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Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> 1998/138 - Gamlestaden Fastigheter v Boleat and ors [1998] UR 138 (1 July 1998)
URL: http://www.bailii.org/je/cases/UR/1998/138.html
Cite as: [1998] UR 138
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ROYAL COURT
(Samedi Division)
1 July 1998
Before: FC .Hamon Esq., Deputy Bailiff,
Sitting alone
BetweenGamlestaden Fastigheter ABPlaintiff
AndDavid Paul BoleatFirst Defendant
AndMichael David de FigueiredoSecond Defendant
AndPeter Arthur Neil BaileyThird Defendant
AndAbacus (C.I.) LimitedFourth Defendant
AndBaltic Partners LimitedFifth Defendant
AndPartners in Coopers & LybrandSixth Defendant
Appeal by the Plaintiff against the Order of the Greffier Substitute of 29 January 1998, striking out the Order of Justice. Application by the Plaintiff to adjourn appeal granted
Advocate NMC Santos Costa for the Plaintiff
Advocate TJ Le Cocq for the Defendants
JUDGMENT
THE DEPUTY BAILIFF: This hearing is to hear an appeal from an order of the Greffier Substitute made on the 23 February of this year. Both counsel agreed at the commencement of the hearing that I could sit alone, as the matters concerned were do to with law and the Jurats at that stage withdrew.
The grounds of appeal as they were set out, after dealing with the general terms, specifically said this:
"(1)That the Greffier Substitute considered matters which were not before him, namely that the first and the fourth Defendants were clearly in control of the company, and it was never argued by either the lawyers for the Plaintiff or for the Defence that that was not the case; and/or
- that the Greffier Substitute erred in finding the Defendants had alternative remedies available to them under Articles 141 and 143 of the Companies Jersey Law 1991, and;
- that the Greffier Substitute otherwise failed to exercise his discretion consistently or properly"
The Appellant now concedes that Articles 141 and 143 should be properly examined as an alternative remedy to this application, and that must be so because in his judgment at page 10, the Greffier Substitute said this:
"If there is a factual basis upon which a minority shareholder’s action can be brought in this case then it appears to me that it would be extremely likely if not certain that the Court would make an order under Article 141 on the said law,"
Accordingly it seems to me that any proceedings which could be brought ought to have been brought under that Article, and that there is a further ground for striking out the action by reason of this.
An application under 141 of the Companies Law is a new form of application and Mr Costa has no precedent to assist him in this jurisdiction, therefore we are able to grant the adjournment which has been asked for and which is not opposed, and we allow Mr Costa the right to re-apply at any time if he considers that the 141, 143 path has been exhausted. I put it that way because the Plaintiff may decide that it does not wish to make application under the Companies Law but, of course, as Mr Le Cocq has pointed out, it will then have to justify its decision in the terms of the Foss -v- Harbottle Rule.
The only question left open to me this morning is the question of costs, the application to adjourn clearly took Mr Le Cocq by some surprise because it was only raised at the last moment - they had apparently met in the doorway to the Court this morning just before we sat. I have to consider whether in making an order there could be a duplication of costs if this hearing did come on at a future date, because the 141, 143 course had been abandoned, for example, but that, I feel, is really a matter for the taxation hearing, and on that basis I am going to order that the Plaintiff shall pay on a taxed basis the costs thrown away by reason of the adjournment.
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