TSAO CHIN LAN v. TIN KA KUNG

Date of handing down judgment: 20 December 1994

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JUDGMENT

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Liu J:

1. On 17 November 1983, Tin Kar Pun died. It is not disputed by counsel for the plaintiff in these consolidated actions that during his life time, the deceased intended to make a gift of a hundred shares in his company, "Tin's P. V. C. Compound Company Limited", to each of the defendants. The defendants are his surviving brother and three of his surviving sons The defendants are directors of the company, holding the said 100 allegedly "invalid" shares each. The attack against the defendants was sought to be supported by, inter alia, the allegation that they are "illegal" directors for their "invalid" shareholdings. But directors of the company need not hold any qualifying shares. The plaintiff's stance is now, therefore, that these defendants are not lawful shareholders in the company's register. However, under his Will the deceased's brother and his said sons are beneficially entitled to his majority shareholdings in the company. The deceased was in total control of the company. As at 1980 the entire capital of the company was 500 shares of $1,000 each, all issued and paid up. The plaintiff was one of the deceased's three wives. She and the deceased were then the only two directors of the company. The plaintiff had 25 shares to her name and the deceased 475.

2. The Re-Amended Statement of Claim is somewhat telling. Attention was initially focused on the alleged non-payment of these 400 shares, which was said to be inferred from the absence of any Bought and Sold Note, Instrument of Transfer, share registration and of any paid stamp duty. The Statement of Claim as originally pleaded was also critical of the lack of approval by a general meeting and minutes. In fact, absence of any minutes or resolution was then remotely or enigmatically linked to the plaintiff's assertion "that the transfer of the said 100 shares to (each of) the defendant(s) was (not) properly supported by Instrument of Transfer". That allegation must have been meant to place on record the plaintiff's equally puzzling accusation made in her letter dated 22 August 1991 (D 5-8). The complaint seemed to be founded on the absence of any or any valid supporting Instrument of Transfer. Much was then also sought to be made of section 57B of the Companies Ordinance which would, if applicable, require prior approval of a general meeting for the allotments of shares to the defendants. The plaintiff could not be expected to be familiar with section 57B herself and in fact the irony is that section 57B did not even become applicable to the company which was incorporated before the amendments introducing section 57B. The reason why minutes and resolution was then mentioned in the pleading was to highlight the need for Instruments of Transfer, thus obliquely taking issue with want of consideration and non-payment. What was said of prior approval by a general meeting under section 57B which did not apply, must be irrelevant. The plaintiff's true concern then seemed to be "how (the defendants came) by the said 100 shares (each)" and whether they were ever paid.

3. In June 1994, a few months before the hearing of these consolidated proceeding, amendments in green were put in place for, inter alia, raising the new and direct allegations that there were no directors meetings for the allotments of these shares, that the allotments were frauds and that these frauds were concealed by the defendants. After this court has been led through voluminous papers and documents, counsel for the plaintiff concedes that the deceased intended to make a gift of the said 400 shares to the defendants and that if meetings of any sort had purportedly been called or held, even without any record or minutes, they would have sufficed. In the light of the previous allegations of fraud and concealment, these concessions make it all the more intriguing to understand why, in a family establishment, the plaintiff still presses on with her full claims other than confining herself to alleged non-payment of the said 400 shares. In reality, sheer formality would mean little to a layman, and the plaintiff has not been heard to say that she would, come what may, go against the wishes of her late husband.

4. It would be fair to note that absence of directors meetings and resolutions for increase of capital and allotments of the said 400 shares had been pleaded in the original Reply in December 1992. But these allegations were advanced as part of the plaintiff's claims only in her amendments made in June 1994, filed in July in 1994.

5. The plaintiff's claims are now much constricted. Apart from costs, of the 15 prayers in the plaintiff's claims, only the following three are being maintained:-

"(A) A Declaration that the said Ordinary Resolution (BA-39:
14 July 1980) is ultra vires, wholly illegal, invalid and void and ought to be set aside";

"(1) A Declaration that the said 100 shares allotted to the Defendant by the director of the Company, Tin Ka Pun, deceased on 4-3-81 to be declared invalid and null and void, and that the said allotment ought to be cancelled";

and

"(1A) An Order, pursuant to section 100 of the Companies Ordinance and/or otherwise, that the register of members of the Company may be rectified by striking out the name of (each) Defendant therefrom as the holder, of 100 shares in the capital of the Company".

