‘I am unwilling to continue to be solely responsible for managing the company under the current circumstances and require your acceptance to the above offer. If no response is received, I will take appropriate measures. Having taken legal advice I am prepared to liquidate [the Company], and have already taken steps to ensure smooth transition of clients if necessary.’
‘[47] At the first meeting with Libertas, I was asked about the debts of the Company and whether any Personal Guarantees had been given. I explained that there was a debt to Barclays bank in relation to which [Mr Nash] and I had both given Personal Guarantees. I felt that, despite the Personal Guarantees being on a joint and several basis, it was very unlikely that the Personal Guarantee could be enforced against [Mr Nash] as he was no longer resident in the UK. I was concerned that all the responsibility would fall on me but I did not personally have the funds to discharge this and I asked whether [CCI] would be able to pay it. It was suggested to me that the proper way to do this was for the Company to ask [CCI] to discharge its debt such that the Personal Guarantees would not be implemented. These monies would then be classed as a Directors Loan between myself and [CCI]. The Company therefore held a Board Meeting on22nd June 2021 at which it was resolved that the Company would request that [CCI] pay the debt when demanded by Barclays. At a meeting of shareholders of [CCI] on11 August 2021 it was agreed that [CCI] would pay the sum of£34,976.86 to Barclays Bank when demanded. This it did, prior to the liquidation (IM pages 61-62). I now owe this money to [CCI] by way of a Directors’
‘[47] At the first meeting with Libertas, I was asked about the debts of the Company and whether any Personal Guarantees had been given. I explained that there was a debt to Barclays bank in relation to which [Mr Nash] and I had both given Personal Guarantees. I felt that, despite the Personal Guarantees being on a joint and several basis, it was very unlikely that the Personal Guarantee could be enforced against [Mr Nash] as he was no longer resident in the UK. I was concerned that all the responsibility would fall on me but I did not personally have the funds to discharge this and I asked whether [CCI] would be able to pay it. It was suggested to me that the proper way to do this was for the Company to ask [CCI] to discharge its debt such that the Personal Guarantees would not be implemented. These monies would then be classed as a Directors Loan between myself and [CCI]. The Company therefore held a Board Meeting on22nd June 2021 at which it was resolved that the Company would request that [CCI] pay the debt when demanded by Barclays. At a meeting of shareholders of [CCI] on11 August 2021 it was agreed that [CCI] would pay the sum of£34,976.86 to Barclays Bank when demanded. This it did, prior to the liquidation (IM pages 61-62). I now owe this money to [CCI] by way of a Directors’
‘On 22.7.21, Barclays made a demand of the company for repayment. Thereafter, following authorisation by CCI on 11.8.21 to make the payment, CCI acting on the earlier express authorisation by the Company paid on 25.8.21 the sum of£34,976.86 to the Company [ie into the Company’s overdrawn bank account], with which the Barclays Debt was directly discharged.’
‘It is necessary for the claimant to prove the defendant’s express or implied request to the claimant to pay the money for his use. It is not sufficient to prove the defendant was liable to a third person and that the claimant paid the third person: it must be proved that the claimant did so at the instance, express or implied, of the defendant … For no legal right to repayment will be established by the mere voluntary payment of the debt of another person; a man cannot make himself a creditor of another without his knowledge and consent ….’
‘Subject to the provisions of the Act, the memorandum and the articles and to any directions given by special resolution, the business of the company shall be managed by the directors who shall exercise all the powers of the company’
‘If powers of management are vested in the directors, they and they alone can exercise these powers. The only way in which the general body of shareholders can control the exercise of the powers vested in the articles is by altering the articles …’
‘why was he aware’ and answered: ‘because in discussions in 2019 he was aware that if the company went into liquidation he would be liable under the guarantee’
‘If a person makes a voluntary payment intending to discharge another’s debt, he will only discharge the debt if he acts with that person’s authority or the latter subsequently ratifies the payment. Consequently if the payor makes the payment without authority and does not obtain subsequent ratification he normally has no redress against the debtor’
‘The articles say nothing as to how or when the directors are to arrive at their determination. In my judgment, therefore, provided only and always that by that time the term relied upon is sought to be enforced all the other directors can be shown to have concurred in the agreement of that term, it can then fairly and properly be said that they have indeed determined it as the article requires. That directors, provided they act unanimously, can act informally appears clearly established – Re Bonelli’s Telegraph Co. Collie’s Claim (1871) LR 12 Eq 246 and Charterhouse Investment Trust Ltd v Tempest Diesels Ltd(1985) 1 BCC 99 ,544 so decide, the latter on the basis that informal acquiescence by other board members in an otherwise unauthorised agreement by one of their number binds the company.’
‘For the Duomatic principle to apply the court must be satisfied that all the shareholders whose consent is required have in fact assented. The court would not accept that assent has been given where the shareholder was unaware that his assent was necessary or being sought, or where inadequate disclosure is given. Since the written resolution procedure makes it simple for private companies to obtain a recorded decision of its members and companies are obliged to keep records of written resolutions and minutes of general meetings, the courts may become more sceptical about attempts to set up informal unanimous agreements that are not properly recorded, particularly when the alleged agreement is claimed to have the same effect as a special resolution.’
