What’s the difference between an independent director and a shopping trolley? You can fill the shopping trolley full of grog but you can’t push it anywhere you want.
Every so often, the opportunity arises to reprise this joke and today, with the decision in the Perpetual v Soul Pats case, that occasion has come again.
Except this time, the joke is on the joke. The judge found that independent (non executive) directors could and did act independently. By implication, they did not get filled up with fine claret, get bossed about by management and oppress minority shareholders.
It will be interesting to see who foots the multi-million dollar bill for the case, Perpetual the company, or the unitholders of the Perpetual funds. The media team is yet to respond to calls.
It was a reasonable case, and one bitterly fought. Perpetual fund managers wanted to unwind the cross shareholdings between Washington H Soul Pattinson and Brickworks to release value for their own unitholders.
They claimed that, even if the two boards had independent directors, the Milner family still controlled both companies, was in a position to exert undue influence, and the arising conflict of interest was a drag on the share price.
How could these companies be taken over if a bidder could not dislodge either of the two intertwining shareholders? It was a fair call, though there was never any guarantee of better performance in the future.
This was an “oppression of minorities” case and Justice Jayne Jago of the Federal Court found minority shareholders had not been oppressed. The decision won’t make cross shareholdings any more popular with the investment community.
Perpetual is acting a tad shellshocked about the whole thing. When asked who would be footing the bill – funds or Perpetual – the answer was
“Perpetual is reviewing the reasons for judgment which have been suppressed by the court for 48 hours.”