6. Prayer (1A) cannot succeed without a joinder of the company. Therefore, the plaintiff is left with a challenge to the increase of capital to $1.3m or 1,300 shares by the said Ordinary Resolution dated 14 July 1980 and to the validity of the allotments of the said 400 shares to the defendants.

7. The deceased was holding the company's reins. No complaint has been raised on the initial transfer of the 25 shares to the plaintiff. The issue and transfer to the deceased of the 475 in the original 500 shares is also accepted as fait accompli. Failure to comply with formalities under the Companies Ordinance, once questioned, shall have to be examined. On counsel's concessions, the complaint that features more prominent in the plaintiff's allegations is that these 400 shares have not been paid up. I shall deal with this allegation first.

8. The former bookkeeper is Miss Cheang Kam Chu. She was with the company from the end of 1973 to the beginning of 1990. She now works in another company within Tin Leuk Sin. Her neutrality has virtually been eroded by the plaintiff's hostile attitude and demeanour. It is quite apparent that she now sides with the defendants. I accept that there is substance in her claim that she left the company on account of the veiled intimidation from the plaintiff's group of friends or associates. No one doubts that she was very loyal to the company. It is essentially her credibility in recounting the events involving the alleged acts and movements of accounts, on which the issue of whether or not the said 400 shares were paid for is to be determined.

9. Having commented on her present stance and her association, I should also observe that no real motive was suggested as to why she should have falsified accounts or perjured herself. She objected strongly to any insinuation of impropriety and she was visibly emotional on being so accused. She could not have overlooked the fact that the two infant sons of her late former employer would also be affected by her evidence in these proceedings.

10. I turn immediately to consider her explanations given for the accounts records. These records are far from being conclusive. They are admitted not to have been expertly kept. They contain errors and alterations with erasures. But Miss Cheang was able to provide what I regard as a rational and orderly support for her court evidence that payment for these said 400 shares were in fact made.

11. The deceased instructed her that he would give 100 shares to her brother and sons, in fact only the two sons then in Hong Kong, Tin Cheong Sin and Tin Yung Sin. Believing it to be more than two sons, Miss Cheang accordingly made entries in the Temporary Loan Ledger (BB- 105 or P5). Since in fact there were only two sons to receive 100 shares each in her instructions, she had to delete the original entries. She also made a mistake of entering the amount said to be attributable to the 100 shares of Tin Ka Kung in the midst of the entries for May. She made a further mistake by entering it with the date of 13 June 1980 instead of 19 June 1980. She erased the erroneous entries but not these mistakes. She was told to enter a sum of $106,797.80 for Tin Yung Sin. She took upon herself to divide the balance equally between the brother of the deceased and Tin Cheong Sin, thus debiting each with $101,498.70.

12. One of the reasons why she selected the Temporary Loan Ledger for use was because the deceased had a credit balance of $342,115.20. In an attempted analysis, Mr Chain, counsel for the plaintiff, succeeded in demonstrating that the source for the said credit balance $342,115.20 could not or could not readily be traced nor that the other entries on the same page and the reverse of the Temporary Loan Ledger provided a clear or workable accounting position. At the bottom of the front page, there was an entry of 0" in pencil. On the reverse page, the last entry was a debit balance of $2,600 made against 31 March 1981.

13. Miss Cheang was not then a fully qualified accountant. She only passed some intermediate examination. She admitted her accounts as being not infrequently visited by errors, alterations, deletion and erasures. She seemed also to have constantly improvised. She explained that had it not been for the credit balance of $342,115.20 in favour of the deceased or if she had reflected on her instructions as then understood, she would have selected a different ledger or clarified with the deceased. Apparently, in the instructions as originally understood for covering more than two sons, the value involved would have exceeded the said credit balance of $342,115.20. But Miss Cheang had then not applied her mind to the matter, and by the time she made the erroneous entries and were almost instantly corrected, the total outlay stood at $309,795.20 for which the said credit balance of $342,115.20 was sufficient.

14. According to Miss Cheang, she understood that these debit balances were to be satisfied by the deceased himself and that the deceased's credit balance in the Temporary Loan Ledger was large enough to cover them. Therefore, as far as Miss Cheang was concerned, the book entries could be balanced. Evidently, there was then no actual movement. She made a corresponding entry of $309,795.20 against the date 19 June 1980 in the Daily Journal (BB-104). She deducted $9,795.20 from that sum for the deceased's personal use. Thus, for her accounting purposes, a sum of $300,000 was left to match the $100,000 each for the deceased's brother and his two sons. That, Miss Cheang explained, reflected the deceased's gift of 100 shares at $1,000 each ($100,000) to his brother and his two sons.

