Business Law Case Summary
LAW220
Question 1
Issues
The key issue is to determine whether Susan - Transport Manager for NSW of Ozzie Freight
Ltd is able to take legal action to enforce the contact with Gordon – ex-Sales Manager of
Heavy Trucks Ltd for the delivery of five trucks costing $950,000.
Laws
To interpret these issues, this paper will consider section 126, 128(1)(4) and 129 of the
Corporation Act 2001 (Cth) as well as the Turquand rule of internal management in common law. Section 126 stated that a firm could exercise the power to make, ratify and discharge a contract through an agent. In other words, the company will be liable for contract entered into by its agents on the behalf of the firm if the agent has been given express, implied or ostensible authority to act (Freeman & Lockyer v Buckhurst Park Properties (MANGAL) Ltd …show more content…
[1964] 2QB 480).
According to (), the Turquand rule of internal management under common law allows the third parties to make assumption that internal formalities have been consented to when trading with agents. Therefore, the company is estopped from pleading that formality has not been complied with (Royal British Bank v Turquand (1856) 119 ER 886). However, the third parties are unable to rely on Turquand rule if they have either actual or constructive knowledge that there is suspicious in the transaction (Northside Developments Pty Ltd v
Registrar-General (1990) 170 CLR 146).
The Turquand rule has been recently replaced by section 128 and 129 of the Corporation Act
2001.
Section 128 deals with entitlement to make assumption. Particularly, section 128(1) imposes that a person trading with the company is permitted to make assumptions and the firm is unable to declare in proceedings concerning the dealings that any of the assumptions are incorrect. Section 129 sets out what assumptions a third party can make about the level of authority of certain officers of companies. Particularly, in subsection (3), an individual held out by
the
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firm as an agent or officer of the firm has been properly appointed and has authority to exercise the duties ordinarily performed by similar organization’s officer or agent. Besides, according to subsection (4), outsiders can also assume that agent or officer properly perform their duties to the firm.
However, if at the time of trading, the third parties subjectively know or suspect that the assumption is incorrect, they are not permitted to make assumptions (section 128(4))
(Sunburst Prooerties Pty Ltd v Agwater Pty Ltd [2005] SASC 335).
Applications
Obviously, Gordon, who was appointed as Sales Manager, is considered as an agent of Heavy
Trucks Ltd. Therefore, he has the actual authority to enter into the contracts that fall within the company’s scope of business. In this case, the transaction to sell five trucks to Ozzie
Freight Ltd is related to the nature of the business of Heavy Trucks Ltd. Therefore, Heavy
Trucks Ltd is bound by Gordon’s act and is liable for the contract made by Gordon with
Susan (section 126).
According to section 128(1) and 129(3) of the Corporation Act 2001 (as well as Turquand rule in common law), when Gordon had a meeting with Susan to discuss the order by Ozzie
Freight for five truck from Heavy Truck, Susan could obviously assume that Gordon, who acts as the sale manager to Heavy Truck, was validly appointed and had the authority to enter into the contract for selling five trucks to Ozzie Freight. Moreover, Susan has previously traded with Heavy Truck through Gordon over various months. Besides, while Heavy Truck did not inform Susan about the person who will replace Gordon in finalising the order, she received email from Gordon at his usual Heavy Truck email address confirming that he is still working for Heavy Truck. Hence, it is reasonable for Susan to assume that Gordon still acts as an agent on behalf of Heavy Truck Ltd. Also, Susan could assume that Gordon was properly performing his duties to Heavy Truck (section 129(4)). Consequently, Heavy Truck
Ltd would be bound by the contract, which Gordon entered into.
However, because Patrick, CEO of Heavy Truck, has informed Susan that Gordon was no longer working for Heavy Truck and another person will replace him to deal with Susan,
Susan should have suspicion when she received Gordon email. Even though Gordon confirmed that he is not leaving Heavy Truck, based on the fact that the account number given by Gordon is different from normal account number of Heavy Truck, Susan should
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suspect that her assumption about Gordon was not correct. Hence, there should be further investigation to clarify the suspicion by inquiring Patrick, Heavy Truck’s CEO, not Gordon.
