Howes J:

In this case there are two Motions before the Court; one by the defendant company containing two prayers:

(1) That the claims of the plaintiffs Nos 1 and 2 be dismissed and that the plaint in so far as it seeks to make such claims be struck out on the ground that it discloses no cause of action at the instance of the plaintiffs Nos 1 and 2.

(2) That the words "on behalf of themselves and all others the shareholders of the defendant company who voted against or were opposed to the resolutions passed at a general meeting of the defendant company held on the 31st July, 1934," also be struck out of the plaint on the ground that the plaint discloses no matters giving ground for an action against the defendant company at the instance of the plaintiffs Nos 1, 2 and 3 or any of them as representing all others the shareholders of the defendant company, who voted against or were opposed to the resolutions passed at a general meeting of the defendant company held on the 31st July, 1934, or at the instance of the said shareholders of the said company as represented by the plaintiffs or any of them; and that the plaintiffs do pay to the defendant company the costs occasioned by this motion, such costs to be taxed by the Assistant Registrar.

And the second motion by the plaintiffs seeking to restrain the defendant company from giving effect to resolutions declared to have been passed at an annual general meeting of the shareholders of the company as set out in the plaint.

Shortly, the plaintiffs' grievance is that at an annual general meeting of the defendant company, certain proxies were rejected by the Chairman, and as the result, a resolution, to which the plaintiffs were opposed, was passed by a majority of votes.

The first and second plaintiffs were present in person at the meeting, and their votes were accepted and recorded. The third plaintiff was not present, but was represented by a proxy who voted, but whose vote was rejected on the ground that the instrument by which the proxy was appointed was irregular.

The third plaintiff only held 400 shares in the company. Mr. Will, for the defendants, has argued that in view of the small number of shares held by the third plaintiff, the result of the poll would have been unaffected by the rejection of his proxy's vote, and that therefore he has no ground of complaint.

To this proposition I cannot subscribe. The number of shares held by any shareholder is immaterial. If his votes were wrongly rejected, whether they were four or four thousand, his right would have been infringed, whatever may have been the result of the poll.

With regard to the first and second plaintiffs, Mr. Will argues that as they attended the meeting and their votes were recorded, they are not entitled to sue. He contends that their rights, as shareholders, terminated by the acceptance of their votes so far as that meeting was concerned, even though the resolution against which they voted, was passed owing to the alleged wrongful rejection of the proxies of other shareholders. Had the proxies been accepted, the resolution against which the first and second plaintiffs voted would not have been passed.

Mr Will also argues that, in these circumstances, the first two plaintiffs and the third plaintiff had no common interest, in that, although the votes by the proxy of the third plaintiff were rejected, the votes of the first and second plaintiffs were accepted and recorded. He submits that although the plaintiffs voted (or in the case of the third plaintiff, endeavoured to vote) on the same side, against the resolution, this does not make the suit a representative one on behalf of all the shareholders who voted against the resolution.

The whole basis of this suit is the alleged wrongful rejection by the chairman of the meeting, of proxies. The right of the third plaintiff (whose proxy was rejected) to sue is not contested. With regard to the first and second plaintiffs, it has been held in numero