Trial is not a dress rehearsal. It is the first and last night of the show
In Ming Siu Hung v J F Ming Inc., the Privy Council allowed an appeal from the Court of Appeal of the Eastern Caribbean Supreme Court, and upheld the decision of the BVI trial judge which had found unfair prejudice in the conduct of the affairs of the BVI company by the majority shareholder (and which resulted in a buy-out order).
The BVI company’s articles of association required the directors of the company to furnish each of the shareholders annually with a profit and loss account and a balance sheet for the company, unless that entitlement was waived by a members’ resolution. The majority shareholder provided none of that financial information to his minority shareholder siblings from his resumption of control of the company, for any year from 2006. In response to demands for financial information, the majority shareholder passed resolutions waiving the shareholders’ entitlement for the same under the articles, both for the past and for the future. It was this behaviour that lead to unfair prejudice proceedings being brought in the BVI ultimately seeking a buy-out order of the minority’s shares.
The Court of Appeal made a more limited order, requiring the furnishing of the prescribed financial information, both for the past and for the future, and held that it was a more proportionate response to the unfair prejudice pleaded and proved at trial. The Court of Appeal did not say that the judge’s buy-out order fell outside the reasonable range within which the judge’s statutory discretion had to be exercised, nor that the judge’s self-direction as to the relevant law, based was flawed.
The Privy Council held that neither the BVI Business Companies Act, 2004 nor its UK predecessor makes a buy-out a preferred remedy in general, in quasi-partnership companies or otherwise. If it has become widely used, (as it probably has), that will be because the particular facts about a large number of cases make it the most appropriate remedy in each of them. It was further held that “Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them” (citing with approval Fage UK Ltd v Chobani UK Ltd).
Harneys represented the successful appellant.
