Koza Altin İşletmeleri AŞ v Koza Ltd & Anor

Mr Justice Thompsell:

1. INTRODUCTION

1. This hearing is dealing with an application (the “ Application ”) made by the Petitioner, Koza Altin İşletmeleri A.Ş. (“ Koza Altin ”), for summary judgment on (or alternatively strike out of the defence to) the petition it presented on 14 August 2024 for the winding up of Koza Ltd (“ Koza Ltd ” or the “ Company ”) on the just and equitable ground (the “ Petition ”).

2. Koza Altin owns 100% of the ordinary shares of Koza Ltd (being the only shares that enjoy material economic rights). However, for nearly a decade now it has been shut out of control at the board level of the Company by the Second Respondent, Mr Hamdi Akin Ipek (“ Mr Ipek ”).

3. Mr Ipek is registered as the holder of the one remaining A ordinary share in Koza Ltd. Although named as being a species of ordinary share, this share affords him no material economic rights - no right to dividends and only to a distribution of capital of £1 on a winding up. However, the holder of the A ordinary share has rights to veto the removal of a director, block the appointment of any other director, and to block any resolution for the winding-up of the Company.

4. Koza Altin is reserving the right to challenge whether the A ordinary share was properly issued, but, for the purposes of the Application and the Petition, it is common ground that I should proceed on the basis that it was properly issued.

5. Koza Altin and Mr Ipek have been locked in a battle over the control of Koza Ltd since 2016 that has so far generated 25 applications to court, 17 hearings in the High Court, 4 hearings in the Court of Appeal, and a trip to the Supreme Court.

6. Pending resolution, the court, through a series of interim injunctions, the content of which has changed over time and which the parties refer to as the “ Interim Regime ”, has imposed restrictions on Koza Altin’s purporting to pass any resolutions that would require the consent of the holder of the A ordinary share and strict limits on spending and the alienation of assets by the Company.

7. Koza Altin argues that, notwithstanding the Interim Regime, Mr Ipek has been causing Koza Ltd to spend its money at what it considers to be an alarming rate and has already caused Koza to spend the vast majority of its liquid assets.

8. In short, Koza Altin argues that there are irreconcilable differences between it (the economic owner of Koza Ltd) and Mr Ipek as the entrenched director of the Company; these appear to be set to continue; and it is just and equitable to wind up the Company so as to bring to an end an intolerable position whereby it considers that the Company is not being managed in the interests of its economic owner and it can do nothing about it other than petition for a winding up.

9. Mr Ipek argues that a winding up is not justified: what Koza Altin describes as an “intolerable position” is merely the way that the Company’s constitution operates; where there have been disputes these either have arisen from the Interim Regime (which will come to an end) or through Koza Altin passing resolutions that are unlawful and/or against the interests of the Company. Mr Ipek argues further that he has offered as an alternative to winding up a credible offer to purchase the shares held by Koza Altin and this has been unreasonably refused; that the winding-up is not being made for a proper purpose and that Koza Altin comes to court with unclean hands and, that in any case, a winding-up petition on the just and equitable grounds is not something that should be dealt with through a summary process but which should be undertaken on the basis of evidence tested properly through a full trial.

2. BACKGROUND (a) Parties

10. Koza Ltd is an English company, incorporated in 2014 and capitalised with £60m from Koza Altin, which became (and remains) its 100% ordinary shareholder. At the time of its incorporation, Mr Ipek and members of his family were directors of, and controlled, Koza Altin.

11. Koza Ltd’s sole director is Mr Ipek. Mr Ipek, the Second Defendant, is a businessman of Turkish origin and was, until 26 October 2015, the chairman of Koza-Ipek Holdings AS, which was then the ultimate parent company of the private shares in the Koza group of companies (the “ Koza Group ”), of which Koza Altin formed a part. He now lives in the United Kingdom, and has not returned to Turkey since 2015, where there is a warrant for his arrest.

12. Koza Altin is a Turkish public company, incorporated in 1989. It is engaged in the business of gold mining (although none of its investments are in goldmines that are as yet operational). Around 30% of its shares are traded on the Istanbul Stock Exchange but, taking into account both direct and indirect shareholdings, as far as economic interests go, it is majority publicly owned. However, as far as control goes, it may be regarded as being controlled by organs of the Turkish state. The privately held shares in Koza Altin are all owned, directly or indirectly, by the Turkish Wealth Fund (the “ TWF ”). (b) The confiscation of shares in Koza Altin

13. An important part of the background is that Koza Altin was originally a company created by and in the control of Mr Ipek or his family and family companies. It remained so controlled up until 26 October 2015. On this date a Turkish criminal judge appointed various individuals as “trustees” of various Koza Group companies including Koza Altin in the context of a criminal investigation based upon an alleged affiliation between Mr Ipek and an organisation that the Turkish state has ruled to be a terrorist organisation.

14. Mr Ipek challenged that decision before the Turkish Constitutional Court (the “ TCC ”) and made applications to the European Court of Human Rights (the “ ECtHR ”) in respect of it. Those challenges and applications were rejected: see Koza Ltd v Koza Altin [2022] EWCA Civ 1284 at [5]-[6].

15. On 1 September 2016 a statutory decree enabled the powers of “trustees”, such as those appointed to Koza Altin, to be transferred to another state-owned institution, Tasarruf Mevduati Sigorta Fonu (the “ TMSF ”). The powers were subsequently so transferred, and the TMSF has subsequently exercised those powers, including by making its own appointments to the board of Koza Altin: (see the same case at [17]-[18]).

16. On 9 June 2017 an indictment was issued against Mr Ipek and others. No charges have been established against Mr Ipek, but nor could they be, since he cannot be tried unless he is within the Turkish jurisdiction and he has been outside that jurisdiction since the charges were brought.

17. On 9 August 2017, the Government of Turkey issued a certified extradition request for Mr Ipek to stand trial for various crimes relating to his alleged involvement with the Gülenist movement, including in relation to funding and/or donations to legitimate charitable and educational institutions wrongly alleged to be connected to an armed terrorist organisation. The alleged offences for which extradition was sought also included attempting to abolish the Government and establishing and leading an armed terrorist organisation.

18. I should add that Mr Ipek strongly denies any criminal activity, and considers that he is being unjustly persecuted as a result of his known opposition to the current government in Turkey.

19. On 28 November 2018, District Judge Zani sitting in the Westminster Magistrates Court refused the extradition request, ruling that the decision to prosecute Mr Ipek was politically motivated by reason of his actual or perceived political views as an alleged member and supporter of the Gülenist movement, and further that he was exposed to a real risk of breach of Article 3 of the European Convention on Human Rights (“ ECHR” ) (which prohibits torture and inhuman or degrading treatment) if he were to be extradited to Turkey.

20. The Government of Turkey was refused permission to appeal this decision by Supperstone J on 5 March 2019. The Government of Turkey renewed its application for permission to appeal, and this again has been refused (by Laing J, as she then was) on 9 April 2019.

21. On 9 January 2020, as Mr Ipek and certain other subjects of the criminal proceedings had not been apprehended and could not be tried in absentia , the proceedings against them were separated and assigned a new case number. An order was made continuing the “trusteeship” regime pending their apprehension and trial.

22. On 14 April 2023 the Turkish Court of Cassation ordered that the Koza Group companies should be confiscated, without prejudice to the rights of bona fide shareholders and third parties. The meaning of this order is somewhat unclear to me – I do not understand how a company can be confiscated without all of the shares in the company being confiscated. Nevertheless, it appears that the result is that all the non-publicly traded shares in the Koza Group (including Koza Altin) were transferred to the Turkish Ministry of Treasury and Finance.

23. Mr Ipek and others have brought applications in respect of the Court of Cassation's decision to the TCC, and those applications remain outstanding.

24. On 19 August 2024 a Turkish Presidential decree issued by President Erdoğan (the “ Presidential Decree ”) ordered the transfer of the privately held shares in the Koza Group (including Koza Altin) to the TWF, and they were so transferred.

25. Whilst Mr Ipek may consider he still has grounds for overturning the judgments and orders referred to above, I think he accepts that they are currently in effect.

26. Mr Ipek has been reserving a right to contend that some or all of such judgments are not capable of recognition in England and Wales (and that accordingly the directors purporting to represent Koza Altin are not validly appointed) but has agreed not to take such points for the purposes of this Petition. During the course of the hearing of the Application he went further, as I will discuss.

27. As mentioned above, there are outstanding applications against the confiscation decision to the TCC. Mr Ipek has also intimated an intention to make applications to the ECtHR if those applications fail. The parties disagree about whether it is even possible for Mr Ipek and his family to regain control of the Koza Group, even if those applications succeed. Mr Gezgin, Koza Altin’s expert in relation to Turkish law has provided an opinion that this is not possible in light of the Presidential Decree. Dr Ozbey, Mr Ipek’s expert on Turkish law, disagrees.

28. Koza Altin argues that in any event, Mr Ipek’s applications, and any consequent retrial process, may take over a decade to play out, during which time Koza Altin would remain out of the control of the Ipek family. Indeed, given Mr Ipek’s status as a fugitive, and the inherent unlikelihood of him returning to Turkey to face trial, it is likely that the Koza Group of companies would remain out of the control of the Ipek family indefinitely, even if the applications relating to the confiscation succeeded and even if it were theoretically possible to return ownership to the former owners.

29. Koza Altin does not consider that its own ownership or control is relevant to this Petition or this application. I agree. Mr Ipek has accepted that Koza Altin’s current directors have the authority to cause it to present and prosecute this Petition. I agree with Koza Altin’s submission that there is no need or warrant to seek to look behind that authority, or speculate about what may or may not be in Koza Altin’s best interests according to others (such as Mr Ipek), or who may or may not control the company years from now. (c) The A ordinary share

30. Koza Altin disputes that Mr Ipek’s A ordinary share has been validly issued, but all parties agree that the court should conduct this hearing on the assumption that it has been.

31. Assuming that Mr Ipek’s A ordinary share has been validly issued, Mr Ipek has a veto over (amongst other things) changes to the composition of the board of Koza Ltd.

32. Originally two class A ordinary shares were created and issued (or purportedly created and issued) on 11 September 2015. This was done at a time when Mr Ipek or his family still had effective control of Koza Altin and was undertaken with the intent of entrenching Mr Ipek’s control of Koza Ltd at management level. One of those shares has since been surrendered to Koza Ltd, leaving Mr Ipek as the sole holder of an A ordinary share.

33. Article 3 of the Company’s articles of association provides that the holders of the A ordinary shares have no right to income, no right to a distribution on a winding up (other than the return of the £1 paid up on each A ordinary share) and no voting rights. The only significant advantage that is afforded to a holder of an A ordinary share is that provided by article 26 of the Company’s articles of association (“ Article 26 ”).

34. Article 26 provides as follows: “26.1 Each shareholder shall exercise all voting rights and powers of control available to him in relation to the Company to procure that, save with A Shareholder Consent, the Company shall not effect any of the following matters (a) Permit or cause to be proposed any amendment to the Articles, (b) Permit the appointment of removal of any person as director of the Company, or (c) Permit the Company to take any step to place the Company into administration or receivership or wind up the Company (save where it is insolvent within the meaning of section 123 of the Insolvency Act 1986 ) 26.2 As a separate obligation, severable from the obligations in clause [ sic ] 26.1, the Company agrees that, save with A Shareholder Consent, the Company shall not effect any of the matters referred to in subparagraphs (a) to (c) of Article 26.1 above.”

35. An “A Shareholder Consent” is defined as “the prior, signed written consent of each A Shareholder”. The phrase “A Shareholders” is defined as “the holders from time to time of A ordinary shares”.

36. There is however no exclusion (or purported exclusion) of the right of Koza Altin to petition the court for winding up on the just and equitable ground. (d) The ordinary shareholders’ Article 4 rights

37. Article 1.1 of Koza Ltd’s articles of association makes applicable the Model Articles contained in Schedule 1 to the Companies (Model Articles) Regulations 2008 (the “ Model Articles ”).

38. Article 3 of the Model Articles provides that: “the directors are responsible for the management of the company’s business”.

39. However, article 4 of those Model Articles (“ Article 4 ”) provides (at article 4(1) that: “The shareholders may, by special resolution, direct the directors to take, or refrain from taking, specified action”.

40. It may be seen that the combination of these provisions creates fertile ground for a stand-off between the ordinary shareholder of Koza (Koza Altin) and its sole director, particularly if, as has been the case up to now, the sole director (Mr Ipek) does not recognise the authority of the directors of Koza Altin to give him directions. (e) The 2016 and 2021 Proceedings

41. Koza Altin and Mr Ipek have been in dispute over Koza Ltd since 2016 in two sets of proceedings commenced by Mr Ipek and Koza Ltd (acting at his direction) (the “ 2016 Proceedings ”) and (the “ 2021 Proceedings ”). A broad summary of these proceedings follows.

