Intimations.
`THE HONGKONG G TELEGRAPH WEDNESDAY, MARCH 28, 1906.
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the plaintiff and six other shareholders lodged notices of dissent in due form, and the plaintiff then brought this action" on behalf of sbare holders in the company" in which be disputes Single Coplan. Dally, Tuo cante: Weekly, twenty-the validity of the resolutions, claiming an Injunction to prevent them being carried out; or, in the alternative, a declaration following the form given in section 20s of the Ordinance, which amounts in substance to a claim that the value of his and the dissentient shareholders shares bo assessed by arbitration in accordance with the principle laid down in sections 201 and 102 of the Companies Ordinance, 1867.
At the date of the issue of the writ, October
The Hongkong Celegraph
Hongkong, WEDNESDAY, MARCH 18, 1906,
THE PEAK TRAMWAYS,
THE JUDGMENT.
INJUNCTION GRANTED,"
In Original Jurisdiction this morning His Honour Sir Francis Piggott, Chief Justice, delivered judgment in the case of D. E. Brown and others, against the Hongkong High Level Tramway Company, Ld, and Messra, J. D. Humphreys & Son.
The Chief Justice said that there was just one point that had not been referred to in the arguments in the case, and that was as to the use of the word "session" as regards the siltings of the Legislative Council, and as to
whether the Hill now before that Couacil was still, irrespective of the time that had elapsed, in the condition of being between the second and third readings,
Mr. Sharp said that was so; the Bill was still in that stage.
His Honour then proceeded to deliver his judgment, which space does not permit of our reproducing in extenso,
•
There are many interesting facts connected with this case but the only material ones are the following. The Hongkong High-Level Tram. way Co. was registered in 1885, and after a few years' struggle for existence developed into a very flourishing concern, paying gradually increasing dividends, till zo per cent, was reach
ed in 1993. In 1954 Mr. Findlay Smith con ceived the idea of no opposition line to the l'enk, and promoted a Bill for that purpose in the Legislative Council of the Colony, which went as far as the second reading. On Decem. ber 13 of that year the existing company sent in a petition asking the Council to impote cer: tain conditions on the promoters of the new
in
of the proposals and the particulars of the now | be. They to thus, asked to give up I of the proposition given on p. 363 of Buckley, | That of itself in an important principle, but, in- undertaking. Das was a point of great im their interest in a very paying concern and that a winding up resolution, which is itself applicable to the present case as the now com
valid, is not invalidated by the fact of theropany is, in fact, registered. I cannot help portance that the price per share mentioned invest in a new business of which they know being associated with It resolutions which have thinking, however, that the Lord Justices were in resolution four had been fixed by the con-nething, and with no guarantee, moreover, that
not been regularly passed, or even if they werd snunciating a much wider principle which
would be entirely in favour of the plaintiff sulting committee according to the last price the necessary capital will be raised to float it. witon vis at which shares had changed hands.
Fask myself the question what object there But the question, is the following Is there, this case. I do not pursus the inquiry, but Six votes were recorded against the first reculd be in not telling them? Why should such a thing as a winding up for the purpose assume that the resolutions, apart from the solution; three against the second; four against they have to wait to get the confirmation till of reconstruction differing as to some of its circular, would be valid, always supposing that consequences from an ordinary voluntary such a scheme had been definitely put before the third and four against the fourth. The the meeting? or why should they be told that winding up?
the shareholders, and had bean adopted at the resolutions were duly confirmed at a subte, they can find out all they want to know by After citing several cases, the Chief Justice meeting.
