ALBERTO FORCHIELLI v. FRANCESCO DELLA VALENTINA AND ANOTHER

ALBERTO FORCHIELLI v. FRANCESCO DELLA VALENTINA AND ANOTHER

It was impracticable to conduct an effective extraordinary general meeting because the 1st Defendant would absent himself to deny a quorum; the court should exercise its discretion under section 114B to order a meeting that may be constituted by one member so the majority shareholder can exercise the statutory right...

Source-derived case information.

Citation
ALBERTO FORCHIELLI v. FRANCESCO DELLA VALENTINA AND ANOTHER
Parties
Plaintiff: Alberto Forchielli; 1st Defendant: Francesco Della Valentina; 2nd Defendant: Mandarin Capital Advisory Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 April 2011
Case Number
HCMP183/2011
Procedural Posture
Application Under Companies Ordinance (section 114 B) to Convene an Extraordinary General Meeting / Originating Summons Heard in High Court (court of First Instance); Decision Granting Order
Outcome
Application granted in part
Legal Topics
Removal of Director, Quorum and Convening Meetings, Section 114 B Companies Ordinance, Majority Shareholder Rights (section 157 B), Quasi‑partnership and Unfair Prejudice (section 168 A)
Source Language
en
Company Law Corporate Governance Civil Procedure Equity Removal of Director Quorum and Convening Meetings Section 114 B Companies Ordinance Majority Shareholder Rights (section 157 B) +1 more

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Parties

Alberto Forchielli

Plaintiff

Francesco Della Valentina

1st Defendant

Mandarin Capital Advisory Limited

2nd Defendant

Procedural Posture

Application Under Companies Ordinance (section 114 B) to Convene an Extraordinary General Meeting / Originating Summons Heard in High Court (court of First Instance); Decision Granting Order

Legal Issues

  1. 1 Whether it is impracticable to call and conduct an extraordinary general meeting in the manner prescribed by the articles
  2. 2 Whether the court should exercise its discretion under section 114B to order a meeting that can be constituted by one member
  3. 3 Whether alleged oral agreement/quasi‑partnership bars exercise of statutory right to remove a director

Ratio Decidendi

It was impracticable to conduct an effective extraordinary general meeting because the 1st Defendant would absent himself to deny a quorum; the court should exercise its discretion under section 114B to order a meeting that may be constituted by one member so the majority shareholder can exercise the statutory right under section 157B to remove a director; the 1st Defendant's allegation of a quasi‑partnership was unproven and did not bar the order; allegations of mismanagement and commercial considerations were irrelevant to the s114B discretionary exercise and should be addressed in appropriate procedures (eg s168A/s459).

Court Disposition

Application granted in part

Orders

  • An extraordinary general meeting of the 2nd Defendant to be convened on 3 May 2011 for the purpose of considering and, if thought fit, passing the resolutions in the schedule hereto
  • Attendance by one member either personally or by proxy shall constitute a quorum at the said extraordinary general meeting