Investments Ltd Research Articles

The Deadlock Principle as a Ground for the Just and Equitable Winding Up of a Solvent Company: Thunder Cats Investments 92 (Pty) Ltd v Nkonjane Economic Prospecting Investment (Pty) Ltd 2014 5 SA 1 (SCA)


 The question addressed by the Supreme Court of Appeal in Thunder Cats Investment 92 (Pty) Ltd v Nkonjane Economic Prospecting & Investments (Pty) Ltd 2014 5 SA 1 (SCA) (hereafter the "Thunder Cats") provides much-needed guidance on the deadlock principle as well as the breadth and scope of the "just and equitable ground for winding up in terms of s 81(1)(d) (iii) of the Companies Act 71 of 2008. The facts, the issues and the contextual authority of Thunder Cats also bring to fore the lacuna in the just and equitable winding up provisions of the current Companies Act which lacuna has so far received no judicial or academic consideration. This Note contends the fact that the just and equitable winding up provisions do not countenance any deviation from the statutory prescriptions once the factual grounds for just and equitable winding up have been established is not in consonance with the spirit, purport and objects of Companies Act, and, in particular those of Chapter Six of the Act which have introduced the innovative business rescue scheme into South African corporate law landscape. The facts, the issues and the contextual authority of Thunder Cats will be reviewed at length in the ensuing discussion.
 

Merchant Banking Operation: A Case Study of Selected Merchant Banks in Bangladesh

In Bangladesh the establishment of merchant bank added value to the stock market which plays a vital role in the progress of economic development. This study tried to analyze the performance of Lanka Bangla Investment Ltd., Prime Finance Capital Management Ltd., IDLC Investment Ltd. and Uttara Finance and Investment Ltd. Seven trend equations have been tested for different activities of the selected merchant banks. It is observed that the selected merchant banks were able to achieve a stable growth of investment in securities, margin loan to clients, brokerage commission, capital gain/loss from securities, portfolio management services, issue management fees, corporate advisory fees and underwriting commission during the period of 2011-2015. Among them the trend equation of investment in securities, margin loan to clients, and corporate advisory fees are positive incase of all the selected merchant banks. Square of correlation coefficient (r2) has also been tested for all trend equations. The r2 of interest income from merchant bank, portfolio management services, settlement and transaction fees and documentation fees, is more than 0.5. It indicates the prospect of merchant banks in Bangladesh is bright.

Sham revisited: has Snook passed its sell-by date?

The policy considerations that underpin the concept of sham are protection of the rule of law, to prevent abuse of fundamental legal principles, to preserve the law's good reputation and prevent evasion of statute. The original test was wide and did not require proof of a joint intention to give a false impression. The test for sham was greatly narrowed by Snook v London and West Riding Investment Ltd which has been applied to trusts, though it is not obvious that Diplock LJ intended this. The recent decision of the Supreme Court in Autoclenz v Belcher suggests that equality of bargaining position between arm’s length parties to a commercial contact provides a sufficient safeguard against collusive abuse of the Snook kind. Where this is absent, the Supreme Court considered greater vigilance is required. Autoclenz concerned employment relations, but the inequality of bargaining position when a trust is created, coupled with the observed instances of abuse, might call for a more interventionist approach and, according to the Supreme Court, lead to a test based on whether the trust instrument reflected the true agreement between the parties which would be ‘gleaned from all the circumstances of the case, of which the written agreement is only a part’. These matters are considered in this article.

The Sanum Case: A Comparison between ICSID and Ad Hoc Investment Treaty Arbitration Government of the Lao People’s Democratic Republic v Sanum Investments Ltd [2015] 2 SLR 32

The <i>Sanum</i> Case: A Comparison between ICSID and <i>Ad Hoc</i> Investment Treaty Arbitration <i>Government of the Lao People’s Democratic Republic v Sanum</i> Investments Ltd [2015] 2 SLR 32

Government of the Lao People’s Democratic Republic v Sanum Investments Ltd

Government of the Lao People’s Democratic Republic v Sanum Investments Ltd

“DUPED” SHAREHOLDERS MAY APPLY FOR WINDING-UP ORDER – SECTION 81(1)(e) OF THE COMPANIES ACT 71 OF 2008 Pinfold v Edge to Edge Global Investments Ltd 2014 (1) SA 206 KZD

