w w w . L a w y e r S e r v i c e s . i n



Modern Built Investments Limited & Another v/s Tracey Ann O'brien & Mccaw Lewis Trustees (T A O'brien) Limited as Trustees of the T A O'brien Family Trust & Another

    CA No. 51 of 2021

    Decided On, 26 August 2021

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE GODDARD
    By, THE HONOURABLE MR. JUSTICE VENNING & THE HONOURABLE MR. JUSTICE PETERS

    For the Appellant: C.T. Gudsell, QC, R.J. Southall, Advocates. For the Respondents: P.J. Morgan, QC, Z.T. Mora, Advocate.



Judgment Text

Table of contents

Para No

REASONS OF THE COURT

(Given by Goddard J)

Introduction

[1] Ms O’Brien and Mr Spiers began a de facto relationship in June 2001. Their relationship ended some 14 years later in June 2015. They have been unable to agree on the division of assets following the end of that relationship. In particular, they disagree on whether Ms O’Brien and the O’Brien Family Trust (the O’Brien Trust) are shareholders in Modern Built Investments Ltd (MBI). Mr Spiers says he is the sole shareholder and director of MBI. Ms O’Brien says that she and the O’Brien Trust are entitled to a 50 per cent share in the company.

[2] The High Court held that Ms O’Brien and the O’Brien Trust are entitled to be entered on MBI’s share register as holders (between them) of half the company’s shares. The Court found that the company should be put into liquidation on the grounds that it is just and equitable to do so because of the unfairly prejudicial way in which the affairs of the company have been conducted by Mr Spiers.[1]

[3] Mr Spiers and MBI appeal, challenging the finding in relation to shareholding in MBI and the Judge’s conclusion that the company should be liquidated.

Background

[4] At the time that Ms O’Brien and Mr Spiers began living together, in June 2001, they each had assets of approximately equal value. Ms O’Brien had $261,000 in cash. She had received this sum in April 2001 as settlement of her relationship property claim in connection with a previous marriage. Mr Spiers held shares in three companies which had recently been valued together at $205,000 for the purposes of his relationship property settlement with his former wife. Those three companies were MBI, Modern Built Garages Ltd (MBG), and Modern Built Homes Ltd (MBH). In September 2000, Mr Spiers incorporated a fourth company, the name of which was changed to Steel Building Solutions Ltd (SBS). We refer to these companies collectively as the Modern Built companies. Mr Spiers was the sole director and shareholder of these companies.

[5] Shortly after their relationship began, Ms O’Brien, who had an employment background in sales and office administration, began carrying out office administration for the Modern Built companies.

[6] Ms O’Brien had two children from her previous marriage. Mr Spiers had three children from his previous marriage.

Purchase of Farquharson Road property

[7] In March 2002 Ms O’Brien and Mr Spiers entered into an agreement to purchase a rural property at Farquharson Road in South Auckland for a total price of $470,000. The property was bare land, on two lots. They paid a total deposit of $21,500: Mr Spiers arranged for MBI to provide $10,000 as a deposit for one lot, and Ms O’Brien provided $14,000 to MBH from which it paid the $11,500 deposit for the other lot.

[8] Ms O’Brien contributed $217,000 to the purchase price: $207,000 from her relationship property settlement and $10,000 borrowed from her mother. The balance was funded by borrowing: a bank loan of $131,500, and vendor finance of $100,000. The bank loan was secured by a mortgage over one lot, and the vendor finance was secured by a mortgage over the other lot.

[9] The couple planned to build a house and associated buildings to establish a rural lifestyle property for themselves and their children. Mr Spiers would use his experience and access to building resources through his businesses to construct the house and other buildings at a significantly reduced cost compared with the likely cost of construction by a building contractor.

[10] For some years before Mr Spiers formed a relationship with Ms O’Brien, he had engaged Mr Douglas Lyon, a partner in the law firm Lyon O’Neale Arnold, as his solicitor. Mr Spiers and Mr Lyon were personal friends, and after he formed a relationship with Ms O’Brien the couple socialised with Mr Lyon.

[11] Mr Spiers sought advice from Mr Lyon about how he should structure the purchase of Farquharson Road to protect his separate property interests. He decided to establish a family trust to purchase and hold a half share in the property. On 14 March 2002 Mr Lyon wrote to Mr Spiers and Ms O’Brien about arrangements for the financing and settlement of the purchase. He noted that Mr Spiers had instructed him to establish a family trust, and he recommended that Ms O’Brien should also establish a family trust through which to purchase and hold the other half share in the property. Mr Lyon wrote:

Following on from my phone call to [Mr Spiers] this morning.

...

Obviously [Ms O’Brien] is making a much bigger contribution than [Mr Spiers] at this stage and I think it’s important that [Ms O’Brien]’s capital be protected. I am presuming that you want to buy these properties as equal 50/50 partners, in which case any increase in value or any loss of value is split 50/50.

We already have the vendor taking a first mortgage on one property and I presume the Bank will want a first mortgage on the other property.

I think the best solution is if [Ms O’Brien] lends her cash to the two family trusts and has this secured by way of a second mortgage over both titles. I presume it would be an interest free loan, but it would go a long way to protecting [Ms O’Brien]’s situation. ...

What I’m proposing here is a way of settling and protecting [Ms O’Brien]’s capital and as time goes by, you may want to vary the situation somewhat. I appreciate that [Mr Spiers] will be providing a house on the jointly owned property at a cost that will be less than true cost and that will be of benefit to the both of you. That really goes into the pot along with a lot of other issues of how you wish to operate as a family and how your current and future living expenses are concerned, and that can be looked at [at] some stage in the future, but we do have to act promptly now to reach a mutually acceptable and fair solution to the funding issues in respect of the purchase of the property and the initial building.

[12] Ms O’Brien accepted Mr Lyon’s advice. The O’Brien Trust was established, with Ms O’Brien and D Lyon Trustee Ltd as trustees. The beneficiaries of that Trust were Ms O’Brien, Mr Spiers and Ms O’Brien’s children and grandchildren.

[13] Mr Spiers established his family trust (the Spiers Trust) on similar terms. The trustees were Mr Spiers and D Lyon Trustee Ltd. The beneficiaries of the Spiers Trust were Mr Spiers, Ms O’Brien and Mr Spiers’ children and grandchildren.

[14] The Farquharson Road property was purchased by a partnership of the O’Brien Trust and the Spiers Trust (the Trust partnership). The trustees of the O’Brien Trust advanced $193,659.37 to the Trust partnership, to be secured by second mortgages over both lots. This advance was documented in a Deed of Acknowledgment of Debt dated 17 April 2002, under which the trustees of the two Trusts acknowledged their indebtedness to the O’Brien Trust. Ms O’Brien then advanced $193,664 to the O’Brien Trust, which in turn made the advance to the Trust partnership.

[15] The purchase was settled on 22 April 2002.

[16] Ms O’Brien and Mr Spiers built a “minor dwelling” on the land and began living at the property. Over time they added an extension to the dwelling and constructed a barn.

Transfer of shares in the Modern Built companies

[17] On 8 August 2004 Mr Spiers and Ms O’Brien met with Mr Lyon to discuss their personal affairs. Mr Lyon sent them a letter on 10 August 2004 following up that meeting in which he addressed issues in relation to the Property (Relationships) Act 1976, gifting, their wills, and enduring powers of attorney. He said:

I am writing following our meeting at my home on 8th August 2004 to summarise what we had agreed.

1. Property Relationship Act

You told me you had been living together now for three years. I explained the effect of the Property Relationship Act that applied to yourselves and that there was a general basis of equal division between people who had lived together for that long and did not have a Property Relations Agreement. You both advised that you believed that when you commenced the relationship the total assets of each of you were approximately equal and that you are happy to have them treated as equal. We have the two Ararimu properties held equally by your two Trusts. [Ms O’Brien] has the loan to the [Trust] Partnership of about $200,000. [Mr Spiers] has the shares in the four companies, but has no value in Modern Built Garages Limited. You have instructed me to transfer half the shares in the companies to [Ms O’Brien]’s Trust and the loan from [Ms O’Brien]’s Trust to the [Trust] Partnership is to be cancelled or shared equally. I will therefore get that underway.

2. Gifting

We reviewed [Ms O’Brien]’s gifting programme which is proceeding satisfactorily. [Mr Spiers] has not started a gifting programme to his Family Trust. At the time I do the change in the company shareholdings transferring half the shares into [Mr Spiers]’s Trust and half the shares into [Ms O’Brien]’s Trust, I will then start [Mr Spiers]’s gifting programme.

...

A. Discharge of mortgage to [Ms O’Brien]’s Trust enclosed. [Ms O’Brien] please sign where indicated & return. Do not have your signature witnessed. We will attend to this on return to our office.

[18] The O’Brien Trust’s second mortgages on the Farquharson Road property titles were discharged on 3 September 2004.

[19] On 4 October 2004 Mr Lyon wrote to Mr Spiers and Ms O’Brien enclosing 19 documents relating to the personal restructuring measures discussed at the 8 August 2004 meeting. They included a deed to give effect to the parties’ intentions regarding the repayment of the Spiers Trust’s debt to the O’Brien Trust by means of a transfer of shares held on behalf of the Spiers Trust in the Modern Built companies (the 2004 Deed). Also included with the letter were nine share transfers for signing by Mr Spiers to effect a transfer of half of the shares he held in the Modern Built companies to Ms O’Brien personally and to the O’Brien Trust; a deed of acknowledgment of debt relating to the shares Mr Spiers would be transferring to the Spiers Trust (Spiers Deed); Ms O’Brien’s will; several enduring power of attorney documents relating to property and personal care for both Mr Spiers and Ms O’Brien; and a gifting statement for Mr Spiers to sign, as well as a memorandum of wishes relating to their respective family trusts.

[20] The purpose of the nine share transfers prepared by Mr Lyon was that Mr Spiers would transfer shares he held personally in MBI, MBH, and SBS to the trustees of their respective family trusts, as well as some shares to Ms O’Brien personally. The result was intended to be that each of them would hold half of the shares in those companies, either through their family trusts or personally.

