Re: Defective-procedure & estoppel & quasi-partnerships

On 16 Aug 2008, "Chris Glur" s/k/a "problems@gmail" - who is aware
that, procedurally (in many respects not substantively), the judicial
legal system in his country, So. Africa, uses rules very similar to
those of the FRCP that apply in/for U.S. federal district (and similar
state) courts - again said/queried in pertinent part:

>|}For example, [it used to be said that] a plaintiff 
>|}bringing a trespass suit would have to mention
>|} certain key words in his complaint or risk it being
>|}dismissed with prejudice."
>
> So 'a plaintiff bringing a trespass suit' omitted to mention
> [whatever may have been the required key word for the
> particular kind of lawsuit].
> [May] s/he now bring a new/ammended suit whith the same
> facts and argument, but merely include/add 'mention 
> [those previsoulsy omitted key words]' ? 
> Or does the principle of one bite of the apple apply; 'should
> have been brought/stated in original application'?

Assuming it to be posed in good faith, this question is puzzling
because other newsgroup postings of yours indicate that you learned
long ago from your own legal research and from many newsgroup postings
relating to a different lawsuit in which you have been involved (that
is, one not relating to the dispute and litigation to which presumably
you now refer that arises in connection with the ownership and
operation of a family owned business in So. Africa) 

        - that the So. African courts essentially follow what
     in the U.S. has also become the known as so-called
     "modern" versions of "collateral estoppel" in ways that
     in many cases render moot formerly narrower "res judicata"
     principles,  and/but also

        - that the rules/principles applied in So. Africa that
     enable/limit supplementation to or amendments of pleadings
     largely parallel the principles summarized in (U.S.) FRCP 15. 

Anyway, the answer to your question above, in/for any particular
lawsuit (whether in the U.S. or in Gt. Britain, or in So. Africa)
remains dependent on the factual and theory-of-recovery particulars of
whatever is alleged to be the "trespass" at issue in lawsuit in
question (breach of contract? tort? statutory violation? breach of
fiduciary duty? etc.) and on whether you are/aren't correct (though,
possibly, you may be correct) to frame this query in terms of the
omission of "key words" and, above all, on the specific
claims/arguments made by the parties in support of and in opposition
to dismissal and (to the extent if at all there are any) the grounds
the court said it relied on as reasons to dismiss.

>   *   *   *    A concrete case [in S Africa] which covers
> the issues which I raised:
> 1. IMO the applicant brought the wrong arguments, since
> the quasi-partnership principle [exception to Foss v Harbottle]
>  is little known;
> 2. is the victim permanently screwed by estoppel ? ;

As apparently relevant to this query even though still posed in such a
vague/conclusory manner, the gist of the So. African procedural rules
presently (and for some time) in effect that may be relevant are

        - that the plaintiff is required in the first instance
     concisely to allege no more than the basic operative facts
     of the transactions/occurrences alleged to entitle plaintiff
     to relief and a (usually: briefly/concisely statable) theory
     of recover (re. which there presumptively are not "magic 
     words" in any procedural sense of that term)  and

        - that in ruling on a pre-answer motion to dismiss for
     claimed failure of plaintiff to have alleged facts which, if
     later admitted or otherwise proven, would entitle plaintiff
     to at least a substantial portion of the relief sued for, the
     court ordinarily should liberally and more or less freely
     grant leave to amend the complaint (including in the first
     instance, to include amplification or other change in the
     legal theory of recovery) on a finding that plaintiff seeks
     to do so in good faith.

One cannot tell from your earlier and present postings in this thread
what plaintiff or what the defendants had alleged and argued as a
matter of law or (whether or not the ruling in the case to which you
refer was "little known") what (if any) reasons the court articulated
in directing a "with prejudice" dismissal. 

Included in what your persistent factual vagueness prevents evaluating
is whether (or not) a reason for such dismissal in the lawsuit
presently of interest to you was that (regardless whether the decision
to which you refer above was or was not "little known" - although it
is a comparatively very well known decision for those interested in
this sort of thing in Gt. Britain and in the U.S.) plaintiff had made
some sort of admissions that may have invited a dismissal and whether
in that connection the predicated its court ruling on arguments about
the legal effect of what the plaintiff had alleged in the complaint
compared with making factual determinations (and, if so, based only on
affidavits or after an evidentiary hearing of some kind and, if the
latter, resulting in what judicial findings of fact based on what
testimony or other evidence in the record).  However, all these
factors need be considered to evaluate the extent or not to which "res
judicata" or "collateral estoppel" or other principles of "estoppel"
ought (law-correctly) bar later litigation arising from same or
substantially the same originally alleged underlying
transactions/occurrences sued upon.  As of course you know by now.

