McGivney Construction Ltd v Kaminski & Anor [2015] ScotCS CSOH_107 (11 August 2015)

McGivney Construction Ltd v Kaminski & Anor [2015] ScotCS CSOH_107 (11 August 2015)

The court found that the disputed entries in GM's accounts (cash withdrawals, sub-contractor payments, and provision for work) were not properly vouched or justified, and that Mr Kaminski acted dishonestly in diverting business and misappropriating company opportunities. Mr Kaminski was not entitled to relief under s 1157 of the Companies Act 2006 as he failed to act honestly. The objections to the accounts were sustained and the improper deductions disallowed.

Citation
[2015] ScotCS CSOH_107
Parties
Pursuer: McGivney Construction Ltd; First Defender: Jozef Kaminski; Second Defender: Glen Maree Contracts Ltd
Jurisdiction
Scotland
Judgment Date
11 August 2015
Procedural Posture
Count, Reckoning and Payment / Judgment After Proof
Outcome
Objections to accounts sustained; improper deductions disallowed; Mr Kaminski not entitled to relief under Companies Act 2006 s1157; further procedure to be discussed; expenses reserved.
Legal Topics
Director's Duties, Breach of Fiduciary Duty, Accounting Records, Relief Under Companies Act 2006 S1157, Misappropriation of Company Opportunity
Company Law Commercial Law Director's Duties Breach of Fiduciary Duty Accounting Records Relief Under Companies Act 2006 S1157 Misappropriation of Company Opportunity

Case Brief

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Parties

McGivney Construction Ltd

Pursuer

Jozef Kaminski

First Defender

Glen Maree Contracts Ltd

Second Defender

Procedural Posture

Count, Reckoning and Payment / Judgment After Proof

Legal Issues

  1. 1 Whether cash withdrawals of about £75,000 from GM's bank account are justified as business expenses
  2. 2 Whether deductions for payments to sub-contractors are justified
  3. 3 Whether the provision for £93,000 for work still to be done is justified

Ratio Decidendi

The court found that the disputed entries in GM's accounts (cash withdrawals, sub-contractor payments, and provision for work) were not properly vouched or justified, and that Mr Kaminski acted dishonestly in diverting business and misappropriating company opportunities. Mr Kaminski was not entitled to relief under s 1157 of the Companies Act 2006 as he failed to act honestly. The objections to the accounts were sustained and the improper deductions disallowed.

Court Disposition

Objections to accounts sustained; improper deductions disallowed; Mr Kaminski not entitled to relief under Companies Act 2006 s1157; further procedure to be discussed; expenses reserved.

Orders

  • Objections to cash withdrawals, sub-contractor payments, and provision for work sustained; these are not proper deductions from the accounts.
  • Mr Kaminski's resignation date held to be 11 April 2013.