Leon O. Taylor v Wilfred Julien

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL GRENADA GDAHCVAP2016/0019 BETWEEN: LEON O. TAYLOR Appellant and [1] WILFRED JULIEN [2] ANNETTE SMITH [3] CARMEN JULIETTE SMITH [4] PETER SMITH [5] PHILLIP SMITH [6] DAPHNE ANN VIDAL [7] DAPHNE ANN VIDAL (Executrix of the Estate of Charles David Williams, substituted for Charles David Williams by order of Madam Justice Clare Henry, dated January 25, 2013) [8] MICHAEL JULIEN [9] PATRICIA JULIEN Respondents Before: The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal The Hon. Mde. Gertel Thom Justice of Appeal The Hon. Mr. Mario Michel Justice of Appeal Appearances: Mr. Dickon A. Mitchell, Mrs. Crystal Braveboy-Chetram and Ms. Skeeta Chitan for the Appellant Mr. Alban M. John, and Ms. Vern Ashby for the Respondents ___________________________ 2020: October 14; 2021: May 18. ___________________________ Civil Appeal — Company law — Sections 241 and 242 of the Companies Act — Exercise of directorial powers — Oppressive conduct by director — Whether the learned judge misapprehended the nature of the claim by wrongfully treating it as an oppressive claim and in particular, one in which the general affairs of PSDL was being conducted in an oppressive manner — Whether the learned judge erred in his findings of fact so as to warrant appellate interference — Whether the learned judge’s order contravened the established legal principles which circumscribe the amplitude of orders made under section 241 of the Companies Act to what is necessary to rectify the grievance complained of — Whether Felicity was a duly qualified director despite not having resigned or been re- elected and was therefore authorised to execute the impugned conveyances Leon O. Taylor (“Mr. Taylor") was instrumental in establishing Pointe Salines Development Limited (“PSDL”) in 1966 as a holding company for approximately 200 acres of land. PSDL was in essence a family company. Mr. Taylor became its managing director from incorporation and was the largest voting shareholder at 50.1%. Conveyances were made between PSDL and Mr. Taylor, namely, a deed of conveyance dated 18th April 2008 - described as a deed of gift - in respect of a property known as the Cave House property, the effect of which was to dispose to Mr. Taylor 1 acre 2 roods and 6 poles of land as a reward to him for his services to PSDL rendered between 1967 and 1985 and as a ‘special reward’. The second transaction, reflected in a deed of conveyance dated 4th June 2010, was a deed of exchange whereby Mr. Taylor returned lands to PSDL that he had obtained by the deed of gift, and in exchange PSDL conveyed other lands to Mr. Taylor. The minority shareholders of PSDL, the respondents to this appeal, brought a claim in the court below contending, among other things, that the conveyances were void in law as they were wrongly executed by Felicity Julien (“Felicity”) as director of PSDL, who had ceased to be a director effective 19th February 2007. They also asserted that the exercise of directorial powers by Mr. Taylor and Felicity, resulting in the transfer of the Cave House property and the circumstances attendant upon that transfer, were oppressive and contravened the Companies Act of Grenada. Further, the conveyance of the Cave House property to Mr. Taylor as remuneration for his services to PSDL was wrong, since remuneration in section 104 of the Companies Act, does not include the transfer of real property; and there was no valuation of the Cave House property so as to determine whether proper consideration was given for the transfer. The respondents sought declaratory, injunctive and other reliefs. Mr. Taylor contended, among other things, that the decision of the board of directors of PSDL to convey the Cave House property to him for services rendered to it as managing director from 1966 did not constitute oppressive conduct within the meaning of section 241 of the Companies Act and as such there was no basis upon which the court should grant relief thereunder. He also contended that the issue of the managing director’s remuneration was for the directors of PSDL and did not require shareholder agreement or approval, subject to PSDL’s Articles of Association. He also argued that the term remuneration was not restricted to monies or cash and extends to real property. The learned judge was satisfied that the oppressive remedy regime under the Companies Act was engaged and the grounds set out in section 241(2) were satisfied so as to trigger the court’s jurisdiction pursuant to subsection (3). The learned judge accordingly made a whole range of orders in the exercise of his discretion to put matters right and to restore a more equitable balance and prevent further oppression. Being dissatisfied, Mr. Taylor filed several grounds of appeal. The critical issues arising from the appeal can be summarised as: (i) did the learned judge misapprehend the nature of the claim by wrongfully treating it as an oppressive claim and in particular, one in which the general affairs of PSDL were being conducted in an oppressive manner?; (ii) did the learned judge err in his findings of fact so as to warrant appellate interference?; (iii) did the judge’s order contravene the established legal principles which circumscribe the amplitude of orders made under section 241 of the Companies Act to what is necessary to rectify the grievance complained of? The respondents also filed a counter-notice seeking an order that Felicity was not duly authorised to sign the conveyances at the time of execution as she was not a duly qualified director. They also sought the setting aside of so much of the judgment as held that Felicity remained a duly qualified director, having so continued despite not having resigned or been re-elected and was therefore authorised to execute the impugned conveyances. Held: dismissing the appeal and ordering the appellant to pay costs of the appeal to the respondents of 2/3 of the prescribed costs of $113,649.00 awarded in the court below; dismissing the counter-notice with no order as to costs, that: 1. A pleading must make clear the general nature of the case of the pleader since it is inimical to a fair hearing that a party should be exposed to issues and arguments of which he has no fair warning. The claim filed by the respondents clearly raised the issue of oppression, unfair prejudice and the disregard of their interests as shareholders or of the entity PSDL as a whole. Further, in the reply, the respondents specifically pled that the appellant acted oppressively in the running of PSDL and in particular by taking the Cave House property. It is therefore incorrect to assert that the respondents did not file or pursue an oppressive claim or seek oppression remedies under section 241 of the Companies Act. The claim was properly dealt with as an oppressive one. Accordingly, the argument that the learned judge misapprehended the claim or erred in treating it as an oppressive action under section 241 cannot be accepted. Moreover, the essential elements of the respondents’ case were known to Mr. Taylor and he had sufficient notice of the case that was being made against him. Therefore, the argument that Mr. Taylor was exposed to arguments or issues of which he had no fair warning, also fails. McPhilemy v Times Newspapers Ltd and others [1999] 3 All ER 775 considered; Prudential Assurance Company Ltd v Revenue and Customs Commissioners [2016] EWCA Civ 376 at paragraph 20 considered. 2. An appellate court should not interfere with the trial judge’s conclusion on primary facts unless satisfied that the finding of fact is plainly wrong. This applies to findings of primary facts, the evaluation of those facts and inferences to be drawn therefrom. The adverb ‘plainly’ does not refer to the degree of confidence the appellate court may feel that it would not have reached the same conclusion as the trial judge. What matters is whether the decision under appeal is one which no reasonable judge could have reached. Moreover, a trial judge does not have to make a finding on every disputed item of evidence. It is enough if he makes a finding on matters which he needs to be resolved before coming to his conclusion. A review of the judge’s findings is constrained by the circumstances that, usually, the initial fact finder would have been exposed to a wider range of impressions that influenced a decision on factual matters than would be available to an appellate court. For this reason, a measure of deference to the conclusions reached by the initial fact finder is appropriate. Unless the finding is insupportable on any objective analysis, it will be immune from review. McGraddie v McGraddie [2013] UKSC 58 considered; Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 considered; Henderson v Foxworth Investments Ltd and another 2014] UKSC 41 considered; Volcafe Ltd and others v Cia Sud Americana de Vapores SA [2018] 3 WLR 2087, [2018] UKSC 61 considered; Re B (a Child) (FC) [2013] UKSC 33 considered; Sohal v Suri and another [2012] EWCA Civ 1064 considered; Perry v Raleys Solicitors [2019] UKSC 5 considered; Housen v Nikolaisen [2002] 2 SCR 235 considered. 3. The weight of evidence is essentially a matter for the judge who has sat through the entire case and is immersed in all its aspects; he is aptly placed to test the evidence at first hand and his ultimate judgment reflects this total familiarity with the evidence. It is therefore inappropriate for this Court to interfere with that evaluation unless it is perverse. The trial judge must consider all the material evidence although it need not all be discussed in his judgment. The weight he gives to it is pre-eminently a matter for him subject only to the requirement that his findings be such as might be reasonably made. The complaint that the judge attached too much weight to Paula’s letter protesting to the transfer of the Cave House property to Mr. Taylor does not approach the high hurdle which must be surmounted for a successful challenge. It has not been shown that the judge was clearly wrong or reached a conclusion on the evidence he was not entitled to reach. It was open to the judge to attach such weight to the letter as he considered necessary. In the circumstances, there being no perversity, appellate interference is unwarranted. Manzi v Kings College NHS Foundation Trust [2018] EWCA Civ 1882 considered; Henderson v Foxworth Investments Ltd and another [2014] UKSC 41 considered; Royal Wolverhampton Hospitals NHS Trust v Evans [2015] EWCA Civ 1059 considered; The Queen on the Application of Johnson v Bristol Crown Court [2017] EWHC 2528 (Admin) considered. 4. In a case where there are contemporary documents which appear on their face to provide cogent evidence contrary to the conclusion which the judge proposes to reach, it is very important that he must state why they are not to be taken at face value or are outweighed by other compelling considerations. Additionally when considering the credibility of a witness, it is important to test their veracity by reference to the objective facts proved independently of their testimony, in particular, by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. The learned judge was obliged to consider, and his analysis reveals that he did consider, the whole sea of evidence and did not engage in impermissible island hopping. There is therefore no basis to challenge the following findings of the learned judge: (i) that there was no agreement and hence no resolution passed at the board meeting of 11th November 2006 for Mr. Taylor to be granted the Cave House property; (ii) the purported act of PSDL in giving away part of its real estate assets to Mr. Taylor reduced its assets and thus affected its financial result; (iii) that Mr. Taylor exalted himself as the indispensable hard-working genius behind the growth and glory of PSDL who merits the compensation he has caused the company to dispense to him; (iv) that taking the land was Mr. Taylor’s exit plan from PSDL; (v) that Mr. Taylor administered PSDL and the land from his own home on the property; treated PSDL as his banker; took a number of substantial advances from its cash, and apparently washed his personal day to day living through PSDL as expenses and disbursements for running the company since he administered the company from home; (vi) that the governance of PSDL had become completely dysfunctional; and (vii) that neither the Cave House property nor the services rendered by Mr. Taylor were professionally or independently valued. These are findings which were clearly open to the judge and did not go against the weight of the evidence. This Court is bound to conclude that the trial judge has taken the whole of the evidence into his consideration, there being no compelling reason to the contrary. Accordingly, there is no basis for appellate interference. Simetra Global Assets Limited and another company v Ikon Finance Limited and others [2019] EWCA Civ 1413 considered; Watt (or Thomas) v Thomas 1947 AC 484 considered; Armagas Ltd v Mundogas SA, The Ocean Frost [1986] A.C. 717 considered. 5. Section 242(1) of the Companies Act provides that an application made or an action brought or intervened in under this part, may not be stayed or dismissed by reason only that the alleged breach of a right or duty owed to the company or its subsidiary has been or might be approved by the shareholders of the company or its subsidiary, but evidence of approval of the shareholders may be taken into account by the court in making an order under section 240, 241 or 377. The matter of shareholder approval of the impugned transfer of the Cave House property to Mr. Taylor was addressed by the learned judge, who found as a fact that there was no evidence that the shareholders agreed to the proposal. As such, the complaint that the judge failed to consider adequately or at all section 242(1) is not valid. Section 242(1) of the Companies Act, Cap 58A of the Revised Laws of Grenada considered. 6. There is no requirement for a judge to identify and explain every factor which weighed in his appraisal of the evidence. The judge must say enough to show that care has been taken and that the evidence as a whole has been properly considered. Which points need to be dealt with and which can be omitted requires an exercise of judgment. Deciding whether or not the directors were authorised to fix Mr. Taylor’s remuneration as managing director or whether they could agree to settle his claim, or whether or not good reasons existed to convey the Cave House property, could not trump a finding that there was no board agreement to so do. The learned judge having found that there was no agreement by the board to so convey, the other issues naturally fell away. Further there is no reason to conclude that he was not seised of the cogent reasons relied on by Mr. Taylor. Accordingly, the learned judge cannot be properly criticised for failing to consider and treat with the issue that Mr. Taylor’s remuneration as managing director was a matter exclusively for the directors of PSDL and not its shareholders or PSDL itself in general meeting. Simetra Global Assets Limited and another company v Ikon Finance Limited and others [2019] EWCA Civ 1413 considered; Sandra Maria Correia v University Hospital of North Staffordshire NHS Trust [2017] EWCA Civ 356 considered. 7. The essential basis of the remedy for oppression or unfairly prejudicial conduct, is derived from principles of equity. The Companies Act confers a wide power to do what is just and equitable. Section 241 permits the court to intercede in the internal affairs of the company in order to rectify the matters complained of. Section 241(1) permits an application to the court for an order against a company or an officer or director of that company to restrain oppressive action. Any order made under section 241 exists only to rectify the matters complained of as provided by section 241(2). The purpose of the oppression remedy is therefore corrective. An oppression remedy request must, in itself, be a fair way of dealing with the situation and any order made should go no further than necessary to rectify the oppression. Furthermore, the order may serve only to vindicate the reasonable expectations of security holders, creditors, directors or officers in their capacity as corporate stake holders and the court should consider the general corporate law context in exercising its remedial discretion under section 241(3). Additionally, actions of directors which are properly described as corporate conduct may render directors and or the corporation liable under the oppression provisions. The attribution of the conduct to the corporation does not forego a remedy against directors personally. Section 241 of the Companies Act, Cap 58A of the Revised Laws of Grenada. considered; Re Stanford International Bank Ltd (In liquidation) (Acting by and through its Joint Liquidators Mark McDonald and Hugh Dickson) (Antigua and Barbuda) [2019] UKPC 45 considered; Wilson v Alharayeri [2017] 1 SCR 1037 considered; Budd v Gentra Inc (1998) 43 BLR (2d) 27; BCE INC v 1976 Debentureholders 2008 SCC 69 considered; Galantis v Alexiou and another (Bahamas) [2019] UKPC 15 considered; Sparling v Royal Trustco Ltd [1986] 2 SCR 537 considered. 8. The order of the learned judge went no further than was necessary to rectify the oppression, unfair prejudice and disregard of interests in the circumstances. The judge engaged in a fact sensitive contextual inquiry, looking at business realities and not merely narrow legalities. He would have also considered the general corporate law context in exercising his broad discretion as to the appropriate relief. It is clear that the intercession in the affairs of PSDL was geared towards remedying the existing unfairness and oppression. Accordingly, the reasoning of the learned judge is unimpeachable in circumstances where he properly exercised his discretion in making the orders. 9. The learned judge reasoned how he arrived at his decision to order and declare, pursuant to section 241 of the Companies Act, that Felicity is a director of PSDL as at the date of his judgment, and dealt with the matter in a way he considered fair, paying regard to the circumstances of the case. He was persuaded that where the directors are due to retire and no valid appointment of new directors have been made, the acting directors as a rule are qualified to act, if the Articles of Association do not provide otherwise. Having noted that the Articles of Association do not provide otherwise, he accepted this as the operative proposition. His order was also within the plenitude of power conferred by section 241. Accordingly, there is no basis to set the order aside. Halsbury’s Laws of England (5th ed., 2008), Vol. 14, at para 524 considered; Section 241 of the Companies Act, Cap 58A of the Revised Laws of Grenada considered. JUDGMENT

[1]BAPTISTE JA: Leon O. Taylor (“Taylor”) invites this Court to set aside various orders made by Wallbank J (Ag.) in respect of a claim brought in the court below by minority shareholders of Pointe Salines Development Limited (“PSDL”), the respondents to this appeal.

Background

[2]By way of background, Taylor was instrumental in establishing PSDL in 1966 as a holding company for approximately 200 acres of land. PSDL was in essence a family company. He became its managing director from incorporation; and was the largest voting shareholder - 50.1%. Taylor was to hold office until his death, resignation or on ceasing to be a shareholder. Central to the claim was a challenge to conveyances made between PSDL and Taylor, namely, a deed of conveyance dated 18th April 2008 - described as a deed of gift - in respect of a property known as the Cave House property, the effect of which was to dispose to Taylor 1 acre 2 roods and 6 poles of land as a reward to him for his services to PSDL rendered between 1967 and 1985 and as a ‘special reward’. The second transaction, reflected in a deed of conveyance dated 4th June 2010, was a deed of exchange whereby Taylor returned lands to PSDL that he had obtained by the deed of gift, and in exchange PSDL conveyed other lands, to Taylor.

[3]The respondents contended, among other things, that the conveyances were void in law as they were wrongly executed by Felicity Julien (“Felicity”) as director of PSDL who had ceased to be a director effective 19th February 2007. They also asserted that the exercise of directorial powers by Taylor and Felicity, resulting in the transfer of the Cave House property and the circumstances attendant upon that transfer, were oppressive and contravened the Companies Act of Grenada.1 Further, the conveyance of the Cave House property to Taylor as remuneration for his services to PSDL was wrong, as remuneration in section 104 of the Companies Act, does not include the transfer of real property; and there was no valuation of the Cave House property so as to determine whether proper consideration was given for the transfer.

[4]The respondents sought declaratory, injunctive and other reliefs. They sought (i) a declaration that the conveyances were void and of no effect; (ii) an order that they be struck from the records of the Deeds and Land Registry and rectification of the records made in respect thereof; (iii) a declaration that the circumstances or manner of the conveyances were oppressive and unfairly prejudicial to and disregarded their interests as shareholders of PSDL or of the entity PSDL as a whole; (iv) an order that Taylor restore possession of all the lands conveyed to him by the first and second deeds; (v) an injunction restraining Taylor from conveying or further conveying any part of the lands conveyed to him by the first and second deeds; (vi) an order that Taylor accounts for all proceeds of any sale of lots of the land conveyed to him by the said deeds; and (vii) an order that he compensates, make restitution or pay damages for any loss sustained by PSDL or themselves in respect of the said conveyances.

[5]Taylor’s counsel, Mr. Mitchell, contended before Wallbank J (Ag.), among other things, that the decision of the board of directors of PSDL to convey the Cave House property to Taylor for services rendered to it as managing director from 1966 did not constitute oppressive conduct within the meaning of section 241 of the Companies Act and as such there was no basis upon which the court should grant relief thereunder. The issue of the managing director’s remuneration was for the directors of PSDL and did not require shareholder agreement or approval, subject to PSDL’s Articles of Association. The term remuneration was not restricted to monies or cash and extends to real property.

[6]Wallbank J (Ag.) held, among other things, that the respondents, as shareholders of PSDL were proper complainants for the purposes of section 241 of the Companies Act by reason of section 238 thereof. The purported act of PSDL of giving away part of its real estate to Taylor reduced its assets and thus affected its financial result and was prejudicial to the shareholders because it diminished the assets of the company. The lack of an underlying board of directors agreement or resolution in respect of the deeds was fatal to the transfers on the grounds that they had not been authorised in accordance with the Articles of Association and were unfairly prejudicial to the respondents or unfairly disregarded their interests. The lack of valuations entailed that this transfer disregarded the interests of the other shareholders, who had a reasonable expectation that the interest of all the shareholders would be objectively ascertained and balanced. The absence of valuations was contrary to such reasonable expectations and thus also for that reason unfair. Further, Taylor had exercised his power as a director in a manner that was oppressive to the respondents.

