Hiscock v Panmure Orchards Limited

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2021-412-37

[2021] NZHC 3020

UNDER

the Companies Act 1993

IN THE MATTER

of an application under s 174 of the Companies Act 1993

BETWEEN

CLIFFORD MURRAY HISCOCK

First Plaintiff

AND

CLIFFORD MURRAY HISCOCK and

DOUGAL MURRAY HISCOCK as trustees of the CM Hisock Family Trust
Second Plaintiffs

AND

PANMURE ORCHARDS LIMITED

First Defendant

AND

SHIRLEY FRANCES HISCOCK

Second Defendant

AND

JEREMY CLIFFORD HISCOCK

Third Defendant

Hearing:	19 October 2021
Appearances:	M J Hammer and J W Cowan for Defendants/Applicants E D Peers and G G Dill-Russell for Plaintiffs/Respondents
Judgment:	9 November 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

HISCOCK v PANMURE ORCHARDS LIMITED [2021] NZHC 3020 [9 November 2021]

Introduction

[1]    Shareholders in a family company agree they need to go their separate ways. The plaintiffs want to sell their shares and the defendants are prepared to buy them. However, the parties cannot agree on a price or a price fixing mechanism for the shares. The plaintiffs want the price set through these proceedings.

[2]    The defendants say these proceedings are unnecessary because, prior to the issuing of these proceedings, they offered fair value for the shares or for fair value to be determined in an independent and transparent way. They seek summary judgment as defendants on that basis.

[3]    The plaintiffs resist the application and submit the claims they make for compensation alongside the sale of their shares cannot be determined by a valuer.

Background

[4]    Panmure Orchards Limited (POL), the first defendant, owns 253 hectares of land in Central Otago, part of which is irrigated and planted as cherry and nectarine orchards. The original 10 hectare block that became a cherry orchard was acquired by the father of the first plaintiff, Clifford Hiscock (Clifford), in 1952. Clifford grew up on the land and has been involved in the development and expansion of the landholdings all his life.

[5]    Dougal  Hiscock  (Dougal)  and  Jeremy  Hiscock  (Jeremy),  are  two  of   the children of Clifford and Shirley Hiscock (Shirley). Clifford and Dougal are the second plaintiffs in their capacity as trustees of the CM Hiscock Family Trust, while Shirley and Jeremy are the second and third defendants, respectively.

[6]    While Clifford and Shirley remain  married, they separated  approximately  17 years ago in 2003 or 2004. It is not necessary to recount the stages by which Clifford and Shirley built up the landholding to its present level. It is not in dispute that both Clifford and Shirley worked diligently on developing the orchards, Clifford

having had significant input into the design, development and construction of irrigation systems and undertaking substantial earthworks on the properties.

[7]    As Clifford himself recognises, a serious  head  injury  he  suffered  in  August 1999 marked a significant turning point in his life. Clifford continued to be active on the properties until sometime in 2016, and he and Shirley were directors of the company alongside an independent director, Mr Lindsay Brown (who was…