15. Miss Cheang further explained that the $9,795.20 for personal use of the deceased was to go into the Current Account of Director (BB-106). On the same day the deceased withdrew from the company $120,000. Having $9,795.20 standing to his credit, the deceased was thereupon recorded as having a debit balance of $110,204.80 in his Current Account of Director (BB-106) for 19 June 1980 ($120,000-$9,795.20=$110,204.80). The deceased's withdrawal of $120,000 on 19 June 1980 could be seen in his own Book Ledger (BB-107).

16. Tin Leuk Sin did not arrive in Hong Kong until 1981. The deceased instructed Miss Cheang that he would also give 100 shares to him in the Current Account Ledger (BB-006). On 31 March 1981, $100,000 was debited against Tin Leuk Sin. Returning to the Capital Ledger (BB-108), a corresponding entry of $100,000 was made on 31 March 1981. In the same Capital Ledger, the said $300,000 for the shares to the deceased's brother and his two other sons could likewise be found but obviously against another date, 19 June 1980.

17. The accounts entries evidencing the payment of this $400,000 were more complicated. How then, according to Miss Cheang, did the deceased pay up the capital of the said 400 shares gifted to his brothers and his three sons? This $400,000 had been outstanding for 9 1/2 months until 2 April 1981 when the deceased instructed Miss Cheang to effect an immediate cash transfer from his own Savings Account (BB-1) to the company. The transfer was to meet, so Miss Cheang maintained, the debit balances for this $400,000.

18. Mr Chain for the plaintiff invites the Court to take a cautious approach to the accounts and the evidence of Miss Cheang. Counsel queries why there should be any necessity for an immediate cash transfer. Was not the cash transfer in fact needed for settling the four inward bills coming in April 1981 instead of the debit balances for the 400 shares? These four inward bills are shown in the bank statement (BB-00lb). Miss Cheang was strenuously taxed on the erasures and amendments in respect of the cash transfer of $400,000 in the Hang Seng Bank Ledger (BB-111) in which "director's current account" was deleted and amended to "capital". Therefore, the original entry demonstrated, so counsel suggests, that the cash transfer of $400,000 was not for "capital". Miss Cheang denied all improprieties put in cross-examination. In addition, she referred to the receipt voucher for 2 April 1981 (BB-002 or D8), in which the "capital" entry for $400,000 on 2 April 1981 was a clean one.

19. Miss Cheang further explained yet another relevant mistake in the Capital Ledger (BB-110) in which the entry of $400,000 against 2 April 1981 was erroneously put down as additional capital raising it to $1.3 million. She told the court that in fact the $400,000 was to offset the debit balances for the 400 shares gifted to the deceased's brothers and his three sons. The capital was then only 900 shares (the initial 500 shares plus the gifted 400 shares). Miss Cheang further explained that in the annual audit, the mistake was drawn to her attention by accountants then serving the company. She chose to leave the error for correction by that firm of accountants, and it was accordingly corrected as at 31 March 1982 in the Financial Statements submitted to the authority. In the Financial Statement for 81/82 (BC-12), as at 31 March 1982 the company had 900 issued shares. The Financial Statements for 82/83 (BC-26), as at 31 March 1983 the capital of the company was 1,300 shares.

20. In sets of accounts so imperfectly kept and entries so inexpertly made, interspersed with erasures, corrections, omissions, and errors, it was a field-day for Mr Chain of counsel. But there did not seem to exist any real incentive for Miss Cheang to twist the facts, against her conscience and prejudicial to the infant sons of her late employer. I find it hard to accept that she would have felt sufficiently motivated to lie by any possible fringe benefits and security of tenure in her new post. Miss Cheang left the company and was engaged elsewhere, though for a short duration, before she came to be working with Tin Leuk Sin who had by then resigned from the company. I think it would not be unfair to say that she now stands by the defendants, but it would be wrong to suggest that she has lost her integrity. I also do not believe that the irritations and veiled intimidation of or by the plaintiff could truly provide any or any good cause for her to falsify accounts or give perjured evidence. If she had been so improperly inclined, there would have been ample opportunity for her to manufacture for production neatly and accurately written accounts entries. After all, the ledgers produced were in detachable loose-leaf.

