Nullity and challengeability are not the same. Classify the defect, claim, resolution copy and time limit carefully.
Your shareholder dispute team
Dispute team for shareholders and managing directors
A shareholder dispute calls for corporate law, litigation strategy and commercial understanding from one team. Mag. Bernhard Brandauer is responsible for the legal advice; depending on the conflict, further specialised lawyers of the firm support safeguards, evidence, negotiations and court enforcement.
Contact the teamA defective resolution is often called null and void too quickly. That can be risky: nullity, challengeability and the appropriate claim require different classifications.
Start with the specific defect. Do not assume that calling a resolution null means every time limit and procedural requirement disappears.
Already know you want to get in touch? Go straight to the enquiry form.
Organise notice, agenda, voting, minutes and resolution copy. Section 41 GmbHG contains the challenge rules and related time limit. The time plan must not be replaced by the label “nullity”.
Describe which statutory or contractual boundary the resolution allegedly crossed. Then identify the appropriate declaratory or challenge claim and consider whether the section 41 time limit should be observed as a precaution.
A breach involving notice, agenda, voting rights or the articles must be assessed against the actual meeting. Not every defect makes a resolution null; not every irregularity is irrelevant.
Create a table with the wording, alleged breach, affected votes, effect on the result and requested relief. The challenge-period guide provides the procedural starting point.
Section 40 GmbHG concerns dispatch of the resolution copy. Section 41 contains the challenge rules and a statutory time limit. Even where nullity is examined, the time plan should not be set aside without review.
Preserve the copy actually dispatched, dispatch date, receipt, minutes and later corrections. Mark any altered copy clearly.
A claim challenging the effectiveness of a resolution must identify the resolution and alleged breach clearly enough for the court to assess it. Labels cannot replace facts and the appropriate relief.
If the resolution is about to be implemented, possible interim protection must be considered separately.
That cannot be assumed. Classify the defect and claim; observe the section 41 challenge period as a precaution.
The wording, notice, agenda, meeting process, vote count, minutes and dispatch of the resolution copy.
That depends on the facts and resolution. Urgent interim protection should be reviewed separately.
Safeguard, challenge and enforce shareholder disputes. Portal for active GmbH conflicts covering first safeguards, resolution challenge, exclusion and preliminary injunction.
Contact