The manner of commencing a derivative proceeding is procedural and governed by the lex fori, not the law of the place of incorporation. The 'justice' or fifth exception to the rule in Foss v Harbottle is available to majority shareholders who cannot secure a majority vote to cause the company to take proceedings. A receivership does not preclude a derivative proceeding where the shareholders fund it at their own risk and it does not jeopardise the charged assets.
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