21. Mr Yeung, then associated with the company's accountants/ auditors, was called but he was monumentally unhelpful.

22. Essentially, I was impressed by Miss Cheang as a witness. She managed to trace the accounts history from whatever she had in the entries of her less than satisfactory bookkeeping. I accept her evidence. I find that these 400 shares were duly paid as explained by Miss Cheang.

23. I have taken into consideration all the submissions made on the performance of the witnesses called for the defendants, including the attack mounted at the initial answer of Tin Ka Kung that after the death of the deceased, there was a necessity for more bank signatories to be added. He did leave the court with the initial impression that more than one bank signatory was required to operate the bank account. But in fact Tin Ka Kung was himself able to operate the bank account alone even before the death of the deceased. However, Tin Ka Kung later elaborated that it would be prudent to have more than just his own signature to operate the account after the passing away of his late brother. I have dealt with the evidence of Miss Cheang. The evidence of the defendants was led in peripheral support of the alleged payment of those said 400 shares. They all testified to the deceased's public announcements regarding the gift of these shares. Counsel for the plaintiff no longer disputes that the deceased intended to make these gifts. The evidence of the defendants was adduced primarily on the plaintiff's knowledge, conduct and attitude. I prefer their evidence.

24. Tin Ka Kung apparently enjoyed a good relationship with his late brother. When he came to Hong Kong, I accept, he was given $100,000cash by his brother, and he did not question how the estate of their late father had been run by the deceased. He came to Hong Kong in 1973. After a short spell working for Tin Ka Ping, a respected and wealthy cousin, he joined the company of the deceased. He was a de facto director and held out as such by and in his calling cards caused to be printed by the deceased. He alone could operate the bank account. There was no evidence that he had not served his late brother loyally and well. I would not be prepared to discredit Tin Kar Kung merely on account of an inaccurate initial response to a question. As I have said, the evidence and credibility of these defendants would have little direct bearing on the actual payment for the said 400 shares. But obviously, all the circumstances could lend weight to Miss Cheang's assertion of payment.

25. After Tin Ka Kung came to Hong Kong in 1973, Tin Cheong Sin came in 1977. Tin Yung Sin came in 1978 and Tin Leuk Sin in 1981. They all joined their late father in the company. According to the plaintiff, she was abruptly told for the first time by Tin Ka Kung a week after the death of her husband on or about 24 November 1983 that 400 shares had been given to the defendants. She asked Tin Ka Kung to show her "documents about the (said 400) shares".

26. Tin Ka Kung and the other defendants, as did Miss Cheang, all testified to the fact that the plaintiff had had free access to all the documents of the company when she was a direction. I find that there was, from time to time, passive resistance to the plaintiff's search for papers as there was passive aggression. The relationship between the plaintiff and the defendants seemed to be amicable after the death of her husband, but it gradually deteriorated. After 1988, the situation turned from bad to worse. In 1990, there was open conflict. Veiled threats were uttered to Miss Cheang who was also abused by the plaintiff. The deceased's sister, Tin Tip Niang, is a co-executrix. The plaintiff is a business woman and at one time she assisted her sister-in-law in the estate matters. In her capacity of a director of the company, I find that she had free access to company files and documents, though without full cooperation. The plaintiff maintained that she had pressed for documents about the said 400 shares and that her suspicion grew after she came across a reference to capital of 1,300 shares in the Inland Revenue papers in 1986. In 1988 she claimed to be dissatisfied with the administration of the trusts for her two infant sons, and an action for trust accounts was commenced on behalf of the infants against the personal representatives. In 1987/88, some of the defendants found it increasingly difficult to carry on with the business expanded in China, even though the venture was not undertaken in the company's name. The China operation soon ceased on legal advice. The plaintiff was equally disturbed by such China venture. Around this time, the discord came to a head. In 1990, police was at times summoned by some of the defendants and locks to and in the company premises were changed by the plaintiff. They were re-changed by the defendants. Tin Ka Ping was replaced as the trustee for the plaintiff's infant sons in 1990.

