Imagine you and your friend come up with a new business idea. You go online and set up a company, owning 50% of the company each as shareholders, both appointed as directors and away you go. There are only two of you, so do not see the need for a shareholders agreement. You are friends, right?

However, what happens when you and your friend’s common interests, goals, or hours spent on the business diverge, and things turn sour? What if you or your friend can no longer contribute to the business, but do not want to let it go? Behold – the deadlock.

The best option for resolving such disputes is to have a shareholders agreement with a clear dispute resolution process. However, not all 50/50 shareholders have such an agreement. This article outlines your alternative options for resolving shareholder disputes.

Disputes Between 50/50 Shareholders

Many scenarios can lead to a dispute between two shareholders. For example:

  • one may want to receive dividends from the business, and the other to reinvest the money to grow the business;
  • they each have different expectations for how to operate the business; or
  • one shareholder does not contribute, leading to resentment.

Without a shareholders agreement to set out what should happen when the parties reach a deadlock, two friends in business together can find themselves in a difficult situation. They may each want to give the other ‘the boot’, or one may want to sell the business and its assets, while the other wants to keep it running. Often, shareholders are surprised to learn that they cannot force the other person to sell their shares simply because they are in disagreement.

Where there is a deadlock between the parties, there are often competing claims of breach of director duties and oppression. For example, the first director may claim that the second breached their duties, while the second director may claim that they were prevented from accessing critical information.

Resolving Shareholder Disputes in Court

Shareholders may think that the provisions of the Corporations Act (Act) will provide them with a solution. This is true in part. The court can make orders to resolve a shareholders dispute. Some of these orders include:

  • that the company be wound up;
  • that one shareholder is to purchase the other’s shares at a price determined by the court; and
  • directions regulating the conduct of the company’s affairs.

However, these may not be the solutions that the parties necessarily want. Furthermore, court proceedings under the Act are inevitably time-consuming, expensive and bitter.

A shareholder can also apply to the court to wind up the company on the basis that it is ‘just and equitable’ to do so. Where there has been a breakdown in the relationship of the parties, this may provide a ‘just and equitable’ basis to wind up the company. However, courts are reluctant to wind up a solvent company. In reality, this is not something that shareholders should rely on.

Resolving Shareholder Disputes by Negotiation

The more common pathway to resolving a shareholders dispute is the parties entering into negotiations and agreeing on a solution. This can be a lengthy process, and neither may feel like they ‘win’ in the end. However, if the parties are both willing and prepared to make a compromise, they can resolve the dispute through negotiation, faster at less cost than through court proceedings.

So, what are the options for resolving shareholder disputes through negotiation?

Sell or Split the Business

The shareholders may agree that neither party will continue to run the business. In this case, they will both sell the business to a third party. Or they may agree to split the assets of the business, and negotiate which assets each of them will retain.

This can be advantageous, for example, where one party has created some or all of the intellectual property for the business and wishes to continue using it, in the same or a new business. A well-drafted sale of business contract will set out what each shareholder will receive.

Negotiate a Share Sale

One party may keep their shares and continue to run the business, and the other party may opt to sell their shares. In most cases this will be to the other shareholder, giving them full control of the business. However, the departing shareholder may also sell their shares to another (third party) person.

If one shareholder proposes to sell to a third party, it is, of course, important to find someone that can bring value to the business. If the remaining shareholder does not agree with the proposed new shareholder, the company constitution may allow them to refuse the transfer of shares.

In most cases, the parties will disagree on the value of the company and the shares. Therefore, it is a good idea to have the company and shares independently valued. This will provide a firmer basis for negotiation.

Where the relationship between the parties has deteriorated too far that neither can agree to sell to the other no matter what price is offered, the parties may consider submitting a ‘sealed envelope bid’ to each other or to an independent third party. This will have the higher bid buying out the other party, in a ‘Russian Roulette’ style deal.

Company Buy-Back of Shares

Alternatively, a shareholder may negotiate to sell their shares back to the company. A buy-back of one shareholder’s shares is called a ‘selective buy-back’.

Section 257 of the Corporations Act enables a company to buy back its shares. However, a company can only buy back its shares if the purchase:

  • does not materially affect the company’s ability to pay its creditors; and
  • complies with the procedures in Chapter 2J.1 Division 2 of the Act.

A company buy-back is a technical process with different rules according to how many shares are being sold. Therefore, having legal guidance is almost always necessary.

Key Takeaways

If you and a friend have started a company together, you may find yourselves in a difficult position if the business relationship deteriorates. Even if that seems doubtful now, you need to consider what you each may want in five or more years time.

The Corporations Act has limited options for resolving shareholder disputes. Going to court is also expensive and time-consuming. In the absence of a shareholders agreement, you and your friend may find yourselves in lengthy negotiations over what each has contributed, what each is entitled to and the value of the business.

You can avoid these problems by having a well-drafted shareholders agreement that includes a clear dispute resolution process. If you require further assistance with resolving shareholder disputes, call LegalVision’s business lawyers on 1300 544 755 or fill out the form on this page.

Bonnie-Anne Talese
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