‘Although the principle has been characterised in somewhat different ways in different cases, I do not consider that that is because its nature or extent is in doubt or the subject of debate. The difference in language is attributable to the fact that the principle will have been expressed by reference to the particular facts of the case. The essence of the Duomatic principle, as I see it, is that, where the articles of a company require a course to be approved by a group of shareholders at a general meeting, that requirement can be avoided if all members of the group, being aware of the relevant facts, either give their approval to that course, or so conduct themselves as to make it inequitable for them to deny that they have given their approval. Whether the approval is given in advance or after the event, whether it is characterised as agreements, ratification, waiver, or estoppel, and whether members of the group give their consent in different ways at different times, does not matter.’
‘was told, on the telephone, of the projected bonus issue, and its general effect, before15 December 1999 , but that there was no question of their consents being sought or given in those telephone conversations.’
‘I meant that when we received demand from Barclays, CCI would be asked to pay’
‘A defendant will be held to have benefited from the services rendered if he, as a reasonable man, should have known that the claimant who rendered the services expected to be paid for them, and yet did not take a reasonable opportunity open to him to reject the proffered services. Moreover, in such a case, he cannot deny that he has been unjustly enriched.’
‘17-11 The defendant must know, or ought to have known, that the claimant expected to be paid (or remunerated in some other way) for his services. It is for the claimant to make this expectation clear to the defendant. Thus, there is no liability where a defendant freely accepts services which he was led to believe were being conferred gratuitously.... 17-12 Free acceptance will also fail where the defendant believes, as a reasonable person, that the services he is being offered are to be paid for by a third-party. …’
‘Where a defendant has had no option about whether to accept the benefit principle of free acceptance does not apply. In other words, there must have been an opportunity to reject the benefit…’
‘(a) any debt or liability to which the company is subject at the relevant date [the date on which the company goes into liquidation]: rule14.1(1)]. (b) any debt or liability to which the company may become subject after the relevant date by reason of any obligation incurred before that date …’
‘present or future, certain or contingent, ascertained or something only in damages’
‘debt or liability is present or future, whether it is certain or contingent, or whether its amount is fixed or liquidated, or is capable of being ascertained by fixed rules or a matter of opinion’
‘must have taken or been subjected to, some step or combination of steps which (a) had some legal effect (such as putting it under a legal duty or legal relationship) and which (b) resulted in it being vulnerable to the specific liability in question, such that there would be a real prospect of that liability being incurred.
‘Further, insofar as the payment of the Barclays overdraft by CCI was made after the commencement of the liquidation, it is submitted this liability arose from a pre-liquidation obligation (i.e. the authorisation by [the Company] that CCI may pay) for which [the Company] could become subject after the commencement of the liquidation.’
‘However, Harman J’s observation must be seen in the context of a vote in which some of those entitled to vote were refused outright. Even so, Harman J decided that no new meeting needed to be called because that was not a ‘useful course’
‘[26] In my judgment, much will depend on the question on which the vote has been taken. In the present case there was only one question for decision at the meeting: who was to be appointed as liquidator? There were only two candidates, so that the issue was clear-cut. In other cases the matters for decision maybe more complex: for example a proposed IVA may be the subject of amendments proposed by creditors, and different creditors might vote in different ways, depending on who is entitled to vote (and hence will be bound by) the IVA. The court must also, I think, be mindful that the summoning of a new meeting is likely to involve expense both for the creditors, and also for the office holder whose fees will be paid in priority to any dividend for creditors. Where insolvency is involved, the court should be concerned to minimise the costs involved. [27] There may also be difference in approach in a case in which the chairman has refused to allow a creditor to vote for his full entitlement (either because he has rejected the proof or because he has only admitted it in part) and a case in which a creditor has been allowed to vote, but his vote is subsequently declared invalid. In the former case, a person with an entitlement to vote has not been permitted to cast his vote either in the full amount or at all. In such a case, the principle of creditor democracy may lead the court to re-run the meeting, so that all those who are entitled to vote have that opportunity. If the court were to decline to order a new meeting, it would be making a decision on a subject where the rules give the decision-making power to the creditors. A creditors’ meeting would thus be treated as having made a decision which it had not made at all. In such a case, Harman J may well be right in saying that prima facie the court would order a new meeting, and that there must be something in the evidence to displace that default position. In the latter case, however, all those entitled to vote will have cast their votes, as well as some who were not; and the outcome of the meeting can readily be deduced by eliminating any vote that is subsequently declared to have been invalid. I do not see that in the latter case, therefore, there is a default position pointing towards the summoning of another meeting. If anything, at least in a case where there was only one clear-cut issue before the meeting, it seems to me that the default position is that no new meeting should be summoned ….’
‘HS: You accepted a figure, AJ says it’s about 20k more. You say it is somewhere in between. You haven’t repaid these. IM: No. HS: You haven’t been asked? IM: No. HS Why haven’t you repaid yours? IM: Financial problems and waiting for this to be resolved. HS: Can you understand the A’s frustration you haven’t been required to repay? IM: I am not a liquidator. HS: You should have paid this on day 1? IM: Yes, but I can’t account for the Liquidator’