Facing a dispute with a company director, shareholder, or investor?
Shareholder and partnership disputes can arise for a range of reasons, but the priorities are often the same: to enable one party to leave the business, and to do so without causing suffering to the business.
Regardless of your business structure, this means finding a resolution that minimises conflict and enables both parties to move on with their lives. Our focus is on discovering the most effective pathway to this outcome.
How can Aptum help?
Aptum’s financial expertise and considerable experience enables us to identify, understand and manage the critical issues around business valuations. When disputes threaten the continuation of a business, focusing on the most effective and efficient pathway to practical commercial outcomes is essential.
Aptum and its team has considerable experience and deep expertise working with shareholders, investors, partnerships and joint ventures in disputes relating to:
Resolving shareholder oppression disputes with a focus on value
Aptum frequently helps clients resolve shareholder oppression disputes both for minority and majority shareholders.
In our experience, parties and lawyers often get caught up in spending considerable time and resources in agitating and proving the grievance (the oppression) and have real difficulty seeing beyond the oppression. The existence of oppression is rarely the real issue to resolve.
In practice, one or both of the parties will typically seek orders for a compulsory buy-out of shares in order to achieve a clean exit with the real issues to be decided being the value of the shares and which party will be the buyer (although it is typically the majority shareholder who is more readily suited to being the buyer).
The critical message is: don’t allow a shareholders’ dispute to destroy value. Ask first whether the relationship can be repaired in a way that would allow the company to continue to function effectively, and then very quickly turn the attention and legal costs to outcome and value.
What Makes Aptum Different
“Aptum Legal was able to grasp the complexities of [my industry], which previous lawyers were unable to understand. My personal preference is for Aptum Legal to open in Queensland.”
– Individual, Employment Dispute
Forced out of a business
Aptum’s client was forced out of his position in a co-op business in a highly specialised industry by the other shareholders.
The client contacted several lawyers prior to Aptum who advised him that a shareholder oppression claim was unsubstantiated.
Aptum was engaged, and based an oppression claim on a novel interpretation of the Court’s powers to order compensation for our client.
Despite this matter having been transferred to Aptum following a significant legal spend by the client, Aptum was able to strategise a legal pathway that achieved a successful outcome for the client whilst acting against a much larger firm.
Select Team Members
“I was kept informed every step of the way with quick, reliable advice. I felt that they cared about getting me a good outcome.”- Director, Partnership Dissolution Dispute 10 Overall Experience
“The Aptum Team are professional and courteous and provide a level of service at every level. I will definitely use them again.”- Frank Cardamone, Managing Director, Waste Wise Environmental 10 Overall Experience
“Cost effective professional advice with an efficient cohesive team that take pride in their work and are client focused.”- Event Director, Property Dispute 9.3 Overall Experience
“From the moment I engaged Aptum they were incredibly professional, thoughtful, and very sensitive to my situation.”- Senior Executive, Employment Dispute 10 Overall Experience
“Aptum Legal was able to grasp the complexities of [my industry], which previous lawyers were unable to understand. My personal preference is for Aptum Legal to open in Queensland.”- Individual, Employment Dispute 10 Overall Experience
“I can’t recommend Nigel Evans & his team highly enough. I found him to be an excellent communicator, intelligent, caring & importantly a great listener. His advice & ability to negotiate a quick resolution for me were first class.”- Andrew Sakeson, Property Dispute 10 Overall Experience
“Nigel made the process as least stressful as he was able to and the outcome confirms that his advice took me on the best path to a strong resolution.”- Anonymous 10 Overall Experience
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Frequently Asked Questions
How can disputes between shareholders be resolved?
If you’re involved in a dispute with another shareholder, there are various ways in which it can be resolved.
Negotiation: The first step should always be informal discussion and negotiation. By communicating key issues and objectives early, it is often possible to reach an agreement without delving further into the litigation process. Aptum can assist in this process by investigating your position, determining reasonable objectives, and crafting the correspondence to assert your intentions.
Turning to the agreement: Shareholder agreements will often include provisions for dealing with disputes, such as whether mediation is required and when the parties can proceed to litigation.