The 2004 Deed and related transactions

[21] The parties to the 2004 Deed were the Spiers Trust and the O’Brien Trust. Mr Spiers, Ms O’Brien and Mr Lyon (on behalf of D Lyon Trustee Ltd) executed the 2004 Deed in their capacity as trustees of the two Trusts. The recitals recorded that the trustees of the Spiers Trust were indebted to the trustees of the O’Brien Trust for the sum of $200,000, being money lent for the purpose of the purchase of the Farquharson Road properties. The 2004 Deed then provided as follows:

b. Both parties have agreed that the T A O’Brien Family Trust trustees will purchase the following shares from the R D Spiers Family Trust trustees:

(i) 980 in Modern Built Investments Limited

(ii) 980 in Modern Built Homes Limited

(iii) 49 in Steel Building Solutions Limited

c) The parties have agreed that the price for the shares is $100,000.00.

d. Payment of the sum of $100,000.00 shall be effected by the T A O’Brien Family Trust trustees transferring to the R D Spiers Family Trust trustees one half of their debt referred to in clause (a) herein.

e. That it is the intention of the parties that the sale of the shares in the companies are at fair market value and the parties believe that the price of $100,000.00 is fair market value. Should an issue ever arise that the price of $100,000.00 was not fair market value and any gifting issues arose then the parties agree that the price will adjust to [the] amount agreed by the Inland Revenue Department to be fair market value and the adjustment would be a debt owing from one party to the other interest free repayable on demand.

NOW THIS DEED WITNESSES AS FOLLOWS:

1. That pursuant to the transactions referred to herein such debt is hereby cancelled in that the lenders and borrowers are the same.

2. It is hereby acknowledge[d] between the parties that because of the special relationships between the vendor and the purchaser, the Inland Revenue Department may deem part of the purchase [price] as a gift. In the event of the Inland Revenue Department assessing a value of the transaction different to that contained herein, the purchase price herein shall be revised to the figure assessed by the Inland Revenue Department.

3. Consideration of the purchase shall be satisfied by the purchasers executing in favour of the vendors a Deed of Acknowledgement and Forgiveness of Debt for the purchase price.

4. D Lyon Trustee Limited enters into this agreement as a trustee of the R D Spiers Family Trust and the [T] A O’Brien Family Trust and it shall have no personal liability arising out of the agreement beyond the extent of the assets of those trusts.

[22] The Spiers Deed recorded that Mr Spiers had transferred to the Spiers Trust various shares in the Modern Built companies, including 1,960 shares in MBI. The Deed recorded that the parties had agreed that the consideration for the shares would be the fair market price “as assessed by the accountant for both the Creditor and the Debtor”. The Deed then went on to forgive $27,000 of the amount owing, with the balance agreed to be an interest free debt repayable on demand. The Deed was signed by Mr Spiers personally and in his capacity as a trustee, and by Mr Lyon on behalf of D Lyon Trustee Ltd. The signatures were witnessed by a legal secretary.

[23] Mr Spiers executed transfers of shares he held in three Modern Built companies (MBI, MBH and SBS) to the trustees of the O’Brien Trust, to the trustees of the Spiers Trust, and to Ms O’Brien personally.

[24] An error appears to have been made in preparing the MBI share transfers. Mr Spiers signed transfers of 20 shares to Ms O’Brien personally, 980 shares to the O’Brien Trust, and 1960 shares to the Spiers Trust. The transfer of 20 shares from Mr Spiers to Ms O’Brien is consistent with the intentions described in the correspondence. So too the transfer of 1,960 shares from Mr Spiers to the Spiers Trust. However the Spiers Trust should then have transferred 980 shares to the O’Brien Trust. Instead, the transfer of 980 shares was described as a transfer from Mr Spiers personally. We return to this below at [126]–[131].

Further reorganisation of assets — May 2005

[25] In May 2005 Mr Spiers and Ms O’Brien met with Mr Lyon to discuss progress with their personal restructuring measures. Mr Lyon wrote to them on 6 May 2005. He said:

It was good to catch up with you on Sunday and bring everything up to date.

Your Trusts were set up in 2002 and at that time we did ... the bare essentials necessary so your Trusts could own the land. Since then we have been doing a gifting programme for [Ms O’Brien] but not for [Mr Spiers] and now we can continue with [Ms O’Brien]’s gifting programme and I have started [Mr Spiers’] and I will keep that moving along.

...

You will need to ensure that when the next annual return is done for the three Companies the correct shareholding is recorded. [Mr Spiers] needs to at some stage fix the value of the shares transferred by himself to his Trust. There should be an independent statement of value preferably from your accountant.

...

The parties proceed on the basis of equal shareholdings

[26] On 3 November 2005 Mr Lyon wrote to Mr Spiers and Ms O’Brien saying:

SHAREHOLDINGS

[Ms O’Brien] called querying the shareholdings of the companies.

The total shareholdings are as follows:

1. Steel Building Solutions Limited - 100 shares.

2. Modern Built Homes Limited - 2000 shares.

3. Modern Built Investments Limited - 2000 shares.

The shares are divided equally between the two Trusts with a nominal shareholding in each company held by each of you. The shareholding therefore is as follows.

1. Steel Building Solutions – [Mr Spiers’] Trust 49, [Ms O’Brien]’s Trust 49, [Mr Spiers] 1 and [Ms O’Brien] 1.

2. Modern Built Homes Limited – [Mr Spiers’] Trust 980, [Ms O’Brien]’s Trust 980, [Mr Spiers] 20 and [Ms O’Brien] 20.

3. Modern Built Investments Limited - [Mr Spiers’] Trust 980, [Ms O’Brien]’s Trust 980, [Mr Spiers] 20 and [Ms O’Brien] 20.

[27] On 28 November 2005 Ms O’Brien completed, and submitted to the Companies Office, annual returns for SBS and MBH which recorded the changes in the shareholdings. In relation to SBS the shareholders were identified as the “RD Spiers Family Trust” and the “TA O’Brien Family Trust” each holding 49 shares, and Ms O’Brien and Mr Spiers each holding one share. The previous shareholder was noted as being Mr Spiers holding 100 shares. In relation to MBH the shareholders were identified as the “RD Spiers Family Trust” and the “TA O’Brien Family Trust” each holding 980 shares, and Ms O’Brien and Mr Spiers each holding 20 shares. The previous shareholder was noted as being Mr Spiers holding 2000 shares.

[28] On 7 February 2006 Ms O’Brien submitted an annual return for MBI which identified the shareholders as the “RD Spiers Family Trust” and the “TA O’Brien Family Trust” each holding 980 shares, and Ms O’Brien and Mr Spiers each holding 20 shares. Ms O’Brien erroneously recorded Mr Spiers as previously being the holder of 1000 shares, rather than 2000 shares.

[29] On 25 February 2009 the Companies Office wrote to MBI to advise that it had noticed that MBI’s shareholding records in the Companies Office referred to the shareholders as being the R D Spiers Family Trust and the T A O’Brien Family Trust, contrary to s 92 of the Companies Act 1993 which prohibits trusts being noted on a company’s share register. The letter contained instructions for changing and correcting the information. Ms O’Brien subsequently submitted amended shareholder information on 9 March 2009. However in doing so she erroneously stated that she and Mr Spiers each held 1000 shares, and had previously held 20 shares.

[30] On 23 August 2009 Mr Spiers submitted amended shareholder information to the Companies Office in respect of SBS. In place of the information stating that the shareholders were the R D Spiers Family Trust (49 shares) and the T A O’Brien Family Trust (49 shares), he provided information stating that the shareholders were Russell David Spiers (50 shares) and Tracey Ann O’Brien (50 shares).

Purchase of Airpark Property

[31] In early 2006 MBI purchased a property at Richard Pearce Drive, Auckland (Airpark). The purchase price was $1,300,000. Mr Spiers and Ms O’Brien agree that the purpose of purchasing the property was to replace MBI’s residential property investments with a high-quality commercial property investment. Ms O’Brien says that it was their intention to work towards having an income stream from a commercial property, and future-proofing their eventual retirement. She says that she and Mr Spiers “put [their] heart and soul into obtaining and developing Airpark”, but it was acquired at a cost as the effects of the financial crisis that followed put them under financial pressure and stress.

[32] MBI constructed a commercial building on the Airpark property, funded by borrowing secured over the Farquharson Road property, and the proceeds of sale of residential properties owned by MBI and MBH. The building was subsequently leased to two long-term commercial tenants.

Borrowing to fund MBI

[33] In September 2006 arrangements were made for the two family trusts as joint owners of the Farquharson Road properties to borrow $650,000 from Trapski Dowd Securities Ltd which would be applied in repaying debt owed to the National Bank, with the balance advanced to MBI to enable the company to meet the costs of the Airpark project. Mr Spiers, Ms O’Brien, and Mr Lyon,[2] as trustees of the two family trusts, signed a resolution confirming that the trusts would borrow the funds and secure the advance over Farquharson Road, and would advance funds to MBI. The resolution included the following:[3]

The trustees believe that it is appropriate to advance funds to Modern Built Investments Limited as the trusts are principal shareholders in this company and benefit of the development should flow back to the trusts.

[34] The trustees also signed another resolution in respect of the family trusts borrowing a further $100,000 from Trapski Dowd Securities Ltd, which was also to be advanced to MBI to meet construction costs of the Airpark project. This resolution also referred to the trusts as being “the principal shareholders” of MBI.[4]

[35] In 2007, Ms O’Brien and Mr Lyon, as trustees of the O’Brien Trust, resolved to execute a Marac Finance Ltd loan and associated security documents as guarantor of MBI in respect of borrowings by MBI. The written resolution included the following background:

The T A O’Brien Family Trust owns 980 of 2,000 ordinary shares in Modern Built Investments Limited ...

[36] In February 2008 Mr Spiers, Ms O’Brien and Mr Lyon signed an MBI shareholders’ special resolution in their capacities as trustees of the two family trusts, resolving to authorise the execution of a loan agreement for $2,400,000 to be borrowed to refinance the existing borrowing from Marac Finance Ltd.

[37] In November 2012 Ms O’Brien and Mr Lyon as trustees of the O’Brien Trust, and Mr Spiers and Mr Lyon as trustees of the Spiers Trust, signed resolutions recording that they had resolved to execute a Bank of New Zealand guarantee in respect of the Bank’s loan advance of $3,320,000 to MBI. They also signed an MBI shareholders resolution authorising the execution of an agreement to purchase a property at Grasslands Place, Hamilton (the Grasslands property) and related loan documentation and mortgages over the Airpark property and the Grasslands property.

[38] Some time during 2013 Mr Spiers set out a summary of his and Ms O’Brien’s assets and liabilities in several pages of handwritten notes. He recorded that MBI and SBS were owned by Ms O’Brien and himself, with each holding 50 per cent.

MBI tax imputation credit issue

[39] In 2014 an issue arose in relation to the ability of MBI to carry forward tax imputation credits. That depended on whether there had been a change in MBI’s shareholding, as loss of shareholder continuity has implications for access to imputation credits. KPMG, who had been engaged as MBI’s accountants, were dealing with the Inland Revenue Department (IRD) on behalf of MBI in relation to this issue.

[40] On 28 November 2014 Mr Lyon wrote to Mr Shaenaz Azim of KPMG. He said:

I am responding to your query concerning shareholding in Modern Built Investments Limited.

The trustees of the TA O’Brien Family Trust are: Tracey Ann O’Brien and D Lyon Trustee Limited.