proceeded therefore come to the con-" On June 26 going to some office and looking through a
But the scheme never, was so put forward. clusion that the essential difference between 'It was put forward as a reconstruction, and 1ng document? For the life of me I cannot
an ordinary winding up and a winding again as an amalgamation: and everything in answer these questions satisfactorily. This up for a definito purpose lies in this. that the fetter of as May was based on that hypho- altitude of seeming to keep back information in the latter case the winding up resolution thesis. And the resolutions were intended to which everybody concerned had a perfect right on to the purpose for which it has been intimated that after five days
does not stand by itself, but is so linked
carry out a reconstruction or amalgamation. to have is incomprehensible. It is certainly agreed to that if that purpose fails the re
argument the terms of, the 4th molution still seem- no answer to say either that the consulting solution to wind up must fail too. In this casa
ed to me very vague, and possibly to commilles think it all satisfactory, nd that the the winding up was for the purpose of recon
bear the meaning that a reconstruction was principal shareholders agree, or that as inspired struction, and although as I shall stato pre intended, in the proper SONED of the word as I have explained it. It was not article has appeared in the newspapers. It sently there is no reconstruction the winding up resolution having been expressly passed for
til I read the agreement that the true nature may well be that the same particularity is is
this purpose, it cannot be treated as an inde: of the scheme dawned upon me. It was an required by statute in a prospectus of a com- pendent resolution. Therefore if steps are
out-and-out sale for cash. The reason for em- pany, is not required in the case of these no:
taken to redress the sights of a dissentient phasising the nature of the sale in this way Gices but the decisions of the Courts certainly shareholder, by means of an injunction, the rises from the argument that in every recab show a marked tendency to require much the winding up resolution must itself be affected; structing there must be a sale from the old com- it must follow that the liquidator appointed for pany to the now and it seemed to be suggest- the purpose of carrying out the Hquidation and
ed that a sale'is essential, if you start with ren-nstruction has not the powers of an ordin.
a aple you may ultimately get to a reconstruc asy liquidator, and therefore the proceedings in this case cannot be said to be taken in the tion. My answer is not in the case of an oute sale for cash, but only in the case of A abares. What puzzied me at first exercise of a liquidator's powers-first, of sale sale of the concern; and, secondly, fixing the price
puzzins me still. Reconstructisa being intoad-- which the shareholders must take for their ed, and the statute having provided the method shares.
f carrying it out, why should that method not have been adopted? The reason is supplied by the argument: in order that the dissentient shareholders should not have the benefit of the arbitration provision lo sections 201 and 202. The question therefore comes out clearly:
34, the number of dissentients was reduced to five. It is also admitted that there were some shareholders who were absent, some apparent ly being in Mação.
interim injunction restraining the liquidators On November 4the plaintiff obtained an from carrying the resolutions into effect, and the maiter was most exhaustively argued tie fore me during five days,
|
tame class of information,
The bona fides of the whole transaction was much insisted on by the Counsel for the com- pany. The Court has no difficulty in assum mala fides, but only of injudicious action. In ing it. I do not remember any suggestion of
this connection there is one point which ap pears to have escaped attention. A great hum- "ber of the casts which have been referred to The contention as to the invalidity of the are cases in which the Courts in England have that the consent of the Governor in Executive of Finance; people who had a great deal to resolutions is based on two grounds: First had to deal with the doings of the Highwaymen Council to the transfer of the old undertaking conceal. Why should honourable gentlemen to the new company has not been obtained, as who have nothing to conceal shape their actions required by Ordinance No. 2 of 1883, s. 45..on such models? The low has been hammered Secondly, that the notice of the meeting was insufficient.
;
and.
It may be said that this view as to the limited nature of the liquidator's duties when, the winding up is for the purpose of recons truction is not warranted by the Act. It is perfectly true that this is so, so far as express words ats, concerned; but the same may be Is it possible that with notices and resolu said with regard to reconstruction itself. Yet tions framed with a view to reconstruction, and it is expressly contemplated by the first words reconstruction alone, the majority can deliber posed to be or is in the course of being wound of section 201-"Where any company is proately oust the dissentient shareholder of what
the law gives them for their protection? out in consequence of ma'practices, and the irup altogether voluntarily, and the whole or a This is not a technical question as to the reducible minimum of information to be given portion of its business or property is proposed to form of the notice, but one which involves its be transferred or sold to another company"...... The contention as to the alternative claim in the notices has been arrived at. But why this
true meaning. Reconstruction was intended But although reconstruction is manifestly and proposed to the shareholders. Resolutions is that the plaintiff has been deprived by the apparent desire to give the least possible io- aimed at in section 201, I do not think that
were framed with a view to carrying, out recon-. terms of resolution four of the right to have the formation? It is only apparent, for there was
this explanation of the purview of this section
struction and were adopted in that sense: there. value of his shaies' assessed by arbitration. an inspired article in the newspaper, and at the is in any way exhaustive. I have never came
was not the shadow of a suggestion that there ever was any idea of winding up so pros As to the first round of invalidity the de-meeting full information was in fact given. across a question in which greater care was fendant company by its Counsel undertakes Surely it would have been better, if only for the alatutory provisions to actual facts of the casts dicated in the circular: and it must be noted
necessary to limit judicial explanations of the
pernus a concero, except for the purpose in not to proceed purl the consent of the Gaver sake of saving trouble, to have set out a clear in which they occur.......