42. In 2016, Koza Altin attempted to change the board of Koza Ltd by calling a general meeting with a view to removing Mr Ipek as a director. In response, Mr Ipek and Koza Ltd (acting at his direction) commenced the 2016 Proceedings. His case was based on two main contentions: i) that Koza Altin’s attempt to change the board was ineffective because of Mr Ipek’s A ordinary share (the “ English Company Law Claim ”); and ii) that the court should not recognise the authority of those in control of Koza Altin (i.e. its directors) to cause it to do anything as a shareholder of Koza Ltd (the “ Authority Claim ”).

43. Meanwhile, Koza Altin filed a defence and counterclaim in the 2016 Proceedings and counterclaimed for a declaration that Article 26 is invalid and asked for related relief about the shareholder resolution amending Koza’s Articles to introduce Article 26.

44. Koza Altin also challenged the English court’s jurisdiction to hear the Authority Claim, in circumstances where the only basis relied on by Koza and Mr Ipek for jurisdiction was exclusive jurisdiction under the Brussels Recast Regulation (the “ 2016 Jurisdiction Application ”). The 2016 Jurisdiction Application ultimately succeeded after going all the way to the Supreme Court (see Akçil v Koza Ltd [2019] WLR 4830).

45. Mr Ipek and Koza Ltd sought in 2021 to renew the Authority Claim in the 2021 Proceedings (Claim No. BL-2021-000515). The Supreme Court had decided that the English court did not have exclusive jurisdiction, but left open the question of whether jurisdiction could be established at common law.

46. In March 2021, Koza Ltd (later joined by Mr Ipek) issued the 2021 Claim against Koza Altin and its directors, seeking, amongst other things, a declaration that the directors did not have authority to represent Koza Altin, and applied for permission to serve the 2021 Claim outside the jurisdiction.

47. Koza Ltd and Mr Ipek were refused permission to serve out on the basis that there was no serious issue to be tried in respect of the Authority Claim. An appeal against the refusal was dismissed (see Koza Ltd v Koza Altin Isletmeleri AS [2022] EWCA Civ 1284 ), and the Supreme Court refused permission to appeal on 1 February 2023. Whilst it may be considered that the Authority Claim is now dead, Mr Ipek (up to the first day of the hearing) has reserved his right to continue to maintain this (outside this hearing and the hearing of the Petition).

48. There remains outstanding as substantive litigation between the parties only the 2016 Proceedings in relation to the English Company Law Claim and the related counterclaim.

49. Mr Ipek and Koza Ltd have taken no steps to advance this claim and Koza Altin also has taken no steps to advance its counterclaim or otherwise bring this to a conclusion, preferring instead to advance its claim for winding-up on the grounds of this being just and equitable. (f) The Interim Regime

50. The Interim Regime has comprised about 18 different orders from time to time, made between December 2016 and February 2023. The purpose of the Interim Regime has been to hold the ring pending determination of the 2016 Claim, including Koza Altin’s counterclaim about the validity of Article 26, although Koza Altin argues that it has been ineffective in doing so.

51. The nature and scope of the Interim Regime has changed over time; in particular, it has grown and shrunk. The chronology is complex, but in summary: i) The first iteration of the Interim Regime became embodied in an order of Asplin J dated 21 December 2016 (the “ Asplin Order ”). That imposed restraints on both sides: a) Koza Altin was restrained from calling any general meetings of Koza Ltd or passing any shareholder resolutions (in light of the fact that the Authority Claim was then live); and b) Koza Ltd undertook to deal with its funds only in the ordinary and proper course of business, and also to give Koza Altin advance notice of any new projects or expenditure over £25,000. ii) On 31 March 2021, Trower J added to the Interim Regime by ordering that Koza Ltd was to provide Koza Altin, quarterly, with: a) a list of all of its assets, together with the actual or estimated value of the same; b) confirmation of the balance remaining of the £60m with which it was capitalised; and c) its latest management accounts and cash flow forecast. iii) Trower J also ordered that Koza Ltd must not spend any sums or incur any liabilities in connection with the costs of the 2016 or 2021 Proceedings (as Mr Ipek had been causing it to do), subject to specific limited exceptions. iv) On 17 June 2022, HHJ Gerald ordered that Koza Ltd must not deal with any of its assets other than in the ordinary and proper course of business (i.e. the Interim Regime was extended beyond funds), and made various ancillary orders (the “ Gerald Order ”). The application for the Gerald Order was triggered by Koza Altin’s discovery that Koza Ltd had transferred 99% of its interest in its principal mining project (the “ SAM Alaska Project ”) to a Delaware subsidiary for a nominal consideration of US$100 and that Mr Ipek apparently contemplated rerunning the Authority Claim again in Delaware in the event that his control of Koza Ltd in this jurisdiction was removed. v) On 13 July 2022, Murray Rosen QC (now KC) ordered the continuation of the Gerald Order, and also tightened up the restrictions on Koza Ltd in the Asplin Order, such that under his order (the “ Rosen Order ”): a) Koza Ltd was not to “make any individual payment of £2,500 or more, or make payments in aggregate of £25,000 per month, or incur any individual liability of £2,500 or more, or incur liabilities in aggregate of £25,000 per month, except where spending such sums or incurring such liabilities is: i) agreed with Koza Altin in writing to be in the ordinary and proper course of business, such agreement not to be unreasonably withheld or delayed; ii) specifically permitted by the court; or iii) required pursuant to a pre-existing legal obligation the satisfaction of which by Koza Ltd is mandatory; and b) 96 hours’ advance notice was to be provided of any payments or liabilities falling within category (iii). vi) On 26 January 2023, HHJ Jarman KC ordered by consent that the Gerald and Rosen Orders would continue, and also: a) added what was effectively an anti-suit injunction to the Gerald Order, preventing Koza Ltd and Mr Ipek from re-running the Authority Claim in the US; and b) added to the information that Koza Altin was required to be given in respect of payments falling within category (iii), and also payments made to a company called Whitehall Consulting Partners Ltd (“ Whitehall ”). vii) On 10 February 2023, following the Supreme Court’s refusal of permission to appeal the decision that there was no serious issue to be tried in respect of the Authority Claim, HHJ Jarman KC varied the Asplin Order so that the restraint on Koza Altin reflected only the actions specified in Article 26, and made expressly clear that it “shall not prevent [Koza Altin] from exercising any other voting rights or powers of control available to it in respect of Koza Ltd”.

52. In summary, Koza Ltd has since 2016 been subject to restraints, and since July 2022 very severe (but Koza Altin would say justified) restraints, such that any material expenditure (and therefore decisions) should be subject to Koza Altin’s or the court’s consent. Koza Altin was originally constrained from passing special resolutions, but is now permitted to do so, save as expressly prohibited by (the disputed) Article 26. Under the terms of the Interim Regime as it now stands: i) Koza Altin may not pass special resolutions in respect of matters covered by Article 26 (including removing directors and passing a resolution to wind up the Company); ii) Koza Ltd may not, and Mr Ipek may not cause Koza Ltd to, deal with its assets other than in the ordinary and proper course of its business; iii) Koza Ltd may not, and Mr Ipek must not cause Koza Ltd to, make any payments or incur any liabilities over £2,500 individually, or over £25,000 in aggregate per month, except where the payment or liability is: (a) specifically permitted by the court; (b) agreed with Koza Altin in writing to be in Koza Ltd’s ordinary and proper course of business, or (c) made pursuant to a pre-existing legal obligation. iv) Koza Ltd has certain reporting obligations to Koza Altin. (g) Disputes over the business of Koza Ltd

53. Koza Altin argues that the Interim Regime has manifestly failed to “hold the ring”. Certainly I agree that it has been a source of repeated and continuing dispute requiring frequent revision. Koza Altin also considers that if it persists, will almost certainly continue to generate disputes in the future. I will consider that point further below.

54. Koza Altin argues also that Mr Ipek has refused to comply with special resolutions. Mr Ipek argues that this was for good reasons. Again I will discuss this further below.

3. SUMMARY OF KOZA ALTIN’S GROUNDS FOR WINDING UP

55. In summary, Koza Altin’s position is that a winding up of Koza Ltd is justified on the following grounds and that each of these grounds can be established to the standard required for summary judgment: i) Koza Altin is the 100% economic owner of Koza Ltd (and will remain so irrespective of the outcome of the 2016 Proceedings) but has been locked out of the Company’s affairs for nearly nine years now, and will remain so in the absence of yet further litigation if the Company is not wound up. ii) Koza Altin and Mr Ipek have been unable to agree on the management of the affairs of Koza Ltd, as evidenced by the need for and disputes over the Interim Regime and the continued disagreement about the propriety of the depletion of Koza Ltd’s funds and the future planned depletion of them. iii) Mr Ipek has refused to comply with special resolutions passed by Koza Altin in its capacity as sole voting shareholder. Koza Altin and Mr Ipek are now totally unable to agree on the future of Koza Ltd. Koza Altin wants to realise its investment in Koza Ltd. Mr Ipek wants Koza Ltd to continue to pursue all of its projects. iv) Far from the impasse being (as Mr Ipek has claimed) simply a result of Koza Ltd’s corporate constitution, it is in fact reflective of Mr Ipek’s failure to comply with the corporate constitution. v) The continued antagonism between the parties means that they are irreconcilably opposed to one another and there is no prospect of rapprochement.

56. The Claimants also argue that there is urgency to resolve the position before Koza Ltd runs out of money. Koza Ltd was capitalised with £60m and had cash reserves of around £67m as at the end of 2016, but as at the end of January 2025 it had just over £7m in liquid funds. This expenditure has failed to generate any income from its mining projects which remain a long way from fruition and will require substantial further capital to be brought to fruition.

57. These grounds are challenged by Mr Ipek and are discussed further below, but first I will put the discussion in the context of the relevant legal principles.

4. LEGAL PRINCIPLES: SUMMARY JUDGMENT

58. The legal principles applicable to an application for summary judgment are, I think, in large part agreed among parties, although with differences of emphasis. Both parties agree that the summary of the law provided by Lewison J (as he then was) in Easyair Ltd (t/a Openair) v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15] essentially encapsulates the approach the court should take - the main principles being: i) the court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success that is one that carries some degree of conviction and is more than merely arguable; ii) in reaching its conclusion the court must not conduct a “mini-trial” – but this does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court: in some cases it may be clear that there is no real substance in factual assertions made; iii) however, in reaching its conclusion, the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial; iv) although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment: thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case; v) on the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it; vi) if material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction.

59. Mr Ipek’s counsel argue that Koza Altin’s application requires more than a mini-trial: it calls for a summary determination of deeply disputed issues across about 9,000 pages of evidence and no fewer than four expert reports. They argue that a petition to wind up a company on the just and equitable ground is inherently unsuited to summary determination and that the Petition in this case contains material disputes of fact that require full ventilation at trial, and it is only then that a court can be expected to exercise its broad equitable discretion. They point out that three important recent examples all proceeded after multi-day, fact-heavy trials. These were: i) Lau v Chu [2020] UKPC 24 ; [2020] 1 W.L.R. 4656 , (“ Chu ” ), which involved a six-day trial; ii) Duneau v Klimt Invest SA [2022] EWHC 596 (Ch) ; (“ Klimt ”), which involved a seven-day trial; and iii) Dosanjh v Balendran [2025] EWHC 507 (Ch) (“ Dosanjh ” ), which involved a four-day trial.

60. The fact that winding-up petitions on just and equitable grounds have gone to a full hearing does not of itself demonstrate that this type of proceeding cannot be dealt with on a summary basis. I note that in Ringtower, Peter Gibson J considered it possible to strike out such a petition without a petition going to trial.

61. Koza Altin argues that its case is made out without having to review and make findings about this evidence: essentially its case is simple, it is that it is insupportable for a company to be managed by a director that it cannot remove or replace and who is fundamentally at odds with it as to what should be the future of the company. This point can be demonstrated conclusively from facts that are either agreed or a matter of record and therefore the case is one that is entirely suitable for summary judgment.

62. Counsel for Mr Ipek also argue that this is a case where relevant legal principles (in particular the relationship between a shareholder’s right to give directions under Article 4 and duties of directors) are not fully developed and in such cases it is inappropriate to give summary judgment, as was found by Longmore LJ in Doncaster Pharmaceuticals Group Ltd v The Bolton Pharmaceutical Co 100 Ltd [2007] FSR 3 (CA) at [92] (“ Doncaster Pharmaceuticals ” ).

