Two companies established a joint company for the purpose of carrying out a real estate project in a complex where there are several parallel projects. After one of the founding companies made an offer in a tender to carry out one of the other projects in the complex, the second founding company claimed that such act constitutes taking advantage of a business opportunity of the joint company for which it is entitled to compensation.
The Court held that the founding company does not meet the conditions required to file a claim on behalf of the joint company. In the event of a claim by a shareholder or director on behalf of the company whose interests have been infringed, an act which deviates from the principle of the separate legal entity of the company and the rule of non-interference by the shareholders in the management of the company, the shareholder must show that the company has an interest which was infringed, that filing a claim is in the best interest of the company, that a written request was made to the company with the demand that it exhaust its rights, and that the claim has a prima-facie chance of success. Here, while the founding company was found to have the right to step into the joint company's shoes and stand up for its rights, and while it was determined that there was no need to apply to the company because more than half of the members of the body authorized to make such a decision were affected by a personal interest - the establishing company did not meet the obligation to show a reasonable chance of the claim’s success, and therefore the founding company is not entitled to file the claim or receive compensation for taking advantage of a business opportunity of the joint company.