However, Susan has failed to perform it and ignored such suspicion to enter into the contract with Gordon. As a result, according to section 128(4) and also the exception of Turquand rule, Susan’s assumption is invalid and therefore, Heavy Truck Ltd is not bound by the contract with Ozzie Freight Ltd. Consequently, Ozzie Freight Ltd cannot take legal action against Heavy Truck Ltd for delivery five trucks costing $950,000 as Gordon personally liable for breach of implied warranty of authority for entering into the contract with Susan.
Conclusion
In conclusion, Susan cannot make assumption that Gordon has been properly appointed and has authority to enter into the contract on behalf of Heavy Truck Ltd as there is a suspicion about the different bank account. Consequently, since Heavy Truck Ltd is not liable for the contract for selling five trucks costing $950,000 entered into by Gordon, Susan is unable to take legal action against Heavy Truck Ltd to enforce the contract.
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Question 2
Issues
The key issue in this case is to determine specific remedies for Marry and Sara that relate to the four wrong done actions. Firstly, are there any remedies to cover $10,000 used by Sam for private purpose? Secondly, what action can be brought to stop Sam from using company funds to buy the car for his wife? Thirdly, as Sam and Jeff have broken the constitution of providing reports over the past six month, is there any remedy to enforce the constitution?
Finally, what are the remedies available for Marry and Sara for oppressive or unfair conduct?
Laws
In the process of interpreting the case, this paper tends to examine the common law remedies and members’ statutory remedies based on section 140, 236-237, 232-233, 1324 and 461 of the Corporation Act 2001 (Cth).
To deal with the first issue, it is essential to consider section 236 & 237 of the Corporation
Act. According to section 236(1), an officer, a member or even shareholder is able to bring statutory derivative actions on behalf of the company when there is any harm have been done to the company and the broad has refused to take legal action. This principle is applied in
Cook v Deeks [1916] 1 AC 554 where one director bring legal action on behalf of the firm against three directors who misappropriated company’s property. However, to bring the derivative action, it is essential to obtain leave of court (section 237(1)). In order to obtain leave from the court, applicant must act in good faith in best interest of company and the company itself will not bring any proceeding (section 237(2)).
Regarding the second issue, remedy can be determined based on section 1324. In fact, ASIC, a member, a creditor or anyone whose interests have been affected can apply for an injunction under s1324 to stop or prevent future wrongdoing that infringes the Corporations
Act. As in Airpeak Pty Ltd v Jetstream Aircraft Ltd (1997) 23 ACSR 715, when a shareholder applied for an injunction as director fail to comply with s180-183 duties.
In terms of the last two issues, remedies can be given under both common law and statue s140, s232-233. Under common law, the vote can be held as invalid if the majority shareholders abuse their power over the minority by exercising a vote to change constitution or change the power structure or rights of other stakeholders (Allen v Gold Reefs of West
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Africa [1900] 1 Ch 656). Moreover, the constitutional amendment is invalid if majorityvoting power is abused to take away members’ property right such as voting or dividend rights (Gambotto v WCP Ltd (1995) 182 CLR 432). In consistent with this rule, s140(1) of
Corporation Act imposes that the company constitution is effective as a contract between the member, the company and its directors. Hence, shareholders can use common law to prevent any breach of the constitution.
Section 232 deals with member’s remedy for oppressive or unfair conduct towards shareholders. This section may be applied either where the conduct is contrary to the interests of the members (s232(d)) or unfairly discriminatory against a member (s232(e)). For example, exclusion form management is considered as oppressive like in Fexuto Pty Ltd v
Bosnjak Holdings Pty Ltd [2001] NSWCA 97 where two directors was acting oppressively towards another director to exclude him from board discussion. Where s232 is contravened, the court has broad powers to make orders under s233 including an order regulating the conduct of the firm’s affair (s233(1)(c)), the firm to institute proceedings against wrongdoers
(s233(1)(f)), retrain someone from doing an act (s233(1)(i)) and require someone to do a specified act (s233(1)(j)).
Finally, Mary and Sara could apply to the court for an order that the company be wound up under s461 if it is “just and equitable” to do so (s461(k)) in a ‘quasi-partnership’ company as in Ebrahimi v Westbourne Galleries [1970] AC 360.