[7]Wallbank J (Ag.) was satisfied that the oppressive remedy regime under the Companies Act was engaged and the grounds set out in section 241 (2) were satisfied so as to trigger the court’s jurisdiction pursuant to subsection (3). The learned judge accordingly made a whole range of orders (recorded at paragraph 90 of his judgment) in the exercise of his discretion to put matters right and to restore a more equitable balance and prevent further oppression.

[8]Being dissatisfied, Taylor filed several grounds of appeal. Mr. Mitchell complains that Wallbank J (Ag.) fundamentally misapprehended the claim by treating it as a complaint that the affairs of PSDL were being conducted by Taylor in a manner that was generally oppressive or unfairly prejudicial to the respondents’ interests thus leading to the ‘extraordinary orders’ made. While recognising that section 241 of the Companies Act grants the court wide powers, Mr. Mitchell contended that there was no evidentiary or legal basis for the orders made.

[9]Additionally and fundamentally, the approach is contrary to the established principles that orders or relief granted pursuant to an oppression complaint should: (i) go no further than is necessary to address the specific complaint made; (ii) reflect that in the particular circumstances of the case the oppressive conduct must be attributable to the director and the imposition of personal liability must be fit as a means of rectifying the harm done; and (iii) even if relief ought to be granted or justified to correct an oppressive situation , the surgery should be with a scalpel and not a battle axe. Mr. Mitchell also challenged critical findings of fact, the judge’s evaluation of the evidence and the weight he attached to the evidence.

[10]Mr. Mitchell avers that the respondents’ case was limited to seeking declaratory relief that the transfer of the Cave House property to the appellant should be set aside on the bases that (i) at the time of the execution of the instruments effecting the transfer to the appellant, the signatories were not a director and company secretary respectively of PSDL; (ii) the appellant provided no consideration for the transfer; (iii) remuneration for his services to PSDL as managing director was not remuneration within the meaning of section 104 of the Companies Act and did not include the transfer of real property; (iv) there was no valuation of the Cave House property so as to determine whether proper consideration was given for the transfer to the appellant; and (v) the exercise of the directorial powers by the appellant and Felicity at a Board of Directors meeting on 11th November 2006, where the decision was taken to convey the Cave House property to the appellant, was oppressive and contravened section 241 of the Companies Act.

[11]Mr. John, the respondents’ counsel, filed a counter-notice seeking an order that Felicity was not duly authorised to sign the conveyances at the time of execution as she was not a duly qualified director. He also sought the setting aside of so much of the judgment as held that Felicity remained a duly qualified director, having so continued despite not having resigned or been re-elected and was therefore authorised to execute the impugned conveyances. Save for the counter- notice filed, Mr John propounded in favour of the rectitude of the judge’s reasoning and orders and invites this Court to dismiss the appeal and find in favour of the counter- notice.

Grounds of Appeal

[12]The grounds of appeal can be summarised as follows: (i) Did the learned judge err in treating the claim as an oppressive claim under section 241 of the Companies Act and accordingly deny Taylor the opportunity of addressing him in relation to the majority of the orders made? (Grounds 3.1 and 3. 2). (ii) Was the judge’s finding of fact that Felicity Julien and Paula Williams did not agree, therefore, there was no agreement and no resolution passed at the board meeting of 11th November 2006 for Taylor to be granted the Cave House property, against the weight of the evidence? (Ground 3.5). (iii) Did the learned judge fail to consider adequately or at all section 242 (1) of the Companies Act which would have required him to take into account evidence of the approval of the shareholders of the impugned transfer of the Cave House property to Taylor and accordingly err in law? (Ground 3.3). (iv) Were the factual findings that Taylor administered PSDL from his own home; took the land as his exit plan from the company; exalted himself as the indispensable hard-working genius behind the growth and glory of the company who merited the compensation he has caused the company to dispense to him; and treated PSDL as his banker by taking a number of substantial cash advances from it, against the weight of the evidence? (Ground 3.4). (v) Were the factual findings that: (i) the land and services were not independently and professionally valued, perverse? (ii) PSDL had become completely dysfunctional, against the weight of the evidence? (iii) PSDL sought to give away its real estate assets to Taylor erroneous due to the judge’s failure to give sufficient weight to the fact that PSDL had cogent reasons for agreeing to settle Taylor’s claim? (Grounds 3.6, 3.7 and 3.8). (vi) Did the learned judge err with respect to the width of the relief he granted against Taylor by contravening the principle that the relief granted should go no further than is necessary to rectify the matters complained of?

[13]The critical issues arising from the appeal can be summarised as: Did the learned judge misapprehend the nature of the claim by wrongfully treating it as an oppressive claim and in particular, one in which the general affairs of PSDL were being conducted in an oppressive manner? Did the learned judge err in his findings of fact so as to warrant appellate interference? Did the judge’s order contravene the established legal principles which circumscribe the amplitude of orders made under section 241 of the Companies Act to what is necessary to rectify the grievance complained of?

[14]Except for the issues relating to the nature of the claim and the propriety and amplitude of the orders, the appeal largely challenges the factual findings of the judge. The findings engage issues relating to the judge’s evaluation of the evidence, inferences drawn, the weight of evidence and perversity.

Nature of Claim / Pleaded Case

[15]The issues pertaining to the nature of the claim primarily require an examination of the pleaded case. An examination of the role of pleadings would also be in order. Paragraph 14 of the amended statement of claim states that the respondents aver and will contend at the trial that the exercise of directorial powers by the appellant and Felicity Julien at the meeting of 11th November 2006, where the decision was taken to settle the Cave House property on Taylor and all of the circumstances and exercise of powers resulting in the said conveyances in his favour were oppressive and in contravention of section 241 of the Companies Act. The respondents specifically sought a declaration that the circumstances and manner of the conveyances of 18th April 2008 and 4th June 2009 were oppressive and unfairly prejudicial to and disregards their interests as shareholders of PSDL or of the entity PSDL as a whole. Paragraph 8 of the Defence denies that Taylor or the directors acted oppressively and in contravention of section 241 of the Companies Act as alleged in paragraph 14 of the amended statement of claim.

[16]In paragraph 7 of their reply to defences, the respondents repeat paragraph 14 of the amended statement of claim and aver they will refer to paragraph 11.3 of the draft minutes of the 19th February 2007 Annual General Meeting (“AGM”) of PSDL to support their claim that the appellant acted oppressively in the running of PSDL and in particular, in the taking of the Cave House property.

[17]I now briefly examine the role of pleadings. It is important that the pleading must make clear the general nature of the case of the pleader.2 The whole point of pleading is to ensure that the essential elements of each party’s case are known to the other side and to the court. The statement of case ought, at the very least, to identify the issues to be determined. In that way the parties know the issues to which they should direct their evidence and their challenges to the evidence of the other party or parties and the issues to which they should direct their submissions on the law and the evidence. Equally, importantly, it enables the judge to keep the trial within manageable bounds and so that the judge knows the issues on which the proceedings, and the judgment, must concentrate. The statement of case plays an important role in civil litigation which should not be diminished.3

[18]In similar vein, in Prudential Assurance Company Ltd v Revenue and Customs Commissioners,4 the court stated that the procedural system is an adversarial one and it is for the parties, subject to the control of the court, to define the issues on which the court is invited to adjudicate. This function is the purpose of the statement of case. The setting out of a party’s case in the statement of case enables the other party to know what points are in issue; what documents to disclose; what evidence to call and how to prepare for trial. It is inimical to a fair hearing that a party should be exposed to issues and arguments of which he has no fair warning.

[19]Having considered the pleaded case as well as the role and functions of pleading, it is certainly incorrect to assert that the respondents did not file or pursue an oppressive claim or seek oppression remedies under section 241 of the Companies Act. I agree with Mr. John that the claim broadly contemplated the running of PSDL as a whole, even though the specific focus was on the Cave House property. The respondents, however, clearly raised the issue of oppression, unfair prejudice and the disregard of their interests as shareholders or of the entity PSDL as a whole. Further, in the reply, the respondents specifically pled that the appellant acted oppressively in the running of PSDL and in particular by taking the Cave House property.

[20]In the circumstances, the argument that the learned judge misapprehended the claim or erred in treating it as an oppressive action under section 241 of the Companies Act cannot be accepted. The claim was properly dealt with as an oppressive one. The essential elements of the respondents’ case were known to Taylor and he had sufficient notice of the case that was being made against him. The argument that Taylor was exposed to arguments or issues of which he had no fair warning, also fails.

Challenge to Findings of Fact

[21]Several findings of fact of the learned judge were challenged. The law pertinent to a challenge to factual findings is well settled. An appellate court should not interfere with the trial judge’s conclusion on primary facts unless satisfied that the finding of fact is plainly wrong.5 This applies to findings of primary facts, the evaluation of those facts and inferences to be drawn therefrom.6 The expression ‘plainly wrong’ was explained by the Supreme Court in Henderson v Foxworth Investments Ltd and another.7 The adverb ‘plainly’ does not refer to the degree of confidence the appellate court may feel that it would not have reached the same conclusion as the trial judge. It does not matter what degree of certainty the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one which no reasonable judge could have reached. The constraints relating to non-interference with findings of fact were recently summarised by the Supreme Court in Perry v Raleys Solicitors.8 The issue for the United Kingdom Supreme Court was whether the first instance judge had gone wrong in his decision on the facts to an extent which enabled the Court of Appeal to intervene. At paragraph 52, Lord Briggs said that the test is whether there is no evidence to support a challenged finding of fact, or that the finding was one which no reasonable trial judge could reach.

[22]A trial judge’s findings of fact should not be overturned simply because the Court of Appeal would have found them differently. It must be shown that the trial judge was wrong in the sense that he fundamentally misunderstood the issue or the evidence or that he plainly failed to take the evidence into account or that he arrived at a conclusion which the evidence could not on any view support. Within these broad limits, the weight of the evidence is a matter for the trial judge. There is a world of difference between the impression which evidence makes on a judge who has followed it as it was deployed and the impression that an appellate court derives from cold transcripts.9

[23]There are powerful reasons for the Court of Appeal’s reticence in interfering with the factual findings of judges. It’s a matter of good sense. The trial judge has had the benefit of sifting through the evidence that has been led, assessing the witnesses and hearing and assessing their evidence as it emerges. A review of the judge’s findings is constrained by the circumstances that, usually, the initial fact- finder will have been exposed to a wider range of impressions that influenced a decision on factual matters than would be available to an appellate court. This involves, among other things, the initial impact of the testimony as it unfolds- did it appear frank, candid, spontaneous and persuasive or did it seem to be contrived, lacking in conviction or implausible? These reactions and experiences cannot be confidently replicated by an analysis of the transcript of the evidence. For this reason a measure of deference to the conclusions reached by the initial fact finder is appropriate. Unless the finding is insupportable on any objective analysis it will be immune from review.10

[24]Being immersed in all aspects of the case, and able to test the evidence at first hand, the trial judge undoubtedly has advantages which the Court of Appeal does not have, where the focus is inevitably narrower. As Lewison JA reminds in Fage UK ltd v Chobani UK Ltd,11 in making his decision the judge has regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. The atmosphere of the courtroom cannot be re-created by reference to documents (including transcripts of evidence).

[25]In Sohal v Suri and another,12 at paragraph 6, Lady Justice Arden states as follows: “The judge does not have to make a finding on every disputed item of evidence. It is enough if he makes a finding on matters which he needs to be resolved before coming to his conclusion. Likewise, there is no obligation on the judge to make findings if, after having considered the matter conscientiously, he forms the view that it is not possible to make a particular finding.”

[26]Taylor challenges Wallbank J’s finding of fact that there was no agreement and no resolution passed at the directors meeting held on 11th November 2006 by the directors - Felicity and Paula Williams - to transfer the Cave House property to Taylor. Mr. Mitchell submits that this finding of fact is erroneous and unsupported by the evidence of Taylor and Felicity, the only two persons testifying on the issue. Further, that was not the respondent’s case.

[27]Mr. Mitchell submits that Wallbank J (Ag.) was wrong in simply ignoring the plain words and clear meaning of the minutes of 11th November 2006 that the board of PSDL, at the time comprising Paula and Felicity, approved Taylor’s proposal to convey the Cave House property to him. Mr. Mitchell posits that the minutes of 11th November 2006 states that the resolution was approved and, save for the protest letter of Paula, there was no suggestion that the minutes were incorrect or fraudulent. He also challenges the weight the learned judge gave to the protest letter.

[28]Mr. Mitchell relies on paragraphs 11 to 17 of Felicity’s witness statement which, as far as is material, states that the minutes of the meeting are an accurate record of the meeting and confirmed by the subsequent directors meeting in January 2007 which she attended. Paula was an active participant and did not object to the proposal to transfer the Cave House property; and decisions at directors’ meeting were always done by consensus. Mr. Mitchell also relies on Felicity’s evidence in cross-examination and the answers she gave in response to questions posed by the learned judge, to support his argument that Paula agreed to Taylor’s proposal to transfer the Cave House property.

[29]In his judgment, Wallbank J (Ag.) clearly reasoned how he arrived at his finding that there was no agreement and hence no resolution at the board meeting of 11th November 2006 and no evidence that PSDL’s board or, for that matter, the shareholders, otherwise agreed upon the proposal to convey the Cave House property. He noted that by November 2006, the board of PSDL comprised Taylor, Felicity and her sister, Paula. Wallbank J (Ag.) referred to the board meeting held on 11th November 2006 attended by Taylor as Chairman, Paula as director and Felicity as director and secretary. Minutes of the meeting were produced by Taylor a couple months after and a draft given to Felicity. Both Felicity and Taylor signed the draft; it was dated 9th January 2007.

[30]Part 9 of the minutes recount that Taylor wished to receive a ‘special reward’ for achieving great things for the PSDL and to remunerate him ‘for services rendered from 1967 to 1985’. Also, Taylor had never taken, but now wanted, the salary of $1,000.00 a month agreed upon at a directors’ meeting on 26th August 1968. The minutes also recount that PSDL was unable to ‘honour these obligations on a monetary basis’, consequently Taylor proposed to ‘purchase the cave house property’ so that ‘the matter could be settled’.

[31]Part 9 concluded that the board approved Taylor’s proposal and proposed to provide the shareholders the full disclosure of the facts which allows PSDL to settle its account with Taylor and to recognise his contribution. A copy of the minutes was delivered to Paula on 10th January 2007. She wrote a letter the following day to Taylor and Felicity stating, inter alia: “I did not agree to any payment or compensation to [Taylor] and felt that it was not in my power to casually approve any disbursement of the shareholders’ assets to him…I felt and still feel that [Felicity Julien] and I could not make this decision without consultation with all the shareholders since to grant [Taylor’s] request without prior consultation and approval would dissipate the value of the shareholders’ interest in [PSDL]. As Directors we have to safeguard the interests of the shareholders.” In the letter, Paula went on to question the accuracy of the minutes and opposed the decision stated as allegedly made therein in ‘so called agreement of the Board of Directors’.

[32]Annette, Juliette, Peter and Phillip Smith (the Smiths) likewise protested by letter dated 25th January 2007 to Taylor, noting that ‘It would appear that you [Taylor] act only in the best interests of L. Taylor. PSDL is a family company set up to benefit its owners. It has proved to be sadly unprofitable and has recently declined. All this under your management …’.

[33]By letter dated 16th January 2007, Taylor wrote back to Paula, countersigned by Felicity, stating that the proposal for the Cave House property was presented and discussed in detail and the minutes accurately represent the conclusion on the matter. The letter also stated that ‘the Board minutes state clearly that the proposal and the reasons for its acceptance are to be presented to Shareholders as requested by [Felicity].’ Wallbank J (Ag.) noted that the minutes did not state that the proposal was to be presented to shareholders, but rather, the Board’s alleged agreement. At trial, Taylor stated that the purpose of informing the shareholders was simply a matter of full disclosure and transparency. Felicity explained that the reason for referring the proposal to the shareholders was so that they could vote on it. Wallbank J (Ag.) accepted her evidence on that point.

[34]Wallbank J (Ag.) noted that on 9th November 2006, two days before the board’s meeting, Taylor wrote to the Smiths, copied to Felicity and Paula, outlining what would be decided at the board meeting. He made no mention that agreement would be sought concerning the remuneration plan. After the meeting but before the minutes were presented, Taylor wrote to Peter Smith on 8th December 2006 but did not state that the board had agreed to his proposal. In the last paragraph he pressed arguments in favour of his proposal. Wallbank J (Ag.) reasoned that this was strange, for if, as Taylor subsequently represented, the board had agreed the proposal and that was the end of the matter, why did he not simply say so? Wallbank J (Ag.) stated that Taylor was not a man to mince words. Further, Taylor could not properly vote on the proposal, either on the board level, nor if put to a vote of the shareholders. His proposal remained at the mercy of the other voting shareholders, so he had everything to gain by cajoling them to accept it.

[35]Wallbank J (Ag) referred to Taylor’s evidence at the trial that the purpose of informing the shareholders was simply a matter of full disclosure and transparency. The learned judge opined that the explanation offered was incongruent with Taylor’s lack of candour in his correspondence immediately before and after the board meeting, in which he did not frankly reveal his intentions for the meeting and in which he also did not say outright that the board had agreed to accept the proposal. Wallbank J (Ag.) contrasted Taylor’s evidence with Felicity’s evidence and stated that Felicity unhesitatingly explained that the reason for referring the proposal to the shareholders was so that they could vote on it. Felicity was very clear on that and the learned judge accepted her evidence.

[36]In arriving at his factual finding, Wallbank J (Ag.) placed reliance on Paula’s immediate protestation upon seeing the purported minutes that she did not agree to accept Taylor’s proposal; and that Felicity, the only other person who could vote on it at a Director’s meeting wanted the proposal to be referred to shareholder for them to vote on. In addition, Wallbank J (Ag.) further stated that, having read the correspondence from Taylor, heard his oral evidence and seen the demeanour of Taylor and Felicity, he found as a fact that there was no agreement, and hence no resolution at the board meeting on 11th November 2006 for Taylor to be granted the Cave House property. If there was some form of agreement between Felicity and Paula at that meeting to accept Taylor’s proposal it was conditional upon the shareholders’ approval. Wallbank J (Ag.) found that there were only two persons at the meeting who could agree - Felicity and Paula - and they did not. There was no resolution passed to approve the transfer to Taylor. There is no evidence that PSDL’s board, or, for that matter the shareholders, otherwise, agreed upon that proposal. I agree with the judge’s reasoning and conclusion. The evidence as a whole can reasonably be regarded as justifying the conclusion arrived at by the judge.

[37]A critical matter concerned the minutes of 11th November 2006 which Mr. Mitchell considered to be compelling evidence of an agreement by the directors to transfer the Cave House property to Taylor. Mr. Mitchell complained that Wallbank J (Ag.) had ignored the clear words of the minutes. That complaint, to my mind, is completely unjustified. There is no basis for saying that the judge ignored the clear words of the minutes. Fairness requires that a judge should deal with apparently compelling evidence, where it exists, which is contrary to the conclusion which he proposes to reach and explain why he does not accept it.13 In my view, Wallbank J (Ag.) did just that. Given the state of the evidence, it would have been improper for the learned judge to confine himself solely to the minutes in question. Wallbank J (Ag.) was obliged to consider, and his analysis reveals that he did consider, the whole sea of evidence and did not engage in impermissible island hopping.

[38]Having sat through the entire case, Wallbank J (Ag.) was very well positioned to appreciate how the evidence evolved and of course, the impact or impression it created upon him as the finder of fact. His ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case may be far deeper than that of the Court of Appeal whose view of the case is far more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged.14

[39]As stated by Males LJ in Simetra Global Assets Limited and another company v Ikon Finance Ltd and others15 at paragraph 49, in a case where there are contemporary documents which appear on their face to provide cogent evidence contrary to the conclusion which the judge proposes to reach, it is very important that he must state why they are not to be taken at face value or are outweighed by other compelling considerations.