63. In Harrington & Charles Trading Company Limited v Mehta [2023] EWHC 2420 (Ch) at [120], Miles J (sitting with Master Kaye) referred to another passage in Doncaster Pharmaceuticals where Mummery LJ said. “Although the test can be stated simply, its application in practice can be difficult. In my experience there can be more difficulties in applying the “no real prospect of success” test on an application for summary judgment … than in trying the case in its entirety …. The decision-maker at trial will usually have a better grasp of the case as a whole, because of the added benefits of hearing the evidence tested, of receiving more developed submissions and of having more time in which to digest and reflect on the materials”

64. Miles J said about this that: “… this wise guidance may also apply to legal questions as well as factual ones: in large and difficult cases, the court is more likely to be able to get to the right answer in light of the facts as found and after prolonged immersion in the case in the way that can only be achieved at a trial.”

65. Whilst I acknowledge the wisdom in these dicta, that is not to say that, where there is a developing area of law, the matter needs always to go to trial. As I have already indicated, Lewison J pointed out in Easyair at [15(viii)] of his judgment, where the case raises a point of law and: “the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it.” Further, in JP SPC 4 v Royal Bank of Scotland International Ltd [2023] AC 461 at [30], Lords Hamblen and Burrows JJSC, on considering a submission that where a strikeout or summary judgment application turns on a complex and developing area of the law, it is best left to be determined after a trial on the basis of actual rather than hypothetical facts considered that: “This must depend on the extent to which the issue of law is fact dependent. Where all the relevant facts can be identified there is no reason why the issue of law cannot be determined and, indeed, it will often be consistent with the overriding objective of the Civil Procedure Rules (CPR Part 1) for that to be done, in the interest, in particular, of saving time and costs.”

66. Finally, I note that counsel for Koza Altin make the point that the relief that they are considering is discretionary relief. They argue, in my view correctly, that, where the court is being asked exercise discretion or to provide an evaluative decision by way of summary judgment, the court does not ask itself on a summary judgment application whether it is arguable that it would exercise the discretion or make the decision one way or the other – it makes the decision as to whether to do so. In such cases the task of the court is: i) first to determine whether the facts and matters relied on as providing the basis for the exercise of the discretion or the making of the decision are made out to the summary judgment standard; and ii) having done so, then to exercise the discretion or make the decision, on the basis of the facts and matters so established, in the usual way.

67. This proposition is supported by Mr Robin Vos, sitting as a Deputy High Court Judge in Abaidildinov v Amin 47]-[49] where he said: [2020] EWHC 2192 (Ch) at [ “47 In approaching an application for summary judgment where the relief sought is the making of a declaration, this must in my view be the correct approach. Whether or not the underlying facts or matters relevant to the declarations are made out is the key issue as far as summary judgment is concerned. If the defendant has a real prospect of successfully defending the points put forward by a claimant in support of the declarations, summary judgment should not be granted. 48 However, once it is established that the defendant has no real prospect of mounting a successful defence in respect of those facts or matters, it is unlikely to be in accordance with the overriding objective to require a full trial in order to decide whether the court should exercise its discretion to make the declarations which have been sought. In terms of costs, this would in most cases be entirely disproportionate where it has already been found that there is no realistic dispute in relation to the underlying facts or matters. Although there may still be disputes as to some of the facts which may be relevant to the court’s balancing exercise in deciding whether to exercise its discretion to make or refuse to make the declarations, this should not be a reason for refusing to undertake that task or, in most cases, being unable to undertake that exercise. 49 The reference to the “claim or issue” in CPR r 24.2(a)(ii) must therefore in my view refer to the underlying facts or matters to which the declaration relates and not to the question as to whether, as a matter of discretion, the court should make the declaration, once it is satisfied in relation to those underlying facts or matters.”

68. This approach was also endorsed by Cockerill J in Banca Nazionale del Lavoro SpA v Provincia di Catanzaro [2023] EWHC 3309 (Comm) at [63], where she said: “In the case of declaratory relief, the proper approach is set out in Abaidildinov v Amin [2020] EWHC 2192 (Ch) . The Court will grant summary judgment where the defendant had no real prospect of successfully defending the relevant “ claim or issue ”, which refers to the underlying facts or matters which are the subject of the declaration. If the applicant can show that the defendant had no real prospect of showing that those matters are wrong, the Court should exercise its discretion to make the declaration in the normal way, rather than by reference to the summary judgment test.

69. These cases, in my view, establish the proposition that Koza Altin is advancing where the relief being sought is the discretionary relief of a declaration.

70. This only goes so far, however, where the relief being sought is the discretionary relief of a winding-up on the just and equitable ground, in that, if the court considers that the facts are established to find a basis justifying such a winding up, but considers that it does not have sufficient evidence of all the facts that should properly weigh on the exercise of its discretion, then it would be open to the court to refuse the exercise of its discretion until it was satisfied that it had all the facts.

5. LEGAL PRINCIPLES: JUST AND EQUITABLE WINDING-UP

71. Koza Altin relies on s.122(1) (g) of the Insolvency Act 1986 (“ ”) under which a company may be wound up if: IA 1986 “the court is of the opinion that it is just and equitable that the company should be wound up.”

72. Section 125(2) of IA 1986 provides further that: "(2) If the petition is presented by members of the company on the ground that it is just and equitable that the company should be wound up, the court, if it is of the opinion – (a) that the petitioners are entitled to relief either by winding up the company or by some other means, and (b) that in the absence of any other remedy it would be just and equitable that the company should be wound up, shall make a winding up order; but this does not apply if the court is also of the opinion both that some other remedy is available to the petitioners and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy."

73. The scope and principles for a just and equitable winding up were described by HH Judge Mark Cawson QC (sitting as a judge of the High Court) in Klimt . He noted: i) (at [187]) that the remedy has been described as one “of last resort and an exceptional remedy in the context of disputes between shareholders” – hence the wording of section 152(2); ii) (at [188]) that: “In Lau v Chu [2020] UKPC 24 ; [2020] 1 W.L.R. 4656 , at [20]-[21] per Lord Briggs JSC, the Privy Council held that the legal burden of proof is on the applicant to establish his or her entitlement to relief and, if so, that a winding up would be just and equitable if there were no other remedies available, but that if the petitioner can so establish, then the legal burden of proof shifts to the respondent to prove that the petitioner has unreasonably failed to pursue some other available remedy rather than seeking a winding up.” iii) (at [190]) that: “As emphasised by Dillon J in Re St Piran Ltd [1981] 1 W.L.R. 1300 at 1307: "The words "just and equitable" are wide general words to be construed generally and taken at their face value. Whether in any case a winding up order should be made would depend on a full investigation of the facts of the particular case … The concept of justice and equity is a very wide concept …"”; iv) (at [191]-[192]) that: “91. In Re Westbourne Galleries [1973] AC 360 , Lord Wilberforce, having rejected the notion that the expression "just and equitable" required to be construed so as only to include matters ejusdem generis the preceding clauses to the then Section 222 (f) of the Companies Act 1948 , stated that: "…there has been a tendency to create categories or headings under which cases must be brought if the [just and equitable] clause is to apply. This is wrong. Illustrations may be used, but general words should remain general and not be reduced to the sum of particular instances…";

192. Further, subsequently at 379B, Lord Wilberforce said: "The foundation of it all lies in the words "just and equitable" and, if there is any respect in which some of the cases may be open to criticism, it is that the courts may sometimes have been too timorous in giving them full force"”; v) (at [193]) that Lady Arden JSC had approved the approach of Lord Wilberforce as regards keeping the general words general and had noted in particular that it was impossible or undesirable to define the circumstances in which equitable considerations could arise; vi) (at [194]) that, whilst the jurisdiction is most often invoked in circumstances where the company is in substance a partnership, but it is clear that the jurisdiction is not so limited, and: "may be invoked whenever justice and equity require" (here quoting Peter Gibson J in Ringtower , at 91F); and vii) (at [194]) that: “Whilst recognising that the categories or headings under which a just and equitable winding up petition might be brought ought not to be regarded as limited or reduced to the sum of particular instances, recognised grounds for seeking a winding up on the just and equitable ground include a loss of substratum, and a breakdown of trust and confidence within a quasi partnership.”

74. Where a case is made out by a claimant that it would be just and equitable for a company to be wound up the court needs also to consider s.125(2) IA 1986 : the court may decline to wind up a company if the court is: “of the opinion both that some other remedy is available to the petitioners and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy.”

75. An unreasonable refusal to accept a fair offer for an applicant’s shares might bar winding-up (see, for example Chu at [21]).

6. ARE THERE GROUNDS FOR JUST AND EQUITABLE WINDING-UP?

76. I regard the core argument put forward by Koza Altin as supporting the Petition as being that set out in paragraph 69 of its Points of Claim. This is to the effect that the Company is in a position of deadlock in that Koza Altin and Mr Ipek have been and continue to be unable to agree about the conduct of the Company’s affairs, with the result that the holder of all the economic rights in the Company does not have control of it, and the person who does have control of it has no material economic interest in it, has so far spent or caused it to spend most of its money, and is antagonistic towards the economic owner.

77. This assertion is particularised in the following sub-paragraphs of paragraph 69. I summarise below the assertions made in the sub-paragraphs, together with what I am able to say about them on summary judgment.

78. Subparagraph (1) asserts that Koza Altin is unable to take any steps to exercise powers that are covered by Article 26. I agree that this is self-evidently true as a result of the Interim Regime and is overwhelmingly likely to remain so unless and until the 2016 Claim is determined.

79. Subparagraph (2) asserts that, if Koza Altin is successful in the 2016 Claim it will be entitled to full control and the deprivation of control that Mr Ipek has caused it to suffer since the commencement of the 2016 Claim would have been unlawful. The first part of this clearly is correct. The second part of this has not been argued before me and I make no determination about it.

80. Subparagraph (3) asserts that if Koza Altin is not successful in the 2016 Claim the position described in subparagraph (1) would continue. This also is clearly correct.

81. Subparagraph (4) asserts that Koza Altin, Mr Ipek and the Company have engaged in significant and protracted litigation in respect of the management of the Company and have been unable to agree how the resources held by the Company should be expended. This proposition, I consider, cannot seriously be disputed. It may be, and is being, disputed who is at fault in relation to individual matters over which the Koza Altin and Mr Ipek have fallen out, but it is a fact that the parties have been at loggerheads.

82. Further, it is clear that this dispute has at its core a fundamental issue. Koza Altin does not want to continue its exposure to the business of the Company, certainly while it remains under the stewardship of Mr Ipek. Koza Altin has attempted through the EPA to bring about a sale of the Company’s principal asset. Mr Ipek has sought to block that sale. As I discuss below, he may have had good reasons for that given the terms of the EPA, but what is clear is that instead of trying to engage with Koza Altin and to try to explain his concerns and to see if they could be overcome, for example by ensuring that the proceeds of the sale would come to Koza Ltd and/or be held on trust for it and/or that any benefit to Koza Altin would be made in a lawful way (for example as a dividend or a lawful return of capital) he has merely blocked the position. This does evidence fundamental differences between him and Koza Altin.

83. Subparagraph (5) asserts that the available resources of the Company have rapidly diminished since the Company was originally capitalised; the Company is not generating any income from its mining projects and its projects appear to be dormant; the Company will be unable to generate income from the Sam Alaska Project without significant further capital expenditure which is not available to the Company and there is a real prospect of the Company running out of funds before the 2016 Claim is resolved. I do not consider that there is any serious challenge to any of these facts, except that: i) Mr Ipek would say that the fact that the available resources of the Company have diminished (which I consider to be a reference to the Company’s cash and its liquid investment portfolio) ignores the fact that the Company still has what are in his view still valuable illiquid assets in the form of its investments in mining projects; ii) it has been suggested to me that Mr Ipek considers that it may be possible to raise funds to finance further capital expenditure. I consider it to be unlikely that funds could be raised on reasonable terms that would benefit the Company while this dispute is continuing, however I do not think that this is something that I can find on a summary basis; iii) Mr Ipek, whilst he acknowledges that there is a “burn rate” applying to the Company’s cash considers that it should be possible to resolve the 2016 Claim before all of the liquid assets run out (although, as we considered the figures, the margin for this seemed to be at best a matter of months), and suggests that if not then the remedy is for the parties to ask for the dispute to be dealt with on an expedited basis.

84. Subparagraph (6) asserts that Mr Ipek has refused to comply with Special Resolutions and to provide information to be given to Koza Altin under those resolutions. As a statement of fact this is not in dispute, although as I will discuss, Mr Ipek argues that he had good reasons to refuse to comply with the Special Resolutions.

85. Subparagraph (7) asserts that the Interim Regime is, and has been, complex to implement, is generative of disputes and places a significant resource burden on Koza Altin, Mr Ipek and the Company. I do not consider any serious argument could be advanced against this contention.

