number ofdicta of some force from recent jurisprudence in support of s.459 being given a wide scope.

The court acknowledged the well-established rule that a shareholder cannot petition for a winding-uporder to be made in respect of an insolvent company, since it could not obtain any benefit from the process (qua shareholder at least). However, it rejected an argument that similar reasoning should apply in an art.141 or s.459 context. The nature of the proceedings is very different. As an insolvent liquidation is a public act that would affect the interests of all creditors, it seems right to limit standing to those members with a financial interest in the process. An application for relief for unfair prejudice does not have this public quality, being an internal matter concerning the relationship between management and particular shareholders, and thus there is no need to restrict standing in this way.

However, although the court did not accept that a grant of relief had to benefit an applicant in itscapacity as shareholder, it stressed that where the only purpose of an application is to seek paymentto the relevant company, there must be some “real financial benefit” to be derived by the applicant.Consequently, the court recognised that where relief did not benefit an applicant qua shareholder,relief could justifiably be refused in many cases. Shareholder desire to seek a better return for acompany's creditors, and any reputational benefit that might result, are insufficient to provide locusstandi in themselves.

The court noted that the loan capital appeared to have been provided to B by G's parent company,not G itself, and thus the identities of the shareholder and loan creditor were technically separate.However, following the approach taken in R&H Electric Ltd v Haden Bill Electrical Ltd,2the courtconcluded this should not bar art.141 relief as the loans were procured by G and were an essentialpart of the joint venture arrangements.

As a preliminary issue, the court considered whether a cause of action allegedly vested in B (i.e. anaction by *Insolv. Int. 142 the company against its directors) could be prosecuted in an unfairprejudice action and an order made for damages to be paid to B, not G as applicant. The courtagain noted the broad language of art.143, as well as a decision of the Hong Kong Court of FinalAppeal that held that the court did have the power to make such an order. As no reasons wereprovided as to why that case should not be followed, the court held that no objection could be raisedat that strike out stage.

Comment
On its facts, the outcome of the case appears sensible. The court placed particular emphasis on thefact that B was a joint venture company and that G provided a “package” of debt and equityinvestment in pursuance of an agreement with K. In these circumstances, where debt is provided“pursuant to” and “for the purposes of” a joint venture, it has the nature of quasi-equity. It seemsreasonable that s.459 should protect a joint venture party in respect of all such interests, being closelyconnected to his shareholding, as well as the value of his equity stake. As the court noted, the ambitof s.461 (in this case, 本论文由英语论文网提供整理，提供论文代写，英语论文代写，代写论文，代写英语论文，代写留学生论文，代写英文论文，留学生论文代写相关核心关键词搜索。