[40]The learned judge had regard to the objective facts and documents, the witnesses’ motive and to the overall probabilities. The judgment demonstrates why Wallbank J (Ag.) did not take the minutes in question at face value and how he found them outweighed by other compelling considerations. The words of Robert Geoff LJ in Armagas Ltd v Mundogas SA, The Ocean Frost,16 at page 757 are instructive: when considering the credibility of a witness, it is important to test their veracity by reference to the objective facts proved independently of their testimony, in particular, by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence, reference to objective facts and documents, to the witness’ motive, and to the overall probabilities can be of very great assistance to a judge in ascertaining the truth.

[41]In my judgment, Wallbank J’s finding of fact that there was no agreement and hence no resolution passed at the board meeting of 11th November 2006 for Taylor to be granted the Cave House property is unimpeachable. It cannot be seriously contended that that finding is against the weight of the evidence. It is a finding which was clearly open to the judge on the evidence. Wallbank J (Ag.) clearly reasoned how he arrived at that finding. He undertook an evaluative exercise which took into account an assessment of many factors including: the minutes of 11th November 2006; Paula’s strong protest letter the day after receiving the minutes in which she stated that she had not agreed to transfer the Cave House property to Taylor; and the fact that Felicity, the only other person who could vote on the proposal at a director’s meeting wanted it referred to the shareholders for them to vote on. Wallbank J (Ag.) noted Taylor’s lack of candour in his correspondence immediately before and after the board meeting in which he did not frankly reveal his intentions for the meeting and in which he did not say outright that the board had agreed to accept the proposal. It cannot be said that the learned judge erred in his finding of fact, nor can it be properly asserted that the impugned finding is one which no reasonable judge could have reached. In the circumstances, there is no basis for appellate interference.

Weight of Evidence: Perversity

[42]Mr. Mitchell attacks the weight Wallbank J (Ag.) attached to Paula’s letter of protest. He submits that the learned judge ought to have taken the view that the letter was created and written by her son David Williams for her to sign with a view to discrediting the decision made to transfer the Cave House property to Taylor and was not an accurate reflection of Paula’s decision at the meeting of 11th November 2006. Mr. Mitchell asserts that in light of the judge’s opinion that the letter was likely not written by Paula but by her son David, he should have given little or no weight to it and ought to have concluded that the board of PSDL - comprising Felicity and Paula - resolved to convey the Cave House property to Taylor at the meeting of 11th November 2006.

[43]Wallbank J (Ag.) observed that Taylor and Felicity sought to dismiss Paula’s letter of protest as probably not written by her, but by her son. He thought that was likely given Paula’s advanced age and poor health at the time, but noted that they did not contest that Paula signed it. Paula also appeared to have initialled each page. Wallbank J (Ag.) stated that if she did not write it, she endorsed it.

[44]An appeal against the weight a judge attaches to evidence invariably faces difficulty. The weight of evidence is essentially a matter for the judge who has sat through the entire case and is immersed in all its aspects; he is aptly placed to test the evidence at first hand and his ultimate judgment reflects this total familiarity with the evidence. Weight is part of the evaluative process the judge undertakes in arriving at his finding. Being a contextual evaluation for the judge who reads, hears and sees the evidence of the witnesses, it is inappropriate for this Court to interfere with that evaluation unless it is perverse.17 The trial judge must consider all the material evidence although it need not all be discussed in his judgment. The weight he gives to it is pre-eminently a matter for him subject only to the requirement that his findings be such as might be reasonably made.18

[45]Unless the judge’s evaluation can be demonstrated to be perverse, focusing on discrete parts of what is a holistic exercise to illustrate whether the judge did or did not get the evaluative exercise wrong, is hardly an attractive submission. The reason being that it usually descends into questions about the weight to be given to parts of the evidence which are matters for the court that hears and sees, the witnesses in context, an advantage the appellate court does not have.19

[46]Perversity is a high hurdle. It is reaching a decision which flies in the face of reason or would cause there to be astonishing gaps to the objective observer: per Mr Justice Langstaff at paragraph 40 of The Queen on the Application of Johnson v Bristol Crown Court.20 Weight of evidence is always a matter of judgment. Judgment, unless it is perverse, is very difficult to appeal successfully: para 41. Findings which are soundly grounded in the evidence are not perverse.

Perversity is always a difficult furrow for an appellant to plough.21

[47]Wallbank J (Ag.) carried out an evaluative exercise which took into account many factors, including Paula’s letter. The correctness of the evaluation is not undermined by challenging the weight he has given to elements in the evaluation. It has not been shown that he was clearly wrong or reached a conclusion on the evidence he was not entitled to reach. Mr. Mitchell’s complaint does not approach the high hurdle which must be surmounted for a successful challenge. It was open to the judge to attach such weight to the letter as he considered necessary. There was no perversity. Mr. Mitchell has not identified an error in the factual evaluation of the judge of a nature and extent that vitiates his conclusion. In the circumstances, appellate interference is unwarranted.

[48]Wallbank J’s finding that the purported act of PSDL in giving away part of its real estate assets to Taylor reduced its assets and thus affected its financial result is challenged as being erroneous. The bases for the challenge are that he wholly ignored or failed to appreciate or failed to give sufficient weight to the fact that PSDL was presented with and had cogent grounds for agreeing to settle Taylor’s claim for remuneration from 1967 to 1985, for recognising his contribution to asset growth of the company and for making provisions for paying him in the form of the land transfer, a pension or gratuity. In my judgment, there is no basis for that challenge. The matters counsel referred to were clearly before the learned judge and there is no basis to conclude that he did not consider them. In fact he clearly referred to them in his judgment. As indicated earlier the issue of weight is for the learned judge.

[49]Mr. Mitchell contends that there is no evidence to support the finding of fact that Taylor exalted himself as the indispensable hard-working genius behind the growth and glory of PSDL who merits the compensation he has caused the company to dispense to him. It appears to me that finding was open to Wallbank J (Ag.) having regard to Part 9 of the minutes which recount Taylor’s wish to be specially rewarded for achieving great things for PSDL and to remunerate him for services rendered from 1967 to 1985. This coupled with the fact that Taylor was instrumental in establishing PSDL and was the managing director from inception.

[50]The finding that Taylor candidly admitted in his oral evidence that taking the land was his exit plan from the company is also challenged on the ground of absence of evidence. In his witness statement Taylor stated that the Cave House property was conveyed to him on 18th April 2008 and he immediately started to create a small development to secure his retirement. From that evidence it was reasonably open to Wallbank J (Ag.) to arrive at his finding. This rebuts any suggestion that there was no evidence to support the judge’s finding that taking the land was Taylor’s exit plan from PSDL.

[51]Mr. Mitchell also challenges Wallbank J’s findings that Taylor administered PSDL and the land from his own home on the property; treated PSDL as his banker; took a number of substantial advances from its cash, and apparently washed his personal day to day living through PSDL as expenses and disbursements for running the company since he administered the company from home. Mr. Mitchell contends that these pronouncements had no real evidentiary basis and influenced the judge’s view that he was being asked to address or deal with a claim that the affairs of PSDL were being conducted generally in an oppressive manner that was unfairly prejudicial to the respondents interest as shareholders of PSDL, and led him to make the extraordinary orders complained about.

[52]Mr. John points out that much of the evidence referred to by the judge and at paragraph 13.6 of the appellant’s submission were adverted to and brought out in cross - examination as a result of documents Taylor placed before the court. Mr. John asserts that the respondents did not have the documentary evidence pertaining to Taylor using PSDL to pay his personal income tax, using PSDL’s resources to make advances to his daughter, paying his maid, all of which without reference to other directors or shareholders and taking substantial advances with apparently no evidence of the board of directors’ approval. Learned counsel argues that the fact that all of this evidence was not contemplated in the claim for oppression relating to PSDL’s property, did not limit the judge in what he should take into account in fashioning a remedy for the claim as the court has to look at all the circumstances of the case. I agree.

[53]Wallbank J (Ag.) found that Taylor took, what he called a ‘stipend’ a $5000.00 monthly allowance of to cover what he referred to as expenses or disbursements, from around 1st January 1986. Taylor stated in cross-examination that the stipend was never salary but was necessary to support staff and help with other miscellaneous expenses at his house. It was also noted that on 11th November 2006 a board meeting was held at Taylor’s house. In cross-examination Taylor also stated that PSDL was never a trading company and that staff wages of $16,000.00 in 2003 and $15,000.00 plus in 2004 was for the lady who worked in his house, cleaning, cooking and looking after the property. The evidence also reveals that in 2004, Taylor advanced $126,000.00 of PSDL’s funds to his adult daughter to support her. There is also evidence that Taylor spent $29,082.00 from PDSL’s account to buy roofing material in Miami for two persons who had lost their roofs after the hurricane. Although stating that the sum was charged to their account, Taylor stated that he was not aware whether they paid it back.

[54]Paying regard to all the above, Wallbank J’s findings are amply supported by the evidence and it cannot be said that they are ones which no reasonable judge could have reached. Mr. Mitchell’s contention that there is no evidence to support the judge’s findings is therefore not sustainable.

Dysfunctional

[55]Mr. Mitchell takes issue with Wallbank J’s finding that the governance of PSDL had become completely dysfunctional. Counsel argues that the judge wrongly concluded that because no minutes were put into evidence of whether the AGM set for 8th July 2001 had in fact occurred that the governance of PSDL, as at the date of the trial, had become dysfunctional. Counsel asserts that the respondents had never presented such a case, which required the learned judge to determine whether the general governance of PSDL had become dysfunctional. In counsel’s view, this erroneous diversion, with other pronouncements made by the judge, is at the heart of his falling into error, leading to the extraordinary orders made.

[56]Mr. Mitchell posits that the judge failed to appreciate that PSDL continued to function and was a functioning company after the filing of the amended claim on 8th April 2011, save for the discrete issue of the transfer of the Cave House property to Taylor. Mr. Mitchell cites the evidence of Daphne Vidal that she was appointed a director of PSDL by the shareholders at an AGM after the filing of the claim. Since her appointment there has not been any AGM of PSDL.

[57]Mr. John supports the judge’s finding that PSDL had become completely dysfunctional and contends that a reading of the judgment and the evidence show that the learned judge was referring to a series of things, not just the meeting of 8th July 2011. Mr. John asserts that what led Wallbank J to the meeting of 8th July 2011 was the questioning of Taylor with regard to financial statements for 2009 to 2010. Mr. John stated that it was noteworthy that none of the financial statements were signed by the directors. Having taken Taylor to the 2010 accounts, the judge inquired as to when they would be approved, to which he replied the next AGM, which was 8th July 2011. There is no evidence that that meeting ever took place. Mr. John submits that all of this evidence would have been foremost in the mind of the learned judge when he concluded that PSDL had become dysfunctional.

[58]In my judgment, a finding that a company had become dysfunctional simply on the basis that an AGM was not held, would hardly be sustainable and as such liable to be set aside. It is evident that Wallbank J (Ag.) did not conclude that PSDL was dysfunctional solely on the basis that an AGM did not take place. Although the learned judge did not specify the matters he relied on in arriving at his conclusion, a close look at the judgment shows that there were a number of factors of which the lack of the meeting was one, which led to his conclusion. This Court is bound to conclude that the trial judge has taken the whole of the evidence into his consideration, there being no compelling reason to the contrary.22

[59]The mere fact that a trial judge has not expressly mentioned some piece of the evidence does not lead to the conclusion that he overlooked it. The validity of a factual finding made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must consider all the material evidence although it need not all be discussed in his judgment. The weight he gives to it is pre-eminently a matter for him subject only to the requirement that his findings be such as might be reasonably made. An appellate court could therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge’s conclusion was rationally insupportable.23

[60]The lack of the AGM was just one of the matters available to the learned judge to support a conclusion that the governance of PSDL had become completely dysfunctional. There were other matters from which Wallbank J’s conclusion could be rationally supported. Wallbank J (Ag.) would have been mindful of the dispute between the directors concerning whether an agreement had been arrived at concerning the transfer of the Cave House property to Taylor.

[61]PSDL held an AGM on 19th February 2007 attended by Taylor, Felicity, Peter and Phillip Smith and Patricia Julien, among others. Wallbank J found that a draft minute was recorded and prepared but was never agreed as it is clear that relations between Taylor on the one hand and other shareholders (if perhaps not all of them) had deteriorated badly. Wallbank J referred to that AGM and stated that it was fundamentally clear that the business or affairs of PSDL are or have been carried on and conducted in a manner which at least unfairly disregards the interests of the respondents and the directors who were elected at the Annual General Meeting of 19th February 2007. Taylor brushed aside those directors’ election and pushed through transactions that would suit his personal ends; the manner in which that was done was literally oppressive.

[62]There was the board meeting of 7th November 2007 attended by Taylor and Felicity. Phillip and or Peter Smith and Patricia Julien were absent. The minutes contained an explicit statement by Taylor that these absent persons had previously been elected as directors. Wallbank J (Ag.) stated that it is not clear why they were absent or whether they had been given notice of the meeting. At that meeting a decision was taken by Taylor and Felicity to appoint Messrs Pannell Kerr Foster to act as Company Secretary until the next AGM. The respondents claim that the appointment was invalid because Felicity was by then not a director. Wallbank J (Ag.) stated that quite apart from any irregularity relating to Felicity’s status as a director, according to the minutes of the board meeting of 7th November 2007, signed on 10th April 2008, PSDL’s secretary was from then on not Henry Joseph but Messrs Pannell Kerr Foster. Yet Felicity executed the deed of transfer in respect of the Cave House property on 18th April 2008, in the presence of Henry Joseph as secretary. There is nothing on the face of the deed to indicate that Henry Joseph was signing on behalf of Messrs Pannell Kerr Foster.

[63]Wallbank J (Ag.) noted that the next AGM after the one of 19th February 2007 was called for 8th July 2011 and found that there was a clear breach of article 48 of the Articles of Association which provides that not more than 15 months were to elapse between AGMs. By article 51, twenty one clear days were required to be given to shareholders; the notice appeared to have been given one day less. It was unclear whether the AGM went ahead. It was boycotted by the respondents. No minute had been put in evidence. Taylor’s own spreadsheet record of all directors’ and shareholders’ meetings recorded no attendees.

[64]Wallbank J’s conclusion that the governance of PSDL had become completely dysfunctional was not a finding based solely on the absence of an AGM. As shown above, there were a variety of factors supporting the rationality of that finding.

Section 242(1) of the Companies Act

[65]I now deal with the issue of whether the judge failed to consider adequately or at all section 242(1) of the Companies Act, which would have required him to consider evidence of approval of the shareholders of the impugned transfer of the Cave House property to Taylor. Section 242(1) provides that an application made or an action brought or intervened in under this part, may not be stayed or dismissed by reason only that the alleged breach of a right or duty owed to the company or its subsidiary has been or might be approved by the shareholders of the company or its subsidiary, but evidence of approval of the shareholders may be taken into account by the court in making an order under section 240, 241 or 377.

[66]The matter of shareholder approval was addressed by Wallbank J (Ag.) and as such the complaint is not valid. The learned judge accepted Felicity’s evidence that the reason for referring the proposal to the shareholders was for them to vote on it. He found as a fact that there was no evidence that the shareholders agreed to the proposal. Wallbank J (Ag.) referred to the AGM held on 19th February 2007. He found that a draft meeting was recorded and prepared but was never subsequently agreed as it was clear that the relationship between Taylor and other shareholders (if perhaps not all of them) had deteriorated badly. The Cave House property is recorded in the draft minute as being raised and discussed. It records that ‘Shareholders voiced their strong objection to LT’s plan for the Company to give him the Cave House in recognition of his service to the Company’. It went on to state that ‘LT made himself abundantly clear by stating, ‘I don’t give a f*** what you lot think, I’ll do what I bloody well like’ ‘. No agreement in respect to the Cave House property was mentioned. At trial Taylor did not say any agreement on this issue had been reached at the AGM.

Remuneration – Judge’s Approach

[67]Mr. Mitchell complains that Wallbank J (Ag.) fell into error and completely failed to consider and treat with the issue that the remuneration of the managing director - Taylor - was a matter exclusively for the directors of PSDL and not its shareholders or PSDL itself in general meeting. He submits that the directors were empowered to remunerate Taylor as they saw fit. Further, the exercise of such power is not part of the business of the company and is exercisable in accordance with article 96 of the Articles of Association and section 104 of the Companies Act.

[68]Mr. John agrees that article 96(b) provides for remuneration of directors for services rendered but disagrees that further power can be arrogated under section 104 of the Companies Act, as that section expressly subjects itself to the Articles of Association. Mr. John submits that the directors of PSDL were never empowered to remunerate their numbers as they saw fit but only in accordance with article 96, which article was exclusive of section 104 of the Companies Act. Mr. John also submits that article 96 did not permit the directors of PSDL to remunerate Taylor by conveying the property purportedly conveyed. It did not include remuneration by company lands.

[69]Wallbank J (Ag.) took the view that he did not have to decide the point of whether the directors were authorised to fix Taylor’s remuneration as managing director; and whether the directors could agree to settle his claim with PSDL by resolving to transfer the Cave House property to him. Mr Mitchell submits that, in refusing to decide the issue, the judge fell into error and failed to appreciate that the directors of PSDL (Felicity, Julien and Paula Williams) at the relevant time had cogent reasons as directors to resolve to settle the account of PSDL with Taylor by conveying the Cave House property to him in exchange for extinguishing his claim for remuneration against PSDL.

[70]Mr. Mitchell asserts that the judge’s error was fundamental to his reasoning, as it led him to conclude that the company was giving away part of the real estate assets to the appellant, thus reducing its assets and affecting its financial results and that the net effect of this was that the transfer of the Cave House property was prejudicial to the respondents because it diminished the assets of PSDL.

[71]In addressing this matter, it is useful to bear in mind that the task of the appellate court is not to retry the case but rather to review the judgment of the court for error. Wallbank J (Ag.) approached the matter by deciding whether the board of PSDL had agreed to the transfer of the Cave House property rather than deciding whether the directors were authorised to fix Taylor’s remuneration as managing director; and whether the directors could agree to settle his claim with PSDL by resolving to transfer the Cave House property to him.

[72]In my view, Wallbank J (Ag.) adopted a pragmatic approach in dealing with the matter that way. This approach was one of judgment and was clearly open him. It was not perverse. There is no requirement for a judge to identify and explain every factor which weighed in his appraisal of the evidence.24 The issues, the resolutions of which were vital to the judge’s conclusion should be identified and the manner in which he resolved them explained. The judge must say enough to show that care has been taken and that the evidence as a whole has been properly considered. Which points need to be dealt with and which can be omitted itself requires an exercise of judgment.25

[73]In my judgment, Wallbank J’s approach was really a matter of judgment. He did not err in his approach neither was it unreasonable. I am driven by the critical finding of fact, that there was no agreement and no resolution by the board to convey the Cave House property. Having found that there was no agreement by the board to so convey, a finding open to him on the evidence, the other issues naturally fell away. Simply put, deciding whether or not the directors were authorised to fix Taylor’s remuneration as managing director or whether they could agree to settle his claim, or whether or not good reasons existed to convey the property, could not trump a finding that there was no board agreement to so do. Further there is no reason to conclude that the learned judge was not seised of the cogent reasons relied on by Taylor. In my view, the learned judge cannot be properly criticised for deciding to approach the matter the way he did.

