In re apco liquidating trust
One can easily understand why that should be so, because how else is a court able to find a cogent basis to waive or ameliorate the effect of the strict application of the legal consequences of company law as between the shareholders in a company as being just and equitable?
Having rehearsed the content of the principle which the appellants sought to invoke it is time to consider whether the evidence on which the appellants’ case was founded sustained the grant of the relief sought by them.
If by conduct which is either wrongful or not as contemplated by the arrangement, one or more of the members destroys that relationship, the other member or members are entitled to claim that it is just and equitable that the company should be wound up’.
19, the deadlock principle ‘is founded on the analogy of partnership and is strictly confined to those small domestic companies in which, because of some arrangement, express, tacit or implied, there exists between the members in regard to the company’s affairs a particular personal relationship of confidence and trust similar to that existing between partners in regard to the partnership business.
But the expressions may be confusing if they obscure, or deny, the fact that the parties (possibly former partners) are now co-members in a company, who have accepted, in law, new obligations.
A company, however small, however domestic, is a company not a partnership or even a quasi-partnership and it is through the just and equitable clause that obligations, common to partnership relations, may come in.
The shares in the respondent company are held between seven trusts.
The rights and obligations attaching to each shareholding therefore vest in the trustees of the respective trusts acting jointly and in terms of the applicable trust instruments. It must be accepted, however, that the duties of the trustees are defined by the various trust instruments in terms of which they have been appointed.
The “just and equitable” provision does not, as the respondents suggest, entitle one party to disregard the obligation he assumes by entering a company, nor the court to dispense him from it.