In what is the first case of its kind that to have come before the South African courts the shareholders in Pinfold v Edge to Edge Global Investments Ltd (2014 (1) SA 206 KZD) were granted permission by the KwaZulu Natal High Court (Durban) to wind up Edge to Edge Global Investments, a public company on allegations of fraud committed by the directors of the company. The application was brought before the court in terms of section 81(1)(e) of the Companies Act 71 of 2008. The decision is significant as it provides insight as to what the courts would consider to be fraudulent, illegal and a misuse or waste of the company's assets by the directors of a company, and what the shareholders of a company need to prove in order to be successful in an application based on section 81(1)(e) of the Act.

Ariadne's Skein again: secret profits in Sinclair v Versailles and FHR v Mankarious

The question whether a gain received by a fiduciary in breach of duty is held by him on constructive trust for his principal from the moment of its receipt was answered by Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2012] Ch 453, where the Court of Appeal (declining to follow a decision of the Privy Council) held that a proprietary remedy was not available. This decision was examined in a special issue of Trusts & Trustees (Vol. 18, No. 10, November 2012). The question is going to be finally answered—providing welcome clarification—by the Supreme Court in FHR European Ventures LLP and other companies v Mankarious and other companies at a hearing listed to commence on 17 June 2014. This article looks at the background of the Sinclair and Mankarious cases and the issues facing the Supreme Court.

The Quistclose Doctrine: Resurrection of the Primary Trust?

The recent decision of the Federal Court of Malaysia in PECD Bhd (in liquidation) v Amtrustee Bhd [2014] 1 MLJ 91 was unusual in that it followed and applied the primary-secondary trust analysis of Lord Wilberforce in Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 (HL) as the proper legal basis of the Quitsclose trust in Malaysia. A careful inspection, however, reveals that the decision reflects a distortion and misapplication of the Quistclose doctrine which gives rise to considerable concern.

The Pallant v Morgan equity reconsidered

This paper argues that the Pallant v Morgan equity should not be recognised as an independent doctrine because it does not rest on any tenable jurisprudential basis. It shows that a characterisation based on ‘common intention’ should be rejected because it is inconsistent with established legal principles and commercial practice. The alternative explanation based on breach of fiduciary duty, as suggested by Etherton LJ in Crossco No. 4 Unlimited v Jolan Unlimited [2011] 2 All ER 754 fares no better, as there is no reason why the Pallant v Morgan equity cases should be considered separately from other instances of breach of fiduciary duty in law. Further, this account must however be read in light of the Court of Appeal's decision in Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2011] 3 WLR 1153 which ruled that proprietary relief is only allowed in circumstances where the breach amounts to abuse of the principal's asset. This requirement is particularly difficult to satisfy in the paradigm case of the Pallant v Morgan equity, save in the case of agency. But where there is a relationship of agency, a constructive trust will also arise in accordance with an established agency principle, resulting in duplication in results.

SOIL FERTILITY STATUS OF OIL PALM PLANTATIONS IN DELTA NORTH AGRO- ECOLOGICAL ZONE, DELTA STATE, NIGERIA

The study was carried out to access the fertility status of soils under oil palm production in Delta North Agro-ecological zone, Delta State. The zone was made up of nine local government areas. Structured questionnaires and oral interview were administered to oil palm farmers in the zone. Six out of the nine local government areas were selected for the study, one oil palm plantation was se- lected from each local government area, they were: Oil Palm Company, Ubulu-Uku, Aniocha South; Bacchor’s Farm Plantation, Ika North-East; Delsu Investment Ltd Oil Palm, Oshimili South; Emelue Farms, Ekwuku Agbor, Ika South; Akpofure Farms, Kwale, Ndokwa West and Emeka Farms, Akwuku-Igbo, Oshimili North. Composite soils were sampled at two levels (top soils 0-15cm and sub soils 16-30cm) from each farm. Data collected were on cultural management practices, soil texture, soil pH, organic matter, total nitrogen, available phosphorus and exchangea- ble bases. The data collected were analyzed using mean and coefficient of variation. The results show that fertilizers were applied without reference to recommended rate, no record of soil testing. The soils were mostly sandy and it decreases with depth while silt and clay content increases with depth. The soils pH was moderate and its fall within the range recommended for tropical crops (5.5 -6.5) except Oil Palm Company where the soil pH is less than 5. The soils organic matter was me- dium except Oil Palm Company and Emelue Farms that had higher at the top and low content at the sub soils. Total nitrogen was low except Oil Palm Company and Emelue Farms that was medi- um at the top soils. Available phosphorus was low to medium, also exchangeable bases were low. Thus, the soils are low in major plant nutrients, the continuous oil palm production without fertiliz- er application will further lead to more soil degradation. For maximum production, fertilizer appli- cation is necessary.