Court: If the parties accept that the shareholders cannot remain together, but an agreement cannot be reached, the Court’s focus shifts to who buys and who sells their shares, and at what price. A party may seek an order that they buy out the shares of the other. If the company is solvent, this is generally preferable (to both the parties and the Court) to winding up the company.
Winding up the company: If the dispute has caused significant damage to the business, it may be appropriate for the company to enter into voluntary administration. This will be influenced by the financial strength of the company and the preferences of shareholders.
What is shareholder oppression?
Shareholder oppression occurs when majority shareholders use their power or influence for their own benefit at the cost of others or the company.
What constitutes shareholder oppression is set out in s232 of the Corporations Act 2001 (Cth), which states that the conduct must either be:
- Contrary to the interest of the members as a whole; or
- Oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity.
Contrary to some belief, oppression does not have to be unlawful, but it does need to be an abuse of power of some kind.
Oppression may have taken place if there was a failure to pay dividends, access to company material was restricted, someone was excluded from management, or funds were used for personal reasons.
What are the typical remedies provided by the Court for shareholder oppression?
The Court has a broad range of remedies for shareholder oppression. Generally, those remedies include winding up the company or requiring the purchase of shares such that one shareholder buys, and one sells, with an appropriate reduction in the company’s share capital.
What provisions in a shareholders’ agreement can help resolve a dispute?
Some key provisions in shareholder agreements that aid the dispute resolution process can include:
- Dispute resolution clause: A dispute resolution clause may set out whether mediation is required in certain timeframes, what constitutes a dispute, and when the parties can proceed to litigation.
- Right of refusal/ Offer clause: If you, or someone else, is exiting the company, this clause may require shares to be offered to existing shareholders first before any third-party purchasers.
- Drag/ Tag along right: Where a third party wishes to purchase some (or all) of the company, a drag along clause may require minority shareholder to sell shares. Conversely, a tag along right may enable minority shareholders to ‘tag along’ with majority shareholder if they want to sell.
- Some shareholder agreements will include how to determine the sale and price of your shares.
How will the business be valued?
Identifying the appropriate value for a party’s shares can be a complex task, and there is no prescribed methodology for undertaking a valuation (and indeed the appropriate methodology will change depending on the nature of the company and even the tendency of a particular expert valuer).
Ordinarily, the Court will appoint an expert to value the shares, with the trend being to appoint a single expert. Each party has the option of making submissions and the Court will ensure that the expert gets all the relevant information to carry out the valuation exercise.
What happens if both shareholders want to buy out the other?
While there is surprisingly little authority about how a court would determine a dispute where both parties are wanting to be buyers, ordinarily, the majority holder will buy out the minority holder.
In circumstances where shareholders are equal, it is more likely to follow that the party responsible for the oppression will buy out the shareholder who has been oppressed.
This satisfies the objective of allowing release of the oppressed party from the company and recognises that an order providing for a minority to acquire the shares of a majority is rare.
When determining the value, the Court will consider whether the value should be set so as to ensure that the shareholders responsible for the oppression do not benefit from the oppression. Other than adjustments that relate specifically to damage caused by the oppression, this is often carried out by ensuring there is no minority discount applied to the value for a minority shareholding.
Which Court will a shareholder oppression dispute be heard in?
Oppression proceedings are brought before the Supreme Court or Federal Court.
How are oppression proceedings commenced in the Court?
In 2018, the Supreme Court set out a new procedure for bringing oppression proceedings, aiming to fast track the process and save parties time and cost.
Oppression proceedings are commenced in the Supreme Court by originating process and supporting affidavit of no more than three pages in length, which sets out a clear and succinct summary of the facts alleged to constitute the acts of oppression, the estimated value of the shares in the company, and exhibits a current ASIC search of the company.
If initiating in the Federal Court, a document of up to five pages is allowed, which should summarise:
- the important facts giving rise to the claim;
- the relief sought from the Court (and against whom);
- the primary legal grounds (causes of action) for the relief sought; and
- the alleged harm suffered by the applicant, including – wherever possible – a conservative and realistic estimate or range of loss and damage.