The trustees of the RD Spiers Family Trust are: Russell David Spiers and D Lyon Trustee Limited.

These Trusts could not purchase shares in the company without the agreement of both trustees of each Trust and share transfers and other documentation would have been required. We have checked [our] Trust administration files for both Trusts and find no record of this happening. The writer, as the principal director of D Lyon Trustee Limited, would have been involved in this documentation if it had been completed and does not believe that such transactions did occur.

We have no knowledge of details of change of shareholding in these companies but are very confident that the shares were never transferred into or out of the above Trusts.

[41] On 1 December 2014, Mr Azim sent an email to Ms Angela Wynne,[5] a KPMG partner, attaching Mr Lyon’s letter of 28 November 2014 and advising:

I have received the attached letter from the solicitor in regard to the above client.

I have followed up the solicitor and asked whether there was any record of shareholding being transferred to [Ms O’Brien]. There is no record of this either.

[Mr Spiers], the client does not know who changed the details at the company office. He thinks [Ms O’Brien] did this without knowing the consequences. [Ms O’Brien] only received PAYE deducted income from the company.

As a result, 100% shareholding interest is maintained with Russell Spiers being the sole shareholder in his personal name to date.

If he wishes [Ms O’Brien] to be a 50% shareholder now, we will need to advise him of the consequences, including loss of imputation credits.

For now, if you agree, we should be able to carry on and send the voluntary disclosure letter to the IRD.

[42] On 27 January 2015 Ms Wynne wrote to IRD in Hamilton. She said:

On behalf of Modern Built Investments Limited (“Modern Built”), we wish to respond to your letter dated 14 January 2015 with reference number ... in relation to the reassessment request.

The letter refers to the Companies Office records showing shareholding changes in February 2006 and March 2009. However, no shareholder changes have actually occurred since incorporation of the company. Russell Spiers remains as the sole shareholder of the company to date.

Tracey O’Brien incorrectly changed the records of the Companies Office with no supporting share transfer documentation. We have also confirmed this with our client, Russell Spiers and he did not prepare/sign any share transfer documents.

Our client did consider transferring the shares to the Trusts at some stage but decided against it. Tracey O’Brien is married to Russell Spiers and has claim to 50% of the company only as Matrimonial Property. This was a case of lack of understanding and miscommunication.

Lyon O’Neale Arnold [acts] for our client for all legal matters and he has confirmed they did not prepare any share transfer documents for Modern Built. Both share transfers recorded [at] the [Companies] Office would have required approval of the trustees of TA O’Brien Family Trust and RD Spiers Family Trust. D Lyon Trustee Limited is a trustee of both Trusts.

As stated in the letter attached, Lyon O’Neale Arnold would have been involved as principal director of D Lyon Trustee Ltd but has no knowledge of any shareholding changes.

Taking into consideration the above facts, we request for you to reassess your position as, in our opinion, there have been no breaches to shareholder continuity requirements. If you have any further questions, please contact Shaenaz Azim on [number] or my direct dial number below.

[43] However, on that same day, Mr Spiers as an MBI director signed a “Resolution and Certificate of Directors as to Fair Value” under ss 52 and 161 of the Companies Act pursuant to which the board of a company may authorise the payment of remuneration or other benefits to a director of the company. Mr Spiers stated that the directors of MBI had resolved:

1. For the financial year ended 31 March 2014 shareholders/director’s remuneration be paid as follows:

R D Spiers $ 48,000

T A O’Brien $ 25,000

$ 73,000

...

[44] On 9 February 2015, Mr Spiers made a series of handwritten entries in MBI’s records. On the Register of Directors Remuneration and Other Benefits, he noted that he had received remuneration of $48,000 and Ms O’Brien had received remuneration of $25,000. On the register of Acquisition or Disposal of Shares by Directors, he noted that he had acquired 1000 ordinary shares in MBI on 17 November 1997 which the board was advised of on that date.

The relationship ends

[45] As already mentioned, in June 2015 Ms O’Brien and Mr Spiers separated. In July 2015 they met with Mr Lyon to discuss how they would manage and divide their property interests. Mr Lyon wrote to them both on 14 July 2015 setting out what he understood had been agreed in relation to various issues. In relation to MBI he said:

Modern Built Investments. [Mr Spiers] wants to retain both properties long term as he sees a lift [in] values particularly the Air Park. [Mr Spiers] wants [Ms O’Brien] to commit long term. [Ms O’Brien] has three options. She can move for a sale of one or both properties now. She can leave things and see how they go. She can commit to a long-term hold. As I told you, you can expect [Ms O’Brien]’s feelings on this to be affected and governed by how easily you tidy up the other matters between yourselves that must be tidied.

[46] On 15 July 2015 Mr Spiers wrote back to Mr Lyon, copying his email to Ms O’Brien. He said:

Modern Built Investments to remain as is, with a review in say 12 months. [Ms O’Brien] has agreed to this. The [accounts] to be set up on Xero and overviewed by KPMG

[47] In October 2015 KPMG prepared a Resolution of Shareholders document for MBI by which the shareholders of the company approved the payment of remuneration to Mr Spiers as an employee/shareholder. The resolution is dated 5 October 2015. Mr Spiers is the only shareholder mentioned in the document. A similar resolution was also prepared by KPMG in October 2016, again naming only Mr Spiers as the shareholder of MBI.

[48] On 26 May 2016 Mr Lyon wrote to Ms O’Brien about various issues. In relation to MBI, he said:

If you and [Mr Spiers] cannot reach agreement as to how to run Modern Built Investments Limited, then you will need to consult a lawyer as to the winding up of the company on the basis that there is a deadlock of shareholders.

The signed share transfers are located

[49] Following her separation from Mr Spiers, Ms O’Brien took steps to clarify the shareholding position in relation to MBI. Her then-lawyer made inquiries of KPMG. In June 2016 Ms Wynne sent an email which advised:

When we took this job over we discovered that the shareholding had been changed to 50/50 at the Companies Office but there was no record of an actual share transfer ever taking place. This transfer had meant that significant imputation credits had been lost and therefore was a significant tax cost to the company. At the time there were large tax arrears and so part of [the] plan to reduce these arrears was to argue that the transfer did not actually happen. This was backed up by a letter from [Mr Spiers] and [Ms O’Brien]’s solicitor which I have attached. The IRD accepted this position and there was a significant tax [saving] for the company.

My understanding has always been however ... that the shareholding was going to be fixed to the 50/50 ownership as that was meant to be the situation all along. My recommendation at the time was that the 50% should be moved through to [Ms O’Brien] under a Relationship Property Agreement which would not have the tax consequences of an ordinary share transfer. When we had a meeting with Doug Lyon in relation to the splitting of the house proceeds he also made mention of the fact that Modern Built was always 50/50 and he has been the company solicitor for many years.

[50] It appears Ms O’Brien then asked Mr Lyon to provide her with copies of the documents they held regarding the O’Brien Trust. Mr Lyon wrote to her on 11 August 2016 enclosing copies of relevant documents. The documents provided included the letters he had written to Ms O’Brien dated 14 March 2002 and 5 May 2005; the 2004 Deed; and copies of six share transfers dated 15 September 2004. The three share transfers relating to MBI were:

(a) Mr Spiers’ transfer of 980 shares in MBI to Ms O’Brien and D Lyon Trustee Ltd as trustees of the O’Brien Trust. This share transfer had been signed by Mr Spiers and Ms O’Brien and by Mr Lyon himself as the director of D Lyon Trustee Ltd. All three signatures were witnessed by a legal secretary.

(b) Mr Spiers’ transfer of 20 shares in MBI to Ms O’Brien in her personal capacity. This had been signed by Mr Spiers and Ms O’Brien, and their signatures were witnessed by Mr Lyon.

(c) Mr Spiers’ transfer of 1960 shares in MBI to Mr Spiers and D Lyon Trustee Ltd as trustees of the Spiers Trust. This had been signed by Mr Spiers and by Mr Lyon as the director of D Lyon Trustee Ltd. The signatures were witnessed by a legal secretary.

Further post-separation discussions about ownership of MBI

[51] On 8 March 2017 Mr Spiers and Ms O’Brien met with Ms Wynne. Mr Spiers prepared a document in which he set out his position on a number of issues. When giving evidence Mr Spiers could not recall whether he prepared the document before or after the meeting, but in the Judge’s view, it read consistently with having been prepared in advance of the meeting.[6] Mr Spiers says that he provided a copy of his memorandum to Ms O’Brien and Ms Wynne, which supports the conclusion that it had been prepared as a basis for discussion with them. Mr Spiers wrote:

On hooking up in 1999, Tracey had $260,000 in cash, and I had a similar amount in net physical assets (no valuation was ever undertaken, and the assets were in 3 limited liability Companies – ModernBuilt Garages, ModernBuilt Homes, and ModernBuilt Investments ltd).

...

The natural ‘successor’ to [Ms O’Brien]’s interest in MBI is my new partner [name]. Unfortunately, [she] has not settled with her “ex” and hence cannot make any promises as to when she will be able to ‘buyout’ [Ms O’Brien]. ...

...

In the interim I believe we jointly continue to own the Company and enjoy the fruits of our [labours] ...

[52] On 3 May 2017 Mr Lyon wrote to Mr Spiers and Ms O’Brien recording details of a proposed agreement to resolve the outstanding issues between them. He offered to prepare a draft property relationship agreement. On 23 June 2017 he sent a first draft of the agreement to Mr Spiers and Ms O’Brien. An amended version followed on 7 July 2017. As recommended by Mr Lyon, Mr Spiers and Ms O’Brien engaged their own lawyers to advise them on relationship property matters.

[53] The draft agreement contained the following clause:

The parties acknowledge that [Mr Spiers] shall retain his 1,000 shares in Modern Built Investments (“the Company”), and [Ms O’Brien] shall retain her 1,000 shares in the Company.

[54] Ms O’Brien’s then-lawyer sent a copy of the draft agreement to Ms Wynne. Ms Wynne replied by email dated 24 July 2017 commenting:

Thanks for sending that agreement through. I have attached an original email which outlines discussions held in 2014 with [Mr Spiers] and his solicitors when we were dealing with the IRD. Based on this we currently have the shareholding of the companies as 100% being owned by [Mr Spiers]. This was agreed to at the time and we presented that scenario to the IRD as part of our arguments for being able to utilise profit and loss offsets between the companies.

Therefore on that basis the agreement needs to be amended to reflect that the current position is that all shares are currently owned by [Mr Spiers]. The agreement should then reflect the transfer of 50% of the shares in Modern Built Investments Ltd to Tracey as part of this agreement.

I know the Companies Office already shows a 50/50 split but this is not reflected in share transfers or any other documentation. Once this agreement is signed [then] there will be no requirement to change the Companies Office records but at least the documentation will now be complete and accurate.