> [Suppose that] the 50 % shareholding wife
> was divorceing her 50% shareholding husband.
> He contrived the entry of a minor shareholder, 
> who together enabled them to out vote the wife.
>  Her application for relief followed 'normal' 
> company [ie. publicly traded] law. She was 
> accordingly refused relief.  PS. I don't need to
> explain the fact that the majority of a small Pty,
> can extract ALL value as director fees ?

If the wife owned 50% of the shares of the business and the husband
the other 50% and if they were at odds about the management of the
business, what (if anything) prevented the wife from obtaining a
dissolution and wind-up of the affairs of the corporation and wind-up
of its affairs?

Given the ownership percentages you posit and bearing in mind, too,
your earlier references to "looting" or the like, what did the wife
allege and prove in this connection?  Alternatively, to what (if any)
extent did the husband prove that there were well-founded reasons in
light of applicable law to oust her from the business?  Certainly,
however, even you ought be aware that there is not any way reasonably
to expect anyone who does not know this information to be able to
judge whether or not the wife's failure to prevail was attributable to
her failure to allege "magic words" or whether the application to her
of "collateral estoppel" or other "estoppel" related principles is
even arguably incorrect (or not). 

Though it also is not possible to glean only from your skeletally
vague statement above or from what you refer to as your "notes" below*
that this or something close is what you are attempting to argue, if
you are trying to suggest that the wife ought be and also claimed some
sort of marital interest as an element of their divorce lawsuit to a
portion of her husband's 50% share in the business, what were the
facts and theories of law she alleged and that the husband alleged in
this respect?

If (as, however, you seem to be suggesting) you refer to a litigation
in which the man and woman in question (whether or not husband and
wife) chose to litigate as no more than as equal shareholders of a not
publicly-traded corporation, since, presumably, you imply that the
wife had not sold or given any of her shares to the person to whom you
refer as a "minor shareholder" so that you appear correlatively to
imply that that person acquired whatever shares in the business he
owned from the husband, then you have yet to explain (and the "notes"
below certainly do not explain) how the two "contrive[rs]" --
presumably still owning no more, in the aggregate, than 50% of the
business' shares -- could "out vote" the wife who owned the remaining
equal number of shares in the enterprise.

(I confess that my crude arithmetical skills and what little I know
about corporate law suggest to me that 50% cannot "out vote" 50% in
the absence of legislation, which you do not claim exists let alone
cite, or an agreement, which you do not say pertains to the husband
and wife to whom you refer, enabling such an "out vote".)

Note, too, that the material you quote below appear to refer to a
fully litigated lawsuit, i.e., one that was not determined until after
a trial in which each of the parties chose the theories each claimed
required a ruling each's favor and that, insofar as pretrial
allegation was concerned, the court did not rule against the wife on
the ground that she omitted some sort of "key words"and, rather, that,
to the extent questions of allegation were later at issue after the
trial, she did not allege "with sufficient clarity" the facts or
legal theory of recovery she belatedly invoked even though, to the
extent she may have sought legislatively provided for relief, it was
not necessary explicitly that she have alleged "the..section number
and statute" on which she relied.

Here as too many times earlier, you therefore appear to be conflating
as if one and the same what are any number of separate issues;
although a reading of the "notes" below you pretend reluctantly to
post will confirm that they do not in any meaningful way address much
less actually resolve _any_ of the issues about which you asked
earlier and above.

