Mahler et Al v Startari et Al; Robinson v Biotechna Environmental (2000) Corporation

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Mathurin, M.
• Judgment Date: 30 March 2004
• Neutral Citation: AI 2004 HC 5
• Docket Number: AXAHCV2004/0033
• Date: 30 March 2004

High Court

Mathurin, M.

AXAHCV2004/0033

Mahler et al

and

Startari et al;

Robinson

and

Biotechna Environmental (2000) Corporation

Company law - Application to bring proceedings in name of company or to intervene in proceedings to which company a party — Application in fact for an order to intervene in foreign proceedings — Application refused.

Mathurin, M.

1 This application was filed on June 11th 2003 whereby the claimant (Mr. Robinson) sought an order that leave be granted pursuant to section 261 of the Companies Act to bring an action for and on behalf of Biotechna Environmental (2000) Corporation (Biotechna 2000) derivatively or otherwise, or to otherwise intervene in proceedings to which Biotechna 2000 is a necessary party, for the purpose of doing all things necessary to prosecute, continue, defend and/or discontinue the proceedings on behalf of and in the name of Biotechna 2000 “namely, in that certain Case No 1;02 CV 2349, styled Marjorie Mahler, Edmund de Rothschild CBE, TD et al v. Joseph Startari et al currently pending in the United States District Court for the Northern District of Ohio, Eastern Division.”

2 The application was heard in chambers on the 30th March 2004 and counsel for the applicant, Mr. Thomas Astaphan relied on the said application and the affidavits filed in support thereof by Natisha Davis and James J. Bartolozzi. The decision was given orally and thereafter Mr. Astaphan requested written reasons for the decision which I will now give.

3 There were two limbs to the order sought, one was for leave to bring an action on behalf of Biotechna 2000 and the second was for leave to intervene in proceedings in an action pending in the United States District Court of Ohio. Each limb was dealt with independently. The application was made pursuant to S 261(1) of the Companies Act, Revised Statutes of Anguilla Chapter 65 states as follows –

(1) Subject to subsection (3), the court may, on the application of a member of a company, grant leave to that member to –

• (a) bring proceedings in the name and on behalf of that company.

• (b) intervene in proceedings to which the company is a party for the purpose of continuing, defending or discontinuing the proceedings on behalf of the company.

4 Subsection 261(2) lists criteria that the court must take into account when making the determination as to whether or not to grant leave. It directs the court to address its mind to factors such as whether or not the member is acting in good faith, whether the action is in the interests of the company, whether the proceedings are likely to succeed, the cost of the proceedings in relation to the relief likely to be obtained and whether an alternative remedy to the derivative claim is available.

5 Subsection 261(3) states additionally that the court may grant leave to bring or intervene in proceedings only if satisfied that the company does not intend to bring, diligently continue, defend or discontinue the proceedings, as the case may be or if it is in the interest of the company that the conduct of the proceedings should not be...