27. The plaintiff wasted no time in withdrawing her personal guarantee for the company in December 1983. She made a report to ICAC on some of her complaints against the defendants. She did not seem to have been deterred by the reports made to the police in 1990. At different times, she had the assistance of solicitors and later that of a personal friend on legal matters. She visited the company premises escorted by a group. The defendants must have been less than accommodating; at least Tin Cheong Sin was openly hostile. The plaintiff has a strong personality. She is a woman of determination and action. She declined to sign in for attending meetings. At a meeting held on 12 January 1990 she felt, I find, quite uninhibited in destroying the minutes (CD-19). She is not altogether uniformed or unaided. I do not accept the plaintiff's claim that she was kept from the documents of the company. I find that at least during the time when she was a director, she managed to have free access throughout. Obviously, her searches were not welcomed with open arms. She was supplied with annual accounts of the company in advance before the meetings in 1989 and 1990.

28. In March 1990, she was not re-elected. She managed to freely photostat documents of the company in 1991. In October 1991, she commenced proceedings against these four defendants, which were later consolidated.

29. In the documents filed with the Companies Registry and in the company papers produced in these proceedings, these defendants are shareholders on the record. The burden falls on the plaintiff to show that they are not such shareholders.

30. In the printed resolution for increase of capital to $1.3 million i.e. 1,300 shares (BA-39), it was recorded as having been passed at a meeting held on 14 July 1980, described as a Friday, but in fact it was Monday. Mr Chain, counsel for the plaintiff, suggests that this mistake could not have been made if a meeting had been or had been meant to be held. The company was treated by the deceased as his very own. This error is equally indicative of the informality with which consensus had been casually reached or obtained. This error is certainly no conclusive evidence that no meeting was ever held or intended. It would seem more probable that some form of consensus must have been reached or secured by the deceased so as not to risk any charge of making an official false report. It would not be unusual for a company, run single-handedly by a husband with his wife given a symbolic shareholding, to secure consensus without much formality and to treat such casual consultations or notifications as Board meetings and the consensus thereby secured as Board decisions. Moreover, this Resolution (BA-39) is wholly consistent with other documents officially filed, such as the Returns of Allotment dated 4 March 1981 (BA-44) filed with the Companies Registry on 31 March 1981, the filed Annual Returns since 1981 (BA-45 for 1981, BA-50 for 1982, BA-54 for 1983, BA-58 for 1984 etc.) and the audited accounts of the company for the 1979/80, 1980/81 and 1981/82.

31. I do not accept that the Report of Directors included in the Financial Statements for 1980/81 must have been signed by the plaintiff together with the deceased as the then only two directors. The copy of the Report of Directors of 1980/81 was signed by the deceased alone. Although section 129B of the Companies Ordinance required the same to be signed by both existing directors, the requisite additional director's signature on that report in its original might not necessarily be that of the plaintiff. I cannot assume the original as having been duly signed by the plaintiff together with the deceased if only for the fact that there does not seem to be any good explanation as to why the 1980/81 copy Report of Directors was not signed by the plaintiff if she had signed the original. If the plaintiff had herself signed the Report of Directors included in the Financial Statements for 1980/81, then of course she would have become aware of the said 400 shares and the directorships of the defendants. The plaintiff denied having signed the 1980/81 Financial Statements including its Report of Directors.

32. The plaintiff attended meetings after the death of the deceased and received dividends on the basis of 1,300 existing shares. The amount of dividends coming her way was not insubstantial. It is inconceivable that with her business sense, enthusiasm and determination, the plaintiff could have allowed herself to accept these sums totally in the dark. It would be incredible if this plaintiff had been oblivious to what her rightful shares were or, for that matter, the true bases on which dividends were declared and paid. In my ruling given earlier in this trial, I endeavoured to illustrate how simple it was to ascertain these bases in arithmetic. The plaintiff did not question the dividends. This is conduct consistent with prior knowledge of all 1,300 shares before 1986.

33. It is claimed that the deceased kept these 400 shares from the plaintiff in order to avoid staunch opposition and to keep peace. That would have been unwise. Evidently, the said 400 shares would one day come to light. In fact, these additional shares could be easily discovered on perusal of the company's records. The plaintiff knew where the company's accountants/auditors were located. If the deceased had withheld from the plaintiff the existence of these shares, resistance would have been more marked and disharmony would have been more unbearable upon discovery at a later time. The profit of the company was then slightly over a quarter of million dollars. Soon when additional accommodation was needed, the deceased purchased the plaintiff a flat of over $1.5 million. There did not seem to be any good reason for concealing these 400 shares. The value of the flat and that of these shares were disparate. There seemed to be hardly any real cause for envy or displeasure.