[55] Mr Spiers had already signed the agreement after receiving independent legal advice from his own solicitor. But as a result of the tax issues identified by Ms Wynne, it was proposed by Ms O’Brien’s solicitor that the agreement be altered to document the shareholding of MBI on the basis that Mr Spiers owned all 2000 shares in the company, consistently with the information previously provided to the IRD, and that pursuant to the agreement he would transfer 1000 shares to Ms O’Brien. An amended agreement was prepared by Ms O’Brien’s solicitor, and forwarded to Mr Spiers’ solicitor, on 7 December 2017.

[56] Mr Spiers’ continuing acknowledgment of the interest of Ms O’Brien and the O’Brien Trust in MBI is apparent from an email he sent to his solicitor on 20 December 2017, which he copied to Ms O’Brien. He said:

Spoke with [Ms O’Brien] this morning, telling her of the [impasse] as it reads now.

Essentially, we agree that if in two years time I offer to buy her out, she is not compelled to sell - she can hold her shares as an investment - ie, there is no compulsion to sell to me or other party(parties). She can sit on the shares, and have her cash rewards.

If she agrees to sell, - then I run away and get the requisite valuations, and the framework (formula) is set in the MPA - ie new valuation, less debt, equals new equity, compared with the $1.9mill - she gets half of the increase added to her $1.9mill. ... Finally, if no offer is made by me, and [Ms O’Brien] wants out, then that essentially means I can’t finance to buy her out, and therefore the building goes on the market for sale.

...

PS I have copied this to [Ms O’Brien] so she has some transparency as to our desire to get this wrapped up.

[57] However little progress towards resolution was made in the following months. Ms O’Brien engaged new solicitors, and withdrew from the proposed agreement.

MBI share register?

[58] On 26 October 2018 Mr Spiers’ solicitors wrote to Ms O’Brien’s solicitors in response to a request for a copy of MBI’s share register. In his reply dated 23 November 2018, Mr Spiers’ solicitor advised:

The company does not have a share register. The Companies Office records are all that exist in respect of the shareholding of the company.

[59] However, when Mr Spiers, on behalf of MBI, provided discovery in December 2019, that discovery included a document described as “Register of Shares” and “Register of Shares Issued & Issued Price Paid”. The register document comprises three pages. It contains handwritten entries recording the shareholders as being Mr Spiers and Ms O’Brien, each with 1000 shares issued to them on 7 February 2006.

Mr Spiers changes the shareholding recorded at the Companies Office

[60] On 14 May 2020 Mr Spiers completed an annual return for MBI omitting Ms O’Brien’s name as a shareholder, with the result that the Companies Office records currently show Mr Spiers as the sole shareholder with 2000 shares.

Current value of MBI

[61] The principal assets of MBI are the Airpark and Grasslands properties. A valuation of the Airpark property dated 12 February 2019 valued it at $7,350,000. A valuation of the Grasslands property dated 19 February 2019 valued it at $1,375,000.

High Court judgment

Findings in relation to Mr Spiers’ credibility

[62] The Judge considered that the events which led to MBI persuading IRD that it was entitled to tax imputation credits, because Mr Spiers was the sole shareholder in MBI and the other Modern Built companies during the relevant financial years, were significant in relation to Mr Spiers’ credibility.[7] The Judge considered that the information in Mr Lyon’s letter of 28 November 2014 to KPMG was obviously incorrect, and inconsistent with his close involvement in the restructuring of Mr Spiers’ and Ms O’Brien’s financial affairs.[8] Mr Lyon had prepared the share transfers of which he said he had no knowledge, and had on a number of occasions since then proceeded on the basis that the share transfers had been executed with the result that Ms O’Brien and the O’Brien Trust held half the shares in MBI. The Judge considered Mr Lyon could have been in no doubt that the share transfers had all been duly executed. It was highly unlikely that Mr Lyon had no recollection of these matters when he wrote his November 2014 letter to KPMG.[9]

[63] The Judge noted that Mr Lyon had written to Ms O’Brien’s solicitor in May 2019 saying:[10]

I have reviewed my letter to KPMG of 28 November 2014 and it appears the information in that letter is incorrect. I would never deliberately send such an incorrect letter. The explanation for this is my failure to properly go back and review records of the two Trusts and the company.

[64] The Judge found that KPMG had relied on the advice from Mr Lyon and on advice from Mr Spiers that he had not prepared or signed any share transfer documents.[11] The Judge considered that Mr Spiers could not possibly have forgotten about the share transfers he had previously signed, and he could not possibly have understood there to be no supporting share transfer documentation for Ms O’Brien’s actions recording shareholder changes in the Companies Office records.[12]

[65] The Judge went on to make adverse findings about Mr Spiers’ conduct and credibility:

[74] In my view the incorrect information regarding the share transfers and shareholding by Ms O’Brien in MBI was provided by Mr Spiers to KPMG so that the company would not lose the benefit of the significant tax imputation credits that it would obtain provided it could persuade the Inland Revenue Department that there had been no change in the shareholding. The information provided by both Mr Lyon and Mr Spiers was obviously not correct. The fact that the Inland Revenue Department was persuaded to accept that there had been no change to the shareholding of MBI and that Ms O’Brien had made the changes to the Companies Office records without supporting share transfer documentation, and as a consequence allowed the claimed tax imputation credits, provides no support for Mr Spiers’ claim that he remained the owner of all of the shares in MBI.

[75] In fact, to the contrary, Mr Spiers’ conduct in relation to the tax imputation credits and the provision of misinformation regarding the share transfer documents, informs my assessment of his credibility, and demonstrates that when motivated by financial advantage he is prepared to provide whatever version of events he thinks will best suit his objectives.

[76] As I shall explain, this assessment of Mr Spiers’ reliability in the context of providing information via his accountants to the Inland Revenue Department also informs my assessment of the reliability of his evidence as a witness as regards some of the key disputed issues in this proceeding.

[66] The Judge found that Mr Spiers had made the handwritten entries in MBI’s share register referred to at [59] above, recording that he and Ms O’Brien each held 1,000 sh[13]es in MBI.13 The Judge did not accept Mr Spiers’ evidence that he had not made those entries, and that the handwriting in the register was not his [14]ndwriting.14

[67] The Judge considered that his finding that Mr Spiers was the author of the entries on the share register was significant for the dispute between the parties.[15] The register recorded 1000 shares as having been issued to Mr Spiers and 1000 shares as having been issued to Ms O’Brien on 7 February 2006. The Judge found as a fact that following the steps taken to implement the 2004 Deed and share transfers executed in or around October 2004:[16]

Ms O’Brien was properly recorded as being a shareholder of 1000 shares on the MBI share register, which continued until Mr Spiers unilaterally removed her name as being a shareholder from the Companies Office Register on 14 May 2020, and allocated her 1000 shares to himself.

[68] The Judge went on to find that:[17]

(a) Mr Spiers had signed the share transfers by which he transferred half of the shares he held in the Modern Built companies to the O’Brien Trust and Ms O’Brien; and

(b) Mr Spiers knew, from 4 October 2004 or shortly thereafter, that the correct position was that the O’Brien Trust and Ms O’Brien together held half of the shares in the relevant companies, including MBI.

Mr Spiers’ challenges to the validity of the share transfers

[69] Mr Spiers argued that if the shares in MBI had been transferred to Ms O’Brien and the O’Brien Trust, that was the result of a mistake. The 2004 Deed recorded the shares as being transferred for a total price of $100,000, which would be satisfied by the O’Brien Trust transferring to the Spiers Trust “one half of their debt” of $200,000 which had been advanced to fund the purchase of the Farquharson Road property. Mr Spiers claimed that by the date the 2004 Deed was entered into, that $200,000 debt had been repaid and extinguished as a result of various dealings between the parties. The Judge rejected all of these arguments. He found that the debt had not been repaid or extinguished, and that the Trust partnership remained indebted to the O’Brien Trust for the full amount of $200,000 at the date the 2004 Deed was entered into.[18]

[70] Mr Spiers also argued that the transfers were mistaken because the parties to the 2004 Deed made a mistake about the fair market value of the shares acquired by the O’Brien Trust pursuant to the transaction recorded in the 2004 Deed. The result, he argued, was a substantially unequal exchange of values. The Judge did not accept that there was any relevant mistake that could entitle Mr Spiers to relief under s 28 of the Contract and Commercial Law Act 2017. MBI and Mr Spiers failed to prove that the trustees of the Spiers Trust and the trustees of the O’Brien Trust were influenced in their respective decisions to enter into the contract recorded in the 2004 Deed by the same mistake about the fair market value of the shares.[19] They had also failed to prove that the alleged mistake resulted in a substantially unequal exchange in values, having regard to the context and the purpose of the 2004 Deed:

[180] ... Both Mr Spiers and Ms O’Brien had agreed with one another that after three years of living together they wished their collective assets to be held by them equally. That agreement was based upon their recognition of their respective contributions to their relationship and the increased value of the assets derived from their joint efforts and contributions financial and otherwise.

[181] The contract was not, as Mr Spiers claimed, a purely commercial transaction, but one entered into to achieve the objective of an equality of assets for Ms O’Brien and Mr Spiers personally and through their respective Trusts. ...

[71] In light of those findings, the Judge rejected MBI’s argument that no consideration had been provided by the O’Brien Trust for the shares transferred to it by the Spiers Trust. Consideration for the transfer of the shares was given by the forgiveness of the Trust partnership’s indebtedness to the O’Brien Trust.[20] The Judge also rejected an argument that Ms O’Brien was not a party to the 2004 Deed, and did not provide any consideration for the shares transferred to her personally. Those transfers were made by Mr Spiers in order to achieve the objective of equalisation of assets, without him requiring any separate or additional consideration other than that relating to the parcels of shares which were transferred to the O’Brien Trust.[21]

[72] The Judge concluded that Ms O’Brien and the O’Brien Trust were the lawful holders of the shares transferred to them.[22]

[73] The Judge went on to find that Ms O’Brien and the O’Brien Trust had suffered prejudice from the way in which Mr Spiers was conducting the affairs of MBI. Mr Spiers’ claim to be the sole shareholder in MBI was “opportunistic and cynical”.[23] Mr Spiers had breached his obligations as the sole director of MBI by denying that Ms O’Brien and the O’Brien Trust were shareholders in MBI, and denying them access to information about the company and any shareholder involvement in the company.[24]

[74] The Judge was satisfied that the affairs of MBI had been, were being, and were likely to be, conducted in a manner that is oppressive, unfairly discriminatory and unfairly prejudicial to them in terms of s 174(1) of the Companies Act. It was just and equitable for the Court to grant relief under s 174(2) directing rectification of MBI’s share register and putting MBI into liquidation.[25]

[75] The Judge made orders in the following terms:[26]

(a) An order pursuant to s 174(2)(f) of the Companies Act 1993 directing Mr Russell Spiers as the sole director of Modern Built [Investments] Limited (MBI) to forthwith rectify the share register of the company to record the current trustees of the T A O’Brien Family Trust as holders of 980 shares in MBI, and to record Tracey Ann O’Brien as the holder of 20 shares in MBI.