86. Mr Sheehan argues that the Interim Regime will come to an end when the 2016 Claim is determined (which could be done on an expedited basis) and therefore this position will not continue forever. This likely would be true if the 2016 Claim is resolved in favour of Koza Altin - no doubt Koza Altin would take the first opportunity to terminate Mr Ipek’s directorship and there would be no further such disputes. However if the 2016 Claim is resolved in Mr Ipek’s favour, then, it is fanciful to believe either that Mr Ipek will be happy to run the Company that accords with the wishes of Koza Altin or that Koza Altin will be happy to let Mr Ipek exercise the powers of a sole director as he sees fit without interference and accordingly it seems overwhelmingly likely that in these circumstances the parties will continue their frequent recourse to the court.

87. Subparagraph (8) asserts that the position that Mr Ipek has taken in the 2016 and 2021 Claims makes it clear that he is antagonistic towards Koza Altin. I do not think there is any doubt that Mr Ipek is antagonistic towards Koza Altin under its current management. Mr Ipek considers that he has been unfairly deprived of his interests in the Koza Altin Group for political reasons and that the current management of Koza Altin represents the government of Turkey that has brought this about. I consider that this antagonism is likely to continue at least until there is a change of the government in Turkey and a change in the management of Koza Altin.

88. These propositions all lead up to subparagraph (9) which asserts that the parties are therefore: “… In a situation in which the 100% economic owner of the Company does not have control of it, and the person who does have control of it has no economic interest in it (either at all or that is more than nominal), disagrees with the 100% economic owner as to how to manage it and its resources, has so far spent or caused it to spend most of its money, is continuing to spend or cause it to spend its money, and is antagonistic towards the economic owner.”

89. Subparagraph (9) may be broken down into the following key propositions: i) Koza Altin is the 100% economic owner; ii) Mr Ipek has no, or merely a nominal, economic interest in it; iii) Koza Altin does not have control of Koza Ltd; iv) Mr Ipek does have control of it; v) Mr Ipek disagrees with Koza Altin as to how to manage it and its resources; vi) Mr Ipek has so far spent or caused it to spend most of its money, is continuing to spend or cause it to spend its money; vii) Mr Ipek is antagonistic towards the economic owner.

90. I have already discussed the matters summarised at points (v), (vi and (vii) above and consider them to be sufficiently well established be relied upon in the context of a summary judgment. However the points concerning control and economic interests are disputed and I will deal with these disputed matters individually.

7. IS KOZA ALTIN THE 100% ECONOMIC OWNER?

91. Mr Ipek considers that it is wrong to accept the proposition that Koza Altin is the 100% economic owner. Whilst it cannot be denied that the A ordinary share that he holds gives no rights to dividend and only a right to the return of £1 of capital on a winding up (and affords him no voting rights), he argues that the veto rights that are afforded by the share have value, and this is something the court should consider when considering what is just and equitable. In support of this contention, he has, with the permission of the court, given at the outset of the hearing before me, put into evidence an expert report by Mr Jonathan Jones, who is a chartered accountant.

92. I had reservations about admitting this report into evidence as it seemed to me that there were flaws and limitations in the way it was prepared and as I considered (wrongly as it turns out) that Koza Altin had been given insufficient time to instruct its own expert had it wished to. However, as I was wrong on the latter point, and Mr Caplan for Koza Altin was largely indifferent as to whether the report was admitted, I did admit the report.

93. The report is subject to express limitations, including that it relies upon management accounts and has not sought to value property.

94. The report considers various approaches to valuation. (a) The dividend yield basis

95. The first is the dividend yield basis. As the A ordinary share carries no right to dividends it is clearly worth nothing on this basis, although Mr Jones rather than saying this, and putting a valuation made on this basis into the mix alongside the other ways in which a valuation could be based, says (without explaining why) that this basis is therefore not appropriate. (b) The share of net asset basis

96. The second basis involves valuing the Company on a net asset basis and then calculating what share of that ought to be attributable to the A ordinary share.

97. Mr Jones values the Company on the basis of its balance sheet revised to market value at just over £65 million. He accepts however that: “… The more challenging issue is the valuation rationale behind the “A” share in Koza Ltd, which includes the strategic and legal reasoning, case law, and market practices that support attributing significant value to the “A” share, despite its nominal face value of £1.”

98. He approaches this “challenging issue” first by considering the possibility of a “special purchaser” to whom the asset concerned may have an “especial value”. This might be the existing ordinary shareholder or a purchaser entering the market in the knowledge that it could make a profit on selling to an existing shareholder desirous of gaining overall control. He speculates that this special purchaser would be prepared to pay a premium over the “normal market value” for the strategic advantage in mind.

99. It seems a slightly odd approach to determining market value to assume that a purchaser will pay more than market value, but I will assume that by “normal market value” he means a value based on economic rights solely.

100. He notes that HMRC takes an approach that “voting control” might be worth 25% or 30% of total company value, based on a New Zealand matrimonial law case, Holt v Holt [1990] 3 NZLR where the court concluded that it was obvious that the parties would do a deal which would value the control rights of the A share (which afforded that share majority control of voting at shareholder level).

101. Mr Jones also referred to Re Burgess Homes Ltd (in liquidation) ( 1988) 3 BCR 130 which took account of Holt v Holt as a starting point for valuing a control right but then discounted this on the basis that the control right in this case was less than absolute as the share could be acquired for a nominal $1,000 on the death of the holder or as a pre-emption right on sale. With these factors in mind, the court found a value based on 17.5% of shareholders’ funds.

102. What Mr Jones has failed to address adequately in this analysis, however, is the difference between the rights afforded to the A ordinary share and the management rights attached to the shares that were valued in those two cases.

103. In both those cases (from the description Mr Jones has given – I was not provided with the judgments in these cases) the shares afforded a “control” value gave majority control at shareholder level. This would allow the holder to pass shareholder resolutions including resolutions to appoint and remove directors and so afforded control both at shareholder and director level.

104. By contrast, the A ordinary share only provides the ability to veto certain matters, most importantly, changes to the board. It does not allow the holder to change the composition of the board. A special purchaser could not purchase the share and expect, on the basis of owning it, to appoint himself as a director. All he can do is keep Mr Ipek in place as a director and veto any other appointment.

105. Importantly, Mr Jones ignores the position that the ordinary shareholders have the right to pass special resolutions under Article 4. As I discuss further below, this makes a fundamental difference, Mr Ipek does not have untrammelled control even at board management level.

106. Thus, unlike the shares with special rights in the cases cited, it cannot be said that the A ordinary share gives control at shareholder level; it does not give an ability to appoint the board, only to veto changes to it; and the board that is kept in place is subject to directions under Article 4.

107. Mr Jones deals separately with another approach to valuation which he calls “nuisance value”, but it seems to me that once one considers that the rights afforded to the A ordinary shares are limited to the rights of thwarting (to some extent and in some limited circumstances) the wishes of the ordinary shareholders rather than affording rights to manage the Company, these rights cannot be seen as affording management rights – they can only be seen as having a ransom or nuisance value.

108. Finally, in relation to this method of valuation, Mr Jones speculates that if Koza Altin considered that profitability was not being maximised, the capital structure is not optimal and business opportunities are not being exploited it should be willing to pay a premium above the price currently established by market participants (whoever they may be) and might be willing to pay a control premium of 30 to 40%. This ignores, or at least begs the question of whether in such circumstances just and equitable winding up might be a solution as well as ignoring the points I have already made about the very limited rights of the A ordinary shares and the effect of article 4 of the Model Articles. (c) The value of the right to extract value

109. Mr Jones next considered a methodology of valuing the shares as management shares based on “what could reasonably be extracted from the company for the benefit of the management shareholder on earnings per management share basis”. This might include remuneration over and above a reasonable market rate for the work done but not so high as to enable other shareholders to petition the court for unfairly prejudicial conduct or to justify a winding up on a just and equitable basis.

110. He notes that under the articles, Mr Ipek as the sole director is able to set his own remuneration. He wrongly states that the court has ordered consultancy fees of £250,000 per annum. More correctly this should state that the court has limited consultancy fees to that amount. On this basis he suggests an exercise of assuming that Mr Ipek will earn at this amount for another 13 years until the age of 75 and reaches a value of £3.25 million on this basis.

111. This appears to be a fundamentally flawed methodology.

112. Mr Jones fails to suggest any discounting of this potential stream of revenue having regard to future receipt or uncertainty, as would, in my view, be a standard valuation approach.

113. Neither does Mr Jones take any account of the fact that Mr Ipek would need to work to receive these amounts, and therefore they should be reduced by the value of his labours (presumably what he could earn somewhere else). Indeed, the premise on which he values this – that the director could arrange to be overpaid, as long as he did this at a level just below the level at which the matter could be challenged in court does not appear a sound basis for the court to take into account – essentially it depends on the director, in breach of his fiduciary duties, approving a payment to himself that is in excess of that which he is worth.

114. Most fundamentally, it appears that Mr Jones wrongly assumes that this point has value in the hands of the purchaser, ignoring the fact that the A ordinary share provides only veto rights not rights of appointment. I question whether there is anyone other than Mr Ipek himself or his friends and family, who would pay for a right to ensure that Mr Ipek can continue to enjoy a good salary. (d) Nuisance value

115. Finally, Mr Jones values the share on the basis of nuisance value. He makes the assumption that, and considers that it is reasonable to assume that, Koza Altin would pay something to avoid disputes, which he puts at 10% of the value of the net assets of the company. He gives no explanation of how he arrived at this percentage. (e) My conclusions on the report

116. As I have explained, there are a number of flaws and false assumptions in this report. I am entirely sceptical of the figures that emerge. However, I must bear in mind that I am dealing with this matter on the summary basis and there has been no opportunity for Mr Jones to explain his conclusions.

117. Happily, I am not required to reach a valuation of the A ordinary share in order to determine the Application. It is enough for me to recognise that it is likely that a full determination of the value is likely to reach a conclusion that, as things stand, whilst the Company remains in business and with substantial assets, the share has at least a nuisance value or ransom value of some amount well in excess of £1; it also has a value in the hands of Mr Ipek (if not anyone else) in securing his ability to earn a salary from Koza Ltd.

8. DOES KOZA ALTIN HAVE NO CONTROL? (a) The position up to the hearing

118. Up to the first day of this hearing, Koza Altin had an extremely strong argument that it is not in control of the Company. Clearly, unless and until the 2016 Proceedings are determined in its favour, it has, and can obtain, no control at board level. Mr Ipek remains the sole director and cannot be removed.

119. Only in theory, was this point mitigated by Koza Altin’s ability to give directions under Article 4. Mr Ipek has in the past, and was reserving a right in the future, to challenge the ability of the current directors of Koza Altin to pass such a resolution, with the result that Mr Ipek was reserving a right to ignore any resolution that Koza Altin (whilst it remained under its current control) might pass, including any resolution under Article 4. Accordingly Koza Altin was on notice that any control that Koza Altin might have through passing a resolution under Article 4 (or otherwise) potentially might require another visit to court.

120. In view of Mr Ipek’s change of position, as discussed below, I do not need to determine this point, however, I will say that before this change of position I consider that the argument that there was a deadlock was a strong one. Whilst in theory a deadlock on any matter (other than changes impinging on Article 26) could be resolved by a direction under Article 4, Koza Altin was effectively on notice that Mr Ipek considered himself free to ignore any such direction if it was passed by the existing directors of Koza Altin.

121. Mr Ipek’s counsel, noting that Koza Altin’s case is based in principle on the assertion that there is a “deadlock”, pour doubt on whether the circumstances really can be said to amount to “deadlock” as the courts have interpreted that phrase in the past. Referring to Chu at [14], they note that a winding-up may be just and equitable where there is a “ functional deadlock ” , meaning “an inability of members to co-operate in the management of the company’s affairs” that leads to “an inability of the company to function at board or shareholder level” or otherwise being described in Chu as being of a “ paralysing kind ”. They argue further (on the basis of Chu at [23]) that the paralysis must affect management; deadlock about “other matters is neither here nor there” if the company is “still capable of being effectively managed” and decisions can still be made “about important aspects of the direction of its business and assets”.

122. This last point appears to be at odds with a case cited by Koza Altin’s counsel (and described as the leading case in Ebrahami ): Re Yenidje Tobacco Co Ltd [1916] 2 Ch 426 (“ Re Yenidje Tobacco ”) . This was a quasi-partnership case where two tobacconists brought their businesses together to be conducted through a private limited company, with articles that provided for deadlock between its two shareholders both shareholder and director level, and with the unusual provision that if there was deadlock at director level, the matter would go to arbitration and the arbitrators’ decision would stand as a decision of the directors. Some points went to arbitration in this manner, and the two directors were not speaking to one another. Nevertheless, it appeared that the company remained prosperous, making large profits - in fact rather larger profits than before the dispute became so acute. Nevertheless the court found that it was: “… contrary to the good faith and essence of the agreement between the parties that the state of things which we find here should be allowed to continue.”

