Needless to say, the requirement of consent is not the same as the power of refusal; in the first type of cases, there must be consent in the board of directors for the transfer, and in the absence of consent the transfer will be prevented, while in the second type of cases there must be a refusal. In the second type of cases, therefore, in the absence of a majority in the board of directors against the transfer, the transfer will be permitted" (paragraph 28 of the judgment that was attached to the Applicant's summaries).
This is also the case in our case. Our case is of the second type that the Honorable Justice M. Cheshin is talking about, in which consent is not required for the transfer of the shares, but if there is a "right of refusal", and in the absence of a majority, the transfer will not be prevented. The law of transfer of shares in our case was also that it should be registered.
I will add that the conduct of the respondents and the management of the company and the many important decisions made therein, with the assistance of the shareholder, clearly indicate that Milmus is a shareholder in the company, with all the rights and obligations deriving therefrom (see the words of Justice (ret.) Ali Natan at the meeting of the board of directors of December 2, 2001, pp. 14-15).
- I will not elaborate further on this matter, and to sum up this issue I will say that there is no doubt in my heart, the slightest of which is that if Milmus had approached the court, in these circumstances, and insofar as no special reason had arisen for the refusal, the law of transferring the shares from the foreign companies to which they would have been registered, even in the absence of an uncreated register, but because of the company's failures.
However, this application did not come, and the Applicant now petitions to order the registration by this Court of liquidation, in connection with the liquidation application. I am of the opinion that this is not the right way, and it would have been appropriate to attack the decision of August 3, 1997 and any other decision to refuse to list the shares, which was followed by a direct attack.