(b) An order pursuant to s 174(2)(g) putting Modern Built [Investments] Limited into liquidation. The order for liquidation of the company shall become effective on 2 February 2021.

(c) An order appointing Iain McLennan and Colin Sanderson, Accredited Insolvency Practitioners of Auckland as provisional joint and several liquidators of MBI pending further order of the Court confirming their appointment and approving the rates of remuneration of the liquidators.

(d) The defendant is to file a memorandum by 5 pm 25 January 2021 as to whether it consents to or opposes the appointment of Messrs McLennan and Sanderson as liquidators or as to whether it proposes some other person or persons as liquidator/s of MBI. The plaintiffs are to file a memorandum in reply by 5 pm 29 January 2021. Their respective memoranda are not to exceed three pages in length. In the event of disagreement as to who should be appointed as liquidator/s, upon the filing of the memoranda, I shall determine the issue of the appointment of a liquidator/s on the papers.

Stay pending appeal

[76] The parties reached agreement on the terms of a stay of the High Court orders pending appeal. By a minute dated 26 February 2021 Davison J made an order granting a stay of the High Court orders pursuant to r 12 of the Court of Appeal (Civil) Rules 2005.

The parties to this appeal

[77] We begin by determining a preliminary issue: the identity of the parties to this appeal. Counsel differed on whether Mr Spiers was properly named as an appellant in the proceedings. We consider that it is clear that he was a party to the proceedings in the High Court and is an appellant before us.

[78] Ms O’Brien and the O’Brien Trust began the proceedings against MBI as the sole defendant. However on 27 May 2019 Associate Judge Andrew made a number of directions in the proceeding, including a direction that:

... the plaintiffs are to serve the proceedings, as soon as reasonably practicable, upon Mr Russell David Spiers in his personal capacity and also in his capacity as a trustee of the R D Spiers Family Trust.

[79] That direction was plainly appropriate: Mr Spiers was a necessary and proper party to the proceeding. Service in accordance with this direction had the effect of adding Mr Spiers as a defendant in the High Court proceedings, in the absence of any direction that he be served in some other capacity.

[80] On 15 June 2020 a second amended statement of defence (2ASD) was filed on behalf of both MBI and Mr Spiers. A reply dated 29 June 2020 filed on behalf of Ms O’Brien and the O’Brien Trust responded to the positive allegations made in the 2ASD. The reply proceeded on the basis that the 2ASD was filed on behalf of Mr Spiers as well as MBI. Thus all parties were proceeding on the basis that Mr Spiers had been added as a defendant at this stage, consistent with the Associate Judge’s direction.

[81] However in the High Court judgment the Judge expressed the view that Mr Spiers was not himself a party to the proceeding.[27] Mr Spiers was not named in the intituling to the High Court judgment. It appears the Judge may have overlooked the earlier direction for service on Mr Spiers. Be that as it may, we consider that Mr Spiers plainly was a defendant. And, as a party, he was entitled to appeal from the High Court judgment. He is properly a party to this appeal.

[82] Despite the reference in the Associate Judge’s direction to service on Mr Spiers in his capacity as a trustee of the Spiers Trust, it appears that the other trustee was never served. The trustees of the Spiers Trust do not appear to have been treated by any party as parties to the High Court proceeding, or to this appeal. We proceed on that basis.

Issues on appeal

[83] It was common ground before us that the two principal issues on appeal are:

(a) Did the High Court Judge err in finding that the O’Brien Trust and Ms O’Brien are shareholders in MBI?

(b) Did the Judge err in finding that an order for the liquidation of MBI should be made under s 174(2)(g) of the Companies Act?

[84] However the parties differed on how those issues should be analysed, identifying different sub-issues.

[85] We consider that the first issue — the shareholding in MBI — is best addressed by reference to the grounds on which the appellants argued that the respondents are not shareholders in MBI. The sub-issues raised by those challenges can be summarised as follows:

(a) Was Ms O’Brien validly recorded as a shareholder in a share register for MBI?

(b) Was the 2004 Deed entered into under a common mistake of fact in relation to the value of the shares in the Modern Built companies?

(c) Was there an absence of consideration for the transfer of shares by Mr Spiers to the O’Brien interests?

[86] The appellants also identified, as a distinct issue, the question whether the Judge erred in making adverse credibility findings against Mr Spiers in connection with representations made to IRD in 2014–2015, and in treating those credibility findings as relevant to the issues determined in the High Court. We will address that issue before turning to the issues listed above.

[87] The second major issue — whether MBI should be placed into liquidation under s 174(2)(g) of the Companies Act — raises two sub-issues:

(a) Was there unfairly prejudicial conduct for the purposes of s 174?

(b) If so, was it appropriate for the Court to order that MBI be placed into liquidation, or should some other form of relief have been granted, or relief declined?

[88] The O’Brien interests also sought to identify as an issue on appeal whether, if s 174 did not apply, MBI should be put into liquidation under s 241 of the Companies Act. In the High Court the O’Brien interests had pleaded a second cause of action under s 241, seeking an order for the liquidation of MBI on the grounds that it was just and equitable that MBI be put into liquidation. It appears that because the Judge considered that liquidation should be ordered under s 174, he did not consider the alternative application under s 241.

[89] The O’Brien interests did not cross-appeal or give notice of intention to support the High Court judgment on other grounds. MBI and Mr Spiers object to the s 241 claim being considered on appeal, in those circumstances.

[90] If the O’Brien interests wished to pursue their alternative s 241 claim before this Court, they needed to give timely notice of that argument, or apply for leave to pursue it despite not having done so. The issue could then have been squarely addressed by both parties in their written submissions: the O’Brien interests would have been directed to file submissions on this issue at the same time as the appellants filed their submissions, and the appellants could then have responded to their argument. It could not fairly be raised for the first time in the respondents’ submissions and list of issues, without prior notice and without leave to do so. That did not provide a proper opportunity for the issue to be argued before us.

[91] Thus the s 241 claim is not properly before us. Nor, as will become apparent, is it necessary for it to be determined.

Title to shares in a company

[92] Before addressing the specific issues raised by the appeal, it is helpful to clear away some preliminary matters in relation to title to shares in a company, the manner in which shares are transferred, and the effect of a valid share transfer.

The share register kept by the company

[93] Section 87(1) of the Companies Act provides that a company must maintain a share register that records the shares issued by the company. The share register must state the names of each person who is, or has within the last 10 years, been a shareholder in the company. It must state the number of shares held by each shareholder. It must record the date of any transfers of shares by or to each shareholder within the last 10 years.[28] References in the Companies Act to the share register of a company are references to the share register required to be kept by the company under s 87.[29]

[94] If a company fails to keep a share register that records these matters, the company commits an offence, and every director of the company commits an offence.[30]

[95] The entry of the name of a person in the share register kept by the company as holder of a share is prima facie evidence that legal title to the share vests in that person.[31]

[96] It is the duty of each director of a company to take reasonable steps to ensure that the share register is properly kept, and that share transfers are promptly entered on it in accordance with s 84 of the Companies Act.[32] A director who fails to do so commits an offence.[33]

[97] Section 84 governs the transfer of shares. As relevant, it provides:

84 Transfer of shares

(1) Subject to the constitution of the company, shares in a company may be transferred by entry of the name of the transferee on the share register.

(2) For the purpose of transferring shares, a form of transfer signed by the present holder of the shares or by his or her personal representative must be delivered to—

(a) the company; or

(b) an agent of the company who maintains the share register under section 87(3).

...

(4) On receipt of a form of transfer in accordance with subsection (2) and, if applicable, subsection (3), the company must forthwith enter or cause to be entered the name of the transferee on the share register as holder of the shares, unless—

(a) the board resolves within 30 working days of receipt of the transfer to refuse or delay the registration of the transfer, and the resolution sets out in full the reasons for doing so; and

(b) notice of the resolution, including those reasons, is sent to the transferor and to the transferee within 5 working days of the resolution being passed by the board; and

(c) the Act or the constitution expressly permits the board to refuse or delay registration for the reasons stated.

...

(6) If a company fails to comply with subsection (4),—

(a) the company commits an offence and is liable on conviction to the penalty set out in section 373(1); and

(b) every director of the company commits an offence and is liable on conviction to the penalty set out in section 374(1).

[98] Section 91 of the Companies Act confers on the court the power to rectify a company’s share register where the name of a person has been wrongly entered in, or omitted from, that share register. On an application under s 91, the court may decide a question relating to the entitlement of a person who is a party to the application to have their name entered in the register.[34]

Information provided to the Registrar of Companies about shareholdings

[99] Information about the current shareholders in a company must be provided with the company’s annual return to the Registrar of Companies, under s 214. The Registrar keeps a record of information in relation to a company, including the information provided annually in the annual returns about matters such as current shareholders. However the Registrar does not keep the “share register” of the company. The provision of information to the Registrar in an annual return does not affect the transfer of shares, or provide evidence (prima facie or otherwise) about who holds legal title to shares in the company. The information held by the Registrar about shareholdings is often out of date, as it is only provided annually. And in any event, it has no authoritative status.

[100] Contrary to suggestions made in the parties’ submissions, and in the High Court judgment at [87], the steps Mr Spiers took to remove Ms O’Brien’s name as a shareholder on the records kept by the Companies Office were incapable of having any effect on whether she was a shareholder in MBI. Nor for that matter did the information identifying Ms O’Brien or the O’Brien Trust as shareholders have any legal effect, though it does provide some evidence about what the parties understood the position to be.

[101] In determining who the shareholders of MBI are, the starting point must be any share register kept by the company. That share register provides prima facie evidence that legal title to shares is vested in the persons recorded as holding those shares in the share register.

[102] But the share register is not decisive: it provides prima facie evidence only of legal title. As this Court observed in Haddow Nominees Ltd v Rarawa Farm Ltd, the power of the court to rectify the register proceeds on the premise that entitlement to be recognised as a shareholder (then, as a member) is not determined by the register.[35]

[103] The next step is to ask whether the company has wrongly failed to make entries that should have been made in the share register. If so, those omissions could be rectified under s 91. The records of the company, including its share register, may also be rectified by an order made under s 174 of the Companies Act. That is the basis on which rectification of the share register was sought in this case.

