Allen & Gledhill succeeds before Singapore Court of Appeal on issue of minority discount in oppression case

19 February 2020

In Senda International Capital Ltd v Kiri Industries Ltd [2020] SGCA(I) 01, the Singapore Court of Appeal upheld the decision in Kiri Industries Ltd v Senda International Capital Ltd & Anor [2019] SGHC(I) 02 in which the Singapore International Commercial Court (“SICC”) declined to order a minority discount for lack of control in the valuation of a minority shareholder’s shareholding in a joint venture company, following the minority shareholder’s successful claim for oppression in an earlier decision of the SICC.

Allen & Gledhill Partners Dinesh Dhillon, Lim Dao Kai and Margaret Joan Ling represented the successful respondent in this case.

Background

In the decision from the main proceedings (“Main Judgment”), the SICC had ordered that Senda International Capital Limited (“Senda”), the majority shareholder in the joint venture company, DyStar Global Holdings (Singapore) Pte Ltd (“DyStar”), buy out the shareholding of Kiri Industries Limited (“Kiri”) based on a valuation to be assessed as of the date of the Main Judgment, and that the valuation of Kiri’s shareholding should take into account losses arising from various oppressive acts by Senda.

A hearing was subsequently held to decide the valuation of Kiri’s shareholding for the purposes of the buyout order. A key issue was whether a discount should be factored into the valuation of Kiri’s shareholding, given that Kiri was a minority shareholder, and if so, how this should be assessed in the valuation process.

The SICC agreed with Kiri and decided that a minority discount for lack of control ought not to be applied. Senda appealed against the SICC’s decision.

Decision

The Court of Appeal dismissed Senda’s appeal. It held that the decision by the SICC not to order a minority discount was discretionary in nature, and the appellate court would only disturb this decision if it were shown that the Judges in the court below had erred in some way.

As a preliminary issue, the Court of Appeal dealt with Senda’s argument that the SICC ought to have allowed Senda to admit further evidence which would have been relevant to the question of whether a minority discount should apply. The Court of Appeal agreed with the SICC that the matters on which Senda sought to adduce further evidence were within the issues canvassed at trial and dealt with in the Main Judgment.

In respect of the substantive issue of whether a minority discount should apply, the Court of Appeal stated that all the facts and circumstances of the case would have to be looked at. In this regard, the Court of Appeal did not find any error on the assessment of the facts by the SICC. In particular, the Court of Appeal agreed that Senda’s oppressive conduct was directed at worsening the position of Kiri as a minority shareholder so as to compel Kiri to sell out, and was entirely responsible for precipitating the breakdown in the parties’ relationship. While Kiri was in breach of certain non-compete and non-solicitation obligations in relation to certain customers of DyStar, this did not justify the application of a minority discount as Kiri would have to pay damages for such breaches.

The Court of Appeal also took into account the fact that Senda had extracted considerable value out of DyStar, and would benefit from the buyout. In particular, DyStar would become a fully-owned subsidiary of Senda and the value of DyStar would be credited to Senda.

Comment

The decision by the Court of Appeal confirms that the court’s approach in assessing whether a minority discount should apply is a fact-sensitive one. Given that the decision as to whether such a discount should apply is a discretionary one, an appellate court is unlikely to disturb the lower court’s findings unless the lower court is shown to have erred in some way.

Reference materials

The Court of Appeal judgment is available on the Supreme Court website www.supremecourt.gov.sg or by clicking here