that the form of the resolution adopted was nor in Executive Council has been obtained; statement of the whole proposal in the notice,
taken from, Palmer's precedents, and is one of as to the second, the defendant argues that the But although in my opinion such a clear
the forms given for reconstruction under sec notice was sufficient...................................
tion tor. The agreement carrying_out the`re. statement has not been given, nor even such
solutions was an out-and-out sale fur.cash; it The first point to be considered is the ab information as the decisions point to as re-
was incompatible with reconstruction, and the sence of the consent of the Governor in Execu- quisite, I do not think that an injunction can
rights of dissentiens under section 201 were tive Council to the transfer of the old under-be granted on the ground of insufficiency of
not respected. I am therefore of opinion that taking to the new company. Although it notice, without regard to the nature of the in-
the resolution by which those rights were seemed at time to
one
be suggested formalion withheld, more especially when the
ignored is invalid." that the necessity of this consent would plaintiff bas subsequently ascertained all he be contested, it was not and could not need liniow to enable him to decide what course be, for the words are too clear to admit of argu- he will adopt. In Tiessen v. Henderson the What the defendant did content was notice was held insufficient and an injunction that the negotiations between the Government granted, but not on every ground. It was and the company had gone so far that neither granted because the interests of two directors the Government could withhold its consent, were not disclosed. But as to the position of nor the company draw back from effecting the Mr. Henderson, Kekewich, Justice, said be
promised nad virtually given; to which the reply is inevitable--that may be so, hut until the consent is actually given the requirements of the law have not been complied with, and the transfer cannot be effected. In this con, this case, although I think it would have been many things may be included in the term "re. to say, reading the doubtful word as "contest,"
ment.
The scope and meaning of section 16: is clear. There may be many cases in which a transfer of an oid business is effected for shares in a new company and whenever this happens in a virtue of special resolutions the dissentient shareholders cannot be deprived of the prolec tion which the law gives them. Further if, as I think, reconstruction involves of itsel the transfer for shares, these rights of the dis- sentients are preserved whenever there is a reconstruction.
It was said that arbitration had in fact been offered,, This so-called offer was contained in a letter in which there was an extraordinary confusion between the words "contend" so used that one did not and "contest," know whether the Company "contended" or "contested" what fellowed. But even taking the interpretation which the defend-
company in the event of the Bill. being finally, transfer; that the consent was indeed actually thought it would have been better, and made at reconstruction is not a term of art, and was certainly notiffer to arbitrat, under sections
passed. The Bill was not passed that year, but it seems that negotiations went on between the parties, in which the Government took part, [34 which were continued into 1905; and in May of that year the cild company abandoned op. position, and started the new idea of combina
tion.