Generally stated, the essentially two-part rule in So. Africa to which
you appear to refer is to the effect 
     that a plaintiff who seeks relief from a court is required to
allege the relevant/operative facts with reasonable clarity and also
to allege, though with no more than reasonable (i.e., almost always
non-formalistic/non-technical) clarity, the theory of liability
claimed to apply (though, again, in a case in which the plaintiff
seeks some legislatively provided for relief, ordinarily not
necessarily having to allege "the section number and statute" in
question), then actually later to prove those of such allegations that
are not admitted by the defendant, and 
   that, upon a plaintiff who charted his or her own procedural course
and who on that basis then litigated (especially if to/through a full
plenary trial or functional equivalent) yet failed to prevail, having
been given timely and otherwise fair notice and a full and fair
opportunity to be heard, will not be permitted directly or in effect
to relitigate claims/theories of recovery that were or which
reasonably could have been alleged even if not raised and decided
explicitly in the prior lawsuit if the assertedly new or different
theory of recovery arises out of the same or essentially the same
transactions/occurrences originally sued upon -- re. which there are
by well-established and easy to articulate public policy reason sand,
indeed, if more broadly, also comparatively easily articulatable
interests of justice principles to such effect -- although, too, there
might be any number of available mitigating or in effect even outright
countervailing principles that could apply to a particular case (e.g.,
that of "newly discovered evidence"), depending on the factual
specifics of such case which, however, you usually try to avoid.

As, of course, by now you also know. 


=====================================

     *  You further said:

>Since YOU have no problem with verbage, and always want more 
>details, YOU can take the blame for me being a pig and pasting my 
>total 'notes extracted from the paper SALR of this case'.
>==============
>BEN-TOVIM v BEN-TOVIM AND OTHERS 2001 (3) SA 1074
> s 252 - company shares 
>1074 H: Motive underlying conduct complained of relevant only as an aid
>in deciding whether it was unfairly prejudicial, unjust or inequitable and
>whether granting relief would be just and equitible.
>I: Minority shareholders bound by decission of prescribed majority if such
>decision reached in accordance with law.
>Resolution approving sale of major asset or undertaking passed at properly
>convened general meeting of shareholders valid in absence of evidence of 
>improper conduct by shareholders whose vote decisive.
>1075B: However in term of company's AoA net profit after tax accruing,
>not to shareholder, but to company B, a wholly-owned subsidiary of 
>company C in which complaining shareholder holding 255 of ordinary shares
>-- Conduct complained of thus not affecting shareholder in her capacity as
>member of company A.
>D: Court has discretion to refuse relief even if shareholder satisfied 
>requirements of ss (1) -- Not just and equitable to parties if relief sought 
>would not bring to an end matter complained of.
>I: The members of a company do not stand in a fiducary relationship to the 
>company. They are therefore not under any duty to exercise their votes
>bona fide in the interest of the company as a whole.  The right to vote
>is attatched to the share itself as an incident of property of property which 
>may be exercised by the shareholder in his or her own interest. A director
>in his capacity as a shareholder..may act enterely..in his personal interest,
>without taking account of any conflicting interests, provided he is not guilty 
>of fraud or of oppression of minority shareholders.
>1077 J:   The applicant seeks an order declaring a resolution adopted at a
> meeting of shareholders to of the second respondent..'to be invalid and of 
>no force and effect'.
>1078 H: Sara & Gershon are sole shareholders of YAM, each..50% only 2 directrs
>1079 D: S & G are married to each other [Israel law]. Divorce proceedings
>are being defended by S
>1087 F: ..decision.was a commercial one. Unless it can be shown that the 
>minority shareholders are being unfairly prejudiced, a Court will not enquire 
>into the commercial wisdom of a transaction which is left to the decision of
>the shareholders.
>1088 F: A director in his company as a shareholder of a company, may act 
>entirely in his personal interest without taking any account of any conflicting
>interests of the company, provided he is not guilty of fraud or oppression of
>minority shareholders.
>1090 A: Where relief is sought pursuant to s 252.., the applicant must be 
>brought 'under this section(ss (1)). This does not mean that he
must...explicitly
>state the..section number and statute, but he must state his case with 
>sufficient clarity...conclusion..that..the section apply.
>1090 D: 3 condition required for s252 relef to be granted:  !!
>1092 F: Even if it is accepted that G was actuated to 'sideline' S, no
>evidence was placed before the Court of any improper conduct on
>the part of SPn. 
>1093 D: The implementation of the agreement will affect G in precisely 
>the same way as it affects S: 
>G: An order setting aside the resolution will not bring 'to an end the
>matter complained of'.
>   relief...cannot be granted on any of the grounds on which she relies.
>=====
>
>