Cave House Valuation

[74]Wallbank J (Ag.) noted that the Cave House property was being transferred to Taylor in consideration for services rendered but found that neither the land nor the services rendered were professionally or independently valued. The bases for so finding were that the valuation of the Cave House property was requested orally by Taylor. In any event, the services rendered were not professionally and independently valued. The level of compensation was provided by Pannell Kerr Foster, PSDL’S auditor, and as a result of the close working relationship between the auditors and Taylor, he could not treat the auditors as independent.

[75]Mr. Mitchell argues that the judge’s reasoning is flawed on the grounds that he failed to appreciate that Taylor did not request a specific valuation of the property to suit his whims. The valuation reports were comprehensive reports of all the lands or real estate of PSDL and comprised three reports, one of which was specific to the Cave House property. The reports were expressed to be the independent opinion of the valuator.

[76]Mr. Mitchell submits that rejecting the reports as not being independent merely because Taylor requested their preparation by the valuator is baseless as there was no evidence before the judge that the valuator was not independent. Learned counsel further asserts that given that Taylor was the managing director, it begs the question who else could have requested the valuation of the assets of PSDL, and the same point is applicable to the valuation of Taylor’s services. Counsel argues that Wallbank J (Ag.) failed to appreciate the context pertaining to the valuation of Taylor’s services. The valuation was undertaken in response to the respondents’ assertion that the value of the Cave House property exceeded the value of the services rendered by Taylor over the years.

[77]Mr. John seeks to uphold the judge’s finding of want of independence. He noted Taylor’s claim that the Cave House property was taken in part for past services rendered, salaries due and for growth in the value of PSDL. Counsel found it interesting that Taylor provided no evidence for his claim to having received no salary for the period under review. The accountant’s letter indicates that the calculation of $1,078,222.00 for unpaid salaries as at 7th November 2006 was based on a premise that no salaries were received during the review period. This valuation was three years after the Cave House property was purportedly conveyed to Taylor.

[78]Mr. John made reference to the valuation of the Cave House property by Raphael Stephen in May 2007, amounting to EC $1,664,800.00. Mr. John pointed out that barely two years after Taylor got the Cave House property, he sold a lot therefrom measuring 5,392 square feet for US$107,840.00. Regarding Mr. Mitchell’s criticism that Wallbank J (Ag.) failed to appreciate that Taylor did not request a valuation of the Cave House property to suit his whims, Mr. John points out that Raphael Stephen’s valuation came six months after the impugned board decision of November 2006 to convey the property to Taylor.

[79]I recognise the force of the matters stated by Mr. John and I accept them. Coupled with that, the combination of facts that the terms of reference were orally given by Taylor, there being no telling what these instructions were and what guided the valuation; the valuation produced, and the fact that the valuator was working specifically for Taylor, lead to a conclusion of want of independence, particularly when one considers the price at which Taylor was able to sell a mere 5000 square feet lot, in a short period after the valuation. Given the circumstances, it was open to the learned judge to question the independence of the valuator, and a sufficient basis existed to support Wallbank J’s finding of want of independence.

Oppressive Relief

[80]Mr. Mitchell takes issue with the order made by Wallbank J (Ag.) and complains that the vast majority of the order concerned reliefs that were never sought by the respondents nor did they relate or pertain to the actual relief sought; specifically referring to sub-paragraphs 5 to 25 of the order.

[81]Mr. Mitchell argues that Wallbank J (Ag.) simply went too far and none of the reliefs granted were required to address the specific complaint made, and asserts that the judge failed to address the oppressive relief in accordance with the approach set out by the Privy Council in Galantis v Alexiou & another (Bahamas).26 Mr. Mitchell accordingly submits that the order should be set aside as there was no evidentiary or legal basis in support thereof.

[82]Mr. John disagrees that Wallbank J (Ag.) went too far with respect to relief granted in the order at paragraph 90(5) to (25) of his judgment. He submits that each case is to be treated on its own facts and merits, and the order demonstrates that the learned judge considered the facts of the case; what Taylor did; what was required to put matters right; and pre-empted a repetition of the same by him. Mr. John contends that the learned judge does not take anything from Taylor other than the oppression instrument. His right to remain director for life is taken away; his right to be a director is not. Taylor is ordered to transfer his shares to PSDL for consideration. The shares are not taken away from him. Wallbank J (Ag.) left room for Taylor to acquire land as payment for his shares and was given an opportunity of a choice of valuator to determine the total net payment to him following acquisition of his shares.

[83]Mr. John referred to Chemtrade Ltd v Fuhs Oil Middle East Ltd et al27 at paragraph 33, in which Mitchell JA stated that the court has a wide discretion to do what is considered fair and equitable and that buy-out orders or purchase orders are commonly made. The judge is called upon to put right, and cure for the future the unfair prejudice which the claimant has suffered at the hands of the other shareholder of the company. Further, the judge has an unfettered discretion in fashioning a remedy covering not only the specific matter complained of but to bring an end to prospective conflicts.

[84]The jurisdiction regarding the grant of relief for oppression, unfair prejudice or unfair disregard of interests, resides in section 241 of the Companies Act of Grenada but has its provenance in equitable principles. As stated in re Stanford International Bank Ltd (In liquidation) (Acting by and through its Joint Liquidators Mark McDonald and Hugh Dickson) (Antigua and Barbuda),28 at paragraph 26, the essential basis of the remedy for oppression or unfairly prejudicial conduct, is derived from principles of equity. The relief is conferred on essentially broad discretionary and equitable principles. The Companies Act confers a wide power to do what is just and equitable.

[85]Under the rubric ‘Oppression restrained’, section 241 of the Companies Act of Grenada creates a special procedure for the purpose of restraining oppression. It permits the court to intercede in the internal affairs of the company in order to rectify the matters complained of. Section 241(1) permits an application to the court for an order against a company or an officer or director of that company to restrain oppressive action. Where there is oppression, unfair prejudice or unfair disregard of the interest of ‘any shareholder or debenture holder, creditor, director or officer of the company’, subsection (2) empowers the court to make an order rectifying the matters complained of. Subsection (3) provides that in connection with an application, the court may make any interim or final order as it seems fit. It then sets out a non-exhaustive list of possible orders.29

[86]Any order made under section 241 exists only to rectify the matters complained of as provided by section 241(2). The purpose of the oppression remedy is therefore corrective. In seeking to redress inequities between private parties, the oppression remedy seeks to apply a measure of corrective justice.30

[87]In language which aptly describes the Companies Act of Grenada, the Supreme Court of Canada in Wilson v Alharayeri,31 in addressing the kindred provision (section 241) of the Canada Business Corporation Act, described section 241 as providing a statutory means whereby corporate stakeholders may gain redress for corporate conduct which has one of the effects described in section 241(2). The section serves as a judicial brake against abuse of corporate powers, particularly, but not exclusively, by those in control of a corporation and in a position to force the will of the majority on the minority. Section 241 enables the court to intercede in the affairs and operation of a corporation and to effectively override the decisions of those charged with the responsibility of corporate governance.32

[88]As stated earlier, section 241(3) provides a non-exhaustive list of orders that the court may make to rectify the matters complained of, including an order : (i) restraining the conduct complained of; (ii) appointing a receiver or receiver-manager; (iii) to regulate the companies affairs by amending its articles or By-laws or creating or amending a unanimous shareholder agreement; (iv) directing an issue or exchange of shares or debentures; (v) appointing directors in place of, or in addition to, all or any of the directors then in office; (vi) directing a company, subject to subsection (6), or any other person, to pay to a shareholder or debenture holder any part of the monies paid by him for his shares; (vii) varying or setting aside a transaction or contract to which a company is a party, and compensating the company or any other party to the transaction or contract; (viii) requiring a company, within a time specified by the court, to produce to the court or an interested person, financial statements in the required form or an accounting in such other form as the court may determine; (ix) compensating aggrieved persons; (x) directing rectification of the register or other records of a company under section 244; (xi) winding up or dissolving the company.

Judge’s Order

[89]Having found that the conduct the respondents complained of amounted to ‘oppression’, ‘unfair prejudice’ or ‘unfair disregard’ of relevant interests pursuant to section 241, Wallbank J (Ag.), in the exercise of his discretion to restore a more equitable balance and prevent further oppression, proceeded to make the order which Taylor seeks to set aside. The first four paragraphs of the order were the setting aside of the deeds of conveyance and rectification of the records at the Deeds and Land Registry in respect thereof; for Taylor, at his own expense, to restore possession to PSDL of all of the lands purportedly conveyed to him by the said deeds; a final injunction prohibiting Taylor from conveying or charging in any way any part of the lands purportedly conveyed to him and for Taylor to account to PSDL for all proceeds of sale of the land purportedly conveyed to him.

[90]There were several other aspects of the order (from paragraph 90, sub-paragraph (5) of the judgment). Wallbank J (Ag.) ordered: the board of directors of PSDL as of the date of the judgment to be Taylor, Felicity, Phillip Smith, with Peter Smith as his alternate, and Patricia Julien, being also named as its secretary; save as by resolution or agreement of the board, that Taylor be immediately prohibited from making payments from PSDL’s bank account; Taylor was prohibited from voting on any such resolution or agreement; Taylor to fully cooperate with the other directors to constitute one or more of them signatories to PSDL’s bank accounts, with sufficient mandate to operate the accounts without his signature.

[91]Article 74 of the Articles of Association was amended deeming the directors for the time being to retire, subject to re-election each year on the date of the AGM, save as is provided by articles 77 and 78. Article 78 was also amended to delete the words ‘die, or’ to now read: ‘Provided that Leon Taylor shall be the first Managing Director of the Company and he shall hold office until he resigns, retires or is deemed to retire pursuant to Article 74 hereof or ceases to hold shares in the Company’.

[92]Taylor was to forthwith transfer to PSDL and PSDL to forthwith re-acquire, his shareholding in PSDL and for Taylor to be compensated for the value of his shares, to the extent permitted by the Companies Act, in particular section 39. PSDL’s obligation to compensate Taylor shall stand as a liability of PSDL to him and not by way of consideration for the transfer and re-acquisition. PSDL at its election may discharge this liability in cash or by way of transfer of land; in the case of land PSDL shall ensure that Taylor receives the same equivalent net value as if he were to be paid cash. PSDL shall be entitled to select which lot or sub- division it will transfer to Taylor.

[93]The order contained several provisions with respect to valuation: the value of the total net payment due to Taylor following the transfer and reacquisition of Taylor’s shares was to be determined by a professional valuer to be agreed upon by Taylor and the respondents; the valuation shall treat the land by which Taylor is bound by the judgment to return to PSDL, as part of the assets of PSDL; the valuation shall state the net amount due by PSDL to Taylor and then value of PSDL’s land.

[94]Mr. Mitchell argues that the judge should have considered whether the decision to transfer the Cave House property was properly attributable to Taylor vis a vis, the other directors of PSDL, Felicity and Paula Williams and the company PSDL itself, in keeping with the principle that in the particular circumstances of the case the oppressive conduct must be attributable to the director and the imposition of personal liability must be fit as a means of rectifying the harm done.

[95]Mr. Mitchell posits that Taylor did not vote on the proposal to transfer the Cave House property, although he made the proposal to the Board of PSDL and the Board approved the proposal. I must point out that Taylor could not have voted on the proposal as the learned judge rightly found. Further, the judge found as a fact that there was no agreement or resolution to transfer the Cave House property.

[96]While recognising that there was some personal benefit to Taylor by the transfer of the Cave House property, Mr. Mitchell submits that the oppressive conduct could not have been attributed to Taylor himself or alternatively, would have been attributable to the directors of PSDL - Felicity and Paula Williams or PSDL itself. Mr. Mitchell also contends that the learned judge failed to engage in a careful analysis of whether the orders he was imposing on Taylor was fair or proportionate to him or to the directors of PSDL or to PSDL itself. In my view, none of these points have merit having regard to the findings and reasoning of the learned judge. Further, section 241 provides remedies against individuals, including directors and officers, thus recognising that the rectification of harm done to corporate stakeholders by corporate abuse may necessitate an order against individuals through which a company acts.

[97]To the extent that the section contemplates that individuals will bear the remedial burdens flowing from the oppressive exercise of corporate powers, section 241 takes a different approach to assigning responsibility for corporate conduct than does the common law. The section permits the court to address the harm done by the conduct described in section 241 from a broader perspective than that permitted by a simple inquiry into the identity of the actor.33

[98]The oppression remedy is equitable. It seeks to ensure fairness - what is just and equitable. The remedy focuses on harm to the legal and equitable interests of a wide range of stakeholders affected by oppressive acts of a corporation or its directors. This remedy gives a court a broad jurisdiction to enforce not just what is legal but what is fair. Oppression is also fact specific: what is just and equitable is judged by the reasonable expectations of the stakeholders in the context and in regard to the relationships at play.34

[99]Where a person seeks a remedy against a director or officer personally under section 241, it is not accurate to suggest that the claimant is attempting to circumvent the principles with respect to personal liability of directors and officers. On the contrary the claimant is not alleging that he was wronged by a director or officers acting in his or her personal capacity, but is asserting that the corporation, through the actions of the directors or officers has acted oppressively and that in the circumstances it is appropriate (fit) to rectify the oppression by an order against the directors or officers personally.35

[100]Sparling v Royal Trustco Ltd,36 demonstrates that actions of directors which are properly described as corporate conduct may render directors and or the corporation liable under the oppression provisions. The attribution of the conduct to the corporation does not forego a remedy against directors personally. The court also warned about overlaying restrictive common law principles on the broad statutory language of section 241.

[101]Pursuant to section 241 Wallbank J (Ag.) enjoyed a wide discretion not only as to the content of the remedial order but also as to the person or persons against whom any such order should be made. Further, the exercise of discretion whether to impose a liability under section 241 is inextricably linked to the particular facts of each case.37

[102]In Wilson v Alharayeri, the Supreme Court of Canada reaffirmed that a director of a corporation can be personally liable in an oppressive action. Cote J emphasised that before personal liability can be imposed on a director, not only must the oppressive conduct be properly attributed to him, but the imposition of personal liability must be fit in all the circumstances as a means of rectifying the harm done, as determined in the leading case of Budd v Gentra Inc.38 Cote J stated that the case law has distilled at least four general principles that should guide courts in fashioning a fit order under section 241(3). The question of director liability cannot be considered in isolation from these general principles.39

[103]First, the oppression remedy request must, in itself, be a fair way of dealing with the situation. It may be fair to hold a director personally liable where he or she has derived a personal benefit in the form of either an immediate financial advantage or increased control of the corporation, breached a personal duty or misused corporate power or where a remedy against the corporation would unduly prejudice other security holders. These factors merely represent indicia of fairness. The presence of a personal benefit or bad faith remains hallmarks of conduct attracting personal liability but, like the other indicia, does not constitute necessary conditions. The principle of fairness has to be assessed in light of all the circumstances of a particular case.

[104]Secondly, any order made should go no further than necessary to rectify the oppression. Thirdly, the order may serve only to vindicate the reasonable expectations of security holders, creditors, directors or officers in their capacity as corporate stake holders. Fourthly, the court should consider the general corporate law context in exercising its remedial discretion under section 241(3).

[105]Wallbank J (Ag.) provided compelling reasons supportive of his determination of the matter. In his view, it was abundantly clear that the business affairs of PSDL are and have been carried on and conducted in a manner which at the very least unfairly disregards the interests of the respondents’ shareholders and directors who were elected at the AGM on 19th February 2007. The manner in which Taylor brushed aside those directors’ election and pushed through transactions that would suit his own personal ends was literally oppressive. He stated that the fundamental root of the difficulties in this case is that Taylor has become afflicted with self-serving relativism. He has been allowed to act as his own judge and jury for many years and has persuaded himself his decisions were justified. Where meeker souls disagreed with what he wanted, he bulldozed through his will.

[106]Wallbank J (Ag.) reasoned at paragraph 86 of his judgment that it was obvious that whilst Taylor continues as managing director for life and remains able to vote his shares, he can continue to have his way with the company. In that regard, merely to unwind the two land transactions and issue an injunction preventing a repetition does not cure the problem. It is inevitable that unless another solution was imposed, PSDL would be a prime candidate for compulsory liquidation. On the other hand, if managed properly and in accordance with the requirements of its Articles of Association and company law more generally, it could have a profitable future. It would appear to be in the best interest of PSDL that Taylor cease to be its managing director for life and for his tenure to be subject to election by the shareholders. It would also be in the best interest of PSDL if its governing bodies and persons should no longer be subject to his dictatorship. In any event, he wishes to leave PSDL.

[107]The reasoning of Wallbank J (Ag.) is unimpeachable. He properly exercised his discretion in making the orders. The order went no further than was necessary to rectify the oppression, unfair prejudice and disregard of interests. Wallbank J (Ag.) engaged in a fact sensitive contextual inquiry, looking at business realities not merely narrow legalities.40 The learned judge would have considered the general corporate law context in exercising his broad discretion as to the appropriate relief. The intercession in the affairs of PSDL was geared towards remedying the existing unfairness and oppression. The learned judge had wide discretionary powers and exercised them judicially and fairly, and framed an order which in his wisdom was appropriate and equitable.

[108]No issue can be taken with his imposition of personal liability on Taylor as the necessary conditions for such imposition existed. His Lordship would have been cognisant that section 241 of the Companies Act enabled a court to make orders binding a company, even where the company is not a party to the claim. It has not been demonstrated that the learned judge committed no error in principle or the remedy he imposed was otherwise unjust. There is no basis for appellate interference.

[109]For all the reasons stated the appeal is dismissed and the orders made are affirmed.

The Counter-Notice of Appeal

[110]With respect to the counter-notice, Wallbank J (Ag.) referred to the problematic nature of Felicity’s status as a director. He noted that the draft minute for the AGM of 19th February 2007 was silent on her resignation and election. Further, the Articles of Association does not say how a director who does not retire is to be treated. Wallbank J (Ag.) noted the respondents’ reliance on Morris v Kanssen and others,41 focusing on how acts of a person who is not validly appointed should be treated and noted that in Morris, the prior directorships had expired. Wallbank J (Ag.) was persuaded by Mr. Mitchell’s reliance on a passage from Halsbury’s laws of England,42 that where the directors are due to retire and no valid appointment of new directors have been made, the acting directors as a rule are qualified to act, if the Articles of Association do not provide otherwise. He noted that the Articles of Association do not, and he accepted this as the operative proposition.

[111]Wallbank J (Ag.) found that given the factual circumstances of the case, it would have been inconceivable for either Taylor or Felicity not to ensure her [Felicity’s] re-election. Further Wallbank J (Ag.) was persuaded that both Taylor and Felicity, in good faith assumed that Felicity’s directorship continued. He accordingly considered it fair to order and declare, pursuant to section 241 of the Companies Act, that Felicity is a director of PSDL as at the date of his judgment.

[112]Wallbank J (Ag.) reasoned how he arrived at his decision and dealt with the matter in a way he considered fair, paying regard to the circumstances of the case. His order was also within the plenitude of power conferred by section 241. I see no basis to set the order aside. The counter-notice is accordingly dismissed.

[113]On the issue of costs of the counter–notice, it was not unreasonable for Mr. John to have taken the point with respect to Felicity’s status as a director. Wallbank J (Ag.) himself found it to be problematic. Sitting back and looking at the case globally, this is not a case where costs should be awarded on the counter- notice.

Order

[114]It is ordered that: (i) the appeal is dismissed and the appellant is to pay costs of the appeal to the respondents of 2/3 of the prescribed costs of $113, 649.00 awarded in the court below, and (ii) the counter-notice is dismissed with no order as to costs. I concur. Gertel Thom Justice of Appeal I concur.