123. Mr Caplan, for Koza Altin, asks me to take two points from this case: i) first, that the fact that there was a mechanism (albeit one that was expensive and difficult) for differences to be settled (in that case through arbitration and he would say in the case before me through application to the court) was no answer to the complaint; and ii) secondly, the fact that the company in question was able to trade profitably notwithstanding the deadlock was not a determinative factor in relation to the discretion.

124. Interestingly, Lord Cross in Ebrahami (at page 383) found that the decision in Re Yenidje Tobacco was not made on the ground of “deadlock”, finding that: “It is sometimes said that the order in that case was made on the ground of " deadlock." That is not so. … although Mr. Rothman and Mr. Weinberg were not on speaking terms they communicated through third parties, the company's business was flourishing and the articles contained a provision for arbitration to which resort could be had in the event of their failing to agree on any point. The reason why the petitioner succeeded was that the court thought it right to make the order which it would have made had Mr. Rothman and Mr. Weinberg been carrying on business under articles of partnership which contained no provision for dissolution at the instance of either of them. People do not become partners unless they have confidence in one another and it is of the essence of the relationship that mutual confidence is maintained. If neither has any longer confidence in the other so that they cannot work together in the way originally contemplated then the relationship should be ended—unless, indeed, the party who wishes to end it has been solely responsible for the situation which has arisen.”

125. A narrow reading of this passage would suggest that Lord Cross considered that the ratio of Re Yenidje Tobacco was that it was a quasi-partnership case where it was appropriate to provide a remedy equivalent to the ability of a partner to terminate partnership where he has lost confidence in the other partner.

126. However, a more expansive reading, which I think accords better with the authorities which demonstrate that the court’s approach not to limit just and equitable winding up to particular silos, is that Re Yenidje Tobacco shows that equity will in appropriate cases provide a remedy in cases where an insupportable position has arisen (otherwise than as a result of the responsibility of the party who wishes the company to be wound up) and there is no other ability to resolve the position.

127. Mr Ipek’s counsel, Mr James Sheehan KC, also referred me to the following passage in the judgment of Lord Shaw of Dunfermline in Loch v John Blackwood Limited [1924] AC 783 at 788, where he said: “It is undoubtedly true that the foundation of applications for winding up, on the "just and equitable" rule, there must lie a justifiable lack of confidence in the conduct and management of the company's affairs. But this lack of confidence must be grounded on conduct of the directors, not in regard to their private life or affairs, but in regard to the company's business. Furthermore the lack of confidence must spring not from dissatisfaction at being outvoted on the business affairs or on what is called the domestic policy of the company. On the other hand, wherever the lack of confidence is rested on a lack of probity in the conduct of the company's affairs, then the former is justified by the latter, and it is under the statute just and equitable that the company be wound up.”

128. Mr Sheehan suggests that I should take from this that it is necessary, in a case establishing a loss of trust and confidence outside a quasi-partnership company, to find that this arises from a lack of probity.

129. He notes that this passage has been cited with approval in Ebrahimi by Lord Wilberforce at page 376, but I note, on reviewing this reference, that Lord Wilberforce was approving this as an example of how deadlock is not the only reason why it would be just and equitable to wind up the company, rather than specifically endorsing a view that a lack of probity is needed in cases outside a quasi-partnership company.

130. Mr Sheehan also referred me to the reference made to this case by Lord Cross in Ebrahami at page 383, but Lord Cross in the same passage was at pains to point out that: “ … it is not a condition precedent to the making of an order under the subsection that the conduct of those who oppose its making should have been unjust or inequitable”

131. Finally on this point, Mr Sheehan referred me to Lord Briggs’ judgment in Chu at page 4666 which did quote this passage with approval, noting that: “That was neither a deadlock nor a quasi-partnership case. The winding up was sought (successfully) on the ground that the minority shareholder petitioner had lost confidence in the probity of the directors.”

132. An interesting aspect of the case that is before me today is the question of how far the line of jurisprudence relating to quasi-partnerships should be applied to a different type of deadlock that does not arise in anything that is recognisable as a quasi-partnership. After all Lord Wilberforce, in Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 (“ Ebrahami ”) at page 360, based his reasoning as to how the words “just and equitable” should be interpreted on the point that: “the words are a recognition of the fact that a limited company is more than a legal entity, with a personality in law of its own: that there is room in company law for recognition of the fact that behind it, or amongst it, there are individuals, with rights expectations and obligations into say that are not necessarily submerged in the company structure.”

133. The expectations and obligations of individuals involved in a company are much easier to identify in a quasi-partnership case. It is therefore right to be cautious about applying decisions that applied in quasi-partnership decisions to other circumstances, especially in view of what Lord Wilberforce went on to say: “The “just and equitable” provision does not, as the respondents suggest, entitle one party to disregard the obligation he assumes by entering a company, nor the court to dispense him from it. It does, as equity always does, enable the court to subject the exercise of legal rights to equitable considerations; considerations, that is, of any personal character arising between one individual and another, which may make it unjust, or inequitable, to insist on legal rights, or to exercise them in a particular way.”

134. Mr Ipek’s counsel suggest on the basis of this passage and also of Re Anglo-Continental Produce Co Ltd [1939] 1 All ER 99 at 103F (“ Anglo-Continental Produce ”) that the fact that the company’s articles give a director the power to overrule the views of the majority of shareholders does not provide a basis for winding-up, regardless of what friction may exist between them.

135. In my view, this is putting the case too strongly. First I note that Anglo-Continental Produce was decided many years before Ebrahami , and the approach that it appears to follow on page 103 is the approach discredited in Ebrahami and later cases (see the references cited at my paragraph [‎73] above) of trying to confine the notion of “just and equitable” to specific types of case. (In Anglo-Continental Produce the relevant categories of case were considered to be: a wrong done to the company and voting power being used to prevent the company from having a remedy; failure of the substratum of the company; and impossibility for the business to be carried on because of the way the voting power is held and the feelings of the directors towards one another (a reference, I think, to Re Yenidje Tobacco ).)

136. Nevertheless, where, as in the present case, the circumstances are outside the circumstances of quasi-partnership or any of the established type of circumstance where just and equitable winding-up has been found to be appropriate, it will be necessary to go back to the equitable principles mentioned by Lord Wilberforce in order to reach a resolution.

137. In my view, the position as it stood immediately before this hearing, is an entirely unusual one where there is no deadlock at shareholder level (Koza Altin holds all the votes) and no deadlock at board level (Mr Ipek is the sole board member) but the combination of the facts that these parties are at loggerheads; that the shareholder with all the economic rights has lost confidence that the sole director is managing the assets in its interests; that that director cannot be removed; and that that director reserves a right to ignore any directions under Article 4 (which might otherwise resolve the impasse), does appear to me to be worthy of the name of deadlock.

138. In my view, although this is not a quasi-partnership case, there are many parallels with the analysis that Lord Cross found to be the justification for the decision in Re Yenidje Tobacco , as I have cited at [‎124] above . Shareholders are entitled to have confidence in the directors who are entrusted with the management of their assets. This confidence has clearly broken down in this case, and there are examples where the court has already determined that Mr Ipek was not acting in the interests of the Company, for example in funding litigation for his own benefit out of the assets of the Company or paying himself excessive remuneration as director. It cannot be said that this breakdown in trust has arisen entirely as a result of actions by Koza Altin. Neither can it be said that Koza Altin’s complaint is entirely based on an objection to the Company’s unusual constitutional arrangements – it is based not merely on that fact, but also on the way that he has used that position against the interests of the Company, as perceived by its economic owner.

139. There is a close parallel between the position here (loss of trust in a director coupled with an inability to fire the director) and the position Lord Cross considered to be relevant in Re Yenidje Tobacco (a loss of trust between quasi-partners without the usual ability to terminate the relationship afforded to partners). In my view the equitable considerations that pointed towards a just and equitable winding-up in Yenidje Tobacco, while Mr Ipek was in effect reserving the right generally to ignore a direction given by means of a resolution under Article 4, pointed similarly towards resolving what I agree had become an insupportable position here. (b) The position following the undertaking given in the course of the hearing

140. During the hearing the position changed somewhat. Mr Ipek has offered to provide an undertaking to the court. After the hearing it was clarified that the undertaking he was prepared to offer would be in the following terms: “Mr Ipek agrees to accept that the directors of Koza Altin are authorised to act on Koza Altin’s behalf in all matters in relation to Koza that Koza Altin can lawfully perform as a shareholder of Koza. The undertaking:

1. is given without prejudice to the parties’ rights and obligations in terms of the orders that make up the Interim Regime

2. is given without prejudice to the pending proceedings in the Constitutional Court of the Republic of Türkiye, and any subsequent proceedings in the European Court of Human Rights, challenging the confiscation of Koza Altin, and any relief that may be granted in those proceedings, including in respect of the restoration of any confiscated shares; and

3. does not apply to litigation, claims, or steps taken or purportedly taken in terms of court orders in Türkiye. For the avoidance of doubt, nothing in this undertaking waives Mr Ipek’s rights as Director or ‘A’ shareholder of Koza Ltd, nor his rights in any other jurisdiction or in matters unrelated to Koza Ltd.”

141. Mr Ipek’s solicitors have confirmed in correspondence that the reference to “lawful” performance is not intended to provide a back door to reopening the Authority Claim but instead was reserving a right to argue that a particular resolution may be unlawful or beyond the power of ordinary shareholder on other grounds (and I discuss below some of the possible grounds that were raised in oral submissions).

142. This undertaking significantly strengthens the argument that Koza Altin retains ultimate control as it can pass a resolution that would be binding on Mr Ipek. For example, Koza Altin has concerns about how much money is being spent every month (around £25,000 a month plus VAT) on Whitehall which is providing consultancy, apparently mainly in the area of public relations and networking. I see no reason why Koza Altin could not pass a resolution under Article 4 to forbid that expenditure.

143. The core of the dispute is that Koza Altin has no confidence that Mr Ipek is working in the interests of its shareholder and wishes to exit from its investments in the stalled goldmining projects in which Koza Ltd has invested, whilst Mr Ipek wishes to remain in place and to continue with these projects. Koza Altin (unless and until the English Company Law Claim is resolved in its favour) cannot remove Mr Ipek as director against his will, but I see no reason why Koza Altin could not bring about an exit from the stalled goldmining projects and the return to it of its capital by special resolutions under Article 4.

144. It seems to me that Koza Altin could pass resolutions requiring the director to sell the interests in the projects, not to spend the proceeds on anything else but to distribute any profits by way of dividend and to propose a reduction in capital (which Koza Altin could approve) to return any remaining capital after paying creditors (and reserving £1 so as to be able to meet the distribution due to the A ordinary shareholder on a winding up). I will call this theoretical suite of resolutions the “ postulated wind-down resolutions ”.

145. If there is no bar on Koza Altin restricting the spending of Koza Ltd and passing the postulated wind-down resolutions, and these would be complied with by Mr Ipek, then it is difficult to see that Koza Altin does not have ultimate control, and also difficult to see why a winding-up is necessary.

146. I put the postulated wind-down resolutions to Mr Sheehan to see if he agreed that this was a possible outcome, if Koza Altin wished to deal with things this way.

147. He was unwilling to concede that it was necessarily within the powers of a shareholder resolution. He regarded the interplay of shareholder powers and director powers to be a complex one. He acknowledged that the starting point was that shareholders have a power under Article 4 to give directors instructions, and that directors have a duty to comply with those instructions, but considered that it is difficult to say how such a duty interacts with directors' other duties and with shareholders' duties.

148. I consider that he was making heavy weather of the point.

149. As I understand it, Mr Sheehan was making two arguments, one based on directors’ duties and one based on the limitation on shareholders’ powers to pass resolutions. The argument based on directors’ duties

150. The first was based on principles discussed in the decision in Hikari Miso v Knibbs [2023] EWHC 1340 (Ch) at [132]-[133] (“ Hikari Miso ”). This case did not concern a shareholder direction under Article 4 (or any similar article), but rather considered the effect of a shareholders’ resolution under a shareholders’ agreement providing approval to something that was a matter reserved to shareholders under that agreement. Mr Sheehan drew my attention to that judgment at [154] where the judge said: “154. I accept that the good faith and conflicts duties cannot be abrogated entirely: they form part of the irreducible core of a fiduciary’s duties to his principal. However, the scope of their operation can be limited, sometimes dramatically so.”

151. The point being made here was that, where shareholders limit the scope of operation of the company (for example requiring it only to invest in certain areas) this affects the fiduciary duties of a director to act in good faith in the interests of the principal to pursuing actions within the scope of that endeavour. It would be a breach of duty for the fiduciary to act outside that scope. Obviously, a director would still have fiduciary duties within that scope.