Distinguishing between contracts and transfers

[104] The appellants’ case in this Court failed to engage with the distinction between the effect of a valid share transfer so far as the obligation of the company to record that transfer is concerned, and the validity of any underlying contracts or other dealings. In relation to shares, as in relation to land, there is an important distinction between contract and conveyance. If a valid share transfer is presented to the company, the transferee must be entered as the holder of the relevant shares on the register unless one of the exceptions set out in s 84(4) applies. So far as the company is concerned, it is irrelevant whether the transfer was made by way of gift, or pursuant to a contract. And it is irrelevant that the contract may be able to be challenged by one or more parties on grounds such as mistake. That would not of itself justify a refusal to record the transferee as holder of the relevant shares.

[105] So, for example, if a person has agreed to sell shares and has executed a transfer of those shares which is in all respects valid on its face, the company must register the transfer when it is received by the company. The company cannot deny that the transferee should be recorded as owner of the shares by reference to a ground on which the transferor might be able to challenge the contract for sale and purchase of the shares, such as mistake.

[106] Nor can the transferor in this example argue that the company should not record the transferee as holder of the shares on the share register by invoking arguments such as mistake. Rather, the transferor would need to bring proceedings against the transferee seeking relief that included return of the shares. If the claim was successful, an order could then be made against the transferee requiring the shares to be transferred back to the original transferor. The company would not be a necessary party to such proceedings, and in the absence of some special circumstances would not be properly joined in such proceedings.

[107] Similarly, it is not the role of a company to which a share transfer has been presented to inquire into whether the transfer was supported by consideration or was a gift.[36] A company has the same obligation to register a gratuitous transfer as it has in relation to a transfer for value.

Section 174 of the Companies Act

[108] Before turning to the issues raised by the appeal, it is also helpful to set out s 174 of the Companies Act:

174 Prejudiced shareholders

(1) A shareholder or former shareholder of a company, or any other entitled person, who considers that the affairs of a company have been, or are being, or are likely to be, conducted in a manner that is, or any act or acts of the company have been, or are, or are likely to be, oppressive, unfairly discriminatory, or unfairly prejudicial to him or her in that capacity or in any other capacity, may apply to the court for an order under this section.

(2) If, on an application under this section, the court considers that it is just and equitable to do so, it may make such order as it thinks fit including, without limiting the generality of this subsection, an order—

(a) requiring the company or any other person to acquire the shareholder’s shares; or

(b) requiring the company or any other person to pay compensation to a person; or

(c) regulating the future conduct of the company’s affairs; or

(d) altering or adding to the company’s constitution; or

(e) appointing a receiver of the company; or

(f) directing the rectification of the records of the company; or

(g) putting the company into liquidation; or

(h) setting aside action taken by the company or the board in breach of this Act or the constitution of the company.

(3) No order may be made against the company or any other person under subsection (2) unless the company or that person is a party to the proceedings in which the application is made.

[109] Section 174 provides for claims to be brought by a shareholder or former shareholder of a company. Section 96 defines the term “shareholder” to mean (as relevant, in this context) a person whose name is entered in the share register as the holder for the time being of one or more shares in the company.[37]

[110] However it cannot be the case that failure by a company’s directors to create and maintain a share register disentitles the persons who would otherwise qualify as shareholders from seeking relief under s 174. That would be a perverse outcome. The reference in s 174 to shareholders must also extend to persons who are entitled to be registered as shareholders under s 84, but who have not been so registered.[38]

[111] In Haddow Nominees Ltd v Rarawa Farm Ltd this Court said that “[i]t does not follow that where, as here, the company does not have a register of members it is not possible for anyone other than the original subscribers to be recognised as members of the company for any purpose”.[39] The Court went on to refer with approval to the observations of Lindley J in Portal v Emmens:[40]

If there be no register, or if the register is so defective as to be inadmissible in evidence, other evidence must be adduced to prove that a person is a shareholder. But to exclude all such evidence is not in our opinion required by the Act, and would lead to consequences which are really absurd; for, if this doctrine were to prevail, it would always be in the power of the directors to avoid keeping a register, and thus deprive the creditors of the company of all remedy against the shareholders, ... Nor is it, in our opinion, a sufficient answer to this objection to say that they might be compelled by mandamus to register their shares. The question is, what is the true construction of the statute: and we are of opinion that a construction leading to such results as those above pointed out is to be avoided, unless the language of the statute is so clear that there is no escape from it; and this is by no means the case.

[112] Precisely the same reasoning applies under the current companies legislation, despite differences in terminology. For the purposes of s 174, a person who is entitled to be registered as a shareholder under s 84 is treated as a shareholder, and can apply for relief in respect of unfairly prejudicial conduct (including the failure to keep a share register and/or to register the transfer of shares into their name).[41]

Credibility findings based on representations made to IRD

[113] Mr Gudsell QC, counsel for the appellants, submitted that the Judge should not have made adverse credibility findings against Mr Spiers arising out of the representations made to IRD about the shareholding in MBI, in order to preserve MBI’s tax imputation credits. Although there was clear evidence that Mr Spiers knew that it was intended that the O’Brien interests hold half the shares in MBI, there was no evidential basis for a finding that in 2014 (some 10 years after the 2004 Deed was entered into and the transfers signed) he knew that share transfers had been executed to give effect to that intention. In 2014 when the issue arose, Mr Spiers was entitled to rely on the information provided by Mr Lyon that there were no share transfers, and that he had remained the legal owner of 2,000 shares in MBI. Mr Gudsell confirmed that it was not disputed that the parties had, over an extended period, proceeded on the basis that the O’Brien interests had a 50 per cent shareholding interest in MBI. That position was recorded in MBI’s annual returns sent to the Companies Office, and in correspondence and other documents. But the issue KPMG was addressing, and in relation to which it was corresponding with IRD, was whether formal legal steps had been taken to transfer the shares.

[114] We accept Mr Gudsell’s submission that Mr Spiers could have forgotten that share transfers had been executed many years earlier to give effect to the parties’ intention to equalise ownership of the shares. The way the parties’ interests were recorded in a number of documents reflects a measure of vagueness about how the equal sharing arrangement had been implemented. If for example Mr Spiers did make the entries in the share register in 2006, that would suggest he had forgotten about the formal transfers, including the transfers to the O’Brien Trust and the Spiers Trust. We also accept that it was reasonable for Mr Spiers to rely on Mr Lyon on that point. In those circumstances, we proceed on the basis that Mr Spiers had forgotten that share transfers had been executed, and had forgotten any (inaccurate) share register entries that he may have made.

[115] However the evidence also clearly establishes that Mr Spiers was wrong about the absence of share transfers. After the share transfers had been located in 2016, it was unreasonable for him to deny the O’Brien interests’ entitlement to be recognised as shareholders in MBI. As we explain below, this stance could not be reconciled with his obligations as a director of MBI. And on a number of material issues Mr Spiers’ account was inconsistent with contemporaneous documentation, and appeared to be the product of a reconstruction of events with the benefit of hindsight. We consider that the contemporaneous documents provide the most reliable guide to what the parties intended and did. We approach Mr Spiers’ evidence on that basis.

Are Ms O’Brien and/or the O’Brien Trust shareholders in MBI?

Appellants’ submissions

[116] Mr Spiers says that MBI was incorporated in 1997 with 2000 shares, all of which he held. He was at all times the sole shareholder and sole director of MBI.

[117] Mr Spiers says that he never kept a share register for MBI. As Mr Gudsell acknowledged, this would mean that Mr Spiers was at all times in breach of his obligations under s 87 of the Companies Act in relation to maintaining a share register.

[118] The absence of a share register would also mean that neither Mr Spiers nor any other person could rely on the rule in s 89(1) that the entry of the name of a person in the share register is prima facie evidence that legal title to the relevant shares is vested in that person.

[119] The appellants challenge the Judge’s finding that the share register held by KPMG and produced in discovery was a share register for MBI, and that the entries in it were made by Mr Spiers. They say the evidence does not support those findings.

[120] Mr Spiers now accepts that the three share transfers referred to at [50] above were executed by him, Ms O’Brien and Mr Lyon in late 2004. Mr Gudsell confirmed that the validity of the transfers is not disputed.

[121] Mr Spiers says he never saw the completed share transfers, with all the necessary signatures, until they were sent to him by Mr Lyon in August 2016. It seems likely that, as Mr Gudsell submitted, the transfers were signed by Mr Spiers and Ms O’Brien in October 2004 then returned for signature by Mr Lyon. There is no record of the completed share transfers being returned to Mr Spiers for entry on MBI’s share register.

[122] Mr Spiers did come into possession of the executed share transfers in August 2016. He relies on the various challenges he makes to the underlying dealings as justifications for not entering those share transfers on a share register for MBI.

Discussion

[123] The short answer to the appellants’ argument in relation to shareholding in MBI is that Mr Spiers, in his capacity as the sole director of MBI, was required to maintain a share register for MBI. That share register should have shown him as the holder of 2,000 shares from incorporation in 1997 through to 2004 or (at the latest) August 2016, when he received fully executed copies of the transfers. He should then have proceeded to make entries in the share register to give effect to those transfers, unless he was entitled to decline to do so under s 84(4).

[124] In this case there is no suggestion that any circumstance existed under which registration could have been refused or delayed under the Companies Act or MBI’s constitution. The Board of MBI did not resolve within 30 working days of Mr Spiers’ receipt of the transfer to refuse or delay the registration, and give the notice required by s 84(4)(b). So far as MBI is concerned, that is the end of the matter.

[125] None of the arguments advanced by the appellants is capable of justifying MBI’s failure to enter the names of the O’Brien interests in MBI’s share register.

[126] Nor do we consider that the error in the transfers referred to at [24] above affects this conclusion. If Mr Spiers had sought to perform his duty as a director, and enter the transfers in MBI’s share register, he would have realised that not all of them could be implemented. He was aware of the purpose of the 2004 Deed and the resulting transfers. In those circumstances, if he had acted in good faith, he could have given effect to the intended transactions by registering the transfers in the following order:

(a) First, the transfer of 20 shares to Ms O’Brien personally.

(b) Second, the transfer of 980 shares held by him to the O’Brien Trust.

(c) Finally, the transfer of shares to the Spiers Trust in so far as sufficient shares remained in his name.

[127] Mr Spiers could not have been criticised if, appreciating the defect in the transfer to the Spiers Trust and the impossibility of giving effect to it if the other transfers were registered, he had promptly raised the correctness of the transfers with Mr Lyon and Ms O’Brien. That would have resulted in correction of the transfers.

[128] The one thing Mr Spiers could not do was decline to take any steps to register any of the transfers or seek clarification in relation to the transfers. If he had taken any of the steps lawfully open to him, Ms O’Brien would have been entered on the MBI share register as the holder of 20 shares, and the O’Brien Trust would have been entered on the share register as the holder of 980 shares (either immediately or following correction of the transfers).