Mario Michel

Justice of Appeal

By the Court

Chief Registrar

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL GRENADA GDAHCVAP2016/0019 BETWEEN: LEON O. TAYLOR Appellant and

[1]WILFRED JULIEN

[2]ANNETTE SMITH

[3]CARMEN JULIETTE SMITH

[4]PETER SMITH

[5]PHILLIP SMITH

[6]DAPHNE ANN VIDAL

[7]DAPHNE ANN VIDAL (Executrix of the Estate of Charles David Williams, substituted for Charles David Williams by order of Madam Justice Clare Henry, dated January 25, 2013)

[8]MICHAEL JULIEN

[9]PATRICIA JULIEN Respondents Before: The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal The Hon. Mde. Gertel Thom Justice of Appeal The Hon. Mr. Mario Michel Justice of Appeal Appearances: Mr. Dickon A. Mitchell, Mrs. Crystal Braveboy-Chetram and Ms. Skeeta Chitan for the Appellant Mr. Alban M. John, and Ms. Vern Ashby for the Respondents 2020: October 14; 2021: May 18. Civil Appeal — Company law — Sections 241 and 242 of the Companies Act — Exercise of directorial powers — Oppressive conduct by director — Whether the learned judge misapprehended the nature of the claim by wrongfully treating it as an oppressive claim and in particular, one in which the general affairs of PSDL was being conducted in an oppressive manner — Whether the learned judge erred in his findings of fact so as to warrant appellate interference — Whether the learned judge’s order contravened the established legal principles which circumscribe the amplitude of orders made under section 241 of the Companies Act to what is necessary to rectify the grievance complained of — Whether Felicity was a duly qualified director despite not having resigned or been re-elected and was therefore authorised to execute the impugned conveyances Leon O. Taylor (“Mr. Taylor”) was instrumental in establishing Pointe Salines Development Limited (“PSDL”) in 1966 as a holding company for approximately 200 acres of land. PSDL was in essence a family company. Mr. Taylor became its managing director from incorporation and was the largest voting shareholder at 50.1%. Conveyances were made; between PSDL and Mr. Taylor, namely, a deed of conveyance dated 18th April 2008 – described as a deed of gift – in respect of a property known as the Cave House property, the effect of which was to dispose to Mr. Taylor 1 acre 2 roods and 6 poles of land as a reward to him for his services to PSDL rendered between 1967 and 1985 and as a ‘special reward’. The second transaction, reflected in a deed of conveyance dated 4th June 2010, was a deed of exchange whereby Mr. Taylor returned lands to PSDL that he had obtained by the deed of gift, and in exchange PSDL conveyed other lands to Mr. Taylor. the minority shareholders of PSDL, the respondents to this appeal, brought a claim in the court below contending, among other things, that the conveyances were void in law as they were wrongly executed by Felicity Julien (“Felicity”) as director of PSDL, who had ceased to be a director effective 19th February 2007. They also asserted that the exercise of directorial powers by Mr. Taylor and Felicity, resulting in the transfer of the Cave House property and the circumstances attendant upon that transfer, were oppressive and contravened the Companies Act of Grenada. Further, the conveyance of the Cave House property to Mr. Taylor as remuneration for his services to PSDL was wrong, since remuneration in section 104 of the Companies Act, does not include the transfer of real property; and there was no valuation of the Cave House property so as to determine whether proper consideration was given for the transfer. The respondents sought declaratory, injunctive and other reliefs. Mr. Taylor contended, among other things, that the decision of the board of directors of PSDL to convey the Cave House property to him for services rendered to it as managing director from 1966 did not constitute oppressive conduct within the meaning of section 241 of the Companies Act and as such there was no basis upon which the court should grant relief thereunder. He also contended that the issue of the managing director’s remuneration was for the directors of PSDL and did not require shareholder agreement or approval, subject to PSDL’s Articles of Association. He also argued that the term remuneration was not restricted to monies or cash and extends to real property. The learned judge was satisfied that the oppressive remedy regime under the Companies Act was engaged and the grounds set out in section 241(2) were satisfied so as to trigger the court’s jurisdiction pursuant to subsection (3). The learned judge accordingly made a whole range of orders in the exercise of his discretion to put matters right and to restore a more equitable balance and prevent further oppression. Being dissatisfied, Mr. Taylor filed several grounds of appeal. The critical issues arising from the appeal can be summarised as: (i) did the learned judge misapprehend the nature of the claim by wrongfully treating it as an oppressive claim and in particular, one in which the general affairs of PSDL were being conducted in an oppressive manner?; (ii) did the learned judge err in his findings of fact, so as to warrant appellate interference?; (iii) did the judge’s order contravene the established legal principles which circumscribe the amplitude of orders made under section 241 of the Companies Act to what is necessary to rectify the grievance complained of? The respondents also filed a counter-notice seeking an order that Felicity was not duly authorised to sign the conveyances at the time of execution as she was not a duly qualified director. They also sought the setting aside of so much of the judgment as held that Felicity remained a duly qualified director, having so continued despite not having resigned or been re-elected and was therefore authorised to execute the impugned conveyances. Held: dismissing the appeal and ordering the appellant to pay costs of the appeal to the respondents of 2/3 of the prescribed costs of $113,649.00 awarded in the court below; dismissing the counter-notice with no order as to costs, that:

[10]Mr. Mitchell avers that the respondents’ case was limited to seeking declaratory relief that the transfer of the Cave House property to the appellant should be set aside on the bases that (i) at the time of the execution of the instruments effecting the transfer to the appellant, the signatories were not a director and company secretary respectively of PSDL; (ii) the appellant provided no consideration for the transfer; (iii) remuneration for his services to PSDL as managing director was not remuneration within the meaning of section 104 of the Companies Act and did not include the transfer of real property; (iv) there was no valuation of the Cave House property so as to determine whether proper consideration was given for the transfer to the appellant; and (v) the exercise of the directorial powers by the appellant and Felicity at a Board of Directors meeting on 11th November 2006, where the decision was taken to convey the Cave House property to the appellant, was oppressive and contravened section 241 of the Companies Act.

[11]Mr. John, the respondents’ counsel, filed a counter-notice seeking an order that Felicity was not duly authorised to sign the conveyances at the time of execution as she was not a duly qualified director. He also sought the setting aside of so much of the judgment as held that Felicity remained a duly qualified director, having so continued despite not having resigned or been re-elected and was therefore authorised to execute the impugned conveyances. Save for the counter-notice filed, Mr John propounded in favour of the rectitude of the judge’s reasoning and orders and invites this Court to dismiss the appeal and find in favour of the counter- notice. Grounds of Appeal

[3]The respondents contended, among other things, that the conveyances were void in law as they were wrongly executed by Felicity Julien (“Felicity”) as director of PSDL who had ceased to be a director effective 19th February 2007. They also asserted that the exercise of directorial powers by Taylor and Felicity, resulting in the transfer of the Cave House property and the circumstances attendant upon that transfer, were oppressive and contravened the Companies Act of Grenada. Further, the conveyance of the Cave House property to Taylor as remuneration for his services to PSDL was wrong, as remuneration in section 104 of the Companies Act, does not include the transfer of real property; and there was no valuation of the Cave House property so as to determine whether proper consideration was given for the transfer.

[12]The grounds of appeal can be summarised as follows: (i) Did the learned judge err in treating the claim as an oppressive claim under section 241 of the Companies Act and accordingly deny Taylor the opportunity of addressing him in relation to the majority of the orders made? (Grounds 3.1 and 3. 2). (ii) Was the judge’s finding of fact that Felicity Julien and Paula Williams did not agree, therefore, there was no agreement and no resolution passed at the board meeting of 11th November 2006 for Taylor to be granted the Cave House property, against the weight of the evidence? (Ground 3.5). (iii) Did the learned judge fail to consider adequately or at all section 242 (1) of the Companies Act which would have required him to take into account evidence of the approval of the shareholders of the impugned transfer of the Cave House property to Taylor and accordingly err in law? (Ground 3.3). (iv) Were the factual findings that Taylor administered PSDL from his own home; took the land as his exit plan from the company; exalted himself as the indispensable hard-working genius behind the growth and glory of the company who merited the compensation he has caused the company to dispense to him; and treated PSDL as his banker by taking a number of substantial cash advances from it, against the weight of the evidence? (Ground 3.4). (v) Were the factual findings that: (i) the land and services were not independently and professionally valued, perverse? (ii) PSDL had become completely dysfunctional, against the weight of the evidence? (iii) PSDL sought to give away its real estate assets to Taylor erroneous due to the judge’s failure to give sufficient weight to the fact that PSDL had cogent reasons for agreeing to settle Taylor’s claim? (Grounds 3.6, 3.7 and 3.8). (vi) Did the learned judge err with respect to the width of the relief he granted against Taylor by contravening the principle that the relief granted should go no further than is necessary to rectify the matters complained of?

[13]The critical issues arising from the appeal can be summarised as: Did the learned judge misapprehend the nature of the claim by wrongfully treating it as an oppressive claim and in particular, one in which the general affairs of PSDL were being conducted in an oppressive manner? Did the learned judge err in his findings of fact so as to warrant appellate interference? Did the judge’s order contravene the established legal principles which circumscribe the amplitude of orders made under section 241 of the Companies Act to what is necessary to rectify the grievance complained of?

[14]Except for the issues relating to the nature of the claim and the propriety and amplitude of the orders, the appeal largely challenges the factual findings of the judge. The findings engage issues relating to the judge’s evaluation of the evidence, inferences drawn, the weight of evidence and perversity. Nature of Claim / Pleaded Case

[7]Wallbank J (Ag.) was satisfied that the oppressive remedy regime under the Companies Act was engaged and the grounds set out in section 241 (2) were satisfied so as to trigger the court’s jurisdiction pursuant to subsection (3). The learned judge accordingly made a whole range of orders (recorded at paragraph 90 of his judgment) in the exercise of his discretion to put matters right and to restore a more equitable balance and prevent further oppression.

[15]The issues pertaining to the nature of the claim primarily require an examination of the pleaded case. An examination of the role of pleadings would also be in order. Paragraph 14 of the amended statement of claim states that the respondents aver and will contend at the trial that the exercise of directorial powers by the appellant and Felicity Julien at the meeting of 11th November 2006, where the decision was taken to settle the Cave House property on Taylor and all of the circumstances and exercise of powers resulting in the said conveyances in his favour were oppressive and in contravention of section 241 of the Companies Act. The respondents specifically sought a declaration that the circumstances and manner of the conveyances of 18th April 2008 and 4th June 2009 were oppressive and unfairly prejudicial to and disregards their interests as shareholders of PSDL or of the entity PSDL as a whole. Paragraph 8 of the Defence denies that Taylor or the directors acted oppressively and in contravention of section 241 of the Companies Act as alleged in paragraph 14 of the amended statement of claim.

[16]In paragraph 7 of their reply to defences, the respondents repeat paragraph 14 of the amended statement of claim and aver they will refer to paragraph 11.3 of the draft minutes of the 19th February 2007 Annual General Meeting (“AGM”) of PSDL to support their claim that the appellant acted oppressively in the running of PSDL and in particular, in the taking of the Cave House property.

[17]I now briefly examine the role of pleadings. It is important that the pleading must make clear the general nature of the case of the pleader. The whole point of pleading is to ensure that the essential elements of each party’s case are known to the other side and to the court. The statement of case ought, at the very least, to identify the issues to be determined. In that way the parties know the issues to which they should direct their evidence and their challenges to the evidence of the other party or parties and the issues to which they should direct their submissions on the law and the evidence. Equally, importantly, it enables the judge to keep the trial within manageable bounds and so that the judge knows the issues on which the proceedings, and the judgment, must concentrate. The statement of case plays an important role in civil litigation which should not be diminished.

[18]In similar vein, in Prudential Assurance Company Ltd v Revenue and Customs Commissioners, the court stated that the procedural system is an adversarial one and it is for the parties, subject to the control of the court, to define the issues on which the court is invited to adjudicate. This function is the purpose of the statement of case. The setting out of a party’s case in the statement of case enables the other party to know what points are in issue; what documents to disclose; what evidence to call and how to prepare for trial. It is inimical to a fair hearing that a party should be exposed to issues and arguments of which he has no fair warning.

[19]Having considered the pleaded case as well as the role and functions of pleading, it is certainly incorrect to assert that the respondents did not file or pursue an oppressive claim or seek oppression remedies under section 241 of the Companies Act. I agree with Mr. John that the claim broadly contemplated the running of PSDL as a whole, even though the specific focus was on the Cave House property. The respondents, however, clearly raised the issue of oppression, unfair prejudice and the disregard of their interests as shareholders or of the entity PSDL as a whole. Further, in the reply, the respondents specifically pled that the appellant acted oppressively in the running of PSDL and in particular by taking the Cave House property.

[20]In the circumstances, the argument that the learned judge misapprehended the claim or erred in treating it as an oppressive action under section 241 of the Companies Act cannot be accepted. The claim was properly dealt with as an oppressive one. The essential elements of the respondents’ case were known to Taylor and he had sufficient notice of the case that was being made against him. The argument that Taylor was exposed to arguments or issues of which he had no fair warning, also fails. Challenge to Findings of Fact

[21]Several findings of fact of the learned judge were challenged. The law pertinent to a challenge to factual findings is well settled. An appellate court should not interfere with the trial judge’s conclusion on primary facts unless satisfied that the finding of fact is plainly wrong. This applies to findings of primary facts, the evaluation of those facts and inferences to be drawn therefrom. The expression ‘plainly wrong’ was explained by the Supreme Court in Henderson v Foxworth Investments Ltd and another. The adverb ‘plainly’ does not refer to the degree of confidence the appellate court may feel that it would not have reached the same conclusion as the trial judge. It does not matter what degree of certainty the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one which no reasonable judge could have reached. The constraints relating to non-interference with findings of fact were recently summarised by the Supreme Court in Perry v Raleys Solicitors. The issue for the United Kingdom Supreme Court was whether the first instance judge had gone wrong in his decision on the facts to an extent which enabled the Court of Appeal to intervene. At paragraph 52, Lord Briggs said that the test is whether there is no evidence to support a challenged finding of fact, or that the finding was one which no reasonable trial judge could reach.

[22]A trial judge’s findings of fact should not be overturned simply because the Court of Appeal would have found them differently. It must be shown that the trial judge was wrong in the sense that he fundamentally misunderstood the issue or the evidence or that he plainly failed to take the evidence into account or that he arrived at a conclusion which the evidence could not on any view support. Within these broad limits, the weight of the evidence is a matter for the trial judge. There is a world of difference between the impression which evidence makes on a judge who has followed it as it was deployed and the impression that an appellate court derives from cold transcripts.

[23]There are powerful reasons for the Court of Appeal’s reticence in interfering with the factual findings of judges. It’s a matter of good sense. The trial judge has had the benefit of sifting through the evidence that has been led, assessing the witnesses and hearing and assessing their evidence as it emerges. A review of the judge’s findings is constrained by the circumstances that, usually, the initial fact-finder will have been exposed to a wider range of impressions that influenced a decision on factual matters than would be available to an appellate court. This involves, among other things, the initial impact of the testimony as it unfolds- did it appear frank, candid, spontaneous and persuasive or did it seem to be contrived, lacking in conviction or implausible? These reactions and experiences cannot be confidently replicated by an analysis of the transcript of the evidence. For this reason a measure of deference to the conclusions reached by the initial fact finder is appropriate. Unless the finding is insupportable on any objective analysis it will be immune from review.

[24]Being immersed in all aspects of the case, and able to test the evidence at first hand, the trial judge undoubtedly has advantages which the Court of Appeal does not have, where the focus is inevitably narrower. As Lewison JA reminds in Fage UK ltd v Chobani UK Ltd, in making his decision the judge has regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. The atmosphere of the courtroom cannot be re-created by reference to documents (including transcripts of evidence).

[25]In Sohal v Suri and another, at paragraph 6, Lady Justice Arden states as follows: “The judge does not have to make a finding on every disputed item of evidence. It is enough if he makes a finding on matters which he needs to be resolved before coming to his conclusion. Likewise, there is no obligation on the judge to make findings if, after having considered the matter conscientiously, he forms the view that it is not possible to make a particular finding.”

[26]Taylor challenges Wallbank J’s finding of fact that there was no agreement and no resolution passed at the directors meeting held on 11th November 2006 by the directors – Felicity and Paula Williams – to transfer the Cave House property to Taylor. Mr. Mitchell submits that this finding of fact is erroneous and unsupported by the evidence of Taylor and Felicity, the only two persons testifying on the issue. Further, that was not the respondent’s case.

[27]Mr. Mitchell submits that Wallbank J (Ag.) was wrong in simply ignoring the plain words and clear meaning of the minutes of 11th November 2006 that the board of PSDL, at the time comprising Paula and Felicity, approved Taylor’s proposal to convey the Cave House property to him. Mr. Mitchell posits that the minutes of 11th November 2006 states that the resolution was approved and, save for the protest letter of Paula, there was no suggestion that the minutes were incorrect or fraudulent. He also challenges the weight the learned judge gave to the protest letter.

[28]Mr. Mitchell relies on paragraphs 11 to 17 of Felicity’s witness statement which, as far as is material, states that the minutes of the meeting are an accurate record of the meeting and confirmed by the subsequent directors meeting in January 2007 which she attended. Paula was an active participant and did not object to the proposal to transfer the Cave House property; and decisions at directors’ meeting were always done by consensus. Mr. Mitchell also relies on Felicity’s evidence in cross-examination and the answers she gave in response to questions posed by the learned judge, to support his argument that Paula agreed to Taylor’s proposal to transfer the Cave House property.

[29]In his judgment, Wallbank J (Ag.) clearly reasoned how he arrived at his finding that there was no agreement and hence no resolution at the board meeting of 11th November 2006 and no evidence that PSDL’s board or, for that matter, the shareholders, otherwise agreed upon the proposal to convey the Cave House property. He noted that by November 2006, the board of PSDL comprised Taylor, Felicity and her sister, Paula. Wallbank J (Ag.) referred to the board meeting held on 11th November 2006 attended by Taylor as Chairman, Paula as director and Felicity as director and secretary. Minutes of the meeting were produced by Taylor a couple months after and a draft given to Felicity. Both Felicity and Taylor signed the draft; it was dated 9th January 2007.

[30]Part 9 of the minutes recount that Taylor wished to receive a ‘special reward’ for achieving great things for the PSDL and to remunerate him ‘for services rendered from 1967 to 1985’. Also, Taylor had never taken, but now wanted, the salary of $1,000.00 a month agreed upon at a directors’ meeting on 26th August 1968. The minutes also recount that PSDL was unable to ‘honour these obligations on a monetary basis’, consequently Taylor proposed to ‘purchase the cave house property’ so that ‘the matter could be settled’.

[31]Part 9 concluded that the board approved Taylor’s proposal and proposed to provide the shareholders the full disclosure of the facts which allows PSDL to settle its account with Taylor and to recognise his contribution. A copy of the minutes was delivered to Paula on 10th January 2007. She wrote a letter the following day to Taylor and Felicity stating, inter alia: “I did not agree to any payment or compensation to [Taylor] and felt that it was not in my power to casually approve any disbursement of the shareholders’ assets to him…I felt and still feel that [Felicity Julien] and I could not make this decision without consultation with all the shareholders since to grant [Taylor’s] request without prior consultation and approval would dissipate the value of the shareholders’ interest in [PSDL]. As Directors we have to safeguard the interests of the shareholders.” In the letter, Paula went on to question the accuracy of the minutes and opposed the decision stated as allegedly made therein in ‘so called agreement of the Board of Directors’.