152. I think Mr Sheehan was asking me to extrapolate from this decision a principle that would apply in the different circumstances of a direction given under Article 4, to say that even in the case of such a direction the directors are not absolved from their fiduciary duties, and therefore could refuse to obey that direction if they considered that the direction clashed with their fiduciary duties.

153. Mr Sheehan expanded his point by reference to Re Southern Counties Fresh Foods Ltd [2008] EWHC 2810 (Ch) where, at [64], Warren J, in the context of considering the position of a nominee director representing one of the shareholders, agreed that the duties of directors could be attenuated by unanimous agreement of the shareholders but considered that: “The extent to which the shareholders could effectively agree that a particular nominee director could act in a way which he, and the rest of the board, saw to be positively against the interests of the company must be open to question”; and, at [67](e) “… it is doubtful whether, as a matter of English law, it is possible to release a director from his general duty to act in the best interests of the company”; however, at [67](g) “… I see no reason in principle why in relation to specific areas of interest, a director should not be released from his fiduciary duty to give his best independent judgment to the company”; and at [68]: “But whatever can be said as a matter of generality, I consider that the extent of the duties of a director in such a situation are very much fact-specific. The general duty is clear; the difficult question is the extent to which the duty is qualified. That qualification will depend critically on the context of the relationship and the particular action which is said to constitute a breach of duty.”

154. In arguing this point, Mr Sheehan particularly had in mind the resolution that had been passed by Koza Altin requiring Koza Ltd to enter into the EPA. The EPA mandated the sale of Koza Ltd’s largest asset on terms such that it was uncertain whether the initial cash consideration would come at all to Koza Ltd and it was clear that the future deferred consideration, in the form of potential future royalties would not come to Koza Ltd and would instead come directly to Koza Altin.

155. In this context, I can see Mr Sheehan’s point. It is difficult to see how it could be in the interests of the Company to sell its major asset on terms that the consideration, or a substantial part of it, would not come to the Company. The arrangement might also would be unlawful in that it would involve an effective distribution to the shareholder that was not properly sanctioned as a lawful dividend or lawful return of capital.

156. Mr Sheehan refused to speculate on whether it would also be open to Mr Ipek to claim that it would be a breach of directors’ duties if he were to be faced with resolutions along the lines of the postulated wind-down resolutions.

157. When I pressed him on the question of how it might be proper for Mr Ipek to fail to comply with such a resolution he considered that the matter would need to be considered on its facts, but suggested that Mr Ipek might possibly have arguments either: i) on the basis that the transaction was not in the interests of the Company or ii) on the basis that it was tantamount to, or a preliminary to, a winding up of the Company and under Article 26, this was not something that the ordinary shareholders could resolve without the consent of the A ordinary shareholder.

158. I put it to Mr Sheehan that what he appeared to be saying is that if Mr. Ipek was faced with a resolution that he does not agree with and he does not think in the best interests of the Company, he may refuse to deal with that and if he refuses that then the matter will have to come to court to sort out whether he was right to refuse or not.

159. I think Mr Sheehan agreed that there might be limits to the ability of a director to resist such a direction merely because he thought there might be a better way to deal with the Company’s assets, but he was careful to reserve his position generally on this matter. The argument based on limitations on shareholders’ powers

160. In the context of the question of whether it might be proper for Mr Ipek to resist following a shareholders’ resolution under Article 4, Mr Sheehan also drew my attention to a line of jurisprudence which set bounds on the proper scope of a shareholders’ resolution.

161. He argued first, that there was a general principle about whether a power was being exercised in good faith in the interests of the Company as an entity.

162. In relation to this proposition he took me to Re Charterhouse Capital Ltd [2014] EWHC 1410 (Ch) (“ Charterhouse ”), an unfair prejudice case dealing with a contested amendment to the articles of association, and in particular dicta of Asplin J at [230]-[231] which were later considered by the Court of Appeal in Re Charterhouse Capital Ltd [2015] EWCA Civ 536 ; [2015] B.C.C. 574 (“ Charterhouse CA ”). He drew my attention to the judgment of Sir Terence Etherton C (as he then was) at [90] where he summarised certain principles, as follows (omitting case references): “(1) The limitations on the exercise of the power to amend a company’s articles arise because, as in the case of all powers, the manner of their exercise is constrained by the purpose of the power and because the framers of the power of a majority to bind a minority will not, in the absence of clear words, have intended the power to be completely without limitation. These principles may be characterised as principles of law and equity or as implied terms. (2) A power to amend will be validly exercised if it is exercised in good faith in the interests of the company. (3) It is for the shareholders, and not the court, to say whether an alteration of the articles is for the benefit of the company but it will not be for the benefit of the company if no reasonable person would consider it to be such. (4) The view of shareholders acting in good faith that a proposed alteration of the articles is for the benefit of the company, and which cannot be said to be a view which no reasonable person could hold, is not impugned by the fact that one or more of the shareholders was actually acting under some mistake of fact or lack of knowledge or understanding. In other words, the court will not investigate the quality of the subjective views of such shareholders. (5) The mere fact that the amendment adversely affects, and even if it is intended adversely to affect, one or more minority shareholders and benefit others does not, of itself, invalidate the amendment if the amendment is made in good faith in the interests of the company (6) A power to amend will also be validly exercised, even though the amendment is not for the benefit of the company because it relates to a matter in which the company as an entity has no interest but rather is only for the benefit of shareholders as such or some of them, provided that the amendment does not amount to oppression of the minority or is otherwise unjust or is outside the scope of the power. (7) The burden is on the person impugning the validity of the amendment of the articles to satisfy the court that there are grounds for doing so.”

163. Whilst these principles are articulated in relation to resolutions to amend the articles, I accept that similar principles may apply to other types of resolution.

164. Mr Sheehan argues accordingly that there are two types of prohibited resolution: i) Resolutions affecting the company . Here shareholders generally are to be accepted as being the arbiters of the interests of the company, but not in the case where the resolution is one which no reasonable person would consider to be the interests of the company. In the case of such resolutions, even if the alteration affects minority shareholders it is not invalidated if it is made in good faith in the interests of the company; and ii) Resolutions not affecting the company but adversely affecting a minority of shareholders. In this case, whether the resolution is valid will turn on whether it amounts to oppression of the minority, is unjust or outside the scope of the power.

165. Again, Mr Sheehan was drawing my attention to these principles mainly to establish the following arguments (which I summarise in broad terms, which I accept will probably not do justice to the subtlety of Mr Sheehan’s arguments): i) that Mr Ipek was not being unreasonable in resisting the resolution to enter into the EPA, firstly on the grounds that no reasonable person could consider this resolution to be in the interests of the Company because the EPA involved selling the Company’s most important asset where all or at least a potentially major part of the consideration would not be received by the Company; and secondly because this resolution affected the value of Mr Ipek’s share; and ii) that Mr Ipek was not being unreasonable in resisting the resolution to provide information (i) because this was at least in part unlawful (in requiring the disclosure of privileged documents in the context where litigation was outstanding) (ii) as it was a prelude to the unlawful sale under the EPA and therefore fell into the first type of unlawful resolution or (iii) because it fell into the second type of unlawful resolution as it was aimed at finding ways of oppressing Mr Ipek.

166. It is not appropriate for me to seek to determine the correctness of these propositions by way of summary judgment. Nor do I need to provide summary judgment on these matters in order to determine the question that is before me. For the purposes of determining this application by way of summary judgment I will assume (but not determine) that Mr Ipek would be able to establish these propositions at trial. Conclusion as regards the effect of Mr Ipek’s undertaking

167. The more pertinent question is how the principles to which Mr Sheehan has referred me affect the question of whether, after Mr Ipek has undertaken not to question the authority of the directors of Koza Altin to pass a resolution, the rationale for a just and equitable winding up disappears – on the basis that this breaks what Mr Caplan has referred to as a deadlock and provides Koza Altin with sufficient control such that it now has another way of resolving the position that it finds insupportable.

168. My conclusion is that this probably does change the position and that certainly I cannot give summary judgment (on the basis of the facts established before the court at present) on the basis of determining that it does not.

169. I have reached this conclusion slightly warily as the point is untested (Mr Ipek having offered his undertaking only during the course of the hearing) and having regard to Mr Sheehan’s suggestions that Mr Ipek might, notwithstanding having given up the Authority Claim, still be able to resist directions given under Article 4 on the basis either that the particular resolution was obviously not in the interests of the Company, or that it prejudiced his individual rights as the holder of the A ordinary share (both being points that Mr Sheehan speculated might be open for Mr Ipek to make).

170. Making all due allowance for the fact that Mr Sheehan was having to respond on his feet to the questions I was putting to him, it seemed to me that the arguments that he thought that Mr Ipek might be able to mount against the postulated wind-down resolutions lacked credibility.

171. Essentially there were two arguments: i) that such resolutions could be resisted as not being in the best interests of the Company; and ii) that they could be resisted on the basis that they were unfairly prejudicing the rights of the A ordinary shareholder or were breaching Article 26.

172. It is not for me to determine these matters at this stage (not least as they arise only theoretically), but I think I can say that if the maintenance of a deadlock or of an unsupportable status quo depends on Mr Ipek being able to deploy such arguments as these, I consider that there is a realistic (and certainly more than fanciful) argument that no such deadlock exists and that Koza Altin has another way in which it could bring to an end the situation which it finds insupportable.

173. As regards the first argument, if a sale of the assets of the Company was mandated by a special resolution passed under Article 4 as a commercial transaction with an arm’s length third party that Koza Altin, as ordinary shareholder, considered to be in the best interests of the Company, it is difficult to see how Mr Ipek could challenge that on the basis of Charterhouse CA - he would need to show that it was manifestly obvious that this was not in the interests of the Company.

174. Mr Sheehan suggested that a challenge might be mounted to the further elements of the postulated wind-down resolutions on the basis that it was not in the interests of the Company to part with all of its assets in the form of a dividend or return of capital, but I cannot see how that could be correct. In one sense any transfer of value from a company to its shareholder could be argued not to be in the best interests of the company. However such an argument ignores the point that commercial companies exist to make returns to the shareholders entitled to those returns, and it cannot seriously be suggested that shareholders are prevented by the interests of the company from passing resolutions to approve or mandate dividends or returning capital to shareholders (in each case assuming the correct procedures are followed). Such resolutions are passed, without challenge, every day.

175. As regards the second argument, to the extent that Mr Ipek’s share has some significant economic value while the Company remains trading (and I must accept, at least for the purposes of summary judgment, that it has some value in excess of £1), I can see that this value would be destroyed if Koza Altin were to put the postulated wind-down resolution into effect - the Company would thereby become dormant company with no material assets, no business and no ability to pay a director.

176. However, the postulated wind-down resolution would not abrogate the legal rights of Mr Koza as the holder of the A ordinary share - he would still have what he is entitled to, the ability to carry on as a director, to block a resolution to wind up or if a winding up is later approved to obtain the return of his £1 subscribed capital. In such circumstances, I do not believe that Mr Ipek would be successful in arguing against the postulated wind-down resolution on the grounds that it affected his rights as a shareholder, or (as the point was separately argued) that the resolutions could be regarded as amounting to resolutions to wind-up the company, and so would be invalid under Article 26 unless consented to by the holder of the A ordinary share.

177. Mr Caplan has referred me to Miso at [132]-[133] (“ Miso ”) (which in turn refers to the judgment of Snowden LJ in Re Compound Photonics Group Ltd [2022] EWCA Civ 1371 ) for the proposition that the courts recognise a distinction between a shareholders’ vote altering the legal rights of other classes of shareholder and the value of rights of shareholders. As the judge in Miso, Sarah Worthington DBE KC(Hon) sitting as a Deputy High Court Judge put it: “This is because in none of these cases is the shareholder’s vote altering the legal rights of all shareholders, including the dissenting shareholders. It is irrelevant that, in these latter examples, the vote may alter the value of the rights [of] shareholders. That is an incident of almost every corporate activity.”

178. This was in the context of a question whether a shareholder could act in his own interests in vetoing reserved matters, but the principle has wider application.

179. Of course, the high-level analysis I have outlined above on the basis of theoretical special resolutions that Koza Altin might choose to pass cannot be regarded as a judicial determination of the validity of such resolutions. That matter would need to be determined on the facts. However, I consider that this analysis does suffice to allow me to reach a conclusion that, now that Mr Ipek has undertaken not to pursue his Authority Claim in the English courts, there remains at the very least a realistic, and definitely more than fanciful, chance that Mr Ipek could argue that there is no deadlock that could not be resolved by a lawful direction being given under Article 4, and therefore that the Claimant will be unable to establish the central plank of their argument justifying a just and equitable winding up.

180. Accordingly, on the basis that the court will rely on Mr Ipek’s undertaking, I consider that the application for summary judgment on the petition for winding up must be dismissed.

