Accounting in New Zealand

A number of legislative controls are available to shareholders wishing to exercise their rights. If it appears that the affairs of the company are not being conducted properly, shareholders have some options available to them and among which, the statutory remedy for shareholder oppression. It protects minority shareholders against being deprived of their fair share and greatly improves their ability to take action against the company alleged to be in breach of good corporate practices. The Courts have adopted a liberal approach in the interpretation of the oppression remedy following some leading common law cases and it is now the broadest of all the remedies available to minority shareholders. There could be many instances where conduct has been held to constitute oppression, among them is the conduct of company meetings. Formal exercise of majority power may in fact, be unfairly prejudicial to a minority shareholder, justifying Court intervention.

The statutory remedy against oppression, unfair discrimination and unfair prejudice is contained in ss 174-176 of the Companies Act 1993. It provides that the company’s affairs are being conducted “in a manner that is oppressive, unfairly discriminatory or unfairly prejudicial “to him or to her may apply to the court for relief. The leading authority in New Zealand on the meaning of the words “oppressive, unfairly discriminatory or unfairly prejudicial” is Thomas v H W Thomas Ltd (1984), where Richardson J held that the expressions are not distinct alternatives but overlap, each helping to explain the other (Richardson J, Thomas v H W Thomas Ltd). The Court considered that it was not necessary for a petitioner to prove a lack of probity or want of good faith towards him or her on the part of those in control of the company. The section is concerned with instances or courses of conduct amounting to an unjust detriment to the interests of a member or members of the company (Watson and Noonan, 2005, p.8). The conduct of a company may be unfairly detrimental to a shareholder in the company even though it is not discriminatory and affects all members alike. The fact that all members are treated uniformly as members will not necessarily make conduct fair (Glazebrook, Hammond and O’Regan, 2004). Section 174 may provide remedy even if the conduct accords with company constitution, as prejudice may still arise. Relief can be given even if the conduct is legal, there is no lack of good faith or probity, and where no agreement between the shareholders (Watson and Noonan, 2005, p12). Therefore, the test of unfairness is objective as it is determined by reasonable bystander would regard the conduct as unfairly prejudicial. Richardson J and Sir McCarthy held that fairness is not to be assessed in a vacuum or from one member’s point of view alone, and that all interests involved must be balanced against each other including the policies underlying the Act and s 174 (Glazebrook, Hammond and O’Regan, 2004). The Courts may intervene in the words of Richardson J: “where there is a visible departure from the standards of fair dealing and in the light of the history and structure of the particular company and the reasonable expectation of the members” (Richardson J, Thomas v H W Thomas Ltd). Section 174 therefore, could be used to protect “reasonable expectations of the members”. The protection of such expectations might involve both the consideration of the formal nexus of understandings that the parties themselves have established and of external standards (Watson and Noonan, 2005, p 10). Thus, legal expectations may relate to: participation in management, decision making, employment, sharing profits.

At the same time, Sir McCarthy warned against the power of s 174 to invade traditional rights of the shareholders to determine the management of their company according to their shareholding and the “danger of allowing minority interests to inflict serious damage to a company’s structure “. The Courts are therefore, aware of the need to restrict judicial intervention in management of corporate affairs. They attempt to balance the interests of those entitled to claim protection against the ability of management to conduct business in an efficient way (Thomas v H W Thomas Ltd, [1984]). The Courts give considerations to all interests and this equality approach has been adopted and enlarged in post –Thomas cases, whereas the emphasis has been “towards the expansion of shareholder oversight of companies, and away from the uninhibited application of the majority rule principle and director’s business judgment” Berhahn, 1997).

In Cornes v Kawerau Hotel (1994) Ltd, the removal of a shareholder (Mr Cornes) from his directorship when he was suspected of theft was done by the other two shareholders use of their combined voting interest at a shareholders