Applications
In the first issue, Sam’s action of taking $10,000 from company fund is considered as harm to the company. When three directors Sam, Jeff and John have refused to take legal action against Sam, Marry and Sara, who are directors and shareholders with 40% shares in Interior
Solutions Pty Ltd, is permitted to bring statutory derivative actions on behalf of the company against Sam after seeking leave form a court (section 236(1)). In fact, as Marry and Sara is acting in good faith for the benefit of the firm, they are obviously able to obtain leave from the court (section 237(2)). Therefore, two sisters are entitled for the remedy to recover the
$10,000 taken by Sam for private purpose.
Regards the second issue, Sam is going to buy a car for his wife using company fund. This action is a breach of the Corporation Act, resulting in a loss to the company and affecting
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shareholders’ wealth. Consequently, Marry and Sara whose interests are affected, has the right to bring injunction to prevent the company’s fund under s1324.
In terms of the third issue, according to s140, as the institution is effective like a contract, all five directors are bound by the constitution. Hence, the act that Sam and Jeff did not provide reports for the last 6 months is considered as a breach of the constitution. Consequently, obviously, Mary and Sara can obviously bring legal action requiring Sam and Jeff to provide outstanding reports and is entitle to recover any damage for breach of the constitution.
In the last issue, as Sara and Mary hold 40% shares in Interior Solutions Pty Ltd, they are considered as minority shareholders. It is obvious that another three directors abuse the majority power to refuse to take legal action against Sam to recover company’s loss. Hence, under common law, such vote is invalid and two sisters is able to obtain common law remedy of fraud on the minority to prevent abuse of voting power against them and ensure decision is made in the best interest of the firm as a whole. Moreover, under statue law (s232 (d), (e)), the acts of Sam, Jeff and John, including holding the meeting without informing Sara and
Mary, running the company in their own say and ignoring the sister’s opinion, are found to be offensive towards their sisters. Therefore, they may apply for an order from the court to regulate the company’s affair (s233(1)(c)). Additionally, the court may also order the firm to initiate action against Sam to recover $10,000 (s233(1)(f)) and retrain three brothers stop to act offensively towards their sisters (s233(1)(i)).
Finally, as the relationship between five directors is acrimonious, all directors can resolve to wind up a company themselves before any losses occur. However, if it is not achievable,
Mary and Sara can apply to the court for an order that the company be wound up (s461). In fact, Interior Solutions Pty Ltd was formed on the basis of the same mutual trust and confidence of five siblings. However, since three brothers and two sisters disagree about extending the business, they could not communicate with each other. Base on that, the court may hold that it was just and equitable to wind up the company (s461(k)).
Conclusion
In conclusion, Mary and Sara are entitled to many remedies. Particularly, on the behalf of the company, two sisters are authorised to bring derivation action against Sam to recover$10,000 and stop him from using the company’s fund to buy the car for his wife. Moreover, Mary and
Sara are enable to enforce the constitution and require Sam and Jeff to provide the
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outstanding report for the pass six months. Finally, they also can receive some remedies for minority oppression as well as apply for an order from the court to wind up the company.
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References
Harris, J., Hargovan, A. & Adams, M. (2011). Australian Corporate Law (3rd). Chatswood:
LexisNexis Butterworths.
Harris, B. (2013). Business Organisations Law [LAW220 201330 Study Guide]. Wagga
Wagga, Australia: Charles Sturt University.
Table of cases
Airpeak Pty Ltd v Jetstream Aircraft Ltd (1997) 23 ACSR 715
Allen v Gold Reefs of West Africa [1900] 1 Ch 656
Cook v Deeks [1916] 1 AC 554
Ebrahimi v Westbourne Galleries [1970] AC 360
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [2001] NSWCA 97
Freeman & Lockyer v Buckhurst Park Properties (MANGAL) Ltd [1964] 2QB 480
Gambotto v WCP Ltd (1995) 182 CLR 432
Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146
Royal British Bank v Turquand (1856) 119 ER 886
Sunburst Prooerties Pty Ltd v Agwater Pty Ltd [2005] SASC 335
Table of statues
Corporations Act 2001 (Cth) section 126, 128(1, 4), 129(3, 4)
Corporations Act 2001 (Cth) section 140, 232(d, e), 233(1)(c, f, i, j) , 236(1), 237(1, 2),
461(k), 1324.
The Common law: The Turquand rule & Equitable remedies (Fraud on the minority).