181. Having determined this point, there is no need for me to consider in detail the other arguments that Mr Ipek has put forward to resist the application for summary judgment, but I think it would be helpful nevertheless to deal with these points briefly, in particular as they may have some bearing on the alternative relief asked for by Koza Altin relating to the striking out of Mr Ipek’s and Koza Ltd’s Points of Defence.

9. Unreasonable refusal of an alternative

182. Under s.125(2) IA, the court may decline to wind up a company if the court is “of the opinion both that some other remedy is available to the petitioners and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy.”

183. Mr Ipek argues that Koza Altin has an obvious alternative remedy in the form of offers made by him to buy Koza Altin’s shares. He made two such offers before the hearing and improved the terms of his second offer during the course of the hearing. Mr Sheehan argues further that Koza Altin cannot obtain summary judgment without showing that it is fanciful to suggest that Koza Altin has behaved unreasonably by refusing to engage with these offers.

184. Koza Altin has raised various commercial concerns about Mr Ipek’s offers, however it became apparent during the course of the hearing that Koza Altin was unlikely to accept any offer at all from Mr Ipek as it was in receipt of legal advice to the effect that dealing with Mr Ipek under the terms of the second offer (and logically also any other improved offer from Mr Mirza) would give rise to a real risk that Koza Altin and those in control of it would face criminal investigation and prosecution under Turkish criminal law.

185. I do not accept that Koza Altin is being unreasonable in failing to accept, as an alternative to the winding up, the offers that Mr Ipek has made to purchase its share, even with the improvement of this offer that was offered during the course of the hearing (and later confirmed in writing). Koza Altin has received legal advice from a respected lawyer that it would be or at least risked breaching Turkish law if it were to enter into such a dealing with Mr Ipek. There is a question whether this advice is correct or not. Mr Ipek has received advice from an equally respected lawyer to the contrary. However, I do not need to reach a view as to which of these lawyers is right. It is enough that I can determine that Koza Altin cannot be said to be unreasonable in relying on its own legal advice and preferring not to risk breaking the criminal law in Turkey.

10. COLLATERAL PURPOSE

186. In his Points of Defence, Mr Ipek argues that the Petition should be struck out or dismissed on the basis that it is brought for improper collateral purposes, namely to persecute Mr Ipek for his perceived political affiliation and/or to unlawfully expropriate his assets and/or remove the Company’s assets from his control; and/or that Koza Altin has unclean hands.

187. It is argued that Koza Altin’s objective therefore is “not related or connected with [its] shareholding” (as was found to be a reason to dismiss a position in: Taylor v Whitehall Partnership Ltd [2023] EWHC 596 (Ch) at [37]).

188. Clearly, a winding-up petition may be dismissed where the petitioner does not genuinely seek the relief pleaded but is seeking to exert pressure for a collateral purpose (see e.g. Re Bellador Silk [1965] 1 All E.R. 667 ). Counsel for Mr Ipek argue that, even if it accepted that Koza Altin is genuinely seeking to wind the Company, that is not an end of the matter: in petitions such as this the court will look further.

189. In support of this proposition, they cite firstly Re JE Cade & Son Ltd [1991] B.C.C. 360 , where the petition was dismissed because, although the petitioner clearly did want the winding-up order sought, there was a “fatal flaw” , namely that he was seeking to protect his interests in a capacity unrelated to his interests as a shareholder. In this case the petitioner had an ulterior motive – putting the company into winding-up would bring into operation provisions of the Agricultural Holdings Act which would allow him to obtain possession of a farm leased to the relevant company of which the petitioner was the freeholder. His interest in obtaining the farm was separate to his interests as a member of the company and was not a purpose that could support a just and equitable winding-up petition.

190. I find it difficult to see the relevance of this case to the case before me. There is no equivalent collateral advantage that Koza Altin is looking to achieve through the winding-up.

191. Secondly, counsel for Mr Ipek cite Maud v Aabar Block Sarl [2015] EWHC 1626 (Ch);[2015] BPIR 845. In this case a statutory demand was bought by a creditor against an individual. The debtor alleged that the creditor had served a statutory demand in pursuance of a purpose that was collateral to the collection of the debt through bringing about a bankruptcy of the debtor. The collateral purpose alleged was that if that individual became bankrupt certain pre-emption rights affecting shares in a company held by the debtor would be triggered in favour of the creditor, who was the other shareholder in the company.

192. Mr Ipek’s counsel refer me to the judgment of Rose J in this case at [29]. Having cited various authorities Rose J concluded that: “ … the pursuit of insolvency proceedings in respect of a debt which is otherwise undisputed will amount to an abuse in two situations. The first is where the petitioner does not really want to obtain the liquidation or bankruptcy of the company or individual at all, but issues or threatens to issue the proceedings to put pressure on the target to take some other action which the target is otherwise unwilling to take. The second is where the petitioner does want to achieve the relief sought but he is not acting in the interests of the class of creditors of which he is one or where the success of his petition will operate to the disadvantage of the body of creditors.”

193. Mr Ipek’s counsel argue that Koza Altin’s Petition is an abuse of this second type because the aim of the Petition is to put political pressure on Mr Ipek and his family and to divest them of their assets. They note that Mr Ipek will also say that the Petition falls under the second limb of the Maud analysis because Koza Altin is not acting in the interests of Koza Ltd’s shareholders and liquidating Koza will disadvantage the body of contributories (including for the reasons addressed in the next section). They argue further that these points are inherently fact-specific questions incapable of summary determination.

194. I find this argument wholly unconvincing. It is worthwhile noting that Rose J in Maud dismissed the collateral purpose argument. The quotation above from [29] in her judgment is only part of that paragraph. He went on to say: “It is also clear from those authorities, and as a matter of common sense, that the jurisdiction of the court to dismiss a petition based on an undisputed debt on the grounds of collateral purpose must be exercised sparingly. Bankruptcy proceedings cannot be allowed to become the forum for a detailed investigation into past and present relationships or an exploration of what the petitioner hopes to gain from the insolvency of the company or individual, in financial or personal terms and a consideration of whether those hopes are legitimate or not.”

195. Insofar as the improper purpose argument is relying on a motive to put political pressure on Mr Ipek and his family and to divest them of their assets, this is denied by Koza Altin, but in any case the question of motive is irrelevant, as is indicated from the passage from the judgment of Rose J that I have set out immediately above, and as has also been held by the Court of Appeal in Broxton v McClelland [1995] EMLR 485 . As Simon Brown LJ put this (at 497): “[M]otive and intention as such are irrelevant … : the fact that a party who asserts a legal right is actuated by feelings of personal animosity, vindictiveness or general antagonism towards his opponent is nothing to the point… Accordingly the institution of proceedings with an ulterior motive is not of itself enough to constitute an abuse: an action is only that if the Court's processes are being misused to achieve something not properly available to the plaintiff in the course of properly conducted proceedings.”

196. Similarly Teare J in JSC BTA Bank v Ablyazov (No 6) [2011] 1 WLR 2996 at found at [22(ii)] of his judgment that: “a purpose will not be regarded as illegitimate if it is no more than the natural consequence of the action succeeding.”

197. He went on to find that where there are “mixed” purposes, if one of them is legitimate then there will be no abuse, even if another is illegitimate (see at [22(iv)(a)]).

198. These principles apply also to winding up petitions. In Bryanston Finance Ltd v De Vries (No 2) [1976] 1 Ch 63 , Buckley LJ rejected an allegation that a minority shareholders’ winding up petition would be an abuse of process because it was actuated by malice, finding (at D on page 75): “Mr. Bateson says that the defendant's object is simply to wreck the plaintiff company and that his only motive is enmity against Mr. Smith. The judge, rightly in my opinion, thought that a petition could not be an abuse simply because the petitioner was actuated by malice. If a petitioner has a sufficient ground for petitioning, the fact that his motive for presenting a petition, or one of his motives, may be antagonism to some person or persons cannot, it seems to me, render that ground less sufficient.”

199. This point was reinforced by Lord Wilson on behalf of the Privy Council in Ebbvale Ltd v Hosking [2013] 2 BCLC 204 at [28]: “I am not concerned with his motives or with the past conduct of the company, which was here deplorable or worse and which may have led the petitioner to have justifiable dislike for and a desire to see the downfall of some person such as the main protagonist in the company … the only proper purpose for which a petition can be presented is for the proper administration of the company’s assets for the benefit of all in the relevant class.”

200. Accordingly, I consider that it is fanciful that an argument based on abuse of process could be deployed to resist a just and equitable winding up in this case if it were otherwise justified. Even if, which is denied, the directors of Koza Altin have some personal animus against Mr Ipek or are trying to disadvantage him (presumably by causing his A ordinary share to lose whatever value it currently has) for political reasons, that only goes to the question of motive, not to the question of what they are trying to achieve. What they are trying to achieve is a winding-up. If the natural consequence of that is that Mr Ipek is disadvantaged (for example because any saleable value of his A ordinary share is lost) that does not render Koza Altin’s petition an abuse of process.

201. As for the question whether they are acting in the interest of their class of member, that point can hardly be in question when they hold all the shares in that class.

202. I agree with counsel for Koza Altin that an order of this court winding up a company, or a petition seeking the same, could be regarded as an “expropriation” of any kind is patently wrong. It would be lawful by definition – the liquidation of assets and the distribution of their proceeds is the ordinary legal consequence of a lawful order to wind up a company. Koza Ltd’s assets are not Mr Ipek’s assets, and the supposed “expropriation” would be that a distribution would be made to Koza Ltd’s 100% ordinary shareholder, which is not an “expropriation” at all. The removal of Koza Ltd’s assets from Mr Ipek’s control is a necessary consequence of a winding up order. It cannot be a collateral purpose to desire such a consequence, let alone an improper one.

11. UNCLEAN HANDS

203. Mr Ipek also seeks to rely upon a similar but different principle. This is the principle that is that a Petition will be dismissed if the Petitioner has not come to court with clean hands.

204. As Lord Cross held in Ebrahimi at G on page 387: “A petitioner who relies on the " just and equitable " clause must come to court with clean hands, and if the breakdown in confidence between him and the other parties to the dispute appears to have been due to his misconduct he cannot insist on the company being wound up if they wish it to continue.”

205. Whilst this comment was made in the context of a quasi-partnership dispute, the principle has been applied in at least one non-quasi-partnership case ( Ringtower ), and indeed it applies to equitable relief more generally.

206. Mr Ipek’s counsel refer me to Royal Bank of Scotland plc v Highland Financial Partners LP [2013] 1 CLC 596 at [159] for the proposition that where an “unclean hands” argument is made the question is always whether the misconduct of the party seeking relief, if established on the facts, is sufficient (and sufficiently connected with the relief sought) to warrant a refusal of relief: Royal Bank of Scotland plc v Highland Financial Partners LP .

207. The conduct of Koza Altin that Mr Ipek relies on as evidence of hands that are unclean is explained in section N of his Points of Defence: “The Petition should be struck out or dismissed on the basis that it is brought for improper collateral purposes, namely to persecute Mr Ipek for his perceived political affiliation and/or to unlawfully expropriate his assets and/or remove the Company’s assets from his control; and/or that Koza Altin has unclean hands.”

208. The particulars supporting this averment rely essentially on three things: i) the actions of the Turkish state in confiscating assets from Mr Ipek and his family and seeking to bring allegedly unjustified criminal proceedings and unsuccessful extradition proceedings against him; ii) the motivation behind the winding-up petition to divest Mr Ipek of his own assets; and iii) actions taken by Koza Altin seeking to have Mr Ipek removed as a director of the Company and take control of the Company and to obtain control of the Company’s funds and assets both through various legal procedures in different jurisdictions and through the resolution mandating the Company to enter into the EPA.

209. I find this “unclean hands” argument entirely unconvincing and consider that Mr Ipek’s chances of succeeding on the basis of this argument to be wholly fanciful.

210. In large part this argument depends on attributing actions taken by the Turkish state as actions for which Koza Altin is responsible. Mr Sheehan suggested in oral argument that it was “wholly fanciful” to suggest that there is any separation between Koza Altin and the Turkish State, but this is not a submission that I can accept. Koza Altin may be controlled by nominees of an organ of the Turkish state, but that does not mean that the actions of the Turkish state are actions of Koza Altin.

211. As regards the question of the motivation for the petition for winding-up, I have already dealt with this point in relation to the question of improper purpose, and I do not think that the answer is changed by reframing this as an unclean hands argument.

212. This leaves the argument dependent on the actions that Koza Altin has taken to date to try to regain control of the Company or of its assets or to sell its assets on terms that the proceeds or a proportion of the proceeds will come directly to Koza Altin.