[32]Annette, Juliette, Peter and Phillip Smith (the Smiths) likewise protested by letter dated 25th January 2007 to Taylor, noting that ‘It would appear that you [Taylor] act only in the best interests of L. Taylor. PSDL is a family company set up to benefit its owners. It has proved to be sadly unprofitable and has recently declined. All this under your management …’.

[33]By letter dated 16th January 2007, Taylor wrote back to Paula, countersigned by Felicity, stating that the proposal for the Cave House property was presented and discussed in detail and the minutes accurately represent the conclusion on the matter. The letter also stated that ‘the Board minutes state clearly that the proposal and the reasons for its acceptance are to be presented to Shareholders as requested by [Felicity].’ Wallbank J (Ag.) noted that the minutes did not state that the proposal was to be presented to shareholders, but rather, the Board’s alleged agreement. At trial, Taylor stated that the purpose of informing the shareholders was simply a matter of full disclosure and transparency. Felicity explained that the reason for referring the proposal to the shareholders was so that they could vote on it. Wallbank J (Ag.) accepted her evidence on that point.

[34]Wallbank J (Ag.) noted that on 9th November 2006, two days before the board’s meeting, Taylor wrote to the Smiths, copied to Felicity and Paula, outlining what would be decided at the board meeting. He made no mention that agreement would be sought concerning the remuneration plan. After the meeting but before the minutes were presented, Taylor wrote to Peter Smith on 8th December 2006 but did not state that the board had agreed to his proposal. In the last paragraph he pressed arguments in favour of his proposal. Wallbank J (Ag.) reasoned that this was strange, for if, as Taylor subsequently represented, the board had agreed the proposal and that was the end of the matter, why did he not simply say so? Wallbank J (Ag.) stated that Taylor was not a man to mince words. Further, Taylor could not properly vote on the proposal, either on the board level, nor if put to a vote of the shareholders. His proposal remained at the mercy of the other voting shareholders, so he had everything to gain by cajoling them to accept it.

[35]Wallbank J (Ag) referred to Taylor’s evidence at the trial that the purpose of informing the shareholders was simply a matter of full disclosure and transparency. The learned judge opined that the explanation offered was incongruent with Taylor’s lack of candour in his correspondence immediately before and after the board meeting, in which he did not frankly reveal his intentions for the meeting and in which he also did not say outright that the board had agreed to accept the proposal. Wallbank J (Ag.) contrasted Taylor’s evidence with Felicity’s evidence and stated that Felicity unhesitatingly explained that the reason for referring the proposal to the shareholders was so that they could vote on it. Felicity was very clear on that and the learned judge accepted her evidence.

[36]In arriving at his factual finding, Wallbank J (Ag.) placed reliance on Paula’s immediate protestation upon seeing the purported minutes that she did not agree to accept Taylor’s proposal; and that Felicity, the only other person who could vote on it at a Director’s meeting wanted the proposal to be referred to shareholder for them to vote on. In addition, Wallbank J (Ag.) further stated that, having read the correspondence from Taylor, heard his oral evidence and seen the demeanour of Taylor and Felicity, he found as a fact that there was no agreement, and hence no resolution at the board meeting on 11th November 2006 for Taylor to be granted the Cave House property. If there was some form of agreement between Felicity and Paula at that meeting to accept Taylor’s proposal it was conditional upon the shareholders’ approval. Wallbank J (Ag.) found that there were only two persons at the meeting who could agree – Felicity and Paula – and they did not. There was no resolution passed to approve the transfer to Taylor. There is no evidence that PSDL’s board, or, for that matter the shareholders, otherwise, agreed upon that proposal. I agree with the judge’s reasoning and conclusion. The evidence as a whole can reasonably be regarded as justifying the conclusion arrived at by the judge.

[37]A critical matter concerned the minutes of 11th November 2006 which Mr. Mitchell considered to be compelling evidence of an agreement by the directors to transfer the Cave House property to Taylor. Mr. Mitchell complained that Wallbank J (Ag.) had ignored the clear words of the minutes. That complaint, to my mind, is completely unjustified. There is no basis for saying that the judge ignored the clear words of the minutes. Fairness requires that a judge should deal with apparently compelling evidence, where it exists, which is contrary to the conclusion which he proposes to reach and explain why he does not accept it. In my view, Wallbank J (Ag.) did just that. Given the state of the evidence, it would have been improper for the learned judge to confine himself solely to the minutes in question. Wallbank J (Ag.) was obliged to consider, and his analysis reveals that he did consider, the whole sea of evidence and did not engage in impermissible island hopping.

[38]Having sat through the entire case, Wallbank J (Ag.) was very well positioned to appreciate how the evidence evolved and of course, the impact or impression it created upon him as the finder of fact. His ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case may be far deeper than that of the Court of Appeal whose view of the case is far more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged.

[39]As stated by Males LJ in Simetra Global Assets Limited and another company v Ikon Finance Ltd and others at paragraph 49, in a case where there are contemporary documents which appear on their face to provide cogent evidence contrary to the conclusion which the judge proposes to reach, it is very important that he must state why they are not to be taken at face value or are outweighed by other compelling considerations.

[40]The learned judge had regard to the objective facts and documents, the witnesses’ motive and to the overall probabilities. The judgment demonstrates why Wallbank J (Ag.) did not take the minutes in question at face value and how he found them outweighed by other compelling considerations. The words of Robert Geoff LJ in Armagas Ltd v Mundogas SA, The Ocean Frost, at page 757 are instructive: when considering the credibility of a witness, it is important to test their veracity by reference to the objective facts proved independently of their testimony, in particular, by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence, reference to objective facts and documents, to the witness’ motive, and to the overall probabilities can be of very great assistance to a judge in ascertaining the truth.

[41]In my judgment, Wallbank J’s finding of fact that there was no agreement and hence no resolution passed at the board meeting of 11th November 2006 for Taylor to be granted the Cave House property is unimpeachable. It cannot be seriously contended that that finding is against the weight of the evidence. It is a finding which was clearly open to the judge on the evidence. Wallbank J (Ag.) clearly reasoned how he arrived at that finding. He undertook an evaluative exercise which took into account an assessment of many factors including: the minutes of 11th November 2006; Paula’s strong protest letter the day after receiving the minutes in which she stated that she had not agreed to transfer the Cave House property to Taylor; and the fact that Felicity, the only other person who could vote on the proposal at a director’s meeting wanted it referred to the shareholders for them to vote on. Wallbank J (Ag.) noted Taylor’s lack of candour in his correspondence immediately before and after the board meeting in which he did not frankly reveal his intentions for the meeting and in which he did not say outright that the board had agreed to accept the proposal. It cannot be said that the learned judge erred in his finding of fact, nor can it be properly asserted that the impugned finding is one which no reasonable judge could have reached. In the circumstances, there is no basis for appellate interference. Weight of Evidence: Perversity

[42]Mr. Mitchell attacks the weight Wallbank J (Ag.) attached to Paula’s letter of protest. He submits that the learned judge ought to have taken the view that the letter was created and written by her son David Williams for her to sign with a view to discrediting the decision made to transfer the Cave House property to Taylor and was not an accurate reflection of Paula’s decision at the meeting of 11th November 2006. Mr. Mitchell asserts that in light of the judge’s opinion that the letter was likely not written by Paula but by her son David, he should have given little or no weight to it and ought to have concluded that the board of PSDL – comprising Felicity and Paula – resolved to convey the Cave House property to Taylor at the meeting of 11th November 2006.

[43]Wallbank J (Ag.) observed that Taylor and Felicity sought to dismiss Paula’s letter of protest as probably not written by her, but by her son. He thought that was likely given Paula’s advanced age and poor health at the time, but noted that they did not contest that Paula signed it. Paula also appeared to have initialled each page. Wallbank J (Ag.) stated that if she did not write it, she endorsed it.

[44]An appeal against the weight a judge attaches to evidence invariably faces difficulty. The weight of evidence is essentially a matter for the judge who has sat through the entire case and is immersed in all its aspects; he is aptly placed to test the evidence at first hand and his ultimate judgment reflects this total familiarity with the evidence. Weight is part of the evaluative process the judge undertakes in arriving at his finding. Being a contextual evaluation for the judge who reads, hears and sees the evidence of the witnesses, it is inappropriate for this Court to interfere with that evaluation unless it is perverse. The trial judge must consider all the material evidence although it need not all be discussed in his judgment. The weight he gives to it is pre-eminently a matter for him subject only to the requirement that his findings be such as might be reasonably made.

[45]Unless the judge’s evaluation can be demonstrated to be perverse, focusing on discrete parts of what is a holistic exercise to illustrate whether the judge did or did not get the evaluative exercise wrong, is hardly an attractive submission. The reason being that it usually descends into questions about the weight to be given to parts of the evidence which are matters for the court that hears and sees, the witnesses in context, an advantage the appellate court does not have.

[46]Perversity is a high hurdle. It is reaching a decision which flies in the face of reason or would cause there to be astonishing gaps to the objective observer: per Mr Justice Langstaff at paragraph 40 of The Queen on the Application of Johnson v Bristol Crown Court. Weight of evidence is always a matter of judgment. Judgment, unless it is perverse, is very difficult to appeal successfully: para 41. Findings which are soundly grounded in the evidence are not perverse. Perversity is always a difficult furrow for an appellant to plough.

[47]Wallbank J (Ag.) carried out an evaluative exercise which took into account many factors, including Paula’s letter. The correctness of the evaluation is not undermined by challenging the weight he has given to elements in the evaluation. It has not been shown that he was clearly wrong or reached a conclusion on the evidence he was not entitled to reach. Mr. Mitchell’s complaint does not approach the high hurdle which must be surmounted for a successful challenge. It was open to the judge to attach such weight to the letter as he considered necessary. There was no perversity. Mr. Mitchell has not identified an error in the factual evaluation of the judge of a nature and extent that vitiates his conclusion. In the circumstances, appellate interference is unwarranted.

[48]Wallbank J’s finding that the purported act of PSDL in giving away part of its real estate assets to Taylor reduced its assets and thus affected its financial result is challenged as being erroneous. The bases for the challenge are that he wholly ignored or failed to appreciate or failed to give sufficient weight to the fact that PSDL was presented with and had cogent grounds for agreeing to settle Taylor’s claim for remuneration from 1967 to 1985, for recognising his contribution to asset growth of the company and for making provisions for paying him in the form of the land transfer, a pension or gratuity. In my judgment, there is no basis for that challenge. The matters counsel referred to were clearly before the learned judge and there is no basis to conclude that he did not consider them. In fact he clearly referred to them in his judgment. As indicated earlier the issue of weight is for the learned judge.

[49]Mr. Mitchell contends that there is no evidence to support the finding of fact that Taylor exalted himself as the indispensable hard-working genius behind the growth and glory of PSDL who merits the compensation he has caused the company to dispense to him. It appears to me that finding was open to Wallbank J (Ag.) having regard to Part 9 of the minutes which recount Taylor’s wish to be specially rewarded for achieving great things for PSDL and to remunerate him for services rendered from 1967 to 1985. This coupled with the fact that Taylor was instrumental in establishing PSDL and was the managing director from inception.

[50]The finding that Taylor candidly admitted in his oral evidence that taking the land was his exit plan from the company is also challenged on the ground of absence of evidence. In his witness statement Taylor stated that the Cave House property was conveyed to him on 18th April 2008 and he immediately started to create a small development to secure his retirement. From that evidence it was reasonably open to Wallbank J (Ag.) to arrive at his finding. This rebuts any suggestion that there was no evidence to support the judge’s finding that taking the land was Taylor’s exit plan from PSDL.

[51]Mr. Mitchell also challenges Wallbank J’s findings that Taylor administered PSDL and the land from his own home on the property; treated PSDL as his banker; took a number of substantial advances from its cash, and apparently washed his personal day to day living through PSDL as expenses and disbursements for running the company since he administered the company from home. Mr. Mitchell contends that these pronouncements had no real evidentiary basis and influenced the judge’s view that he was being asked to address or deal with a claim that the affairs of PSDL were being conducted generally in an oppressive manner that was unfairly prejudicial to the respondents interest as shareholders of PSDL, and led him to make the extraordinary orders complained about.

[52]Mr. John points out that much of the evidence referred to by the judge and at paragraph 13.6 of the appellant’s submission were adverted to and brought out in cross – examination as a result of documents Taylor placed before the court. Mr. John asserts that the respondents did not have the documentary evidence pertaining to Taylor using PSDL to pay his personal income tax, using PSDL’s resources to make advances to his daughter, paying his maid, all of which without reference to other directors or shareholders and taking substantial advances with apparently no evidence of the board of directors’ approval. Learned counsel argues that the fact that all of this evidence was not contemplated in the claim for oppression relating to PSDL’s property, did not limit the judge in what he should take into account in fashioning a remedy for the claim as the court has to look at all the circumstances of the case. I agree.

[53]Wallbank J (Ag.) found that Taylor took, what he called a ‘stipend’ a $5000.00 monthly allowance of to cover what he referred to as expenses or disbursements, from around 1st January 1986. Taylor stated in cross-examination that the stipend was never salary but was necessary to support staff and help with other miscellaneous expenses at his house. It was also noted that on 11th November 2006 a board meeting was held at Taylor’s house. In cross-examination Taylor also stated that PSDL was never a trading company and that staff wages of $16,000.00 in 2003 and $15,000.00 plus in 2004 was for the lady who worked in his house, cleaning, cooking and looking after the property. The evidence also reveals that in 2004, Taylor advanced $126,000.00 of PSDL’s funds to his adult daughter to support her. There is also evidence that Taylor spent $29,082.00 from PDSL’s account to buy roofing material in Miami for two persons who had lost their roofs after the hurricane. Although stating that the sum was charged to their account, Taylor stated that he was not aware whether they paid it back.

[54]Paying regard to all the above, Wallbank J’s findings are amply supported by the evidence and it cannot be said that they are ones which no reasonable judge could have reached. Mr. Mitchell’s contention that there is no evidence to support the judge’s findings is therefore not sustainable. Dysfunctional

[55]Mr. Mitchell takes issue with Wallbank J’s finding that the governance of PSDL had become completely dysfunctional. Counsel argues that the judge wrongly concluded that because no minutes were put into evidence of whether the AGM set for 8th July 2001 had in fact occurred that the governance of PSDL, as at the date of the trial, had become dysfunctional. Counsel asserts that the respondents had never presented such a case, which required the learned judge to determine whether the general governance of PSDL had become dysfunctional. In counsel’s view, this erroneous diversion, with other pronouncements made by the judge, is at the heart of his falling into error, leading to the extraordinary orders made.

[56]Mr. Mitchell posits that the judge failed to appreciate that PSDL continued to function and was a functioning company after the filing of the amended claim on 8th April 2011, save for the discrete issue of the transfer of the Cave House property to Taylor. Mr. Mitchell cites the evidence of Daphne Vidal that she was appointed a director of PSDL by the shareholders at an AGM after the filing of the claim. Since her appointment there has not been any AGM of PSDL.

[57]Mr. John supports the judge’s finding that PSDL had become completely dysfunctional and contends that a reading of the judgment and the evidence show that the learned judge was referring to a series of things, not just the meeting of 8th July 2011. Mr. John asserts that what led Wallbank J to the meeting of 8th July 2011 was the questioning of Taylor with regard to financial statements for 2009 to 2010. Mr. John stated that it was noteworthy that none of the financial statements were signed by the directors. Having taken Taylor to the 2010 accounts, the judge inquired as to when they would be approved, to which he replied the next AGM, which was 8th July 2011. There is no evidence that that meeting ever took place. Mr. John submits that all of this evidence would have been foremost in the mind of the learned judge when he concluded that PSDL had become dysfunctional.

[58]In my judgment, a finding that a company had become dysfunctional simply on the basis that an AGM was not held, would hardly be sustainable and as such liable to be set aside. It is evident that Wallbank J (Ag.) did not conclude that PSDL was dysfunctional solely on the basis that an AGM did not take place. Although the learned judge did not specify the matters he relied on in arriving at his conclusion, a close look at the judgment shows that there were a number of factors of which the lack of the meeting was one, which led to his conclusion. This Court is bound to conclude that the trial judge has taken the whole of the evidence into his consideration, there being no compelling reason to the contrary.

[59]The mere fact that a trial judge has not expressly mentioned some piece of the evidence does not lead to the conclusion that he overlooked it. The validity of a factual finding made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must consider all the material evidence although it need not all be discussed in his judgment. The weight he gives to it is pre-eminently a matter for him subject only to the requirement that his findings be such as might be reasonably made. An appellate court could therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge’s conclusion was rationally insupportable.

[60]The lack of the AGM was just one of the matters available to the learned judge to support a conclusion that the governance of PSDL had become completely dysfunctional. There were other matters from which Wallbank J’s conclusion could be rationally supported. Wallbank J (Ag.) would have been mindful of the dispute between the directors concerning whether an agreement had been arrived at concerning the transfer of the Cave House property to Taylor.

[61]PSDL held an AGM on 19th February 2007 attended by Taylor, Felicity, Peter and Phillip Smith and Patricia Julien, among others. Wallbank J found that a draft minute was recorded and prepared but was never agreed as it is clear that relations between Taylor on the one hand and other shareholders (if perhaps not all of them) had deteriorated badly. Wallbank J referred to that AGM and stated that it was fundamentally clear that the business or affairs of PSDL are or have been carried on and conducted in a manner which at least unfairly disregards the interests of the respondents and the directors who were elected at the Annual General Meeting of 19th February 2007. Taylor brushed aside those directors’ election and pushed through transactions that would suit his personal ends; the manner in which that was done was literally oppressive.

[62]There was the board meeting of 7th November 2007 attended by Taylor and Felicity. Phillip and or Peter Smith and Patricia Julien were absent. The minutes contained an explicit statement by Taylor that these absent persons had previously been elected as directors. Wallbank J (Ag.) stated that it is not clear why they were absent or whether they had been given notice of the meeting. At that meeting a decision was taken by Taylor and Felicity to appoint Messrs Pannell Kerr Foster to act as Company Secretary until the next AGM. The respondents claim that the appointment was invalid because Felicity was by then not a director. Wallbank J (Ag.) stated that quite apart from any irregularity relating to Felicity’s status as a director, according to the minutes of the board meeting of 7th November 2007, signed on 10th April 2008, PSDL’s secretary was from then on not Henry Joseph but Messrs Pannell Kerr Foster. Yet Felicity executed the deed of transfer in respect of the Cave House property on 18th April 2008, in the presence of Henry Joseph as secretary. There is nothing on the face of the deed to indicate that Henry Joseph was signing on behalf of Messrs Pannell Kerr Foster.

[63]Wallbank J (Ag.) noted that the next AGM after the one of 19th February 2007 was called for 8th July 2011 and found that there was a clear breach of article 48 of the Articles of Association which provides that not more than 15 months were to elapse between AGMs. By article 51, twenty one clear days were required to be given to shareholders; the notice appeared to have been given one day less. It was unclear whether the AGM went ahead. It was boycotted by the respondents. No minute had been put in evidence. Taylor’s own spreadsheet record of all directors’ and shareholders’ meetings recorded no attendees.