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Question 1
Issues
The key issue is to determine whether Susan - Transport Manager for NSW of Ozzie Freight
Ltd is able to take legal action to enforce the contact with Gordon – ex-Sales Manager of
Heavy Trucks Ltd for the delivery of five trucks costing $950,000.
Laws
To interpret these issues, this paper will consider section 126, 128(1)(4) and 129 of the
Corporation Act 2001 (Cth) as well as the Turquand rule of internal management in common law. Section 126 stated that a firm could exercise the power to make, ratify and discharge a contract through an agent. In other words, the company will be liable for contract entered into by its agents on the behalf of the firm if the agent has been given express, implied or ostensible authority to act (Freeman & Lockyer v Buckhurst Park Properties (MANGAL) Ltd …show more content…
[1964] 2QB 480).
According to (), the Turquand rule of internal management under common law allows the third parties to make assumption that internal formalities have been consented to when trading with agents. Therefore, the company is estopped from pleading that formality has not been complied with (Royal British Bank v Turquand (1856) 119 ER 886). However, the third parties are unable to rely on Turquand rule if they have either actual or constructive knowledge that there is suspicious in the transaction (Northside Developments Pty Ltd v
Registrar-General (1990) 170 CLR 146).
The Turquand rule has been recently replaced by section 128 and 129 of the Corporation Act
2001.
Section 128 deals with entitlement to make assumption. Particularly, section 128(1) imposes that a person trading with the company is permitted to make assumptions and the firm is unable to declare in proceedings concerning the dealings that any of the assumptions are incorrect. Section 129 sets out what assumptions a third party can make about the level of authority of certain officers of companies. Particularly, in subsection (3), an individual held out by
the
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firm as an agent or officer of the firm has been properly appointed and has authority to exercise the duties ordinarily performed by similar organization’s officer or agent. Besides, according to subsection (4), outsiders can also assume that agent or officer properly perform their duties to the firm.
However, if at the time of trading, the third parties subjectively know or suspect that the assumption is incorrect, they are not permitted to make assumptions (section 128(4))
(Sunburst Prooerties Pty Ltd v Agwater Pty Ltd [2005] SASC 335).
Applications
Obviously, Gordon, who was appointed as Sales Manager, is considered as an agent of Heavy
Trucks Ltd. Therefore, he has the actual authority to enter into the contracts that fall within the company’s scope of business. In this case, the transaction to sell five trucks to Ozzie
Freight Ltd is related to the nature of the business of Heavy Trucks Ltd. Therefore, Heavy
Trucks Ltd is bound by Gordon’s act and is liable for the contract made by Gordon with
Susan (section 126).
According to section 128(1) and 129(3) of the Corporation Act 2001 (as well as Turquand rule in common law), when Gordon had a meeting with Susan to discuss the order by Ozzie
Freight for five truck from Heavy Truck, Susan could obviously assume that Gordon, who acts as the sale manager to Heavy Truck, was validly appointed and had the authority to enter into the contract for selling five trucks to Ozzie Freight. Moreover, Susan has previously traded with Heavy Truck through Gordon over various months. Besides, while Heavy Truck did not inform Susan about the person who will replace Gordon in finalising the order, she received email from Gordon at his usual Heavy Truck email address confirming that he is still working for Heavy Truck. Hence, it is reasonable for Susan to assume that Gordon still acts as an agent on behalf of Heavy Truck Ltd. Also, Susan could assume that Gordon was properly performing his duties to Heavy Truck (section 129(4)). Consequently, Heavy Truck
Ltd would be bound by the contract, which Gordon entered into.
However, because Patrick, CEO of Heavy Truck, has informed Susan that Gordon was no longer working for Heavy Truck and another person will replace him to deal with Susan,
Susan should have suspicion when she received Gordon email. Even though Gordon confirmed that he is not leaving Heavy Truck, based on the fact that the account number given by Gordon is different from normal account number of Heavy Truck, Susan should
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suspect that her assumption about Gordon was not correct. Hence, there should be further investigation to clarify the suspicion by inquiring Patrick, Heavy Truck’s CEO, not Gordon.
