Yelland Security v Plus Architecture [2021] VSC 416

“You fired me just to get my Co’s shares at a discount!”

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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]