Claim No: CR-2024-004856 - [2025] EWHC 2304 (Ch)

Fecha: 10-Sep-2025

LEGAL PRINCIPLES: JUST AND EQUITABLE WINDING-UP

LEGAL PRINCIPLES: JUST AND EQUITABLE WINDING-UP

71.

Koza Altin relies on s.122(1)(g) of the Insolvency Act 1986 (“IA 1986”) under which a company may be wound up if:

“the court is of the opinion that it is just and equitable that the company should be wound up.”

72.

Section 125(2) of IA 1986 provides further that:

"(2)
If the petition is presented by members of the company on the ground that it is just and equitable that the company should be wound up, the court, if it is of the opinion –
(a)
that the petitioners are entitled to relief either by winding up the company or by some other means, and
(b)
that in the absence of any other remedy it would be just and equitable that the company should be wound up, shall make a winding up order; but this does not apply if the court is also of the opinion both that some other remedy is available to the petitioners and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy."

73.

The scope and principles for a just and equitable winding up were described by HH Judge Mark Cawson QC (sitting as a judge of the High Court) in Klimt. He noted:

(at [187]) that the remedy has been described as one “of last resort and an exceptional remedy in the context of disputes between shareholders” – hence the wording of section 152(2);

ii)

(at [188]) that:

“In Lau v Chu [2020] UKPC 24; [2020] 1 W.L.R. 4656, at [20]-[21] per Lord Briggs JSC, the Privy Council held that the legal burden of proof is on the applicant to establish his or her entitlement to relief and, if so, that a winding up would be just and equitable if there were no other remedies available, but that if the petitioner can so establish, then the legal burden of proof shifts to the respondent to prove that the petitioner has unreasonably failed to pursue some other available remedy rather than seeking a winding up.”

iii)

(at [190]) that:

“As emphasised by Dillon J in Re St Piran Ltd [1981] 1 W.L.R. 1300 at 1307: "The words "just and equitable" are wide general words to be construed generally and taken at their face value. Whether in any case a winding up order should be made would depend on a full investigation of the facts of the particular case … The concept of justice and equity is a very wide concept …"”;

iv)

(at [191]-[192]) that:

“91.
In Re Westbourne Galleries [1973] AC 360, Lord Wilberforce, having rejected the notion that the expression "just and equitable" required to be construed so as only to include matters ejusdem generis the preceding clauses to the then Section 222(f) of the Companies Act 1948, stated that: "…there has been a tendency to create categories or headings under which cases must be brought if the [just and equitable] clause is to apply. This is wrong. Illustrations may be used, but general words should remain general and not be reduced to the sum of particular instances…";
192.
Further, subsequently at 379B, Lord Wilberforce said: "The foundation of it all lies in the words "just and equitable" and, if there is any respect in which some of the cases may be open to criticism, it is that the courts may sometimes have been too timorous in giving them full force"”;

(at [193]) that Lady Arden JSC had approved the approach of Lord Wilberforce as regards keeping the general words general and had noted in particular that it was impossible or undesirable to define the circumstances in which equitable considerations could arise;

vi)

(at [194]) that, whilst the jurisdiction is most often invoked in circumstances where the company is in substance a partnership, but it is clear that the jurisdiction is not so limited, and: "may be invoked whenever justice and equity require" (here quoting Peter Gibson Jin Ringtower, at 91F); and

vii)

(at [194]) that:

“Whilst recognising that the categories or headings under which a just and equitable winding up petition might be brought ought not to be regarded as limited or reduced to the sum of particular instances, recognised grounds for seeking a winding up on the just and equitable ground include a loss of substratum, and a breakdown of trust and confidence within a quasi partnership.”

74.

Where a case is made out by a claimant that it would be just and equitable for a company to be wound up the court needs also to consider s.125(2) IA 1986: the court may decline to wind up a company if the court is:

“of the opinion both that some other remedy is available to the petitioners and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy.”

75.

An unreasonable refusal to accept a fair offer for an applicant’s shares might bar winding-up (see, for example Chu at [21]).