11 min
Yelland Security v Plus Architecture [2021] VSC 416 Coffee and a Case Note
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- Education
“You fired me just to get my Co’s shares at a discount!”
___
Y owned and controlled a Co, P.
P was a shareholder in the Cos in a group that operated a national business. Y was a director of the Cos: [1]
Y was terminated as a director of each Co in the group and, and by operation of the shareholders agreements, P’s shares in those Cos were transferred to the other shareholders at a discount which P accepted under protest: [6], [325]
P relied on s232 of the Corporations Act to challenge the discount; alleging termination of Y was unfair: [11], [28]
Separately P claimed the discount was a breach of the shareholders agreements: [12]
The Ds said the termination was appropriate due to Y’s behaviour, and was not motivated by the share discount: [13], [14]
In 2017 Y, and the other directors, had fallen into serious dispute: [31]
The disputes concerned possible share dilutions to let in new shareholders, pay for senior staff, governance, and the future direction of the business: [36] - [38], [46], [111]
There was evidence Y bullied staff: [97], [104] - [106]
Y sought to renege on a more recent shareholder purchasing a departing “legacy shareholder”’s shares: [109]
This led to a mediation process: [115], [116]
Following mediation, the group’s board sent a letter to Y proposing resolutions that Y be terminated as a director at a board meeting a month later: [143]
The next day, Y purported to resign giving 3 months notice: [145]
Roughly a month later (and before the 3 month resignation notice period expired) the resolutions terminating Y passed: [149]
The Court found the group’s board had good reason for terminating Y; to bring to an end the problems Y was causing. It was not a mere share discount manouver: [192], [198]
The Court noted the terms of the shareholders agreement had been accepted by Y and P, so being held to them was not inappropriate: [212]
P’s primary oppression claim failed: [216]
(Interestingly, the Court raised the issue of whether unitholders in a unit trust could bring an oppression suit, suggesting it may be an open question: [222])
P also complained the discount was a breach of the various Cos’ shareholders agreements and constitutions: [263]
Whether the discount applied depended on whether termination or resignation took effect first: [270]
P argued that Y’s resignation took immediate effect, despite a 3 month notice period: [271]
The resignation would take effect 3 months after notice was given, so the termination resolutions passed in the intervening time took precedence: [298], [301]
P did not show that applying the discount was a breach of the agreements: [363]
The Court was taken to evidence about a “senior junior” colleague of Y’s valuer, whose work was about 70% of the invoices issued in preparing the report, was not independent: [372] - [435]
The Court dealt with the valuation at length: [436] - [553]
Speaking broadly, Ds’ valuer was preferred: [554]
The discount was found to be OK: [555]
“You fired me just to get my Co’s shares at a discount!”
___
Y owned and controlled a Co, P.
P was a shareholder in the Cos in a group that operated a national business. Y was a director of the Cos: [1]
Y was terminated as a director of each Co in the group and, and by operation of the shareholders agreements, P’s shares in those Cos were transferred to the other shareholders at a discount which P accepted under protest: [6], [325]
P relied on s232 of the Corporations Act to challenge the discount; alleging termination of Y was unfair: [11], [28]
Separately P claimed the discount was a breach of the shareholders agreements: [12]
The Ds said the termination was appropriate due to Y’s behaviour, and was not motivated by the share discount: [13], [14]
In 2017 Y, and the other directors, had fallen into serious dispute: [31]
The disputes concerned possible share dilutions to let in new shareholders, pay for senior staff, governance, and the future direction of the business: [36] - [38], [46], [111]
There was evidence Y bullied staff: [97], [104] - [106]
Y sought to renege on a more recent shareholder purchasing a departing “legacy shareholder”’s shares: [109]
This led to a mediation process: [115], [116]
Following mediation, the group’s board sent a letter to Y proposing resolutions that Y be terminated as a director at a board meeting a month later: [143]
The next day, Y purported to resign giving 3 months notice: [145]
Roughly a month later (and before the 3 month resignation notice period expired) the resolutions terminating Y passed: [149]
The Court found the group’s board had good reason for terminating Y; to bring to an end the problems Y was causing. It was not a mere share discount manouver: [192], [198]
The Court noted the terms of the shareholders agreement had been accepted by Y and P, so being held to them was not inappropriate: [212]
P’s primary oppression claim failed: [216]
(Interestingly, the Court raised the issue of whether unitholders in a unit trust could bring an oppression suit, suggesting it may be an open question: [222])
P also complained the discount was a breach of the various Cos’ shareholders agreements and constitutions: [263]
Whether the discount applied depended on whether termination or resignation took effect first: [270]
P argued that Y’s resignation took immediate effect, despite a 3 month notice period: [271]
The resignation would take effect 3 months after notice was given, so the termination resolutions passed in the intervening time took precedence: [298], [301]
P did not show that applying the discount was a breach of the agreements: [363]
The Court was taken to evidence about a “senior junior” colleague of Y’s valuer, whose work was about 70% of the invoices issued in preparing the report, was not independent: [372] - [435]
The Court dealt with the valuation at length: [436] - [553]
Speaking broadly, Ds’ valuer was preferred: [554]
The discount was found to be OK: [555]
11 min