Effects of Soya Bean Meal Feed Properties on Extrusion Failures and Implementing a Solution. Case Study Monmouth Path′s Investments (Pvt) Ltd, Harare, ZimBabwe

This research was a contribution on the optimization of extrusion process by determining the effects of feed properties on extrusion failures and implementing a solution. The objectives of the research were to increase the set soy meal to chunk conversion standard from 65% to 80%; to determine the effects of feed properties on extrusion failures; to determine the best conditions of the feed properties that promote an effective extrusion cooking process; and to determine a solution of optimizing these feed properties for successful extrusion. The research was company based and it followed the failures of extrusion experienced at Monmouth Path Investment (Pvt) Ltd in Waterfall, Harare. This research was limited to feed properties such as fat content, moisture content and particle size as the factors that cause extrusion failures. The determination of moisture content was done by using a moisture analyzer, fat content was determined through the Soxhlet method and the particle size of the feed was determined through sieve analysis. The results revealed that extrusion process was most successful when the soy meals fat content was greater than 6.0%, with a moisture content less than 6.0% and particle size range of 0.95-1.0mm. The process of optimization of extrusion process was solved by designing an extrusion calculator and blending ratio factors. The objective of determining the effects of feed properties on extrusion failures was achieved as well as that of implementing a solution. The objective of increasing Monmouth Path’s standard soy meal/chunk conversion was partially achieved since the implemented solution is not yet measurable.

Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd (in Administration) Court of Appeal [2011] EWCA Civ 347

THE PURSUIT OF PROPRIETARY REMEDIES FOR BREACH OF FIDUCIARY DUTYThere is an old adage that if an opportunity looks too good to be true, then it almost certainly is. Despite this, the law reports are filled with examples of people seeking redress for the fallout from “get rich quick” schemes that have gone wrong. One type of scam, exemplified by the fraudulent investment scheme run by Bernard Madoff from the United States and which collapsed in 2008, is known as a “Ponzi1 scheme”.2 The wrongdoer in such a scheme invites “investments” promising a high rate of return. The funds subscribed are not in fact invested (or if they are, they are invested in vehicles which produce a lower rate of return than that promised). Instead, the money from new subscribers is used to pay the rewards to earlier subscribers. In due course the scheme is bound to collapse, because there will be a point at which the new funds coming in are insufficient to make the payments to existing subscribers, and the bubble of new investment can continue only for as long as there is confidence on the part of subscribers, encouraging fresh deposits. When the scheme begins to unravel, it falls apart very quickly, since the assets held by the wrongdoer are inevitably inadequate to reimburse all of the subscribers in full. In the ensuing insolvent liquidation, subscribers stand to recover only a small fraction of their subscription as unsecured creditors unless they can demonstrate that they have a proprietary interest in some of the remaining assets. Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd is a case involving what the judge at first instance called a “classic Ponzi scheme”.

COOLING OUT THE MARKS

Why has the financial crisis not led to more radical public contestation and political reforms? In investigating the muted response to the crisis so far, the paper highlights the significance of ideological fantasy for appreciating the interpenetration of economy and society. We interpret this muted response to the crisis in terms of a ‘cooling out’ process (Goffman) underpinned by a restorative fantasmatic narrative. The ‘enjoyment’ derived from scapegoating individual bankers has narrowed the debate and stifled political imagination and mobilization. By investigating a range of media and policy responses to the meltdown, we conclude that the pre-credit crunch ideology of ‘no more boom and bust’ has been replaced by an equally ideological narrative that promises a re-normalization of processes of financialization. This allows for the preservation of key elements of neo-liberal capitalism as well as the marginalization of alternative projects. The paper shows how, exemplified by the establishment and operation of United Kingdom Financial Investments Ltd, the post-crisis ideology continues to shield financial markets from public scrutiny and intervention.