However, Susan has failed to perform it and ignored such suspicion to enter into the contract with Gordon. As a result, according to section 128(4) and also the exception of Turquand rule, Susan’s assumption is invalid and therefore, Heavy Truck Ltd is not bound by the contract with Ozzie Freight Ltd. Consequently, Ozzie Freight Ltd cannot take legal action against Heavy Truck Ltd for delivery five trucks costing $950,000 as Gordon personally liable for breach of implied warranty of authority for entering into the contract with Susan.
Conclusion
In conclusion, Susan cannot make assumption that Gordon has been properly appointed and has authority to enter into the contract on behalf of Heavy Truck Ltd as there is a suspicion about the different bank account. Consequently, since Heavy Truck Ltd is not liable for the contract for selling five trucks costing $950,000 entered into by Gordon, Susan is unable to take legal action against Heavy Truck Ltd to enforce the contract.
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Question 2
Issues
The key issue in this case is to determine specific remedies for Marry and Sara that relate to the four wrong done actions. Firstly, are there any remedies to cover $10,000 used by Sam for private purpose? Secondly, what action can be brought to stop Sam from using company funds to buy the car for his wife? Thirdly, as Sam and Jeff have broken the constitution of providing reports over the past six month, is there any remedy to enforce the constitution?
Finally, what are the remedies available for Marry and Sara for oppressive or unfair conduct?
Laws
In the process of interpreting the case, this paper tends to examine the common law remedies and members’ statutory remedies based on section 140, 236-237, 232-233, 1324 and 461 of the Corporation Act 2001 (Cth).
To deal with the first issue, it is essential to consider section 236 & 237 of the Corporation
Act. According to section 236(1), an officer, a member or even shareholder is able to bring statutory derivative actions on behalf of the company when there is any harm have been done to the company and the broad has refused to take legal action. This principle is applied in
Cook v Deeks [1916] 1 AC 554 where one director bring legal action on behalf of the firm against three directors who misappropriated company’s property. However, to bring the derivative action, it is essential to obtain leave of court (section 237(1)). In order to obtain leave from the court, applicant must act in good faith in best interest of company and the company itself will not bring any proceeding (section 237(2)).
Regarding the second issue, remedy can be determined based on section 1324. In fact, ASIC, a member, a creditor or anyone whose interests have been affected can apply for an injunction under s1324 to stop or prevent future wrongdoing that infringes the Corporations
Act. As in Airpeak Pty Ltd v Jetstream Aircraft Ltd (1997) 23 ACSR 715, when a shareholder applied for an injunction as director fail to comply with s180-183 duties.
In terms of the last two issues, remedies can be given under both common law and statue s140, s232-233. Under common law, the vote can be held as invalid if the majority shareholders abuse their power over the minority by exercising a vote to change constitution or change the power structure or rights of other stakeholders (Allen v Gold Reefs of West
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Africa [1900] 1 Ch 656). Moreover, the constitutional amendment is invalid if majorityvoting power is abused to take away members’ property right such as voting or dividend rights (Gambotto v WCP Ltd (1995) 182 CLR 432). In consistent with this rule, s140(1) of
Corporation Act imposes that the company constitution is effective as a contract between the member, the company and its directors. Hence, shareholders can use common law to prevent any breach of the constitution.
Section 232 deals with member’s remedy for oppressive or unfair conduct towards shareholders. This section may be applied either where the conduct is contrary to the interests of the members (s232(d)) or unfairly discriminatory against a member (s232(e)). For example, exclusion form management is considered as oppressive like in Fexuto Pty Ltd v
Bosnjak Holdings Pty Ltd [2001] NSWCA 97 where two directors was acting oppressively towards another director to exclude him from board discussion. Where s232 is contravened, the court has broad powers to make orders under s233 including an order regulating the conduct of the firm’s affair (s233(1)(c)), the firm to institute proceedings against wrongdoers
(s233(1)(f)), retrain someone from doing an act (s233(1)(i)) and require someone to do a specified act (s233(1)(j)).
Finally, Mary and Sara could apply to the court for an order that the company be wound up under s461 if it is “just and equitable” to do so (s461(k)) in a ‘quasi-partnership’ company as in Ebrahimi v Westbourne Galleries [1970] AC 360.