[64]Wallbank J’s conclusion that the governance of PSDL had become completely dysfunctional was not a finding based solely on the absence of an AGM. As shown above, there were a variety of factors supporting the rationality of that finding. Section 242(1) of the Companies Act

[65]I now deal with the issue of whether the judge failed to consider adequately or at all section 242(1) of the Companies Act, which would have required him to consider evidence of approval of the shareholders of the impugned transfer of the Cave House property to Taylor. Section 242(1) provides that an application made or an action brought or intervened in under this part, may not be stayed or dismissed by reason only that the alleged breach of a right or duty owed to the company or its subsidiary has been or might be approved by the shareholders of the company or its subsidiary, but evidence of approval of the shareholders may be taken into account by the court in making an order under section 240, 241 or 377.

[66]The matter of shareholder approval was addressed by Wallbank J (Ag.) and as such the complaint is not valid. The learned judge accepted Felicity’s evidence that the reason for referring the proposal to the shareholders was for them to vote on it. He found as a fact that there was no evidence that the shareholders agreed to the proposal. Wallbank J (Ag.) referred to the AGM held on 19th February 2007. He found that a draft meeting was recorded and prepared but was never subsequently agreed as it was clear that the relationship between Taylor and other shareholders (if perhaps not all of them) had deteriorated badly. The Cave House property is recorded in the draft minute as being raised and discussed. It records that ‘Shareholders voiced their strong objection to LT’s plan for the Company to give him the Cave House in recognition of his service to the Company’. It went on to state that ‘LT made himself abundantly clear by stating, ‘I don’t give a f*** what you lot think, I’ll do what I bloody well like’ ‘. No agreement in respect to the Cave House property was mentioned. At trial Taylor did not say any agreement on this issue had been reached at the AGM. Remuneration – Judge’s Approach

[67]Mr. Mitchell complains that Wallbank J (Ag.) fell into error and completely failed to consider and treat with the issue that the remuneration of the managing director – Taylor – was a matter exclusively for the directors of PSDL and not its shareholders or PSDL itself in general meeting. He submits that the directors were empowered to remunerate Taylor as they saw fit. Further, the exercise of such power is not part of the business of the company and is exercisable in accordance with article 96 of the Articles of Association and section 104 of the Companies Act.

[68]Mr. John agrees that article 96(b) provides for remuneration of directors for services rendered but disagrees that further power can be arrogated under section 104 of the Companies Act, as that section expressly subjects itself to the Articles of Association. Mr. John submits that the directors of PSDL were never empowered to remunerate their numbers as they saw fit but only in accordance with article 96, which article was exclusive of section 104 of the Companies Act. Mr. John also submits that article 96 did not permit the directors of PSDL to remunerate Taylor by conveying the property purportedly conveyed. It did not include remuneration by company lands.

[69]Wallbank J (Ag.) took the view that he did not have to decide the point of whether the directors were authorised to fix Taylor’s remuneration as managing director; and whether the directors could agree to settle his claim with PSDL by resolving to transfer the Cave House property to him. Mr Mitchell submits that, in refusing to decide the issue, the judge fell into error and failed to appreciate that the directors of PSDL (Felicity, Julien and Paula Williams) at the relevant time had cogent reasons as directors to resolve to settle the account of PSDL with Taylor by conveying the Cave House property to him in exchange for extinguishing his claim for remuneration against PSDL.

[70]Mr. Mitchell asserts that the judge’s error was fundamental to his reasoning, as it led him to conclude that the company was giving away part of the real estate assets to the appellant, thus reducing its assets and affecting its financial results and that the net effect of this was that the transfer of the Cave House property was prejudicial to the respondents because it diminished the assets of PSDL.

[71]In addressing this matter, it is useful to bear in mind that the task of the appellate court is not to retry the case but rather to review the judgment of the court for error. Wallbank J (Ag.) approached the matter by deciding whether the board of PSDL had agreed to the transfer of the Cave House property rather than deciding whether the directors were authorised to fix Taylor’s remuneration as managing director; and whether the directors could agree to settle his claim with PSDL by resolving to transfer the Cave House property to him.

[72]In my view, Wallbank J (Ag.) adopted a pragmatic approach in dealing with the matter that way. This approach was one of judgment and was clearly open him. It was not perverse. There is no requirement for a judge to identify and explain every factor which weighed in his appraisal of the evidence. The issues, the resolutions of which were vital to the judge’s conclusion should be identified and the manner in which he resolved them explained. The judge must say enough to show that care has been taken and that the evidence as a whole has been properly considered. Which points need to be dealt with and which can be omitted itself requires an exercise of judgment.

[73]In my judgment, Wallbank J’s approach was really a matter of judgment. He did not err in his approach neither was it unreasonable. I am driven by the critical finding of fact, that there was no agreement and no resolution by the board to convey the Cave House property. Having found that there was no agreement by the board to so convey, a finding open to him on the evidence, the other issues naturally fell away. Simply put, deciding whether or not the directors were authorised to fix Taylor’s remuneration as managing director or whether they could agree to settle his claim, or whether or not good reasons existed to convey the property, could not trump a finding that there was no board agreement to so do. Further there is no reason to conclude that the learned judge was not seised of the cogent reasons relied on by Taylor. In my view, the learned judge cannot be properly criticised for deciding to approach the matter the way he did. Cave House Valuation

[74]Wallbank J (Ag.) noted that the Cave House property was being transferred to Taylor in consideration for services rendered but found that neither the land nor the services rendered were professionally or independently valued. The bases for so finding were that the valuation of the Cave House property was requested orally by Taylor. In any event, the services rendered were not professionally and independently valued. The level of compensation was provided by Pannell Kerr Foster, PSDL’S auditor, and as a result of the close working relationship between the auditors and Taylor, he could not treat the auditors as independent.

[75]Mr. Mitchell argues that the judge’s reasoning is flawed on the grounds that he failed to appreciate that Taylor did not request a specific valuation of the property to suit his whims. The valuation reports were comprehensive reports of all the lands or real estate of PSDL and comprised three reports, one of which was specific to the Cave House property. The reports were expressed to be the independent opinion of the valuator.

[76]Mr. Mitchell submits that rejecting the reports as not being independent merely because Taylor requested their preparation by the valuator is baseless as there was no evidence before the judge that the valuator was not independent. Learned counsel further asserts that given that Taylor was the managing director, it begs the question who else could have requested the valuation of the assets of PSDL, and the same point is applicable to the valuation of Taylor’s services. Counsel argues that Wallbank J (Ag.) failed to appreciate the context pertaining to the valuation of Taylor’s services. The valuation was undertaken in response to the respondents’ assertion that the value of the Cave House property exceeded the value of the services rendered by Taylor over the years.

[77]Mr. John seeks to uphold the judge’s finding of want of independence. He noted Taylor’s claim that the Cave House property was taken in part for past services rendered, salaries due and for growth in the value of PSDL. Counsel found it interesting that Taylor provided no evidence for his claim to having received no salary for the period under review. The accountant’s letter indicates that the calculation of $1,078,222.00 for unpaid salaries as at 7th November 2006 was based on a premise that no salaries were received during the review period. This valuation was three years after the Cave House property was purportedly conveyed to Taylor.

[78]Mr. John made reference to the valuation of the Cave House property by Raphael Stephen in May 2007, amounting to EC $1,664,800.00. Mr. John pointed out that barely two years after Taylor got the Cave House property, he sold a lot therefrom measuring 5,392 square feet for US$107,840.00. Regarding Mr. Mitchell’s criticism that Wallbank J (Ag.) failed to appreciate that Taylor did not request a valuation of the Cave House property to suit his whims, Mr. John points out that Raphael Stephen’s valuation came six months after the impugned board decision of November 2006 to convey the property to Taylor.

[79]I recognise the force of the matters stated by Mr. John and I accept them. Coupled with that, the combination of facts that the terms of reference were orally given by Taylor, there being no telling what these instructions were and what guided the valuation; the valuation produced, and the fact that the valuator was working specifically for Taylor, lead to a conclusion of want of independence, particularly when one considers the price at which Taylor was able to sell a mere 5000 square feet lot, in a short period after the valuation. Given the circumstances, it was open to the learned judge to question the independence of the valuator, and a sufficient basis existed to support Wallbank J’s finding of want of independence. Oppressive Relief

[80]Mr. Mitchell takes issue with the order made by Wallbank J (Ag.) and complains that the vast majority of the order concerned reliefs that were never sought by the respondents nor did they relate or pertain to the actual Relief sought; specifically referring to sub-paragraphs 5 to 25 of the order.

[81]Mr. Mitchell argues that Wallbank J (Ag.) simply went too far and none of the reliefs granted were required to address the specific complaint made, and asserts that the judge failed to address the oppressive relief in accordance with the approach set out by the Privy Council in Galantis v Alexiou & another (Bahamas). Mr. Mitchell accordingly submits that the order should be set aside as there was no evidentiary or legal basis in support thereof.

[82]Mr. John disagrees that Wallbank J (Ag.) went too far with respect to relief granted in the order at paragraph 90(5) to (25) of his judgment. He submits that each case is to be treated on its own facts and merits, and the order demonstrates that the learned judge considered the facts of the case; what Taylor did; what was required to put matters right; and pre-empted a repetition of the same by him. Mr. John contends that the learned judge does not take anything from Taylor other than the oppression instrument. His right to remain director for life is taken away; his right to be a director is not. Taylor is ordered to transfer his shares to PSDL for consideration. The shares are not taken away from him. Wallbank J (Ag.) left room for Taylor to acquire land as payment for his shares and was given an opportunity of a choice of valuator to determine the total net payment to him following acquisition of his shares.

[83]Mr. John referred to Chemtrade Ltd v Fuhs Oil Middle East Ltd et al at paragraph 33, in which Mitchell JA stated that the court has a wide discretion to do what is considered fair and equitable and that buy-out orders or purchase orders are commonly made. The judge is called upon to put right, and cure for the future the unfair prejudice which the claimant has suffered at the hands of the other shareholder of the company. Further, the judge has an unfettered discretion in fashioning a remedy covering not only the specific matter complained of but to bring an end to prospective conflicts.

[84]The jurisdiction regarding the grant of relief for oppression, unfair prejudice or unfair disregard of interests, resides in section 241 of the Companies Act of Grenada but has its provenance in equitable principles. As stated in re Stanford International Bank Ltd (In liquidation) (Acting by and through its Joint Liquidators Mark McDonald and Hugh Dickson) (Antigua and Barbuda), at paragraph 26, the essential basis of the remedy for oppression or unfairly prejudicial conduct, is derived from principles of equity. The relief is conferred on essentially broad discretionary and equitable principles. The Companies Act confers a wide power to do what is just and equitable.

[85]Under the rubric ‘Oppression restrained’, section 241 of the Companies Act of Grenada creates a special procedure for the purpose of restraining oppression. It permits the court to intercede in the internal affairs of the company in order to rectify the matters complained of. Section 241(1) permits an application to the court for an order against a company or an officer or director of that company to restrain oppressive action. Where there is oppression, unfair prejudice or unfair disregard of the interest of ‘any shareholder or debenture holder, creditor, director or officer of the company’, subsection (2) empowers the court to make an order rectifying the matters complained of. Subsection (3) provides that in connection with an application, the court may make any interim or final order as it seems fit. It then sets out a non-exhaustive list of possible orders.

[86]Any order made under section 241 exists only to rectify the matters complained of as provided by section 241(2). The purpose of the oppression remedy is therefore corrective. In seeking to redress inequities between private parties, the oppression remedy seeks to apply a measure of corrective justice.

[87]In language which aptly describes the Companies Act of Grenada, the Supreme Court of Canada in Wilson v Alharayeri, in addressing the kindred provision (section 241) of the Canada Business Corporation Act, described section 241 as providing a statutory means whereby corporate stakeholders may gain redress for corporate conduct which has one of the effects described in section 241(2). The section serves as a judicial brake against abuse of corporate powers, particularly, but not exclusively, by those in control of a corporation and in a position to force the will of the majority on the minority. Section 241 enables the court to intercede in the affairs and operation of a corporation and to effectively override the decisions of those charged with the responsibility of corporate governance.

[88]As stated earlier, section 241(3) provides a non-exhaustive list of orders that the court may make to rectify the matters complained of, including an order : (i) restraining the conduct complained of; (ii) appointing a receiver or receiver-manager; (iii) to regulate the companies affairs by amending its articles or By-laws or creating or amending a unanimous shareholder agreement; (iv) directing an issue or exchange of shares or debentures; (v) appointing directors in place of, or in addition to, all or any of the directors then in office; (vi) directing a company, subject to subsection (6), or any other person, to pay to a shareholder or debenture holder any part of the monies paid by him for his shares; (vii) varying or setting aside a transaction or contract to which a company is a party, and compensating the company or any other party to the transaction or contract; (viii) requiring a company, within a time specified by the court, to produce to the court or an interested person, financial statements in the required form or an accounting in such other form as the court may determine; (ix) compensating aggrieved persons; (x) directing rectification of the register or other records of a company under section 244; (xi) winding up or dissolving the company. Judge’s Order

[90]There were several other aspects of the Order (from paragraph 90, sub-paragraph (5) of the judgment). Wallbank J (Ag.) ordered: the board of directors of PSDL as of the date of the judgment to be Taylor, Felicity, Phillip Smith, with Peter Smith as his alternate, and Patricia Julien, being also named as its secretary; save as by resolution or agreement of the board, that Taylor be immediately prohibited from making payments from PSDL’s bank account; Taylor was prohibited from voting on any such resolution or agreement; Taylor to fully cooperate with the other directors to constitute one or more of them signatories to PSDL’s bank accounts, with sufficient mandate to operate the accounts without his signature.

[89]Having found that the conduct the respondents complained of amounted to ‘oppression’, ‘unfair prejudice’ or ‘unfair disregard’ of relevant interests pursuant to section 241, Wallbank J (Ag.), in the exercise of his discretion to restore a more equitable balance and prevent further oppression, proceeded to make the order which Taylor seeks to set aside. The first four paragraphs of the order were the setting aside of the deeds of conveyance and rectification of the records at the Deeds and Land Registry in respect thereof; for Taylor, at his own expense, to restore possession to PSDL of all of the lands purportedly conveyed to him by the said deeds; a final injunction prohibiting Taylor from conveying or charging in any way any part of the lands purportedly conveyed to him and for Taylor to account to PSDL for all proceeds of sale of the land purportedly conveyed to him.

[91]Article 74 of the Articles of Association was amended deeming the directors for the time being to retire, subject to re-election each year on the date of the AGM, save as is provided by articles 77 and 78. Article 78 was also amended to delete the words ‘die, or’ to now read: ‘Provided that Leon Taylor shall be the first Managing Director of the Company and he shall hold office until he resigns, retires or is deemed to retire pursuant to Article 74 hereof or ceases to hold shares in the Company’.

[92]Taylor was to forthwith transfer to PSDL and PSDL to forthwith re-acquire, his shareholding in PSDL and for Taylor to be compensated for the value of his shares, to the extent permitted by the Companies Act, in particular section 39. PSDL’s obligation to compensate Taylor shall stand as a liability of PSDL to him and not by way of consideration for the transfer and re-acquisition. PSDL at its election may discharge this liability in cash or by way of transfer of land; in the case of land PSDL shall ensure that Taylor receives the same equivalent net value as if he were to be paid cash. PSDL shall be entitled to select which lot or sub-division it will transfer to Taylor.

[93]The order contained several provisions with respect to valuation: the value of the total net payment due to Taylor following the transfer and reacquisition of Taylor’s shares was to be determined by a professional valuer to be agreed upon by Taylor and the respondents; the valuation shall treat the land by which Taylor is bound by the judgment to return to PSDL, as part of the assets of PSDL; the valuation shall state the net amount due by PSDL to Taylor and then value of PSDL’s land.

[94]Mr. Mitchell argues that the judge should have considered whether the decision to transfer the Cave House property was properly attributable to Taylor vis a vis, the other directors of PSDL, Felicity and Paula Williams and the company PSDL itself, in keeping with the principle that in the particular circumstances of the case the oppressive conduct must be attributable to the director and the imposition of personal liability must be fit as a means of rectifying the harm done.

[95]Mr. Mitchell posits that Taylor did not vote on the proposal to transfer the Cave House property, although he made the proposal to the Board of PSDL and the Board approved the proposal. I must point out that Taylor could not have voted on the proposal as the learned judge rightly found. Further, the judge found as a fact that there was no agreement or resolution to transfer the Cave House property.

[96]While recognising that there was some personal benefit to Taylor by the transfer of the Cave House property, Mr. Mitchell submits that the oppressive conduct could not have been attributed to Taylor himself or alternatively, would have been attributable to the directors of PSDL – Felicity and Paula Williams or PSDL itself. Mr. Mitchell also contends that the learned judge failed to engage in a careful analysis of whether the orders he was imposing on Taylor was fair or proportionate to him or to the directors of PSDL or to PSDL itself. In my view, none of these points have merit having regard to the findings and reasoning of the learned judge. Further, section 241 provides remedies against individuals, including directors and officers, thus recognising that the rectification of harm done to corporate stakeholders by corporate abuse may necessitate an order against individuals through which a company acts.

[97]To the extent that the section contemplates that individuals will bear the remedial burdens flowing from the oppressive exercise of corporate powers, section 241 takes a different approach to assigning responsibility for corporate conduct than does the common law. The section permits the court to address the harm done by the conduct described in section 241 from a broader perspective than that permitted by a simple inquiry into the identity of the actor.

[98]The oppression remedy is equitable. It seeks to ensure fairness – what is just and equitable. The remedy focuses on harm to the legal and equitable interests of a wide range of stakeholders affected by oppressive acts of a corporation or its directors. This remedy gives a court a broad jurisdiction to enforce not just what is legal but what is fair. Oppression is also fact specific: what is just and equitable is judged by the reasonable expectations of the stakeholders in the context and in regard to the relationships at play.

[99]Where a person seeks a remedy against a director or officer personally under section 241, it is not accurate to suggest that the claimant is attempting to circumvent the principles with respect to personal liability of directors and officers. On the contrary the claimant is not alleging that he was wronged by a director or officers acting in his or her personal capacity, but is asserting that the corporation, through the actions of the directors or officers has acted oppressively and that in the circumstances it is appropriate (fit) to rectify the oppression by an order against the directors or officers personally.

[100]Sparling v Royal Trustco Ltd, demonstrates that actions of directors which are properly described as corporate conduct may render directors and or the corporation liable under the oppression provisions. The attribution of the conduct to the corporation does not forego a remedy against directors personally. The court also warned about overlaying restrictive common law principles on the broad statutory language of section 241.

[101]Pursuant to section 241 Wallbank J (Ag.) enjoyed a wide discretion not only as to the content of the remedial order but also as to the person or persons against whom any such order should be made. Further, the exercise of discretion whether to impose a liability under section 241 is inextricably linked to the particular facts of each case.

[102]In Wilson v Alharayeri, the Supreme Court of Canada reaffirmed that a director of a corporation can be personally liable in an oppressive action. Cote J emphasised that before personal liability can be imposed on a director, not only must the oppressive conduct be properly attributed to him, but the imposition of personal liability must be fit in all the circumstances as a means of rectifying the harm done, as determined in the leading case of Budd v Gentra Inc. Cote J stated that the case law has distilled at least four general principles that should guide courts in fashioning a fit order under section 241(3). The question of director liability cannot be considered in isolation from these general principles.

[103]First, the oppression remedy request must, in itself, be a fair way of dealing with the situation. It may be fair to hold a director personally liable where he or she has derived a personal benefit in the form of either an immediate financial advantage or increased control of the corporation, breached a personal duty or misused corporate power or where a remedy against the corporation would unduly prejudice other security holders. These factors merely represent indicia of fairness. The presence of a personal benefit or bad faith remains hallmarks of conduct attracting personal liability but, like the other indicia, does not constitute necessary conditions. The principle of fairness has to be assessed in light of all the circumstances of a particular case.