nection it is important to remember that the Government, that is, the Governor himself, the Governor in Executive Council, and the Coun cil of Government, of which the Governor is president, controlling the official members, are three distinct bodies in the system of Crown
It will be convenient to consider now what reconstruction means, because while admitting that there was a reconstruction, the company says it was carried out by means, first, of a sale far cash; secondly, by a grant of an option to the old shareholders to take shares in the new company,
A number of authorities were cited to show has no special meaning; from which arg the matter clearer, if his position had been a ment it might be supposed that the defendant little dwelt on; but as I understand the judgmenns that anything is a reconstruction so ment, that alone would not have been sufficient long as the people who are in control of the for tlie injunction to have been granted. So in
business choose to call it by that name
It is perfectly clear, that although perhaps better, and minde the matter clearer if other construction, an out.and out sale is not one of facts had been stated, i do not think the om-them. I shall add this without any diffidence misions are sufficiently serious to warrani amalgamation" connote the continued exist that the word, as well as the cognate word an injunction being granted on this ground, ance of the old company until the instant of its certainly not at the instance of a plaintiff who merge into the new company, and therefore did accept the notice as a summons to the that any scheme which involves the cesser of old undertaking, to the new company, is neither econstraction nor amalgamation. And as the old entity must merge bodily into the new company entity, the shareholders of the old company must become ipso facto share- holders io the
company though obviously nat necessarily holdere of all the shares. It matters little that their ex ret halding may not have been precis ed, so long as the person who represents them, the liquidator, holds shares in the new com powered by section 201 to do, subsequently
on their behalf, which he will, and is em divide amongst them. Then comes the proviso of the section for the protection of dissentient shareholders, which is a safeguard in the words of Chitty, Justice, "against imposing possibly liability upon a member of the company which is being wound up by seeking to force upon him shares which were not faily paid up, 10 which may be added "or which he does not desire to have."
necessary information.
The term "Smith's Concession" was used in argument as a convenient term to describe this state of affairs that concession was made the subject of certain contracts, one of which was the sale of it to the China Commercial Colony government, and that there is nothing meeting, who went, and there obtained all the that existence before the actual transfer of the Company with a collateral contract to pay the brokers a certain sum. There was afterwards a contract of sale of the undertaking to what will hereafter be called the new company. It was in fact assumed all the way through the negotiations that the Gavemment had so far pledged itself to sanction the creation of the new tramway that the Bill might be considered as through, and the "enncession" as actual
fact
This brings us to the period of combination, A circular was issued by the general managers
on May 22, 1905, to the shareholders, in which they were asked to sanction the reconstruction of the old company, the object of which was explained to be to enable this company (ie the existing company) to acquire and construct a new. tramway to the Peak, which otherwise
to ensure the same opinion being given by all three, Nor am I sure that the question which The refusal of the injunction on this ground each has to decide is the same in principle in of course affects absent as well as dissentient all three cases. The consent of the Governor | shareholders; but I am not at all sure that'an' comes in because the Bill has not been read absent shareholder is altogether deprived of third time.
remedy, supposing him to have been injurious The company has offered an undertakingly affected by the absence of information, apart until the necessary consent has been obtained. that they will not proceed with the transfer from the remedy under section, 201, An undertaking not to do something which you
It will be convenient if I here deal with the
supposed principle of law that the Court will are not entitled to do may perhaps not amount cot interfers if the result will be to make the to much, but coupled with what the company company do over again legally what they have
don
has already done i cannot disregard it. 1 done illegally. I doubt whether such a broad attach considerable importance to what; bas principle really exists been done, more especially to the fact that a Neither the question whether the notice is petition has been presented to the Governor in itself sufficient, or any other question raised Executive Council, praying that the Transfer in this case, has anything to do with the to may be sanctioned. I understand that sil pro-ternal management of the company, and to ceedings in relation to the Bill and the petition apply this doctrine, otherwise perfectly intelli: are in suspense pending the conclusion of this gible, to such a case as this involves a mon. case. The company has satisfied me that they arguitur; for it by no incans follows that, il intend to comply with the law, and therefore another meeting were called after this discus- there is no ground for an injunction on this sion, the majority would remain of the same head. An injunction cannot be granted to opinion memineris ne that
prevent a person doing what he has no inten-
PREMIER CIGAR would be constructed by an independent com
pany necessarily working in direct opposition to this company." It was funber stated that as the general managers considered that this opposition would be fatal, arrangements had been made with a view to the amalga.
conceras, and
No. 1
No. 2
No. 3
OF
INDIA.
$2.75
mation of the two
the proposed reconstruction would be advanta. geous to the company (i c., the existing com- pauy), and had the cordial approval of the prin- cipal shareholders.
A notice was issued on the same day setting put the resolutions which it was intended to propose in order to carry out the scheme as it
tion of doing.
The second point as to the sufficiency of the notice is more difficult. The notice given is to my mind clearly insufficient. It is also i think misleading; but this more on the technical ground to be considered at length presently,
new
There was in this case an out-and-out sale for cash; the option of taking shares in the new company really amounts to nothing at all, The old shareholder may invest his Szoo per share in the new company if he likes; and he may also invest any other money he may wish to in the new company which is right possesses with other members of the public, if the new company is put upon the mar ket, as this company was to be. His so- called priority, amounts to nothing at all except in the event of there being more subs. criptions than were accessary to float the new company.
