Case No. CR-2019-LDS-000669

[2007] UKPC 26, [2008] 1 BCLC 468).”148.In the Gamlestaden Fastigheter AB case, the main relief sought was the payment of damages to the relevant (insolvent) company in respect of relevant breaches of duty by its directors. The payment of such damages would not restore the company to solvency. However, it would enable a dividend to be paid to creditors, including the member seeking relief under equivalent legislation to s994 Companies Act 2006 in Jersey and whose debt arose by virtue of loan capital that it had injected into the company pursuant to the relevant joint venture agreement on the basis of which the company had been established as a joint venture company. On this assumed basis the Privy Council reinstated the application which had been struck out by the Courts in Jersey. Although the relief sought would not financially benefit the applicant in its capacity as member, it would in its capacity as creditor. As I read the Opinion of the Privy Council, it is a recognition that the interests of the member in that case went beyond the member’s financial interest as the holder of shares with a certain (in fact in that case, at the relevant time, zero) value, and encompassed its wider financial interests under the joint venture arrangements, including those affecting its position as a creditor in respect of the loan capital it had injected.149.So far as “unfairness” is concerned, and leaving aside for the moment quasi-partnership companies, which Portbond is not alleged to have been, unfairness:“most often connotes some breach of the articles, statute or general principles of company law”: Sunrise Radio at [4]. 150.The court will be reluctant to hold that mismanagement amounts to unfair prejudice. There may be extreme cases where the conduct of the company’s directors:“whether by reason of malevolence, crass stupidity, or something in between, fall so far short of the standards to be expected of them as to lead to the conclusion that the petitioning shareholder cannot reasonably be expected to have the minimum of trust and confidence in the integrity or basic competence of the board that any shareholder is entitled ordinarily to expect” (Sunset Radio paragraph [4])151.In such circumstances, damage to the value of the shares may not be necessary to establish relevant prejudice but that is because the member’s interests encompass wider interests than simply the monetary value of the relevant shareholding,152.To amount to unfair prejudice, such management failures would have to be extreme. The court will not resolve differences of commercial judgement on an unfair prejudice petition: Re Elgindata Ltd [1991] BCLC 959, 994. There may be circumstances: “where there is disagreement between petitioners and respondents as to whether a particular managerial decision was, as a matter of commercial judgment, the right one to make, or as to whether a particular proposal relating to the conduct of the company's business is commercially sound. In my view, it is not for the court to resolve such disagreements on a petition under s 459. Not only is a judge ill qualified to do so, but there can be no unfairness to the petitioners in those in control of the company's affairs taking a different view from theirs on such matters.”153.Further:“a shareholder acquires shares in a company knowing that their value will depend in some measure on the competence of the management. He takes the risk that that management may prove not to be of the highest quality. Short of a breach by a director of his duty of skill and care… there is prima facie no unfairness to a shareholder in the quality of the management turning out to be poor.” (Elgindata, supra)154.The conduct of the petitioner may also be relevant. It may make the conduct/act or omission not “unfair” or may affect whether a remedy will be granted. This petitioner’s conduct which may have that effect can be of various sorts. It might be misconduct by the petitioner or acquiescence in or agreement to the conduct/act or omission that might otherwise be unfairly prejudicial (see Re London School of Electronics Ltd [1986] Ch 211 at 222A–C and Richardson v Blackmore [2005] EWCA Civ 1356, [2006] BCC 276 at [53] 155.As regards acts/omissions or conduct that took place before the particular petitioning member became a member, such is capable of amounting to unfair prejudice affecting the interests of the member in question (Lloyd v Casey [2002] 1 BCLC 454). However, conduct of the former member may mean that the particular matters complained by the later member are not unfair or that no remedy should be granted (Re Batesons Hotels Ltd [2013] EWHC 2530 (Ch); [2014] 1 BCLC 507 at [59]).156.As regards relief, the court has a wide discretion as to the form of any relief that it may grant. In this case, it is submitted by the Petitioner, that it would be appropriate to make a buy-out order. It is also submitted that the price of the shares should be fixed by reference to the value of the shares at an earlier date than now and that it should be at a time when the Companies were solvent (see generally Profinance Trust SA v Gladstone [2001] EWCA Civ 1031, [2002] 1 BCLC 141). I will deal further with this submission later in this judgment. (2)