Re Macro [1994] 2 BCLC 354

Key Point

  • This case is an example of a successful claim for unfair prejudice where there were specific and continued acts of mismanagement.
  • On the facts this case could be distinguished from Re Elgindata, where management had simply been poor, whereas in present case there were:
    1. specific acts of mismanagement by Thompsons, which D failed to rectify; and
    2. acts of mismanagement were repeated over many years.

Facts

  • C owned shares in two property-owning companies. 
  • These two companies had a property managing agent, the Thompsons. 
  • C believed two companies had suffered losses due to Thompsons committing various improprieties (e.g. charging excessive management charges to two companies). 
  • C therefore sued Mr Thompsons (D), sole director of Thompsons, on grounds he had inadequately supervised his firm.

Held (High Court)

  • The acts of mismanagement were sufficiently serious to cause unfair prejudice to C.

Arden J

Principles

  • “The court does not interfere in questions of commercial judgment, such as would arise here if (for example) it were alleged that the companies should invest in commercial properties rather than residential properties.”
  • “However, in cases where what is shown is mismanagement, rather than a difference of opinion on the desirability of particular commercial decisions, and the mismanagement is sufficiently serious to justify the intervention by the court, a remedy is available under s 459. The position was explained by Warner J in Re Elgindata Ltd…”

Current case

  • In view of Mr Thompson’s control and personality, there has since the 1969 reconstruction been no realistic possibility of the appointment of alternative property managers.
  • However, this is not a case where what happened was merely that quality of management turned out to be poor >This is a case where there were specific acts of mismanagement by Thompsons, which Mr Thompson failed to prevent or rectify. Over, several of the acts of mismanagement which the plaintiffs have identified were repeated over many years, as for example in relation to the failure to inspect repairs. 
  • Those acts (and Mr Thompson’s failures to prevent or rectify them) are sufficiently significant and serious to justify intervention by the court under s 461.