I pass now to the more serious question, the validity of the fourib resolution............................................. After referring to the question of the interim injunction, the Chief Justice, proceeding with the matter of reconstruction, said :-A learned
But, and I now come to the crux of the case, Judge laid down a very clear proposition; a voluntary winding up is one thing, but a wind-the company says it has not transferred its ing up for the express object of reconstruction business to the new compamy for shares, and therefore that the case does not fall within the
follow that if the reconstruction above.
ant's Counsel put upon the foiler, there 201 and 202, but only in some other way which seemed preferable to the liquidators: the request for arbitration under the Companies Act was always refused. This letter of 17th October is not very comprehensible, because giving the sentence a definite menning, that is it purports to say that the Company has not contested" the plaintiff's right to have his interest purchased in pursuance of section 201 which is virtually an admission of the plaintiff's case; for, if he has a right under section 201, he also has the right which follows in section articles of association does not arite. The 203. The question of arbitration under the
case was argued, however, independently of › that letter, or rather on the basis that the word contend was really meant, but ibat the remainder of the sentence was wrong. As to the actual price offered for the old Ghares
bave very little to do.
But some emphasis
laid on it, and evidence given to show that it was fair price. It was in fact based on the last sale of shares. This, with all deference to the views of the majority who were willing to let their shares go at that price, seems to me a alto- had been no such sale. It can only have been gether arbitrary conclusion: Supposing there fortuitous, if it had not occurred some other basis would have had to be found. It is clear to me that the time for estimating the value of the shares had not yet arrived, and I feel the force of the argument which Mr. Pollock ne dressed to this point. Nobody knows at pre sent what the new company, if it is floated, may do with its concession now it has got it. is not an impossibility that things may be so satisfactorily arranged that the old shares may rise in value perhaps temporarily. It is tru that I have nothing to do with the price to be ultimately paid; but sufficient has been said to show me the 'immense, importance of the safeguard which the legislature has thought fit to introduce in section zor for the protection of those who do not agree with the policy of reconstruction or amalgamation.
it
For all these reasons I am of opinion that the plaintiff is entitled to judgment on his al Lernative claim: hut the question what form it should take is not free from difficulty.
had been detailed in the circular. It was that the circular mentions a reconstruction and is 200ther. From this other important const-interpretation of section 201 which I have given / therefore resinse to the plaintiff, and the other
ance with article tor of the articles of as-
the resolutions as explained by the agree-'i
quences
pose of carrying it out must be set aside too, Therefore, if a case is made out of witra vires sufficient for the Court to issue an interim in junction, it must take the form of suspending
ferred to the meeting as having been called under article ror of the articles of association, and that therefore that of itself put the question outside the operation of section 201, may be disposed of by this observation; article tot is the only article by which a meeting for wied ing up for any purpose could have been called rights of dissentients, if they possess any, under it is impossible that that fact should destroy the section 201.
I have found the 4th resolution invalid be. casse it ignores the rights of the dissentient members though I do not think it is wita wires on that account. The form of the order must
agreed that the circular sad the notice were to
for whom he is suing, the rights of which they be read as one document, and indeed it would inent propose a sale for cash, But even scheme is ultra wires and is set aside, the wind- The technical argument, that the notice re have been deprived. But here this difficulty not be possible to do otherwise. The com supposing, as the defendant contended, tharing up which was agreed to for the sole pur-
arises. He is entitled to a declaration in the bined effect of them must be as I have stated such asale amounted to a reconstruc.
