Minority shareholders rights7 Aug 2023 20:46
If you believe the directors are trying to steal the company there are legal remedies
Statutory claims
Shareholders may also be entitled to bring a claim for unfair prejudice or a derivative action, purely by virtue of being a shareholder and irrespective of the size of their shareholding.
Unfair prejudice
Unfair prejudice arises where the affairs of a company prejudice the members generally or a specific group and is designed to protect minority shareholders. If the shareholders feel they have been unfairly treated, the minority shareholders can bring an unfair prejudice claim seeking relief against the acts of the controlling directors/shareholders of the company.
If successful, the court has a wide range of powers which include:
to regulate the conduct of the company’s affairs;
to require the company to refrain from an act, or to carry out an act that it has omitted to do; or
to require the shareholders (or the company) to purchase the shares of other shareholders.
Derivative action
A derivative action claim permits the shareholders to commence legal proceedings on behalf of the company in an attempt to remedy a wrong committed by the directors/shareholders – for example, as a result of negligence, default, breach of duty or breach of trust. Such claims can only be pursued if certain requirements are fulfilled, and the court has wide discretion to examine the merits of the claim and to determine whether or not a derivative claim is appropriate in the given circumstances.
The nuclear option
If there has been a fundamental and irreparable breakdown in the relationship between the shareholders and the company’s directors, any shareholder who has held their shares for at least 6 out of the last 18 months may present a winding-up petition against the company, which provides that the company should be wound up by the court if “the court is of the opinion that it is just and equitable”. Typically, the court will only make an order to wind up the company if no other remedies are available.
Before any action is taken or a petition is issued to the court, we would always advise that shareholders obtain legal advice beforehand if you are a shareholder who may feel that one of the above options is necessary at this time.