Re S & B Tweed Garage Ltd

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Hylton, J.
• Judgment Date: 11 January 1993
• Neutral Citation: KN 1993 HC 2
• Docket Number: No. 2 of 1992
• Date: 11 January 1993

High Court

Hylton, J.

No. 2 of 1992

Re S & B Tweed Garage Ltd.

Appearances:

Dr. H. Browne and Mr. G. Hamilton for petitioner

Sir Probyn Inniss and Miss, A. Inniss for respondent

Company law - Winding up — Company formed with S & B (Brothers) as shareholders and directors — Agreement that S would leave company not implemented — Draft agreement by brothers to separate never materialised — On Jan. 9, 1992 S petitioned court for winding—up — Company never operated nor complied with Companies Act since Nov. 1988 — S & B each formed separate company and operated independently — Section 116 of Cap. 335 — S not proper person to bring petition — Court exercises discretion — Company to be wound up and official liquidator appointed.

Hylton, J.

THE BACKGROUND

1 The evidence discloses that Bertram and Sylvester Tweed — brothers carried on business as partners for many years from about the year 1978 until 14 ^th January, 1985 when a new “legal person” “S & B Tweed Garage Limited was incorporated with the same two brothers as the shareholders and Directors of the Company. The objects of the Company were:–

• (a) To carry on the business of a garage proprietor;

• (b) To deal in the business of repairs of motor vehicles of any description;

• (c) To manufacture and produce motor vehicle parts;

• (d) To import, sell and. market motor vehicle parts of any description;

• (e) To lease, rent or enter into any contract for the leasing or renting of any motor vehicle or heavy equipment; and other objects set forth in the Memorandum of Association thereof.

2 The business of the company seems to have been conducted in much the same way as the business of the partnership had been conducted with the two brothers being in joint control. The Company was very successful it appears — (see the petition paragraph 7. This assertion was not challenged) until the year 1988 when differences developed between the brothers.

3 The younger brother Sylvester wished to expand the Company's business by acquiring more equipment for rent whereas Bertram wished to consolidate — perhaps this was due to the fact of their difference in age as this could colour their respective outlook of the present and future. However, regardless of the reason for these different outlooks there was no resolution and both Directors concluded that one would have to leave the Company.

4 To this end a meeting of the Directors and Secretary of the Company was held on 5 ^th October, 1988 with a view to settling the terms upon which Sylvester would leave the Company. A copy of the minutes of this meeting is reproduced here below:–

“Minutes of Directors of S & B Tweed Garage Ltd.

Date: October 5 ^th 1988

Venue: S & B Tweed Garage Ltd.

Present: S. Tweed

B. Tweed

Secretary

The Meeting was called to order at 5:15 p.m. with a review of the decision taken at the previous Meeting. B. Tweed reported that he was unable to do anything about the status of the title to land at Conaree because of his illness.

In response to the matter of the acquisition of Sylvester's share in S & B Tweed Garage Ltd., Bertram inquired of Sylvester as to the amount he is offering, them at.

Sylvester insisted that he first wanted a committment that Bertram is genuinely interested in buying if he were to quote a figure.

After some deliberation Sylvester listed the following as what he is prepared to take from the Company in return for relinquishing all his shares and interest in the Company.

1 — fifth wheel in the back of the yard

1 — fifth wheel Truck in the back of the yard

1 — 950 Catipillar Loader, manuals, spare parts and accessories and all obligations for money outstanding by the Company to Mr. Ralph Ramasa for payment of same.

1 — 10 yard Shaunee Poole

1 — 10 yard Shawnee Poole (old)

2 — 4' forks for Fork Lift

1 — Uncut Flatboard Trailer

1 — Yellow Low Boy Trailer

1 — Sand blasting Machine

1 — Isuzu Pickup

1 — Crimping machine with, Cutter and Rigid 300

1 — Black and Decker Sander;

1 — Small Blue Grinding Stone

1 — Large 220 V Step-down Transformer

1 — Harrow

1 — Yellow Concrete Mixer

1 — Concrete Dumper

1 — Mechanical Lathe

Also one half ( ¹/₂) of all the monies in all of the accounts of S & B Tweed Garage Ltd. on the fifth day of October 1988.

Sylvester also stated that with effect from the completion of the subsequent Meeting of Directors, he will no longer sign cheques on the Company's behalf unless the meeting results with positive progress with regard his proposal.

The Meeting decided that the next Meeting will be convened on Saturday 8 ^th October at 12:30 p.m.

The Meeting was adjourned at 5:45 p.m.

Sgd B. Tweed Sgd. S. Franks

Director Director Secretary.

However in the words of Sylvester as per paragraph 9 of the Petition difficulties arose over the implementation of the Agreement and the Same was never finalised” (underlining mine).

5 The evidence discloses that after the meeting of 5 ^th October, 1988 where Sylvester had listed the items of equipment etc. which he wished to have in the separation a subsequent meeting was held on 8 ^th October, 1988 at which the minutes of the meeting of 5 ^th October, 1988 were ratified or confirmed after amendments. A decision was also taken that the Directors of the Company together with its then Secretary Mr. Samuel Franks would attend upon a Lawyer so as to effect in legal terms the “agreement” arrived at. This meeting at the Lawyer's office did take place and a draft agreement was presented to the Directors and Secretary. These Directors and Company Secretary took their copies of the Draft Agreement way to study same with the intention of returning on the next day to sign the same — but this never materialised as Sylvester never returned to the Lawyer's office only Bertram and the Company Secretary did so.

6 Thereafter Bertram — endeavoured through his Solicitor and personally to get Sylvester to sign the Agreement to no avail and on 28 ^th March, 1990 Sylvester wrote a letter to the Company Secretary, as follows:–

“Sylvester Tweed

Wellington Road

Basseterre

St. Kitts

March 28 1990

S & B Tweed Garage Ltd.

Ponds Industrial Site

Basseterre

St. Kitts

Attn. Mr. Sam Franks — The Secretary

Sir

I wish to draw to your attention that on the 9 — 10 March 1990 in your presence I have remove what I considered to be the relevant items belonging to me (by neutral and verbal agreement in your presence) from the Company of S & B Tweed Garage Limited. I now request as a Director and 50% share holder of S & B Tweed Garage Ltd. that you as Secretary inform Mr. Bertram Tweed the occupant of the company property and Assets that Sylvester Tweed will like to have S & B Tweed Garage Ltd. windup and be paid his 50% of the value of the Company as soon as possible.

Please note that his prolong use of the Company Premises and its Assets will be given serious thoughts by me.

Yours faithfully

Sgd. Sylvester Tweed

Sylvester Tweed

CC. BERTRAM TWEED”.

7 Eventually — despite Sylvester removing (on his own admission) several items of equipment from the Company's, premises previously in pursuance of the Agreement arrived at, at the Meeting of 5 ^th October, 1988, on 9 ^th January, 1992 he caused to be filed this Petition for the Winding-up of the Company — By paragraph 10 of the Petition Sylvester deponed that “Your petitioner is owed substantial sums of money by the Company”. By paragraphs 11 and 12 he...