terms prayed down to the words "either to abstain from carrying the said resolution into it, although it must be noticed that there is no tion, it was a sale with an option to take shares
effect; but if the remainder of the relief were such express statement, but there is one to the in a new company, an option which is only
given as it is prayed, I should be fitting this agreement which is based on the 4th resolution per 100 effect that the meeting was to be held in accord- another way of saying that the shareholder
who has been paid off may invest his money the whole of the resolutions, including the one
on to section 201. But as we have seen, it does sociation. The proposed resolutions were (1) in the new company, and as it appears for winding up, and including site the one
authorised to sell for shares in the new not fit at all, because the liquidator has not been that the company should be wound up volun- from the agreement a further reference being appointing the liquidator. Obedience to the
company. An injunction therefore becomes tarily; and (2) that the general managers be added to it to take up the remaining shares in injunction therefore requires that the liquida Now, looking at the point in the abstract, inevitable: and it will be granted in terms pre- $2.50 per 100 appointed liquidators. (3) That they should be the new company. Clearly when shareholders for should not act as such during the continu- the question arises whether a company can venting the liquidator from putting into effect
authorised to consent to the registration of a in a going and very profitable concern are
ance of the injunction, but the company reverts cash, winding itself up for that purpose, and
transfer its business to a new company for the resolutions but to continue in force until and if the shareholders shall have had submit- new company with a memorandum and invited to consider whether they will accept to its normal condition, and should be worked the transaction not being within the express to them 'n resolution in lieu of the 4th articles of association which had been pre terms such as there; in other words, so to by the general managers,
terms of the section, the dissentient share resolution, which shall authorise a sale by the pared with the approval of the consulting invest their money, they ara entitled to full But this principle is far-reaching in its conse holders do not get the protection of the liquidators for shares in the new company and $2.25 per 100 committee of the old company. (4) That they particulars of the new scheme; for this very quences: it is obvious that it cuts away much section. The argument in favour of such a which shall recognise the rights of the dis should further be empowered to sell to this sufficient reason, that if they do not approve of of the vital part of the defendant's arguments transaction is this: the sale of the undertaking sentient shareholders under sections 201 and
In this case, the winding up was for the is a part of the winding up, and is within the
202, and such resolution shall have been car- new company the undertaking of the existing the new conditions-they may be very, loth to
ried by the requisite majority. company "ut the price of $zoo per share either let the old company take the necessary steps purpose of re-construction and for nothing power of the liquidator even without any
So much stress was laid during the argu cise. "It was not contended, nor could it special sauction from the shareholders, more in cash or shares of the 'Peak Tramways Com to bring it into operation, and as they have to have been, that there was any intention especially, I think it was put as an a fortiortment again Bramur the judgments to the fact "pany, Lid., at the option of shareholders of the give their approval at once, they must mani of winding up so prosperous a copcern. is it within his power if he has such sanction, references some of
part that is to say, he can act with more safety if he that the majority can so readily redress an existing company," and enter into all necessary festly exercise their option then and these. The proposition, destroys nil that
which depende has such sauction. But ibis is an aversion of illegality at a subsequent meeting, that I have agreements to the effect.
The only thing which is really clear from the of the defendant's case
on the assumption that there was here a liqui- the original argument that there is here in fact little doubt that the inconvenience which the These two documents contained all the in-notice is that the capital of the new company dator in a voluntary liquidation, who had all a winding up pure and simple, and it has no grant of this injunction may cause will speedily formation that was given to the shareholders must be sufficiently large to provide, in addi- the powers of a liquidator in an ordinary wind- more weight in its invented than in its original bu temaved. before the meeting. At the meeting 35 share. tion to the cost of construction of the new tine, ing up, namely, of selling the concern out and form. Directly the essential difference between holders were present, and, the chairman $250,000 to pay off the old shareholders at out and fixing the price which the shareholders a voluntary winding up and a winding up for a spacial purpose is established, this argument presented the case in a fuller form; and certain $200 per share, Nothing is said as to what must receive for their states. maya ba
Before therefore finally adopting it, I must
becomes a petitio principit facts were either stated or elicited from which the cost of construction will be, nor even be satisfied that it does not run counter to any [36-7 a clearer notion was obtained as to the nature what the capital of the new company will of the decisions which were cited in support
soddia
Gregor & Co.,
SOLE AGENTS
Hongkong, 8th July, 1995,
A cats was quoted to show that there cannot be a transfer to a company not yet in existence.
Mr. Pollock Then this is judgment for plaintiff with costs, my Lord? His Honour: That is n Mr. Sharp I would asked for stay of execu tion as regards costa.
There was no objection.