[104]Secondly, any order made should go no further than necessary to rectify the oppression. Thirdly, the order may serve only to vindicate the reasonable expectations of security holders, creditors, directors or officers in their capacity as corporate stake holders. Fourthly, the court should consider the general corporate law context in exercising its remedial discretion under section 241(3).

[105]Wallbank J (Ag.) provided compelling reasons supportive of his determination of the matter. In his view, it was abundantly clear that the business affairs of PSDL are and have been carried on and conducted in a manner which at the very least unfairly disregards the interests of the respondents’ shareholders and directors who were elected at the AGM on 19th February 2007. The manner in which Taylor brushed aside those directors’ election and pushed through transactions that would suit his own personal ends was literally oppressive. He stated that the fundamental root of the difficulties in this case is that Taylor has become afflicted with self-serving relativism. He has been allowed to act as his own judge and jury for many years and has persuaded himself his decisions were justified. Where meeker souls disagreed with what he wanted, he bulldozed through his will.

[106]Wallbank J (Ag.) reasoned at paragraph 86 of his judgment that it was obvious that whilst Taylor continues as managing director for life and remains able to vote his shares, he can continue to have his way with the company. In that regard, merely to unwind the two land transactions and issue an injunction preventing a repetition does not cure the problem. It is inevitable that unless another solution was imposed, PSDL would be a prime candidate for compulsory liquidation. On the other hand, if managed properly and in accordance with the requirements of its Articles of Association and company law more generally, it could have a profitable future. It would appear to be in the best interest of PSDL that Taylor cease to be its managing director for life and for his tenure to be subject to election by the shareholders. It would also be in the best interest of PSDL if its governing bodies and persons should no longer be subject to his dictatorship. In any event, he wishes to leave PSDL.

[107]The reasoning of Wallbank J (Ag.) is unimpeachable. He properly exercised his discretion in making the orders. The order went no further than was necessary to rectify the oppression, unfair prejudice and disregard of interests. Wallbank J (Ag.) engaged in a fact sensitive contextual inquiry, looking at business realities not merely narrow legalities. The learned judge would have considered the general corporate law context in exercising his broad discretion as to the appropriate relief. The intercession in the affairs of PSDL was geared towards remedying the existing unfairness and oppression. The learned judge had wide discretionary powers and exercised them judicially and fairly, and framed an order which in his wisdom was appropriate and equitable.

[108]No issue can be taken with his imposition of personal liability on Taylor as the necessary conditions for such imposition existed. His Lordship would have been cognisant that section 241 of the Companies Act enabled a court to make orders binding a company, even where the company is not a party to the claim. It has not been demonstrated that the learned judge committed no error in principle or the remedy he imposed was otherwise unjust. There is no basis for appellate interference.

[109]For all the reasons stated the appeal is dismissed and the orders made are affirmed. The Counter-Notice of Appeal

[112]Wallbank J (Ag.) reasoned how he arrived at his decision and dealt with The matter in a way he considered fair, paying regard to the circumstances of the case. His order was also within the plenitude of power conferred by section 241. I see no basis to set the order aside. The counter-notice is accordingly dismissed.

[110]With respect to the counter-notice, Wallbank J (Ag.) referred to the problematic nature of Felicity’s status as a director. He noted that the draft minute for the AGM of 19th February 2007 was silent on her resignation and election. Further, the Articles of Association does not say how a director who does not retire is to be treated. Wallbank J (Ag.) noted the respondents’ reliance on Morris v Kanssen and others, focusing on how acts of a person who is not validly appointed should be treated and noted that in Morris, the prior directorships had expired. Wallbank J (Ag.) was persuaded by Mr. Mitchell’s reliance on a passage from Halsbury’s laws of England, that where the directors are due to retire and no valid appointment of new directors have been made, the acting directors as a rule are qualified to act, if the Articles of Association do not provide otherwise. He noted that the Articles of Association do not, and he accepted this as the operative proposition.

[111]Wallbank J (Ag.) found that given the factual circumstances of the case, it would have been inconceivable for either Taylor or Felicity not to ensure her [Felicity’s] re-election. Further Wallbank J (Ag.) was persuaded that both Taylor and Felicity, in good faith assumed that Felicity’s directorship continued. He accordingly considered it fair to order and declare, pursuant to section 241 of the Companies Act, that Felicity is a director of PSDL as at the date of his judgment.

[113]On the issue of costs of the counter–notice, it was not unreasonable for Mr. John to have taken the point with respect to Felicity’s status as a director. Wallbank J (Ag.) himself found it to be problematic. Sitting back and looking at the case globally, this is not a case where costs should be awarded on the counter- notice. Order

[114]It is ordered that: (i) the appeal is dismissed and the appellant is to pay costs of the appeal to the respondents of 2/3 of the prescribed costs of $113, 649.00 awarded in the court below, and (ii) the counter-notice is dismissed with no order as to costs. I concur. Gertel Thom Justice of Appeal I concur. Mario Michel Justice of Appeal By the Court Chief Registrar

1.A pleading must make clear the general nature of the case of the pleader since it is inimical to a fair hearing that a party should be exposed to issues and arguments of which he has no fair warning. The claim filed by the respondents clearly raised the issue of oppression, unfair prejudice and the disregard of their interests as shareholders or of the entity PSDL as a whole. Further, in the reply, the respondents specifically pled that the appellant acted oppressively in the running of PSDL and in particular by taking the Cave House property. It is therefore incorrect to assert that the respondents did not file or pursue an oppressive claim or seek oppression remedies under section 241 of the Companies Act. The claim was properly dealt with as an oppressive one. Accordingly, the argument that the learned judge misapprehended the claim or erred in treating it as an oppressive action under section 241 cannot be accepted. Moreover, the essential elements of the respondents’ case were known to Mr. Taylor and he had sufficient notice of the case that was being made against him. Therefore, the argument that Mr. Taylor was exposed to arguments or issues of which he had no fair warning, also fails. McPhilemy v Times Newspapers Ltd and others [1999] 3 All ER 775 considered; Prudential Assurance Company Ltd v Revenue and Customs Commissioners [2016] EWCA Civ 376 at paragraph 20 considered. An appellate court should not interfere with the trial judge’s conclusion on primary facts unless satisfied that the finding of fact is plainly wrong. This applies to findings of primary facts, the evaluation of those facts and inferences to be drawn therefrom. The adverb ‘plainly’ does not refer to the degree of confidence the appellate court may feel that it would not have reached the same conclusion as the trial judge. What matters is whether the decision under appeal is one which no reasonable judge could have reached. Moreover, a trial judge does not have to make a finding on every disputed item of evidence. It is enough if he makes a finding on matters which he needs to be resolved before coming to his conclusion. A review of the judge’s findings is constrained by the circumstances that, usually, the initial fact finder would have been exposed to a wider range of impressions that influenced a decision on factual matters than would be available to an appellate court. For this reason, a measure of deference to the conclusions reached by the initial fact finder is appropriate. Unless the finding is insupportable on any objective analysis, it will be immune from review. McGraddie v McGraddie [2013] UKSC 58 considered; Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 considered; Henderson v Foxworth Investments Ltd and another 2014] UKSC 41 considered; Volcafe Ltd and others v Cia Sud Americana de Vapores SA [2018] 3 WLR 2087, [2018] UKSC 61 considered; Re B (a Child) (FC) [2013] UKSC 33 considered; Sohal v Suri and another [2012] EWCA Civ 1064 considered; Perry v Raleys Solicitors [2019] UKSC 5 considered; Housen v Nikolaisen [2002] 2 SCR 235 considered. The weight of evidence is essentially a matter for the judge who has sat through the entire case and is immersed in all its aspects; he is aptly placed to test the evidence at first hand and his ultimate judgment reflects this total familiarity with the evidence. It is therefore inappropriate for this Court to interfere with that evaluation unless it is perverse. The trial judge must consider all the material evidence although it need not all be discussed in his judgment. The weight he gives to it is pre-eminently a matter for him subject only to the requirement that his findings be such as might be reasonably made. The complaint that the judge attached too much weight to Paula’s letter protesting to the transfer of the Cave House property to Mr. Taylor does not approach the high hurdle which must be surmounted for a successful challenge. It has not been shown that the judge was clearly wrong or reached a conclusion on the evidence he was not entitled to reach. It was open to the judge to attach such weight to the letter as he considered necessary. In the circumstances, there being no perversity, appellate interference is unwarranted. Manzi v Kings College NHS Foundation Trust [2018] EWCA Civ 1882 considered; Henderson v Foxworth Investments Ltd and another [2014] UKSC 41 considered; Royal Wolverhampton Hospitals NHS Trust v Evans [2015] EWCA Civ 1059 considered; The Queen on the Application of Johnson v Bristol Crown Court [2017] EWHC 2528 (Admin) considered. In a case where there are contemporary documents which appear on their face to provide cogent evidence contrary to the conclusion which the judge proposes to reach, it is very important that he must state why they are not to be taken at face value or are outweighed by other compelling considerations. Additionally when considering the credibility of a witness, it is important to test their veracity by reference to the objective facts proved independently of their testimony, in particular, by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. The learned judge was obliged to consider, and his analysis reveals that he did consider, the whole sea of evidence and did not engage in impermissible island hopping. There is therefore no basis to challenge the following findings of the learned judge: (i) that there was no agreement and hence no resolution passed at the board meeting of 11th November 2006 for Mr. Taylor to be granted the Cave House property; (ii) the purported act of PSDL in giving away part of its real estate assets to Mr. Taylor reduced its assets and thus affected its financial result; (iii) that Mr. Taylor exalted himself as the indispensable hard-working genius behind the growth and glory of PSDL who merits the compensation he has caused the company to dispense to him; (iv) that taking the land was Mr. Taylor’s exit plan from PSDL; (v) that Mr. Taylor administered PSDL and the land from his own home on the property; treated PSDL as his banker; took a number of substantial advances from its cash, and apparently washed his personal day to day living through PSDL as expenses and disbursements for running the company since he administered the company from home; (vi) that the governance of PSDL had become completely dysfunctional; and (vii) that neither the Cave House property nor the services rendered by Mr. Taylor were professionally or independently valued. These are findings which were clearly open to the judge and did not go against the weight of the evidence. This Court is bound to conclude that the trial judge has taken the whole of the evidence into his consideration, there being no compelling reason to the contrary. Accordingly, there is no basis for appellate interference. Simetra Global Assets Limited and another company v Ikon Finance Limited and others [2019] EWCA Civ 1413 considered; Watt (or Thomas) v Thomas 1947 AC 484 considered; Armagas Ltd v Mundogas SA, The Ocean Frost [1986] A.C. 717 considered. Section 242(1) of the Companies Act provides that an application made or an action brought or intervened in under this part, may not be stayed or dismissed by reason only that the alleged breach of a right or duty owed to the company or its subsidiary has been or might be approved by the shareholders of the company or its subsidiary, but evidence of approval of the shareholders may be taken into account by the court in making an order under section 240, 241 or 377. The matter of shareholder approval of the impugned transfer of the Cave House property to Mr. Taylor was addressed by the learned judge, who found as a fact that there was no evidence that the shareholders agreed to the proposal. As such, the complaint that the judge failed to consider adequately or at all section 242(1) is not valid. Section 242(1) of the Companies Act, Cap 58A of the Revised Laws of Grenada considered. There is no requirement for a judge to identify and explain every factor which weighed in his appraisal of the evidence. The judge must say enough to show that care has been taken and that the evidence as a whole has been properly considered. Which points need to be dealt with and which can be omitted requires an exercise of judgment. Deciding whether or not the directors were authorised to fix Mr. Taylor’s remuneration as managing director or whether they could agree to settle his claim, or whether or not good reasons existed to convey the Cave House property, could not trump a finding that there was no board agreement to so do. The learned judge having found that there was no agreement by the board to so convey, the other issues naturally fell away. Further there is no reason to conclude that he was not seised of the cogent reasons relied on by Mr. Taylor. Accordingly, the learned judge cannot be properly criticised for failing to consider and treat with the issue that Mr. Taylor’s remuneration as managing director was a matter exclusively for the directors of PSDL and not its shareholders or PSDL itself in general meeting. Simetra Global Assets Limited and another company v Ikon Finance Limited and others [2019] EWCA Civ 1413 considered; Sandra Maria Correia v University Hospital of North Staffordshire NHS Trust [2017] EWCA Civ 356 considered. The essential basis of the remedy for oppression or unfairly prejudicial conduct, is derived from principles of equity. The Companies Act confers a wide power to do what is just and equitable. Section 241 permits the court to intercede in the internal affairs of the company in order to rectify the matters complained of. Section 241(1) permits an application to the court for an order against a company or an officer or director of that company to restrain oppressive action. Any order made under section 241 exists only to rectify the matters complained of as provided by section 241(2). The purpose of the oppression remedy is therefore corrective. An oppression remedy request must, in itself, be a fair way of dealing with the situation and any order made should go no further than necessary to rectify the oppression. Furthermore, the order may serve only to vindicate the reasonable expectations of security holders, creditors, directors or officers in their capacity as corporate stake holders and the court should consider the general corporate law context in exercising its remedial discretion under section 241(3). Additionally, actions of directors which are properly described as corporate conduct may render directors and or the corporation liable under the oppression provisions. The attribution of the conduct to the corporation does not forego a remedy against directors personally. Section 241 of the Companies Act, Cap 58A of the Revised Laws of Grenada. considered; Re Stanford International Bank Ltd (In liquidation) (Acting by and through its Joint Liquidators Mark McDonald and Hugh Dickson) (Antigua and Barbuda) [2019] UKPC 45 considered; Wilson v Alharayeri [2017] 1 SCR 1037 considered; Budd v Gentra Inc (1998) 43 BLR (2d) 27; BCE INC v 1976 Debentureholders 2008 SCC 69 considered; Galantis v Alexiou and another (Bahamas) [2019] UKPC 15 considered; Sparling v Royal Trustco Ltd [1986] 2 SCR 537 considered. The order of the learned judge went no further than was necessary to rectify the oppression, unfair prejudice and disregard of interests in the circumstances. The judge engaged in a fact sensitive contextual inquiry, looking at business realities and not merely narrow legalities. He would have also considered the general corporate law context in exercising his broad discretion as to the appropriate relief. It is clear that the intercession in the affairs of PSDL was geared towards remedying the existing unfairness and oppression. Accordingly, the reasoning of the learned judge is unimpeachable in circumstances where he properly exercised his discretion in making the orders. The learned judge reasoned how he arrived at his decision to order and declare, pursuant to section 241 of the Companies Act, that Felicity is a director of PSDL as at the date of his judgment, and dealt with the matter in a way he considered fair, paying regard to the circumstances of the case. He was persuaded that where the directors are due to retire and no valid appointment of new directors have been made, the acting directors as a rule are qualified to act, if the Articles of Association do not provide otherwise. Having noted that the Articles of Association do not provide otherwise, he accepted this as the operative proposition. His order was also within the plenitude of power conferred by section 241. Accordingly, there is no basis to set the order aside. Halsbury’s Laws of England (5th ed., 2008), Vol. 14, at para 524 considered; Section 241 of the Companies Act, Cap 58A of the Revised Laws of Grenada considered. JUDGMENT

[1]BAPTISTE JA: Leon O. Taylor (“Taylor”) invites this Court to set aside various orders made by Wallbank J (Ag.) in respect of a claim brought in the court below by minority shareholders of Pointe Salines Development Limited (“PSDL”), the respondents to this appeal. Background

[2]By way of background, Taylor was instrumental in establishing PSDL in 1966 as a holding company for approximately 200 acres of land. PSDL was in essence a family company. He became its managing director from incorporation; and was the largest voting shareholder – 50.1%. Taylor was to hold office until his death, resignation or on ceasing to be a shareholder. Central to the claim was a challenge to conveyances made between PSDL and Taylor, namely, a deed of conveyance dated 18th April 2008 – described as a deed of gift – in respect of a property known as the Cave House property, the effect of which was to dispose to Taylor 1 acre 2 roods and 6 poles of land as a reward to him for his services to PSDL rendered between 1967 and 1985 and as a ‘special reward’. The second transaction, reflected in a deed of conveyance dated 4th June 2010, was a deed of exchange whereby Taylor returned lands to PSDL that he had obtained by the deed of gift, and in exchange PSDL conveyed other lands, to Taylor.

[4]The respondents sought declaratory, injunctive and other reliefs. They sought (i) a declaration that the conveyances were void and of no effect; (ii) an order that they be struck from the records of the Deeds and Land Registry and rectification of the records made in respect thereof; (iii) a declaration that the circumstances or manner of the conveyances were oppressive and unfairly prejudicial to and disregarded their interests as shareholders of PSDL or of the entity PSDL as a whole; (iv) an order that Taylor restore possession of all the lands conveyed to him by the first and second deeds; (v) an injunction restraining Taylor from conveying or further conveying any part of the lands conveyed to him by the first and second deeds; (vi) an order that Taylor accounts for all proceeds of any sale of lots of the land conveyed to him by the said deeds; and (vii) an order that he compensates, make restitution or pay damages for any loss sustained by PSDL or themselves in respect of the said conveyances.

[5]Taylor’s counsel, Mr. Mitchell, contended before Wallbank J (Ag.), among other things, that the decision of the board of directors of PSDL to convey the Cave House property to Taylor for services rendered to it as managing director from 1966 did not constitute oppressive conduct within the meaning of section 241 of the Companies Act and as such there was no basis upon which the court should grant relief thereunder. The issue of the managing director’s remuneration was for the directors of PSDL and did not require shareholder agreement or approval, subject to PSDL’s Articles of Association. The term remuneration was not restricted to monies or cash and extends to real property.

[6]Wallbank J (Ag.) held, among other things, that the respondents, as shareholders of PSDL were proper complainants for the purposes of section 241 of the Companies Act by reason of section 238 thereof. The purported act of PSDL of giving away part of its real estate to Taylor reduced its assets and thus affected its financial result and was prejudicial to the shareholders because it diminished the assets of the company. The lack of an underlying board of directors agreement or resolution in respect of the deeds was fatal to the transfers on the grounds that they had not been authorised in accordance with the Articles of Association and were unfairly prejudicial to the respondents or unfairly disregarded their interests. The lack of valuations entailed that this transfer disregarded the interests of the other shareholders, who had a reasonable expectation that the interest of all the shareholders would be objectively ascertained and balanced. The absence of valuations was contrary to such reasonable expectations and thus also for that reason unfair. Further, Taylor had exercised his power as a director in a manner that was oppressive to the respondents.

[8]Being dissatisfied, Taylor filed several grounds of appeal. Mr. Mitchell complains that Wallbank J (Ag.) fundamentally misapprehended the claim by treating it as a complaint that the affairs of PSDL were being conducted by Taylor in a manner that was generally oppressive or unfairly prejudicial to the respondents’ interests thus leading to the ‘extraordinary orders’ made. While recognising that section 241 of the Companies Act grants the court wide powers, Mr. Mitchell contended that there was no evidentiary or legal basis for the orders made.

[9]Additionally and fundamentally, the approach is contrary to the established principles that orders or relief granted pursuant to an oppression complaint should: (i) go no further than is necessary to address the specific complaint made; (ii) reflect that in the particular circumstances of the case the oppressive conduct must be attributable to the director and the imposition of personal liability must be fit as a means of rectifying the harm done; and (iii) even if relief ought to be granted or justified to correct an oppressive situation , the surgery should be with a scalpel and not a battle axe. Mr. Mitchell also challenged critical findings of fact, the judge’s evaluation of the evidence and the weight he attached to the evidence.