Restitution Discussion Group Archives
| Sender: |
Lionel Smith |
| Date: |
Thu, 5 Dec 1996 18:23:52 +0000 |
| Re: |
Conflicts/proprietary claims |
Re
Polly Peck International Plc In the Ch.D. on 29 November Rattee J decided not to
strike out, but on the contrary to give leave for, a proprietary claim
against Polly Peck by former owners of real property in N. Cyprus, expropriated
after the invasion by the Turkish army, in respect of enrichment received
by the sale of shares in its allegedly trespassing subsidiaries, whose
title to the properties depended solely on the law of the unrecognised
Northern govt. The administrators of PP intended to distribute to unsecured
creditors; the plaintiffs seek to come in ahead by virtue of their proprietary
claim. As well as raising issues of the conflict of laws and of proprietary claims,
this case seems to raise a general issue in respect of unjust enrichment
and corporate law. If a corporation is enriched with the result of raising
the market value of its issued shares, are the shareholders enriched? I
would have thought not, at least not in the subtractive sense. Corporate
identity aside, it seems hard to get two subtractive enrichments out of
one. (A claim based on the disgorgement of the profits of a wrong would
be different I think, but of course that would require a wrong by the shareholder.)
My only authority is a holding that this is right at least in an action
for "reception de l'indu" (payment of a thing not due) under the Civil Code
of Lower Canada: Pearl [1996] RLR §100. I am sure Eoin will tell me why I am wrong ... :-)
Lionel
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