1970 (1) TMI 38 - HC - Companies Law

Summary

Issues Involved:
1. Opening of a new bank account by Ian.
2. Ian's refusal to employ Brian in the retail business.
3. Alleged agreement for equal sharing of profits.
4. Threat of removal from the board and other minor complaints.
5. Application of the quasi-partnership concept.
6. Lack of confidence between the brothers.

Detailed Analysis:

1. Opening of a New Bank Account by Ian:
Brian's first complaint was that Ian had opened a new bank account in his own name and was using it for the company's transactions without consulting Brian. However, under cross-examination, Brian admitted that he had known of Ian's reasoned explanation for this action. Ian had opened the account to avoid the inconvenience caused by Brian's refusal to sign cheques. The court found that the account was used solely for the company's money and was separate from Ian's personal account. The allegation, though initially appearing sinister, was found to have a reasonable explanation, and there was no withholding of information from Brian.

2. Ian's Refusal to Employ Brian in the Retail Business:
Brian's second complaint was that Ian refused to employ him in the retail business after the collapse of the wholesale company. Brian accepted that he was not entitled to salaried employment by the company and that Ian's refusal was not a ground for winding up. Ian argued that Brian lacked retail experience and that employing him would require dismissing current staff and reallocating funds. The court found that Ian's refusal was justified and not a ground for winding up.

3. Alleged Agreement for Equal Sharing of Profits:
Brian contended that there was an agreement to share the profits of the two companies equally between the brothers. Ian denied such an agreement. The court found that Brian provided little evidence to support the existence of this agreement. The equality in remuneration during certain years was deemed coincidental rather than evidence of an agreement. The court concluded that there was no such agreement and that the brothers had merely settled into a course of conduct that produced rough equality in earnings.

4. Threat of Removal from the Board and Other Minor Complaints:
Brian raised additional complaints, including Ian's threat to remove him from the board and restrictions on his access to the shop premises. Ian had since withdrawn these threats and recognized his obligations. The court noted that these issues had been resolved and did not warrant a winding-up order.

5. Application of the Quasi-Partnership Concept:
Brian's counsel argued that the case fell within the doctrine of In re Yenidje Tobacco Co. Ltd., suggesting that the company was a partnership in the guise of a company. The court examined whether the quasi-partnership concept applied, considering the family history and the alleged profit-sharing arrangement. The court found that the brothers did not run the business on a partnership basis and that the quasi-partnership concept did not apply to this case. The court emphasized that it must consider the contractual rights and settled practices between the parties.

6. Lack of Confidence Between the Brothers:
The court assessed whether the lack of confidence between the brothers justified winding up the company. It determined that the facts at the time of the hearing were crucial. Although there were past grievances, Ian's recent conduct and testimony indicated a willingness to act honorably. The court found Ian to be a credible and sincere witness, whereas Brian appeared confused and less reliable. The court concluded that there was no justifiable ground for Brian's lack of confidence in Ian to support a winding-up order.

Conclusion:
The court dismissed the petition for winding up the company. It found that Brian's complaints were insufficient to justify such an order. The court emphasized the importance of considering current facts, contractual obligations, and settled practices between the parties. The allegations were either resolved or lacked sufficient weight to support the petition.