Horgan v Murray

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 31 January 1997
• Neutral Citation: [1997] IEHC 21
• Docket Number: 247 cos/1996
• Court: High Court
• Date: 31 January 1997

[1997] IEHC 21

THE HIGH COURT

247 cos/1996

HORGAN v. MURRAY

IN THE MATTER OF MURRAY CONSULTANTS LIMITED (FORMERLY SAGE

CONSULTANTS LIMITED), AND NOCRUMB LIMITED (FORMERLY MURRAY

CONSULTANTS LIMITED)

AND IN THE MATTER OF THE COMPANIES ACTS, 1963TO 1990

IN THE MATTER OF SECTION 205 THEREOF

BETWEEN

TERENCE P HORGAN

PETITIONER

AND

JOSEPH PATRICK JAMES MURRAY AND JAMES MILTON

RESPONDENTS

Citations:

A COMPANY, IN RE 1987 BCLC 562

A COMPANY EX PARTE KREMER, IN RE 1989 BCLC 365

A COMPANY EX PARTE HOLDEN, IN RE 1991 BCLC 597

IRISH PRESS PLC INGERSOLL IRISH PUBLICATIONS LTD 1995 2 IR 175

GREENORE TRADING CO LTD, IN RE 1980 ILRM 94

SCOTTISH CO-OPERATIVE WHOLESALE SOCIETY V MEYER 1959 AC 324

Synopsis:

Company

Application to strike out or stay proceedings under s.205 Companies Act, 1963 - petitioner seeking to be bought out - whether petitioner abusing processes of court by refusing to accept respondent's offer to value shares according to procedure contained in articles of association - Held: Application dismissed - no abuse of process - (High Court: Barron J. - 31/01/1997) [1997] 3 IR 23

|Horgan v. Murray & Milton|

1 Judgment of Mr. Justice Barrondelivered on the 31st day of January, 1997.

2 This is an application to strike out or stay further proceedings on foot of the petition herein upon the ground that a continuation of such proceedings would be an abuse of the process of the Court.

3 The petition is one for relief against oppression. It is submitted by the Respondents that the primary relief being sought by the Petitioner is to be bought out. The Respondents submit that this can be done more beneficially for all by adopting a procedure for the valuation of shares contained in the articles.

4 The particular provisions to which the Respondents refer are contained in Article 6 of the Articles of Association of the Company. This article deals with transfer of shares. It is in a reasonably standard form for private companies where control of the registration and transfer of shares lies with the directors. The article concerned provides for the valuation of shares by a proposed transferor by the auditors of the company acting as experts.

5 The Respondents recognise that these articles relate to a valuation in the event of a shareholder wishing to sell. They are, however, prepared to allow the valuation to be carried out as of the date before the oppression is alleged to have commenced and presumably upon the basis of what would have been the likely course of the business between such date and the date of valuation. They also accept that there should be no discount by reason of the fact that the Petitioners holding is a minority holding.

6 The Petitioner is one of three shareholders. He submits that the affairs of the company were until the matters complained of run as a consensual partnership and that the necessary trust existing to run the company in such a manner has broken down as between him and his quasi partners. He denies that the petition is an abuse of the process of the Court and seeks to continue the proceedings.

7 Before the issue of proceedings can amount to an abuse of the process of the Court, it seems to me that there must be some element of impropriety. So if a plaintiff who has a valid claim which has been admitted seeks to continue proceedings for further relief to which such plaintiff could not in any circumstances be entitled that this would be an abuse of the process of the Court. It is upon this basis that the Respondents maintain that the Petitioner would be abusing the processes of the Court by refusing to accept the offer to value the shares being made by them.

8 In the context of the present case, if the articles provide a complete remedy then there can be no ground for Court proceedings.

9 In Re: A Company 1987 B.C.L.C. 562 the facts were very similar to those in the present case. The Articles of Association contained a specific provision as to what was to happen in such circumstances. It was held that to proceed with the petition and to...