[129] It follows that Ms O’Brien and the trustees of the O’Brien Trust were entitled to be recorded on the MBI share register as shareholders, and are entitled to apply for relief under s 174 of the Companies Act.

[130] We see the incomplete share register provided in discovery, which had been held by KPMG, as something of a red herring. If it is not a valid share register, it is obviously irrelevant. If it is a valid share register, it does not accurately record the shareholdings in MBI. The incorrect entries made by someone — whether Mr Spiers or someone else — do not affect the conclusions we have reached about who is entitled to be recorded as holding shares in MBI.

[131] The arguments advanced by MBI and Mr Spiers in relation to lack of consideration, and mistake, are also red herrings. As explained above, they do not provide MBI or Mr Spiers with an excuse for failing to register the transfers. These claims might have been pursued in proceedings by Mr Spiers or the trustees of the Spiers Trust against the transferees, seeking to recover the shares. But the attempt to raise these issues in the 2ASD filed on behalf of MBI and Mr Spiers was misconceived. In order to pursue these arguments, Mr Spiers and/or the Spiers Trust needed to bring a positive claim against the O’Brien interests, seeking relief including re-transfer of the relevant shares. But Mr Spiers never made such a claim, and the trustees of the Spiers Trust were not parties to the proceedings.

[132] However, since the lack of consideration and mistake issues were fully argued before us, we will go on to address them.

Deed entered into under mistake?

[133] We turn to Mr Spiers’ argument that the 2004 Deed was entered into under the influence of two mistakes:

(a) a mistake in relation to the indebtedness of the Trust partnership to the O’Brien Trust; and

(b) a mistake in relation to the value of the shares acquired by the O’Brien Trust.

Appellants’ submissions based on mistake about indebtedness

[134] Mr Spiers argued that the 2004 Deed was premised on the existence of a debt owed by the Trust partnership to the O’Brien Trust of $200,000. However, although such a debt had existed in 2002, the net effect of subsequent dealings between the parties, and in particular the construction of the dwelling constructed by MBG at Farquharson Road, had extinguished that indebtedness. Mr Spiers called expert evidence from a forensic accountant, Mr Kemp, in relation to the appropriate accounting treatment of various transactions and other steps taken by the parties. Mr Kemp sought to identify the appropriate legal characterisation of the dealings between the parties over this period, in circumstances where:

(a) the Trust partnership did not operate a bank account;

(b) the O’Brien Trust did not operate a bank account;

(c) the Spiers Trust did not operate a bank account;

(d) he had not seen any financial statements for the Spiers Trust, O’Brien Trust, or the Trust partnership, and understood that none existed;

(e) as a result of those entities not operating their own bank accounts, transfers of funds to and from the Trust partnership occurred through other bank accounts;

(f) Mr Spiers had advised him that transactions from the Modern Built companies, and in particular MBG, were in fact made on behalf of the Spiers Trust; and

(g) he had accepted the information he received from Mr Spiers as being correct, unless other records or the nature of the transaction suggested otherwise.

[135] Mr Kemp considered that certain payments made from Ms O’Brien’s personal bank account to MBG during the period of the house construction should be treated as advances made by the O’Brien Trust to the Trust partnership. Mr Kemp also expressed the view that certain payments into Ms O’Brien’s personal account should be treated as payments by the Trust partnership to the O’Brien Trust, reducing the Trust partnership’s indebtedness. And, most significantly, Mr Kemp said that the substantial costs of constructing the house at Farquharson Road that were incurred by MBG, and were not compensated, should be treated as contributions made by the Spiers Trust to the Trust partnership. On Mr Kemp’s approach, the Spiers Trust would be credited with the notional cost that would have been incurred if the couple had engaged a third-party construction company to undertake the construction of the house and buildings.

[136] The Judge rejected all of these characterisations of the parties’ dealings in the absence of any contemporaneous documentary evidence to suggest that this was how the various dealings were intended to be treated by the parties at the time. In particular, the Judge considered that treating the work done by MBG as a contribution of the commercial cost of the building work at Farquharson Road by the Spiers Trust to the Trust partnership “would be entirely inappropriate and artificial in the circumstances of this case”.[42]

[137] Mr Gudsell emphasised that there was no challenge by the O’Brien interests to the expertise of Mr Kemp. They did not adduce any expert evidence to respond to Mr Kemp’s evidence. The Judge’s criticisms of Mr Kemp’s evidence as retrospective and artificial were not justified. The payments could not simply be ignored. They had to be accounted for somehow. In a vacuum as regards evidence concerning the historic purpose of the payments, retrospectively applying the correct accounting treatment, as Mr Kemp did, was entirely appropriate.

[138] Mr Gudsell emphasised the letter dated 14 March 2002 set out at [11] above. He submitted that this provided a contemporaneous record of the parties’ intentions in forming the Trust partnership. The letter refers to Mr Spiers providing a house on the property at a cost less than true cost, to the benefit of both partners, and says this “goes into the pot”. Mr Gudsell submitted that Mr Lyon was clearly referring to the Trust partnership, and recording a shared intention that the build costs should be treated as contributions to the Trust partnership.

Discussion

[139] We do not accept Mr Gudsell’s characterisation of the letter dated 14 March 2002. That reading of the letter is selective and incomplete. The provision of the house at less than full cost, to the benefit of both partners, was to “[go] into the pot along with a lot of other issues of how you wish to operate as a family and how your current and future living expenses are concerned, and that can be looked at [at] some stage in the future” (emphasis added).

[140] As that letter anticipated, both partners made a wide range of contributions to the relationship, and to the accumulation of assets for the partners’ benefit. Some of those contributions were financial. Some involved work in kind carried out by one or other partner, or (in Mr Spiers’ case) by a company which he owned. Some of those contributions, such as administration work for those companies and the administration of the intertwined financial affairs of the family and the various companies, were more intangible. As Mr Lyon’s letter contemplated, all of these contributions of various kinds, over an extended period of time, went “into the pot”. The partners put substantial efforts into the success of their joint family enterprise. They paid little or no attention to legal form.

[141] We agree with the Judge that against this backdrop, it is artificial to attempt to characterise the various payments through Ms O’Brien’s personal bank account as repayments by the Trust partnership to the O’Brien Trust. It is also artificial — and disconnected from any contemporaneously recorded intention — to treat the building work carried out by MGB as a contribution by the Spiers Trust to the Trust partnership, which offset the Trust partnership’s indebtedness to the O’Brien Trust. It would be neither more nor less artificial to attempt to value the contributions Ms O’Brien made to the relationship, and to the parties’ ability to accumulate assets, over the relevant period.

[142] The evidence suggest that the parties did not intend these contributions to be valued, and factored into the financial arrangements between them. They never articulated an intention to do so. The records that would have been necessary to enable their various contributions to be identified and valued were not kept. That is unsurprising, in circumstances where the parties did not envisage that an exercise of this kind would need to be carried out. The analysis carried out by Mr Kemp reflects one possible treatment of a subset of the parties’ contributions. But there are other available characterisations of what the parties were doing which make more sense in the context of their family relationship, and which are more consistent with what they actually did.

[143] We therefore agree with the Judge that Mr Kemp’s attempt at reconstruction of a subset of the contributions made by the parties is artificial, and inappropriate in the circumstances of this case. It bears no relationship to what the parties intended or did. It was incomplete and selective. We do not consider that the Judge erred in finding that none of the dealings analysed by Mr Kemp affected the indebtedness of the Trust partnership to the O’Brien Trust as at September 2004.

[144] It follows that there was no mistake about the indebtedness of the Trust partnership to the O’Brien Trust when the 2004 Deed was entered into.

Appellants’ submission that 2004 Deed resulted from Mr Lyon’s undertaking difficulties

[145] Mr Gudsell advanced a related argument to the effect that the 2004 Deed and share transfers were the product of a difficulty Mr Lyon had got himself into in July 2004, when the Trust partnership refinanced its borrowings with the National Bank. Mr Lyon provided a solicitor’s certificate to the National Bank, undertaking compliance with the terms of lending it had offered. This required the National Bank to have registered first mortgages. But immediately following the refinancing, the mortgages to the O’Brien Trust (securing the indebtedness of the Trust partnership to the O’Brien Trust) were still in place, in breach of National Bank’s lending terms and Mr Lyon’s solicitor’s certificate. Mr Gudsell submitted that this breach of undertaking provided important context for the 2004 Deed and the share transfers. He submitted that “[t]he transactions were totally to do with Mr Lyon getting out of a difficult legal predicament with compliant clients/friends who did whatever he asked of them”.

[146] We struggle to identify the relevance of this argument. It is difficult to see how Mr Lyon’s suggested motive for proposing these dealings could be relevant to the validity of the 2004 Deed. And as we have already explained, no proceeding challenging the validity of the 2004 Deed was brought by the trustees of the Spiers Trust. Indeed the trustees of the Spiers Trust were not parties to these proceedings. Still less can we see how this argument could lead to any challenge to the validity and effectiveness of the share transfers.

[147] Finally, this argument is not supported by the evidence before the Courts. Mr Lyon sent releases of the mortgages to Ms O’Brien under cover of his letter dated 10 August 2004. The mortgages could be released without releasing the Trust partnership from the debt secured by the mortgages. The releases were not dependent on the transaction provided for in the 2004 Deed. Any difficulty associated with the undertaking given by Mr Lyon was able to be resolved without entry into the transaction provided for in the 2004 Deed, which was not sent to the partners for execution until early October 2004.

[148] This argument provides no defence to the O’Brien interests’ claims.

Appellants’ submissions based on mistake in relation to fair market value of shares

[149] Mr Gudsell submitted that the 2004 Deed providing for the transfer of the shares was based on a common view that the value of the shares was $100,000. The 2004 Deed expressly recorded in recital (e) that it was “the intention of the parties that the sale of the shares in the companies [is] at fair market value and the parties believe that the price of $100,000.00 is fair market value”.

[150] There was uncontested evidence before the Court that the shares in MBI were worth significantly more than $200,000 in September 2004: estimates of their value ranged between $667,000 and slightly over $1 million.

[151] Mr Gudsell emphasised that Ms O’Brien accepted in cross-examination that it was the intention of the parties for the sale of shares to be at fair market value, that she believed the shares were worth $100,000, and this influenced her in entering into the Deed.

[152] In these circumstances, Mr Gudsell submitted, the parties to the 2004 Deed made a common mistake of fact. The parties were influenced by the mistake in entering into the 2004 Deed. The Court should have granted relief under s 28 of the Contract and Commercial Law Act.

Discussion

[153] We have already identified one fundamental difficulty with this argument: it has no bearing on the validity of the share transfers so far as MBI is concerned, and thus has no bearing on the identification of the shareholders in MBI.

[154] A second fundamental difficulty is that any challenge to the 2004 Deed on the basis of mistake would need to be brought by a party to that Deed. But the Spiers Trust is not a party to the proceedings, and has not made an application to the Court for relief on the grounds of mistake.