Applications
In the first issue, Sam’s action of taking $10,000 from company fund is considered as harm to the company. When three directors Sam, Jeff and John have refused to take legal action against Sam, Marry and Sara, who are directors and shareholders with 40% shares in Interior
Solutions Pty Ltd, is permitted to bring statutory derivative actions on behalf of the company against Sam after seeking leave form a court (section 236(1)). In fact, as Marry and Sara is acting in good faith for the benefit of the firm, they are obviously able to obtain leave from the court (section 237(2)). Therefore, two sisters are entitled for the remedy to recover the
$10,000 taken by Sam for private purpose.
Regards the second issue, Sam is going to buy a car for his wife using company fund. This action is a breach of the Corporation Act, resulting in a loss to the company and affecting
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shareholders’ wealth. Consequently, Marry and Sara whose interests are affected, has the right to bring injunction to prevent the company’s fund under s1324.
In terms of the third issue, according to s140, as the institution is effective like a contract, all five directors are bound by the constitution. Hence, the act that Sam and Jeff did not provide reports for the last 6 months is considered as a breach of the constitution. Consequently, obviously, Mary and Sara can obviously bring legal action requiring Sam and Jeff to provide outstanding reports and is entitle to recover any damage for breach of the constitution.
In the last issue, as Sara and Mary hold 40% shares in Interior Solutions Pty Ltd, they are considered as minority shareholders. It is obvious that another three directors abuse the majority power to refuse to take legal action against Sam to recover company’s loss. Hence, under common law, such vote is invalid and two sisters is able to obtain common law remedy of fraud on the minority to prevent abuse of voting power against them and ensure decision is made in the best interest of the firm as a whole. Moreover, under statue law (s232 (d), (e)), the acts of Sam, Jeff and John, including holding the meeting without informing Sara and
Mary, running the company in their own say and ignoring the sister’s opinion, are found to be offensive towards their sisters. Therefore, they may apply for an order from the court to regulate the company’s affair (s233(1)(c)). Additionally, the court may also order the firm to initiate action against Sam to recover $10,000 (s233(1)(f)) and retrain three brothers stop to act offensively towards their sisters (s233(1)(i)).
Finally, as the relationship between five directors is acrimonious, all directors can resolve to wind up a company themselves before any losses occur. However, if it is not achievable,
Mary and Sara can apply to the court for an order that the company be wound up (s461). In fact, Interior Solutions Pty Ltd was formed on the basis of the same mutual trust and confidence of five siblings. However, since three brothers and two sisters disagree about extending the business, they could not communicate with each other. Base on that, the court may hold that it was just and equitable to wind up the company (s461(k)).
Conclusion
In conclusion, Mary and Sara are entitled to many remedies. Particularly, on the behalf of the company, two sisters are authorised to bring derivation action against Sam to recover$10,000 and stop him from using the company’s fund to buy the car for his wife. Moreover, Mary and
Sara are enable to enforce the constitution and require Sam and Jeff to provide the
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outstanding report for the pass six months. Finally, they also can receive some remedies for minority oppression as well as apply for an order from the court to wind up the company.
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References
Harris, J., Hargovan, A. & Adams, M. (2011). Australian Corporate Law (3rd). Chatswood:
LexisNexis Butterworths.
Harris, B. (2013). Business Organisations Law [LAW220 201330 Study Guide]. Wagga
Wagga, Australia: Charles Sturt University.
Table of cases
Airpeak Pty Ltd v Jetstream Aircraft Ltd (1997) 23 ACSR 715
Allen v Gold Reefs of West Africa [1900] 1 Ch 656
Cook v Deeks [1916] 1 AC 554
Ebrahimi v Westbourne Galleries [1970] AC 360
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [2001] NSWCA 97
Freeman & Lockyer v Buckhurst Park Properties (MANGAL) Ltd [1964] 2QB 480
Gambotto v WCP Ltd (1995) 182 CLR 432
Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146
Royal British Bank v Turquand (1856) 119 ER 886
Sunburst Prooerties Pty Ltd v Agwater Pty Ltd [2005] SASC 335
Table of statues
Corporations Act 2001 (Cth) section 126, 128(1, 4), 129(3, 4)
Corporations Act 2001 (Cth) section 140, 232(d, e), 233(1)(c, f, i, j) , 236(1), 237(1, 2),
461(k), 1324.
The Common law: The Turquand rule & Equitable remedies (Fraud on the minority).
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