213. I take from the judgment of Hildyard J in CF Partners (UK) LLP v Barclays Bank Plc [2014] EWHC 3049 (Ch) at [1133] that the unclean hands doctrine : “is reserved for exceptional cases where those seeking to invoke it have put themselves beyond the pale by reason of serious immoral and deliberate misconduct such that the overall result of equitable intervention would not be an exercise but a denial of equity” and from [122] in the same case that: i) the party relying on the doctrine: “must show that the party seeking the relief has been guilty of or responsible for some misconduct which is “sufficiently closely connected” with the equitable relief sought”; ii) whether the misconduct is sufficiently closely connected to the relief sought depends on the facts of each case, but the test commonly cited is that it must have an “immediate and necessary relation to the equity sued for”; and iii) the misconduct must be ““in some way immoral and deliberate” and not trivial. However, “the court will assess the gravity and effect of misconduct cumulatively, so that, while the elements of misconduct taken individually might be too trivial for the maxim to be applied, they might be sufficient taken together.”

214. Most importantly, in the specific context of a just and equitable winding-up petition, Lord Briggs held at [64] of Chu that the doctrine of unclean hands: “finds appropriate expression … by the requirement, expressed in the Ebrahimi case, that the applicant should not have been the sole cause of the breakdown in trust and confidence or of the deadlock”.

215. The facts pleaded by Mr Ipek (even if they were all established on the facts) do not establish that Koza Altin is “the sole cause of the breakdown in trust and confidence or of the deadlock”. It is a matter of record in a number of the judgments already made in the course of the 2016 and 2021 Proceedings to date that actions of or brought about by Mr Ipek have contributed to this breakdown and deadlock.

12. STRIKE-OUT APPLICATIONS

216. The Application seeks, as an alternative to summary judgment, the striking out of the Points of Defence of both Mr Ipek and of Koza Ltd, claiming, in the alternative: “2. That Koza Ltd's Points of Defence be struck out in their entirety pursuant to CPR r.3.4(2)(a) and / or CPR r.3.4(2)(b)

3. That Mr Ipek's Points of Defence be struck out in their entirety / in part pursuant to CPR r.3.4(2)(a) and / or CPR r.3.4(2)(b).”

217. The reasons why I am refusing to give summary judgment against Mr Ipek are also good reasons why I am refusing to strike out Mr Ipek’s Points of Defence, in their entirety. I discuss below why I’m not proposing to strike out Mr Ipek’s Points of Defence in part.

218. As put in the Application, the alternative remedy sought to that of summary judgment was the striking out of both Mr Ipek’s and Koza Ltd’s Points of Defence, and therefore, as I had determined not to strike out Mr Ipek’s Points of Defence this alternative remedy was not available and I did not deal with this point in the original draft of this Judgment that was circulated to the parties for corrections.

219. However, Koza Altin, has asked me to deal separately with the application to strike out Koza Ltd’s Points of Defence, and I can see that Koza Altin has raised separate grounds as to why I should strikeout these Points of Defence. Whilst it is not entirely clear on the drafting of the Application that the alternative remedy may be addressed in part rather than only as a whole, I will give the Applicant the benefit of the doubt on this point and will I address these arguments.

220. Koza Altin is asking for these Points of Defence to be struck out in their entirety pursuant to CPR r.3.4(2)(a) and/or CPR r. 3.4(2)(b).

221. CPR r.3.4 relevantly provides as follows: “3.4 -(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case. (2) The court may strike out a statement of case if it appears to the court - (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; ...

222. Koza Altin deploys essentially two arguments as to why Koza Ltd’s Points of Defence should be struck out: i) that they are an abuse of process (so that CPR r. 3.4(2)(b)) applies; and ii) that they disclose no reasonable basis for resisting the Petition (so that CPR r. 3.4(2)(a) applies). Points of Defence as an abuse of Process

223. The argument that Koza Ltd’s Points of Defence are an abuse of process is essentially based on the proposition that a company is merely a nominal respondent to a just and equitable winding up petition and should accordingly remain neutral. Koza Altin cites as authority for this proposition Re a Company No. 004502 of 1988, ex p Johnson [1991] BCC 234 where Harman J indeed did support this proposition and found on the basis of it that the company’s money is should not be spent in dealing with the matters as a contentious party. Koza Altin supported this proposition also with a quote from Joffe, Minority Shareholders: Law, Practice and Procedure (7 th ed) at paragraph 8.146 to the effect that a “just and equitable winding up petition “is essentially a dispute between shareholders and does not affect the company as such”.

224. However, the mere fact that a company should not be using its money to take a partisan position in a dispute that is essentially one between shareholders does not automatically make its pleadings an abuse of process. No case has been cited to me where the court found a defence by a company in relation to a winding-up petition to amount to an abuse of process, and this proposition is not obviously analogous with any of the grounds on which the court has found an abuse of process in the past. Based on this ground alone, I would not determine to strike out Koza Ltd’s Points of Defence, particularly as this point was not discussed in any detail in oral argument and Koza Ltd was not represented. Do Koza Ltd’s Points of Defence disclose no reasonable basis for resisting the Petition?

225. Koza Altin argues that Koza Ltd’s Points of Defence disclose no reasonable basis for resisting the Petition ( so that CPR 3.4(2)(a) applies). It argues that: i) they do not respond to the matters raised in the Points of Claim; ii) they are irrelevant, inchoate and/or hopeless.

226. The first point is largely correct. Koza Ltd’s Points of Defence have nothing to say about the reasons put forward by Koza Altin for seeking a winding-up. They focus entirely on the EPA, making the argument that Koza Altin through the EPA has attempted to bring about the sale of the Company’s principal asset at what the Company alleges to be an undervalue and in circumstances whereby the consideration was to be diverted away from the Company straight to its shareholder. They invite the court to infer that the EPA is part of an overall strategy to deprive the Company of its assets and to act otherwise than in accordance with the Company’s best interests in order to further a collateral, improper and unlawful purpose of Koza Altin. It is pleaded that accordingly Koza Altin is not coming to the court with clean hands.

227. Koza Altin argues that the concentration on the EPA is irrelevant, inchoate and/or hopeless in the basis that, if Koza Ltd is wound up, what will happen to the EPA (if anything) will be in the hands of a liquidator. It will be for a liquidator to decide whether to pursue it, seek to modify it, or not proceed with it. Whether the EPA is a good or bad deal is not a question for the court in this Petition, or on this Application.

228. This argument, however, does not provide a complete answer to the basis on which Koza Ltd is pleading the relevance of the EPA, and in particular to the main point (made at [16] of the Points of Defence) to allege that Koza Altin is pursuing a strategy for a “collateral, improper and unlawful purpose” to “deprive [Koza Ltd] of its assets and to act otherwise than in accordance with [Koza Ltd’s] best interests”.

229. Koza Altin does address this specific point in arguing that the “collateral purpose” issue fails for the same reasons as the similar “collateral purpose” argument made by Mr Ipek in his Points of Defence fails.

230. Whilst the “collateral purpose” that Koza Ltd is alleging is somewhat different from that which Mr Ipek is alleging (Koza Ltd is alleging a strategy to deprive the Company of its assets, whereas Mr Ipek was alleging an expropriation of his assets), I agree that the same argument applies. It cannot be said that Koza Altin is seeking through the Petition to achieve anything other than the natural result of a winding-up. Of course, a winding-up always results in the distribution of a company’s assets to its creditors and shareholders, but it is misuse of language to call this an “expropriation” with the pejorative connotations of that word.

231. Accordingly, I agree with Koza Altin that the collateral purpose argument deployed by Koza Ltd in its Points of Defence discloses no reasonable basis for resisting the Petition.

232. Koza Ltd also asserts a belief that Koza Altin is not coming to the court with clean hands (or at least asserts that it does not believe that it is coming to the court with clean hands which is not quite the same thing). The basis of this belief (or lack of belief) is not properly explained but in context it must be presumed to be the Company’s concerns about the EPA, as this is the only complaint that has been made about the conduct of Koza Altin within Koza Ltd’s Points of Defence.

233. I have already discussed the circumstances of the EPA, and have recognised that there are concerns about the terms of the EPA in that it appears to divert all or part of the consideration for the sale of the Company’s principal asset from the Company towards Koza Altin.

234. The “clean hands” argument made by Koza Ltd is slightly different narrower than that made by Mr Ipek, but both arguments have sought to rely on the circumstances around the EPA as supporting the argument. For the reasons I have given at [‎212] to [215] in the context of this “just and equitable” winding-up petition, these facts will not support the application the doctrine of unclean hands.

235. I must conclude, therefore, that the “clean hands” argument in Koza Ltd’s Points of Defence also does not disclose any reasonable grounds for defending the Petition.

236. The improper purpose argument and the “clean hands” argument are essentially the only arguments put forward in Koza Ltd’s Points of Defence that might have any bearing on the Petition. As I have found that neither of these arguments disclose any reasonable grounds for defending the Petition, I must conclude that the circumstances described in CPR r.3.4(2)(a) do apply so that it is open to the court to strike out the entirety of Koza Ltd’s Points of Defence.

237. That is not quite the end of the matter, in that the word “may” within CPR r. 3.4(2) indicates that the court has a discretion when the circumstances described in that role apply whether or not to strike out a statement of case.

238. There are some circumstances that the court should consider in this case that could be argued to be relevant to this exercise of discretion – in particular that Koza Ltd was not represented at the hearing. However, given the point that Koza Ltd is not regarded as having a stake in relation to the matter of its own winding-up, as I have discussed above, and having regard to the overriding objective (which would be better served by taking these irrelevant pleadings out of the future consideration of this matter), I consider that justice is best served by my ordering the striking out of these Points of Defence in their entirety.

239. Conversely, whilst would be open to me on the basis of the logic above to strike out some elements of Mr Ipek’s Points of Defence which I have found to have no merit, in this case I think it would be too difficult in terms of drafting to carve out the elements of his Points of Defence that I have found to have no merit from those which I have found might possibly still succeed. In this case I consider that the overriding objective is best served by not striking at any of Mr Ipek’s Points of Defence and leaving it to the good sense of whichever judge may hear the Petition (if indeed the Petition is ever heard) to deal with the points appropriately.

12. CONCLUSION

240. For the reasons I have given, had Mr Ipek not provided an undertaking to the court that he will not challenge the authority of the directors of Koza Altin to act on behalf of that company in exercising its rights as a shareholder of Koza Ltd, I would have considered that Koza Altin had made good on its contention that the circumstances were such to justify winding up on a just and equitable basis.

241. In my view, however, that position is changed by the undertaking that Mr Ipek has given. In the light of that undertaking, it is difficult to accept the argument that there is a deadlock, since the deadlock on any point (other than the composition of the board of the Company) could be broken by a resolution passed under Article 4 (provided that it was a lawful resolution, and not patently one that was patently against the interests of the Company or one that would cut across the provisions of Article 26).

242. It could be argued that that was already the case given that the Authority Claim appears to be no longer sustainable in the light of the decisions that the court has made. However the fact that Mr Ipek previously was expressly reserving his position on this point and thus was giving notice that he would be likely to continue to take this point as justification for ignoring a resolution lawfully passed under Article 4, in my view tipped the balance and made the case for the proposition that Koza Altin that it could not rely on Article 4 without expecting to have to go back to court to require Mr Ipek to comply with a lawful resolution given under Article 4.

243. In view of Mr Ipek’s change of heart and his undertaking, I consider that there is an argument, with a good and not merely fanciful prospect of success, that the conditions do not currently exist to justify a winding-up on the just and equitable ground.

244. This position may change if it turns out that notwithstanding the undertaking Mr Ipek continues to ignore resolutions lawfully passed under Article 4. This may present new arguments as to why the Petition should succeed. However, on the basis of the facts as they stand, I consider that I must dismiss the Application.

245. However, given this possibility I should be clear that this decision does not preclude Koza Altin making a further application for summary judgment on the Petition if new facts emerge such that it proves I have been unduly sanguine about the prospect of resolutions under Article 4 providing Koza Altin with an alternative solution to a winding-up.

246. Neither should it be considered that my findings in this judgment support an application to strike out the Petition. All I have found is that, on the current facts, Koza Altin has been unable to persuade the court that the conditions for summary judgment are met in that it seems to me that Mr Ipek does have a realistic case that is more than fanciful that the conditions justifying a winding-up on the just and equitable grounds do not exist at present.

247. Having made this determination, it has not been strictly necessary for me to consider other arguments advanced on behalf of Mr Ipek, except in relation to the striking-out application. I have recorded my determinations as regards on the arguments Mr Ipek has put up based on it being unreasonable for Koza Altin not to have engaged with his various offers to purchase their shares; that the Petition is an abuse of process; and that Koza Altin are making the Petition with unclean hands. As well as helping in the determination of the strike-out application in relation to Koza Ltd’s Points of Defence, these determinations may all help in the future if Koza Altin renews its application on the basis of new facts and may be of assistance if and when the Petition is heard.