[155] But even putting these fundamental difficulties to one side, we consider that the Judge was right to reject this argument. The reason the parties entered into the September 2004 transaction was not to effect a commercial sale and purchase of shares based on their value at that time. Rather, as explained in Mr Lyon’s letter dated 10 August 2004 set out at [17] above, the goal was to equalise the partners’ current total assets, in circumstances where each partner’s total assets were approximately equal when the relationship commenced. They accepted that they came to the relationship with approximately equal assets, and had since made approximately equal contributions. It was therefore appropriate to equalise their interests in the various assets that had been accumulated. That is what the 2004 Deed set out to do.

[156] It seems clear that the provisions in the 2004 Deed in relation to fair market value of the shares were included solely to address possible gift duty issues. The parties expressly contemplated the possibility that the IRD would review the transaction and form the view that the price of $100,000 was not fair market value. They did not intend that any mismatch between share value and price paid would result in the transaction being set aside. Nor did they wish to incur any gift duty liability. Rather, the price would be adjusted to an amount agreed by IRD as fair market value, which would be a debt owing from one Trust to the other Trust. Importantly, this would occur only if the issue was raised by IRD — there was no suggestion that the value of the shares would be revisited for any other purpose, or that a party could require a reassessment of the consideration payable for the shares in any other scenario.

[157] It was open to the Judge to conclude, on the basis of the evidence, that Mr Spiers must have known that the value of the shares substantially exceeded $200,000, whatever the Deed may have recorded.[43] We doubt very much that Mr Spiers was mistaken in relation to this matter. Nor was there any evidence from Mr Lyon — who was a party to the transaction in his capacity as trustee of each of the two family trusts — about his understanding of the transaction.

[158] But even if both parties were mistaken about the current value of the MBI shares, we do not consider that it influenced their decisions to enter into the 2004 arrangements including the 2004 Deed. The goal was to equalise asset holdings, not merely to enter into a commercial transaction to sell certain assets at their current fair market value. We are satisfied that the parties would have entered into the 2004 arrangements, including the 2004 Deed and the sh

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are transfers, even if the current market value of the MBI shares had been expressly drawn to their attention at the time. [159] Thus the pre-conditions in s 24 of the Contract and Commercial Law Act for granting relief for mistake are not met, even if such relief had been claimed by a relevant party. And against this backdrop, it would not have been equitable to grant relief. The Judge was plainly right to dismiss the challenge to the O’Brien interests’ shareholdings based on this claim of mistake advanced by MBI and Mr Spiers. Acquisition of 20 shares by Ms O’Brien personally [160] Mr Gudsell challenged the Judge’s finding that Ms O’Brien was entitled to be treated as the holder of 20 shares in her personal capacity, on the basis that: (a) Ms O’Brien was not a party to the 2004 Deed in her personal capacity; (b) the share transfer form did not record any consideration for the transfer of the shares; and (c) the respondents had not identified what consideration Ms O’Brien had provided in her personal capacity. [161] The principal difficulty with this submission has already been identified. A share transfer is valid whether or not it is supported by consideration. MBI, and Mr Spiers as its sole director, were obliged to ensure that the transfer of 20 shares to Ms O’Brien personally was entered on MBI’s share register. She was entitled to be registered as the holder of those shares. [162] Mr Spiers did not counterclaim for a return of those 20 shares. Had he done so, such a claim would have encountered a number of insuperable obstacles. If the transfer had been made by way of gift, no legal basis for reversing that gift was identified by Mr Spiers. But we do not consider that this was a gift: rather it was an integral step in the broader arrangement, for which consideration had been provided by the O’Brien Trust. The O’Brien interests were to receive half the shares in MBI as part of this wider arrangement, recorded in the letter of 10 August 2004 from Mr Lyon. The consideration supporting the transfer was the willingness of the O’Brien Trust to enter into that overall arrangement. Any attempt to challenge the transfer to Ms O’Brien personally would also have faced significant limitation difficulties, had such a claim been pursued. [163] In these circumstances, the argument that Ms O’Brien personally was not entitled to be recorded as a shareholder in MBI is hopeless. Relief under s 174 of the Companies Act Appellants’ submissions [164] Mr Gudsell submitted that the Judge was wrong to find that Mr Spiers’ “sustained denial” of the O’Brien interests’ shareholding amounted to prejudicial conduct for the purposes of s 174.[44] He submitted that there was genuine uncertainty about the shareholding position, and a genuine dispute about whether there had been a valid transfer of shares to the O’Brien interests. Mr Spiers was entitled to have this dispute determined by the Court. The shareholding dispute should be put to one side and, if that is done, there is no evidence of any oppressive, unfairly discriminatory or unfairly prejudicial conduct on the part of Mr Spiers. [165] Mr Gudsell also submitted that even if there was unfairly prejudicial conduct for the purposes of s 174, liquidation of MBI was not the appropriate remedy. MBI was solvent. Liquidation of a solvent company is a remedy of last resort. The Judge gave no consideration to alternatives such as a managed sell down of MBI’s assets. The Judge also failed to consider Mr Spiers’ relationship property proceedings in the Family Court in relation to any shares in MBI to which Ms O’Brien might be entitled. Any relief under s 174 should be deferred until the Family Court proceedings have been determined. Discussion [166] Whatever the position may have been at an earlier date, once Mr Spiers became aware of the share transfers in 2016 at the latest, both MBI and Mr Spiers as its sole director had no reasonable basis for refusing to record the O’Brien interests as shareholders in MBI on the company’s share register. The refusal to do so, and the consequential refusal to provide information about the business of the company, were unfairly prejudicial to the O’Brien interests. [167] The position is even clearer if the share register held by KPMG is accepted as valid. Unless and until it was rectified, the company was entitled and obliged to treat Ms O’Brien as the holder of 1,000 shares. [168] Even on Mr Spiers’ version of events, his conduct meets the s 174 threshold. He failed to maintain a share register, despite the express statutory obligation to do so. He failed to take steps to ensure the share transfers were entered on the register when he received them in August 2016. His failure to remedy those omissions, when he became aware of them, amounted to a preference of his own interests over those of the company and of the O’Brien interests. None of the matters raised under the “shareholding dispute” rubric justified a refusal by Mr Spiers as director of MBI to register the share transfers, and to treat the O’Brien interests as shareholders. [169] We therefore agree with the Judge that the affairs of MBI were being, and were likely to be, conducted in a manner that was unfairly prejudicial to the O’Brien interests. [170] We accept Mr Gudsell’s submission that liquidation of a solvent company is a last resort. It would be more sensible for Mr Spiers to buy out the O’Brien interests on the basis of current market value. Mr Spiers has already had a lengthy opportunity to do so. However we will make orders that provide a final window within which he may seek to achieve that outcome. If agreement on a buy-out cannot be reached, however, liquidation is the only remedy capable of addressing the impasse between the parties. We are firmly of the view that it is just and equitable that MBI be liquidated, if an agreed solution cannot be reached promptly. [171] We do not consider that the Family Court proceedings are a sufficient reason to defer making orders under s 174 for the liquidation of MBI. The company will be deadlocked between its two ownership interests until such time as those proceedings are resolved. That is plainly unsatisfactory. If Mr Spiers’ relationship property claims are unsuccessful, the deadlock will have been extended to no good end. If they are successful, a monetary award will do justice between the parties. Orders on appeal [172] The appeal must be dismissed. But the stay, and the passage of time, have to some extent superseded the orders made by the Judge. [173] In the course of the stay application, it was confirmed that if liquidators are to be appointed there is no objection to the appointment of Mr Iain McLennan and Mr Colin Sanderson. The limbs of the orders made in the High Court preserving an ability to oppose their appointment are therefore redundant. [174] We will make an order terminating the stay on terms that provide a final opportunity for a commercial resolution along the lines referred to above. Result [175] The appeal is dismissed. [176] We make the following orders with effect from 10.00 am on Friday, 1 October 2021: (a) The stay directed by the High Court on 26 February 2021 is terminated. (b) Modern Built Industries Ltd is put into liquidation. Iain McLennan and Colin Sanderson, Accredited Insolvency Practitioners of Auckland, are appointed as joint and several liquidators of the company. [177] Leave is reserved to either party to apply to this Court for directions that may be desirable to give effect to these orders. [178] Costs should follow the event. The appellants must pay costs to the respondents for a standard appeal on a band A basis, with usual disbursements. We certify for second counsel. ------------------------------------------------------------------------------- [1] T A O’Brien and McCaw Lewis Trustees (T A O’Brien) Ltd as trustees of the T A O’Brien Family Trust v Modern Built Investments Ltd [2020] NZHC 3349 [High Court judgment] at [202] and [207(a) and (b)]. [2] As director of D Lyon Trustee Ltd. [3] The resolution erroneously referred to MBI as “Modern Built Developments Limited”, but this error was subsequently corrected. [4] The resolution, dated 19 October 2006, erroneously refers to MBI as “Modern Built Developments Limited”. [5] The email was addressed to Ms Wynne and another KPMG staff member. [6] High Court judgment, above n 1, at [51]. [7] High Court judgment, above n 1, at [63] and [75]. [8] At [65]. [9] At [66]–[68]. [10] At [69]. [11] At [70]. [12] At [72]. [13] At [80]. [14] At [81]–[84]. [15] At [85]. [16] At [87]. This finding appears to reflect some confusion between the MBI share register, and the records kept by the Companies Office. This is addressed at [99]–[103] below. [17] At [104]. [18] At [159]. [19] At [179]. [20] At [182]. [21] At [184]. [22] At [185]. [23] At [199]. [24] At [199]. [25] At [202]. [26] At [207]. [27] At [184]. [28] Companies Act 1993, s 87(2). [29] Section 2, definition of “share register”. [30] Section 87(4). [31] Section 89(1). [32] Section 90(1). [33] Section 90(2). [34] Section 91(3). [35] Haddow Nominees Ltd v Rarawa Farm Ltd [1981] 2 NZLR 16 (CA) at 26. [36] Unless of course the constitution makes special provision in relation to such transfers as contemplated by s 84(4)(c). [37] Companies Act, s 96(a). [38] See Vey Group Ltd v Vance [2020] NZCA 232, [2020] NZCCLR 24 at [24]–[29]. [39] Haddow Nominees Ltd v Rarawa Farm Ltd, above n 35, at 25–26. [40] At 26, quoting Portal v Emmens [1876] UKLawRpCP 7; (1876) 1 CPD 201 at 213. [41] See also Vey Group Ltd v Vance, above n 38, at [24]–[29]. [42] High Court judgment, above n 1, at [151]. [43] High Court judgment, above n 1, at [175]. [44] High Court judgment, above n 1, at [199].
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