Thomas Hare Investments Ltd (as Trustee of the Hare Family Trust) v Hare and Others

Thomas Hare Investments Ltd (as Trustee of the Hare Family Trust) v Hare and Others

Commissioner of State Revenue v Challenger Listed Investments Ltd (as trustee for Challenger Diversified Property Trust 1)

Commissioner of State Revenue v Challenger Listed Investments Ltd (as trustee for Challenger Diversified Property Trust 1)

Telenor East Holding II AS v Altimo Holdings &amp; Investments Ltd and Ors

Telenor East Holding II AS v Altimo Holdings &amp; Investments Ltd and Ors

Extending the commercial reach of charitable institutions : the High Court case of World Investments Ltd

The High Court decision on the entitlement of entities to be regarded as "charitable institutions" is discussed in detail. The authors consider the Australian legislative and common law background concerning charitable institutions, analyse the policy considerations surrounding the decision, and then examine the practical implications of the case.

Ellerman Investments Ltd v. C-Vanci, [2006] EWHC 1442 (Ch.) (Eng.)

Gaming Law ReviewVol. 10, No. 5 Full-Text CasesEllerman Investments Ltd v. C-Vanci, [2006] EWHC 1442 (Ch.) (Eng.)Published Online:26 Oct 2006https://doi.org/10.1089/glr.2006.10.514AboutSectionsPDF/EPUB Permissions & CitationsPermissionsDownload CitationsTrack CitationsAdd to favorites Back To Publication ShareShare onFacebookTwitterLinked InRedditEmail FiguresReferencesRelatedDetailsCited byPursuit RevisitedSSRN Electronic JournalDistinguishing Different Kinds of Property in Patents and CopyrightsSSRN Electronic JournalBuyouts of minority shares after a successful unfair prejudice petition.SSRN Electronic Journal, Vol. 46The Political and Governance Risks of Sovereign WealthSSRN Electronic Journal, Vol. 1345Equitable Subrogation in Australia and EnglandSSRN Electronic JournalOnline Platforms and Antitrust: Where Do We Go From Here?SSRN Electronic JournalRole of Blocking Injunctions in Balancing the Right of Individuals and Rights of Intellectual Property OwnersSSRN Electronic JournalContractual Strategies and Managerial Opportunism in Leveraged Transactions: Rethinking Unsecured LendingSSRN Electronic JournalFilling the IP Gap: Privacy and TabloidismSSRN Electronic JournalText to Bits: Beyond the Revolution in Law and LawyeringSSRN Electronic JournalConfidential Information as Property?SSRN Electronic JournalIs Section 172 of the Companies Act 2006 Capable of Delivering for All Stakeholders?SSRN Electronic JournalPrescription By and Against LesseesSSRN Electronic JournalReplacing Risk-Taking ReasoningSSRN Electronic JournalEuropean Cross-Border Insolvency Regulation as a Tool Against Forum-ShoppingSSRN Electronic JournalThe Companies Act 2006 and the Directors' Duty to DiscloseSSRN Electronic JournalHedge Funds, Master Netting Arrangements and Rehypothecation: Limiting Systemic Risk Through Increased TransparencySSRN Electronic Journal Volume 10Issue 5Oct 2006 InformationCopyright 2006, Mary Ann Liebert, Inc.To cite this article:Ellerman Investments Ltd v. C-Vanci, [2006] EWHC 1442 (Ch.) (Eng.).Gaming Law Review.Oct 2006.514-518.http://doi.org/10.1089/glr.2006.10.514Published in Volume: 10 Issue 5: October 26, 2006PDF download

Invensys Australia Superannuation Fund Pty Ltd v Austrac Investments Ltd and Others

Invensys Australia Superannuation Fund Pty Ltd v Austrac Investments Ltd and Others

The scope of EC harmonising powers revisited?

Judgement of the CJEC in Case C-491/01, The Queen and the Secretary of State for Health ex parte British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd (Tobacco Manufacturing Directive Case)