34. No written record of any meetings or resolutions of the company was produced. It is highly probable that none was kept, but there were the audited accounts and Annual Financial Statements. The plaintiff visited the company premises from time to time and had free access to the auditors. For these reasons, there would seem to be no good cause for suppressing the fact of these allotments.

35. In her Reply, the plaintiff disclosed that for the 380 out of 475 shares belonging to the deceased in the original 500 shares capital of the company, there was no resolution passed, no board meeting held, and no recorded payment made. In court, she admitted that she was told of the allotment of these 380 shares by the deceased. The company must have been run by the deceased casually passing information, from time to time, on to his wife as the other director so as to make it proper for filing official reports. It cannot be assumed that the deceased had not been briefed on the formal requirements of an incorporated company or that the deceased deliberately chose to be irresponsible when compliance could have been easily met. Communications of this nature between the spouses must have taken place. They must have been intended to the Board meetings and Board decisions. I would so infer. It would be right to conclude that the deceased had followed the usual routine in the family company for the allotments of the said 400 shares. On the balance of probabilities, I find that the deceased must have so liaised with the plaintiff with regard to these shares. The proper inferences to be drawn from all circumstances are that the deceased reached or otherwise obtained consensus from the plaintiff as the other director for the purposes of these allotments which were later formally reported to the authority and that such consensus was, as it had thitherto been regarded as Board meeting and Board decision.

36. Counsel for the plaintiff has conceded that if meetings of some sort had purportedly been held for the allotments of these said 400 shares, that would suffice. Such was, I find on probabilities, the position. The plaintiff's claims are therefore denied, and these consolidated actions are dismissed.

37. It is quite unnecessary for me to consider the issue of estoppel raised on behalf of the defendants. Both counsel agree that the principle applicable is encapsulated in Tailors Fashions Limited v. Liverpool Victoria Trustee Company Limited [1982] 1QB 133 at p. 155C as affirmed by the Appellate Committee in the Privy Council in Lim Teng Han v. Ang Swee Chuan [1992] 1WR 113 Tailors, p. 151H, page 155C:-

"It is enough if, in all the circumstances, it is unconscionable for a representor to go back on the assumption that he permitted the representee to make."

38. This provides no more than a concise formulation of the rationale of estoppel, but I am invited to consider myself as so guided. See Amalgamated Investments & Property. Co. Ltd. (In Liquidation) v. Texas Commerce International Bank Ltd., [1982], Q.B. 84, 108G; A.G. of Hong Kong v. Humphrey's Estate (Queen's Garden) Ltd; [1987], A.C. 114 at p. 117 Letters B-D; Halsbury; Laws of England (1992) Vol. 16, 4th edn. para. 1071 at p. 931 and para. 1072 at p. 933, Spencer Bower and Turner on the Law Relating to Estoppel by Representations, 3rd end. (1977) para. 308 and Equitable Estoppel and Related Estoppel by D.M.J. Bennett, Q.C. in Australian Law Journal No. 61 (September 1987) p. 540.

39. It is highly debatable whether by her conduct the plaintiff had lulled the defendants into believing that they were acknowledged shareholders and directors. If indeed the defendants were in any way so misled, what is the detriment? The defendants all received a share of the company in the Will of the deceased. That share was equally meaningful, They all worked for the deceased in the past. They all had a long history and association with the company. Whether or not they might have an extra hundred shares each in the company, they would have conducted themselves in the same way, making reasonable efforts in promoting the business, serving diligently as directors, willingly providing guarantees etc. At the date of the death of the deceased, the net profit was slightly over $300,000, but the assets and goodwill of the company were considerable Before the relationship between the plaintiff and the defendants further deteriorated, the profits of the company soared to $12 million in 1988. It would be unreal to suggest that any of the defendants would have turned away from the company at this time or earlier upon the death of the deceased if their shareholdings had been seriously challenged. No cogent evidence was adduced that the defendants had any real or practicable alternatives but to continue to work in the company.

40. The issue of estoppel as raised is not substantiated by the material circumstances in these proceedings, looked at with a fair degree of commonsense. The estoppel issue fails.

41. I turn finally to the question of costs. This is, in every sense, a family dispute. It is more difficult to apportion blame than in a matrimonial case. The documents were certainly not orderly. More perhaps could have been done by the defendants to allay the plaintiff's anxieties. A great proportion of the trial time was spent on estoppel. It was an independent issue. There would appear to be every justification for me to deprive the successful parties of costs by making no orders as to costs. Accordingly I make an order nisi that there shall be no orders to costs.